Why NAAQS for Ozone Should Not Be Implemented

The Anti-Competitive Effects of Establishing Ozone NAAQS

The EPA’s adoption of more stringent NAAQS for ozone will increase the cost of compliance of meeting such standards for American manufacturing companies. The increased cost of compliance impedes the ability of American manufacturers to remain competitive in a global marketplace, especially when competitors manufacturing in neighboring countries are exempt from complying with such standards. As such, foreign competitors derive the economic benefit of revenue from sales in the United States without the burden of bearing the cost of compliance with such stringent standards.

Given the cost of complying with current standards, it should come as no surprise that more than 3.1 million manufacturing jobs were lost in the United States during the last seven (7) years. If a stricter standard is adopted while regulators and industry are still working to implement the current rule, the cost of natural gas and other resources will further increase, thereby further raising American manufacturers’ overhead costs and making them less competitive in the global marketplace.

It is clear that, under Section 109 of the Clean Air Act (“CAA”), EPA does not have the authority to consider the economic costs of compliance in establishing NAAQS. However, if current anti-competitive effects are compounded by a stricter standard, the effect on American manufacturing could be devastating, resulting in the loss of additional jobs. Certainly, a rule that results in the loss of jobs and a decrease in the standard of living of American workers cannot be construed to be beneficial to public health. Indeed, a rule likely to cause more harm to health than it prevents is not a rule that is “requisite to protect the public health.” Whitman vs. American Trucking Associations, 531 U.S. 457, 495 (2001).

For the reasons set forth above, the EPA should maintain its current NAAQS for ozone and to defer the implementation of a more stringent standard until such time as advances in technology will ease the burden of compliance that is placed on industry. Concomitantly, deferring a decision to implement more stringent ozone NAAQS will also allow additional time for the scientific community to provide EPA with more sound empirical data from which to promulgate a more stringent standard.

EPA Reliance on Uncertain Epidemiological Studies

EPA should refrain from implementing a more stringent ozone standard because the epidemiological studies it relies upon as justification for moving to a stricter standard are inconclusive regarding the causal effects between ozone and human health. Given these uncertainties, the evidence the agency is using should not be used to lower the current standard. With regard to data regarding cardiovascular effects, the revised Air Quality Criteria Document for Ozone and Other Photochemical Oxidants (the “Criteria Document”) found that overall evidence from studies evaluating the association between ozone exposure and cardiovascular hospital admissions remains inconclusive. 72 Fed. Reg. 37818 at 843 (July 11, 2007). Moreover, with regard to mortality effects, studies show a pattern of effects for causality that have biologically plausible explanations, but knowledge regarding potential underlying mechanisms is very limited at this time and requires further research. 72 Fed. Reg. 37818 at 844.

Moreover, as recognized by the Criteria Document, numerous factors can affect an individual’s responsiveness to ozone exposure, including physical activity, age, gender and hormonal influences, racial, ethnic and socio-economic status, environmental factors and oxidant-antioxidant balance. Since there are many factors that interact over a continuum of health endpoints studied in the Criteria Document, it seems premature to attribute any one factor such as ozone as being causally related to any one particular health effect in the absence of more conclusive studies. Indeed, as pointed out in the Criteria Document, the wide variability of response and sensitivity among subjects to ozone may be due to a wide range of other highly reactive photochemical oxidants co-existing with ozone in ambient air. For these reasons, EPA should maintain the current NAAQS for ozone and refrain from promulgating stricter standards.