In a court filing on September 16th, the Justice Department announced that the EPA will reconsider controversial Bush-era National Ambient Air Quality Standards (“NAAQS”) for ozone, sometimes referred to as smog. EPA plans to act on a very fast schedule, with a proposed new ozone standard by December 21 and a final rule by August 31, 2010.
The Bush administration in 2008 tightened the ozone NAAQS from 84 parts per billion (ppb) to 75 ppb. That decision, however, was heavily criticized by environmentalists for ignoring a lower limit recommended by EPA’s panel of scientific advisors, the Clean Air Scientific Advisory Committee (“CASAC”). On the other hand, industry groups were greatly concerned that more stringent standards could be extremely difficult to meet economically.
In May 2008, a group of states, environmental groups, and industry groups filed petitions with the D.C. Circuit Court of Appeals for review of the 2008 ozone standards. At the request of the new Administration, the court stayed the litigation in March 2009 to allow EPA to review the ozone standards and determine whether they should be reconsidered.
EPA’s announcement that it will reconsider the ozone NAAQS will affect both the “primary” ozone standard, designed to protect public health, and the “secondary” ozone standard, designed to protect the environment. EPA said the reconsideration will be based on the scientific and technical record used in its March 2008 review, including the CASAC recommendations. In the meantime, EPA will propose to stay the 2008 standards for the purpose of attainment and nonattainment area designations in order to prepare for an accelerated designation process for the reconsidered standards to be completed by August 2011. EPA will continue to require permitting of new and modified air pollution sources under the Prevention of Significant Deterioration Clean Air Act program for the 2008 standards. State implementation plans under the reconsidered ozone standards would be due in December 2013.