2015 ozone standard, Clean Air, Mountain Sky, photo

The EPA set the 2015 ozone standard for ground level ozone at 70 parts per billion (ppb) on October 1, 2015.[i]  The new standard is the least restrictive of the contemplated ozone standards, which ranged as low as 60 ppb.  All parts of the United States must meet the new 2015 ozone standard by 2025.

All areas of Nebraska satisfied the prior, 75 ppb standard, issued in 2008, and currently meet the new 2015 ozone standard of 70 ppb according to the most recently published data.  However, Douglas County, Nebraska, including the Omaha metropolitan area, brushes close to exceeding the new standard. Based on sampling data from 2011-2013, the results of air samples taken in Douglas County averaged 67 ppb ozone, about 4% below the new standard.

If those local ozone levels can be maintained, Douglas County may not need to be on a “pollution diet.”  However, the 4% difference between existing levels and the new standard leaves a small margin for desirable economic growth, including the expansion or development of permitted or to-be-permitted industrial facilities – sources that have the potential for providing good jobs in the community.

For more information, including an explanation of the general problem and what it means to be on a “pollution diet,” please read our prior article regarding the proposed ozone standards.  New Ozone Standard takes Aim at Industry.  Also, the Nebraska Department of Environmental Quality has posted an informative page called “FAQs about Attainment and Non-attainment”.[ii]

Reactions to the Standard

The EPA suggests the new standard is not overly burdensome.  It claims the 2025 deadline gives the states and industry plenty of time to adopt necessary changes.  Also, it believes industrial growth is still possible under the new ozone standard.  In support of its position, the EPA cites the fact that since 1970 air pollution has be reduced by 70% while the economy has tripled.[iii]

The EPA also contends that the savings to the public in health care costs far outweigh the costs of implementing this standard.  “A standard of 70 ppb essentially eliminates exposures that have been shown to cause adverse health effects, protecting 99.5 percent of the children…”.[iv]  The EPA estimates this will equate to $2.9 -$5.9 billion worth of public health benefits in 2025.[v]  The EPA estimates the cost for the nation to be in attainment of the 2015 ozone standard of 70 ppb to be $3.9 Billion dollars.[vi]

The head of the American Lung Association claims the standard is far too lenient.  Harold Wimmer, President and CEO of the American Lung Association, stated, “The level chosen of 70 parts per billion (ppb) simply does not reflect what the science shows is necessary to truly protect public health.”[vii]  The American Lung Association feels it is a step in the right direction but it is too small a step if the goal is to protect public health.

Industry trade groups have objected to the idea of lowering the standard ever since the EPA called for comments on a proposed lower ozone standard in November of 2014.  The American Petroleum Institute stated the standards could be the most expensive ever.[viii]  The National Association of Manufacturers President and CEO believes the standard is not the worst-case scenario for industry, but he stated it still feels like a “punch in the gut”.[ix]  He urged Congress to stand up to the EPA, warning, “make no mistake: the new ozone standard will inflict pain on companies that build things in America—and destroy job opportunities for American workers.”[x]

Local Action

With the standard now settled, the ball is now in the hands of Nebraska’s Department of Environmental Quality (NDEQ) and local government.   The NDEQ, with cooperation from the City of Omaha, Douglas County and surrounding areas, will be responsible for leading the charge to remain in attainment of the new standard.

The City of Omaha, the Metropolitan Area Planning Agency, and the Douglas County Health Department have been working with EPA on the problem for several years now.  Anticipating the new standard, the EPA began working with local agencies to develop proactive strategies aimed toward managing ozone levels.  EPA calls it the “Ozone Advance Program”.[xi]  Nebraska, Iowa and EPA Region 7 entered into a “Clean Air Performance Agreement” in 2010.  The Omaha-Council Bluffs Ozone Advance Program is an extension of that agreement.[xii]

In 2010, the program initially focused on increasing public education about the causes of ozone and the importance of limiting the emissions of ozone-causing chemicals. The “Little Steps, Big Impact” campaign worked to educate people in the Metro-area about the dangers of ozone emissions.[xiii]  The campaign encouraged doing  little things like waiting until after 7 p.m. to fuel your car or to use small engines such as lawn mowers.  If from Omaha, you may have seen signs on public transit buses in Omaha with these messages.

In 2013, the local Advance Program took a more direct approach.  In their “Path Forward” letter to the EPA the group announced an air conditioning management plan, a gas can exchange program and a plan to convert taxi cabs and buses to run on compressed natural gas (CNG).[xiv]  The program successfully worked with the Metropolitan Utilities District (MUD) to convert 50% of the largest local cab company’s fleet to CNG.[xv]

The  program’s current initiatives are still heavily focused on CNG conversion.  Recently the group partnered with other local organizations to start the “Driving Omaha Natural” program which will help fund CNG conversions of large diesel vehicles. The Omaha and Millard School districts also worked with MUD to convert their entire school bus fleet to CNG. The group hopes to reduce fleet VOC emissions by 40% and NOx by nearly 20%.[xvi]

According to the “Path Forward” plan, the biggest planned reduction will come from reducing emissions at the North Omaha Power Plant. By 2016 the plant will take 3 out of 5 of its coal powered burners offline.  It will also convert the other two to run on alternative fuels by 2023.[xvii]

Going Forward – Business and Individuals

Nebraska’s current attainment status may provide a false sense of security moving into the future.  To avoid complacency, it will be important for individuals and businesses alike to pay attention to the issue.  The issue may be new to Nebraska and the Omaha area, but has been a long term problem, experienced first-hand in many other areas of the United States.

The potential consequences of being designated a “non-attainment area are very serious.  As stated by a spokesman for the U.S. Chamber “failure to comply with existing ozone standards can lead to non-attainment designations, which are often viewed as a death knell for economic and business development in an area.”[xviii] Some specific consequences of non-attainment were highlighted in a report from the National Association of Manufacturers in July 2014.

“The greatest costs to comply with ozone regulations generally occur in non-attainment areas.  The consequences for non-attainment are severe and can include a loss of industry and economic development resulting from increased costs, delays and uncertainties from restrictive permitting requirements; loss of federal highway and transit funding; requirements that any new emissions in the area be offset or the facility cannot be built; and technical and formula changes for commercial and consumer products.”[xix]

In short, all other things being equal, a business seeking to locate or expand may view a non-attainment area as being a less desirable place to do business.  That business, especially if it will operate a manufacturing facility, may choose to locate in a state, city or county where it may avoid the extra regulatory burden of doing business in a non-attainment area.  If Douglas County and Omaha were to fall out of attainment, this could be as simple as a choice between Omaha or Lincoln, Nebraska.

For now though, the goal for the Omaha area will be to remain in attainment.  Still there will be consequences associated with being so close to exceeding the new standard.

Industrial facilities in the Omaha area may want to dust off their air permits and take a look at their emissions, especially if permit renewal is on their agenda any time soon.  Anyone in the market to develop new facilities or increase operating capacity of existing facilities should be prepared for perhaps more complexity in obtaining a permit.  Government agencies will be scrutinizing all sources and potential sources of ozone-causing chemicals moving forward to ensure the Omaha area does not exceed the 2015 ozone standard.

The burden will also fall on individuals and families.  All vehicles powered by gasoline and diesel fuel emit some degree of ozone-causing chemicals, but the biggest contributor to ozone levels is personal vehicles. There are currently no regulations or permits required for personal or business vehicles as emission sources and converting fleet vehicles to CNG, for example, are voluntary measures.

But EPA has been addressing the problem by regulating engines.  For about 20 years now the EPA has pushed for across the board vehicle emissions reductions through rules that mandate engine manufacturers to meet lower and lower emissions standards.[xx]   As ozone standards are lowered, rules and regulations will likely increase.

The controversial idea of imposing a tax based on “vehicle-miles-traveled” has been floated in at least 13 states and is being implemented on a trial basis in Oregon.[xxi]  Of course, the most efficient way to enforce that tax would be to mandate the use of “black box” GPS units measuring and transmitting the miles traveled by each vehicle, personal and otherwise.  Critics point out, correctly it would seem, that this is yet another tax and a potential invasion of privacy.[xxii]

Another solution, and perhaps the “easiest,” involves public transit.  For example, Chicago has mandated city employees to use public transit, though the stated rationale is accountability.[xxiii]  While Omaha’s public transit system is not nearly as robust as that of Chicago, we could see a general campaign to encourage residents to walk, bike or ride the bus to work.

Whether we agree with the need for a lower ozone standard or not, it is part of our current reality in many ways, including economic.  With all eyes on specter of climate change, the current regulatory trend may lead to even tighter standards when the EPA’s next 5-year review comes up in 2020.   While Omaha is in compliance with the new ozone standard now, it will be important for all of us to pay attention to the problem.  The economic growth of the Omaha area, and our pocketbooks depend on it.


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Article by: Mike Mostek & Amanda Lyon
Photo by: Nitish Meena


[i] EPA, National Ambient Air Quality Standards for Ozone (Oct 2, 2105 9:30am) available at: http://www3.epa.gov/airquality/ozonepollution/pdfs/20151001fr.pdf.  (Federal Register Publication Pending).

[ii] Nebraska Department of Environmental Quality, FAQ’s about Attainment & Nonattainment (Oct. 22, 2015 at 4:52 p.m.) available at: http://www.deq.state.ne.us/AirWaves.nsf=/cf7e4bdd49c643bf8625747f005a1515/3b00b887a2bae40b8625748e005ffbf5.

[iii] EPA, EPA’s Final Air Quality Standards for Ground-level Ozone by the Numbers (Oct. 2, 2015 at 10:52 a.m.) available athttp://www3.epa.gov/airquality/ozonepollution/pdfs/20151001numbersfs.pdf.

[iv]  EPA, Overview of the EPA’s Updates to the Air Quality Standards for Ground-Level Ozone (Oct. 2, 2015 at 10:47 a.m.) available at: http://www3.epa.gov/ozonepollution/pdfs/20151001overviewfs.pdf.

[v] EPA, EPA’s Final Air Quality Standards for Ground-level Ozone by the Numbers (Oct. 2, 2015 at 10:52 a.m.) available athttp://www3.epa.gov/airquality/ozonepollution/pdfs/20151001numbersfs.pdf.

[vi] EPA, Overview of the EPA’s Updates to the Air Quality Standards for Ground-Level Ozone (Oct. 2, 2015 at 10:47 a.m.) available at: http://www3.epa.gov/ozonepollution/pdfs/20151001overviewfs.pdf.

[vii] American Lung Association, American Lung Association Responds to EPA Ozone Standards Update, Impact on Public Health (Oct. 2, 2015 at 10:57 a.m.) available athttp://www.lung.org/about-us/media/press-releases/ALA-Statement-Ozone-Standards-and-health-Oct12015.html.

[viii] API, New Ozone Rules Could Be the Most Expensive Ever, (Oct. 2, 2015 at 11:17 a.m) available athttp://www.api.org/policy-and-issues/policy-items/naaqs/economic-impacts-of-ozone-regulations.

[ix] National Association of Manufactures, New Ozone Rule Will Inflict Pain on Manufacturers (Oct. 2, 2015 at 11:25 a.m.) available at: http://www.nam.org/Newsroom/Press-Releases/2015/10/New-Ozone-Rule-Will-Inflict-Pain-on-Manufacturers/

[x] Id.

[xi] EPA Advance Program information available at:  http://www3.epa.gov/airquality/advance/, OPPD Energy Portfolio, (Oct. 23, 2015 at 8:35 a.m) available athttp://www.oppd.com/about/energy-portfolio/.

[xii] Letter from Jim Suttle, Mayor of Omaha to EPA Region 7, dated June 4, 2013. available at: http://www3.epa.gov/ozoneadvance/pdfs/20130604Omaha.pdf.

[xiii] Metropolitan Area Planning Agency, What You Can Do (October 6, 2015 1:00p.m.) available athttp://littlestepsbigimpact.com/what-can-you-do/

[xiv] Id.

[xv] Letter from Jean Stothert, Mayor of Omaha to EPA Region 7, dated December 31, 2014. available at: http://www3.epa.gov/ozoneadvance/pdfs/20141231Omahaupdate.pdf.

[xvi] Id.

[xvii] Id.

[xviii] US Chamber of Commerce, Here’s How Costly Ozone Standards Will Affect You, (October 23, 2015 9:01 a.m.) available athttps://www.uschamber.com/above-the-fold/heres-how-costly-ozone-standards-will-affect-you.

[xix]National Manufacturers Association, Potential Economic Impacts of a Stricter Ozone Standard (October 23, 2015 9:05 a.m.) available at: http://www.nam.org/Issues/Energy-and-Environment/Ozone-Regulations/Ozone-Report-Executive-Summary-20140730/

[xx] National Highway Traffic Safety Administration, CAFE- Fuel Economy, (October 23, 2015 9:25 a.m.) available at: http://www.nhtsa.gov/fuel-economy

[xxi]Department of Motor Vehicles, Green Driver State Incentives in Oregon (October 23, 2015 9:25 a.m.) available at: http://www.dmv.org/or-oregon/green-driver-state-incentives.php

[xxii] It would be interesting to see if this requirement would hold up in light of the Supreme Court decision United States v. Jones, which banned police use of GPS units as a search and thus are illegal without a warrant. 562 U.S. ___(2012).

[xxiii] Mayor Mandates Public Transportation for City Employees, http://www.nbcchicago.com/blogs/ward-room/rahm-emanuel-travel-reimbursement-cta-131391738.html


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