Haze, Ozone standard

The much anticipated new ozone standards are expected to be published by the EPA on October 1, 2015.  This is the second rule aimed at the fossil fuels industry this year, and the second seriously contested rule from the EPA in the past two months.  The EPA is not hiding its agenda to push its regulatory power to the statutory limits, and beyond, with the support of President Obama’s Administration.

The current, nationwide, National Ambient Air Quality Standard (NAAQS) for ozone is 75 parts per billion (ppb).[i]  The rule the EPA is expected to propose would set the 8–hour ozone standard within the range of 65-70 ppb.  The EPA also heard comments and testimony on a 60 ppb ozone standard, but admits there is increasing scientific uncertainty in support of a 60 ppb ozone standard and its benefit to public health.[ii]  Whatever ozone standard the EPA chooses the rule is expected to require attainment by 2025.

The Basics

The term “ozone” is often confusing because of the much-publicized fight to protect the ozone layer beginning in the late 1970’s.  We still hear reports about holes in the stratospheric ozone.  The ozone layer of the stratosphere serves the important role of absorbing ultraviolet radiation coming from the sun.  It protects the earth and us earthlings.

The rule to be proposed by EPA is aimed at a different type of ozone – sometimes called “ground-level ozone” or “surface level ozone”.  We also hear it referred to as “smog,” which implies a mixture of smoke and fog.  Surface level ozone is an air pollutant that forms from the reaction of nitrous oxide (NOx) with volatile organic compounds (VOCs) under the heat of sunlight.  NOx and VOCs are common emissions from automobiles and other sources that burn fossil fuel.  Surface level ozone is reported to cause asthma and other respiratory diseases, and be especially harmful to children and the elderly.

Several states are frustrated with the EPA’s attempt to further reduce the ozone standard because their State Implementation Plans (SIPs) do not meet the current requirements.[iii]  The Clean Air Act (CAA) relies on cooperative federalism, or a partnership between the federal government and the states for implementation. Under the CAA, the Federal government establishes the list of air pollutants, ozone being one of them, and the requisite standards for these pollutants.  This is the NAAQs list.

The standards can be viewed as a “maximum contamination level.”  It is then up to each state to design and implement a plan to attain these standards.  The EPA then reviews each state’s SIP and monitoring data to ensure attainment of the standards.  A state, or area within a state, is considered to be “in attainment” when the standards are met and “non-attainment” when the standards are exceeded.  Being in non-attainment can have serious consequences.

The Arguments

The fossil fuel industry and industrial coalitions are backing the fight against lowering the ozone standard.  Of course, the EPA and their allies argue in favor of the move.  The arguments from both sides can be inflammatory and confusing.

Looking at Nebraska only, the American Petroleum Institute’s (API) add campaign suggests a new standard pegged at 65 ppb ozone standard could cost Nebraska $4.7 billion from 2017-2040  and 3,293 jobs a year.[iv]  But, EPA estimates seem to peg the national cost of implementation lower than the API’s number for Nebraska alone, at least if the standard is set at 70 ppb.  The EPA estimates the national cost to implement a 70 ppb ozone standard is approximately $3.9 billion and $15 billion for a 65 ppb ozone standard.[v]

At the same time, we should also consider the important benefits that may be realized by lowering the ozone standard. The purpose of the EPA is to protect human health and the environment – Congress created the agency in 1970 and gave it that mission. When it comes to health, the EPA estimates a national health care savings of $6.4-$13 billion and $19-$38 billion by implementing these ozone standards, and argues that these savings clearly outweigh the burden to the public and industry. Certainly, cleaner air is a good thing for everyone, especially children and elderly populations, and it is hard to argue against the idea.

The Effects

So what does this really mean for Nebraskans?  Currently, the entire State of Nebraska is “in attainment” for ozone – meaning we meet the current 75 ppb ozone standard.  Only the Omaha area, including Douglas and Sarpy Counties, and Knox county currently have ambient ozone levels high enough to be in jeopardy of being in “non-attainment” based on the new ozone standards.

In the past three years, the Greater-Omaha-Metro area’s average yearly level was 67 ppb ozone.[vi]  This average is right in the middle of the range for the expected new standard.  This means the Omaha area, including Douglas and Sarpy Counties, could risk exceeding a 70 ppb standard based on population growth alone.  Growth comes with more passenger cars, trucks and other sources of combustion gases.  Even worse, if the EPA imposes a 65 ppb ozone standard, the Omaha area would be in immediate “non-attainment” and have to reduce ozone emissions to attain the new standard by 2025.

What happens when a state or area within a state is pushed by regulations to reduce ambient ozone levels?  Under the concept of “cooperative federalism” it will be up to Nebraska, with oversight and approval from the EPA, to prepare a plan to implement the standard.  We’ll write another article on that topic.

We have friends at both the federal and state agencies, and don’t relish the work they’ll have to do. We can’t predict what will be done, but based on the experience of other states, it is possible the Omaha area may be put on a “pollution budget”  or “pollution diet.”  These impacts would be felt by at least two groups, the general public and industry.

Public Impact.  For the general public, there would be, and already have been, media campaigns urging the public to do things that will limit emissions – like to avoid driving as much or as frequently, to take public transportation, to mow the lawn less, or to not put gas in our cars or mow the lawn during the hottest times of the day.  Since the general members of the public don’t (yet) require an air permit to drive their cars, or to otherwise function in daily life, there is no direct means of control controlling us.  So the government’s only option is to try to persuade us to modify our behavior using advertising campaigns and other tools such as emissions rebates and credits or taxes.

Industry Impact.  With regard to industry, the thing to remember is that our state, and every state, already has an “inventory” of existing sources with ozone-causing emissions.  Two things can happen if we’re put on a pollution budget.

First, those who have permits that allow emissions of ozone-causing chemicals may have their permits revised when it comes time for renewal (air permits generally last 5 years).  The tactic would be to decrease allowable emission levels from specific existing sources when their permit is renewed – the goal being to reduce emissions from some or all existing sources.  This usually means scrubbers or other emission control technology, also called “technological controls” but it could also mean “administrative” controls, such as reducing the number of shifts the facility can operate.  Either outcome could be costly for industry, and ultimately all of us.

Second, the current inventory of sources could be “capped” or “frozen” meaning that it could become more difficult to obtain an air permit needed to construct or expand an industrial or manufacturing facility, especially if the facility has high emissions from fossil fuel combustion.  This is the beginning of “cap and trade.”  An industry may be prohibited from building a new facility, or expanding an existing one unless an existing permit holder goes out of business or is willing and allowed to sell “emission credits” based on its existing air permit.  This could constrict business growth and development in the area.

Nebraska would not be the first state to undergo the process of reducing ambient ozone levels.  Many examples can be found around the country.  We helped expand an ethanol plant in the Central Valley of California and had to obtain emission credits from another source in California before the expansion could be approved government agencies.

Also, Nebraska will not be the only state or area to have business and industry adversely affected by the current push to lower the ozone standard.  It is a nationwide concern, and the impact will be even more of an issue in other states, especially those already not in attainment of the 2008 ozone standards.

But we have to ask, will we get to the point where we can’t drive cars and must take public transportation?  Will we get to the point where we can’t have pretty lawns and gardens, and the only place we see those things are public and private parks?  Will we get to the point where jobs are eliminated and we can’t buy the goods and services we need because they are too expensive or unavailable?

As with every area of environmental regulation, we are faced with a public policy choice, and often that choice comes down to a question of what we’re willing to pay for a clean environment and good health.  There are questions to be asked for sure, like how far do we trust the science or the money figures put forth by either side of the argument?  The only certainty is that reductions in pollution cost money and someone will have to pay those costs.


How may we serve you?

Article by: Amanda Lyon & Mike Mostek
Photo by: Alex Gindin


[i] National Ambient Air Quality Standards for Ozone, 73 Fed. Reg. 16436 (Mar. 27, 2008)(to be codified at 40 C.F.R. pts. 50 & 58) available at: http://www.gpo.gov/fdsys/pkg/FR-2008-03-27/pdf/E8-5645.pdf.

[ii] EPA Facts Sheet, Overview of EPA’s Proposal to Update the Air Quality Standards for Ground-Level Ozone (2014) available at: http://www3.epa.gov/ozonepollution/pdfs/20141125fs-overview.pdf.

[iii] Findings of Failure to Submit a Section 1110 State Implementation Plan for Interstate Transport for the 2008 National Ambient Air Quality Standards for Ozone, 80 Fed. Reg. 39961 (Jul. 13, 2015) available at: http://www.gpo.gov/fdsys/pkg/FR-2015-07-13/pdf/2015-16922.pdf.

[iv] American Petroleum Institute, New Ozone Rules Could be Most Expensive Regulations Ever, State Map Series (Sept. 30, 2015 2:00 P.M.), http://www.api.org/~/media/files/policy/environment/economic-impact-ozone/economic-impact-ozone-ne.pdf.

[v] EPA Fact Sheet, EPA’S Proposal to Update the Air Quality Standards For Ground-Level Ozone, By the Numbers (2014) available at: http://www3.epa.gov/ozonepollution/pdfs/20141125fs-numbers.pdf.

[vi] EPA, Data table for 2011-2013 Ozone Map (Sept. 30, 2015 2:00 P.M.), http://www3.epa.gov/ozonepollution/pdfs/20141126-20112013datatable.pdf.

Print Friendly, PDF & Email