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Ex-Ohio EPA Director Talks About Proposed Smog Regulation

Throughout the 2000s, the Ohio Environmental Protection Agency (EPA) presented a modeling scenario that grimly became known as the "depopulate Cleveland" scenario. The gist of it: Even if you cut out half of the vehicles--and all of the industry--in Cleveland, the area still couldn't meet the 1997 ozone attainment standard of 0.085 parts per million. But despite those dire predictions, the U.S. EPA re-designated the Cleveland area as attainment in September 2009. InsideCounsel spoke with Joseph Koncelik, former director of the Ohio EPA and an attorney with Frantz Ward, about how Northeast Ohio achieved attainment and what the new ozone standards the U.S. EPA proposed in January mean for future attainment in the region.

Q: What measures contributed to the September 2009 re-designation?

A: Behind the scenes, U.S. EPA changed some of its guidance about what you have to do when you're modeling. It used to be you had to take the highest level of ozone recorded [in your area] during a given year, and that was the starting point for running models. Well U.S. EPA came back and said, "Maybe that's an unreasonable position. We'll let people start averaging their high years." That started us off much better.

Another thing U.S. EPA did was what I called the "close-enough" rule, which it would refer to as the weight of evidence standard. The standard was 0.085 parts per million. They would say, "If you can show your modeling is at 0.087, we'll say you're close enough if you can show us things are going to improve over time." So the flexibility U.S. EPA was showing internally played a big part in it.

We also got really lucky and had great weather. Ozone is highly dependent on hot summers. For instance, 2002 was by far the worst ozone year we had, and that was because we had a very hot summer. Subsequent to that, we haven't had any summers like that; we've had very cool summers, which meant far less ozone creation.

Another key factor was that U.S. EPA's rule that reduced power plant emissions kicked in, which forced reductions of ozone-causing components from power plants. Ozone is a regional issue, so you're talking about a federal standard that applied across the U.S.

One last key piece was Cleveland having experienced an economic downturn during the early 2000s. We updated the information in the modeling to show fewer cars, less industry. That had a dramatic impact.

Q: What challenges does the January 2010 proposed standard pose for industry?

A: It just gets harder and harder to lower ozone levels. You can't keep squeezing the turnip to try to get all the reductions, so the tighter they make the standard, the more difficult it is just to get one part per billion reduction.

Q: What's the takeaway for in-house counsel?

A: Right now, if I was a business in Cleveland and I was contemplating, "Gee, should I do an expansion of my business this year--assuming I'm going to have an air pollution source associated with that expansion--or should I do it a year from now?" It would make a heck of a lot more sense to do it now because we're in an attainment status. We meet the federal standards. A year from now, after these new ozone standards come into effect, we'll be in nonattainment: We won't be meeting the federal standards. It is far more difficult, from a permitting standpoint, to do a major expansion that includes an air source if you're in a nonattainment area, so I'd think about taking advantage of this window.

From a business perspective, there is a tremendous amount of focus, understandably, on the issues associated with climate change and what impacts it may have on industry, but there are other huge issues like ever-tightening federal air quality standards that also have a dramatic impact, particularly on manufacturing and businesses that are heavily reliant on electricity. That's something we definitely should not be losing sight of. Businesses should be planning for and anticipating that.

Q: Are there any windows of opportunity in dealing with the proposed standard?

A: The most logical is that there's a lot of federal and state grant money out there for alternative energy and energy efficiency projects. If you can leverage some of that money--or just do some analysis of your own business' energy efficiency projects--it can have a pretty short payoff period.

With ever increasing energy costs, it just makes more and more sense to be really looking at your facilities to determine, "Can we do something to really reduce our energy use, whether that's co-generation or some other renewable energy source that we could tap into?" There are all sorts of great, innovative ideas out there, such as people tapping into methane from landfills to power their manufacturing facilities, people putting up wind turbines, all of those types of things. It just makes more and more sense when you look at the trend lines to evaluate those.

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