Overview of the 2008 National Ambient Air Quality Standards for Ozone

1. Overview of the 2008 National Ambient Air Quality Standards for Ozone May 27, 2008 CBA CLE Luncheon Presented by Jonah Staller, Associate Regional Counsel, EPA Region 8 Thanks to Richard Payton, Environmental Scientist, EPA Region 8, who prepared an initial version of many of these slides

2. DISCLAIMER I am NOT speaking on behalf of EPA. The views expressed are my own.

3. Introduction • On March 12, 2008 EPA Administrator Stephen Johnson signed new ozone standards • Deadline imposed by a consent decree in American Lung Association v. Whitman, a lawsuit filed in March 2003 • Rule was published in the FR March 27, 2008; 73 FR 16436 • The rule is effective today (May 27, 2008) • Rule amends 40 CFR Part 50 by adding section 50.15 and Appendix P. Also amends Part 58. • I’m going to • Tell you the level of the new standards • Provide legal background and possible litigation issues • Describe possible impacts of the standards in Region 8 • Tell you the next regulatory steps

4. History of Ozone NAAQS • 1955 Los Angeles Alert Levels: 0.5, 1 and 1.5 ppm • 1959 California Oxidants Standard: 0.150 ppm/hr • 1971 photochemical oxidant NAAQS: 0.08 ppm, 1-hr average • Feb. 1979 1-hour Ozone NAAQS: 0.12 ppm, 1-hr average • Carter White House decision; EPA proposed 0.10 ppm, 1-hour average • 1997 8-hour ozone NAAQS: 0.08 ppm, 8-hour average • 1-hour ozone NAAQS revoked in 2004 for areas attaining the standard • Denver and Salt Lake City are 1-hour maintenance areas, • the old state rules for attaining the 1-hour NAAQS remain in place as anti-backsliding measures • 2008 8-hour ozone NAAQS: 0.075 ppm, 8-hour average

5. Ozone is a Secondary Pollutant • Sources emit NOx (NO and NO2) and volatile organic compounds (VOC) • In the presence of sunlight, over time, these form ozone • Controls for ozone are therefore placed on NOx and organic compound sources • NOx: power plants, cars, other combustion sources • VOC: Cars, gas stations, dry cleaners, refineries, oil and gas fields, etc.

6. Health Effects of Ground Level Ozone • Ozone can penetrate deep into the lungs and can: – Make it more difficult for people working or playing outside to breathe as deeply and vigorously as normal – Irritate the airways, causing: coughing, sore or scratchy throat, pain when taking a deep breath, and shortness of breath – Increase asthma attacks and use of asthma medication – Inflame and damage the lining of the lung by injuring the cells that line the air spaces in the lung – Increase susceptibility to respiratory infection – Aggravate chronic lung diseases such as asthma, emphysema and bronchitis • Repeated episodes of ozone-induced inflammation may cause permanent changes in the lung, leading to long-term health effects and a lower quality of life. • Ozone may continue to cause lung damage even when symptoms have disappeared.

7. Public Welfare Effects of Ground Level Ozone • Ground-level ozone is absorbed by the leaves of plants, where it can: – Interfere with the ability of sensitive plants to produce and store food • This can lead to reduced growth, biomass production and/or yields – Make sensitive plants more susceptible to certain diseases, insects, harsh weather, other pollutants, and competition – Reduce or change the diversity of plant species • This can lead to damage to ecosystems dependent on those species – Visibly injure the leaves of plants, affecting the appearance of vegetation in national parks, recreation areas and cities

8. Regulating Ground-level Ozone Pollution • The Clean Air Act (CAA) requires EPA to set primary and secondary National Ambient Air Quality Standards (NAAQS) for common air pollutants, including ground-level ozone. See CAA sections 108 and 109. • EPA is supposed to set the primary standard to protect public health and the secondary standard to protect public welfare. • In setting NAAQS, EPA may not consider cost. Whitman v. American Trucking Associations, 531 U.S. 457, 473 (2001). • CAA section 109(d) requires EPA to review the scientific information and the standards for each pollutant every five years (starting December 31, 1980). • EPA last revised the ozone NAAQS in 1997, when it set both the primary and secondary standard at 0.08 ppm, with an 8-hour averaging time. With applicable rounding convention, the standard was effectively 0.084 ppm.

9. The Ozone Standards of 2008 • Per section 109(b)(1) of the Clean Air Act, new primary standard is set at a level to protect human health with an adequate margin of safety • The standard lowers the 8-hour average level significantly • From the old effective level 0.084 ppm to 0.075 ppm • 3 year average of 4th maximum 8-hour average • 3 year average is truncated, not rounded • 0.075 ppm attains • 0.076 ppm violates • Secondary standard is set to protect public welfare and the environment • The new secondary standard is identical to the new primary standard • Repeats the pattern used for the 1997 standard • Reducing both standards from 0.084 to 0.075 provides significant new protection for sensitive trees and plants

10. Potential for Litigation • Under CAA section 307(b), any petition for review must be filed in the D.C. Circuit within 60 days of publication in the FR. Deadline was May 26, 2008 (yesterday). • Under CAA section 307(d)(7)(B), only an objection raised with reasonable specificity during public comment may be raised during judicial review. • Environmental groups and a number of states commented that the proposed primary standard range of .070 to .075 was not stringent enough. • Industry, agricultural interests, and some states commented that no change to the 1997 primary standard was warranted. • EPA also received many comments on the secondary standard, and at the last minute, the White House weighed in. More on that below.

11. Disagreement Regarding the Secondary Standard • EPA solicited comment on two options. • One option was to go to a cumulative, seasonal standard based on the sum of certain hourly concentrations during the ozone season. EPA proposed a range of 7 to 21 ppm-hours. • The other option was to set the secondary standard identical to the primary standard. • The preamble to the final rule makes it clear that EPA agreed with CASAC, environmental groups, NPS, and others that the cumulative, seasonal standard better reflected scientific information on biologically relevant exposures for vegetation. See, e.g., 73 FR 16500, col. 1. But, the Administrator concluded that the cumulative, seasonal standard would result in uncertain benefits compared to the revised primary standard and, thus, rejected the cumulative, seasonal standard. • What makes things interesting is that the Administrator only reached this conclusion after last-minute written communications between OMB and EPA that reflect a fundamental disagreement over this issue. • Also interesting that these memos are specifically mentioned in the preamble to the final rule. See 73 FR16497, col. 2.

12. Disagreement Regarding the Secondary Standard, cont’d • March 6, 2008 memo from Susan Dudley, OMB, to the Administrator expresses concerns that EPA was not considering factors within the CAA’s broad definition of welfare and that there was no evidence that a separate, different secondary standard would be more protective than the primary standard. Ms. Dudley claimed this was inconsistent with Executive Order 12866, which says Federal agencies shouldn’t promulgate regulations unless “required by law, are necessary to interpret the law, or are made necessary by compelling public need…” • March 7, 2008 memo from Marcus Peacock, EPA’s Deputy Administrator, to Ms. Dudley disputes Ms. Dudley’s contentions. In particular, he writes, “In light of the available information, EPA believes that ozone-related effects on vegetation are clearly linked to cumulative, seasonal exposures and are not appropriately characterized by the use of a short-term (8-hour) daily measure of ozone exposure.” • On March 12, 2008, the deadline for signing the rule, Ms. Dudley responds, saying that the President has decided the secondary standard should be identical to the primary standard.

13. Disagreement Regarding the Secondary Standard, cont’d • Not surprisingly, Congress has taken an interest in the promulgation of the new ozone standard. Congressman Waxman was to hold a hearing May 7 at which the Administrator and Ms. Dudley were to testify jointly. The Administrator backed out at the last minute, allegedly claiming a recurrence of back problems caused by a long-ago car accident. Washington Post columnist Al Kamen said this had happened before when Steve Johnson “was to appear for a ritual pummeling.” (www.washingtonpost.com, Al Kamen, “In the Loop,” 5/7/2008.) Supposedly, this was the third time Waxman had to postpone the hearing. • An interesting legal wrinkle: CAA section 307(d)(4)(B)(ii) requires that OMB written comments on the draft final rule and Agency written responses be included in the rulemaking docket. However, CAA section 307(d)(7)(A) says the record for judicial review shall consist exclusively of a variety of materials, not including the written comments and responses between OMB and EPA.

14. What about the Denver area? Denver area violated for 2001-2003, and again for 2005-2007; Denver area attained for the intervening years, including 2004-2006 used for this map.

15. 1997 Ozone StandardDenver Nonattainment Area Status • Denver area was an “early action compact” area. 2001-2003 data showed violation of the 1997 8-hour standard. In exchange for area’s/Colorado’s agreement to implement control measures earlier than required, effective date of nonattainment designation was deferred with hopes that area would attain by the end of 2007 and avoid nonattainment designation altogether. • After 2003, Denver was attaining the standard until 2005-2007 data were collected • Because 2005-2007 data showed a violation of the 1997 8-hour standard, EPA lifted the deferral of the nonattainment designation; the nonattainment designation became effective in November 2007. The NA designation triggers certain SIP requirements. • Under a settlement agreement with Rocky Mountain Clean Air Action, Colorado must submit a revision to the ozone SIP by July 1, 2009.

17. Region 8 Areas That May Exceed the New Standards (preliminary 2005-2007 data) • Denver Front Range • Denver Early Action Compact Area encompasses all violating Colorado monitors • Utah Wasatch Front • All monitors from south of Provo to north of Brigham City in Box Elder County • Covers 150 miles north to south • Includes a Tribal monitor on the Utah-Idaho border • Logan, Utah attains • Southwest Utah • Washington County • Zion National Park monitor may violate • Utah DEQ St. George monitor may attain • Southwest Wyoming • Appears all monitors will attain using 2005-2007 data • Violations are possible for 2006-2008 • Highest ever values in southwest Wyoming so far this winter

18. Ozone in Winter • Ozone has been thought of as an urban summertime pollutant • Monitoring is concentrated in cities • The Wyoming situation is new • Points to potential problems in industrialized rural areas • Are there other areas analogous to SW Wyoming with no historical monitoring data?

19. Next Steps and Schedules • Ozone Rule Signature March 12, 2008 • Monitoring Rule Proposal June 2008 - Revision to ozone season - Lower NAAQS = longer season - Needs for new monitors - Urban areas over new NAAQS - Rural areas

20. Next Steps and Schedules, cont’d • An Ozone Implementation Rule is planned for proposal in the fall of 2008 • Final Designation Schedules • SIP due dates • Attainment Schedules • Governors’ Attainment/Nonattainment Recommendations March 2009 (CAA section 107(d)(1)(A).) • EPA Designations March 2010 (CAA section 107(d)(1)(B).) • Per CAA section 107(d)(2)(A) and (B), EPA must publish notice in the FR promulgating the designations, but notice and comment is not required. • SIPs would be expected 3 years after designation (2013) • Earliest attainment date 2013 • Attainment date variable depending on ozone levels • Latest attainment date for most extreme areas is 2030

21. What Happens to 1997 Standard? • For now, the 1997 8-hour ozone NAAQS and associated regulatory requirements remain in place. • EPA will address transition issues in a separate rulemaking – presumably the implementation rule that will be proposed this fall.