DC Circuit Pressed to Set EPA Straight on Air Quality Assessments

WASHINGTON (CN) – Questions about how the Environmental Protection Agency interprets the data it uses to set caps on sulfur dioxide pollution took center stage at the D.C. Circuit Tuesday as attorneys for environmentalist groups sought to convince the judges the agency has it all wrong.

The case before the three-judge panel, Samuel Masias, et al. v. EPA et al., came to the court from Colorado, where residents Samuel Masias, Jacqueline Ostrom and Jim Riggins launched a challenge to the EPA’s pollution findings for their state.

Masias asked the agency to revisit a July 2016 decision in which it found Colorado in compliance with National Ambient Air Quality Standards, and deserved to earn the status of “unclassifiable” by the EPA.

According to the EPA, when a state is deemed “unclassifiable” it means the air quality either meets or is cleaner than the national standard.

In the Masias petition, the environmentalists argued it was improper to bestow the “unclassifiable” designation om Colorado in light of independent assessments that found the state was far from being in compliance with the standard.

In one case, the Colorado Springs Airport, which is near the coal-fired Martin Drake Power Plant, found pollution in the air above it exceeded the 75-parts-per-billion maximum established under the standard.

Eventually, the Sierra Club and a public utility board for Kansas City, Kansas, joined the plaintiffs’ petition and discovered similar patterns in other states, including Ohio.

Together they argued Colorado should have been given “nonattainment” status, meaning it had failed to meet the federal standard.

A similar scenerio played out in Gallia County, Ohio, where the EPA’s findings are being challenged by the Sierra Club.

On Tuesday, Sierra Club attorney Lisa Perfetto said that’s becausse the agency used “bad math” during its assessment of the sites.

Perfetto told U.S. Circuit Judges David Tatel, Patricia Millett and Stephen Williams the EPA compared its findings to data sets determined in 2012 to 2014 instead of 2013 to 2015.

By relying on this older data, the agency could make designations for polluters that would otherwise be inaccurate and unlawful, Perfetto said.

EPA attorney Amanda Shafer Berman said Tuesday it wasn’t a matter of bad math, but rather the information on which the EPA relied for Colorado and Ohio assessments just simply “wasn’t good enough” or “representative” of the whole area.

“To have accurate modeling, you need a representative set of meteorological data, in addition to emissions data. EPA has emission data in addition to what states submit, which shows emissions from plants, but in regard to Colorado Springs [the EPA] didn’t have good meteorological data; it came from the airport, from a nearby highway and so on,” Berman said.

This prompted Judge Millett to question Berman’s logic.

“How does the federal government not have meteorological data when you have both the airport and the Air Force Academy there. They’ve got to have really good meteorological data in Colorado. The government just has to,” Millett said.

Millett told Berman she “sees a lot of this going on” at the the EPA.

“You say, we don’t like this or that, but you are making no apparent efforts to take [the information outside researchers] put before you, nor do you actually, proactively go get the information. How come there [are] no new measurements?” Millett asked, before noting the EPA had a “really long time” to get the data before suddenly deciding they didn’t like the latest findings.

Berman was unable to say why nearby sources were not drawn on for new studies.

Judge Williams also asked Perfetto why the Sierra Club and other petitioners simply could not wait for the EPA to conduct another, more current assessment before it appealed the original designation decision by the agency.

“If we waited for new information, we would be waiting every year to the get the latest thing and that would delay a determination indefinitely and prevent public health benefits,” Perfetto said.

In effect, the EPA can “open a huge loop hole,” Perfetto said.

“If states want to avoid nonattainment status, they can do some modeling, submit those numbers and if it doesn’t fit, simply throw their hands up and say, ‘we tried,’” she added.

Designations have not yet been set for each state in the U.S. as originally planned under the Clean Air Act.

The deadline for state-by-state designation is 2020.

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