ELR Citation: ELR 21428
No(s). Civ 93-643 TUC ACM (D. Ariz. Oct 6, 1994)

The court orders the U.S. Environmental Protection Agency (EPA) to complete review and revision of its particulate matter (PM) air quality criteria and national ambient air quality standards (NAAQS) by January 31, 1997. Clean Air Act (CAA) §109(d)(1) requires EPA to review air quality criteria and the NAAQS every five years. The court holds that because almost 12 years have passed since EPA last reviewed the PM criteria in 1982, and almost seven years have passed since EPA last reviewed and revised the PM NAAQS in 1987, EPA has not merely missed a deadline, but has nullified the congressional scheme for a fixed internal review and revision process. The court holds that EPA further frustrates congressional intent by proposing a four-year, three-month review schedule with a final promulgation date of December 1, 1998. Although EPA's proposed schedule undoubtedly meets CAA §108(a)(2)'s mandate that air quality criteria accurately reflect the latest scientific knowledge, it wholly defeats §109(d)(1)'s mandate. Thus, the court is forced to develop a revised timetable. The court finds that although EPA's goal of involving the general public and the scientific community in the NAAQS review and revision process is laudable, the schedule must be adjusted to provide for only those review activities required by Congress and essential to ensure that—within the context of five-year intervals—EPA standards reflect the latest scientific knowledge so as to protect the public fully. The court also finds that Congress provided for the EPA Administrator to appoint an independent scientific review committee (CASAC) to complete an independent review of criteria documents and air quality standards at least every five years and to make recommendations to EPA for appropriate changes. The court further finds that CASAC review of the criteria document and the staff paper that EPA will prepare is appropriate.

The court holds that the revised schedule shall exclude Office of Budget and Management review, because such review serves no congressional purpose and is wholly discretionary. The court adopts EPA's proposed schedule for preparing the criteria document, which sets forth the necessary activities from October 1993 to the end of April 1995. The court also adopts EPA's projection that CASAC should complete its review of the criteria document by the end of August 1995. By the end of June 1995, EPA shall complete a first draft of the staff paper setting forth the relevant criteria data and scientific analysis for determining whether NAAQS revision is appropriate. Thereafter, CASAC shall have three months to complete its review of the staff paper draft. The court, however, excludes from its revised schedule EPA's provisions for interim CASAC review of various criteria document and staff paper drafts. After CASAC's review, EPA shall have two months to finalize the criteria document and staff paper. EPA shall then have five months to prepare the proposal packages, including publication of the proposed regulation in the Federal Register. The court holds public comment on the proposed rule to the statutory minimum of 60 days. EPA shall then have five months to make its administrative decision and prepare the final package to promulgate and publish the new regulation in the Federal Register by January 31, 1997.

Counsel for Plaintiff
David S. Baron
Arizona Center for Law in Public Interest
1840 E. River Rd., Ste. 207, Tucson AZ 85718
(520) 529-1798

Counsel for Defendant
Karen L. Egbert
Environment and Natural Resources
U.S. Department of Justice, Washington DC 20530
(202) 514-2000