Bill, ozone limits implementation both draw fire before House panel

April 25, 2016
A bill that would delay the US Environmental Protection Agency's implementation of a 70 ppb ground-level ozone limit drew nearly as much fire as EPA's implementation of the new limits did at a US House Energy and Commerce subcommittee hearing.

A bill that would delay the US Environmental Protection Agency's implementation of a 70 ppb ground-level ozone limit drew nearly as much fire as EPA's implementation of the new limits did at a US House Energy and Commerce subcommittee hearing.

The two-step process of a science-based National Ambient Air Quality Standards (NAAQS) review every 5 years, followed by implementation, is a system that works, Janet McCabe, EPA's acting assistant administrator for air and radiation, said in a written statement submitted for the record at the Energy and Power Subcommittee's Apr. 14 hearing.

"We expect that the vast majority of US counties outside of California will meet the 2015 NAAQS by 2025 without having to take additional action beyond federal measures to reduce emissions," McCabe said.

But McCabe also expressed concern that enactment of HR 4775, which Rep. Pete Olson (R-Tex.) and four Republican cosponsors introduced on Mar. 17 and the subcommittee was considering, would stall a cooperative process with US states that has worked in the past, and make people living in areas that fall below the limit breathe unhealthy air for 10 years or longer.

"[The bill also] would delay infrastructure State Implementation Plan (SIP) submissions for ozone, including measures to address interstate transport, by 8 years (to 2026 rather than 2018)," she said. "[It] also says that the 2015 ozone NAAQS shall not apply to the review and disposition of certain preconstruction permit applications. In effect, areas with unhealthy ozone levels would for a substantial period of time lack significant planning requirements and new source review requirements for meeting the health-based standard."

McCabe said HR 4775's other changes would extend the review standard for all six NAAQSs to 10 years from 5 years; change the definition of exceptional events to allow inclusion of certain events, including droughts, that may have not been previously considered exceptional for air-quality planning purposes; allow EPA's administrator to consider technological feasibility as a secondary consideration when revising a NAAQS; and limit consideration of preconstruction permit applications until after EPA has issued final NAAQS implementation and guidance.

Schedules overlap

But the full committee and subcommittee's Republican leaders said that while the 1970 Clean Air Act (CAA) has reduced ozone levels by 30% since 1980, EPA's ozone program with its overlapping schedules is no longer working and needs to be fixed.

"EPA itself delayed the implementation of its 2008 ozone standard, and last year the agency finally provided states with necessary implementing regulations," Committee Chairman Fred Upton (Mich.) said. "But instead of focusing on working with states to achieve the 2008 standard, the agency went ahead and finalized a new standard and is now requiring states to simultaneously comply with both."

Because EPA imposed the 2015 70-ppb limit without revoking the 2008 standard, states now face the prospect of implementing two ozone standards simultaneously, Subcommittee Chairman Ed Whitfield (Ky.) noted. "Under the new standards, states would be required to begin later this year a complex regulatory process involving designations, state implementation plans, and new permitting programs, long before the 2008 standards have been fully implemented," he said.

Whitfield said HR 4775 offers a commonsense way forward by allowing the 2008 ozone rule to continue being implemented, and for the 2015 standards to be phased in under a more reasonable timeframe.

"The bill makes practical changes to modify the current requirement that standards for ozone and other pollutants be reviewed every 5 years, and places the new deadline at no more than 10 years subject to the discretion of the administrator," Whitfield said. "EPA's own actions show that 5 years is not enough time and that this arbitrary deadline needs to be revised."

The full committee's ranking minority member disagreed. "HR 4775 would elevate cost considerations in the standard-setting process, not just for ozone, but also for carbon monoxide, sulfur oxides, nitrogen oxides, particle pollution, and even lead," warned Frank Pallone Jr. (D-NJ). "This would allow polluters to override scientists, leading to air-quality standards based on profits rather than health, and reversing decades of progress in cleaning our air."

Alters data interpretation

The measure also includes a provision to alter the way that air-quality monitoring data is interpreted, discounting air-quality measurements taken during normal weather and climate cycles such as heat waves and droughts, Pallone said. "It's an environmental 'Don't ask, don't tell' designed to make it appear that air quality is improving when it is not," he said. "We should eliminate pollution, not the record of its occurrence."

Four of the five state air-quality regulators who testified at the hearing expressed concerns about EPA's current ozone limit implementation and compliance schedule. "As the lead state challenging the 2015 ozone standard in the courts, Arizona does not support 70 ppb as the appropriate ozone standard," said Misael Cabrera, who directs that state's Department of Environmental Quality (DEQ).

"We believe that the new standard is simply not achievable in many areas of our state. Although the [CAA] has five mechanisms to bring nonattainment areas into compliance, [they] are inadequate for Arizona and likely other Western states," Cabrera said.

Alan Matheson, executive director of Utah's DEQ, said that extending the 5-year NAAQS review cycle so it better aligns with prescribed implementation guidelines makes sense. "Extending the review cycle to 10 years would more closely align it with the prescribed planning period of an area designated as serious nonattainment for ozone," he said.

"Further, EPA has been unable to provide states with timely and necessary implementation guidance under the current 5-year NAAQS review cycle. The implementation rule for the 2008 Ozone NAAQS was published in March 2015, only 7 months before the ozone standard was lowered to 70 ppb in October," Matheson said.

Seyed Sadredin, executive director and air pollution control officer at the San Joaquin Valley Air Pollution Control District in California, said various regions across the country now are subject to multiple iterations of standards for a single pollutant. "Currently, we are subject to four standards for ozone and four standards for PM2.5," he said. "Each of these standards requires a separate attainment plan which leads to multiple overlapping requirements and deadlines."

Bill would ease transition

Sadredin said HR 4775 would help reduce the chaotic nature of the transition between standards by requiring that EPA issue guidance on implementing new standards in a timely manner and extending the timeframe to review new standards to 10 years from 5 years. "In the San Joaquin Valley, these provisions will reduce the current chaotic nature of the transition between standards. The streamlining remedies provided in [the bill] will not delay aggressive efforts to reduce air pollution and improve public health [there]."

Texas Commission of Environmental Quality Chairman Bryan W. Shaw also supported the bill. "By suspending the applicability of the new standard, this legislation will allow states to focus their limited resources on fully implementing the 2008 standard, as well as the cascade of other new and expensive regulations coming out of EPA," he said. "Especially considering the cost and the negligible health and environmental benefits embodied by the new standard, a delay in implementing [it] is helpful indeed."

Shaw said he also supports the measure's addition of technological feasibility and possible adverse welfare, social, and economic effects to the list of factors the EPA can consider in revising a standard. "The [CAA's] requirement that EPA ignore technological and economic considerations might have made sense 40 years ago when it was initially passed," he said in his written testimony. "However, pollution levels have been lowered to such a degree that the law of diminishing returns has made it more and more difficult to continue to reduce pollutant levels at all, much less in a way that is not burdensome economically."

But the fifth state air-quality regulator who testified-Ali Mirzakhalili, who directs the Air Quality Division in Delaware's Department of Natural Resources and Environmental Control-warned that the bill's provision that would allow technological feasibility to be considered in determining the ozone limits could unravel the CAA's entire framework.

Under the existing law, EPA is required to set NAAQSs solely on the basis of health so that communities will know whether the air their citizens are breathing is safe, Mirzakhalili said. "Once the health-based standards are set, the [CAA] allows costs and other factors, including technological feasibility, to be considered as states develop implementation strategies to meet these standards," he said. "By removing this important 'firewall' separating the setting of the standards from their implementation, the public will never know what level of air quality is truly safe."

About the Author

Nick Snow

NICK SNOW covered oil and gas in Washington for more than 30 years. He worked in several capacities for The Oil Daily and was founding editor of Petroleum Finance Week before joining OGJ as its Washington correspondent in September 2005 and becoming its full-time Washington editor in October 2007. He retired from OGJ in January 2020.