Environmental Justice Groups Challenge Failed Ozone Rules

For decades, the South Coast region has had the worst ozone pollution in the nation. On Aug. 15, environmental justice groups launched a multi-pronged legal challenge to end decades of regulatory failure to deal with it.

Section 185 of the Clean Air Act requires regulators like the South Coast Air Quality Management District or AQMD to adopt a fee rule ten years after an area is designated as a non-attainment area for a given standard. But even though the South Coast region has repeatedly had the worst ozone pollution in the country, two required regulations to limit emissions of ozone precursors (nitrogen oxides, or NOx and volatile organic compounds, or VOCs) from stationary sources, such as refineries and power plants, have not been put in place, according to the groups, including Earthjustice, East Yard Communities for Environmental Justice, People’s Collective for Environmental Justice, Communities for a Better Environment and the Sierra Club. In addition, a third regulation has been replaced with an alternative that waived more than $40 million in fees in 2018 alone that would have been owed by major polluters, essentially removing any incentive to reduce ozone pollution, and subverting the express purpose of Section 185.

“The South Coast has used an approach that does not require large polluters like refineries to reduce their pollution or pay the required penalties for failing to do so,” the groups said in a press release. “The biggest beneficiaries of this approach are multi-billion-dollar oil and methane gas companies, many of which have had record profits.” What’s more, “The facilities that have benefited from leniency are also located in some of the overburdened communities in the country — making this an important civil rights issue.” Three prominent examples are the Tesoro, Torrance, and Valero refineries.

Breathing ozone can trigger acute health problems, such as chest pain, coughing, throat irritation, and congestion, as well as contribute to chronic problems like reduced lung function, worsening bronchitis, emphysema, and asthma, higher risk of death from respiratory diseases as well as metabolic disorders such as glucose intolerance, hyperglycemia, and diabetes. It’s also been linked to lower birth weight and decreased lung function in newborns. In addition, both ozone precursors are independently harmful to human health.

The groups involved took three separate, but related actions on Aug. 15.

First, they filed suit against the South Coast Air Quality Management District or AQMD and the California Air Resources Board or CARB for a decade-long failure to adopt legally adequate pollution fee rules for the region’s largest stationary sources of ozone precursors. This is tied to the 1997 eight-hour ozone standard, which should have been put into place no later than June 15, 2014.

Second, they’ve provided a 60-day notice of intent to sue CARB and AQMD for failure to adopt the 2008 eight-hour ozone standard, which should have been adopted by July 20, 2022.

Third, they’ve petitioned the Environmental Protection Agency or EPA to require AQMD to properly implement all three rules — the two never-implemented eight-hour standards, and a 1997 one-hour standard, which was questionably replaced with an alternative program (AQMD’s Rule 317) that doesn’t impose any fees on polluters, thus removing any incentive to improve the air.

“We have done everything we can to warn the South Coast of the serious health implications of persistent ozone pollution in our air,” said Radhika Kannan, Earthjustice attorney. “For every ozone standard, they have failed to institute a functioning fee program to incentivize major polluters to cut emissions.”

AQMD, CARB, and EPA all declined Random Length’s requests for their response, citing the pending litigation.

“I immigrated to the U.S. from the Philippines and settled in the Long Beach community. For the past 26 years I have lived adjacent to multiple refinery facilities,” said Jan Victor Andasan, East Yard Communities for Environmental Justice staff and member. “I have lived as close to one mile from the refinery seeing the flares and other emissions on a daily basis, smelling odors, and feeling my throat close up on bad air days. I developed asthma because of the exposure I grew up with as a child living in the region,” he said. “My story is one of many residents from LA to Riverside, and it needs to end.”

“For more than 20 years, the South Coast has failed to meet federal air quality standards for ozone (the “eight-hour ozone standard”). In fact, the South Coast has never met a federal ozone standard,” the suit alleges. The EPA designated the South Coast as nonattainment for the 1997 eight-hour ozone standard on April 15, 2004, and the Clean Air Act requires the adoption of a fee rule within 10 years of such designation. “Thus, SCAQMD was required to have finalized a fee program no later than June 15, 2014,” but “South Coast has yet to adopt a fee rule,” the suit says. In addition, CARB has failed to submit a state implementation plan or SIP to EPA that brings AQMD into compliance.

Regarding Rule 317, Earthjustice attorney Fernando Gaytan explained, “In the early 2000s, and leading up to 2011 when it was adopted, industry was lining [up] to oppose these fees vociferously.” As a result, “What you ended up having is just a very weak and watered-down rule.”

While Rule 317 assesses fees according to rules in the Clean Air Act, they’re never collected.

“Large stationary sources do not pay any fees under this structure. The AQMD just uses the data from these sources to calculate how much fee obligation there is,” Earthjustice attorney Adrian Martinez explained. “Instead of charging large stationary sources a fee, the South Coast takes credits for programs that have already been adopted. For example, the South Coast has taken credit for truck replacements that flowed to South Coast from Gov. Schwarzenegger’s Proposition 1B.”

Prop 1B is just one of 11 funding sources drawn on in 2018, for a total of $92,303,015. This contrasts with the total of $42,644,020 of fees assessed, but not collected. The only significance the fees have is to set a floor for the level of spending from totally unrelated sources. As a result, Martinez noted, “There is also zero incentive for these stationary sources to reduce their emissions because they pay $0 in fees.”

“Despite deep pockets for polluters, SCAQMD’s insufficient fee program for the one-hour ozone standard and the lack of a fee program for the eight-hour ozone standard amounts to no penalty and, in its place, a paper exercise to provide the veneer of a penalty,” the petition to the EPA said. “As a result, SCAQMD’s practices violate the CAA, as well as EPA’s implementing regulations, and thus fail to protect public health.”