U.S. EPA Extends Deadline for 2008 Ozone Designations

On January 6, 2010, U.S. EPA extended the deadline for designating areas for the March 2008 ozone national ambient air quality standards (NAAQS) by one year from March 12, 2010, to March 12, 2011. Designations refer to the process under the Clean Air Act for identifying those areas of the country that meet, exceed, or have insufficient data to permit classification as meeting or exceeding the standards. Areas are designated as attainment, nonattainment, or unclassifiable. Nonattainment areas include areas that contribute to ambient air quality in a nearby area that does not meet the standard as well as areas that do not meet the standard. 

The new deadline of March 12, 2011, will be after U.S. EPA is expected to complete its reconsideration of the 2008 ozone NAAQS in August 2010. The Clean Air Act authorizes U.S. EPA to extend by one year the deadline for promulgating initial area designations for any new or revised NAAQS if the U.S. EPA Administrator has “insufficient information” to promulgate designations. U.S. EPA is using this authority to extend the designations deadline for the 2008 ozone NAAQS until March 12, 2011, which will allow the agency to complete its reconsideration of the 2008 ozone NAAQS before determining whether designations for those standards are necessary. If U.S. EPA does not timely complete its reconsideration of the 2008 ozone NAAQS, U.S. EPA will move forward to complete designations for the 2008 standards no later than March 12, 2011, pursuant to the designations recommendations that states have already submitted to U.S. EPA for the 2008 standards.   

In invoking its one-year extension authority, U.S. EPA reasons that the significant uncertainty that the ozone NAAQS reconsideration creates regarding the continued applicability of the 2008 ozone NAAQS constitutes “insufficient information” to complete designations for those standards by March 12, 2010 within the meaning of the Clean Air Act. Because the ozone NAAQS reconsideration rulemaking action is a reconsideration of the 2008 ozone NAAQS, rather than a new periodic NAAQS review under Section 109(d)(1) of the Clean Air Act, U.S. EPA explains that “a decision to promulgate different standards would result in a full replacement of the 2008 ozone NAAQS.” For a pre-publication version of U.S. EPA’s action extending the deadline for promulgating designations for the 2008 ozone NAAQS, click here. 

 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.