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January 13, 2010 |
USEPA Proposes Stricter Ground-Level Ozone Standards On January 6, 2010, USEPA proposed stricter national ambient air quality standards (NAAQS) for ground-level ozone. In the two-part rule, USEPA proposed revisions to the 8-hour "primary" ozone standard designed to protect public health and, for the first time, established a distinct, seasonal "secondary" standard to protect the environment. USEPA proposed to set the primary standard at a level between 0.060 and 0.070 parts per million (ppm) measured over eight hours. USEPA proposed a separate secondary standard be set within the range of "7-15 ppm-hours," a new cumulative measurement standard based on W126, a cumulative exposure index. The new secondary standard would add weighted hourly ozone concentrations across all days in a three-month period of the year when ozone concentrations are highest. Three years of maximum data are averaged and compared to the standard. USEPA has a separate rule pending that would modify the ozone air quality monitoring network design requirements to better support the proposed revisions to ozone standards. See 74 F.R. 34525 (Jul. 16, 2009). After USEPA establishes or revises a NAAQS, USEPA and the states must ensure attainment with the new or revised NAAQS. The first step is to identify areas of the country that do not attain the new or revised NAAQS based upon monitored, or measured, air quality. USEPA is proposing an accelerated schedule for designating areas for the primary ozone standard and taking comment on whether to do the same for the secondary standard. Because the time period over which the proposed primary standard is measured is the same as the current standard, i.e., eight hours, states will be able to determine their attainment status very readily, an ability that would be enhanced by the proposed revisions to monitoring network design requirements. USEPA plans to adopt a final rule by August 2010 and make final area designations, based on recommendations by the states, effective by August 2011. Attainment demonstration State Implementation Plans (SIPs) would be due by December 2013. States' attainment demonstration SIPs must show that control measures that the state or federal government would impose would bring the area into attainment within the statutory time period, based upon air quality modeling. In the 1990 amendments to the Clean Air Act, Congress set forth a fairly detailed plan for states to attain the ozone standard. The Supreme Court has found that that detailed plan applies to new ozone NAAQS as well as to the 1-hour ozone standard in place in 1990. As a result, in addition to identifying which areas of a state are nonattainment, states must also propose classifications of nonattainment from marginal to extreme. Marginal nonattainment areas must attain the NAAQS within three years of the promulgation of the NAAQS, while extreme areas have 20 years to attain. States must require reasonably available control technology (RACT) and reasonably available control measures (RACM) from sources they have determined contribute to nonattainment of the ozone standard. Additionally, nonattainment New Source Review requirements apply in areas not attaining the NAAQS. Other measures affecting the transportation and government sectors also apply. The number of nonattainment areas will surely increase dramatically with the promulgation of an ozone standard within the range proposed by USEPA. For example, based on a preliminary review of the Illinois data from 2006-2008, it appears that all of the ozone monitors in the state could be nonattainment at the 0.060 ppm level. At an 0.070 ppm level, it appears likely that the number of counties nationally not attaining the ozone NAAQS would increase significantly. The previous ozone standards will remain in place until the designated effective dates. Along with the rule proposal, USEPA also extended the deadline for area designations for the 2008 ozone standards (0.075 ppm) by one year (until 2011). Therefore, if USEPA adopts different standards in 2010, the 2008 ozone standards, including those designations, would no longer apply. USEPA expects to base the final designations for the primary ozone standard on three consecutive years of air quality monitoring data from the years 2007-2009 or from 2008-2010, if available. The proposal is open for public comment for 60 days following publication in the Federal Register. We will send you a short update of the status of the proposal when it is published in the Federal Register. RECENT ENVIRONMENTAL PUBLICATIONS
USEPA Establishes Effluent Limitations Guidelines and New Source Performance Standards for Construction Sites," Environmental Update (December 3, 2009) ABOUT SCHIFF HARDIN LLP Schiff Hardin's diverse environmental practice advises clients engaged in a wide variety of industries and commercial endeavors such as electric generation, natural gas distribution and production, chemical manufacturing, auto and auto parts manufacturing, consumer goods manufacturing, real estate development and investments by financial institutions and equity investors. |