EPA's New Ground-Level Ozone Standard

• Date: 01 February 2016

2-2016 NEWS & ANALYSIS 46 ELR 10109

D I A L O G U E

EPA’s New Ground-Level

Ozone Standard

Summary

On October 1, 2015, after years of delay punctuated

by litigation and political maneuvering, the U.S. Envi-

ronmental Protection Agency issued revised national

ambient air quality standards for ground-level ozone.

Last set at 75 parts per billion (ppb) in 2008, the new

standard of 70 ppb has a lready elicited promises of

legal challenges from industry and environmental

advocates. High levels of ozone are linked to respira-

tory illness, especially among children and the elderly.

Environmental and public health advocates had suc-

ceeded in obtaining a court order setting the October

deadline, but many have expressed disappointment

that the new standard does not go far enough to

adequately protect public health. Industry groups, on

the other hand, have decried the rule as unnecessary

and claim it will cripple the economy in any place

deemed out of compliance with the new standard. On

October 15, 2015, the Environmental Law Institute

convened a panel of attorneys who either worked on

promulgating the rule or advocated for clients during

its development. Below we present a transcript of the

discussion, which has been edited for style, clarity,

and space considerations.

Jen ny How ard (moderator) i s D eputy Genera l

Cou nsel at the Tenn ess ee Depa rtmen t of Env iron-

ment and Conservati on.

Lorie J. Schmidt is Associate General Counsel for Air and

Radiation at the U.S. Environmental Protection Agency.

Lucinda (Cindy) Minton Langworthy is Counsel at

Hunton & Williams LLP.

John D. Walke is a Senior Attorney and Clean Air Direc-

tor at the Natural Resources Defense Council.

Jenny Howard: Today, we are discussing the new stan-

dard for ground-level ozone promulgated by EPA under

the Clean Air Act (CA A).1 EPA revised the national ambi-

ent air quality standards (NAAQS) for ground-level ozone

on October 1, 2015, the cour t-mandated deadline.2 e

1. 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.

2. National Ambient Air Quality Standard for Ozone, 80 Fed. Reg. 65292

(Oct. 26, 2015) (to be codied at 40 C.F.R. pts. 50, 51, 52, 53, and 58),

standard was last set at 75 ppb, in 2008. As of October 1,

2015, it is now set to a new standard of 70 ppb. High ozone

levels have been linked to respiratory illnesses, especially in

vulnerable populations.

We have t hree distinguished panelists today. Our rst

speaker will be Lorie Schmidt, Associate General Counsel

for Air and Radiation at EPA. Cindy Langworthy, a mem-

ber of Hunton & Williams LLP’s environmental team,

will be our second speaker. Last, but not least, John Walke,

a senior attorney and clean a ir director for the Natural

Resources Defense Council in Washington, D.C., joins us

to discuss the new ozone standard.

Lorie Schmidt: e rst NA AQS that I worked on were

the 1997 standards, where EPA set the ne particle stan-

dards for the rst time and also signicantly tightened the

ozone standard, moving from a one-hour averaging period

to an eight-hour averaging period. It suddenly dawned on

me la st night that it’s been almost 20 years since we set

those standards. A lot has changed since then. Most signi-

cantly, air quality has improved dramatically. Of the areas

that were designated nonattainment for the 1997 NAAQS

for ozone, over 90% of those areas now have air quality

that meets the 1997 ozone standard.

One thing that’s unchanged, though, is that setting an

ozone standard continues to be a very controversial Agency

action. As evidenced in part in the D.C. area, there were

numerous TV ads over the summer on both sides of the

issue. (Just as an aside, let me say that I like spirited policy

debates as much as the next person, but I really wish we

could declare baseball games policy-free zones. It was hard

enough watching televised Washington Nationals games

last summer without having work come through during

the commercials.)

is Environmenta l Law Institute forum, however, is

the per fect place for discussing important legal and pol-

icy issues. I’m looking forward to hear ing what my fel-

low panelists have to say and engagin g with the audience.

What I hope to do now is to give you some insight into

the standards-setting process, and then talk very briey

about implementation.

On t he sta ndard-setting side, the CAA requires us to

review and, if appropriate, revise the NAAQS ever y ve

years. e CAA provides that the EPA Administrator must

available at https://www.gpo.gov/fdsys/pkg/FR-2015-10-26/pdf/2015-

26594.pdf. e October 1, 2015, deadline was set by the court in Sierra

Club v. United States Environmental Protection Agency, No. 13-cv-2809

(N.D. Cal. Apr. 30, 2014).

Copyright © 2016 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.