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Ted Steichen's testimony on proposed rule for implementation of the 2015 National Ambient Air Quality Standards for Ozone




As prepared for delivery

Testimony of Ted Steichen, Senior Policy Advisor
American Petroleum Institute
Public Hearing on the Proposed Rule: Implementation of the 2015 National Ambient Air Quality Standards for Ozone: Nonattainment Area Classifications and State Implementation Plan Requirements EPA-HQ-OAR-2016-0202
January 12, 2017

API appreciates this opportunity to comment on this proposed rule and offer suggestions to further harmonize these proposed requirements with existing implementation programs.

API represents over 625 oil and natural gas companies, leaders of a technology-driven industry that supplies most of America’s energy, supports more than 9.8 million jobs and 8 percent of the U.S. economy, and, since 2000, has invested nearly $2 trillion in U.S. capital projects to advance all forms of energy, including alternatives.

First, let me emphasize the dramatic improvement in air quality that continues as the previous air quality controls are implemented. For example ground level ozone in the U.S. declined by 17 percent between 2000 and 2015,1 according to EPA data. In the Fact Sheet2 released with the 2015 Ozone NAAQS Rule, EPA stated that Agency analyses show the vast majority of U.S. counties will meet the standards by 2025 just with federal and state rules and programs in place or underway prior to the 2015 NAAQS. Clearly the states, tribes and businesses are successfully implementing the ozone standards and API supports the protection of public health.

Second, the consideration of this proposal exemplifies the unfortunate complexity and burdens that may be imposed on states, businesses and consumers by the 2015 ozone standards, piled on top of the delayed implementation of the 2008 standards. API looks forward to working with EPA and Congress to provide relief from add-on requirements and adequate time for standards implementation.

Common-sense approaches are needed to implement the NAAQS and to set new standards, saving states, tribes, businesses and consumers from unnecessary and potentially costly ozone obligations required under existing rules.

Third, specific to this proposal, note that the 2015 Ozone NAAQS approaches background levels in some areas. Therefore, meeting the Clean Air Act’s requirement to “insure that economic growth will occur in a manner consistent with the preservation of existing clean air resources”3 increasingly requires EPA to use the NAAQS implementation process to alleviate or remove the unnecessary regulatory and administrative burdens associated with the unprecedented stringency of the standards. API therefore urges EPA to limit implementation to one set of ozone standards at a time. Barring other more optimum relief, EPA should use the full scope of its authority under the CAA to transition from the 2008 standards, without saddling states and regulated entities with overlapping attainment requirements. We ask the Agency to provide compliance flexibility reflecting the inherent difficulty in implementing and achieving standards that can be exceeded through the occurrence of natural phenomena and the influence of foreign emissions sources for which states and tribes have no authority to control.

In the limited time available I will begin to touch on one of the issues our comments will address, the Transition from the 2008 Ozone NAAQS to the 2015 Ozone NAAQS.

EPA’s Proposed Implementation Rule presents two alternatives approaches for revoking the 2008 standards and transitioning to the 2015 standards. API agrees with EPA that Option 1 likely allows for a less burdensome transition between the 2008 and 2015 standards while maintaining the controls required under the CAA and applicable case law. As such, subject to the clarifications requested below, API requests that EPA utilize Option 1 to transition from the 2008 standards to the 2015 standards, and further urges EPA to utilize the full scope of its statutory authority to extend compliance flexibility to areas not presently attaining the 2008 standards.

API’s support for Option 1 is conditioned on three requested changes and clarifications: Attainment Demonstrations, Bump-Up Discretion and Reclassification Timing.

The proposed language in § 51.1300(p) lists the specific anti-backsliding measures that could apply depending on the area’s nonattainment classification under Option 1, and it includes attainment demonstration requirements.4 If, as stated in the proposal’s preamble and the proposed language in 40 C.F.R. § 51.1305(d), EPA intends to impose anti-backsliding provisions only to the extent that they maintain the current level of control at the time of revocation and do not require increases in controls or bump-ups, it is unclear why these compliance demonstrations will be required at all. Compliance demonstrations do not control emissions, nor are they necessary in this context to demonstrate the adequacy of controls because Option 1 will already require the continuation in nonattainment areas of all controls in place at the time the 2008 ozone NAAQS are revoked.

Compliance demonstrations may be necessary where a state seeks to alter an area’s attainment status through use of a redesignation substitute, but the potential for redesignation of individual nonattainment areas does not require EPA to broadly require attainment demonstrations as part of its anti-backsliding regulations. EPA can, and should, simply allow states to conduct compliance demonstrations for the narrow purpose of obtaining redesignation substitutes, but should not require further attainment demonstrations for the 2008 ozone NAAQS after revocation.

Our written comments will provide details on this issue, regarding bump-up discretion and reclassification timing, as well as a discussion of the international ozone transport issues addressed in the implementation of this rule.

In closing, air quality progress continues under the previous standards and relief is needed for states and businesses from the burdens of the new standards. API is committed to working with EPA and Congress so only one set of ozone standards is being implemented at any given time.

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1 https://www.epa.gov/air-trends/ozone-trends#oznat Retrieved January 10, 2017
2 https://www.epa.gov/sites/production/files/2015-10/documents/overview_of_2015_rule.pdf Retrieved January 10, 2017
3 CAA § 160(3)
4 81 Fed. Reg. at 81,309.