Progress Toward Implementing The Eight-Hour Ozone National Ambient Air Quality Standard — Stay Tuned

The EPA's April 15, 2004 Ozone Nonattainment Designations

On April 15, 2004, the Environmental Protection Agency (EPA) notified 31 states that they must develop new pollution controls because the air in some of their counties did not meet the federal health standard for ozone.1 The first question for any regulated entity is "How does this affect me?" As is evidenced by how long it took to get to this point, for the immediate future, there will be little change.

These designations have been long awaited. Beginning in 1997, the EPA issued new standards for ground-level ozone and particulate matter (PM) because of a concern that the requirements were not providing adequate protection. The agency replaced the existing one-hour, 0.12 parts-per-million (ppm) standard with a tighter version based on eight-hour average concentration levels. The new eight-hour standard was set at 0.08 ppm, which according to the EPA, is roughly equivalent to a one-hour version set at 0.09 ppm. As is often the case, the revision of the rule led to litigation and delays. On April 15, the EPA took the first significant steps toward making the revision a reality, although, as is discussed below, it will be at least three more years before there is any real impact to most areas that have been designated nonattainment for this new standard.

The 1997 Ozone National Ambient Air Quality Standard

The EPA revised the ozone and PM National Ambient Air Quality Standards (NAAQS) in 1997 in response to a lawsuit by public health and environmental groups seeking to compel action because the agency had not revised the previous ozone standard since 1979 and the PM standard since 1987.2 Three states and dozens of industry plaintiffs quickly challenged the new standard. In 1999, the D.C. Circuit Court of Appeals sent the new standard back to the EPA for further study.3 The EPA appealed to the United States Supreme Court. In February 2001, in a much anticipated decision due to the nondelegation issues raised by the D.C. Circuit, the Supreme Court unanimously upheld the EPA's authority to set federal air standards and refused to require the EPA to factor the cost of regulation into the process of setting the NAAQS. The Court did find the EPA's implementation plan for the new standard making Title I, Part D, Subpart 2 obsolete to be unlawful.4 Following remand to the Court of Appeals, the Supreme Court required the EPA to develop a reasonable interpretation of how Subpart 1 and Subpart 2 interact under the new ozone NAAQS.5 In March 2002, the D.C. Circuit rejected all remaining challenges to the eight-hour ozone standard. In 2003, several environmental groups filed suit in district court claiming the EPA had not met its statutory obligation to designate areas for the eight-hour NAAQS. The EPA entered into a consent decree that required the EPA to issue the designations by April 15, 2004.

Following the April 15 notification, the EPA published the Air Quality Designations and Classifications for the 8-Hour Ozone National Ambient Air Quality Standards; Early Action Compact Areas with Deferred Effective Dates in the Federal Register on April 30, 2004. The designation rule became effective June 15, 2004.6 In making the designations and classifications, the EPA relied on the most recent three years of monitoring data. Most of the designated counties are in the eastern third of the country. The counties in nonattainment included most of California, a ring of states around the Great Lakes, and a concentration of Northeast states from the Washington, D.C. area to Boston. Also, parts of eastern Tennessee, Georgia, North Carolina, and the Dallas, Houston, and San Antonio areas in Texas are in nonattainment. Eighteen entire states, including Iowa, Minnesota, Florida, Mississippi, Vermont, Hawaii, and Alaska, are meeting the new more protective standard. For areas not in attainment, states must submit a revised SIP to the EPA describing how they will bring these areas into compliance. The states will have three years to draw up these SIPs.

The EPA also published the Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality StandardPhase 1 in the April 30, 2004 federal register.7 According to the EPA, Phase 2 will be issued within the next several months. Phase 2 will address requirements for reasonable further progress, modeling and attainment demonstrations, reasonably available control measures, and reasonably available control technology. Phase 1 of the implementation rule is effective June 15, 2004. The two core issues addressed in Phase 1 are how the CAA classification...