INSIDE WASHINGTON/New air standards prompt debate

EPA is getting hit on all sides for proposed air quality standards that tighten controls on ozone and particulate matter.

Detroit Mayor Dennis Archer says those tighter standards will “significantly injure” his city’s economic recovery.

Diane Shea, associate legislative director for the National Association of Counties, is more annoyed with the way EPA issued its proposal than she is with the proposal itself. The agency proposed the new rules the day before Thanksgiving with little analysis of their potential economic effects. When NACo inquired about those effects, they were told, “Don’t worry. It’s just a health standard. Nothing will change.”

NACo is not alone in its skepticism. The National League of Cities, too, has asked Congress to reaffirm the existing ozone standard and require new scientific studies to justify any change in the present particulate matter standard.

EPA has until this June to decide whether the new standards, which would triple the number of counties designated non-attainment areas, become law. “Just the designation of that many new counties as non-attainment areas will have a negative impact in terms of the perception of quality of life,” Shea says. Still, NACo has not decided whether to formally oppose the new standards.

EPA Administrator Carol Browner says the tighter restrictions are necessary to provide 133 million Americans, including 40 million children, with cleaner air. According to EPA’s Jeff Clark, about 106 counties do not comply with the current ozone standard of .12 parts ozone to a million parts air. The new standard would lower that threshold to .08 parts per million, although a county’s reading would be based on an average over eight hours. That is more flexible than the current law, which designates non-attainment when the standard is exceeded in any one-hour stretch during the day.

Clark argues that two new developments could likely limit the number of new counties required to adopt control measures.

First, EPA has been working with cities like Muskegon, Mich., whose non-attainment status is the result of being upwind of Chicago and Milwaukee. Current law offers EPA little flexibility to give those cities a break, but a new implementation strategy will put Muskegon and others like it in a new category all their own.

Second, many of the new ozone non-attainment areas are in states with a significant number of coal-burning utilities. They fall into the 37-state Ozone Transport Commission, which is working on a plan that would encourage utilities to cut nitrogen oxide emissions voluntarily.

Additionally, even if the standards are implemented, the Small Business Regulatory Enforcement and Fairness Act (SBREFA), passed last year, allows Congress to pass a “Resolution of Disapproval,” that can kill any new federal agency rule. According to the act, for 60 days after the new rule is published, no senator can mount a filibuster to block a Resolution of Disapproval, allowing it to pass by a simple majority vote.

Still, if Congress refuses to cooperate, another SBREFA provision could kick in. That provision allows a federal court to review a final regulation if the issuing agency failed, under the Regulatory Flexibility Act (RFA), to do an economic impact analysis documenting potential effects on small businesses. In this case, EPA said no such analysis was needed.

NACo’s Shea argues that EPA should have done both the RFA analysis and one determining whether the new standards would impose another unfunded mandate on local governments. “It’s kind of condescending for them to tell us not to worry,” Shea says.

The author is the Washington correspondent for American City & County.