From: Paul Tiegs [mailto:firstname.lastname@example.org]Court Voids EPA Air-Pollution Rules
Sent: Friday, August 20, 1999 9:22 AM
To: John Crouch (E-mail)
copy: Jim Buckley
We have been digging deep into a range of standards development matters as part of our accreditation programs. As something the HPA should be very interested in, we have run across OMB Circular A-119, which is a Presidential Policy Order entitled, Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities. Itís dated 2/10/98 and can be found in total at http://web.ansi.org/public/news/1998may/a119_2.html
The Presidential Policy Order REQUIRES Federal agencies (e.g. EPA) to participate in the development of consensus standards. The policy also REQUIRES Federal agencies to use the resulting standards and their associated conformity assessment systems; else, the agency must demonstrate good reason for not doing so.
David Menotti would be better qualified to give legal opinion, but it occurred to us that this Order gives HPA the ideal mechanism for developing a Federally enforceable emissions standard for fireplaces. Unlike the Reg Neg process, EPA would be precluded by the Presidential Policy Order form dominating the consensus process or even from exerting undue/disproportionate influence. Form our reading of the Order, we believe that, ultimately, EPA could be compelled to amend the Wood Heater NSPS to adopt by reference a consensus standard on fireplace emissions. At the very least, the consensus fireplace emissions standard could be made viable under the EPAís SIP programs. Better still, we believe that EPA could be compelled to accept third party certified fireplaces, much like code officials accept third party certification for product safety. No EPA certification, but EPA (and subsequently state) acceptance of third party certification of conformance.
Please take a look at the Presidential Policy Order and let me know what you think.
(14 May 1999 18:07 EDT)
Court Voids EPA Air-Pollution Rules
By H. JOSEF HEBERT
Associated Press Writer
WASHINGTON (AP) A federal appeals court blocked the Environmental Protection Agency on Friday from imposing tougher air quality requirements the agency says are needed to protect people with respiratory problems and children.
The ruling by a three-judge panel, acting on a lawsuit by a number of industry groups, was a major defeat for the Clinton administration, which has viewed the air regulations as one of its top environmental accomplishments.
Although the EPA said it will ask the Justice Department to appeal, the ruling halted any further enforcement of rules imposed in July 1997 that require states to dramatically reduce the amount of ozone, or smog, and microscopic soot they may allow in the air.
The administration is "deeply disappointed" by the ruling, said White House press secretary Joe Lockhart. "We will continue to do everything in our power to ensure that the American people are adequately protected against ... harmful air pollutants."
The three judges of the U.S. Court of Appeals for the District of Columbia rejected claims by the industry groups that the regulations were based on incomplete and poor science and were too costly. But two of the three judges concluded the EPA failed to justify the pollution levels it selected as minimum requirements to protect public health.
The agency "construed (sections of) the Clean Air Act so loosely as to render them unconstitutional delegations of legislative power," wrote Judges Douglas H. Ginsburg and Stephen F. Williams.
Judge David S. Tatel, who joined the other two judges in some of the decision, nevertheless, issued a strong dissent on this key point. The EPA, in fact, used "reasonable explanations" for setting the standards it chose, wrote Tatel.
The regulations imposed much tougher health standards for smog-causing ozone and opened the way for the first time for regulation of microscopic soot. The tighter standards put hundreds of counties in violation of federal air quality standards.
A broad array of industry groups, from electric utilities to trucking companies, vigorously fought the regulations, arguing they would require costly pollution reductions while the health benefits had yet to be shown. The EPA has argued that current ozone and soot standards do not protect certain segments of the population, including small children, the elderly and people with respiratory ailments.
When they were imposed, Vice President Al Gore called the tougher requirements "the most significant steps in a generation to protect the American people, especially our children, from air pollution."
The revised air standards limited ozone, an essential part of smog, to 0.08 parts per million, instead of 0.12 parts per million under the old requirement. And for the first time they required that states regulate microscopic particulates, or soot, from power plants, cars and other sources down to 2.5 microns, or 28 times smaller than the width of a human hair.
The appeals court panel, with Tatel dissenting, said the EPA did not establish clear "principles" to support those specific standards and, instead, selected them arbitrarily.
Industry representatives and critics of the regulations in Congress quickly applauded the decision.
"It's a big victory, one of the biggest," said Robin Conrad, senior vice president for litigation at the U.S. Chamber of Commerce. She said the ruling acknowledged industry's claim that the EPA in setting the standard was "picking numbers out of the hat."
The EPA will have to "start the process all over again ... and justify its numbers," she said.
"The decision shows that EPA Administrator Carol Browner clearly overreached her authority," said Sen. James M. Inhofe, R-Okla., who has argued the new standards were too burdensome on business.
The decision stunned EPA officials and many environmentalists.
"This ruling is a direct assault on the principle of health-based air quality protection," said David Hawkins, head of the air and energy office of the Natural Resources Defense Council.
Gene Karpinski, executive director of U.S. Public Interest Research Group, called it "an outrageous decision on behalf of the polluters and ... a severe threat to public health."
Forwarded by John Crouch
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