The US Environmental Protection Agency (EPA) is expected to release its list of communities designated in “nonattainment” with the Agency's new, stricter 8-hr national ambient air quality standard (NAAQS) for ground-level ozone by April 30, 2004.

Ground-level ozone forms when emissions of its precursors, nitrogen oxides (NO_X) and volatile organic compounds (VOCs), react in sunlight. As state regulators grapple with the need to revise state implementation plans (SIPs) to bring these areas into attainment, converters must be alert for new air emission control measures imposed as part of new or modified permit requirements, or restrictions on future increases in production or operating periods.

EPA replaced its existing 1-hr ozone NAAQS in 1997 with a new, more stringent 8-hour standard.¹ Under the old standard, ambient air quality regions whose maximum hourly average ozone concentration exceeded 0.12 parts per million (ppm) for more than one day (based on three years of monitoring data), were designated as nonattainment for ozone. The new standard lowers the acceptable ozone ambient air quality level to 0.085 ppm, averaged over any 8-hr period. Because the 8-hr NAAQS was subjected to extensive litigation, EPA reinstated the 1-hr standard on July 20, 2000.

The Agency also republished all ozone attainment and nonattainment designations in effect prior to the standard's earlier rescission. The 8-hr standard eventually was upheld by the Supreme Court in Whitman v. American Trucking Association, 531 U.S. 457 (2001).² Nevertheless, the 1-hr standard continues to apply in ozone nonattainment areas that have not yet met the 1-hr standard while the Agency considers how best to implement the 8-hr NAAQS.

On June 2, 2003, EPA published its proposed strategy for implementing the 8-hr ozone standard.³ The Agency is considering several approaches for implementing the new standard, including how best to phase out the 1-hr standard and replace it with the new 8-hr standard. EPA is expected to finalize its implementation strategy sometime before the summer but is facing significant political backlash for some of its nonattainment designation.

Pursuant to a settlement agreement with the American Lung Association, EPA must issue its final nonattainment designations by April 15, 2004.

The Agency has completed its review and modification of nonattainment area boundaries proposed by the states, which were developed from on air monitoring data taken from 2000-2002, but it is under significant pressure from several states to defer or postpone indefinitely designating counties that are in marginal nonattainment or that are in attainment but contribute to the nonattainment of the surrounding metropolitan area.

For example, Indiana Gov. Joe Kernan recently requested EPA postpone indefinitely designating 14 counties where the state can demonstrate the ozone standard will be achieved with control measures already in place.

At issue are state and industry concerns that more restrictive control measures under the 8-hr ozone NAAQS will prove unnecessary in marginal nonattainment areas only now emerging from a recession.

The states are required to prepare and submit to EPA an SIP that details the means by which nonattainment areas will be brought into attainment. Potential measures include requiring new and modified sources demonstrate through their construction permits they will not exceed VOC emission limits, or of concern to converters, offsetting emissions from new and modified sources with VOC emissions reductions in existing sources.

Exacerbating these concerns is EPA's continued delay in finalizing its implementation strategy, which necessarily determines the compliance schedule for each nonattainment area. In addition to more restrictive controls, converters may suffer as a result of other requirements imposed on states with nonattainment areas:

• Transportation Conformity —a demonstration that regional long-range transportation plans will not negatively affect progress toward attainment or federal highway funds can be withheld.
• Rate of Progress Requirements —a certain percentage of pollutants must be reduced each year.
• Failure to Attain —consequences of failure to reach attainment by the specified date include stricter control measures as well as the potential for stiff penalties.
• Ten-Year Maintenance Plan —includes additional or continuing mandatory programs for ten years following attainment.

1. National Ambient Air Quality Standards for Ozone, 62 Fed. Reg. 2 (July 18, 1997).
2. As reported in the May 2002 issue of Paper, Film and Foil Converter, the D.C. Circuit subsequently disposed of all other challenges to the ozone NAAQS in American Trucking Assn. Inc. v. E.P.A., No. 97-141 (D.C. Cir. Mar. 26, 2002).
3. Proposed Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard, 68 Fed. Reg. 32,802 (June 2, 2003).

Sheila A. Millar, a partner with Keller and Heckman LLP, counsels both corporate and association clients. Contact her at 202/434-4143; millar@khlaw.com; PackagingLaw.com.