The Honorable Gina McCarthy
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460
Dear Administrator McCarthy:
Thank you for meeting with us to discuss your pending decision regarding whether it is appropriate to lower the existing ozone National Ambient Air Quality Standard (NAAQS) from its current level of 75 ppb to a level somewhere within the range of 65-70 ppb. We appreciate fully the statutory and judicial constraints placed on your decision but believe that you have the policy discretion to maintain the standard at the current level based on the facts that are in the record of this proceeding. We urge you to do so.
One of the most important issues relating to ozone levels that has emerged over the past several years has been a greater appreciation for the role of background levels of ozone. This issue has taken on increasing significance, because the standards being proposed by EPA approach background levels in many areas of the country, especially the western United States. Studies by NOAA researchers, the Western States Air Resources Council, Clark County, Nevada, and others have shown that background levels of ozone are very high in the west. In a recent article in Science, scientists associated with NOAA pointed out that EPA’s own research showed that the magnitude of background ozone in Utah, Arizona, Colorado, New Mexico, Nevada and Wyoming can approach that of EPA’s proposed range of 65-70 ppb. The authors also point out that to ensure the standard does not create unnecessary control obligations, EPA and the states must be able to quantify background ozone accurately, which is not the case today. To do this first requires improvement in measurement of baseline ozone, which can then be used to improve the accuracy of global models, which in turn can be used to improve the regional models used by EPA to model attainment efforts by states.
Many states filing comments on the proposed ozone standard echoed our concern about the need to recognize and account for background levels in any new ozone regulation. The Western States Air Resources Council (WESTAR), representing 15 western state air quality managers, argued that “EPA downplays the ongoing significance of background ozone in the west and overstates the capability of the tools available to adequately address the regulatory requirements imposed on states.”
WESTAR further maintained that “[m]aking the right choices about how to improve air quality in ozone nonattainment areas will depend on how well we understand the science, and our understanding of the science needs to improve. Given the absence of industrial development in numerous areas of the intermountain west, nonattainment area controls simply will not work to achieve attainment. Neither will interstate contribution reductions be sufficient in many areas to reduce ozone to levels below the proposed standard.”
The Association of Air Pollution Control Agencies (AAPCA) noted in a recent survey of comments on the proposed ozone standards filed by state environmental agencies that “[a] majority of state agency comments raised concerns about the role of background ozone, including both naturally-occurring and internationally-transported contributions to ground-level ozone, as an achievability or implementation challenge (26 states).”
Most of the commenting states that raised concern over the role of background ozone also maintained that EPA’s existing policies are ill-equipped to address this issue. The AAPCA survey found that “a majority of state comments identified limitations to the Clean Air Act tools highlighted by U.S. EPA for regulatory relief to address background ozone (24 states).” EPA has acknowledged the limitation of existing policies and suggested that modifications may be made after the new standard is adopted. However, it is not clear if policies can or will be modified in time to address the background ozone issue adequately prior to the time nonattainment designations will be made. If fundamental changes are not made to address the contribution of background ozone and the ozone NAAQS is lowered, large numbers of areas may be cast into nonattainment status without effective tools to come into compliance with a lower standard.
We also are concerned about EPA’s acknowledgment that “unknown” controls increasingly will be required to bring nonattainment areas into compliance. The EPA’s Regulatory Impact Analysis (RIA) suggests that more than one-fifth of the NOx reductions needed to meet a 70 ppb standard will need to come from unknown emissions controls. The share rises to more than one-third under a 65 ppb standard.
Our companies are concerned that if currently non-existent technologies fail to materialize, scale, and reach commercialization on the timetable that the agency has assumed, compliance with a lower ozone standard could be virtually impossible for many communities.
The consequences of nonattainment designation are not to be taken lightly. Nonattainment brings with it retrofit requirements for existing sources, lowest achievable emissions rate technology (regardless of cost) for new or modified existing sources, the need to offset increased emissions by more than one-to-one, additional permitting burdens, and transportation consistency requirements. Numerous studies have catalogued the consequences of a nonattainment designation, including lower productivity, loss of economic output, and lower wages in the affected industries. In short, nonattainment designation acts as a brake on economic development. As business leaders, we are greatly concerned about erecting new barriers to economic growth.
We are aware that section 109 of the Clean Air Act requires the Administrator of EPA to establish the NAAQS at a level “requisite to protect” the public health with an “adequate margin of safety.” We also appreciate that the courts have determined that cost and technical feasibility are not relevant factors in setting the NAAQS. However, EPA long has recognized the role of background ozone and has specifically declined to establish an ozone standard at a lower recommended level by citing proximity to background levels. Among the factors Administrator Browner cited in rejecting a 70 ppb standard in 1997 was the proximity of background levels to such a standard. The Policy Assessment associated with this rulemaking acknowledges that “in identifying the range of policy options supported by the evidence and information, staff has not considered proximity to background O3 concentrations. The Administrator, when evaluating the range of possible standards that are supported by the scientific evidence, could consider proximity to background O3 concentrations as one factor in selecting the appropriate standard.” Indeed, in issuing the 1997 ozone standard, Administrator Browner did just this.
EPA’s modeling that most areas will meet lower standard by 2025 does not adequately take into consideration background ozone. Even if existing policies on the books would allow these areas to come into attainment at some point in the future, in the meantime they become nonattainment.
The states are already struggling to implement requirements associated with the 2008 standard. Earlier this month, EPA found that some 24 states had failed to submit infrastructure State Implementation Plans to meet the interstate transport provisions of the 2008 ozone NAAQS. Setting a standard that is so low that it brings more areas into nonattainment, particularly if they lack the tools that allow them to reach attainment and relies on what the agency concedes are “unknown controls,” makes little sense.
Setting the ozone NAAQS should not be an unrealistic administrative goal. Instead, it should be an achievable goal that recognizes the real world consequences for those living, working and investing in areas that may be designated as nonattainment. Unfortunately, the rigidity of the Clean Air Act eliminates much needed flexibility to reduce the compliance burden on areas once they fall into nonattainment status. As we have noted above, the issue of background pollution and “unknown” controls leads us to believe many areas designated as nonattainment may lack any good way of coming into compliance. Accordingly, we request that you be mindful that while the Clean Air Act requires review of the NAAQS every 5 years, it does not require a change in the standard.
For these reasons, we urge you to:
1. maintain the current standard and undertake further research into the role of background ozone given new science that has emerged in the last few years and the need for improved measurements of baseline ozone and ozone modeling;
2. announce revisions to the exceptional events, international transport and rural transport policies to streamline the process for states faced with high background levels of ozone; and
3. provide further flexibility for the states in implementing the ozone standards.
Our recommended approach would give the agency time and data necessary to address the background ozone issue before the next scheduled review of the ozone NAAQS.
Nicholas K. Akins
Chairman, President and Chief Executive Officer
American Electric Power
Chair, Energy and Environment Committee