EPA to Enforce 2008 Ozone Standard

Administrator Lisa Jackson, testifying before the House Energy and Commerce Committee, revealed the EPA will begin to implement the 2008 8-hour ozone standard of 75 parts per billion (ppb). The EPA also released a memo outlining the implementation process that includes a table listing 52 areas where air quality fails to meet the 2008 standard.

Until recently, the 2008 standard had been suspended because of the EPA's intention to introduce a more stringent measure, and the 1997 standard of 84 ppb prevailed. On September 2, 2011, President Obama decided to delay updating new ozone standards until 2013, when EPA is required to reconsider the standards. Since the delay, there has been uncertainty as to which standard would now apply since the 2008 standard has not been implemented and there are a variety of lawsuits challenging it.

The EPA’s September 22nd memo clarifies outlines the EPA’s intended actions as well as the anticipated timeline. “EPA is proceeding with initial area designation under the 2008 standard, starting with the recommendations states made in 2009 and updating them with the most current, certified air quality data. We expect to issue our proposed changes to the states’ recommendations (the “120-day letters”) later this fall. We will quickly initiate and complete a rulemaking to establish nonattainment area classification thresholds so that we can finalize the designations.”

In March 2009, then Governor Doyle recommended all Wisconsin counties be designated as attainment for the 2008 standard, and in the alternative only those townships not meeting the standards be designated as nonattainment. Limited air quality data is available on the DNR’s Air Monitoring website. These documents, combined with the EPA’s potential classification table provides some insight into what the EPA’s attainment designations will look like.

In the table, the Sheboygan area is the only Wisconsin area listed as a marginal nonattainment area. This same area is in the process of being classified as attainment by the EPA for the 1997 standard.

The EPA notes in its memo that a marginal classification requires some but not all additional restrictions under the Clean Air Act. The Clean Air Act prohibits new or the expansion of existing industrial facilities having the potential to emit emissions above specified thresholds in nonattainment areas unless: emissions are offset and the most stringent controls installed. In addition, further regulatory burdens are often imposed on a broad range of sectors, including transportation, industrial, and commercial sources.

This post was authored by GLLF staff attorney Emily Kelchen.