President Trump’s efforts at regulatory reform continued with the announcement on January 15, 2018 that the U.S. EPA would withdraw its “once in, always in” policy for classification of Major Sources of hazardous air pollutants (HAPs) under section 112 of the Clean Air Act.  Newly sworn in Assistant Administrator of EPA’s Office of Air and Radiation, Bill Wehrum, made the announcement.  Anticipating forthcoming legal challenges Mr. Wehrum stated that the revocation of the policy was “based on a plain language reading of the statute that is in line with EPA’s guidance for other portions of the Clean Air Act.”

What is a Major Source of HAPs?

Under the Clean Air Act a “Major Source” is a air pollution source that has the potential to emit of 10 tons per year of any HAP or 25 tons per year or more of any combination of HAPs. Major sources must obtain a Title V permit which is a highly complex federal permit with stringent reporting and record keeping requirements. Any source of HAPs below these thresholds is classified as an “area source” and is subject to far less regulatory requirements.

What is the “Once in, Always In” Policy?

Historically, U.S. EPA allowed sources to voluntarily limit emissions below the HAP “Major Source” thresholds through a permit (referred to as a “synthetic minor permit” because it caps emission below thresholds).  However, sources were required to cap emission with such a permit before the compliance date established under Clean Air Act regulations, specifically, standards known as Maximum Achievable Control Technology (MACT).  If a source couldn’t obtain a permit or limit its emissions due to production or other business needs, the source was always classified as a “major source.”  The source was not allowed to later find ways to reduce HAP emissions and be declassified as a “Major Source.”

What does U.S. EPA’s Revocation of the Policy Mean?

Under U.S. EPA’s new guidance, facilities maybe able to opt-out of the major source MACT standards and Title V permitting requirements at any time.  Sources that are currently “Major Sources” now have incentive to finds ways to control or reduce emissions to reduce their regulatory burden.

What is Likely to Happen Next?

U.S. EPA says it wants to put its latest interpretation into rules to make it harder for the next Administration to revert back to the “Once in, always in” policy.  It plans on publishing notice in the Federal Register to take comments on adoption of such a rule.

Like many of the Trump Administration’s regulatory reforms of EPA, expect the latest announcement to be challenged in the courts.

On June 6, 2017, EPA Administrator Scott Pruitt notified states that U.S. EPA was extending by one year the deadline for designating those areas in non-compliance with the 2015 ozone standard.  The 2015 ozone standard is 70 parts per billion (ppb), which is lower than the prior ozone standard of 75 ppb established in 2008.

Once U.S. EPA  adopts a new ozone standard it must go through the formal process of designating areas in non-compliance with the standard based upon monitoring data maintained by the states (i.e. "Non-Attainment Areas").  Once Non-Attainment Areas are designated, those areas of the country face tougher permitting requirements and additional regulations to reduce emissions.  

Under the Clean Air Act, EPA had two years to finalize the designations.  Administrator Pruitt’s action moved the deadline for designations from October 1, 2017 to October 1, 2018.  

While a one year extension may not seem long, it has dramatic ramifications for states.  As previously discussed on this blog, there are a host of federal regulations targeting power plant and vehicle emissions that are phased in over time.  The more time states are given before designations take effect, the more states can take advantage of the existing federal regulations with are phased in over time.

Meanwhile, Murray Energy Corp v. EPA, Case No. 15-1385, the litigation challenging the 2015 ozone standard, is still pending in the U.S. Court of Appeals for the D.C. Circuit.  The standard was challenged by some companies and states.  

After the change in Administrations, Administrator Pruitt filed a request to stay the litigation while it reviewed the 2015 ozone standard.  On April 11, 2017, the Court granted EPA’s request. It is unclear whether EPA’s decision to delay the implementation of the standard means it is not actually reconsidering the standard, but from the public comments released by EPA it appears likely it will revoke the 75 ppb standard.

EPA did not provide any clear guidance in its press release announcing its decision to delay implementation of the rule.  However, the public statements in the press release and Administrator Pruitt’s letter were interesting as they show a dramatic shift in how EPA views air quality standards since the Administration change.  Here ares some examples of the statements that show the change in priorities:

  • Areas designated as being in “nonattainment” of the standard face consequences, including: increased regulatory burdens, restrictions on infrastructure investment, and increased costs to businesses (It is unusual to see EPA discussing the burden on business rather than the public health benefits from lowering the standard)
  • EPA is giving states more time to develop air quality plans and EPA is looking at providing greater flexibility to states as they develop their plans. 
  • Since 1980, total emissions of the six principal air pollutants have dropped by 63 percent and ozone levels have declined by 33 percent. Despite the continued improvement of air quality, costs associated with compliance of the ozone NAAQS have significantly increased.(Another unusual statement to be found in an EPA press release related to ozone.  Historically, EPA discusses the improvements in air quality, associated health benefits while the U.S. economy has continued to grow)

Based on the statements communicated in the press release and in EPA Administrator’s letter to the states it seems very likely EPA will take the controversial step of moving the ozone standard from 70 ppb to 75 ppb which was put in place in 2008.  It is clear the Administration is focused on increased compliance costs to business rather than citing to the public health benefits attributable to a lower standard.

 

As predicted last year in a prior blog post, EPA announced today that it would revise the current ozone standard of 75 ppb downward to 70 ppb. EPA had been contemplating a revised standard between 70 ppb and as low as 60 ppb.  

Under the Clean Air Act, EPA is required to review the ozone standard every five years.  The current 75 ppb standard was established in 2008.  The EPA was required to review the 2008 ozone standard by March 12, 2013.

President Obama had sharply criticized the 75 ppb standard established by President Bush as not following science.  After six years, the Obama Administration finally revised the standard.  In April 2014, after multiple delays by EPA, the U.S. District Court of the Northern District of California ordered the EPA to issue a final ozone standard by October 1, 2015.   

As previously discussed in a prior post (EPA’s Decision to Deny Ozone Petition Based on Reality), the delays in establishing the ozone standard have been very beneficial to the states and industry. There are significant federal regulations that mandate cuts in emissions that are being phased in over time.  These federal regulations are much more effective in reducing ozone levels than local controls that can be imposed by the states.  The delays have allowed more time for the federal regulations to take effect.

As noted in an article on POWER, the 70 ppb will likely be relief to many in the power sector who thought the standard could be lower.   As quoted in the Wall Street Journal, the American Lung Association was somewhat critical of the final standard:

“The level chosen, of 70 parts per billion, simply does not reflect what the science shows is necessary to truly protect public health,” said Harold Wimmer, president and CEO of the American Lung Association, one of the public-health groups that sued the EPA to issue the standard by Oct. 1. “Nonetheless, the standard announced today offers significantly greater protection than the previous, outdated standard.”

Ozone Standard in Ohio

Back in March of this year, Ohio EPA provided comments on U.S. EPA proposed ozone standard and asserted there was no scientific basis to lower the standard below 75 ppb.  

"Ohio EPA is unaware of any new study or scientific evidence that compels a change to the existing standard.  When setting the 2008 standard, U.S. EPA had before it a largely similar set of studies as are before U.S. EPA now.  In 2008, U.S. EPA considered all available information, examining the potential for setting the standard as low as .060 ppm, but nevertheless chose .075 ppm.  Just as in 2008, Ohio EPA does not see a clear-cut basis for arriving at the conclusion of setting a significantly lower standard."

Based on air quality data from 2012 through 2014, two of the three areas in Ohio designated as nonattaintment are now achieving the 75 ppb standard.  The last area that remains in nonattainment is entitled to a one year extension.

As Ohio has nearly achieved compliance with the 2008 standard, it will now need to submit new plans to reduce ozone levels further. 

On June 29th the U.S. Supreme Court ruled in a 5-4 decision that EPA was required to consider costs of compliance when deciding whether it was "appropriate and necessary" to regulate emission of mercury and other air toxics from power plants.  (Michigan v. EPA, U.S., No. 14-46, 6/29/15).  The majority decision, written by Justice Scalia, reversed a 2014 federal appeal court decision that upheld the EPA mercury and other air toxics (MATS) rule.

The focus of the decision was not the standard itself.  Rather, the Court reviewed EPA’s December 2000 finding that it was "appropriate and necessary" to regulate hazardous air pollution from power plants.  

Under the Clean Air Act, EPA was required to study "the hazards to public health reasonably anticipated to occur as a result of emissions by [power plants] of [HAPs] after imposition of [other] requirements [of the CAA]." 42 U.S.C. § 7412(n)(1)(A).  After performing the study, EPA was required to regulate HAPs if it "finds such regulation is appropriate and necessary after considering the results of the study…." Id. 

The key test for administrative deference to federal agencies is articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).  The Court found EPA strayed far beyond the deference it is entitled to when it didn’t consider cost in deciding whether it was "appropriate and necessary" to regulate HAPs from power plants.  

EPA estimated the annual cost of compliance at $9.6 billion.  EPA’s benefits analysis performed when setting the standard only attributed $4 to 6 million in annual health benefits directly to mercury and other HAP emission reductions.  However, the Agency did conclude the true health benefit from the rule was $90 billion per year if you factor in the co-benefits from other non-HAP pollutant reductions that could occur due to the controls required for compliance.

Dissent- EPA Did Consider Costs in Setting Standards

The dissent took a much different view (Justices Kagan, Ginsburg, Breyer, and Sotamayer).  While EPA may not have considered cost in its decision to regulate, the justices noted that EPA did consider cost in the development of the final standards.  The dissenting Justices felt it was within EPA discretion to not consider costs in the preliminary stage of whether to regulate mercury emissions.

Rule Remains in Place

Despite the Court’s ruling, the MATS rule remains in place.  The Supreme Court remanded the rule back to the D.C. Circuit Court of Appeals for further proceedings. The D.C. Circuit will decide if the rule is vacated, stayed  or will remain in effect while EPA reconsiders its "appropriate and necessary determination" to factor in the cost of compliance compared to health benefits.  

Open Question- Ancillary Benefits from Reductions in Other Pollutants

One of the most significant questions remaining after the decision is how EPA will perform its cost benefit analysis now that the rule has been remanded.  During oral arguments, several Justices were very critical of the EPA’s cost analysis when setting the standards because it included co-benefits of reducing other pollutants as a result of controlling mercury emissions.  

In determining the health benefits from the MATS rule were approximately $90 billion annually, EPA included reductions in fine particulate matter and other pollutants (not just mercury) that are regulated under other provisions of the Clean Air Act.  EPA only attributed between $4 to $6 million in benefits directly as a result of reduction of hazardous air pollutants such as mercury.  

It will be interesting to see whether EPA revisits its conclusion that $4 to $6 million are the health benefits attributable to reduction in HAPs.  Or, will EPA try and support the rule on the basis of the co-benefits from additional pollutant reductions.

Rejection of the Whitman v. American Trucking

EPA relied heavily on the Supreme Court’s prior ruling in Whitman v. American Trucking to support its decision not to consider costs in determining whether to regulate HAP emissions from utilities.   In Whitman the Supreme Court held EPA could not consider costs in setting the new ozone standard.  The Court held that the Clean Air Act is unambiguous when EPA may consider costs. The Court  said it would not infer a duty to consider cost from ambiguous language in the Act.  

It is true that the language at issue in Whitman was narrower- "requisite to protect public health…with an adequate margin of safety."  This is compared to the term at issue in Michigan -"appropriate."  However, couldn’t the term "adequate margin" be broad enough to also consider costs?  

If both Whitman and Michigan are supposed to be read narrowly, as the Court suggests, then the Court has provided very little guidance as to when EPA may or may not consider costs when adopting its regulations.  

On November 25th, U.S. EPA finally issued the long anticipated proposal to reduce the ozone standard.  The EPA is proposing to revise both the primary and secondary standards to a level within the range of 65 parts per billion (ppb) to 70 ppb.  The current (2008) ozone standard is 75 ppb.  Under the Clean Air Act, EPA is required to re-evaluate the ozone standard every five years.

EPA will also accept public comment on retaining the current standard or lowering the standard to 60 ppb.  Industry will strongly support retention of the current standard while environmental groups will argue for a reduction as low as possible. 

EPA will take comment on the proposal for 90 days after it is published in the Federal Register and will hold three public hearings. It plans to issue a final decision by Oct. 1, 2015.  

EPA has delayed issuance of a revised standard on multiple occasions, must recently in September of 2011 (see prior post).  Those delays have been beneficial because they have allowed for existing emission reduction regulations to take effect.  The longer EPA waits to finalize the new standard, the more time existing regulations have to take full effect.

Given the delays and controversy around lowering the standard, it appears very likely EPA will settle on a new standard of 70 ppb.  Maintaining the current standard would be very difficult given the EPA’s science board has recommended further reductions.  However, going any lower than 70 ppb would result is too severe of emission reductions. 

Impact on Ohio

Ohio’s major metropolitan areas have always faced challenges in meeting federal ozone standards. It will be no different this time around (EPA’s national chart shows a long of red and orange dots in Ohio).  

The challenge facing the states is that federal regulations have been far more effective in reducing ozone compared with state or local regulations.  Each time EPA tightens the standard, the more difficult it becomes to find new reductions to lower ozone levels further. 

While reductions are hard to come by, the switch from coal to natural gas will have a huge impact on ozone levels.  The closure of multiple coal-fired power plants will lead to large reductions in ozone precursors (NOx).  While the switch to natural gas should help in achieving new ozone standards, it will still be very difficult for Ohio to achieve the necessary reductions.

In an article in the Cleveland Plain Dealer, Ohio GOP members expressed concern as to the impact of a lowered ozone standard on the economy:

House Speaker John Boehner and other GOP lawmakers from Ohio were unhappy with the EPA proposal.

Ohio Sen. Rob Portman fears the rule "will have a negative impact on job creation in the state of Ohio," his spokeswoman said, while Boehner predicted it could "slash family budgets by more than $1,500 per year, reduce GDP by trillions and cost our economy millions of jobs."

Wadsworth Republican Rep. Jim Renacci predicted it would lead to higher utility costs. He pledged "to rein in the EPA to ensure that its overreaching regulations do not crush job creation and increase costs for Ohioans."

"Significant portions of the country, including Ohio, are still struggling to meet the EPA’s 2008 guidelines, so moving the goalposts now will only lead to more uncertainty and higher compliance costs, which will ultimately be passed onto the consumer," said a statement from Renacci.

Once again, Ohio finds itself at the center of the challenge to balance air quality improvements with economic welfare.
 

 

According to a new Government Accounting Office (GAO) report released in September, actual and planned retirements of coal-fired power plants has accelerated due to new U.S. EPA rules and regulations and other market forces. 

Back in 2012, GAO performed an analysis of projected closure of coal plants due to four new EPA rules:

  • Cross-State Air Pollution Rule (CSAPR)
  • Mercury and Air Toxics Standard (MATS)
  • Cooling Water Intake Structures Regulation (316(b))
  • Disposal of Coal Combustion Residuals from Electric Utilities (CCR)

Noticeably absent from this list are the new climate change regulations announced by the Obama Administration in June of 2014.  The new regulations seek overall reductions in CO2 emissions of 30% by 2030.

Other factors have contributed greatly to the large number of coal plant retirements.  Those include cheap natural gas resulting from the Utica and Marcellus discoveries in the Midwest.  As well as lower demand in electricity overall. 

Based upon the combination of regulations and market changes, in 2012, GAO forecasted that between 2 to 12 percent of coal-fueled generating capacity could retire.  GAO’s new report indicates that the rate of retirements have actually exceeded the top end of the range predicted just two years ago. 

GAO now predicts that 13 percent of coal-fueled generating capacity – 42,192 megawatts (MW)- has either been retired since 2012 or is planned for retirement by 2025.  See, chart below  

NOTE:  Three-quarters of the plant closures will occur by the end of 2015 which corresponds to the initial MATS compliance deadline

 

 

 

 

 

 

 

 

Ohio Impacts

The majority of plant closures will occur in the Midwest with Ohio having the largest percentage of retired generating capacity- 14%

It is difficult to predict what this significant disruption in the electricity generation portfolio will have in terms of capacity and prices.  It will be critical to see new natural gas generating capacity come on line before the end of 2015 to replace a large portion of the lost capacity.  

Such impacts were inevitable due to the fact that Ohio relied almost exclusively on coal power prior to the natural gas revolution.  

 

Back on December 14, 2012, EPA strengthened the National Ambient Air Quality Standard (NAAQS) for fine particle pollution.  The standard was strengthened from 15.0 micrograms per cubic meter (ug/m3) to 12.0 ug/m3.  

Under the Clean Air Act, EPA first asks States to propose which counties should be deemed as not meeting the standard (i.e. "Nonattainment") based upon air quality monitoring data it complied over the last three years.  

On December 13, 2013, Ohio EPA proposed five counties- Cuyahoga, Stark, Hamilton, Clermont and Butler be designated nonattainment.  On August 19, 2014, U.S. EPA issued its response indicating that it intended to increase the number of counties designated nonattainment to 8 full counties and 5 partial counties. 

Ohio Recommended Nonattainment Areas and U.S. EPA’s Intended Designated Nonattainment Areas for the 2012 annual PM 2.5 NAAQS
Area Ohio’s Recommendations

U.S. EPA Intended Designated Nonattainment Areas

Canton-Massillon Stark Stark, Summit, Wayne (Partial)
Cleveland Cuyahoga Cuyahoga, Lake and Lorain
Cincinnati-Hamilton, OH-KY Butler, Clermont and Hamilton

OH: Butler, Clermont, Hamilton, Warren (partial)

KY: Boone (partial), Campbell (partial) and Kenton (partial)

What implications do these designations have on Ohio?

Ohio will have to develop a State Implementation Plan (SIP) which demonstrates how the State will bring these counties into attainment with the new PM 2.5 standard.  The SIP will contain new air pollution control regulations.  This means increased air pollution regulations in these areas for existing business.

In addition, once the nonattainment classifications are finalized (likely in December 2014), air permitting will become more challenging in these nonattainment areas.  New Source Review requirements will require larger sources to offset any pollution increases before a permit can be issued.  Offset means either finding other businesses willing to reduce emissions or take emission credits for facilities that recently shut down.

The new requirements could slow down permitting for larger factories in these areas.  Also, the net result can be to make nonattainment areas less competitive in attracting new manufacturing jobs.

Combating ozone pollution is really about time.  When I was back at Ohio EPA, we had countless meeting discussing how Ohio could (or whether it could) accelerate progress dramatically in reducing ozone pollution.  During that time we would discuss "on-the-books controls" versus new state initiatives.  

"On-the-book controls" referred to a suite of federal air pollution regulations that were put in place to help combat air pollution, including ozone.  The regulations target the two largest contributors to ozone pollution-vehicles and power plants.  The "on-the-books controls" include:

All of these federal air regulations will continue to be phased in over time greatly reducing the precursors that lead to the creation of ozone (smog). The full benefit of some of these major regulations won’t be seen for another 15 years as the vehicle fleet turns over. In addition, CSAPR has just emerged from litigation and the full reductions have not taken place.

What we learned in our discussions eight years ago was that the state’s had almost no ability to significantly reduce ozone pollution beyond what would be attributable to these federal regulations. At the time, the deadlines for compliance simply didn’t match up with the process for phasing in the federal regulations.  The states needed time.  

Flash forward almost 8 years later and it appears those federal regulations are having a dramatic effect on reducing ozone.  The picture above is taken from a story on Gizmodo regarding improvements to air quality in the last decade.  (Click here to see the very cool video showing reductions).

EPA Denies Request for Redesignation of Attainment Areas for Ozone Standard

On August 14, 2014, EPA Administrator Gina McCarthy denied the 2013 Sierra Club petition that requested U.S. EPA to redesignate as nonattainment 57 areas for violations the 2008 national ambient air quality standards (NAAQS) of ozone.  

Under EPA regulations, ozone levels are based on a three year average of the 8-hour ozone concentration.  The concentrations are averaged because weather plays an important role in the creation of ozone (i.e. hot summers = more ozone).  The averaging is intended to smooth out the variations that may occur due to weather.  

In the Administrator’s McCarthy’s letter denying the petition, she says one of the reason for the denial is to give the states more time.  She specifically cites forthcoming reductions due to federal regulations already in place.  

EPA states that emissions of the ozone precursors are expected to decline significantly:

  • NOx is expected to decline by 29 percent from 2011 through 2018; and
  • VOCs are expected to decline by 10 percent from 2011 through 2018

(Click here for EPA’s extended response setting forth the reasons for denying the petition)

EPA’s decision to deny the petition was sharply criticized by environmental groups.  However, redesignation to nonattainment would force the states to adopt additional reductions beyond these federal "on-the-books" controls.  Those state regulations are no where near as cost effective at reducing ozone pollution and would likely not significantly improve air quality.

EPA decision to give time to the states to allow federal regulations to take hold is based upon practical reality.  The last decade has shown dramatic improvements.  More reductions are locked in and the states would have little ability to accelerate those improvements.

 

The Obama Administrative continues to be heavily criticized by industry for its aggressive development of greenhouse gas regulations.  In contrast to the dizzying pace of new greenhouse gas regulations stands finalization of a new ozone standard…something the President promised to do after being elected to his first term. 

Under the Clean Air Act, EPA is required to review the ozone standard every five years. In 2008, the Bush Administration set the new ozone limit at 75 parts per billion (ppb). That was tighter than the existing regulations, but considerably weaker than the 60 to 70 ppb recommended by the Clean Air Science Advisory Committee (CASAC- a science advisory panel which advises EPA in settings National Ambient Air Quality Standards).

Litigation ensued over the Bush standard. However, a cease fire was called when the Obama Administration took office and called the 75 ppb indefensible. The EPA promised to revisit the standard and set it somewhere between the 60 to 70 ppb recommended by CASAC.

After two prior deadlines passed without a new standard, the Administration identified August of 2012 as the final date.  That date came and the Administration again said they would delay final standards until 2013.  Yet nothing happened last year.  Now, it appears the Administration may be making progress toward finalizing the standard.

On February 3rd, EPA release two reports-  its draft risk and exposure assessment and the Second External Review Policy Assessment for the New Ozone Standard.  Both of these reports confirm what was known five years ago-  the recommendation is to lower the standard to somewhere between 60 to 70 ppb.  

Clearly the Administration still has cold feet about finalizing a revised standard.  In fact, we have now gone more than five years since a review of the old standard.  

This is all good news to State’s like Ohio with a heavy manufacturing base, larger populations and fossil fuel reliant power base.  As discussed in my last post on this topic, the longer the delay the more time existing federal regulations have to take effect to reduce ozone precursors.  In reality, the States have very little ability to significantly reduce ozone pollution through state specific regulation.

The lengthy delay may mean that ozone levels will be reduced down to where a 70 ppb standard would be realistically attainable, something that seemed impossible even five years ago. 

Back in 2006, when I was Ohio EPA, I worked on Senate Bill 265 which was the first major overhaul in air pollution regulation in Ohio in over a decade.  One component of S.B. 265 was to provide authority to Ohio EPA to regulate air toxics.  

Prior to enactment of S.B. 265, Ohio EPA did utilize an "air toxics policy" that was used to evaluate whether an air pollution source should obtain a permit due to emission of certain air toxic compounds above certain thresholds.  As a policy, the Ohio EPA did not have clear legal authority to enforce the requirement.  After enactment of S.B. 265, the Ohio EPA was given that authority.  The bill required the director to adopt a list within two years of passage of the bill of those air toxics that could trigger permitting.  

There are literally thousands of compounds that could be considered toxic. Ohio EPA decided to rely upon toxicity information compiled by the American Conference of Governmental Industrial Hygienists ("ACGIH"")  The toxicity value developed by ACGIH is referred to as a chemical’s threshold limit value ("TLV"). The TLV represents the value to which a worker could be exposed without health effects.

However, TLVs are based upon worker exposure (8 hour and 5 day work week).  Ohio EPA felt that the number could be too conservative for residential exposures (24 hours and 7 days a week).  Therefore, Ohio EPA took the TLV for each compound and divided it by 10 as a "safety factor."  The result is a standard Ohio EPA refers to as the Maximum Achievable Ground Level Concentration ("MAGLC"). This is the value which it believes a resident living near a facility would not experience health effects.

Ohio EPA Reduces the List of Toxics

With so many chemical compounds, Ohio EPA tried to concentrate on those they felt presented the greatest risk of health effects.  Ohio EPA culled the list based on toxicity to 639 compounds.  Then, utilizing various factors discussed below, Ohio EPA cut down the original list to 303 total compounds. See, OAC 3745-114-01.

The factors utilized to cut down the list to 303 compounds included:

  1. If the compound was used in consumer products or regulated by other agencies (such as pesticides), then they were excluded;
  2. If the only pathway for exposure was non-inhalation (i.e. dermal contact, ingestion);
  3. If health effects are caused by exposure which is sudden and of short duration, such as those caused by emergency release events, including explosions or catastrophic malfunction (referred to as "acute exposure");
  4. Compounds no longer used or produced in Ohio; and 
  5. Those compounds that only cause irritation, not serious health effects.

Legal Challenge

The Sierra Club filed a legal challenge to the final air toxic rule.  The environmental group said the five factors used to cut the list from 639 to 303 compounds were unlawful.  

The 10th Appellate Court upheld three out of the five factors.  See, Sierra Club v. Koncelik  The Court found that Ohio EPA should not have eliminated compounds simply because they currently aren’t utilized in the State, because they may in the future.  Also, the Court said that Ohio EPA should not have eliminated compounds that posed health effects only through non-inhalation routes of exposure (i.e. dermal contact or ingestion).  

As a result of the Court ruling, Ohio EPA will be adding to the list of 303 compounds.