Overview
On June 25, 1997, President Clinton endorsed a plan by the Environmental
Protection Agency (EPA) to tighten the National Ambient Air Quality Standards
(NAAQSs) for two air pollutants: ozone and particulate matter. EPA's final
action, under authority granted in the Clean Air Act (CAA), was signed by
EPA Administrator Carol Browner on July 16, 1997. These new NAAQSs
will result in a significant number of areas of the country being redesignated
as non-attainment areas, i.e., out of compliance with the CAA. A non-attainment
redesignation forces state and local environmental regulators to require
industry to adopt additional air emissions controls. Reaction to the EPA's
action has been mostly negative. The primary concerns are that the scientific
evidence is not compelling, and that the incremental benefits to air quality do
not outweigh the incremental costs of implementation.
The New Ozone NAAQS
Ozone in the lower atmosphere is a primary constituent of urban smog. Ozone
is formed by a reaction of nitrogen oxides (NOx) and volatile organic
compounds (VOCs) in the presence of heat (generally above 90 degrees F) and
sunlight. Regulatory agencies control ozone levels by regulating sources of
NOx and VOCs. EPA's current NAAQS for ozone in the lower atmosphere
is 0.12 parts per million, measured over a one-hour time period, which an area
can exceed only once a year on average. The new NAAQS for ozone will be 0.08
parts per million, averaged over an eight-hour time period, which an area can
exceed four times in any three-year period. A review of ambient air quality data
in EPA's database for 1993 through 1995 shows that 106 counties in the United
States did not attain the ozone NAAQS. Preliminary estimates indicate that as
many as 334 counties will not attain the new ozone NAAQS. A non-attainment
designation requires regulatory agencies to regulate existing sources of
NOx and VOCs and restrict development of new sources.
OTAG Completes its Recommendations to EPA
Concurrent with EPA's tightening of the ozone NAAQS, members of the Ozone
Transport Assessment Group (OTAG), a group consisting of regulators, industry
representatives, and environmental groups, have been meeting for the last two
years to develop a strategy to reduce ozone pollution in the 37 states
comprising the eastern half of the United States. OTAG is charged with
addressing the issue of air pollution drifting from one region of the country to
another, known as transport. On June 17, 1997, OTAG approved a series of
recommendations by a 32-5 vote of the member states. EPA is currently
considering how to implement OTAG's recommendations. One of EPA's more
publicized options is the use of regional partnerships, comprised of groups of
states, to determine the "areas of influence" where control measures are
required to bring downwind ozone non-attainment areas ("areas of impact") into
attainment. EPA is also considering proposing an overall NOx
emissions cap and establishing an emissions trading program for NOx
throughout the OTAG region. These control strategies would be incorporated into
each State Implementation Plan (SIP). In the fall of 1997, EPA will announce its
decision in a proposed rulemaking, and implementation is expected by the year
2000. The expectation is that NOx emissions throughout the 37 state
OTAG region will be targeted for reduction, principally from the electric
utility industry but also from industries which burn fossil fuels. Potentially
affected sources of NOx emissions should begin to plan for the costs
of compliance.
The New Particulate Matter NAAQS
EPA is also increasing regulation of particulate matter (PM). EPA currently
regulates PM that is less than 10 microns in diameter (PM-10). This PM-10 NAAQS
will remain in effect. However, EPA is planning to set an additional NAAQS for
fine particles, i.e., particles less than 2.5 microns in diameter (PM-2.5). The
PM-2.5 NAAQS will limit acceptable daily ambient concentrations to 65 micrograms
per cubic meter and limit annual average concentrations to 15 micrograms per
cubic meter. The current lack of a nationwide monitoring network for PM-2.5
precludes an estimate of the potential number of areas that will not attain the
PM-2.5 NAAQS.
Implementation
The ambient air quality data in EPA's database indicates that the new
eight-hour ozone NAAQS will affect many counties in the Midwest. For
Pennsylvania, in addition to the existing ozone non-attainment areas, the
following counties are also expected to fall into non-attainment: Beaver, Berks,
Blair, Cambria, Dauphin, Erie, Lackawanna, Lancaster, Lehigh, Luzerne, Mercer,
Northampton, Perry, Washington, Westmoreland, and York. In Massachusetts, the
new non-attainment areas will likely include: Barnstable, Berkshire, Bristol,
Essex, and Plymouth counties. In Florida, Escambia County will likely not attain
the new ozone NAAQS. In an attempt to subdue critics of the proposed new NAAQSs,
EPA has issued an "Implementation Strategy" designed to show the flexibility it
plans to extend to states, local governments, and industry in achieving
attainment. In that strategy, EPA has stated that implementation of OTAG's
recommendations, principally the reductions of NOx emissions from the
Midwestern utility industry, will achieve the emissions reductions necessary to
bring many of the newly designated ozone non-attainment areas into attainment,
and thus avoid the necessity for any local air pollution controls. If local
controls are required for the new ozone NAAQS, none will be required before
2004.
For PM-2.5, EPA will allow five years to build a nationwide monitoring
network to gather and analyze the data needed to designate areas. Once the data
is gathered, it will probably take another five years for the development and
implementation of control strategies at the state and local level.
Conclusion
The delay in implementation of control measures to attain the new ozone and
PM-2.5 NAAQSs does not diminish the significance of EPA's action. Regardless of
the future costs of compliance, EPA will never act to weaken a NAAQS.
Furthermore, public opinion on environmental issues will make it extremely
difficult, if not impossible, for Congress to weaken an air quality standard
that EPA deemed necessary to protect the public health. Notwithstanding delays
for anticipated legal challenges, sources of PM-2.5 will not be affected for
nearly a decade. However, the reduction of NOx emissions from the
utility industry, an industry also being impacted by partial deregulation, and
other industries which emit NOx from the burning of fossil fuels, is
seen by EPA as essential to bring many of the newly designated downwind ozone
non-attainment areas into attainment. These sources of NOx emissions
will likely be impacted in the next two to five years.
This Environmental Update, by members of the firm's Philadelphia
office, is written to inform readers on matters affecting the environmental
industry and is not intended to be legal advice. For more information, please
contact one of the following attorneys in the firm's Environmental Department:
Philadelphia: John P. Judge at 215/575-6037 or James D.
Cashel at 215/575-6070, 1700 Market Street, Suite 3232, Philadelphia, PA
19103, Fax: 215/575-6015; Washington, D.C.: Sean T. Connaughton at
202/659-6668, 1250 24th Street, NW, Washington, DC 20037, Fax: 202/659-6699; or
Pittsburgh: Richard S. Wiedman at 412/566-5967, 600 Grant Street,
42nd Floor, Pittsburgh, PA 15219, Fax: 412/566-6099.
