EPA Implements the “New” 2008 Ozone Standard

The Environmental Protection Agency (EPA) has just announced final designations of areas in the United States that meet or do not meet the 2008 air quality standards for ground-level ozone, known as smog. Ozone is one of the six pollutants considered harmful to public health and the environment for which the federal Clean Air Act requires the EPA to set national air quality standards. With the assistance of a Congressionally created scientific advisory board called the Clean Air Act Scientific Advisory Committee (CASAC), the EPA is also required to re-examine the science every five years and determine whether a standard needs to be revised.

Since first established in 1971, ozone standards have become increasingly more stringent as more scientific information has demonstrated that exposure to ozone, even at low concentrations, has adverse health effects, including a range of serious respiratory illnesses and increased premature death from heart or lung disease.

Until 2008, the applicable 8-hour ozone standard, promulgated in 1997, was 85 parts per billion (ppb). Under that standard, the Houston-Galveston-Brazoria (HGB) area was classified as “moderate nonattainment” and required to achieve attainment of the standard no later than June 15, 2010. In 2007, when it became apparent that the HGB area would not meet the standard by that date, Texas requested, and was granted, a voluntary reclassification of the HGB area from “moderate” to “severe,” with a new attainment date set at no later than June 15, 2019.

Despite the required five-year-review, the Bush administration delayed revising the 1997 ozone standard until 2008. When the standard was finally reviewed and revised in March, 2008, the EPA proposed a standard of 75 ppb, which was less stringent than the 60-70 ppb range that the CASAC had recommended.

Soon after President Obama took office, the EPA withdrew the Bush administration standard and proceeded to promulgate a more stringent one. This action effectively left the outdated 1997 ozone standard in place since states were not required to implement the withdrawn standard. During this process, after being asked by the EPA to analyze the scientific information once more, the CASAC again recommended a standard in the 60-70 ppb range. After considering the relevant science and all comments submitted on that proposal, the EPA determined that an ozone standard of 70 ppb was necessary to protect public health and the environment.

Political, media and litigation firestorms immediately erupted over this proposal, coincidentally contemporaneous with the beginning of the 2012 national election cycle in which President Obama faces a possibly tough race for re-election. Perhaps with these circumstances in mind, and the wide-spread debate over regulatory reform and job creation, last September the President shocked environmentalists, public health advocates and even the EPA by ordering that any new ozone standard must wait until 2013.

As a result, the EPA reinstated the 2008 8-hour ozone standard of 75 ppb and proceeded with implementation of that standard. To determine nonattainment area designations for the 2008 standard, the EPA indicated that it planned to use the recommendations states had previously made in 2009, updated by the most current, certified air quality data. While the EPA did not request states to submit updated designation recommendations, it provided the opportunity to do so. In October, 2011, Texas submitted an updated designation recommendation for the HGB area based on the assessment of 2008-2010 air quality data, recommending that only Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller Counties, the currently designated HGB nonattainment area, continue to be designated.

After considering the ozone designation recommendations from Texas and other relevant technical information, including 2008-2010 air quality data, the EPA initially announced its intention to modify Texas’s recommended area designations and boundaries for the HGB area by including Matagorda County in the nonattainment area designation. Even though Matagorda County does not have monitors currently showing it in violation of the 2008 ozone standard, the EPA stated that its proposed inclusion into the nonattainment area was due to ozone-producing emissions in, and the wind-driven transport of such emissions from, the County that contribute to a violation of the standard in the nearby HGB area. The TCEQ, industry trade associations, and a number of Matagorda County officials, businesses, industries and other community groups opposed inclusion in the nonattainment designation, asserting that the County has no adverse air pollution effects on the HGB area.

In its May 1, 2012 announcement of final designations of non-attainment areas for the 2008 8-hour ozone standard, the EPA determined that 45 areas across the country are not meeting the 2008 standard based on the most recent certified air quality data. Almost all of these areas already have programs in place to improve air quality because they did not meet the 1997 ozone standards, and the EPA expects that most areas will be able to meet the 2008 standard as a result of recent and pending regulations.

Despite initially announcing its intention to include Matagorda County in the HGB nonattainment area designation, the final designation did not do so. The currently designated HGB nonattainment area of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller Counties remained unchanged. Interestingly, the most significant impact of Matagorda County’s inclusion would have likely fallen on the controversial and highly opposed White Stallion coal/coke-fired power plant proposed to be built near Bay City. As a new major source of ozone-producing emissions, the power plant would have been required to demonstrate that its pollutant emissions will not cause or contribute to increased ozone levels in the HGB area. Given that emissions from White Stallion will increase Matagorda County’s ozone-producing emissions by several factors, it was expected that this required demonstration would have been difficult for White Stallion to make.

As indicated above, in 2007 the HGB area had been granted a voluntary reclassification from “moderate” to “severe” nonattainment based on the 1997 standard, with a new attainment date set at no later than June 15, 2019. In implementing the 2008 standard, the EPA had initially indicated that it was considering classifying areas that had previously requested voluntary reclassification to a higher classification under the 1997 standard at the same higher classification for the 2008 standard. However, Texas made it clear that it did not agree that the previous voluntary reclassification for the 1997 standard was appropriate for, or applied to, the 2008 standard, and planned to submit a formal request to designate the HGB area as "marginal" for the 2008 standard. The EPA’s May 1 announcement of final designations of non-attainment areas classified the HGB area as “marginal.” Each area that is designated as not meeting the 2008 standards is assigned a classification based on how close they are to meeting the standards. A “marginal” classification means that the HGB area is closest to meeting the standards. Most of the nonattainment areas (36 out of 45) for the 2008 standards are classified as “marginal,” and the EPA expects these areas should be able to meet the standards within three years, usually as a result of recent and pending federal pollution control measures.

The Clean Air Act requires the EPA to review and, if necessary, revise air quality standards every five years to ensure that they protect public health with an adequate margin of safety. Thus, the EPA will be reviewing the just-implemented 2008 ozone standard again in 2013.

More information about the 2008 ozone standard attainment designations can be found here.

Blog Category: