EPA Seeks Overhaul of Ozone NAAQS

EPA Administrator Scott Pruitt issued a memorandum on May 9th that directs the agency’s staff to begin a five-year review of the National Ambient Air Quality Standards (NAAQS) for Ozone. The Clean Air Act (CAA) requires EPA to periodically review the NAAQS, including both primary and secondary standards, for criteria air pollutants such as ozone to ensure these standards reflect the best, current scientific information while protecting public health and the environment. The review initiated by the memorandum fits within this statutory process, but Administrator Pruitt has set out five guiding principles for EPA to follow in reviewing the NAAQS:

  1. Meet statutory deadlines;
  2. Address all CAA provisions for NAAQS reviews;
  3. Streamline and standardize the process for development and review of key policy-relevant information;
  4. Differentiate science and policy judgments in the NAAQS review process; and
  5. Issue timely implementation regulations and guidance.

The EPA memorandum was released shortly after a similar memorandum from President Trump directing the agency take specific actions to ensure efficient and cost-effective implementation of the NAAQS program, including with regard to permitting decisions for new and expanded facilities.

While the recent EPA memorandum initiating the NAAQS review is the first step in a lengthy administrative process, it signals that the agency is eager to move forward with the review and that it may ultimately relax the ozone NAAQS. To this end, the memorandum notes that with respect to past reviews:

EPA has not followed all of the provisions of CAA Section 109(d)(2)(C). The Government Accountability Office has found that “CASAC has never provided advice on adverse social, economic, or energy effects related to NAAQS because EPA has never asked CASAC to do so.”

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Notably, the CAA does not require the Administrator to establish a primary NAAQS at a zero-risk level or at background concentration levels, 17 but rather at a level that reduces risk sufficiently so as to protect public health with an adequate margin of safety. The selection of any particular approach to providing an adequate margin of safety is a policy choice left specifically to the Administrator’s judgment.

Similar to other recent EPA decisions, this language also signals a move toward streamlining EPA’s processes and elevating important decisions up to the EPA Administrator. To the extent the EPA and Presidential memoranda on this topic suggest that EPA should consider costs to industry in making its determination, the agency will likely face strong pushback based on the U.S. Supreme Court’s decision in Whitman v. American Trucking Assns., 531 U.S. 457 (2001), which requires EPA to set ambient air quality standards at levels necessary to protect the public health and welfare, without considering the economic costs of implementing the standards.

States, industry, and environmental groups are all likely to participate in the EPA process, which is scheduled to conclude by 2020. States and regions facing ozone non-attainment based on the earlier 2008 standard will likely watch the EPA process closely. For example, Colorado has long struggled to meet the ozone standards and is currently on a July 2018 deadline to meet the 2008 ozone NAAQS.

Ultimately, the new standards will affect a large number of facilities operating under Clean Air Act permits, especially those considering modifications of existing sources or construction of new sources. The NAAQS are a key driver of the permitting process, and can have a dramatic impact on the costs and feasibility of a project. Those considering such projects will want to monitor the EPA process closely and will have significant opportunities to participate at the federal and state levels as the review moves forward.

Lewis Roca Rothgerber Christie maintains an active regulatory and energy practice. For more more information, please visit www.lrrc.com.