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January 13, 2010

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EPA Proposes Stricter Ozone National Ambient Air Quality Standards

By: Mike Nasi, Jacob Arechiga, and Travis Wussow

On January 7, 2010, the U.S. Environmental Protection Agency (EPA) announced its proposed rule to establish stricter National Ambient Air Quality Standards (NAAQS) for ozone, also known as smog.1   The new 2010 ozone standards arise out of legal challenges to standards finalized March 2008 under the Bush Administration; these legal challenges argued that the 2008 standard was not strict enough.  The 2010 ozone standards are predicted to cost between $19 billion to $90 billion to implement nationwide and will have a significant effect on compliance and operating costs for business and industries, particularly major sources, located in counties that exceed the ozone NAAQS.  The current EPA proposal would put many parts of Texas and the United States in an ozone “nonattainment area” for the first time.

Regulatory History and Projected Timetable

In March 2008, the EPA revised the ozone NAAQS, increasing the stringency of the primary standard from 84 ppb (parts per billion) to 75 ppb.  The new rule proposes a standard between 60 ppb and 70 ppb. 

EPA has proposed a series of regulatory and compliance dates.  They are as follows:

  • August 2010: Rule finalized with definite primary standard between 60 ppb and 70 ppb.

  • January 2011: States required to recommend which areas should be designated as nonattainment.

  • July 2011: EPA makes final area designations.

  • August 2011: EPA designations become effective.

  • December 2013: States required to submit State Implementation Plans (SIPs) revisions demonstrating how the new standards will be met.

EPA will take public comment for 60 days following publication of the proposal in the Federal Register.  The EPA will also hold public hearings on February 2, 2010, in Houston, Texas and Arlington, Virginia and on February 4, 2010, in Sacramento, California.

The Potential Effects of Nonattainment Designation

Counties that are unable to meet the new ozone NAAQS will be designated “nonattainment” under the Federal Clean Air Act (FCAA).  States are charged with the responsibility of creating SIPS revisions for improving the air quality in nonattainment counties and bringing these counties into attainment.

Businesses operating in newly designated nonattainment counties—such as manufacturers, utilities, oil refiners, and stationary combustion sources—will face significant increased regulation.  For instance, existing major emissions sources could have to install reasonably available control technologies (RACT) to achieve certain reductions in emission of nitrogen oxides (NOx) and volatile organic compounds (VOCs).  Facilities may also need to undertake additional monitoring, recordkeeping, and reporting.

The construction of new sources of NOx or VOCs, or modification of existing sources, also becomes significantly more challenging in a nonattainment area.  These facilities would be required to install state of the art emissions control technology capable of achieving the Lowest Achievable Emission Rates (LAER), which does not allow for consideration of the cost of the technology. 

Furthermore, facilities that apply for permits allowing increased emissions must offset an equal or greater amount of emissions from the same, or other, sources in the area.  Offsets are not calculated on a 1-to-1 ratio; depending on the severity of nonattainment, may require up to a 1.3-offset-to-1 emission ratio. 

SIP measures could also require individuals to face lower speed limits, additional vehicle emission testing, and other transportation restrictions.

Effect on Texas Counties

If the new rule is finalized and a stricter ozone standard is implemented, additional Texas counties will be designated as nonattainment of the primary standard.  The number of counties will depend on the final standard selected by EPA.  Currently there are 20 nonattainment counties in Texas.  The 2008 standard would have likely captured an additional seven counties.2   Under the new primary standard, EPA predicts between three and eight additional Texas counties could be designated nonattainment, in addition to the seven already proposed to be included under the 2008 standard.3   This prediction, however, is only based on the counties with currently operating EPA monitors.  This number could grow if EPA obtains monitoring data in additional counties. 

  • Current Nonattainment Counties:

    • Beaumont-Port Arthur Area: Hardin, Jefferson, Orange

    • Dallas-Fort Worth Area: Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant

    • Houston-Galveston-Brazoria Area: Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery, Waller

  • Additional Proposed Nonattainment Counties under 2008 Standard:

    • Austin-Area: Travis

    • Dallas-Forth Worth Area: Hood

    • El Paso County: with the exception of tribal lands

    • San Antonio Area: Bexar

    • Tyler Area: Gregg, Rusk, Smith

  • Potential Additional Nonattainment Counties under 2010 Standard:

    • If new standard is set at 70 ppb: Harrison, Hunt, Nueces

    • If new standard is set at 65 ppb: Brewster, Hays, Victoria

    • If new standard is set at 60 ppb: Cameron, Hidalgo


Today, the new ozone NAAQS are only a proposal.  However, once this rule is finalized, it will be stricter than any previous ozone regulation in place in the United States.  Industries and businesses that emit NOx and VOCs located in or around nonattainment counties and those counties that could potentially be designated nonattainment under the new standards should be prepared for the additional compliance costs and burdens associated with these new ozone NAAQS.

For more information on these developments, please contact any of the following:

1 Ozone at the ground-level is also known as smog and is created when nitrogen oxides (NOx) and volatile organic compounds (VOC) react in the presence of sunlight.  EPA provides the following website for additional information regarding the Proposed Ozone NAAQS.

2 For additional information regarding Texas’ response to the March 2008 standard, CLICK HERE.

3 This is based only on data for counties where EPA currently has monitors in place.

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