Final ozone rule ‘may include additional relief’ — EPA

Source: Sean Reilly, E&E News reporter • Posted: Monday, August 28, 2017

Only weeks after retreating from a bid to delay a key regulatory milestone, U.S. EPA is still looking at ways to ease the impact of its 2015 ground-level ozone standard, the agency told Congress in a recent report.

“EPA is examining and may include additional relief in its final implementation rule” for the standard “and will further consider other mechanisms for providing regulatory relief suggested by stakeholders,” according to the report, sent last week to leaders of the House and Senate appropriations subcommittees responsible for EPA’s budget.

A copy of the report, which has not been made public, was obtained by E&E News.

Among the paths under consideration: streamlining pre-construction permitting review for new and modified stationary pollution sources, possible new “flexibilities” that would account for the impact of so-called background ozone, and creation of a “nonattainment area classification scheme” that would give states as much leeway as possible “to craft local solutions before the onset of more prescriptive mandatory requirements,” according to the report, which also contains an overview of options currently allowed by the Clean Air Act and EPA regulations under certain conditions.

An agency spokeswoman had no immediate comment this morning.

EPA sent the report to lawmakers less than two weeks after backing off plans for a blanket one-year delay in final attainment designations for the 70-parts-per-billion ozone standard.

EPA employees wrote the report in response to a directive that Senate Finance Chairman Orrin Hatch (R-Utah) tacked on to a fiscal 2017 spending measure signed in May. The provision required the agency to explore the potential for creating cooperative agreements with states that both “provide regulatory relief and meaningfully clean up the air.” Hatch is now reviewing the report and discussing it with Utah stakeholders, a spokesman said this morning.

Hatch is specifically interested in reviving an approach known as “early action compacts,” which allowed states to avoid formal nonattainment designations — which can eventually lead to stricter industry permitting requirements — in return for meeting air quality benchmarks spelled out in tailored agreements with EPA. The agency used compacts during much of the President George W. Bush administration but dropped the approach after environmentalists charged in a lawsuit that they violated the Clean Air Act.

Hatch, together with Sen. Claire McCaskill (D-Mo.), has reintroduced legislation this year that would explicitly allow the compacts (E&E Daily, May 25). The bill, S. 1203, is awaiting action by the Senate Environment and Public Works Committee.

Before reviving the early action compact program, however, “EPA would need to engage with interested stakeholders, including its state partners and environmental groups, to determine the appropriate scope,” the report said.

The report also includes a catalogue of other vehicles available for “regulatory relief” such as waivers for ozone-standard violations that result from “exceptional events” outside the direct control of state and local regulators. It similarly highlights the voluntary Advance program, launched in 2012 to encourage emissions reductions in attainment areas, with the aim of providing a buffer against further air quality violations.

Ozone, the main ingredient in smog, is a lung irritant that is linked to asthma attacks in children and added breathing problems in people with emphysema and other chronic respiratory diseases. Under the Obama administration, EPA tightened the standard in 2015 on the grounds that recent research shows it affected human health at levels lower than the previous 75 ppb threshold.

Under a Clean Air Act timetable, states had turned in their attainment recommendations last fall; under the same schedule, EPA is supposed to make the final determinations — which start the clock on efforts to help out-of-compliance area to meet the standard — in October.

In June, EPA Administrator Scott Pruitt sought to roll back that deadline until October 2018, on the grounds that the agency needed to collect more information to make final decisions. Pruitt reversed that plan early this month, saying the data gaps were not as wide as initially believed, but still left open the possibility of again postponing at least some attainment designations.

At the American Lung Association, which is leading a previously filed lawsuit to block any postponement, Paul Billings, senior vice president for advocacy, said in an email that the group sees no reason “to weaken the Clean Air Act to provide additional changes that certainly would mean more people would breathe more air pollution.”

EPA lawyers are, meanwhile, seeking to have the American Lung Association’s lawsuit dismissed as moot. Together with other environmental groups, the association is fighting that motion with the argument that action by the U.S. Court of Appeals for the District of Columbia Circuit is needed to block any further delaying tactics. Backing them are New York and more than a dozen other states that had also filed suit before Pruitt announced his about-face.

“Because EPA could attempt to reinstate the designations delay and has indicated that it may, in fact do so,” the states said in a motion filed with the court yesterday, the environmental groups’ case “is not moot.”