American Trucking What To Do Now About Ozone


In its recent decision in Whitman v. American Trucking Associations, Inc., the United States Supreme Court upheld EPA's adoption of a revised National Ambient Air Quality Standard (NAAQS) for ozone.  Ozone is a chemical formed in the atmosphere, which is commonly referred to as urban smog.  EPA's more stringent revised standard could result in the Austin, San Antonio, and Tyler/Longview areas joining the Dallas/Fort Worth, Houston/Galveston, Beaumont/Port Arthur, and El Paso areas as "nonattainment."   The Court's decision provides an impetus for Congress to amend the Clean Air Act to establish a more rational and efficient approach for achieving the NAAQS.
The Court ruled that EPA is not required to consider potential economic burdens in the setting of a NAAQS.  EPA is only required to determine the maximum level of ozone that may occur without adversely affecting public health.  The Court also held that EPA did not improperly exercise legislative powers that belong to Congress.   As a result,  EPA probably will move forward with implementation of its revised ozone NAAQS.
What remains uncertain, however, is how that implementation will proceed. The Court rejected EPA's implementation policy, but found that the statute was ambiguous on how EPA should implement a revised NAAQS.  The Court left resolution of that ambiguity to EPA.  Development of an implementation strategy is critical because that is where EPA may consider the costs of achieving the standard.  Congress, therefore, may wish to step in and provide guidance.
EPA originally established the ozone NAAQS in 1971, anticipating that practically all areas of the country could achieve compliance by 1975. Despite significant and expensive reductions in emissions of volatile organic compounds, by 1977 most urban areas were still non-attainment. Congress then amended the law to require attainment in most areas by 1982 and in all areas by 1987; an additional round of expensive VOC reductions occurred.  By 1990, most urban areas still remained nonattainment even though EPA, in 1979, revised the ozone NAAQS to make it 50% less stringent. The 1990 federal Clean Air Act Amendments established yet another set of ozone attainment deadlines, varying from 1993 through 2010.  Those amendments also changed the emphasis from volatile organic compounds to nitrogen oxides, which has resulted in the adoption of rules that will require massive reductions in nitrogen oxide emissions at industrial sources.  In Texas, the State also has implemented or seriously considered, among other things, requiring air conditioners to be coated with ozone-reducing catalysts, banning use of lawn mowers and heavy construction equipment in morning hours during the summer, and imposing hard-to-enforce lower speed limits.  It is already clear that Congress' latest deadlines, like their predecessors, are not realistic.  The Dallas/Fort Worth area, for example, was to have achieved attainment by 1996, but remains far from it.
A significant reason why most major urban areas in the country remain nonattainment, despite massive expenditures for pollution control, is the inadequacy of prior and existing computer methodologies to accurately predict concentrations of ozone, because of the numerous complex factors involved in ozone formation.  Based upon the thirty year history of missed attainment deadlines, there is little reason to believe that the massive emission reductions now contemplated will result in significant changes in ozone attainment status, under either the old ozone standard, or the new, more stringent, revised standard.
Congress should recognize that controlling ozone is far more complex than controlling other air pollutants.  A system of fixed deadlines and draconian sanctions does not make sense given our inability to predict what is needed to achieve attainment.  Moreover, mounting evidence suggests that the greatest threat to public health from common air pollutants in urban areas may be from fine particulate matter and not ozone.
These comments should not be interpreted as a call for backsliding. Previous efforts at controlling emissions are probably responsible for the fact that ozone levels in Texas have generally either remained flat or declined in the past 30 years, despite the sizeable growth in the state's urban areas.  We should pursue additional emission reductions  through less expensive and unobtrusive measures, including the use of cleaner fuels and a new generation of cleaner motor vehicles.  Congress should encourage continuation of these efforts, but should revise the federal Clean Air Act to call for an implementation strategy that insures progress towards the goal of ozone attainment without the deadlines, sanctions, and strategies that have resulted in complex, onerous and expensive regulations.

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