Despite the opinion of some activists, congresspeople, and Nobel Prize runners-up, the United States is a world leader in emissions reductions. The air is cleaner, even as the US GDP has grown, Americans drove more miles and population and energy use increased. Between 1970 and 2018, the combined emissions of the six common pollutants (PM2.5 and PM10, SO2, NOx, VOCs, CO and Pb) dropped by 74 percent.
With the positive strides that the US has made, much has come at an expense. The processes for developing regulations are convoluted, inefficient, and often less transparent than they should be.
Luckily, a recent memo from the EPA has worked to improve the process for which NAAQS are developed, with the stated goal of completing reviews in a timely, efficient, and transparent manner. Today, we will explore the basics of this memo, what it affects, and why going back to basics will make it easier to understand the hundreds of thousands of pages that go into the Clean Air Act, its amendments, and the Air Quality Management Cycle.
What Are NAAQS?
Under the Clean Air Act of 1970, the Environmental Protection Agency sets NAAQS and modifies the levels allowable as they seek to lower emissions across the United States. The 1990 Amendments gave more power to the EPA to make modifications to NAAQS, define nonattainment areas, and determine requirements for these areas based on the severity of nonattainment.
NAAQS: Limit and Control Six Criteria Pollutants
While the list of Hazardous Air Pollutants from CAAA 1990 is strictly banned, NAAQS exist to provide consistent reductions to “Criteria” Pollutants:
- Carbon Monoxide
- Nitrogen Dioxide
- Particulate Matter
- Sulfur Dioxide
Further, NAAQS denote primary and secondary measures for each pollutant, levels, averaging time, and form of measurement.
Primary and Secondary NAAQS
In the policy development process, the EPA is to develop two types of NAAQS for each criteria pollutant: Primary and secondary NAAQS, which are defined as follows:
- Primary NAAQS, which must protect public health with an “adequate margin of safety,”
- Secondary NAAQS, which must “protect public welfare from any known or anticipated adverse effects” (42 U.S.C. §7409(b)). Public welfare includes damage to crops, vegetation, property, building materials, and climate (42 U.S.C. §7602(h)).
While we have already looked at the current ozone NAAQS (and the areas who may be downgraded from moderate to serious), we will go even further in the coming months to explore the other five pollutants and discuss how the NAAQS have evolved and are evolving.
How Do NAAQS Affect State Implementation Plans and Regional Requirements?
The NAAQS Development process is also the first step in the Air Quality Management Cycle, in which the EPA reevaluates acceptable levels and determines reasonable reductions before State Implementation Plans take over. We’ve discussed this topic in greater detail in our two-part series on SIP development and execution:
- State Implementation Plans: How SIPs are Developed and Enforced (Part 1)
- State Implementation Plans: How SIPs are Developed and Enforced (Part 2)
How the Back-to-Basics Memo Will Empower States and Simplify NAAQS Reviews
The process for the development and implementation of NAAQS and State Implementation Plans has long included a lot of ‘inside baseball’, which has delayed the process, made it more convoluted than it should be, and took a lot of power from the states.
With a goal of speed and cooperative federalism, the new memo is built on five core principles: Meeting statutory deadlines, addressing all CAA provisions for NAAQS reviews, streamlining development, determining the difference between science and policy, and increasing the speed of implementation.
Principle 1: Meeting Statutory Deadlines
The CAA requires EPA to review each NAAQS every five years. Unfortunately, this system has never been as efficient as planned and many of these reviews have taken twice this time.
These delays create uncertainty, hastily drafted regulations that fail to take into consideration input from the Clean Air Scientific Advisory Committee (CASAC), and spend more time planning than they do developing and implementing policy.
Starting with the 2020 Ozone NAAQS review, the EPA will remove an unnecessarily long portion: the kickoff workshop. These workshops, used to plan the process, require planning and money themselves, and in today’s technologically empowered landscape, can be replaced. As noted in the memo:
“EPA shall seek efficiencies through replacing the kick-off workshop with a more robust request for information, and shall consider combining its integrated science, risk and exposure, and policy assessment into a single review. If these efficiencies are successful, EPA should follow this practice for future NAAQS reviews.”
Principle 2: Addressing All CAA Provisions for NAAQS Reviews
As determined by the Clean Air Act, the CASAC is an independent agency whose job is to advise the EPA regarding background pollution and potential adverse effects from NAAQS compliance strategies. Historically, EPA has not requested CASAC to advise the agency with respect to adverse effects from NAAQS compliance strategies, although it is among the topics listed in CAA Section 109(d)(2)(C).
Reinforcing CASAC Responsibilities
In the memo, the CASAC will take an increased role in order to attain a better understanding of the current landscape and provide more specifics on what is contributing to pollution.
According to EPA Administrator Pruitt, “recent NAAQS reviews also show that EPA has inconsistently sought, and CASAC has inconsistently provided, advice on the relative contribution of natural and anthropogenic activity as well as other requirements in CAA Section I 09(d)(2)(C).”
Questions for CASAC
The memo also notes five questions the CASAC should answer for the EPA in each review:
- What scientific evidence has been developed since the last review to indicate if the current primary and/or secondary NAAQS need to be revised or if an alternative level or form of these standards is needed to protect public health and/or public welfare?
- Are there areas in which additional knowledge is required to appraise the adequacy and basis of existing, new, or revised NAAQS?
- What is the relative contribution to air pollution concentrations of natural as well as anthropogenic activity?
- What adverse public health, welfare, social, economic, or energy effects which may result from various strategies for attainment and maintenance of such NAAQS?
- Do key studies, analyses, and assessments which may inform the Administrator’s decision to revise the NAAQS properly address or characterize uncertainty and causality?
The goal of this is ultimately determine any adverse effects of implementation and controls, and provide policy context for the public, co-regulators, and the EPA.
Principle 3: Streamline and Standardize the Process for Development and Review of Key Policy-Relevant Information
Another issue contributing to the amount of time it takes to develop NAAQS is the amount of irrelevant policy included in decisions. The memo notes that,
“EPA’s Integrated Science Assessments (ISA), Risk and Exposure Assessments (REA), and Policy Assessments (PA) should focus on policy-relevant science and on studies, causal determinations, or analysis that address key questions related to the adequacy of primary and secondary NAAQS, including levels near- both above and below- the current standard(s).”
The goal of this principle is to reduce the reliance on outdated or overstated studies, use relevant studies, and mitigate the use of studies that don’t add anything to the conversation. As CASAC has noted, the members of the pollutant-specific panels are “carefully selected for their cutting-edge knowledge … and therefore already familiar with the key studies that are related to EPA’s standards setting process.”
Reinforced Roles, Reduced “Ping-Pong” Reviews
Further, the memo aims to streamline the process by reinforcing roles and responsibilities to reduce the back and forth that goes into setting policy:
- EPA: focus on providing CASAC with assessments and chapters succinctly reflect the most salient information.
- CASAC: focus on providing clear scientific, not editorial, advice. This will prevent the inefficiency of what one former CASAC Chair called a “ping-pong” review process with review of multiple drafts
The goal of this is to ultimately reduce the wasted time spent planning, assessing, and rulemaking, with the following demonstrating the new review process:
- Planning: based on new scientific information, policy-relevant issues, standardized charge questions. May include: Call for information, Workshop (if warranted), Planning Documents
- Assessment: Determines the policy implications of current scientific information, particularly with regard to standard (indicator; averaging time, form, level)
- Rulemaking: Agency decision making, interagency review, and public comments.
Principle 4: Differentiate Science and Policy Considerations in NAAQS Review Process
Section 109 of the CAA provides a framework for timing of NAAQS reviews and the role of CASAC in the review process. However, at the end of the process, the law directs the EPA Administrator to make the final decision as to whether a particular standard is requisite or needs to be revised.
Too often, the EPA will ignore the CASAC recommendations, either because there is a gray area between science and policy, or because individual members were not given time to document concerns.
Like the key charge questions that should be answered throughout an NAAQS review, participants in the NAAQS-setting process should be “continually reminded of the need for distinguishing between scientific evaluation and policy decisions.”
Principle 5: Issue Timely Implementation Regulations and Guidance
Another constant challenge in implementing NAAQS revolves around the time between recommendations and implementation. This results in the five-year expectations being ignored and may contribute to nonattainment areas not attaining the NAAQS as quickly as practicable, as well as the misallocation of state planning resources.
A Smarter, Faster EPA
When it comes to the management of pollution, the EPA has long been a key player in the development and enforcement of air quality standards. Under this new memo, the EPA will be more efficient, more effective, and faster.
By finalizing NAAQS faster, states can determine what they need to do faster, develop SIPs faster, and ultimately help reduce the concentrations of criteria pollutants faster. Paired with an improved focus on policy and science and a more accurate understanding of whether it’s industrial or natural sources contributing to criteria pollutants, the EPA can work more efficiently.
For manufacturers and others bound by EPA standards, this means two things. First, standards may update faster, requiring more work to keep up. Second, by reducing the time and money spent on the inefficient NAAQS development process, they can allocate more toward enforcement. If you’re not ready for this, you could be in the crosshairs of a leaner, greener EPA.
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