Parts of 22 States Unlikely to Meet 2015 Ozone Standards

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By Patrick Ambrosio

Nov. 7 — Parts of at least 22 states are unlikely to meet the 2015 ozone standards, and that number could grow before decisions on the final list of nonattainment areas are made next year, according to a Bloomberg BNA survey of state environmental agencies.

The areas that won’t meet the 70 parts per billion ozone standards range from the I-95 Corridor between Northern Virginia and Connecticut to much of California, with a number of major metropolitan areas in between. Several areas that are home to oil and gas development activity, including parts of Texas, Colorado and Utah, also are unlikely to meet the ozone standards, which could prompt states to consider that sector for needed emissions cuts.

While ozone levels have continued to drop across much to the U.S., states will need assistance from the EPA to address a variety of issues, including interstate pollution that prohibits downwind areas from meeting the ozone standards and pollution from other countries that is transported to the U.S., according to Clint Woods, executive director of the Association of Air Pollution Control Agencies. That organization represents 20 state air pollution control agencies.

“I think every [nonattainment] area is going to be different, but in an overarching way, we’ve made a ton of progress,” Woods told Bloomberg BNA.

Final Decisions Next October

The Environmental Protection Agency will issue its final area designations, a determination of the areas that do and don’t meet the 2015 ozone standards, by Oct. 1, 2017. Those that fail to meet the standards (RIN:2060–AP38) will be labeled as nonattainment areas, which are subject to a variety of pollution control planning requirements, including a stricter permitting process for new industrial facilities.

As part of the designation process, all 50 states were required to submit recommendations for what areas do and don’t meet the standards by Oct. 1 of this year. Those recommendations, compiled by Bloomberg BNA throughout October, provide an early look at which parts of the country are headed for a nonattainment designation and how close those areas are to meeting the 70 ppb standards.

The recommendations were based on three years of data collected from 2013 to 2015. The EPA will base its decisions next year on data from 2014 to 2016, which could result in additional areas exceeding the standards depending on how high their ozone levels were this summer.

Most Headed for ‘Marginal’ Status

Not all nonattainment areas will be subject to the same requirements and deadlines for coming into compliance. The EPA will use different classifications based on how close areas are to the 70 ppb standards. That means areas with higher ozone levels will have more time to meet the standards, but will be subject to more mandatory planning and control requirements.

In a proposal posted online Nov. 2, the EPA projected that its proposed thresholds for the nonattainment classifications would result in most areas that fail to meet the ozone standards earning a “marginal” classification. Those areas, which will get three years to come into compliance, will be aided in reducing ozone levels through already-adopted federal and state control programs targeting emissions from vehicles, power plants and the oil and gas industry, the EPA said.

East of the Mississippi River, the New York metropolitan area, which has a three-year average of 84 ppb, is the only area likely to earn a nonattainment classification higher than marginal. West of the Mississippi, several areas are likely headed for a moderate or higher designation, which would trigger additional requirements including the need to prepare a state implementation plan showing how the area will meet the standards and stricter permitting requirements under the New Source Review program for new and modified industrial facilities.

Possible moderate or higher nonattainment areas include Dallas-Fort Worth and Los Angeles.

Oil and Gas Areas Affected

One industry likely to see increased regulatory requirements under the 2015 ozone standards is the oil and gas industry, according to J. Scott Janoe, a partner with Baker Botts LLP. Janoe, based in Houston, has expertise in regulatory compliance for oil and gas exploration and production operations.

“Lowering the standard to capture more of the rural counties where oil and gas development is prevalent will lead to more regulation of those operations,” Janoe told Bloomberg BNA.

Several metropolitan areas with nearby upstream oil and gas operations, including Denver, Dallas-Fort Worth and Houston, are likely to qualify as nonattainment areas when designations are issued next year, according to state recommendations. In addition, Utah’s Uinta Basin, an area with thousands of active oil and gas wells, also likely will be placed into nonattainment for the first time due to a unique ozone problem that occurs during the winter months.

Jeremy Nichols, director of the Climate and Energy Program at WildEarth Guardians, told Bloomberg BNA that while ozone is typically an urban problem, heavy oil and gas development has driven up levels of the pollutant throughout the Western U.S.

Nichols highlighted the Denver metropolitan area, which has a three-year average of 80 ppb from 2013 through 2015, as an example of an area where emissions associated with oil and gas development are contributing to the ozone problem. While Denver has been in nonattainment under previous standards, Colorado regulators will have to do even more to come into compliance with the 70 ppb ozone standards, including possible restrictions on oil and gas operations, Nichols said.

“The reality is it’s going to require big solutions,” Nichols said. “It’s going to be a big lift, and I think it’s going to require industry to show restraint.”

More Controls, Tougher Permitting

The EPA issued a set of guidelines in October for reducing oil and gas sector emissions of volatile organic compounds, a precursor to ozone formation. Release of those guidelines starts a two-year clock for states with moderate or more severe ozone nonattainment areas, as well as areas within the Ozone Transport Region in the East, to submit a revised state implementation plan that includes “reasonably available control technology” for upstream oil and gas operations.

Janoe said the emissions control guidelines, which the EPA issued to aid states in developing those plans, are more prescriptive in many instances compared to current state regulations. However, each state will be able to take its own approach to implementing controls on the oil and gas sector, meaning that requirements could vary from state to state, or even from county to county, Janoe said.

Ozone nonattainment designations in oil and gas areas also will make it more difficult to get permits for new operations, according to Kyle Isakower, vice president of regulatory and economic policy at the American Petroleum Institute. The American Petroleum Institute is one of several major trade associations opposed to the EPA’s decision to tighten the ozone standards in 2015 and supports legislative proposals that would delay implementation of the standards.

Under the EPA’s New Source Review permitting program, in order for a new facility in a nonattainment area to be approved, it must find emissions offsets, typically by obtaining credits from nearby facilities. Difficulty finding those offsets could have a “stifling impact” on oil and gas development in the West, Isakower said.

“In areas like that [the Mountain West], there simply don’t exist many places where you can find those offsets,” Isakower told reporters during a Nov. 1 conference call on energy regulations.

Progress Continues in the East

While several areas in the West are well above the 70 ppb ozone standards, data from 2013 to 2015 show that many in the East that have struggled to meet past standards have continued to make progress in lowering ozone levels. Cities such as Philadelphia, Pittsburgh and Baltimore are all just a few parts per billion over the 70 ppb standards.

Baton Rouge, La., which the EPA proposed Nov. 4 to resdesignate as in attainment of the 2008 ozone standards, just barely missed compliance with the 2015 standards. The metropolitan area recorded a three-year average of 71 ppb from 2013 through 2015. That number will likely be 72 ppb once data from 2016 is considered, according to Bryan Johnston, senior environmental scientist with the Louisiana Department of Environmental Quality’s Air Permits Division.

Johnston told Bloomberg BNA that while Baton Rouge won’t meet the 2015 ozone standards, the area has seen a consistent decline in ozone concentrations. That includes a 25 percent decline over the past 11 years.

“It’s not that there is necessarily an ozone problem [in Baton Rouge],” Johnston said. “The bar continues to get lower…we’ve been able to achieve every standard that EPA has been able to put in front of us.”

Call for Expanded Nonattainment Areas

While compliance with the 2015 ozone standards appears to be within grasp for much of the eastern half of the U.S., state regulators still want to see more done to combat transportation of ozone precursor pollutants from upwind states. States are “way behind” on addressing pollution that comes from other states and affects air quality in downwind areas, according to S. William Becker, executive director of the National Association of Clean Air Agencies. That organization represents 40 state and more than 100 municipal air regulatory agencies.

Becker said it is “disappointing” that the EPA’s recent rule to address ozone transport, the Cross-State Update Rule, only focuses on the 2008 standards. The EPA needs to do more, including imposing more stringent federal measures, to address transport, he said.

States like Delaware, New Jersey and Connecticut recommended that the EPA designate larger nonattainment areas under the 2015 standards as a way of addressing pollution from other states that affects their ability to comply with the standards.

Delaware’s highest ozone reading is just 2 ppb over the 2015 standards, but that number could go up if emissions reductions aren’t implemented and there are unfavorable weather conditions that are conducive to ozone formation, according to Ali Mirzakhalili, director of the Delaware Department of Natural Resources’ Air Quality Division.

“Just because we are this close doesn’t mean we’re home,” he told Bloomberg BNA.

Delaware recommended that the EPA not only designate the entire state as an ozone nonattainment area, but also include all other states that contribute to Delaware’s higher-than-allowed ozone levels, Mirzakhalili said. That would include states like West Virginia that didn’t recommend any nonattainment areas. The EPA rejected a similar request from Delaware during the designations process for the 2008 ozone standards.

“I think that’s the only way to solve this transport issue and ozone problem,” Mirzakhalili said.

States: We Need EPA’s Help

Woods and Becker both indicated that states are eager for assistance from the EPA in addressing different aspects of the ozone standards and preparing for the submission of plans to address ozone transport and implementation in moderate and serious nonattainment areas.

Becker said the EPA needs to “do its fair share” by developing appropriate federal regulations, providing sufficient resources to states to carry out their responsibilities and offering technical assistance and guidance that will help states comply.

“If EPA performs those tasks quickly and responsibly, it makes it far easier for state and local agencies to meet their obligations,” Becker said.

One Western source with expertise in air quality told Bloomberg BNA more regional analysis on ozone issues is needed in the West. More resources are needed to conduct the type of analysis that has been done to understand issues in the eastern half of the country, according to the source.

EPA Touts Collaboration

The EPA, in a Nov. 2 e-mail, told Bloomberg BNA that the agency has a “long history” of working with states to implement the ozone standards. The agency noted that the “vast majority” of states with potential nonattainment areas under the 2015 standards have experience in implementing prior ozone standards.

Some “new” nonattainment areas are possible under the 2015 standards, including Yuma, Ariz., the Wasatch Front in Utah and Bexar County in Texas, which includes San Antonio. However, all three of those states have some experience with implementing ozone standards, including Utah, which had nonattainment areas under the 1979 one-hour ozone standard in the early 1990s.

The EPA said it is developing a number of technical documents designed to aid states in implementing the ozone standards, including updated modeling guidance for demonstrating attainment with the ozone standards, due out in early 2017.

The agency also promised staterfere with the ability of downwind areas to attain and maintain national air standards. Those plans, due in 2018, may result in emissions reductions that will help downwind areas meet their deadline for complying with the standards, the agency said.

2016 Data Won’t Affect Much

State agencies told Bloomberg BNA that while 2016 monitoring results are not yet certified, data from this past summer isn’t expected to alter the attainment status of most areas.

However, at least a few areas could see their status change depending on this year’s results.

For example, the Texas Council on Environmental Quality told Bloomberg BNA in an e-mail that most counties in that state saw their ozone levels fall through the first nine months of the year. That could alter the attainment status of Hood County, which was included in the Texas’s recommended nonattainment areas, but had a preliminary design value of 69 ppb through Oct. 11.

When asked if any additional areas were at risk of being labeled as nonattainment based on early 2016 data, the Michigan Department of Environmental Quality identified Schoolcraft County, which is located in the state’s Upper Peninsula near the Canadian Border.

At Least Two More States At Risk

While only 22 states recommended nonattainment areas to the EPA, at least two more states may see areas within their borders designated as nonattainment next year.

All monitors in the state of Indiana are expected to meet the 70 ppb ozone standards, but parts of the state could possibly be labeled as in nonattainment due to ozone levels in neighboring states, Indiana Department of Environmental Management spokesman Barry Sneed told Bloomberg BNA in an e-mail. That includes areas near Cincinnati and Chicago, both of which are unlikely to meet the standards.

Wisconsin Gov. Scott Walker (R) recommended that all parts of the state be designated as attainment under the 2015 standards, citing a positive trend in air quality and the continued effort the state is making to comply with the 1997 and 2008 ozone standards. However, Wisconsin Department of Natural Resources spokesman Andrew Savagian told Bloomberg BNA in an e-mail that air quality monitors in seven counties are exceeding 70 ppb based on preliminary 2016 data.

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

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

For More Information

The results of Bloomberg BNA's survey of 50 states are available at http://src.bna.com/jUL.

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