States Have One Year Less to Comply With Ozone Standards Due to Court Decision

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By Patrick Ambrosio

Jan. 8 — Areas that failed to meet the 2008 ozone standards will effectively have one year less than originally expected to demonstrate attainment after a federal appeals court in December ruled that the Environmental Protection Agency unlawfully extended the compliance deadline, state air officials say.

Representatives of several state air agencies said it's still too soon to determine the implications of the decision by the U.S. Court of Appeals for the District of Columbia Circuit, but some officials raised concerns about the effects of the compliance deadline change on areas counting on yet-to-be implemented Tier 3 fuel standards to move toward attainment with the 75 parts per billion ozone standard.

The D.C. Circuit in December found that the EPA didn't have the statutory authority to extend the compliance period for the 2008 standards and vacated the EPA's decision to set the compliance period as beginning Dec. 31, 2012.

Judge Sri Srinivasan, author of the court's majority opinion, said all textual indications from the Clean Air Act point to a requirement that the EPA begin attainment periods on the date that area designations went into effect, which was July 20, 2012, for the 2008 ozone standards (NRDC v. EPA, 2014 BL 361062, D.C. Cir., No. 12-1321, 12/23/14).

The EPA told Bloomberg BNA in an e-mail that the agency is still evaluating the court's decision.

States Lose One Ozone Season

State air agency representatives told Bloomberg BNA during the week of Jan. 5 that the decision will most immediately affect marginal nonattainment areas, which originally were told by the EPA that they had to demonstrate attainment by Dec. 31, 2015, three years after the beginning of the compliance period.

Based on an attainment period of July 20, 2012, those areas will now have to demonstrate compliance by July 20, 2015—about five months earlier.

Areas that fail to meet their attainment deadline are generally “bumped up” to the next nonattainment classification, so marginal areas that fail to meet their deadline would be reclassified as moderate areas. Attainment status is based on a three-year average of the fourth highest, daily maximum eight-hour ozone concentration measured each year.

Paul Miller, deputy director of the Northeast States for Coordinated Air Use Management (NESCAUM), told Bloomberg BNA that because attainment is shown based on data from a full summer ozone season, states won't be able to use 2015 data to demonstrate compliance by July 2015 for marginal areas. NESCAUM is a nonprofit association of eight air quality agencies in the Northeast: the six New England states, New York and New Jersey.

Lisa Wheeler, a spokeswoman for the Texas Council on Environmental Quality, told Bloomberg BNA in an e-mail that the five-month shift in compliance deadlines will effectively require nonattainment areas to comply with the 2008 ozone standard a “full ozone season earlier” than originally planned.

“In order to comply by July 20, an area would need to rely on ozone measurements made in the previous year,” Wheeler said.

Greater Impact on Moderate Areas

While the deadline for marginal nonattainment areas is approaching, the effects of the decision may have a greater effect on states with nonattainment areas classified as moderate or worse, some officials predicted.

Miller of NESCAUM said states with moderate attainment areas or worse are in a “little bit more of a pickle” as a result of the decision. While states that only have marginal nonattainment areas don't have to develop state implementation plans demonstrating how they will attain national ambient air quality standards, states must submit plans describing how they will bring moderate, serious, severe and extreme areas into attainment, he said.

Miller noted that as a result of the decision, moderate nonattainment areas are essentially losing an entire year in which they had planned to move toward reducing emissions of ozone precursors.

Wheeler of the TCEQ noted that on Dec. 10, prior to the court's decision, Texas proposed a revised state implementation plan based on a Dec. 31, 2018, attainment deadline for the Dallas-Fort Worth moderate nonattainment area. The state has not yet performed modeling for a revised attainment deadline for Dallas-Fort Worth, according to Wheeler.

Tier 3 Concerns Cited

Two officials stressed that the changed deadline will mean that states with moderate nonattainment areas will not be able to rely as much on expected reductions from the EPA's Tier 3 gasoline sulfur standards.

The EPA, beginning in 2017, will require refiners to reduce the annual average amount of sulfur in gasoline to 10 parts per million. The current standard is 30 ppm.

George “Tad” Aburn, director of the air and radiation management administration of the Maryland Department of the Environment, told Bloomberg BNA that the Tier 3 program is the most significant ongoing program for reducing emissions of nitrogen oxides, an ozone precursor. He said that Maryland is in “pretty good shape” due to state nitrogen oxide reduction programs, but he described the federal Tier 3 standards as “one of the most important programs” for improving air quality in Baltimore, which is designated as a moderate nonattainment area for the 2008 ozone standards.

As a result of the court decision, Baltimore and other moderate nonattainment areas will need to demonstrate attainment based on 2015, 2016 and 2017 data. Only one of those years, 2017, will have the benefit of reductions from the Tier 3 sulfur standard, Aburn said.

Miller said it usually takes a relatively long time to see emissions reductions from mobile sources of pollution because it takes longer for the vehicle fleet to turn over; however, low-sulfur gasoline will have an “immediate impact” on air quality.

Removing sulfur from gasoline improves the effectiveness of a motor vehicle's catalytic converters, even in existing vehicles.

Extension Requests Being Considered

At least one state is planning to request a one-year extension for meeting the 2008 ozone standards, which is provided for under the Clean Air Act.

Heidi Griesmer, acting deputy director of communications at the Ohio EPA, told Bloomberg BNA that the state plans to request an extension for the marginal nonattainment area that includes Cleveland.

The 2012-2014 three-year average for that nonattainment area is 78 ppb, Griesmer said. The state expects that once the data from 2012, the highest data point of the three, is no longer considered and is replaced by 2015 data, the Cleveland area will meet the 75 ppb standard.

Ohio has “gotten indications” from the EPA that the state would be granted a one-year extension, according to Griesmer. The two other nonattainment areas in Ohio have achieved the standard based on 2012-2014 data, but they have not yet been redesignated by the EPA, she said.

Aburn said Maryland also is looking at the possibility of an extension request for counties that are part of the Philadelphia and Washington, D.C., marginal nonattainment areas. Those areas are on a path to get near the 75 ppb standard.

“We're not quite there, but we're close,” he said.

However, Aburn said Maryland is “probably not as driven” to request an extension as other states might be because there is not a big practical difference between a marginal and moderate designation for Maryland.

“We really move forward as fast as we can no matter what,” Aburn said. “We've already done a lot, and we dot it as quickly as we can.”

Effects Dependent on Weather

Miller said the actual effect of the revised deadline can't really be determined because of how weather-dependent annual ozone data are. Year-to-year weather variability has a much greater influence on ozone levels than emissions reductions, he said.

If 2015 turns out to be a “really bad year” for ozone, some states could end up demonstrating attainment based on 2012-2014 data that wouldn't have done so if 2015 data were factored in, according to Miller.

“That could let some folks off the hook,” Miller said, while also acknowledging that the deadline change could result in the loss of a “good year of data” depending on 2015 weather.

To contact the reporter on this story: Patrick Ambrosio in Washington at

To contact the editor responsible for this story: Larry Pearl at