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CSPA Actively Responding to EPA’s New Ozone Standards

by admin on April 28, 2016 No comments

The federal Clean Air Act[1] authorizes and directs EPA to adopt and periodically update national ambient air quality standards (NAAQS) for ozone and five other “priority pollutants.” Under Section 110 of the Clean Air Act, these primary and secondary standards are implemented by states through SIPs.[2]

In October 2015, EPA issued a final regulation that revised both the primary and secondary NAAQS for ozone, reducing those standards from the 75 parts per billion (ppb) level set in a 2008 regulation to a level of 70 ppb.[3]

CSPA participated as an active stakeholder in all phases of the EPA rulemaking process in 2015: presenting testimony at the EPA public hearing and filing written comments. CSPA continues to actively express member companies’ concerns that the new ozone standards will:

  1. Short-term: Restrict businesses from expanding existing facilities or building new facilities in areas of the country that fail to comply with the new standards.
  2. Long-term: Require states to implement updated regulatory requirements that will force companies to expend significant amounts of money to reformulate their products. According to the National Association of Manufacturers (NAM), the implementation of the 2015 ozone standard could be the most expensive regulation in U.S. history.

A) CSPA Supports Congressional Challenges to the 2015 Ozone Standards

Thus, CSPA joined with the NAM, the U.S. Chamber of Commerce and other industry groups in supporting the 12 bills[4] currently pending in Congress that would:

[1] 42 U.S.C. § 7409.
[2] Id. at § 7410.
[3] 80 Fed. Reg. 65292 (Oct. 26, 2015).
[4] H.R. 4775, the Ozone Standards Implementation Act, a bill that would (among other things) extend the review cycle from five to ten years for NAAQS under the Clean Air Act; H.J. Res. 74 and S.J. Res. 25, Congressional Review Act resolutions that would nullify the EPA final rule revising the NAAQS for ozone; H.R. 4265, the Clean Air Implementation Act, a bill that would increase the period for reviewing NAAQS from five years to eight years; H.R. 1388 and S. 751, the Clean Air, Strong Economies (CASE) Act, a bill that would prohibit EPA from lowering the ozone standard until at least 85% of counties that are currently in nonattainment achieve full compliance with the 2008 ozone standard; H.R. 1320 and S. 638, the “Commonsense Legislative Exceptional Events Reform (CLEER) Act,” a bill to delay the review and revision of the NAAQS for ozone; H.R. 1327 and S. 640, the “Ozone Regulatory Delay and Extension of Assessment Length (ORDEAL) Act,” a bill to amend the federal Clean Air Act to delay review and revision of the NAAQS for ozone; S. 2072, a bill to require EPA to establish a program to defer designations of non-attainment area if the area achieves and maintains certain standards under a voluntary early action compact plan; and H.R. 4000, the “Ozone NAAQS Deadline Harmonization Act,” a bill that would harmonize the requirements of the 2008 and 2015 ozone standards and establish a workable implementation schedule for the 2015 standard.

  • Suspend implementation of the new 70 ppb ozone standard;
  • Reform the review period for NAAQS; and/or
  • Improve the rulemaking process to include consideration of feasibility, cost, and additional information.

CSPA and other industry groups support these bills because they convey Congress’ serious concerns about the feasibility of the new EPA regulation and cost-burdens that it will impose on the country.

B.) CSPA Actively Monitors Legal Challenges to the New EPA Ozone Standards

Four separate lawsuits were filed in the U.S. Court of Appeals for the D.C. Circuit by industry and several states challenging the new ozone standard as overly stringent.

  • Murray Energy Corp. v. EPA[1]
  • State of Arizona et al. v. EPA (includes a total of nine states)[2]
  • S. Chamber of Commerce et al v. EPA (includes a total of 14  industry associations)[3]
  • State of Texas et al. v. EPA[4]

Several environmental groups filed a joint lawsuit claiming that the new 70 ppb standard is not stringent enough. Sierra Club et al. v. EPA (includes a total of five environmental groups).[5]

The Court joined (i.e., consolidated) all of these cases into a single case.[6] All Petitioners (states, industry Environmental NGOs) must file their opening briefs by April 22. The Respondent (EPA) must file its initial brief by July 22. All parties must file their final briefs by September 12. The Court has not scheduled a date for oral arguments.

In conclusion, the legal challenges face an uphill battle since the courts have historically given the EPA broad discretion to set NAAQS. In addition, the U.S. Supreme Court held that under Section 109(b) of the Clean Air Act,[7] the EPA is not required to consider costs when setting the new or revised NAAQS.[8]

[1] Case No. 15-1385 (D.C. Cir., filed Oct. 26, 2015).
[2] Case No. 15-1392 (D.C. Cir., filed Oct. 27, 2015)
[3] Case No. 15-1491(D.C. Cir., filed Dec. 23, 2015).
[4] Case 15-1494 (D.C. Cir., filed Dec. 23, 2015).
[5] Case No. 15-1490 (D.C. Cir., filed Dec. 23, 2015).
[6] Case No. 15-1490
[7] 42 U.S.C. § 7409(b).
[8] Whitman v. American Trucking Associations, Inc., 531 U.S. 457, 121 S. Ct. 903, 149 L. Ed. 2d 1 (2001).

 

 

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