By Bob
Greenslade and Patricia
Finn Braddock
On September 2, 2011, President Obama directed Lisa Jackson, the
Administrator of the U.S. Environmental Protection Agency ("EPA"), to
withdraw the agency's proposal to lower the primary National Ambient Air
Quality Standard ("NAAQS") for ozone, citing the importance of
reducing regulatory burdens and uncertainty for business at a time of
uncertainty about an unsteady economy. As a result, the 8-hour ozone
NAAQS will remain at the current level of 0.075 parts per million
("ppm"), instead of being reduced to between 0.070 ppm and 0.060 ppm,
as previously proposed.
The ozone NAAQS issue has been the source of significant controversy, ever
since the EPA decided in March of 2008 to establish the primary and secondary
ozone NAAQS at 0.075 ppm. The 0.075-ppm primary standard was higher than
the 0.060 to 0.070 ppm range recommended by the Clean Air Scientific Advisory
Committee, resulting in allegations that the EPA was ignoring science in favor
of business groups. Then the agency's formal announcement in September
2009 that it would reconsider the rule sparked heavy criticism that its
estimate of cost impacts were too low, that the rule would strongly and
negatively impact jobs and the economy, and that the agency was ignoring the
science in order to push the philosophical agenda of environmental activist
groups.
With the withdrawal of the EPA's proposed ozone rule, the ozone NAAQS will
remain as set in March of 2008. The publication of that rule started a
series of deadlines for the states to submit recommended nonattainment
designations to the EPA and for the EPA to issue final designations.
Although the states submitted recommended designations in March of 2009, the
EPA placed final designations on hold due to its proposal to reduce the
NAAQS. The designation process will now resume. Unknown is whether
the EPA will call for an assessment of ozone monitoring data for 2009 and 2010
or will instead finalize designations based on 2006-2008 data.
Although the ozone NAAQS is not being reduced, the 0.075-ppm standard will
still result in significant areas of the country being designated
nonattainment, which means many proposed industrial projects in these areas
will be required to undergo stringent Nonattainment NSR permitting prior to
construction and will need to offset nitrogen oxides and volatile organic
compound emissions. It is also likely that states with ozone nonattainment
areas will need to impose new emissions restrictions on existing industrial
sources as part of their State Implementation Plans for achieving compliance
with the NAAQS.
This article was prepared by Patricia Finn Braddock (pbraddock@fulbright.com or 512
536 4547) and Bob
Greenslade (rgreenslade@fulbright.com or
512 536 5241) from Fulbright's Environmental Practice
Group.
For more
information about LexisNexis products and solutions, connect with us through
our corporate site.