Washington Outlook

Awaiting Supreme Court Action, U.S. EPA Reinstates Prior Air Standard
Agency Also Designates Local Areas Under Contested New Standard

By Shane Robinson
July 17, 2000

While waiting for the U.S. Supreme Court to rule on the new "8-hour standard" for ozone, the U.S. Environmental Protection Agency July 6th reinstated the old "1-hour standard," as an interim measure, an action affecting many areas of the country.

Before a federal appeals court had rendered the new 8-hour standard unenforceable, US EPA had previously revoked the 1-hour standard in about 3,000 counties. Beginning in 1998, the agency took that action so that these areas could move toward compliance with the new standards. According to EPA, "the revocation was designed to allow areas that had met the 1-hour standard to redirect their focus toward meeting the 8-hour standard" that had been promulgated in July 1997.

However, efforts to implement the new 8-hour standard were put on hold in May 1999 when the Court of Appeals for the District of Columbia Circuit first ruled against EPA's position, making the new standards unenforceable. The Federal government is appealing the D.C. Circuit's decisions to the Supreme Court, a case that was accepted to the upcoming session of the Court.

For cities and localities, the uncertainly about applicable standards has created much confusion. The D.C. Circuit decisions limited the manner in which EPA can implement the new standards. At the same time, however, the court appears to have affirmed EPA's authority to make designations under the new standards.

Congress Gets Involved

The prospect of US EPA being able to designate cities and localities as being in non-attainment of a standard that EPA can not enforce prompted Congressional action. Last month, the House of Representatives approved a spending bill with a rider that would prevent the agency from issuing these classifications until all issues are resolved by the Supreme Court. "The only common sense approach is to delay this process until the Supreme Court reaches its decision," said Representatives Mac Collins (GA) who, cosponsored the amendment with John Linder (GA). While this approach purports to make the situation less confusing, Representative Sherwood Boehlert (NY) disagrees, saying that "the idea here is dirty air doesn't exist if it isn't officially recognized."

Unless restricted by legislation, US EPA will continue to designate cities as either being in attainment or non-attainment with the new 8-hour standard, based on the new, contested rules. The first step in the 8-hour standard designation process started with the States recently making their own recommendations about how areas within their state should be designated. These recommendations were to be made to EPA by June 30 (at press time, however, the full set of recommendations was not yet available to US Mayor). Next, the EPA will begin the process of reviewing these recommendations and will work with the States toward reaching agreement. The agency can formally issue classifications after this process is completed.

Reinstatement of the 1-Hour Standard

However the issues over the new standards are resolved, many areas are now faced again with complying with regulations of which they had previously been relieved. Now that the 1-hour standard has been reinstated, fifty-three areas around the county will be required to take some kind of action. Forty-five of these (covering various cities and localities in 96 counties) have had no violations since the standard was revoked. These areas (see box below), many of which are multi-county areas, can now apply for redesignation to attainment.

There are, however, numerous other areas where reinstatement has triggered non-attainment/maintenance requirements under Clean Air Act rules. There are about seven areas (covering various cities and localities in 24 counties) that were previously designated as attainment have had violations since the 1-hour standard was revoked in 1998. These areas had all at one time been designated non-attainment, but upon attaining the standards were redesignated attainment and required to adopt maintenance plans to prevent air quality from deteriorating. There are a small number of areas that have always been designated as being in attainment, and so have no maintenance plans, but have had violations since revocation.

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