By by Shane Robinson
March 18, 2002

On March 5th, in the Washington, DC area, the U.S. Environmental Protection Agency held the first of three public meetings to solicit comments on options to implement the 8-hour ozone and particulate matter national ambient air quality standards (NAAQS). EPA is holding the meetings in order to help identify ways to comply with last year's U.S. Supreme Court decision that the Agency must somehow satisfy the seemingly irreconcilable subpart 1 and subpart 2 of the Clean Air Act.

Background

Mayors in or near "ozone non-attainment areas" are most familiar with the current ozone standard - termed the "1-hour" ozone standard. Attaining the 1-hour ozone standard is based on the number of times that ozone levels (measured and averaged over a 1-hour time period) in the air in a given area exceed 0.12 parts per million (ppm). Accompanying this standard are very specific measures with which ozone non-attainment areas must comply. In addition to ozone standards, a few cities are in non-attainment areas for 5 additional pollutants - the most noteworthy being particulate matter (PM). Under current regulation, EPA regulates "PM-10" - particles as small as 10 microns in diameter.

The first non-attainment areas under the Clean Air Act Amendments of 1990 were designated in 1991 and since that time, many mayors have taken leadership roles on air quality issues, tackling the broad range of issues that affect - and are effected by - air pollution. But the current standards and designation areas were never meant to be the final word on air quality law and regulation. In fact, the Clean Air Act requires EPA to revisit each of the national ambient air quality (NAAQ) standards every five years. The agency is charged with reviewing the most up-to-date health research to determine if NAAQS [pronounced "naks"] standards should be revised.

In 1997, after research showed that tighter controls on ozone and particulate matter were needed to protect public health, EPA issued new NAAQS for both pollutants. The new standard for ozone, termed the "8-hour" ozone standard, is based on the ozone levels (measured and averaged over an 8-hour time period) in the air in a given area exceed 0.08 parts per million (ppm). As part of the same NAAQS research review, research showed that particulate matter smaller than 2.5 microns caused serious health impacts. Accordingly, EPA issued a stricter standard, termed PM-2.5, aimed at these smaller particles.

At that time, just as EPA began the process of working with the States to determine which areas would be designated as non-attainment under the new standards, the Agency was sued by several industry groups, challenging EPA on several issues. After a long legal battle, the U.S. Supreme Court in February 2001 upheld the constitutionality of EPA's air quality standard setting and ruled that EPA does have the authority to implement the revised standards.

But the Court also upheld a lower court ruling that EPA, in developing its plans on how to implement the 8-hour ozone and PM-2.5 standards, had improperly ignored what is referred to as "subpart 2" of the Clean Air Act. It is this part of law that requires ozone non-attainment areas to implement programs, with which many mayors are familiar, like motor vehicle inspection and maintenance (I&M) programs and the use of oxygenated fuels.

However, through the 1990's it became clear to mayors, States, and EPA that the one-size-fits-all requirement under subpart 2 were not the best approach. And it appeared to many, based on the way the law is written, that those requirements applied to the 1-hour ozone standard but not to any future revisions of the standard. For example, subpart 2 includes deadlines that have already passed and uses classifications (i.e. marginal, moderate, serious, etc.) for non-attainment areas that literally make no sense under the revised ozone standard.

For that reason, when EPA finalized the new NAAQS in 1997, the Agency indicated that it would use "subpart 1" of the Clean Air Act to implement the revised standards. Doing so not only seemed logical but would give EPA more flexibility to work with cities to develop programs that made sense for that area.

But the U.S. Supreme Court ruled that though it might make sense to ignore subpart 2 when implementing the 8-hour ozone standard, given the way the law is written, EPA cannot ignore it. Although the Clean Air Act fully anticipates revised standards, it does not clearly describe how subparts 1 and 2 of the Act interrelate in the case of the revised ozone standards. The Court said that while several portions of the classification scheme under subpart 2 are "ill-fitted" to the new standard, EPA must somehow figure out what to do. As some have said, EPA is in the position of hammering a square peg into a round hole.

Issues at Stake

These three public meetings were organized to help EPA determine reasonable approaches that are legally defensible. The March 5th meeting (as well as a second meeting on March 7th in Atlanta) posed, among others, the following questions:

• How should EPA classify non-attainment areas under the 8-hour ozone standard?
• How will EPA transition from the 1-hour to 8-hour ozone standards?
• What should be the timing of designation, classification, and implementation actions for the 8-hour ozone standard in relation to the timing of activities under the PM-2.5 standard?
• What attainment dates should be required for non-attainment areas under the 8-hour ozone standard?
• What incentives should EPA provide for areas that take early action toward attaining the 8-hour ozone NAAQS?

The natural impulse is to respond to all of these questions with the answer, "in a way that gives cities the most flexibility." However, given that EPA's discretion is limited to answers that somehow satisfy the seemingly irreconcilable subpart 1 and subpart 2, the answers are not so straight-forward.

A third meeting is scheduled for April 3rd in Tempe, AZ.

However EPA resolves these questions, the Agency is expected to publish the new draft implementation rules later this summer and finalize the rules by mid-2003. Designations and classifications would then be made in mid-2004, with State Implementation Plans (SIP's) due in 2007 or 2008.

While States, not cities, are charged with developing SIP's, the interests of cities are best served when mayors take an active role in the on-going processes of developing and implementing SIP's. Says Mayor Patrick McCrory, Chair of the Conference of Mayors Energy and Environment Committee, "although cities do not have direct regulatory responsibility in this area, mayors have come to understand that air quality issues are inextricably linked to our traditional issues such as economic development, quality of life, and the health of our communities."

The U.S. Conference of Mayors is one of eight groups representing state and local stakeholders that EPA has called on to help sort these issues. For more detailed information, contact Shane Robinson (202-861-6782) or Judy Sheahan (202-861-6775) of the Conference of Mayors staff.