Special Topics in Environmental Management

EPA Releases a Fact Check on Ozone Transport Story

Last week, the EPA issued a news release that purported to fact-check a CNN article regarding an August 31, 2018, EPA memo regarding cross-state air pollution. The memo indicated that a state’s 1-part-per-billion (ppb) contribution threshold to ozone pollution in downwind states may be appropriate in state implementation plan (SIP) that states must develop to meet Clean Air Act (CAA) Section 110 (good neighbor) provisions. According to the memo, the 1-ppb threshold can be an acceptable alternative to a more stringent 1 percent threshold (that is 0.70 ppb, which is 1 percent of the 70-ppb National Ambient Air Quality Standard (NAAQS) for Ozone the Obama administration established in 2015).
Air pollution
In their article, the CNN reporters said the memo is “just the latest move by the Trump administration to loosen restrictions surrounding air pollution.”

In its news release, which addressed seven “errors” in the CNN story, the EPA emphasized that the memo “explores possible approaches states might take in their [SIPs],” but “has no binding effect and does not prejudge the outcome of any state plan submission.”

Four-Step Framework

Under Section 110, the EPA uses a four-step framework to address upwind air pollution. Step 2 identifies upwind states that contribute air pollution to downwind, or receptor, states and, therefore, require further analysis. If the analysis indicates that an upwind pollution will contribute significantly to NAAQS nonattainment in a downwind state, the upwind state must undertake measures to achieve the needed reductions. The measures are included in SIPs, which are subject to EPA approval. If a state contributes to downwind pollution by less than the air quality screening threshold, the EPA’s position has been that the state does not interfere with NAAQS attainment under the good-neighbor provision.

Three Alternatives

In the memo, the EPA considers a 1 percent threshold, a 1-ppb threshold, and a 2-ppb threshold. The Agency says it found that using a 1-ppb threshold captures 70 percent of the total upwind contribution while the 1 percent threshold captures 77 percent. The 2 percent threshold captures only 55 percent of the total contribution and did not receive further consideration.

“Because the amount of upwind collective contribution captured with the 1 percent and 1 ppb thresholds is generally comparable overall, we believe it may be reasonable and appropriate for states to use a 1 ppb contribution threshold as an alternative to a 1 percent threshold at Step 2 of the 4-step framework.”

Two-Hour Interview

In its story, the CNN reporters refer to the memo as “highly technical.” Accordingly, the reporters interviewed EPA staff about the memo for “nearly two hours,” according to the Agency, which added that it also sent CNN numerous pages of e-mail responses. Despite all this, “CNN failed to report virtually any of the facts provided in detail,” said the EPA. “This is a great disservice to the public, who now believe EPA is ordering states to ‘pollute more.’”

The Agency also emphasized that the memo is guidance only and “one of a number of analytical tools” states use to evaluate and address their good-neighbor ozone obligations. The Agency states:

“The August memo, along with other technical tools over the last two years, lets states know how EPA expects to review state plans and what state analysis EPA thinks may be appropriate to include in those plans. The four-step framework represents a series of screening analyses, and the choice of any threshold in one part of this analysis does not determine an upwind state’s ‘good neighbor’ obligations. As noted in the memo, EPA will eventually propose and finalize approval or disapproval of individual states plans and these future actions will be subject to notice, public comment, and review in federal court. The guidance memo explores possible approaches states might take in their plans. It has no binding effect and does not prejudge the outcome of any state plan submission. Any approval of any state plan would be justified on its own record and would be subject to judicial review.”

Other Views

While this position was made clear in the memo, CNN seems to find more credibility in statements by representatives of several environmental groups. For example, according to CNN’s John Walke, the director of the air and climate program at the Natural Resources Defense Council, the Agency can’t pretend that the memo doesn’t change what’s acceptable and that the purpose is to allow upwind states to pollute more and refuse to control air pollutants that drift into downwind states.

The EPA’s memo is available here; the Agency’s news release is available here.

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