Implementation of EPA's 8-Hour Ozone Standard

Order Code RL32345

CRS Report for Congress

Received through the CRS Web

Implementation of EPA’s 8-Hour Ozone Standard

April 20, 2004

-name redactedSpecialist in Environmental Policy

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

Implementation of EPA’s 8-Hour Ozone Standard

Summary

On April 15, 2004, the U.S. Environmental Protection Agency (EPA) designated

areas in 32 states and the District of Columbia (474 counties in all) as “nonattainment

areas” for a new ozone air quality standard. This standard was promulgated by EPA

in 1997, but because of court challenges and other delays is just now being

implemented. Designation begins a process in which the areas must adopt emission

control programs sufficient to bring air quality into compliance. Deadlines will vary

depending on the severity of the measured pollution. Areas failing to adopt adequate

plans or failing to demonstrate that their highway and transit construction programs

“conform” to approved emission budgets, are subject to sanctions, including a

possible lapse in the provision of federal highway funds.

While much attention has been placed on the challenges that new nonattainment

areas will face in implementing the new ozone standard, less attention has been paid

to the impact of the new standard on areas not yet in attainment of the old (1-hour)

ozone standard. Many of these areas, especially the most severely polluted, appear

likely to be given as many as 16 additional years to reach attainment under EPA’s

implementation plan. In the many explanations of EPA’s new “tougher” standards,

this apparent relaxation of the Act’s requirements for the most severely polluted areas

has gone largely unnoticed.

This report, which will be updated as developments warrant, provides

information on the designation process for nonattainment areas, describes EPA’s

implementation plan, and discusses issues that have been raised as EPA, the states,

and potential nonattainment areas develop implementation strategies. These issues

include how the boundaries of nonattainment areas should be set, how areas can

improve air quality sufficiently to attain the standard, what the timelines will be for

attainment, whether areas affected by upwind pollution can be granted extra time to

comply, what grants might be available to assist areas in reaching attainment, and

whether designation will have a negative impact on economic activity in the affected

areas. In response to some of these concerns, Congress is considering legislation that

might alter the implementation process. The courts may also be asked to review

whether the Agency’s implementation of the standard meets the statutory

requirements of the Clean Air Act.

Contents

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

National Ambient Air Quality Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The New Ozone Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Why There’s a Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

The Latest Revision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Determining Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Determining the Boundaries of Nonattainment Areas . . . . . . . . . . . . . . . . . . 3

Timelines for Reaching Attainment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Demonstrating Attainment: the State Implementation Plan . . . . . . . . . . . . . 6

Areas Affected by Upwind Pollution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Economic Impacts of Nonattainment Designation . . . . . . . . . . . . . . . . . . . . 8

Grants for Nonattainment Areas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Other Legislative and Regulatory Actions . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Implementation of EPA’s 8-Hour Ozone

Standard

Background

On April 15, 2004, EPA designated areas in 32 states and the District of

Columbia as “nonattainment areas” for a new ozone air quality standard.1 This

standard (and a separate standard for fine particulates) was promulgated by EPA in

1997, but because of court challenges and other delays is just now being

implemented. Designation begins a process in which the nonattainment areas must

adopt emission control programs sufficient to bring air quality into attainment by an

EPA deadline.

Some of the areas being designated have not previously been considered

nonattainment for ozone or for any other EPA air quality standard. This has raised

numerous questions about the process in these areas, including: when and why the

standard was established; what criteria are used to determine nonattainment; how

boundaries of the nonattainment area are established; whether special provisions can

be made for areas affected by pollution from upwind; what the deadline will be for

reaching attainment; what grants might be available to assist areas in reaching

attainment; and how designation might affect economic development and

transportation investments in an area. How areas already designated nonattainment

for EPA’s existing 1-hour ozone standard will be affected by implementation of the

new standard presents additional questions.

This report attempts to answer these questions and provides links to sources of

additional information. It also discusses legislation introduced in this Congress that

would alter the implementation process.

National Ambient Air Quality Standards

Under the Clean Air Act, EPA has set National Ambient Air Quality Standards

(NAAQS) for six pollutants: ozone, particulate matter (PM), carbon monoxide, sulfur

dioxide, nitrogen dioxide, and lead. The standards for these pollutants are healthbased: the statute requires that EPA set them at levels necessary to protect the public

health with an adequate margin of safety, based on a review of the scientific

literature.

1

For information on the designation process, including a list of the affected areas, see

[http://www.epa.gov/ozonedesignations/].

CRS-2

From time to time (every 5 years according to the statute, but less frequently in

practice), the Agency reviews the latest scientific studies and either reaffirms or

modifies the standards. The most recent changes (a strengthening of the ozone and

PM standards) were promulgated in 1997. Due to legal challenges and other delays,

the new standards have not yet been implemented, but in a November 2002 consent

decree, EPA committed to designating ozone nonattainment areas by April 15, 2004.2

The New Ozone Standard

Why There’s a Standard. Ozone is a lung irritant. Prolonged exposure to

it “can make people more susceptible to respiratory infection, result in lung

inflammation, and aggravate pre-existing respiratory diseases such as asthma,”3

according to EPA. Chest pain, cough, premature aging of the lungs, and chronic

respiratory illnesses are other potential effects. Studies conducted in the northeastern

United States and Canada indicate that ozone air pollution is associated with 10-20

percent of all summertime respiratory-related hospital admissions.4

The Latest Revision. EPA established a standard for short-term (1-hour)

concentrations of ozone in the early 1970s, and relaxed the standard (but retained the

1-hour format) in 1979. In recent years, however, research has indicated that

readings below (i.e., in compliance with) the 1979 standard produced symptoms in

moderately exercising adults, especially over longer periods of exposure. Thus, in

1997, after reviewing 190 scientific studies, the Agency revised the standard again.

The new standard is more stringent (0.08 parts per million vs. the previous 0.12), but,

for reasons explained below, it averages the ozone concentrations measured over 8

hours rather than 1 hour.

Determining Compliance. The method of determining compliance (or

attainment) was also modified in the latest revision. Under the 1-hour standard, areas

were allowed three exceedances of the standard in a 3-year period. The fourth

highest measurement in the 3-year period (termed the “design value” by EPA)

determined whether an area was in attainment.

This method of determining attainment struck some as arbitrary and potentially

unrepresentative of prevailing levels of pollution, particularly in areas that were close

to attaining the standard. Ozone forms in the atmosphere when volatile organic

compounds and nitrogen oxides react in the presence of heat and sunlight. Thus, the

concentrations of pollution are affected not only by emissions, but also by the

2

American Lung Association v. EPA, No. 1:02CV02239 (D.D.C. entered November 13,

2002).

3

U.S. EPA, Office of Air Quality Planning and Standards, Latest Findings on National Air

Quality, 2002 Status and Trends, August 2003, p. 8, available at

[http://www.epa.gov/airtrends/2002_airtrends_final.pdf].

4

U.S. EPA, Office of Air Quality Planning and Standards, “EPA’s Revised Ozone

Standard, Fact Sheet,” July 17, 1997, available at

[http://www.epa.gov/ttn/oarpg/naaqsfin/o3fact.html].

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weather, with high temperatures, sunlight, and stagnant air masses contributing to

high ozone concentrations. Under the three-exceedance method, a single heat wave

in a three-year period could produce design values exceeding the standard.

Under the new 8-hour standard, an area averages the fourth highest reading for

each of the three years to determine whether the area is in attainment. The longer

averaging time and the averaging of three years’ data reduce the influence of unusual

meteorological conditions in any given year, making the design value more

accurately reflect recurring pollution levels.

Determining the Boundaries of Nonattainment Areas

The Clean Air Act establishes a process for designating nonattainment areas and

setting their boundaries, but it allows the EPA Administrator some discretion in

determining what the final boundaries of the areas will be. In Section 107(d)(1)(A)

[42 U.S.C. 7407], the statute states that Governors shall submit a list to EPA of all

areas in the state, “designating as ... nonattainment, any area that does not meet (or

that contributes to ambient air quality in a nearby area that does not meet)” an air

quality standard. [emphasis added]

Following a Governor’s submission, the EPA Administrator has discretion to

make modifications, including to the area boundaries. The Agency has generally

used this discretion to expand the size of nonattainment areas, or to combine areas

that a state listed as separate areas into a single larger unit. In several cases, for

example, EPA has combined nonattainment counties across state lines into the same

nonattainment area, if the counties are part of the same metropolitan area. The states

are to be notified of any proposed modifications and given an opportunity to

demonstrate why a proposed modification is inappropriate, but the final

determination rests with EPA.

The Act is not specific in requiring that neighboring counties be combined in

the same nonattainment area, but it does require the use of metropolitan statistical

area boundaries in the more severely polluted areas (Section 107(d)(4)(A)(iv)).

Echoing this requirement, EPA recommended that Metropolitan Statistical Areas or

Consolidated Metropolitan Statistical Areas serve as the “presumptive boundary” for

ozone nonattainment areas under the 8-hour standard.5 As a result, metropolitan

areas are generally treated as units, even where part of the area lies in a separate state

or where part of the area does not have readings exceeding the standard. In the latter

case, even though a specific county may not exceed the standard, the pollution

generated there is likely to influence ozone readings elsewhere in the metropolitan

5

The Agency also identified 11 factors that States or tribes could use to justify larger or

smaller nonattainment area boundaries. See “Boundary Guidance on Air Quality

Designations for the 8-Hour Ozone National Ambient Air Quality Standards,” Memorandum

from John S, Seitz, Director, Office of Air Quality Planning and Standards, to All Directors,

Regions I-X, March 28, 2000, pp. 3-5, available at

[http://www.epa.gov/ttn/naaqs/ozone/ozonetech/des00328.htm].

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Table 1: Timeline for New Ozone Nonattainment Areas

! April 2004: EPA finalizes implementation rule

! April 15, 2004: EPA finalizes designations

! ~ June 2004: Designations appear in Federal Register

! ~ June 2005: Areas must begin demonstrating conformity of transportation

programs with emissions budgets

! ~ June 2007: State Implementation Plans (SIPs) must be submitted to EPA

! 2007-2021: Attain standards

___________________________________________________________________

area. In addition, by including the entire metropolitan area, one avoids the creation

of additional incentives for sprawl development on the fringes of urban areas.

EPA designated 124 areas nonattainment under the new standard. These areas

include 297 counties that have monitors showing nonattainment. By including other

counties that are within these metropolitan areas or that, in EPA’s judgment,

influence air quality in the nonattaining counties, the Agency included 474 counties

in all in the 124 nonattainment areas. More information on the specific areas,

including lists of the counties, is at [http://www.epa.gov/ozonedesignations/].

Timelines for Reaching Attainment

As indicated in Table 1, the ultimate deadline for attaining the 8-hour standard

can vary widely, from 2007 to 2021, depending on the severity of pollution in the

nonattainment area and its status under the old 1-hour standard. Roughly two-thirds

of the areas (82 of 124) were considered attainment under the old standard, and are

governed by sections of the Clean Air Act referred to as “Subpart 1."6 (These areas

are labeled “Basic” in EPA’s nonattainment area charts.) Most of these areas face

a deadline of 5 years after designation (June 2009), with a possible extension to 2014

if the area would have difficulty attaining the standard in five years.

Some of the areas volunteered for EPA’s Early Action Compact program, which

is described below on page 10. These areas signed enforceable agreements to meet

the standard by December 2007, in return for flexibility regarding specific regulatory

requirements. If they fail to meet the standard by that date, their designation as Basic

nonattainment areas will become effective April 15, 2008, presumably with a 2013

deadline.7

6

The Subpart 1 provisions are found in Sections 171-179B of the Act.

7

For additional information, see Fact Sheet, Clean Air Ozone Rules of 2004 at

(continued...)

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The other 42 areas not designated as “Basic” are mostly areas that are currently

nonattainment under the 1-hour standard in addition to the new 8-hour standard. The

Agency expects to revoke the 1-hour standard one year after implementing the new

standard, but as a result of a 2001 Supreme Court decision,8 it is required to adapt the

detailed statutory requirements of “Subpart 2" of the Act to these areas.9

In Subpart 2, Congress established separate deadlines and specific control

requirements for five categories of 1-hour ozone nonattainment areas, depending on

the degree to which they exceeded the standard (i.e., their design value). The five

groups were referred to as Marginal, Moderate, Serious, Severe, and Extreme, and

they were given attainment deadlines that ranged from 3 years to 20 years after the

date of enactment.10 EPA will use these terms to categorize the 8-hour areas that are

also currently in nonattainment of the 1-hour standard, with deadlines stretching from

3 years to 17 years after designation. These areas initially have been given deadlines

of 2007, 2010, 2013, or 2021, depending on their design value. Over the years, those

that fail to attain the standard by their deadline will be bumped up to the next

category with an extension of their deadline. Thus, ultimately, all these areas can be

given until 2021 to reach attainment.

The net effect of this will be that areas that currently have deadlines ranging

from 2005-2010 (under the 1-hour standard) may eventually be allowed until 2021

to attain the new standard. For example, Washington, D.C. was recently designated

as a Severe ozone nonattainment area under the 1-hour standard, with an attainment

deadline of 2005. Under the 8-hour standard, it has been redesignated as Moderate

with a 2010 attainment deadline. If the area does not attain the standard by that date,

it would presumably be bumped up into the Serious category, with a 2013 deadline.

or eventually into the Severe category with 2019 or 2021 deadlines. Few additional

requirements would be mandated by the statute in connection with these deadline

extensions, as the area is already subject to most of the requirements for Severe areas

now and would remain so under EPA’s implementation plan.11

7

(...continued)

[http://www.epa.gov/ozonedesignations/finrulefs.htm].

8

Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001). See CRS Report RS20860,

The Supreme Court Upholds EPA Standard-Setting Under the Clean Air Act: Whitman v.

American Trucking Ass'ns.

9

The Subpart 2 provisions are found in Sections 181-185B of the Act.

10

For additional discussion, see CRS Report RL30853, Clean Air Act: A Summary of the

Act and Its Major Requirements.

11

In a section of its implementation plan for 8-hour areas entitled “2. What Requirements

That Applied in an Area for the 1-Hour NAAQS Continue to Apply After Revocation of the

1-Hour NAAQS for that Area?”, EPA states, “All areas designated nonattainment for the

8-hour ozone NAAQS and designated nonattainment for the 1-hour ozone NAAQS at the

time of designation for the 8-hour NAAQS remain subject to control measures that applied

by virtue of the area’s classification for the 1-hour NAAQS.” These obligations include

major source thresholds, inspection and maintenance (I/M) programs and fuel programs.

Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard – Phase

1, p. 118, available at [http://www.epa.gov/ozonedesignations/finalrule.pdf]. (The rule had

(continued...)

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In all, EPA lists 51 areas with a combined population of 110 million as being

in nonattainment of the 1-hour standard.12 All of these areas are likely to receive

extra time – potentially up to 16 years – to reach attainment under the new standard.

In the many explanations of EPA’s new “tougher” standard, this apparent relaxation

of the Act’s requirements for the most severely polluted areas has gone largely

unnoticed.

Demonstrating Attainment: the State Implementation Plan

The main requirement that follows designation of an area as nonattainment is

for the area to develop a State Implementation Plan (SIP) that demonstrates how it

will reach attainment. The SIP sets forth pollution control measures that will be

implemented by federal, state, and local governments. It relies on models of the

impact on air quality of projected emission reductions to demonstrate attainment. To

be approved, a SIP must demonstrate that the area will reach attainment of the

standard by its deadline.

EPA has concluded that in the majority of cases, attainment will be reached as

the result of new federal standards on cars, light trucks, and heavy duty diesel engines

that are scheduled to be implemented between 2004 and 2010, and by controls on

coal-fired electric power plants (the “NOx SIP Call” and the proposed “Interstate Air

Quality Rule”) to be implemented between 2004 and 2015, without any additional

local controls.13 Of 297 monitored counties that exceeded the 8-hour standard in

2002, only 35 would remain in nonattainment after implementation of these federal

regulations, according to EPA.14

In reality, however, all areas will require some local controls because of the

requirements of the statute. In addition to submitting a SIP, each of the areas will be

required to conduct an emissions inventory and must meet three regulatory

requirements: 1) impose Reasonably Available Control Technology (RACT) on

major stationary sources of pollution; 2) require new stationary sources to “offset”

their emissions by arranging for the reduction of equivalent or greater emissions at

existing sources; and 3) demonstrate that any new highway or transit projects

“conform” to the emissions budget used in their State Implementation Plan.15 These

measures are described in more detail below.

11

(...continued)

not been published in the Federal Register as of April 20.)

12

For information on these areas, see the ozone section of U.S. EPA’s “Green Book,” at

[http://www.epa.gov/oar/oaqps/greenbk/oindex.html#List1].

13

For a further discussion, see CRS Report RL32273, Air Quality: EPA's Proposed

Interstate Air Quality Rule.

14

Personal communication, Office of Air Quality Planning and Standards, U.S. EPA, April

7, 2004.

15

A table summarizing these and other requirements for ozone nonattainment areas is

available at [http://www.epa.gov/ozonedesignations/ozonesamplerequirements.htm].

CRS-7

The number of areas requiring local controls may also be higher than EPA’s

projections would suggest, because of a mismatch between the nonattainment area

deadlines and the timetable for implementation of the Interstate Air Quality Rule

(IAQR). The IAQR, as proposed by EPA in January 2004, would be implemented

in two phases, with deadlines of 2010 and 2015. The Subpart 1 nonattainment areas,

however, must demonstrate attainment by 2009 or 2014. The upshot is that

reductions achieved under IAQR may not be useable in demonstrating attainment.

This has led some to argue that EPA should modify the IAQR deadlines to ease local

areas’ task of demonstrating attainment.

Nonattainment areas unable to demonstrate attainment through federal measures

and the three basic requirements alone can adopt a wide range of local measures to

reduce emissions. The most common affect motor vehicles, fuels, stationary sources

of pollution, and consumer products.

Regarding motor vehicles, for example, most current nonattainment areas have

adopted what are called “inspection and maintenance” programs. These programs

require owners to bring their vehicles to testing facilities or local garages for

emissions tests, and to repair the emission control system or engine if the vehicle

fails. Many areas also require that gasoline sold in the area be cleaner burning

“reformulated” gasoline, and that gas stations install equipment to capture

evaporative emissions from refueling.

Stationary sources (industrial and commercial facilities) will be subject – as

noted earlier – to reasonably available control technology in nonattainment areas.

Depending on the severity of an ozone nonattainment area’s pollution, RACT is

required at sources that emit more than 10, 25, 50, or 100 tons of pollution per year.

New stationary sources are also required to “offset” their emissions by arranging for

the reduction of equivalent or greater emissions at existing sources. Again,

depending on the severity of an area’s pollution, the required offset may be as low

as 1 ton for each new ton of pollution emitted, or as high as 1.3 tons for each new ton

of pollution.

In extreme cases, consumer products, such as lawn and garden equipment, paint,

gasoline storage cans, air fresheners, and personal care products may be subject to

regulation in nonattainment areas. Many of these products are sources of volatile

organic compounds, which combine with nitrogen oxides to form ozone in the

atmosphere.

Areas Affected by Upwind Pollution

One of the more frequent issues raised in nonattainment areas is whether any

special consideration can be given to areas whose air quality is adversely affected by

pollution from upwind areas. In recent years, EPA has attempted to extend the

deadlines for attainment in at least seven such areas (all of them regulated under

Subpart 2), but its attempts to do so have been overturned by court decisions in three

separate circuits. (The cases involved St. Louis, Washington, D.C., and BeaumontPort Arthur, Texas.) As a result, the Agency is unable to provide deadline extensions

CRS-8

under Subpart 2, except when it bumps an area into a more severe category and

imposes additional pollution control requirements.

Subpart 1 of the Act is more flexible, however. Under its provisions, EPA may

“classify the area for the purpose of applying an attainment date” and may consider

such factors as “the availability and feasibility of pollution control measures” in

doing so. This language might give the Administrator sufficient authority to allow

an extra 5 years to reach attainment under Subpart 1 in areas affected by upwind

pollution.

Areas classified under either subpart may also petition the Agency under Section

126 of the Act to impose controls on upwind sources that significantly contribute to

their nonattainment of the standard.16 The Agency has also recently imposed

additional controls on sources of nitrogen oxides (which contribute to ozone

formation downwind) through its “NOx SIP Call,”17 and has proposed additional

NOx controls in its Interstate Air Quality Rule and Regional Haze Rule.18

Economic Impacts of Nonattainment Designation

Another concern over nonattainment designation is that it will have a negative

impact on an area’s economic development. Potential economic impacts are among

the most frequently voiced concerns raised by local business and political leaders.

Nonattainment designation does add requirements that make investment in an

area more complicated. As noted earlier, it requires major sources of pollution

(generally those that emit more than 100 tons per year of volatile organic compounds)

to offset their pollution by equivalent or greater emission reductions from existing

sources when obtaining permits to operate new or modified facilities. And it requires

highway and transit planners to demonstrate that new projects “conform” to the

area’s State Implementation Plan.19

16

A number of such petitions have been filed with the Agency. The most well-known are

those that were filed in August 1997 by 8 northeastern states, 4 of which were granted by

the Agency in January 2000. For additional information on these, see CRS Report 98-236,

Air Quality: EPA’s Ozone Transport Rule, OTAG, and Section 126 Petitions – A Hazy

Situation?

17

The NOx SIP Call requires electric utilities in 22 Eastern states and the District of

Columbia to reduce transport of ozone across state lines by limiting emissions of NOx.

Phase 1 of the regulations goes into effect in May 2004. For information, see

[http://www.epa.gov/ttn/naaqs/ozone/rto/sip/index.html].

18

As noted earlier, for a discussion of the IAQR, see CRS Report RL32273, Air Quality:

EPA's Proposed Interstate Air Quality Rule. The Regional Haze Rule (specifically, a rule

establishing Best Available Retrofit Technology at stationary sources in 26 industrial

categories) is available at [http://www.epa.gov/visibility/actions.html].

19

For additional information on conformity, see CRS Report RL32106, Transportation

Conformity Under the Clean Air Act: In Need of Reform?

CRS-9

It does not amount to a “standstill order on growth,” however, as has frequently

been charged.20 A recent EPA analysis found that 6.5 million jobs were created in

ozone nonattainment areas from 1990 to 1998, and that “over 55 percent of ozone

nonattainment areas had average annual employment growth rates greater than that

of their region of the country.” Personal income growth in nonattainment areas

essentially matched the national average between 1990 and 1998, according to the

Agency (38.5% vs. 38.9%).21

Grants for Nonattainment Areas

EPA does not have a grant program designed to assist nonattainment areas,

although it does provide grants to state air pollution agencies in support of their

programs. But many nonattainment areas have benefitted from a program

administered by the Department of Transportation: the Congestion Mitigation and

Air Quality Improvement program (CMAQ). CMAQ’s purpose is to reduce

emissions from highway travel as a means of assisting states in complying with the

National Ambient Air Quality Standards for ozone, carbon monoxide, and particulate

matter.

CMAQ is funded by the Highway Trust Fund, out of which Congress has

authorized $8.1 billion to the states over the last 6 years (FY1998 - FY2003).

Projects eligible for funding include: (1) mass transit; (2) traffic flow improvements;

(3) rideshare programs; (4) traffic demand management programs; (5) bicycle and

pedestrian projects; (6) public education; (7) vehicle inspection and maintenance

programs; and (8) conversion of vehicles to burn alternative fuels. According to the

Federal Highway Administration, 44% of total CMAQ funds have been obligated

for mass transit projects since the program’s inception in FY1992.

CMAQ funds are distributed based on a formula that takes into account

population and severity of pollution. (In addition, each state is guaranteed 0.5% of

the total, even if it has no nonattainment areas.) The formula currently in use (which

was established by statute) determines the severity of ozone pollution by using the

area’s categorization under the 1-hour ozone standard.

Because “Basic” areas are not part of the old categorization scheme, there is

currently not a factor in the funding formula to provide CMAQ funds for the new

ozone nonattainment areas. Providing funds to these areas would require

amendments to the authorizing legislation. The surface transportation bill passed by

20

This phrase was used by the EPA Administrator, Mike Leavitt, in a January 9, 2004

speech to the Edison Electric Institute. But the Administrator subsequently reversed his

position. In a speech April 14, he said: “Did non-attainment designation mean that we

couldn’t grow our economy or build highways? No. Did it mean we had to have a plan and

take action to clean our air?

Yes.”

For the full speech, see

[http://yosemite.epa.gov/administrator/speeches.nsf/b1ab9f485b098972852562e7004dc6

86/393855f25023abdb85256e7600589dbe?OpenDocument].

21

U.S. EPA, Office of Air and Radiation, “The Historical Record: Nonattainment Status and

Economic Growth,” February 26, 2002.

CRS-10

the Senate, S. 1072, would amend the funding formula to include 8-hour ozone

nonattainment areas (as well as areas to be designated nonattainment for a new fine

particulate standard). The bill passed by the House, H.R. 3550, would not do so.

The Senate bill would also provide a substantial increase in CMAQ funding, to $13.4

billion over the 6 years FY2004-FY2009, a $5.3 billion (65%) increase above the

previous authorization. The House bill would provide a smaller increase, to $9.4

billion (16%). Both bills would expand the types of projects eligible for assistance,

although in different ways.

Other Legislative and Regulatory Actions

Concern over the potential impacts of the new ozone and particulate standards

has led to several attempts to modify the implementation requirements. Legislative

attempts have generally been attached to larger pieces of legislation, and (with the

exception of an amendment clarifying the schedule for implementation in the late

1990s) have not been enacted.

Section 1443 of the energy bill (H.R. 6), for example, would extend attainment

deadlines in areas affected by upwind pollution to the date on which the last

reductions in pollution necessary for attainment in the downwind area are required

to be achieved in the upwind area. Section 970 of the bill would require a

demonstration project to address the effect of transported ozone and ozone precursors

on air quality in southwestern Michigan, and would prohibit EPA from imposing any

requirements or sanctions during the two years pending the project’s completion.

The conference report on H.R. 6 passed the House November 18, 2003. The Senate

began debate on it November 19, but a cloture vote on November 21 failed to achieve

the 60 votes necessary to end debate on the bill, leaving its future uncertain.

The Administration has proposed an additional modification of the requirements

for areas not meeting the new ozone and fine particle standards in its Clear Skies bill

(H.R. 999 / S. 485). In Section 3, Clear Skies would allow EPA to avoid designating

8-hour ozone and PM2.5 areas as nonattainment until 2016, provided that the area

demonstrates that it will attain the standards by December 31, 2015. Areas fitting into

this new "transitional" category could avoid additional regulatory controls, including

the requirement to demonstrate conformity, if they could demonstrate that attainment

would be achieved through the imposition of federal controls on utilities, diesel

engines, automobiles, and other sources. No action has been taken on this bill.

EPA has also modified the implementation requirements for a number of areas

in response to an initiative from the State of Texas. In 2002, EPA approved a

protocol suggested by the state under which areas can avoid most ozone

nonattainment area requirements (including transportation conformity) until

December 31, 2007, if they voluntarily commit to enforceable Early Action

Compacts with their state and EPA. The protocol sets out a number of milestones that

areas must meet to qualify. Thirty areas (mostly in the southeastern states) have met

CRS-11

the first requirements and were identified as eligible for the program on April 15,

2004.22

Conclusion

The 8-hour ozone standard will affect numerous areas that have not previously

been designated nonattainment for a National Ambient Air Quality Standard. This

has raised concern in these areas regarding the potential impacts, and triggered

numerous questions regarding the specifics of the implementation process.

In many – perhaps a majority of – cases, it appears that new nonattainment areas

will have little difficulty demonstrating attainment: EPA projects that federal

measures, such as new auto and truck emission standards and controls on power

plants, will be sufficient to demonstrate attainment in 88% of monitored

nonattainment counties by 2015.

In areas currently designated nonattainment under the 1-hour ozone standard,

the principal effect of the new standard is likely to be more time to reach attainment

– as many as 16 years more, in some cases. For officials facing deadlines under the

old standard as early as 2005, this may be welcome news.

In any event, the implementation plan (like most EPA rules) may be challenged

in the courts. The Agency’s first attempt at an implementation plan was among the

issues remanded by the Supreme Court in a 2001 decision that addressed a number

of issues related to the setting of the 8-hour standard.23 It would not be surprising if

interested parties returned to the courts in the months ahead as the Agency attempts

to implement a new version of its implementation plan. Thus, we may not know the

final form of implementation or its effects for some time.

22

For information on the Early Action Compacts, see EPA’s Early Action Compact website

at [http://www.epa.gov/ttn/naaqs/ozone/eac/].

23

Whitman v. American Trucking Ass’ns, 531 U.S. 457 (2001). See CRS Report RS20860,

The Supreme Court Upholds EPA Standard-Setting Under the Clean Air Act: Whitman v.

American Trucking Ass'ns, pp. 4-5.

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