EPA Proposes Tighter Ozone NAAQS

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On January 6, 2010, the U.S. Environmental Protection Agency (EPA) proposed the strictest health standards to date for smog, also known as ground-level ozone. Citing evidence that smog causes a range of health problems, from aggravated asthma to increased risk of premature death in people with heart and lung disease, the EPA's proposal would tighten the existing National Ambient Air Quality Standard (NAAQS) for ground-level ozone from 0.075 ppm to between 0.060 and 0.070 ppm, measured over eight hours. If the proposed new standard is adopted, at least 8 West Virginia counties would be in violation of the standard, as would 32 Ohio counties, 32 Pennsylvania counties, and 21-24 Kentucky counties, depending on the stringency of the final standard. The proposal, which has not yet been published in the Federal Register, will be open for comment for 60 days. The EPA has indicated that it expects to finalize the new NAAQS by August 31, 2010.
 
The Clean Air Act requires the EPA to set primary and secondary NAAQS for six common air pollutants: ground-level ozone (smog), particulate matter, carbon monoxide, lead, nitrogen dioxide, and sulfur dioxide. The EPA is required to review the scientific information and the standards for each pollutant every five years, and to obtain advice from the Clean Air Scientific Advisory Committee (CASAC) on each review. The EPA last reviewed and revised the ozone standards in 2008 and set both the primary and secondary standards at a level of 0.075 ppm, despite CASAC's recommendation that such a level was not adequate to protect the public health. On September 16, 2009, the EPA announced it would reconsider this decision, consistent with a directive issued by Assistant to the President and Chief of Staff, Rahm Emanuel, in the early days of the Obama administration regarding review of new and pending regulations from the Bush administration.

The new ozone NAAQS would require states to develop additional means of reducing emissions of ozone precursors, primarily volatile organic compounds, in order to achieve the standard. A state's failure to do so can result in government sanctions, including the loss of federal highway funding. Major stationary sources seeking to locate or expand operations in nonattainment areas will be subject to nonattainment new source review, which will require offsetting emissions as well as the installation of potentially costly Lowest Achieveable Emission Rate control technology.

In addition to the "primary" or health-based standard, the EPA is also proposing to establish a distinct cumulative, seasonal "secondary" standard, designed to protect sensitive vegetation and ecosystems, including forests, parks, wildlife refuges and wilderness areas. The EPA is proposing to set the level of the secondary standard within the range of 7-15 ppm-hours. The proposed secondary standard is designed to protect sensitive vegetation from adverse effects associated with cumulative ozone exposures during the three months when daytime ozone concentrations are the highest.

Kathy Milenkovski
Huntington Center
41 South High Street, Suite 2200
Columbus, OH 43215
614.458.9792
kathy.milenkovski@steptoe-johnson.com


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Of Counsel
(614) 458-9792
Columbus, OH