[Senate Hearing 106-966]
[From the U.S. Government Publishing Office]
S. Hrg. 106-966
CLEAN AIR ACT: STATE REAUTHORIZATION ISSUES
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CLEAN AIR, WETLANDS,
PRIVATE PROPERTY, AND NUCLEAR SAFETY
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 27, 2000
NOVEMBER 13, 2000--OKLAHOMA CITY, OK
__________
Printed for the use of the Committee on Environment and Public Works
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WASHINGTON : 2002
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SIXTH CONGRESS
second session
ROBERT SMITH, New Hampshire, Chairman
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma DANIEL PATRICK MOYNIHAN, New York
CRAIG THOMAS, Wyoming FRANK R. LAUTENBERG, New Jersey
CHRISTOPHER S. BOND, Missouri HARRY REID, Nevada
GEORGE V. VOINOVICH, Ohio BOB GRAHAM, Florida
MICHAEL D. CRAPO, Idaho JOSEPH I. LIEBERMAN, Connecticut
ROBERT F. BENNETT, Utah BARBARA BOXER, California
KAY BAILEY HUTCHISON, Texas RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island
Dave Conover, Staff Director
J. Thomas Sliter, Minority Staff Director
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Subcommittee on Clean Air, Wetlands, Private Property, and Nuclear
Safety
JAMES M. INHOFE, Oklahoma, Chairman
GEORGE V. VOINOVICH, Ohio BOB GRAHAM, Florida
ROBERT F. BENNETT, Utah JOSEPH I. LIEBERMAN, Connecticut
KAY BAILEY HUTCHISON, Texas BARBARA BOXER, California
(ii)
C O N T E N T S
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Page
SEPTEMBER 27, 2000
OPENING STATEMENTS
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 1
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 9
Statement submitted following the hearing.................... 11
Thomas, Hon. Craig, U.s. Senator from the State of Wyoming....... 2
Voinovich, Hon. George V., U.S. Senator from the State of Ohio... 7
WITNESSES
Colburn, Kenneth, director, Air Resources Division, New Hampshire
Department of Environmental Services........................... 16
Prepared statement........................................... 137
Hemmer, Dennis, director, Wyoming Department of Environmental
Quality........................................................ 12
Prepared statement........................................... 127
Responses to additional questions from:
Senator Baucus........................................... 129
Senator Inhofe........................................... 128
Senator Voinovich........................................ 128
Homrighausen, Hon. Richard P., mayor, city of Dover, OH.......... 34
Prepared statement........................................... 156
Methier, Ronald, Chief, Air Protection Branch, Georgia
Environmental Protection Division.............................. 18
Prepared statement........................................... 144
Responses to additional questions from:
Senator Baucus........................................... 153
Senator Inhofe........................................... 151
Senator Voinovich........................................ 152
Saitas, Jeff, Executive Director, Texas Natural Resources
Conservation Commission........................................ 5
Articles:
Canadian Forest Fires.................................... 121
High Ozone Levels in Texas............................... 79
Letters:
Environmental Protection Agency.......................... 105
Texas Natural Resource Conservation Commission........... 77
Prepared statement........................................... 65
Responses to additional questions from:
Senator Baucus........................................... 69
Senator Inhofe........................................... 66
Senator Voinovich........................................ 67
Studders, Karen A., Commissioner, Minnesota Pollution Control
Agency......................................................... 3
Prepared statement........................................... 43
Responses to additional questions from:
Senator Baucus........................................... 51
Senator Inhofe........................................... 54
Senator Voinovich........................................ 52
Taylor, Zach, Executive Director, Association of Central Oklahoma
Governments, Oklahoma City, OK................................. 39
Prepared statement........................................... 161
Terrill, John, Director, Air Quality Division, Oklahoma
Department of Environmental Quality............................ 14
Prepared statement........................................... 130
Responses to additional questions from:
Senator Baucus........................................... 136
Senator Inhofe........................................... 135
Senator Voinovich........................................ 135
Willhite, Marcia, Assistant Chief of Environmental Health
Lincoln-Lancaster County Department of Health, Lincoln, NE..... 37
Prepared statement........................................... 159
ADDITIONAL MATERIAL
Article, Profiles of Local Clean Air Innovation, NALGEP.......... 164
Letter, National Association of Local Government Environmental
Professionals (NALGEP)......................................... 162
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NOVEMBER 13, 2000--OKLAHOMA CITY, OK
OPENING STATEMENT
Inhofe, James M., U.S. Senator from the State of Oklahoma........ 179
WITNESSES
Coleman, Mark S., director, Oklahoma Department of Environmental
Quality, Oklahoma City, OK..................................... 188
Prepared statement........................................... 214
Mitchell, Hon. Shawn, State Representative, Broomfield, CO....... 184
Prepared statement........................................... 212
Seitz, John S., director, Office of Air Quality Planning and
Standards, Research Triangle Park, North Carolina.............. 181
Prepared statement........................................... 209
Thomas, Jim, director, Technical Analysis Division, Texas Natural
Resources Conservation Commission, Austin, TX.................. 190
Prepared statement........................................... 216
CLEAN AIR ACT: STATE REAUTHORIZATION ISSUES
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WEDNESDAY, SEPTEMBER 27, 2000
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Clean Air, Wetlands, Private Property And
Nuclear Safety,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:15 p.m. in
room 406, Senate Dirksen Building, Hon. James M. Inhofe
(chairman of the subcommittee) presiding.
Present: Senators Inhofe, Thomas, Voinovich, Lautenberg,
and Smith [ex officio].
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. The hearing will come to order. Today is
the third Clean Air Authorization hearing in this Congress.
The first hearing last October addressed the broad policy
issues that we would be dealing with such as cost-benefit
analysis, risk and exposure.
The second hearing was held in May and concentrated on the
effect of multiple regulations addressing the same pollutants
and we looked specifically at the utility industry as an
example.
Today's hearing addresses the role of States and the local
governments in implementing the Clean Air Act. As a former
mayor, I am very sensitive to Federal mandates, to problems
that come with Federal programs, not just the fact that the
cost of this that has to be borne by, in many cases, the States
or the local communities, but also the one-size-fits-all
concept that we are so often faced with.
I have often criticized Federal bureaucrats within
Washington, within the Beltway, for writing regulations without
understanding how they get implemented out in the States. Part
of the problem is the fact that what works in one State or one
region doesn't necessarily work in another.
In the Clean Air Act, Congress decided to give, and this is
1990, give authority to set environmental standards to the EPA
here in Washington, DC and the States were given the role of
implementing the programs through the State Implementation
Process, the SIP process.
Unfortunately, I think the EPA has tried to micromanage the
implementation too much and has not given the States the
flexibility Congress envisioned.
For the purpose of today's hearing, I have two main
questions. From the State and local government point of view,
what aspects of the Clean Air Act are currently working well
and second, what needs to be improved in the Act in order to
add more flexibility.
We often say our States serve as national laboratories to
test new programs and new approaches. I am sure we will hear a
lot of positive feedback today and the coming months which will
help shape the next version of the Clean Air Act.
You know, we said sometime ago that we would start off this
year with having three hearings which we now have had with this
hearing. I think there is no reason we can't get into it
aggressively in the new legislature.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. Jim Inhofe, U.S. Senator from Oklahoma
The subcommittee's first hearing last October addressed broad
policy issues such as cost/benefit, risk, and exposure. The second
hearing was held in May and concentrated on the effect of multiple
regulations addressing the same pollutants, and we looked specifically
at the utility industry as an example.
Today's hearing addresses the role of the States and the local
governments in implementing the Clean Air Act. As a former mayor of a
major metropolitan city, Tulsa, Oklahoma, I have a good understanding
of the partnership between the Federal Government and the local and
State governments. I also understand the problems associated with
implementing Federal mandates, and when I say Federal mandates I don't
just mean the associated costs of the mandates, but the problem of the
``one-size-fits-all'' bias of Federal regulations.
I have often criticized Federal bureaucrats, within the Washington
beltway, for writing regulations without understanding how they get
implemented out in the States. Part of the problem is the fact that
what works in one State or one Region, may not necessarily work in
another.
In the 1990 Clean Air Act, Congress decided to give the authority
to set the environmental standards to the EPA here in Washington, DC,
and the States were given the role of implementing the programs,
through the State Implementation Planning process. Unfortunately, I
think the EPA has tried to micro-manage the implementation too much and
has not given the States the flexibility Congress envisioned.
For the purposes of today's hearing, I have two main questions.
1. From the State and local government point of view, what aspects
of the Clean Air Act are currently working well?
2. What needs to be improved in the Act in order to provide you
more flexibility and responsibility?
We often say our States serve as national laboratories to test new
programs and new approaches. I'm sure we will hear a lot of positive
feedback today, and in the comings months which will help shape the
next version of the Clean Air Act.
Senator Inhofe. Senator Thomas, do you have an opening
statement that you would like to share?
OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE
STATE OF WYOMING
Senator Thomas. Yes, Mr. Chairman. Thank you very much for
the hearing. I think it is important to lay the groundwork for
the reauthorization of the Clean Air Act.
First, of course, I want to welcome Dennis Hemmer who is
here from Wyoming. He is working in environmental quality and I
think he has been a leader in this. I am looking forward to his
testimony.
The issue is, of course, of great importance to everyone.
But in the West, in our State of Wyoming, we have currently
some of the cleanest air that we have, and particularly, of
course, we have lots of resources of coal, natural gas, as well
as wind resources.
So, we are very interested in how this moves and how it
takes place. Since the enactment of the 1990 Clean Air Act, I
think the administration has tried various ways to, of course,
implement stricter standards, among them are ways to include
the State and local governments.
Often we vocalized our opposition to some of these
propositions without much success. So, I think principles of
sound science need to be involved. We need to have a cost-
benefit analysis, environment versus environmental benefits
versus economy.
Business and industry has made great strides and we
encourage that to happen. So, I hope that we can take from
these some ideas as to how to make this program even better and
work even better. Thank you.
Senator Inhofe. Thank you, Senator Thomas.
I, too, want to recognize also we have two witnesses from
Oklahoma here, John Terrill who is the Air Quality director of
our Oklahoma Environmental Quality Department and then there is
Mr. Zach Taylor, executive director of the Association of
Central Oklahoma Governments.
Now, the first panel consists of six people. I have asked
them to be seated at the witness table. The way we have divided
into two panels today is to start with Ms. Karen Studders,
commissioner of the Minnesota Pollution Control Agency; Mr.
Jeff Saitas, executive director of the Texas Natural Resources
Conservation Commission; Mr. Dennis Hemmer, director of the
Wyoming Department of Environmental Quality; Mr. John Terrill,
Air Quality director to the Oklahoma Department of
Environmental Quality; Mr. Kenneth Colburn, director of the Air
Resources Division, New Hampshire Department of Environmental
Services; and Mr. Ron Methier, Air Protection Branch chief of
the Georgia Environmental Protection Division.
I would like to tell you that even though your entire
testimony will be made a part of the record of this community
meeting, since we have two panels and a total of nine
witnesses, we are going to confine your opening remarks to 5
minutes and we will use the light system here.
It appears that we are going to have quite a few members
here today, more than we normally do, even though there are
only two of us here right now, so we will try to confine our
questions to 5 minutes.
Ms. Studders, we would like to start with you. You are
recognized to make your opening statement. Welcome to the
community.
STATEMENT OF KAREN A. STUDDERS, COMMISSIONER, MINNESOTA
POLLUTION CONTROL AGENCY
Ms. Studders. Thank you, Mr. Chairman and members of the
subcommittee. I want to thank you all for the opportunity to
appear before you today.
My remarks reflect a perspective I have gained during my
time as Commissioner of the Minnesota Pollution Control Agency,
as well as my experience as director of Environmental Programs
in a division of a $15 million international energy services
company.
I will focus my oral testimony on two areas. First, what
Minnesota has learned about toxic air pollutants and second,
some ideas on integrating environmental regulation with cost-
effective power generation.
Please refer to my written testimony for comments on what I
believe States need from the Federal Government to carry out
the EPA mandates under the Clean Air Act, specifically more
funding and flexibility.
In your materials there is a picture of what the first air
pollution alert looked like in the State of Minnesota back in
1972. A grimy brown haze choked the Minneapolis skyline and
visibility was bad even at ground zero.
Our agency scrambled to warn people with asthma and heart
disease to stay indoors. In the following years the Clean Air
Act's strong anti-pollution requirements for smokestacks and
cars helped reduce sulfur dioxide and other criteria air
pollutants.
These efforts in Minnesota paid off. We have not had an air
alert since 1987. Today, Minnesota meets all Federal air
quality standards. The Clean Air Act was the tool Minnesota
desperately needed in 1972. In using that tool, we were able to
take a deteriorating air quality situation and turn it around
in less than 20 years.
When the world of air pollution consisted of only six
criteria pollutants, we didn't have problems as serious as
those in cities like Los Angeles or Houston. We were getting
control of the air pollution problem we had.
Also in your materials there is a chart with some
information having to do with criteria pollutants. This figure
shows that levels of all pollutants, except nitrogen dioxide,
have dropped in the past 8 years.
This was achieved at the same time that the vehicle miles
traveled continued to climb and our economy continued to grow.
Indeed, we now know that economic growth and environmental
protection can go hand in hand.
Today we have a different set of problems, one that is more
complex. Minnesota is one of a few States that actively
monitors air toxics in outdoor air. We have a statewide
monitoring network that has measured 75 air toxics in our State
in locations ranging from farms to small towns to big cities.
What we have found is disturbing.
When compared to health benchmarks, 10 air toxics exceeded
thresholds. Many of the air toxics with the highest
concentration are primarily from cars, trucks, buses and other
engines.
Please refer to the executive summary in your materials for
details in our report.
The Federal Government must no longer delay taking action
on air toxics. While the provision for point sources in the
1990 Clean Air Act Amendments have made a difference, much more
must be done about mobile sources of air toxics, both on and
off the road.
We need a real, national air toxic strategy with specific
goals that we can all focus on so that we can improve our air.
The final photo in your packet is a picture of a lake in
northern Minnesota. Hundreds of lakes just like it are
scattered across the region. If you fish there next summer, we
would be obliged to warn you that you cannot safely eat more
than one meal per week of many fish caught in the lake. If you
are a pregnant woman, no more than one meal per month. There is
too much mercury in the fish. The mercury got into the fish
from the water; into the water mostly from mercury deposition
from our air; into our air from mercury-emitting power sources,
like power plants, hundreds, even thousands of miles away.
We have taken significant steps to improve the situation in
Minnesota, reducing our own mercury emissions by over 50
percent. But most of the mercury in our fish comes from sources
outside our borders.
Increasing demand for electric power has brought us face to
face with tough environmental issues. What about mercury and
other toxic emissions from burning coal? What do we do about
ozone transport? What do we do about regional haze?
We need a comprehensive, integrated, national power
generation strategy that regulates multiple pollutants,
including nitrogen oxides, sulfur dioxide, carbon dioxide,
mercury and other toxic pollutants.
The strategy should set national goals and schedules that
allow flexibility for industry on how to meet them. We need a
strategy that once and for all deals with the old grandfathered
power plants.
I flew to Washington today from St. Louis where I
participated in a conference for State environmental, energy
and utility Commissioners on energy and the environment. I will
pass on to you the most important piece of advice I heard
there. If we try to achieve environmental results pollutant by
pollutant, we will hamstring the industry and never achieve
what we want anyway.
Piecemeal programs targeting the power industry have led to
uncertainty and cost inefficiencies. They are like separate
trains heading down separate tracks each carrying a few
passengers to separate destinations.
What we need is one big train on a single track so we can
get everyone on board, all heading to the same place. I am
certain we can develop an approach that balances environmental
needs and reliable energy production.
Amendments to the Clean Air Act must address a
comprehensive approach to the power utility industry.
I thank you and I look forward to your questions.
Senator Inhofe. Thank you, Ms. Studders.
Mr. Saitas.
STATEMENT OF JEFF SAITAS, EXECUTIVE DIRECTOR, TEXAS NATURAL
RESOURCES CONSERVATION COMMISSION
Mr. Saitas. My name is Jeff Saitas. I am the executive
director of the Texas Natural Resource Conservation Commission.
That is the agency in the State that is responsible for a broad
array of environmental programs including those related to air,
water, and waste.
I am pleased to be here today with you. We are going to
talk about really two things. One is an example of how we have
had planning success under the Clean Air Act and the second
part will be with respect to some of the challenges.
As you may know, we are in the process of developing clean
air plans for some of our major metropolitan areas. Last April
we submitted a plan to the Environmental Protection Agency to
clean up the air in the Dallas-Fort Worth metroplex as well as
the Beaumont-Port Arthur area.
I would point to that particular process to be an
indication of a very successful process. In that particular
process we relied very heavily and engaged very intimately with
the local government and the leadership of local government,
particularly the county judges and the mayors of the largest
cities, those of Dallas and in Fort Worth. By engaging them
very early on in the process, they developed a series of
measures that were very effective for them at the local level,
because clearly, if you are going to clean the air you have to
have rules that people will, in fact, follow.
That process led to a plan that was adopted by our
commission and ultimately submitted to the Environmental
Protection Agency and has been recently deemed to be
administratively complete. We look forward to an approval of
that plan.
However, once we adopted that plan we faced a series of
lawsuits. That is the point I want to discuss with you with
respect to implementation problems.
One of the issues that was raised in a number of those
lawsuits had to deal with the concept of Federal preemption.
When I have to deal with developing a plan to clean the air in
a place like Houston, TX, when you look at the solution you
identify the broad array of places where emissions come from.
Now, a big bulk of those are things that I have authority to
regulate. But there is a piece of them that I don't.
But, I have the responsibilities as the State to develop a
plan. If I don't do that and I don't achieve that attainment by
November 15, 2007, then the State is going to suffer the
consequences.
The point I want to make to you is when I go through this
process and propose rules and develop rules to do that, I have
to face a public that tells me, well, what are you going to do
about the aircraft engines? What are you going to do about the
ground support equipment in an airport? What are you going to
do about the construction equipment? What are you going to do
about the ships that steam into the port? What are you going to
do about the locomotive engines? What are you going to do about
the 18-wheelers that come up and down the road?
So, while I am struggling with trying to find strategies
that make sense, that will actually clean the air, there are
certain key things which the public looks to which we drive by
every single day and know they are a big part of the problem,
yet we as a State are preempted from making them be a big part
of the solution.
Now, I am not arguing to this committee that it should be
the role of everyone in the 50 States to be able to have
separate standards for each one of these categories. That is
not what I want to say to you today.
What I do want to say to you today is if we are going to
have a partnership to clean up the air in places like Houston,
TX, we all have to work together which means if my deadline is
2007, November 15, then the Federal Government should pull
their load on exactly the same timeline.
The reductions needed from those categories that I
mentioned should occur on the exact same timeline. That is the
point I want to leave with you because if we don't have that
outcome, the end result is the entities that I do have control
over in the State have to carry more than their fair share and
that is just not right.
With that, I will conclude my comments well ahead of time,
Mr. Chairman.
Senator Inhofe. Thank you, Mr. Saitas.
We have been joined by Senator Voinovich who has been a
great addition to this committee with his background as both
Governor and as a former mayor and by Senator Bob Smith, who is
the chairman of the full committee.
I would ask either one of them starting with Senator
Voinovich, did you have an opening statement you wanted to
make?
Senator Voinovich. Yes, I do, Mr. Chairman.
Senator Inhofe. You are recognized.
OPENING STATEMENT OF HON. GEORGE V. VOINOVICH,
U.S. SENATOR FROM THE STATE OF OHIO
Senator Voinovich. First of all, Mr. Chairman, I want to
thank you for conducting this important hearing this afternoon
on the subject of the Clean Air Reauthorization.
I appreciate the fact that you are holding these hearings
this year in anticipation of reauthorization next year.
When we talk about the Clean Air Act, I think there is a
tendency to think of large, billion dollar companies. Later on
today we are going to have some testimony from a small company
in the State of Ohio. That is a little utility company that
will testify about what they are confronted with.
When I first entered office in 1991, most of Ohio's urban
areas were not attaining the 1-hour ozone standard. By the time
we left, we saw a situation where every area, just like
Minnesota, met the ambient air standards that we have in place
currently.
The real issue, I think, that we are going to have to be
confronted with, Mr. Chairman, is to look at the Clean Air Act
in light of the practical implications of it for the people who
really have to deal with it on an everyday basis and somehow
come to grips with their practical problems and also the
concerns of the environmental organizations that we have in
this country in terms of how do we go about doing this and
making sure that the dollars that we spend really deal with
problems that are out there and that we don't spend dollars
that we don't need to spend.
As you know, Mr. Chairman, one of the things that I have
done is introduce a bill that would amend the Clean Air Act
fundamentally that would give the same provision that is now in
the Safe Drinking Water Act. That would require risk
assessment, cost benefit. It would require good science. It
would require peer review.
Senator Inhofe. I would add that is an excellent bill. I am
joining you on that, cosponsoring it.
Senator Voinovich. The thing is to kind of balance this up
to make sure that what we are doing really makes sense. Now, I
think too often some of you who are on the firing line on the
State and on the local level are confronted with some
unrealistic, impractical things that from a point of view of
cost benefit really don't make sense and result in a loss in
appreciation, I think, by some of our Federal agencies,
particularly the EPA, on occasion, about the practical
ramifications of what it is that you are being asked to do.
So, I think, Mr. Chairman, the challenge will be to balance
all of this up and I think that is going to be a challenge for
all of us and it means that those who are on the firing line
will have to work with the environmental community to try to
come up with something that makes sense for all of us and
protects our economy and also enhances the environment and the
health of our citizens in this country.
Thank you.
Senator Inhofe. Thank you, Senator Voinovich.
[The prepared statement of Senator Voinovich follows:]
Statement of Hon. George V. Voinovich, U.S. Senator from Ohio
Mr. Chairman, I want to thank you for conducting this very
important hearing today on the subject of Clean Air Act
Reauthorization.
I would like to extend a warm welcome to Mayor Homrighausen of
Dover, OH. Mayor Homrighausen testified before this subcommittee
several years ago regarding his concerns with the EPA's new ozone and
particulate matter standards. He and I were concerned that the new
National Ambient Air Quality Standards (NAAQS) for ozone and
particulate matter far outweighed the benefits to public health and the
environment. Hopefully, Mayor Homrighausen, the Supreme Court will
agree with us.
When we talk about the Clean Air Act or electricity generation,
there is a tendency to think about large, billion dollar companies.
People forget about municipalities like Dover, OH, which owns and
operates its own utility plant and provides low-cost energy to its
consumers.
Dover has done its share to help reduce air pollution in Ohio by
installing effective environmental controls. In fact, it was the first
electric utility in the United States to install natural gas co-firing
burners to reduce particulate matter emissions. I welcome you back,
Mayor Homrighausen.
Mr. Chairman, I appreciate the series of Clean Air Act
Reauthorization hearings that you have conducted. I believe that we
need to take proactive steps to provide clean air now and in the
future. Throughout my 33 years of public service, I believe I have
demonstrated a commitment to preserving our environment and the health
and well-being of all Ohioans. When I first entered office as Governor
in 1991, most of Ohios urban areas were not attaining the 1-hour ozone
standard. By the time I left office in 1998, all cities had attained
the 1-hour ozone standard, except one. However, I am proud to say that
now all of Ohio is in attainment of the 1-hour standard.
Overall, the ozone level in Ohio has gone down by 25 percent and in
many urban areas, it has gone down by more than 50 percent in the past
20 years. I am very proud that Ohios urban areas and our citizens
worked together to improve the quality of our air.
When I was Governor of Ohio, the State Legislature made a decision
to require vehicle emission testing. When it became politically
unpopular, they tried to undo it. In fact, I even vetoed a bill in 1997
that would have weakened our emission program, E-Check. This was a
strong action in favor of public health and the environment and I was
surprised that it did not receive strong support from Ohios
environmental advocates.
In addition, while I was Governor I supported a 65 percent
reduction of nitrogen oxide (NOX) emissions from stationary
sources, with a plan for additional reductions if they were necessary
to meet air quality standards. Ironically, EPA's final NOX
rule would require attainment of the 8-hour ozone standard a year later
(2010) than the Midwest and Southern Governors alternative to achieve
the standard in 2009.
When we look to reauthorize the Clean Air Act, we need to make sure
that State and local governments have the flexibility they need to
implement the laws requirements. While national standards are
necessary, there should be adequate flexibility for State and local
governments to meet those standards. The EPA should not be in a
position to mandate cookie-cutter approaches to meeting air quality.
You don't always need a hammer. There are a lot of innovative programs
out there and we need to promote and encourage these types of programs.
For instance, in Ohio, Columbus just implemented a new program
called Project CLEAR, which will involve citizens, businesses, local
governments and other organizations in evaluating and choosing
strategies to improve air quality. The Columbus Health Deapartment,
Mid-Ohio Regional Planning Commission and the Office of Research at the
Ohio State University are involved in this initiative.
In addition, last year Cincinnati was awarded an annual Governors
Award for Outstanding Achievement in Pollution Prevention for its gas
cap replacement program. Through this program, motorists had the
opportunity to voluntarily have their vehicles gas cap tested and
replaced, if necessary, for free. Approximately 23,000 gas caps were
given to vehicle owners in metro area in 1998. This eliminated an
estimated 3.5 tons of hydrocarbon emissions daily, and almost 1,300
tons annually.
And these cities have voluntarily implemented these programs in
order to meet national air quality standards.
These are the types of innovations that we need to continue to
encourage as we reauthorize the Clean Air Act.
However, we also need to do a much better job of ensuring that
regulations are based on sound science and that their costs bear a
reasonable relationship with their benefits. And we need to do a better
job of setting priorities and spending our resources wisely. We need to
ask the question of whether a less costly approach would achieve the
same benefits.
And this is going to be a main topic of discussion as this
subcommittee considers reauthorization of this law.
We need to ensure that Federal agencies, such as the EPA, are
accountable for the decisions they make in promulgating regulations
under the Clean Air Act. They should be required to answer several
simple, but vital questions:
1. What science is needed to help make good decisions?
2. What is the nature of the risk being considered?
3. What are the benefits of the proposed regulation?
4. How much will it cost?
5. And, are there better less burdensome ways to achieve the same
goals?
That is why earlier this year Senator John Breaux and I introduced
the Air Quality Standard Improvement Act, S. 2362, a bill that will
provide a commonsense approach to promulgating regulations under the
Clean Air Act and will increase public health safety and environmental
protection.
I thank the chairman for becoming an original cosponsor of that
bipartisan bill and for agreeing to consider this legislation during
the reauthorization debate. I look forward to todays testimony.
Senator Inhofe. Senator Smith.
OPENING STATEMENT OF HON. BOB SMITH, U.S. SENATOR FROM THE
STATE OF NEW HAMPSHIRE
Senator Smith. Thank you, Mr. Chairman. I will be very
brief. I apologize for interrupting the witnesses and for being
a little bit tardy. I had to chair the Senate, so that was one
of the reasons why I was late.
I want to thank Senator Inhofe for chairing the hearing and
calling attention to this very important issue of the
reauthorization of the Clean Air Act which we are going to be
working on over the next several months.
I certainly want to thank all the witnesses, but
specifically Ken Colburn, the Air Quality director for New
Hampshire. We have worked together for many years. You do a
great job for the State and you are a very valuable resource to
me and to my staff, and I appreciate it, Kenny.
Mr. Colburn. Thank you, Senator.
Senator Smith. I have a couple of points. I think we have
had the Act, which since its inception has initiated a lot of
regulation which has caused problems for some and probably
gotten a lot of positive results as well.
But it has initiated some innovative approaches, I believe,
to environmental management. I think we need to build on some
of the successes and perhaps move away from some of the bad
aspects of that act.
Let me just give two examples and then I will yield back.
The State role: The Clean Air Act was the first to
establish a system that calls on the Federal Government to
establish standards and to allow the States to determine how
best to achieve those standards. I want to expand on that, if
we can, on our reauthorization.
Second, and perhaps even more importantly is the market-
driven reduction standards. If we can move to the market and
gain the reductions in air emissions that we have seen, well,
then maybe we can move away from the end-of-pipe regulation and
put the money on the focus of new innovations.
There is a lot of that going on, relying on the market has
proven, frankly, an unmitigated success. It is my belief that
if we give the market the opportunity, it will move way out
ahead of the regulation at such a rapid pace that regulation,
at least to the extent that we now know it, won't be necessary.
To give you an example, in the CAFE standards which many
pressed us to tighten up, as Senator Inhofe knows, if we can
produce automobiles such as hybrid cars that will produce less
emissions the regulation, in terms of the CAFE standards as we
now know them, goes away.
If we can't and we don't give the market the opportunity to
do it and we don't give them the incentive to do it, then
perhaps it won't happen and we will continue to regulate at the
end of the pipe. That is just one example.
The acid rain program many years ago used a system of
credits that worked fairly well. I don't see any reason why we
can't look at the same approach again. We need to figure out
how to adapt this approach to other programs, look at the
entire issue, all of the air, all of the emissions and begin to
look at how each individual component to this equation can be
dealt with.
I think the resulting requirements that we have had have
been expensive and inefficient and yet, to some degree they
have reduced the air quality. But can we improve on that? That
is the issue.
So, I would like to see us reduce utility emissions in the
country while at the same time allowing our economy to grow and
we can do this, I think, with a balance in the system that
rewards, let us just use the power producers for an example, if
they can produce the greatest amount of power while emitting
the least amount of pollution, then maybe we would be getting
somewhere.
So, it is all very complex and it is not going to be an
easy challenge, Mr. Chairman, but I know you are up to it. I am
looking forward to working with you on it.
Senator Inhofe. Thank you, Senator Smith.
[The prepared statements of Senator Smith follow:]
Statement by Hon. Bob Smith, U.S. Senator from New Hampshire
Good afternoon. I would like to thank Senator Inhofe for continuing
to focus our attention on the important issue of improving the Clean
Air Act.
I would like to thank the witnesses for taking the time to prepare
statements and appear here today. The committee will benefit from your
insight.
I would also like to welcome Ken Colburn, the Air Quality director
from New Hampshire. Ken is doing a terrific job for the people of New
Hampshire, and has been an invaluable resource for my staff.
The Clean Air Act is the most complex environmental statute on the
books.
With it we have made tremendous strides in reducing emissions and
improving air quality.
But the job of protecting air quality requires constant vigilance,
and the Act itself requires regular maintenance as we learn more about
which pollutants are most harmful and what sources need better
controls.
The Act has initiated numerous innovative approaches to
environmental management. We need to build on these successes as we try
to determine the next step for the Act.
For Example:
State Role.--The Clean Air Act was the first to establish a system
that calls on the Federal Government to establish standards, but allow
the States to determine how best to achieve those standards. We need to
expand on this flexibility.
Market Driven Reductions.--The most daring experiment of the 1990
Amendments was to include an emissions trading program in the Acid Rain
Program. Relying on the market has proven an unmitigated success.
Actual costs for implementation and compliance are a mere fraction of
the lowest 1990 estimates for the program. Emission reductions have
come faster and been deeper than required by law. Most importantly, the
Acid Rain Program has an unprecedented 100 percent compliance record.
Clearly, we need to figure out how to adapt this approach to other
programs.
Lastly, I would like to point out that we need to build a better
system for addressing emissions from the utility sector.
Outside of the Acid Rain controls, the few emission reductions we
have achieved under current law for this sector have come only after
countless rounds of regulation and litigation.
The resulting requirements are expensive and inefficient.
We need to reduce utility emissions in this country, but we want
our economy to continue to grow.
Technology has made our economy more energy-intensive as more homes
and offices acquire more electronic devices. The increasing power
demand must be met at the same time as we drive overall utility
emissions down.
The only way to manage this balance without damaging the economy is
to build a system that rewards the power producers that can produce the
greatest amount of power while emitting the least pollution.
The current law does not do this, and I believe it is the greatest
challenge of reauthorization.
______
Additional Statement of Hon. Bob Smith, U.S. Senator from New
Hampshire, Regarding Recent Trends in Texas Environmental Performance
Measures
During the questioning of Mr. Saitis' panel, Senator Lautenberg
raised a number of questions regarding Texas' overall environmental
performance. Senator Lautenberg''s indictment of the Texas record,
specifically the record of Governor George W. Bush's administration,
came at the very end of the panel's questioning, and I was not able to
follow up with the witness. I will ask questions of the witness for the
record. However, in the interest of ensuring a fair and complete
record, I performed some research that should be made part of the
record.
Texas, the second largest State in area and population, is
naturally among the leading states in terms of overall emissions of
pollutants. That is not surprising. I imagine Governor Davis of
California is among the very few Governors who would understand the
sheer, magnitude and complexity of environmental problems, and
especially clean air problems, that Texas faces. However, no one was
unfairly bashing California in our hearing.
In the large states especially, it is important to look at trends,
and not just at the overall numbers. In Texas, under the leadership of
Governor Bush, the trends are very encouraging. Despite the assertions,
Texas is no longer the ``most polluted state'' in the nation, even as
measured by the imperfect EPA Toxic Release Inventory. According to the
EPA TRI data, Texas ranked either first of second in the Nation for
total emissions to air, water and land from 1988, when the EPA started
collecting TRI data, through 1994. What has happened under Governor
Bush? Texas dropped from first place in 1995 to fifth place in 1998.
From 1995 through 1998, no State reduced its toxic emissions by more
than the 43 million pounds that Texas did.
The topic of the hearing was the Clean Air Act, so it is fair to
look at Texas' record specifically on that important statute. The fact
is that Texas has reduced emissions of every criteria pollutant over
the past few years, even when the national emissions for some
pollutants increased. Between 1995 and 1997, Texas' emissions of
NOX decreased by 23.6 percent while the national emissions
increased by 8.2 percent. Texas' emissions of VOCs declined by 43.2
percent while national emissions fell by only 16 percent. Texas'
emissions of CO fell by 12 percent while the national emissions only
fell by 5.1 percent. Texas' emissions of SO dropped by 17.1 percent
while the national emissions increased by 11.2 percent. The only
pollutant that Texas did not exceed the national trend was PM.
Emissions of PM in Texas diminished by 11.9 percent while the national
emissions fell by 21.2 percent.
I would like to highlight one specific innovative program that
holds special interest to me.
In 1999, Texas established a voluntary emissions reduction program
similar to the multi-pollutant bill--the so-called ``Bubble Bill''--
that I have been working on and plan to introduce next session. Under
the Texas program, the oldest, dirtiest power plants, commonly referred
to as ``grandfathered plants,'' are required to substantially reduce
NOX and SO2. Though compliance is not required
until 2003, Texas has already issued 133 permits to the grandfathered
plants. These permits have resulted in emissions reductions of
approximately 25,000 tons.
Facts are difficult things. The facts are that Governor Bush
inherited a State with difficult pollution problems, and that the
trends are in fact quite good. In gross terms, Texas has reduced its
emissions more than any other state. In relative terms, Texas is fair
exceeding national averages for reductions in four of five criteria air
pollutants. The slander that Texas is the ``most polluted State in the
union'' just doesn't stand up. The facts that show Texas, under
Governor Bush, is getting cleaner, in absolute and relative terms,
every day.
Senator Inhofe. From Wyoming, Mr. Hemmer.
STATEMENT OF DENNIS HEMMER, DIRECTOR, WYOMING DEPARTMENT OF
ENVIRONMENTAL QUALITY
Mr. Hemmer. Thank you, Mr. Chairman and members of the
committee. My name is Dennis Hemmer. I am the director of the
Wyoming Department of Environmental Quality. I want to thank
you for this opportunity to address you.
My comments today will primarily focus on stationery
sources with fewer than 500,000 people in Wyoming, I don't have
much experience with mobile sources or many of the urban issues
that some of my colleagues do. We also have very good
atmospheric ventilation. Our clean air is often passing by at
about 30 miles an hour.
I think if you look at the results we have achieved in this
country, the Clean Air Act has been very effective. It has
focused on and addressed issues. However, since the original
passage of the Clean Air Act, each reauthorization has added
another layer to the Act.
While each was effective in addressing the issues of the
day, the layers do not necessarily compliment each other, nor
do they create, some of them actually create disincentives for
emission reductions and penalize facilities that voluntarily
make early reductions.
I believe it is time to start with a fresh sheet of paper.
With respect to stationery sources, we need to start fresh and
create a system that provides incentives for reductions.
The first priority must be human health. The current health
standards, essentially the national ambient air quality
standards, should be retained. It is paramount that we protect
the health of those around the facilities and our general
population.
I would ask that more emphasis be placed on good science
and data related to what is needed to protect public health.
One only has to look back at the debate over the proposed fine
particulate and ozone standards to see the need for better
science and better data.
Once we have protected public health, I believe the other
goals related to stationery sources encompassed by the Clean
Air Act are best served by a market-based system. I believe a
properly constructed market system could provide incentives for
emission reductions and incentives for the development of
technology to reduce emissions.
Before I proceed, I have to give credit. Many of the
particulars I am speaking of were developed in a paper by Mr.
Bob Newfeldt. For a market system to work a market must be
created by some sort of limit similar to what was done for
sulfur dioxide in the 1990 Clean Air Act Amendments.
The limit usually takes the form of a cap or benchmark
below which emissions must be maintained. Benchmarks would need
to be set for each pollutant depending on the goal you wish to
achieve.
Benchmarks would need to be periodically reviewed. If the
results desired are not being achieved, the benchmark would
need to be lowered. Ideally, the benchmark would create a
situation that achieves the goals and creates an economy that
stimulates the development of new technology to accommodate
growth.
However, I think we need to be realistic. The benchmark may
need to be raised if it is so low that it is determined that it
cannot accommodate society.
As much as we would like to see air quality gains similar
to those made over the last 30 years, we need to recognize that
the population is expanding and today's technology demands
materials and power.
I want you to remember these are the goals beyond health. I
am not suggesting we sacrifice health for growth. Setting the
benchmarks would be a Solomon-like task. If we embroil them in
the morass associated with today's rulemaking, like today's
rules needed adjustments, it will only happen through
litigation.
A system is needed that allows adjustments to balance
reductions with societal needs. The Federal Reserve could serve
as a model. The parameters for the benchmarks must be clearly
articulated and be closely tied to an intelligent national
energy policy.
I am concerned today that some decisions are being made to
reflect agendas not articulated in the Act. I also believe that
we are dictating national energy policy through decisions made
under the Clean Air Act. While the two must compliment each
other, energy policy needs to be thoughtfully debated in its
own right.
If a market-based system is used, the initial allocation of
emissions is again a taxing task. Most systems use historic
emissions as the base line. Unfortunately, this system
penalizes the cleaner facility and rewards dirty facilities.
Basing the allocations on a market-based value, I would suggest
gross revenue would be a system consistent with market
principles.
I believe there are vast opportunities for such a system.
We would be able to create an environment where emission
reductions can become revenue enhancers, rather than revenue
drains. We can create an environment that makes technology
advances which reduce emissions marketable, where our concern
is visibility as it often is in the West.
There would also be opportunities for inter-pollutant
trading. The light-disrupting properties of a particle of one
species should be able to be related to the light-disrupting
properties of another species. While the trades may not be on a
one-to-one basis, we should be able to equate resource gains.
I am not so naive as to believe that in a market system
everybody will comply because they are good citizens or because
they are making money. It would require that limits allocated
or obtained through the market be contained in an enforceable
permit and that those limits be closely monitored for
compliance.
I also recognize that there would still be categories of
emissions from these facilities, for instance, fugitive
emissions that cannot be accommodated in our market system.
While we have a good law, if we continue to layer new on
old, we will stifle significant opportunity for innovative.
However, if we build on the advances of the last 30 years, take
advantage of today's technology, and mold a system that
addresses today's issues, we can achieve even more without the
rancor and confrontation.
Thank you.
Senator Inhofe. Thank you, Mr. Hemmer.
Now, from my State of Oklahoma, Mr. John Terrill.
STATEMENT OF JOHN TERRILL, DIRECTOR, AIR QUALITY DIVISION,
OKLAHOMA DEPARTMENT OF ENVIRONMENTAL QUALITY
Mr. Terrill. Thank you, Mr. Chairman and members of the
subcommittee. My name is John Terrill. I am the Air Quality
Division director for the Oklahoma Department of Environmental
Quality. I appreciate the opportunity to comment on some of the
changes that you are debating.
My first set of comments has to do with the 8-hour ozone
standard, but it really could apply to any time we change the
national ambient air quality standards.
Let me emphasize that we support the concept of a standard
for ozone that looks at exposure over an 8-hour period. We
believe this form of the standard best represents real world
exposures likely to be experienced by the population most at
risk.
However, we disagree with the level at which the standard
was implemented. It is our belief that any time a standard such
as this is changed and the bar is raised as it clearly has been
in this case, the statute should require clear and
incontrovertible evidence that such a change is necessary.
In addition, once it has been established that a change in
existing standard is going to happen, it should be mandatory
upon the EPA that all guidance necessary to help the States and
local agencies with implementation must be formulated and made
available prior to the beginning of any implementation of that
program.
Ideally, this guidance should be written in cooperation
with the State and local programs or at least there should be
an opportunity for comment before the guidance becomes
effective.
For example, we have never received guidance that outlines
the EPA's position relative to the consequences of
nonattainment under the 8-hour standard as it relates to new
source review transition areas.
The Act itself is specific to the 1-hour standard only. It
has also become quite obvious that the things we understood
about the 1-hour standard do not necessarily apply to the 8-
hour standard.
Voluntary measures that worked well to shave the peaks on
days of concern do not work as well under the 8-hour scenario.
Ozone forecasting under the 8-hour standard is much more
difficult and unpredictable. This is illustrated by the
dramatic increase in the number of ozone alert days that we
have called under the 8-hour standard as opposed to those that
were called when the 1-hour was controlling.
It has also become apparent that the transport of ozone and
ozone precursors on a near-regional basis such as between
neighboring States is very important to both forecasting ozone
and meeting the new standard.
Until we know the effect of national measures such as low-
sulfur gasoline and Tier 2 standards for mobile sources, as
well as regional measures such as implementation of controlled
strategies in areas working to meet attainment with the 1-hour
standard, planning to meet this new standard is problematic at
best.
If there is one word that would summarize our concerns with
the current system, it would be ``consistency or the lack
thereof.'' Consistency in the interpretation of statutes, as
well as the rules and regulations as they apply State to State
and region to region is fundamental to the integrity of any
Federal law. The same is true for consistency in the data bases
that are used for a variety of purposes throughout the State
and Federal system.
A consistent interpretation of statutes, rules and
regulations are vitally important to both the regulators and
the regulated community.
It is important to know that when we obtain an
applicability determination or some other type of rule
determination from the EPA, that we are getting the same
interpretation as that which would be given to another State in
a similar fact situation. It is very damaging to our
credibility and that of the EPA when industry points out that
the same facts and circumstance has resulted in a different
interpretation in a different State or region.
It can also create an unfair competitive advantage for like
industrial facilities operating in different States and
regions. The regulated community deserves to know what the
rules are and that they are being applied the same throughout
the country.
Data base consistency, including the handling of data, who
should have access to that data, and which is also an area that
needs to be addressed.
The vast majority of activities done by the EPA are driven
by the data collected in the State and local programs.
Currently, there is no consistent understanding as to what
these data are useful to determine and what they are not.
Consequently, there is little consistency from State to State
and region to region.
This is especially troublesome when outside parties such as
industrial, environmental, and other special interest groups
attempt to use the data in support of their particular cause.
We believe the EPA should be required to establish the
standards for data to be submitted by States and utilized by
the EPA, yet allow States program flexibility in the design of
their data management systems.
The EPA should also be encouraging the States movement
toward electronic data submittal, ease the paperwork burden on
the regulated community and the State and local agencies. We
would also incur further definition of what and when data are
accessible by the public.
We are supportive and believe in the public's right to have
access to any data that are used to make decisions relative to
air quality programs. However, Congress should statutorily
insist that before any data is made public by any agency, it is
carefully evaluated as to its accuracy and made available for
public viewing only in the context of when it was collected.
That will conclude my comments.
Senator Inhofe. Thank you, Mr. Terrill.
Mr. Colburn.
STATEMENT OF KENNETH COLBURN, DIRECTOR, AIR RESOURCES DIVISION,
NEW HAMPSHIRE DEPARTMENT OF ENVIRONMENTAL SERVICES
Mr. Colburn. Thank you, Mr. Chairman. I am delighted to be
back before the committee. I was down a year or two ago. I want
to thank Mr. Wheeler for the invitation.
Incidentally, when Mr. Hemmer was talking about that 30-
mile an hour wind that is going by, Senator Smith said, yes,
right toward New Hampshire.
I also want to thank Senator Smith for not only his kind
remarks to me, but for offering approximately half of my
speech, of which that would be a part, Senator.
Senator Smith. Repetition is fine.
Mr. Colburn. Thank you very much, Senator. I am delighted
to be here and have the opportunity to share some of my
thoughts regarding Clean Air Act Reauthorization.
Four thoughts come immediately to mind. The first one is,
``Thank God at last.'' The Act is certainly showing its age.
With a decade of hindsight, it is clear that several
fundamental flaws are evident in its structure, its approaches,
and scientific presumptions including, for example, that it
largely ignores the existence of wind. I think the EPA has done
a reasonably good job of implementing the Act, although I do
wish the agency had come to you sooner to fix some of its
problems. Second, great good has resulted from the Act. So, we
must undertake and amend it, don't end its reauthorization
process.
Many new ideas were tried out in the 1990 amendments and
some, like cap and trade programs, proved extraordinarily
successful. Others, however, proved counterproductive and we
need to revise them.
Third, this reauthorization is far too important to public
health, functioning ecosystems and our Nation's global
competitiveness for it to devolve into partisan, political or
regional bickering.
I am a witness to the power of collaboration. I have seen
firsthand the progress that can be made when dedicated leaders
like your chairman, Senator Smith, and New Hampshire's
Democratic Governor, Jeanne Shaheen, work together.
There is broad agreement among the States that the Act
should contain less prescriptive approaches, provide greater
opportunity to innovative responsibly and accountably, and
incorporate new scientific developments much more readily.
There is also broad agreement that progress in reducing air
pollutant emissions, particularly from our transportation and
energy sectors, and the technology development that rises to
meet this challenge, must continue.
Finally, thorough independent analysis of State air
programs has determined that the Federal Government provides
about enough resources to fund half of what it asks us to do.
Contrary to popular belief, title V's ``Polluter Pays''
provisions do not fill this gap. Title V added more work than
it funded. Furthermore, the responsible, accountable regulatory
flexibility that States should have, and which our companies
deserve, is much more costly than traditional one-size-fits-all
command and control regulation.
Simply put, Congress has to get serious about funding clean
air or something has to give.
Air issues are among the most complex and difficult of all
environmental matters, so much so that it is impossible to go
into detail in any single hearing. Nevertheless, having lived
and breathed these issues for the last 6 years, I can and do
confidently represent to you that there are better ways to
conduct air policy, better for the environment, better for the
regulated community and far less costly to administer.
For example, while States generally support requirements
that new facilities install state-of-the-art pollution
controls, this provision of the Act lets ``excellent'' get in
the way of ``good'' by encouraging sources to keep their old
equipment running longer instead of installing new, cleaner
equipment. We can fix this.
I won't repeat the remarks of Karen Studders relative to
multi-pollutant integrated approaches, particularly for the
energy sector, only that we should also add to her list
declining pollutant caps over time.
I am delighted, Mr. Chairman, that your committee has begun
to look at exactly this kind of integrated solution.
By its very proscriptiveness, the Act makes it difficult,
if not impossible, for the EPA to approve innovative new
approaches to pollution reductions. We can fix this by
providing the EPA with the authority and responsibility to
approve non-standard solutions that provide equal or better
environmental benefits.
Requiring sources in similar categories to pay for
emissions, and then taking those revenues and distributing them
back to the sources based on production, would encourage both
lower emissions and higher productivity, along with many
attendant economic and regulatory benefits.
Similarly, if we internalized environmental costs at the
front end, market forces would drive environmental improvement
instead of regulation.
I would call your attention to the last page of the handout
I brought today for an example of this involving industry
averaging.
Too much time and money has been wasted both at the Federal
and State levels arguing about the nature and extent of
transported air pollution. We should perhaps adopt a new
definition of States' responsibility concerning transported
pollution, perhaps by requiring that the air that leaves a
State be as clean or cleaner as the air that entered the State.
We can fix this.
Science is increasingly showing that several pollutants
including ground level ozone and fine particulate matter are
zero threshold pollutants. Unlike traditional dose response
approaches, there is no safe level of exposure. As a result,
traditional approaches to setting and meeting national ambient
air quality standards need revision, and costs should probably
factor much more greatly into this process.
Finally, and perhaps most importantly, there is widespread
recognition that the production and use of energy in all
sectors is the primary cause of most significant air pollution
problems, ozone, mercury deposition, acid rain, haze, toxic air
pollution and climate change.
We need to do everything we can to assist States in making
more efficient use of energy. In doing so, we will also reap
the benefits of faster technology development and greater
international competitiveness. We can address this problem,
too.
I want you to know that you have New Hampshire's
commitment, Mr. Chairman, to assist in any way we can in the
daunting, but doable task of defining, describing, developing
and drafting the ways to fix these problems.
Thank you for this opportunity, Mr. Chairman. I look
forward to assisting in any way I can.
Senator Inhofe. Thank you, Mr. Colburn.
Mr. Methier.
STATEMENT OF RONALD METHIER, CHIEF, AIR PROTECTION BRANCH,
GEORGIA ENVIRONMENTAL PROTECTION DIVISION
Mr. Methier. Good afternoon. My name is Ronald Methier. I
am the chief of the Air Protection Branch of the Georgia
Environmental Protection Division. On behalf of the State of
Georgia I thank you for the opportunity to testify on this very
important issue.
The single most valuable fix that Congress could make in
the Clean Air Act would be to increase the flexibility given to
the States and the EPA to allow the use of solutions that were
not available or recognized when Congress amended the law in
1990.
There are two specific areas where the lack of flexibility
in the law makes it difficult for Georgia to address its air
quality problems in a timely and cost-effective manner.
First, is the requirement to meet the Act's strict
attainment dates, an unachievable goal because these dates
apply to areas like Atlanta which are significantly effected by
the transport of pollutants from other States.
Second, the Act's mandate to use Federal reformulated
gasoline is more hindrance than help in Georgia's struggle to
achieve attainment.
In 1990, the scientific community did not fully understand
how ozone itself was formed, nor did it recognize that because
of the regional weather conditions and heavy vegetation in the
Southeast, nitrogen oxides, or NOX rather than
volatile organic compounds or VOCs are the critical factor in
ozone formation.
In 1990 regulatory agencies had limited ability to quantify
or control the impact of interstate transport of pollutants. As
a result, the EPA was not able to take final action on the
ozone transport problem until September 1998. This final rule,
referred to as the NOX-SIP call, required 22 Eastern
States to revise their State implementation plans to provide
for significant NOx reductions. By court action, the final
implementation date for the NOX-SIP call is now
2004.
Georgia has already adopted regulations to require major
reductions of NOX emissions at least equal to those
in the NOX-SIP call. Georgia projects that Atlanta
will attain the 1-hour standard for ozone in 2004 as soon as
the NOX-SIP call controls reduce NOX
emissions from our neighboring States.
Thus, despite significant efforts, Atlanta was unable to
meet its 1999 attainment deadline. It was not alone. The map
attached to my written testimony still shows more than 20
metropolitan areas still classified as nonattainment for ozone.
Except for those areas ranked ``extreme'' or ``severe''
shown in red on the map, all of these areas have already missed
their statutory attainment dates. The reasons for nonattainment
vary, but Atlanta's experience illustrates problems that are
common to many of these areas.
The EPA has acknowledged that Atlanta's ozone problem is
significantly affected by pollutants transported from upwind
States. In December 1999, the EPA proposed to apply its
extension policy to Atlanta. This policy allows extension of
the attainment date for Atlanta and other areas significantly
affected by interstate ozone transport.
In spite of the reasonableness of the extension policy, it
has come under severe criticism by some who contend that it is
beyond the EPA's authority. Georgia is currently involved in
litigation in which the validity of the extension policy has
been attacked.
Another suit was recently filed seeking to require the EPA
to bump up 15 other areas to the next highest pollution
classification in spite of the EPA's proposal to extend the
attainment dates for some of them.
If Atlanta's attainment date is not extended by the EPA's
extension policy or by legislation, Atlanta will be forced to
bump up from serious to severe. Bumping Atlanta up from serious
to severe would have punitive consequences, the worst of which
is the requirement to use the EPA's reformulated gasoline, also
called RFG.
Because of the way ozone is formed in the Southeast,
Atlanta must reduce more NOx than VOCs to reach attainment.
Georgia, working with the EPA and the oil companies, designed a
special low sulfur fuel currently used in the Atlanta area
which reduces more NOx than RFG does.
If we are forced to use Federal RFG, it will hurt rather
than help us achieve the ozone standard and the incremental
cost to gasoline consumers is about twice as great. As I am
sure you understand, we want to avoid an increase in already
high gas prices if there is no environmental benefit.
We urge you to act expeditiously to address these
unintended consequences of the 1990 amendments. We request that
Congress either extend the attainment dates where the failure
to attain is the result of interstate transport, or make it
clear that the EPA has authority to extend.
Second, we urge you to allow the States more flexibility in
developing regionally relevant control measures such as clean
fuels best suited to their localized air quality problems.
I thank you for giving me the opportunity to tell you about
some of these critical issues that Georgia is facing under the
Clean Air Act.
Senator Inhofe. Thank you, Mr. Methier.
What I would like to do is propound a question and then
start with Ms. Studders and go all the way across and have you
respond very briefly to it.
I think the 1990 amendments to the Act created an important
partnership with the EPA setting the standards and the States
doing the implementation. It sounded good and in some areas it
hasn't worked out that well.
I would like to have each one of you give us an example of
where this partnership has worked well and where it has broken
down.
Ms. Studders. Mr. Chairman, I am speaking on behalf of the
State of Minnesota. I would say where it has worked well would
be two things: The advent of the Federal standards for fuels
and the changes made technologically in engines to help us
reduce the emissions from mobile sources. I would say those two
have worked very well.
On the front where it has not worked as well, several of my
peers have testified here today that we have layers of
permitting right now in the Clean Air Act.
The Clean Air Act Amendments of 1990 added more. Right now
we are incenting the exact opposite behavior that we want to
incent. We are literally incenting old facilities to continue
operating and to continue emitting more and more serious
pollutants like nitrous oxides, sulfur dioxide, and mercury
because the hoops you have to crawl through to build a new
technologically sound facility are huge. So, we are incenting
the exact opposite.
Senator Inhofe. Mr. Saitas.
Mr. Saitas. Mr. Chairman, I would just reiterate what I
mentioned in my comments. To the extent that the EPA has
implemented standards they generally do a very good job of
setting standards that have a significant reduction on
emissions.
Where the shortcoming is, is that timeline for
implementation doesn't match up with the timeline to clean up
the air. So there needs to be some sort of matching of that for
it to be effective and useful to us in meeting the most
significant air quality challenges we have.
Senator Inhofe. Good.
Mr. Hemmer.
Mr. Hemmer. I think that generally we have a good working
relationship with the EPA and so on. Many of the
implementations work well. I think the problem is with the lack
of flexibility.
That comes in two forms. One is prescriptiveness of the
guidance or rules that come out of the EPA in prescribing one
way of doing it. Sometimes the technology isn't there to do it
correctly.
Some of it, frankly, is in the Act in terms of prescribing
certain tools. The one that comes to mind is when you are
dealing with the prevention of significant deterioration, you
require both short-term and long-term monitoring of document
compliance.
In many of our facilities the technology does not exist to
do short term modeling that accurately reflects what is on the
ground.
Senator Inhofe. In Oklahoma, Mr. Terrill?
Mr. Terrill. I think you are aware of the success the Tulsa
area had with the Flexible Attainment Agreement. Tulsa was
redesignated attainment for the 1-hour standard just prior to
the 1990 amendments and then shortly thereafter they had two
violations of the 1-hour standard.
Rather than wait for the Federal Government to act or for
the winds of weather to cause another one, industry, local
citizens, and community leaders got together and created the
Ozone Alert Program and then they worked with the EPA and the
COG and other groups to form the flexible attainment agreement.
That worked very well in keeping Tulsa in attainment with
the 1-hour standard. We have had some problems over Labor Day
weekend the past 3 years where some exceptional events have
caused some problems there, but there are some flexible
benefits to this agreement that should allow us to take care of
that.
I think that is a real success story because it allowed the
community to do things that were specific to them to address
the programs without a lot of preemptive type measures that may
or may not have been effective.
One of the bad things that has come out of this is relative
to the 8-hour standard. It goes back to the lack of guidance. I
think what it really goes back to is I think that the Federal
system has forgotten its role.
I think headquarters has forgotten what they are supposed
to do. I think the regional offices are not allowed to do what
was intended for them. The States are not funded well enough
and were not given the flexibility to do what we are supposed
to do under the Act.
I think if we can address those issues we can go a long way
toward providing a more flexible system and a more predictable
system for our regulated community and cleaner air for our
citizens.
Senator Inhofe. Thank you.
I would like to remind the panel here that the program he
is talking about, the Flexible Attainment Program was a pilot
program that did work well. So, it is nice to her that some of
these experimentations that we do in specific areas such as we
did in Tulsa are successful.
Mr. Colburn.
Mr. Colburn. Thank you, Mr. Chairman. In theory, the SIP
process allows States to assemble an approach that they want to
take. In reality that is not exactly true. There are several
components of SIPs that are required under the Act.
One of those, for example, is tailpipe testing. Our
analysis of tailpipe testing has shown that it focuses
primarily on the VOCs that Mr. Methier mentioned were less
effective in reducing NOX--which is the primary
source of ozone--and further, to implement a program according
to the strict implementation of the statute would cost about
$10 million in New Hampshire to achieve the same environmental
benefit that would cost about $100,000.
The success story here is that the EPA has not required
that we move ahead to implement this foolish program for the
State of New Hampshire.
I would just add, Senator, that there is one other problem
with SIPs in that they reflect unreality. They account for
unreality where modeling and so forth comes up with numbers
that are required to meet SIPs, and they don't adequately
include reality when that is appropriate.
Let me give you an example. Because of mobile source
requirements, motor vehicle requirements in neighboring States,
we have many cleaner vehicles than we actually require in New
Hampshire.
As a result, our air is cleaner, but we can't count those
reductions even though they are in reality occurring, whereas
some other things that may or may not prove true that are
included in our SIPs do count.
Senator Inhofe. Thank you. Mr. Methier.
Mr. Methier. I think one of the best examples of the
partnerships are when the States identify what their needs are
and there are very common needs throughout the country and the
EPA can respond with national standards, whether it is strict
tailpipe standards or strict fuel standards.
Those don't always match up when certain areas may have
their attainment dates like some of these new vehicle standards
and even fuel standards won't help us with Atlanta. But they
will in the future and that is good.
What we see bad is quite often in the development of those
standards, whether it is vehicle testing or anything else, the
EPA does like the one-size-fits-all, have to do it the same in
every region approach.
That is not the right way to do it. We have to reflect the
science of what the problem is. How does the particular air
pollution problem get formed in a particular State or region or
what time of the year even. That, quite often, the EPA has been
very inflexible on.
Senator Inhofe. Very good.
Using the early bird rule, we will go to Senator Thomas.
Senator Thomas. Dennis, in your testimony you said that we
are dictating national energy policy through decisions in clean
air. We had a hearing yesterday with Secretary Richardson. I
tend to agree with you. What would you give as an example of
that?
Mr. Hemmer. Senator Thomas, I think we are in many ways
dictating that the fuel of choice becomes natural gas. Now,
obviously Wyoming has lots of natural gas and lots of coal. But
I question the wisdom if we are dictating it to the point that
natural gas is being used for base load electricity.
It seems to me that there are other fuels that are better
for that. So, It seems to me that before we by air quality
begin dictating what the fuels will be, we also need to think
about what is the wisest use of those respective fuels.
So, I am concerned that we are forcing fuels that may or
may not be in the best long-term interest of the Nation in
terms of energy.
Senator Thomas. Thank you.
Mr. Colburn, you seem to be interested or concerned about
what is moving into your State from other States. If indeed you
measure and control pollution as it comes from whatever it is,
from power plants or exhaust pipes, at the location, how does
that happen?
Why do you feel like you are intimidated by somebody else's
cost?
Mr. Colburn. Thank you, Senator. As you know, the southern
part of New Hampshire is quite proximate to the Boston
metropolitan area. That is where most of my ozone exceedances
occur. They occur in a very predictable pattern which the
science makes clear, but the law does not.
What happens is that the emissions from the metropolitan
Boston commute and power plants and so forth go out over the
Gulf of Maine early in the day. They cook out there in a
uniform fashion to create ozone.
As the land heats up on the same hot day, the air over the
land rises, draws in the ozone that has been created over the
ocean, and triggers the monitors. That process walks up the
coast of New Hampshire and on up through Maine, hour by hour
diminishing ozone concentrations so that you have maybe 130
parts per billion at Rye, NH, 126 at Portland, ME, and 125 at
Acadia.
Senator Thomas. So it is aggravated as it moves? The air is
still complying with the law?
Mr. Colburn. I am sorry, in Maine?
Senator Thomas. Maine or wherever.
Mr. Colburn. They certainly could be. Exceedances are what
are occurring downwind after that cooking of their emissions.
We also get transport from much more distant areas, but it is
distance dependent and the nearer areas are most important.
Another example, Senator, would be Bridgeport, CT, which
doesn't have a prayer of reaching attainment until New York
City is more successful at reducing its emissions.
Senator Thomas. I doubt if you get much from Wyoming. I
have to comment on that.
Mr. Colburn. I certainly do not, Senator.
Senator Thomas. You know, I know how difficult it is, but
in many things you would think what we should do is set
attainment standards that we want to have over the country and
then say to States, I don't care how you get there. All we are
going to measure is what the result is. Is that a workable
thing?
Mr. Colburn. To a large extent setting a performance
standard is a very good idea. What we lack an awful lot of is
that to determine compliance under such an approach, we need to
have a much more aggressive monitoring infrastructure because
until you are able to identify the science behind it, the way
you are going to be able to know it is by physically monitoring
things, measuring the sources and measuring where it goes.
Until you make that investment, then you are not going to
be making the wisest decisions in terms of moving forward to
clean the air.
Mr. Saitas. I will tell you, with respect to the State of
Texas, we actually contract with the university to fly an
airplane and we can fly that airplane upwind of a power plant
stack that is burning coal and we can fly it back and forth and
cut that plume and we can track where it goes.
Senator Thomas. But my point is that you all talk about you
need more flexibility, things are different, why don't we just
say, ``Here is the attainment goal. You could get there however
you choose.''
Ms. Studders. If I may, Mr. Chairman, I think what the
issue becomes is that we need to see national standards.
Senator Thomas. OK, we have got national standards.
Ms. Studders. If you have the national standards, the
dilemma in having the States say, OK, ``you just achieve it;''
From the industry perspective they need to know what that
target is.
A couple of people testified about the idea of the four
pollutants and having a market cap with declining goals in the
future.
If we tell people where they need to go in the future, I
think that is an OK and realistic thing to do from a business
perspective and also from an environmental quality perspective,
because you would know what equipment you would eventually have
to add and it would take care of Mr. Hemmer's concern about
which fuel would have to be used, because then you could just
dictate where we wanted to go.
But I think we run into trouble if we have different States
with different----
Senator Thomas. No, that is not what I said. You have
national standards and then--well, it is here. I understand it.
We always hear, ``Well, we have too many details.'' They
told us how to do it. We need more flexibility and so on. I am
saying set the standards and you all get there however you
choose. However, you want the Feds to pay for it all; don't
you.
Mr. Colburn. Only what you require, Senator. The other
problem, though, with that analogy is that I don't control the
sources in the Boston area. I am perfectly willing to shoulder
that challenge for the sources I do control.
Senator Thomas. I understand. Thank you.
Senator Inhofe. Senator Voinovich.
Senator Voinovich. Thank you, Mr. Chairman.
Mr. Hemmer and Senator Thomas, I was just thinking here, it
was almost 31 years ago that I went out to Cheyenne, WY as the
vice chairman of the Ohio Environment and Natural Resources
Committee and the father of our Environmental Protection Agency
to talk to Wyoming legislators about the importance of clean
air and water, not to sacrifice your environment for the
economy.
It is hard to just think of all those years that have gone
by. I also couldn't help but think--and you did a great job
because it is working.
Senator Thomas. Yes, it has.
Senator Voinovich. And I comment about the fact that if it
wasn't for Congress's passing in 1959 the Air Pollution Control
Act, where would we be today as a country? I think so often we
get together at these hearings and we just think about the
problems that we have.
But I don't think we celebrate enough the progress that we
have made in this country in terms of cleaning up our air and
water.
The question I would like to ask of all the panelists is
this: As you know, the new ambient air standards are now in the
Supreme Court of the United States, the proposed ambient air
standards for ozone and for particulate matter.
In the event that the Court overturns the District Court
and rules that those ambient air standards are applicable, what
impact will those new standards have on your respective States
and if they do go into effect, would you be requesting some
more flexibility in terms of trying to achieve those standards?
We will start out with whoever wants to volunteer. Ms.
Studders.
Ms. Studders. I am thinking. Minnesota is currently now in
attainment. The issue I think we are going to have is two-fold.
Down the road, depending on how many more vehicles continue
driving more and more miles, until we get into the rub with the
ozone standard, and we are a part of the country that is
growing. More and more people are driving.
The second area that is going to play into it is our power
plants, given that they create 30 to 70 percent of emissions of
the big pollutants.
Short term, I think we are going to be OK. By ``short
term'' I mean probably 5 years. Beyond that, I would need some
data to help support it. But I think we would be running into
some problems.
Mr. Saitas. With respect to Texas, if the 8-hour standards
are held to be enforceable by the U.S. Supreme Court, then 70
percent of our population would be living in an area that
didn't meet that standard.
Senator Voinovich. Seventy percent would what?
Mr. Saitas. Seventy percent of the population in the State
of Texas would be living in an area that didn't meet that
standard.
Senator Voinovich. Does not meet the 8-hour standard?
Mr. Saitas. Yes, sir.
Mr. Hemmer. Mr. Chairman, our initial evaluation was that
while we might have some localized facility impacts with the
fine particulates standard, we would have to do a little more
work on it.
Basically, we would not be impacted to any significant
degree by the fine particulate and we have the luxury of not
having an ozone issue, so our analysis shows that we would have
no impact there.
I think the key point though in the whole thing, and it
goes back, as you mentioned, to working on the Safe Drinking
Water Act, it is getting back into some cost balance that cold
be put in there.
As you will recall, that was a real ticklish thing. That
was finding the correct language that people could accept
there.
Mr. Terrill. In Oklahoma we would immediately go in
nonattainment in the Tulsa area. If the EPA does what they have
told me they will do in Oklahoma City, we can take the last 3
years' worth of data and average out, although if you take the
first 3 years and just look at that, they would be
nonattainment.
So, it will be interesting to see what happens if they do
what they said they would do and take the last 3 or the best 3
years worth of data which is the most recent.
Basically, we are so close in so many areas that it is
going to be a year-to-year struggle until a lot of the national
measures go into effect.
I think going back to the question that was asked
previously, I think that one of the things that the EPA has
done that I don't think if it was an intended consequence, but
it may have some real relevance in trying to meet some of these
standards are the regional planning bodies that came out of the
Regional Haze Rule.
I really think that that is the way that air pollution
control is going to be looked at in the future, looking at it
on a regional basis, because we have never said that we didn't
affect our neighbor.
There is no doubt that emissions from Oklahoma City and
Tulsa affect Kansas on some days, Arkansas on some days, Texas
on some days. We would argue about the extent of that, but near
transport happens.
It is amazing to me the things that they are doing in Texas
to try to address their problem. I don't see how they got some
of the measures passed that they did, but things they are going
to do there is going to help us address this 8-hour problem.
I think working on a regional basis, which I really believe
these regional planning bodies should have the flexibility to
look at other pollutants besides regional haze because they are
all tied together.
It doesn't make a lot of sense to me to look at just one
area when we can cost-effectively look at a lot of areas and
working together through that process, I think, will work.
Mr. Colburn. Senator, the citizens of New Hampshire, as a
result of a cold, rainy summer, enjoy air quality that either
meets or very nearly meets the 8-hour standard.
I would echo the comments of Mr. Terrill. The national
measures that the EPA has implemented but which haven't yet
taken effect, the SIP call, vehicle controls, and so forth,
should reduce the pollution coming at us enough to ensure that
we do remain in attainment.
I don't think that we would be coming back to you
requesting any additional flexibility than we have already
asked today.
Mr. Methier. In Georgia the ozone standard would have an
impact on more of our cities. What I am most concerned with is
the particulate matter standard. At this point, every single
monitor that we operate indicates that it would violate this
new standard.
So, we would have widespread State nonattainment problems.
What concerns me is that I see that a lot in the Southeast,
more than in other parts of the country. We may have a similar
southeastern or regional problem with this kind of pollutant
like we have with ozone.
With the way the law is constructed right now, there might
not be the flexibility for our region to really plan for what
is needed.
Another possible problem is that the way the Clean Air Act
is constructed and the way this monitoring data is being
collected and when areas may actually be designated, we may
have overlapping deadlines which may not allow us to really do
the integrated kind of planning that you have heard some of the
other panelists talk about.
A lot of the same things that cause ozone cause fine
particulate matter and cause regional haze. If we can lay out a
timeline to address all of those problems at once, that would
be much more cost effective.
Senator Voinovich. Mr. Chairman, I would just make one
other comment. It is interesting that when we set the 2.5
standard for particulate matter, at the time they set it they
weren't sure whether or not it would really make a difference.
In other words, we had the standard of 10 which is the
current standard. We have spent, I think, $185 million already
setting up these testing--what do they call them? Monitors?
Mr. Methier. The monitors around. One thing that this
committee could look at, Mr. Chairman, is what is the result of
all that monitoring and was the original 2.5 realistic in terms
of what these monitors are picking up in terms of the impact it
is having on the environment and public health.
So, it might be something you might go back and revisit
after we have more information. But it is interesting that they
put the standard in effect and at the same time asked Congress
for $24 million to start doing the research to find out whether
or not the new standard was going to make a difference in terms
of the environment and public health.
Senator Inhofe. Senator Smith.
Senator Smith. Thank you, Mr. Chairman.
As I was listening to each of you, I notice we have
Minnesota, Texas, Wyoming, Oklahoma, New Hampshire, and Georgia
here. So, we will give you guys a room and you can just lock
yourselves in there, come up with a solution and give it to us
and we will pass the law. Do you think you could do that?
Mr. Saitas. We could try.
Ms. Studders. Should we say we are up to the challenge?
Senator Smith. You might do well.
Mr. Saitas. Will you promise that?
Senator Smith. Promise what? I will promise I will lock you
in the room if you promise you will come up with the solutions.
All kidding aside, you have coal producers. You have
natural gas. You have some utilities that are doing a better
job than others in terms of emission controls. You have
nonattainment versus attainment. You have all these problems
all in varying degrees around the country. Clearly, there is
not one State answer.
I think, Mr. Colburn, you brought it up that we can't be in
attainment, no matter what we do, because of another State's
emissions.
So, it clearly is going to take a national plan. It is
going to take something that we all can put together that
probably is not going to make everybody happy.
You won't get everything you want, but it is going to have
to take a solution. You know, anyone of us can do the numbers.
I don't care what State you are from. If it is 49 to 1, you are
going to lose.
In the case of New England, there are a lot more Senators
from States other than New England than there are Senators from
New England, and that includes Congressmen. So, clearly you
can't win in any region if you go it alone.
So, I think I have come to that conclusion. We need to look
at a way, and I think Senator Thomas alluded to it, you look at
wherever that line may be and then work it out in a way that we
can all agree to come up with a solution for that.
Let me ask you this question and anybody can respond to it
or everybody, if you would like. Is it possible for us to come
to that kind of agreement, a basic agreement which basically
is--call it a bubble, call it whatever you want--credits
whatever you want where some people are going to get a little
forbearance and others are not.
But can we come to an agreement, in your view, that would
get us to a reasonable level of emissions that we can gradually
ratchet down.
A, can we come to that agreement, and B, if we can, give me
some idea what you think it might be.
If anybody wants to tackle that, go ahead, otherwise I am
going to lock you in the room.
Mr. Colburn. Senator, I will start. I appreciate that you
come close to what I think is one of the essential policy
dilemmas that faces the Congress in Clean Air Act
reauthorization.
That is the conflict between a least cost solution which
means that perhaps controls in the less-populated areas of
Wyoming are unnecessary because there are not a whole lot of
emissions there as they are in, say, New York City, versus what
is commonly viewed to be a fair solution of applying the same
level of controls to all sources throughout the country.
The question of fairness versus least cost, both of which
are admirable and neither of which can be done together, will
present a public policy problem and I think only the Congress
can resolve it.
Within that caveat though, I do believe that it is possible
to come to a solution. I think there are some indications
already in front of this committee from the utility community
that they would agree on a multiple pollutant, bubble kind of
approach.
I think the same could be achieved in other sectors of our
economy. I guess what I am most optimistic about is while we
often think in terms of cost and benefit, there is an essential
component left out typically.
It is that the technology that evolves to meet the
environmental reduction is marketable throughout the rest of
the world. In New Hampshire, even though we have high energy
costs--and we don't want to see them higher--our comparative
advantage as a State relates to our quality of environment and
our quality of life, not how much can we ratcheted down
individual costs for environmental controls.
I think there are huge technology benefits to this Nation
and its competitiveness by developing the controls to solve
these problems.
Senator Smith. Is it possible to make the transition, the
leap, if you will, from the historical pattern that we have
been dealing with which, yes, has gotten results, end of pipe,
but has not really focused on the innovation and new
technology.
Can we make that leap to get to new technology, perhaps
revenue enhancers? Can we make that leap? Is that doable? I
mean you all represent different States with different
attainment and nonattainment problems. So it would be good to
see if we get one answer here.
That might be a good start. Does anybody want to start? Ms.
Studders, Karen?
Ms. Studders. Yes. Mr. Chairman and Senator Smith, having
just returned from St. Louis, I need to share with the
committee here that we had energy regulators and environmental
regulators together for a couple of days. We did our Energy 101
and Environmental 101.
If I walked away with anything, I walked away with the
understanding that we are a very electrified country and we are
using electricity in great amounts and that we have some needs
for future plants to provide that electricity.
From the industry perspective, they need to know what the
standards are that they need to meet. I think the time is right
that we could come up with some national numbers, knowing that
we would have a market cap that would decline over time because
we have the energy they need there. We were talking about it at
the table.
In fairness to the developers of the plants, they need to
know 10 years, 20 years, 30 years, and the life of that plant,
what is going to be expected of them.
I think we would be in a much better situation than we
currently are right now, both from an energy perspective and an
environmental one.
I also will share with this committee that some of what
impacts air quality is not just how we have each developed in
our respective regions of the country, but also our geography.
The ocean and the mountains play very heavily into how air
quality is dispersed both around the United States and impacts
how quickly we get the air quality from other countries.
The importance would be, most of our players are national,
if not international. If we had those caps nationally, I think
we would be in a much better position than we are now. I think
we could come to some agreement.
Senator Smith. My time has expired.
Would anybody disagree with that?
Senator Inhofe. Why don't we ask, Senator Smith, and the
rest of them could respond to that for the record, in writing,
if they so desire because I am going to be making a similar
request in a minute.
Mr. Hemmer. I was going to respond to that question. I
don't know what the bubbles would look like. I think we can do
the bubbles. Obviously, some of us in the West were primarily
worried about visibility. Other areas are worried about other
thing.
I think the pollutants may vary. We may have to shape those
bubbles differently. I think the trick is to somehow provide an
incentive to make sure that you can accommodate the growth that
is going to happen in those areas with the gains that you are
looking for.
My pitch would be that to do that somehow we need to get
into a market-based system that provides an incentive for the
reductions to where that reduction becomes an asset.
Senator Inhofe. Senator Lautenberg.
Senator Lautenberg. Thank you very much, Mr. Chairman. I
thank the members of the panel here for coming from fairly
significant distances to be with us today. The distance,
however, in the room might be more of a travail than the
distances in the geography.
I come from New Jersey. I wouldn't say I thank each of you
for contributing to our pollution problems, but there is a
significant amount of sharing. We recognize that.
Mr. Colburn talked about what happens as a result of
Boston's emissions in New Hampshire. I know New Hampshire, not
very well, but I have been up there in the mountains and
things, especially when I was younger.
Besides, the chairman of the full committee is from New
Hampshire. So we all did a primer on New Hampshire to make sure
that we understand what the problems are.
I will tell you though, your Senator was born in New
Jersey, just in case you didn't know that. So, you can take the
fellow out of New Jersey, but you can't take New Jersey out of
the fellow.
One of the things that I hear threaded through this
discussion is, well, questions about whether or not we do it
regionally and what can States do individually.
I think that if everyone has a standard to meet within
their own State's borders that we could ultimately take care of
the regional problem.
The question is: What kind of cooperation can we get?
Mr. Saitas, I am sorry I wasn't here to hear your
testimony, but I was very interested. You have an energetic
State with a large stake in how much energy can be produced
there, oil and so forth.
It has been noted considerably in the last few days, the
city of Houston won a distinction long held by Los Angeles, and
that is they are the smoggiest city in the country. This calls
for some significant action because there is a public health
challenge here.
It is my understanding and please disagree if my statistics
are wrong, but I have read that Houston's own studies find that
about 430 residents die prematurely each year from air
pollution.
I think statewide, Texas air pollution can be blamed for
over 2,600 premature deaths per year. I give it the attribution
of the Environmental Defense Fund. You can argue, perhaps, but
it is a fairly significant number, absolutely.
Since past approaches seem to have failed, is it time for
Texas to adopt a standard much like California uses to fight
air pollution?
Mr. Saitas. Thank you, Senator. I would offer, first of
all, that we do have a problem in Houston, TX. I have lived
there. I have family there. My wife has family there. There are
times that I can drive in on some days and you can't see the
skyline. So we have to fix that, and we are going to fix that.
I would also offer with respect to the studies, there was a
substantial study that I think was done by the city of Houston,
and I don't know if that is the one that you are referring to.
Regardless if the number is 100 or 10 or 1, it doesn't
matter. The fact of the matter is that the air quality there
doesn't meet the standard. There are people being affected and
it has to be fixed, first and foremost.
What I said earlier in my opening comments I will repeat
again now. To clean up that air is going to take the joint
efforts of local, State and Federal.
The main issue that we have, and it is a major stumbling
block to try to clean up Houston's air, is the issue of Federal
preemption.
We don't have the ability as a State to require reductions
from very key and very significant emission sources.
I will repeat them again since you weren't here: Aircraft
engines, ground support equipment, railroad engines, ships, 18-
wheelers, construction equipment. All of them, when you look at
them collectively, are huge.
Senator Lautenberg. Automobiles as well.
Mr. Saitas. Yes. For us to be able to clean up Houston's
air, we must have significant reductions from those categories
on the same timeline which is November 15, 2007, if we are
going to clean up the air.
That is the biggest challenge we have right now because we,
as a State, are required to meet that deadline. However, the
rules to force reductions in those categories aren't required
to be on the same timeline, in fact, they are not. Some of them
haven't even been contemplated yet.
So, any assistance you can bring to bear to make that
happen would be greatly appreciated by us in Houston.
Senator Lautenberg. Well, a large part of the debate in
this room centers around how much Federal intervention we have
with various problems, particularly on the environmental side,
more often on the environmental side than any other.
Houston was a favorite business place of mine. The company
is called ADP, the company I helped start and run until I came
here. It was in Houston. We have a very active location there.
It is a terrific place to do business. I knew the former mayor,
Bob Lanier, very well.
So, while I am certainly not an expert on Houston, the
problem, as you agree, has to be solved. Therefore, wouldn't
you advocate a more aggressive Federal intervention? Each of
the States, perhaps the Western most don't see it as much as we
do in the East or in the center of the country. But it has a
degree of pollution coming from other places.
So, wouldn't it be appropriate for the Federal Government
to set the standards and make sure they are enforced, offer
whatever is necessary to get the job done.
I mean it is quite a sorry thing to see a State like Texas
wind up, I think, the 49th most polluted State in the country.
Considering the number of lives lost early, it would be almost
an ideal setting for us to get on with the task of taking care
of our people and the quality of the air. That is what this
meeting is about.
So, wouldn't it make sense for a more aggressive posture?
Mr. Saitas. I would beg to differ, Senator, that it
requires more aggressive intervention. But let me read to you
one sentence out of the comment letter that we received from
the EPA yesterday. It was the 25th. That was 2 days ago.
It talks about emission reductions. It says,
Based on the Engine Manufacturers Association of America
versus the EPA in the D.C. Circuit Court in 1996, it held that
State regulation of nonroad engines is preempted by the Clean
Air Act, unless it is a use restriction.
So for me to be able to reduce emissions from construction
equipment and by the way, when I take my kids to school in the
morning, my son will see a backhoe that is on the corner and he
will watch it billow smoke, and he will say, ``What are you
going to do about that?'' My answer is: ``Well, I can't do
anything.''
Senator Lautenberg. You can drop him off at school and get
out of there.
Mr. Saitas. The Federal Government tells me the only thing
I can do is a use restriction. Do you know what that means?
That means I just move it in the course of the day. Because of
the way ozone is created, you can't use it from the morning
hours. You can do construction in the afternoon.
Now, think of the social consequences of that. Think of the
business consequences. The end result of that suggestion is
that there is not a single pound of pollutant coming out of the
air. It is still going to be emitted, but at different parts of
the day.
So, what we need more than anything else in terms of
Federal intervention is for them to carry their load. They need
to do it on the same timeline. So, anything you can do to make
them carry their load on the timeline would be greatly
appreciated.
Senator Lautenberg. Just 1 minute, Mr. Chairman.
Senator Inhofe. OK.
Senator Lautenberg. Is it OK?
Senator Inhofe. No, not really. You go right ahead. Nine
minutes instead of five, so I'll give you one more.
Senator Lautenberg. I appreciate the generosity.
The question arises for me. I don't want to disrupt the
social or the economic structure of Texas. That is not my
mission. My mission as it has always been is to try to clean up
the environment because all of us with children or
grandchildren all know what the consequences could be as a
result.
But I made a mistake when I said before that Texas was 49th
in the quality of the environment. It is 49th in spending on
cleaning the environment.
Well, to me it looks like that there is a place there that
a difference could be made within the State itself with perhaps
less disruption of the functioning of the society.
Mr. Saitas. Senator, we spent $350 to $400 million a year
in the State of Texas on environmental programs. We have 3,000
employees. I would say that that is probably one of the most
significant commitments by a State in this Union.
Nonetheless, we still have to clean up the air. We still
have to have clean water. We still have to have safe land.
Senator Inhofe. Mr. Saitas, I am going to have to cut this
off now because we have another panel.
I had one question I would like to have you answer for the
record because there is no more time now. That is, when we
first started this program in 1970, no one had much experience.
In the 1990 Act, the Federal Government had the experience, but
the States really didn't.
Now they do. So, I would like to have you send us in
writing for the record what parts of the Federal program could
be effectively delegated to the States.
Senator Inhofe. The other things, just a comment, you know
there is a diverse philosophy up here. Being close by Texas, I
know what a difficult job it is in a huge State like Texas to
do some of the things. You are doing an outstanding job.
I hope that you will observe, if you haven't already, that
there is a mentality in Washington, DC, that if a decision
isn't made in Washington, it is not a good decision. I don't
subscribe to that.
Senator Lautenberg. Where in Washington is that done, Mr.
Chairman?
Senator Inhofe. Oh, it is done right here in the U.S.
Senate.
Senator Lautenberg. Is that right? I thought everybody
represented properly their State interests. I didn't know that
that was----
Senator Inhofe. I can remember one time--no, I won't get
into that.
At this time I will dismiss this panel and ask the next
panel to come forward.
We do have several votes taking place at 4:30, so it is
going to be the effort of this committee to conclude this
hearing before those votes take place.
If we could have order here while they are being seated,
our second panel, as a matter of fact, I am going to skip the
mayor because we have a very important U.S. Senator from Ohio
who wants to make that introduction himself.
We have Mr. Taylor from the State of Oklahoma, Zach Taylor.
We appreciate your being here very much. He is the executive
director of a group I work with with some regularity and that
is the Association of Central Oklahoma Governments.
We also have Ms. Marcia Willhite, the assistant chief,
Pollution Prevention of Air Quality for the Environmental
Health Division for the city of Lincoln, NE.
I would recognize at this time Senator Voinovich for
another introduction.
Senator Voinovich. Thank you, Mr. Chairman. I kind of cut
my first statement short because I knew the mayor was going to
be coming on.
But I would like to extend my welcome to Mayor Homrighausen
of Dover, OH. Mayor Homrighausen testified before this
committee several years ago, Mr. Chairman, in regard to his
concern with the EPA's new standards for ozone and particulate
matter.
He and I were concerned about those new ambient air
standards for ozone and particulate matter. We thought that
they far outweighed the benefits to public health and the
environment.
Mayor, I hope that we are successful in the Supreme Court.
It was interesting to hear the reaction from the State people
in regard to what is going to happen in their States if these
new ambient air standards go into effect.
Mr. Chairman, as I mentioned, when we talk about clean air
or electricity generation there is a tendency to think about
those large billion dollar companies. People forget about
municipalities like little Dover, OH, which owns and operates
its own utility plant and provides low-cost energy to its
consumers.
I think that it came out from the previous testimony that
when we look to reauthorize that Clean Air Act we need to make
sure that State and local governments have the flexibility they
need to implement the law's requirements.
I agree that national standards are necessary, but there
should be adequate flexibility for State and local governments
to meet those standards.
The EPA should not be in the position to mandate cookie-
cutter approaches to meeting air quality. You know, you don't
always need a hammer. There are a lot of innovative programs
out there. We need to encourage those types of programs.
Forget about ``Well, local communities can do it if they
put their mind to it.'' For example, in the city of Cincinnati,
that was our last city to achieve their ambient air standards.
Now, they recently received the Governor's Annual Award for
Outstanding Achievement in Pollution Prevention for a little
program.
It was a gas cap replacement program. Through this program
motorists had the opportunity to voluntarily have their vehicle
gas cap tested and replaced if necessary, and it was for
nothing. This is hard to believe, but 23,000 gas caps were
given to vehicle owners in the metro area in 1998. It
eliminated an estimated 3.5 tons of hydrocarbon emissions daily
and almost 1,300 tons annually.
So, that is just a little program, but it made a difference
and it helped them to achieve that ambient air standard that
they had been working to achieve for so long.
So, I really think that if we have a more flexible approach
to some of these things that we can achieve a whole lot more
than if we are restricted.
It was interesting to hear from the gentleman from Texas
saying that he has been asked to do a job but not given the
tools to get the job done.
So those are the practical sides of these things that we
need to address our attention to. I am anxious to hear the
testimony of our witnesses here to date.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Senator Voinovich.
We will go ahead and start with the same rules as before.
Again, we do have some votes that are coming up at 4:30, so
we want to conclude before that time.
We will start with our 5-minute opening statements. Mayor,
we will start with you. I would add that you have four very
sympathetic ears up here in that both Senator Voinovich and I
have been mayors in the past. We know what a hard job it is.
STATEMENT OF HON. RICHARD P. HOMRIGHAUSEN, MAYOR, CITY OF
DOVER, OH
Mayor Homrighausen. Senator Inhofe, Senator Voinovich, my
name, as Senator Voinovich said is Richard P. Homrighausen and
I am mayor of the city of Dover, OH.
As a mayor from a small town in the heart of the industrial
Midwest, I am honored to be invited for the second time to
testify before you.
As a small town mayor, local municipal utility operator of
a small coal-fired power plant and active participant in other
generation projects through AMP-Ohio, and as president of the
Ohio Municipal Electric Association, I know both the value that
citizens have received from the passage of the Clean Air Act
and its amendments as well as the hardships imposed from
inflexible, over-
zealous, and over-reaching administration.
I sincerely appreciate this opportunity to share with you
my observation on the Clean Air Act, its successes and
failures, as well as my views on how to fix the problems that
communities like mine are experiencing.
Under the Clean Air Act, tremendous improvements have been
made in air quality. As a local official, I must emphasize that
these accomplishments were realized largely through the efforts
of State and local governments through innovative development
and implementation of the State implementation program.
The following is a summary list of key areas in which I
believe the Congress must seek improvements. Under the Unfunded
Mandates Act, the Small Business Regulatory Enforcement
Fairness Act and other provisions, the EPA and other Federal
agencies are to consider and respond to specific and differing
needs of small business and local government.
Regrettably, all too often the needs of these interests are
ignored with the EPA imposing one-size-fits-all approaches
where the costs of compliance are as high for a small facility
or operator as they are for facilities many times larger.
Congress should amend the Small Business Regulatory
Enforcement Fairness Act to ensure that the needs and concerns
of small business and local government are addressed.
The title IV Acid Rain Program exempts units under 25
megawatts, but encourages these units to opt in. Despite the
diligent efforts of AMP-Ohio, OMEA and others, the EPA has
failed to construct the opt-in program in a workable manner.
Therefore, they have penalized us and failed to use a cost-
effective means of bringing numerous small emitters under the
Act's Acid Rain Program.
Congress must fix the opt-in program and expand the use of
market-based mechanisms to achieve pollution reduction
objectives.
In adopting and amending the Clean Air Act, Congress did
not give the EPA the authority to set emissions limits for
grand-
fathered plants. Yet, the EPA has taken numerous approaches to
target these plants and attempt to force their retirement.
The EPA also appears to be attempting to exceed its
authority through backdoor imposition of carbon dioxide limits.
Congress must maintain rigorous oversight and take action when
necessary to prevent the EPA from over-reaching its statutory
authority.
The Act creates a careful partnership between the EPA and
the States. In general, the EPA sets the broad standards and
the States have the flexibility to implement various means of
achieving that standard.
However, the EPA has increasingly undermined the authority
of the States such as seeking to impose plant-specific limits
on grand-fathered plants in overturning the State best-
available control technology determinations.
Congress should affirm the role of the States in
implementing the Act. Since its inception, Congress expected
that technological feasibility and cost effectiveness would be
taken in to account and the EPA, the States and generally
balanced pollution control technology and cost, and the
required B.A.C.T. removal efficiency standards have improved
impressively.
However, in recent actions, the EPA appears to have ignored
technological feasibility and cost effectiveness. Congress must
affirm and strengthen provisions requiring technological
feasibility and cost effectiveness.
The EPA fails to take a holistic approach to pollution
prevention and regulation, leading to deployment of
technologies to reduce one form of pollutant that merely causes
or contributes to another source problem.
To cite an all-too-frequent dilemma and one that has the
ability to greatly impact the city of Dover, the EPA is
increasingly insistent that fly ash, a byproduct of coal-fired
electric generation, be included in the list of hazardous
wastes.
Yet, in a neighboring township, the EPA sees nothing wrong
with approving a new solid waste landfill that would be built
directly over top and upstream of Dover's drinking water
aquifer and one, and when at full capacity, would become the
highest elevation point in Tuscarawas County.
Congress should encourage and facilitate the use of multi-
media pollution management.
One final note of interest, following my April 1997
testimony before this subcommittee, I was amused to find the
city of Dover listed among the key contributors to the
pollution problems inherent in the northeastern United States.
You will find this reference in the Section 126 petitions
filed by the eight northeastern States. As you may have noticed
in my written testimony, the city of Dover operates a 14-
megawatt coal-fired power plant which is co-fired with natural
gas, in addition to gas turbine and diesel generation.
Chairman Inhofe and Senator Voinovich, I have shared with
you numerous concerns, but I want to reaffirm my earlier
statement. The Clean Air Act has worked well in many of the
areas envisioned by Congress, including developing a mechanism
for setting and attaining ambient air standards.
When standards are based on scientific consensus and
designed to address human health and welfare, the system works.
Most criticisms of the Clean Air Act are actually
criticisms of the EPA's efforts to use the Act to achieve
objectives and impose restrictions beyond congressional intent.
Again, I want to thank you for this opportunity. I look
forward to answering any questions you might have.
Senator Inhofe. Thank you, mayor.
Ms. Willhite.
STATEMENT OF MARCIA WILLHITE, ASSISTANT CHIEF OF
ENVIRONMENTAL HEALTH LINCOLN-LANCASTER COUNTY
DEPARTMENT OF HEALTH, LINCOLN, NE
Ms. Willhite. Mr. Chairman and Senator Voinovich, I am
Marcia Willhite, assistant chief of Environmental Health at the
Lincoln-Lancaster County Department in Lincoln, NE.
Thank you for this opportunity to provide some comments on
the Clean Air Act as you begin its reauthorization.
Our local health department's air quality program
administers the Clean Air Act within Lancaster County,
Nebraska. Lancaster County is home to about 240,000 people and
it includes a large range of air pollution sources.
We are currently in attainment of all national ambient air
quality standards and anticipate remaining so. Our scope of
activities includes all levels of air permitting including our
own title V program, compliance inspections, enforcement, air
toxics, and collection of emission inventories, air quality
planning, and technical assistance. Our guiding principle is
pollution prevention.
In summary, our local health department administrates a
small-sized air quality program which is experienced in
administering a large range of program activities.
The main message I bring to you today from Lincoln, NE is
that the Clean Air Act is working. It is holding the line on
air emissions increases in our community.
The secondary message I bring to you today is that there
are some concepts that we as a local air quality program in a
growing community encourage Congress to consider as the Clean
Air Act is reauthorized.
The Clean Air Act is a tool for public health risk
reduction. The greater the air pollution reduction, the greater
the risk reduction.
Interestingly, the greatest air pollution reductions
achieved in Lancaster County in the past 5 or 6 years were not
mandated by the Clean Air Act. Between 1994 and 2000, a 53-
percent reduction in hazardous air pollutants and a 43-percent
reduction in volatile organic compounds occurred because of
voluntary choices made by businesses to use less toxic
materials and less polluting processes.
The coal-fired power plant in Lancaster County even reduced
sulfur dioxide emissions by 2,000 tons per year voluntarily by
switching to ultra-low sulfur coal.
These choices to prevent pollution rather than control it
need to be encouraged and rewarded. Somehow the lesson learned
in Lancaster County that significant environmental benefits
occur through voluntary pollution prevention needs to be
applied to the Clean Air Act of the 21st century. Specifically,
incentives for pollution prevention need to be incorporated for
those businesses willing to take that option or to go beyond
the minimum air quality requirements.
Another area where prevention-based strategies are needed
is in the area of maintaining clean air while cities grow.
Lincoln is currently an attainment area, however, in the
next 20 to 30 years our population is likely to increase
substantially. The land use choices and transportation plans
that we make today may affect our ability to maintain
nonattainment status in the future.
The tools and funding, funding, funding to support
assessment, innovation and best management practices to reduce
air quality impacts of transportation should be available to
communities like Lincoln that are trying to prevent unhealthy
air as well as to areas that are solving air quality problems.
The next version of the Clean Air Act needs to achieve risk
reduction more efficient and comprehensively by incorporating
multi-pollutant control strategies.
Harmonizing control options to simultaneously use all
pollutants of concern for a particular sector is easier to
implement for both industry and State and local regulatory
agencies and is more cost effective.
Examples of opportunities for better harmonization are
plentiful. Coal-fired power plants have gone through separate
requirements and permitting for acid rain and NOX
reduction and are likely to face a different regulation for air
toxics reduction.
Similarly, the recent light and heavy duty vehicle and fuel
standards are focused on ozone precursors. Had they been
optimized to include air toxics reduction as well, a separate
rulemaking process under 202(L) would not have been necessary.
Reformulated gasoline or RFG, although intended for ozone
reduction has been effective in reducing levels of air toxics
such as benzene, which national assessments indicate is a
concern in every county in the United States. Yet, RFG may only
be sold in ozone nonattainment areas.
The next version of the Clean Air Act should be structured
to enable multi-pollutant strategies for air pollution
management.
The current Clean Air Act calls for a substantial reduction
in cancer risk from air toxics in urban areas. To implement
this, the Environmental Protection Agency has drafted a
strategy centered on identifying the pollutants and sources
which contribute most significantly to public health risks
based on national, regional, or local level assessments.
In this draft strategy, the EPA would address sources and
risks ranking highly on national level assessment and States or
localities would address risks and sources of high priority
based on regional or local assessment.
This is an efficient, common sense approach. However, the
authority for it is unclear. In the reauthorization Clean Air
Act a clear mandate and authority for States and localities to
cause risk-based reductions would assist our local community
when national standards do not address our most pressing air
toxics risks.
While other aspects of the Clean Air Act could be
addressed, we have purposely limited our community's comments
to these three key issues that we believe are of utmost
importance.
Please keep prevention-based strategies, multi-pollutant
strategies and authorizing State and local toxics risk
reduction in mind as you craft the reauthorization of the Clean
Air Act.
We hope you will consider these concepts worthy of further
study.
I look forward to your questions.
Senator Inhofe. Thank you, Ms. Willhite.
Mr. Taylor.
STATEMENT OF ZACH TAYLOR, EXECUTIVE DIRECTOR, ASSOCIATION OF
CENTRAL OKLAHOMA GOVERNMENTS, OKLAHOMA CITY, OK
Mr. Taylor. My name is Zach Taylor. I serve as the
executive director of the Association of Central Oklahoma
Governments, which is the Council of Governments serving
Oklahoma City, the metropolitan area as well as serving as a
metropolitan planning organization for transportation.
This afternoon, I brought you a breath of fresh air from
Oklahoma in case you need it in this dialog. The central
Oklahoma region has been an attainment area for ozone since
1978 and carbon monoxide since 1990.
These accomplishments are due primarily to the proactive
efforts of civic leaders, local businesses, government
officials, and residents.
However, we are fearful that changes in the National
Ambient Air Quality Standards for ozone and particulate matter
established in September 1997 will thwart the progress made by
grass roots efforts in central Oklahoma.
We are ever mindful that these standards were made
effective retroactively for the entire summer of 1997.
The past 3 years have brought exceptionally difficult
weather to central Oklahoma with El Nino and La Nina and in
many ways have thwarted our best efforts and episodic measures
to combat what Mother Nature has provided us.
If our metropolitan area were to go nonattainment, the
label of nonattainment would have a stigma associated with it
as well as a financial impact to our citizens. We have
estimated a first-year cost of at least $43 million just for
our motoring public, not to mention the ramifications for our
businesses.
As Congress addresses reauthorization of the Clean Air Act,
we appreciate this opportunity to express some concerns from
the heartland regional perspective. We hope that you will
consider our full testimony.
In the interest of time, I will attempt to be brief, Mr.
Chairman.
Consistent with the position of the Oklahoma Department of
Environmental Quality, we also support an 8-hour measuring
standard for ground level ozone. We believe this mode of
measuring allows more realistic methods of evaluating ambient
air quality conditions.
However, we feel the measure currently in place is too
strict and is limiting and we would favor a measure that is
more scientifically sound.
We urge the EPA Science Advisory Board to revisit its
studies regarding air quality standards and that the EPA take
smaller steps in implementing the scientists' recommendations.
More specifically, the scientists' recommendations of a
range of .07 to .09 parts per million, if more stringent
requirements were shown to be scientifically justifiable, we
would favor a more gradual implementation schedule beginning
with .09.
We feel Congress should allow States and local governments
to use flexibility, which is a predominant theme this
afternoon, in determining the most effective control measures
in regions.
Along those lines, we encourage, as has been suggested here
today, the EPA invest in additional research related to the
effectiveness of various measures or techniques from different
regions around that country.
We strongly encourage a national emphasis be placed on
research and technological solutions rather than heavy-handed
enforcement.
We encourage national research for nationwide remedies,
including technologies for mitigating industry pollution as
well as mobile source pollution such as rapid acceleration of
the use of alternative light fuel vehicles.
Our single highest concern has to do with the conformity
rule, or we call it the hammer. Should a region be declared
nonattainment, the State and local governments in that area
should be given ample time, at least 3 years, to adjust their
transportation plans before transportation dollars are withheld
in the name of conformity.
In the current laws, both air and transportation,
federally-funded transportation projects must be found to
conform to State air quality plans before they are adopted,
accepted, approved or funded.
This dilemma, however, is one in which it takes several
months to develop an emissions budget to do the necessary
modeling and so forth to prove that the transportation plan
does not worsen conditions.
In Oklahoma, this process would take no fewer than 2 years,
probably 3. We feel that it is ludicrous for the Federal
Government to hold up progress in a regional community that has
demonstrated a long-standing basis of good faith efforts in
response to air quality and they are being made on a continuing
basis.
Also, because of the anomalous weather patterns, we ask
that the EPA expand its current guidelines and parameters
regarding exceptional events. The EPA proposed guidance a few
years ago to address this situation, but those rules did not
make it through the process.
Thank you, Mr. Chairman.
Senator Inhofe. Thank you, Mr. Taylor. I know that you are
aware, you expressed a concern over what should happen before
transportation dollars were withheld. I think you know that my
amendment is a part of the law that will be signed to stop them
from doing that.
It is very sensitive to me because way back in January
1967, I came as a newly-elected State representative to
Washington to testify before this very committee. Jennings
Randolph was the chairman at that time.
I was protesting the implementation of Lady Bird's Highway
Beautification Act of 1965 and their withholding of Federal
transportation dollars, saying, you know, that is blackmail and
you can't do that.
Well, here it is several generations later and we are still
facing that same problem.
Mr. Taylor, you have been a big help. You know, when we had
our hearing out in Oklahoma, I did appreciate all the help you
were to our various witnesses.
In your written statement you mentioned that the cost of
nonattainment in that area would be $43 million. Do you want to
elaborate on that a little bit and say something in the nature
of that and the cost on businesses of nonattainment in our
particular area?
Mr. Taylor. We principally focused on mobile sources and
the measured economic impact of $43 million in the first year
for the motoring public stems from what we expect to be
required to impose in the way of motor vehicle inspections,
different formulas for fuels as well as vapor recovery systems
for both wholesalers and retailers.
Senator Inhofe. I will ask all three of you this since I
have been in the position you are in currently. Do you
sometimes get the feeling that there is not a whole lot of
concern from Washington over the cost that it is to the local
communities and to the States in implementing some of these
regulations?
Mayor Homrighausen. From my perspective, that is exactly
correct. One of the things that I think is the problem with the
EPA is that they have a history of handing down unfunded
mandates without congressional authority and without giving
those of us that they hand the unfunded mandate to any remedy
on how to accomplish and pay for the mandate.
They consistently overstep their bounds and have
disregarded Congress and the laws that Congress passes and
continually make things more difficult for us to live with and
don't offer us any money to carry them out.
Senator Inhofe. Do you other two generally agree with the
mayor?
Ms. Willhite. Well, I guess I come at it from a little bit
different perspective of being a delegated implementer of the
program.
Our funding needs are really to carry out the work and as
has been mentioned before, the funding pot for State and local
activities related to the Clean Air Act has been shrinking over
the years and has a greater deficit between what it costs to do
the work and what we are actually receiving.
Senator Inhofe. There are two problems with the mandates
that come from Washington. One is the cost of the unfunded
mandates. The other is the one-size-fits-all. Would any of you
like to respond to the one-size-fits-all aspect of this
problem?
Ms. Willhite. I think that as Senator Voinovich was
illustrating, some very innovative programs can be developed at
the local level for dealing with air quality problems.
It would be nice to have the funding to support those types
of activities, whether it is through the State and local grants
or it is through something like the Clean Air Partnership fund
that can support that innovation.
It would also support the assessments to just kind of
evaluate at the local level what would be useful problems to
solve. It may not be the ones identified in the Clean Air Act.
Senator Inhofe. Yes, Senator Voinovich did talk about the
need for flexibility. He felt that when he had his positions
back in the State of Ohio.
Now that you have developed experience, are there specific
areas where you would recommend we address the flexibility
insofar as it affects you as we move into reauthorization?
Mayor Homrighausen. Well, I would just cite Dover as an
example, Senator and tie in the last question with this one,
where through innovation we are partnered with East Ohio Gas to
install coal-fired gas burners on our 14 megawatt boiler which,
before we did that, we were at 29 percent of our SO2
allowances, 36 percent of our particulate matter allowances, so
we were well below what we were allowed to emit.
But, by adding the gas burners, we even further reduced our
emissions. Now, it was a partner between East Ohio Gas which is
now Dominion and the city of Dover with no outside funding.
So, you know, I think we should be allowed to get involved
in projects like this because certainly AMP-Ohio's largest
plant which is the Gorsuch Station down in Marietta is 213
megawatts. What you would have at the Gorsuch Station certainly
would not apply to Dover's 14 megawatt power plant.
So, we have to have flexibility.
Senator Inhofe. Are there any other comments?
Mr. Chairman?
Mr. Taylor. Well, related to cost, I think it is
particularly important, as has been noted earlier, to allow
national requirements to take hold in regions before imposing,
particularly in previously determined attainment areas, before
imposing new, costly local measures.
In regard to the one-size-fits-all, the flexible attainment
region approach which was piloted in Tulsa and used also in
Oklahoma City has proven to be a very effective technique for
allowing flexibility and flexible attainment regions.
Also, we have piloted substantially in our area on
alternative fuels and we have found the partnerships built
around electric, propane, and natural gas organizations to be
very, very productive in reducing emissions.
It has been very, very successful for Tinker Air Force
Base, which now has the single largest deployment of
alternatively fueled vehicles in the United States.
It has proven both to be a very, very effective
environmental management technique, but also an economic
management technique for the base.
Senator Inhofe. Well, I would have to say we had a great
deal of concern back when you and I were addressing the earlier
mandates on ambient air.
You mentioned Tinker Air Force Base, the effect it would
have had on not just Tinker, but also Fort Sill, the firing
range. In fact, our analysis was that it would have required
shutting it down.
You know, we have had three hearings on this so far. I
think this is a pretty ambitious way to start out. We are
committed to getting this through in the next Session, which
means in the next 2 years.
Now, you have lived under this for a while now. You have
brought your expertise here. But we want to hear from you, if
not in this hearing, afterwards as we progress, all of the
problems.
If we don't know about the problems, then we are not going
to be able to address them. We are going to have a very
aggressive attitude toward getting this reauthorization
completed.
So, we will want to hear from you because what is
reauthorized you are going to have to live with for a while. As
we come to a close, I would like to ask if there is anything
that any of the three of you would like to say that may not
have been clarified or you have not had a chance to say before
now.
Mayor Homrighausen. I would just like to add that if the
1997 amendments do hold up in court and they are implemented,
the city of Dover would not have any problem with ozone,
however, we would have a problem with the PM2.5.
I guess I would like to ask a question of the Federal
Government what they would do once Theodore Roosevelt National
Park goes out of compliance from the natural production of
ozone.
Senator Inhofe. Good. That is a very responsible question
to ask. We will look for an answer.
Anyone else?
Well, we thank you very much for being here and also for
those who are in the audience that were participants on the
first panel, we appreciate it very much. We ask for your
continued input as we progress over the next 24 months in this
reauthorization.
We are adjourned.
[Whereupon, at 4:15 p.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Statement of Karen Studders, Commissioner, Minnesota Pollution
Control Agency
Mr. Chairman and members of the subcommittee, thank you for the
opportunity to appear before you today. My name is Karen A. Studders
and I am the Commissioner of the Minnesota Pollution Control Agency. I
bring you greetings, Mr. Chairman, from Governor Jesse Ventura, who
appointed me to this position in February 1999.
My remarks reflect the perspective I have gained during my time as
Commissioner at the Minnesota Pollution Control Agency, as well as my
experience as director of environmental programs in the natural gas
distribution division of a $15 billion diversified international energy
services company, where I worked for 17 years.
The Clean Air Act sets out broad goals. In the first wave of
environmental protection, back in the seventies, we used ``command and
control'' techniques to address air pollution from large, industrial
point sources of pollution. Times have changed. I believe we are now
ready for what I call ``the second wave of environmental protection,''
which allows the States more flexibility and encourages true
innovation. Under current regulations, States are allowed limited
flexibility, but we need more. We believe it is possible to craft a
program that allows flexibility without compromising the environment,
safety or health. Environmental laws cannot be static, because our
impact on our environment is not static.
While the structure of the Clean Air Act has worked, I will suggest
several changes that can be made to improve the use of this tool in the
21st century.
Let me begin by telling you what I will discuss today.
The effect of the Clean Air Act in Minnesota;
States' need for funding to carry out mandates;
What Minnesota has learned about toxic air pollutants; and
Integrated, cost-effective environmental regulation of
power generation.
the effect of the clean air act in minnesota
Twenty-eight years ago Minnesota had its first air pollution health
alert. It was February 11, 1972, and it was almost 20 degrees below
zero. A grimy brown haze choked the Minneapolis skyline and visibility
was bad even at ground level (overhead of photo, ``February 11, 1972,''
in attachments, from Minnesota Environment 2000\1\). The 5-year-old
Minnesota Pollution Control Agency scrambled to get the word out to
warn people with asthma and heart disease to stay indoors.
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\1\ Minnesota Pollution Control Agency, Minnesota Environment 2000,
St. Paul, Minn.: MPCA, 2000, http://www.pca.state.mn.us/about/pubs/
mnereport/index.html
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In the following years, the Clean Air Act's strong anti-pollution
requirements for smokestacks and cars helped reduce sulfur dioxide,
carbon monoxide and other criteria air pollutants. In Minnesota, these
efforts paid off. We have not had an air pollution health alert since
1987.
Today, unlike many other States, Minnesota meets all Federal air
quality standards. The Clean Air Act was a tool Minnesota desperately
needed in 1972. Using that tool, we were able to take a dangerously
deteriorating air quality situation and turn it around in less than 20
years.
states' need for funding to carry out mandates
The Clean Air Act Amendments of 1990 created a new mechanism to
help fund the requirements of the Act: emission fees. These air
emission fees were intended to pay for many of the new requirements in
the amendments. In Minnesota, emission fees cover 80 percent of the air
program's needs. The fee amount specified by the Clean Air Act
Amendments ($25/ton, with adjustments for cost of living) is not enough
to pay for the costs it was intended to cover. Not long ago, the U.S.
Environmental Protection Agency (EPA) and the States concluded that
there was about a $100 million gap between funding necessary to carry
out Clean Air Act activities and funding available to States.\2\ I
suspect things have only gotten worse since then.
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\2\ ``Sagamore Study,'' prepared by U.S. EPA and presented by Jerry
Kurtzweg at STAPPA/ALAPCO May 15, 1997 meeting.
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For example, the 1990 Clean Air Act Amendments required States to
complete issuing all permits for major facilities (Title V Permits) by
1998. Now, in the year 2000, 2 years after that deadline, many States
have issued fewer than half their permits. Minnesota is in the same
boat. We have issued about 160 permits--less than half. The good news
is that, because we intentionally chose to target the largest emission
sources, those 160 permits cover 75 percent of our emissions. The bad
news is that about 200 permits have yet to be issued and we do not have
the resources to issue them faster. To make matters even worse, the
first permits we issued 5 years ago are now approaching the end of
their 5-year shelf life.
With States being this far behind in permitting, funding is clearly
inadequate for the task at hand. As Congress considers changes to the
Act, please also consider the funding necessary to operate an adequate
air quality program.
Nationally, States collect 94 percent of environmental data,
conduct 97 percent of facility inspections, operate about 70 percent of
the Federal programs delegated to them, conduct about 80 percent of the
enforcement actions, and contribute about twice as much funding to
environmental programs as the U.S. EPA.\3\
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\3\ Testimony of George Dana Bisbee, Assistant Commissioner, New
Hampshire Department of Environmental Services and Chairman, ECOS Data
Management Workgroup, before the Senate Committee on Environment and
Public Works, September 26, 2000.
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Ten years after the Clean Air Act Amendments of 1990, it is clear
that the total package of funding available to States--emission fees,
other State funds and Federal grants--is not sufficient to adequately
cover the costs of Clean Air Act-related activities. One example of a
funding shortfall is the multi-year process to reduce regional haze.
what minnesota has learned about toxic air pollutants
When the world of air pollution consisted only of six criteria
pollutants, we felt pretty smug in Minnesota. We did not have problems
as serious as those in cities such as Los Angeles or Houston, and we
were successfully addressing the air pollution problem we did have
(overhead of, ``Trends in criteria air pollutants in the Twin Cities
area, in attachments).1 As this figure shows, all criteria
pollutants except nitrogen dioxide dropped from 1990 to 1998. This was
achieved at the same time vehicle miles traveled continued to climb and
our State economy continued to grow. This is a clear indication that
economic growth and environmental protection can go hand in hand.\4\
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\4\ Meyer, S. ``Environmentalism and Economic Prosperity: An
Update,'' February 16, 1993, available on MIT website at http://
web.mit.edu/polisci/mpepp/reports.htm
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However, we do not feel so smug any more. Thanks to researchers,
scientists, health professionals and U.S. EPA, we know that the world
of air pollution is more complex than anyone dreamed back in 1972.
Just 2 years ago, U.S. EPA completed the air toxics component of
its Cumulative Exposure Project\5\ which used computer models to assess
1990 outdoor concentrations of air toxics across the continental United
States. Air toxics--also known as toxic air pollutants or hazardous air
pollutants--are a group of chemicals associated with a variety of
adverse health problems, including cancer, neurological effects, and
reproductive and developmental effects. The U.S. EPA data suggest that
half our increased risk of cancer (over and above the risk from
smoking, consumption of certain foods and genetics) comes from air
toxics emitted by our cars, trucks and other engines.
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\5\ Environmental Protection Agency, http://www.epa.gov/
cumulativeexposure/air/air.htm
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In Minnesota, we did not just rely on U.S. EPA's computer model.
Over the last few years, we have been monitoring the outdoor air. We
have actually measured 75 different air toxics around our State, in
locations ranging from farms to small towns to big cities. What we
found was disturbing.\6\ Our report was published in a scientific peer-
reviewed journal this month.\7\
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\6\ Minnesota Pollution Control Agency, Staff Paper on Air Toxics,
St. Paul, Minn.: MPCA, Nov. 1999, http://www.pca.state.mn.us/air/
airtoxics.html#paper)
\7\ Pratt, G., Palmer, K., et al., ``An Assessment of Air Toxics in
Minnesota,'' Environmental Health Perspectives, Vol. 108, Number 9,
September 2000.
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We found that when compared with health benchmarks, 10 air toxics
exceeded thresholds in either modeled (predictions in the U.S. EPA's
study) or monitored (actual measurements by the Minnesota Pollution
Control Agency) concentrations or both.
Five of these pollutants (formaldehyde, benzene, carbon
tetrachloride, chloroform, ethylene dibromide) exceeded health
benchmarks in some or all regions of Minnesota. In several cases,
measured concentrations were actually higher than U.S. EPA's
predictions in the Cumulative Exposure Project. We are now in the
process of developing the capacity to measure the rest of the 10
pollutants where there is reason to suspect high concentrations. These
pollutants include 1,3 butadiene, acrolein and chromium.
Many of the air toxics with the highest concentrations are
primarily from cars, trucks, buses and other engines. For those
chemicals, concentrations were highest by far in the Twin Cities. But,
surprisingly, we found that one cannot escape air toxics by moving to a
home far from urban centers. In rural Minnesota, even a town like
Granite Falls, with a population of 3,000, showed measured
concentrations of some toxics above health benchmarks.
The Federal Government must no longer delay taking further action.
While the provisions for point sources in the 1990 Clean Air Act
Amendments have made a difference, there is clearly much more that
needs to be done about mobile sources of air toxics--both on and off-
road.
Although we appreciate U.S. EPA's efforts to regulate mobile
sources, we believe they must turn their attention to reducing air
toxics now. New amendments to the Clean Air Act must include air toxics
regulation in order to ratchet down toxic tailpipe emissions from cars,
trucks, buses and small engines. Requiring further improvements in fuel
efficiency will also help reduce air toxics. We need national, rather
than regional or State-by-State, standards. We also need to require
cleaner burning fuels for all internal combustion engines. We need to
standardize fuels and reduce the number of different ``boutique'' fuels
around the country. The current situation, with different fuels
specified for use in different parts of the country leads to spot fuel
shortages and higher gasoline prices--something we are experiencing in
the Midwest.
I think we can accomplish all this while maintaining a significant
role for homegrown ethanol as a fuel component. Ethanol production is
an important industry in the Midwest. In Minnesota, we have
successfully incorporated ethanol into our fuels with significant
environmental benefit--and, we do not have the MTBE (methyl tertiary
butyl ether) problem other States are facing.
U.S. EPA tells us they plan to decide about further reductions in
mobile sources of air pollution in the year 2004. Given what we
measured in Minnesota, I believe we cannot wait that long.
U.S. EPA also says they are working on an Urban Air Toxics
Strategy. They have collected information on what everyone around the
country is doing about urban air toxics. Frankly, I do not think of
that as a strategy. I think of that as a list. We do not need a list.
We need leadership, we need a real national urban air toxics strategy
with specific goals that we can all focus on, so we can improve the air
people breathe daily. And, given the health threat, we need a strategy
now.
A recent study in Denver showed that children living near heavily
traveled streets have six times the risk of developing cancer and
leukemia as other children.\8\ Research reported in the British medical
journal The Lancet estimates that 6 percent of all deaths in Austria,
France and Switzerland are due to air pollution and that half of those
are due to mobile source pollution.\9\
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\8\ Pearson, R., Wachtel, H., Ebi, K., ``Distance-Weighted Traffic
Density in Proximity to a Home is a Risk Factor for Leukemia and Other
Childhood Cancers,'' Journal of the Air and Waste Management
Association, Vol. 50, Feb. 2000.
\9\ Kunzli, N., Kaiser, R. et. al., ``Public-health Impact of
Outdoor and Traffic-Related Air Pollution: a European Assessment,'' The
Lancet, Vol. 356, September 2, 2000.
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Research carried out by the Harvard School of Public Health in
Boston shows a direct connection between heart attacks and air
pollution.\10\ The scientists found that the higher the day's
particulate pollution concentration, the more people died of heart
attacks--even when particulate levels remained well below the standard
proposed by U.S. EPA.
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\10\ ``Re-analysis of the Harvard Six Cities Study and the American
Cancer Society Study of Particulate Air Pollution and Mortality,''
(Health Effects Institute, Cambridge, Mass.: July, 2000).
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In other words, people are dying of heart attacks brought on by
particulate pollution so low we assumed it was harmless. Even when U.S.
EPA's recently promulgated diesel and gasoline standards go into
effect, clearly more will be needed to solve particulate pollution
problems.
The cost of the illnesses described in these studies is too high,
both financially and socially. We cannot allow more delay.
integrated, cost-effective environmental regulation of power generation
This is a lake located in the unique Voyageurs National Park on the
Minnesota-Canada border. This remote area of forests and lakes is
northern Minnesota's spectacular crown jewel\11\ (overhead in
attachments). Hundreds of beautiful lakes just like it are scattered
across the region. If you should decide to do any fishing in this lake
next summer, we'd be obliged to warn you that you cannot safely eat
more than one meal of fish per week of most fish caught in this
pristine-looking lake. Pregnant women and children in your family
cannot safely eat more than one meal of fish per month from this lake.
The fish in this lake and in many other lakes in this remote wilderness
area contain too much mercury.
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\11\ Photo courtesy of Minnesota Office of Tourism.
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The mercury got into the fish from the water. Much of that mercury
got into the water from mercury deposition from the air. It got into
the air from mercury-emitting sources such as power plants, hundreds
and even thousands of miles away.
We have taken significant steps to improve this situation in
Minnesota, reducing our own mercury emissions by more than 50 percent.
But most of the mercury in our fish comes from sources outside our
borders.\12\
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\12\ Report on the Mercury Contamination Reduction Initiative:
Advisory Council's Results and Recommendations, Minnesota Pollution
Control Agency, March 1999, http://www.pca.state.mn.us/hot/legislature/
reports/1999/mercury.pdf
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Coal-fired electric utility plants are one of the largest sources
of mercury emissions in this country. We know that if we further reduce
emissions from coal-fired plants and develop and convert to other
methods of power generation, we will not only cut mercury emissions but
other pollutant emissions, too.
Increasing demand for electric power has brought us face to face
with tough environmental issues. What do we do about the transportation
of air pollution across State borders? What will be the effects of
regulating the tiniest of particles in the air, PM2.5? What
do we do about regional haze? Do we need to do more to reduce acid rain
in the northeast? What about toxic emissions from burning coal? What
about climate change?
These questions and the programs we have created to address them
are like separate trains heading down separate tracks, each carrying a
few passengers to separate destinations. We need one big train on one
single track, so we can get everyone on board, all heading to the same
place. We need a comprehensive, integrated national power generation
strategy that regulates multiple pollutants, including nitrogen oxides,
sulfur dioxide, carbon dioxide, mercury and other toxic pollutants. The
strategy should set national goals and schedules that allow flexibility
for industry in how to meet them. And we need a strategy that once and
for all deals with old coal-fired power plants that have been
``grandfathered'' into existing regulations.
An integrated national approach should be long-term in nature. It
should target both new and old plants, both large and small. However,
for the existing population of old plants, a long-term schedule of
plant renovation or phaseout should be implemented to limit disruption
of electricity supply and economic costs. Again, the critical element
is for the government to establish a set of schedules and performance
standards for all facilities and allow electric utilities and
independent power producers maximum flexibility in meeting those
standards.
The energy regulatory and environmental arms of the legislative and
administrative branches of government need to start talking in concert
with the industry. They need to acknowledge the problems on both sides
and establish goals. It is a huge process, but one that must be
initiated. We cannot ignore the environmental problems caused by global
warming on one side, nor the dependence of our economy on energy on the
other.
I flew to Washington today from St. Louis, where I participated in
a conference on energy and the environment. It was sponsored by the
Environmental Council of States, the National Association of Regulated
Utility Commissioners, the National Association of State Energy
Organizations, and the State and Territorial Air Pollution Program
Administrators and Association of Local Air Pollution Control Officials
(STAPPA/ALAPCO), with some funding provided by the U.S. EPA. I will
pass on to you the most important piece of advice I heard there: If we
try to achieve environmental results pollutant by pollutant, we will
hamstring the industry and never achieve what we want in the end
anyway. And we'll risk an increasing number of brownouts and blackouts
throughout the country as utilities struggle to meet separate
requirements on separate schedules.
Piecemeal programs targeting the power industry (acid rain, new
ozone standard, PM2.5, regional haze and ozone transport,
climate change) have led to enormous uncertainty and cost-
inefficiencies. Because no one is sure of what to expect from
regulators, utilities delay environmental decisions, even delay
decisions on new generating capacity. This cannot continue without
eroding the reliable power supply of our Nation. Our lack of focus
isn't good for the environment; it is not good for the industry; and it
is not good for the citizens of the United States, who want and deserve
both a reliable source of energy and a clean environment. A
comprehensive and integrated approach to the power industry could lead
to impressive environmental gains for our children without sacrificing
growth in power capacity.
I am certain we can develop an approach that can successfully
balance environmental needs, cost-effectiveness and reliability.
Amendments to the Clean Air Act must address a comprehensive and
integrated approach to the power utility industry.
You asked me to address what is working and what needs to be
changed in the Clean Air Act. In addition to what I've mentioned
(funding, air toxics and an integrated environmental energy strategy),
we need to further simplify the permitting program. Right now, the
biggest time drain in permitting is the new source review and
prevention of significant deterioration regulations. These regulations
were well intended, but are too complicated. Too many sources
undergoing modification are using these rules to try to avoid new
emission controls. Grey areas in these regulations have resulted in a
recent onslaught of legal and enforcement actions across the country.
It may be time for us to discuss whether it would be better for all,
the regulated community and the regulators, to end the practice of
``grandfathering'' existing sources (with reasonable timeframes) and to
require all sources undergoing modifications to meet minimum pollution
control standards.
It is also important that cross-media questions be addressed. For
instance, a neglected aspect of coal-fired generation is the fate of
literally millions of tons of bottom and fly ash containing high
concentrations of heavy metals. When we develop policies on air, too
often we ignore parallel effects on our lands and waters. Cross media
concerns that link the Clean Air Act to the Clean Water Act and other
Federal legislation and rules need to be better developed.
I want to thank you for inviting me here to provide Minnesota's
perspective on changes needed to the Clean Air Act. I believe these
changes are necessary to improve the air in our environment and
therefore, the health and quality of life for the people of the United
States of America. I believe these changes are necessary if we are to
live up to the promise of the Clean Air Act.
Thank you. I look forward to your questions.
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Responses by Karen Studders to Additional Questions from Senator Baucus
Question 1. You suggested there is a shortfall in funding for State
activities because the Clean Air Act per ton emission fee of $25 per
ton (adjusted for cost of living) is too low. The Act (section 502(b))
appears to provide States with sufficient authority and responsibility
to raise the fee to cover the relevant permitting responsibilities. Why
is there a shortfall and does the Act need to be modified? What would a
more appropriate fee level be in the Act and should it be higher for
more toxic or persistent and bioaccumulative pollutants?
Response. States were to have completed the first round of issuing
Title V permits to all of their facilities by 2 years ago. For numerous
reasons, nearly every State is far behind that original schedule and
many still have only issued about half of their Title V permits. The
permitting program regulations that were developed by the Environmental
Protection Agency (EPA) are far more complicated than anticipated when
the Clean Air Act Amendments were passed in 1990. The fact that so many
States are still working to issue their initial round of Title V
permits is a clear indication that the resources needed to implement
the program are not adequate. While the Act gives States the ability to
raise fees above and beyond the minimum stated by the law, States are
reluctant to do so. There are many reasons for this reluctance,
including: fear of creating a negative business climate relative to
neighboring States and a reluctance by State legislators and Governors
to raise fees for State agencies. A combination of streamlining the
regulations and increasing the presumptive minimum fee to be collected
seems to be in order.
A number of States, Minnesota included, have debated the notion of
charging higher fees for toxic and bioaccumulative pollutants. There
are several reasons why this may not be a good idea. First, these fees
are, by design, to raise funds to pay for the permitting program. Thus
they provide little incentive to reduce emissions. Charging a higher
fee for certain pollutants would only make sense if the fee were set
high enough to provide a disincentive to emit that pollutant, or if the
cost of regulating that pollutant were greater than others. Second, our
emission inventories for toxic and bioaccumulative pollutants are very
imprecise. The inaccuracies in the inventories would potentially create
unfair billing situations and would certainly result in many challenges
to the emission numbers. For the reasons stated above, Minnesota has
decided not to pursue a different fee level for toxic and
bioaccumulative pollutants.
Question 2. What is the fee (per ton of emissions) which your State
currently charges for permitting under Title V of the Clean Air Act?
How much does that generate annually and what is your States' annual
budget for permit activities, implementation and enforcement matters,
emissions and ambient monitoring, modeling, analysis, demonstration,
inventory preparation and emissions tracking, relating to air quality?
What, if any, additional categories of spending are necessary to
support air quality programs?
Response. In the State fiscal year 2000, the fee per ton charged in
Minnesota was $32.80. This generated $8.75M in revenue for the program.
In the same fiscal year, the annual budget for the air program,
including all other State and Federal funds, with the exception of the
Minnesota Vehicle Inspection Program which has since been terminated,
was $12.3M. Of this total, approximately 60 percent was expended on the
regulatory compliance program (permitting, compliance, enforcement), 23
percent was expended on the air monitoring program, 16 percent was
expended on policy and planning activities, and 9 percent; was expended
on administrative costs.
There are at least two additional spending categories that should
be considered. First, there is a very large regional planning effort
underway to develop State Implementation Plans for regional haze. While
the Regional Planning Organizations are being funded, little or no new
funding has been made available to States to support their considerable
efforts in this activity. States need financial support in order to
participate effectively. Second, EPA will soon be releasing the latest
results of its National Air Toxics Assessment. The data shows potential
air toxics problems around the country. The current level of effort
being made to confirm these results with actual monitoring data is not
sufficient. Additional grants to States for air toxics monitoring is
needed.
Question 3. Flexibility was mentioned repeatedly during the hearing
as necessary for efficient conduct of States' programs. The Clean Air
Act Amendments of 1990 created relatively strict deadlines and
established numerous requirements largely because insufficient progress
had been made prior to 1990 in achieving attainment. How can we be
certain that increasing flexibility will not result in slowing current
progress? What specific changes in the Act would be necessary to
enhance flexibility?
Response. No one can guarantee that increased flexibility for
States will not slow our current progress. However, many are certain
that the current methods fail to accomplish the desired goals
effectively or efficiently. Providing flexibility within a structure
can help to identify methods that increase a program's efficiency or
effectiveness.
Bear in mind that flexibility can mean many different things.
Frequently, States desire flexibility of process to meet the goals set
by Congress or the Federal Government. The effectiveness of providing
such flexibility to States can be best measured when Congress or the
Federal Government: (1) establishes a clear environmental goal that is
achievable on a State level; (2) imposes it with a realistic deadline;
(3) sets up a mechanism that ensures the States' efforts are adequately
funded, (4) establishes a program ``floor'' that establishes minimum
expectations; and (5) provides for real consequences when States fail
to deliver the desired results.
It is clear that an enormous amount of progress has been made in
improving the environment over the past 30 years of environmental
regulation. However, Minnesota believes that most of the improvements
that can be made under the Act have been made. And therefore the rate
of decrease of air emissions from point sources has already begun to
slow and flatten out. Furthermore, there are emerging issues and
priorities not currently addresses by the Act, such as urban exposure
to air toxics. Minnesota believes that given the flexibility to
experiment, without degrading the environment, solutions can be
discovered that improve the environment while decreasing the amount of
resources expended. These resources can then be transferred to address
emerging issues. Minnesota believes that the Toxic Release Inventory
(TRI), while clearly not perfect, is a great example of how a much less
burdensome approach clearly resulted in enormous benefits to our
environment. Minnesota believes that given the opportunity to
experiment, other TRI-type opportunities could be developed,
implemented, evaluated, and then transferred to the system as a whole
to bring our country to that next level or ``second wave of
environmental protection.''
Question 4. Transport of ozone and other long range pollutants
continues to be a serious problem for public health and for State and
local air quality planners. Do you have any suggestions for ways that
the Act could better deal with this phenomenon?
Response. Minnesota believes that Congress and EPA clearly need to
take the lead to resolve problems resulting from long-range transport.
This needs to be done in continuous consultation with the States. (The
Environmental Council of the States (ECOS) provides an excellent means
to work with all of the States.) Certain mid-range transport problems
such as regional haze and ozone may be best turned over to regional
planning organizations. EPA, however, must provide technical and
financial aide to these regional planning organizations. EPA must also
stay involved in the processes. Regional planning is still an
experiment. In some cases it may fail. EPA and Federal law must step in
to provide consequences if States fail to reach agreement or fail to
implement their part of the solution. Finally, regional planning is
likely to be a complex and expensive process and should not be
undertaken even for mid-range transported pollutants if national
regulation is more effective and efficient.
______
Responses by Karen Studders to Additional Questions from
Senator Voinovich
Question 1. What would be the consequences to your State if the
Environmental Protection Agency (EPA) moves forward with designations
of ``nonattainment areas'' under the 8-hour national ambient air
quality standard for ozone before the Supreme Court renders a decision
in the case.
Response. Minnesota submitted a letter to EPA requesting that the
entire State be designated ``attainment'' for the proposed 8-hour
standard. Therefore Minnesota should not be affected by, and does not
disagree with a possible move by EPA to designate nonattainment areas.
Question 2. Is EPA providing sufficient resources currently, as
well as commitments for future resources, to conduct appropriate
ambient air monitoring within your State, including monitoring of fine
particulate matter and determination of the composition of fine
particulate matter?
Response. There seems to be sufficient funding to Minnesota for
fine particulate monitoring. This is due primarily to the fact that the
data collected to date seems to indicate attainment with the proposed
new standard. The situation in other States that will not be in
attainment may be different.
There currently is insufficient funding for the monitoring of
regional haze, not just in Minnesota but throughout the Midwest, and
monitoring for air toxics.
The monitoring network for regional haze was established based on
the locations of Class I areas. The middle of the United States has few
Class I areas (Kansas, Nebraska, Iowa, Wisconsin, Illinois, Indiana,
Ohio, Pennsylvania and New York have no regional haze monitoring
sites). This ``monitoring hole'' in the middle of the country must be
filled with additional monitoring sites in order to develop the
information needed to prepare State Implementation Plans for regional
haze.
EPA will soon be releasing the latest results of its National air
Toxics Assessment. The data show potential air toxics problems around
the country. The current level of effort being made to confirm these
results with actual monitoring data is not sufficient. Additional
grants to States for air toxics monitoring is needed.
Question 3. Is EPA providing adequate flexibility and appropriate
guidance to State and local air pollution agencies to administer the
program for operating permits under Title V of the Clean Air Act?
Response. Appropriate guidance.--EPA fails to provide guidance that
meets a reasonable standard of being timely, consistent, and
appropriate. While things have improved somewhat as the Title V program
has matured, policy decisions still take too long to make and issue.
Too often, policy decisions vary from region to region and the policies
may cause problems for the permitting authorities (e.g. States) that
need to implement the Title V program.
In 1992, EPA promulgated the Part 70 rules, thus codifying Title V
of the Clean Air Act. States then developed operating permit programs
under those rules and began to permit facilities. EPA and the States
both learned a great deal about operating permits since 1992.
Unfortunately, EPA and the States did not always learn the same
lessons or desire the same outcomes. EPA sought to clarify its
intentions by developing policies and by revising the rules. States
then needed to adapt their programs to the changing field of play,
regardless of the impact on their programs.
EPA still plans to amend the Part 70 rules, particularly in the
areas of modifications and public participation. EPA has been working
to change the modification provisions for several years, floating
proposals at least twice. While changes are anticipated, no regulations
have yet been promulgated.
In the absence of a national policy, EPA's regional offices provide
guidance. All too frequently, that guidance varies from region to
region. Companies with facilities in several States tend to desire the
interpretation that best suits their desires.
Finally, EPA's policies may cause problems for the State
implementing the program. One example is the conflict between the
``once-in, always-in'' policy that EPA has applied for the Part 63
National Emission Standards for Hazardous Air Pollutants (NESHAPs)
program and the flexible policy for the Part 70 program. The Part 70
policy allows facilities to move in and out of major source status.
Another problem is EPA's interpretation that a Title V permit
cannot supercede the, permit from which a specific condition is drawn.
This causes confusion, as both the Title V permit and the previous
permit must be actively maintained; if a conflict arises over the
interpretation of the Title V condition, which permit governs the
situation?
Flexibility.--Title V creates nothing more than a permit to
pollute. Facilities close to the threshold do have a strong incentive
to reduce emissions below thresholds, in order to get out of the
enormously complex and costly Title V requirements. However, once a
permit is issued, or the source safely escapes permitting by reducing
just enough to stay under thresholds, there is little incentive to
further reduce the impact a facility has on the environment.
There is a constant need to improve the way we protect our
environment. Minnesota does not have all the answers as to how to go
about doing this, and therefore desires the authority to experiment.
Current options available to conduct such experimentation are limited
at best. For example, Minnesota created a simplified and streamlined
multimedia permit that replaced Title V and other Act provisions for a
3M facility in Hutchinson, Minnesota. Stakeholders in Minnesota
critically evaluated this alternate permit. A specific Minnesota law
was passed (unanimously in both the Minnesota House and Senate) to
provide boundaries and guidelines for such experiments in Minnesota.
This experiment with 3M was not perfect. However, there were assurances
it would be protective of human health and the environment. Yet, in the
end EPA was inflexible and overrode the desires of the State to
implement this experiment. This is the type of experiment Minnesota
believes it should have the authority to:
develop,
undertake,
evaluate,
report on, and finally,
apply lessons learned to improving how Minnesota's
environment is protected.
There is more than one way to peel an apple. The method outlined in
Title V, although valid, may not be the way to get the best performance
or be the most efficient use of environmental protection resource
dollars. Minnesota is committed to continuous improvement, and
therefore is committed to gaining the authorities needed to conduct
experiments to this end.
Question 4. Are EPA's regulations under the Act sufficiently clear,
consistent and timely to allow your State to properly implement Clean
Air Act programs for which it is responsible?
Response. EPA's regulations and the guidance provided by EPA fail
to meet the standard of being clear, consistent, and timely. This is
true for a large fraction of the Clean Air Act programs, and includes
the Title V permitting program, the New Source Review (NSR) major
source permitting program, and several of the New Source Performance
Standards (NSPS) and the National Emission Standards for Hazardous Air
Pollutants (NESHAPs).
EPA is cursed with trying to apply its regulations consistently to
a variety of situations, many with circumstances that would have been
difficult, if not impossible, to anticipate. Applying the regulations
in such situations leads to a lack of clarity and consistency. Trying
to remedy the lack of clarity and consistency causes the lack of
timeliness.
For example, the NSR regulation lacks clarity sufficient to deal
with all situations. For that reason, EPA developed (and continues to
develop) guidance that interprets the regulation. EPA has issued enough
guidance memoranda to fill at least five three-inch three-ring binders.
To provide permittees throughout the country with a ``level playing
field''--a clear, consistently interpreted regulation--the permitting
authorities that implement NSR should be familiar not only with the
regulation, but also with all the guidance. Because of the breadth of
the guidance, this is a daunting task.
However, the permitting authorities are not alone in their need to
know the regulation and the guidance. Each of EPA's regions must also
be able to interpret and apply these regulations consistently.
Frequently, the interpretations from different regions on a given
situation vary significantly. Then, the affected source or industry
group often seeks to have the most lenient interpretation applied
nationally.
To try to solve this problem, some interpretations are raised to
EPA headquarters. Because of EPA's structure and process, the
decisionmaking effort typically involves a variety of competing
interests and opinions. The entire process cannot be completed in a
timely manner.
Most States currently have large backlogs of unissued Title V
permits. This is partly a clarity issue due to the tremendous task of
deciphering how the Title V regulations apply to given sources.
Minnesota was one of the first States to gain approval for implementing
a Title V permit program, but is now faced with an initial issuance
backlog that will take approximately 4 years to work through. This lack
of issuance of Title V is not due to a lack of desire by Minnesota
Pollution Control Agency (MPCA) staff. On the contrary, it is due to
the commitment of MPCA staff to conduct the process in full compliance
with the Title V and Part 70 permit requirements. The process of Title
V permit issuance has turned out to be a much more complex and time
intensive activity than anticipated.
One possible solution to this dilemma would be to create a category
of Title V sources, say under a threshold double the current limits
that receive a streamlined permit approach. Another possibility might
be to extend the maximum duration for at least some sources from 5
years to 10 years or longer. If Congress is serious about addressing
this State dilemma, Minnesota would be more than willing to help
develop creative solutions that do not compromise the protection of the
environment.
______
Responses by Karen Studders to Additional Questions from Senator Inhofe
Question 1. From the State and local government point of view, what
aspects of the Clean Air Act are currently working well?
Response. Most of what the Clean Air Act (Act) set out to
accomplish has been accomplished in Minnesota. For example: (1)
Minnesota meets all National Ambient Air Quality Standards; (2) total
pollutant emissions are down for historic highs; (3) Minnesota has an
effective permit program; and (4) acid deposition in Minnesota has been
reduced to what we believe to be environmentally safe levels.
Nationwide the Act has resulted in reduced emissions and improved air
quality through a strong consistent Federal presence. Certain clear
victories stand out such as the acid rain provisions and removal of
lead from gasoline. Progress has also been made in the more thorny
recalcitrant problems such as ozone and air toxics. For the most part,
the Act also lays out a constructive framework for State/Federal
relationships. There are problems that remain, and limited
modifications may be necessary to solve them.
Minnesota believes that the Act falls short in two areas. First,
once compliance is achieved with the standards in the Act (which is the
case with most facilities in Minnesota), there is little incentive for
further improvement. In Minnesota, in general, data trends are already
showing a flattening of performance in regards to improving air quality
for regulated pollutants. Second, there are emerging air quality issues
that are not well addressed by the current regulatory system. These
issues, such as urban exposure to air toxics and reduction of multi-
source regional pollutants such as mercury, do not fit well under the
command and control model of the current regulatory system, and are not
well addressed by the 1990 amendments to the Act.
Question 2. From the State and local government point of view, what
needs to be improved in the Act in order to provide you more
flexibility and responsibility?
Response. The MPCA has been and is continuing attempts to work with
the Environmental Protection Agency (EPA) under various regulatory
innovations programs. These programs include Project XL and the Common
Sense Initiative. In addition, the MPCA had a key leadership role in
the development of the Environmental Council of States (ECOS)/EPA
regulatory innovations agreement. When reinvention efforts were
implemented in the mid-1990s, the MPCA was an enthusiastic participant.
The MPCA believed the initiatives presented the opportunity to improve
the environment and become more efficient at the same time. However,
MPCA experience with the reinvention initiatives has been
disappointing. The effort to develop pilot projects has been resource
intensive and has resulted in incremental improvements at best. A key
part of why the EPA reinvention initiatives have had disappointing
results is EPA itself. Instead of allowing innovation experiments to
happen, and then evaluating and applying the lessons learned, EPA chose
to focus on requiring guarantees of up-front success. This has resulted
in resource intensive up-front review and micro-management of the
proposed pilots. The outcome is apparent, very few participants
stepping forward to pilot the initiatives. Therefore, little is being
learned from innovation pilots as to how to improve the way regulators
conduct our environmental business. The MPCA believes that it is
difficult, if not impossible, for a multi-faceted and complex
organization like EPA to develop pilot projects outside the core
environmental regulatory programs.
The MPCA supports and would like to see Federal legislation to give
EPA clear direction in developing innovative approaches that result in:
(1) a reduction of impacts on the environment;
(2) an efficient use of resources; and
(3) a better understanding of environmental impacts by the affected
public.
The MPCA believes a dialog on how to best implement innovative
strategies is important. The premise of this dialog is the fact that
current regulatory systems can and should be improved. The MPCA
believes the focus at this point should be to facilitate experiments to
identify how improvements can be made. The experiments should be
conducted meeting the following four conditions:
(1) will not harm public health or the environment;
(2) will be consistent with existing Federal law;
(3) will have a higher level of accountability to the public; and
(4) will have evaluation and recommendation requirements to report
lessons learned.
Therefore, a Federal legislative action to simply facilitate
experiments meeting the above criteria would be adequate. After results
of experiments are known, recommendations could be made as to how the
environmental regulatory system can be improved.
Furthermore, the MPCA believes the primary reason for the
disappointing results under current EPA innovation initiatives is the
amount of resources required to develop and implement pilot projects.
Minnesota as well as many other States, passed State legislation to
conduct innovation-related pilot projects meeting the four criteria
stated above. The MPCA believes that rather than create a new EPA
program, Federal legislation should simply facilitate the ability of
States to conduct and report on innovation pilot projects. Therefore,
the MPCA recommends this provision state explicitly that EPA delegate
the implementation of an innovative strategy program to a State if the
program meets the above four criteria.
Question 3. When the Clean Air Act began in the 1970's, no one had
much experience. When the Act was amended in 1990, the States had
little experience compared to the Federal Government. With the
experience and expertise of everyone today, what parts of the Federal
program can effectively be delegated to the States?
Response. The Federal Government's role, in most cases, should be
to enact laws and promulgate regulations that set national standards.
Ideally, these standards are the desirable national environmental
outcomes. The role of individual States is then to design programs that
achieve the desired results.
Where the States cannot individually produce the desired outcome,
the Federal Government must intercede. This may occur because the
problem is regional, national, or global in effect; or because a State
is unable or unwilling to take the steps needed to produce the desired
goal.
When the scope of the problem is regional (e.g., ozone or regional
haze), the Federal Government should encourage States to work together
to solve the problems, perhaps including acting through its regulatory
authority to mandate action by recalcitrant States. The Federal
Government should provide a strong coordinative roll. For national and
international problems (e.g., acid rain, mercury, or global warming),
the Federal Government must take the lead in designing programs that
reduce adverse impacts.
Similarly, the Federal Government must intercede when a State fails
to act to clean up problems that are within the State's own sphere of
influence. When, however, a State has demonstrated that it is achieving
the desired goal or that it is making adequate progress toward it, the
Federal Government should grant the State greater freedom to make
decisions about how it continues to conduct its activities. This is
particularly true for pollutants that do not affect adjacent States.
States have demonstrated that they have varying capabilities to
manage Federal environmental programs. Certain States need greater
oversight, as they have failed to clean up their problems with or
without Federal assistance. However, over time, others have
demonstrated that they can achieve the desired outcome with limited
Federal oversight. These States should be given greater authority in
using their resources to focus on the problems that the States have
identified to be the most serious, and to use the tools that they deem
to be most appropriate.
States have achieved much of their early success with a ``command-
and-control'' approach. Today however, most major pollutant sources
have the resources and the commitment to work as partners in protecting
the country's environment. States like Minnesota need to leverage these
partnering opportunities to move to the next level or ``second wave of
environmental protection'' while reducing resources focused on
traditional regulatory programs.
It is Minnesota's desire that Congress and the Environmental
Protection Agency (EPA) begin to grant States the authority to
determine how to meet standards and how to create leveraged
opportunities with the regulated community. Congress and EPA need not
look far for ideas to create an atmosphere of innovation that will
allow this type of partnering to occur. The General Accounting Office
July 1997 report on ``Challenges Facing EPA's Efforts to Reinvent
Environmental Regulation'' provides an accurate analysis of challenges
with specific recommendations on ways to overcome these types of
challenges.
On a broader scale, the National Academy of Public Administration
(NAPA) has produced three reports in recent years on reinventing the
national environmental protection system. Congress could do well by
taking NAPA's recommendations to heart and taking concrete steps to
implement them.
Question 4. I believe the trading program for acid rain has worked
well. We are constantly being told we should expand the free market
concepts of the Clean Air Act. My question is in which areas of the Act
would a free market approach work?
Response. In Minnesota we do not have experience with implementing
local air quality trading programs, although we are a leader in water
quality trading and can transfer that experience. It would appear that
``scale of effect'' and simplicity would be two of the most important
factors when considering candidates for trading programs. The less a
pollutant acts locally, the better it is as a candidate for trading.
This trait allows trading over large areas without creating adverse
local impacts. The second trait, simplicity, would argue that problems
created largely by one or two types of sources would be better
candidates than problems caused by multiple source types.
Global warming gases, mercury, NOX, and further sulfur
dioxide reductions might be the best candidates from the ``scale of
effect'' perspective. As an alternative, a system focused on one or two
source sectors, such as electric utilities, could address multiple
pollutants, and yet retain simplicity.
______
ATTACHMENT 1
Minnesota Pollution Control Agency Staff Paper on Air Toxics (Initial
Report, November 1999)
Executive Summary
air toxics: the invisible threat
The U.S. Environmental Protection Agency's (EPA's) recent national
study, the Cumulative Exposure Project (CEP), alerted the Nation to the
possible risk of cancer faced by Americans over a lifetime of breathing
toxic air pollutants in outdoor air. This risk is in addition to other
risks, for instance, lifestyle choices such as smoking. The CEP's
conclusions resulted from computer modeling to estimate air toxics
emissions and, therefore, potential exposure, for each state. The CEP
predictions for Minnesota parallel their predictions for other States
with similar population centers.
The CEP marked the first time that the EPA had attempted
comprehensive modeling to predict ambient concentrations at a census-
tract level for each of the 48 contiguous States. The study used 1990
emissions data and a computer model to calculate air toxics
concentrations. Few actual measurements of these pollutants are
available nationally. Unlike criteria air pollutants, such as carbon
monoxide and sulfur dioxide (which have been monitored since the
1970's), there is no national air toxics monitoring system. Minnesota
is fortunate to have one of the best toxics monitoring systems in the
Nation in terms of number of pollutants monitored, duration of
monitoring and diversity of monitoring locations.
The Minnesota Pollution Control Agency's (MPCA's) ambient (outdoor)
monitoring data generally supports the CEP's conclusion. According to
both CEP models and the MPCA's monitoring data, ambient concentrations
of 10 toxic compounds exceed health benchmarks\1\ in some or all
regions of Minnesota. Most of the increased cancer risk that can be
attributed to these compounds are due to motor vehicle emissions. In
fact, a comparison of the CEP's most modeled average concentrations
with Minnesota's monitored concentrations indicates that, for almost
two-thirds of the air toxics with both modeled and monitored data, the
CEP's model actually underestimated current concentrations. In other
words, the situation appears to be even more serious than the CEP
indicates.
---------------------------------------------------------------------------
\1\ A health benchmark is a concentration of the pollutant below
which there is likely to be no public health concern. If the Minnesota
Department of Health (MDH) has drafted a health risk value for a
pollutant, that value was used as the health benchmark in this paper.
---------------------------------------------------------------------------
This staff paper is intended to encourage further dialog and
research on air toxics, and provides the first comprehensive analysis
of the air toxics data collected from Minnesota's monitoring system.
This analysis points to the need to re-examine MPCA resources and how
they may be directed to air toxics issues, and to the need to influence
national efforts to most effectively reduce public health risks
associated with air toxics.
Shown are the locations where monitoring data for this paper were
collected.
[GRAPHIC] [TIFF OMITTED] T1527.004
pollutants of concern
The CEP evaluated 148 toxic air pollutants using computer models.
The MPCA monitors (actually measures in the air) 75 air toxics. When
compared against health benchmarks, 10 pollutants exceeded health
benchmarks in either modeled or monitored concentrations or both.
All 10 of Minnesota's pollutants of concern appear on the list of
33 hazardous air pollutants that the EPA judged to pose greatest threat
to public health in urban areas. Taking into account current
information, the 10 pollutants fall into two groups:
1. Current information warrants action.--Enough information exists
now to say we are concerned about levels in the ambient air and the
potential adverse long-term health effects posed by formaldehyde,
benzene, carbon tetrachloride and chloroform. The first action
recommended is sharing information about the chemicals in this group
with our partners and the public.
2. Current information highlights need for more study.--Current
data suggest that ethylene dibromide, 1,3-butadiene, acrolein, arsenic,
nickel and chromium are pollutants of concern, but additional
information is necessary to confirm their significance. Of the six
pollutants in this group, it appears likely that, with additional data,
nickel will fall from the list. In addition, diesel particulate matter
and/or polycyclic organic matter (POM) may be added after further
study.
Group 1: Current Information Warrants Action
Formaldehyde.--The mean ambient air concentration of
formaldehyde measured at every site (25 sites total, both urban and
rural) exceeded the cancer health benchmark of 0.8 micrograms ( g) per
cubic meter (m3). Concentrations appear to be stable over
the past 4 years. The widespread exceedances of health benchmarks for
formaldehyde, which is a respiratory irritant and probable carcinogen,
suggest that a public health issue exists. Roughly two-thirds of the
formaldehyde in the ambient air is due to mobile sources--cars and
trucks.
Benzene.--Both monitoring and modeling data show benzene
concentrations above the lower range of the health benchmark in the
Twin Cities metropolitan area and in the State's smaller cities,
including Duluth, Rochester, Mankato and St. Cloud. About two-thirds of
benzene emissions can be attributed to mobile sources. In the
metropolitan area, there has been a slight decrease in benzene
concentrations since 1991, for which the reason is unclear. Given the
magnitude of the measured concentrations, it would appear that benzene,
a known human carcinogen, presents a potential health problem in both
the Twin Cities metropolitan area and in smaller population centers.
Carbon tetrachloride.--Although production of carbon
tetrachloride has been banned in the United States since 1996, both
monitoring and modeling data show that carbon tetrachloride
concentrations in the air exceed cancer health benchmarks everywhere in
Minnesota (as well as throughout the nation, according to the CEP).
Minnesota's monitoring data do not show a decrease in concentrations
since the ban. Carbon tetrachloride is very persistent in the
atmosphere and can take decades to degrade. Carbon tetrachloride is a
probable human carcinogen and also causes damage to the liver and
kidneys.
Chloroform.--According to monitoring data, chloroform
concentrations pose a concern at one location in Minnesota (the CEP did
not predict any exceedances of the health benchmark). This location is
in International Falls, adjacent to a U.S. paper mill and across the
river from a Canadian paper mill, both of which are likely sources of
the chloroform emissions. In addition to being classified as a probable
carcinogen, chloroform may be involved in reproductive and
developmental disorders. Target organs for chronic chloroform toxicity
are the liver and the central nervous system.
Group 2: Current Information Highlights Need for More Study
Ethylene dibromide.--Monitored ethylene dibromide
concentrations exceed health benchmarks in some rural locations of
Minnesota (the CEP did not predict any exceedances). Measured
concentrations were highest in Pipestone, in western Minnesota. More
investigation is needed to determine the reasons for the high
concentrations in that location. Ethylene dibromide was formerly used
as a fumigant for agricultural purpose, but has been banned for this
purpose since the 1980's.
1,3-butadiene.--Because the CEP model predicted that this
chemical would exceed health benchmarks in the Twin Cities metropolitan
area and smaller cities, the MPCA has begun to develop the capacity to
monitor 1,3-butadiene (the agency currently has no such capacity).
Monitoring data will help confirm the reliability of the CEP model for
this pollutant. About two-thirds of 1,3-butadiene emissions are
predicted to come from mobile sources.
Acrolein.--The CEP estimates that acrolein concentrations
exceed the health benchmark in the Twin Cities metropolitan area and in
many smaller cities across Minnesota. As with 1,3-butadiene, the MPCA
currently has no monitoring data to confirm the accuracy of this
prediction, but is studying resources available to begin monitoring.
Acrolein is a respiratory irritant emitted mostly by area (64 percent)
and mobile (36 percent) sources.
Arsenic.--The method used for measuring arsenic
concentration in the ambient air is more of a screening tool, as the
lower detection limit of the method is greater than the health
benchmark. It appears that arsenic concentrations may exceed health
benchmarks at some locations, but more refined measurement is needed to
confirm this.
Nickel.--The CEP predicts nickel to exceed the health
benchmark in two census tracts in the Twin Cities metropolitan area.
Monitoring data from all locations were well below the health benchmark
and, in some cases, even lower than model predictions. More work is
needed to measure nickel concentrations in the air in different
locations, such as those near suspected point sources. More sensitive
techniques might also confirm whether this chemical should be of
concern.
Chromium.--Minnesota's monitoring data indicate that
chromium concentrations may exceed the health benchmark at some
locations, but not necessarily those predicted by the CEP. The health
benchmark for chromium is less than the lower detection limit for the
chromium measurement method used. Most of the monitoring data are below
the lower detection limit of this method. More work is needed to be
able to better quantify chromium concentrations and to speciate
chromium, so that it is possible to determine how much of the most
toxic form of this chemical exists in the ambient air.
Diesel particulate matter/POM.--Another group of
pollutants may be added as a pollutant of concern in Minnesota after
more study. Diesel particulate matter contains a ``soup'' of chemicals,
most of which are organic (carbon-based) substances generated from the
incomplete combustion of diesel fuel. Polycyclic organic matter (POM)
consists of more than 100 compounds, including the group of organic
compounds known as polycyclic aromatic hydrocarbons (PAHs). The
California Air Resources Board (CARB) lists POM, PAHs and their
derivatives as toxic air contaminants. CARB has identified diesel
particulate matter as the primary air toxic pollutant of concern and a
significant contributor to the overall cancer risk from air toxics. EPA
is considering diesel particulate matter for classification as a
hazardous air pollutant.
additive effects of air toxics
It is important to remember that compounds modeled in the CEP and
monitored by the MPCA are just a fraction of the anthropogenic (human-
caused) pollutants emitted into the air each day. In other words,
ambient air contains very many pollutants, of which the MPCA monitors
only a few. These pollutants can have synergistic effects, each
compound having its own toxicity and, in addition, having more complex
toxicities when combined with other air pollutants.
There is little research available on risk to public health from
exposure to multiple ambient air toxics. The additive effects of
pollutants or the characteristic of a local emission source may make
other pollutants, including those not singled out in this paper, a
concern.
Currently, the primary health concern from exposure to multiple air
pollutants is increased cancer risk. Cancer is the toxicological
endpoint of concern for 9 of the 10 air toxics targeted in this paper.
More work needs to be done to determine the significance of noncancer
endpoints, such as cardiopulmonary, neurologic, immunologic and
reproductive/developmental systems effects.
majority of risk is from mobile sources
The majority of the risk posed by all the pollutants modeled in the
CEP comes from mobile sources (cars, trucks, buses, etc.). Area and
point sources account for about equal portions of the remainder of the
risk. In the past, the MPCA has focused most of its resources on
regulating point sources. The EPA's recently-
published Urban Air Toxics Strategy focuses on regulation of area and
point sources, and gives less emphasis to specific regulation of toxics
from mobile sources. While point sources have an impact at a local
level and it remains important to ensure that their emission levels are
protective of health, mobile sources impact a much wider geographic
area. We believe this is important and must be reflected when the MPCA
designs its 5-year work plans.
Shown are the contributions by source to excess lifetime cancer
risk based on CEP data.
[GRAPHIC] [TIFF OMITTED] T1527.005
urban areas most affected
Air pollution is not evenly distributed geographically (except for
certain pollutants, such as carbon tetrachloride, which is very
persistent and relatively uniform in concentration across the state). A
pattern exists for many of the toxics emitted in significant amounts
from mobile and area sources (e.g, acrolein, formaldehyde, benzene and
1,3-butadiene). The highest concentrations of toxics tend to be found
in the center of the Minneapolis-St. Paul metropolitan area, with
concentrations decreasing as one moves away from the urban center. In
the rest of the state, most areas have lower concentrations than the
metropolitan area. However, many smaller cities (e.g, Duluth, St.
Cloud, Rochester, Mankato and Moorhead) also have elevated
concentrations of these pollutants that come from mobile and area
sources. Quite clearly, where an individual chooses to live, work and
play affects exposure.
This map shows predicted acrolein concentrations based on modeling
data. Other pollutants in the paper show a similar pattern. The map
illustrates the fact that air toxics are not just a metropolitan area
issue.
[GRAPHIC] [TIFF OMITTED] T1527.006
public sees air toxics as priority environmental issue
The MPCA recently completed extensive public participation efforts
aimed at learning about the environmental values of Minnesota citizens.
These efforts included seven locations around the State for the
``Governor's Forum: Citizens Speak Out on the Environment,'' a
telephone survey to 800 households, and a project called ``Comparing
Environmental Risks.'' In each of the three, air toxics issues ranked
as a high priority with the public.
In the Governor's Forums: Citizens Speak Out on the
Environment, 100 citizens from the Twin Cities metropolitan area ranked
air-quality-related issues as two of their three most important
environmental issues. The forums were held in the spring of 1999.
In the public values survey, also conducted in the spring
of 1999, two of the top four environmental threats as ranked by the 800
respondents were related to toxic air emissions (exhaust from cars,
trucks and buses and emissions from manufacturing facilities and
refineries).
In the Comparing Environmental Risks project, conducted in
1996 and 1997, the citizens jury, stakeholder and MPCA staff groups all
ranked the three sources of air pollution (industrial, mobile and area)
at the top of the list is the risk-based environmental priorities
project.
Based on this information, it appears that the public, especially
in the Twin Cities metropolitan area, is concerned about air toxics and
air-quality-related issues. However, results from the public values
survey also indicate that members of the public feel that air quality
in their own communities is good to excellent and likely to remain so
for the next 10 years. These differing perceptions may present a
challenge to creating solutions, especially for mobile source issues,
which may involve asking individuals to make changes in driving habits.
what's next
The MPCA has created an Air Toxics Lateral Team, which began work
in September 1999. This lateral team consists of three subteams:
(1) Technical Team,
(2) Communications and Reduction Strategies Team, and
(3) Mobile Source Reduction Strategies Team.
The overall goals of this lateral team are:
To identify, communicate and, when possible, address
problems associated with toxic air pollutants, and
To protect human health and the environment from the
effects of air toxics.
The Technical Team continues to study the pollutants themselves.
The initial focus of the Communications and Reductions Strategies Team
will be on sharing the information contained in this staff paper with
the public, and on identifying partners to work with. Communication
pieces will be developed for various audiences using information from
this paper as well as other information. The Mobile Source Reduction
Strategies Team is beginning to develop a work plan that will encompass
all of the MPCA's activities directed at mobile sources of air toxics.
______
ATTACHMENT 2
Report on the Mercury Contamination Reduction Initiative Advisory
Council's Results and Recommendations
1.0 executive summary
The Mercury Contamination Reduction Initiative is a Minnesota
Pollution Control Agency (MPCA) project aimed at reducing mercury
contamination of fish in Minnesota lakes. As part of the initiative,
the MPCA formed an Advisory Council to develop recommendations on
mercury-reduction strategies for the agency's consideration. The
purpose of this report is to document and recommend implementation of
the strategies adopted by the Advisory Council.
Background
Mercury is an environmental issue of significant concern in
Minnesota and around the world. Mercury is a neurotoxin that
concentrates in fish to the degree that eating the fish may expose
humans and wildlife to unsafe levels of mercury. The concentrations of
mercury in fish in most of the Minnesota lakes tested currently exceed
the Minnesota Department of Health (MDH) fish consumption advisory
level. Therefore, as a precaution, the MDH advises people who eat
fish--particularly nursing mothers, children, and women of childbearing
age--to limit the amount of fish they eat.
Mercury is an element found naturally in the Earth's crust. Mercury
is released into the environment through natural events, such as
volcanic eruptions, and through processes, such as fuel and waste
combustion; ore processing; and product manufacturing, use and
disposal. Most of the point discharges of mercury to water have been
reduced or eliminated, so it is estimated that virtually all of the
mercury that now reaches the lakes in Minnesota is due to atmospheric
deposition. More than half of the mercury deposited in Minnesota is
thought to be global atmospheric contamination, the mercury remaining
in the atmosphere for up to a year before it is deposited. It is
estimated that 10 percent of the deposition in Minnesota is due to
mercury emitted in Minnesota. Therefore, a 50 percent reduction in
mercury air emissions in Minnesota is estimated to result in a 5
percent reduction in mercury deposition in the state.
Mercury uses in many products, such as paint, fungicides and
batteries, have been reduced or eliminated. Because of this and other
factors, such as mandated reductions from waste incinerators and other
sources, mercury air emissions in Minnesota are estimated to have
already declined by approximately 45 percent between 1990 and 1995.
mercury contamination reduction initiative process
To ensure that releases of mercury in Minnesota continue to
decline, the MPCA established the Mercury Contamination Reduction
Initiative (hereafter referred to as the ``Initiative''). The MPCA's
goal for the Initiative is: ``To achieve significant reductions of
mercury contamination, using the most cost-effective methods available,
in cooperation with everyone who has an interest in the results.''
To achieve this goal, the MPCA established an Advisory Council made
up of representatives from industry, environmental groups and
government to provide recommendations on mercury-reduction strategies
for the agency's consideration (see Table 1 for a list of member
organizations). The Advisory Council met nearly monthly from May 1997
through February 1999. A number of organizations not represented on the
Advisory Council also participated in Advisory Council meetings.
The goal the Advisory Council established is: ``To advise the MPCA
regarding policies designed to reduce mercury contamination and to
recommend policy-oriented changes, taking into account the ability to
reduce mercury contamination, cost-
effectiveness and the need for regional, national and international
cooperation.''
Table 1.--Advisory Council Members
------------------------------------------------------------------------
------------------------------------------------------------------------
Association of Minnesota Counties......... Minnesota Department of
Health
Center for Clean Air Policy............... Minnesota Department of
Natural Resources
Center for Energy and Economic Development Minnesotans for an Energy-
Efficient Economy
Clean Water Action/Minnesota Project...... Minnesota Forest Industries
Cooperative Power/Great River Energy...... Minnesota Hospital and
Healthcare Partnership
Fond du Lac Indian Reservation............ Minnesota Iron Mining
Association
Honeywell, Inc............................ Minnesota Pollution Control
Agency
Izaak Walton League of America............ Minnesota Power
Lignite Energy Council.................... Minnesota Resource Recovery
Association
Metropolitan Council...................... Northern States Power
Minnesota Center for Environmental Recyclights
Advocacy.
Minnesota Chamber of Commerce............. U.S. Environmental
Protection Agency--Region 5
Minnesota Dental Association.............. Western Lake Superior
Sanitary District
------------------------------------------------------------------------
To accomplish its goal, the Advisory Council established a three-
phase process. The purpose of Phase I was to improve the information on
mercury use and release (``mercury inventory''), to identify options
with the greatest potential to significantly and cost-effectively
reduce mercury releases, and to identify strategies that create
incentives for implementing mercury-reduction options. Results of this
work can be found in the Source Reduction Feasibility and Reduction
Strategies (SRFRS) Committee Report, Options and Strategies for
Reducing Mercury Releases. (The SRFRS report is being revised and the
final version is expected to be available in April 1999).
In addition, a committee developed evaluation criteria to
facilitate critical evaluation of the options and strategies. These
criteria, which are defined in the Criteria Committee's Report on the
Strategy Evaluation Process and Criteria Definitions, are: cost
effectiveness, reduction potential, technical feasibility,
comprehensiveness/fairness, social/political feasibility, permanence,
flexibility, compatibility, transferability and verifiability.
In Phase II, a committee was charged with using the strategy
evaluation criteria to narrow the list of potential strategies to be
considered by the Advisory Council. This committee was also directed to
assess the economic impact and contamination-reduction potential of the
strategies.
Results of these analyses are presented in Appendix A and Appendix
B. The package of strategies developed by this committee formed the
basis for recommendations, agreed upon by the Advisory Council in Phase
III of the process.
Advisory Council Recommendations
The Advisory Council achieved consensus on the following
recommendations which, taken as a whole, are designed to achieve the
goals of the Initiative and the Advisory Council.
Mercury Reduction Goal
The Advisory Council recommends establishment of a statewide goal
in 1999 legislation that aims to reduce mercury releases to air and
water (combined) by 60 percent in the year 2000 and by 70 percent in
2005 using 1990 as the baseline year. Failure to meet this statewide
goal is not a trigger for mandatory action in the legislation. The
legislation would require MPCA to conduct a progress review in 2001 and
2005 to reconsider voluntary and mandatory strategies and the goal. The
reduction goal applies to the statewide total of releases from existing
and new mercury sources. As new information regarding mercury releases
changes the 1990 baseline estimate, the goal of a 70 percent statewide
reduction in releases to air and water by 2005 will apply to the
revised 1990 baseline.
National and International Strategies
To significantly reduce mercury contamination in Minnesota, it will
be necessary for reductions in mercury use and release to occur outside
of Minnesota as well as within the state. To maximize mercury-reduction
potential and cost-effectiveness, it makes more sense to implement
certain mercury-reduction strategies on a regional or national level
than only at the State level. The Advisory Council recommends pursuit
of a set of national and international strategies for reducing mercury
use and release, including:
Lowering the threshold above which sources would have to
report mercury releases as part of the Toxics Release Inventory (TRI);
Increasing relevant mercury research;
Developing a comprehensive international mercury
management plan that encourages pollution prevention and ensures that
mercury is managed wisely;
Creating a mercury-related outreach position for Minnesota
to share its success stories and to learn from others;
Instituting a national mercury product labeling program or law;
Evaluating the feasibility of lower emission limits for
sewage sludge incinerators;
Lowering emission limits for medical waste combustors; and
Establishing a credit for early action (early reduction
credits) program.
Minnesota Mercury Inventory, Research, Monitoring and Reporting
The Advisory Council recognized that additional work is needed to
better understand mercury sources, environmental fate, health impacts
and other risks in Minnesota. Toward that end, the Advisory Council
recommends that research be conducted in Minnesota that is focused on
addressing mercury issues of particular importance to Minnesota. The
Advisory Council also recommends that efforts be applied toward
improving the comprehensiveness and accuracy of the existing State
mercury inventory. In addition, the Advisory Council recommends that
the MPCA develop monitoring, measurement and reporting protocols that
would improve data consistency both within and across sectors and
result in a better accounting of mercury use, release and reductions.
These protocols will be developed to enhance the possibility that
mercury reductions achieved in Minnesota since 1990 could earn
recognition or credit under any future Federal programs.
Reducing Purposeful Use of Mercury
The Advisory Council determined that the lowest-cost strategies for
reducing mercury tended to be those related to mercury-containing
products. In order to maximize the cost-effectiveness of mercury-
release reductions, the Advisory Council recommends the following
strategies for implementation in Minnesota:
Existing Products.--To improve the likelihood that mercury
contained in products currently in use does not get released to the
environment, Minnesota should improve the mercury-collection
infrastructure, conduct clean sweeps to collect unneeded mercury, and
step up enforcement of existing bans regarding disposal of mercury-
containing products. In addition, sources are encouraged to label
mercury products still in use to ensure proper disposal.
New Products.--To discourage use of mercury and encourage
proper management of new mercury-containing products, Minnesota should
increase enforcement of existing mercury labeling laws and reduce
demand for mercury-containing products by discouraging procurement of
mercury-containing products by State government.
Education and Promotion.--Education and promotion are
needed to maximize the effectiveness of strategies listed above, as
well as to reach larger audiences. To achieve this, the Advisory
Council recommends strategies that educate the general public, schools
and target industries. The Advisory Council also recommends education
geared specifically toward informing dentists of appropriate amalgam
waste management practices and encouraging building contractors to
reduce use of mercury products in buildings.
Voluntary Agreements
As an essential strategy to achieve the mercury-reduction goals,
the Advisory Council recommends that mercury sources be encouraged to
develop voluntary agreements with the MPCA to reduce or work toward
reducing mercury use and releases. Voluntary agreements provide a
mechanism to achieve reductions from all sources, including those for
which no cost-effective solutions were identified. Participation is
open to any interested source; however, priority will be given to
sources with releases in excess of 50 lb. per year that are not,
already expected to significantly reduce their mercury use or release.
funding mechanisms
The Advisory Council recommends that the MPCA and Office of
Environmental Assistance prioritize their current budgets and staffing
as well as other agency resources on mercury-reduction strategies prior
to seeking general fund sources to cover cost of the strategies. After
this is done, the Advisory Council supports a request of money from
general fund sources to cover costs incurred by the state, counties or
other government bodies necessary to implement the mercury-reduction
strategies recommended by the Advisory Council.
__________
Prepared Statement of Jeffrey A. Saitas, P.E., Executive Director,
Texas Natural Resource Conservation Commission
introduction
Good afternoon, Mr. Chairman and members of the subcommittee. My
name is Jeff Saitas and I am executive director of the Texas Natural
Resource Conservation Commission. Our agency implements a broad range
of regulatory and nonregulatory activities that protect the health of
Texans and their environment. The agency is led by a three-member
commission appointed by the Governor. About 3,000 staff members work in
Austin and at 16 regional offices around the State. Clean air issues
continue to be one of the agency's top priorities and toughest
challenges.
Thank you for the opportunity to testify about our experiences
implementing the Clean Air Act and about our suggestions for
improvement. I will highlight a successful planning process and point
out where we feel held back, namely by the lack of timely Federal
action and clear definition of the roles of local, State, and Federal
Government to regulate emissions.
planning process success
First, you've asked about what's working in Texas. One successful
effort has been the development of a State Implementation Plan to
address ozone problems in the Dallas-Fort Worth area. Through a
partnership between State, local, and Federal Governments; by working
with a wide variety of interested parties; and by seeking public input
throughout the process, we've developed a plan that will clean up the
air in the Dallas-Fort Worth area.
The proposals developed for the Dallas-Fort Worth area are based on
recommendations from local leaders and the community that target
problem areas. They include local government controls, such as changes
to building codes and transportation control measures; State controls
on industrial point sources, principally power plants, and a more
effective vehicle emissions testing program; and Federal controls such
as automobile emission standards and cleaner fuels. The Dallas-Fort
Worth portion of our State Implementation Plan was submitted to EPA in
April of this year and determined to be administratively complete.
implementation process problems
Unfortunately, elements of the Plan have been challenged by those
industries that will be affected--particularly the electric utilities,
cement kilns, diesel engine manufacturers, and the airlines. One of the
most significant issues raised by this litigation is the question of
Federal preemption. Several elements of our Dallas-Fort Worth plan have
been challenged in court on the grounds that those control strategies
are reserved for Federal action. In addition, Federal actions often
occur too late for their full air quality benefits to be taken into
account by States to meet Clean Air Act attainment deadlines.
The Clean Air Act SIP process was designed to be a partnership
between local, State, and Federal Government. For instance, the Act
requires Federal agencies such as EPA, the Federal Aviation
Administration, and the U.S. Army Corp. of Engineers to take steps to
control emissions. On the other hand, if our Federal partners fail to
control these emissions, or take too long to do so, the sources that
the State can control will have to do more than their fair share. The
problem here is the extra burden may be more than these sources have
the ability to reasonably achieve.
conclusion
To remedy this problem we need two things.
First, we need a true partnership--one that recognizes
that Federal, State, and local performance are required for a
successful SIP; without any one of these partners, the equity of the
solution is compromised.
Second, we need very clear guidance on precisely what
those roles are and how they will be performed.
Thank you again for the opportunity to testify today. We look
forward to working with the subcommittee and all interested parties.
______
Responses by Jeffrey A. Saitas to Additional Questions from Senator
Inhofe
Question 1. From the State and local government point of view, what
aspects of the Clean Air Act are currently working well?
Response. In some ways, the Clean Air Act has been working well.
The biggest evidence of this is the fact that, overall, the air in the
United States is cleaner than it was at the time of passage of the Act
in 1977, and its amendment in 1990. As you noted in one of your
questions, the acid rain program found in Title IV of the Act has
helped to reduce acid rain efficiently. Likewise, the National Emission
Standards for Hazardous Air Pollutants program is also likely to yield
significant reductions in emissions of air toxics. The nonattainment
and mobile source programs also have yielded reductions in emissions of
pollutants for which there are National Ambient Air Quality Standards
(NAAQS).
For example, Texas has received the following specific
environmental benefits traceable to well functioning components of the
Federal Clean Air Act and its amendments:
Benzene, a known human carcinogen, sharply dropped at our
ambient air monitoring sites in Houston following the introduction of
reformulated gasoline.
Data we have collected under the Photochemical Assessment
Monitoring Station Program have been useful in developing new State
Implementation Plans for ozone.
Finally, it should be noted that, while some of these programs have
yielded environmental benefits, they could be made more effective, more
flexible, and more cost-efficient.
Question 2. From the State and local government point of view, what
needs to be improved in the Act in order to provide you more
flexibility and responsibility?
Response. First, duplication and conflict between State and Federal
requirements that does not improve air quality should be eliminated.
For example, Texas has a program to review proposed new sources of air
emissions that predates the Federal program, covers more sources and
reviews the potential health impacts of more pollutants than the
Federal program. In cases like this, where States have existing and
effective programs, Federal program requirements are only different,
not better. The Act as implemented should recognize this fact, and
allow programs to differ in order to avoid duplicative or contradictory
requirements on the regulated community or State environmental
programs.
Second, it should be recognized that the NAAQS program provides
little to no incentive for actively seeking to reduce emissions in
order to remain in compliance with the standard. The lion's share of
the attention and resources focused on criteria pollutants has always
been on nonattainment areas coming into attainment. Even the Act itself
devotes exponentially more space to establishing requirements for
nonattainment areas than to addressing areas that currently are in
attainment. At a minimum, the Act should provide incentives such as
flexibility or delayed designation of nonattainment areas that
voluntarily take steps to reduce criteria air pollutants.
Third, the prescriptive requirements in the Act for nonattainment
areas should be examined. With many more areas and many more rural
areas potentially violating the new and revised NAAQS, some of the
current prescriptive regulatory requirements which made sense for
reduction of pollution in urbanized areas may not have the same
environmental benefit in largely rural areas. Requirements such as
immediate, mandatory conformity, new source review (NSR) and even
mobile source controls may not effectively address exceedances of the
new standards. The Act should allow flexibility in these areas to apply
the types of control measures that make the most environmental sense
for their specific circumstances and not require the imposition of
controls that have little benefit.
Fourth, the Act should require consideration and coordination of
deadlines under other Clean Air Act program requirements when
developing compliance deadlines for new programs or NAAQS. These
deadlines must be consistent, particularly when compliance with one
program can preclude compliance with another. An example of this
problem is presented in the new NAAQS for ozone, fine particulate
matter and regional haze. Each of these programs will require the
reduction of virtually the same types of pollutants, but each program
has separate and sometimes contradictory deadlines. These requirements
should be harmonized to reduce duplication of planning requirements on
the States or control requirements on the regulated community.
Question 3. When the Clean Air program began in the 1970's, no one
had much experience. When the Act was amended in 1990, the States had
little experience compared to the Federal Government. With the
experience and expertise of everyone today, what parts of the Federal
program can effectively be delegated to the States?
Response. At the time of initial passage of the Act, many States
had very limited air pollution control programs, so that the Federal
Act focused on establishing a floor for State programs, which included
specific program requirements that any facility in a State had to meet.
One might expect that, as States have become more sophisticated and
more active in controlling air pollution, the Federal Government would
have become less involved in daily management of State air pollution
issues. On the contrary, it has become more involved, to the point of
attempting to incorporate entirely new State source review programs. At
the same time, States and industry have experienced a corresponding
explosion in the volume and level of detail in Federal environmental
regulations. Despite this regulatory expansion, we are often still
unable to answer basic questions that citizens want to know: Is the air
around my child's school safe? Can I go outside?
Given this paradox, I believe that the Clean Air Act needs to
change in two basic ways. First, both States and the Federal Government
must move to a results-
oriented mode that answers these basic questions. This includes a shift
from a focus on rigid, detailed regulatory requirements to a focus on
monitored environmental results. Second, this shift needs to include a
similar shift in Federal treatment of State programs from an attitude
that attempts to direct day-to-day management of State programs, to one
that emphasizes environmental results.
It would be helpful for the Federal Government to spend some of the
time that could be freed up by ceasing management of State new source
review programs on developing technical information and tools that can
be used by State permitting authorities to implement their approved
programs. Examples include development of information on emerging
control technologies, toxicological information for compounds, emerging
technology for stack and ambient emission monitoring techniques, and
updating and improving Environmental Protection Agency (EPA) sampling
and testing methods. For other permit programs delegated to States, EPA
provides oversight through audits of selected permits after issuance.
Using this procedure for the Clean Air Act would be a more effective
way to use EPA resources.
In addition, the Federal Government should set standards for
conditions that are national in scope such as national power generation
and multi-pollutant control strategies, and standards for upper air and
equipment efficiency. The States cannot measure or enforce rules
without standards against which performance can be measured.
Furthermore, programs to meet local health-based standards should be
delegated to the States.
Question 4. I believe the trading program for acid rain has worked
well. We are constantly being told we should expand the free market
concepts of the Clean Air Act. My question is, in which areas of the
Act would a free market approach work?
Response. In general, a free-market approach should work in any
region where an ambient standard can be established and specific
pollutants and sources can be identified. Regulatory control
requirements are generally the driver for a free market approach.
Texas is now in the process of implementing two additional free
market approaches to pollution control. The first is driven by Senate
Bill 7, enacted by the Texas Legislature in 1999, that mandated for
electric utilities a 50 percent reduction of emissions of nitrogen
oxides (NOX) and a 25 percent reduction of SO2.
This requirement is implemented under an allocation system modeled on
the Title IV acid rain trading program.
The second free market approach is prompted by a proposed 90
percent reduction of NOX emissions from 1997 levels for
stationary sources as part of the State Implementation Plan (SIP) for
the Houston/Galveston area. This mandate has been coupled with new
banking rules to allow for a mass cap and trade program in that area.
The cap will effectively shrink the emissions in the area over time to
a level consistent with the attainment strategy and allow the trading
of allocations on the open market. In Texas we are exploring an
expansion of the cap and trade program to other nonattainment areas in
the future.
______
Responses by Jeffrey A. Saitas to Additional Questions from
Senator Voinovich
Question 1. What would be the consequences to your State if EPA
moves forward with designations of ``nonattainment areas'' under the 8-
hour national ambient air quality standard for ozone before the Supreme
Court renders a decision in the case?
Response. The major consequences of EPA moving forward with
designations under the 8-hour ozone NAAQS would be the potential
doubling of Texas' current four nonattainment areas covering 16
counties under the 1-hour standard with the inclusion of the
metropolitan areas of Austin, San Antonio, Tyler, and Longview, and the
expansion of the Dallas-Fort Worth nonattainment area to include the
entire CMSA. These designations in newly-affected areas and counties
will trigger new regulatory requirements such as transportation and
general conformity and Federal new source review, and will start the
clock on State implementation plan requirements for which many of these
areas are not prepared to develop and implement from either a
technology or resource perspective. Furthermore, some of the mandatory
requirements that result from a nonattainment designation may not
effectively reduce ozone formation in some predominantly rural areas.
Because of the cost and possible inefficiency of these requirements, we
believe that designations should only be made after the legal
challenges to the standard have been finally resolved, and should be
implemented with adequate flexibility to take into consideration the
unique characteristics and resource base of each newly-affected area.
Question 2. Is EPA providing sufficient resources currently, as
well as commitments for future resources, to conduct appropriate
ambient air monitoring within your state, including monitoring of fine
particulate matter and determination of the composition of fine
particulate matter in the air?
Response. Texas' monitoring efforts for fine particulate have
received adequate funding from the EPA. Funding for other required
Federal monitoring is also sufficient. We do not know at this time what
funding will be provided for new toxic monitoring initiatives because
funding decisions for that program will be made after the national
pilot project on toxic monitoring is completed. However, if Texas is
required to redirect current monitoring resources to focus on toxic
monitoring, we might have to make substantial reductions or changes in
existing networks because shutting down one monitor in a station of two
or more monitors does not save any appreciable money or resources.
Question 3. Is EPA providing adequate flexibility and appropriate
guidance to State and local air pollution agencies to administer the
program for operating permits under Title V of the Clean Air Act?
Response. Flexibility under the Title V program should be expanded,
and the guidance provided to States should be improved. In general,
EPA's requirements for State programs are monolithic and prescriptive,
regardless of the nature and breadth of State permit and enforcement
programs.
In particular, 40 CFR Part 70, which implements the Federal
operating permit program, is much more prescriptive and inflexible than
the Act in the areas of (1) Responsible Official/Duly Authorized
Representative (RO/DAR), (2) RO/DAR certification requirements, and (3)
the permit revision process. In addition, EPA has in some cases
prevented States from using what flexibility is provided by Part 70.
For example, EPA has not allowed States to use the provision for permit
revisions procedures that are substantially equivalent to those in Part
70.
The latter is particularly difficult because EPA's process provides
no flexibility in the operating permit revision process. The SIP
deadlines cause State regulations to change so fast that it is
difficult to get those rules into operating permits without delays and
complications. Delays and complications are due to the lack of
flexibility in the revision process rather than by physical changes at
a facility. The EPA has been inflexible when interpreting 40 CFR Part
70, even when other approaches meet the letter of Title V. In essence,
the EPA would have the agency (the TNRCC) promulgate incorrect rule
language in order to gain program approval under their interpretation
of Part 70. It would be far better for EPA to allow ``substantially
equivalent'' for revisions, where States can make a determination that
something different is just as good as part 70.
Lastly, EPA has been unsuccessful in finally adopting rules for
Title V in large part because the agency has been too prescriptive
concerning implementation, especially in the area of the permit
revision process and State New Source Review interrelationship with the
Operating Permit. At times, in fact, it appears that the Title V
program is being used to reach State new source review program areas in
ways that are not provided for in the new source sections of the
Federal Act. The EPA should establish the objectives that are to be
accomplished and allow States the flexibility to determine the best
path to accomplish the objectives. Then EPA should oversee whether the
objectives have been accomplished not the details of implementation.
Question 4. Are EPA's regulations under the Act sufficiently clear,
consistent and timely to allow your State to properly implement Clean
Air Act programs for which it is responsible?
Response. No, EPA regulations are seldom timely, consistent, or
clear. Because of State and Federal regulatory overlap, there also is
often duplication in requirements. EPA's guidance typically comes
several years after implementation has begun. States lacking specific
EPA instruction must develop their own mechanisms. EPA subsequently
issues prescriptive guidance, without adequately considering the State
mechanisms already in place. Last, many States do not have the research
resources or statutory authority to determine what future Federal
standards might be.
Examples of untimely, inconsistent or unclear regulations include
the following:
Areas may be designated as nonattainment (which
immediately triggers a conformity requirement) under the new 8-hour
standard before publication of procedures to predict how a new or
modified source would impact the nonattainment or unclassified area;
Section 112(g) of the Clean Air Act requires States to
conduct case-by-case reviews of the toxics emissions from a major
source before EPA issues a MACT standard or air toxics regulation for
that particular category of sources or facilities;
In the Operating Permit program, model permits and example
forms were developed after the first program submissions were required
and the periodic monitoring and compliance assurance monitoring
requirements have taken years to finalize;
The guidance related to the Title III MACT standard and
the rules and guidance relating to Title V create difficulties in
efficiently incorporating the number of regulations (especially MACT
standards) into Operating Permits already in the process of being
issued;
Due to Federal Clean Air Act deadlines, States had to
develop their own nonattainment permit review requirements without the
EPA rules; EPA rules have yet to be issued.
In 1984 EPA was ordered by the D.C. Court of Appeals to
analyze marine vessel emissions for permit applicability for PSD and
NA; EPA has still not done that analysis, and the rules vacated by the
Court still remain in the Code of Federal Regulations;
EPA's proposed new source review reform rules were
published in July of 1996; but that package has never been finally
adopted or withdrawn.
______
Responses by Jeffrey A. Saitas to Additional Questions from
Senator Baucus
Question 1. You mentioned that there are a number of air pollution
sources contributing to Houston's air quality problems which are
outside your control. What is their contribution to nonattainment in
Houston on a percentage of tons per day basis? What specific sources
were you discussing? Would you support new Federal standards to control
those sources?
Response. In the Houston-Galveston 1-hour ozone nonattainment area
approximately a 75 percent reduction in emissions of NOX
will be required to demonstrate attainment. Of that NOX
inventory, mobile source emissions make up over 40 percent. It should
be noted that mobile source emissions include emissions not only from
automobiles and construction equipment, but also from airplanes,
locomotives, marine vessels, jet skis and even lawnmowers. As the Clean
Air Act assigns primary responsibility for the development of mobile
source emissions standards to EPA, affected industries have argued that
Texas is preempted from regulation of such emissions.
Because less than 60 percent of the NOX emissions
contributing to the ozone problem in the Houston area are from
stationary sources, when EPA does not require timely reductions in
mobile source emissions, Texas is faced with the choice of either
regulating mobile sources, over-regulating stationary sources, or not
meeting the statutory deadline. The Act should be revised to require
EPA to develop and implement those control programs over which it has
authority on timeframes consistent with the statutory attainment dates
or States should be allowed to extend those attainment dates as
necessary to take full advantage of such EPA programs. In the
alternative, States in addition to California could be specifically
authorized to adopt standards for categories of mobile sources,
especially where EPA fails to act.
Question 2. What is the fee (per ton of emissions) which your State
currently charges for permitting under Title V of the Clean Air Act?
How much does that generate annually and what is your state's annual
budget for permit activities, implementation and enforcement matters,
emissions and ambient monitoring, modeling, analyses, demonstration,
inventory preparation and emissions tracking, relating to air quality?
What, if any, additional categories of spending are necessary to
support air quality programs?
Response. Texas currently assesses $26 per ton of pollutant which
includes carbon monoxide (CO) that is not included in the Act's Title V
requirements. When this amount is compared to the Title V requirement
with the CPI inflation factor and exclusion of CO, the Texas' rate is
slightly lower than the presumed national requirement. However, Texas
collected approximately $39 million from the Air Emissions Fee during
fiscal year 2000, which we believe adequately covered the costs to
implement our Federal operating permit program. It should be noted that
the Air Emissions Fee statute was recently changed to triple the fee
annually for certain facilities that do not obtain State new source
review permits. This exponential tripling of fees for large facilities
could result in substantially greater fee collection than is required
by the Federal Clean Air Act.
Question 3. Flexibility was mentioned repeatedly during the hearing
as necessary for efficient conduct of States' programs. The Clean Air
Amendments of 1990 created relatively strict deadlines and established
numerous requirements largely because insufficient progress had been
made prior to 1990 in achieving attainment. How can we be certain that
increasing flexibility will not result in slowing current progress?
What specific changes in the Act would be necessary to enhance
flexibility?
Response. States have made significant progress in developing their
air quality programs since the inception of the Act in 1977, and even
since the 1990 amendments. While prior to that time many States may
have needed prescriptive Federal requirements to provide effective air
quality programs, most States now have the expertise and technical
training required for effective air quality improvement programs.
Therefore, it is reasonable to allow the States more flexibility in
designing and implementing programs that are appropriate for the needs
of individual States. To assure that this flexibility does not result
in a slowing of current progress, EPA could be directed to hold each
State strictly accountable for developing, submitting and implementing
their individual plans by the deadlines required by the Act. The Act
currently allows EPA more than adequate tools to enforce this
accountability with the existing sanction provisions.
Question 4. Ms. Studders of Minnesota called for a comprehensive,
integrated national power generation strategy that regulates multiple
pollutants, including NOX, CO2, mercury, and
other toxic pollutants. This would seem to be a sensible combination of
energy and environmental policy. What are your views on such a
strategy?
Response. Strategies that incorporate multiple pollutant control
into national strategies are exactly where Federal policy should be
going. The national power generation network is a perfect example as it
involves toxics, criteria pollutants, and greenhouse gasses. Single
pollutant strategies are less effective and efficient in addressing
these problems.
Question 5. Transport of ozone and other long-range pollutants
continues to be a serious problem for public health and for State and
local air quality planners. Do you have any suggestions for ways that
the Act could better deal with this phenomenon?
Response. Transport of ozone and other pollutants is definitely a
serious problem in Texas as well as other States. We had a very graphic
and visible example of that fact with the smoke from the Central
American fires in the spring of 1998. However, the Act currently
includes a provision to take into account the transport of pollutants
from another country under Section 179b. With respect to domestically
generated pollutants, Texas has addressed the transport problem by
developing a regional strategy for ozone reductions that targets large
sources and mobile emissions from the eastern half of the state. This
strategy should also provide local benefits to areas that are close to
being in violation of ozone standards.
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Prepared Statement of Dennis Hemmer, Director, Wyoming Department of
Environmental Quality
Good afternoon, Mr. Chairman and members of the committee. My name
is Dennis Hemmer, Director of the Wyoming Department of Environmental
Quality.
Thank you for the opportunity to address you on reauthorization of
the Clean Air Act.
My comments today will primarily focus on those portions of the
Clean Air Act dealing with stationary sources. With less than 500,000
people in Wyoming, I don't have much experience with mobile sources or
most of the urban issues related to the Clean Air Act. We also have
good ``atmospheric ventilation,'' our clean air is often passing by at
30 miles per hour.
I think if you look at the results we have achieved in this
country, the Clean Air Act has been very effective. It has focused on
and addressed the issues.
However, since the original passage of the Clean Air Act, each
reauthorization has added another layer to the Act. While each was
effective in addressing the issues of the day, the layers do not
necessarily complement each other. More importantly, some of the layers
create disincentives for emission reductions and penalize facilities
that voluntarily make early reductions.
I believe it is time to start with a clean sheet of paper. With
respect to stationary sources, we need to start fresh and create a
system that provides incentives for reductions.
The first priority must be human health. The current health
standards, essentially the National Ambient Air Quality Standards or
NAAQS, should be retained. It is paramount that we protect the health
of those around facilities and our general population. I would ask that
more emphasis be placed on good science and data related to what is
needed to protect public health. One only has to look back on the
debate over the proposed fine particulate and ozone standards to see
the need for better science and better data.
Once we have protected public health, I believe the other goals
related to stationary sources encompassed by the Clean Air Act are best
served by a market-based system. I believe a properly constructed
market system could provide incentives for emission reductions and
incentives for the development of technology to reduce emissions.
Before I proceed I must give proper credit. Many of the particulars
I will suggest were developed in a paper written by Mr. Bob Neufeld.
For a market system to work, a market must be created by some sort
of limit similar to what was done for sulfur dioxide in the 1990 Clean
Air Act Amendments. This limit usually takes the form of a cap or
benchmark below which emissions must be maintained. Benchmarks would be
set for each pollutant depending on the goal you wish to achieve.
Benchmarks would need to be periodically reviewed. If the results
desired are not being achieved, the benchmark would need to be lowered.
Ideally, the benchmark would create a situation that achieves the goals
and creates an economy that stimulates the development of new
technology to accommodate growth.
However, we need to be realistic. The benchmark may need to be
raised if it is so low that it is determined it cannot accommodate
society. As much as we would all like to see air quality gains similar
to those made over the last 30 years, we need to recognize the
population is expanding and today's technology demands materials and
power.
Remember, these are goals beyond health so I am not suggesting we
sacrifice health for growth.
Setting the benchmarks would be a Solomon-like task. If we embroil
them in the morass associated with today's rulemaking, like today's
rules, needed adjustments will only happen through litigation. A system
is needed that allows adjustments to balance reductions with societal
needs. The Federal Reserve could serve as a model.
The parameters for the benchmarks must be clearly articulated and
be closely tied to an intelligent national energy policy. I am
concerned that today some decisions are being made to reflect agendas
not articulated in the Act. I also believe we are dictating national
energy policy through decisions made under the Clean Air Act. While the
two must complement each other, energy policy needs to be thoughtfully
debated in its own right.
If a market-based system is used, the initial allocation of
emissions is again a taxing task. Most systems use historic emissions
as the baseline. Unfortunately, that system penalizes the cleaner
facilities and rewards dirty facilities. Basing allocations on a
market-based value, I would suggest gross revenue, would be a system
more consistent with market principles.
I believe there are vast opportunities for such a system. We would
be able to create an environment where emission reductions can become
revenue enhancers rather than revenue drains. We can create an
environment that makes technology advances which reduce emissions very
marketable.
When our concern is visibility, there would also be opportunities
for interpollutant trading. The light-disrupting properties of a
particle of one species should be able to be related to the light-
disrupting properties of another species. While the trades may not be
on a 1 to 1 basis, we should be able to equate the resource gains.
I am not so naive as to believe that in a market system everyone
will comply because they are good citizens or because they are making
money. It would require limits allocated or obtained through the market
be contained in an enforceable permit and that those limits be closely
monitored for compliance.
I also recognize that there would still be categories of emissions
from these facilities, for instance fugitive emissions, that cannot be
accommodated in the market.
While we have a good law, if we continue to layer old on new, we
will stifle significant opportunity for innovation. However, if we
build on the advances of the last thirty years, take advantage of
today's technology and mold a system that addresses today's issues, we
can achieve even more without rancor and confrontation.
______
Responses by Dennis Demmer to Additional Questions from Senator Inhofe
Question 1. From the Sate and local government point of view, what
aspects of the Clean Air Act are currently working well?
Response. Overall, the Clean Air Act is working well. If you look
at the gains we have made under the Act, I don't think you can reach
any other conclusion.
Question 2. From the State and local government point of view, what
needs to be improved in the Act in order to provide you more
flexibility and responsibility?
Response. I believe the Act currently provides adequate flexibility
and responsibility to the States. I also believe the regulations
provide adequate flexibility and responsibility to the States. However,
it is the guidance and oversight by the Environmental Protection Agency
that hinders the States. It is the insertion of EPA guidance, which
changes from time to time and, which while carrying no legal standing
is treated as dogma, that most hinders the States from tailoring the
Act to the State.
Question 3. When the Clean Air program began in the 1970's, no one
had much experience. When the Act was amended in 1990, the States had
little experience compared to the Federal Government. With the
experience and expertise of everyone today, what parts of the Federal
program can effectively be delegated to the States?
Response. I first have to disagree with your basic premise. I agree
that in the 1970's we all had very little experience. However, since
the 1970's it has been the States that have implemented the Act. The
experience and expertise in actual implementation resides in the States
to the point that today, I believe the States have more practical
experience implementing the Act than the Federal Government. What is
needed from EPA is national oversight, more research and better
science.
As I stated earlier, the Act and Regulations give the States a lot
of authority, the States need to be allowed to exercise it.
Question 4. I believe the trading program for acid rain has worked
well. We are constantly being told we should expand the free market
concepts of the Clean Air Act. My question is in which areas of the Act
would a free market approach work?
Response. A market-based system would work in most of the non-
health standard areas of the Act. Regional Haze and Prevention of
Significant Deterioration are certainly receptive to a Market approach.
______
Responses by Dennis Demmer to Additional Questions from
Senator Voinovich
Question 1. What would be the consequences to your State if EPA
moves forward with designations of ``non-attainment areas'' under the
8-hour national ambient air quality standard for ozone before the
Supreme Court renders a decision in the case?
Response. Wyoming does not anticipate any non-attainment areas
under the 8-hour standard and therefore would anticipate no impact.
Question 2. Is EPA providing sufficient resources currently, as
well as commitments for future resources, to conduct appropriate
ambient air monitoring within your State, including monitoring of fine
particulate matter and determination of the composition of fine
particulate matter in the air?
Response. No. However, Wyoming has convened several multi-
stakeholder groups to increase ambient air monitoring throughout the
state, but especially in areas of concern. I do not think the States
can rely on EPA to provide the resources for monitoring. We are
required to make more and more decisions based on modeling.
Unfortunately, in many cases we don't have enough data to validate the
accuracy of the models. While EPA needs to be a player, States must
work with all parties to ensure an adequate base of credible data.
Question 3. Is EPA providing adequate flexibility and appropriate
guidance to State and local air pollution agencies to administer the
program for operating permits under Title V of the Clean Air Act?
Response. There is adequate flexibility in Title V of the Clean Air
Act. However, EPA guidance is a day late and a dollar short. Under
Title V, the States were given a tight timeline to pass needed law and
regulations and to issue the permits. While having one of the highest
percentage of Title V permits issued in the country, Wyoming did not
meet the timeline. However, we did hit the ground running with very
little guidance from EPA. As the program has progressed EPA has
promulgated guidance and expected us to modify our programs
accordingly. Their guidance is too late, has slowed down the process,
and in some cases is contrary to common sense.
Question 4. Are EPA's regulations under the Act sufficiently clear,
consistent and timely to allow your State to properly implement Clean
Air Act programs for which it is responsible?
Response. Yes. While the regulations could be more definitive, they
are adequate. It's the guidance that gives us problems in its
timeliness and prescriptiveness.
______
Responses by Dennis Demmer to Additional Questions from Senator Baucus
Question 1a. What is the fee (per ton of emissions) which your
State currently charges for permitting under Title V of the Clean Air
Act?
Response. $10 dollars per ton.
Question 1b. How much does that generate annually and what is your
State's annual budget for permit activities, implementation and
enforcement matters, emissions and ambient monitoring, modeling,
analyses, demonstration, inventory preparation and emissions tracking
relating to air quality?
Response. The $10 per ton fee generates on the average $1,950,763.
Our budget is not separated out by the categories specified. While
we track Title V and Federal expenditures as required we do not break
it into specific categories. Our air quality annual budget is
$2,751,407. Of this amount $217,668 is State funding, $445,122 is
Federal funding and $2,088,617 is appropriated from fees.
Question 1c. What, if any additional categories of spending are
necessary to support air quality programs?
Response. In addition to emission fees, Wyoming charges for permit
review, that charge is the actual cost of review. For Wyoming the
current budget and revenue has been sufficient. In addition to budget
amounts, we have facilitated several cooperative efforts in recent
years to increase monitoring or to calibrate models for specific areas
of the state. In those instances we have used state, Federal, (both EPA
and land managing agencies) and industry funding. These efforts have
been overseen by stakeholder groups comprised of State, Federal,
industry, environmental and tribal representatives. These efforts have
been very successful.
Question 2. Flexibility was mentioned repeatedly during the hearing
as necessary for efficient conduct of States' programs. The Clean Air
Act Amendments of 1990 created relatively strict deadlines and
established numerous requirements largely because insufficient progress
had been made prior to 1990 in achieving attainment. How can we be
certain that increasing flexibility will not result in slowing current
progress? What specific changes in the Act would be necessary to
enhance flexibility?
Response. For Wyoming I saw the 1990 Clean Air Act Amendments not
so much as addressing a lack of progress as in changing the way we
approach permitting. Prior to 1990 we had essentially a ``permit to
construct'' system. It addressed the technical aspects of the facility.
The 1990 Clean Air Act Amendments instituted the Operating Permit
Program, a more comprehensive approach.
I don't believe there is a problem with flexibility in the Act so
much as, in many areas I think the current tools in the Act are not the
most efficient way to address the issues. In each of the re-
authorizations we have added another layer to the Act, Prevention of
Significant Deterioration and Title V for example. While each addressed
the issue of the day, they were not necessarily compatible. They may
also not be the most efficient means to address issues and indeed, in
some cases conflict. We need a system that addresses the issues in the
most efficient manner possible.
Question 3. In your testimony you said that, ``One only has to look
back at the debate over the proposed fine particulate and ozone
standards to see the need for better science and better data.'' What
would need to be ``better'' about the science and data that EPA used to
justify those standards? What public health indicators would justify
setting more stringent ozone and PM(2.5) standards than the
ones that existed prior to EPA's action?
Response. We need more science and data. When the 2.5 standards
were set, the Science Advisory Board still couldn't agree on what the
standards should be. EPA's ozone and PM2.5 standards may
have been correct or they may have been too high or too low. If we had
better monitoring data in conjunction with better health data, I
believe we could have made a better determination. I would hope that
when the review comes around again, we have learned and compiled data
that will give us the ability to make the best determination for the
health of our citizens. The point of my testimony was that we need more
and better data and science.
Question 4. Ms. Studders of Minnesota called for a comprehensive,
integrated national power generation strategy that regulates multiple
pollutants, including NOX, SOX, CO2,
mercury and other toxic pollutants. This would seem to be a sensible
combination of energy and environmental policy. What are your views on
such a strategy?
Response. I suspect Ms. Studders and I are not too far apart. I
called for a comprehensive national energy policy addressing both
energy needs and environmental issues. However, I think that we need to
separate health standards from those addressing other aspects of air
quality. I believe the National Ambient Air Quality Standards have
worked well. While we can debate the levels, we need to maintain
individual facility requirements that assure the health of those around
them.
However, to address issues other than health (Prevention of
Significant Deterioration, visibility, etc.) I fear we are on a
collision course between energy supply and environmental issues. The
last time we encountered this our solution were fast track proposals
under the Department of Energy. I don't believe we have the correct
tools to address this collision. I believe if we create a market-based
system that creates incentives to reduce emissions and makes emission
reduction profitable, we can achieve greater environmental gains.
Likewise, if we focus on the desired result, there is ample
opportunity for interpollutant trading. In visibility, often a particle
is a particle.
Question 5. Transport of ozone and other long range pollutants
continues to be a serious problem for public health and for State and
local air quality planners. Do you have any suggestions for ways that
the Act could better deal with this phenomenon?
Response. Ozone transport and visibility demand regional rather
than local efforts. We need to determine the levels that give us the
desired results and then create systems that achieve those levels. The
Western Regional Air Partnership, while not perfect, is an attempt
headed in the right direction. I believe we can get there only through
a market-based system. We need to go back and structure the Act in a
manner that focuses on the result and then provide mechanisms that
allow achieving that result.
Thank you for the opportunity to respond.
__________
Prepared Statement of John E. Terrill, Jr., Air Quality Division
Director
Mr. Chairman, and members of the committee.
My name is John Terrill and I am the Air Quality Division Director
for the Oklahoma Department of Environmental Quality. I respectfully
request that the Department's written statement be included in today's
hearing record. It is a pleasure to appear before you today to share
with you our thoughts as you begin the hearing process to reauthorize
the Clean Air Act. Our experience indicates a number of areas in which
the Act has allowed us to be successful and other areas in which there
needs to be improvement.
agency background
The Clean Air Act, last amended in 1990, provides the national
framework for efforts to protect air quality. The Air Quality Division
(AQD) of the Oklahoma Department of Environmental Quality (ODEQ)
implements the State and Federal Clean Air Acts. As part of this
implementation, the agency adopts rules, promotes compliance efforts,
enforces rules, and develops pollution prevention strategies to reduce
emissions and improve air quality.
An EPA-approved State Implementation Plan (SIP) provides strategies
and procedures for the daily operations of AQD. This SIP is reviewed
and amended as necessary. It includes rules and strategies developed at
the State level for implementing the various Federal air quality
programs. To date, ODEQ has acquired all appropriate EPA air quality
programs.
ozone alert and flexible attainment region success
Probably nothing illustrates our experience with the Act better
than our struggle in the Tulsa area to attain and then stay in
attainment with the 1-hour ozone standard. Just prior to the passage of
the Clean Air Amendments in 1990, the Tulsa area was designated
attainment for all National Ambient Air Quality Standards, including
ozone.
During the summer of 1991, Tulsa experienced two exceedances of the
1-hour ozone standard. Two more exceedances of the standard in either
1992 or 1993 would likely have placed the Tulsa area back into
nonattainment. Rather than wait for the fate of whatever the summer
weather of the next 2 years might bring, a group of concerned public
officials, citizens and industry leaders voluntarily cooperated to
create and implement the Ozone Alert! Program.
Based on community outreach, public education and voluntary
reduction measures, the program has become a model throughout the
United States. As an outgrowth of the success of the Ozone Alert!
Program, the Environmental Protection Agency, Oklahoma Department of
Environmental Quality, the city of Tulsa, Indian Nation Council of
Governments and various other State and local governmental entities
entered into a memorandum of understanding creating the Flexible
Attainment Region for the Tulsa area. Because of the cooperative
efforts at the local, State and Federal level, Tulsa was able to avoid
violation of the 1-hour ozone standard until this past Labor Day
weekend.
During two of the past three Labor Day weekends, truly exceptional
weather events involving record high temperatures and persistent high
pressure ridges, conspired to produce 3 of the 4 exceedances the Tulsa
area has experienced over that 3-year period. The two exceedances,
which occurred this past Labor Day weekend, places the Tulsa area in
jeopardy of being designated nonattainment for the 1-hour standard,
even though when you look at trends over the past several years the
ozone levels continue to decline. However, the mandatory measures
contained within the Flexible Attainment Region agreement may provide a
mechanism to allow Tulsa to avoid this fate. The Tulsa area and quite
possibly large portions of the State of Oklahoma will not be so
fortunate under the 8-hour scenario if reinstated by the Supreme Court.
8-hour ozone standard difficulties
Let me emphasize that we support the concept of a standard for
ozone that looks at exposure over an 8-hour period. We believe that
this form of the standard best represents real world exposures likely
to be experienced by the population most at risk. We disagree with the
level at which the standard was implemented.
It is our belief that any time a standard such as this is changed
and the bar is raised as it clearly has been in this case, the statute
should require clear and incontrovertible evidence that such a change
is necessary. In addition, once it has been established that a change
in an existing standard is necessary, it should be mandatory upon the
EPA that all guidance necessary to help the States and local agencies
with implementation must be formulated and made available prior to the
beginning of any implementation of that program.
Ideally, this guidance would be written in cooperation with the
State and local programs or at least there should be an opportunity for
comment before the guidance becomes effective. For example, we never
have received guidance that outlines EPA's position relative to the
consequences of nonattainment under the 8-hour standard as it relates
to New Source Review (NSR) transition areas. The Act itself is specific
to the 1-hour standard only. It has also become quite obvious that the
things we understood about the 1-hour standard do not necessarily apply
to the 8-hour version.
Voluntary measures that worked well to help shave the peaks on days
of concern do not work as well under the 8-hour scenario. Ozone
forecasting under the 8-hour standard is much more difficult and
unpredictable. This is illustrated by the dramatic increase in the
number of ozone alerts that have been called under the 8-hour standard
as opposed to those that were called when the 1-hour standard was
controlling.
It has also become apparent that transport of ozone and ozone
precursors on a near-regional basis such as between neighboring States
is very important in forecasting ozone formation and in meeting the new
standard. Until we know the effect of national measures such as low
sulfur gasoline and Tier 2 standards, as well as regional measures such
as implementation of control strategies in areas still in violation of
the 1-hour standard, planning to meet attainment with the new standard
is problematic. The resultant issues, such as development of an
unnecessary State implementation plan to meet a standard beyond the
control of the State, should have been thought through and clarified
before the standard was changed.
low sulfur gasoline
This leads me to examples implemented under the existing Clean Air
Act that we feel will be very productive if done correctly. The first
is low sulfur gasoline. Unless overturned by the Supreme Court, it will
be very difficult for Oklahoma to ever meet the 8-hour standard as it
presently exists without the emission reduction benefits from the lower
sulfur gasoline. This measure along with stricter automotive emission
standards, will lower mobile source emissions in local metropolitan
areas, which would otherwise have to be lowered through forced mass
transit, inspection and maintenance programs, or other more onerous and
less effective control strategies. It will also help reduce the
formation of ozone that would be available for transport between
neighboring States. However, it will be several years before those
requirements are fully implemented. An opportunity to see what air
quality changes these significant measures will make on monitored data
before near attainment areas are penalized is the only course of action
that makes sense.
regional planning body
The Regional Planning Body concept formulated in response to
mandated requirements to reduce regional haze is also a good tool that
has come out of the existing Act. This program allows adjoining States
with like concerns and similar airsheds to work together in a regional
context to analyze and propose strategies to address regional haze and
fine particulate problems, should they be found to exist. We believe
that addressing air pollution on a regional basis is likely to be a
strong tool for future regulatory activities.
States working together and exchanging data relative to the impact
each State's emissions has on its neighbors will allow for more
effective control strategies that will achieve greater reductions at a
lesser cost. We believe that this concept should be expanded to include
multipollutant strategies covering other criteria pollutants such as
ozone, oxides of nitrogen, and sulfur dioxide. It is imperative under
this concept however that the State and local programs continue to be
viewed as partners in this endeavor.
need for consistency
If there were one word that would summarize our concerns with the
current system it would be consistency or the lack thereof. Consistency
in the interpretation of statutes, as well as rules and regulations as
they apply from State to State and region to region is fundamental to
the integrity of any Federal law. The same is true for consistency in
the data bases that are used for a variety of purposes throughout the
State and Federal system.
Statutes, Rules, and Regulation Consistency
The consistent interpretation of statutes, rules, and regulations
is vitally important to both the regulators and the regulated
community. It is important to know that when we obtain an applicability
determination or some other type of rule interpretation from EPA that
we are getting the same interpretation as that which would be given to
another State with a similar fact situation. It is very damaging to our
credibility and that of the EPA when industry points out that the same
fact circumstance has resulted in a different interpretation in a
different State or region. It can also create an unfair competitive
advantage for like industrial facilities operating in different States
and regions. The regulated community deserves to know what the rules
are and that they are being applied the same throughout the country.
Data base Consistency
Data base consistency, including the handling of the data, who
should have access to that data and when, is also an area that needs to
be addressed. The vast majority of the activities done by the EPA are
driven by the data collected in the State and local programs.
Currently, there is no consistent understanding as to what these data
are useful to determine and what they are not; consequently, there is
little consistency from State to State and region to region. This is
especially troublesome when outside parties such as industrial,
environmental, and other special interest groups attempt to use the
data in support of their particular issue.
We believe that the EPA should be required to establish standards
for data to be submitted by States and utilized by EPA, yet allow State
programs great flexibility in the design of their data management
systems. EPA should also be encouraging and supporting the States
movement toward electronic data submittal to ease the paperwork burden
on the regulated community and the State and local agencies. We would
also encourage further definition of what and when data are accessible
by the public. We are supportive and believe in the public's right to
have access to any data that are used to make decisions relative to the
air quality programs. However, Congress should statutorily insist that
before any data is made public by any agency, it is carefully evaluated
as to its accuracy and made available for public viewing only in the
context in which it was collected.
For example, if ambient air sampling is conducted to determine
possible toxic exposure, these data should reflect clearly the local
area sampled and who likely exposure candidates might be. There should
be no manipulation of the data that could cause the general public
unnecessary alarm without justifiable cause. In addition, under no
circumstances should Federal extractions or other manipulations of the
data be made available to the public without first notifying the
affected State or local program as to where the data will be made
available and an opportunity provided to view and correct where
warranted such data in the context in which it will be presented.
new source review/prevention of significant deterioration reform
New Source Review/Prevention of Significant Deterioration (NSR/PSD)
reform is a concept that has been in the discussion stages for a number
of years now with very little apparent progress. Unless a significant
modification of the whole process is undertaken which would make the
current system totally obsolete, much good could be accomplished by
evaluating the existing applicability determinations, guidance, and
other decisions that EPA has made since the inception of the original
program.
For example, there are literally thousands of various applicability
determinations, some of which are outdated and others that contradict
each other. There should be a statutory requirement that these
determinations go through a process where duplicative, conflicting, and
ambiguous applicability determinations are eliminated. Once these
determinations have undergone this process, they need to then be made
available in an easily accessible data base through the Internet so
that each State, region, and affected industry can have access to the
information. This would help give each facility undergoing NSR or PSD
review reasonable assurance that the same answer will be given
regardless of where they are located. However, the better approach
would be statutorily to require EPA to make meaningful reforms to this
system. Included in this should be the requirements that the PSD
modeling continue to be improved especially as it relates to the
impacts on the Class 1 areas.
oklahoma tribal issues
In Oklahoma we have a unique situation relative to the tribal air
rule as currently implemented. EPA has defined ``reservation'' by this
rule to mean ``. . . all land within the limits of any Indian
reservation under the jurisdiction of the U.S. Government . . .'',
while under Federal law ``reservations'' are ``Indian reservations,
public domain Indian allotments, former Indian reservations in Oklahoma
and land held by incorporated Native groups.'' Under these definitions,
most of the State of Oklahoma is considered ``former Indian
reservation''. Further it appears that EPA has given tribes the
authority to regulate businesses on non-Indian-owned fee lands within
the exterior boundaries of a reservation, which in effect is the State
of Oklahoma with the exception of Greer County, the Panhandle and
Unassigned Lands.
EPA is now referring to this rule interpretation as ``treatment in
a manner similar to States'' rather than ``treatment as a State''.
Unlike the State of Oklahoma, the tribe does not have to qualify for
eligibility under established criteria. The tribe must simply show that
it is a federally recognized tribe, that it has a governing body
carrying out substantial governmental duties and powers and that it is
capable of implementing the program. There are no criteria for a
capability determination.
The EPA Regional Administrator has the discretionary authority to
decide on a case by case basis whether a tribe should have a program or
not. Unlike a State, the tribe may develop portions of programs that
are most relevant to the air quality needs of the tribe rather than
enact the whole program. Unlike the State, the tribe is not required to
provide an opportunity for permit applicants or other interested
persons to seek judicial review of the tribe's implementation of the
rule. Nor is the tribe subject to citizen suits. Given the number of
tribes in Oklahoma, we have a confusing situation regarding this issue.
We believe that each entity assigned responsibilities under the Act
should have to meet the same criteria in carrying out that assignment.
Further, we believe that it is mandatory upon EPA that they insure that
no industry receives an unfair advantage as a result of EPA's
interpretation of this rule. Compounding the problem, the EPA has been
unable to assure us that they understand exactly what the tribes having
air grants are doing with the money or what data is being collected and
how it will be used.
role of the respective agencies
The final topic we would like to discuss is, in our opinion, the
most important--the respective roles of various offices within the
Federal environmental agency and the roles of the State and local
environmental agencies. We strongly support the regional office concept
as it relates to EPA's structure. We believe there are research and
planning functions that should be performed by EPA headquarters, an
oversight and technical assistance role to be performed by the regional
offices, and monitoring, permitting, inspection, and enforcement roles
to be performed by the State and local programs.
Headquarters
EPA headquarters should be primarily responsible for looking at the
big picture while the regional offices should be responsible for the
day-to-day oversight of State activities. The gathering and analysis of
data submitted to Washington by the regional offices and the State and
local programs should be EPA Headquarter's primary objective. From this
analysis, national trends could be identified which should lead to
national initiatives as needed. The writing and promulgating of rules
and regulations, after input from appropriate stakeholders, should also
be a major responsibility. Headquarters should also be responsible for
insuring that data bases are accurate and that the rules and
regulations are interpreted and administered equitably in all regional
offices. They should also insure that each regional office is providing
the appropriate oversight of the States within their jurisdiction
through consistent interpretation of the Federal regulations.
Regional Offices
The primary role of the regional office should be as technical
resource for the States within their jurisdiction. They should also be
responsible to see that each State equitably enforces all Federal
requirements within their jurisdiction. States must carry out their
responsibilities as the primary authority under the Federal Clean Air
Act and if not, the regional office must assume that responsibility.
The regional office should also be able to act, when requested by a
State or local agency, in a timely and effective manner.
States
Finally, the States must be given the latitude to carry out their
functions as provided under the Clean Air Act. Greater deference must
be given to decisions made by the States within established guidelines.
This does not mean that EPA should give up its' oversight authority.
EPA is welcome to Oklahoma whenever they want to go with us and see how
we do our job and work side by side with us to augment our programs. We
welcome them to examine and participate in any activity we do--from how
we run our monitoring program, to how we write permits, to how we
enforce those permits. We also invite constructive criticism and
believe there is much we each can learn from the other.
Further, EPA should be capable of assisting us in those technical
areas where we don't have expertise. Expectations should be the same
for all States or other agencies with similar program responsibilities.
States must have a special opportunity to comment on all rules and
guidance that are issued by EPA. While rule input is usually not an
issue, guidance is often used as though it is a rule and thus should be
subject to the same public input as a rule.
conclusion
In our view, reauthorization of the Clean Air Act offers a
wonderful opportunity to make meaningful changes to an area of
environmental law that over the years has provided the framework for a
number of advances resulting in cleaner, healthier air for our
citizens. This also provides a wonderful opportunity to evaluate the
overall program enhancing the areas that are working well and making
some necessary corrections in those that are not.
The entire regulatory scheme as it applies to air quality is too
complicated. While this may be good for the attorneys, consultants, and
special interest groups that are involved in the process on a daily
basis, it is not good for those implementing the vast number of rules
and regulations that have been enacted over the years. Nor is it good
for the regulated community or the citizens the Act was designed to
protect.
We would urge you to take this opportunity and give careful
consideration to making those changes that will simplify the final
product. This will not be an easy task and will likely be met with some
resistance. However, we believe the long-term benefits of making the
Act easier to understand and implement will make whatever efforts we
need to make to facilitate this change insignificant. We look forward
to working with this committee in any capacity necessary as you
continue this important work.
Thank you for the opportunity to submit this testimony. I would be
pleased to answer any questions that you may have.
______
Responses by John E. Terrill to Additional Questions from Senator
Inhofe
Question 1. From the State and local government point of view, what
aspects of the Clean Air Act are currently working well?
Response. We continue to support the concept of State
Implementation Plan process contained in the Act in which the States
are given the lead responsibility in air pollution control matters.
Question 2. From the State and local government point of view, what
needs to be improved in the Act in order to provide you more
flexibility and responsibility?
Response. EPA should be required by the Act and given the necessary
funding to provide guidance, rules and technical assistance to the
States in a timely manner.
Question 3. When the Clean Air program began in the 1970's, no one
had much experience. When the Act was amended in 1990, the States had
little experience compared to the Federal Government. With the
experience and expertise of everyone today, what parts of the Federal
program can effectively be delegated to the States?
Response. Just about all parts of the Federal program, except
oversight, technical assistance, research, and the development of
national regulations and standards can be delegated to the States. This
would include permitting, monitoring, and enforcement activities.
Question 4. I believe the trading program for acid rain has worked
well. We are constantly being told we should expand the free market
concepts of the Clean Air Act. My question is in which areas of the Act
would a free market approach work?
Response. We feel a free market approach would work best where a
cap and trade system can be implemented. Such an option should be
available to the States as control strategies for criteria pollutants
where specific emission budgets have been established.
______
Responses by John E. Terrill to Additional Questions from
Senator Voinovich
Question 1. What would be the consequences to your State if EPA
moves forward with designations of ``nonattainment areas'' under the 8-
hour national ambient air quality standard for ozone before the Supreme
Court renders a decision in the case?
Response. Our two largest metropolitan areas could then be declared
nonattainment for a standard that a Federal court has deemed
unenforceable. This could cause undue confusion, and present
impediments to these area's economic development and their ability to
secure Federal highway funding
Question 2. Is EPA providing sufficient resources currently, as
well as commitments for future resources, to conduct appropriate
ambient air monitoring within your State, including monitoring of fine
particulate matter and determination of the composition of fine
particulate matter in the air?
Response. Present funding from EPA for monitoring activities is
adequate. We are concerned however, if 103 funding is dropped, there
will be a shortfall. If such monies become part of our 105 grant, we
will experience difficulties having sufficient matching funds. We are
also concerned that when the results of the National Air Toxics
Assessment study are available to the public for comment, the need for
toxic monitoring will arise. There will be a dramatic increase in the
need for additional funds for toxics monitoring that has not yet been
addressed.
Question 3. Is EPA providing adequate flexibility and appropriate
guidance to State and local air pollution agencies to administer the
program for operating permits under Title V of the Clean Air Act?
Response. Our communications with our EPA regional office
concerning the administration of Title V have been good. EPA has been
extremely slow in giving us full approval of our Title V program.
Question 4. Are EPA's regulations under the Act sufficiently clear,
consistent and timely to allow your State to properly implement Clean
Air Act programs for which it is responsible?
Response. It seems that guidance for implementing new programs and
standards is consistently late or lacking.
______
Responses by John E. Terrill to Additional Questions from Senator
Baucus
Question 1. You said that the current system is inconsistent,
though most of the examples that you cited seem more related to EPA's
performance and organization. Please point out any specific
inconsistencies in the Act which are impacting States' ability to
protect public health and the environment.
Response. There are none specifically in the Act.
Question 2. In your testimony before the committee you stated that
if the 8-hour ozone standard went into effect it would cost your State
$43 million in the first year. Could you please elaborate on how you
calculated that sum and what programs you expected to generate that
cost? Please include specifics on the timeline of when such programs
would take effect.
Response. I don't recall citing such an amount, but the $43 million
figure has been used as an estimate of the cost to establish an
Inspection/Maintenance Program and Stage 2 Vapor Recovery Systems in
the Oklahoma City metropolitan area.
Question 3. Can you cite any studies that evaluated instances where
ozone action days were forecasted but never actually occurred? If so,
is that type of error more frequently occurring than ozone action days
that occurred but were not predicted?
Response. During the 2000 ozone season, the Oklahoma DEQ forecasted
20 ozone alert days. Exceedances occurred on six of those days.
Exceedances occurred, however, on 10 days when no alerts were called.
Question 4. Do you have any evidence to suggest that the 8-hour
ozone standard is more variable than the 1-hour standard?
Response. Evidence exists that in Oklahoma the 8-hour ozone
standard is much more stringent than the 1-hour standard. So much in
fact than depending on weather conditions, and transport the standard
can be exceeded virtually anywhere in the State. This also makes
forecasting under the 8-hour standard much more difficult and
unpredictable.
Question 5. What is the fee (per ton of emissions) which your State
currently charges for permitting under Title V of the Clean Air Act?
How much does that generate annually and what is your State's annual
budget for permit activities, implementation and enforcement matters,
emissions and ambient monitoring, modeling, analyses, demonstration,
inventory preparation and emission tracking, relating to air quality?
What if any, additional categories of spending are necessary to support
air quality programs?
Response. Our current fee is $17.51 per ton of regulated pollutant
for Title V facilities billed January 2000. It is projected to generate
$4,233,596. Annual budget is $6,003,612. The money from 105 funds
continue to shrink with no corresponding decrease in responsibility.
The time is upon us to revisit what the Title V fees were supposed to
pay for and to clarify for the States and industry what is expected.
Question 6. Flexibility was mentioned repeatedly during the hearing
as necessary for efficient conduct of States' programs. The Clean Air
Act Amendments of 1990 created relatively strict deadlines and
established numerous requirements largely because insufficient progress
had been made prior to 1990 in achieving attainment. How can we be
certain that increasing flexibility will not result in slowing current
progress? What specific changes in the Act would be necessary to
enhance flexibility?
Response. States should not be held to rigid timelines, without
receiving the appropriate and timely guidance and technical assistance
from EPA. The Act could be modified to require EPA to develop such
guidance and assistance prior to the imposition of requirement on the
State.
Question 7. Transport of ozone and other long-range pollutants
continues to be a serious problem for public health and for State and
local air quality planners. Do you have any suggestions for ways that
the Act could better deal with this phenomenon?
Response. The Act could be modified as to include ozone as a
pollutant of concern in the Regional Planning Body regional haze
process.
Question 8. Are you aware of any State efforts to improve the
consistency of data collected by the States? Has your State formally
requested that EPA develop such standards?
Response. We have made no such formal request. We, however, are
concerned about the qualify and consistency of ambient data being
collected by the tribes in our State, and have made our regional EPA
office aware of our concerns. Our Assistant Executive Director is
currently involved in an ECOS committee specifically formed to work
with EPA to develop data standards. Hopefully the work will generate a
position outcome.
__________
Statement of Kenneth A. Colburn, Director of the Air Resources
Division, New Hampshire Department of Environmental Services
Good day. My name is Ken Colburn. I am New Hampshire's air
director, and I appreciate the opportunity to share with the
subcommittee some of my ideas regarding reauthorization of the Clean
Air Act.
Four thoughts come immediately to mind: The first is ``Thank God,
at last.'' The Act is certainly showing its age. With the benefit of a
decade of hindsight, several fundamental flaws are evident in its
structure, approaches, and scientific presumptions including, for
example, that it generally ignores the existence of wind. I think EPA
has done a reasonably good job of implementing the Act; though I do
wish the Agency had come back to you sooner to fix some of its
problems.
Second, great good has nevertheless resulted from the Act, so we
must undertake a ``mend it, don't end it'' reauthorization. Many new
ideas were tried out in the 1990 Amendments, and some--like cap and
trade programs--have proven extraordinarily successful. Others,
however, have proven counterproductive and must be revised.
Third, this reauthorization is far too important to public health,
functioning ecosystems, and our nation's global competitiveness for it
to devolve into partisan political or regional bickering. I am a
witness to the power of collaboration; I have seen first-hand the
progress that can be made when dedicated leaders like your chairman,
Republican Senator Bob Smith, and New Hampshire's Democratic Governor,
Jeanne Shaheen, work together. There is broad agreement among States
that the Act should employ much less prescriptive approaches, provide
greater opportunity to innovate responsibly and accountably, and
incorporate new scientific developments much more readily. There is
also broad agreement that progress in reducing air pollutant emissions,
particularly from our transportation and electric power sectors, and
the technology development that rises to meet this challenge, must
continue.
Finally, thorough, independent analysis of State air programs has
determined that the Federal Government provides only enough resources
to fund about half of what it asks States to do. And contrary to
popular belief, Title V's ``polluter-pays'' provisions do not fill this
gap; Title V added more work than it funded. Furthermore, the
responsible, accountable regulatory flexibility that States should
have--and which our companies deserve--is much more costly than
traditional one-size-fits-all, command-and-control regulation. Simply
put, Congress has to get serious about funding clean air, or something
has to give.
Air issues are among the most complex and difficult of all
environmental matters, so much so that it is impossible to go into any
real detail in a single hearing, let alone 5 minutes. Nevertheless,
having lived and breathed these issues for the last 6 years, I can and
do confidently represent to you that there are better ways to conduct
air policy; better for the environment, better for the regulated
community, and less costly to administer. I only have time for a few
examples here today:
New Source Review (NSR) and Prevention of Significant
Deterioration (PSD)--While States generally support requirements that
new facilities install state-of-the-art pollution controls, the Act
``lets the excellent get in the way of the good'' by encouraging
sources to keep their old equipment running instead of installing new
cleaner units. We can fix this.
Integrated, Multi-Pollutant Approaches.--Traditional
pollutant-by-pollutant approaches maximize control costs, public policy
battles (statutory and regulatory), and associated litigation to the
detriment of public health, environmental quality, and economic well-
being. Substantial opportunities exist for effective control measures
that address multiple pollutants simultaneously with declining caps
over time. We can fix this, and indeed, your committee has already
begun constructive deliberation regarding an integrated, four-pollutant
approach for the electric power sector.
Encouraging Innovation and Superior Environmental
Performance.--By its very prescriptiveness, the Act makes it difficult
if not impossible for EPA to approve innovative new approaches to
pollution reduction. We can fix this by providing EPA with the
authority and responsibility to approve non-standard solutions that
provide equal or better environmental benefits.
Better Ways to Control Pollution.--Requiring like
categories of sources to pay for emissions, and then distributing the
revenues back to those sources based on production, would encourage
both lower emissions and higher productivity, with many attendant
economic and regulatory benefits (e.g., continuous improvement, more
flexibility, lower overhead, faster technology development, greater use
of market forces, etc.). Similarly, if we internalized environmental
costs (e.g., ``externalities'') into the price of goods and services in
the first place, then market forces rather than regulation would drive
environmental improvement. We can fix this by adopting better
approaches to regulating sources.
Transported Pollution.--Too much time and money has been
wasted--both at the Federal and State levels--arguing about the nature
and extent of transported pollution. We should adopt a new definition
of States' responsibility concerning transported pollution, perhaps by
requiring that the air leaving a State be as clean or cleaner than the
air entering the State. We can fix this.
Zero-Threshold Pollutants.--Science is increasingly
showing that several pollutants, including ground level ozone and fine
particulate matter, are ``zero-threshold pollutants.'' Unlike the
traditional ``dose-response'' approach, there is no level of exposure
that is ``safe.'' As a result, traditional approaches to setting and
meeting National Ambient Air Quality Standards need revision, and costs
should probably factor more greatly into this process. We can fix this.
Fairest or Least Cost.--The application of consistent
emission standards across the Nation is widely regarded as a fair
approach. However, due to widely varying emission densities across the
country, this approach does not represent a least cost solution. Since
both approaches have merit, there is a public policy quandary here.
This is a decision that is appropriately resolved by Congress, however,
so it's one we can fix too.
NOX vs. VOCs.--There are two precursors to
ground level ozone, nitrogen oxides (NOX) and volatile
organic compounds (VOCs). The Clean Air Act focuses overwhelmingly--and
very prescriptively on--VOCs. Yet science has shown that NOX
is by far the greater cause of ozone, in part because most VOCs are
emitted from trees. We can fix this too.
Best Available Control Technologies (BACT) and Lowest
Achievable Emission Rate (LAER).--New sources are required to install
these controls, but nobody can tell them promptly and reliably what the
``best technologies'' are. We can fix this; indeed, your committee has
already begun to do so by proposing adequate funding for a BACT/LAER
information clearinghouse.
Section 126.--Section 126 of the Act appropriately allows
downwind jurisdictions impacted by emissions from upwind jurisdictions
to petition EPA for relief. Unfortunately, however, this relief can now
only be sought from stationary sources, even if mobile sources
(vehicles) are the predominant source of emissions upwind. We can
easily fix this.
Designation of Nonattainment Areas.--EPA has typically
designated nonattainment areas based on ``Metropolitan Statistical
Areas'' derived from the census. Notably absent is any consideration of
the science regarding what emissions from what areas triggered what
monitors into nonattainment. EPA has begun to take steps to revise this
practice, but how it does so remains to be seen. We can fix this.
Combined Heat and Power.--Our current regulatory structure
often makes it easier to construct two units (boilers, turbines,
etc.)--one each for heat and power--than it does to construct just one
capable of meeting both needs. We can fix this.
Plantwide Applicability Limits (PALs).--PALs regulate
sources under a facility-wide emission cap instead of on a device-by-
device basis. They can allow sources much greater operational
flexibility and reduce regulatory overhead, but PALs can be tricky to
enforce. We can fix this.
Once In, Always In.-- EPA currently regulates some sources
even if the devices that led them to be regulated in the first place no
longer exist. We can fix this.
Energy Efficiency.--Finally and most importantly, there is
widespread recognition that the production and use of energy--in all
sectors--is the primary cause of most significant air pollution
problems: ozone, mercury deposition, ongoing acid rain, toxic air
pollution, and climate change. Further, small sources and even
individuals account for more and more of this pollution. We need to do
everything we can to encourage and assist States in making more
efficient use of energy. In doing so, we will also reap the benefits of
faster technological development and greater international economic
competitiveness. I think we can address this too.
I want you to know that you have New Hampshire's commitment, as
well as my personal commitment, to assist you in any way we can in the
daunting but doable task of defining, describing, developing, and
drafting the ways to fix these problems.
Thank you again for the opportunity to share these views. I look
forward to responding to any questions you may have.
______
ATTACHMENT
issues relating to utilities
New Source Review (NSR) and Prevention of Significant Deterioration
(PSD)
States strongly support installation of good controls when new
construction or major modifications are undertaken.
Thus, States conceptually support aggressive requirements for
``Best Available Control Technology (BACT)'' under PSD and ``Lowest
Achievable Emission Rate (LAER)'' under NSR. However, . . .
Problem.--Letting Excellent Get in the Way of The Good.
Substantial environmental benefits (e.g., 90-95 percent emission
reductions) can often be secured economically, but diminishing returns
requirements for ``excellence'' (e.g., 95-99 percent emission
reductions) often render projects uneconomic.
Trigen example.
Solution.--EPA must develop yardsticks or thresholds that provide
sources greater timeliness and certainty (e.g., project cost as a
percent of book value). Alternatively, develop yardsticks for
exemptible environmental improvements (e.g., a project will be exempt
from NSR if facility emissions per MWH will drop by 50 percent). Even
relatively arbitrary yardsticks would be better than the current
gridlock.
Caution.--Capacity expansions with marginal environmental benefits
cannot be exempted from NSR because they:
LDelay or prevent the much greater multi-pollutant
environmental benefits that result from capital stock turnover.
LDiscourage adoption--and thus development--of new, more
competitive technologies. Better alternative: an Integrated Approach to
Utility Emissions (see below).
Problem.--What is BACT/LAER Anyway?
EPA has never adequately funded the Federal BACT/LAER
clearinghouse.
Precisely when is a technology commercially ``available''?
Example: NH and CT appeals.
BACT sometimes conflicts with LAER in areas to which both apply.
Shunting the BACT/LAER discovery and substantiation burden onto
sources threatens projects through unnecessary delay and increased
regulatory risk, retarding capital stock turnover.
Solution.--Provide sufficient support for the Federal BACT/LAER
Clearinghouse. Also, require EPA to define default BACT/LAER
technologies to streamline project approvals.
Caution.--Beware of the ``technology vs. results cycle,'' wherein
sources vacillate between ``EPA should just specify the technology
necessary to comply'' and ``EPA should just specify the result and let
sources pick the technologies.''
LBest of both worlds: EPA should specify default compliant
technologies, but sources can choose to ``do as good or better.''
L(See ``Encouraging Innovation and Superior Environmental
Performance'' below.)
Multi-Pollutant Strategies (Co-Benefits)
Pollutant-by-pollutant approaches maximize control costs, public
policy battles (statutory and regulatory), and associated litigation to
the detriment of public health, environmental quality, and economic
well-being.
Substantial opportunities exist for effective control measures that
address several pollutants simultaneously.
See modeling results from STAPPA/ALAPCO's Reducing
Greenhouse Gases and Air Pollution: A Menu of Harmonized Options
(attached).
Note.--The proposed Federal ``Clean Air Partnership Fund (CAPF)''
originated out this State-based effort. Not surprisingly, then, the
States strongly support implementation of a CAPF.
Nobody plans future coal capacity, so don't wed national policy to
the past.
Exit strategy: A reasonably gentle but firm glide path for coal
interests.
An Integrated Approach to Utility Emissions
A current opportunity for compromise on NSR/PSD through the use of
multi-pollutant strategies.
Sources would commit to substantial reductions in at least
NOX, SO2, CO2 (to Rio levels), and Hg
(mercury) in a specified timeframe.
Reduction commitments would inoculate sources against NSR/PSD.
Emissions budgets, if used, should be output-based (i.e., emissions
per MWH); our interest is in the societal goods produced, not in
rewarding production inefficiencies.
Approach should include requirements for disclosure of the
environmental characteristics of the power generated (i.e.,
``Environmental Disclosure'').
Would eliminate current expensive, time-consuming litigation and
attendant uncertainty.
Would avoid the patchwork quilt of State-specific regulations that
will otherwise result.
Would enable a competitive power marketplace sooner and with
greater certainty.
Would provide lower overall societal cost through multi-pollutant
reduction strategies.
Control Cost Concerns
Doomsday scenarios typically cite aggregate costs.
Must ask: How much per KWH? How will ratepayer bills be impacted?
If adding 2-5 mills to 5 cents electric rates (i.e., 5.2- 5.5 cents
per KWH) for NOX controls will be economically disastrous,
why isn't the Northeast economy--with rates 2-3 times as high as this
(i.e., 10-18 cents per KWH)--a basket case? Instead, it is leading the
Nation economically.
System Reliability Concerns
Doomsday scenarios premised on multiple, simultaneous, low-
probability worst-case scenarios occurring.
Still only produces a manageable ``cause for concern'' in summer
2002.
Applicable maxim: ``Ask an engineer about doing something and
you'll get nothing but problems; tell an engineer to do something and
you'll get nothing but solutions.''
additional clean air act (caa) problems
Oxides of Nitrogen (NOX) vs. Volatile Organic Compounds
(VOCs)
Both are ``precursors'' (i.e., essential ingredients) in forming
ozone smog.
However, most VOCs are biogenic (i.e., are emitted naturally; oaks
emit isoprene, pines emit terpene, etc.).
And NOX reductions have been clearly demonstrated to be
more effective at lowering ozone concentrations (e.g., OTAG modeling).
Based presumably on mid-1980's science, the CAA imposes far more
specific and onerous requirements for VOCs, the pollutant that is least
effective, much more expensive to control, and whose primary source is
natural emissions.
Why does EPA persist in implementing these ineffective statutory
requirements (e.g., VOC RACT, I/M) when cheaper and more effective
results can be had through NOX reductions?
LNH I/M example.
LIt's the law is no excuse. EPA has a moral responsibility
to seek revision to the law when science shows the need to do so.
Setting Health-Based Standards (NAAQS) for Zero-Threshold Pollutants
Old health premise regarding air pollution was ``Dose-Response''--
i.e., once below a certain level pollutant concentrations did not
impact public health.
New understanding is ``Zero-Threshold''--i.e., pollutant reduction
improves public health all the way down to zero.
Impact on the form of the NAAQS: With a zero-threshold pollutant,
overall exposure is the best measure of health impact, so NAAQS should
reflect the longest feasible averaging time (ideally, a seasonal or
annual average). The 8-hour form is better than 1-hour, but still a
weak reflection of public health impact.
Impact on setting the level of NAAQS: Must consider costs; what
other yardstick is there? (Must include public health and environmental
costs as well, however!)
A Public Policy Quandary: Broadly Applicable Regulations or Least Cost
Solutions?
EPA's 22-State NOX SIP Call creates a ``level playing
field'' by applying the same emission limit to the entire region--even
for sources in areas that have less impact on air quality.
Fair, understandable, and easier to apply and enforce.
Analytical techniques and technologies exist today that can
reasonably accurately quantify and apportion culpability.
Result: Geographically targeted and pro-rated control
measures produce least cost solutions.
Emissions trading would still be workable through the use
of ``discounting'' or ``trading ratios.''
Section 126 (Downwind Areas Petition EPA for Relief from Upwind
Stationary Source Emissions)
Currently Section 126 of the CAA only provides for relief from
stationary sources such as power plants and large industrial
facilities.
Power plants comprise only about 25-33 percent of NOX
emissions (though controlling these sources is one of the most cost-
effective options).
Section 126 should be modified to provide relief from non-
stationary source pollution as well (e.g., heavy duty diesel engines,
area sources, etc.).
Designation of Nonattainment Areas Under the 8-Hour Ozone NAAQS
In determining nonattainment areas, EPA typically applies
designations across census-based Consolidated Metropolitan Statistical
Areas (CMSAs).
Instead, science would suggest approaching designations on the
basis of an ``Area of Violation (AOV)'' with an accompanying ``Area of
Influence (AOI).''
Use of CMSAs can lead to ridiculous and ineffective regulatory
outcomes.
Example: NH vis-a-vis Cape Cod.
Combined Heat and Power (CHP)
Also known as ``Cogeneration.''
Current regulations, together with economies of scale, disadvantage
CHP, resulting in higher emissions since two boilers (i.e., one for
electric power and one for the heating load) are otherwise required.
Trigen Example.
CHP is often a victim of ``Letting excellent get in the
way of the good.''
Plantwide Applicability Limits (PALs)
Concept: Adopt a more stringent limit on overall plantwide
emissions of a given pollutant in exchange for operational flexibility
under this cap.
Better for sources, better for regulators (e.g., permit writers),
but possibly harder to enforce.
EPA has simply stopped approving permits that incorporate PALs.
``Just Say No'' is not an optimal or acceptable solution; if EPA
won't implement PALs, the CAA should be modified to explicitly
authorize them.
Once In, Always In
EPA's ``Reasonably Achievable Control Technology (RACT)''
regulations (and perhaps others) require ``Once in, always in''
provisions.
Even if a source has permanently eliminated emissions sources, it
is still regulated and subject to record keeping and reporting
requirements.
The CAA should be modified to explicitly exempt such sources from
regulation.
ideas for a ``second generation'' of environmental regulation
The Industry Average Performance System (IAPS)
Until environmental ``externalities'' are internalized, public
policy battles (statutory and regulatory), litigation, and control
costs will be maximized--to the detriment of public health,
environmental quality, and economic well-being.
If environmental externalities were internalized, then economics
rather than regulation would drive environmental improvement (less or
no litigation; fewer or no ``command and control'' approaches, fewer or
no congressional or regulatory battles, etc.)
Requiring like categories of sources to pay for emissions, and then
distributing the revenues back to those sources based on production,
would encourage both lower emissions and higher productivity, with many
attendant economic and regulatory benefits. (See IAPS attachment.)
Not a tax; not a revenue source for government.
Encouraging Innovation and Superior Environmental Performance
EPA either cites the CAA to dissuade those interested in pursuing
environmental innovation, or struggles to find a legal basis for
allowing them to do so.
EPA also fears litigation from third parties if it allows
innovative initiatives, let alone if they fail to deliver on their
anticipated promise.
Result: Minimal environmental innovation, risk-taking, and
potentially productive experimentation.
Solution.--Provide EPA with explicit, appropriate authorization to
allow and encourage non-traditional innovation and experimentation.
(See the National Academy of Public Administration's report on this
topic.) Further, require EPA to approve non-standard regulatory
approaches that it determines are reasonably likely to equal or exceed
the environmental performance of the controlling traditional regulatory
approach(es).
A New Definition for States' Responsibility Concerning Transported
Pollution
Debates about causality and ``significant contribution'' could be
easily avoided simply by requiring that each State have a reasonable
opportunity to achieve attainment.
In many cases at present, the air pollution entering a State would
cause nonattainment of NAAQS even if all of the State's own emissions
were eliminated.
Solution.--Require that the air leaving a State must be as clean or
cleaner than that entering the same State. Hold downwind States
harmless from Federal sanctions until this outcome is achieved.
Note.--Such a requirement would eliminate the need for Section 126
provisions in the CAA.
[GRAPHIC] [TIFF OMITTED] T1527.063
Statement of Ron Methier, Chief, Air Protection Branch, Georgia
Environmental Protection Division
Good afternoon ladies and gentlemen:
My name is Ronald Methier. I am the Chief of the Air Protection
Branch of the Georgia Environmental Protection Division. On behalf of
the State of Georgia, I would like to thank you for this opportunity to
testify on what is a very important issue, not only to the people of
Georgia, but I believe to the people of the United States as a whole.
You have asked me to address the important topic of what, if
anything, needs to be ``fixed'' in the Clean Air Act. What is working
in Georgia and what is not? What can be done to address the problems?
In thinking about these questions, we have concluded that the single
most valuable ``fix'' that Congress could effect would be to increase
the flexibility given to both EPA and the individual States, to allow
the States to take advantage of solutions most relevant and most
effective for their regions. Today, I will give you our perspective on
the Clean Air Act and discuss two specific areas where the Act's lack
of flexibility makes it difficult for Georgia to address its air
quality problems in a timely and cost-effective manner. First, I will
address the difficult situation Georgia faces in trying to meet the
Act's strict attainment dates--an unachievable goal, because these
dates apply even to areas which, like Georgia, are significantly
affected by the transport of pollutants from other States. Second, I
will show how the rigidity of the Act's specific mandated control
measures--such as Federal fuel requirements--may be more hindrance than
help in Georgia's struggle to achieve attainment.
The Federal Government and the States share the same goal--national
clean air, as soon as possible. It is self-evident that this goal
cannot be achieved without Federal and State cooperation and
partnership. The complexities of some aspects of the air pollution
problem make it almost impossible for either the Federal Government or
States acting on their own, to develop and carry out all the programs
necessary to achieve nationwide attainment of Ambient Air Quality
Standards. This is especially true for a State like Georgia, which,
like most eastern and southern States, must contend with pollutants
transported from upwind States over which it has no control. Georgia
has developed what it believes are workable and scientifically sound
solutions to these problems. Some of these solutions are based on
science developed long after the Clean Air Act Amendments of 1990. EPA
must be given the flexibility to allow States like Georgia to take
advantage of such state-of-the-art technology and scientific knowledge
in crafting regional solutions that will meaningfully contribute to
clean air throughout the Nation. The last major amendments to the Clean
Air Act were made, as you know, in 1990. These amendments impose strict
and specific controls, ranging from required vehicle inspection
programs to the required use of specially formulated gasoline, on areas
that fail to reach attainment by a specific date. The decade since
1990, however, has seen exponential advances in scientific knowledge
about the causes of air pollution and the solutions to it. The
technology to implement these solutions has likewise changed
dramatically. Specific requirements prescribed by the 1990 Clean Air
Act Amendments are, in some cases, no longer the most effective or
efficient ways to achieve clean air. The Clean Air Act, however, has
not been amended to reflect these scientific advances. As a result, EPA
and the States are left with limited ability to take advantage of new
knowledge and technology, to craft creative, regionally-specific
solutions. If the Clean Air Act is to remain relevant in this new
millenium, something must be done to give EPA and the individual States
the flexibility to take advantage of the knowledge and technological
explosion of the 1990's.
evolution of the clean air act
To understand this issue better, it may be useful to briefly
revisit the evolution of the Clean Air Act and how emerging scientific
knowledge has shaped that evolution. It seems apparent that for the
last thirty years, Congress has struggled with ways to mandate a
solution to the nation's air pollution problem. This seems especially
true for Georgia's largest air pollution problem--ground-level ozone.
Congress first addressed the ground-level ozone problem in 1970,
when it directed EPA to establish National Ambient Air Quality
Standards for ozone and other pollutants and directed the States to
develop implementation plans for the ``implementation, maintenance and
enforcement'' of these standards by 1973. In early recognition that
partnerships between the States and the Federal Government were crucial
given the national character of the ozone problem and the impact of
ozone transport among States, Congress required that these plans
include provisions for ``intergovernmental cooperation,'' in achieving
attainment of the Air Quality Standards.
For a wide variety of reasons, despite congressional mandates, very
little progress was made during the 1970's and 1980's toward attainment
of the ozone standard. This failure was in large part traceable to a
lack of scientific understanding of the effects of ozone transport,
leading to an inability to quantify with specificity the control
measures necessary to reduce ozone transport impacts on downwind areas.
By 1990, when most areas had still not achieved attainment,
Congress decided to employ a much more specific and prescriptive plan
in the Clean Air Act Amendments of 1990. Attainment deadlines were set
and sanctions contemplated for failure to meet those deadlines. Strict
control measures were prescribed. The record clearly shows that
Congress felt it was crucial to force the development of technology and
science to correct the air problems.
Congress also understood the need for partnerships between the
States and the Federal Government. Congress recognized that ``. . .
[a]reas in some States may be unable to attain the Ozone standard
despite implementation of stringent emissions control because of
pollution transported into such areas from other States.''\1\ In 1990,
Congress entrusted EPA with the authority to convene ``ozone transport
commissions'' to study and propose additional control measures
necessary to enable downwind States to attain the ozone standard by the
attainment date. With the transport commission provisions, the ``Good
Neighbor'' provision in section 110(a)(2)(D), and section 126
authorizing States to bring suit to require control measures in upwind
States, Congress endeavored to provide the tools necessary for EPA and
the States to address transported pollution.
---------------------------------------------------------------------------
\1\ S. Rep. No. 101-228, at 48 (1990), reprinted in U.S.C.C.A.N.
3385, 3434.
---------------------------------------------------------------------------
Although we clearly understood more about air pollution in 1990
than we had in 1970, scientific knowledge about the causes and the
solutions, however, was still in relative infancy. For example, in
1990, the scientific community did not fully understand how ozone
itself was formed, nor did it recognize the significance of nitrogen
oxides (NOX) in this formation process. We did not yet
recognize that, for the southeast, NOX rather than volatile
organic compounds (VOCs) were the critical factor in ozone formation.
Likewise, although transport was recognized to be a significant hurdle,
the regulatory agencies had limited ability to quantify or rectify its
impact.
progress toward achieving clean air act goals
Despite the problems with scientific understanding, the 1990
Amendments have forced progress toward attainment. Under the 1990
Amendments, Atlanta was designated a ``serious'' ozone nonattainment
area, with an attainment date of November 15, 1999. After some initial
problems, this plan is working. The 1999 attainment date proved not to
be practicable for Atlanta or for numerous other serious nonattainment
areas; but we have nevertheless made considerable progress in reducing
pollution. Despite the tremendous population growth of the metropolitan
Atlanta area, controls are already in place which have reduced peak
ozone concentrations and both NOX and VOC emissions. With
additional controls coming on line, the Atlanta area is now projected
to attain the 1-hour standard for ozone by 2004.
Georgia recognizes that much of the progress that it has made
toward attainment is a direct result of the various controls required
by the 1990 Amendments. For example, Georgia has benefited from the
acid rain reduction controls, the requirements for enhanced vehicle
inspection programs, the gasoline vapor recovery requirements, as well
as the requirement to prepare implementation plans showing specific
rates of progress toward attainment.
Now, however, some of the specific controls enumerated in the 1990
Amendments have served their purpose and have, in fact, outlived their
usefulness. During the last 10 years, vast strides have been made in
understanding the science of ozone formation. Likewise, the
understanding of the mechanisms and impacts of ozone transport are much
improved. Consequently, some of the specific control measures set out
in 1990 are now obsolete. Likewise, some of the attainment dates
imposed by Congress in 1990 proved to be unrealistic and, where
attainment has been impeded by ozone transport, should be extended.
atlanta illustrates major problems with the clean air act
As stated above, Atlanta was unable to meet its 1999 attainment
deadline. Atlanta was not alone. More than 20 metropolitan areas all
over the county are still classified as nonattainment for ozone, as
shown on the attached map. Except for those areas ranked ``extreme'' or
``severe,'' shown in red on the map, all of the areas missed their
statutory attainment dates. These areas range from California to
Connecticut, from Texas to Wisconsin, from relatively small cities like
Louisville, KY and Springfield, MA, to large cities like Dallas and
Atlanta. The reasons for non-attainment vary from location to location;
there are important regional and technical distinctions that affect the
attainment efforts. The very fact, however, that so many areas have
failed to attain itself demonstrates that something is not working the
way Congress intended and certainly is not working as effectively as it
could. Atlanta's experience is illustrative of problems that are common
to many of these nonattainment areas.
The reasons that the attainment dates set by Congress proved
unrealistic are clear now in a way that they were not a decade ago. The
attainment schedule began to fall apart when the first attainment
demonstration State Implementation Plans (SIPs) became due. For serious
non-attainment areas, these were due on November 15, 1994. As it turned
out, however, scientists at that time were just beginning to understand
the complexity of the transport problem. These gaps in knowledge made
it impossible for the States to forecast attainment by the given
deadlines, or to determine what additional controls might be required
short of draconian, very costly measures with uncertain efficacy.
Because the modeling data was not available to forecast attainment by
the statutory deadlines, EPA, of necessity, extended the deadlines for
these submittals.
In an effort to develop better models for forecasting attainment
and to propose solutions to the ozone transport problem, the Ozone
Transport Assessment Group (``OTAG'') was formed in 1995 by
representatives of 37 States east of the Rocky Mountains, along with
representatives from EPA and industry and environmental groups. OTAG
conducted comprehensive studies of interstate ozone formation and
transport. The group concluded its work in June 1997, 6 months after
EPA had expected, and only 18 months before the serious-area attainment
deadline. Even then, while the group was able to conclude that
NOX reductions were necessary to address transport, it was
not able to reach consensus on specific control recommendations. Once
again EPA took the reasonable step of extending the deadline for
submittal of the States' attainment demonstration SIPs, this time until
April 1998. EPA took final action on the ozone transport problem in
September 1998. This final rule, generally referred to as the
``NOX SIP Call,'' required 22 States and the District of
Columbia to revise their SIPs to provide for NOX reductions
specifically quantified in the rule. The chosen control measures were
to be implemented no later than May, 2003. The NOX SIP Call
has been upheld by the D.C. Circuit, but the court recently extended
the final implementation date until May 2004.
Thus, while Congress expected that it would be feasible, with
diligence, for serious nonattainment areas to come into compliance by
1999, the protracted timetable required for EPA to finalize regulations
to address the complex problem of interstate transport of
NOX has prevented us from meeting that statutory deadline in
Atlanta, despite our concerted efforts. Georgia has already implemented
regulations to obtain major reductions in NOX emissions and
is imposing controls at least equal to those which will be imposed by
the NOX SIP Call. Georgia projects that Atlanta will attain
the 1-hour standard for ozone in 2004 as soon as the NOX SIP
Call controls reduce NOX emissions from our neighboring
States.
The uncertainties and difficulties presented by Atlanta's failure
to meet the statutory attainment deadline illustrate critical problem
areas in the Clean Air Act. Georgia has already adopted extensive
control measures on both stationary and mobile sources, all of which
work to reduce ground level ozone in Atlanta. Once the NOX
SIP Call is fully implemented, ozone levels in Atlanta will meet the
Air Quality Standard. In the meantime, however, uncertainty as to EPA's
authority and discretion may result in the absurd consequence of the
imposition of costly control measures which are scientifically obsolete
and which will not result in faster attainment.
congress should extend or confirm that epa has the authority to extend
the attainment deadlines
In the 1990 amendments to the Clean Air Act, Congress imposed
sanctions for a failure to meet the attainment deadlines. Because
Congress clearly assumed that the attainment deadlines were reasonable,
the Act provides that if EPA determines that an area has not attained
the standard, such area ``shall be reclassified by operation of law.''
Sec. 181(b)(2). In the case of Atlanta, for example, such a
determination by EPA could result in ``bump up'' of the Atlanta area to
classification as a ``severe'' nonattainment area. With a ``bump up''
to severe, automatic consequences would result, such as a requirement
that we use Federal reformulated gas (RFG), stricter standards on
industrial facilities, and monetary penalties for failure to attain.
Sec. Sec. 182(d), 185, 211(k). Recognizing the unfairness that would
result from requiring bump-up and the attendant sanctions upon States
with areas unable to show attainment due to interstate transport of
ozone, EPA has proposed a policy which allows it to extend attainment
dates where interstate transport is a significant contributor to non-
attainment (the ``Extension Policy'').\2\
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\2\ Extension of Attainment Dates of Downwind Transport Areas, 64
Fed. Reg. 14,441 (March 25, 1999).
---------------------------------------------------------------------------
In issuing the Extension Policy, EPA recognized that downwind
States have been operating in a ``climate of uncertainty'' as to the
allocation of responsibility for pollutants transported from upwind
States. EPA has stated its view that ``Congress, had it addressed the
issue, would not have intended downwind areas to be penalized by being
forced to compensate for transported pollution by adopting measures
that are more costly and onerous and/or which will become superfluous
once upwind areas reduce their contribution to the pollution problem.''
Id. at 14,444. EPA's Extension Policy reasonably allows downwind States
to assume the benefit of the NOX SIP Call reductions in
making their attainment demonstrations, so long as areas can
demonstrate that they meet the criteria.\3\
---------------------------------------------------------------------------
\3\ To qualify for application of the extension policy an area
must:
(1) be identified as a downwind area affected by transport from
either an upwind area in the same State with a later attainment date or
an upwind area in another State that significantly contributes to a
downwind non-attainment;
(2) submit an approvable attainment demonstration with any
necessary, adopted local measures and within an attainment date that
reflects when the upwind reductions will occur;
(3) adopt all local measures required under the areas current
classification and any additional measures necessary to demonstrate
attainment; and
(4) provide that it will implement all adopted measures as
expeditiously as practicable, but no later than the date by which the
upwind reductions needed for attainment will be achieved. Id. at
14,444.
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EPA has acknowledged that Atlanta's ozone problem is significantly
affected by transport and in December 1999, EPA proposed to apply the
Extension Policy to Atlanta upon approval of the attainment
demonstration SIP.\4\ EPA has also proposed to apply the Extension
Policy to a number of other nonattainment areas affected by ozone
transport, such as Beaumont/Port Arthur,\5\ Louisville,\6\ and St.
Louis.\7\ The practical effect of the Extension Policy is to allow EPA
to extend attainment dates for serious ozone non-attainment areas such
as Atlanta to June, 2004, the date on which NOX SIP Call
reductions are to take effect. EPA believes, and Georgia agrees, that
the Extension Policy is within EPA's authority under the Clean Air Act
and that it is consistent with congressional intent.
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\4\ 64 Fed. Reg. 70,478 (Dec. 16, 1999).
\5\ 64 Fed. Reg. 18,864 (April 16, 1999).
\6\ 64 Fed. Reg. 27,734 (May 21, 1999).
\7\ 64 Fed. Reg. 13,384 (May 18, 1999).
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challenges to the extension policy
In spite of the reasonableness of the Extension Policy, it has come
under severe criticism. There are many who contend that the Extension
Policy is beyond EPA's authority and that EPA has no power to vary the
strict attainment dates set forth in the Clean Air Act amendments of
1990.
In the case of Georgia, we are currently involved in litigation in
which the validity of the Extension Policy has been attacked. The case
is pending before the Court of Appeals for the Eleventh Circuit and has
not yet been resolved. Very recently a suit was filed seeking an order
to require EPA to bump up 15 areas, including Beaumont/Port Arthur and
Louisville, to the next higher classification, in spite of EPA's
proposal to extend the attainment dates for some of those areas. We
have received a notice of intent to file such a suit seeking to force
``bump up'' of the Atlanta area.
If the Extension Policy were held invalid in current or future
litigation, the necessary result is that Atlanta and all other areas
which have failed to reach their statutory attainment dates must be
``bumped up'' to the next higher classification. In the case of
Georgia, bumping up Atlanta to classification as a severe area would
have significant punitive consequences, which do nothing to promote
better air quality objectives and which impose needless extra costs
upon Georgia consumers.
Georgia urges Congress to address the Clean Air Act and to remedy
the problem of automatic bump-up where the failure to attain is due to
circumstances beyond the State's control, such as interstate ozone
transport.
the clean air act does not allow sufficient flexibility in the
development of state-specific or region-specific clean fuels
In its ongoing efforts to reach attainment in Atlanta, Georgia is
also struggling with compliance with the Clean Air Act requirements on
clean fuels. Georgia has worked cooperatively with all stakeholders,
including the oil industry, to develop a Georgia fuel which is designed
to address Georgia's pollution issues and is cost effective.
The Clean Air Act should be revised to permit States to implement
State-specific control measures, so long as they satisfy the Clean Air
Act goals.
clean air act amendments of 1990 mandate federal reformulated fuel upon
reclassification to severe
The Clean Air Act currently provides that when an area is
reclassified from serious to severe, it is subject to the Federal
reformulated gas requirements.\8\ As with so many other provisions of
the 1990 amendments to the Clean Air Act, the clean fuel provisions of
the Act are very prescriptive and extremely detailed.
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\8\ CAA Sec. 211(k)(10)(D), 42 U.S.C. Sec. 7545(k)(10)(D).
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Since 1990, technology has advanced and knowledge of ozone non-
attainment has changed. We now know that pollution is different in the
southeast than in other parts of the country. Air pollution in general,
and ground level ozone specifically, form differently in the south than
in other areas of the country. Transport in the southeast is
significant, but distances of transport are not as extensive as in the
midwest and northeast. In addition, in Atlanta as in most of the
southeast, the ozone problem is largely caused by NOX. That
is, because of the tremendous amount of biogenic (natural) VOCs from
forests and other vegetation, control of VOCs has not proved to be as
effective in reducing ground-level ozone. Rather, it has been
determined by numerous studies that the best method to address ozone in
the southeast is by reduction of NOX emissions.
For this reason, the fuel issue as well is simply not appropriate
for a ``one-size-fits-all'' solution. It is important that Congress
allows the States sufficient flexibility to tailor solutions which
address their specific air quality problems in the most efficient and
cost-effective manner.
the georgia fuel is carefully designed to address atlanta's air
quality problem
In June 1997, at the conclusion of the OTAG process, Georgia began
immediately to craft the mobile source control strategy needed to bring
Atlanta into attainment. We started by meeting with oil industry
representatives to identify the best fuel program for the metro area.
We hosted an extensive consultative process with the Georgia Petroleum
Council and its members, representing refiners, marketers and pipeline
operators. Together we determined that low sulfur gasoline is the most
cost-effective fuel to reduce NOX emissions from gasoline-
powered vehicles operated in the Atlanta region.
With the support of the oil industry, Georgia adopted regulations
in May 1998 that lowered the average sulfur concentration in gasoline
sold during the summer ozone season to 150 ppm. The industry began
delivering this gasoline in 1999 for use in a control area encompassing
Atlanta and 25 counties. This fuel reduces NOX emissions
from gasoline-powered vehicles by 6.6 percent at a cost of
approximately 1 to 2 cents per gallon, as estimated by the oil
industry.
In 2003, Georgia is going to a more stringent low sulfur fuel, one
that requires an annual average sulfur content of 30 ppm, in a larger
45-county control area. This gasoline will reduce NOX
emissions by 12.0 percent, or 23.54 tons per day, at a cost of 2.2 to
2.4 cents per gallon, as estimated by an oil industry consultant. Also,
because of a 7.0 pound per square inch Reid vapor pressure limit
instituted in Georgia in 1995, VOCs and toxics will both be reduced by
more than 25 percent. This fuel is a critical part of the targeted
strategy to improve air quality and bring Atlanta into attainment with
the ozone Air Quality Standard by 2004.
federal reformulated gas (rfg) would be less effective and more costly
Federal reformulated gas (RFG), if required in Georgia, would not
only be less effective in combating Atlanta's ozone pollution but would
also be more costly. Under the Federal Phase RFG program, which started
January 1 of this year, gasoline sold in RFG areas will reduce
NOX emissions by up to 8.8 percent at a cost of about 4 to 6
cents per gallon, as estimated by the U.S. Environmental Protection
Agency.\9\ Compared with the Georgia low sulfur gasoline that is slated
for arrival in 2003, the implementation of Phase 2 RFG in the Atlanta
area would result in a fuel at least 27 percent less effective in
reducing NOX at about twice the incremental cost. Federal
Phase 2 RFG is not the right fuel solution for Atlanta but might be
forced on us by prescriptive Clean Air Act requirements and EPA's
limited discretion.
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\9\ 59 Fed. Reg. 7810 (1994).
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conclusion
During the debates on the 1990 amendments to the Clean Air Act,
Senator Baucus noted that the transport provisions were designed to
avoid placing an ``unfair burden on any State which is the victim of
transported air pollution.\10\ Nevertheless, Atlanta and other areas
which have been significantly affected by ozone transport are indeed on
the brink of being sanctioned, when it is clear that their failure to
attain results not from lack of effort on their part but on the time
required to address the very complex problem of ozone transport. We do
not believe that Congress intended this result. We urge you to act
expeditiously to address these unintended consequences of the strict
prescriptive provisions of the 1990 Amendments. We request that
Congress either extend the attainment dates, where the failure to
attain is a result of interstate transport or, in the alternative, make
it clear that EPA has authority to extend. Second, we urge you to
revise the Clean Air Act to allow the States more flexibility in
developing specific control strategies, such as clean fuels that are
best suited to their particular air quality problems. With clean fuels,
the one-size-fits-all prescription in the Clean Air Act simply does not
work. Giving EPA the authority to approve State-specific fuels would
promote the goal of better air quality. Moreover, as a general rule we
believe that it is appropriate for Congress to invest EPA and the
States with more flexibility and discretion, so that they can continue
to utilize developments in science and technology to craft improved
solutions to the critical national issue of air quality. On the part of
Georgia, I want to express our commitment to continue to work hard to
ensure that Atlanta and all other areas in our State meet the national
air quality standards. If Congress gives us more flexibility, I believe
that the public will benefit.
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\10\ 136 Cong. Rec. S 16895, at S16970 (1990).
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I thank you for giving me the opportunity to tell you about some of
the critical issues which Georgia is facing under the Clean Air Act.
[GRAPHIC] [TIFF OMITTED] T1527.064
Responses by Ron Methier to Additional Questions from Senator Inhofe
Question 1. From the State and local government point of view, what
aspects of the Clean Air Act are currently working well?
Response. Georgia believes that the Clean Air Act as a whole is
working well. Proof of the Act's effectiveness can be found in the
United States Environmental Protection Agency's (EPA) air quality
trends reports. These reports indicate that, overall, pollutant
emissions are decreasing and air quality is improving all across the
country. This improvement in air quality can in large part be
attributed to the deadlines and mandates in the Act, which have forced
technology and the development of new control measures. Forcing such
innovation has resulted in substantial emission reductions.
Additionally, Georgia believes that the ``division of labor'' the
Act creates between EPA and the States is generally effective. EPA has
the resources and responsibility to do research and develop standards
that can be broadly applied across the country. States rely on EPA to
make such regional and national policy decisions, since doing so would
require many more resources than most States have. Once EPA develops
these standards, the States can then use the standards and the
resulting rules promulgated by EPA to develop a locally-specific plan
to improve air quality.
Question 2. From the State and local government point of view, what
needs to be improved in the Act in order to provide you more
flexibility and responsibility?
Response. Of major concern to the State of Georgia is the
specificity with which the Act outlines and requires control measures
for ozone nonattainment areas. It seems that in the Year 2000 these
``one-size-fits-all'' solutions--such as requiring Federal reformulated
gasoline--may have outlived their usefulness. There is little question
that the specific control measures outlined in the Act helped
facilitate the attainment of the 1-hour ozone air quality standard by a
large number of areas classified nonattainment under the 1990
Amendments to the Act. The controls may, however, have reached a point
of diminishing returns in at least some of the areas that still remain
nonattainment for ozone. These areas are, for the most part, larger
urban areas with individual characteristics that require individualized
approaches to solving their ozone problems.
For example, the Section 181 reclassification provisions which
would require Atlanta and other areas to ``bump up'' to higher ozone
area classifications result in mandated control measures that do not
make sense for all areas. Atlanta would be especially adversely
affected by these control measures because ``bump up'' to a ``severe
nonattainment area'' would require Atlanta to use Federal reformulated
gasoline (RFG). This formulation of gasoline is simply not appropriate
for Atlanta, because it reduces volatile organic compounds (VOCs), not
oxides of nitrogen (NOX), the problem in Atlanta.
RFG, if required in Georgia, would not only be less effective in
combating Atlanta's ozone pollution but would also be more costly.
Under the Federal Phase 2 RFG program, which started January 1 of this
year, gasoline sold in RFG areas will reduce NOX emissions
by up to 8.8 percent at a cost of about 4 to 6 cents per gallon, as
estimated by the U.S. Environmental Protection Agency. Compared with
the Georgia low sulfur gasoline that is slated for arrival in 2003, the
implementation of Phase 2 RFG in the Atlanta area would result in a
fuel at least 27 percent less effective in reducing NOX at
about twice the incremental cost. Federal Phase 2 RFG is not the right
fuel solution for Atlanta but might be forced on us by prescriptive
Clean Air Act requirements and EPA's limited discretion. This is just
one example of the way that EPA and the States need more flexibility
and discretion to utilize new developments in science and technology
and to take advantage of what we are learning about the successes of
voluntary control measures. These could be solutions that were not
available or recognized in 1990. They could also be multi-state,
regional solutions that require more time to implement than single-
state plans.
Question 3. When the Clean Air program began in the 1970's, no one
had much experience. When the Act was amended in 1990, the States had
little experience compared to the Federal Government. With the
experience and expertise of everyone today, what parts of the Federal
program can effectively be delegated to the States?
Response. Georgia believes that as a whole, programs now delegated
to the States are sufficient.
Question 4. I believe the trading program for acid rain has worked
well. We are constantly being told we should expand the free market
concepts of the Clean Air Act. My question is in which areas of the Act
would a free market approach work?
Response. Georgia agrees that a free market trading approach has
worked well for acid rain pollutants. This approach could probably also
work well for regional NOX reductions impacting urban ozone
nonattainment areas and for reducing regional haze.
As a caveat, however, it seems that the free market approach works
best for large national or regional areas, where an overall reduction
in pollutants is needed to solve a large air quality problem. Such
programs become less effective in smaller areas where individual
sources or groups of sources can have localized impacts. Congress
should also be mindful that such programs require significant
additional resources to administer.
endnote
59 Fed. Reg. 7810 (1994).
______
Responses by Ron Methier to Additional Questions from Senator Voinovich
Question 1. What would be the consequences to your State if EPA
moves forward with designations of ``nonattainment areas'' under the 8-
hour national ambient air quality standard for ozone before the Supreme
Court renders a decision in the case?
Response. If the 8-hour national ambient air quality standard is
upheld, Georgia will have three additional ozone nonattainment areas in
addition to Atlanta. Simply put, if EPA designates these areas
nonattainment, and the Supreme Court eventually strikes down the
standards, Georgia may have unnecessarily wasted time and resources in
response to these designations. That said, we understand that such
premature designation is no longer an option, as a result of the recent
Appropriations bill, H.R. 4635, which effectively bars EPA from
designating these areas before U.S. Supreme Court action.
H.R. 4635 has reduced some of the uncertainty for States.
Nonetheless, the whole situation makes it difficult for Georgia to
properly plan. The eventual timing of designations should reflect the
time needed for Georgia, as well as other States, transportation
planning agencies and the regulated community to meet the new
nonattainment area requirements with as smooth a transition as
possible, while still maintaining progress on meeting those standards.
The timing involved in the eventual designations is very important.
The earlier the designations, the less time States will have to prepare
for this new rule. Georgia, like most other States, is proceeding with
the initial planning activities to prepare for whatever the outcome may
be. This includes evaluating air monitoring data, improving emission
inventories of the ozone-forming pollutants, and developing the tools
and relationships needed to work with local transportation planning
agencies in these new areas that will be faced with planning for
conformity. This period of uncertainty has minimized Georgia's
effectiveness in all of these areas, since we are balancing our
resources to work on this rule--that may or may not become effective--
with other more certain rules we must implement now.
Question 2. Is EPA providing sufficient resources currently, as
well as commitments for future resources, to conduct appropriate
ambient air monitoring within your State, including monitoring of fine
particulate matter and determination of the composition of fine
particulate matter in the air?
Response. Initial necessary funding is adequate. Future necessary
funding is uncertain. Congress has ensured so far that funding has been
sufficient to begin monitoring for the fine particulate matter network.
Without assurances of continued funding, however, the ability to
maintain such monitoring is unclear.
In many cases, such as providing the monitoring equipment, the
training required to operate that equipment, or decisions on
implementation, EPA has not been timely. This has resulted in less time
for States to act, delaying the collection of some data that will be
required to determine whether areas are meeting the standard and what
the possible causes of non-compliance may be. For example, new
speciation monitors have now been delivered and are ready to operate to
better determine the composition of fine particulate matter. Georgia
has been unable, however, to obtain the training required to properly
operate this equipment. EPA, due to insufficient resources, is unable
to offer enough training courses. This will delay our ability to begin
gathering this important data.
Question 3. Is EPA providing adequate flexibility and appropriate
guidance to State and local air pollution agencies to administer the
program for operating permits under Title V of the Clean Air Act?
Response. No. EPA has provided guidance to State and local
permitting agencies relating to the implementation of Title V, some of
which was intended to provide flexibility to State and local agencies.
Much of this guidance, however, was not provided on a timely basis.
EPA has had to issue dozens of guidance memos and is working on a
third White Paper to interpret the Part 70 regulations. As a result of
a fairly tight schedule imposed by Title V for States to submit Title V
plans, for facilities to submit applications, and to issue all Title V
permits, much of this guidance has come relatively close to or after
the statutory deadlines. For example:
EPA issued ``Questions and Answers--Operating Permits
Program'' only 4 months before the deadline for States to develop
plans;
EPA issued White Paper 2 dealing with the development of
permit applications 4 months before companies were required to submit
completed applications;
EPA is still working on two documents related to the
content of Title V permits when approximately 50 percent of all Title V
permits nationwide have already been issued.
As a result of EPA's delay, permitting agencies have been forced to
develop and implement their Title V programs without guidance, only to
later be faced with EPA guidance that is contradictory to developed,
and implemented, programs.
A solution to this problem may be to provide more realistic
deadlines, by extending the statutory requirements for initial permit
issuance and for full program approval. Such an extension would allow
EPA additional time to finalize guidance currently under development
and to promulgate the proposed revisions to Part 70. It would also
allow State and local permitting agencies to complete the initial Title
V permit issuance in a reasonable and consistent fashion.
Question 4. Are EPA's regulations under the Act sufficiently clear,
consistent and timely to allow your State to properly implement Clean
Air Act programs for which it is responsible?
Response. No. EPA is not always timely, as evidenced by so many
court-ordered deadlines for new actions and rules. These late actions
adversely affect Georgia, which relies on these national rules in
developing its State implementation plans to meet air quality
standards. If Georgia is late with these plans the Act mandates
sanctions, even though there are no such penalties for late EPA action.
Many of EPA's rules are overly complex. It takes a battery of State
engineers, private consultants, and lawyers, to develop, review and
issue many new industrial air permits. And even then, as can be seen
with EPA national enforcement actions on power plants, the wood
products industry, and others, interpretation of the rules can vary.
This has proven very disruptive to Georgia's air quality planning and
for the regulated community in Georgia. Transportation conformity
rules, also, have proven to be unclear, resulting in disruption and
lawsuits in Atlanta and many other areas.
There are many aspects of the Title V regulations that are unclear
and require additional guidance. EPA has issued close to 40 national
policy guidance memos and is about to issue its third White Paper on
Title V. As is discussed in the previous answer, many of these guidance
documents have not been timely.
An important point to remember here is that EPA, like the States,
is under-
funded to perform the broad range of responsibilities needed to
implement the Clean Air Act. This has, no doubt, limited EPA's ability
to act in a more timely manner with clear, consistent regulations.
______
Responses by Ron Methier to Additional Questions from Senator Baucus
Question 1. What is the fee (per ton of emissions) which your State
currently charges for permitting under Title V of the Clean Air Act?
How much does that generate annually and what is your State's annual
budget for permit activities, implementation and enforcement matters,
emissions and ambient monitoring, modeling, analyses, demonstration,
inventory preparation and emissions tracking, relating to air quality?
What, if any, additional categories of spending are necessary to
support air quality programs?
Response. Georgia currently charges a fee of $28/ton for calendar
year emissions of permitted Title V major sources. Georgia does not
have a Title V permit application fee. In State Fiscal Year 2000 (the
latest available), we collected $7.00 million in Title V fees. The
total FY2000 budget for all air quality related activities (excluding
the vehicle emission inspection and maintenance program, which is
funded by emission inspection fees) was $14.54 million. The air quality
related activities that are not covered by Title V fees are supported
by Federal grants, non-Title V permit fees from Acid Rain sources, and
State funding. Beginning in fiscal year 2001, the non-Title V Acid Rain
fees will become Title V fees and will only be available to fund Title
V eligible permitting activities.
There are a number of federally required programs (such as
development and implementation of State implementation plans for
attainment and new source permitting required by Parts C and D of Title
I) that are not eligible to use Title V permit fees. With the
conversion of Acid Rain fees to Title V fees and the continued growth
of non-Title V fundable activities, Georgia will need to identify other
funding mechanisms if these programs are to be carried out.
Question 2. Flexibility was mentioned repeatedly during the hearing
as necessary for efficient conduct of States' programs. The Clean Air
Act Amendments of 1990 created relatively strict deadlines and
established numerous requirements largely because insufficient progress
had been made prior to 1990 in achieving attainment. How can we be
certain that increasing flexibility will not result in slowing current
progress? What specific changes in the Act would be necessary to
enhance flexibility yet avert backsliding?
Response. Georgia is concerned with achieving the goals of the
Clean Air Act (Act) as expeditiously as possible. We believe, however,
that allowing States the flexibility to develop State implementation
plans (SIPs) using that mix of controls that the State has determined
are necessary to achieve those goals, versus the imposition of
federally-mandated controls, properly delegates that responsibility to
the States, without slowing progress toward those goals.
Georgia agrees that the deadlines and mandates of the 1990
amendments to the Act were necessary due to the lack of progress in
many areas up to that time. Some of these deadlines, however, have
proven to be unachievable and some of the mandated controls have
outlived their usefulness. Georgia's experience attempting to attain
the 1-hour ambient air quality standard for ozone, while dealing with
the issue of transport, illustrates both of these points.
Since 1990, we have learned at least two important facts about
ozone. First, much of the lack of progress toward achieving the 1-hour
ozone standard stemmed from our limited understanding of how ground
level ozone is really formed. Second, Federal mandates requiring
specific control measures--a ``one-size-fits-all'' approach, such as
reformulated gasoline (RFG) in section 211(k)--make less sense for some
ozone nonattainment areas, such as Atlanta, because of that area's
unique situation.
Of all the criteria air pollutants, ozone is the most complicated
in its formation and control. The mandates and deadlines in the 1990
amendments forced EPA and the States to work aggressively on the ozone
problem to gain a better understanding of possible causes and
solutions. Through the Ozone Transport Assessment Group (OTAG),
convened by EPA in 1995, the EPA, 37 eastern States, and stakeholders
worked under tight deadlines to try to obtain a much better
understanding of the causes of ozone, the significant effect of
transported ozone and ozone precursors (oxides of nitrogen or
NOX and volatile organic compounds or VOCs), and to develop
possible solutions. Unfortunately, even with its aggressive schedule,
OTAG was not able to finish its work in time to help serious
nonattainment areas, such as Atlanta, achieve attainment by the
deadlines in the Act. (See also answer to question 3 below.) Atlanta
now faces possible ``bump up'' to the ``severe'' classification, which
mandates the use of RFG.
Ten years after the 1990 amendments, we also have a better
understanding of what really needs to be done for Atlanta to attain the
1-hour ozone standard, i.e., that the control of NOX
emissions is key. RFG will not control NOX emissions as well
as the low sulfur gasoline proposed in Georgia's attainment SIP, which
is also estimated to be less costly to the consumer than RFG.
If Atlanta is bumped up to ``severe,'' and we don't believe it
should be (see answer to question 3 below), Georgia should have the
flexibility to opt out of RFG and use its low sulfur gasoline so long
as it will achieve attainment as expeditiously as practicable, but no
later than the attainment date in the Act. To allow nonattainment areas
to opt out of the RFG requirement, we recommend that Congress revise
section 211 (k)(10)(D) of the Act as follows:
(D) Covered area.-- The 9 ozone nonattainment areas having a 1980
population in excess of 250,000 and having the highest ozone design
value during the period 1987 through 1989 shall be ``covered areas''
for purposes of this subsection.
Effective 1 year after the reclassification of any ozone
nonattainment area as a Severe ozone nonattainment area under section
7511 (b) of this title, such Severe area shall also be a ``covered
area'' for purposes of this subsection; provided, however, that no area
shall be deemed a ``covered area'' pursuant to this paragraph if the
current or proposed implementation plan for that area includes State or
local gasoline rules, and if the Administrator has determined that
gasoline conforming to those State or local rules will achieve the
necessary reduction in ozone or ozone precursors at least as
expeditiously as the federally-certified gasoline.
Another area in which we believe the States should be granted
flexibility is in the utilization of multi-pollutant control measures,
e.g., in complying with the 1-hour ozone standard and the particulate
matter standard. Such flexibility would encourage more multi-pollutant
planning and should reduce the cost of compliance. We know, for
example, that Atlanta's ozone and fine particulate matter levels are
both high. There are many control measures we could consider that help
control both of these pollutants, yet the planning deadlines and SIP
submittal dates in the Act as it now stands may force Georgia to
utilize single-pollutant control measures in order to meet those near-
term deadlines. If, instead, we had some additional time to plan, we
could utilize multi-pollutant controls that would achieve overall
cleaner air at a somewhat later date.
EPA and the States should be provided the flexibility to set
reasonable, yet aggressive timeliness for attainment of the air quality
standards for multiple pollutants in the most cost-effective way, so
long as public health will be protected.
Question 3. Transport of ozone and other long-range pollutants
continues to be a serious problem for public health and for State and
local air quality planners. Do you have any suggestions for ways that
the Act could better deal with this phenomenon?
Response. Yes. Based on what we have learned about transport since
1990 through the OTAG process and the initial work on regional haze, we
now understand that regional analysis and planning are much more
critical to meeting air quality goals than we ever thought. The Act
should recognize this and build in sufficient time and proper
mechanisms to deal with transport in the most effective way. Again,
Georgia's experience in trying to attain the 1-hour ozone standard
while dealing with the issue of transport illustrates the need to
revise the Act so that nonattainment areas affected by transport are
not unfairly penalized for circumstances entirely beyond their control.
Congress, through the 1990 amendments to the Act, provided the
States and EPA with a variety of measures to address the problems
caused by the transport of ozone and ozone precursors. A lack of
knowledge regarding ozone formation, transport, and control, however,
rendered these statutory tools all but useless for most of the 1990's.
Specifically, section 110(a)(2)(D) of the Act required States to
ensure that their SIPs included sufficient controls to prevent local
emissions from contributing significantly to nonattainment in downwind
States. In addition, section 126(b) authorized States to petition EPA
for a finding that any major source or group of stationary sources
emits or would emit any air pollutant in violation of section
110(a)(2)(D). Last, pursuant to sections 176A and 184, States could
petition EPA to convene an interstate ozone transport commission(s), if
EPA had reason to believe that the transport of ozone or ozone
precursors from one or more States contributed significantly to a
violation of a national ambient air quality standard in one or more
other States. All of these tools, however, required the States to have
sufficient emissions data and modeling technology to utilize them.
Additionally, these tools would have had to have been utilized early in
the process so that the necessary controls on transport were in place
prior to the States' attainment dates. Because many States did not have
the resources and expertise to acquire such data and/or perform such
modeling, they were unable to use the tools provided by Congress.
Georgia, like most eastern States, chose instead to deal with the
ozone transport problem by participating in OTAG. However, OTAG did not
conclude its work until June 1997, and while OTAG was able to agree
that NOX reductions were the key to transport, the group was
not able to propose specific additional controls. As a
result, the final NOX SIP Call was not issued by EPA until
October 1998, and its reductions will not take effect until May 2004.
For Atlanta, Georgia and other ``serious'' nonattainment areas, these
control measures are too late, because their statutory attainment date
of November 15, 1999, has already passed. Because Atlanta has missed
its attainment date, it is faced with possible bump up to ``severe''
pursuant to section 181 (b)(2) of the Act, even though its air quality
has actually improved.
To resolve the inequities in the Act related to transport, EPA
adopted a policy in March 1999 to extend the attainment dates of ozone
nonattainment areas, like Atlanta, significantly affected by transport.
See Extension of Attainment Dates for Downwind Transport Areas, 64 Fed.
Reg. 14,441 (Mar. 25, 1999). We recommend that Congress either extend
the attainment dates in the Act where the failure to attain is a result
of transport, or make it clear that EPA has the authority to extend in
those circumstances. EPA's Extension Policy can be adopted into the Act
by adding the following paragraph to section 181 (a):
(6) Upon petition of a State, the Administrator may grant an
extension of the attainment date specified in table 1 of paragraph (1)
of this subsection for nonattainment areas affected by transport from
either an upwind area in the same State with a later attainment date or
an upwind area in another State that significantly contributes to
nonattainment; any such extension shall provide for attainment of the
national ambient air quality standard for ozone as expeditiously as
practicable.
Question 4. You expressed concern about EPA's ``bump-up'' policy
and its impact on the Georgia economy. Congress created those
nonattainment designation categories and their requirements to
encourage States to act expeditiously to control pollution. If the air
that Georgians are breathing falls into the category that Congress
designated, why shouldn't ``bump-up'' occur?
Response. The Atlanta nonattainment area should not be bumped up to
``severe,'' because bump up will not result in attainment of the 1-hour
ozone standard any sooner, but will actually hinder attainment. Thus,
the only effects of bump up will be punitive.
In 1990, the Atlanta area was re-designated as nonattainment for
the 1-hour ozone standard and its air quality classified as
``serious.'' Since then, as a result of strong local control measures,
Atlanta's air has been cleaned up to the ``moderate'' level, i.e., the
most recent design value for the Atlanta area is 0.157 ppm, which if
Atlanta was classified today pursuant to section 179 of the Act,
Atlanta's air quality would be classified as ``moderate.'' This
improvement in air quality was achieved in spite of the significant
contribution to nonattainment of ozone and ozone precursors transported
into Atlanta from other States. (See footnote 2.)
Not only would bumping up to a ``severe'' classification not
reflect the air quality in Atlanta, it would also not result in any new
ozone control measures that will achieve attainment sooner. In fact,
the mandated RFG requirement for ``severe'' areas in section 182 of the
Act will impede attainment, because RFG does not address NOX
as well as Georgia's low sulfur gasoline. Atlanta's current attainment
SIP, using Georgia's low sulfur gasoline and factoring in the new
controls provided by the NOX SIP Call, demonstrates
attainment of the 1-hour ozone standard in 2003; however, that date
will probably have to be revised to 2004 based on the extension for
compliance with the NOX SIP Call to 2004. Even so, Atlanta's
projected attainment date of 2004 is sooner than the attainment
deadline in the Act for severe areas of November 15, 2005.
Bumping up Atlanta to ``severe'' and requiring Georgia to adopt the
additional control measures mandated for ``severe'' areas, when Georgia
already has a plan for attainment, will unduly penalize the Atlanta
nonattainment area for transported pollution beyond Georgia's control.
More importantly, the time and expense to adopt such measures will be
for naught, because such measures will become superfluous once the
NOX SIP Call is implemented.
endnotes
1. EPA's document entitled ``Air Quality Modeling Technical Support
Document for the NOX SIP Call,'' dated September 23, 1998,
shows that, on average, over 20 percent of exceedances of the 1-hour
ozone standard in the Atlanta, Georgia nonattainment area are caused by
emissions from sources in other States.
2. The NOX SIP Call was challenged and substantially
upheld in Michigan v. EPA, D.C. Cir., No. 98-1497. Pursuant to an Order
of this Court entered on August 30, 2000, the deadline for
implementation of the controls required by the NOX SIP Call
was extended from May 1, 2003, to May 21, 2004.
3. Although EPA has not yet been sued over its failure to ``bump
up'' Atlanta, EPA has received a notice of intent to sue from Georgians
for Transportation Alternatives, the Georgia Coalition for the People's
Agenda, Southern Organizing Committee for Economic and Social Justice,
and the Sierra Club.
__________
Statement of Richard P. Homrighausen, Mayor, Dover, Ohio
Chairman Inhofe, Senator Graham, members of the subcommittee, thank
you for this opportunity to testify before you today on the important
subject of reauthorization of the Clean Air Act. As a mayor from the
heart of the industrial Midwest, I know both the value that citizens
have received from the passage of the Clean Air Act, and its
amendments, as well as the hardships imposed from inflexible,
overzealous and overreaching administration.
Dover, Ohio has a population of about 13,000--with more than 900
commercial and industrial entities calling Dover home. As you would
expect, our goal is to provide reliable, affordable power to our
consumers--including helping our local businesses remain viable and
attracting new development. One of the primary attractions that Dover
holds is our status as a municipal electric community. The city of
Dover also owns and operates a 14-megawatt coal-fired power plant
(which is co-fired with natural gas), a 16-megawatt gas turbine, a 2.5-
megawatt diesel generator and we recently installed six 1.8-megawatt
diesel generators in a joint effort with AMP-Ohio and other municipal
electric communities. Over the last 9 years as mayor, and as a prior
member of city council, I have had considerable experience (and
frustration) in working with the EPA on the regulatory treatment of our
small electric utility.
In addition to our local generation, we purchase power through and
are a member of American Municipal Power-Ohio (AMP-Ohio), the nonprofit
wholesale power supplier and services provider for 78 municipal
electric systems in Ohio, three in Pennsylvania and two in West
Virginia. AMP-Ohio's largest generating resource is the Gorsuch
Station, a 213-megawatt coal-fired facility located in Marietta, Ohio.
As a small-town mayor, local municipal utility operator of a small
coal-fired power plant, participant in AMP-Ohio and president of the
Ohio Municipal Electric Association (OMEA) Board of Directors, I want
to share with you my observations on the Clean Air Act--its successes
and failures--as well as my views on how to fix the problems that
communities like mine are experiencing.
I shared many of these thoughts in testimony before your
subcommittee on April 29, 1997, when I testified about concerns
regarding EPA's then-proposed ozone and particulate matter standards.
overview of the clean air act
As the members of this subcommittee are aware, the Clean Air Act
was passed in 1970 with the goal of achieving and maintaining healthy
air quality in the United States. The Act established a process for the
U.S. Environmental Protection Agency (EPA) to develop ambient standards
for various ``criteria'' pollutants, with the standards set to protect
human health and welfare. Once these standards were developed, an
evaluation process was employed by EPA and the States to determine
which areas where not in compliance. The States were to develop
enforceable State Implementation Plans (SIPs) for achieving and
maintaining these National Ambient Air Quality Standards (NAAQS),
including the establishment of emissions limits for those existing
major and minor air pollution sources thought to be contributing to a
non-attainment problem. EPA then set emissions limits--or New Source
Performance Standards (NSPS)--for new major air pollution sources (and
major rebuilds).
A key feature of the Clean Air Act deserves to be spotlighted--
Congress did not direct EPA to regulate existing sources (e.g., pre-
1970). Rather, EPA set the ambient air standards and left to the States
the responsibility for meeting those standards. This division of
responsibility between EPA and the States was carefully crafted (and
maintained through subsequent amendments to the Act), and has been
repeatedly threatened by recent EPA actions.
The 1977 amendments to the Clean Air Act created an advanced set of
regulation for new major sources of pollution and established a three-
part test for new sources--first, it cannot cause an exceedance of the
ambient air standards; second, it must meet the applicable Prevention
of Significant Deterioration (PSD) standard; and, third, it must
utilize the Best Available Control Technology (BACT).
As you know, among other provisions, the 1990 Clean Air Act
Amendments created the innovative ``cap and trade'' acid rain program.
the successes
Under the Clean Air Act, significant improvement has been made in
air quality. The benefits to public health, agriculture, building and
``enjoyment of life'' are considerable. As a local official, I must
emphasize that these accomplishments were realized largely through the
efforts of State and local governments through innovative development
and implementation of the SIP program. These improvements must
continue. There are still areas of non-attainment in our country.
Furthermore, we need to provide for continued economic expansion
without degrading our air quality and associated public health and
welfare. However, these further improvements must continue to be driven
at the State and local level--not dictated by a central bureaucracy--
and must feature a balanced cost/benefit approach.
The second crowning success of the Clean Air Act is the innovative
sulfur dioxide (SO2) trading program. This ``market
approach'' has been highly successful overall, with the cost of
compliance being far less than what would have resulted from the
traditional ``command and control'' approach. The successful SO2
approach to emission reductions should be extended to other pollutants.
the failures
Regrettably, my list of Clean Air Act failures is much longer than
my list of successes. Following is a list of key areas in which I
believe Congress and the EPA must seek improvement:
1. Minimizing Impacts on Small Business and Local Government
Under the Unfunded Mandates Act, the Small Business Regulatory
Enforcement Fairness Act (SBREFA) and similar provisions, EPA and other
Federal agencies are to consider and respond to the specific and
differing needs of small business and local government. Regrettably,
all too often the needs of these interests are ignored, with EPA
imposing a ``cookie cutter'' approach where the costs of compliance are
as high for a small facility or operator as they are for facilities
many times larger. EPA's selection of particulate matter
(PM2.5) and 8-hour ozone standards are prime examples of
actions taken without regard to the impacts on small business and local
government.
Moreover, the laws intended to provide special recognition for the
unique needs of small business and local government often have little
impact, because EPA circumvents their responsibility under these
provisions by delegating final action to the States--who do not operate
under the same provisions and procedural requirements.
2. Fostering Participation and Market-based Solutions
The Title IV acid rain program exempts units under 25 MW. The Act
encourages their participation in the market-based SO2
reductions by allowing these units to ``opt in'' to the program--with
the assumption that the units would be shut down and the operator could
use the ``allowances'' to secure an alternative power supply.
Regrettably, despite the diligent efforts of AMP-Ohio, OMEA and others,
EPA has not constructed the ``opt in'' program in a workable manner.
They have failed to foster participation in the market-based program by
small generators and have consequently penalized us and failed to
pursue a cost-effective means of bringing numerous small emitters under
the Act's acid rain program.
3. Exceeding Agency Authority
In adopting and amending the Clean Air Act, Congress did not give
EPA the authority to set emissions limits for ``grandfathered'' plants.
Yet EPA has taken numerous approaches to target these plants and
attempt to force their retirement. It is worth noting that EPA has
frequently overstepped its congressionally-granted authority, earning
the dubious distinction of losing the majority of appeals of its rules
to the D.C. Circuit.
However, even if eventually overturned by the Court, EPA's actions
have a serious chilling effect on our industry and economy. For
instance, as a result of EPA's unilateral reinterpretation of the NSPS
and NSR rules, utility routine maintenance and plant improvements have
virtually come to a halt, thereby threatening the reliability of the
Nation's electric system.
EPA also appears to be attempting to exceed its authority through
back-door imposition of carbon dioxide (CO2) limits--even
though EPA lacks authority to regulate CO2 and Congress has
expressly taken action to preclude back-door implementation of the
Kyoto Treaty. Under a 1996 proposed rule to revise the NSR program, EPA
is attempting to get coal-burning utilities to ``voluntarily'' agree to
a suite of emissions reductions--including CO2--to obtain
relief from what undoubtedly will be a stringent new NSR rule.
4. Usurping State Authority
The Act creates a careful partnership between EPA and the States.
In general, EPA sets the broad standard, and the States have the
flexibility to implement various means of achieving that standard.
However, EPA has increasingly undermined the authority of the States by
seeking to impose plant-specific limits on ``grandfathered'' plants,
overturning State BACT determinations, and indiscriminate use of its
veto power over State Title V permitting decisions.
5. Departing From ``Technological Feasibility'' and ``Cost
Effectiveness''
Since its inception, Congress expected that technological
feasibility and cost effectiveness would be taken into account in
establishing NSPS and the determination of BACT. Historically, EPA and
the States have generally balanced pollution control technology and
cost, and the required BACT removal efficiency standards have improved
impressively. However, in 1998, EPA issued revised nitrogen oxide
(NOX) standards for utility and industrial boilers, basing
the standard on a single, very expensive control system regardless of
boiler or fuel type. In addition, several southeastern States have
recently had their BACT determinations overturned by EPA.
6. Failure to Employ a Multimedia Approach
As the recent experience with methyl butyl tertiary ether (MTBE)
standards demonstrates, EPA's failure to take a ``holistic'' approach
to pollution prevention and regulation leads to deployment of
technologies to reduce one form of pollutant that merely causes or
contributes to another source problem. By taking a multimedia (e.g.,
air, water, waste) approach, the agency will maximize the environmental
benefits of its actions and facility managers will avoid conflicting
requirements and have the flexibility needed to meet permit limitations
in a manner best suited to a given facility.
7. Disregard for the Energy Needs of The Country
I understand that EPA's mission is not to provide for the energy
sufficiency of the country. However, recent regulatory and enforcement
actions by the agency suggest an agenda to prevent future development
of coal-fired generation and reduction or elimination of existing coal-
fired generation. The economy is growing at a rapid clip, and the past
few summers have demonstrated the strains that occur from inadequate
supply. The majority of new facilities that are being built are gas-
fired and built to serve ``peak'' demand. The lack of base-load plants
and the over-dependence on a single fuel source should be of concern to
all of us.
recommendations
Mr. Chairman, members of the subcommittee, I have shared with you
numerous concerns. I want to also share with you my views on how to
help fix these deficiencies. In some cases, statutory revisions are
necessary; in other cases, I believe that the EPA needs simply to be
told it has ``crossed the line''.
I offer the following suggestions:
Revise SBREFA by creating an independent advisory
commission to develop binding regulations for SBREFA implementation and
to prevent EPA efforts to circumvent SBREFA by delegating actions to
the States. In addition, the ``direct/indirect'' standards for review
should be revised so that the EPA cannot unfairly determine that the
impacted community is too small to warrant SBREFA treatment.
Expand the use of market-based mechanisms to achieve
pollution reduction objectives and adopt language to fix the acid rain
``opt in'' program.
Continue rigorous oversight--such as this hearing--to
prevent EPA from over-reaching its statutory authority and take action
(such as the Byrd-Hagel resolution and Knollenberg funding limitation)
when necessary to curb agency efforts to create new regulations and
programs without congressional authorization.
Reaffirm the role of the States in implementing key
elements of the Act.
Explicitly amend the Act to require the use of
scientifically-supported standards and technologies and impose cost-
effectiveness tests on agency actions.
Adopt multimedia pollution management in order to
encourage innovation, flexibility and cost-effectiveness.
Ensure that the country maintains a diverse fuel supply.
conclusion
The Clean Air Act has worked well in many of the areas envisioned
by Congress, including developing a mechanism for setting and attaining
ambient air standards. When standards are based on scientific consensus
and designed to address human health and welfare, the system works.
Most criticisms of the Clean Air Act are actually criticisms of EPA's
efforts to use the Act to achieve objectives and impose restrictions
beyond congressional intent.
__________
Statement of Marcia Willhite, Assistant Chief of Environmental Health,
Lincoln-Lancaster County Health Department
Mr. Chairman and members of the subcommittee, I am Marcia Willhite,
Assistant Chief of Environmental Health at the Lincoln-Lancaster County
Health Department in Lincoln, Nebraska. Thank you for this opportunity
to provide some comments on the Clean Air Act as you begin considering
its reauthorization.
Our local health department's air quality program administers the
Clean Air Act within Lancaster County, Nebraska. Lancaster County is
home to about 240,000 people and includes air pollution sources ranging
from small dry cleaners to Goodyear Tire and Rubber to grain elevators
to a coal-fired power plant. We are currently in attainment of all
National Ambient Air Quality Standards and anticipate remaining so. Our
scope of activities includes all levels of air permitting, compliance
inspections, enforcement, air toxics, collection of emission
inventories, air quality planning and technical assistance. Our guiding
principle is pollution prevention. We have a separately delegated Title
V program supported by fees which we collect. We are an implementing
agency for the Risk Management Planning program (112r). In summary, our
local health department administrates a small air quality program which
is experienced in administering a large range of air quality program
activities.
The main message I bring to you today from Lincoln, Nebraska is
that the Clean Air Act is working. It is holding the line on air
emissions increases in our community. Title V permits, which contain
all applicable air quality requirements in one document for easy
reference, are causing regulated entities to pay closer attention to
those requirements. Air toxics standards are being implemented and
complied with. We have received virtually no complaints from the 120
regulated businesses in our community about the process or substance of
Clean Air Act requirements. Light- and heavy-duty vehicle and low-
sulfur fuel standards are coming on-line in the next few years which
will reduce the air quality impact of increasing vehicle miles traveled
which, in Lancaster County, is outpacing population growth by more than
3 to 1.
The secondary message I offer to you today is that there are some
concepts we, as a local air quality program in a growing community,
encourage Congress to consider as the Clean Air Act is reauthorized.
Prevention-based strategies.--The Clean Air Act is a tool for
public health risk reduction: the greater the air pollution reduction,
the greater the risk reduction. Interestingly, the greatest air
pollution reductions achieved in Lancaster County in the past 5 or 6
years were not mandated by the Clean Air Act. Between 1994 and 2000, a
53 percent reduction in hazardous air pollutants and a 43 percent
reduction in volatile organic compounds occurred because of voluntary
choices made by businesses to use less toxic materials and less-
polluting processes. The coal-fired power plant in Lancaster County
even reduced sulfur dioxide emissions by 2000 tons per year voluntarily
by switching to ultra-low sulfur coal. These choices to prevent
pollution rather than control it need to be encouraged and rewarded.
Somehow, the lesson learned in Lancaster County, that significant
environmental benefits occur through voluntary pollution prevention,
needs to be applied to the Clean Air Act of the 21st century.
Specifically, incentives for pollution prevention need to be
incorporated for those regulated businesses willing to take that option
or to go beyond the minimum air quality requirements.
Another area where prevention-based strategies are needed is in the
area of maintaining clean air while cities grow. Lincoln is currently
an attainment area. However, in the next 20-30 years, our population is
likely to increase substantially. The land use choices and
transportation plans made today may affect our ability to maintain non-
attainment status in the future. The tools and funding to support
assessment, innovation and ``best management practices'' to reduce air
quality impacts of transportation should be available to communities
like Lincoln that are trying to prevent unhealthy air as well as to
areas that are solving air quality problems.
Multi-Pollutant Strategies.--The next version of the Clean Air Act
needs to achieve risk reduction more efficiently and comprehensively by
incorporating multi-pollutant control strategies. Certain source
sectors, mainly combustion sources such as utilities and internal
combustion engines (mobile and stationary), are significant sources of
criteria and hazardous air pollutants and greenhouse gases. Harmonizing
control options to simultaneously reduce all pollutants of concern for
a particular sector is easier to implement for both industry and State/
local regulatory agencies and is more cost-effective.
Examples of opportunities for better harmonization are plentiful.
Coal-fired power plants have gone through separate requirements and
permitting for acid rain and NOX reduction and are likely to
face regulation for air toxics reduction. Similarly, the recent light-
and heavy-duty vehicle and fuel standards are focused on ozone
precursors. Had they been optimized to include air toxics reduction as
well, a separate rulemaking process under 202 (1) would not have been
necessary. Reformulated gasoline (RFG), although intended for ozone
reduction, has been effective in reducing levels of air toxics such as
benzene, which national assessments indicate is a concern in every
county in the United States. Yet, RFG may only be sold in ozone non-
attainment areas. The next version of the Clean Air Act should be
structured to enable multi-pollutant strategies for air pollution
management.
Authorize State and Local Air Toxics Risk Reduction.-- The current
Clean Air Act calls for a substantial reduction in cancer risk from air
toxics in urban areas. To implement this, the U.S. Environmental
Protection Agency (EPA) has drafted a strategy centered on identifying
the pollutants and sources which contribute most significantly to
public health risk based on national, regional or local-level
assessments. In this draft strategy, EPA would address sources and
risks ranking highly on a national-level assessment and States or
localities would address risks and sources of high priority based on
regional or local assessment. This is an efficient, common sense
approach. Although EPA is authorized to reduce risk through national
standards, the mandate and authority under the Clean Air Act for States
or localities to require actions which reduce air toxics emissions
identified as posing unacceptable health risk is unclear. Thus, in the
reauthorized Clean Air Act, a clear mandate and authority for States
and localities to cause risk-based reductions would assist our local
community when national standards do not address our most pressing air
toxics risks.
While other aspects of the Clean Air Act could be addressed, we
have purposely limited our community's comments to these three key
issues that we, as a local air quality program in Lincoln-Lancaster
County, Nebraska believe are of utmost importance. Please keep
prevention-based strategies, multi-pollutant strategies, and
authorizing State and local air toxics risk reduction in mind as you
craft the reauthorization of the Clean Air Act.
Again, thank you for this opportunity to provide comments to this
subcommittee. We hope you will consider these concepts worthy of
further study. I will be happy to answer any questions you may have.
__________
Statement of Zach D. Taylor, Executive Director, Association of Central
Oklahoma Governments (ACOG)
I am Zach Taylor, Executive Director of the Association of Central
Oklahoma Governments in Oklahoma City, which also serves as the
Metropolitan Planning Organization under TEA-21. (Show clear jar with
lid.) I brought you a breath of fresh air from Oklahoma in case you
need it during this dialog.
The Central Oklahoma region has been in compliance with national
ambient air quality standards for ozone since 1978. In addition, we
have been in compliance with the standards for carbon monoxide since
1990. This accomplishment has been due to the continuing proactive
efforts of our civic leaders, local businesses, government officials
and residents. However, we are fearful that changes to the NAAQS for
ozone and particulate matter in September 1997 will thwart the progress
made by grass roots efforts in Central Oklahoma.
The last 3 years have brought exceptionally difficult weather to
Central Oklahoma, in which the best efforts of our community haven't
always been able to combat the power of Mother Nature. Hot, dry
weather, coupled with a persistent high-pressure system permeated the
region in the summers of 1998-2000. Though our region appears to remain
in compliance, it is likely or inevitable that with another hot summer,
we will violate the current National Ambient Air Quality Standards for
ozone. Being labeled a ``non-attainment'' region, even a marginal one
based on the EPA's definitions, would be an unfortunate label for the
region to be tasked with, as it would wipe away years of proactive and
concerted work from the citizenry to address this issue.
In addition, such a label would have major financial impact on our
citizens; we estimate a cost of at least $43 million just for our
motoring public, not to mention ramifications for our businesses.
As Congress addresses reauthorization of the Clean Air Act, we
appreciate this opportunity to express some concerns from a heartland
regional perspective:
(1) Consistent with the position of the Oklahoma Department of
Environmental Quality, leaders in Central Oklahoma also support an 8-
hour measuring standard for ground-level ozone. We believe that this
mode of measuring allows for a more realistic method of gathering air
quality data. However, we feel that the measure currently in place is
too strict and limiting, and would favor a measure that is more
scientifically sound. We urge that the EPA's Science Advisory Board
revisit its studies regarding air quality standards, and that EPA take
smaller steps in implementing the scientists' recommendations. (More
specifically, the Board's recommendation for an ozone standard was a
range of .07-.09 ppm. If more stringent requirements were shown to be
scientifically justifiable, we would favor a more gradual
implementation schedule, beginning with .09 ppm).
(2) Congress should allow States and local governments to use
flexibility in determining the most effective control measures for
their particular regions. Geography, climate, transport issues, in
addition to the cultural values and habits of the people of a given
area, are all factors that affect the success of given actions. Along
those lines, we also encourage EPA to invest in additional research
related to the effectiveness of various measures in different regions
of the country.
(3) We strongly encourage national emphasis to be put on research
and technological solutions rather than heavy-handed enforcement. We
encourage national research for nationwide remedies, including new
technologies for mitigating industrial pollution as well as mobile
source pollution, such as the rapid acceleration of the use of
alternative fuel vehicles (hybrid/dual powered, electric, compressed
natural gas, propane and so forth).
(4) It is clear that current motor vehicle emission standards,
including the new laws regarding light and heavy duty trucks and sport
utility vehicles, will be necessary to continue to make progress on the
clean air front. The positive effect of these new regulations are
likely to have a dramatic effect in Oklahoma since a relatively large
portion of our population is prone to driving trucks and SUVs. One
thought would be to direct EPA to refrain from declaring new non-
attainment areas until such time as the new mobile source emissions
regulations have had time to make an impact.
(5) Then, there is the conformity ``hammer''. Should a region be
declared non-
attainment, the State and local governments in that area should be
given ample time (at least 3 years) to adjust their transportation
plans before Federal transportation dollars are withheld in the name of
conformity. In the current Act, federally-funded transportation
projects must be found to conform to State air quality plans before
they are adopted, accepted, approved or funded. The dilemma, however,
is that it takes several months to develop an emissions budget
(requires an inventory of all emission sources and the use of a
photochemical dispersion model to identify reductions through
transportation control measures) which must be done before a draft
State Implementation Plan is developed. Once a draft plan is on the
table, it takes at least one legislative session to get the plan and
pertinent laws approved by the State legislature, and still additional
time to measure Transportation Improvement Programs (TIPs) against the
State plan once it's approved. In Oklahoma, this process would take no
fewer than 2 years and probably three. It is ludicrous for the Federal
Government to hold up progress in a regional community, as long as good
faith efforts in response to air quality have been made and are being
made to work toward adoption and implementation of a plan.
(6) Because anomalous weather patterns have aggravated the region
and the State for the past 3 years, we are particularly sensitive to
how weather or other situations (such as wild fires in Mexico a couple
of summers ago) can affect adversely local efforts to maintain clean
air. Therefore, we ask that EPA expand its current guidelines and
parameters regarding exceptional events such as those attributed to
wildfires, industrial fires and accidents and other anthropogenic
phenomenon that affect air quality conditions. Proposed guidance
offered a few years ago by the EPA addressed this situation, but did
not make it through the rulemaking process.
Thank you for listening. Thank you for your efforts to maintain the
country's clean air status, but please keep in mind the economic and
financial ramifications of your decisions. As long as there is true
scientific basis for the decisions made in this regard, we will all be
the winners. The local elected officials of ACOG recognize that we
can't each live in a bubble, and we can't pass out jars of clean air to
each of our citizens. Given that reality, we're anxious for your wisdom
in finding solutions that will help us all breathe a little easier.
Thank you.
__________
National Association of Local Government Environmental
Professionals,
Washington, DC, October 11, 2000.
Hon. Max Baucus,
Committee on Environment and Public Works,
U.S. Senate,
Washignton, DC.
Dear Senator Baucus: In response to your invitation to submit
written testimony regarding local government officials' perspectives on
the Clean Air Act, I am writing on behalf of the National Association
of Local Government Environmental Professionals (NALGEP) to submit
testimony.
In July 2000, NALGEP joined with mayors and county officials from
across America to issue a new report titled, ``Profiles of Local Clean
Air Innovation: Empowering Communities to Meet the Air Quality
Challenges of the 21st Century.'' This NALGEP report provides the view
of local environmental, economic development, transportation, and
planning officials on how the Clean Air Act can help promote improved
air quality through locally-driven innovation. The report finds that
the Clean Air Act has already promoted substantial progress in cleaning
the air, but that Federal environmental policy must provide more
incentives, resources and flexibility for localities to improve air
quality. The report emphasizes how air quality can be improved through
new Federal/local/State partnerships, and through local innovation in
smart growth, clean energy, transportation choice and pollution
prevention.
To develop the report, NALGEP convened a ``Clean Air Task Force''
of 32 of the nation's leading local environmental and air quality
managers. In coordination with the Clean Air Task Force, NALGEP
interviewed more than 85 local officials to determine their views on
how air quality can be improved for the long term. From these
interviews, NALGEP developed 20 findings, 10 recommendations for
action, and 20 profiles that illustrate local clean air innovation.
I am pleased to submit a copy of the report's executive summary,
which provides the views of local government environmental officials
across America on the important topic of cleaning the air in
partnership with the Federal Government. Thank you for your invitation
and for your consideration.
Sincerely,
Kenneth A. Brown,
NALGEP Executive Director.
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CLEAN AIR ACT: STATE REAUTHORIZATION ISSUES
----------
MONDAY, NOVEMBER 13, 2000
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Clean Air, Wetlands, Private Property and
Nuclear Safety,
Oklahoma City, OK
The subcommittee met, pursuant to notice, at 2 p.m., at
Oklahoma City Community College, 7777 South May Avenue,
Oklahoma City, OK, Hon. James M. Inhofe (chairman of the
subcommittee) presiding.
Present: Senator Inhofe.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Could I have your attention?
OK. Here are our four guests. First of all, I'll start our
meeting today. I've been told we're competing today with an
energy symposium, transportation symposium and a couple of
other things, so that we're not probably going to have the same
size of crowd as we had the last time we had an EPW hearing in
Tulsa.
But we will officially call it to order. Today's hearing
will look at the issue of weather-related events on air quality
and nonattainment status. We chose Oklahoma City because of the
nonattainment days in 1998 which were the direct result of the
fires in Mexico. I'm sure many of you remember those fires and
the effect it had on the air here in Oklahoma.
In addition to fires, many other weather-related or natural
events such as exceptional humidity, volcanic activities, dust
storms, which are prevalent here in Oklahoma which can cause
areas to violate the air quality standards.
In addition to creating the air quality problems, which of
course, is a problem, these events trigger the air monitors
causing local areas to violate the air standards, resulting in
nonattainment days. It's important to realize that these
violations are caused by naturally occurring events, not man-
made sources. Therefore, States and local governments should
not be penalized for these violations. I believe we and the EPA
agree on these points.
Some of you know that I spent three terms as mayor of
Tulsa. During that time we went through some nonattainment
times, and I think it's very difficult for people in Washington
and hearings in Washington to really, really understand what
you have to go through and the dangers that you face and the
disasters locally that can come from getting into nonattainment
areas for something which really isn't your fault.
The EPA has a process for States to submit data to the EPA
in order to request a waiver for particular dates, due to
natural events such as the Mexican fires. The problem arises
concerning the process EPA uses to make determinations and to
grant waivers. For Mexican fires they granted some dates for
most States, but their decisions contradicted the
recommendations from the States. I hope today we can get a
better understanding of how the process works.
We would have three questions. What information do the
States use in seeking waivers? Second, what is the process the
EPA uses to examine that data? Third, the criteria used or the
process used by the EPA in making the decision.
Over the last 2 years, I've received conflicting
information from the EPA officials on these questions, and I
hope we can get a more definitive answer today. I hope with Mr.
Seitz here, we will.
Mexican fires involve the ozone standard, and these
naturally occurring events such as fires will also play a role
in the Particulate Matter standard, if the Supreme Court rules
in EPA's favor; and it will play a role in the Regional Haze
Rule, which I know will have a big impact on your State of
Colorado, Representative Mitchell.
With the increasing number of fires, particularly
controlled burns on Federal land, the impact on designations
and nonattainment days will continue to grow. Because of this,
I believe it makes more sense to provide the governors with the
clear ability to have such dates disregarded when it is shown
that noncompliance is caused by these natural events.
Now, I'm going to be introducing a bill tomorrow. With all
this uncertainty going on right now, I'm not sure we'll have
votes, but we're supposed to right now. But if we do have to go
back, I will be introducing a bill that will require the EPA
administrator to disregard monitoring data if the data had been
influenced by exceptional events such as fires, if it is
requested to do so by the Governor of the State.
I don't intend to even do anything with this bill this
year, but I want to get it in to start people talking about it.
Then when we get Clean Air re-authorization next year, this
will be a part of that. Now, I don't expect anyone to comment
on that because you weren't aware of that in advance, but if
anyone wants to address it, they certainly can.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe, U.S. Senator from the State
of Oklahoma
Today's hearing will look at the issue of weather-related events on
air quality and nonattainment status. We selected Oklahoma City because
of the nonattainment days in 1998 which were a direct result of the
fires in Mexico. I'm sure many of you remember those fires and the
effect it had on the air here in Oklahoma. In addition to fires, many
other weather-related or natural events such as exceptional humidity,
volcanic activities, dust storms, etc., can cause areas to violate the
air quality standards.
In addition to creating air quality problems, these events trigger
the air monitors causing local areas to violate the air standards,
resulting in nonattainment days. It is important to realize that these
violations are caused by naturally occurring events, not man-made
sources. Therefore, States and local governments should not be
penalized for these violations. I believe on this point the EPA agrees
with me.
The EPA has a process for States to submit data to the EPA in order
to request a waiver for particular dates, due to natural events such as
the Mexican fires. The problem arises concerning the process EPA uses
to make determinations and to grant waivers. For the Mexican fires they
granted some dates for most States, but their decisions contradicted
the recommendations from the States. I hope today we can get a better
understanding of how the process works.
What information do the States use in seeking waivers?
What is the process the EPA uses to examine the data?
What is the process EPA uses for making the decision?
Over the last 2 years I have received conflicting information from
EPA officials on these questions. I hope we can get the definitive
answer today.
The dates in question from the Mexican fires involve the ozone
standard. These naturally occurring events such as fires will also play
a role in the Particulate Matter standard, if the Supreme Court rules
in EPA's favor; and it will play a role in the Regional Haze rule,
which I know will have a big impact on the State of Colorado.
With the increasing number of fires, particularly controlled burns
on Federal land, the impact on designations and nonattainment days will
continue to grow. Because of this, I believe it makes more sense to
provide the Governors with the clear ability to have such dates
disregarded when it is shown that noncompliance is caused by these
natural events.''
Therefore, I will be introducing a bill tomorrow when I return to
Washington, D.C., which will require the EPA administrator to disregard
monitoring data if the data has been influenced by exceptional events
such as fires, if it is requested by the Governor of the State.
I do not intend to move the bill this year, but instead I intend
for it to be wrapped into Clean Air Reauthorization next year. I will
not put any of the witnesses on the spot by asking them to comment on
the bill, but if you like you are free to comment on the ideas behind
the bill.
Senator Inhofe. Our panel is now seated at this table,
includes Mr. John Seitz who is director of the Office of Air
Quality Planning and Standards, and Mr. Seitz has been good
enough to be--let's see--it was in Ohio, I believe Mr. Seitz.
Mr. Seitz. Correct.
Senator Inhofe. We appreciate your moving around for us.
Colorado State Representative Shawn Mitchell. Mr. Mark
Coleman, executive director of Oklahoma Department of
Environmental Quality, and Mr. Jim Thomas, director of the
Technical Analysis Division of Texas Natural Resources
Conservation Division.
Normally we have a little stop/caution bell and lights
here, but we're not going to use them this time since we do
have right up to 5 minutes until 4 p.m., to complete this, so
there is no reason to keep our four witnesses down to within
the normal 5-minute hearing.
So with that, we'll go ahead and we'll start with you, Mr.
Seitz, for your opening statement. Then we'll all respond to a
questions and answers. All right?
Mr. Seitz.
STATEMENT OF JOHN SEITZ, DIRECTOR, OFFICE OF AIR QUALITY
PLANNING AND STANDARDS, RESEARCH TRIANGLE PARK, NC
Mr. Seitz. Thank you, Mr. Chairman. Thank you for the
opportunity to testify for you today. It is my pleasure to be
here in Oklahoma City.
Today I'm going to discuss how EPA's policies try to
protect the public health by addressing the man-made sources of
air pollution in the context----
Senator Inhofe. Could you get a little closer to the
microphone? I think that will be helpful.
Mr. Seitz. Today I'm going to discuss how EPA's policies
try to protect the public health by addressing the man-made
sources of air pollution in the context of unusual but
foreseeable meteorological episodes as well as exceptional
events.
As in the case with the others testifying here today, our
primary mission at EPA is to protect public health. Air
pollution is associated with a variety of serious health and
environmental problems. For example, breathing particulate
matter can aggravate pre-existing respiratory ailments, reduce
lung capacity and even result in premature death. Carbon
monoxide can aggravate angina. Photochemical smog can impair
lung function, cause chest pains and cough, worsen respiratory
disease, and a few will actually sunburn the lungs.
The Clean Air Act, a law created and amended with strong
bipartisan support, provides a very successful blueprint for
our efforts to clean up the Nation's air.
Before I describe how EPA's air programs account for
exceptional natural events such as volcanoes, wind storms, and
fires, I would like to use one historical event to highlight
the role of meteorological and geographic factors, how they
play into our exposures.
In 1948, a fog descended over Donora, PA. An unusual set of
weather circumstances--a stagnant temperature inversion--
trapped the smog from coal-burning fireplaces and industrial
plants in the valley. By the time the episode was over with, 20
people had been killed and 5,000 illnesses had been reported.
That unusual and horrific combination of human-made pollution
and weather, ushered in a new era for us in understanding air
pollution.
We've made tremendous progress since then. Since 1970,
we've reduced emissions of sulfur dioxide by 37 percent, lead,
98 percent, carbon monoxide, 31 percent. In the last 10 years
ambient levels of particulate matter have been reduced by 18
percent. Since 1990, EPA has put in place rules that have
removed 1.5 million tons of toxics from the air.
The role of weather and other natural factors in air
pollution remains a fact of life. It has long been known that
weather plays a role in many kinds of air pollution problems.
The tragedy in Donora involved an unusual meteorological
episode, but what made it deadly was the human-caused pollution
in the air. Our knowledge about these kinds of interactions has
evolved over the years and so have our policies.
Widespread regional stagnation conditions have occurred
repeatedly in the United States, most recently in 1983, 1988,
1991, 1993, 1995, and 1998. Air quality did exceed the national
standards during this period of time.
For 30 years the Nation's program for controlling smog has
been based on recognitions that stagnation in hot weather
occurs frequently. Therefore we require in States planning for
attainment demonstrations to consider these types of events in
their planning for control strategies.
Breathing is not a seasonal activity, and the Nation's
programs to reduce air pollution work to protect citizens year-
round. Emissions of smog-formed chemicals, toxics and
carcinogens must be controlled so that air pollution levels do
not endanger public health even on very hot stagnant days.
States reduce emissions so they can meet the air quality
standards even during stagnant periods of the summer. Over the
years, this approach has been very successful. Even California,
where the air has been known to be very dirty and the weather's
very hot, for the last 10 years, the exceedance of the
standards there have gone from 133 to 39.
At the same time, EPA has developed a series of policies
and programs to address the fact that weather and other
uncontrollable natural and exceptional events can influence air
quality.
EPA has worked with the States to address these exceptional
events over the years, and a few examples include Mount St.
Helens, the clean-up after Hurricane Andrew, and the 1998
Mexican fire situation. I'd like to take a moment now to focus
on those exceedances dealing with the Mexican fire situation.
In 1998, we worked with the States, including Oklahoma, to
address the catastrophic fires of Mexico and Central America.
Together we set up a work group comprised of national air
quality experts and developed technical guidance for
identifying when and where the fires affected these levels.
The guidance included sophisticated technical tools such as
satellite imaging, ground-level visibility measurements,
airport measurements, and on-the-ground information provided by
the States.
Our regional office received requests from nine States to
exclude certain days of ozone data from compliance calculations
due to these fires. We conducted an extensive technical review
of these requests in consultation with NOAA, NASA and academia,
as well as the technical staff of EPA.
As a result of that review, 92 of the 153 days requested
were excluded, including some in Oklahoma. I'd be happy to talk
about this in more detail including the event that's been
raised earlier about May 11, that's shown on the chart in front
of you.
In summary, it's been long recognized that weather plays a
role in forming certain pollutants, like photochemical smog.
Our goal has always been the same--focus Federal, State, and
local efforts on those aspects of the problem that we can
control, the emissions from industrial, automotive, and other
sources in the area.
At the same time, EPA has worked with States, and others,
on the balance and protective approach to address truly
exceptional events.
The bottom line is that even on hot summer days, people
breathe. Children, asthmatics, and elderly, and even healthy
adults are vulnerable to air pollution. Our policies are
designed to protect all Americans.
Mr. Chairman, this concludes my oral remarks, and I'll be
happy to answer any of your questions.
Senator Inhofe. Thank you, Mr. Seitz.
Representative Mitchell.
STATEMENT OF HON. SHAWN MITCHELL, STATE REPRESENTATIVE,
BROOMFIELD, CO
Mr. Mitchell. Good afternoon, Senator Inhofe, staff of the
subcommittee. I understand that one of the things you will be
considering today, is information from States on innovative
strategies that we have adopted to protect our air quality from
impairment due to federally-prescribed burns, and to preserve
air quality from other activities that take place on public
lands.
Colorado has been a leader with respect to this issue, and
I appreciate you having this hearing and making the
subcommittee available.
Let me begin by explaining that I'm an elected State
representative from Broomfield, CO, and although I would be
proud to be from Oklahoma, as I was introduced, I can't claim
that honor. I'm from Broomfield, CO, which is between Denver
and Boulder. I serve on the Health, Environment, Welfare and
Institutions Committee, known by the acronym HEWI, and also
serve on the Judiciary Committee, and the Legislative
Leadership Committee, which is known as Legislative Council
I've sponsored State legislation on clean air, and on
dealing with State and Federal relations in the environmental
protection arena. I hope today to discuss with you mandates
that the Federal Government has placed on the State of Colorado
that do not adequately allow the States to account for and
regulate the major source of air pollution, wildfire, and
prescribed fire, occurring on Federal lands. This is an area
that I suggest Federal and State legislators can be working in
tandem to rectify.
Colorado has taken substantial action to protect air
quality and visibility, as well as public welfare in our State.
The visibility issue is of particular importance to Colorado
because of our unique status as a receptor State of air
pollution generated in other States, combined with our large
numbers of natural parks and wilderness areas. I will include
in my testimony ways in which Federal legislation could make
our job easier at the State level and also promote and protect
clean air.
Colorado is blessed with 13, and that's soon to be 14,
pristine national parks and wilderness areas. We're proud of
these beautiful areas and proud of the work we do to keep the
air clean, and the scenic vistas from Rocky Mountain National
Park to Mesa Verde to Black Canyon of the Gunnison, and the
soon-to-be Great Sand Dunes National Park. We welcome visitors
to our State to enjoy these natural wonders.
We are also proud of our achievements and the improvements
that we made to air quality in our city. The Denver
Metropolitan Area, we are happy to report, has attained the
National Ambient Air Quality Standards for Carbon Monoxide, 1-
hour summertime ozone, and PM-10. We have not had a
violation of those standards for some time, and have
established programs to continue to improve or maintain our air
quality.
I would ask that this recent report from the Colorado Air
Quality Control Commission on its activities and their public
results be included in this record.
Senator Inhofe. OK.
Mr. Mitchell. Unfortunately, we cannot claim such good news
with regards to the EPA's new 8-hour summertime ozone standard.
Unusually high measurements recorded during the summer of 1998
have potentially put us back into nonattainment. Those high
readings, some knowledgeable observers believe, were affected
by wild-land fires during that hot summer, and again similar
effects took place during the summer of 2000.
I would like to point out four areas where we have taken
action to improve and protect our current air quality and
visibility.
First, a smoke management memorandum of understanding
between the State of Colorado and local, State, and Federal
land management agencies, which lays out the responsibility of
all the parties to a prescribed burn. The Department of Public
Health and Environment, is the State's lead environmental
protection agency, and its role is to review and to authorize
prescribed burns by public land holders.
Second, legislation that I sponsored, and that was passed
by the Colorado General Assembly, to require the Colorado
Public Health and Environment and the Colorado Air Quality
Control Commission to establish an inventory of emissions from
Federal and State lands. This inventory will help Colorado's
Air Quality Control Commission develop programs to further
protect visibility in our beautiful wilderness areas.
Third, actions taken by Governor Bill Owens of Colorado,
after the disastrous National Park Service prescribed fires in
New Mexico, to review existing permits and permit applications,
to ensure that adequate plans are in place to protect the
environment and public safety, before starting another
prescribed fire in Colorado.
Fourth, legislation passed by the Colorado General
Assembly, which we believe is consistent with section 118 of
the Clean Air Act, that requires land managers to prepare plans
for burns, to receive permits from the State Department of
Health, and to pay fees for the emissions of criteria air
pollutants, the same as any other source in Colorado.
The State of Colorado and other Western States are being
squeezed by the dual pressures of tighter national air quality
standards, new visibility standards, and also facing increased
emissions from natural and prescribed fires on Federal lands.
I would like to ask that this chart that I pulled off the
Department of Interior's web page be included in the record.
Senator Inhofe. OK.
[The referenced chart was not supplied to the committee:]
Mr. Mitchell. The chart shows that on all Federal lands in
1996, prescribed burns were conducted on 915,000 acres. By
1997, that had increased to 1.6 million acres. In 1998, 1.9
million acres, and in 1999, 2.24 million acres, an increase of
almost 2\1/2\ times in just 3 years.
These are huge increases and we believe they are
contributing to adverse visibility impacts and regional haze in
Class I, or wilderness, or near wilderness areas across the
country, and increased pollution in the areas near where the
burns occur.
Now to put this issue and our State efforts in context, I
would like to provide a little more background on the four
particular efforts that I described.
As I mentioned, we have a Smoke Management Memorandum of
Understanding. This agreement was forged between State, local,
and Federal Government in 1994, and updated in 1999. It
provides a framework for governments to address the issue of
prescribed burns. It is a first step toward constructive State,
Federal, and local relations. It requires the Federal
Government to minimize visibility impacts from its activities
and to demonstrate that no State or Federal air quality
standards will be exceeded as a result of the proposed burn,
and to maintain assistance for establishing an inventory of
burn emissions
This was a good first step, but many of us in the
legislature believed that more could be done. So in 1999, we
passed two additional pieces of legislation to protect and
enhance air quality and visibility in Colorado.
The first law made the provisions of our State Clean Air
Act regarding permitting applicable to Federal land managers.
Activities on Federal lands are the last clearly identifiable
major source of air pollutants that we had yet to require
programs for air quality management.
Colorado's Senate bill 145, legislatively required the
establishment of a management program for prescribed burning.
It required Federal agencies to submit a document that
describes their future emissions of air pollutants. It required
that the agencies use ``all available practical methods that
are technologically feasible and economically reasonable in
order to minimize the impact or reduce the potential for such
impact on both the attainment and maintenance of '' State and
Federal air quality and visibility standards.
To put this law in context, it simply requires Federal
agencies to provide information to States' clean air regulators
that will allow them to impose the same standards and
obligations on government activities that industry has already
been meeting for 20 years.
Another issue we faced in this regard is that Western
States have not previously required Federal agencies to
inventory the pollution generated by prescribed burns. This
leaves States like Colorado with inadequate information about
pollutants being transported into the State from wildfires and
prescribed burns in adjacent States as well as in Class I areas
or other Federal or public lands in the State of Colorado.
This is important because without emissions inventory from
wild land and prescribed fires, States cannot adequately
prepare the EPA mandated State Implementation Plans for
Regional Haze, due, beginning as early as 2003. One remedy I
would suggest is that Congress direct the Federal land
management agency to inventory their emissions from both
prescribed and wildfire
I would also suggest that Congress require Federal agencies
to provide those inventories to all downwind States so that we
can adequately prepare our State implementation plans for
Regional Haze and take account of contribution of Federal
lands.
The second piece of legislation, to manage this issue
within our State, I sponsored a bill that will require State
and Federal land managers to prepare inventories of all
emissions from their lands. This information will give us an
idea of the amount of haze and ozone precursors that prescribed
fires are contributing to air pollution in Colorado. The
legislation requires those agencies to prepare emissions
inventories, also for stationary sources and mobile sources, as
well as the prescribed fires that they control.
However, there is some uncertainty regarding the
willingness of the Federal executive branch to comply with this
law. It would help if Congress were to clarify with land
management agencies the compliance with permitting programs and
State clean air laws, as required under the Federal Clean Air
Act.
The final step that Colorado has taken with respect to
prescribed fires after the tragedy in New Mexico, was an order
by Governor Bill Owens to ensure the protection of the people
in Colorado, as well as our courts. The Governor placed a
moratorium on the issuance of new permits for prescribed fires.
He also suspended existing permits until they could be reviewed
by State officials to ensure that adequate protections were in
place. The Air Quality and Forestry officials worked together
to establish criteria under which the permits were reviewed to
ensure the protection of public safety, as well as the
environment. The Air Quality Control Commission is reviewing
the current smoke management MOU and will consider adding new
criteria to be reviewed before a burn can be started, such as
checking for the most up-to-date meteorological conditions and
forecast, before starting a fire.
I would also like to recommend that money not be
appropriated to regional organizations such as the Western
Regional Air Partnership or WRAP, but instead be sent directly
to the State for their use.
As you know, Senator Inhofe, the Regional Haze Rule has
been very controversial and will be very difficult to
implement. One of the difficulties for a State like Colorado,
is we don't believe we have sufficient data to make an informed
decision. We believe that money being sent to the WRAP, could
better be used by States such as Colorado for monitors along
borders that could help identify pollutants being transported
into State land.
Also, additional monitors could help us better understand
what air pollution's coming from Federal lands within our
State.
Finally, I would like to recommend that Congress examine
the impacts of Federal use of prescribed fire on air quality
standards, as well as examine what impediments there are to the
kind of efforts I have described by States to hold the Federal
Government liable for the pollution it causes. If our
experience is similar to that of other States, then it seems
the law should be clarified so that Federal agencies have a
directive from Congress that they must comply with the Clean
Air Act and with the State efforts to protect clean air.
Thank you again for having this hearing, and thank you for
allowing me to testify. I would be pleased to answer any
questions you may have for me.
Senator Inhofe. Thank you, Representative Mitchell.
Mr. Coleman.
STATEMENT OF MARK COLEMAN, DIRECTOR, OKLAHOMA DEPARTMENT OF
ENVIRONMENTAL QUALITY, OKLAHOMA CITY, OK
Mr. Coleman. Thank you, Senator. It is a pleasure to appear
before you today, and speak to you on the topic of exceptional
events, and how they are related to air pollution control
strategies.
Such events, by definition, are those that are out of the
ordinary. Their very nature makes them unrealistic to control
through the environmental planning process. We are no stranger
to significant changes in weather in our part of the State.
Very hot days and very cold days are something we can
ordinarily plan for.
However, we are also no stranger to truly exceptional
events, even in that exceptional pattern. Extreme
meteorological conditions associated with the ``Dust Bowl''
days of the late 20's and early 30's, were responsible for the
loss of millions of tons of topsoil and resultant air
pollution.
To the extent that it was dark, even in the middle of the
day, we can only imagine what the particulate loadings to the
atmosphere were back then. Exceptional events continue to
affect us today.
During the spring of 1998, there were significant forest
fires in the Yucutan Peninsula. Those fires produced an air
pollution episode that was truly an extraordinary event, and
certainly beyond the control of the environmental agency.
Besides causing high particulate levels, these fires were also
responsible for high levels of ozone. The haze and particulates
were so severe, that during the episode, there were areas in
Texas and Louisiana that issued health advisories.
We have a video that we would like to show. We will show
that, while I'm talking, and you will be able to see it.
On May 11, abnormally-elevated ozone levels were observed
in the Oklahoma City area. These values were higher than
expected because they occurred on a day with relatively high
wind speeds, and mild temperatures, conditions not normally
conducive to ozone formation.
Four sites, Senator. I suspect, I have you at a bad
position in order to be able to see it, but, I believe we've
shown that to you before.
These are conditions which are not normally conducive to
ozone formation, which are the relatively high wind speeds and
mild temperatures. Four sites in the Oklahoma City area
experienced 8-hour maximum ozone levels that became the fourth
highest ozone values for the entire year. It is these fourth
highest values of course that are the critical ones that are
used in calculations to determine attainment status. This
occurred about the time of the height of the fire's impact on
Texas and the Gulf Coast.
Later, after reviewing ambient data investigating
meteorological conditions, observing pollution levels
throughout our entire part of the country, and making use of
extensive satellite photography, it became apparent that the
Mexican fires were the cause of the elevated ozone values on
May 11. We, of course, wanted to exclude those data from this
particular extraordinary event in determining our attainment
status.
Using the available satellite photography, we felt we had
very convincing evidence. We feel like we still do, that the
plume from the Mexican fires impacted central Oklahoma on that
day and met EPA's exclusion criteria.
Nevertheless, to date we've been unable to convince EPA of
our position. If you look, you can see the plume rising up. You
can actually see it far better from the back, than your angle.
You can see the plume rising up, and going across central
Oklahoma. It comes from actually below the Dallas area and then
goes on up.
Now, this year, one of our monitoring stations in Tulsa,
experienced an ozone concentration that caused a violation of
the 1-hour ozone standard, and this was the only violation of
the 1-hour ozone standard experienced in Oklahoma, Senator,
we're proud to say, since the early 90s.
Nevertheless, the necessary four exceedances occurred at
that site over the last 3 years. Three exceedances,
surprisingly, occurred during the Labor Day Weekend of 1998,
and again during the Labor Day Weekend of 2000.
On the Labor Day Weekend of 1998, the high temperature in
Tulsa on September 4, was 107 deg.. That, as you would
recognize, is an all-time record for that day. In fact, that
day was the hottest day of the hottest summer, since
recordkeeping began in 1895. The only comparable period was the
``Dust Bowl Era,'' which peaked in 1931.
The reason for this extraordinary heat wave was primarily
an abnormally long-lasting high pressure ridge, accompanied by
light surface winds. According to NOAA, northeastern Oklahoma
can expect less than 10 total days annually for air stagnation.
In 1998, we set an all-time record for air stagnation with 33
days. The two Tulsa exceedances on Labor Day Weekend of this
area occurred on September 1 and 2. The high temperature in
Tulsa on September 1, was 108 deg., which was another all-time
record for that particular day.
The high temperature of September 2, which was 107 deg.,
was the highest on that date since 1939. These hot days
followed the driest month since 1896. Since these abnormal
conditions are completely beyond our scope and control, we will
be requesting the EPA to exclude those data when determining
the areas of attainment status for the 1-hour standard.
Declaring an area of nonattainment using data collected
during an exceptional event doesn't make good sense, much less
good science.
We feel that EPA guidance on exceptional events,
particularly related to ozone, needs revision to allow abnormal
stagnation events and inversions to be considered the
exceptional events they in truth are. We feel the draft
guidance published by EPA in 1994, though never finalized, goes
a long way to meeting that objective and is much more
appropriate than the Agency's official 1986 version.
We further contend that it's the affected State, not EPA,
that is in the best position to determine whether an event
should be considered exceptional or not. It's also our
suggestion that the Clean Air Act be amended to specifically
exclude air quality monitoring data shown to be influenced by
truly exceptional events when determining compliance for the
national ambient air quality standards, and we certainly
support the legislation you mentioned at the beginning. Thank
you, Mr. Chairman.
Senator Inhofe. Thank you, Mr. Coleman.
Mr. Thomas.
STATEMENT OF JIM THOMAS, DIRECTOR, TECHNICAL ANALYSIS DIVISION,
TEXAS NATURAL RESOURCES CONSERVATION COMMISSION, AUSTIN, TX
Mr. Thomas. Mr. Chairman, thank you for allowing me to be
here and make a statement. My name is Jim Thomas. I'm the
director of Technical Analysis investigation at the Texas
Natural Resource Conservation Commission.
Our agency implements a broad range of regulatory and non-
regulatory activities that protect the health of Texans in
their environment. The agency is led by a three-member
commission appointed by the Governor. About 3,000 staff members
work in Austin and 16 regional offices around the State.
The statement I would like to make today will deal with
recurring natural events, and particularly the 1998 Mexican
smoke event. Recurring natural events in the United States and
foreign countries often influence air quality in Texas.
Southwestern dust storms, Saharan dust storms, agricultural
fires, and forest fires are just a few of the influences that
we face.
Today I would like to discuss one case in particular, the
agricultural fires that occurred in 1998, in Mexico and Central
America, the effect of the smoke and air quality on Texas, and
the need for a consistent policy and guidance at the national
level on exceptional events like this one. During the period
from April 1, 1998 through June 20, 1998, large amounts of
smoke were transported into Texas from fires in Mexico and
Central America.
Even though agricultural burning is conducted every year in
Central America, the smoke's intensity was unprecedented in
recent history. The fires were unusually intense and widespread
because of severe drought conditions in Mexico and Central
America.
The smoke also produced high levels of ozone and carbon
monoxide. These pollutants accompanied the smoke into Texas.
The first illustration here gives the extent of the plume
as it existed on May 8, and I think we have pointed out on
that, and is somewhat legible, that the smoke plume wraps all
the way around up into Texas to the Dallas-Fort Worth area, and
then follows the coastline across Florida and out into the
Atlantic.
The extent of that plume is amazing when you look at it,
and that is not unusual. By May 1998, smoke intensity climbed
up to levels that threatened public health. Concerned by this
threat, the Texas Natural Resource Conservation Commission
stepped up its air quality monitoring activities and worked
with the news media and other governmental agencies to make the
public aware of the dangers posed by these smoke levels. When
our agency became aware of unusual air quality monitoring
readings, we shifted additional ground monitors into the Rio
Grande Valley, and made numerous flights with an airborne
sampling platform operated by Baylor University.
In addition, our agency posted information and warnings on
our website, established a toll-free hotline, and issued public
health alerts through the news media.
After the conclusion of this event, we undertook an
analysis of the association of high ozone and carbon monoxide
levels with smoke transported from Central America. Evidence of
this relationship came from aircraft data and from a comparison
of the peak smoke day with a non-smoke day.
Jim, if you will take that first one down. This is a
vertical profile as flown by the Baylor aircraft, and what you
see in brown is a nephelometer reading, or a measurement of
light scatter, which indicates particulate matter, and the red
line is the associated ozone readings.
If you look at the bottom, down below the mixing layer or
the boundary layer, you can see the nephelometer readings were
quite high, indicative of tremendous particulates. Accompanying
that are high levels of ozone at very low levels.
Then as you move up vertically, you can see a spike in the
nephelometer reading accompanied by an ozone spike associated
with that plume that jumps from something on the order of 60
PPB up to 120 PPB.
Normally the background level at this time of the year
would probably be in the 40 PPB range, and all through that
spiral, vertical spiral, you see that the ozone levels are
elevated.
Evidence of this relationship came from aircraft data, from
the comparison of the peak smoke day with a non-smoke day.
Numerous aircraft flights during the smoke period found layers
of smoke aloft that contained greatly increased ozone levels.
Ozone levels aloft as high as 100 to 140 parts per billion were
found in association with the smoke layers.
The comparison of the peak smoke day at Brownsville on May
8, 1998, with a non-smoke day, October 3, 1998, showed that
ozone, carbon monoxide, and particulate levels were much higher
on the smoke day, even though the wind speed, wind direction,
and temperature of the 2 days were almost identical.
Ozone levels on the peak smoke day reached peak 1-hour
values near 100 parts per billion, whereas on the non-smoke day
the ozone peaked at only 20 parts per billion. In Brownsville,
we had a reading that reached 90 parts per billion with the
wind blowing 15 miles an hour, which is an unusual situation,
one that we had not seen before.
Satellite imagery and air trajectories were used to show
the origin of smoke and its transport into Texas. Numerous
large fires in Mexico and Central America produced large clouds
of smoke that were visible in satellite imagery from March
through June 1998.
The heaviest smoke production occurred in early to mid-May,
whenever winds were from the south to southeast in the
southwestern portion of the Gulf of Mexico, and the smoke was
transported across the Gulf and into Texas.
Airport visibility measurements from the National Weather
Service automated stations were used to supplement particulate
measurements for determining smoke intensities at various
locations in Texas. A strong correlation between visibility and
particulate levels was shown in measurements from both
Brownsville and Austin. The combination of visibility and
particulate measurements was then used to estimate the smoke
impact on high ozone days during the smoke period. This
investigation showed that 14 high ozone days from Texas also
had moderate to high smoke levels and were therefore likely to
have been influenced significantly by the ozone associated with
the smoke. As early as May 1998, our agency began consultation
with the EPA, Region 6. We provided significant amounts of data
to EPA's technical working group for the Central American
forest fires through the Region 6 office.
We also presented the EPA with the results of our own
analysis of the fire's air quality impacts on Texas as part of
our request to have ozone exceedance days during the period of
April 1, 1998 through June 20, 1998, declared as exceptional
events.
As of this hearing date, the EPA has declined to grant an
exceptional event status for all of the days that Texas has
identified as being influenced by Central American smoke.
Of some 81 days that we requested exceptional event status
for, EPA, rated by region, they divided the State into three
regions, Region 1 being the Gulf Coast area, Region 2 being
northeast Texas and Region 3 being northwest Texas.
In Region 1 we were granted 40 days of the 81 requested. In
Region 2 we were granted 17 days of the 81 requested, and in
Region 3 we were granted 11 days out of the 81 requested. The
Texas National Resource Conservation Commission believes that
there exists a need for the EPA at a national level to increase
its awareness of these exceptional natural events and their
impact on ambient measurements, pollutant and pollutant
precursors.
In addition, there's a need for a coherent flexible policy
that provides guidance not only for one-time exceptional
events, but also recurring or long-term exceptional events that
are beyond the control of air quality agencies.
We also think that the EPA should track these exceptional
events and quantify those, archive the data in a way that is
available to the States for their use in air quality planning.
I thank you for the opportunity to make a statement and
would be happy to answer any questions.
Senator Inhofe. Thank you, Mr. Thomas.
I think first of all, it might be beneficial to see what
areas we all agree on, and I think, Mr. Seitz, you would agree
and the rest of the table, obviously, that naturally occurring
events such as fires or dust storms should not be counted
against the State or a city for the purpose of determining
nonattainment dates. What are your feelings about that?
Mr. Seitz. Senator, with respect to wildfires and dust
storms, to the extent that it is consistent with our policy,
the data is recorded to be in compliance. We would agree with
that.
Senator Inhofe. I assume the three of you agree with that.
You know, we passed legislation having to do with
emergencies and it's called our pre-disaster mitigation
legislation. We actually came up with some things where we are
prone, for example, in Oklahoma to have the emergency of
tornadoes and what you can do to minimize the damage done
there.
Is there anything a State can do to mitigate against the
effects of naturally-occurring events that you can think of
Mr. Seitz. Is that addressed to me?
Senator Inhofe. Anyone. What I'm trying to get at here is
we all agree that naturally-occurring events should not be
scored against a political subdivision in terms of attainment.
Then the next thing you do is determine whether or not there is
something that the State or political subdivision can do, and I
don't know the answer at the moment.
Mr. Seitz. I think Mr. Coleman touched on a policy that was
put in place in 1986--is that which acknowledges, as you
suggest, Mr. Chairman, that fire, volcanoes, dust storms, this
type of a thing clearly is where you would flag the data. It
does not provide for meteorological events, but to the extent
it's fire or dust, that that data should be flagged.
But it also suggests that although the State agencies
certainly have no control over it, to the extent practical and
practicable. I think most States do this already. As you have
mentioned, States can give advisories to the public so the
public can protect themselves. The policy goes on to say what
can be done to protect the public in light of this event States
should do. But as far as controlling it, I would agree.
Senator Inhofe. Yes, that's my point. I think we can say
``yes, there is a tendency in this area for this to happen.''
We know that in Mexico they do burn, but we have no way of
knowing where the predominant winds are going to be, and how
it's going to affect us.
I would ask all four of you, does the current process of
the State's petition of the EPA and the EPA making a decision
work in an expeditious manner?
Mr. Coleman. Well, I guess that the question is, did we get
what we asked for? And we would not have asked for that which
we didn't think we had sufficient reason to ask for it.
I think all of us are very much interested in having an
environment that is an acceptable environment that's conducive
to good health, and that's what we have dedicated our careers
to provide.
Senator Inhofe. Yes, I was really trying to get at the
process as opposed to that, and is there a process that we can
use in petitioning the EPA and then the EPA responding to that
that's better, or what flaws do you see in that process right
now?
Mr. Coleman. I think that those of us at the State level
are far closer to the issue than those at the Federal level.
My personal belief is that that call should be made by the
State instead of us requesting with the EPA having the ``no''
and having the ``yes.'' My own belief is that that should be
our determination with EPA having the burden, not just to turn
it down, but have a good reason to overturn it.
Senator Inhofe. Well, I think that obviously Mr. Seitz has
heard me agree with that in the past. I've had the experience
of being the mayor of the city, as well as State government and
national government. It always seems to me that the closer you
get to home, the more you can have an understanding of the
problems, which comes to another area.
You guys from the States that we have represented here,
Colorado, Oklahoma, and Texas, have you ever tried to put down
the cost of these things? If you're proposing, such as I'm
proposing, to perhaps involve the Governors more than just
everything being done in Washington, the cost that is having to
be borne by your respective States? Have you ever quantified
that in this process?
Mr. Thomas. With regard to control strategies aimed at the
nonattainment situation? We're wrestling at this moment with a
SIP for the Houston area. We have not fully quantified the
cost, but we have had cost numbers come back to us that are
astronomical. The controls alone for point sources in the
Houston area are something on the order of $20 billion.
Mr. Coleman. Million or billion?
Mr. Thomas. Billion. Big bucks.
Senator Inhofe. Yes.
Mr. Mitchell. Mr. Chairman, on behalf of Colorado, I'm sure
the executive branch or the State health department could give
you a close to precise number on quantifying that cost. From
the legislative branch I cannot, but I'd like to briefly
comment on the previous question you asked on whether the
current procedure for requesting waivers works well. One quick
observation is that we have to recognize the incentives of the
various parties.
Of course the States would like anything that tends to
drive a low result, have that characterized as an irregular
event. The EPA, which is a regulator for public health, would
like to lay everything to the charge of the States and be able
to find nonattainment and impose stricter regulations on the
States.
So perhaps what should happen in the process in requesting
a waiver? I don't know if I can agree that the State should
have final and absolute say, but neither do I think the EPA
should have as much control and authority over that decision.
But if there could be some impartial forum or venue for
reaching that decision short of mounting Federal litigation
against the administration for its determination, the process
might work in a little more fair and evenhanded way.
Senator Inhofe. I want you to respond, Mr. Seitz, but I
want to clarify what we're talking about here. There is a cost
to preparing the data that is required when you're requesting a
waiver. I've been told there's confusion in that you spend a
lot of resources sending things in that later on you really
didn't have to. That's really what I was getting at.
Mr. Seitz.
Mr. Seitz. Thanks for the clarification, Senator, and I'd
like to respond to Representative Mitchell on the first point,
with respect to the desire of the EPA to capture someone under
our natural events policy. That policy of 1986 was originally
put in place at the request of the States to avoid just that
situation. So I think there's currently a mechanism in place to
exclude data for these natural events. The process question
which you raised, Senator, is a fair one. With respect to the
fires, I'd be the first to say that this one was catastrophic.
It came to our attention as a result of Texas and we looked at
the data. We put this policy for this particular set of fires
in place. The process we provided access to satellite
information to States, such as Texas. You heard Mr. Thomas'
explanation of data they explained to us. So I think the
process, if anything, was wide open as to the type of data
needed to be presented and as to what could be presented by the
State. The review process was not only EPA. It was a group of,
as we said before, NASA, NOAA, and academia. We had heard the
message, and Senator, you've made your point clear to me
numerous times about the need for EPA not to do things alone,
but rather to put it before the public, into a process for peer
review so it's good technical data.
I agree with Representative Mitchell. It is not all EPA's
decision. It's not all the State's decision. It's a process
that gets the proper technical personnel involved. In this case
NASA, NOAA, academia, as well as technical staffs in the States
and the local agencies put the data forward. To the extent that
EPA had the final decision, that is correct. In terms of a
national air quality standard being in place and the need for
consistency, that's the process that was followed.
So in terms of the cost, some was clearly borne by EPA and
the Federal Government for some of the satellite data. Some of
the monitoring data was generated from a monitoring network
that you were responsible for putting in place with
PM-2.5, and some of the burden was on the States.
But the overall benefits from these programs is to protect
public health. As you know from the benefit studies, the
benefits exceed costs by 4 to 1.
Senator Inhofe. The data that was generated from Oklahoma
and going back to this May. First of all, you have accepted a
lot of the dates that we had except for May 11, and the data
from Oklahoma appears to be convincing to me, and I understand
it's based on Federal data, so I'm not sure why the two
different sets of data would disagree so much and why you
discount the data that Mr. Coleman used in that case.
Mr. Seitz. The agency did not discount Mr. Coleman's data.
As a matter of fact, we took the video and sent it to NOAA. If
not, Mark, I owe you an apology for not receiving that. It was
reviewed by the scientists at NOAA, and they concluded that
this was not part of the plume.
In addition, the satellite which was used by the State of
Oklahoma for the that purpose, I think, is the GOES satellite,
which is at a height of 36,000 kilometers. The TOMS satellite,
which was used to generate our data point, is merely 740
kilometers. So the resolution from the TOMS' image is a lot
better.
In addition, what we tried to do was use a series of
technical data. If in fact the TOMS satellite did not show the
plume there, that is not where we stopped. We then went to
airport data, monitoring data or any other data that were
available and you've heard a good explanation from the State of
Texas of other data that was submitted.
The data from the TOMS satellite as well as airport
observations in Oklahoma on the day in question, May 11, did
not report any impairment of visibility or smoke. So it wasn't
a question of excluding the data Mr. Coleman provided. It was
that the overall data set showed that May 11 was not a day when
Oklahoma was being impacted by smoke. I would agree. Mr.
Coleman and I talked earlier about the fact that there is
clearly movement of something from Texas into Oklahoma.
But one final point of technical information, and this is
where I just want to keep it technical, the GOES satellite is
not particularly strong at registering aerosols. As a matter of
fact, it's not designed for aerosols. Aerosols are what we're
looking for.
Senator Inhofe. I thought that's what we were looking at on
your chart that you put up.
Mr. Seitz. This is aerosol. This is a different satellite.
We're talking two different satellites. The total ozone mapping
spectrometer satellite, GOES is another satellite that was used
by the agency. So we're talking two different images.
Senator Inhofe. Let's see the one that we had up. I thought
was a pretty good image and it's not that one.
Mr. Seitz. That's GOES.
Mr. Coleman. Ours is the other one. This is the TOMS. This
is the data that we don't think present our picture very
fairly. Obviously, Senator, we think that a picture is worth
1,000 words. I think anyone can pretty clearly see the plume
arise. In fact you can see two plumes arise and come up out of
that smoke and come into our State, and we clearly had an
impact that was observed on that particular day.
Now, it wasn't the extreme high level of smoke. In fact, if
it had been dense smoke, it might have been of some benefit to
us in that it would have cut down the sunlight and we might not
have had as much formation of the ozone.
But you can see two different plumes. One kind of rises out
of the southwestern side of the State and goes up and that's
rather thin. Then the heavy one comes clearly up and goes up
through central Oklahoma. In fact, from the imagery, we believe
that if the sun had been in a slightly different angle, it
would have been even more clear when the pictures were taken.
Senator Inhofe. Well, Mr. Thomas, the 1998 fires were worse
than anything you had before, coming from Central America and
from Mexico----
Mr. Thomas. Yes, sir.
Senator Inhofe. Was there any particular reason that you
determined, because I haven't looked to see whether those were
planned, or what caused them--or was it a condition that where
the Mexican fires were different than they had been before--but
the conditions, wind, temperature and all that was different.
What caused that to be the worst?
Mr. Thomas. Well, I think the severity of the fires
themselves contributed to that. There was a very severe drought
in central Mexico--Central America and Mexico, and the smoke
off of that was--you know, we see a little smoke every year,
but it got so dark that the street lights came on. It's just
something that we haven't seen before. It was severe. Elderly
people and young people were having asthma attacks, severe
health conditions. My own father-
in-law was not getting outside because he couldn't breathe.
Senator Inhofe. I thought I mentioned to you that I was
there during that time in the Brownsville area when we were
having some problems.
Mr. Thomas. It was very severe.
Senator Inhofe. I want to get back to your chart in just a
minute. Representative Mitchell, I was surprised I hadn't heard
you talk about this before, when you were talking about under
controlled burns. It's gone from 900,000 to 2.5 million in a 3-
year period.
Now, these are--this is something we have control over. Why
was it increased that much during that time period?
Mr. Mitchell. Prescribed burns have received recently
renewed attention as an environmentally sound way to manage
Federal lands. The strategy used to be to suppress all fires,
and then instead of suppression, environmental and public land
management just shifted to try to recreate the occasional
natural fire, and that philosophy has taken over.
They burned a lot more acres, a lot more land, almost 2\1/
2\ times from 915,000 acres in 1996 to 2.24 million in 1999.
Now, that's Federal policy. So I can only comment on it from
that level of familiarity. I can't tell you exactly why they
have increased so dramatically.
Mr. Seitz. Let me tag on and help, maybe, Representative
Mitchell. He is absolutely correct. As you recall, Senator
Inhofe, we went through some of the Regional Haze hearings. The
Department of Interior, Department of Agriculture, in
cooperation signed an agreement to put in place more prescribed
burns for the exact purpose Representative Mitchell talks, to
try to get hold of or return the forest to the natural
conditions, and it was thought this was clearly better than the
catastrophic burns that are otherwise subject to happen.
They indicated at that time there would be more burning to
try to capture to get ahead of it, and that's why in fact, some
of the policies have been in place for Regional Haze Rule to
make this--don't punish States with this smoke, but the
Representative is absolutely correct. It's for the purpose of
trying to return these lands to a natural condition.
Senator Inhofe. Did I understand, Representative Mitchell,
that you said that in the process of the controlled burns, you
authorize it at some point? It comes from the State in advance
so that even though it may be the Federal Government doing it,
the State has the final authorization?
Mr. Mitchell. Under the Federal Clean Air Act, the States
are delegated authority to, No. 1, administer the Federal clean
air program, but No. 2, to apply State clean air standards not
only to private industry within the State, but the Federal
activities that go on within the State. Included in that grant
of authority is the authority to regulate and permit any major
pollution-producing activity such as the prescribed Federal
burn.
So the short answer is yes, the State does have the
authority to review and to authorize or to permit specific
Federal burns.
Senator Inhofe. Is there anything you can add to that, Mr.
Seitz, as to what the EPA is doing to try to make that easier?
Mr. Seitz. Well, there are two issues. One is the burns.
There, the Representative is correct. There is a program--and I
think you touched on it in your testimony--a cooperative effort
between the land managers as well as the State of Colorado to
agree in a permit process.
The issue that the Representative mentioned was a debate on
a piece of legislation directed, I believe, at the Federal
sector to require permits.
It wasn't that the Federal land managers are disagreeing
with the thought because they are in fact cooperating under the
MOU. It is that under the Clean Air Act, we will comply in
Federal sectors. We'll comply as long as the legislation isn't
directed solely at us and no one else.
So to the extent--I'm just not familiar with the
legislation, so I apologize. But to the extent the legislation
is broad-based and affects us, States, ranchers, other
landowners that burn, then in fact, under section 118 of the
Clean Air Act, we would, as the Representative indicates,
comply.
Senator Inhofe. Mr. Seitz, do you want to put that chart
back up? Is there something you want to address?
Mr. Seitz. I just wanted to point out to Mr. Coleman that
this is, I believe, the day of the 13th, and as you can see,
the plume is touching right to the border of Oklahoma, but
clearly is not there by TOMS.
On the other hand, ground level observations and ground
level data on the ground in Oklahoma submitted by the State of
Oklahoma said there was impairment.
So although TOMS did not support a granting of this date,
other data did. So on balance, again, looking at all the data,
we granted the 14th.
Senator Inhofe. The 14th, but not the 13th. Mr. Seitz. The
day of the 13th, the day in question, it was granted. Even
though the plume--I'm just making the point that it wasn't one
data point that was used.
So what you're saying, Mr. Seitz, is that you are willing,
the EPA, to use your TOMS data, but also that that's submitted
by the States and work out the conclusion working with them.
Mr. Seitz. Correct. Again, we relied heavily on the
technical panel from NOAA, NASA, and academia to review it all
in cooperation with the technical staff in my office, the EPA
regional offices, and the State.
Senator Inhofe. The EPA pays for the monitors, and they
determine where the monitors are going to be within the State,
is that--my understanding correct?
Mr. Seitz. The overall monitoring network, there's two
types of monitors. First, there's a Federal list of monitors
that are placed in a given location based upon our guidance for
the purpose of attainment/nonattainment regulatory decision.
Second, there's a group of monitors that are allowed to be
placed at the discretion of the State and local agencies.
For instance, as mentioned in Colorado, I believe the
section 105 money and grant money provide for running the basic
program and monitoring program is somewhere around $3.5, or $4
million annually. That money goes directly to the States.
Certainty of that monitoring is at the discretion of the
States.
Senator Inhofe. OK. It's my understanding, Representative
Mitchell, that Colorado wanted to have more monitors placed on
the borders to show, to demonstrate where this was coming from.
The EPA wanted to have the monitors in the large cities. Is
that correct?
Mr. Mitchell. That's consistent with my understanding, but
we have about reached the outer boundary of my factual basis to
comment.
Senator Inhofe. How about that, Mr. Seitz, on the
determination of placement of monitors, we have had--we
actually had a similar problem in Tulsa some time ago, and how
do you think that can be improved, or how do you think it can
be a little more cooperative with the political subdivisions in
making those determinations?
Granted, we want to present the best case we can, but I
don't think you should be in the position to try to present the
worst case you can.
Mr. Seitz. The monitoring network itself, as I'm sure
you're aware, covers ozone, PM, lead. It's a very large
network. It covers multi-purposes.
As I said, part of that network is designed for regulatory
purposes. The remainder of the network is up to the State.
Maybe, Mr. Thomas can help me here, but I don't know what it is
in any given State. There's certain latitude in the State and
local governments to move monitors.
I'm not quite sure what the percentages are, but some can
be moved. I think what the States and STAPPA/ALAPCO would say
very quickly to you and to me, Senator, is the problem is there
aren't enough. They would like to get more monitors because
there are competing demands for even the ones they have the
latitude to move--demands for this purpose or that purpose, so
they would like more.
So, I think the real question and we currently have it
underway with STAPPA/ALAPCO is to take a look at the deployment
of the entire network.
Is there a way that we can, in a more efficient manner, in
a cooperative manner at both the State and local level, deploy
the network differently?
I hope your issue would be addressed. I call it the
integrated monitoring strategy. We currently have an evaluation
under way with STAPPA/ALAPCO, the State and local programs, to
look at that exact issue.
Senator Inhofe. You want to say something, Mr. Coleman?
Mr. Coleman. Yes, sir. I want to go back to the TOMS data,
and of course, we had an opportunity with the recent fires to
be able to examine how predictive that was, and I--my staff
tells me, that there are problems from the--this particular
system as it relates to being able to accurately depict where
problems would occur.
The ground truth and the truth from this particular data
set do not match up terribly well in a number of instances.
Senator Inhofe. Well, yes, but as you heard Mr. Seitz say,
that they will consider theirs, but also consider whether the
monitoring that you have, do you think that you end up getting,
a fair representation as to what the problem is? Averaging
out----
Mr. Coleman. No, sir. We can see a problem, and if we don't
get agreement on the problem, we have grave difficulties.
That's what our bottom line is, we can see it, you can see it
with a picture, and to not receive the attention that we think
that deserves, is something that just gives us great heartburn.
Mr. Seitz. Again, I agree with Mr. Coleman, of course, that
a picture speaks 1,000 words. But I'm not the expert to review
it. All I can say is that a panel of experts reviewed the data
and concluded that it was not smoke.
Senator Inhofe. You know, Mr. Seitz, in your opening
statement, the phrase always captures my attention when you
talk about premature deaths.
I remember back when we were having the big fight on the
ambient air thing and Administrator Browning quite often used
that as it was convenient for her to use. We heard during that
debate, it started out there were 20,000 premature deaths, and
then after looking at that it came down to 15, then down to
something less than 1,000, but the interesting thing that I
noticed is my dear mother-in-law died during that timeframe.
She was 97 years old and by using the criteria of premature
deaths, she was one of them in that statistic. What's your
definition?
Mr. Seitz. Of a premature death?
Senator Inhofe. Yes.
Mr. Seitz. In my mind, any death, any premature death, is
anyone that dies early. What I see is a child, or a senior
citizen in respiratory distress, as a result of
environmentally-induced particles who goes into an asthmatic
attack and dies.
Senator Inhofe. I don't think that's a very good answer. In
fairness to you, you inherited that phrase. You didn't invent
it.
Mr. Seitz. Well, Senator, I think there are statements
concerning EPA that have been explained to me twice, once by
Representative Mitchell and once by you, that the mission of
EPA is to try to take the worst-case scenario data and capture
the impact it may have on people. I think that is an
overstatement as well.
We have the 1986 policy that was put in place dealing with
excluding data, and the 1994 policy that was put in for
excluding particle data. In addition, the fact that EPA
excluded 92 of the 153 days requested by States, certainly
gives EPA, at least the technical staff at EPA, the chance to
acknowledge that we may occasionally look critically at the
data.
Mr. Thomas. Senator.
Senator Inhofe. Yes, go ahead. I'm getting some
information.
Mr. Thomas. If I could comment on the TOMS satellite, we
have found that certainly visible satellite imagery is useful.
There are some drawbacks. One thing, it's not available at
night, and does not indicate how much smoke is mixing to the
surface.
There are some drawbacks with the TOMS satellite. An
example of satellite measurements produced by the national or
NASA group from the TOMS satellite, has some problems. The NASA
aerosol imagery does not indicate that clouds are obscuring the
ability to see smoke, for instance.
The data that is used is day-old data, and you have to fill
the gaps in between the satellite passes. So there are some
real drawbacks, and in my technical staff 's evaluation of
using TOMS we use both TOMS and GOES-8 satellite imagery to
make our determinations.
Senator Inhofe. Are you satisfied, Mr. Thomas, as far as
the State of Texas is concerned, that that information other
than TOMS is being considered equally with TOMS information at
the EPA level in Washington?
Mr. Thomas. I'm not real sure how that was done. We have
their letter, and it defines to a large extent how that was
done. We had requested a total of 81 days. Our feeling is that
we really don't understand the science involved with these
types of events because we see such unusual things happen such
as a 90-PPB reading for an 8-hour standard when the wind is
blowing 15 miles an hour. That just doesn't occur normally.
So we ask that the whole event be set aside because we're
not sure in our mind what's going on with the science. I think
we need to develop the technical skills and the science where
we understand this much better, and then we will have a better
basis for making these determinations.
Senator Inhofe. Do you think the State of Colorado and
Oklahoma need to devise a way that comes up with more accurate
information?
Mr. Coleman. Senator, I guess my great concern is that in
order for us to have not only the proper information, but given
whatever information we have, particularly if it is information
from an extreme event that causes us to fall into
nonattainment, our responsibility then is to develop and design
a system that would bring us into attainment, and it is my
position that we cannot in anyway do that because we don't know
where to go. How much do we need to get in order to control the
weather, which we cannot do?
Mr. Mitchell. Yes, Senator, Colorado would like to develop
better ways to have better information about pollutant sources,
both from out of State, and from Federal activities in-State.
I just realized that your question to me about the location
of the monitors may have been a reference to something in my
testimony about funding for monitors and what that was was a
reference to, in this case, the WRAP or regional--Western
Regional Air Partnership, a sub-national but super-state kind
of regulatory body that does not seem to be the most beneficial
approach to dealing with the problem
Rather than appropriating funds to these kind of big State
collective think-tanks and regulatory boards, we suggested that
the money could be better spent, appropriated directly to the
States for air quality protection, including purchasing
monitors and placing them strategically.
It's not a debate of where the monitor should go, it's a
debate of whether to send the money to sub-national groups, or
to put into good science, and Colorado votes for good science.
Senator Inhofe. Mr. Seitz, your response?
Mr. Seitz. Just in terms of the clarification for the
monitoring money, that money again is, and does, go straight to
the State of Colorado. The money Representative Mitchell refers
to is the regional planning body money, which is, I think, in
total a $6 million appropriation. That money is allocated to
the correct sub-regional groups. It is for the purpose that
Representative Mitchell talked about--the sharing of
information.
For instance, in this area of the country CENSARA is a
group of the technical experts from the group of States. They
get together to share information on inventories, emissions,
wind information, such as that.
I'm not sure what funds we are talking about. I think
generally from the States, those funds for the regional
planning groups in order to plan, cross each other, and have
been very well received. That does not in any way change the
allocation of the monies to the States for the purpose of
monitoring. That's a separate process altogether.
Senator Inhofe. Mr. Seitz, when I was asking the question
about, ``Is it the policy of the EPA to present the worst case
as opposed to the case of the States,'' I asked Andrew Wheeler
here to refresh my memory on the cost figures back during the
ambient air fight, and he did.
The EPA was saying in direct response to my question during
that time what is going to be the cost on ozone and particulate
matter on an annual basis, and the EPA's estimation was between
$6 and $8 billion.
Shortly after that, the present technical adviser, said it
would be $60 million for ozone alone, and the region foundation
out in California came along and said it would be $120 million
for ozone and particulate matter.
It seems to me, and I get this more when we are having
hearings in Washington, that we get this extreme case
presented, as opposed to what we find out later to be the case.
So it is not you making these estimates, that's why it
occurred to me to ask the question.
Mr. Seitz. Well, if we are just talking history here, you
recall the acid rain program, when we were talking about
trading acid rain credits when those numbers first came around,
and industry was projecting it would cost $4,000 a ton, and I
think the last time I saw it was a $100.
I think the economic projections certainly move around. Let
us say that.
Senator Inhofe. Well, that may be true, but I'll wait until
we have the hearing where we have the witnesses who can defend
that assertion.
Mr. Seitz. I have given thought to your question about
premature death. Anyone that died, before their time, would be
my opinion.
Senator Inhofe. I plan to be one.
Mr. Mitchell. I suggest that Mr. Seitz missed the more
important issue, which is that premature death depends on
whether it was your mother-in-law or my mother-in-law.
Senator Inhofe. Mr. Coleman, you discussed your testimony,
the problem that Oklahoma had during the two Labor Days of 1998
and 2000. Can you explain why you believe these dates should be
considered exceptional events and what the EPA has said about
those dates?
Mr. Coleman. We have not yet submitted those data, and I'm
sure that John will be very, very receptive to our data when we
do submit it, but when you have peaks in temperature that are
all-time peaks, our planning is not such that we can deal with
that.
As a matter of fact, planning itself doesn't envision a
worst case, but a predictable worse case. That's what planning
is all about. The events that are beyond the pale of normal
planning are the sorts of things that we are not able to
predict, and it would be very unjustified on our part to
attempt to design a control program that was based on things
which had not yet happened. That is by definition, what does
happen when you have record temperatures.
Senator Inhofe. Yes.
Mr. Mitchell. Mr. Chairman, I would like to underscore
something that Mr. Coleman just said, and I think it's just
sort of two ships passing in the night, between the State
position, and the view that Mr. Seitz has expressed.
In his opening remarks, he said that we have to plan for
hot, smoggy days, too. We can't just set standards that apply
to perfect weather, and none of us on the State side are asking
for standards that apply only to perfect weather, but we are
asking when something is truly aberrational, something, an
extraordinary event causes conditions that in Mr. Coleman's
words cannot be planned for or in common sense, can't be
budgeted for, like building a freeway that never has a traffic
jam, not even on the biggest, highest, most extraordinary
traffic volume of the year, then those are issues that the
States should not be accountable for, in the ordinary course of
planning an operation.
Mr. Seitz. Back to EPA. Senator, I would agree that there
was hot weather. I also would agree that in the State of
Oklahoma, over the last 25 years, 80 percent of the days when
the temperature's been over 106 deg., there have been no
exceedances of the ozone standard.
We talk about stagnation days. We talk about stagnation
days in Tulsa. What about Springfield, MO? It is located
relatively close to Tulsa, and I forget what the number of days
for Tulsa exceeding the ozone standard was--33, I believe--
which was the record. Springfield, MO, had 55. Wichita, KS, had
stagnation of the same level. Oklahoma City had stagnation. How
come there were no violations of the 8-hour standard in any of
those places?
If you take a look at the emissions profile over the past
30 years, this has been no surprise. Hot temperature and
precursors to ozone equals ozone. If you take a look at the
emissions profile, and if I recall, and Mark, you're going to
have to help me out here, in that same episode, Tulsa had
called and indicated their biggest concern were the
NOX emissions, that were in their opinion,
uncontrolled in the Tulsa area.
It was their hope that their working to control those
emissions, would in fact, be a step in a positive direction.
I understand the weather is hot. I will never forget 1983.
We were meeting with Georgia, and they said you can't make me
design a plan to account for 1983. This year of stagnation will
never repeat itself. It will just never happen again. Don't let
me look at that.
Well, it was 1983, 1988, 1991, 1993, 1995, and 1998. These
conditions are not that exceptional. We have seen the only
difference is the emissions. Are the temperatures hot? Yes.
Have they been hot in the past? Yes. Have they been hot in this
region of the country? Yes. Have there been exceedances
everywhere in this region of the country? No. You take a look
at the emission profile of VOC to NOX in these areas
and they are the precursors. You see a spike for NOX
in this area.
Senator Inhofe. Mr. Coleman, do you have anything in
response to that?
Mr. Coleman. Yes, sir. I would--I recall your days when you
were mayor, and you were struggling, trying to come up with a
way to bring--return ourselves to attainment, and we took some
rather stringent measures at that time, and we were successful,
and we were the first State in the Nation to return completely
to attainment, having been partially in nonattainment.
So we are very proud of the actions that we have taken to
come back in attainment. Our situation is such that because of
our planning, we sit right on the cusp of being in
nonattainment at any given point in time, and it doesn't take
much to cause us to fall over.
That is the nature of the system that we were supposed to
design, is one which did what we needed to do to come to the
edge, and we have.
Senator Inhofe. Yes.
Mr. Coleman. Thus, when there's an exceptional event like
the hottest day, in the hottest summer on record, we did not
plan for that, and furthermore, I would still say we would be
derelict if we did. Now, should we plan for hot days? Of course
we should. Do we? Yes, we do.
But, we don't plan for events that are just simply not
predictable. We plan for events that are predictable.
Senator Inhofe. Yes.
Mr. Coleman. Even that causes a very high level of cost to
our citizens to pay for the elevated cost of electricity,
because we have additional controls that are necessary because
of that.
Throughout our entire system, all the goods that are
produced in our State, that added burden is there. A reasonable
added burden is what we are responsible to add, and that's all
we plan to add.
Senator Inhofe. Mr. Thomas, in your testimony, you called
for the EPA to develop a coherent and flexible policy for
dealing with long-term exceptional events that are beyond the
control of the air quality agencies. Could you explain, what is
wrong with the current EPA policy, and describe how such a
policy should work, specific suggestions on what would make
this easier?
Mr. Thomas. I think our concern is that we, technically, do
not understand the science that is occurring in these unusual
events. Ozone generally forms, when precursors in presence of
temperature and sunlight occurs.
In the case of these types of events, it appears that the
ozone is carried in with the plume, that it's already there, or
it may be forming in that plume. But when you have an event,
where you have very high wind conditions, and you get very high
ozone readings, that is completely contradictory to what
normally happens.
Normally, you have stagnation, very low wind speeds, 3 to 4
miles an hour or 5, somewhere in that neighborhood, and you
start to see a build-up of ozone over time, and it will wrap up
over days, and you will see an episodic event several days
long.
I think that we collectively need to advance the technology
and the science for these types of events, and understand them
better, and then develop a policy based on that new science
that is coherent, that makes sense, that's reasonable, where
you can define what is occurring.
Senator Inhofe. So you might say this falls into the
category of ``ready, fire, aim.'' You don't have the science
there, to be able to do something, and you have no control over
the circumstances, and that's what becomes costly.
Mr. Thomas. Yes, sir. It can become very costly to a State.
For instance, in 1995--Texas experienced in 1994, a very low
number of exceedance days, compared to past history. In 1995,
that jumped very high. In 1996, it came back down. The
explanation would be, I think, if you looked at just from a
logical standpoint, the emissions had not changed that much
over those 3 years. So something has changed, and we have
generally attributed that to the meteorology.
There was a variability in the meteorology that caused
that. Well, last year, I discovered that the northern Canada
fires called the ``Barille fires,'' occurring in 1995, had a
tremendous impact on the State of Texas.
How that impact occurred, I'm not sure, or what occurred
because we have not devoted the resources and time and effort
to understand that science, that far downwind, but it
definitely had an impact, and I just think we need to devote
some resources to looking at these types of episodes and
understanding them better, the science that's taking place.
Senator Inhofe. Representative Mitchell, you raised a
number of valid concerns about how the Federal Government
handles its burn policy on Federal lands. Of course, this
includes a lot of different agencies, your forest service,
Department of Interior, but what can the EPA do to help resolve
this issue, the guy sitting next to you?
Mr. Mitchell. I guess I would answer on two levels. Thank
you, John. First, when a prescribed burn is obviously the
source of particulate matter, or other pollutants that are then
registered in a metropolitan area, they shouldn't be counted
against the metropolitan area's attainment and pollution
standards. The EPA should be aware that the State has no
control over Federal lands, but indeed there's no control over
the prescribed burn, but indeed it's an activity affirmatively
caused by Federal activity.
That is in the strong case or in the exceptional case,
particularly when a fire burns out of control. But as a more
generally applicable matter, what Colorado would like, and I
think when other States look at the issue, what they will want
as well, is accurate information about the general contribution
to haze and ozone problems that comes from prescribed burns,
because information is always useful in valid policymaking.
If we are going to impose stringent new standards on
metropolitan areas for haze and air quality, we want to know
what baseline of pollution already exists, just by virtue of
the burns on Federal lands.
So, what the EPA can do is encourage Federal agencies to
comply with State efforts to get information, and to get
pollution inventories from Federal agencies, so that policy can
take into account whatever contribution to the problem comes
from Federal agencies.
Senator Inhofe. Well, that is what I want to hear, is
specific things like that. You know, these hearings, field
hearings are not here for a lovefest. We really want to find
out what the problems are.
Now, I would say this, and I know Mr. Seitz would agree,
when we have our hearings in Washington, they are much more
combative, for some reason, than when we get out in the real
people world.
But you know, we're embarking upon starting to--we've had
three hearings already on the re-authorization to clean up. We
are not going to string it out like it has been strung out
before. We plan to do it in this coming Congress, and get it
done.
So when we have these hearings, we want to find out, just
like the hearing we had in Ohio, new source review, we want to
know what is out there, can be done, and what is not working,
and what to make of jobs, what things we can transfer to the
States, to the local subdivisions, because if we don't hear
from the States on this, then we're going--I can assure you we
are going to be hearing from the Federal side on this, and that
is why this is so important. Yes.
Mr. Mitchell. Well, if you're looking for argument, I can
give you a little more specific comment. With regards to the
two bills in Colorado that I mentioned, one specifically
regulating Federal burns, and saying Federal Government, you
need to demonstrate that this is the most environmentally sound
way to approach the problem, and you need to demonstrate your
plan to avoid pushing the State to nonattainment.
That was Senate bill 145. The other bill that I sponsored,
that said public land managers and owners, you need to
inventory your activities on those Federal lands, on the
Federal lands that you manage, and tell us what pollutants are
likely to come out of those activities.
The response has been troubling, in that prescribed burns
are valued land management tools for the reasons that we
earlier described, because the suppression--I mean, I'm talking
in a circle. Let me back up for a minute, and say we used to
suppress fires on public lands, and the problem that that
produced was, you have a buildup of tremendous tinderbox
conditions, and when fires do strike, they burn out of control.
So, a more sound approach, and more environmentally
approximating what nature does, is to have these occasional
fires in these areas.
When a State comes along and says, ``Well, wait a minute,
we want to know how much pollution you are producing, and how
much we are being held responsible for, or particularly, if you
burn out of control, we don't want to be pushed into
nonattainment, so we want to take some steps to gather
information about these burns,'' the reaction is one of, ``No,
we don't want you to look at that, because we like prescribed
burns, and we think it's a good environmental tool, and we
don't want this information to come out, because it might
question our policy judgments on prescribed burns.''
On my bill on inventories, on activities in Federal lands,
we had a witness from the Army Corps of Engineers, I believe,
and also a witness from the Sierra Club, just come talk about
what a wonderful thing prescribed burns were, and why it was a
terrible idea we should be trying to get this information.
To which I think the reasonable response is, that's great,
that prescribed burns are a valid tool of land management, but
we still want to know what they are doing to the environment,
what they are doing to the atmosphere, so that other broader
policy can take that into account.
So what can the EPA do? It can cooperate with such efforts,
instead of opposing such efforts, and it can encourage other
Federal agencies and land managers to cooperate with such
efforts, instead of opposing such efforts.
Senator Inhofe. You're wiggling, Mr. Seitz.
Mr. Seitz. I am in agreement, and as a follow-up to this,
we need to personally call Representative Mitchell back. As you
know, we testified last year about the memorandum agreement
that was signed by these agencies, and I believe the State of
Colorado has a smoke management plan in place at the State
level. If they do, and a State SIP, there is a requirement of
those agencies to share the exact information that
Representative Mitchell is talking about, with the State
agencies, to accomplish the exact purpose that you're referring
to.
For instance, last year in Colorado, for prescribed burns,
I believe PM-10 in the Federal sector, were
somewhere around 1,200 tons of emissions expected from that,
versus the 46,000 tons from mobile sources, and 19,000 tons
from stationary sources.
So, if I have the inventory in my office in North Carolina,
I will follow up with Representative Mitchell personally, and
dig into this a little bit, and find out there's a State plan.
The Federal agencies are supposed to be at the table working
with the State on the exact information that Representative
Mitchell is talking about.
Senator Inhofe. Well, we've had a lot of hearings
addressing things we will be considering in the re-
authorization of the Clean Air Act such as the new source
review.
But, in this case, we're talking about how States deal with
problems over which they have no control. I would ask these
three. Probably, Mr. Seitz, you would not want to speak,
certainly not on behalf of the EPA, but I mentioned a bill of
legislation that we're going to introduce that would very
simply say those things. It would require the EPA administrator
to disregard monitoring data if the data has been influenced by
exceptional events, events that are beyond your control, if it
is requested by the Governor of the State. Would that be
helpful?
Mr. Thomas. I think it would be very helpful to the State
of Texas. We have enough occurrences of high ozone, primarily
the only pollutant that we are having difficulty with when
we're not having exceptional events. I think to have a law that
allowed for the setting aside of the entire event, would be
acceptable to us.
Mr. Coleman. Yes, sir. We obviously believe that would be
very much the case. There probably does need to be some
mechanism for EPA to challenge those days or challenge that
determination, but we believe the shoe ought to be on the other
foot, from the current situation, and that gets to the exact
issue we are here.
Senator Inhofe. Any thoughts, Representative Mitchell?
Mr. Mitchell. I will take the comments of Mr. Thomas and
Mr. Coleman.
Mr. Seitz. Me, always ready to tread where I shouldn't.
Senator Inhofe. Well, you know, the big issue, we are--I've
chaired this committee now for 4 years, and regardless of which
area we're addressing, the argument seems to come, is there an
inordinate amount of influence of power and decisionmaking in
Washington, as opposed to the political subdivisions.
Right now, we're not sure what the administration is going
to be in Washington in the next term. It might shock you, Mr.
Seitz, to know that I have a preference, but when it does
happen, and we have a different----
Mr. Seitz. Senator, as you know, I'm a career civil
servant.
Senator Inhofe. Then I think the thrust, and you find this
in both party platforms, the Republicans do want to get as
close to the problem as possible and we have tried to divest
the power from Washington.
And the other extreme is, and I know it's hard for
Oklahomans to understand this, but there are people I deal
with, on the floor of the Senate, on a daily basis, who believe
that no good decisions are made, unless they are made in
Washington.
So this is going to be--we wanted to know these things. As
we get prepared for continuing our hearings, which we will be
having when we get back in January, the re-authorization of the
Clean Air Act, we want to come to you in your States, find out
what specific things that you want to talk about, the ideas you
have.
You have expressed some today. I would ask you, at this
point, if there are any more that you want to express. This is
your time to do it.
Now, what we are going to do for the next, what, next 7
days, have you submit, after we have had this hearing, specific
ideas that you would like to have considered during the time
that we go through this re-authorization process.
So I expect you to do that in writing, at a later date, but
for right now, is there any real strong recommendation that you
would have from the State of Oklahoma, Mr. Coleman.
Mr. Coleman. Senator, as you know, we worked on the Clean
Air Act when it was rewritten. Our position is that there are a
number of places that the Act goes further than was necessary.
An act may have--may have more meaning, or may have more
need on the two coasts, than it does in our portion of the
country, but in our portion of the country, I think it's very
clear that there needs to be a whole lot more ability to make
determinations here, than making them somewhere else,
particularly, when they're made somewhere else, based on
conditions that do not exist here.
Senator Inhofe. In other words, one-size-doesn't-fit-all.
Mr. Coleman. No, sir.
Senator Inhofe. Mr. Thomas.
Mr. Thomas. I think we will submit some ideas. Right now
I'm not----
Senator Inhofe. All right.
Mr. Thomas. I'm not going to throw any out.
Senator Inhofe. Anything else, Mr. Mitchell?
Mr. Mitchell. No, thank you, Mr. Chairman. I wouldn't have
anything at this time to add to my testimony and the
discussion.
Senator Inhofe. All right. Mr. Seitz, any comments you want
to make?
Mr. Seitz. Just one final thought. As we go down the
requests that are submitted, we need to think about what we've
learned over the last several years. Mr. Coleman and the State
of Texas had a few debates recently, about putting monitors for
ozone on the border.
A Governor that makes one decision with respect to that
data, doesn't necessarily make a decision that may be endorsed
by another Governor. Any process that vests authority in one
particular subdivision without, as Representative Mitchell
testified, a good process which would involve technical review,
national consistency is a process that will ensure only that
section 126 petitions will be filed by one Governor to another
Governor.
So as we move forward with moving the decision point away
from Washington to the States, which is what the Clean Air Act
has always envisioned--the State Implementation Plan--those
plans have got to be developed with the awareness that wind
blows pollution.
Senator Inhofe. And we understand that and it's not a
piling on down here, and there's a lot of things these three
would disagree with each other, and I'm sure Mr. Coleman would
want Mr. Thomas to keep his ozone from the Dallas-Fort Worth
area from coming into southern Oklahoma.
So we realize that those boundaries don't exist, but we are
out here and close to the problem, and for that reason, I am
soliciting your recommendations as we progress along, and we
talk about other specific areas as we do that.
Mr. Thomas. Thank you, sir.
Senator Inhofe. Any last comments anyone would like to
make?
Mr. Seitz. Thank you very much.
Senator Inhofe. Thank you. Thank you all for coming. We
appreciate your attendance here today. We are adjourned.
[Whereupon, at 4 p.m., the subcommittee was adjourned, to
reconvene at the call of the chair.]
[Additional statements submitted for the record follow:]
Testimony of John S. Seitz, Director, Office of Air Quality Planning
and Standards, U.S. Environmental Protection Agency
Good morning Chairman Inhofe. Thank you for the opportunity to
testify today. It is my pleasure to be here in Oklahoma City.
Today I am going to discuss how the Environmental Protection
Agency's (EPA's) policies preserve public health protections by
addressing the man-made sources of air pollution in the context of both
unusual, but foreseeable, meteorological episodes, as well as truly
exceptional or unpredictable natural events.
As is the case with others testifying here today, our primary
mission at EPA is to protect public health. Air pollution is associated
with a variety of serious health and environmental problems. For
example, breathing particulate matter can aggravate pre-existing
respiratory ailments, reduce lung capacity and even result in premature
death. Carbon monoxide can aggravate angina (heart pain). Photochemical
smog can impair lung function, cause chest pain and cough, and worsen
respiratory diseases and asthma. We have made great strides as a nation
reducing levels of all of these pollutants. EPA's role in this has
entailed a wide variety of actions ranging from setting national air
quality standards that protect the public health, to requiring power
plants to reduce emissions of harmful air pollution, to setting
standards for vehicle emissions, to working with State and local
governments to ensure that they have the necessary tools to implement
plans to reduce air pollution and to inform the public about air
quality.
The Clean Air Act, a law created and amended with strong bipartisan
support, provides the blueprint for our efforts to clean the nation's
air. Between 1970 and 1999, total emissions of the six principal air
pollutants decreased 31 percent. This dramatic improvement occurred
simultaneously with significant increases in economic growth and
population. For 30 years, the Clean Air Act has provided critical
health protection to the American public. The 1990 Clean Air Act alone
will bring huge health benefits. For example, EPA's central estimate is
that the annual benefits in 2010 when the 1990 Clean Air Act is fully
implemented will include: 23,000 fewer incidences of premature
mortality; 67,000 fewer cases of chronic and acute bronchitis; 64,000
fewer respiratory and cardiovascular hospital admissions; and 1.7
million fewer asthma attacks.
Over the past 30 years, EPA has developed a series of policies and
programs to address the fact that weather and other uncontrollable
natural and exceptional events can influence air quality. Our
implementation of those policies and approaches confirm our commitment
to balanced, common-sense, cost-effective strategies to protect the
public from the dangers of air pollution. EPA and the States have
worked together under a variety of different circumstances, such as the
Mount Saint Helens eruption, clean-up of debris after Hurricane Andrew
devastated south Florida, and the pollution from the 1998 Mexican
wildfires situation, to determine the most appropriate way to deal with
air quality data associated with natural or exceptional events.
Before I describe how EPA accounts for various exceptional and
natural events such as volcanoes, wind storms and fires in our
regulations, I would like to provide a brief background on the role of
meteorological and geographic factors in people's exposure to air
pollution.
In 1948, a fog descended over Donora, Pennsylvania. An unusual set
of weather circumstances--a stagnant temperature inversion--trapped the
smoke from the coal-burning fireplaces and industrial plants in the
valley. The air grew heavier. By the time the weather shifted, the air
pollution trapped over Donora had killed 20 people and over 5,000
people reported illness. That unusual and horrific combination of man-
made pollution and weather ushered in a new era of understanding
regarding the health impacts of air pollution, and awakened a new
awareness of the impact of human activity on our quality of life.
Obviously, we have made tremendous progress since that terrible
incident. Since 1970, we have reduced emissions of sulfur dioxide by 37
percent, lead by 98 percent and carbon monoxide by 31 percent. In the
last 10 years, ambient levels of particulate matter (PM-10)
have dropped 18 percent. Since 1990, EPA has also put in place rules
that will prevent 1.5 million tons of toxics from being released into
our air. The work of the States, local governments, Federal Government
and the various industries have brought about these dramatic
improvements, and all Americans are better off because of it.
The role of weather and other natural factors in air pollution
remains a fact of life. Weather can exacerbate air pollution problems.
The tragedy in Donora involved an unusual meteorological episode, but
what made it deadly was the human-caused pollution in the air. Our
knowledge about these kinds of interactions has evolved over the years,
and so have our policies and standards.
The history of how States and EPA have worked together to develop
programs to address ground-level ozone is an excellent example of how
EPA's approaches factor in unusual climatic episodes in developing
plans to reduce emissions. Ozone is unhealthy to breathe, even at low
levels. It affects a variety of individuals, including healthy children
and adults who are active outdoors during the summer. Ozone can also
aggravate asthma, and make people more sensitive to allergens. Ozone
also increases people's susceptibility to respiratory infections. It
can inflame and damage the lining of the lungs, much like a sunburn.
Unlike many other pollutants, ozone is not emitted directly into
the air. It is formed when emissions of nitrogen oxides (emitted from
power plants, motor vehicles and other industrial sources) chemically
react with volatile organic compounds (emitted from motor vehicles,
petroleum refineries, chemical plants and other sources) in the
presence of heat and sunlight. Because it is triggered by sunlight and
heat, ozone in the air we breathe tends to reach its highest levels
during the summer months, often when the air is stagnant.
When States are developing their emission reduction control
programs to meet the air quality standards for pollutants like ozone,
EPA requires them to take into consideration stagnation episodes and
other periods that are conducive to ozone formation. The States must
reduce emissions to the point that they can meet the air quality
standards even during hot, stagnant periods of the summer. This
approach has been very successful. Southern California, for example,
has reduced its number of days exceeding the national ozone standard
from 133 to 39 in the past 10 years alone, despite its hot summer
temperatures.
The history of our national air quality standard for ground-level
ozone demonstrates how EPA's approaches to providing public health
protection have evolved while also allowing us to address other
factors, including unusual climatic episodes. The air quality standards
are set in a way that balances the level and form of the standard so
that public health is protected, and, at the same time, provides a
stable benchmark on which to develop implementation programs. In the
1970's EPA set a national air quality standard for photochemical
oxidants, measured as ozone. That standard was set at 0.08 part per
million and was not allowed to be exceeded for more than 1 hour per
year. By 1979, the review of new scientific health effects studies
served as the basis for EPA's revision of the ozone standard. This
revision took into account the fact that it is the level and the form
of an air quality standard that together determine the degree of public
health protection. EPA set the revised air quality standard at a level
of 0.12 parts per million over a 1-hour period. EPA also changed the
form of the standard so that it could be exceeded any 3 days over a 3-
year period. In part, this inherently made some allowance for unusually
high ozone levels that could result from unusual weather during any
given year.
Then, in 1997, based on an extensive review of the most recent
peer-reviewed science, EPA again revised the ozone standard, changing
the averaging time from 1 hour to 8 hours, setting the level at 0.08
part per million, and establishing a new, more flexible form that is
based on the fourth highest daily concentration in a year, averaged
over 3 years. This revised standard will protect public health from the
prolonged exposures to ozone at lower levels--shown by the new research
to adversely affect people's health--while better taking into account
unusual, but foreseeable meteorological episodes. In a nutshell, that
means an area may have many more exceedances of the 8-hour standard
than was the case with previous ozone standards before EPA determines
that an area is violating the national air quality standard.
EPA provided similar additional flexibility when we revised the
ambient air quality standards for particulate matter in 1997 by
establishing new fine particle standards with levels set in conjunction
with more flexible forms.
exceptional events policy
In 1986, EPA worked with States to develop what has become known as
the Exceptional Events Policy. This policy was designed so that
singular events--such as a volcanic eruption--that create air pollution
levels above the health-based air quality standards are excluded from
the data used to determine if an area is meeting the standards.
The definitions and associated criteria in the policy provide some
flexibility in their application to an individual event. Under the
policy, an ``exceptional event'' is one that is not expected to recur
routinely at a given location, that is uncontrollable or that is
unrealistic to control through State implementation plans. Judgment is
needed to identify whether an event is exceptional in the area of the
country where it has occurred. For example, the dust caused by salting
and sanding streets in a southern city may occur infrequently, but such
conditions would not be exceptional in the northeast. Similarly, 40-
mile per hour winds may occur infrequently in the southeast, but they
may be the norm in central and western States.
This policy also addressed other events, such as stratospheric
ozone intrusion; chemical spills and industrial accidents; infrequent
large gatherings, events expected to occur less than once per year; as
well as clean-up activities after a major disaster.
natural events policy (1996)
The Natural Events Policy was created because certain events, such
as wildfires and dust storms, were affecting particulate matter
(PM-10) concentrations in many areas several times a year.
As a result, EPA worked in partnership with State and local air
pollution control agencies to develop a policy for addressing
violations of the air quality standards for particulate matter
(PM-10) caused by natural events. This policy supersedes the
Exceptional Events Policy for three events: wildfires, high winds (dust
storms), and volcanic and seismic activity.
The Natural Events Policy helps provide increased public health
protection by minimizing exposures and reducing levels of particulate
matter emissions during forest fires, dust storms, volcanos, and
earthquakes. Under this policy, when such a natural event is determined
to be the cause of a violation of the particulate matter
(PM-10) standard, EPA works with the States to ensure that
they are not penalized for this violation if the State develops and
implements a natural events action plan.
Natural Event Action Plans include public notification and
education programs, procedures to minimize public exposure to high
PM-10 concentrations, and measures to abate or minimize
PM-10 emissions from industrial and other sources that are
controllable and are contributing to the problem with best available
control measures. When the best control measures for an emissions
source are not known, the States must commit to identify, study and
implement practical control measures in the future.
ozone exceedances due to the 1998 mexican and central american fires
In 1998, EPA began working with several States, including Oklahoma,
to determine how best to address the impact on ground-level ozone and
particulate matter levels in the United States caused by catastrophic
fire events that burned out of control in Mexico and Central America.
We set up a workgroup comprised of national air quality experts and
developed technical guidance for identifying when and where the fires
affected air pollution levels. The guidance included the use of
sophisticated, yet readily accessible technical tools such as satellite
imagery and ground-level visibility measurements to assess the smoke
plume location and movement. The guidance addressed possible impacts on
peak daily monitored ozone levels downwind of these fires and methods
for technically justifying the exclusion of certain ozone values above
the level of the standard from use in subsequent compliance
calculations.
EPA received requests from nine States to exclude certain days of
ozone data from compliance calculations due to these fires. Using our
guidance, we carefully reviewed the various requests in consultation
with other outside experts from the National Oceanic and Atmospheric
Administration (NOAA), National Aeronautics and Space
Administration (NASA), and academia. As a result of this process, we
were able to concur with most of the requests from those nine States,
including Oklahoma.
conclusion
In summary, EPA has a long history of developing policies and
approaches that protect the public health, while taking into account
truly exceptional events. We have worked with States to fashion very
balanced and protective approaches to address the effects of
uncontrollable events that contribute to air pollution episodes.
Regardless of what causes any given air pollution event, people
must breathe. Children, asthmatics and the elderly are especially
vulnerable to the health problems caused by air pollution. Our policies
are designed to protect people, while at the same time focusing
Federal, State and local air pollution control strategies on those
aspects of the problem over which EPA and State and local governments
can control--emissions of industrial and other pollutants into the air.
Mr. Chairman, this concludes my written remarks. I would be happy
to answer any questions that you may have.
__________
Testimony of Representative Shawn Mitchell, Representative for the
State of Colorado
Good morning Mr. Chairman and members of the subcommittee. I
understand that today you would like to hear from States on some of the
innovative strategies we have used to protect our air quality from
impairment due to Federal fires and also to take recommendations for
Federal legislation on this issue. Colorado has been a leader with
respect to dealing with this issue, and I truly appreciate you making
the subcommittee available.
Let me begin by explaining that I am an elected State
Representative from Broomfield, Colorado, which is located between
Denver and Boulder. I serve on the Health, Environment, Welfare, and
Institutions Committee, as well as the Judiciary Committee, and the
Legislative leadership committee (Legislative Council). I have
sponsored State legislation regarding both Federal lands and air
quality protection. As you know the roles of State and Federal
Government dealing with both federally managed lands in western States
and with environmental protection are muddled at best. I hope today to
present to you mandates that the Federal Government has placed on the
State of Colorado that do not adequately allow the States to account
for and regulate a major source of air pollution--wild land fire and
prescribed fire occurring on Federal lands. This is indeed an area I
suggest Federal and State legislators should be working in tandem to
rectify.
Colorado has taken action designed to protect air quality and
visibility as well as public welfare in our State. The visibility issue
is of particular importance to Colorado because of our unique status as
a receptor State of air pollution generated in other States combined
with our large number of National Parks and Wilderness Areas. I will
include in my testimony ways in which Federal legislation could make
our job at the State level easier while also promoting cleaner air.
Colorado is blessed with 13 (soon to be 14) pristine national parks
and wilderness areas. We are proud of these areas and take great pride
in our air quality programs to protect visibility and air quality in
those areas, and throughout our great State. From Rocky Mountain
National Park and Mesa Verde, to Black Canyon and the soon to be Great
Sand Dunes National Park, we welcome visitors to our State to enjoy
these natural wonders.
These pristine natural wonders are sources of great pride to
Coloradans, however, they are also significant sources of air pollution
that impair our air quality.
We are also very proud of the improvements we have made to air
quality in our cities. The Denver metropolitan area, we are pleased to
say, has attained the National Ambient Air Quality Standards for Carbon
Monoxide, 1 hour summertime ozone, and PM-10.
We have not had a violation of those NAAQS for sometime, and have
established programs to continue to improve or maintain our air
quality. I would ask that this recent report from the Colorado Air
Quality Control Commission be included in the record.
Unfortunately, we cannot claim such good news with regards to EPA's
new 8-hour summertime ozone standard. Unusually high measurements
recorded during the summer of 1998 have potentially put us back into
nonattainment. These high readings, some believe, have contribution
from wild-land fires during that hot summer, and again in the 2000
summer.
I would like to point out four areas where we have taken action to
improve or protect our current air quality and visibility. These areas
are:
1. A smoke management memorandum of understanding between the State
of Colorado and local, State, and Federal land management agencies that
lays out the responsibilities of all the parties to a prescribed burn.
The Department of Public Health and Environment is the lead
environmental protection agency and their role is to permit the
prescribed burns of Federal Government and State land management
agencies.
2. Legislation authored by me and passed by the Colorado General
Assembly that will require the Colorado Department of Public Health and
Environment and the Colorado Air Quality Control Commission to
establish an inventory of emissions from Federal and State lands. This
inventory will help Colorado's Air Quality Control Commission develop
programs to further protect visibility in our pristine areas.
3. Actions taken by Governor Owens of Colorado, after the
disastrous National Park Service prescribed fires in New Mexico, to
review existing permits and permit applications to ensure that adequate
plans are in place to protect the environment and public safety prior
to the ignition of a prescribed fire in Colorado.
4. Legislation passed by the General Assembly, we believe is
consistent with Section 118 of the Clean Air Act, that requires land
mangers to prepare plans for burns, receive permits from the Department
of Health and pay fees for the emissions of criteria air pollutants the
same as any other source in Colorado.
The State of Colorado and other Western States are being squeezed
with the dual vices of tighter national air quality standards, and new
visibility standards while also facing increased emissions from
natural, and prescribed fires on Federal lands. I would like to ask
that this chart which I pulled off of the Department of Interior's web
page be included in the record. It clearly shows there has been a
dramatic increase in the use of prescribed fires over the past 5 years.
In 1995, the USDA and Department of the Interior used prescribed fires
on 918,300 acres of land across the United States. In 1996, that total
went slightly down to 915,163 acres, in 1997 that total was 1,601,158
acres, in 1998 it was 1,889,564 acres, and in 1999 the total acres
burnt in the United States rose to 2,240,165. This is a staggering
increase that we believe is contributing to adverse visibility impacts
and regional haze in Class I areas across the country and increased
pollution in the areas surrounding where the burns occur.
As I mentioned earlier, we have a Smoke Management Memorandum of
Understanding. This agreement was forged in 1994, and updated in late
1999 and provides some framework for the relationship between the
State, the Federal Government, and local governments. This MOU was a
productive first step toward compliance by the Federal Government with
our environmental laws. It required them to minimize visibility impacts
from their activities, demonstrate that no State or Federal air quality
standards will be exceeded as a result of the burn, and to maintain a
system for establishing an inventory of emissions.
While this was a good first step, many of us at the State
legislature believed that more should be done. So, in 1999 we passed
two pieces of legislation that protect and enhance air quality and
visibility in Colorado.
The first law made the provisions of our State Clean Air Act
regarding permitting applicable to the Federal land managers.
Activities on Federal lands are the last clearly identifiable, major
source of air pollutants that we had yet to require programs for air
quality management. SB 145 legislatively required the establishment of
a management program for prescribed burning. It required the Federal
Government to submit a document that describes their future emissions
of air pollutants. It required that the Federal agencies use, ``all
available practicable methods that are technologically feasible and
economically reasonable in order to minimize the impact or reduce the
potential for such impact on both the attainment and maintenance of''
State and Federal air quality and visibility standards.
To put this law into context, it simply required Federal land
managers to provide information to the Air Quality Control Commission
so they could establish permitting and regulatory programs to meet the
same EPA mandated Federal standards for air quality that industry was
forced to comply with over 20 years ago.
Another issue we faced in this regard is that western States have
not required the Federal agencies to inventory the pollution generated
from prescribed burns. This leaves States like Colorado with inadequate
information about pollutants being transported into the State from
wildfires and prescribed burns in adjacent States.
This is important because without the emission inventories from
wild land and prescribed fires States cannot adequately prepare the EPA
mandated State Implementation Plans for Regional Haze due beginning as
early as 2003.
One remedy that I would suggest, is that you, Congress, direct the
Federal land management agencies to inventory their emissions from both
prescribed and wildfires. I would also suggest that you require them to
provide those inventories to all downwind States so that we can
adequately prepare our State Implementation Plans for Regional Haze and
begin to effectively work to demonstrate reasonable progress toward
attaining the Federal mandates.
To manage this issue within our State, we passed a second piece of
legislation that will be very important in future years for
policymakers in Colorado. It requires that the State and Federal land
managers prepare inventories of all emissions from their lands. This
information will give us an idea of the amount of haze and ozone
precursors that prescribed fires are contributing to air pollution in
Colorado. This legislation also requires that emissions inventories be
prepared for government agency controlled stationary sources and mobile
sources, as well as prescribed fires. However, there is some
uncertainty with respect to the willingness of the Federal executive
branch to comply with this law. It would be helpful if Congress were to
clarify with the land management agencies that compliance with State
permitting programs for air quality purposes is required.
The final step that Colorado has taken with respect to prescribed
fires occurred after the tragedy in New Mexico. In order to ensure the
protection of the people in Colorado as well as our forests, Governor
Owens placed a moratorium on the issuance of new permits for prescribed
fires. He also placed a suspension on existing permits until they could
be reviewed by State officials to ensure that adequate protections were
in place. Air Quality and Forestry officials worked together to
establish criteria under which the permits were reviewed to ensure the
protection of public safety as well as the environment. The Air Quality
Control Commission is reviewing the current Smoke Management MOU
mentioned earlier and will consider adding the new criteria to be
reviewed before a burn could be initiated, such as checking for the
most up to date meteorological conditions prior to setting the fire.
I would also like to recommend that money not be appropriated to
regional organizations such as the Western Regional Air Partnership
(WRAP) but instead be sent directly to the States for their use. As you
know Mr. Chairman, the Regional Haze Rule has been very controversial
and will be very difficult to implement. One of the difficulties for a
State like Colorado is that we don't believe we have sufficient data to
make an informed decision. We believe that money being sent to the WRAP
could be better used by States such as Colorado for monitors along our
borders that could identify pollutants being transported into our
State. Also, additional monitors could help us better understand what
air pollution is coming from Federal lands within our State.
Also, I would like to recommend that Congress examine the impacts
of Federal use of prescribed fire on air quality standards as well as
examine what impediments there are on States in holding the Federal
Government liable for the pollution they cause. If our experience is
similar to those of other States then it seems that the law should be
clarified so that Federal agencies have a directive from Congress that
they need to comply with the Clean Air Act.
Thank you again for having this hearing and thank you for allowing
me to testify.
__________
Testimony of Mark S. Coleman, Executive Director, Oklahoma Department
of Environmental Quality
Mr. Chairman, and members of the committee, it is a pleasure to
appear before you today and speak to you on the topic of exceptional
events and how they are related to air pollution control strategies.
Such events can be natural or manmade, but are usually considered
exceptional because they are either so out of the ordinary that they
are not expected to recur routinely; or their very nature makes them
unrealistic to control through the environmental planning process. How
can a control agency effectively plan for meteorological conditions
that could significantly affect air pollution levels when those
conditions are expected to occur only once or twice in a century?
Should our control strategy be predictable or unpredictable events?
We feel it is appropriate to hold such hearings in Oklahoma, as our
State is no stranger to such exceptional events. It seems we truly get
more than our fair share. In just the past few years, Oklahomans have
experienced drought, floods, fires, a major tornado and a tragic
bombing. A prime example of an exceptional event in Oklahoma and its
relationship to air pollution is a vivid and integral part of our
State's history. The extreme meteorological conditions associated with
the Dust Bowl Days of the late 1920's and early 1930's were responsible
for the loss of millions of tons of topsoil and the resultant air
pollution, which devastated the environment and economy in our area of
the country. We can only imagine what the particulate loadings to the
atmosphere were back then, but I would surmise that present day
National Ambient Air Quality Standards were greatly exceeded.
And exceptional events continue to affect us today. Dust storms and
wildfires, which can greatly contribute to air pollution, still occur
with some regularity; likewise, periods of drought, dominant high-
pressure ridges, and abnormal wind patterns can greatly exacerbate
various air pollution levels.
Let's examine a recent exceptional event that had environmental
impacts on Oklahoma. During the spring of 1998 there were numerous
significant forest fires in Mexico and Central America's Yucatan
Peninsula. These fires made national news and produced an air pollution
episode that was a truly extraordinary event and beyond the control of
State and local air pollution control agencies. It was definitely
documented that besides causing high particulate levels and haze, these
fires were also responsible for high levels of ozone. Air pollution
from these fires affected many areas of the United States, but the haze
and particulates were so severe that during the episode, areas of Texas
and Louisiana were issued health advisories. Those fires began in early
spring, and were not extinguished until in the summer.
On May 11, 1998 abnormally elevated ozone values were observed in
the Oklahoma City area. These values were higher than expected because
they occurred on a day with relatively high wind speeds and mild
temperatures, conditions not normally conducive to ozone formation. In
fact on May 11 the Edmond, Moore, Oklahoma City, and Goldsby sites
experienced 8-hour maximum ozone values that became the 4th highest
ozone values for the entire year. It is these fourth highest values
that are the critical ones used in the calculations to determine an
area's attainment status. And all this was occurring about the time of
the height of the fires' impact on Texas and the Gulf Coast. Later
after reviewing ambient data, investigating meteorological conditions,
observing pollution levels throughout our part of the country, and
making use of extensive satellite photography, it became apparent to
our Air Quality Division that the Mexican fires were the most probable
cause for the elevated ozone values in the Oklahoma City area on May
11. During 1998 and 1999 the DEQ worked diligently with the
Environmental Protection Agency to try to exclude data from the
extraordinary event when determining our attainment status. Using
available satellite photography, we felt we had some very convincing
evidence that the plume from the Mexican fires impacted central
Oklahoma on May 11 and met EPA's exclusion criteria. Nevertheless, we
were unable to convince EPA of our position.
(Visual demonstration on proximal showing plume impacting Oklahoma
City area)
Even more recent exceptional events have influenced air pollution
concentrations observed in Oklahoma. This year, one of our monitoring
stations in Tulsa experienced ozone concentrations that caused a
violation of the 1-hour ozone standard. This was the first violation of
the 1-hour ozone standard experienced in Oklahoma in many years. In
fact, it is the only violation of the standard that has occurred since
additional SIP control measures were required in 1988 and our
nationally copied ozone alert programs were implemented in the early
1990's. Nevertheless, four exceedances occurred at the site over the
last 3 years: three of the exceedances surprisingly occurring during
the Labor Day weekends of 1998 and 2000. Coincidentally, during both
these weekend periods, the Tulsa area found itself under extremely
abnormal meteorological conditions, which we feel qualify as
exceptional events.
On September 4, 1998 the day of one of the ozone exceedances in
question, the high temperature in Tulsa was 107 deg. F., an all-time
record for the day and 14 deg. above the normal daily high. In fact,
this day was the hottest day of the hottest summer since record keeping
began in 1895! The only comparable period was the ``Dust Bowl Era''
which peaked in 1931! The reason for this extraordinary heatwave was
primarily an abnormally long lasting high-pressure ridge that dominated
the region. Such high-pressure ridges are accompanied by light surface
winds and ``sinking'' air which traps pollutants. According to the
National Oceanic and Atmospheric Administration (NOAA), northeastern
Oklahoma can expect two or fewer stagnation cases per year and less
than 10 total days of air stagnation. In 1998 we set an all time record
for Oklahoma air stagnation with 33 days!
The two Tulsa exceedances on Labor Day weekend of this year
occurred on September 1 and 2. The high temperature in Tulsa on
September 1 was 108 deg. F., which was another all-time record for the
day and 14 deg. above the normal high. The high temperature of
September 2, 107 deg. F, was the highest on that date since 1939. These
hot days followed the driest month since 1896. Stagnation days were
again much more prevalent than normal during this period. The
particular air stagnation event, which immediately preceded the Labor
Day weekend 2000 high ozone values, was in its 12th and 13th
consecutive days when the high value occurred.
Clearly, the truly exceptional weather conditions that occurred in
the Tulsa area during the Labor Day weekends of 1998 and 2000
significantly contributed to our ozone violation. As you are aware,
ozone is formed by unique photochemical reactions between volatile
organic compounds, oxides of nitrogen, and sunlight. High temperature
and stagnant conditions accelerate the process. Since we feel that
these abnormal conditions are completely beyond our scope of control,
we will be requesting that the EPA exclude data collected on the days
in question when determining the areas attainment/nonattainment status
for the 1-hour standard.
As you can see, exceptional events have uniquely impacted
environmental planning in Oklahoma. The Clean Air Act requires the
States to monitor their air sheds for specific criteria pollutants. The
concentrations observed are then compared to health standards. If the
standards are exceeded, then control plans must be developed and
implemented. The problem arises when data collected are skewed by
exceptional events whose occurrence is almost always infrequent or
outside the control of the regulatory agency. Declaring an area a
nonattainment area using data collected during an exceptional event
just doesn't make good sense. EPA must make its guidelines on how to
exclude such data as clear and concise as possible, and yet be flexible
enough to accept valid scientific arguments. Specifically, we feel that
EPA guidance on exceptional events particularly relating to ozone needs
revision, especially allowing abnormal stagnation events and inversions
to be considered the exceptional events they in truth are. We feel that
draft guidance published by the Agency in 1994, though never finalized,
goes a long way in meeting this objective. We believe this draft
guidance is much more appropriate than the Agency's official 1986
version because it provides a mechanism for ``flagging'' extreme
weather events.
We further contend that it is the affected State, not EPA, that is
in the best position to determine whether an event is considered
exceptional or not. It is also our suggestion that the Clean Air Act be
amended to specifically exclude air quality monitoring data shown to be
influenced by truly exceptional events when determining compliance with
the National Ambient Air Quality Standards.
Thank you, Mr. Chairman.
__________
Statement of Jim Thomas, Director of Technical Analysis, Texas Natural
Resource Conservation Commission
Good afternoon Mr. Chairman. My name is Jim Thomas. I am director
of Technical Analysis at the Texas Natural Resource Conservation
Commission. Our agency implements a broad range of regulatory and
nonregulatory activities that protect the health of Texans and their
environment. The agency is led by a three-member commission appointed
by the Governor. About 3,000 staff members work in Austin and at 16
regional offices around the State.
Thank you for the opportunity to testify today about weather-
related events and their effect on ozone nonattainment under the Clean
Air Act. Recurring natural events in the United States and foreign
countries often influence air quality in Texas. Southwestern dust
storms, Saharan dust, agricultural fires, and forest fires are just a
few of the influences that we face. Today, I'd like to discuss one case
in particular--the agricultural fires that occurred in 1998 in Mexico
and Central America, the effect of the smoke on air quality in Texas,
and the need for consistent policy and guidance at the national level
on exceptional events like this one.
agricultural fires in mexico and central america
During the period from April 1, 1998 through June 20, 1998, large
amounts of smoke were transported into Texas from fires in Mexico and
Central America. Even though agricultural burning is conducted every
year in Central America, the smoke's intensity was unprecedented in
recent history. The fires were unusually intense and widespread because
of severe drought conditions in Mexico and Central America. The smoke
also produced high levels of ozone and carbon monoxide. These
pollutants accompanied the smoke into Texas.
By May, 1998, smoke intensity climbed to levels that threatened
public health. Concerned by this threat, the Texas Natural Resource
Conservation Commission stepped up it's air quality monitoring
activities and worked with the news media and other governmental
agencies to make the public aware of dangers posed by these smoke
levels. When our agency became aware of unusual air quality monitor
readings, we shifted additional ground monitors into the Rio Grande
Valley and made numerous flights with an airborne sampling platform
operated by Baylor University. In addition, our agency posted
information and warnings on our Web site, established a toll-free
information hotline, and issued public health alerts through the news
media.
analysis of the smoke
After the conclusion of this event, we undertook an analysis of the
association of high ozone and carbon monoxide levels with smoke
transported from Central America. Evidence of this relationship came
from aircraft data and from a comparison of the peak smoke day with a
non-smoke day. Numerous aircraft flights during the smoke period found
layers of smoke aloft that contained greatly increased ozone levels.
Ozone levels aloft as high as 100 to 140 parts per billion were found
in association with smoke layers.
The comparison of the peak smoke day at Brownsville on May 8, 1998,
with a non-smoke day, October 3, 1998, showed that ozone, carbon
monoxide, and particulate levels were much higher on the smoke day--
even though the wind speed, wind direction, and temperatures were
almost identical on both days. Ozone levels on the peak smoke day
reached peak 1-hour values near 100 parts per billion, whereas on the
non-smoke day the ozone peaked at only 20 parts per billion.
Satellite imagery and air trajectories were used to show the origin
of the smoke and its transport into Texas. Numerous large fires in
Mexico and Central America produced large clouds of smoke that were
visible in satellite imagery from March through June, 1998. The
heaviest smoke production occurred in early to mid-May. Whenever winds
were from the south to southeast in the southwestern portion of the
Gulf of Mexico, the smoke was transported across the Gulf and into
Texas.
Airport visibility measurements from National Weather Service
automated stations were used to supplement particulate measurements for
determining smoke intensities at various locations in Texas. A strong
correlation between visibility and particulate levels was shown in
measurements from both Brownsville and Austin. The combination of
visibility and particulate measurements was then used to estimate the
smoke impact on high ozone days during the smoke period. This
investigation showed that 14 high ozone days in Texas also had moderate
to high smoke levels and were therefore likely to have been influenced
significantly by the ozone associated with the smoke.
consultation with epa
As early as May 1998, our agency began consultations with the U.S.
Environmental Protection Agency (EPA). We provided significant amounts
of data to the U.S. EPA's technical working group for the Central
American forest fires through the Region 6 office. We also presented
the U.S. EPA with the results of our own analysis of the fire's air
quality impacts on Texas as part of our request to have ozone
exceedance days during the period of April 1, 1998 through June 20,
1998, declared as exceptional events. As of this hearing date, the U.S.
EPA has declined to grant an exceptional event status for all of the
days that Texas has identified as being influenced by Central American
smoke.
The Texas Natural Resource Conservation Commission believes that
there exists a need for the U.S. EPA, at a national level, to increase
its awareness of these exceptional natural events and their impact on
ambient measurements of pollutants and pollutant precursors. In
addition, there is a need for a coherent, flexible policy that provides
guidance not only for one-time exceptional events, but also recurring
or long term exceptional events that are beyond the control of air
quality agencies. We look forward to working with Congress and the U.S.
EPA on the development of such a policy.
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