Group sues EPA to toss Detroit area's pollution compliance

An advocacy group is appealing the U.S. Environmental Protection Agency's determination that Metro Detroit meets federal air quality standards for ozone or smog, a move that could unravel Michigan's strategy for avoiding the creation of a vehicle emissions inspection program.

The Sierra Club filed two petitions in the Sixth Circuit U.S. Court of Appeals on Monday under a provision in the Clean Air Act that allows parties to ask the federal court to review Clean Air Act decisions.

The advocacy group asked the court to review the EPA's recent decisions to toss two days of high ozone readings from a Detroit air monitor last June and to designate the area as "in attainment" for federal ozone standards. The court could send the issue back to the EPA for additional analysis or could vacate EPA's decisions about ozone in Metro Detroit.

Specifically, the Sierra Club takes issue with EPA agreeing to ignore two days of ozone readings clocked by a Detroit air monitor in 2022.

"Both the state and the EPA have a very high bar to meet when they're deciding whether or not to ignore data from certain days," said Nicholas Leonard, executive director of the Great Lakes Environmental Law Center, which is representing the Sierra Club in the appeals. "If they want to ignore data because of something that's essentially out of their control, they have to make a pretty conclusive demonstration. We don't think they've done that."

Representatives from the EPA and Michigan Department of Environment, Great Lakes and Energy did not immediately provide comments Tuesday about the Sierra Club appeal.

Ground-level ozone pollution is created when nitrogen oxides and volatile organic compounds react in the presence of sunlight. The air pollutants come from sources such as fossil fuel burning, refineries and cars.

Breathing high concentrations of ozone can cause coughing, breathing pain, lung and throat irritation, wheezing and trouble breathing. It can affect older adults, people who exercise or work outside, babies and children.

In May, the EPA determined Metro Detroit's ozone levels in 2019-2022 were within the standards laid out in the Clean Air Act. The region previously had been out of attainment because of high ozone pollution levels.

It was a close call. The agency's decision hinged on approving the request from EGLE regarding two days of high ozone readings from the East Seven Mile air monitor in 2022. The state contended smoke blown in from Canadian wildfires caused the readings at that monitor to hit 71 parts per billion, above the maximum allowable level of 70, which made the days' readings "exceptional events" outside of the state agency's control.

The EPA sided with Michigan's environmental department, approving the request despite community and environmental groups' arguments that the monitor's readings were caused by local pollution.

Critics at the time also argued the state should have erred on the side of public health, accepted the monitor's smog readings and moved forward with steps to curb pollution from vehicles and manufacturing facilities.

The appeals filed Monday landed at the federal court at the same time Metro Detroiters dealt with their 18th air quality alert of the season, the most since 2012, when there were 21.

This year also is the first time Michigan's environmental department has issued statewide air quality alerts and alerts for two pollutants at the same time.

Canadian wildfires are to blame for this year's surge in poor air quality. Drifting smoke has blanketed the Midwest and Northeast throughout the summer, bringing dangerous levels of particulate matter and, sometimes, ozone pollution.

The recent air quality issues poke a hole in the state's argument that wildfires caused the pair of high ozone readings in 2022, Leonard said. The Canadian wildfires are largely bringing particulate matter pollution, not ozone alone.

The health of Detroiters who live near the East Seven Mile air quality monitor is at stake in these proceedings, Leonard said, since the EPA's determination allowed Michigan EGLE to avoid taking measures to further curb ozone pollution.

The state considers the census tracts surrounding the East Seven Mile air monitor to experience among the highest levels of environmental injustice in the state, according to the current draft of its online MiEJSCREEN tool. That means the communities experience high pollution burdens and are vulnerable to pollution because of characteristics such as low average household incomes, health issues, proximity to waste facilities and largely minority populations.

"Essentially, what's at stake here is the lives and wellbeing of those residents," Leonard said. "We certainly think that EGLE needs to be doing more to protect those people, and one of the forms we think that should take is basically taking regulatory action to lower ozone pollution in that community."

ckthompson@detroitnews.com