CHAPTER 6 THE NEW OZONE STANDARD AND FOSSIL FUELS
| Jurisdiction | United States |
(2000)
THE NEW OZONE STANDARD AND FOSSIL FUELS
David R. Farabee
Pillsbury Madison & Sutro LLP
San Francisco, California
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Standard Planted
"... EPA's newly updated air quality standards for ozone ... are the most significant step we've taken in a generation to protect the American people—and especially our children—from the health hazards of air pollution....
"These new air quality standards will not require any farmer to change they way he does his job.... We will not restrict tilling.... And there isn't going to be any wholesale action against agricultural burning on private lands.
"...the biggest sources are major power plants and other large industrial facilities. And it is the large sources that EPA and the states will target as we implement the new air quality standards.... Further, the new air quality standards will increase the demand for cleaner-burning gasolines. That's going to mean a higher demand for ethanol. More good news for farmers."
—Testimony Carol M. Browner, Administrator U.S. Environmental Protection Agency before the U.S. Senate Committee on Agriculture, Nutrition and Forestry (July 22, 1997)
Standard Uprooted
"In July 1997 EPA issued final rules revising the ... NAAQS for ozone.
"...we find that the construction of the Clean Air Act on which EPA relied in promulgating the NAAQS at issue here effects an unconstitutional delegation of legislative power. See U.S. Const. art. I, § 1 (`All legislative powers herein granted shall be vested in a Congress of the United States.'). We remand the cases for EPA to develop a construction of the act that satisfies this constitutional requirement....
"...we decide two ozone-specific statutory issues, holding that the 1990 revisions to the Clean Air Act limit EPA's ability to enforce new ozone NAAQS and that EPA cannot ignore the possible health benefits of ozone."
—American Trucking Associations, Inc., et al., Petitioners v. United States Environmental Protection Agency, Respondent (D.C. Circuit May 14, 1999)
Introduction and Scope of Paper
In July 1997, EPA issued its historic new national ambient air quality standards for ozone and particulate matter. I described these new NAAQS and some of their effects on natural resource developers in a 1998 paper.1 This paper summarizes several major actions that EPA took to reduce ozone after promulgating the new NAAQS, despite losing the cases challenging them on fundamental constitutional and statutory grounds. It focuses on those actions that EPA took to reduce ozone and its precursors which affect fossil fuels (coal, oil and gas). EPA's many actions may not restrict farmers tilling their fields, as Administrator Browner promised in 1997. But they certainly
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affect farmers (and everyone else) who consume electric power, own and operate motor vehicles, purchase chemical products, and otherwise use fossil fuels or rely on energy from fossil fuels. They also affect natural resource attorneys, who must carefully continue to watch all forums for developments on this topic.
List of EPA Actions
The following Chart 1 lists significant EPA actions relating to the new ozone and particulate NAAQS after they were issued. It indicates which ones affect each major category of fossil fuels. It provides some indication of the massive amount of EPA rulemaking affecting all fossil fuels. EPA's actions that significantly increase the cost of extracting, processing and/or using each fuel are in a shaded box.
Chart 1
| Date | EPA Regulations/Guidance Affecting Fossil Fuel Operations | ||
| Coal | Oil | Gas | |
| 7/18/97 | New PM standard (final rule, 62 Fed. Reg. 38652) | New PM standard (final rule, 62 Fed. Reg. 38652) | New PM standard (final rule, 62 Fed. Reg. 38652) |
| 7/18/97 | New ozone standard (final rule, 62 Fed. Reg. 38856) | New ozone standard (final rule, 62 Fed. Reg. 38856) | New ozone standard (final rule, 62 Fed. Reg. 38856) |
| 9/16/98 | Revision to new source performance standards (NSPS) for new electric utility steam generating units and industrial-commercial-institutional steam generating units, final rule (63 Fed. Reg. 49442) | Revision to new source performance standards (NSPS) for new electric utility steam generating units and industrial-commercial-institutional steam generating units, final rule (63 Fed. Reg. 49442) | Revision to new source performance standards (NSPS) for new electric utility steam generating units and industrial-commercial-institutional steam generating units, final rule (63 Fed. Reg. 49442) |
| 10/21/98 | Proposed FIP for any state that fails to revise its SIP to comply with the NOx SIP call (63 Fed. Reg. 56394) | Proposed FIP for any state that fails to revise its SIP to comply with the NOx SIP call (63 Fed. Reg. 56394) | Proposed FIP for any state that fails to revise its SIP to comply with the NOx SIP call (63 Fed. Reg. 56394) |
| 10/27/98 | NOx SIP call issued to 22 states and District of Columbia, final rule (63 Fed. Reg. 57356) | NOx SIP call issued to 22 states and District of Columbia, final rule (63 Fed. Reg. 57356) | NOx SIP call issued to 22 states and District of Columbia, final rule (63 Fed. Reg. 57356) |
| 11/17/98 | Proposed Implementation Guidance for the Revised Ozone and Particulate Matter (PM) National Ambient Air Quality Standards (NAAQS) and the Regional Haze Program | Proposed Implementation Guidance for the Revised Ozone and Particulate Matter (PM) National Ambient Air Quality Standards (NAAQS) and the Regional Haze Program | Proposed Implementation Guidance for the Revised Ozone and Particulate Matter (PM) National Ambient Air Quality Standards (NAAQS) and the Regional Haze Program |
| 12/98 | Guideline on Data Handling Conventions for the 8-Hour Ozone NAAQS (EPA-454/R-98-017) | Guideline on Data Handling Conventions for the 8-Hour Ozone NAAQS (EPA-454/R-98-017) | Guideline on Data Handling Conventions for the 8-Hour Ozone NAAQS (EPA-454/R-98-017) |
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| 12/9/98 | Proposed rule on air quality index reporting (63 Fed. Reg. 67818) | Proposed rule on air quality index reporting (63 Fed. Reg. 67818) | Proposed rule on air quality index reporting (63 Fed. Reg. 67818) |
| 12/9/98 | Draft Guideline for Reporting of Daily Air Quality—Pollutant Standards Index (PSI) | Draft Guideline for Reporting of Daily Air Quality—Pollutant Standards Index (PSI) | Draft Guideline for Reporting of Daily Air Quality—Pollutant Standards Index (PSI) |
| 1/99 | EPA issues Enforcement Alert v. 2, n.1 "Compliance with Permitting Critical to Clean Air Act Goals" EPA 300-N-99-002 | EPA issues Enforcement Alert v. 2, n.1 "Compliance with Permitting Critical to Clean Air Act Goals" EPA 300-N-99-002 | EPA issues Enforcement Alert v. 2, n.1 "Compliance with Permitting Critical to Clean Air Act Goals" EPA 300-N-99-002 |
| 3/3/99 | Proposed action on requests by ME and NH to evaluate their § 126 petitions under the 8-hr O3 standard (64 Fed. Reg. 10342) | Proposed action on requests by ME and NH to evaluate their § 126 petitions under the 8-hr O3 standard (64 Fed. Reg. 10342) | Proposed action on requests by ME and NH to evaluate their § 126 petitions under the 8-hr O3 standard (64 Fed. Reg. 10342) |
| 3/25/99 | Publication of 7/16/98 memo, Extension of Attainment Dates for Downwind Transport Areas, and solicitation of public comment (64 Fed. Reg. 14441) | Publication of 7/16/98 memo, Extension of Attainment Dates for Downwind Transport Areas, and solicitation of public comment (64 Fed. Reg. 14441) | Publication of 7/16/98 memo, Extension of Attainment Dates for Downwind Transport Areas, and solicitation of public comment (64 Fed. Reg. 14441) |
| 4/99 | Guideline on Data Handling Conventions for the PM NAAQS (EPA 454/R-99-008) | Guideline on Data Handling Conventions for the PM NAAQS (EPA 454/R-99-008) | Guideline on Data Handling Conventions for the PM NAAQS (EPA 454/R-99-008) |
| 4/22/99 | Revisions to reference method for determination of fine particulate matter as PM2.5 in the atmosphere, direct final rule (64 Fed. Reg. 19717) | Revisions to reference method for determination of fine particulate matter as PM2.5 in the atmosphere, direct final rule (64 Fed. Reg. 19717) | Revisions to reference method for determination of fine particulate matter as PM2.5 in the atmosphere, direct final rule (64 Fed. Reg. 19717) |
| 5/13/99 | Proposed Tier 2 motor vehicle emission standards and gasoline sulfur control requirements (63 Fed. Reg. 26004); diesel fuel quality advanced notice of proposed rulemaking (63 Fed. Reg. 26142) | ||
| 5/14/99 | Decision in American Trucking Ass'ns v. EPA (175 F.3d 1027) partially vacating, remanding and partially upholding Ozone and PM NAAQS | Decision in American Trucking Ass'ns v. EPA (175 F.3d 1027) partially vacating, remanding and partially upholding Ozone and PM NAAQS | Decision in American Trucking Ass'ns v. EPA (175 F.3d 1027) partially vacating, remanding and partially upholding Ozone and PM NAAQS |
| 5/14/99 | Revisions to NOx statewide emissions budgets for the 22 states and the District of Columbia subject to the NOx SIP call, final rule (64 Fed. Reg. 26298) | Revisions to NOx statewide emissions budgets for the 22 states and the District of Columbia subject to the NOx SIP call, final rule (64 Fed. Reg. 26298) | Revisions to NOx statewide emissions budgets for the 22 states and the District of Columbia subject to the NOx SIP call, final rule (64 Fed. Reg. 26298) |
| 5/25/99 | Findings that portions of six § 126 petitions filed by eight states are technically meritorious; denial of petitions for 1-hr std by ME, NH, RI, VT and 8-hr std by VT; finalization of general parameters of federal NOx budget trading program, final rule (64 Fed. Reg. 28250) | Findings that portions of six § 126 petitions filed by eight states are technically meritorious; denial of petitions for 1-hr std by ME, NH, RI, VT and 8-hr std by VT; finalization of general parameters of federal |
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