Fulbright & Jaworski LLP: President Obama Withdraws Proposal to Lower the Ozone NAAQS

Fulbright & Jaworski LLP: President Obama Withdraws Proposal to Lower the Ozone NAAQS

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.

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