Article by Geoffrey K. Barnes 
, Allen A. Kacenjar Jr. , Wendlene M. Lavey 
, Douglas A. McWilliams and Karen A. Winters
On March 13, 2008 US Environmental Protection Agency (US
EPA) announced new, more stringent national ambient air quality
standards (NAAQS) for ozone. The new primary and secondary
standards are both set at 0.075 parts per million (ppm) over an
eight-hour period. Using 2004-2006 monitoring data, this
tightening of the previous 0.084 ppm standard would result in
345 nonattainment counties (see preliminary map). Areas designated
nonattainment for ozone will have additional obstacles to
permitting new or modified combustion sources and sources using
paints, solvents and other volatile organic chemicals as raw
materials.
Recent rules targeting nitrogen oxide (NOx) and volatile
organic compound (VOC) emission reductions will help these
counties achieve ozone reductions as they are implemented over
the next few years. Unfortunately, the three-year period used
to determine initial attainment status (likely 2006-2008) will
not reflect some of the more significant emission reductions
due to be realized in 2009, 2010 and beyond from the regional
Clean Air Interstate Rule (CAIR), new engine standards and the
VOC/NOx Reasonably Available Control Technology (RACT) programs
being implemented in existing nonattainment areas. If
implementation cannot be delayed, some counties will experience
the burden of nonattainment status despite models that indicate
attainment will be achieved based solely on the implementation
of these existing rules.
New Designations, Deadlines and
Requirements
The first direct regulatory effect of US EPA's new
standard will come when it finalizes new nonattainment area
designations on or before March 12, 2010. Promulgation of the
new ozone NAAQS requires states to submit proposed
nonattainment/attainment designations for each county by March
12, 2009, which US EPA must finalize within one year. At that
point, newly designated nonattainment areas will be subject to
more stringent new source review requirements that force new
and modified major sources to find offsets for net emission
increases and to design projects to meet the lowest achievable
emission rate without regard to cost. States must then develop
more stringent regulations designed to further limit NOx and
VOC emissions as needed for nonattainment counties to achieve
attainment and include these regulations in revised State
Implementation Plans due to US EPA by March 12, 2013.
Litigation on the Horizon
Two controversial parts of the rule will spur litigation that
may well upend the new standards. First, environmental
organizations and industry groups disagree with the limit US
EPA selected. At least one industry group has argued that the
0.075 ppm standard is flawed because EPA (1) underestimated the
amount of naturally occurring ozone, (2) used a biased database
and (3) committed methodological errors. In contrast,
environmentalists contend that a more stringent standard is
required as proven by a key scientific body's unanimous
recommendation that EPA set the standard between 0.060 ppm and
0.070 ppm.
Second, the form of the rule is contested. US EPA initially
proposed not just the new human health standard of 0.075 ppm,
but also a "seasonally adjusted" secondary standard
to protect sensitive plants. Following conversations with the
Office of Management and Budget (OMB) just before issuance of
the rule, US EPA dropped the seasonal standard. Citing internal
agency communications, environmental organizations allege that
(1) US EPA improperly considered cost when it made that change,
(2) OMB unlawfully interfered with the rulemaking process and
(3) the scientific evidence required a seasonal standard. Since
litigation on these issues could functionally rewrite the ozone
standards, careful monitoring is warranted by entities planning
significant capital investments to modify or build new
facilities.
A Legislative Fix?
In light of the legal challenges to this and other similar
rules, US EPA has begun actively drafting proposed Clean Air
Act amendments for Congress to consider. US EPA believes that
the Clean Air Act NAAQS program should be revised to:
- Better protect the public health and improve overall well-being;
- Allow decision makers to consider benefits, costs, risk tradeoffs and feasibility;
- Provide greater accountability and effective enforcement; and
- Allow for prioritization in addressing NAAQS standards.
US EPA reportedly plans to present its proposed legislation this year. However, given the current political climate with elections this fall, movement on this controversial issue seems highly unlikely.
Squire Sanders environmental lawyers have substantial expertise in challenging attainment designations, permitting projects with complex emissions implications and reducing associated regulatory risks. Should you have any questions about the impact of this rulemaking on your facility or business, please contact your principal Squire Sanders lawyer or one of the individuals listed in this Alert.
The contents of this update are not intended to serve as legal advice related to individual situations or as legal opinions concerning such situations. Counsel should be consulted for legal planning and advice.
