The EPA Rule on Ozone Levels
Recently, the US Environmental Protection Agency (the “EPA”) published an administrative rule that requires states to lower atmospheric ozone levels to 60-70 parts per billion. For states in the Intermountain West, where the level of naturally occurring ozone (or “background concentrations”) routinely reaches 60 – 75 ppb, it’s going to be tough to comply.
According to National Oceanic and Atmospheric Administration-led research, it’s not a problem limited to inversion prone valleys like Salt Lake and Cache.
“We expected we were going to see intrusions big enough, individual events, which would likely put us in exceedance of the current standard, but episodically,” said Andy Langford, a NOAA research chemist and lead author of the study based on spring 2013 data. “But we were really surprised at how high the average background was and what that meant in the context of a lower standard.
Published in August in the journal Atmospheric Environment, the study shows that background ozone makes up a significant amount of overall springtime levels of the pollutant through out mountainous western states and joins a growing body of research that indicates that western states are most susceptible to background ozone due to “elevation and pollution drifting from Asia or being released by wildfires, methane leaks and lightning.”
In nearby Nevada, that means that Las Vegas would exceed allowable limits every other spring day mostly due to “extra” stratospheric ozone.
A 2011 study by Harvard scientists concluded that those states would have “little or no ability to reach compliance.” Studies by the Utah Division of Air Quality (“DAQ”) have demonstrated that Utah faces the same problem. In 2013, Utah sent their Amanda Smith, Executive Director of the Utah Department of Environmental Quality, to Washington to she testify before Congress on the impact of the EPA’s rule on Utah. In her testimony, Smith noted that
Surprisingly high ozone values have been measured at rural monitors in Utah and even within National Parks. Similar high values have been seen throughout the Intermountain West. In Utah our work to date has focused on reductions in urban areas – successfully reducing peak ozone levels to meet more stringent standards. However, in rural Utah ozone values have not been decreasing, rather values have remained fairly constant despite these significant reductions in emissions of ozone precursors in Utah and upwind states.
Note that the problem found by the DAQ was not just in urban areas, where industry and transportation contributes to ozone levels, but in rural areas. In addition to finding these levels in Utah, the DAQ research found ozone levels above 70 ppb, and often 75 ppb, in Colorado, Arizona, Wyoming, and Idaho caused by transport of ozone or precursors from Asia, especially during the spring, wildfires, altitude and topography (ozone tends to increase with altitude).
Between a Rock and a Hard Place
The findings demonstrate the conundrums the EPA and the Intermountain West each faces. On one hand, ozone levels in excess of 75 parts per billion is hazardous to health. (Just ask my friend Jesse, who moved his family to Cedar City to improve their health prospects after finding that the high level of pollution in Salt Lake contributed to existing health concerns). On the other hand, it’s looking less likely that much can be done locally to comply with EPA required ozone limits. Geography is the enemy, and western states are stuck between a rock and a…federal agency place.
All this information was available to the EPA prior to publishing the rule, but, according to a letter from Republican members of Utah’s Congressional delegation, the EPA did not give the information the attention it required, unduly putting a burden on western states in excess of what is required of states without the same geographic constraints (namely, mountains).
There is an “exceptional events rule” (“EER”) that allows states to petition to be exempt from the rule if they meet certain requirements, but the EER is narrow, perhaps too narrow, and does not include exemptions of “background concentrations” of ozone as found in western states. Utah ends up in violation of the rule before it even starts, and no amount of work can put it in compliance.
Utah’s state officials and congressional delegation are taking the lead on this issue, even though it affects mountainous states across the west. That’s great. Getting a revision of the rule by the EPA, or an exemption for background concentrations of ozone, would be a win for Utah.
On the other hand, failure will mean that the Utah Legislature and Governor Gary Herbert will need to come up with a way to defeat geography to meet EPA requirements. Who knows what that will require?
Apropos: A Word on Common Sense, Science, and States
During her confirmation hearing as Administrator of the United States Environmental Protection Agency, Gina McCarthy said that she would be willing to work on with states like Utah.
Central to all my efforts has been a clear recognition that the EPA must work hand in hand with states, local communities and tribes if we are to make continued progress in our common goal of protecting public health and the environment while growing the economy – especially in times like these when resources are so limited and the challenges we face together are so complex.
Additionally, McCarthy noted that the issues relating to environmental protection are not partisan but “must be pursued with common sense” and by “figuring out how to move forward in a common sense, responsible manner that is consistent with the law, and with the science.”
With a rule that ignores the geography of the Intermountain West, the EPA seems to be ignoring common sense, science and a willingness to work with the states to account for their unique issues. Instead, mountainous states of the west face the very real possibility that they may be penalized for failure to comply with impossible standards. What exactly that penalty might be is unclear: the EPA hasn’t stated a specific penalty and it’s uncertain what penalties the EPA could legally apply.