On September 16, 2009, the U.S. Environmental Protection Agency (EPA) announced that it would reconsider the 8-hour ozone standards that were adopted in 2008. EPA announced the reconsideration in a press release and notice filed in a lawsuit pending in the United States Court of Appeals for the District of Columbia Circuit, Mississippi v. EPA, No. 08-1200 and consolidated cases (D.C. Cir.). According to the press release and notice, EPA intends to sign a proposed ozone NAAQS by December 2009, and to promulgate a final ozone NAAQS by August 2010. If EPA tightens the ozone standards, more areas of the country will be found to be in violation. States will be required to prepare plans for these areas outlining how they will achieve the standards, and sources in areas violating the standards will be required to undertake additional control measures. Manufacturing facilities and other businesses with emissions sources will tend to avoid locating in these areas.
In March 2008, EPA strengthened the ozone standards by lowering them from 0.08 parts per million (ppm) to 0.075 ppm (73 Fed. Reg. 16436; March 27, 2008). In addition to changing the level of the standards, EPA specified the level of the standard to the third decimal. An area would meet the 2008 standards if the three-year average of the annual fourth-highest daily maximum 8-hour average at every ozone monitor is less than or equal to the level of the standard (i.e., 0.075 ppm). The previous standard, set in 1997, was 0.08 ppm but because ozone is measured out to three decimal places, the standard effectively became 0.084 ppm as a result of rounding.
Environmental groups and industry as well as a number of states and other governmental entities sued EPA. Environmental groups contend that the change was not sufficiently stringent, and industry argues that tightening the standard was unnecessary. The litigation has been held in abeyance since March of this year at the request of EPA to allow the EPA officials appointed by the Obama Administration to review the ozone NAAQS to determine whether the standards should be maintained, modified, or otherwise reconsidered.
In announcing the reconsideration, EPA explained it was taking this action “to ensure [the standards] are scientifically sound and protective of human health”. EPA Administrator Jackson tied the reconsideration to the national health care debate and stated: “Reconsidering these standards and ensuring acceptable levels of ground-level ozone could cut health care costs and make our cities healthier, safer places to live, work and play.” In the notice filed in the D.C. Circuit, EPA further states it “has concerns regarding whether the revisions to the primary and secondary NAAQS adopted in the Ozone NAAQS Rule satisfy the requirements of the Clean Air Act….” The press release specifically notes that EPA’s Clean Air Scientific Advisory Committee (CASAC) recommended stronger standards, i.e., 0.06 – 0.07 ppm.
Primary standards are set to protect human health. Secondary standards are set to protect public welfare and take into consideration such factors as crop damage, architectural damage, damage to ecosystems, and visibility in scenic areas. As stated in the press release, CASAC recommended in 2006 a primary standard in the range of 0.06 to 0.07 ppm and, in addition, a secondary standard in a form that would accumulate data over an entire growing season. Specifically, CASAC recommended that EPA set an index, such as 10 to 20 ppm per hour, to be measured by aggregating ozone measurements over at least the three summer months exhibiting the highest cumulative ozone levels.
EPA’s own scientists concurred with CASAC’s recommendations. For the primary standard, the EPA Final Staff Paper recommended a range of levels from below 0.080 ppm down to 0.060 ppm and further recommended specifying the level of the standard to three decimal places. For the secondary standard, the Final Staff Paper recommended a standard that is cumulative, weighted total of daily 12-hour exposures over a three-month period within the growing season and a range from 21 ppm-hours to 7 ppm-hours.
In 2008, EPA established the primary standard at 0.075 ppm and made the secondary standard identical to the proposed primary 8-hour standard. (73 Fed. Reg. 16436; March 27, 2009). Based upon 2004-2006 air quality data, 345 counties violated the 2008 ozone NAAQS. That same data indicates that the number of violating counties would have been 510 if EPA had set the NAAQS at 0.700 ppm, 594 if EPA had set the NAAQS at 0.065 ppm, and 614 if EPA had set the NAAQS at 0.060 ppm. Indeed, only 20 counties had design values of 0.060 ppm or less. See: https://www.epa.gov/air/ozonepollution/pdfs/2008_03_design_values_2004_2006.pdf. While air quality has improved since 2004-2006, these numbers provide an approximate idea of the number of counties likely to be found in violation of any revised standards.
During the interim period of reconsideration, EPA “will propose to stay the 2008 standards for the purpose of attainment and nonattainment area designations.” The Fact Sheet states that the stay of the 2008 standards for the purpose of area designations “will allow states and EPA to prepare for an accelerated ozone designation process for the reconsidered standards to be completed by August 2011.” If the air quality in a geographic area meets or does better than the national standard, it is called an attainment area. Areas that do not meet the national standard are called nonattainment areas. Identification of these areas as attainment or nonattainment is referred to as the designations process.
The Clean Air Act provides state governors with an opportunity to submit letters to EPA identifying those areas within their respective states that they recommend be identified as nonattainment, i.e., those areas that are not achieving the NAAQS. Under the Clean Air Act, EPA must establish a deadline for state recommendations “but not later than 1 year after promulgation of a new or revised [NAAQS]”. CAA § 107(d)(A). The Clean Air Act further provides that the EPA Administrator shall promulgate final designations “as expeditiously as practicable, but in no case later than 2 years from the date of promulgation of the new or revised [NAAQS]”. Such period may be extended for up to one year if the EPA Administrator has insufficient information to promulgate the designations. CAA § 107(d)(B).
Following the promulgation of the 2008 NAAQS, and based on air quality data collected from monitors at location in urban and rural settings, states submitted recommendations for areas to be designated attainment, nonattainment, or unclassifiable in March 2009. Originally EPA was scheduled to issue final designations no later than March 2010, unless there was insufficient information to make these designation decisions. In that case, EPA was scheduled to issue designations no later than March 2011. Now, EPA will issue the final designations by August 2011, or one year and five months after the earlier of the two original deadlines.
EPA’s Fact Sheet states that the “reconsideration will be based on the scientific and technical record used in the March 2008 review.” While EPA may try to discourage interested parties from submitting additional information, it is reasonable to anticipate that interested parties will seek to have the record reopened for the submission of the latest scientific information .
The Fact Sheet also indicates that 8-hour ozone attainment state implementation plans (SIPs) will now be due December 2013. Attainment SIPs set forth states’ plans for achieving the NAAQS. Under the Clean Air Act, attainment SIPs are due “no later than 3 years from the date of the nonattainment designation.” CAA §172(b). Under EPA’s original schedule SIPs would have been due March 2013 if EPA promulgated final designations in March 2010. While states will now have an additional 10 months or until December 2013 to submit their attainment SIPs, the states will have less time as a practical matter to prepare their SIPs and will likely have to address additional areas in their attainment SIPs and develop and implement additional control requirements on sources to achieve standards that are expected to be more stringent.
EPA also addresses implementation of any new standards in the press release and promises to “move quickly” to implement them. Given EPA’s accelerated rulemaking schedule, it seems likely that states may be in the awkward position of preparing their SIPs without the benefit of guidance or rulemaking on implementation of any revised NAAQS.
Significantly, EPA does not propose a stay of the 2008 standards during reconsideration. Thus, while EPA reconsiders the ozone NAAQS, the current ozone standards of 0.075 ppm remain in place. EPA promises to work with states, local governments and tribes to ensure that air quality is protected during the interim period of reconsideration. For example, the Fact Sheet addresses New Source Review, the permitting program for construction and modification of mew and existing major sources, announcing that “EPA will continue to require permitting of new and modified air pollution sources under the Prevention of Significant Deterioration (PSD) program for the 2008 ozone standards.”
Additionally, if EPA does not stay the 2008 standards, and does not otherwise address section 126 petitions, downwind states may petition EPA under section 126 of the Clean Air Act for a finding that major sources located in downwind states emit nitrogen oxides (NOx) and volatile organic compounds (VOCs), the precursors to ozone, in violation of the prohibition on interstate transport of air pollution. Under section 126 of the Clean Air Act, if EPA were to make such a finding, then major existing sources may operate no more than 3 months after such finding unless the source complies with emission limitations and compliance schedules established by EPA but in no case may the source continue to operate more than 3 years after the date of such finding.
Deadlines for nonattainment areas to achieve a more stringent ozone NAAQS will depend upon the severity of the ozone air quality problem and each area’s classification as marginal, moderate, serious, severe, or extreme. Briefly, the worse the ozone air quality is in an area, the more stringent the control requirements are and the longer the time period is for the area to achieve the NAAQS. Further, a nonattainment designation tends to discourage business development.
In the notice filed in the pending litigation in the D.C. Circuit, EPA promises to discuss the notice with the other parties in the litigation “in an effort to reach an agreement on a proposal to govern future proceedings”. Under a previous court order, the parties have until October 16, 2009, to reach agreement. If the parties in the litigation are unable to reach agreement, EPA will move for a remand of the ozone NAAQS and the D.C. Circuit may grant the remand motion.
For additional information on EPA’s reconsideration of the 2008 ozone NAAQS, contact Gale Lea Rubrecht at 304-340-1200 or email@example.com. This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.