EPA s Proposed Ozone NAAQS Revision: Example Comments for State Environmental Regulators

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1 EPA s Proposed Ozone NAAQS Revision: Example Comments for State Environmental Regulators I. Overview of Potential Comment Topics 1. The current 75 parts per billion (ppb) ozone standard is adequate and should be retained. 2. EPA should allow states to fully implement the 2008 ozone standard before tightening it further. 3. EPA s proposed range is approaching background concentrations. 4. Tremendous progress has been made in improving air quality and the availability of additional emission reductions is rapidly diminishing. 5. EPA must provide the necessary assistance and guidance in a timely fashion to aid implementation of any new NAAQS. II. Why the Current Standard of 75 ppb Should be Retained States have only begun to implement the current standard. Even though the current standard of 75 ppb was finalized in 2008, the EPA stopped implementing it from while it pondered an out-of-cycle rulemaking to make it more stringent. EPA did not restart implementation until early 2012, six months after the White House rejected EPA s more stringent ozone standard. EPA s delay put state implementation of the 2008 ozone standard well behind the normal schedule. States did not find out which of their counties would be designated nonattainment under the 2008 standard until April The implementing regulations from the 2008 standard are still logged at the Office of Management and Budget, and have not been released to states so that they can submit their State Implementation Plans (SIPs). EPA s Proposed Standard is Approaching Background Ozone Levels. EPA s proposal is so stringent that the Grand Canyon would fail the proposed 70 ppb standard, and Yellowstone National Park would fail the proposed 65 ppb standard. The National Oceanic and Atmospheric Administration (NOAA) released a study showing that Las Vegas would exceed EPA s proposed range of ozone NAAQS almost entirely due to background ozone. As EPA notes in its proposed rule, some locations in the U.S. can be substantially influenced by sources that may not be suited to domestic control measures. In particular, certain high-elevation sites in the western U.S. are impacted by a combination of non-local sources like international transport, stratospheric O 3, and O 3 originating from wildfire emissions. 1 EPA also notes that analysis suggests that in some parts of the country and at certain times, background concentrations of ozone approach or even exceed the current 75 ppb standard. 2 1 EPA Proposed Rule, p. 33 (2014). 2 EPA Proposed Rule, p. 33 (2014).

2 The Science Does Not Support A Lower Ozone NAAQS. There is a lack of definitive evidence linking low levels of ozone to health impacts. The evidence on which EPA relies today is no stronger than it was the last time the standard was reviewed (2008). 3 EPA s new conclusions are not consistent with the majority of the science on the subject. 1,4 EPA's analyses show that few (if any) people would be adversely affected by ozone at the current standard. 5 Nationally, the percentage of the population with asthma is increasing, while ozone concentrations are steadily decreasing; this suggests ozone is not the cause. A stricter standard could have unintended consequences for urban areas. Lowering manmade sources of ozone precursors (e.g., nitrogen oxides) has been shown to increase ozone concentrations in urban areas because of ozone s complex chemistry. For example, nitrogen dioxide, the primary manmade precursor to ozone, both forms and destroys ozone. Particularly in the early years of compliance, a stricter ozone standard could actually serve to raise ozone levels in urban areas. Existing, on-the-books regulations will sufficiently reduce ozone levels, making a new standard unnecessary. In the proposed rule, the EPA identifies dozens of recent regulations on vehicles, industrial processes, consumer and commercial products, and the electric power sector that will drive major reductions of the pollutants that cause ozone over the next decade regulations like the Mercury and Air Toxics Standards, the Boiler MACT, fuel economy standards for cars and trucks, regional haze rules, the Cross-State Air Pollution Rule, Tier 3 tailpipe emissions standards, VOC emission standards for consumer products, and many others. Even in the absence of new ozone regulations, ozone precursor emissions will be roughly 25 percent lower in 2018 than they are today, and over 60 percent lower than they were in A stricter ozone standard will likely be the most expensive regulation ever, costing states tens of billions annually in potential compliance costs. Because most of the low-hanging fruit is gone and existing controls have already been installed, a substantial portion of the compliance with a new standard as much as 60 percent will come from controls that are unknown even to the EPA. If these controls are not invented in time, businesses will be forced to consider scrapping existing plants and equipment. Businesses operating in newly-designated nonattainment areas could be effectively closed off to any new growth, and even businesses in areas in compliance with the new standards will struggle to model attainment and obtain their new permits. No sector will be spared, and the nation s manufacturing comeback driven largely by an advantage on energy could be placed in jeopardy. 3 Gradient (Cambridge, MA) "Long-Term Ozone Exposure and Mortality." Report to Utility Air Regulatory Group. (April 2013); Gradient (Cambridge, MA) "Short-term Ozone Exposure and Mortality." Report to American Forest and Paper Association ( December 20, 2013); Gradient (Cambridge, MA) "Long-Term Ozone Exposure and Respiratory Morbidity." Report to American Forest and Paper Association (December 20, 2013). 4 Honeycutt, Dr. Michael, Will EPA s Proposed New Ozone Standards Provide Measurable Health Benefits?, National Outlook, Texas Commission on Environmental Quality (TCEQ) PD-020/14/07 (October 2014) 5 US EPA. August "Health Risk and Exposure Assessment for Ozone (Final Report)." EPA-452/R a-e.

3 III. In Their Own Words: Past Statements by State Regulators on Proposals to Lower the Ozone NAAQS 1. The current 75 ppb ozone standard is adequate and should be retained. Ohio: Where there is sufficient agreement and justification that any value in a range will provide protection of public health and an adequate margin of safety, the highest level should be chosen. Ohio EPA believes that ppm is such a justifiable level. State of Ohio Environmental Protection Agency, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 22, 2010). Mississippi: MDEQ believes that the primary standard should not be set below 70 ppb because there are uncertainties about health effects being solely attributable to outdoor ozone exposures at lower concentrations. Mississippi Department of Environmental Quality, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 22, 2010). Virginia: If a new, more stringent standard is to be adopted, a large number of new ozone nonattainment areas may be brought into the process, especially at the mid to lower end of the proposed standard range. Most of these new nonattainment areas will be small urban and even rural areas that have little influence or control over their local air quality, and will be particularly burdened by the regulatory and administrative requirements that come along with a nonattainment designation. This burden is even more pronounced in that many of these requirements provide little in the way of air quality benefits. Virginia Department of Air Quality, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 22, 2010). Texas: The EPA is considering lowering the existing national eight-hour ozone standard from its current level of 75 parts per billion (ppb) to a much lower range, between 70 and 60 ppb. However, after an indepth review of the EPA s analysis, as well as a thorough study of the relevant scientific literature, the TCEQ has concluded that there will be little to no public health benefit from lowering the current standard. Honeycutt, Dr. Michael, Texas Commission on Environmental Quality (TCEQ), Will EPA s Proposed New Ozone Standards Provide Measurable Health Benefits?, National Outlook (October 2014). There is no doubt that, at some higher level, ground-level ozone is harmful to human health. The question is, has the EPA adequately demonstrated that lowering the ozone standard to ppb would actually have health benefits? We think that the EPA s process of setting ozone standards has not scientifically proven this, and that further lowering of the ozone standard will fail to provide any measurable increase in human health protection. Honeycutt, TCEQ (October 2014). The EPA s proposed lower ozone standard derives much of its claimed benefits from associating ozone with worsening asthma. The problem with this association is that asthma diagnoses are increasing in the U.S., yet nationwide, air quality is improving. If asthma were actually tied to ozone, you would expect to see the instances of asthma decreasing, not increasing. In fact, data from Texas hospitals show that

4 asthma admissions are actually highest in the winter, when ozone levels are the lowest. Honeycutt, TCEQ (October 2014). 2. EPA should allow states to fully implement the 2008 ozone standard before tightening it further. Indiana: Implementation of the 2008 ozone NAAQS has already begun and the national, state and local control measures necessary to achieve compliance with the current standards are yet to be fully implemented. EPA should provide state and local governments the opportunity to attain the current ozone NAAQS before imposing further restrictive standards. This will provide state and local governments the opportunity to analyze the air quality impacts and associated health benefits through recently implemented and pending regulations, control measures and other pollutant planning activities that are currently underway. This will also allow state and local governments to determine whether the benefits achieved met the desired targets and will aid in meeting future NAAQS through improved targets specifically designed to attain these standards. Indiana Department of Environmental Management, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 22, 2010). Ohio: The five-year review requirement of Section 109(d)(1) of the Clean Air Act is an extremely demanding and, some might say, disruptive requirement. With each iteration of a NAAQS, a state must impose new or stricter emissions standards or control requirements upon existing or new areas of business and industry and, indeed, everyday life. Attempting to implement a new standard while the previous standard is still being implemented has consistently caused strain, redundancy and inefficiency in the process and has led to seemingly endless rounds of litigation that takes the focus away from the important task at hand--real air quality improvements. State of Ohio Environmental Protection Agency, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 22, 2010). West Virginia: The DAQ strongly recommends that EPA proceed with implementation of the 2008 ozone NAAQS rather than disrupting the process already under way. West Virginia Department of Environmental Protection, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 19, 2010) 3. EPA s proposed range is approaching background concentrations. Utah: The Environmental Protection Agency (EPA) plans to tighten the ozone health standard from the current level of 75 ppb over an 8-hour period to a more protective level between ppb. In Utah, our background ozone levels alone can range from 60 to 70 ppb, so we are concerned about how we can protect the health of our residents and meet these stricter standards. LeBaron, Brock, Utah Department of Environmental Quality, Ozone in Utah: Not Always the Usual Suspects (April 24, 2014). North Carolina: Background ozone levels in the Southeast approach 50 to 65 percent of the proposed range of the primary standard. The average winter time ozone concentration is currently about ppm at rural sentinel monitoring locations operated by EPA in western North Carolina. Average winter time ozone concentrations, during the least photochemically active portion of the year, is an indicator of

5 background levels. This average concentration is slightly higher than the range of policy relevant background (PRB) levels referenced in the January 2007 EPA Final Ozone Staff Paper, but is identical to EPA s previously adopted value for PRB. The EPA s Clean Air Scientific Advisory Committee (CASAC) has also noted that as levels for ozone standards move closer to background levels, new issues may arise with implementation. The NCDAQ recommends that CASAC and EPA carefully study and fully understand the role of varying background levels when setting the ozone NAAQS now and in the future. North Carolina Department of Environment and Natural Resources, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 22, 2010). South Dakota: DENR strongly recommends EPA leave the primary and secondary standards at the current level of parts per million. As the National Ambient Air Quality Standards are lowered closer and closer to background levels, the Administrator s judgment on what is the adequate margin of safety as allowed under the Clean Air Act becomes more difficult. Based on the monitoring done in South Dakota, the current National Ambient Air Quality Standard for ozone of parts per million is already approaching levels at locations in South Dakota which we consider background sites. Consequently, it makes no sense to establish an environmental standard that is less than background levels, because the following three things result: 1. states will never meet the standard and be in constant noncompliance or nonattainment; 2. states will be forced to expend resources trying to attain a standard that is not attainable; and 3. with today s struggling economy, state resources are already stressed and any resources expended chasing a nonattainable standard will take away from other work that will be more beneficial to society, such as education, health care, and social programs for the poor. South Dakota Department of Environment and Natural Resources, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 18, 2010). Ohio: The Clean Air Act does not require the Administrator to establish a primary NAAQS at a zero risk level or at background concentration levels. Rather, the Act only requires a level that reduces risk sufficiently so as to protect public health with an adequate margin of safety. State of Ohio Environmental Protection Agency, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 22, 2010). West Virginia: The DAQ is concerned that the lower level of the proposed range is approaching policy relevant background (PRB) levels. At the ppm level, greater than 76% of the counties in the U.S. with existing ozone monitors would violate the standard, including five of the eight monitored counties (62.5%) in West Virginia. At the ppm level, greater than 96% of the ozone monitored counties in the U.S. would violate the standard, including all eight of the monitored counties (100%) in West Virginia. We believe that these data indicate that the ppm level is, indeed, approaching background concentrations because greater than 96% of all counties in the nation that are monitored for ozone exceed this low end of the proposed range. West Virginia Department of Environmental Protection, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 19, 2010).

6 Texas: Some places in the U.S. have background levels of ozone that account for up to 80 percent of total ozone. Background ozone occurs naturally, or is transported from other countries. The EPA does not take this into account when making the rule. Honeycutt, TCEQ (October 2014). Wyoming: Wyoming is concerned about the effect that background has on monitored ozone levels. Ozone background in the West is not well understood. This is especially true for winter and spring months when background is further elevated by stratospheric influences and pollution buildup in the northern hemisphere, particularly from the Arctic and Asia (EPA Staff Paper, 2007). Background also increases as sites increase in elevation. All of Wyoming s ozone monitors are greater than 2,000 meters above sea level. EPA s CASTNet network in Wyoming has recorded average ozone levels between 40 and 50 ppb (January-March ) during winter/spring months. Wyoming considers these sites regional background in nature and free of any localized pollution sources. While background is not well understood, it is clear that background is a significant portion of monitored ozone concentrations in the West. Without a better understanding of background and what the anthropogenic contribution to background is, it will be difficult for rural western states to develop plans that focus on controlling anthropogenic sources. Wyoming Department of Environmental Quality, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 18, 2010). Mississippi: EPA has not been able to confirm what the natural background levels for ozone are. This varies from region to region with the Southeast United States, having higher concentrations. As EPA lowers the standard, the contribution from background becomes significant. EPA s data suggests that if the standard is set in the lower end of the range 650 out of 675 counties will not attain the standard. This affects the rural counties more; it will be impossible for them to have new development because they will not have any offsets. Mississippi Department of Environmental Quality, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 22, 2010). 4. Tremendous progress has been made in improving air quality and the availability of additional emission reductions is rapidly diminishing. Virginia: In striving to improve air quality, it must be recognized at some point that the reduction of all risk and exposure is not achievable for many reasons. This is particularly important for air quality standards such as ozone that are significantly impacted by factors beyond our reasonable control. Much progress has been made in controlling emissions that impact ozone formation in recent years and air quality has greatly benefited from these efforts. However, the availability and impact of additional controls are quickly diminishing. Ultimately, a balance must be struck between clean air goals and our collective ability to achieve them. Virginia Department of Air Quality, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 22, 2010). South Carolina: In setting a standard, EPA should bear in mind what control measures and strategies will be necessary to meet the reconsidered Ozone NAAQS. If there are no adequate and reasonable control measures or strategies to meet the reconsidered Ozone NAAQS, the setting of the standard will be divorced from the public health that it is designed to protect, and the standard will be ineffective.

7 South Carolina Department of Health and Environmental Control, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 18, 2010). North Carolina: The NCDAQ has significant concerns about an individual state s ability to reach the new standards with a significant portion of the proposed range attributable to background levels. For the state of North Carolina, our Clean Smokestacks Act has already brought about significant reductions in nitrogen dioxides, a key precursor to ozone deployment, by our two largest utility companies. While some additional stationary source reductions at other facilities are possible, they are smaller facilities and reductions from them will not have the same significant impact on our ambient air quality concentrations. North Carolina Department of Environment and Natural Resources, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 22, 2010). West Virginia: The DAQ is concerned that the proposed ozone standard will require costly mitigation efforts at a time of national and local economic distress. Moreover, the proposed range may be practically unattainable at the local level because ozone is a regional issue. A primary ozone standard within the proposed range would impact virtually every metropolitan area in the country. Given current economic conditions, it will be extremely difficult to implement strategies for reducing ozone concentrations without additional negative economic impacts. Commercial development would be severely curtailed by stringent nonattainment permitting requirements and mandatory emission offsets will likely be extremely scarce. West Virginia Department of Environmental Protection, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 19, 2010). 5. EPA Must provide the necessary assistance and guidance in a timely fashion to aid implementation of any new NAAQS. Virginia: EPA must be prepared to assist in the standard implementation process by providing the necessary guidance, procedures, and tools well in advance of planning deadlines. Doing so will provide states and localities more time to develop the best and most appropriate local control strategies for improving air quality. Many of the analyses needed to develop standard attainment plans require significant time and resources to complete, and often control plans are developed by large regional and sometime interstate planning organizations that require significant lead time to complete the air quality planning process. Due to these and other ever increasing complexities within the planning process, every effort must be made to provide for timely federal guidance, tools, and input into the planning process. Virginia Department of Air Quality, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 22, 2010). Indiana: EPA must establish an implementation rule outlining the process for transitioning to the revised ozone NAAQS as soon as possible. This guidance is necessary for states to evaluate the implications a revised NAAQS will have on attainment boundaries. If the ozone NAAQS are further strengthened uncertainty about the implementation requirements will have a significant impact on the state s ability to develop state designation recommendations. EPA should not designate areas under revised ozone NAAQS until states have had ample opportunity to evaluate the implications of the implementation rule

8 for affected areas and supplement or revise these recommendations if deemed necessary. Indiana Department of Environmental Management, Comments on EPA s 2010 Ozone NAAQS Reconsideration Rule (March 22, 2010).