Regulatory Developments

Initial Ozone Designations Issued by EPA

In a final rule, the EPA has established initial air quality designations for most areas in the United States for the 2015 primary and secondary National Ambient Air Quality Standards (NAAQS) for ozone. The rule states that 2,646 out of 3,142 counties or county equivalents have been designated attainment or attainment/unclassifiable for the 2015 NAAQS, an 85 percent attainment rate. The Agency says it is not yet prepared to issue designations for the remaining areas.

Governor Recommendations Accepted

In 2015, the EPA revised the existing 2008 ozone level for both the primary and secondary NAAQS from 0.075 parts per million (ppm) to 0.070 ppm. Under the Clean Air Act (CAA), the Agency must issue initial area designations within 2 years of promulgating a new or revised NAAQS. The initial designation deadline follows by 1-year designation recommendations made by the governors of each state. The Agency says it is following the recommendations made by the governors because one or more air monitors show the areas attaining the 2015 ozone NAAQS or because the EPA does not have reason to believe the areas are in violation of the 2015 NAAQS or are contributing to a violation of the standards in another county.

International Transport and Background Concentrations

Also, the CAA allows the EPA to extend the 2-year time frame for initial designations by 1 year; in June 2017, the Agency informed governors that it intended to exercise that option. The Agency noted that there was a “host of complex issues regarding the 2015 ozone NAAQS and its implementation.” Environmental groups promptly informed the Agency that they would take legal action if the 1-year extension was allowed. EPA Administrator Scott Pruitt subsequently announced that the 1-year option would not be used and that he would be moving ahead with the 2015 designations on a case-by-case basis.

While not extending the deadline by 1 year for areas that have not been designated, the Agency says that in the “spirit of cooperative federalism, the EPA will continue to work with states and the public to help areas with underlying technical issues, disputed designations, and/or insufficient information. Additionally, EPA modeling, state agency comments, and peer-reviewed science indicate international emissions and background ozone can contribute significantly to areas meeting attainment thresholds. The Agency intends to address these areas in a separate future action.”

Washington’s Unclassifiable Area

The final rule notes that because of the absence of 3 consecutive years of certified ozone monitoring data, the Agency is following through on the governor or Washington state’s recommendation that an area comprising the counties of Benton, Franklin, and Walla Walla be designated as unclassifiable.

The final rule includes classifications for Indian country.

The CAA does not require the EPA to open initial NAAQS designations to public comment. The Agency states that it is issuing the designations without requesting public comment because it believes they are noncontroversial and consistent with the recommendations of the states and Indian tribes. The EPA adds that any party concerned with any designation may file a petition for reconsideration with the administrator.

The final rule is here.