What’s the Status of the 2015 Ozone NAAQS and What Regulatory Relief Options Are Available for States Implementing Ozone Standards?

On June 6, 2017 U.S. EPA Administrator Scott Pruitt proposed extending the deadline for promulgating the initial area designations for the 2015 ozone National Ambient Air Quality Standards (NAAQS) citing “insufficient information.”  The “insufficient information” included: fully understanding the role of background ozone levels, appropriately accounting for international transport, and timely consideration of exceptional events.  On June 28, 2017, the U.S. Environmental Protection Agency (U.S. EPA) followed up with a formal notification in the Federal Register of a one-year delay for the initial area designations for the 2015 ozone NAAQS.  Several States petitioned the U.S. Court of Appeals for the DC Circuit citing that over 1,100 ozone ambient monitoring stations were certified and submitted data to the U.S. EPA countering the “insufficient information” claim.  Additionally, the petition citied that background ozone levels, international transport, and exceptional events are all immaterial to the initial designations and are associated with the next phase in the process – the implementation phase.  Avoiding legal ramblings, U.S. EPA withdrew the one-year delay notice on August 2, 2017.

Then on August 14, 2017 the U.S. EPA presented six “regulatory relief” options that could be used by States related to implementing the 2015 ozone NAAQS.  U.S. EPA was required to provide these regulatory relief options as a result of the Consolidated Appropriations Act, 2017, which expressed concern about the timing of the 2008 and 2015 ground level ozone NAAQS.  The 2008 standard of 75 parts per billion (ppb) was not implemented until February 2015, only eight months before the October 2015 revised standard of 70 ppb.  Thus, states potentially must address the two standards at the same time.  A summary of the regulatory relief approaches with bases in the Clean Air Act (CAA) and in the implementing regulations are discussed below.

Option 1: Air Monitoring Data Exclusion

CAA Section 319

One regulatory relief option in the CAA is the exclusion of air monitoring data that exceeds the ozone NAAQS but is affected by an exceptional event and would cause a nonattainment designation.  Exceptional events are described as a natural event or an event caused by humans that is not preventable.  An example of an exceptional event is a wildfire.  If a state can demonstrate that an exceptional event resulted in monitoring data that exceeded the NAAQS, then a state can request U.S. EPA exclude this data from calculations used to determine compliance with the NAAQS.  Excluding this data could lead to a lower classification and thus, fewer CAA requirements, or designation of an area as “unclassifiable/attainment.”

Option 2: Nonattainment Boundary

CAA Section 107(d)

A second regulatory relief option is the creation of a nonattainment boundary for certain areas.  Nonattainment areas typically include both the area not meeting the NAAQS and nearby areas that contribute to an area exceeding the NAAQS.  In some areas, there are no permanent sources of ozone precursors, and in other locations, sources near the nonattainment area do not significantly contribute to nonattainment.  For these two types of areas, a state may propose to U.S. EPA that a nonattainment area include less of the surrounding area contributing to nonattainment.  This boundary would also be applicable for areas at high elevations with no permanent sources.

Option 3: Rural Transport Area

CAA Section 182(h)

Another approach under the CAA is treating a nonattainment area as a marginally nonattainment area, which is beneficial as the area would have fewer CAA requirements.  To be treated as a marginal nonattainment area, the nonattainment area must not have a significant source of VOC and NO_X, and must not be located near a Metropolitan Statistical Area (MSA).  If approved as a marginal nonattainment area, the area would not require an attainment plan or NAAQS demonstration.

Option 4: International Transport

CAA Section 179B

A fourth approach is the evaluation of nonattainment areas that are affected by international transport of pollutants or precursors.  States, with U.S. EPA’s approval, may have an attainment plan that doesn’t demonstrate attainment in areas affected by international transport.  Additionally, areas affected by international transport will not be reclassified and thus will not be subject to planning and control requirements required under a higher nonattainment classification.

Option 5: Permit Grandfathering

Permit grandfathering is part of U.S. EPA’s Prevention of Significant Deterioration (PSD) permit program, as well as U.S. EPA-approved state PSD programs, and applies to certain eligible preconstruction permits.  The provision was created so that revised ozone NAAQS designations would not delay the processing of pending permit applications.  Only permits with either a complete application as determined by U.S. EPA, or a public notice for a draft permit or determination had been published by the established date, are eligible for this provision.  The provision does not release projects from complying with PSD requirements, but allows projects to not have to demonstrate that it would not cause or contribute to a violation of the 2015 ozone NAAQS.

Option 6: Revoking Prior Standards

The final option is for U.S. EPA to revoke the 2008 ozone NAAQS, which is an approach that has been used in the past.  In implementing the 2008 ozone standards, U.S. EPA revoked the 1997 ozone NAAQS one year after the effective date of the designations.  For revoking the 2008 ozone NAAQS, there are two options.  The first option is to revoke the NAAQS in all areas one year after the effective date of designations for the 2015 ozone NAAQS.  This is similar to the approach U.S. EPA took in revoking the 1997 ozone NAAQS.  Anti-backsliding requirements for nonattainment areas that haven’t attained the 2008 ozone NAAQS would be established with this option.  The second option is to revoke the 2008 ozone NAAQS in areas in attainment with the 2015 ozone NAAQS.  Thus, the 2008 ozone NAAQS would still apply in nonattainment areas until the area is designated as attainment.

In addition to the six regulatory relief options summarized above, U.S. EPA plans to evaluate additional options.  We will be watching the development of these options but if you have any questions in the meantime, please contact Dan Dix at (610) 933-5246, extension 118 or me at (610) 933-5246, extension 167.