Responding to a decision handed down by a federal magistrate, Earthjustice attorney David Baron predicted that residents of Birmingham, Alabama, and Maryland’s Eastern Shore could receive greater protection from air pollution. In a suit brought by Earthjustice, the magistrate held that EPA must decide within four months whether to reclassify these areas to more stringent air pollution categories under the Clean Air Act. Both communities violate federal health standards for ozone (smog) and reclassification would trigger requirements for stronger pollution controls at factories, power plants, and other industrial facilities.

The magistrate ruled that EPA was years behind schedule in deciding whether to impose the more protective anti-pollution requirements on these areas. “This sort of delay threatens people’s health and flouts the Clean Air Act,” said Baron. “Children, asthmatics, and others with lung ailments should not have to wait years for EPA to make these decisions.”

The ruling affects the Birmingham, Alabama, metropolitan area (Jefferson and Shelby counties) as well as Kent and Queen Anne’s counties in eastern Maryland. Under the 1990 Clean Air Act, these areas were initially classified as marginal ozone nonattainment areas and were given a 1993 deadline for meeting the ozone standard. The law required EPA to decide by mid-1994 whether marginal areas had attained the standard, and to reclassify them to a more stringent category — moderate — if they did not. Failure of a moderate area to meet the ozone standard by 1996 would trigger reclassification of the area to serious, and failure of a serious area to meet the standard by 1999 would trigger reclassification of the area to severe. Each reclassification would bring with it successively more stringent pollution control requirements. Earthjustice argued that EPA nullified this graduated approach to pollution control by failing more than seven years ago to make the legally required findings.

“The people in these communities deserve the same level of health protection that EPA already requires in many other areas throughout the nation,” Baron said.

A principal component of urban smog, ozone is a severe lung irritant – even in healthy adults. It damages lung tissue, reduces lung function, increases risk of infection, and causes such symptoms as chest pain, shortness of breath, nausea, and pulmonary congestion. Ozone presents an increased health risk in small children, the elderly, and persons with lung ailments.

The ruling comes in a suit filed by Earthjustice on behalf of the Sierra Club in US District Court in Washington, DC. The decision by US Magistrate John M. Facciola was delivered to attorneys late yesterday. The magistrate’s decision is in the form of a recommendation to US District Judge Colleen Kollar-Kotelly, who must make the final decision in the matter.