Many contractors are bracing themselves for more stringent national ambient air quality standards (NAAQS) for ground-level ozone, which could throw an estimated 96 percent of U.S. cities into nonattainment and potentially lead to a $1 trillion hit to our economy. Federal judges recently upheld the current 2008 ozone standard, initially challenged by public environmental and health groups for being too lenient. The U.S. Environmental Protection Agency (EPA) is still working to finalize a rule that would advise states on how to develop implementation plans for areas that exceed that legal limit. However, groups have filed a new lawsuit to force EPA to update the ozone NAAQS within a year and are lobbying hard for a much tighter standard.
Looking ahead, key members of Congress are insisting that EPA act in a more open and transparent fashion, which brought about a recent release of previously undisclosed air-related data. There has been widespread action and debate – in the federal courts, on Capitol Hill and at EPA – regarding the amount of ozone that can be present in the ambient air nationally and the scientific data used to justify the costs and benefits of a legally-enforceable limit. Following is an update on recent events and the current state of play.
The Clean Air Act requires EPA to review and consider revising its NAAQS, including ozone, every five years. EPA revised the ozone standards most recently in March 2008. EPA set a national standard for ozone at 75 parts per billion (ppb). EPA's Clean Air Scientific Advisory Committee (CASAC) had recommended a primary standard of between 60 and 70 ppb.
The Court of Appeals for the D.C. Circuit recently upheld EPA’s 2008 ozone NAAQS in a challenge from public health groups that argued the agency had ignored a scientific consensus pointing to a stricter limit. (Click here for the Mississippi v. EPA ruling.) The court ruled that the agency was not required to adopt the CASAC recommendations. Furthermore, the judges noted that it is the agency’s call when there remains some scientific uncertainty; however, the court remanded EPA’s decision to set the secondary NAAQS, for public welfare, at the same level. (The secondary standard is intended to protect public welfare, including vegetation, soil, water and related wildlife.) The court held the agency erred in simply setting the secondary standard identical to the primary standard of 75 ppb.
Current State of Play
The Mississippi v. EPA ruling will have minimal practical impact on EPA’s current ozone deliberations. EPA already has designated 46 areas as being in nonattainment of the 2008 ozone standard. (Click here for the official EPA Green Book on nonattainment areas for all air standards.) A few months back, EPA proposed a rule that would address a range of implementation requirements for the 2008 ozone NAAQS. The proposal specifically addresses state implementation planning (SIP) requirements for areas not attaining the 2008 ozone NAAQS (including SIP submission deadline); revocation of the 1997 NAAQS; and anti-backsliding requirements. EPA also recently extended the public comment period on this proposal to Sept. 4, 2013. EPA continues to encourage state and local governments to take early action to reduce ground-level ozone concentrations, allowing them to bank credits against future violations of the air quality standards. The Ozone Advance program was announced April 4 in guidance.
EPA has said that it intends to propose new ozone standards in December 2013 and finalize them in 2014. However, that schedule is not legally binding; at least not yet. A review of the 2008 standard was supposed to be finished by March 2013, but EPA missed the deadline. (And that is when attention turned back the Mississippi v. EPA case, which had been on hold in the D.C. Circuit since 2009.) Most noteworthy at this point is the fact that environmental and health advocacy groups recently sued EPA in federal district court for missing the five-year statutory deadline for reviewing the ozone air quality standards (Sierra Club v. EPA, N.D. Cal., No. 13-2809, 6/19/13). The groups are seeking a court order to set a legally enforceable deadline of Sept. 30, 2014, for EPA to review the standards.
Implications of Tighter Ozone Standards
Most expect the agency to tighten the standard to between 60 and 70 ppb. Former EPA Administrator Lisa Jackson and her assistant administrator for air, now Administrator Gina McCarthy, had already proposed to strengthen the ozone health standards to between 60 and 70 back in January 2010 – at an EPA-estimated cost of $90 billion annually. But 18 months later President Obama intervened in the process, and the proposal was put on hold due to economic concerns and efforts to reduce regulatory burdens and uncertainty at that time.
A strengthened ozone standard will lead to new requirements for emissions controls on sources that emit nitrogen oxides and volatile organic compounds, which contribute to ozone formation, including vehicles and equipment, industrial facilities and power plants. In addition, industries in nonattainment areas will face additional regulatory hurdles when they try to expand or build new facilities. This also poses a risk to highway funding if transportation planning does not meet the test of “conforming” to air quality planning documents. For more information on how tighter NAAQS and resultant nonattainment designations impact the business of construction, click here.
Leading experts predict that setting the 8-hour ozone average lower than the present 75 ppb would throw an estimated 96 percent of U.S. cities into nonattainment and potentially lead to a $1 trillion hit to the economy. Under present standards, urban areas have seen substantial reductions in ozone levels over the last few decades and many have reported that a tighter standard would have minimal effect on actual ozone levels, especially if they come from background conditions that cannot be controlled. While cities and regions across the country can lower their anthropogenic NOx and VOC emissions, which are precursors for ozone, the amount of sunlight and weather-related factors that can cause ground-level ozone are beyond their control. Cities located in southern latitudes are more likely to have high ozone events due to longer summer seasons.
At a recent hearing of the House Science Subcommittee on Environment, witnesses testified that an ozone standard of 60 and 70 ppb would be unattainable in the intermountain West where background ozone levels are at or above 70 ppb on a regular basis despite small populations and scant local industry. Failure to acknowledge these uncontrollable concentrations could result in EPA setting a new ozone standard next year that is at or near background levels, with catastrophic economic impacts for large swaths of the country.
AGC Environmental Forum Steering Committee member Dean Word III, Dean Word Company Ltd., located in New Braunfels, Texas, recently spoke before the U.S. Small Business Administration (SBA) Roundtable on the potential impacts of a tighter ozone standard on small-business construction companies. According to an SBA 2012 study, small businesses pay 36 percent more in compliance costs per employee. That study also shows that environmental regulations cost small businesses 364 percent more than larger companies.
EPA Releases 'Secret Data' Underlying Costly Air Regulations
This week, EPA delivered on request from Senate Environment and Public Works Committee ranking member David Vitter (R-La.) some of the scientific information behind several Clean Air Act rules that had been previously withheld from the public. The release comes amid greater congressional pressure on EPA to release several air pollution studies that reportedly contain the data underlying virtually all of the agency's claimed benefits from recent NAAQS rules on ozone and fine particulate matter. The House Science, Space and Technology Committee Chairman Lamar Smith (R-Texas) has subpoenaed the data from EPA to allow the public to "determine whether the EPA is basing its regulations on sound science"
The agency had said that the data in the studies belongs to researchers outside the federal government and that it would be difficult to release the data without also breaching individuals' private health records. But prompted by Vitter and other congressional Republicans, EPA is now saying that it is working on ways to release the information while addressing privacy concerns.
The EPA's recent Clean Air Act regulations, including the upcoming ozone standard, are expected to be some of the most costly that the federal government has ever issued. According to EPA, the agency is working with its independent scientific advisers to determine whether a revision of the ozone standard is appropriate, based on the latest research. The agency said it will follow its normal open and transparent review process, which allows for extensive public comment on key documents – including drafts of the risk and exposure assessments and policy assessments.
For more information, please contact AGC’s Senior Environmental Advisor Leah Pilconis at pilconisl@agc.org.