The U.S. Environmental Protection Agency (EPA) Abandons Reconsideration of 2008 Ozone National Ambient Air Quality Standards (NAAQS)
On September 2, 2011, the Obama Administration announced that it would not finalize proposed revised ozone standards developed upon reconsideration of the Bush Administration’s 2008 standards, citing concerns with regulatory burdens and uncertainty.
Under the Clean Air Act, the EPA is required to establish primary and secondary national ambient air quality standards (NAAQS) for six criteria pollutants, including ozone. Primary NAAQS limit the maximum allowable concentration of each criteria pollutant to the level that “protects the public health” with an “adequate margin of safety,” without regard to the economic or technical feasibility of attainment. Secondary standards protect against adverse impacts on welfare, including impacts on visibility, vegetation, animals, wildlife, materials and property. The states are responsible for ensuring that the standards are met through state implementation plans (SIPs) that establish control on sources of ozone.
In 2008, the Bush Administration EPA revised the previous 1997 ozone NAAQS to establish both the primary and secondary standards at 0.075 parts per million (ppm), averaged over eight hours. The standard was met with scrutiny, as it was less stringent than the 0.060 ppm to 0.070 ppm standard recommended at that time by EPA’s Clean Air Scientific Advisory Committee. (See first quarter 2008 issue of the Greenebaum Air Quality Letter).
Lawsuits by various parties including both industry and environmental interest groups ensued and, in January 2010, the Obama Administration announced that it would reconsider and revise the 2008 standards. EPA formally proposed setting a new primary ozone standard within the lower range previously recommended by the scientific advisory committee along with a separate seasonal secondary ozone standard for protection of sensitive vegetation and ecosystems consistent with the recommendations of the advisory committee. (See fourth quarter 2009 issue of the Greenebaum Air Quality Letter). Concurrently, EPA delayed implementation of the 2008 standard and instructed states to continue to implement the 1997, 0.08 ppm, standard pending reconsideration and promulgation of a revised final standard. Consolidated litigation challenging the 2008 standards, pending in the U.S. Court of Appeals for the D.C. Circuit, was stayed pending EPA’s reconsideration process.
In the months since EPA’s January 2010 proposal, issuance of final, revised standards by EPA has been delayed several times. Originally the revised standards were expected to be issued by December 31, 2010 but multiple extensions of that self-imposed deadline have been announced since. (See for example, fourth quarter issue of the Greenebaum Air Quality Letter, reporting delays announced by EPA). EPA publicly stated in court pleadings filed on August 25, 2011 -- just days before the Obama Administration’s announcement abandoning the revised rule -- that revised final primary and secondary ozone standards would be issued “shortly.”
The New Path Forward
In the initial days following EPA’s September 2 announcement abandoning reconsideration of the 2008 standards, it was unclear whether EPA would enforce the 2008 Bush administration ozone standards or the previous 1997 standards. Implementation rules relating to the 2008 standards have been on hold pending litigation and reconsideration. Meanwhile, separate and apart from its reconsideration of the 2008 standards, EPA is currently reviewing the ozone NAAQS under the five year review schedule set out in the Clean Air Act. Under that review process, EPA has announced that it plans to propose revisions to the standards in the fall of 2013 and finalize revisions to the standards in 2014.
In a September 22, 2011 memorandum directed to Regional Air Division Directors, EPA has since announced that it is moving ahead with implementation of the 2008 standard but in a manner “mindful of the precedence and administrator’s direction that in these challenging economic times EPA should reduce uncertainty and minimize the regulatory burdens on states and local governments.” EPA announced that it expects to issue proposed recommendations regarding areas in nonattainment with the 2008 standard in the fall of 2011 and that it would “quickly initiate and complete a rulemaking” establishing nonattainment area classification thresholds such that designations can be finalized in “mid-2012.”
EPA has stated that in making nonattainment designations under the 2008 standard it will review state recommendations made in 2009 but with updates using the most current, certified air quality data. By letter submitted to EPA dated March 12, 2009, DAQ initially recommended that nine Kentucky counties be designated as nonattainment for the 2008 standard based on 2006 through 2008 air quality data (Kenton, Henderson, Oldham, Simpson, Davis, Greenup, Hardin, Hancock, Jefferson, and Christian counties).
Relying on updated 2008 through 2010 data, Kentucky recently, by letter dated October 13, 2011, revised that recommendation to state that all areas in the state should be designated as attainment or unclassifiable/attainment for the standard. Despite this recommendation, DAQ has publicly noted that due to metropolitan statistical area boundaries and the presence of a nonattaining monitor in the Cincinnati, Ohio area, Boone, Kenton and Campbell counties may ultimately be designated as nonattainment by EPA despite Kentucky monitoring data. Further, DAQ has noted that although EPA has requested updated recommendations based on 2008 through 2010 data, more recent air quality data show monitors in Jefferson and Oldham counties measuring ambient air quality in violation of the 0.075 ppm standard (measuring at 0.078).
More generally, EPA has announced that based on its initial review of 2008 through 2010 ozone air quality data, 52 areas in the country currently monitor air quality that exceeds the 0.075 ppm standard and that a preliminary review indicates that 43 of those 52 areas would fall into the marginal nonattainment category. As EPA noted in its September 22 memorandum, many of the mandatory measures under the Clean Air Act are not required for marginal areas since those areas are expected to achieve attainment within three years. EPA noted that its modeling indicates that “approximately half of the 52 areas would attain the 0.075 ppm standard by 2015 (the expected attainment deadline for marginal areas) as a result of the emission-reducing rules already in place.
Litigation Presses Forward
Litigation challenging the 2008 ozone standard remains pending. With EPA’s announcement that it will no longer pursue reconsideration of that standard, parties have moved to establish a briefing schedule in that case. As of the date of this publication, a briefing schedule had not yet been established.
Further, despite EPA’s plans to finalize initial area designations for the 2008 ozone standard by mid-2012, WildEarth Guardians recently filed suit in the U.S. District Court for the District of Arizona seeking to compel EPA to designate areas of the country that are in nonattainment with the 2008 standards and to begin the process of implementing those standards. In that litigation, plaintiffs allege that under the schedule specified in the Clean Air Act, EPA should have issued attainment designations for the 2008 standards by March 12, 2010. (EPA subsequently granted itself a one year extension to March 12, 2011, but also missed that deadline). Additional groups, including the American Lung Association, have given notice that they intend to join that suit. By order issued October 25, 2011, EPA was granted an extension through December 12, 2011 to file an answer to the complaint in that matter in order to accommodate settlement discussions. Depending upon the outcome of those discussions, EPA’s “mid-2012” target date for nonattainment designations under the 2008 standards may change.
To view a complete PDF of the Third Quarter 2011 issue of the Air Quality Letter, click HERE.