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06.26.2018 Legal News

Pruitt Directs Staff to Get “Back to Basics” For NAAQS Reviews

EPA is required under the Clean Air Act (CAA) to periodically review the National Ambient Air Quality Standards (NAAQS) to ensure they reflect the most current scientific information while protecting human health and the environment.  In May, EPA Administrator Pruitt issued an eleven-page memorandum to all EPA Assistant Administrators setting out five “back-to-basics” principles to be used in reviewing future NAAQS and State Implementation Plans (SIPs).  The mission: to ensure these reviews are performed in a “timely, efficient, and transparent manner.”  

Pruitt’s memo comes less than a month after the White House published a Presidential Memorandum promising to develop policies and procedures for NAAQS reviews that promote domestic manufacturing and job creation.  The memorandum is written to Pruitt and “directs the Administrator to take specific actions to ensure efficient and cost-effective implementation of the NAAQS program.” President Trump states his goal is to fix costly and burdensome measures created over the past four decades. 

A. Economics & Cooperative Federalism

The President’s memo states that overly stringent NAAQS are having direct adverse economic effects.  These effects include (i) a risk of less federal funding for new transportation projects, (ii) the inability of applicants to obtain pre-construction permits for new and expanding industrial facilities, (iii) excessive costs to meet standards that are almost to “background levels” in some areas, and (iv) delays in obtaining necessary pre-construction permits.

Trump also finds that overly stringent NAAQS and EPA’s related Regional Haze Program are negatively affecting the states’ ability to grow and maintain control of their air permitting programs.   The President believes stringent NAAQS and the Regional Haze Program have created more Federal Implementation Plans (FIPs) in lieu of SIPs.  These FIPs allow the federal government to tell states how they must comply with revised NAAQS and how they must improve visibility in national parks and wilderness areas.  Trump explains that the trend of having FIPs instead of SIPs does not meet his Administration’s goal of cooperative federalism – allowing states to set regional policies and make decisions that promote growth while achieving reasonable compliance objectives.

B. The President’s Directives to Pruitt

In his memorandum, the President directed Pruitt to perform nine specific tasks to implement his economic growth and cooperative federalism policies.  These tasks include practical as well as policy changes.  On the practical side, Trump provided EPA with hard deadlines to take final action on SIP permit applications, review exceptional events and international emissions petitions, replace FIPs with SIPs, and issue regulations and guidance to states simultaneously with new NAAQS.

On the policy side, Trump instructed Pruitt to give the states more flexibility by:

  1. Providing relief to states experiencing exceptional events or international emissions.  This includes taking into consideration a state’s inability to meet NAAQS affected by the international transport of pollutants; allowing states not located on the borders of Mexico or Canada to file international emissions petitions and use emissions from non-bordering countries like Asia; and assessing background concentrations from foreign sources and exceptional events, such as wildfires, stratospheric ozone intrusions and volcanic seismic activities.
  2. Making better use of monitoring and modeling data. This includes using EPA-approved air monitoring and modeling data appropriately in making designations of attainment and non-attainment; for permitting decisions, SIPs, exceptional event and international emissions demonstrations, consulting with applicants and states on whether modeling should be used in lieu of monitored data; approving alternative models and promoting innovative state approaches; and, identifying types of permitting that do not require modeling or that can use streamlined modeling through set values.
  3. Developing Flexible Offset Policies.   This includes providing flexibility to states in identifying and achieving offsets, including allowing intrastate and regional inter-precursor trading, as well as developing and implementing flexible offset policies in rural areas where few facilities exist to promote economic expansion.

Finally, the President ordered Pruitt to make the newly revamped Clean Air Scientific Advisory Committee (CASAC) follow the law by including policy-driven impacts of new and current NAAQS when making recommendations.  These include advice on background levels and resulting economic and energy effects.

C. Pruitt’s Directives to Assistant Administrators

In response to the President’s memorandum, Administrator Pruitt issued his own memorandum to EPA’s Assistant Administrators directing them and their staff to adhere to five principles in implementing the NAAQS program.  Those principles are: 

Principle 1:  Meet Statutory Deadlines

The CAA requires that EPA review each NAAQS every five years, something that often failed to happen.  Pruitt insists that all statutory deadlines be met.  His memo directs the agency to begin review of the ozone NAAQS to meet the October 2020 deadline, to continue the particulate matter NAAQS review to meet the December 2020 deadline, and to evaluate whether to reconsider, modify or maintain other 2015 NAAQS.  Regarding the 2015 ozone NAAQS, Pruitt promises to open the docket and call for scientific information and nominations for the CASAC ozone review panel and to use the principles set forth in his memo to guide all future and ongoing reviews.

Principle 2:  Address all CAA Provisions for NAAQS Reviews

Pruitt directs the agency to ensure that the CASAC does not “unduly narrow” its review of important effects of revised or current NAAQS.  He firmly states EPA will ask the CASAC in the NAAQS review process to respond to the following specific inquiries:

  • Show what scientific evidence has been developed since the last review to support any proposed revisions to the current standards needed to protect public health;
  • Identify the relative contribution to air pollution concentrations of natural and anthropogenic activities and identify their relative proximity to peak “background levels”; and,
  • Identify any adverse public health and welfare, social, economic or energy effects from attainment strategies.

This direction is consistent with the new administrative push for a thoughtful consideration of all relevant evidence and of the effects of regulatory actions, including economic impacts, in rulemaking activity.

Principle 3:  Streamline and Standardize the Process for Development and Review of Policy-Relevant information          

To streamline NAAQS development and review, Pruitt suggests specific changes such as automatic outreach to other federal agencies using already synthesized available data for each pollutant.  More importantly, Pruitt directs EPA staff to use assessments that are “policy-relevant.”  He says such assessments should look at the adequacy of the current NAAQS by analyzing the causal effects (health, economic, social, and energy) of levels both above and below current standards.  He indicates that policy-relevant information considered by the CASAC should include appropriate background levels of each pollutant for context, as well as the items outlined above.

Principle 4:  Differentiate science and policy judgments in the process         

Pruitt reminds staff that, under the CAA, the Administrator makes the final decision using his discretion and weighing all the facts and policy considerations.  Pruitt advises staff to make sure that EPA, with the help of the CASAC, provides him with a “range of options” to consider in setting NAAQS.  He requires that all options include different interpretations of scientific evidence and risk/exposure information.  In the spirit of cooperative federalism, Pruitt directs that all information be made available for public comment prior to his decision to allow states, tribes and local governments to provide feedback on how they can meet their economic goals while protecting their citizens. 

Principle 5:  Issue timely implementation regulations and guidance.

Finally, Pruitt directs the agency to issue simultaneous implementing regulations and guidance to assist co-regulators and states in the planning process.  He believes that this will assist states in submitting approvable SIPs and provide them with tools to obtain regulatory relief to address background concentrations and pollutant sources outside the states’ control.


Administrator Pruitt’s memorandum is a good first step in changing how the agency will review and revise the NAAQS.  Pruitt recognizes that the plodding pace of NAAQS review affects economic growth and the ability of states to stay in attainment.  When states can’t stay in attainment, facilities can’t be built or expanded, transportation projects can’t be funded, and costs go up.  By requiring that any revisions to NAAQS be supported by current and complete science, realistic public health concerns, and a balancing of scientifically-based health risk concerns with economic effects and costs, Pruitt is taking the agency in a direction that has long been advocated by industry and many states.  The policies stated in his memorandum mirror those of President Trump.  Therefore, regardless of whether Pruitt keeps his position – something that is far from assured – the policy shift set forth in his memo should remain as long as President Trump is in the White House.

Memorandum from EPA Administrator Scott Pruitt to Assistant Administrators:  Back-to-Basics Process for Reviewing National Ambient Air Quality Standards (May 9, 2018); Memorandum from The President to the Administrator of the EPA:  Promoting Domestic Manufacturing and Job Creation-Policies and Procedures Relating to Implementation of Air Quality Standards; 81 Fed Reg. 16761 (April 12, 2018).