On the Friday before lawmakers returned to Washington after Labor Day, President Obama directed U.S. EPA to withdraw the reconsidered ozone national ambient air quality standards (NAAQS) rule. The current ozone standard is set at 75 parts per billion (ppb) and the regulation would have tightened the standard to between 60 and 70 ppb. According to U.S. EPA, compliance costs for a standard as low as 60 ppb would have been as much as $90 billion per year.
In addition to the compliance costs, the stricter limits would have increased the number of counties in West Virginia and across the nation in violation of the standard. This is significant because counties in violation of air quality standards may have trouble attracting new industrial business, such as power plants, manufacturing facilities, and possibly oil-and-gas projects, and industrial businesses may decline to expand their existing facilities located in such areas. States with areas in violation of the NAAQS must adopt implementation plans to attain and maintain the air quality standards in their borders and prohibit interference with the attainment and maintenance of the standards in neighboring states. For facilities, tighter limits on air emissions can mean regulatory requirements to install additional emission controls.
While the reconsidered ozone NAAQS rule has been withdrawn, both President Obama and U.S. EPA Administrator Jackson have promised to revisit the standard in 2013. Meanwhile, litigation challenging the current standard and U.S. EPA’s failure to implement the current standard will move forward. Time will tell whether the judicial branch will influence the next ozone NAAQS. In the meantime, states, local governments, and businesses concerned about a tightening of the standard should stay abreast of the current review and focus on the improvement in air quality that has taken place and that will continue to take place as a result of various air regulations.
President Obama stated in his White House press release that the statutorily required review of the standard is underway and that that review “will result in reconsideration of the ozone standard in 2013.” He succinctly stated: “Ultimately, I did not support asking state and local governments to begin implementing a new standard that will soon be reconsidered.” He emphasized the actions taken by his administration to protect public health, including “reducing mercury and other toxic air pollution from outdated power plants” and “doubling the fuel efficiency of…cars and trucks” and reiterated his commitment to protecting public health and the environment.
In a September 2, 2011 letter to U.S. EPA Administrator Lisa Jackson, Cass R. Sunstein, the White House Office of Management and Budget’ Information and Regulatory Affairs Administrator, elaborated on the withdrawal of the rule. He wrote that President Obama “has made it clear that he does not support finalizing the rule at this time.” The White House letter emphasized that “finalizing a new standard now is not mandatory and could produce needless uncertainty.” Noting that U.S. EPA would be revisiting the current standards in 2013 as required under the Clean Air Act, the letter states: “issuing a final rule in late 2011 would be problematic in view of the fact that a new assessment, and potentially new standards, will be developed in the relatively near future.” Citing an executive order requiring that federal regulations “must be based on the best available science,” the letter urges U.S. EPA to “reconsider whether to issue a final rule in late 2011, based on evidence that is no longer the most current, when a new scientific assessment is already underway.” Finally, the letter emphasizes the steps U.S. EPA has already taken to reduce ozone and lists the heavy-duty truck rule, Cross State Air Pollution Rule for power plants, and national standards for mercury and other air toxics. See articles posted on the Energy & Environment Monitor titled “EPA Announces Cross-State Air Pollution Rule,” “White House Begins Review of Air Pollution Rules for Coal-Fired Power Plants,” and “EPA Proposes 91% National Reduction for Mercury As Well As Reductions of Other Toxics from Power Plants And Claims That Program Will Reduce Future Cost Of Power,” posted July 19, 2011, June 6, 2011, and March 16, 2011, respectively.
U.S. EPA Administrator Jackson responded in a one-paragraph statement. She promised to “revisit the ozone standard, in compliance with the Clean Air Act”. She too emphasized the safeguards U.S. EPA has taken to ensure clean air, including “the most significant reduction of sulfur dioxide and nitrogen oxide air pollution across state borders; a long-overdue proposal to finally cut mercury pollution from power plants; and the first-ever carbon pollution standards for cars and trucks.” For the statement by U.S. EPA Administrator Jackson, click here.
Under the Clean Air Act, U.S. EPA is required to set national ambient air quality standards for common air pollutants called “criteria” pollutants, including ozone, and to review the standards every five years. The ozone rule that has been withdrawn was outside the normal review cycle. U.S. EPA initiated proceedings to reconsider the 2008 standards in 2009. See article posted on the Energy & Environment Monitor titled “EPA Reconsiders 8-Hour Ozone Air Quality Standards,” posted September 30, 2011.
The current standard was set during the Bush Administration in 2008. The Bush Administration tightened the standard from 84 ppb to 75 ppb but at 75 ppb the standard was less stringent than recommended by U.S. EPA’s Clean Air Scientific Advisory Committee (CASAC). The standard was challenged in court with the environmental groups contending that the standard was too lenient and industry arguing that the standard was unnecessary. Mississippi v. EPA, No. No. 08-1200 (D.C. Cir.). In court filings in August 2011, U.S. EPA represented that the reconsidered ozone NAAQS rule would be signed “shortly”; however, upon receipt of September 2, 2011 letter, U.S. EPA notified the D.C. Circuit that it “no longer expects that it will take final action to complete its reconsideration of the 2008 Ozone NAAQS in the near future.” U.S. EPA indicated it would file a revised motion to govern further proceedings.
In January 2010, the Obama Administration proposed to revise the standards and to set the health-based or “primary” standard in the range recommended by CASAC and to set a separate welfare-based or “secondary” standard. See article posted on the Energy & Environment Monitor titled “U.S. EPA Proposes Strengthening Ozone Air Quality Standards” posted January 8, 2010.
The reconsidered ozone NAAQS that was withdrawn was delayed four times. See articles posted on the Energy & Environment Monitor titled “U.S. EPA Postpones Reconsidered Ozone Air Quality Standards Again” and “U.S. EPA Delays Ozone NAAQS Reconsideration Final Rule until Summer 2011,” posted November 17, 2010, and December 8, 2010, respectively.
While U.S. EPA reconsidered the ozone standard, the litigation challenging the 2008 standards was held in abeyance but now the litigation will proceed. The environmental group’s challenge is based in part on the D.C. Circuit decision in American Farm Bureau Federation v. EPA, 559 F. 3d 512 (D.C. 2009), remanding the annual air quality standard for particulate matter, because the standard was inconsistent with the recommendation of U.S. EPA’s science advisors.
In addition to the litigation challenging the 2008 ozone NAAQS, an environmental group brought a citizen suit to compel U.S. EPA to promulgate designations for the 2008 ozone NAAQS. WildEarth Guardians v. EPA, No. No.2:11-cv-01661-LOA (D. Ariz.). When U.S. EPA proposed strengthening the ozone standard in 2010, the Agency also extended the deadline for designating areas for the 2008 ozone standards by one year from March 12, 2010 to March 12, 2011. See article posted on the Energy & Environment Monitor titled “U.S. EPA Extends Deadline for 2008 Ozone Designations,” posted January 11, 2010.
U.S. EPA has not identified those areas of the county that meet, exceed or have insufficient data to permit classification as meeting or exceeding the 2008 standards. Meanwhile, air quality continues to improve as a result of various regulations and control measures on the books or on the way, including the Clean Air Interstate Rule or CAIR that the Cross State Air Pollution Rule is intended to supersede as well as other measures identified by the White House and U.S. EPA Administrator Jackson.
This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author, see here
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