Ahead of EPA Phoenix Workshop, CRS Releases Report Finding that EPA is Regulating Ahead of Science, Unprepared to Assess Impact of Background Ozone02/23/2016
New ozone standards should not be implemented until issues with background ozone are properly understood
Washington D.C. – Ahead of an Environmental Protection Agency (EPA) workshop on background ozone in Phoenix, Arizona this week, the Center for Regulatory Solutions (CRS), a project of the Small Business and Entrepreneurship Council, today released a new report that highlights significant concerns with the EPA White Paper on background ozone. CRS commissioned a technical review of EPA’s White Paper, which concludes that EPA is regulating ahead of science, and that new federal air quality standards should not be implemented until issues with background ozone are properly understood and quantifiable.
The defects uncovered in EPA’s White Paper suggest that the agency is not adequately informed about the actual role of background ozone, and as such several states will find themselves unable to meet new 2015 ozone NAAQS standards. CRS’ review found that the agency used too narrow a scope to assess the impact of background ozone in Western states, and failed to take into consideration studies that concluded that background ozone can account for up to 93 percent of the 70 ppb NAAQS in certain states. Many state leaders from both parties and state air regulators have raised these very issues, whether it be the Western Governors Association, WESTAR, or Colorado Governor Hickenlooper.
“EPA’s White Paper on background ozone is further proof that the administration is simply out of step with the science of air pollution, which also means they are out of touch with state regulators and leaders across the West on implementation,” said Karen Kerrigan, president & CEO of the Small Business & Entrepreneurship Council. “The EPA should listen to these leaders and hold off on implementing the new ozone standard until the Administration fully understands how background ozone is transported and how it can accurately be accounted for. Failure to do so is unfair to Western states and will cause significant economic harm to local economies and businesses.”
In addition, EPA’s White Paper includes an admission that the Denver metro area will be unable to meet EPA’s new strict ozone standards by 2025 because of background ozone. The EPA finds that Denver is the only region outside of California that will be unable to meet the standard by 2025. State Senator Cheri Jahn recently told the Denver Business Journal, “This is just setting us up to fail. I think we’re being set up. There’s too much going on around the state, and when you have all that background ozone coming into the state, I don’t know how we’re going to deal with it. When it’s already known that Colorado can’t make it, then is the goal to help states become more ozone friendly? Or is to punish them?” This follows specific concerns raised by top Democratic lawmakers in Colorado last summer, including Governor John Hickenlooper and Senator Michael Bennet, warning that EPA’s new stringent standard does not account for background ozone in the Denver area.
EPA will be holding a workshop in Phoenix, Arizona on February 24 and 25, 2016 to discuss background ozone with state air regulators and stakeholders. This setting is particularly noteworthy as Arizona, like Colorado, suffers from high background ozone levels that will force the majority of counties in the state into non-attainment. CRS will be participating in this workshop and discussing the findings of its report.
Key Report Findings:
- The universe of scientific literature that EPA considered is incomplete and does not include relevant studies that suggest that background ozone is a much bigger problem for Western states. In the White Paper, EPA asserts that there is no indication that background ozone will prevent any region from meeting the 2015 NAAQS. However, several studies show a much higher impact of background ozone than what EPA models. As such, EPA should recognize a broader range of estimates of background ozone levels, rather than relying solely on its limited model outputs.
- The science behind background ozone is still not well understood. EPA relies heavily on its modeling to inform background ozone levels, but some studies show that there are major deficiencies with the model’s ability to accurately predict background ozone levels in certain situations. Furthermore, it is clear that the science behind specific aspects of background ozone (such as international transport) is not fully understood yet.
- EPA’s definition of background ozone is limited and inconsistent. While EPA acknowledges that some states are adversely affected by certain background ozone-enhancing “uncontrollable” events (i.e., wildfires, stratospheric intrusions, international emissions transport, etc.), it fails to include the impacts of interstate emissions transport within its definition of background ozone, even though several studies show that the impact can be significant. In essence, EPA’s definition is relevant to states susceptible to “uncontrollable” international emissions (for example, border states near Canada and Mexico), but not to those that are downwind of another state’s emissions.
- Background ozone levels vary dramatically by region, disadvantaging Western states. Using EPA’s own data of counties with 2012-2014 nonattainment challenges, we estimate that the margin of attainment (i.e., difference between the 70 ppb NAAQS and background ozone levels) is 25 ppb lower for regions in the inter-mountain west versus those in the east. Therefore, the blanket 70 ppb standard creates inequity issues as regions with higher background ozone have much lower margins within their control.
- Geography plays a significant role in state’s ability to achieve attainment. EPA’s modeling shows that 175 of the 178 counties not meeting the 70 ppb standard in the eastern U.S. had controllable manmade contributions to ground-level ozone levels greater than 50 percent. Conversely, in some regions in the west, manmade contributions can be as low as 10 percent of the total (i.e., 90 percent of ground-level ozone is made up of background). And while some states might be effectively managing their manmade emissions, the natural geographical disadvantage that is present may push them toward nonattainment. Clearly, this creates inequities across various stakeholders.
- Many Western States have expressed their concern to EPA that the agency’s regulatory tools are insufficient to provide relief from background ozone. While there are certain provisions under the Clean Air Act that might help state regulators with background ozone challenges (such as the “exceptional events” rule), the general consensus is that these provisions are overly burdensome, unclear, and extremely resource-intensive. These tools and resources will matter more and more as the NAAQS approaches background ozone levels in some states. Yet, comments from several state regulators show the inflexibilities and challenges associated with even using these provisions for regulatory relief.
- The case study of the Wyoming Department of Environmental Quality/Air Quality Division’s regulatory relief demonstration shows just how resource-intensive the process is. EPA contends that its available tools and resources will help state regulators overcome challenges associated with background ozone, but using the Wyoming DEQ as a baseline (i.e., one of the only states that have actually received approval), it is evident that the process is extremely costly. The Wyoming DEQ estimates that future exceptional event demonstrations (such as those from wildfires) could take over 15 months to study, in addition to contractor assistance of more than $150,000. With new NAAQS levels lowering the gap between background ozone and the standard, the need for more and more demonstrations will become much more prevalent.
The Center for Regulatory Solutions is a project of the Small Business and Entrepreneurship Council, a 501c(4) advocacy, research, education and networking organization dedicated to protecting small business and promoting entrepreneurship. For twenty-three years, SBE Council has worked to educate elected officials, policymakers, business leaders and the public about policies that enable business start-up and growth.