EPA Issues Final NAAQS Ozone Rule at 70 ppb [UPDATED]

The Environmental Protection Agency (EPA) on Oct. 1 released the final version of new National Ambient Air Quality Standards (NAAQS) for ozone, cutting the current limit of 75 ppb to 70 ppb. The move sets the stage for a battle with Congress, the states, and a range of industries that have warned the new ozone rule will have major impacts on the economy.

EPA Administrator Gina McCarthy said the decision was based on well-founded concerns for public health.

“Put simply—ozone pollution means it hurts to breathe for those most vulnerable: our kids, our elderly and those suffering from heart and lung ailments,” McCarthy said in a statement. “Our job is to set science-backed standards that protect the health of the American people. Today’s action is one of the most important measures we can take for improving public health, reducing the costs of illness and protecting our children’s health.”

The choice of a 70 ppb standard, however, is likely to draw a sigh of relief from many in the power sector, which had feared it could go much lower.

The Clean Air Act (CAA) requires that the EPA set NAAQS for ozone and five other pollutants considered harmful to public health and welfare, and to review those standards every five years. In 2010, the EPA proposed to implement a more stringent ozone standard than those set by the Bush administration in March 2008.

That rule would have changed the cap for primary and secondary ozone standards, emitted during any eight-hour period, from 75 ppb to between 60 ppb and 70 ppb. But in September 2011, just before the rule was to be finalized, President Obama scuttled the so-called “smog rule” to reduce regulatory burdens and uncertainty for industry.

The agency’s new draft rule issued in November 2014 (the day before the Thanksgiving holiday) proposed to revise the standards to a range of 65 to 70 ppb and sought comments on a level as low as 60 ppb. The final ozone rule is significantly less strict, however.

The EPA’s statutory deadline for commencing its periodic review, required under the CAA, passed on March 12, 2013. But in April 2014, finding for a number of environmental groups, a U.S. District Court in California ordered the EPA to issue its proposed decision on revising the ozone NAAQS by Dec. 1, 2014, and to finalize the rule by Oct. 1, 2015.

Enforcement of the NAAQS is the responsibility of states, which are required to adopt EPA-approved state implementation plans to attain and maintain compliance with the standards.

Litigation over the new ozone rule is a near-certainty. Critics of the lower standard have pointed out that around 100 million people live in areas that are in nonattainment for the current 75 ppb standard. At the state level, 27 are in nonattainment (including the District of Columbia). The new standards could put the majority of the U.S. population in nonattainment areas: 358 counties nationwide will currently be in nonattainment under a 70 ppb standard.

The EPA noted, though, that ozone levels have been falling for decades.

“Nationally, from 1980 to 2014, average ozone levels have fallen 33 percent, while the economy has continued to grow. And by 2025, EPA projects that existing rules and programs will bring the vast majority of the remaining counties into compliance.”

The costs, though, may not be as great as was feared. A study from National Economic Research Associates Economic Consulting commissioned by the National Association of Manufacturers (NAM) warned that a 65 ppb standard would have resulted in $140 billion per year in lost gross domestic product, $1.05 trillion in compliance costs through 2040, 34 GW in accelerated coal plant retirements, and 1.4 million jobs lost across all affected sectors.

In splitting the difference, the EPA appeared to satisfy no one, however.

NAM said the 70 ppb limit will still be a problem.

“Today, the Obama Administration finalized a rule that is overly burdensome, costly and misguided,” NAM CEO Jay Timmons said. “For months, the Administration threatened to impose on manufacturers an even harsher rule, with even more devastating consequences. After an unprecedented level of outreach by manufacturers and other stakeholders, the worst-case scenario was avoided. However, make no mistake: The new ozone standard will inflict pain on companies that build things in America—and destroy job opportunities for American workers.”

The Sierra Club, meanwhile, called it a “missed opportunity.”

“The Obama Administration has fallen short of setting a smog standard that fully protects the health of our families, making this decision a missed opportunity to clean up our air and protect the most vulnerable Americans,” Sierra Club President Michael Brune said in a statement. “Lowering the smog standard from 75 to 70 ppb is a modest step in the right direction, but it doesn’t go far enough to protect the millions of Americans living in communities with dangerously high levels of smog pollution.”

—Thomas W. Overton, JD and Sonal Patel are POWER associate editors.