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Following 8-Hour Ozone
Standard Activities

On May 27, 2008, health and environmental organizations filed a lawsuit arguing that the EPA failed to protect public health and the environment when it issued in March 2008 new ozone standards. The suit was filed in the U.S. Court of Appeals for the District of Columbia Circuit by Earthjustice on behalf of a number of environmental and conservation groups and the American Lung Association. Other health and environmental organizations involved in the lawsuit are the Natural Resources Defense Council, Environmental Defense Fund, National Parks and Conservation Association, and the Appalachian Mountain Club. Eleven states filed a parallel suit against the EPA in an effort to overturn EPA's decision on the ozone standards. The states were Connecticut, California, Delaware, Illinois, Massachusetts, Maryland, Maine, New Hampshire, New Jersey, New York, and Rhode Island. Other plaintiffs were the District of Columbia, the city of New York and Pennsylvania's department of environmental protection. Besides questioning EPA's decision to change the health ozone standard from 0.084 ppm to 0.075 ppm, the suit challenges EPA's decision on ignoring CASAC's recommendation to establish the cumulative seasonal W126 standard to protect the environment, especially plants. EPA and White House officials had acknowledged previously that the seasonal W126 standard had been opposed by the White House Office of Management and Budget, which oversees government regulation. Memos in the public record indicate that the issue was settled after President Bush intervened directly on behalf of the White House staff.

On March 12, 2008, the EPA announced that the new primary 8-hour ozone standard is 0.075 parts per million (ppm) and the new secondary standard is set at a form and level identical to the primary standard. The previous primary and secondary standards were identical 8-hour standards, set at 0.08 ppm.

The ozone compliance deadline for the revised 8-hour standard is as follows:

  • States must make recommendations to EPA no later than March 2009 for areas to be designated attainment, nonattainment, and unclassifiable.
  • EPA will issue final designations of attainment, nonattainment and unclassifiable areas no later than March 2010 unless there is insufficient information to make these designation decisions. In that case, EPA will issue designations no later than March 2011.
  • States must submit State Implementation Plans outlining how they will reduce pollution to meet the standards by a date that EPA will establish in a separate rule. That date will be no later than three years after EPA's final designations. If EPA issues designations in 2010, then these plans would be due no later than 2013.
  • States are required to meet the standards by deadlines that may vary based on the severity of the problem in the area.
  • EPA will issue a separate rule to address monitoring requirements necessary to implement the new standards. EPA intends to propose a monitoring rule in June 2008 and issue a final rule by March 2009.

Historically, it is important to understand some of the background to the original 8-hour ozone standard. On March 26, 2002, the U.S. Court of Appeals for the District of Columbia decided on the Petitioners' specific challenges to the original 8-hour ozone air quality standards that remained unresolved. The Court rejected the argument that the language and reasoning of their earlier decision determined the outcome of these remaining claims. Finding the challenged air quality standards neither arbitrary nor capricious, the Court of Appeals denied the petitions for review except to the extent the Supreme Court's and their earlier decisions require further action by EPA. For more information on the earlier court decision, please go to our summary.

On April 15, 2004, the EPA designated 474 counties as nonattainment for the original 0.08 ppm 8-hour ozone standard. A map is available to review the current violating counties. The schedule for implementing the original 8-hour ozone NAAQS is available for your review. For additional information concerning EPA's implemenation for the 0.08 ppm 8-hour standard, please go to the Agency's web page.

The phase 1 final rule sets forth the classification scheme for nonattainment areas and requirements for States continued obligations with respect to existing 1-hour ozone requirements. In the final rule, EPA will separate areas based generally on their 1-hour ozone design value. A design value is an air quality measurement used to determine an area's air quality status in reference to a national standard. (attainment or nonattainment). This final rule separates 8-hour ozone nonattainment areas into two categories:

  • Areas whose 1-hour ozone design value is less than 0.121 parts per million fall under the more general requirements (attainment deadlines 5-10 years after designation). These areas may be referred to as "Basic Nonattainment Areas" in public communication materials.
  • Areas whose 1-hour design value is greater than or equal to 0.121 ppm under the more specific requirements (attainment dates 2007 - 2021). These areas would be further classified as "marginal", "moderate", "serious", "severe", or "extreme" based on the severity of their 8-hour ozone problem.

EPA will revoke the 1-hour standard one year after the effective date of designating attainment and nonattainment areas for the 8-hour standard. To avoid "backsliding," or losing clean air progress towards attaining the 1-hour ozone standard, this rule will require the very specific control measures for the 1-hour standard and included in a state's implementation plan to stay in place until an area attains the 8-hour standard. The discretionary emissions reductions in a state's implementation plan would also remain but could be revised or dropped based on modeling demonstrating that it would be appropriate. Phase 2 of the final 8-hour ozone implementation rule will address, among other things, reasonably available control measures, reasonably available control technology, attainment demonstrations and modeling requirements, and will be issued in the next several months.

In the June 1998 issue of Environmental Science & Technology (32(11):276A-282A), an article about the "piston" effect discusses why the 8-hour ozone standard may be difficult to attain. The EPA has confirmed that its emission reduction modeling results are showing inconsistencies. In addition, a paper has just been published in the prestigious journal, Atmospheric Environment, that discusses the difficulty in applying enough emission reductions to attain the new ozone standard. Another modeling article has been submitted to another peer-review journal that discusses similar difficulties. Clearly, the "piston" effect appears to be interfering with attaining the 8-hour ozone standard. With continuing research on the "piston" effect and its ramifications, it may become apparent to the EPA and Congress that action may have to be taken prior to the planned attainment deadline years to modify the form of the 8-hour ozone standard. Alternative forms that will protect the public's health, at the same level as the 8-hour standard, are available. For more information on the "piston" effect, please see the Table of Contents web page.

On July 5, 2000, EPA reinstated the 1-hour standard for ozone in nearly 3000 counties, where the standard had been revoked since 1998. The reinstatement of the 1-hour standard affects some areas that had been designated as "attainment" for EPA's 1-hour ozone standard and some that formerly were designated as "nonattainment," but where monitors showed clean air for 3 consecutive years. According to the Agency, the reinstatement creates a safety net for nearly 3,000 counties across the country, while EPA was waiting for the U.S. Supreme Court decision on its 8-hour standard.

On July 22, 1999, the U.S. EPA issued a response to an article written in the Winter/Spring NARSTO News. The article summarizes items from a critical review paper by Parrish and Fehsenfeld, which expresses concerns about the integrity of ambient ozone measurements, using the EPA-approved UV absorption monitoring method. The potential measurement errors cited were calibration uncertainties, ambient interferences, and anomalous operating conditions. The EPA has agreed that there is a need for additional field intercomparisons of the UV technique with other ozone measurement techniques, particularly during conditions typical of ozone exceedances, to better define the scope and impact of any potential UV ozone measurement uncertainties. In another development, it appears that the CASTNet ozone monitors, located in rural areas across the U.S., were not properly calibrated and therefore, the EPA is currently planning on not using the data collected from these monitors to identify nonattainment designations for the 1997-1999 period. On the other hand, EPA's Office of Research and Development is still using the CASTNet data for "trends" purposes.

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