EnviroNotes

Fourteen States, Two Cities, and Five Environmental Health Groups Challenge U.S. EPA’s Revised Ozone Standards

By Jennifer K. Thompson, Partner, Environmental Law Department, Bingham McHale LLP

On May 27, 2008 two separate groups filed Petitions For Review of the United States Environmental Protection Agency’s (“U.S. EPA”) National Ambient Air Quality Standards (“NAAQS”) for Ozone (73 Fed. Reg. 16436 (March 27, 2008) with the D.C. Circuit Court of Appeals demanding stricter standards. One group consists of the following fourteen states and two cities: New York; California; Connecticut; Delaware; Illinois; Maine; Maryland; Massachusetts; New Hampshire; New Jersey; New Mexico; Oregon; Pennsylvania (through its Department of Environmental Protection); Rhode Island; New York City; and the District of Columbia. The other group, represented by Earthjustice is comprised of: the American Lung Association; Environmental Defense Fund; Natural Resources Defense Council; National Park Conservation Association; and the Appalachian Mountain Club. Additionally, the State of Mississippi and a coalition of industry groups, the Ozone NAAQS Litigation Group, filed separate petitions appealing the standards because they believe the standards are too strict.

At issue are the 2008 revisions to the NAAQS standards for ozone. The NAAQS limits the amount of ozone that can be in the air. The new standards reduce the primary standard, designed to protect public health, from 0.08 parts per million (“ppm”) to 0.075 ppm and also set the secondary standard, aimed at protecting public welfare, at 0.075 ppm. Allegations from the Petitioner’s seeking stricter standards include that U.S. EPA disregarded the advice of the Clean Air Scientific Advisory Committee in setting the standards.

Ozone is not usually emitted directly into the air, but forms when oxides of nitrogen (“NOx”) and volatile organic compounds (“VOC”) react in the presence of sunlight. Major sources of NOx and VOC include: industrial facilities and electric facilities, motor vehicle exhaust, gasoline vapors, and chemical solvents.

Currently, the 1997 standards and the implementation rules for those standards will remain in place until rules addressing the transition from the 1997 standards to the 2008 standards are promulgated. Additionally states are required to continue to develop and implement state implementation plans (“SIPs”) for the 1997 standards. Pursuant to the Clean Air Act, Indiana must submit its attainment/nonattainment recommendations for the 2008 ozone standards to the U.S. EPA no later than one year after the promulgation of the standards (by March 12, 2009). Once the designations are promulgated (EPA has two years to promulgate designations), Indiana will have to submit a new SIP which sets forth Indiana’s plan to meet the 2008 ozone standards. Said SIPs must be submitted within three years of promulgation or such shorter period as the U.S. EPA’s Administrator prescribes. However, this litigation could effect this schedule.

This matter is entitled State of New York, et al v. EPA and has been assigned Cause No. 08-1202 by the D.C. Circuit Court of Appeals.

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