For western regions not in compliance with the Environmental Protection Agency’s 2015 ozone rule, regulatory relief and cooperative agreements may be on the table as solutions, the agency said in a report requested by Sen. Orrin Hatch (R-Utah).

EPA’s report was initiated by the Senate Finance Committee Chairman in the Consolidated Appropriations Act, passed in May, and directed the EPA to develop recommendations for alternative methods of ozone compliance through Congressional oversight and a re-examination of statutory authority. The report comes as Western states continue to seek relief from revised ozone standards announced under the Obama administration.

The report explored ways states could enter into cooperative agreements within the EPA to “provide regulatory relief and meaningfully clean up the air” under the Clean Air Act (CAA) to both progress toward meeting the rule and avoid the more stringent penalties.

Hatch’s office is currently reviewing the report, according to E&E News. In early August, the EPA decided to rescind the one-year delay in the nonattainment designations. Fifteen states sued the agency over the possible postponement, with New Mexico the only state to join the lawsuit from the Rocky Mountain region.

Failure to achieve the 2015 rule’s guidelines for ozone at 70-parts-per-billion in the atmosphere will result in a “nonattainment” designation, and could trigger onerous, mandatory restrictions such as the EPA overriding state permitting decisions and a loss of federal funding for highway and transportation projects. The previous 2008 standard was 75 ppb.

The report to members of Congress, first published by E&E News, suggested that other ‘administrative options’ might be available to states in an effort to avoid non-attainment designations with the new 2015 ozone standard.

Bryce Bird, director of the Utah Division of Air Quality, said that while Utah would likely see new nonattainment areas as a result of the 2015 revised standard, his agency’s state implementation plan had already been submitted to the EPA. Several Utah counties, including Salt Lake, Davis, Weber, Utah, Duchesne and Uintah, could see nonattainment designations on October 1, the original ozone rule deadline.

For areas in the West with significant background ozone concerns, the EPA said it is considering revising monitoring to exclude ozone measurements attributable to background ozone.

Clint Woods, Executive Director of the Association of Air Pollution Control Agencies, told Western Wire his organization “has been working to identify a number of avenues for U.S. EPA, through its Ozone Cooperative Compliance and Regulatory Reform Task Forces, to provide regulatory relief for air agencies facing penalties due to ozone concentrations  – including background and internationally transported ozone – outside their control.”

“Recent, peer-reviewed studies and EPA’s own modeling suggests that these uncontrollable sources of pollution are an even more important driver of ozone concentrations in the U.S. than we previously thought,” said Woods.

Woods pointed to a 2017 study conducted by Princeton, the National Oceanic and Atmospheric Administration’s Geophysical Fluid Dynamics Laboratory, and EPA’s Region 8 Office that found nitrogen oxide emissions from Asia tripled since 1990, and are “the major drive of rising background [ozone] over the [Western U.S.] for both spring and summer in the past decades.” These emissions have offset approximately 50 percent of U.S. emissions reductions established between 1990 and 2014, according to the study’s authors.

The AAPCA hopes “states and localities are not punished for air pollution that is naturally occurring or from other countries,” said Woods.

Emphasizing the need for “flexibility” for both state regulators and the EPA itself, the agency’s report to Congress detailed the creation of ‘cooperative agreements’ that first came into use for the 1997 ozone standard and again in 2002, after “state, local, and tribal air pollution control agencies expressed a need for added flexibility in implementing the 8-hour ozone” standard, the report said.


“One concept was to provide incentives for taking early action to reduce ground-level ozone in exchange for avoiding the stigma of a Clean Air Act nonattainment designation and accompanying requirements,” leading to the creation of the “Early Action Compact (EAC) Program.”

A 2009 review by EPA’s Office of Policy Analysis and Review and Office of Air Quality Planning and Standards found the program was popular with participating state and local officials, offering “the right combination of incentives, flexibility, and structure,” according to the report.

The EAC program encouraged local ownership of the ozone issue and development and adoption of local measures, increased awareness with stakeholders and members of the public, and established beneficial working relationships between state environmental quality agencies and local government.

Those factors helped the EAC regions achieve a 75 percent rate of ozone attainment before the 2005 deadline for implementation. The EAC Program “encourage[d] the development and adoption of quantifiable, local emission reduction control measures” in an effective way, the report concluded.

The EAC Program, however, faced legal challenges from environmental groups that argued the EPA did not possess the authority under CAA to defer nonattainment designations. The report recommended that any future plan similar to EAC would “need to account for the likelihood of such challenges” and  the EPA would need to confer with states and environmental groups alike “to determine the appropriate scope for the program.”

Other mechanisms for ‘regulatory relief’ are still available regardless of ozone implementation timetable, including streamlining preconstruction permitting reviews and providing states as much flexibility as possible to craft local solutions “before the onset of more prescriptive mandatory requirements.”