Regulatory Developments

Ozone Reform Bill Passed by House

By a vote of 229 to 199, the House passed H.R. 806, the Ozone Standards Implementation Act, a bill that would double the 5-year time frame under which the EPA reviews the Clean Air Act’s (CAA) National Ambient Air Quality Standards (NAAQS) for ozone and provide the Agency the authority to consider factors other than human health when revising the ozone NAAQS.

The bill emerged from objections raised by states and industry after the Obama EPA revised the 2008 ozone NAAQS in 2015 by lowering the 8-hour standard from 75 parts per billion (ppb) to 70 ppb. The revisions force states to begin implementing the 2015 standards before the 2008 standards are attained. The EPA contributed to the problem by not issuing its implementation guidance for the 2008 NAAQS until 2015. Before the Agency’s promulgation of the 2015 ozone standards, nearly 700 national, state, and local organizations and stakeholders representing businesses across the country requested that the EPA retain the 2008 standards.

7-Year Extension

H.R. 806’s key provisions would:

  • Phase in implementation of the 2015 ozone standards by extending the date for final designations from the current 2018 to 2025 and aligning permitting requirements.
  • Revise the time for mandatory review of the NAAQS from 5 to 10 years, while allowing the EPA discretion to issue revised standards earlier.
  • Authorize the EPA to consider technological feasibility as a secondary consideration when establishing or revising the NAAQS.
  • Direct the EPA to obtain advice from the agency’s scientific advisory committee regarding potential adverse effects before revising the NAAQS, as required by CAA Section 109.
  • Direct the EPA to issue implementation regulations and guidance concurrently when revising the NAAQS, including with respect to permitting requirements.
  • Ensure that for certain ozone and particulate matter nonattainment areas, states are not required to include economically infeasible measures in their implementation plans.
  • Revise the definition of “exceptional events” under CAA Section 319 to include droughts and extraordinary stagnation.
  • Direct the EPA to submit two reports to Congress: one regarding the impacts of foreign emissions on NAAQS compliance; the second regarding ozone formation and effective control strategies.
  • Limit the applicability of particular sanctions and fees on certain ozone and particulate matter nonattainment areas if states demonstrate the reason for nonattainment is for emissions beyond the states’ regulatory control.

Lawmakers—Yea and Nay

“We need to give states better tools to meet air quality goals efficiently,” said Representative Pete Olson (R-TX), the bill’s main sponsor, following the House vote. “As we work to keep this trend moving in the right direction, my bill provides needed flexibility so that states and localities can adequately achieve new, lower standards with time for compliance.”

In the report published by the House Energy and Commerce Committee, the bill was roundly condemned by House Democrats Frank Pallone (NJ) and Paul Tonko (NY).

“House Republicans claim that the goal of H.R. 806 is to facilitate a more efficient implementation of the EPA’s NAAQS by states and provide states additional time to implement the new ozone standards,” wrote Pallone and Tonko. “But H.R. 806 is an irresponsible compilation of attacks that in reality strikes directly at the heart of the CAA. This bill would undermine decades of progress on cleaning up air pollution and protecting public health from all criteria pollutants—not just ozone. It would cause irreparable harm to public health and the environment.”

The Senate is currently considering a companion bill to H.R. 806.

The text of H.R. 806, the Committee report, and related information can be found here.