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EPA recently signed the most stringent national ambient air quality standards (NAAQS) ever for ground-level ozone (O3) — a component of smog. By the EPA’s own estimates, the number of counties in nonattainment will more than quadruple under the new standard.
EPA set the new eight-hour primary (designed to protect human health) and secondary (designed to protect welfare) standards at 0.075 part per million (ppm), replacing the existing standards set at 0.08 ppm (73 Fed. Reg. 16,436 (March 27, 2008)). EPA’s projections, based on 2004-2006 modeling data, indicate that the number of nonattainment areas will increase from 85 under the current 0.08 ppm standard to 345 under the new 0.075 ppm standard (see http://www.epa.gov/glo/pdfs/2008_03_monitors_violating_2008.pdf).
States must submit proposed designations (i.e., attainment, nonattainment, and unclassifiable) within one year after promulgation (March 2009), and EPA must issue final designations within two years (2010). States with areas that are in nonattainment with the new standard must submit state implementation plans (SIPs) outlining how they will reduce pollution to meet the standards no later than three years after EPA's final designations (2013). These states will then have between three and 20 years after designation (2013-2030) to attain the new ozone NAAQS, depending on the severity of nonattainment in each area.
Because diesel engines contribute to ozone levels, off-road construction equipment powered by diesel engines may be targeted by states struggling to meet federal clean air requirements. Potential SIP strategies could include: idling limits; equipment use restrictions; early fleet retirement or replacement mandates; fuel standards; or engine retrofit requirements.
States that fail to develop suitable SIPs could be subject to numerous federal sanctions, including emissions caps limiting economic development and the loss of federal highway transportation funds. Eleven states have failed to submit complete SIPs for the less stringent, 1997 eight-hour standard for ozone and now face the possibility of federal sanctions, according to an EPA final rule issued March 24 (73 FR 15416).
EPA’s regulatory impact analysis shows that the cost of implementing the new standards range from $7.6 billion to $8.5 billion. However, the Clean Air Act prohibits EPA from considering costs in setting or revising the national air quality standards. Acknowledging the extreme costs of this regulation, the EPA Administrator has stated that changes are needed to modernize the Clean Air Act including (1) allowing decision-makers to consider benefits, costs, risk tradeoffs, and feasibility in making decisions about how to clean the air and (2) allowing the schedule for addressing NAAQS standards to account for the multi-pollutant nature of air pollution.
The Clean Air Act requires EPA to review and revise, as necessary, the NAAQS every five years. The agency last revised national ozone standards in 1997. Because the agency missed its deadline for reviewing the standard, environmental groups sued and the 2008 standards come as a result of a court-ordered settlement.
On May 27, 2008, health and environmental organizations filed a lawsuit arguing that the EPA failed to protect public health and the environment when it issued in March 2008 new ozone standards. Eleven states filed a parallel suit against the EPA in an effort to overturn EPA's decision on the ozone standards.
 
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