Obama-Era Ozone Rule Remains in Place, for Now

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By Patrick Ambrosio

The Trump administration’s review of the 2015 ozone standards hasn’t changed looming implementation deadlines and existing permitting requirements for industry, at least not yet.

The Environmental Protection Agency, in a successful motion to halt litigation over the regulation, announced it is assessing whether to proceed with a formal reconsideration of the 70 ppb standards. But unlike the Clean Power Plan and some other major Obama-era environmental regulations being reopened by the Trump administration, the ozone standards haven’t been stayed by a court. That means the rule, which includes state planning deadlines and additional permitting requirements for new industrial facilities, is still on the books.

An EPA spokeswoman told Bloomberg BNA in an email that the agency is engaged in a process to determine if the ozone standards are “in line with the pro-growth directives” of the Trump administration. The agency’s court filing also said it is assessing the ozone rule to see if it is subject to a March executive order directing the agency to weigh reconsideration of all rules that potentially burden domestic energy production.

The EPA review of the ozone rule won’t immediately change anything states are doing to implement the stricter standards, according to Bill Becker, executive director of the National Association of Clean Air Agencies. That association represents air regulators in 40 states, the District of Columbia and over 100 metropolitan areas.

“We have to assume that the standard is in place until EPA or the courts determine that it is not in place,” Becker told Bloomberg BNA. “We haven’t seen any evidence of that changing.”

The EPA hasn’t said how long its review of the ozone rule—which might not result in a full rulemaking process on reconsideration—may take. The Obama administration undertook a similar effort to review and eventually reconsider the 2008 ozone standards, a process that lasted two and a half years and resulted in the EPA scrapping its reconsideration.

Permitting Requirements to Continue

While the EPA isn’t required until later this year to identify which regions of the U.S. meet the standards and which don’t, the Obama-era ozone standards are already factored into Clean Air Act permits granted to industrial facilities.

The EPA’s new source review permitting program requires power plants, factories and other new and modified industrial facilities to obtain preconstruction permits, with different requirements in areas that do and don’t meet national ambient air quality standards. Prior to the designations process, the permitting program still requires new and modified industrial facilities to conduct certain analyses that take the new standard into account, according to Megan Berge, a partner at Baker Botts LLP.

“That will continue regardless of what’s going on in a rulemaking,” Berge told Bloomberg BNA.

Berge said that the Trump administration’s ongoing review leaves industry with two options on permitting: moving ahead on the permitting of new facilities with the additional requirements under the 2015 ozone standards or potentially wait several years for the Trump administration to complete a review and reconsideration process that could ultimately result in a less stringent regulation. Berge, based in Washington, D.C., has a regulatory practice that includes work for utilities, refineries and cement plants,

EPA Has Decisions to Make

Implementing the 2015 ozone standards also includes various deadlines for the EPA and states to take action to reduce pollution levels, all of which are still in place despite the ongoing administration review.

Public health and environmental advocates will “vigorously oppose” any effort by the Trump administration to weaken the ozone standards, according to John Walke, director of the climate and clean air program at the Natural Resources Defense Council. Walke, in an interview conducted after the EPA asked the court to delay oral arguments on the standards, told Bloomberg BNA that advocates also would insist that the agency continue to fulfill its legal obligations in implementing and enforcing the ozone regulation.

The process for implementing the ozone standards calls for the EPA to make an important decision later this year: identify “area designations” of places that do and don’t meet the standards. Regions that don’t meet the standards are subject to strict permitting requirements on new industrial development.

Last year, parts of at least 22 states were identified as unlikely to meet the standards, according to a 2015 Bloomberg BNA survey of state environmental agencies. In order for the EPA to complete the designations process as scheduled by Oct. 1, the EPA would need to inform states by June of any intended modifications to those state recommendations, according to Clint Woods, executive director of the Association of Air Pollution Control Agencies. That association represents 20 state air pollution control agencies.

The EPA declined to comment on whether it was still working to complete the designations process as scheduled. The Clean Air Act includes language in Section 107 that could offer the EPA an opportunity to extend the designations deadline by one year, until October 2018.

Plans Due in 2018

Even if the EPA did extend the designations process by a year, that wouldn’t affect a key 2018 deadline for submitting state plans for implementing the new ozone standards and addressing emissions that cross state lines, according to Berge.

Woods told Bloomberg BNA that state agencies were expecting various kinds of assistance from the EPA over the next year to help them implement the standards and meet their statutory planning deadlines. Those include a final implementation rule that Woods described as “critical” for states tasked with implementing the standards and guidance on assessing emissions from new transportation infrastructure projects.

States also were interested to see if the EPA would issue updated national modeling data on ozone transport—emissions that cross state lines and affect the ability of downwind areas to meet air quality standards, Woods said. The development of state plans to address their obligations on interstate transport can take more than a year, so states would need more information from the EPA by summer 2017 if they hoped to meet the Oct. 1 deadline for submitting a plan, according to Woods.

To contact the reporter on this story: Patrick Ambrosio in Washington, D.C. at PAmbrosio@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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