Nelson Mullins Riley & Scarborough

On January 6, EPA issued a proposal to tighten the national ambient air quality standards (NAAQS) for ozone (the main component of smog).  The ozone standard will be changed from the standard set in 2008 of 0.075 parts per million (ppm) to 0.060-0.070 ppm.  The standard covers emissions from industrial facilities, electric utilities, vehicle exhaust, gasoline vapors, and chemical solvents.  EPA estimates the cost of its proposal at $90 billion nationwide and estimates potential savings through health improvements at $100 billion.

Comments on EPA's proposal will be due after March 16 (this date will be updated after EPA publishes the proposal in the federal register).

Public hearings will be held in the Washington DC area on February 2, Houston on February 2, and Sacramento, February 4.  Participants wishing to present statements should contact Ms. Tricia Crabtree at: crabtree.tricia@epa.gov

 Analysis for SBCRR Subscribers 

While EPA's proposal contains extensive information about the cost of the standard and its potential health benefits, the agency does not explain how the revised standard will impact small businesses.  EPA is allowed to bypass special consideration of small business because the standard indirectly impacts the business community.  

The rationale of EPA certifying that the rule will not impact small business is on pages 395-396 of EPA's proposal.  Text immediately follows: 

After considering the economic impacts of today's proposed rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This proposed rule will not impose any requirements on small entities. Rather, this rule establishes national standards for allowable concentrations of O3 in ambient air as required by section 109 of the CAA. See also American Trucking Associations v. EPA. 175 F. 3d at 1044-45 (NAAQS do not have significant impacts upon small entities because NAAQS themselves impose no regulations upon small entities). We continue to be interested in the potential impacts of the proposed rule on small entities and welcome comments on issues related to such impacts

While there is no legal requirement that EPA solicit information on the revised standard's cost on small business, the agency is asking for comments and small businesses are encouraged to inform EPA how they will be impacted.  A short article by leaders in El Paso, Texas (see "Key Documents," below) outlines some views on the potential economic impact on local businesses.

Frustration over the lack of small business sensitivity by EPA in issuing these standards may lead to legislative changes.  Changes to the Regulatory Flexibility Act could require agencies to minimize costs that are indirectly imposed through federal mandates.

Key Documents

• EPA's proposal to revise the National Ambient Air Quality Standards for Ozone:  click here
• EPA's fact sheet on its proposal:  click here
• Federal Register notice on the public hearings scheduled for February 2 and February 4:  click here
• LA Times story on EPA's proposal:  click here
• Criticism of new standard from El Paso, Texas:  click here
• EPA's main web page devoted to information on ozone standards:  click here
• Office of Advocacy testimony on the need to amend the Regulatory Flexibility Act to cover indirect impacts (see section titled, "Suggestions for Modifying the Regulatory Process to Reduce Burdens on Small Entities"):  click here