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Bush Sought Less Stringent Ozone Standard:

The Washington Post reports this morning that President Bush overruled EPA plans to have a modestly tighter ozone standard. In particular, the story reports that Bush told the EPA not to set a secondary "public welfare" standard for ozone that was more stringent than the primary "public health" standard.

documents, which were released by the EPA late Wednesday night, provided insight into how White House officials helped shape the new air-quality rules that, by law, are supposed to be decided by the EPA administrator.

The White House Office of Management and Budget (OMB) questioned in a March 6 memo to the EPA why the second standard was needed. EPA officials answered in a letter that high ozone concentrations can cause "adverse effects on agricultural crops, trees in managed and unmanaged forests, and vegetation species growing in natural settings."

The preamble to the new regulations alluded to this tug of war, stating there was a "robust discussion within the Administration of these same strengths and weaknesses" in setting the secondary standard. The preamble went on to say that the decision to make the two ozone limits identical "reflects the view of the Administration as to the most appropriate secondary standard."

The effort to rewrite the language — on the day the agency faced a statutory deadline — forced EPA Administrator Stephen L. Johnson to postpone at the last moment a scheduled news conference to announce the new rules. It finally took place at 6 p.m., five hours later than planned.

Particularly interesting is the Post's report that Solicitor General Paul Clement expressed concerns about the revision.

The president's order prompted a scramble by administration officials to rewrite the regulations to avoid a conflict with past EPA statements on the harm caused by ozone.

Solicitor General Paul D. Clement warned administration officials late Tuesday night that the rules contradicted the EPA's past submissions to the Supreme Court, according to sources familiar with the conversation. As a consequence, administration lawyers hustled to craft new legal justifications for the weakened standard.

The story quotes an environmentalist attorney accusing the White House of "unprecedented and an unlawful act of political interference." This strikes me as quite hyperbolic. Insofar as the relevant Clean Air Act language leaves the EPA Administrator with any policy discretion in the setting of standards — and I believe it does — there is nothing illegal or improper with the President directing the EPA Administrator to exercise that discretion in accordance with administration policy. If the revised standards fail to hold up in court — and I have no opinion on this matter as I have not yet read the relevant documents — it will not be due to any supposedly "unlawful" interference by the President, but because the EPA failed to provide an adequate justification for the new standard.

UPDATE: John Walke of NRDC, the "environmentalist attorney" quoted above, responds in the comments here. He makes a strong case that the EPA set forth a weak justification for the new ozone NAAQS, largely due to last minute instructions from the White House to modify their decision. Assuming Walke's characterization is accurate, the NAAQS standard may well fall in court.

To clarify my position, there is nothing "unprecedented" or "unlawful" about a White House directing an EPA Administrator to exercise his discretion in accordance with Administration policy. Whether it has happened in the context of setting a NAAQS standard or not, it has happened with many EPA decisions over the years. Harping on alleged "interference" makes for a good soundbite, but I think it detracts from the real issue: Whether or not the EPA articulated an adequate justification for its decision under the Clean Air Act. The EPA's rule in this case may well be "unlawful," as Walke argues. If so, it is because of the substance of EPA's justification and its failure to articulate an adequate justification for the rule. Even if this was due to the last-minute nature of the President's interference (a point which Walke makes quite strongly), the fact of Presidential "interference" is not, in itself, either unprecedented or unlawful.

Related Posts (on one page):

  1. Bush Sought Less Stringent Ozone Standard:
  2. EPA Tightens Smog Standard:
Tim Dowling (mail):
Hi Jonathan -- I agree there is nothing improper with a President directing an EPA Administrator to exercise any discretion conferred by the Act in accordance with Administration policy. But what if the record shows that the President directed EPA to choose a particular ozone standard because the President was concerned about the economic costs of a more stringent standard, which is a factor EPA is not allowed to consider in setting ozone standards under the Act. Would you agree this would be impermissible interference? (Given the concerns with economic cost set forth in the OMB memo, this seems to be a plausible reading of what happened.)
3.14.2008 11:16am
The Unbeliever (mail):
Heaven forbid the chief of the executive branch should direct what an agency of the executive branch does.
3.14.2008 11:34am
HipposGoBerserk (mail):
TD - it wouldn't be "impermissible interference" but the order issuing the regs would (assuming evidence of such concern about economic costs is in the record somehow) have to be stayed and the issue remanded to the EPA because the order would be inconsistent with the CAA. No way a court would dip into the murky Constitutional issues when there's a simple statutory issue at hand.
3.14.2008 11:41am
Cornellian (mail):
Heaven forbid the chief of the executive branch should direct what an agency of the executive branch does.

Heaven forbid the President have regard for the actual language of the statute, which says the EPA administrator makes the decision, not the President.
3.14.2008 11:52am
A.S.:
Heaven forbid the President have regard for the actual language of the statute, which says the EPA administrator makes the decision, not the President.

As far as I can tell, this is exactly what happened. The EPA Administrator did make the decision, after consulting with his boss, the President.

Or is there something in the statute that says that the EPA Administration should make the decisions without regard to what his boss, the President, has to say?
3.14.2008 12:07pm
Patrick Wright (mail):
Heaven forbid the President have regard for the actual language of the statute, which says the EPA administrator makes the decision, not the President.

I have great difficulty in believing such a statute would survive a separation of powers attack.
3.14.2008 12:15pm
Anderson (mail):
If there has to be a scientific basis for the decision, and the actual basis is impermissible under the statute, then I don't see how Dowling's point fails to hit the mark.

The EPA exists at the pleasure of the Congress, which grants it certain powers and forbids it discretion in some matters. I don't see the "separation of powers" issue here.
3.14.2008 12:32pm
Joe -- Dallas, TX (mail):
The moving force for the implementation of more strigent ozone standards are the studies showing increased premature mortality due to high ozone concentrations. (Ozone and short term mortality in 95 us urban communities 1987-2000, JAMA 11/17/2004). However, there are enough anomolies in the study and other similar studies that create serious queistions regarding the validity of the studies. For example, Honolulu shows the same increase in in premature mortaility for a 10parts per billion increase of ozone as memphis or houston, even though the actual concentration of ozone is 20% of houston or memphis. Los Angeles actually shows a much lower increase in premature mortality than honolulu, colorado springs, rochester ny, even though the overall level of pollution is much greater in LA.

Other studies show that during the heat wave of europe/france a few summers back show high correlation of premature death due to the ozone concentrations, but other cities with similar increase in deaths with virtually no correltation to ozone. Simply put, there are too many situations where ozone has negative correlations to the premature death.

I am all for cleaner air, However, based on my review of the studies and the underlyng data, there is most likely some false indications of the association of premature death due to ozone.
3.14.2008 1:15pm
hawkins:
No separation of powers issue. To the extent Congress is delegating lawmaking authority, it has the right to direct the EPA as to how it can be used.
3.14.2008 1:19pm
Patrick Wright (mail):
I don't see the "separation of powers" issue here.

Congress is free to set the parameters of the discretion it gives to the executive - but except in rare instances like Morrison or the removal from independent agencies it cannot limit the President's control of the executive. The President>EPA and thus can demand that the discretion given to EPA be exercised in a manner in which the President finds palatable.
3.14.2008 1:20pm
Patrick Wright (mail):
Thinking about this a little more, EPA is an independent agency, so that does definitely complicates a separation of powers challenge. If one accepts that independent agencies can receive the right to make discretionary decisions to the exclusion of the President, if the EPA succumbed to "political interference" does that just not show a lack of will on EPA's part?
3.14.2008 1:34pm
Dingle Derry (mail):
Why the hell hasn't someone gotten rid of him? Why is this doofus still allowed to damage the country?

WHY ARE REPUBLICANS STILL ALLOWED TO DAMAGE THE UNITED STATES?
3.14.2008 1:40pm
Retarded Republiturd Moron (mail):
Ozone is actually GOOD for us! POLLUTION is good for us! It fights terrorism, ya know! WE NEED MORE AIR POLLUTION! If you're not for Pollution - you're for TERRORISM!

It's good for business, and better business means more dollars for us rich folk. Besides, who ever heard of anyone dying from air pollution? No one does, that's who!
3.14.2008 1:46pm
David M. Nieporent (www):
If there has to be a scientific basis for the decision, and the actual basis is impermissible under the statute, then I don't see how Dowling's point fails to hit the mark.
Because the problem in your scenario is the substance of the decision, and Dowling's point about "impermissible interference" applies to the procedure.

The EPA exists at the pleasure of the Congress, which grants it certain powers and forbids it discretion in some matters. I don't see the "separation of powers" issue here.
Again, you're focusing on the wrong question, the substance of the standard rather than the procedure. The issue being raised in discussing separation of powers is about whether the EPA Administrator or the president can make the decision, not about what the decision need be.
3.14.2008 2:14pm
David M. Nieporent (www):
Why the hell hasn't someone gotten rid of him? Why is this doofus still allowed to damage the country?
Sandy Levinson, is that you?
3.14.2008 2:15pm
Vermando (mail) (www):
I know this is a law blog, but I think that most people's revulsion at the President stepping in to overrule scientists on something like this goes beyond the federalism implications, interesting as they may be.
3.14.2008 2:16pm
byomtov (mail):
For example, Honolulu shows the same increase in in premature mortaility for a 10parts per billion increase of ozone as memphis or houston, even though the actual concentration of ozone is 20% of houston or memphis. Los Angeles actually shows a much lower increase in premature mortality than honolulu, colorado springs, rochester ny, even though the overall level of pollution is much greater in LA.

Why are these "anomalies," and so what if they are? You seem to be assuming that the response to increased ozone levels must be linear, and that there are no other factors affecting the number of premature deaths that could vary from city to city.

Besides, 95 areas were studied. Some results will inevitably not fit the overall pattern.

based on my review of the studies and the underlyng data, there is most likely some false indications of the association of premature death due to ozone.

Perhaps you could tell us just how carefully you reviewed the study and underlying data.
3.14.2008 2:26pm
Dave N (mail):
The trolls showed up, as might be expected, at around 12:40 pm.

And Vermando, I can suggest many other places where people can spew their hatred of George W. Bush (or Hillary Clinton or John McCain or Barack Obama, for that matter). Personally, I prefer an intellectual discussion on separation of powers, the authority of the President to override the EPA Administrator--including how much discretion the President has under the law to make those determinations.

If you want BDS venom, try Kos or MoveOn, they seem to have it in unhealthy amounts.
3.14.2008 2:27pm
The Unbeliever (mail):
I understand your point, Vermando. But when scientists start demanding public policy--or, to be more accurate, some bit of science demands a public policy perspective or action--then you have to enter the realm of politics and all the implications involved, technical or otherwise. If you don't want political, economic, or moral considerations to enter the conversation, then keep science in the laboratory.

Or, to put it another way, we intentionally do not live in a technocracy or science-based meritocracy. Someone has to make the decisions that affect people's lives, and no matter how much you may dislike the decider or his decisions, we already have a system set up to do that.
3.14.2008 2:30pm
Dave N (mail):
The part I found most interesting was Paul Clement's concerns that the new position might conflict with prior Administration position. He is working mightily to avoid an estoppel argument that just might resonate if the Administration has played fast and loose in its arguments in federal court.
3.14.2008 2:41pm
Joe -- Dallas, TX (mail):

The primary issue I have with the cited study and sevearl others is the lack of a control. the study published in the JAMA which is consistent with the other studies, is they lack a control. ie there is no control in the study as to whether there is an increase in premature mortality when other factors are present but without the increase in ozone. The fact that they used 95 metropolitan areas, which which had similar characteristics, as opposed to including metropolitan areas without similar increases in ozone, ie lack of a control of one of the varibles.

The study in France during their summer heat wave several years ago, is good example, some cities showed high correlation with increase in heat, increase in premature mortality, and increase in ozone concetrations. Other cities showed high correlation with heat and increase in heat but low correlation with increase in ozone.

Other factors which should cause one to question the validity of the studies, is the high correlation with increase in temperature and the increase in premature mortality, the high correlation with the increase in ozone with increase in temperature, and the high correlation (though not quite as highly correlated) with the increase in premature mortality with the 10ppb increase in ozone. While the studies a high correlation with the increase in premature mortality with the 10ppb increase in ozone, the studies show very low correlation (almost negative correlation) with the actual concentration of ozone to the increase in premature mortality from one city to other cities. For example, why should Honolulu have a large increase in premature mortality, and greater increase than Los Angeles, when the overall concentration levels of ozone are so significantly lower.

The extent of my review of these studies was a review of the underlying data for the study cited along with an analysis of several other studies publised data an normal evaluation of the conclusions.
3.14.2008 2:55pm
happylee:

Heaven forbid the chief of the executive branch should direct what an agency of the executive branch does.


Although Bush will be mostly remembered for being a power- hungry warmonger, I give him credit for at least trying to stop the ridiculous enviropinko policy train. I doubt his motivations are pure, but he is still saving lives.
3.14.2008 3:17pm
Randy R. (mail):
Joe: "I am all for cleaner air, However, based on my review of the studies and the underlyng data, there is most likely some false indications of the association of premature death due to ozone."

And I"m sure Bush has much more knowledge on ozone than the EPA scientists, which qualifies him to overrule their judgment.
3.14.2008 3:32pm
hawkins:

And I"m sure Bush has much more knowledge on ozone than the EPA scientists, which qualifies him to overrule their judgment.


The problem is that we cant let scientists determine policy decisions. There are other considerations that must be assessed in any measures we take to protect the ozone.
3.14.2008 4:07pm
HipposGoBerserk (mail):
"The problem is that we cant let scientists determine policy decisions. There are other considerations that must be assessed in any measures we take to protect the ozone."

That's Congress's job, and they set the parameters of what factors are to go into the decision. Neither the POTUS nor anyone else can bring other factors to that decision without Congressional authorization (i.e., amending the CAA). If Bush reached outside the statutory statutes, the standards won't be able to survive a legal challenge.
3.14.2008 4:14pm
Joe -- Dallas, TX (mail):
Joe: "I am all for cleaner air, However, based on my review of the studies and the underlyng data, there is most likely some false indications of the association of premature death due to ozone."

And I"m sure Bush has much more knowledge on ozone than the EPA scientists, which qualifies him to overrule their judgment.


I am not arguing that the president has more knowledge on the subject than the scientist. I am only pointing out some of the obvious flaws in the studies which should be easily recognizable by any one who has taken one semester of statistics or should be easily recognizable by anyone reasonably familar with basic cause and effect studies.
3.14.2008 4:38pm
Don Miller (mail) (www):
My understanding of the article was that the EPA and the Bush Administration agreed that the standard could be lowered for Public Health reasons.

The EPA was arguing for an even lower standard for "Public Welfare" reasons that were defined as "adverse effects on agricultural crops, trees in managed and unmanaged forests, and vegetation species growing in natural settings." The Bush Administration opposed this Public Welfare standard.

Maybe somebody who understands the Clean Air Act better than I do can clarify something to me. I thought that the Clean Air Act required the EPA to regulate pollution for Public Health reasons. This nebulous public welfare standard doesn't seem to be supported. If it isn't, the Bush Administration was correct in preventing them (the EPA) from trying to expand it's mission into an area not explicitly authorized.
3.14.2008 5:17pm
Jonathan H. Adler (mail) (www):
A few responses to some of the comments:

I agree with Tim Dowling that if the EPA's ultimate decision was based upon the impermissible consideration of economic costs, or the use of a cost-benefit analysis, then it would have legal problems. However, if the White House instructed the EPA to utilize its discretion to adopt a less stringent standard (insofar as EPA could do so consistent with its statutory mandate), I do not think it would be proper for a Court to try and infer whether the White House's motivation was driven by economic or other concerns. So long as the EPA's official explanation for its decision passes muster -- and I have not examined the relevant documents in this case -- I would think it would pass muster.

As for the concerns raised by others as to whether it was proper for the White House to overrule EPA "scientists," it is a mistake to view the issue here as simply a "scientific" question. As I have blogged before (see, e.g., here and here), pretending policy questions can be resolved solely on scientific grounds is a mistake. Science must inform the EPA's decision whether to revise the NAAQS, but so must policy judgments about how much weight should be assigned given studies, how precautionary the rule should be, how to define an adverse effect on public welfare, and so on. The language of the Clean Air Act limits the extent of the EPA's policy discretion, and requires the agency to explain the basis for its decision in relation to the relevant statutory criteria.

As for the separation of powers question, there is no issue here. The EPA is not really an "independent" agency that is free from executive oversight and control. Unlike true independent agencies and commissions, the heads of which serve for set terms, the EPA Administrator serves at the pleasure of the President. As a consequence, the President may direct the EPA Administrator to exercise his discretion in a particular fashion, and force his resignation if the Administrator does not comply.

JHA
3.14.2008 5:38pm
Cornellian (mail):
Unlike true independent agencies and commissions, the heads of which serve for set terms, the EPA Administrator serves at the pleasure of the President. As a consequence, the President may direct the EPA Administrator to exercise his discretion in a particular fashion, and force his resignation if the Administrator does not comply.

I'm not convinced that conclusion follows. If the statute had said the permissible level of ozone had to be set by the EPA Administrator through a formula that results in a number, "X" is the president free to demand that the level in fact be set at some other number, "Y" even if the President thinks there are valid policy reasons for selecting "Y?" Sure the President can fire the EPA Administrator but being an at-will employee doesn't entitle the Administrator to ignore the statute, nor does it entitle the president to direct the administrator to ignore the statute. If the President doesn't like the statute he has to ask Congress to change it. That's how the system works.
3.14.2008 5:50pm
WHOI Jacket:
I, for one, welcome our unelected bureaucratic overlords.
3.14.2008 6:07pm
Patrick Wright (mail):
The EPA is not really an "independent" agency that is free from executive oversight and control.

I was uncertain about this, so I did a Google for "EPA" and "independent agency." The EPA's own website states it is an independent agency. Given the significance of this term, I am surprised that it was misused. Or is there is something that I am missing?

Out of the horse's mouth?
3.14.2008 6:10pm
Tim Dowling (mail):
Jonathan -- I think we're in basic agreement. But if there is evidence that the President said, for example: "Steve, on this ozone thing, do it OMB's way," I think EPA has some legal probelems, regardless of what the official explanation is, given that OMB's way appears to be rooted in the impermissible consideration of economic cost. I'd hate to be the atty who argues before the D.C. Cir. that the Prez told EPA to change it's initial position due to cost factors, but in fact EPA changed its position due to permissible factors.
3.14.2008 6:44pm
Jonathan H. Adler (mail) (www):
Cornellian --

I am not sure we disagree. Of course the EPA Administrator must make his decision in conformity with the relevant statutory requirements. If the statute required the application of a set formula, then the Administrator would have no discretion to exercise. But where (as here) the Administrator does have discretion, it seems quite clear to me that the President may require that this discretion be exercised in a particular fashion, and may remove an Administrator who refuses to comply.

JHA
3.14.2008 6:45pm
Tim Dowling (mail):
Patrick Wright -- The term "independent agency" is a term of art in the separation-of-powers debate. I'm confident EPA's website is not using the phrase in the same way.
3.14.2008 6:48pm
Patrick Wright (mail):
Tim - I agree about the separation of powers context, and I had forgotten whether EPA met that criteria although my recollection was that it did not. Thus I did the Google search and was misled. The downside to posting without doing the research I guess.
3.14.2008 9:39pm
Cornellian (mail):
Let me put it this way, if the statute says the ozone limit is set according to the EPA Administrator's discretion, and the statute is constitutionally valid, then the limit is required to be set according to the Administrator's discretion, not the President's discretion and the President may not require the Administrator to act as an unthinking conduit of the President's discretion without violating the statute. The President can, of course, fire the Administrator and conduct job interviews for a new one until he finds someone who happens to agree with him on that issue, then appoint that person and have that person exercise his discretion and reach a conclusion that agrees with the President's view, but that's not the same thing.

If the President wants a statute that vests discretion in the President rather than the Administrator, he can ask Congress to amend the statute.

If the President thinks the law is unconstitutional, then of course he can make that claim and Congress and the President can fight that battle the same way they fight other battles.
3.14.2008 9:42pm
Eli Rabett (www):
Joe, care to point to those studies?
3.14.2008 9:52pm
byomtov (mail):
pretending policy questions can be resolved solely on scientific grounds is a mistake. Science must inform the EPA's decision whether to revise the NAAQS, but so must policy judgments ....

Do you honestly believe that science even remotely "informed" this decision?

You must own quite few bridges.
3.15.2008 12:23am
John Walke (mail) (www):
As the "environmentalist attorney" quoted in the Washington Post article, I must challenge Jonathan's indictment that my quote was "quite hyperbolic." Let's unpackage my quote.

— "Unprecedented": are you able to identify another publicly known instance in which the President personally overrued the EPA Administrator in the establishment of a national ambient air quality standard (NAAQS) under the Clean Air Act?

— "Unlawful act": You admit that you have not read the relevant documents. I have. You admit that you have no opinion whether the revised standards will fail to hold up in court. I do — based upon my review of the relevant documents. Accordingly, it is rather hubristic for you to judge my legal opinion "quite hyperbolic," when your opinion is uninformed, by your own admission.

— "Political interference": The OMB memo authored by Susan Dudley and preamble to the final EPA rule rooted the basis for the President's overruing of the EPA Administrator in "Administration policy." I say tomato, you say tomahto, I say politics, you say policy.

So does your hyperbole indictment really come down to the word "interference," Jonathan? Section 109(b)(2) of the Clean Air Act reserves to "the judgment of the [EPA] Administrator" alone, as a matter of law, the revision of secondary NAAQS; based on a legal standard of what is "requisite to protect the public welfare"; a standard that the Supreme Court has held to disallow considerations of cost or other non-welfare related considerations. The President overruled the decision that the EPA Administrator planned to make as of the morning of March 11th, one day before the court-ordered deadline for adopting the final secondary standard. The entire rule, preamble and response to comments had been prepared based upon the Administrator's judgment of what was "requisite to protect the public welfare." A set of EPA talking points in the docket dated March 11th, prepared for the Administrator's meeting with the President, deemed the Administrator's planned approach to be more legally and scientifically defensible than what OMB desired and what the President ultimately ordered. The President's justification for his decision based upon impenetrable "Administration policy" is at best an empty vessel that the March 6th OMB memo had publicy filled with illegal cost considerations, and at worst a smoke screen for — illegal cost considerations. Indeed, the White House spokesperson's defense of the President's actions this morning invoked impacts on communities; sound like cost to anyone else?

There is a reason that EPA failed to provide an adequate justification for the conclusion forced upon the agency by the President, in the fewer than 24 hours that they scrambled to concoct that justification: EPA did not beieve that justification; it was not supported by the scientific evidence before the agency; on March 11th EPA had deemed that conclusion less scientifically and legally defensible than the approach adopted by the Administrator prior to the President overruling the Administrator; and the March 13th letter from the Executive Office of the President (reflecting the President's edict) is devoid of any scientific justification or evidence meeting the statutory criteria.

EPA's capitulation to the President was accompanied by an insistence that a White House memo and the rule preamble publicly identify the President as the decider. EPA has included in the public rulemaking docket a set of "Confidential and Deliberative" talking points for the Administrator, prepared for a briefing with the President. To my knowledge, both of those actions are completely unprecedented at EPA. And rest assured, neither of those actions was idle.

EPA knew this was interference and documented it.

So whose indictment is more hyperbolic, Professor Adler?
3.15.2008 1:07am
Joe -- Dallas, TX (mail):
The studies "ozone and short term mortality in 95 US Urban Communities, 1987-2000", Michelle Bell , Aidian McDermott, JAMA nov 17, 2004 p2372; (the JAMA study is one of the more commonly cited studies showing high correlation. Two additional studies which significantly less correlation are: "Are the acute effects of PM10 on mortailtiy in NMMAPS the result of inadeqate control for weather and season? a sensitivity anyalysis unsing flexible distriubted lag models" Leah Welty &Scott Zeger John Hokkins University 2005. "heat acclimatization and sunshie cause false indications of mortality due to ozone", August 23, 2005, Science direct, William Keatinge &Gavin donaldson.

Each of these three sutdies have numerous citations, references and cross references. You should be able to google to find many of the other studies.
3.15.2008 9:49am
Smokey:
byomtov:
Besides, 95 areas were studied. Some results will inevitably not fit the overall pattern.
When many of those areas directly refute the conclusion, then the "overall pattern" must be attributable to a different cause. Without a control, who can even say what the actual cause[s] are?


Many years ago I was in a doctor's office and noticed a machine labeled "O3." The doctor told me his associate M.D. believed in ozone therapy, and the machine was used to allow patients to breathe ozone.

The AMA requires that doctors "First, do no harm." Since the AMA allows M.D.s to get people to regularly breathe ozone - in much greater quantities than the EPA's parts per billion - then the conclusion must be that the EPA is being political, not scientific;

QED.
3.15.2008 10:09pm