Tuesday, August 09, 2005

Loophole for Michigan slipped into energy bill

from BNA Daily Environment Report, August 9, 2005


Air PollutionEPA Barred From Enforcing New Ozone RuleIn Michigan Counties During Two-Year Study

Ten counties in southwestern Michigan will have to take no actions to meet the new, federal eight-hour air quality standard for ozone for two years thanks to a provision in the energy bill signed into law Aug. 8 by President Bush.

Specifically, the provision bars the Environmental Protection Agency from enforcing the new eight-hour standard in the 10-county area for two years while the agency studies how ozone transport affects the area.

The counties affected by the provision in the energy bill are Ottawa, Kent, Allegan, Huron, Calhoun, Kalamazoo, Van Buren, Berrien, Cass, and Muskegon.

According to Rep. Fred Upton (R-Mich.), who won inclusion of the provision as an amendment in the House-Senate conference version of the bill (H.R. 6), the 10 counties are failing to meet the standard primarily because of pollution blowing across Lake Michigan from Chicago, Milwaukee, and Gary, Ind.

"As a member of the conference committee, I have been working to ensure that our communities in southwestern Michigan are not unfairly punished for air pollution that blows across the lake from such cities as Chicago, Milwaukee, and Gary," said Upton.

"My amendment is a logical, common-sense solution that gets to the heart of the matter, establishing a two-year demonstration program to examine the effect of transported ozone in our towns and cities," Upton said.

However, Frank O'Donnell, president of Clean Air Watch, said Upton was able to "sneak a dirty air loophole into the Clean Air Act by keeping under the radar."

EPA had designated the 10 southwestern Michigan counties as nonattainment areas for the eight-hour standard in 2004.

Congress approved the Energy Policy Act of 2005 July 29. The president signed the legislation during a trip to Albuquerque, N.M., as a courtesy to Sen. Pete Domenici (R-N.M.), chairman of the Senate Energy and Natural Resources Committee, who played a central role in getting the bill through Congress after a four-year struggle. (See related story in this issue. )

Details of Upton Amendment

EPA replaced the old one-hour ozone standard with the eight-hour standard on June 15. The eight-hour standard establishes a maximum ozone level of 0.08 part per million averaged over an eight-hour period. The one-hour standard was 0.12 ppm averaged over a one-hour period.
The agency in 2004 announced that 474 counties in 32 states are violating the eight-hour standard. Most recently, EPA changed its regulations to codify the new nonattainment designations (70 Fed. Reg. 44,471; 148 DEN A-8, 08/3/05 ).

These included the 10 Michigan counties covered by Upton's amendment.

The amendment at Section 996 of the energy bill calls for EPA to conduct a two-year "demonstration project to address the effect of transported ozone and ozone precursors in Southwestern Michigan."

"The Administrator shall assess any difficulties such areas may experience in meeting the 8-hour national ambient air quality standard for ozone due to the effect of transported ozone or ozone precursors into the areas," the amendment said.

It also calls for EPA to work with state and local officials to determine the extent of ozone and ozone precursor transport, to assess alternatives to achieve compliance with the eight-hour standard apart from local controls, and to determine how long the areas will take to achieve compliance.

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