Greens decry ozone limit as easier lift than Bush-era reg

By Amanda Reilly | 10/19/2015 12:59 PM EDT

Key green allies are delivering a scathing critique about the new ozone standard finalized by the Obama administration earlier this month: President Obama is letting industry off easy compared to the Bush administration.

Key green allies are delivering a scathing critique about the new ozone standard finalized by the Obama administration earlier this month: President Obama is letting industry off easy compared to the Bush administration.

Green groups contend that fewer counties are likely to be named out of compliance under U.S. EPA’s final standard than were designated in noncompliance under the 2008 limit set during the George W. Bush administration.

While they disagreed with the Bush administration’s standard, environmentalists also say that the Republican president set a bigger safety cushion based on analysis of harmful levels of ozone.


"This was the weakest option on the table," Terry McGuire, a Washington representative for the Sierra Club, said of the Obama administration’s standard. "It’s a step in the right direction, but this is not a huge lift for industry."

Industry, however, maintains that the low-hanging fruit of pollution control has already been picked, leaving on the table more costly options for reducing emissions. Background levels of ozone greatly complicate compliance at the new standard, compared with the 2008 standard, according to industry experts.

EPA on Oct. 1 unveiled a final new ambient air quality standard for ground-level ozone of 70 parts per billion, down from the 2008 limit of 75 ppb. The agency based the new limit on a scientific review of negative public health effects linked to ozone (Greenwire, Oct. 1).

Ground-level ozone is a key component of smog that’s formed when nitrogen oxides and volatile organic compounds react in the presence of sunlight.

Determining compliance with the standard is complex: An area could exceed the standard four times a year for three years before it’s considered in violation.

Using that formula, EPA says it expects 213 counties outside of California that monitor air quality to fail to achieve the new limit when it issues designations in 2017. Under the Clean Air Act, states with nonattainment areas will be required to submit pollution control plans to EPA.

But the agency says all but 14 of those counties will meet the standard by 2025 thanks to the Clean Power Plan, mercury standards, emission limitations for cars and trucks, and other air pollution regulations.

According to EPA’s regulatory impact analysis, just five coal-fired power plants will have to make changes to reduce levels of NOx pollution.

When the Bush administration lowered the ozone standard from 84 ppb to 75 ppb in 2008, it later labeled 232 counties in whole or in part in "nonattainment." Many of those other regulations were not in place at the time the standard was promulgated.

The Natural Resources Defense Council, a key green ally of the Obama administration, last week pointed to those figures and argued that industry was being let off the hook under the new limit.

"There are far fewer new nonattainment areas required by this standard than by the Bush administration’s standard in 2008," said John Walke, clean air director at NRDC, during a panel last week held by the Environmental Law Institute.

Concerns about compliance, however, helped fuel an aggressive campaign by industry and business groups against the tighter standard.

Cindy Langworthy, a counsel at Hunton & Williams LLP who represents industry clients, pushed back against the contention that the new standard will be an easy lift and said its reach extends beyond the coal industry.

EPA, she argued, is oversimplifying the compliance process when it says most areas will come into compliance by 2025 thanks to other air regulations.

"EPA’s assessment," Langworthy said, "that many areas will come into attainment using business-as-usual approaches — which, by the way, can be pretty costly, including for the electric utility industry — that assessment is just really not relevant to what areas are going to have to do."

Langworthy also noted that, under the Clean Air Act, most areas around the country will be required to show compliance before 2025.

She also raised concerns that background levels of ozone stemming from the upper atmosphere, overseas pollution and wildfires will complicate efforts to comply. EPA has several mechanisms for addressing air pollution that is out of states’ control, but "historically none of these tools has worked very well," she said.

Lorie Schmidt, associate general counsel at EPA, last week said that the concerns about background ozone were overblown and that the agency intended to release a white paper in the coming months on the subject.

Scientific review also under question

Obama’s green allies have also blasted the scientific review that underlies the administration’s new ozone standard (Greenwire, Oct. 2).

EPA said it determined that negative effects occurred in healthy, exercising adults at ozone concentrations of 72 ppb. The agency set a new standard at 70 ppb to provide the margin of safety required by the Clean Air Act.

In comparison, the Bush administration’s EPA found that studies showed actual harm from ozone pollution at 80 ppb. The agency set a new standard at 75 ppb to cushion the public from the negative effects.

Walke of NRDC said the Obama administration did "worse" by adopting a 2 ppb margin of safety.

"They merely lowered the standard to 70 rather than to 67 as they would have done had they followed even the example of the Bush administration," he said.

To be sure, green groups were not pleased with the Bush administration’s standard when it was set, arguing that the limit was too weak. Environmentalists and public health groups have long argued that the scientific evidence shows ozone levels above 60 ppb are harmful.

Green groups have already said they would likely sue the Obama administration over a 70 ppb standard (Greenwire, Sept. 29).

Schmidt at EPA acknowledged that setting a new ozone standard was "very controversial" and defended the administration’s decision.

EPA has said the link to negative health effects at levels below 70 ppb is too uncertain to be the basis of a national ambient air quality standard.

"Because of that uncertainty, we did not believe it was appropriate to require complete elimination of exposures to ozone at levels as low as 60," Schmidt said.