Environment & Energy Report

EPA Stays Put on Final Ozone Regulation, Keeping Obama Limits

Dec. 23, 2020, 7:53 PM

The Environmental Protection Agency is standing pat on its current ozone air pollution limits, concluding on Wednesday that years of scientific review don’t justify strengthening the regulation beyond the current 70 parts per billion threshold.

Retaining the current limit without revision is almost certain to be challenged in court. Environmental and public health groups also say they will press the Biden administration to tighten the standard.

“The last several years have seen spectacular improvements benefiting the health of millions of Americans,” EPA Administrator Andrew Wheeler said Wednesday. “We believe the best call at this point is to retain the existing standard.”

EPA’s final decision on the ozone standards is effective immediately, Wheeler said.

The Obama administration lowered the limit for ozone pollution to 70 parts per billion in 2015, a level deemed too stringent by many business groups. The groups fought his administration’s revision in court, but more recently have largely embraced that level after the EPA under President Donald Trump signaled further tightening was unnecessary.

Ozone is a byproduct of pollutants emitted from cars, power plants, industrial boilers, refineries, chemical plants, and other sources that react to sunlight. The main component of smog, ozone typically reaches unhealthy levels in urban areas during summer months, but can also reach high levels during cooler months.

Ozone also affects sensitive vegetation and ecosystems, according to the EPA, including forests, parks, wildlife refuges and wilderness areas, and can be particularly harmful to sensitive vegetation during the growing season.

Moving Fast

The EPA has moved quickly to finalize recent regulations. It announced in July it was proposing to leave the Obama-era ozone level unchanged (RIN 2060-AU40). Wheeler said then that he based that initial conclusion on a review of the latest scientific evidence and policy recommendations by EPA staff, which were vetted by the agency’s clean air advisers.

Under the Clean Air Act, the agency must periodically review the limits for ozone and other air pollutants, known as National Ambient Air Quality Standards, and set the standard at a level providing an adequate margin of safety and taking into account at-risk populations that suffer from asthma and other health concerns.

The agency’s move to wrap up the rulemaking just weeks before President-elect Joe Biden’s Jan. 20 inauguration was seen as an attempt to hold the line on tightening the ozone limits before the next Democratic administration arrives.

The final ozone rule is slated to be published in a Federal Register notice within several weeks. EPA is taking the relatively rare approach of setting the effective date immediately because the agency is making no changes, Wheeler said.

More commonly, there is a 30-day or 60-day effective date period, which would have made the final rule vulnerable to being stayed by the Biden administration before it could take effect.

Benefit for West

Keeping the ozone standard as-is benefits states, especially in the West, because they face wildfires and other conditions that affect air quality but are out of their control, Megan Houdeshel, an industry lawyer and partner at Dorsey & Whitney LLP in Salt Lake City, said Wednesday.

A stricter ozone standard would have been extremely difficult for Western states to meet because of high background ozone levels, she said.

“They would need to come up with some more science to justify whether a lower standard would be more effective,” Houdeshel said.

Wheeler on Wednesday addressed criticism that the EPA set aside science showing a need for stricter standards. The next five-year review for the ozone standards “starts tomorrow,” so any science that critics believe EPA overlooked in keeping the 2015 standards can be incorporated into the next review of the standards, he said.

EPA Move Criticized

EPA critics have pounced on the agency’s decision to leave the limits unchanged, saying the final rule exposes vulnerable populations to higher levels of ozone. The American Lung Association, for one, has backed National Ambient Air Quality Standards for ozone with a limit no higher than 60 parts per billion.

Biden’s EPA will have several options to set the standards aside, either by putting the rule on hold, or proposing another revision through a time-consuming rulemaking requiring notice and public comment, as well as a detailed review of the latest science.

Paul Billings, senior vice president of advocacy at the American Lung Association, told Bloomberg Law that EPA’s effort to rush the effective date won’t keep the Biden administration from revisiting the issue.

“But clearly there would be more flexibility if the rule was not in effect before Jan. 20,” when Biden takes office, Billings said.

‘Bipartisan Unhappiness’

Billings said his group has fought Democratic and Republican administrations alike over the ozone rulemaking, opposing a decision early in the Obama administration to halt what had been an ongoing review started by the Bush administration.

Over a decade ago under President George W. Bush, the agency sought a 75 parts per billion ozone limit, and Obama’s review took roughly a half-dozen years to strengthen it to the 70 parts per billion.

“It’s a bipartisan unhappiness we’ve had with Bush, Obama, and now Trump,” Billings said. “The standard we’re left with is just not protective of public health with an adequate margin of safety.”

Houdeshel said she thinks Biden will have more pressing environmental issues to focus on than revisiting the ozone standard.

To contact the reporters on this story: Dean Scott in Washington at dscott@bloombergindustry.com; Bobby Magill at bmagill@bloombergindustry.com

To contact the editors responsible for this story: Rebecca Baker at rbaker@bloombergindustry.com; Anna Yukhananov at ayukhananov@bloombergindustry.com

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