Regulatory Developments

1-Year Extension for Ozone Standards Announced by EPA

Citing his authority under section 107(d)(1)(B) of the Clean Air Act, Administrator Scott Pruitt of the EPA has announced that he will extend by 1 year the deadline for initial area designations pursuant to the Agency’s 2015 national ambient air quality standards (NAAQS) for ozone (October 26, 2015, FR).

Section 107(d)(1)(B) directs the EPA to make initial attainment/nonattainment designations for areas no later than 2 years after an NAAQS is promulgated, in this case by October 2017. However, the section also allows a 1-year extension “in the event the Administrator has insufficient information to promulgate the designations.” In a letter to U.S. governors, Pruitt notes that an extension is justified so that the Agency may “rely fully on the most recent air quality data.”

NAAQS Schedule

The 2015 rule lowered the primary heath-based standard for ozone from 75 parts per billion (ppb) to 70 ppb. States were required to submit their recommendations for area designations by October 2016, and the EPA is scheduled to issue the initial designations 1 year later. After nonattainment areas are designated, state and local governments have up to 3 years to produce state implementation plans (SIPs), which outline the measures they will take to reduce emissions levels and attain the standards. Once SIPs are approved, states have from 3 to as many as 20 years to achieve attainment depending on the severity of ozone pollution in the nonattainment areas.

Air Better, but Costs Rise

The 70 ppb standard is less stringent than what EPA’s Clean Air Scientific Advisory Committee recommended. But some states and industry sectors still objected strongly to the revision. Their concerns were noted in Pruitt’s letter.

“States have made tremendous progress and significant investment cleaning up the air,” wrote Pruitt. “Since 1980, total emissions of the six principal air pollutants have dropped by 63 percent, and ozone levels have declined by 33 percent. Despite the continued improvement of air quality, costs associated with compliance with the ozone NAAQS have significantly increased. I am committed to working with you and your local officials to effectively implement the ozone standard in a manner that is supportive of your air quality improvement efforts, without interfering with local decisions or impeding economic growth.”

Confounded by Background Ozone

According to the letter, three main data quality issues justify the 1-year extension—an incomplete understanding of the role of background ozone levels; appropriately accounting for international transport of air pollution; and timely consideration of exceptional events demonstrations. The current attainment/nonattainment designations recommended by the states were based on air quality data collected between 2013 and 2015.

Some states have complained that their background ozone concentrations, in particular, are so high that attainment is virtually impossible without shutting down virtually all polluting sources. Nonattainment areas are subject to tight restrictions on allowable air pollution; this can force states to impose restraints on industrial growth and take away flexibility in the use of federal transportation funds.

Pruitt notes that new data will “provide the Agency time to complete its review of the 2015 NAAQS.” This may suggest that the Agency will attempt to write an entirely new rule to amend or even withdraw the 70 ppb standard. Revising an ozone NAAQS requires exhaustive reviews of research into the impact of ozone on human health and is possibly the most resource-intensive rulemaking the EPA undertakes.

Any action to significantly change the 2015 regulations will incite a strong counterattack from environmental and public health groups. The Sierra Club called the 1-year extension illegal and said it would “fight this egregious breach of the Clean Air Act and the right of every American to breathe clean air.”

Pruitt’s letter is here.