Ground-level ozone is the main ingredient of smog and is known for causing and aggravating a variety of adverse health effects. The EPA first began to regulate the levels of ground-level ozone in 1979, by promulgating the 0.12 part-per-million (ppm), 1-hour ozone standard. Since that time, scientific health studies indicated that a more stringent ozone standard was necessary to protect the health and welfare of human beings. As a result, in 1997, EPA promulgated a revised standard of 0.08 ppm over an 8-hour period.

A number of events have delayed the implementation of the new 8-hour standard. The single largest being a series of intensely debated lawsuits ending with a Supreme Court decision in February 2001. The Supreme Court's decision both reconfirmed EPA's legislative authority to set the 8-hr standard, while at the same time disagreed with EPA's implementation strategy for the new standard.

The EPA responded by working on a new implementation strategy and on June 2, 2003, issued the proposed rule to implement the 8-hour ozone standard. The new standard focuses on three primary areas: (1) Establishing a transition from the 1-hour to the 8-hour standard that will include a process for states to re-designate attainment and nonattainment areas; (2) Working with individual State Implementation Plans (SIP) to allow flexibility for achieving emission reductions in a way that best fits the state's existing rules and individual state programs, and (3) Establishing national rules, such as those imposed on motor vehicles and power plants.

The EPA is optimistically planning to issue a final implementation rule by the end of 2003; however, many say that if the implementation rule is met with the same response as the initial standard, it could be several years before the implementation program is active. There is a catch, however. While there is not a deadline for promulgating a strategy to implement the 8-hour ozone standard, the Clean Air Act does establish a deadline for the EPA to promulgate designations of nonattainment areas under Section 107. In fact, the EPA has entered into a consent decree that requires ozone designations by April 15, 2004. Because of this, the EPA is hopeful that an implementation strategy is in place prior to the ozone designation deadline so that states with nonattainment areas understand the ensuing obligations that attach to these associated classifications. If a final rule is not issued by April 15, 2004, states may be forced to re-designate nonattainment areas in compliance with the new 8-hour ozone standard, while operating with limited new federal guidance on how to implement the transition.

This outcome may not be insurmountable, primarily because the new program is not much different than what many of the states faced in 1990 with the 1-hour standard. The difference is that the air program on both the federal and state levels have become more sophisticated and complicated, while at the same time, the expectations for companies to plan and permit themselves appropriately has increased. In other words, a company working on an air permit in the early 1990s actually had more flexibility if they were able to negotiate and navigate the existing programs effectively. At the time, it wasn't uncommon for some companies to completely ignore certain programs simply because guidance either didn't exit or implementation and enforcement was in disarray. This was true of many programs for example, New Source Review (NSR), air toxics, and residual risk and source category programs, such as Maximum Achievable Control Technology (MACT) standards. However, over the past ten years, the EPA has made progress with these programs, which means companies must overcome additional hurdles to successfully procure a flexible permit, while dealing with additional complexities that may be compounded if a federal implementation program is not in place.

Nearly every manufacturing business is confronted by some type of air pollution issue and should be looking at a few critical strategies in preparation for the 8-hour ozone implementation rule. If possible, major pollution sources facilities that have or are working on finalizing a Title V permit should consider actually or synthetically reducing potential emissions below major source category thresholds. Most states are working on a plan to allow companies to escape the major source Title V program. By doing this, companies remove a significant burden that will be imposed with the new standard. If a company cannot escape the Title V program, they should work diligently to get any existing permits finalized prior to the Agency (EPA or local) taking action under the new 8-hour implementation program. For more information on the 8-hour implementation standard, visit http://www.epa.gov/ttn/naaqs/ozone/o3imp8hr/proprule.html