SMOG CHECK: EPA IMPLEMENTS THE 2008 OZONE STANDARDS

This week, the Environmental Protection Agency (EPA) took two next steps toward the implementation of the 2008 air quality standards for ground-level ozone, which is commonly referred to as smog: it finalized designations for every area of the country, with the exception of the Chicago-Naperville and Illinois-Indiana-Wisconsin area and issued a final rule relating to such designations. 1010374791-300x213

Before we get into the details of EPA’s actions, a bit of background… The Clean Air Act (CAA) requires EPA to set National Ambient Air Quality Standards (NAAQS) for ozone, the main component in smog, and five other pollutants considered harmful to public health and the environment. The law further requires EPA to review these standards every five years. As required by the CAA, in March 2008, EPA issued a new NAAQS for ground level ozone of 0.075 parts per million (ppm).  Later in 2009, EPA announced that it was initiating a rulemaking that would reconsider this standard, primarily to bring it in line with the recommendation of the Clean Air Scientific Advisory Committee (CASAC), which was in the 0.060 to 0.070 ppm range. However, as we reported, in September of 2011, citing the economic downturn and the fact that it will be revised again in 2013 as part of the CAA’s five year policy, President Obama announced that he would put this rulemaking on hold and later that same month, EPA said that it would move forward with implementation of the 2008 standard of 0.075 ppm.

Since it’s establishment in 2008, the ozone standard has been the subject of litigation in the D.C. Circuit, known as Mississippi v. EPA. The American Lung Association, states and other groups have argued in the litigation that EPA improperly ignored the advice of the CASAC to issue a more stringent standard.  The case was put on hold when EPA was considering a rulemaking to do just that in 2009, however, once the 2008 standard came back into play in 2011, the litigation resumed and the briefing schedule calls for final briefs due at the end of August and oral arguments in the fall of this year.

But I digress… First some information on the area designations. EPA makes these designations indicating whether areas are in “attainment” of a particular standard or are in “nonattainment” of the standard (there are then varying classifications of non-attainment: marginal, moderate, serious, severe and extreme). The good news? The last time EPA did this, there were 113 nonattainment areas (and that was when the NAAQS for ozone was 0.084 ppm). This time around, there are only 45 nonattainment areas, only three of these are new to the nonattainment list and almost all of them (36) are classified as “marginal.” In addition, many of the areas designated as nonattainment today are smaller in geographic area than under the previous standard and already have programs in place to improve air quality (since they also did not meet the 1997 standard). Now for the bad news… the Los Angeles-South Coast Air Basin has been designated as being in “extreme” nonattainment (they requested and were granted voluntary reclassification from “serious” to “extreme” as part of the final rule discussed below).  

And now the final rule… The final rule did a few things including the following: (i) it established the air quality thresholds that define the classifications assigned to all nonattainment areas for the 2008 standard (for example, an area in “marginal” nonattainment has an 8-hour ozone value of between 0.076 and 0.086 ppm), (ii) it established a December 31 deadline for the relevant calendar year associated with each classification (for example, an area in “marginal” nonattainment must be in attainment by December 31, 2015), and (iii) it granted reclassification for 6 nonattainment areas that voluntarily reclassified under the 1997 ozone standard (all of them are in California). EPA indicated that this is the first of two rules designed to implement the 2008 ozone standard and that the second rule will “address other implementation issues such as anti-backsliding, State Implementation Plan deadlines, policies on Reasonably Available Control Technology and Reasonably Available Control Measures, and contingency measures.” 

What will be done to bring the nonattainment areas into attainment? States will likely create stricter controls on industrial facilities and transportation-related sources. In addition, federal measures such as the Mercury and Air Toxics Standards and the Cross-State Air Pollution Rule, as well as existing vehicle-related standards, should help these states to reduce their ozone pollution.