I.
Introduction
Both the United States
and the state of Arkansas have operated regulatory programs
whose objective has been the protection of air quality
for over 30 years. The primary focus of these efforts
has been the control of stationary and mobile source
emissions. The federal Clean Air Act ("CAA")1
mandated the development of uniform emission controls/limits
and ambient air quality standards.2 The statute has
in turn required that the states impose/attain these
baseline standards within their borders.3
Arkansas has been implementing
various CAA mandates since the early 1970s. The state
has traditionally been successful in expeditiously attaining
the various federal standards. This has enabled Arkansas
to avoid triggering certain federally mandated restrictions
imposed upon states that have been less successful.
Recent revisions to the
federal ambient ozone4 air quality standards may pose
a challenge for Arkansas. The federal government5 has
lowered the national ambient air quality standard ("NAAQS")
for ozone. Certain areas in Arkansas may not be able
to meet this revised standard. If not, they will be
designated "non-attainment" for the ozone
NAAQS.
The possible designation
of one or more areas of Arkansas as non attainment for
the ozone NAAQS carries significant potential ramifications.
Therefore, this article briefly examines both the possibility
of such a non attainment designation and the associated
responsibilities. To place these developments in the
appropriate context, an abbreviated overview of both
the CAA and its non-attainment program is provided.
In addition, the specific issues associated with a non-attainment
designation and the efforts to mitigate them are explored.
II. Federal Air Pollution Control
A wide variety of substances
considered air pollutants are generated by a broad spectrum
of human activities. These can include stationary sources
such as manufacturing, distribution, or energy generation
facilities. Not all air pollutants are emitted through
a stack or a pipe. Instead, fugitive emissions sometimes
result from certain land use activities such as construction
or mining. Mobile sources of air pollutants may range
from lawn mowers, motor vehicles, to airplanes.
A multitude of pollution
control practices, methods and equipment exist or are
being developed to reduce or eliminate the emission
of pollutants into the ambient air. The desired level
of emission reduction, type of facility/industry, and
category of air pollutant may be factors in the cost
of the relevant pollution control equipment. Equally
important, many areas of the country have focused considerable
resources on transportation and land use activities
to address certain ambient pollution concentrations.
1. Overview
The CAA uses a two-part
approach to air pollution control. First, initial limits
are applied to new and/or existing stationary sources.
These federal limits may be imposed upon stationary
sources through either the Section 111 New Source Performance
Standards or Section 112 National Emission Standards
for Hazardous Air Pollutants. These programs place uniform,
performance-based emission limits on categories of facilities
regardless of where they are located or the condition
of the area's air. In other words, a steel mill located
in Arizona must meet the same Section 111 emission limits
as an identical facility in Pennsylvania.
Title II of the CAA also
established a separate set of federal emission limits
and/or standards for mobile sources and the fuels that
power them. With limited exceptions, the states have
traditionally been restricted from placing additional
or different standards on motor vehicles. However, the
significant contribution mobile sources make to certain
air pollutant concentrations has made the imposition
of such controls of interest to the states.
Second, ambient air quality
standards (i.e., NAAQS) have been established for a
limited number of air pollutants.6 Sections 1087 and
1098 of the CAA require that EPA identify air pollutants
utilizing certain criteria and set NAAQS for each. The
air pollutants subject to such standards are denominated
criteria air pollutants. Criteria air pollutants are
some of the most commonly encountered air pollutants
because the CAA requires that they be emitted by diverse
or numerous sources.
The burden of attaining
a NAAQS shifts to the states once the standard has been
established. Specifically, the states are required to
develop State Implementation Plans ("SIPs")
to ensure that their Air Quality Control Regions ("AQCRs")9
meet the various NAAQS.10 The SIPs will contain the
measures and actions the state proposes to undertake
to attain each NAAQS.
The states have some discretion
in the choices they make to attempt to attain the NAAQS
through their SIPs11. However, the measures or actions
must be enforceable through state regulations and typically
include emission limits applicable to certain types
of stationary sources. The SIP subsequent revisions
must be reviewed and approved by EPA which uses criteria
set forth in the CAA. EPA has the authority to develop
and impose a federal implementation plan on the AQCR
if the state cannot develop one that attains the relevant
NAAQS.
2. Revised Ozone National
Ambient Air Quality Standard
The CAA requires that
EPA periodically determine whether each NAAQS should
be revised. Consequently, EPA had for several years
studied the ozone NAAQS. The agency ultimately decided
to tighten it.12 The ozone NAAQs was lowered from 0.12
parts per million to 0.08 parts per million and the
averaging time changed from a 1-hour standard to an
8-hour standard.
Arkansas has maintained
compliance with the 1-hour ozone standard over the past
two decades. However, the sampling results for the 8-hour
standard indicates compliance will be more difficult
to achieve. The areas in Arkansas believed to be potentially
at risk for violating the revised ozone NAAQS are central
Arkansas (i.e., Pulaski, Faulkner, Lonoke, and Saline
Counties) and Crittenden County.13 Whether the previously
referenced Arkansas areas will be deemed non-attainment
should be definitively determined based on monitoring
results this summer.14
The significance of a
non-attainment designation for the two Arkansas areas
is the possibility that additional air pollution control
measures might be imposed on certain sources of air
emissions. In some instances, the construction or expansion
of certain sources could be restricted or made more
difficult. Smaller sources of relevant air pollutants
may be required to obtain permits for the first time.
Also, a broad range of commercial and industrial facilities
could be subject to more stringent standards. Further,
transportation15 and/or development may be affected
in some instances because of certain restrictions on
federal funding in areas designated non attainment.
In other words, the CAA may for the first time be relevant
to some major non-industrial Arkansas projects such
as shopping centers and other developments.
3. Practical Arkansas
Issues
The state has a multi-faceted
interest in these potential non attainment designations.
Of particular interest is the potential impact on economic
development. The construction and/or expansion of stationary
sources proposing to emit ozone precursors could be
subject to additional requirements. Commercial or industrial
facilities considering locating or expanding in such
areas are likely to evaluate the impact of being in
an ozone "non-attainment" area. They will
probably assess whether there will be additional costs
for control equipment or a lengthier permitting process.
The national competitive effects might be mitigated
somewhat in view of the fact that many other areas in
the nation will also likely be designated ozone non-attainment
for the first time.
A non-attainment designation
may also place a potential additional hurdle on the
acquisition of federal transportation funds. Transportation
projects obviously affect both land use and growth patterns.
In some instances, an analysis will need to be undertaken
of the potential impact of a transportation-related
project on the area's ability to eventually attain the
ozone NAAQS. Considering the impact of the additional
mobile sources (and their associated emissions) will
be a novel experience for Arkansas.
In Arkansas, a non-attainment
designation may also, for the first time, encompass
activities or sources that have not to date been affected
by air programs. Many facilities that emit smaller amounts
of ozone precursors have previously fallen outside of
the reach of mandatory controls or limits. These could
conceivably range from controls on facilities that dispense
motor fuel to smaller boilers in buildings.
The means used to address
non-attainment will not be limited to mandatory controls.
Instead, efforts have been and will continue to be undertaken
to motivate unregulated sources to engage in behavior
that helps reduce ozone levels. These may range from
discouraging unnecessary idling, encouraging car pooling,
exploring alternative fuels for fleets, and changing
the formulation of the motor fuels used in the area.16
There may also be new interest in projects that might
reduce vehicle miles traveled (i.e., "VMTs")
such as expansion of bike/pedestrian facilities and
increasing mass transit ridership.
Finally, the State of
Arkansas is likely to devote some effort to analyzing
whether sources from other states are contributing to
Arkansas ambient ozone concentrations. Some air pollutants
can travel significant distances. There has been some
concern that Arkansas is materially impacted by out-of-state
pollutants that contribute to ozone concentrations.
This will be a complex technical determination. Nevertheless,
the resources will likely be expended to address this
issue to ensure that Arkansas does not bear the costs
associated with air pollutants originating from other
states.
III. Conclusion
The impact of an Arkansas
non-attainment designation will play out in the next
several years. Nevertheless, it is probably important
for Arkansas lawyers to begin considering the relevance
of these issues to current or future client projects
or activities. The issues could range from the increased
difficulty (if any) of obtaining federal funds for roadways
associated with certain commercial development to the
advantages/ disadvantages of utilizing alternative fuels
for vehicle fleets. The construction or expansion of
certain stationary sources may require "off sets"
from other facilities (i.e., a binding commitment by
other sources to eliminate a certain amount of historically
emitted air pollutants). It is also possible that some
local governmental entities will eventually be forced
for the first time to consider restrictions or limits
on previously unregulated activities. The authority
for such restrictions, and how they are applied, will
require significant input from the local governmental
entities' legal counsel.
The effort to move these
areas into attainment will focus significant attention
on the relative contribution of various stationary and
mobile sources of ozone precursors. The importance of
such information is derived from the fact that it will
likely be used to determine the relative contribution
of various sources to ozone concentrations. There will
inevitably be disagreements between the types and classes
of sources as to how the burden for attaining the revised
ozone NAAQs should be allocated. It will therefore be
important for anyone potentially affected by these issues
to monitor and participate in the process. •
ENDNOTES
1. Clean Air Act, 42 U.S.C. §§ 7401 - 7671.
Both the federal and Arkansas
pollution control programs are examined in Walter
G. Wright & Mary Ellen
Henry, The Arkansas Air Pollution Control Program:
Past, Present and Future: 51 ARK. L. REV. 227 (1998).
2. An ambient standard sets a maximum air pollutant
concentration as measured
in a specific location. In contrast, technology-based
controls/limits set quantitative
limits on the discharge of air pollutants.
3. Note that the states have traditionally had much
more limited authority under
the CAA to place controls on mobile sources (i.e.,
motor vehicles, etc.) See
Title II of the CAA, 42 U.S.C. § 7502.
4. Ground-level ozone pollution is formed by the reaction
of volatile organic compounds
and nitrogen oxides in the atmosphere in the presence
of sunlight. These ozone precursors are emitted by
many types of pollution sources
including on-road and off-road motor vehicles
and engines, power plants and industrial facilities,
and smaller area sources.
5. The CAA is administered by the federal Environmental
Protection Agency.
6. The process for establishing NAAQSs is found in
Section 108 and 109 of the
CAA. See 42 U.S.C. §§ 7408, 7409. Six air
pollutants are currently designated.
7. This section requires that the EPA identify air
pollutants "which may
reasonably be anticipated to endanger public health
and welfare" and to issue
air quality criteria for them. 42 U.S.C. § 7408.
8. This section subsequently requires that the EPA
promulgate "primary"
and "secondary" NAAQS for the pollutants
identified under Section 108.
42 U.S.C. § 7409. It defines a primary standard
as one "the attainment
and maintenance of which, in the judgment of
the Administrator, based on the criteria and allowing
an adequate margin of safety,
are requisite to protect the public health."
42 U.S.C. § 7409.
9. AQCRs are geographic areas defined in Section 107
of the CAA that have been
delineated for purposes of determining NAAQS attainment.
42 U.S.C. § 7407.
10. 42 U.S.C. § 7410.
11. The United States Supreme Court noted in Union
Electric Co. v. EPA, that
each state is given wide discretion in formulating
its SIP. 427 U.S. 246 (1976).
12. The revised ozone standard was originally promulgated
on July 18, 1997. 62 Fed. Reg. 388,856. The rule was
held in abeyance for a few
years because of judicial challenges that were ultimately
resolved in the United States
Supreme Court in favor of EPA in Whitman
v. American Trucking Association, 121 S. Ct. 903 (2001)
(upholding the revised ozone
NAAQS).
13. Crittenden County will probably be included in
a non-attainment area that
is part of the Tennessee/Arkansas/
Mississippi Consolidated Metropolitan
Statistical Area. This area includes
Memphis, Tennessee and parts of northern Mississippi.
14. A key factor in ozone levels are certain weather
conditions.
15. The CAA requires federally approved or funded
projects to "conform"
to the requirements of SIPs for non-attainment areas.
In other words, the air quality
in transportation planning and development
process must be integrated.
16. The EPA, Arkansas Department of Environmental
Quality, Arkansas Highway
Transportation Department, MetroPlan, various central
Arkansas counties and communities have signed an agreement
to voluntarily implement measures to reduce ozone
emissions. This agreement
is not expected to prevent an ozone non-attainment
designation in central Arkansas. Nevertheless, it
may be viewed as an initial
effort to put in place measures that will eventually
move the area toward that goal objective.
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