Jackson Says EPA Required to Implement Bush Administration Standard for Ozone

Environment Reporter™ keeps you fully up to date on rapidly changing developments in courts, Congress, federal agencies, state legislatures, industry, and environmental organizations.

By Jessica Coomes and Andrew Childers

The Environmental Protection Agency said Sept. 22 it will implement the Bush-era ozone air quality standard of 0.075 part per million that has been blocked by the Obama administration.

Administrator Lisa Jackson told a House Energy and Commerce panel that EPA is legally required to implement the standard, which was set in 2008 under the Bush administration and which Jackson previously described as legally indefensible.

Gina McCarthy, EPA assistant administrator for air and radiation, sent letters to states Sept. 22 saying the agency intends to finalize nonattainment designations by mid-2012. The agency projects that 52 areas will not meet the requirements of the 0.075 ppm standard. (See related article in this issue.)

EPA had been working on a reconsideration of the Bush-era standard, but President Obama announced Sept. 2 that EPA would drop its reconsideration.

Jackson told the House Energy and Commerce Subcommittee on Oversight and Investigations on Sept. 22 that she had recommended setting the primary, health-based standard for ozone at 0.070 ppm, which was the least stringent standard EPA was considering.

The implementation process for the 0.075 ppm standard will be done “in a common-sense way, minimizing the burden on state and local governments,” she said.

Jackson Respects Obama's Decision

In January 2010, EPA announced it would reconsider the 0.075 ppm (75 parts per billion) national ambient air quality standard and proposed a primary, health-based standard in a range between 0.060 ppm and 0.070 ppm, which was in the range recommended by the EPA Clean Air Scientific Advisory Committee (75 Fed. Reg. 2,938; 41 ER 61, 1/8/10).

Under the Obama administration, EPA decided to reconsider the Bush-era standard instead of defending it in court.

However, Obama announced the administration would drop the reconsideration, saying he did not want to increase regulatory burdens. Instead, he said, EPA will wait until the next scheduled five-year review to reassess the standard; EPA now expects to propose the standard in October 2013 and finalize it in July 2014 (42 ER 1965, 9/9/11).

Jackson told the subcommittee she respected the president's decision.

Because the 2008 ozone standard was never put in place, the standard established in 1997 is currently in effect. The 1997 standard is 0.08 ppm, but due to rounding, that level allows ozone concentrations as high as 0.084 ppm.

Clean Air Watch President Frank O'Donnell told BNA that implementing the 2008 standard “is the only sensible thing EPA can do.”

“Anything that makes progress toward the 75 [ppb] standard would also make progress toward a tougher standard,” he said.

EPA Considered Range of Standards

Industry groups and congressional Republicans had been critical of the EPA's ozone reconsideration, and much of the criticism focused on the costs of implementing a 0.060 ppm standard, which was the most stringent in the range EPA said it was considering.

Opponents widely cited EPA's calculations that compliance costs for implementing a 0.060 ppm standard would be as much as $90 billion per year. Implementing a 0.070 ppm standard would cost industry up to $25 billion annually, EPA has said.

By comparison, EPA has said annual implementation costs for a 0.075 ppm standard would be $8.8 billion.

In addition, the Business Roundtable said in July that if the 0.060 ppm standard were to be enacted, 108 monitored counties would meet the standard, and 628 counties would be in nonattainment. By comparison, the group said 670 counties could meet the 2008 ozone standard of 0.075 ppm and that 66 would not. Figures for a 0.070 ppm standard were not included (42 ER 1630, 7/22/11).

Howard Feldman, director of regulatory and scientific affairs at the American Petroleum Institute, told BNA a 0.070 ppm standard is less stringent than what many industries had thought EPA would favor. However, that standard still would have increased the number of areas not in attainment.

“It certainly would have created more nonattainment areas that were not necessary at this time with this discretionary review,” he said.

Legal Challenge Continues

EPA's decision to halt its reconsideration process has renewed the focus on legal challenges to the 2008 ozone standard (Mississippi v. EPA, D.C. Cir., No. 08-1200, motion filed 9/12/11).

Several states and environmental groups sued EPA in the U.S. Court of Appeals for the District of Columbia Circuit, arguing the 2008 standard was insufficient to protect public health. Other states, including Mississippi, and industry groups filed lawsuits opposing the standard as too stringent.

The case has been held in abeyance while EPA undertook its reconsideration.

EPA filed a motion Sept. 12 asking the court to set a schedule for parties to file briefs.