The U.S. Environmental Protection Agency (EPA) has announced proposed changes to the national standard for ground-level ozone, also known as smog. Scientific consensus supports a limit substantially lower than the current standard. EPA's proposal has drawn criticism for being too weak to fully protect the public from the adverse health effects of ozone. A lack of transparency in the rulemaking process has left the public in the dark as to whether EPA, the White House or industry lobbyists may be to blame.

EPA's National Ambient Air Quality Standard (NAAQS) program regulates a variety of air pollutants found to be harmful to public health. NAAQS is the seminal regulatory program enforcing the Clean Air Act. The Act requires EPA to periodically revise all NAAQS standards, including the ozone standard, to reflect changes in the scientific understanding of air pollutants and the technological feasibility of regulating them.

EPA was under a court mandate to propose a revised standard by June 20. On the morning of June 21, EPA announced a proposed range of exposure. The proposed range is 0.070 to 0.075 ppm. The current standard is 0.08 ppm.

Although any standard within the proposed range would be tighter than the current standard, it would not be stringent enough to adequately protect public health, according to a growing body of scientific evidence. An EPA staff paper finalized in January states a recommendation for a standard "somewhat below" the current standard and as stringent as 0.060 ppm. In March, EPA's Clean Air Scientific Advisory Committee (CASAC) recommended EPA adopt a standard no greater than 0.070 ppm. Later in March, EPA's Children's Health Protection Advisory Committee sent a letter to EPA Administrator Stephen Johnson urging EPA to adopt a standard of 0.060 ppm. In April, 111 independent scientists and medical professionals sent a letter to Johnson endorsing CASAC's recommendation.

EPA Administrator Stephen Johnson called an exposure limit of 0.08 ppm inadequate and recognizes the need for a more stringent regulation. However, Johnson will not endorse a standard within the range proposed by CASAC, EPA's premier scientific panel on air quality issues.

EPA assessed exposure benchmarks of 0.060, 0.070 and 0.080 ppm. According to the preamble to the proposed rule, Johnson believes the data for health effects at the 0.060 ppm level are "too limited." While Johnson does not question the science behind data at the 0.070 ppm benchmark, EPA provides no rationale for considering a range in which 0.070 ppm is the low end as opposed to the high end.

EPA's proposal will follow the scientific recommendation that the standard be specified to the thousandth decimal place. The current standard, 0.08 ppm, has effectively been manipulated to be 0.084 ppm due to rounding. EPA's final rule will close that loophole.

In addition to the proposed range, EPA announced it would accept comments on an even broader range from 0.060 ppm to the current standard. EPA is required to accept all public comments regardless of scope. No aspect of the legal framework governing the rulemaking process requires EPA to make this added distinction. The language is likely a political move which incorporates the views, albeit rhetorically, of public interest groups advocating for a stricter standard and industry groups calling for no change.

EPA has come under fire from environmentalists for even entertaining the thought of maintaining the current standard when, by its own admission, the standard is inadequate. Frank O'Donnell, president of the nonprofit advocacy group Clean Air Watch, calls it "an outrageous idea, driven by politics instead of science."

The White House has also been implicated in manipulating the proposed standard. During the regulatory review process, the White House Office of Information and Regulatory Affairs (OIRA) held three closed-door meetings with non-governmental interest groups. Two of these meetings included lobbyists representing the auto manufacturing, chemical and other industries. In the third meeting, public interest organizations including the American Lung Association expressed their views. Because the proposed standard is less protective than the scientific community has recommended, the White House is perceived to have given the views of industry undue priority.

One meeting also included a representative from the Office of Vice President Dick Cheney. In 2002, President Bush officially ended the role of the vice president in the rulemaking process. Since then, a representative from the office has been present in only five of 482 regulatory review meetings.

The exact influence of industry interests or the vice president's office is unknown because of a lack of transparency in the rulemaking process. The public is not readily afforded the opportunity to view EPA's pre-review proposal. While EPA staff scientists and two advisory committees suggested markedly tighter standards, it is unclear what agency officials ultimately decided to submit for White House review.

A lack of transparency in the records of regulatory review meetings further obscures public understanding of the decision-making process. OIRA maintains on its website a log of all meetings that identifies which rule was discussed and who attended. However, although Executive Order 12866, Regulatory Planning and Review, requires OIRA to disclose "the subject matter discussed" during these meetings, that information is rarely revealed.

EPA will accept comments on the proposed standard for 90 days after publication in the Federal Register. EPA's draft of the final standard will be subject to another review by OIRA. EPA is under court order to publish the final standard by March 2008.