U.S. EPA recently promulgated designations for the 2008 ozone National Ambient Air Quality Standards (NAAQS), and the good news for West Virginia is that none of the counties or portions of counties in West Virginia is included in a nonattainment area. That West Virginia does not currently have any ozone nonattainment areas should be a positive consideration for chemical manufacturing, industrial facilities and other large sources of air emissions looking to locate in West Virginia. Additionally, the lengthy process to designate areas for the 2008 ozone standards – more than four years -- illustrates that air quality in West Virginia and elsewhere continues to improve.
On May 21, 2012, U.S. EPA published the final designations for the ozone air quality standards that were promulgated in 2008 for all areas in the United States except 12 counties in Illinois, Indiana and Wisconsin, which U.S. EPA stated it was still evaluating. 77 Fed. Reg. 30,088. Shortly thereafter, on May 31, 2012, U.S. EPA completed the designations for the 2008 ozone standards when the U.S. EPA Administrator signed the final rule designating all or parts of 11 counties in Illinois, Indiana and Wisconsin as the Chicago-Naperville, IL-IN-WI nonattainment area and the remaining county and parts of counties as unclassifiable/attainment. 77 Fed. Reg. 34,221 (June 11, 2012). The final designations take effect July 20, 2012. The effective date of the designations is significant because it triggers Clean Air Act planning and implementation requirements for states and sources.
U.S. EPA designated 46 areas as “nonattainment” for the 2008 ozone standards, meaning they do not meet the standards. Two of these nonattainment areas are tribal areas designated separately from the surrounding state areas for the first time. Only three areas in two states (California and Wyoming) have not been nonattainment for previous ozone standards. Wyoming is the only state that has not previously had an area designated nonattainment for ozone. None of the nonattainment areas is outside the Continental U.S.
Each nonattainment area is classified based on how close it is to meeting the standards. The classifications are: marginal, moderate, serious, severe, severe-17, and extreme. Areas classified as marginal are closest to meeting the standard, while extreme areas are the farthest from meeting the standard. A higher classification means more time is allowed to meet the standard but also means more stringent controls are required for sources located in the area. For the 2008 ozone NAAQS, there are: 36 marginal areas, 3 moderate areas, 2 serious areas, 3 severe areas, and 2 extreme areas. The two extreme areas are both in California – the Los Angeles-South Coast Air Basin (Orange County and parts of Los Angeles, Riverside, and San Bernardino Counties) and the San Joaquin Valley (Fresno, Kings, Madera, Merced, San Joaquin, Stanislaus, and Tulare Counties and part of Kern County).
While West Virginia does not have any nonattainment areas (NAAs) for the 2008 ozone standards, West Virginia’s neighboring states all have at least one area consisting of multiple counties or portions of counties that do not meet the standards. Pennsylvania has 5 marginal NAAs, while Virginia has only 1 NAA. Maryland has 1 moderate and 2 marginal NAAs, and Ohio has 3 marginal NAAs, For a map of the U.S. showing the final nonattainment areas for the 2008 ozone standards, click here.
In March 2008, during the Bush Administration, U.S. EPA revised the primary and the secondary 8-hour ozone NAAQS, setting the standards at 75 parts per billion (ppb). 73 Fed. Reg. 16,436 (March 27, 2008). Following the promulgation of a new or revised NAAQS, the Clean Air Act requires U.S. EPA to promulgate designations within 2 years but allows the Agency to extend the time for designations up to one year if the EPA Administrator has insufficient information to promulgate the designations. Pursuant to this timeline, states and tribes provided their initial designation recommendations for the 2008 ozone standards in March 2009 based on the most recent three years of air quality monitoring data – generally 2006 to 2008.
However, in September 2009, U.S. EPA under the Obama Administration announced its plans to reconsider the 2008 ozone standards, and in January 2010, proposed to strengthen the ozone NAAQS to a level within the range of 60 to 70 ppb and extended the deadline for 2008 ozone designations from March 2010 to March 2011. See articles titled “EPA Reconsiders 8-Hour Ozone Air Quality Standards,” “U.S. EPA Proposes Strengthening Ozone Air Quality Standards,” and “U.S. EPA Extends Deadline for 2008 Ozone Designations,” posted on the Jackson Kelly PLLC Energy and Environment Monitor on September 30, 2009, and January 8 and 11, 2010, respectively.
In 2011, President Obama directed U.S. EPA to withdraw the final 2008 ozone NAAQS reconsideration rule. See article titled “White House Directs U.S. EPA to Withdraw Ozone Air Quality Standards,” posted on Jackson Kelly PLLC Energy and Environment Monitor on September 21, 2011. Many states and tribes provided U.S. EPA with updates to their original recommendations. Environmental groups, unhappy over the delayed implementation of the 2008 ozone standards, filed a citizen suit that resulted in a consent decree entered in WildEarth Guardians v. Jackson, No. 2:11-cv-01661-LOA (D. Az.), obligating U.S. EPA to promulgate the final designations by May 31, 2012.
U.S. EPA met the May 31, 2012 deadline and made final designations using air quality monitoring data from 2008 to 2010 – generally the most recent three years of certified data available – and in some cases using data from 2009 to 2011. The Agency considered data through 2011 if a state certified it as complete and submitted it for consideration by February 29, 2012 – two months earlier than required. In addition to air quality monitoring data, U.S. EPA considered other technical information, including commuting patterns, population growth, weather patterns, and topography.
Meanwhile, air quality continued to improve. In 2011, states recommended that 157 whole counties and 28 partial counties be designated nonattainment. U.S. EPA disagreed and responded that it intended to designate 200 whole counties and 29 partial counties as nonattainment; however, in the final designations, U.S. EPA designated only 184 whole counties and 37 partial counties. In contrast, in 2004, U.S. EPA designated 113 areas, consisting of 432 entire counties and 42 partial counties, as not meeting the 1997 ozone standards of 84 ppb.
Significantly, the number of areas not meeting the 2008 standards is less than half the number of areas not meeting the 1997 standards. Likewise, the number of counties, including partial counties, not meeting the 2008 standards is less than half the number of counties not meeting the 1997 standards. In addition, many of the areas designated as nonattainment for the 2008 ozone standards cover a smaller geographic area than the previous standards. For a map of the NAAs for the 1997 standards, click here.
The final designations, which take effect July 20, 2012, start the clock running for state implementation plans (SIPs). States with nonattainment areas classified as moderate and higher must submit SIPs demonstrating how the nonattainment areas in their state will meet the standards within three years of final designations or by July 2015. These SIPs may include additional controls on power plants, industrial facilities and other sources of nitrogen oxides (NOx) and volatile organic compounds (VOCs), which react in the atmosphere in the presence of sunlight to form ozone, and additional planning requirements for transportation-related sources.
Transportation conformity and New Source Review requirements will apply in nonattainment areas within one year or by July 2013. Under transportation conformity, local transportation and air quality officials coordinate their planning so that road construction and other transportation-related emissions projects do not interfere with an area’s ability to achieve the NAAQS. Under New Source Review, which is a preconstruction review and permitting program in the Clean Air Act, “major” sources of air pollution, such as power plants and industrial facilities must ensure that new and modified sources of NOx and other common air pollutants do not cause air quality to deteriorate.
Deadlines for achieving the 2008 ozone standards range from 2015 to 2032: December 31, 2015 for marginal areas; December 31, 2018 for moderate areas; December 31, 2021 for serious areas; December 31, 2027 for severe areas; December 31, 2029 for severe-17 areas; and December 31, 2032 for extreme areas. 77 Fed. Reg. 30,160 (May 21, 2012). According to U.S. EPA most areas will be able to meet the 2008 standards as a result of the recent Cross-State Air Pollution Rule, Mercury and Air Toxics Standards, clean vehicle and fuel standards, more locally focused state and/or tribal air quality programs, and other recent and pending rules.
Meanwhile, U.S. EPA continues to work on the next five-year review of the ozone standards and currently expects to propose action in 2013. If U.S. EPA tightens the ozone standards from 75 ppb to a level within the range of 60 to 70 ppb as EPA was proposing to do in 2010 before President Obama intervened and directed the Agency to withdraw the final ozone NAAQS reconsideration rule, the number of nonattainment areas may increase.
This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here.
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