Dear Dr. Perlmutt,
We appreciate the opportunity to submit this comment on the Environmental Protection Agency’s (EPA) proposed rule entitled “Reconsideration of the National Ambient Air Quality Standards for Particulate Matter.”
The EPA is not required to reconsider the particulate matter (PM) standards. After a thoughtful and extensive process, the agency finalized a new PM rule at the end of 2020 retaining the existing 2012 PM standards. Yet the EPA decided to jump the gun to initiate a reconsideration of the standards almost immediately after it finalized the 2020 rule.
These comments develop the following key points:
1) The EPA’s proposed discretionary decision to reconsider the PM standards is premature. In addition, the proposal to reduce the primary annual fine particle (PM2.5)standard does not properly consider the unnecessary harms that it will cause or the major flaws throughout the process.
2) The EPA’s judgment that PM2.5 at concentrations below the current National Ambient Air Quality Standards (NAAQS) is based on a selective review of the epidemiological literature and is hard to reconcile with various real-world observations.
3) The EPA’s premature reconsideration and selective use of peer-reviewed studies reflect a more fundamental politicization of air pollution research—a condition attributable in part to the agency’s outsized role as chief funder of air pollution studies.
We urge the EPA to withdraw the proposed rule and not change any of the existing standards, including lowering the primary annual PM2.5 standard from 12.0 micrograms per cubic meter (µg/m³) “to within the range of 9.0 to 10.0 µg/m³ while taking comment on alternative annual standard levels down to 8.0 µg/m³ and up to 11.0 µg/m³.”
Part I: Regulatory Process Issues
Jumping the Gun: The EPA Should Learn from the Ozone Reconsideration Process
Whether the agency should reconsider the PM standards is a distinct question from how to set the standards. The former is a discretionary decision about whether the agency should be reconsidering the standards in the first place.
Much can be learned from the EPA’s decision to reconsider the 2008 ozone standards. Instead of following the five-year NAAQS review process established by Congress, the agency decided to propose a rule revising the ozone standards three years ahead of schedule. In 2011, at the behest of President Barack Obama, OMB directed the EPA to withdraw what were going to be new and stricter ozone standards than the then-recently finalized 2008 standards, explaining:
I have continued to underscore the importance of reducing regulatory burdens and regulatory uncertainty, particularly as our economy continues to recover. With that in mind, and after careful consideration, I have requested that Administrator Jackson withdraw the draft Ozone National Ambient Air Quality Standards at this time. Work is already underway to update a 2006 review of the science that will result in the reconsideration of the ozone standard in 2013. Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered.
President Obama was correct in taking this action before the EPA published the final rule. At the time, OMB made it clear that the agency was making a discretionary decision, explaining, “finalizing a new standard now is not mandatory and could produce needless uncertainty.” This is true now regarding the proposed PM reconsideration. In addition, two important reasons President Obama identified for withdrawing the ozone rule also apply: economic and timing concerns.
Economic Concerns. President Obama emphasized the need “to minimize regulatory costs and burdens, particularly in this economically challenging time.” Given the current economic situation in the United States, with inflation devastating American families and the nation still recovering from the COVID-19 pandemic, the agency should withdraw the proposed rule. The 2022 inflation rate of eight percent was the highest experienced in the U.S. since 1981.
Americans are taking a major financial hit meeting basic needs, such as fueling their cars and buying food. Regular retail gas prices during the week of March 20, 2023 were 20 percent higher than two years ago and 43 percent higher than the week after President Biden took office. Food prices in February were 9.5 percent higher than a year earlier, and remain at 40-year highs.
Timing Concerns. Noting that “Work had already begun on a new and forthcoming scientific review,” OMB cautioned that “issuing a final ozone rule in late 2011 would be problematic in view of the fact that a new assessment, and potentially new standards, will be developed in the relatively near future.” Of necessity, the agency would chiefly rely on a review of the scientific literature as of 2006, rather than “the best available science,” inconsistent with the express requirements of Executive Order 13563.
Under the statutory five-year schedule, the EPA would finalize a new PM rule in 2025, and the agency could already be involved in a thoughtful review process in anticipation of 2025. Instead, the EPA decided to reconsider the 2020 final rule at the start of the Biden administration. Only one month after the EPA published its final PM rule in the Federal Register on December 18, 2020, President Joe Biden issued an executive order, which along with the accompanying fact sheet, directed the agency to review the 2020 PM rule. Just six months after publication of the 2020 final rule, the EPA announced its decision to reconsider the PM standards.
Before the “ink could dry” on the 2020 PM rule, the EPA was already starting the process to undo the work that went into the rule. The EPA, as in 2011 regarding ozone, would be asking state and local governments to begin implementing a new standard even though the current standards are already required to be reviewed soon.
The NAAQS five-year process allows for the EPA to properly consider new evidence that has been produced over several years since the last review. The EPA through its proposed PM rule is simply re-reviewing the same science that was already available to the agency when it finalized the 2020 final rule. The only minor difference is the 2022 Integrated Scientific Assessment (ISA) supplement that the agency itself admits has a “narrow scope” and “does not encompass the full multidisciplinary evaluation presented within the 2019 ISA that would result in weight-of-evidence conclusions on causality.” The CASAC was so concerned with the limited scope that it stated “this limiting of scope applies only to this document and is not intended to establish a precedent for future ISAs.” If the EPA simply waited as it should to review, and if appropriate, revise the PM standards, keeping with the five-year time period, then it could do so based on an ISA that includes a newer and more extensive assessment of the science. Instead, the EPA is rushing to revise the primary annual PM2.5 standards based on the old 2019 ISA and a very limited supplemental document. As in 2011, the EPA would not be using the “best available science.” An issue of such magnitude deserves far more careful and thorough attention than this unreasonable process.