EPA Ozone Standards Could Be Issue in Funding Negotiations

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By Patrick Ambrosio

Sept. 8 — The Environmental Protection Agency’s revised ozone air quality standards could be the target of a rider on whatever spending package Congress will attempt to move later this year, advocates on both sides predicted.

While a coalition of states and industry organizations are challenging the 70 parts per billion ozone standards in federal appeals court, many industry advocates are looking to Congress to step in and provide more immediate relief. The EPA isn’t scheduled to determine what areas don’t meet the more stringent ozone standards until Oct. 1, 2017, but state and local permitting authorities are already required to consider the 2015 standards in reviewing preconstruction permits required for new and modified industrial facilities.

The House in June passed a bill ( H.R. 4775) introduced by Rep. Pete Olson (R-Texas) that would delay implementation of the 2015 ozone standards by eight years and make a number of changes to the EPA’s process for reviewing and revising national ambient air quality standards for ozone and other pollutants. While industry advocates support Olson’s bill, with a limited amount of time left on the Senate’s calendar for the year, they are looking for other avenues for Congress to potentially act on ozone.

“There’s no secret that the congressional calendar is tight for the remainder of the year,” Greg Bertelsen, senior director for energy and resources policy at the National Association of Manufacturers, told Bloomberg BNA. “We know that things will have to pass before the 114th Congress is over: with those bills are opportunities to include priority issues like ozone relief.”

Meanwhile, a number of environmental advocacy organizations that wanted the EPA to set even more protective standards are prepared to defend against any language that would delay or weaken the 70 ppb ozone standards.

Chief complaints of industry groups and states that oppose the standards are that they will be more expensive and more difficult to implement than the EPA expects. The agency projected that the 2015 ozone standards will cost as much as $1.4 billion in 2025 and that only a limited number of counties outside of California, which will have longer to meet the standards, will fail to comply within 10 years.

‘Unprecedented Engagement’ on Ozone

Bertelsen said manufacturers are “squarely focused” on addressing the ozone standards this year, citing unprecedented engagement with lawmakers from industry, as well as state and local regulators who are tasked with implementation of the more stringent ozone standards.

Lobbyists have been active on the ozone standards this year, based on a Bloomberg BNA review of the U.S. Senate’s Lobbying Disclosure Act Database. More than 100 organizations, including major corporations like Exxon Mobil Corp., the Dow Chemical Co. and BP America Inc., reported lobbying on ozone during the second quarter of 2016. That number also includes public health organizations like the American Lung Association and the American Heart Association, which have voiced opposition to any bill that would delay implementation of more protective ozone standards.

Anna Burhop, director of regulatory and technical affairs at the American Chemistry Council, told Bloomberg BNA that there has been a lot of momentum building behind the ozone issue reaching back to the Obama administration’s decision to launch an “out-of-cycle” reconsideration of the 2008 ozone standards, which the administration eventually abandoned. Industry advocates have been educating lawmakers about the effects of a more stringent regulation, including what it would mean at a local level for the permitting of new facilities and job creation.

“I do think that Congressional action is absolutely necessary, and I think Congress does realize this,” Burhop said.

While industry advocates will “pursue every possible avenue” to address concerns with the new ozone standards, given the compressed Congressional schedule for the rest of the year, a lot of people are looking at an end-of the year funding package, Burhop said.

Environmental Advocates Playing Defense

Environmental and health advocacy organizations also anticipate a late-year push on ozone, and they’re looking for Senate Democrats and the White House to prevent any sort of ozone delay provision from becoming law.

Staffers with the American Lung Association and Sierra Club both told Bloomberg BNA that they expect opponents of the ozone bill to try and attach a rider to Congress’s end-of-the-year funding package. Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg, the majority owner of Bloomberg L.P., parent of Bloomberg BNA.

Paul Billings, national senior vice president for advocacy at the American Lung Association, said public health advocates will be closely watching “any moving legislative vehicle” to ensure that language isn’t added on ozone or other public health issues. With Congress needing to pass something by Sept. 30 to continue funding the federal government, and the possibility of a longer-term omnibus package moving during a post-election lame duck session, health advocates “see the threat” of an ozone rider on appropriations bills, Billings said.

The American Lung Association Sept. 7 organized a call-in campaign urging members of Congress to pass a funding package free of riders, including any riders that would delay public health protections under the new ozone standards. Billings said the association would “keep the pressure on” throughout the month of September and “probably be back at it” if Congress returns after the election.

Melinda Pierce, legislative director at Sierra Club, agreed that funding bills are the most likely vehicle for opponents of the ozone standards to try and attach a rider. While she noted that public health advocates are “certainly not out of the woods yet” for whatever continuing resolution Congress negotiates in advance of Sept. 30, the ozone issue is more likely to pop up during a potential lame duck session later in 2016.

Pierce said the White House, which earlier this year threatened to veto Olson’s bill delaying the revised ozone standards, and Senate Democrats have previously been successful in blocking House Republican-backed proposals to roll back or delay EPA regulations. The hope for environmental advocates is that negotiations over the fiscal 2017 funding package follow in the steps of the fiscal 2016 omnibus, which was “entirely clean” of environmental riders, Pierce said.

Lawmakers Look for Opportunities

Pierce and Billings were less concerned about the possibility of any stand-alone legislation, including Olson’s ozone bill, becoming law. They both described standalone bills targeting EPA as “dead on arrival” in the Senate.

However, congressional staffers in both chambers told Bloomberg BNA Sept. 8 that they will continue to work on the ozone issue this fall. A majority aide with the Senate Environment and Public Works Committee said the committee will push for an opportunity to work on S. 2882, a companion version of Olson’s ozone bill introduced in the Senate by Sen. Shelley Moore Capito (R-W.Va.).

“Obviously opportunities will be limited the rest of the year,” the committee aide said. “Whatever opportunities present themselves, we’d be willing to consider.”

The aide added that there have been some conversations on possible bipartisan efforts to provide some sort of relief from the ozone standards. During a June EPW subcommittee hearing, Sen. Tom Carper (D-Del.) indicated he would be open to “commonsense” efforts to help states that would have trouble meeting the more stringent 2015 ozone standards.

A spokeswoman for Olson said that while state regulators that support H.R. 4775 would like to see action on the bill soon, there is a “limited amount of time” for the end of this Congress.

Currently “the ball is in the Senate’s court,” the spokeswoman said. If the ozone issue is not dealt with this Congress, Olson plans to launch another push on the issue at the beginning of the 115th Congress, the spokeswoman said.

To contact the reporter on this story: Patrick Ambrosio in Washington at PAmbrosio@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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