EPA Delays Ozone Standard Reconsideration Until Summer 2011

The U.S. Environmental Protection Agency (EPA) has announced for the third time that it needs more time to issue a set of rules that decide how aggressively the United States will need to fight ground-level ozone (smog).  EPA plans to ask its scientific advisers for “additional advice,” a process that will push back a final decision until the end of July 2011, according to the Agency.  EPA’s proposed ozone standard would likely result in a large portion of the U.S. being in nonattainment. AGC is interested in this rulemaking because a “nonattainment” designation under the Clean Air Act (CAA) may result in construction bans in geographic areas so designated by EPA. While EPA had originally aimed to set a new national ambient air quality standard (NAAQS) for ozone in August 2010, the agency pushed back the deadline until October 2010, and then until December 2010.  Now EPA has asked a federal appeals court to extend its deadline to July 29, 2011, citing a need to consult with the Clean Air Scientific Advisory Committee (CASAC) to address technical questions.  CASAC is the independent scientific review committee established and tasked by Congress with giving EPA advice on air quality standard setting. Criticism from Industry, Lawmakers According to EPA, the Agency received “more than 5,000 unique comments” on its proposed rule reconsidering the ozone NAAQS.  AGC commented that EPA should not tighten the 2008 ozone NAAQS because businesses and industries would incur increased costs, permitting delays and restrictions on expansion, forcing them to either impose higher prices on their customers or relocate out of the nonattainment area.  AGC’s letter points out that given the absence of new or different scientific data, EPA should maintain the current ozone standards. Moving to change the standard again, outside of the Clean Air Act's normal five-year review process, as local communities are struggling to meet the existing standard, would be unfair and unwise, AGC stated. The National Association for Manufacturers claims that the proposed NAAQS could cost 7.3 million jobs by 2020 and add $1 trillion in new regulatory costs between 2020 and 2030. The administration’s plan to tighten the ozone standard also has drawn criticism from many lawmakers.  Rep. Fred Upton (R-Mich.), who is the new chairman of the House Energy and Commerce Committee, wrote a letter with Oklahoma Sen. James Inhofe, who continues to serve as the top Republican on the Senate Environment and Public Works Committee, stating that they are "gravely concerned" about the direction EPA is taking.  EPA’s proposal would cause hundreds of areas across the country to fail clean-air standards. That leads to federal sanctions, which Inhofe and Upton say are akin to hanging a "closed to business" sign on the door.  The lawmakers are expected to schedule hearings on the smog standard and other regulations coming out of EPA to question the Agency on the "quality and rigor of the science" behind the ozone decision, the letter states.  Click here to read the lawmakers' letter.

Background

In 2008, during the Bush Administration, EPA adopted a revised ozone NAAQS of 0.075 parts per million (ppm).  73 Fed. Reg. 16,436 (March 28, 2008).  The 2008 ozone standard was not consistent with CASAC’s recommendation to EPA to adopt a “primary” standard at a level between 0.060 and 0.070 ppm to protect human health.  Petitions for review challenging the 2008 ozone NAAQS were filed in the D.C. Circuit.  See Mississippi v EPA, No. 08-1200 (D.C. Cir.).  In September 2009, EPA announced that it would reconsider the ozone standards. In January 2010, EPA published a proposal to lower the ozone NAAQS from 0.075 ppm to a range between 0.060 and 0.070 ppm. 75 Fed. Reg. 2,938 (January 19, 2010).  In its motion for more time to complete the ozone NAAQS reconsideration rule, U.S. EPA asks the D.C. Circuit to continue to hold the ozone NAAQS litigation in abeyance.  For the text of U.S. EPA’s motion, including the supporting Declaration of Regina McCarthy, U.S. EPA Assistant Administrator for Air and Radiation, click here. For more information, contact AGC’s Senior Environmental Advisor Leah Pilconis at pilconisl@agc.org.