The Environmental Protection Agency (EPA) has won the legal battle to implement tougher clean air standards — a victory that could affect many areas of the construction industry, which will have to control emissions under future state implementation plans for complying with the standards.
The U.S. Circuit Court of Appeals in Washington, D.C., on March 26, ruled that the EPA did not abuse its discretion in setting the new ambient air standards. This clears the final hurdle for implementing them. The U.S. Supreme Court last year had unanimously reversed an earlier decision by the circuit court that the EPA had failed to base the standards on “any intelligible principle.”
The standards, proposed in 1997 under the 1970 Clean Air Act and its 1990 amendments, set much tighter limits on ground-level ozone (smog) and fine particles (soot), which result from automobile and truck emissions on highways, from power and other plants, from diesel engines on construction equipment, and other sources.
“This is a great victory for us,” David Ryan, a spokesperson for EPA in Washington, D.C., told Construction Equipment Guide (CEG). “We will now propose an implementation plan this summer for public comment; the next big step after that will be naming the attainment or non-attainment areas.”
In other developments, EPA confirmed to CEG that it is considering releasing a new diesel-emission standard for non-road vehicles, including construction and farm equipment, by the end of 2002 (see EPA Cracks Down of Off-Road Emissions), which would mean more emissions-control technology (and possibly higher costs) on future machines, such as skid steer loaders and backhoe loaders.
Compliance Required
The court decisions permit a tougher ambient air standard of 2.5 micrometers for dust and soot, called “particulate matter” (PM). The older standard for PM was 10 micrometers. The more stringent ozone standard, which also got a court go-ahead, is 0.08 parts per million (PPM) over a period of eight hours, replacing the previous standard of 0.12 PPM over a period of one hour.
EPA is expected to designate, by 2005 at the latest, numerous major metropolitan areas throughout the country as not complying with the new standard.
“From the time of designation, these states will have between three and four years to develop a State Implementation Plan (SIP) with control measures and a demonstration that they will achieve the standard by the attainment date,” John Silvasi, environmental engineer of EPA’s Office of Air Quality Planning and Standards in North Carolina’s Research Triangle Park, told CEG.
If states don’t develop acceptable strategies for compliance, they could face possible sanctions, including, when all else has failed, the Federal Highway Administration (FHWA) cutting off highway funding.
Numerous major areas have not yet complied with the earlier one-hour standard for ozone and are probably far out of compliance with the 1997 one. These include Chicago, IL; Milwaukee, WI; New York State (for the New York City metropolitan area); Western Massachusetts; Greater Connecticut; Philadelphia, PA; Washington, D.C.; Baltimore, MD; Houston, TX; and Atlanta, GA.
The EPA has, however, approved SIP’s for future compliance with the preexisting standard from all the above areas except Atlanta. (The agency’s decision on Atlanta’s plan is expected shortly.)
An estimated 118-million people live in ozone non-attainment areas. The Los Angeles South Coast Air Basin is classified as the worst — “extreme” non-compliance, with a compliance date for the earlier standard of 2010. The Southeast Desert, Sacramento Metropolitan Area, San Joaquin Valley, and Ventura County, all in California, are among those in “severe” non-compliance.
How Sanctions Work
“If we disapprove a plan, or find that a plan has not been implemented, the clock starts clicking and sanctions go into place 18 months later,” Silvasi said. “However, it’s not a one-chance thing. We generally work with the states to ensure that we don’t disapprove, that they do submit their plans on time, and that we do find them adequate.”
During the 18 months, states can correct their plans. EPA also has 24 months to develop its own Federal Implementation Plan for the area. Sanctions include a “two for one” penalty after 18 months, requiring a state to reduce 2 tons of Volatile Organic Compounds (VOC’s) or nitrogen oxide (NOx) for every ton of pollutant introduced by any new plant in the non-attainment area. After 24 months, the FHWA can withhold funding for new-capacity highway projects that increase emissions.
Some states may be required to employ specific types of control measures for certain types of air pollution, but states generally have a good deal of flexibility in developing their plans. However, states and regulatory agencies are prohibited from changing the federal requirements for equipment more than 175 hp (130.4 kW).
The EPA has held three public meetings on implementing the new standard, and said some areas will be required to “model” attainment methods.
In a separate development, approximately 20 states in the eastern half of the country are being required to submit plans for attaining “caps” of NOx emissions from existing and new power plants. More control equipment would be required, adding to the expense of construction. EPA had issued a “NOx SIP Call” mandating that the states revise their SIPs to mitigate the regional transport of ozone across state boundaries in the eastern area. The caps are intended to reduce the transport of NOx by prevailing winds (often from south to north). Non-attainment areas are to be designated in approximately two years.
The Bush Administration’s Clear Skies Initiative for power plants also would reduce power plant emissions of three key pollutants by 70 percent. EPA Administrator Christie Whitman said the circuit court ruling “strengthens the President’s initiative by affirming EPA’s approach to regulating emissions that cause smog and acid rain.”
Industry Concerns
Construction organizations are closely studying how the stricter standards will affect contractors, dealers and manufacturers.
“The court of appeals upheld the stricter standard; we are working with EPA to provide an industry input on implementing it,” said Matt Jeanneret, vice president of communications of the American Road and Transportation Builders Association (ARTBA) in Washington, D.C.
ARTBA’s “Washington Newsline” said that “almost two-thirds of the nation’s highway construction jobs are in counties likely to fail the new, tougher standards,” which it said “have the potential to jeopardize almost 1-million jobs in highway construction and related industries” because of possible sanctions.
“The new standards are expected to place several hundred counties across the nation that now meet federal air quality standards out of compliance, the newsletter said. “This will impact virtually every state transportation program. The standard also will likely trigger increased litigation by anti-growth groups targeted at highway projects and state programs.”
Darrin Drollinger, vice president, technical and safety programs, of the Association of Equipment Manufacturers (AEM) headquartered in Milwaukee, WI, explained that long lead times are required to develop construction equipment and fully integrate lower-emissions technology.
“When you have a skid steer loader, for instance, there’s simply not the space just to strap on additional equipment,” he said. “Any equipment changes impact the entire machine.
“We have told both EPA and state regulators that equipment manufacturers are eager and more than willing to produce machines that use the most effective emission technologies available that the customer will buy. This is the most important part since, at the end of the day, the customer has to buy the equipment. The customer has options, such as not purchasing equipment or rebuilding, and both of these could negatively impact environmental goals.”
AEM provides further information on its Web site (www.AEM.org) under its “What’s New” section. Click on the bullet “Equipment Manufacturer Guidance Document on Preparing for the Next Emissions Regulations.”
Long Process
After EPA first proposed the new standards in 1997, they were challenged by the American Trucking Association, the U.S. Chamber of Commerce, and other state and business groups, including ARTBA. In 1999, the D.C. Court of Appeals temporarily set aside the standards in a 2-1 ruling, declaring that they were not based on “any intelligible principle.”
After the EPA appealed the ruling, the U. S. Supreme Court unanimously reversed that decision on Feb. 27, 2001, indicating that EPA had the authority to set the standards but needed to devise a new implementation plan for the new ozone standard. The court also ruled that EPA doesn’t have to consider costs in devising new standards and returned the case to the court of appeals to work out the remaining details. (Originally, Congress had given the EPA a deadline time of the Supreme Court ruling to designate non-compliance areas for the stricter standard, but this was postponed because EPA needed to issue guidance rules so state agencies would understand non-attainment.)
The March 26 3-0 ruling by the appeals court found that EPA “engaged in reasoned decision-making” in establishing levels that protect public health and the environment.
ARTBA said anti-growth groups have used the conformity process to challenge new transportation projects. It founded the Advocates for Safe and Efficient Transportation (ASET) in 1999 to intervene on behalf of industry in these lawsuits and also sought a rigorous cost-benefit analysis in the rulemaking process. ASET’s legal intervention has allowed approximately $40 billion in projects to move forward.
ARTBA will hold a seminar in Washington, D.C. on June 27 on protecting transportation plans from legal attacks by no-growth groups.
Ozone (smog) is formed with NOx and VOC pollutants from mobile sources (mainly cars) and industrial plants react in sunlight. On a high-ozone day, especially late in the afternoon, ozone can affect more than one third of the population in a metropolitan area, causing wheezing, coughing and even serious respiratory problems. Particulate Matter (PM) is mainly dust and soot.
Further information on the new ambient air standards is available on www.epa.gov/airlinks/airlinks4.html.
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