Re: Reconsideration of the National Ambient Air Quality Standards (NAAQS) for Ground-level Ozone

Transcription

1 March 22, 2010 The Honorable Lisa P. Jackson Administrator U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC Re: Reconsideration of the National Ambient Air Quality Standards (NAAQS) for Ground-level Ozone Dear Administrator Jackson: The (NARC) and the National Association of Counties (NACo) support National Ambient Air Quality Standards that protect the health and welfare of the nation s communities, but is concerned about proposed, stringent changes to the current NAAQS Ozone standards that will dramatically increase the number of regions classified as non-attainment. Representing regional planning organizations and their local elected officials nationwide large, small, urban and rural including metropolitan planning organizations (MPOs) and councils of governments (COGs), NARC and NACo are concerned that instituting a more stringent ozone standard without additional tools, resources, flexibility and authority will put extreme pressure on the local governments responsible for responding to these new standards without necessarily achieving improved air quality. Regional planning organizations, and the localities they represent, are ultimately responsible for implementing the programs that support compliance with federal clean air requirements. Through the MPO process, localities are responsible for developing regional transportation plans and may need to conduct a transportation conformity process as per the Clean Air Act (CAA) Section 176(c) to ensure that federally supported highway and transit projects are consistent with state air quality implementation plans (SIPs). Counties designated as non-attainment and maintenance areas for criteria pollutants, including ozone, are currently required to conduct this process. Additionally, some COGs serve as the air quality board for their region, with comprehensive responsibilities regarding air quality planning. As states cannot implement conformity for non-attainment areas, MPOs and COGs must provide great leadership to implement conformity plans and maintain compliance with federal air quality standards. On behalf of the regional planning community, NARC and NACo respectfully submit the following recommendations to EPA as you examine new NAAQS ground-level Ozone standards: Item #1 - Primary Ozone Standard NARC and NACo support maintaining the current standard, set in 2008, and returning to the regular NAAQS review process that occurs once every five years. The adoption of a primary ozone standard below the current level of.075 parts per million (ppm) will greatly increase the number of monitored counties in non-attainment. According to EPA, a total of 515 counties currently have ozone levels above a.070 ppm threshold and 650 counties have ozone levels above.060. If the NAAQS Ozone standard is set at the lowest proposed level, it would potentially leave only 25 counties with monitors nationwide in attainment. Returning to a regular review cycle will allow programs and control 1

2 strategies the time to take effect, and provide EPA with a better understanding of what existing control strategies are effective. NARC and NACo recognize that the Clean Air Act prohibits the consideration of economic impacts when setting the NAAQS standard. However, economic considerations are critical. For example, the real-world implications they have on an MPO s ability to recommend projects that may ease congestion and enhance mobility cannot be underestimated. An increase in the number of counties in non-attainment will further constrain the resources necessary to address these challenges. Further, ozone reduction resulting from the 1997 and 2008 ozone standard programs have yet to be fully implemented. EPA s proposed range would increase the stringency of the Ozone NAAQS again, when current implementation steps are just beginning, including new emission restrictions and controls that affect a broad range of public and private entities. A March, 2010 report by the Government Accountability Office (GAO) estimates that state and local governments have a fiscal gap requiring a 12.3 percent reduction in current expenditures to close. This report states: Because most state and local governments are required to balance their operating budgets, the declining fiscal conditions shown in our simulations suggest the fiscal pressures the sector faces and foreshadow the extent to which these governments will need to make substantial policy changes to avoid growing fiscal imbalances. 1 As federal policies focus on creating jobs and pulling our nation out of an economic recession, local governments are working through their COGs and MPOs to develop strategies that leverage their resources (transportation and otherwise) as a means to generate and sustain jobs. The supplement to EPA s Regulatory Impact Analysis indicates that a more stringent standard will cost between $19 billion and $90 billion, depending on the severity of the standard. 2 Advancing more stringent air quality standards will severely restrict the resources and tools available to local governments. EPA s Regulatory Impact Analysis concedes this point when it asserts that only a small portion of the costs of attainment are associated with known controls and, The costs of identified control measures accounts for an increasingly smaller quantity of the total costs of attainment. This is a major limitation of the cost analysis. We assume a majority of the costs of attaining the tighter alternative standards will be incurred through technologies we do not yet know about. Therefore costing future attainment based upon unspecified emission reductions is inherently difficult and speculative. 3 In addition, when determining the threshold of ozone concentration, the level of naturallyoccurring background ozone present in the atmosphere should be considered, as well as the variation in human-induced background ozone due to ozone transport issues. US EPA defines policy relevant background ozone (PRB) as concentrations that would occur in the United States in the absence of anthropogenic emissions in continental North America. Background ozone will be present regardless of 1 State and Local Governments Fiscal Outlook March 2010 Update. Washington: Government Accountability Office, Supplement to the Regulatory Impact Analysis for Ozone: Fact Sheet. Washington: US EPA, Summary of the updated Regulatory Impact Analysis (RIA) for the Reconsideration of the 2008 Ozone National Ambient Air Quality Standard (NAAQS). Washington: U.S. EPA,

3 human or governmental action. Concerns exist that stricter standards may be nearly impossible to achieve in areas with high background or naturally occurring ozone levels. Item #2 - Proposed Secondary Standard For the first time, EPA is proposing a unique secondary standard. Depending on the level EPA selects, the secondary standard could be more stringent than the primary standard. Due to the uncertainty of the proposed secondary standard, NARC and NACo encourage EPA to maintain a secondary ozone standard that is measured with the primary standard as an 8-hour average. If EPA insists that a different standard is necessary, our organizations recommend that EPA provide much more data and analysis to provide sufficient certainty of its benefits and the validity and stability of the proposed W126 exposure index. We question the availability of tools capable of addressing the transportation sector s contribution to regional air quality that are specific to this type of measurement and further recommends that EPA move aggressively to communicate and train regional and local transportation planners on methods through which they may conduct transportation conformity on this proposed secondary standard. EPA s longstanding practice of evaluating ozone pollution under a single measurement standard has been institutionalized within our regions and communities. Multi-year transportation plans have been drafted with strategies that reduce pollution on the 8-hour standard, and the process associated with amending these federally-required documents is time-consuming and expensive. The alternative of assessing ozone concentration on a 3-month cumulative basis would unfairly penalize a variety of regions, which must accommodate prevailing weather patterns impacting the circulation of fresh air. The many factors that can affect ozone concentration, including the ebbs and flows of weather patterns, could lead a region to violate the proposed 3-month cumulative secondary threshold with little culpability on the part of the locality, and little possibility to control for it. Item #3 - Ozone standards rulemaking and transportation funding through CMAQ NARC and NACo have concerns about the relationship between tighter ozone standards and the resources available to regions and localities to pay for control measures. Regions designated as non-attainment receive funding through the Congestion Mitigation and Air Quality (CMAQ) program, authorized by P.L , the Safe, Accountable, Flexible, and Efficient Transportation Equity Act A Legacy for Users (SAFETEA-LU). This program provides federal financial assistance to MPOs to help them implement transportation plans and programs resulting in improved air quality. The CMAQ program, jointly administered by FHWA and the Federal Transit Administration (FTA), provides $8.6 billion in funds to state Departments of Transportation (DOTs), MPOs, and transit agencies to invest in projects that reduce criteria air pollutants regulated from transportation-related sources. The formula for distribution of funds considers an area's population by county and the severity of its ozone and carbon monoxide problems within the nonattainment or maintenance area; greater weight is given to areas that are both carbon monoxide and ozone non-attainment/maintenance areas. There is a direct correlation between a decrease in the NAAQS standards and an increase in the number of regions that qualify for, and require assistance from, this program. Stricter air quality standards will significantly impact the ability of this program to fund implementation strategies, creating potential unfunded mandates for many regions attempting to improve their air quality by integrating air quality and transportation planning. The promulgation of lower, more stringent standards will require additional financial resources in the CMAQ program to support non-attainment regions. 3

4 Item #4 Implementation Given the dire economic situation in which the country (federal, state and local) finds itself, the EPA should delay the implementation of this rule to the fullest extent allowed by the Clean Air Act, as well as place both the primary and secondary standards on the same implementation schedule. A significant concern exists that more stringent federal air quality standards will lead to greater operating costs which will be borne by local industries. These industries have indicated their willingness to relocate their operations to areas where their operating expenses can be reduced. Should more stringent air quality standards be implemented, and these concerns be realized, the effect will be two fold. First, national economic recovery will be slowed through the continued loss of jobs. Second, the ability of state and local governments to finance the control strategies necessary to meet the newer, more stringent standards will be further limited due to the loss of tax revenue. Placing both the primary and secondary standards on the same schedule will streamline the process, making transportation and air quality planning more efficient, and allowing time and resources to be dedicated to other priorities. We request the maximum time allowed by the CAA, as increased coordination among multiple planning partners is needed to meet the associated milestones. Accelerated timelines create additional pressure on already strained resources of regional transportation and air quality planning partners. In addition, states and localities have worked to identify strategies that are both politically and financially feasible to reach attainment through the NAAQS Ozone standard set in Tightening the standard further will require a duplication of those efforts, with a significant cost to states and regions both financially and politically. Developing control strategies will require a strong partnership between the federal, state and local governments to communicate the requirements of the Clean Air Act with the opportunities necessary to be created. This kind of partnership does not happen immediately and must be continually maintained. Item #5 New Technologies and Strategies The EPA has listed a preliminary implementation schedule for the new standards, indicating that reconsidered standards will be finalized in August, 2010, and final designations determined by August, NARC and NACo encourage the EPA to recognize the social and economic pressure that accelerated timelines will create on regional transportation and air quality planning. The economic effects of an accelerated implementation schedule, in the current difficult economic climate, has the potential to both contravene federal economic priorities and subject local governments to unfunded mandates. NARC and NACo recommend that EPA aggressively pursue innovative tools and strategies designed to assist regions with implementation of any final standards. Programs like Early Action Compacts (EACs) are an example of a tool regions used to develop proactive measures that meet new ozone pollution standards. EACs were explored by EPA when the agency moved from a 1-hour standard to an 8-hour standard in These agreements allowed local governments to begin pollution control reforms in advance of their determination dates, in exchange for administrative relief. Thirty-three states submitted compact agreements in December 2002 and, of these, 14 areas received non-attainment deferred status, rather than being placed in non-attainment only one of these areas 4

5 failed to show attainment when the EAC expired at the end of Several regions have had very positive experiences with EACs, indicating these agreements have helped bring multiple stakeholders to the table and unify the region in efforts to meet air quality standards. NARC and NACo support making available a similar process if EPA adopts the stricter standards, and offers its assistance to the EPA to develop these and other strategies. Additionally, our organizations recommend that EPA better coordinate the existing air quality programs to develop a more comprehensive understanding of the various requirements and mechanisms used to address ground level ozone, and to assist regions and localities in meeting both ozone and other air quality standards. The following existing and future programs should be reviewed to better understand how they interact to impact the levels of ozone present: EPA s Regional Haze Program; EPA s 2007 Heavy-Duty Highway Rule; EPA s Regional Transport from Ground-Level Ozone Program; Vehicle Fuel Economy Standards; The Clean Air Interstate Rule; The Clean Air Mercury Rule; The Clean Air Visibility Rule; The Clean Air Nonroad Diesel Rule; The Light-Duty Vehicle Tier 2 Rule; The Heavy Duty Diesel Rule; The proposed US DOT Mexican Truck rule; The proposed rules for Locomotive and Marine Vessels and for Small Spark-Ignition Engines, and An estimate of State-level mobile and stationary source controls that were projected to be needed to attain pre-existing PM 2.5 and ozone standards. Item #6 The Need for a New National Vision NARC and NACo recognize the importance of air quality standards that protect human and environmental health. As regional planning organizations, and their constituent local governments, are the primary stakeholders who must develop implementation strategies addressing these regulations; a strong intergovernmental relationship must be created and maintained between US EPA, FHWA, regional planning organizations and the local governments they serve to provide the appropriate levels of attention and assistance on the local and regional levels. In addition, the structure of the current program, which incentivizes the avoidance of nonattainment status, rather than the movement toward healthy air quality, can create disincentives for regions interested in employing successful strategies to lower air pollution levels. Consequently, our organizations support the development of a new approach to improving the nation s air quality. This approach would move away from punitive measures for local governments toward one that applies incentives to promote healthy air quality in our regions nationwide and better considers and integrates the multiple air quality requirements being placed on local governments and regional agencies. 5

6 NARC and NACo appreciate EPA s consideration of our concerns and reiterates that the implementation of changes to the NAAQS Ozone standard at this time would be detrimental to the wellbeing of the nation s regions and local governments. Instead, an opportunity should be created for the aforementioned EPA implementation tools to be integrated into the stakeholder community before a new standard is promulgated. NARC, NACo and our members remain committed to improving regions and offer our assistance in achieving healthy, sustainable communities. We look forward to further discussing this important issue with you. If you have any questions, please do not hesitate to contact us. Sincerely, Fred Abousleman Executive Director Larry Naake Executive Director cc: The Honorable Gina McCarthy, Assistant Administrator, Office of Air and Radiation, US EPA 6