Texas makes its case against a tighter ozone standard

By Amanda Peterka | 04/14/2015 01:07 PM EDT

Texas air regulators last week laid out their scientific and economic case against a tighter ozone standard that the Obama administration says is necessary to protect public health.

Texas air regulators last week laid out their scientific and economic case against a tighter ozone standard that the Obama administration says is necessary to protect public health.

The Texas Commission on Environmental Quality held a three-day workshop where experts invited by the agency charged that U.S. EPA is molding uncertain scientific data to support a predetermined policy conclusion to lower the national standard.

The workshop also concluded that EPA had neglected to study the negative health effects stemming from the alleged big economic impacts of a tighter standard.


Texas regulators will likely highlight the workshop’s conclusions in the coming months as EPA and the White House wrap up work on the proposal. The workshop will also likely provide fodder for potential legal action against EPA’s final decision, which is expected by Oct. 1.

"I think Texas and the United States is going to benefit greatly from the work here," TCEQ Chairman Bryan Shaw said.

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

In November, EPA proposed to tighten the national standard from 75 parts per billion to between 65 and 70 ppb based on a review of the data on the public health effects of ozone exposure.

"Proposing, and then finalizing, an air quality standard involves evaluating the latest available science, and we have more than 1,000 new studies since the last review that we’ve taken into account," EPA said. "Based on the administrator’s evaluation of the latest research, [EPA chief Gina McCarthy] believes that a standard in the proposed range will provide substantial public health benefits for millions of Americans by reducing both ozone and particle pollution."

For months, though, TCEQ has raised concerns that the agency’s proposal would not lead to any "measurable" health benefits and has called on EPA to leave the standard at 75 ppb. The Texas agency also recently commissioned a study by NERA Economic Consulting that found the state’s GDP would take a hit of $30 billion a year under a 65 ppb standard between 2017 and 2040.

"There are real costs associated with this," TCEQ Commissioner Toby Baker said. "The irony of ironies is that it’ll make it harder to build roads in a town that is gridlocked for several hours every single day, which actually increases the amount of ozone in the air."

Texas’ views are in opposition to the National Association of Clean Air Agencies, which represents most state and local air regulators in the country. In public comments to EPA, NACAA said it welcomed the agency’s proposal.

"The serious threats to public health from exposure to ozone are well documented," the D.C.-based organization wrote.

Texas pulled out of the group in the mid-2000s because it felt that its views were not being well-represented (Greenwire, Jan. 14).

TCEQ announced the three-day ozone workshop last month, and its speakers included several industry-affiliated attorneys and researchers. The workshop also featured a panel of scientists to act as a sort of antithesis to EPA’s committee of scientific advisers.

TCEQ billed the event — which was sponsored with the assistance of the firms Toxicology Excellence for Risk Assessment, Gradient and NERA — as an independent look at EPA’s proposal.

The Environmental Defense Fund, which supports a tighter ozone standard, expressed disappointment in the Texas agency’s meeting. Elena Craft, a senior health scientist with the group, said TCEQ did not extend any invitations to environmental or public health advocates to sit on any of the panels.

Craft, who attended the workshop in person, said its focus on uncertainty missed a key point: The body of evidence linking ozone pollution to adverse public health effects is increasing. And by law, EPA is supposed to only look at the weight of public health data when setting a new standard.

"I felt like all the issues around uncertainty essentially were a distraction from the fact that all of the recent evidence has only served to strengthen the idea that ozone is a tremendous health threat and that we need to be protecting the public from it," she said in an interview with Greenwire after the meeting.

‘Oversampling these children’

Among the arguments raised by experts at the workshop: Epidemiological studies linking ozone to negative health effects contain many limitations that make it difficult to separate out the effects of ozone from other factors.

For much of the workshop, the science panel focused on a 2009 study that looked at the correlation between ozone and premature death in several cities. On average, the study linked higher ozone levels with more premature deaths, but panelists pointed to some instances where higher ozone was correlated with fewer deaths.

"I think it’s a huge issue," said Julie Goodman, a toxicologist with Gradient who has been commissioned to do ozone research for industry groups and TCEQ. "Because obviously ozone is not protective in some cities and causing mortality in others. I think it’s a sign that there’s some other factor associated with ozone."

Workshop panelists also said studies done in the lab showed trivial effects to lung function, relied on varying exposure times and could not be extrapolated to the real world.

"EPA is trotting out benefits that we have a lot of problems with in terms of credibility," said Henry Nickel, an industry counsel at Hunton & Williams LLP.

Sonja Sax, a toxicologist at Gradient, also argued that models of children’s reactions to ozone exposure were outdated because they were based on the amount of time kids spent outdoors in the 1980s and 1990s.

Children are spending more time indoors nowadays, she said.

"In my mind, it is kind of over-sampling these children that … are spending a lot of time outdoors, engaged in very heavy exercise," she said. "And it’s unclear whether it’s really a realistic scenario."

The net effect, she said, is that lowering the ozone standard would have only a marginal impact on health. She and others added that EPA had also not considered "health dis-benefits" that would occur if people lost their jobs due to a lowering of the standard.

EPA has estimated that the benefits of the ozone proposal would yield significant savings in health care costs and outweigh overall costs by as much as 3 to 1. A new standard set at 70 ppb would cost the nation $3.9 billion a year by 2025, though that figure excludes California, according to EPA. A 65 ppb standard, on the other hand, would cost $15 billion a year.

Craft of the Environmental Defense Fund, who described herself as being the only "card-carrying enviornmentalist" at the three-day meeting, said that TCEQ’s panelists had nitpicked studies and that EPA had looked at the full weight of evidence.

TCEQ’s work, she said, "doesn’t nullify the existing body of work that’s out there."

In the case of the mortality studies, Craft added, "while they are probably not the strongest evidence in making the case for adverse health effects, there’s nothing that’s been presented that would provide an alternative hypothesis for why we are seeing those changes in mortality in multi-city studies."

The American Lung Association and other public health groups have called on EPA to set a standard at no higher than 60 ppb.

What comes next?

Last week’s workshop was partly a strategy session for the Texas Commission on Environmental Quality and industry critics for how to go about opposing the ozone standard as EPA finalizes its proposal and beyond. Several legal panelists offered advice on the best ways to attack the proposal in and out of the courts, most of them revolving around focusing on uncertainties in the science backing the proposal.

"If you’re [the American Petroleum Institute], you’ll probably want to focus on uncertainties in contrast to massive health dis-benefits," said Thomas Lorenzen, a partner and Dorsey & Whitney LLP. "If you’re EDF, you’ll want to take the opposite tact. … You’ll want to focus on supporting EPA’s view that those costs are much lower and that the health science is actually fairly solid."

It’s unclear how useful the workshop will actually prove to be. EPA closed its comment period in mid-March; while many of the issues raised last week were also raised in written public comments, EPA is not required to respond directly to the workshop’s proceedings.

And challenging the action through litigation comes with big hurdles, the most significant of which is that courts tend to place great weight in EPA’s scientific and technical expertise, according to Lorenzen, who previously defended EPA regulations in the Department of Justice’s Environment and Natural Resources Division.

For example, a federal court upheld EPA’s 2008 standard, even though EPA did not follow the advice of its own scientific advisers.

"In the face of wide array of contradictory evidence, the administrator can still act by picking and choosing which science he or she credits and explaining why he or she does not credit the other science," Lorenzen said.

Michael Honeycutt, director of TCEQ’s toxicology division, applauded the workshop and said it reinforced his doubts about EPA’s proposal. Honeycutt last year came under fire by environmentalists for public statements arguing that EPA shouldn’t lower the standard because people spend most of their time indoors.

One of the goals of the workshop "was to see if I’m crazy, because if you just Google my name, there are people who think I’m crazy," Honeycutt said. "But I haven’t heard anything the past two or three days that suggested I’m crazy."

Craft, though, said the workshop was an example of misplaced priorities at TCEQ.

"The agency has spent millions of dollars funding Gradient’s work, their own research on ozone," she said. "This is an agency that doesn’t have enough inspectors to go out and inspect huge facilities."