EPA’s Unobtainable Ozone Proposal

Mark Green
Posted June 12, 2015

For some time we’ve been talking about EPA’s bid to make the nation’s ozone standards more restrictive.

We’ve expressed puzzlement that the agency wants to impose more stringent standards when the existing ones are working – lowering ozone levels 18 percent between 2000 and 2013 according to EPA’s own data. We’ve noted the lack of scientific and public health justification for stricter standards while highlighting potential risks to the economy.  If this week’s House Energy and Commerce subcommittee hearing on ozone was any measure, the issue has the attention of many in Congress.

Top EPA official Janet McCabe was peppered with questions about economic impacts, the arguable wisdom of stricter standards when areas like Los Angeles don’t meet existing standards and EPA’s push for more stringent standards before the current standards are fully implemented in the states.

U.S. Rep. John Shimkus of Illinois likened EPA’s rush to regulate on ozone to changing the rules for the annual congressional baseball game in mid-game – while also noting the regulatory wave the agency has created:

What if “we started the game and halfway through the game the strike zone changes? Or in the second inning the number of outs changes? Or the fourth inning, the foul lines change, or the outfield walls got moved in? That would make for a very frustrating, impossible game. … This is about utility MACT (maximum achievable control technology), boiler MACT, cement rule, cross-state pollution, (Rule) 111-D, (Rule) 111-B, ozone  standards, particulate matter, Tier 3 (gasoline requirements). We’re changing the rules on the fly, and the people who are creating jobs in this country cannot manage.”

For her part, McCabe characterized EPA’s proposal as a collaborative effort involving all levels of government. From her prepared testimony:

“Implementing a NAAQS (National Ambient Air Quality Standards) has always been and will continue to be a federal, state, and tribal partnership. EPA stands ready to do our part to assist states and tribes with pollution control programs and to streamline implementation. Local communities, states, tribes and EPA have already shown that we can reduce ground-level ozone while our economy continues to thrive. Nationally, since 1980, average ozone levels have fallen by a third. And 90 percent of the areas originally identified as not meeting the ozone standards set in 1997 now meet those standards.”

The part about the federal-state-tribal partnership is important, because officials in a number of the states have serious issues with what EPA is proposing. More on that below. But first, McCabe actually makes the point our industry, manufacturers, utilities and others have been making – that ozone levels have and are falling under the existing standards, and that EPA shouldn’t mess with that success.

As for state officials, they’re concerned that EPA’s proposal could be unattainable because in many parts of the country naturally occurring “background” levels of ozone exceed the standards EPA could impose. In a report prepared by the Association of Air Pollution Control Agencies (AAPCA), a non-profit that helps state and local air quality agencies on Clean Air Act issues, state officials also question whether EPA would grant exceptions to the more stringent standards for events like wildfires, for pollution that comes from other countries and for rural areas lacking emissions sources that could significantly contribute to ozone concentrations in an particular area.

But the key for many states is that the federal government could require them to reduce ozone concentrations below background levels. A sampling of the comments:

West Virginia Department of Environmental Protection – Another consideration in EPA’s policy judgment should be the attainability of the standard. Ozone forms naturally in the absence of the anthropogenic influences over which EPA and states have any control. As lower ozone concentrations are considered as NAAQS, these background levels of ozone are approached. This is especially an issue at the lower end of the range that EPA is considering. A NAAQS should not be set at background levels at which there are no realistic compliance options available.

Florida Department of Environmental Protection – EPA also should consider whether natural background concentrations would preclude compliance with EPA’s proposed standards in certain geographic areas. For example, EPA estimates that 70 to 80 percent of the seasonal mean ozone levels in Florida are attributed to background contributions.

Louisiana Department of Environmental Quality – (The Department) has concerns that a strengthening of the ozone standard may result in ozone exceedances due to background concentrations of naturally occurring ozone mixed with anthropogenic background levels. …  EPA instead suggests that the states pursue regulatory relief in the form of exclusion, exceptional events or relief from adopting stringent requirements by using the rural or international transport provisions. Once again this presents an onerous burden for the states. EPA does not have to prove these exceptions or exclusions, the states must perform these exercises, subject to EPA review and approval.

Nevada Division of Environmental Protection – The intent of the CAA (Clean Air Act) has never been to compel air quality authorities to mandate reduction measures that will prove to be futile where NAAQS violations are the result of elevated background concentrations, as is the case with ozone in Nevada and the intermountain West.

Ohio EPA – Ohio EPA does not agree that the new ozone standard should be mostly comprised of background ozone itself. As a new standard becomes closer to background levels, states have less ability to develop practical control strategies to meet the standard.

Tennessee Department of Environment and Conservation – Tennessee appreciates the need to lower the standard, but urges extreme caution in selecting a value that approaches background due to the many likely implementation issues that will follow. While the courts may have ruled that costs are not to be considered in setting a health based standard, the practicality of implementation irrespective of costs must absolutely be considered.

It’s pretty clear there’s concern here for a regulatory push that appears untethered to real-world conditions in many ways. The concerns of state air quality officials are critically irrelevant – adding to the voices of industries, economic development groups and others that this proposal should not go forward.

Lawmakers at the House hearing wondered if EPA couldn’t take another route on ozone. The agency could choose to keep the existing standards in its final rule. Nearly four years ago President Obama recognized a number of the concerns above and intervened. Might be time for the president to get involved again.