New National Ozone Standards Caught Up in Last Step of Regulatory Review

A controversial U.S. Environmental Protection Agency (EPA) rule for smog is close to final signature, but the agency said this week that they will not be finished by July 29, as previously expected.  It is the latest delay for the new national ozone standards, which were proposed in January 2010.  This long, drawn out process has prompted intense lobbying from industry and environmental groups that do not see eye to eye on the issue. Other critics on Capitol Hill are actively pushing the White House to scale back the rule, which was submitted for final review earlier this month. EPA has sent to the White House Office of Management and Budget (OMB) its final rule to update the national ambient air quality standards (NAAQS) for ozone. After the rule clears the interagency review process led by OMB, EPA will make its final decision. EPA told a federal court – and AGC reported in AGC’s Environmental Observer – that it would be done revising the ozone NAAQS by July 29, but the latest report is that they will not be ready by then.  White House review is usually the last step before an agency releases a new rule. EPA’s scientific advisers suggested a standard between 0.070 and 0.060 parts per million (ppm) back in 2006 after reviewing the latest studies.  But in March 2008, EPA instead chose to replace the 1997 standard of 0.08 ppm with a new, more stringent standard of 0.075 ppm.  In September 2009, EPA announced it would reconsider the 2008 ozone standard, and in a stark departure from the normal five-year review cycle and without considering any of the newer science, EPA proposed a range of 0.070-0.060 ppm in January 2010.  EPA also proposed a separate secondary standard unrelated to the health effects of ozone and focused on the protection of trees and plants. EPA said its new ozone rule would come out in August 2010. That deadline was pushed back to October, and then to December, and then to July 29; now EPA says it will finalize the standard “shortly.” Industry and Environmental Perspectives Latest predictions are that EPA will set a stricter limit on the acceptable amount of ozone in the air. EPA’s proposed range would likely result in a large portion of the U.S. being in nonattainment.  Click here to see nonattainment designation maps based on 2006 to 2008 air quality monitoring data. AGC has written to EPA urging it not tighten the 2008 ozone NAAQS.  AGC has pointed out that EPA’s proposed range would greatly increase the stringency of the ozone NAAQS again when current implementation steps are just beginning, including new emission restrictions and controls affecting businesses/consumers at a time of recession and historic unemployment nationwide.   Any change in the ozone NAAQS must be “requisite” to protect human health or welfare and based on a review of updated scientific information.  AGC’s letter points out that the range under consideration is unlawful because there is no new scientific evidence to justify strengthening the standard. Indeed, the Administrator is simply seeking to replace her predecessor’s policy judgment with her own. AGC and other have asked EPA to wait on new standards until 2013, when the agency is scheduled to finish its next review of the most current science on ozone. According to the Integrated Review Plan for the Ozone National Ambient Air Quality Standards, the agency intends to propose any needed revisions to the national standards by September 2013 with a final rule expected by June 2014. Similarly, many members of Congress have been arguing that the stricter standards would cost billions of dollars and require cleanups in many new parts of the country, potentially leading to permitting delays, restrictions on expansion and construction stoppages throughout the United States.  John Engler, a former Republican Michigan governor who is now president of the Business Roundtable, wrote in a Wall Street Journal op-ed this week that a crackdown on ozone would cost $20 billion to $90 billion annually, making it "the single most expensive environmental regulation in U.S. history."  His concerns are echoed in a July 25 letter from 34 senators to EPA Administrator Jackson. But environmental groups, which were enraged by the last Administration's decision to adopt a standard that was less stringent than what EPA scientific advisors had recommended, say the health benefits are reason enough for Obama to change course now.  Several public health groups met privately with OMB on July 25 to review their position – click here. Background EPA agreed to reconsider the 2008 standards after the District of Columbia, New York and 13 other states, New York City, and several public health and environmental groups filed a lawsuit in 2008, arguing the standards were insufficient to protect public health. Mississippi and a coalition of industry trade groups also filed lawsuits challenging the standards as too stringent. Alabama filed an amicus brief supporting Mississippi (Mississippi v. EPA, D.C. Cir., No. 08-1200, motion to hold the lawsuits in abeyance filed 11/1/10). The agency has asked the court to hold the lawsuits in abeyance while it reconsiders the ozone standards. For more information, contact AGC’s Senior Environmental Advisor Leah Pilconis at pilconisl@agc.org.