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EPA Retreats 4th Time on Ozone Rule

Thursday, July 28, 2011

More items for Environmental Controls

Coatings makers and other manufacturers have won another 11th-hour reprieve on an unpopular federal rule that would further tighten ozone emission standards.

This is the fourth delay for the new National Ambient Air Quality Standards for Ozone (NAAQS), which were proposed in January 2010. The final rule was to have been released by August 2010, then by Nov. 1, then by Dec. 31, and then by July 29, 2011.

Several dozen senators wrote to EPA Administrator Lisa Jackson, requesting that the current review process be allowed to play out.

The rule went to the Office of Management and Budget—typically, among the last stops for a new regulation—on July 11, and seemed at that point to be a done deal. On Wednesday (July 27), however, the Environmental Protection Agency abruptly announced that it was delaying action on the rule yet again.

Delay or Retreat?

“Following completion of this final step, EPA will finalize its reconsideration, but will not issue the final rule on July 29th, the date the agency had intended,” EPA said in a release.

No new date was set for the standards, which have drawn fierce and sustained opposition from the American Coatings Association, other manufacturing groups, and lawmakers from both parties.

Both friends and foes of the new rule had considered EPA’s last announced delay a sign that the agency was in full retreat from the new standard.

In December, EPA said it was “working diligently” on the plan but had decided that it needed “the deliberative evaluation of the extensive body of scientific and technical information in the record and the many comments received on the Agency’s Jan. 19, 2010, rulemaking proposal.”

EPA Administrator Lisa Jackson “recently determined that additional advice from the Clean Air Scientific Advisory Committee (CASAC) may prove useful and important in evaluating the scientific and other information before her,” the agency said.

Clean Air Watch president Frank O’Donnell accused the administration of “running scared” on the ozone plan, and the American Lung Association said it was “gravely disappointed” by the delay.

Senators Add Pressure

EPA’s announcement Wednesday came two days after Jackson received a letter signed by 32 U.S. senators—Democrats and Republicans—asking the agency to withdraw the rule and let the pre-established five-year review process take its course.

The senators’ letter, dated July 24, expressed “significant concerns” regarding the plan to reconsider the 2008 NAAQS standards for ground-level ozone.

Clean Air Watch president Frank ODonnell has accused the Obama administration of “running scared” on the new standards.

“EPA’s reconsideration is occurring outside the statutorily directed five-year review process for NAAQS and without any new scientific basis necessitating a change in the 2008 standard,” the letter said.  “Moreover, this decision will burden state and local air agencies that, in the current budgetary climate, can hardly cope with existing obligations.”

Citing EPA’s estimate that the rule would impose billions of dollars in new costs on the manufacturing, energy, industrial, and transportation sectors, the senators  “respectfully request that EPA continue its ongoing statutory review of new science, due in 2013, and not finalize the reconsideration at this time,” the letter said.

Widespread Non-Compliance Seen

The letter notes that the EPA has tightened the ozone standard from 125 parts per billion (ppb) in the 1970s to 75 ppb in 2008. “Important decisions by state and local governments, businesses, and citizens have been made since that date in reliance on the 2008 standard,” the letter says.

The new rule may force “most large populated areas of the United States into non-attainment status for ground level ozone,” creating, among other things, “significant implementation challenges for the states and local air agencies that oversee” these areas, the letter says.

Proposed Reduction

Jackson announced last year that EPA would propose the strictest health standards to date for smog, also known as ground-level ozone. Ground-level ozone forms when emissions from industrial facilities, power plants, landfills and motor vehicles react in the sun.

EPA is proposing to set the “primary” standard, which protects public health, at a level between 0.060 and 0.070 parts per million (ppm) measured over eight hours. The current ozone standard was lowered to 0.075 ppm from 0.084 in March 2008—a level that EPA says is “not protective enough of human health.”

EPA has also proposed setting a separate, seasonal, “secondary” standard to protect the environment, especially plants and trees.

ACA:  ‘Negative Impact’

The American Coatings Association, which represents coatings manufacturers, has opposed the rule, calling it premature. ACA gloomily informed members on its site this month that the standard was “on track over industry opposition.”
       
ACA said the lower standard would be “extremely costly for manufacturers.”

Several weeks ago, ACA expressed its opposition to the standard in a letter to Jackson, saying the five-year review process now underway “would allow for adequate stakeholder involvement in the process and grant EPA the time to conduct a thorough review of the ozone standard.”

ACA has raised the same concerns with OMB.

Also this month, Sen. Tom Carper, a Delaware Democrat who chairs the Senate subcommittee on air pollution, questioned Jackson in a letter about the standard.

“The legal defensibility of the 2008 decision posed major challenges for the federal government, given the strength of the scientific record at that time,” responded Jackson. “I decided that reconsideration was the appropriate path based on concerns that the 2008 standards were not legally defensible.”