<DOC>
[107th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:80673.wais]
CLEAN AIR ACT IMPLEMENTATION: EXPERIENCE OF STATE AND LOCAL REGULATORS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON ENERGY AND AIR QUALITY
of the
COMMITTEE ON ENERGY AND COMMERCE
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
JUNE 5, 2002
__________
Serial No. 107-119
__________
Printed for the use of the Committee on Energy and Commerce
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
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___________________________________________________________________________
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__________
COMMITTEE ON ENERGY AND COMMERCE
W.J. ``BILLY'' TAUZIN, Louisiana, Chairman
MICHAEL BILIRAKIS, Florida JOHN D. DINGELL, Michigan
JOE BARTON, Texas HENRY A. WAXMAN, California
FRED UPTON, Michigan EDWARD J. MARKEY, Massachusetts
CLIFF STEARNS, Florida RALPH M. HALL, Texas
PAUL E. GILLMOR, Ohio RICK BOUCHER, Virginia
JAMES C. GREENWOOD, Pennsylvania EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California FRANK PALLONE, Jr., New Jersey
NATHAN DEAL, Georgia SHERROD BROWN, Ohio
RICHARD BURR, North Carolina BART GORDON, Tennessee
ED WHITFIELD, Kentucky PETER DEUTSCH, Florida
GREG GANSKE, Iowa BOBBY L. RUSH, Illinois
CHARLIE NORWOOD, Georgia ANNA G. ESHOO, California
BARBARA CUBIN, Wyoming BART STUPAK, Michigan
JOHN SHIMKUS, Illinois ELIOT L. ENGEL, New York
HEATHER WILSON, New Mexico TOM SAWYER, Ohio
JOHN B. SHADEGG, Arizona ALBERT R. WYNN, Maryland
CHARLES ``CHIP'' PICKERING, GENE GREEN, Texas
Mississippi KAREN McCARTHY, Missouri
VITO FOSSELLA, New York TED STRICKLAND, Ohio
ROY BLUNT, Missouri DIANA DeGETTE, Colorado
TOM DAVIS, Virginia THOMAS M. BARRETT, Wisconsin
ED BRYANT, Tennessee BILL LUTHER, Minnesota
ROBERT L. EHRLICH, Jr., Maryland LOIS CAPPS, California
STEVE BUYER, Indiana MICHAEL F. DOYLE, Pennsylvania
GEORGE RADANOVICH, California CHRISTOPHER JOHN, Louisiana
CHARLES F. BASS, New Hampshire JANE HARMAN, California
JOSEPH R. PITTS, Pennsylvania
MARY BONO, California
GREG WALDEN, Oregon
LEE TERRY, Nebraska
ERNIE FLETCHER, Kentucky
David V. Marventano, Staff Director
James D. Barnette, General Counsel
Reid P.F. Stuntz, Minority Staff Director and Chief Counsel
______
Subcommittee on Energy and Air Quality
JOE BARTON, Texas, Chairman
CHRISTOPHER COX, California RICK BOUCHER, Virginia
Vice Chairman RALPH M. HALL, Texas
RICHARD BURR, North Carolina TOM SAWYER, Ohio
ED WHITFIELD, Kentucky ALBERT R. WYNN, Maryland
GREG GANSKE, Iowa MICHAEL F. DOYLE, Pennsylvania
CHARLIE NORWOOD, Georgia CHRISTOPHER JOHN, Louisiana
JOHN SHIMKUS, Illinois HENRY A. WAXMAN, California
HEATHER WILSON, New Mexico EDWARD J. MARKEY, Massachusetts
JOHN SHADEGG, Arizona BART GORDON, Tennessee
CHARLES ``CHIP'' PICKERING, BOBBY L. RUSH, Illinois
Mississippi KAREN McCARTHY, Missouri
VITO FOSSELLA, New York TED STRICKLAND, Ohio
ROY BLUNT, Missouri THOMAS M. BARRETT, Wisconsin
ED BRYANT, Tennessee BILL LUTHER, Minnesota
STEVE BUYER, Indiana JOHN D. DINGELL, Michigan
GEORGE RADANOVICH, California (Ex Officio)
MARY BONO, California
GREG WALDEN, Oregon
W.J. ``BILLY'' TAUZIN, Louisiana
(Ex Officio)
(ii)
C O N T E N T S
__________
Page
Testimony of:
Jones, Christopher, Director, Ohio Environmental Protection
Agency..................................................... 14
Lempke, Doug, Administrator, Air Quality Control Commission,
Colorado Department of Public Health and Environment....... 37
Nicholson, Brock, Chief of Air Quality Planning, North
Carolina Department of Environment and Natural Resources... 24
Nielson, Dianne R., Executive Director, Utah Department of
Environmental Quality...................................... 10
Williams, Arthur L., Director, Jefferson County Air Pollution
Control District, on behalf of STAPPA/ALAPCO............... 29
Additional material submitted for the record:
Southern Appalachian Mountains Initiative.................... 54
(iii)
CLEAN AIR ACT IMPLEMENTATION: EXPERIENCE OF STATE AND LOCAL REGULATORS
----------
WEDNESDAY, JUNE 5, 2002
House of Representatives,
Committee on Energy and Commerce,
Subcommittee on Energy and Air Quality,
Washington, DC.
The subcommittee met, pursuant to notice, at 2 p.m., in
room 2123, Rayburn House Office Building, Hon. Joe Barton
(chairman) presiding.
Members present: Representatives Barton, Burr, Whitfield,
Shimkus, Shadegg, Boucher, Sawyer, Waxman, Markey, McCarthy,
Strickland, and Barrett.
Staff present: Bob Meyers, majority counsel; Joseph Stanko,
majority counsel; Andy Black, policy coordinator; Hollyn Kidd,
legislative clerk; Michael L. Goo, minority counsel; and
Courtney Anderson, minority research assistant.
Mr. Barton. The subcommittee will come to order.
The Chair would recognize himself for an opening statement.
This afternoon the Subcommittee on Energy and Air Quality
will continue its series of hearings on the Clean Air Act. Our
last hearing covered the accomplishments of the Clean Air Act.
In that hearing, the subcommittee received testimony from
academic, environmental, and public health groups concerning
the significant progress that has been made toward achieving
Federal air quality standards.
Today's hearing will focus on implementation of the Clean
Air Act, specifically the experiences of State and local
regulators in implementing emissions reductions programs.
Importantly, the subcommittee will hear from those on the front
line of Clean Air Act implementation, the State and local
officials responsible for ensuring that the States meet the
Federal air quality standards established by the Environmental
Protection Agency.
Under the subcommittee realignment that began at the first
of this Congress, the clean air jurisdiction is now within the
subcommittee that I chair, the Energy and Air Quality
Subcommittee. I note that I am one of the few current Energy
and Commerce Committee members who participated in the last
major reauthorization of the Clean Air Act back in 1990.
I hope that our hearing today will be a part of a larger
record upon which this subcommittee and the full committee can
later build another equally bipartisan and effective review of
the Clean Air Act.
I am also one of many Members of Congress who believes that
all wisdom does not reside in Washington, DC. For that reason,
I am eager to hear the experiences of our panel of State and
local regulators who were kind enough to come to Washington
today and educate us about the real world implementation
issues.
I cannot emphasize how important these State officials have
been in achieving our Nation's significant improvement in air
quality. We Federal legislators should certainly heed their
remarks when determining what approach, if any, in terms of new
thinking are appropriate for future programs.
Our panel today has officials from the States of Utah,
Ohio, North Carolina, Colorado, and Kentucky. So we have got a
cross-reference of the geography of this great Nation in terms
of the State regulators that are here--officials that are here
today. I look forward to hearing their testimony.
Our ranking member on the Democratic side, Mr. Rick Boucher
of Virginia, is in his district this afternoon and cannot be
here. So taking his place very ably is the distinguished
Congressman from Ohio, Mr. Sawyer, and I would recognize him
now for an opening statement.
Mr. Sawyer. Well, thank you, Mr. Chairman, and thank you
for holding this second hearing today on the Clean Air Act.
As a consequence of the work that has been done over the
last now more than 30 years, this country has made enormous
progress in terms of the quality of air. It is sometimes
difficult to measure the benefits of the work that we do in
Congress, but the Clean Air Act is a clear example of the
public good that can come from legislation when we work at it.
Nothing is easy. It requires long-term grip, tenacity, and
effort. But the Clean Air Act has had that indeed. Overall
levels of pollution in this country have dropped nearly 30
percent. Cars in the 2004 model year will be 99 percent cleaner
than those produced in 1970. Quite simply, we benefit from the
Clean Air Act with every breath we take.
It demonstrates that this country can achieve ambitious
environmental objectives that it sets for itself when it makes
the goals clear and measures progress toward them. But as the
recent EPA report submitted to the U.N. reveals, we still have
to confront the issue of global warming in this country and
develop meaningful solutions to address it.
The U.S. would still increase the overall amount of
greenhouse gases at the same rate that we are today. The
President's 17.5 percent target is almost the same as the 17.4
percent reduction that we experienced from 1990 to 2000. It
almost guarantees that we will have much higher emissions of
greenhouse gases in 10 years, and we will have done little to
address the serious problem of global warming.
We have technology to reduce the emissions of greenhouse
gases. Now we need a--goodness gracious.
Mr. Barton. Will the gentleman yield?
Mr. Sawyer. This is the furthest extent that I have seen
Western Virginia extend in 200 years.
Mr. Barton. I just announced that you were in your district
this afternoon.
Mr. Boucher. Well, let me say that I have made an
unexpected appearance for the purpose of contributing an
opening statement, and I want to express my appreciation to Mr.
Sawyer for being willing to carry out ranking member
responsibilities this afternoon. But I did want to make a
statement, so after----
Mr. Sawyer. As soon as I am done, why----
Mr. Barton. He is ranking now.
Mr. Sawyer. In short, what I was about to say was that we
need a comprehensive Federal policy for setting benchmarks for
compliance. The President's plan recognizes the benefits of cap
and trade programs, and I am eager to hear testimony about how
those programs have worked in the States.
The acid ran cap and trade program of 1990 has been
remarkably successful, and I am convinced that with care and
design achievable targets and careful management of a trading
system that we can do the same thing. It offers great promise
with regard to global warming.
I am also interested in learning more about the challenges
that you faced at the State level and the approaches you have
developed that can be applied more broadly across the country.
Our witnesses, Mr. Chairman, are the ones that are in the
trenches. They know what the difficulties have been in bringing
communities into compliance with Federal requirements. I
understand your need for flexibility in designing those
approaches, and I commend you all today for your work at the
State levels, and I am pleased to welcome and recognize Chris
Jones from my State of Ohio.
With that, Mr. Chairman, I yield back the balance of Mr.
Boucher's time.
Mr. Barton. I thank the gentleman.
We would recognize the distinguished vice chairman of the
subcommittee, Mr. Shimkus, for an opening statement.
Mr. Shimkus. Mr. Chairman, if I may, I am not sure if the
gentleman from Virginia is in a time crunch. But if he is, I am
willing to give him my 5 minutes, so that he can expedite----
Mr. Barton. All right. The gentleman from----
Mr. Shimkus. [continuing] I yield my time to the gentleman
from Virginia.
Mr. Barton. [continuing] Reserves his time, and he is going
to let Mr. Boucher give an opening statement.
Mr. Boucher. Well, thank you very much, Mr. Chairman. And,
Mr. Shimkus, thank you for your courtesies. And, Mr. Sawyer,
thank you so much for taking this responsibility this
afternoon. I regret that I will not be able to stay for the
balance of the hearing.
I did want to take this opportunity, however, to thank the
chairman for scheduling this hearing and, in fact, a series of
hearings that are planned as we examine the Clean Air Act and
the experience that our Nation has had under this series of
clean air requirements. Many of the provisions of the Clean Air
Act set national air quality standards and then direct State
and local regulators to develop and implement strategies for
meeting the guidelines that have been set forth at the Federal
level.
States and local regulators have truly been on the front
lines in improving our Nation's air quality as they have
discharged this responsibility under the Federal clean air
laws.
The State and local regulators have been largely successful
in meeting their goals. Since enactment of the Clean Air Act
and of the 1990 amendments to the law, the Nation has made
significant progress in reducing emissions and improving air
quality while the Nation's economy and energy use have
expanded.
From 1970 to 1999, the gross domestic product of the United
States increased by 158 percent, and during that same period
electricity use increased by 148 percent. Despite these
increases and general economic activity, and in the pace of
energy consumption, the Nation's air is much cleaner today than
it was in 1970.
During the last 30 years, sensible environmental
regulations, along with new technology and voluntary actions by
our Nation's industry, have led to a significant reduction in
air emissions. Sulfur dioxide emissions have declined by 39
percent. Particulate matter has declined by 75 percent.
Airborne lead levels are down 98 percent. And volatile organic
compounds have decreased by 42 percent.
In addition, coal use has increased by 195 percent during
this period of time, while total emissions per ton of coal
consumed have decreased by 70 percent since 1970. Particulate
matter levels from coal-based utilities decreased 84 percent
between 1970 and 1998.
Our Nation's air has been getting cleaner while coal use by
electric utilities has been steadily increasing. These
improvements in air quality have been due largely to the
success of the Clean Air Act of 1970 and the 1990 amendments.
And the success of the Clean Air Act has been due, in
significant part, to the efforts that have been made by State
and local regulators as they have implemented the provisions of
the Federal law.
The witnesses testifying before the subcommittee today have
extensive knowledge about the Nation's air quality and the
implementation of the Clean Air Act. While I will not be here
to hear the testimony, I look forward to reading the testimony
that these witnesses are presenting regarding the progress in
improving air quality which has been made by this Nation over
the past 30 years, and the ways in which their State and local
agencies have contributed substantially to achieving that
success.
I particularly look forward to reading the testimony of
these witnesses regarding their opinions on the strengths and
weaknesses of the Clean Air Act, their views on the
practicality of the Act's requirements, and their
recommendations for any potential changes to the Act that they
would suggest that this subcommittee consider.
Mr. Chairman, thank you again for scheduling this timely
consideration by the subcommittee, and I welcome the testimony
of our witnesses.
Mr. Sawyer. Mr. Chairman, I would at this point ask
unanimous consent that all members have the opportunity to
submit their full statements for the record.
Mr. Shimkus [presiding]. If there is no objection, so
ordered.
The Chair recognizes the gentleman from North Carolina, Mr.
Burr.
Mr. Burr. I thank the chair. Mr. Chairman, it is my
pleasure to use my opening statement to introduce Brock
Nicholson from North Carolina Division of Air Quality. This is
Brock's second tour of duty with the State government serving
this time as the State's chief of air quality planning. Prior
to rejoining State government, Brock was the chief of the ozone
and carbon monoxide development section of EPA's agency office
of air quality, planning, and standards.
A registered professional engineer, Brock holds a
mechanical engineering degree from North Carolina State and is
a retired commission officer with the United States Public
Health Service. Most recently, Brock has been working with our
State's industry, environmental enthusiasts, and elected
officials to craft a North Carolina Clean Smokestacks Bill.
Six months ago I would have given the chances that
industry, the environmental community, and State government
would have been able to reach an agreement on legislation that
reduces emissions without increasing electricity rates for our
consumers about the same chances I would have given the
Carolina Hurricanes at being in the Stanley Cup.
Well, as of today, a bill has passed the State Senate on
April 25. Governor Mike Easley announced that the State's two
largest investor-owned utilities have agreed on the framework
of legislation that accomplishes lower emissions without
raising rates on retail customers.
And, yes, the Hurricanes are up one to zero in the Stanley
Cup finals over our ranking minority member Mr. Dingell's
Detroit Red Wings after last night's overtime win.
The framework of North Carolina's legislation would lower
sulfur dioxide emissions to 250,000 tons by January 1, 2009,
and 130,000 tons by January 1, 2013; lower nitrogen oxide
emissions to 60,000 tons by January 1, 2017, and 56,000 tons by
January 1, 2009.
This legislation is a great example of State initiatives
that should be given the flexibility to operate above and
beyond the framework of EPA regulations. I hope that Mr.
Nicholson will be able to share with us his experience with
North Carolina's legislative success, specifically the
requirement to study mercury emissions, the uncertainties in
mercury control and the health and economic benefits of
additional studies of this issue.
Brock, I know that these are difficult budget times in
Raleigh, North Carolina, on behalf of the committee. I would
like to thank you for taking the time off to be with us.
With that, I yield back my time.
Mr. Sawyer. Will the gentleman yield?
Mr. Burr. I would be happy to yield.
Mr. Sawyer. Is it true, as I heard reported over the
weekend, that if, in fact, indeed North Carolina beat Detroit
that this would have been the first time that they had beaten
Detroit in any setting since 1989?
Not to rub it in, Mr.----
Mr. Burr. The gentleman is incorrect.
Mr. Sawyer. Incorrect.
Mr. Shimkus. The gentleman's time has expired. The Chair
recognizes the gentleman from Ohio, Mr. Strickland.
Mr. Strickland. Thank you, Mr. Chairman.
I am especially glad that Mr. Jones is here today. Mr.
Jones, I appreciate your attendance. I have reviewed your
testimony about the implementation of the Clean Air Act. I make
note of the fact that you are going to mention the city of
Steubenville in your testimony, a place that is near and dear
to my heart.
However, an urgent matter regarding the Portsmouth Gaseous
Diffusion Plant I think warrants immediate attention, and so I
would like to direct your attention to that.
Yesterday evening the Department of Energy held a public
hearing about dumping 14,000 metric tons of uranium waste at
the Portsmouth site in my district. Over the past, I have
worked with your staff to ensure that thousands of canisters of
depleted uranium hexofluoride that are currently onsite are
converted to a more stable form and stored safely.
I know your agency is concerned that the construction of a
conversion facility get underway as soon as possible, but now
it is apparent that DOE has not only failed to begin the
conversion of the DUF6 since passage of Public Law 105-204,
which we passed in 1998, but now DOE intends to compound the
problem by making Portsmouth a dumping ground for all of the
Department's low energy uranium, natural uranium, and depleted
uranium, which is now stored at over 150 sites within the DOE
complex.
I have learned that this amount of waste would more than
triple the amount of uranium material stored onsite. This plan
by DOE is an outrage. I will not stand by quietly while
Southern Ohio gets dumped on.
The United States Enrichment Corporation was privatized in
1998, and we were assured that layoffs would be limited. Well,
since privatization, I hear regularly about more layoffs at the
plant. The brilliant decision to privatize USEC, which I
strongly opposed, resulted in the closure of the Portsmouth
plant last year, the only plant in the country capable of
enriching uranium to commercial specifications using natural
feed.
Approximately 2 years after privatization, $630 million was
announced for the Portsmouth site in October of 2000.
Unfortunately, the Bush administration reversed that decision
during the President's first day in office. As I mentioned, we
were also promised a DUF6 conversion facility, and this
administration continues to deny that it is required by law to
build two such facilities, one in Portsmouth, Ohio, and one in
Paducah, Kentucky.
When DOE announced it would ship materials from Fernald to
Portsmouth, we were told that jobs were at stake. Only a
handful of jobs were created under this mission, and now the
fact that the Fernald material is already at the Portsmouth
site serves as a justification for dumping more of the
Department's waste on the communities in Southern Ohio.
It seems as if the Department wants to clean up Fernald, as
they promised to do and should do. But in order to accomplish
this, they want to dump the material on Portsmouth. It is
unacceptable.
I feel that 14,000 metric tons of uranium waste will render
the site completely unattractive for economic development
opportunities, and that would be a disaster for a part of the
State that is already economically distressed.
Director Jones, I intend to call upon our two Senators,
DeWine and Voinovich, the Governor, Governor Taft, and my
colleagues Portman and Ney to do everything that we can to
oppose this unwise and unwarranted decision on the part of DOE
to further dump on Southern Ohio.
I return the balance of my time, Mr. Chairman.
Mr. Shimkus. The gentleman's time has expired. I now
recognize myself for a brief opening statement.
Under the 1998 amendments to the Clean Air Act, six areas
in Illinois were designed as non-attainment for one or more
criteria pollutants. As a result of Illinois' efforts, five of
those areas have since come into attainment. Illinois was able
to improve their air quality through a number of common-sense
voluntary and market-driven approaches.
For example, the State started the Emission Reduction
Market System, a volatile organic materials emissions trading
program. Illinois was the first State in the Nation to adopt
this type of cap and trade program for volatile organic
materials, which contribute to the formulation of ground-level
ozone or smog. The program is a cost-effective way to obtain
emissions reductions.
Overall, in 2001, participating sources emitted 52 percent
less in their baselines and 46 percent less than their
allotments of trading units. The State has established a
program called Partners for Clean Air, a voluntary organization
which was established in 1995 and is comprised of over 300
businesses, industries, local governments, and health
organizations, and representing thousands of employees.
Members of the Partners for Clean Air commit to taking
voluntary green actions, which is vanpooling, public
transportation, limited use of energy, deferring gas-powered
lawnmowering, etcetera, to reduce ozone precursor emissions for
forecasted ozone action days.
Tax credit and rebate programs are another tool the State
has used to reduce pollution. From January 1997 through the end
of this month, Illinois offered a rebate program for motorists
who purchased alternative fuel vehicles or converted
conventional vehicles to alternative fuel vehicles.
Rebates were offered for 80 percent of the conversion costs
or original equipment costs, 80 percent of the fuel cost
differential over a 3-year period not to exceed $4,000 per
vehicle. This coming Saturday, the State is also asking
citizens to trade in old gas-driven lawnmowers. In return, they
receive a $60 coupon toward purchase of a more environmentally
friendly lawnmower.
In my past comments, I talked about how the Clean Air Act
really devastated Southern Illinois and the coal industry and
some of the other energy producing sectors of the economy. Even
with that, Illinois has moved significantly forward to help
clean up their air. And with clean coal technology and a new
positive energy bill, we look forward to being able to move
both generating electricity for the country and doing it in a
very positive environment way.
And with that, I will end my statements, and now yield to
the gentleman from California, Mr. Waxman, for 5 minutes.
Mr. Waxman. Mr. Chairman, thank you for holding this
hearing.
Today we will hear from State and local officials regarding
their experiences with implementation of the Clean Air Act. The
States have a critical role in meeting our clean air goals. The
Federal Government has delegated implementation of
environmental laws to the States, and each year gives the
States millions in Federal funds to ensure that the laws are
adequately implemented.
This approach gives the States flexibility to find workable
solutions while providing a Federal guarantee that we are
working toward healthful air throughout the country. Today's
witnesses will discuss some of their successes under this
approach.
When learning of the State's impressive work, we must
remember the importance of maintaining a strong Federal
backstop for clean air. There are many sources that the States
are not in a position to properly regulate, particularly those
sources which have out-of-State impacts. Additionally, it would
be impractical to have every State regulating the emissions of
cars, trucks, airplanes, and other mobile sources. Moreover,
not all States do an adequate job at cleaning up air pollution.
For these reasons, it is essential that we maintain a
balance in the Clean Air Act and keep a strong Federal rule in
ensuring clean air. As a series of audits from the EPA's Office
of Inspector General made clear a few years ago, States are
sometimes failing to police even the most basic requirements of
our Nation's clean air and water laws.
That is why I have fought over the years to maintain the
Federal role in the Clean Air Act and why big polluters try
year after year to weaken Federal oversight and enforcement.
And, unfortunately, the polluters all too often find allies to
help them with this effort.
In 1995, the Republican leadership in Congress attempted to
defund the environmental enforcement attorneys at the
Department of Justice. In 1998, the Republican leadership
attempted to cut EPA's enforcement budget by $10 million. Last
year, President Bush proposed to cut EPA's enforcement budget
by $25 million and reduced the EPA's enforcement staff by some
200 positions. And this year, the President has again proposed
slashing EPA's enforcement staff by over 200 positions.
This is a serious matter. Without adequate enforcement, our
environmental laws will undoubtedly fall short of their
intended goal.
I welcome today's witnesses and look forward to hearing
from them.
Thank you, Mr. Chairman.
Mr. Shimkus. The gentleman yields back his time.
[Additional statements submitted for the record follow:]
Prepared Statement of Hon. George Radanovich, a Representative in
Congress from the State of California
Good afternoon, and thank you Mr. Chairman for holding this hearing
today on the experience of state and local regulators in implementing
the Clean Air Act.
After reviewing the purpose of this hearing with local regulators,
I have three critical issues to discuss that are of great importance to
the San Joaquin Valley congressional district I represent in
California.
To begin, one of the major issues is that the EPA has not
recognized the San Joaquin Valley Air Pollution Control District's
local operating permit program as equivalent to the Title V program
under the Clean Air Act 1990 amendments.
The primary distinction between the federal Title V program and the
local programs in California is administrative. The federal regulation
prescribes numerous detailed administrative requirements, which pose
significant economic burden on the permitting agencies as well as many
small businesses, without any resultant air quality benefit. As a
result, I believe EPA should recognize the San Joaquin Valley air
district's permitting program as equivalent to the federal program.
Another issue of concern in my congressional district, is the
discounting of Emission Reductions Credits (ERCs) at the time of use,
as required by EPA. California uses a different model to bank ERCs and
can demonstrate that, taken as a whole, its programs result in greater
reduction in emissions without having to discount ERCs at the time of
use. Because of the viability of California's program, I believe EPA
should recognize and allow California the ability to continue its
current ERC discount program.
Finally, I also have an interest in the development of markets for
the trading of non-point source air pollution credits with fixed
sources. Several experiments in the trading of water pollution credits
between non-point and fixed sources have resulted in significant
improvement in overall water quality. That method should be applied to
the establishment of similar markets in the air quality arena to
determine whether like results occur. I know that there has been some
initial work done in this regard in California, and we ought to ensure
that we do not miss an opportunity to use market innovations to improve
overall air quality.
In closing, I look forward to hearing the experiences of our
witnesses and am ready to work with this Subcommittee and the
Administration to resolve Clean Air Act issues facing state and local
regulators.
______
Prepared Statement of Hon. W.J. ``Billy'' Tauzin, Chairman, Ciommittee
on Energy and Commerce
Today, Chairman Joe Barton's Subcommittee continues its series of
Clean Air Act hearings. I applaud Chairman Barton for assembling
another informative panel for our Members.
I, along with several other Members still on the Committee, crafted
the last major revision of Clean Air Act, the extremely successful 1990
Amendments. Looking back on that process a decade ago, I am proud of
the bipartisan nature in which the Committee conducted its business. I
know that, under Chairman Barton's leadership, that same bipartisan
tradition continues with the Energy and Air Quality Subcommittee's
current examination of the Clean Air Act.
I am eager to hear from today's panel of state and local air
regulators. Of course, it is the states that must take the policy we
establish here in Congress and make it work our there in the real
world. Accordingly, it is critical that we receive feedback from states
regarding what has, and has not, worked under the current program. Our
shared goal is cleaner air, with a strong economy. We can have both.
I thank the witnesses for taking time out of their busy schedules
to come to Washington and participate in today's hearing. I look
forward to their testimony.
Mr. Chairman, I yield back my time.
______
Prepared Statement of Hon. Bill Luther, a Representative in Congress
from the State of Minnesota
Mr. Chairman, thank you for holding this hearing today. State and
local regulators are our partners in trying to effectively implement
the Clean Air Act and it is essential that we hold hearings to get
their perspective on how to reach the goal of improving the nation's
overall air quality. I am especially interested in hearing about states
that have gone beyond current federal requirements in an attempt to
combat regional air quality concerns.
I am also very concerned about possible changes to the New Source
Review program that have been rumored for months. If the Administration
moves forward with plans to relax NSR standards, I believe it essential
that the strong clean air and public health standards under the current
program not be sacrificed. If there are fundamental problems to the NSR
program, as many have claimed, I believe it is this committee's
responsibility to hold investigative hearings on the matter. I look
forward to any insight today's state and local regulators may have on
the issue and I look forward to the testimony. Thank you.
Mr. Shimkus. Now I would like to ask the panel to take
their seats. And we would first like to hear from Ms. Dianne
Nielson, Executive Director of Utah Department of Environmental
Quality. You will have 7 minutes to give your opening
statements. Your full statement is in the record already. The
time is yours. Welcome.
STATEMENTS OF DIANNE R. NIELSON, EXECUTIVE DIRECTOR, UTAH
DEPARTMENT OF ENVIRONMENTAL QUALITY; CHRISTOPHER JONES,
DIRECTOR, OHIO ENVIRONMENTAL PROTECTION AGENCY; BROCK
NICHOLSON, CHIEF OF AIR QUALITY PLANNING, NORTH CAROLINA
DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES; ARTHUR L.
WILLIAMS, DIRECTOR, JEFFERSON COUNTY AIR POLLUTION CONTROL
DISTRICT, ON BEHALF OF STAPPA/ALAPCO; AND DOUG LEMPKE,
ADMINISTRATOR, AIR QUALITY CONTROL COMMISSION, COLORADO
DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT
Ms. Nielson. Thank you very much, Mr. Chairman, members of
the committee, for the opportunity to be here today to talk
about implementation of the Clean Air Act.
My name is Dianne Nielson. I am Governor Leavitt's
Executive Director for Environmental Quality in the State of
Utah, and I am appearing today on behalf of the State of Utah.
In Utah and throughout the west, visibility and air quality
represent essential components of western vistas, of our public
health and environmental protection, the quality and life and
spirit that represents the west. And we value those resources.
We protect them through State programs in partnerships with
States, tribes, and our Federal neighbors, through
organizations such as the Western Governors Association and the
Western Regional Air Partnership.
We have learned that we can best accomplish our air quality
and visibility goals, the objectives of the Clean Air Act and
laws and regulations, where we have programs that foster
innovation and flexible approaches to attainment and
maintenance of air quality goals and standards.
The Clean Air Act was based on the premise that we would
have a national government that set air quality standards and
States that develop the plans to implement those standards. Air
quality programs traditionally have relied on command and
control regulation for achieving those emissions reductions.
And while these approaches have achieved significant
environment benefit, benefit that we are all proud of and are
served well by, the economic incentive approaches to
regulation, such as market trading, also have a place in an
enforcement and compliance program, and they have the potential
to achieve greater emissions reductions while offering the
flexibility and cost savings of program implementation.
The Grand Canyon Visibility Transport Commission and the
Western Regional Air Partnership have demonstrated an ability
for States, tribes, industry, environmental representatives,
academia, local government, the EPA, and our Federal land
managers to be able to work together in partnership to develop
comprehensive regional air quality programs that work and that
serve as a model for future environmental management.
In April 1999, EPA adopted the Regional Haze Rule. In
September of 2000, the WRAP submitted an Annex to the report of
the Grand Canyon Commission which detailed the sulfur dioxide
emissions reduction milestone graph and a backstop emissions
trading program to ensure attainment of that visibility
improvement. On May 6 of this year, the EPA proposed a revision
to the Regional Haze Rule that would include that Annex.
The States who choose to implement a program under Section
309 of the Annex and the Regional Haze Program must submit
their plans by December 31, 2003, not much more than a year
from now. The work of the WRAP remains on schedule and will
enable us to meet that deadline, and we intend to do that.
The success of this process has been in no small measure a
result of the contributions that EPA has made to the
partnership and the willingness of Congress to fund that work,
and we appreciate both.
On a related note, in a recent decision from the U.S. Court
of Appeals regarding the Regional Haze Rule, while the court
rejected EPA's group BART determination, or best available
retrofit technology application, it did reaffirm the State's
role in implementing the program. And the market-based Section
309 program right now remains a viable option under the
Regional Haze Rule, perhaps now with even more regulatory
certainty.
Congressional multipollutant proposals and President Bush's
Clear Skies Initiative also provide opportunities for
flexibility for market-based reductions in air pollutants.
As this process moves forward, it is important, however, to
remember that a new national program can best serve the west if
it preserves the consensus on the sulfur dioxide reductions
which are attained within the WRAP's Annex.
And, furthermore, it should preserve the ability for States
to require additional emissions reductions, if they need those
to meet air quality standards, require new sources to utilize
best-available control technology at the time they are
constructed, and ensure that new sources do not create
visibility impairments or other air quality related problems
for nearby mandatory Class I areas.
We participated in the Joint House-Senate Committee
workshop on multipollutants, and we are prepared to continue to
work with Congress in this effort and the administration.
Where regulatory programs have failed, there have been some
basic problems that have been common to those situations. First
of all, the process of implementing innovative incentive-based
programs is sometimes so complex that the process itself
becomes a disincentive. While Project XL was a great idea for
piloting innovation, the process was so complex that it wasn't
an incentive program at all, but, in fact, a disincentive.
The economic incentive programs that are now being
considered offer opportunities for market-based strategies, but
the guidance document is 200 pages long. The process is, again,
a disincentive. Laws and regulations and policies are sometimes
contradictory. We find that in New Source Review, with respect
to offsets, and we find it also to some degree as we look at
integrated planning and the need to coordinate guidelines and
deadlines and conformity and transportation regulation.
Furthermore, frankly, sometimes the Federal regulatory
approvals, the process of approval, just takes too long. A non-
attainment area can qualify for redesignation after 3 years of
conforming monitoring data. However, the process of filing the
application and the review and approval take many years with
very little effect or benefit and added value.
The Clean Air Act should provide for automatic
redesignation by operation of law if an area has 3 years of
compliant air quality data and leaves State implementation plan
controls in place.
Again, thank you to the committee for taking this very
important issue under consideration, and I would be happy to
answer questions.
[The prepared statement of Dianne R. Nielson follows:]
Prepared Statement of Dianne R. Nielson, Executive Director Utah
Department of Environmental Quality
Mr. Chairman, Members of the Subcommittee, thank you for the
opportunity to appear before you today to discuss implementation of the
Clean Air Act. My name is Dianne Nielson, I serve as Governor Leavitt's
Executive Director for Environmental Quality, and I am appearing today
on behalf of the State of Utah.
In Utah and throughout the West, visibility and air quality
represent essential components of Western vistas, quality of life, and
spirit. We value these resources and work to protect them through state
programs, in partnership with state, tribal, and federal neighbors, and
through organizations such as the Western Governors' Association
<SUP>1</SUP> and the Western Regional Air Partnership (WRAP)
<SUP>2</SUP>, which Governor Leavitt co-chairs with Governor Chino of
the Pueblo of Acoma. We have learned that we can best accomplish our
air quality and visibility objectives if Clean Air laws, regulations,
and program implementation foster innovative, flexible approaches to
attainment and maintenance of air quality goals and standards. Through
the WRAP, states and tribes have been able to improve technical program
components, such as inventories, modeling and fire emissions, and work
to implement initiatives such as the SO2 Annex, pollution prevention
and renewable energy strategies, and a consensus-based recommendation
for EPA's Sulfur In Gasoline Rule. The environmental principles of
Enlibra <SUP>3</SUP> are being used to develop partnerships and solve
air quality and regional haze as well as other environmental problems.
---------------------------------------------------------------------------
\1\ For further information, see www.westgov.org
\2\ For further information, see www.wrapair.org
\3\ See Enlibra on www.westgov.org
---------------------------------------------------------------------------
The work of the WRAP should serve as the model for consensus-based
air quality initiatives and a commitment to workable regional air
quality solutions. The Clean Air Act is based on the premise that the
national government sets air quality standards, and states develop
plans to meet those standards. Although state plans rely on some
national programs (e.g., motor vehicle and fuel standards), states have
the responsibility for developing and implementing most of the programs
in these plans. Air quality regulations have traditionally relied on
command and control regulations for achieving emissions reductions.
While this approach has achieved significant environmental benefit,
economic incentive approaches to regulation, such as market trading,
have the potential to achieve greater emissions reductions while
offering flexibility and cost savings. The Grand Canyon Visibility
Transport Commission <SUP>4</SUP> and the WRAP have demonstrated the
ability of states, tribes, industry, environmentalists, academia, local
government, EPA, and federal land managers to work in partnership to
develop comprehensive regional air quality programs that work and serve
as a model for future environmental management.
---------------------------------------------------------------------------
\4\ See also www.wrapair.org
---------------------------------------------------------------------------
In April 1999, EPA adopted the Regional Haze Rule, including an
option for nine Western states to implement the recommendations of the
Grand Canyon Visibility Transport Commission, through Section 309. In
September 2000, the WRAP submitted an Annex to the report of the
Commission detailing a set of sulfur dioxide (SO2) emission reduction
milestones and a backstop emissions trading program. On May 6, 2002,
EPA proposed a revision to the Regional Haze Rule to incorporate this
sulfur dioxide program for the West. States that choose to implement a
309 program under the Annex must submit State Implementation Plans by
December 31, 2003. The work of WRAP remains on schedule to enable us to
accomplish that goal. The success of this process is in no small
measure related to EPA's work with states and tribes to develop and
implement WRAP initiatives and Congressional funding for the WRAP's
work. We appreciate the commitment to the partnership.
On a related note, the recent decision by the U.S. Court of Appeals
for the District of Columbia Circuit <SUP>5</SUP> regarding the
Regional Haze Rule, while rejecting EPA's ``group BART'' or Best
Available Retrofit Technology application, did reaffirm the state's
role in implementing the program. The market-based Section 309 program
remains a viable option, perhaps now with even more regulatory
certainty than a Section 308 program.
---------------------------------------------------------------------------
\5\ American Corn Growers Association v. EPA
---------------------------------------------------------------------------
Congressional multi-pollutant proposals and President Bush's Clear
Skies Initiative to reduce multiple pollutants from electric utilities
provide additional opportunity for more flexible, market-based
reductions in air pollution. Any new national program to address
emissions from electric utilities should preserve the Western consensus
on sulfur dioxide reductions contained in the WRAP's Annex.
Furthermore, any reform of current air quality laws and regulations
should preserve the ability of states to require additional emission
reductions if they are needed to satisfy Clean Air Act requirements,
require new sources to utilize the best control technology available at
the time they are constructed, and ensure that new sources do not
create visibility or other air quality related problems at nearby
mandatory federal Class I areas. We appreciated the opportunity to
participate in the joint House-Senate committee workshop on multi-
pollutant legislation, and we are prepared to continue to work with
Congress and the Administration to accomplish those goals.
Where regulatory and incentive-based air quality programs are not
working well, one or more of the following characteristics are common.
EPA has worked to understand and resolve state concerns with
implementation of the Clean Air Act. However, past conflicting laws,
regulations, and guidance, coupled with legal positions that fail to
accommodate the conflicts, and the cumbersome command and control
regulatory process make progress difficult.
<bullet> The process of implementing an innovative, incentive-based
program is so complex that it becomes a disincentive. For example,
EPA's Project XL was a great idea for piloting innovation. However, the
time required for the lengthy, complex application process is a
disincentive. Likewise, Economic Incentive Programs (EIPs) provide the
opportunity for market-based strategies. However, the guidance document
is 200 pages long and contains so many protections that only very
large, sophisticated state programs can afford to pursue EIPs.
<bullet> Laws, regulations and policies are contradictory.
Emissions offsets under the New Source Review (NSR) program offer a
timely example. Section 173 of the 1990 Clean Air Act (CAA) states that
actual emissions are required for offsets. Yet, 40 CFR 51 provides for
the use of allowable emissions in limited circumstances. NSR offset and
emissions banking programs, such as Utah's 10-year old program, have
been successful in providing real environmental results and economic
flexibility. While EPA has not produced new guidance or rulemaking to
address the apparent contradictions, the strict interpretation of the
CAA by EPA's Office of General Counsel leaves established offset
programs in disarray.
Integrated planning requires coordinated or flexible deadlines for
various regulatory decisions. The ability to address regional haze
along with PM2.5 and ozone, pollutants that have the same sources and
similar technical analyses, makes sense. Conformity of transportation
and air quality plans is also appropriate. However, conformity
regulations allow only 12-18 months to switch to new mobile emissions
models. Where the models represent significant change or increased
emissions factors, as they normally do, major revisions in
transportation and air quality plans are also required. In those cases
12-18 months is not enough time. Flexibility in integrated planning and
transportation conformity deadlines would facilitate program goals.
<bullet> Federal regulatory approvals take too long. The process of
development and approval of Maintenance Plans and Attainment
Redesignations is too complex and lengthy. A non-attainment area can
apply for redesignation with three years of compliant monitoring data.
However, the process of application and administrative review and
approval takes years, with little or no environmental benefit or added
value. Moreover, in the interim, states are subject to costly,
analytical and legal requirements designed for areas that have not
attained national air quality standards. The CAA should provide for
automatic redesignation by operation of law if an area has three years
of compliant air quality data and leaves State Implementation Plan
controls in place.
In conclusion, I appreciated the Subcommittee's interest in
implementation of the Clean Air Act, and would be willing to answer
questions and provide additional information.
Mr. Shimkus. I thank you for your testimony and your
punctuality on the clock, and now would like to recognize Mr.
Chris Jones, who is the Director of the Ohio Environmental
Protection Agency.
My colleagues from Ohio would like to welcome you, as I do,
and you have 7 minutes. Your full statement is in the record.
STATEMENT OF CHRISTOPHER JONES
Mr. Jones. Thank you, Mr. Chairman, and it is good to see
good Ohio representation here on the committee.
I appreciate the opportunity to reflect upon my experience
as a regulator implementing the Clean Air Act, and I would like
to begin with a simple but often overlooked observation. That
is, the Clean Air Act has successfully produced cleaner air
across America, much cleaner air. Perhaps nowhere is this more
evident than in the State of Ohio.
We are reminded that Time magazine once declared
Steubenville, Ohio, the city with the dirtiest air in the
Nation, little wonder since in 1975 alone Steubenville had 32
air pollution alerts. Ohio was the first State to use emergency
powers granted under the Clean Air Act to temporarily stop
production at manufacturing facilities in order to alleviate a
particularly severe air pollution episode in Steubenville.
Given this history, I am continually amazed and dismayed by
the public perception that the condition of the environment has
gotten worse over the past 10, 20, or 30 years. That is far
from the truth because of the strong Federal laws, including
the Clean Air Act, and because of competent State
administration of those laws.
With regard to air quality, for example, Ohio's trend
analysis shows over the past 20 years that carbon monoxide
levels have reduced more than 61 percent, sulfur dioxide levels
reduced an average of 52 percent, nitrogen oxide levels are
down 15 percent, and ozone levels in Ohio have been reduced by
an average of 13 percent.
In addition, lead levels have decreased by more than 95
percent from 1979 to 1998. From 1972 to 1987, the total
particulate matter levels dropped by 45 percent. And
PM<INF>10</INF> decreased by 22 percent from 1989 to 2000.
These successes are clear evidence that much of the Clean Air
Act works and works well, and I would like to mention a few
particular elements.
The acid rain program--by all accounts, Congress' approach
toward reducing sulfur dioxide and nitrogen oxides has been a
success story. The reductions were achieved on schedule. There
is widespread compliance with the standards. The cost of
compliance is lower than expected, and the program operates
well with a relatively small staff.
State requirements for the 1-hour ozone standard--another
area in which the 1990 amendments took an innovative approach
to recognizing regional differences was the attainment
requirements for the 1-hour ozone standard. Congress created
various categories ranging from marginal to extreme, depending
on the level of ozone pollution.
The areas with higher levels of ozone had additional time
to come into compliance, recognizing the complexity of the
situation. With additional time came more stringent
requirements, which were both appropriate and necessary to
achieve eventual attainment. In the case of Ohio, we started
with seven non-attainment areas for ozone, four moderate and
three marginal.
In each case, we were able to meet the 1-hour ozone
standard by the prescribed date, except for Cincinnati where we
were granted two 1-year extensions that are allowed under the
Act. Today, all of Ohio's counties measure attainment with the
1-hour ozone standard, again pointing to the overall
improvement in air quality that resulted from the Clean Air
Act.
It is worth noting, however, that not all areas of the
Nation have complied with the 1-hour standard. As U.S. EPA
works to develop its implementation plan for the new 8-hour
standard, the issue of a level playing field arises between
areas that have yet to meet the old, less stringent standard,
and those that have complied and now face additional controls.
Since the early 1970's, there have been large reductions in
emissions from automobiles. This continuing improvement has
been the result of more efficient engines, emission control
technologies, and cleaner burning fuel. And, of course, there
have been some unintended consequences, such as the MTBE
contamination of groundwater and localized price spikes.
But overall the provisions of the Clean Air Act have
combined to keep emissions from automotive sources in check,
despite a significant increase in vehicle miles traveled. While
these components of the Clean Air Act have resulted in
demonstrable benefit, there are other areas proving to be
problematic in their implementation. Unfortunately, the result
is the provisions of the Act were well conceived in concept,
are failing to produce the environmental gains that were
promised.
With respect to the Title V program, the Title V permit was
intended to provide one document that identifies all of the air
regulations a facility must meet. Clearly, this is a sensible
approach that can ease compliance monitoring for regulators and
for the regulated community. However, U.S. EPA has expanded the
required content of the Title V permit to the point that it is
excessively lengthy, cumbersome, and confusing, precisely the
difficulties I believe Congress sought to avoid in mandating a
single permit.
One source of the problem is that Federal regulators are
intent on assuring that all portions of the Title V permit are
federally enforceable. While I understand the need for Federal
enforceability of key provisions, this virtual obsession with
duplicative oversight suggests a lack of confidence in the
States that undermines our partnership relationship. At the
same time, it burdens the States with excessively onerous
permit issuance demands.
For example, Ohio EPA recently issued a draft permit for a
refinery that's over 600 pages long. Another permit in
development, at last count, was 820 pages long. In addition,
after initially instructing States to omit insignificant
sources from Title V permits, U.S. EPA reversed course and is
forcing States to focus resources on insignificant sources.
Ohio facilities currently operate approximately 11,000
larger emissions units at 760 Title V facilities. An additional
22,000 insignificant sources are exempt by State rule from the
Federal side of the permit, although they are subject to State
oversight. U.S. EPA recently notified us that our rules are
deficient and must be modified, so that these 22,000 additional
sources may undergo additional review and scrutiny by the
Federal Government.
I would submit to you that that defies common sense. These
sources are called insignificant for a reason. Yet we are
charged with increasing the number of sources covered by the
Federal side of the Title V permits by 200 percent. With
virtually every State behind schedule for issuing Title V
permits, doesn't it make more sense to move forward and
complete the permitting process for the significant sources
rather than slowing down the entire process by bringing in
large numbers of sources that are, by definition, insignificant
and are already regulated by States.
With respect to the MACT standards, Congress set a very
aggressive goal for U.S. EPA to issue all of the rules for air
toxics within 10 years. We met the early deadlines, and U.S.
EPA should be commended. However, we have fallen behind. It
doesn't make sense to have 50 States now writing MACT standards
for a number of sources that didn't meet the level, and we
ought to look at that.
Finally, with respect to redesignation, I would like to
echo Ms. Nielson's comments. We have two counties in Ohio that
haven't had a violation of the sulfur dioxide standard in 20
years, and we can't get them redesignated because two companies
in--one company in each of those counties doesn't meet the
standard. It doesn't make sense that we can't redesignate those
counties.
The Clean Air Act is complicated. It is multifaceted.
Congress can be proud of the extensive air quality benefits it
has produced. As States, we share your interest and the
interest of U.S. EPA in making it work. I appreciate the
opportunity to testify.
[The prepared statement of Christopher Jones follows:]
Prepared Statement of Christopher Jones, Director, Ohio Environmental
Protection Agency
Mr. Chairman, members of the subcommittee, thank you for this
opportunity to reflect upon my experience as a regulator with Clean Air
Act implementation. I would like to begin with a simple but often
overlooked observation: the Clean Air Act has successfully produced
cleaner air across America. Much cleaner air. Perhaps nowhere is this
more evident than in the State of Ohio.
As the Ohio Environmental Protection Agency prepares to celebrate
its 30th anniversary this October, we are reminded of our past. We are
reminded that Time magazine declared Steubenville, Ohio, the city with
the dirtiest air in the nation. Little wonder, since in 1975 alone,
Steubenville had 32 air pollution alerts. These alerts were issued when
air quality was so unhealthy that people at risk were advised to remain
indoors. Ohio was the first state to use emergency powers granted under
the Clean Air Act to temporarily stop production at manufacturing
facilities in order to alleviate a particularly severe air pollution
episode in Steubenville.
Given this history, I am continually amazed--and dismayed--by the
public perception that the condition of the environment has gotten
worse over the past ten, twenty or thirty years. That is far from the
truth, because of strong federal laws including the Clean Air Act, and
because of competent state administration of those laws.
With regard to air quality, for example, Ohio's trend analysis
shows over the past 20 years:
<bullet> Carbon monoxide levels reduced more than 61 percent;
<bullet> Sulfur dioxide levels reduced an average of 52 percent;
<bullet> Nitrogen dioxide levels down 15 percent;
<bullet> Ozone levels in Ohio have been reduced by an average of 13
percent.
In addition:
<bullet> Lead levels decreased by more than 95 percent during the 1979-
1998 period.
<bullet> From 1972 to 1987, the total particulate matter levels dropped
by 45 percent.
<bullet> Particulates (PM<INF>10</INF>) decreased by 22 percent from
1989 to 2000.
These successes are clear evidence that much of the Clean Air Act
works and works well. I'd like to speak to particular elements of the
Act that have been especially effective.
Acid Rain Control Program--By all accounts, Congress' approach
toward reducing sulfur dioxide and nitrogen oxides has been a success
story. The reductions were achieved on schedule, there is widespread
compliance with the standards, the cost of compliance is lower than
expected, and the program operates well with a relatively small staff.
The market-based trading program was innovative in its approach to
dealing with the regional nature of many air pollution problems. Its
success therefore provides a model that can be used in the future for
other circumstances where there are significant reductions to be
achieved over a wide area.
State Requirements for One-hour Ozone--Another area in which the
1990 Amendments to the Act took an innovative approach to recognizing
regional differences was the attainment requirements for the one-hour
ozone standard. Congress created various categories ranging from
marginal to extreme, depending on the level of ozone pollution. The
areas with higher levels of ozone had additional time to bring come
into compliance, recognizing the complexity of the situation. With the
additional time came more stringent requirements, which were both
appropriate and necessary to achieve eventual attainment.
In the case of Ohio, we started with seven nonattainment areas for
ozone (four moderate, three marginal). In each case, we were able to
meet the one-hour ozone standard by the prescribed date, except for
Cincinnati where we were granted two one-year extensions that are
allowed for under the Act. Today, all of Ohio's counties measure
attainment with the one-hour ozone standard, again pointing to the
overall improvements in air quality that have resulted from the Clean
Air Act.
It is worth noting, however, that not all areas of the nation have
complied with the one-hour standard. As U.S. EPA works to develop its
implementation plan for the new eight-hour standard, the issue of a
level playing field arises, between areas that have yet to meet the
old, less stringent standard and those that have complied and now face
additional controls.
Reductions in Vehicle Emissions--Since the early 1970s, there have
been large reductions in emissions from automobiles. This continuing
improvement has been the result of more efficient engines, emission
control technologies, and cleaner burning fuel. Of course, there have
been some unintended consequences such as MTBE contamination of
groundwater and localized price spikes in areas where specially
formulated fuels are mandated. But overall, the provisions of the Clean
Air Act have combined to keep emissions from automotive sources in
check despite a significant increase in vehicle miles traveled.
While these components of the Clean Air Act have resulted in
demonstrable environmental benefit, others are proving to be
problematic in their implementation. Unfortunately, the result is that
provisions of the Act that were well-conceived in concept are failing
to produce the environmental gains they promised.
Title V Permit Program--The Title V permit was intended to provide
one document that identifies all the regulations a facility must meet.
Clearly, this is a sensible approach that can ease compliance
monitoring for regulators and for the regulated community. However,
U.S. EPA has expanded the required content of the Title V permit to the
point that it is excessively lengthy, cumbersome, and confusing--
precisely the difficulties I believe Congress sought to avoid in
mandating a single permit.
One source of the problem is that federal regulators are intent on
assuring that all portions of the Title V permit are federally
enforceable. While I understand the need for federal enforceability of
key provisions, this virtual obsession with duplicative oversight
suggests a lack of confidence in the States that undermines our
partnership relationship at the same time that it burdens the States
with excessively onerous permit issuance demands. For example, Ohio EPA
recently issued a draft permit for a refinery that is over 600 pages
long. Another permit in development was 820 pages long at last count.
In addition, after initially instructing States to omit
insignificant sources from Title V permits, U.S. EPA reversed course
and is forcing States to focus resources on insignificant sources. Ohio
facilities currently operate approximately 11,000 larger emission units
at 760 Title V facilities. An additional 22,000 insignificant sources
are exempt by state rule from the federal side of the Title V permit,
although they are subject to state oversight. U.S. EPA recently
notified us that our rules are deficient and must be modified so that
these 22,000 additional sources may undergo additional review and
scrutiny by the federal government.
I submit that this defies common sense. These sources are called
``insignificant'' for a reason. Yet we are charged with increasing the
number of sources covered by Title V permits by 200%. With virtually
every State behind schedule for issuing Title V permits, doesn't it
make more sense to move forward and complete the permitting process for
the ``significant'' sources, rather than slowing down the entire
process by bringing in large numbers of sources that are by definition
``insignificant?''
This is just one example of how U.S. EPA has changed course in the
middle of the Title V process. This lack of continuity is frustrating
to the States and is a major contributor to our being unable to meet
the original timeframes for permit issuance. For example, in 1995 Ohio
received a full approval of our Title V program, which means U.S. EPA
found our program acceptable in its entirety. Last November, some six
years later, we were told in a letter from U.S. EPA that we must change
our basic Title V program in seven different ways or risk losing the
program.
In other words, in 1995 U.S. EPA told us we have a completely
acceptable program. Now, despite there being no change in the Clean Air
Act, we are told that the same program is deficient. Some of the issues
raised in the letter had never before been identified by U.S. EPA as a
concern. Others were specifically addressed as a part of the delegation
process. Instead of allowing us to use our resources to issue Title V
permits under the program they themselves approved, U.S. EPA is forcing
us to keep tinkering with the program itself.
The Inspector General's Office of U.S. EPA has reviewed the
workings of the Title V program and has identified several areas for
improvement, including simplified terms and conditions. As a first
step, these recommendations should be implemented.
Second, the fee structure and funding for the Title V permit
program should be reviewed and revised. Although the current $25 per
ton adjusted to the Consumers Price Index was sufficient at the
beginning of the program, it no longer produces sufficient revenue to
support the program. This is in part due to the increasing
responsibilities associated with these permits and also to the fact
that states like Ohio are requiring additional controls, which reduce
emissions and improve air quality but lower our fee income.
MACT Standards--In the Clean Air Act Amendments, Congress set a
very aggressive goal for U.S. EPA to issue all the rules for air toxics
within ten years. U.S. EPA was able to meet earlier MACT issuance
deadlines and should be commended for those actions. However, they have
fallen behind on the issuance of the ``10 year'' MACT standards. Under
112(j) of the Clean Air Act, if U.S. EPA fails to issue the MACT
standards, then states will have the responsibility to issue them on a
``case-by-case'' basis. This will obviously lead to an inconsistent
program with unavoidable inequities for the regulated community, as
well as another drain on State resources without financial
compensation. More importantly, it subverts the intent of a having a
national standard, and thereby makes it less likely that the full
potential of air quality improvements envisioned by Congress will be
achieved.
Requirements for Redesignation--The attainment or nonattainment
status of an area should reflect actual air quality. Ohio has not
experienced a violation of the ambient air quality standards for sulfur
dioxide for over twenty years, yet two counties in Ohio (Lucas and
Cuyahoga) remain designated nonattainment. U.S. EPA procedural rules
make it very difficult to redesignate in both these cases. In both
counties, a single company in does not comply, so U.S. EPA will not
redesignate. (One of those companies is litigating its compliance
status.) The rules governing attainment designation should be eased to
be better able to reflect actual air quality.
The Clean Air Act is a complicated, multi-faceted piece of
legislation. Congress can be proud of the extensive air quality
benefits it has produced. The States share your interest--and the
interest of U.S. EPA--in continued progress. Our suggestions for
administrative improvements are offered in the spirit of enabling the
Clean Air Act to achieve its full potential.
Thank you. Mr. Chairman.
U.S. Environmental Protection Agency
Region 5--Air and Radiation Division
November 21, 2001
Correspondence
(AR-18J)
Robert F. Hodanbosi, Chief
Division of Air Pollution Control
Ohio Environmental Protection Agency
122 South Front Street
P. O. Box 1049
Columbus, Ohio 43266-1049
Dear Mr. Hodanbosi: This letter is to inform you of the action
required by the Ohio Environmental Protection Agency (OEPA) to avoid an
April 1, 2002, United States Environmental Protection Agency (USEPA)
publication of a notice of program deficiency for the Ohio Title V
operating permit program. As you know, we published a Notice of Comment
Period on operating permit program deficiencies in the Federal Register
on December 11, 2000. Pursuant to the settlement agreement discussed in
that notice, USEPA will publish notices of program deficiencies for
individual operating permit programs, based on the issues raised that
we agree are deficiencies. In that notice, USEPA committed to
publishing these notice of program deficiencies for fully approved
programs, such as Ohio's program, by April 1, 2002.
USEPA received comments concerning the Ohio's Title V program on or
before the March 12, 2001, deadline. We have reviewed these comments
and, based on our preliminary review, have identified the issues on
which Ohio must have taken significant action to avoid Title V notice
of program deficiency on April 1, 2002. These issues include;
1. The language of Ohio Administrative Code (OAC) 3745-77-07
(A)(3)(c)(ii) and (iii) limits the reporting of deviations to those
which can be detected by the compliance method required by the permit,
in violation of the Credible Evidence rule.
2. The Title V permits exempt the reporting of the malfunctions
under OAC 3745-15-06(B) from the six-month monitoring reports required
by 40 C.F.R. 70.6(a)(3)(iii).
3. The six-month monitoring reports do not require permitees to
submit reports of all required monitoring as required by 40 C.F.R.
70.6(a)(3)(iii).
4. All of initial Title V permits have not been issued.
5. Title V permits must contain monitoring, recordkeeping,and
reporting requirements sufficient to assure compliance.
6. Applicability of 112(r) and Title IV in the Title V permit.
7. Identification of origin and authority of each permit term and
condition in the Title V permit.
8. The statements of basis must conform to the guidelines we will
provide to you under separate cover. We enclosed a more detailed
discussion of these issues with this letter.
We have been working with your staff concerning these comments and
are pleased with Ohio's intent to correct many of these potential
deficiencies within a reasonable timeframe. We would like for you to
provide us with confirmation of the issues that you are planning to
resolve,along with timeframes for these resolutions, so that we will be
better prepared to work with you to achieve your goal. Please be aware
USEPA reserves the right established in the Act and 40 C.F.R. 70.10 to
publish a notice of program deficiency for any or all of these
deficiencies at a later date if Ohio fails to address these
deficiencies adequately and expeditiously. USEPA also reserves the
right to publish subsequent notice of program deficiencies concerning
other deficiencies in the Ohio Title V program that were not identified
during the comment period ending March 12, 2001.
We look forward to continued cooperation between our offices on
Title V program issues. If you have any questions, please contact
Genevieve Damico or Kaushal Gupta, of my staff,at (312) 353-4761 and
(312) 886-6803 respectively.
Sincerely yours,
Bharat Mathur, Director
Air and Radiation Division
Enclosure
______
Enclosure
issues concerning deficiencies in the ohio title v operating permits
program
The language of Ohio Administrative Code (OAC) 3745-77-
07(A)(3)(c)(ii) and (iii) limits the reporting of deviations to those
which can be detected by the compliance method required by the permit.
OAC 3745-77-07(A)(3)(c)(ii) and (iii) states:
(ii) That each report submitted under paragraph (A)(3)(c)(i)
of this rule shall clearly identify any deviations from permit
requirements since the previous report that have been detected
by the compliance method required under the permit and any
deviations from the monitoring, recordkeeping, and reporting
requirements under the permit;
(iii) That each permit shall require prompt reporting of
deviations from federally enforceable permit requirements that
have been detected by the compliance method required under the
permit, including deviations attributable to upset conditions
as defined in the permit, the probable cause of such
deviations, and any corrective actions or preventive measures
taken. Verbal reports under this paragraph shall be submitted
to the director as soon as practicable, consistent with
diligent verification and certification, but in no case later
than three business days after discovery of the deviation, with
a follow up written report within thirty days after such
discovery.
The underlined portions of the language demonstrates that Ohio's
rules do not require permittees to consider all credible evidence when
the permittee reports deviations from the permit requirements. Ohio
must remove this language from OAC 3745-77-07(A)(3)(c)(ii) and (iii).
The Title V permits exempt the reporting of the malfunctions under
OAC 3745-15-06(B) from the six-month monitoring reports required by 40
C.F.R. 70.6(a)(3)(iii).
Ohio's permits provide that quarterly reports satisfy the
requirements pertaining to prompt reporting of all deviations (Part I
A.1.c.ii). For this reason, the quarterly reports must meet the
criteria for deviation reports. Both 40 C.F.R. 70.6(a)(3)(iii)(B) and
OAC 3745-77-07(A)(3)(c)(iii) require permittees to report promptly
deviations from permit requirements. Yet, Part I.A.1.c.ii of the Ohio
Title V permits specifically exclude from the quarterly reporting
requirement deviations resulting from malfunctions reported in
accordance with OAC rule 3745-15-06, a part of the Ohio State
Implementation Plan. The reporting aspects of the Ohio SIP, OAC 3745-
15-06, do not alter the Title V requirement to report all deviations,
including malfunctions, in the Title V quarterly report. Ohio must
revise Part I A.1.c.ii of the Title V permits to no longer exclude the
reporting of deviations resulting from malfunctions in the quarterly
deviation reports. OEPA may choose to require that the permittee simply
reference the malfunction report required by OAC 3745-15-06 by
requiring a similar report to Section D of USEPA's Part 71 six-month
report form.
The six-month monitoring reports do not require permitees to submit
reports of any required monitoring as required by 40 C.F.R.
70.6(a)(3)(iii).
Ohio's permits provide that quarterly reports satisfy the six month
reporting requirements (Part I A.1.c.ii). For this reason, the
quarterly reports must meet the same criteria as the six-month reports.
Both 40 C.F.R. 70.6(a)(3)(iii) and OAC 3745-77-07(A)(3)(c)(i) require
that the permittee submit a report of the results of all required
monitoring. Ohio's quarterly reports only include a compilation of the
deviations being reported by the permittee. This does not satisfy the
requirement to submit a report of any required monitoring. Ohio may
choose to resolve this issue by requiring permittees to submit reports
similar to those required by Section C of USEPA's Part 71 six-month
report form.
Furthermore, these same rules require that all applicable reporting
requirements must include a semiannual (or more frequent) reporting
requirement. The rule allows no exceptions. Therefore, all federally
enforceable reporting requirements in a Title V permit must require at
least semiannual submission of the reports. Some of Ohio's Title V
permits currently require only annual submission of certain reports;
Ohio must revise these permits to submit reports at least semiannually.
All of the Title V permits have not been issued.
Section 503(c) of the Clean Air Act clearly requires states to
issue all of the original Title V permits within 3 years of program
approval. We do understand that there are many reasons why Ohio was
unable to complete the issuance of these permits within the required 3-
year timeframe. However, because the success of this program is
dependant on the issuance of the Title V permits, Ohio must develop by
March 2002 a schedule for permit issuance, including milestones, to
ensure issuance of all outstanding initial permits no later than
December 1, 2003. Pamela Blakley provided an example of a permit
issuance schedule in an e-mail on November 7, 2001.
Title V permits must contain monitoring, recordkeeping, and
reporting requirements sufficient to assure compliance.
A. Title V permits contain monitoring and recordkeeping conditions
on the state-only enforceable side when those conditions should be made
federally enforceable.
Some Title V permits incorrectly make monitoring and
recordkeeping provisions enforceable only by the state when
those provisions are federally enforceable. Because a federal
rule, 40 C.F.R. 70.6(a)(3)(i)(B),requires the permit to contain
all monitoring and recordkeeping necessary to assure
compliance, such monitoring and recordkeeping must be on the
federally enforceable side of the permit.
One example of this problem comes from the draft Title V
permit for Cleveland Electric Illuminating Avon Lake Power
Plant (facility ID 0247030013, issued January 30, 2000). The
permit requires the source to operate and maintain a
temperature monitor in order to measure the temperature of
gases entering an electrostatic precipitator. Because the
temperature of these inlet gases will indicate whether the
source is complying with federally enforceable emission limits
in the permit, the requirement to operate and maintain the
temperature monitor also is federally enforceable. However, the
requirement as written in the draft permit is currently
enforceable only by the state.
In another example, the same permit contains a state-only
requirement for the source to maintain a logbook for a
federally required continuous monitoring system. Such a
requirement should be federally enforceable, even though there
may already be federally enforceable requirements sufficient to
ensure proper operation of the monitoring system. Requirements
that will ensure the proper operation of federally required
monitoring systems are part of the underlying requirements, and
therefore are federally enforceable.
B. Title V permits must contain monitoring, recordkeeping, and
reporting requirements sufficient to assure compliance with all
applicable limits. The permitting authority must write these
requirements in sufficient detail to allow no room for interpretation
or ambiguity in meaning.
According to 40 C.F.R. 70.6(c)(1), Title V permits must
contain monitoring, recordkeeping, and reporting requirements
sufficient to assure compliance with the terms and conditions
of the permit. These requirements must involve the best
compliance methods practicable, taking into consideration the
source's compliance history, likelihood of violating the
permit,and feasibility of the methods.
Ohio's Title V permits currently rely too heavily on AP-42
emission factors. These emission factors were not meant to be a
basis of compliance with part 70. They are a last resort in
compliance assurance (and are not a viable option at all when
their reliability ratings are low). In most instances in which
AP-42 emission factors are used, more reliable compliance
methods are available.
The permitting authority need not impose onerous compliance
assurance requirements, but it cannot allow sources to use
emission factors as an escape from monitoring, recordkeeping,
and reporting activities.
In addition to implementing appropriate compliance methods,
the monitoring, recordkeeping, and reporting requirements must
be written in sufficient detail to allow no room for
interpretation or ambiguity in meaning. Requirements that are
imprecise or unclear make compliance assurance impossible.
For example, some Title V permits require monitoring devices
to be ``installed, calibrated, operated, and maintained in
accordance with the manufacturer's specifications,'' without
explaining in detail the steps in these processes or the
manufacturer's specifications. These steps must be explained in
detail in order for such a requirement to have any meaning. The
description of plant activities need not be exhaustive, but
they must be specified in the permit if they would
significantly affect the source's ability to comply. Leaving
the source to follow ``manufacturer's specifications'' does not
help direct the source toward compliance.
In some instances, manufacturer's specifications may not even
exist. Many Title V permits contain ambiguous phrases, such as
``if necessary.'' For example: ``If necessary, the permittee
shall maintain monthly records . . .'' The phrase ``if
necessary'' should be removed altogether; the permit should
specify exactly what is necessary. In this example, the permit
should either precisely explain the situation that would
necessitate monthly records, or simply require monthly records
at all times. Ambiguous language hampers the source in its duty
to independently assure compliance, and leaves legal
requirements open to interpretation.
C. Title V permits do not require the submission of an emission
control action plan until 60 days after final issuance of the permit,
in violation of OAC 3745-25. Although emission control action plans may
no longer be critical due to improvements in air quality, Ohio should
resolve the deficiency by changing the permits to comply with the rule
or by changing the rule itself.
Applicability of 112(r) and Title IV in the Title V permit.
We understand from a October 16, 2001, e-mail from Tom Rigo to
staff, that OEPA is immediately making changes to the Title V permit to
state applicability to 112(r) and Title IV. We are appreciative of this
effort and look forward to the timely incorporation of this language in
the Title V permits.
Identification of origin and authority of each permit term and
condition in the Title V permit.
40 C.F.R. 70.6 (a)(1)(i) requires that the Title V permit state the
origin of and authority for each term and condition in the permit.
Ohio's permits do list the origin and authority on an emission unit
basis. It is clear that part 70 and the OAC envision that the origin
and authority would be listed on a term and condition basis. For this
reason we would like confirmation that OEPA is planning on revising the
Title V permit format to include the origin of and authority for each
term and condition.
The statements of basis must conform to the guidelines we will
provide to you under separate cover.
40 C.F.R. 70.7(a)(5) requires that each draft permit must be
accompanied by a statement that sets forth the legal and factual basis
for the draft permit conditions. Although we recognize that there is
little information available to judge the adequacy of a statement of
basis besides this requirement, we concur with the comments made by the
commentors alleging that Ohio's statements of basis do not meet the
intent of part 70. We are, therefore, committing to provide OEPA with
some guidelines that will be useful in meeting the intent of part 70.
OEPA must follow these guidelines in preparing all future statements of
basis to resolve this issue.
______
Office of Inspector General--Evaluation Report
AIR
epa and state progress in issuing title v permits
Report No. 2002-P-00008, March 29, 2002
Executive Summary
To reduce violations of air pollution laws and improve the
enforcement of those laws, Title V of the 1990 Clean Air Act (Act)
requires that all major stationary sources of air pollutants obtain a
permit to operate. Translating and consolidating the applicable air
pollution requirements for major stationary sources into site-specific,
legally enforceable permit limits is a complex, time-consuming, and
resource intensive process. Nonetheless, in passing Title V, Congress
provided the statutory authority, fee collection authority, and
expectation that all Title V permits would be issued by November 1997,
seven years after it passed the Act. However, over a decade later, only
70 percent of the sources have been issued Title V permits.
purpose
The Office of Inspector General (OIG) initiated this evaluation at
the request of U.S. Environmental Protection Agency (EPA) Region 5
management because they were concerned about the progress state and
local air pollution control agencies (state and local agencies) were
making in issuing Title V permits under the Act. In planning the
evaluation, we expanded the scope to include other EPA regions and
states because problems in issuing Title V permits were not isolated to
Region 5. The objectives of our evaluation were to identify:
<bullet> Factors delaying the issuance of Title V permits by selected
state and local agencies, and
<bullet> Practices contributing to more timely issuance of permits by
selected state and local agencies.
results in brief
Lack of State Resources, Complex EPA Regulations, and Conflicting
Priorities Contributed to Permit Delays
Nationwide, as of December 31, 2001, state and local agencies had
issued 70 percent (13,036 of 18,709) of the required Title V permits.
Of 112 state and local agencies approved to administer the Title V
program, only 4 state and 17 local agencies had issued all of their
Title V permits. In the six states we reviewed, key factors delaying
the issuance of Title V permits included insufficient state resources,
complex EPA regulations, and conflicting state priorities.
<bullet> Insufficient resources. Of the six state agencies
reviewed, three had problems with resources or staffing. For example,
the Massachusetts Department of Environmental Protection collected $1.3
million in Title V fees in 2000, but program costs were $1.9 million
for the year.
<bullet> Complex regulations and limited guidance. In each of the
six state agencies reviewed, one or more permit writers reported having
difficulty understanding and resolving questions on EPA's complex air
toxics regulations and reported having difficulty using EPA's limited
guidance to establish adequate site-specific monitoring requirements.
<bullet> Conflicting priorities. In addition to Title V operating
permits, each of the state agencies also issue construction permits to
new sources and to sources that are making significant changes to their
operations permits that they must act on within specified time limits.
Two agencies took deliberate action to ensure that staff were not
forced to work on construction permits rather than Title V operating
permits.
As a result, many sources do not have the operating permits that
were designed to reduce source violations, improve regulatory agency
enforcement abilities, establish site-specific monitoring requirements,
increase source accountability, and ensure adequate public involvement
in the permitting process.
EPA Oversight And Technical Assistance Had Limited Impact
EPA did not provide adequate oversight and technical assistance to
state and local Title V programs, and did not use the sanctions
provided in the Act to foster more timely issuance of Title V permits.
<bullet> Fee reviews of many state and local agencies not
performed. From January 1998 to December 2001, EPA had only evaluated
28 of 112 state and local agencies regarding how they were assessing
and managing Title V fees. These reviews are needed to identify
potential resource issues at state and local agencies.
<bullet> Revisions to Title V regulations not completed. While EPA
issued regulations in 1992, due to concerns about selected provisions,
EPA has been working to revise them since 1994. State officials
indicated that dealing with repeated draft and proposed revisions to
Title V regulations introduced an element of uncertainty that also
contributed to delays in issuing Title V permits.
<bullet> Insufficient data collected. State and local agencies were
not required to consistently provide the information EPA identified as
being needed to adequately oversee the Title V program. EPA collected
information from all state and local agencies on the number of permits
issued, but did not maintain an adequate database on specific delays in
issuing individual permits.
<bullet> Act's provisions to take action not used. Although most
state and local programs did not issue their permits within three years
of EPA approval, EPA has not used the Act's provisions for issuing
notices of deficiency, sanctions, and program withdrawal when state and
local agencies have missed the Act's deadline for issuing initial Title
V permits.
As a result, EPA oversight had little impact on the delays
experienced by state and local agencies. The perspective of senior EPA
officials is that they face a dilemma in trying to take more stringent
actions, such as sanctions against state and local agencies, while
adhering to agency policies to work with state and local agencies as
partners in environmental protection to the maximum extent possible.
Also, they believe that the Title V program has limited incentives for
both states and industries to proactively address the existing permit
backlog.
Management Support, Partnerships, and Site Visits Contributed to More
Timely Issuance of Title V Permits
In the six states we reviewed, three practices that contributed to
the progress that agencies made in issuing Title V operating permits
were:
<bullet> State agency management support for the Title V program.
<bullet> State agency and industry partnering.
<bullet> Permit writer site visits to facilities.
Each of these practices contributed to the writing and issuance of
Title V operating permits on a more timely basis. Employing one or more
of these practices, along with sufficient resources, contributed to
Florida and Pennsylvania completing most of their permits before other
states. However, EPA has not taken a leadership role in collecting and
disseminating information on practices that show promise of helping
agencies issue permits on a more timely basis.
recommendations
We recommend that the Assistant Administrator for Air and
Radiation:
<bullet> Require EPA regions to conduct fee protocol reviews.
<bullet> Revive agency efforts to make air toxics standards easier to
incorporate into Title V permits.
<bullet> Complete the revisions to the Title V regulations.
<bullet> Identify and collect information from regions, states, and
local agencies to adequately oversee the Title V program.
<bullet> Develop and execute a national plan for addressing
implementation deficiencies in Title V programs, including
specifying the actions EPA will take to address missed
milestone dates for issuing the initial permits.
<bullet> Develop a plan for identifying, collecting, and disseminating
promising practices on the implementation of Title V programs.
Detailed recommendations are contained at the end of chapters 3 and
4.
agency actions
In his March 26, 2002 response to the draft report, the Assistant
Administrator stated that while state and local agencies have made good
progress in issuing initial Title V permits, there is still more work
to do. He stated that many of the sources remaining to be permitted are
the more complex facilities and that the problems identified in the
report continue to be of concern. The Assistant Administrator agreed
with the conclusion that more can be done to help this effort and will
follow up, within 90 days of issuance of the final report, with an
action plan based on the report's findings and recommendations.
The Assistant Administrator also provided comments to several
recommendations, which are summarized at the end of chapter 3, and some
suggested clarifications that were incorporated into the final report.
A major stationary source is any non-mobile source of air pollution
that meets one or more criteria as defined in the 1990 Clean Air Act.
The criteria for major stationary source determinations is listed in
appendix 1.
Mr. Shimkus. And we thank you.
Next, we will hear from Mr. Brock Nicholson, Chief of Air
Quality Planning for the North Carolina Department of
Environment and Natural Resources. Thank you for joining us,
sir, and you are recognized for 7 minutes.
STATEMENT OF BROCK NICHOLSON
Mr. Nicholson. Good afternoon, Mr. Chairman, and members of
the subcommittee. I am Brock Nicholson. Today I will--I am
going to talk about what I think is right with the current
system and then discuss some of our concerns and suggestions
for improvement.
I do want to first start out by saying that Mr. Williams,
to my left here, will talk about a number of items as a
representative of STAPPA/ALAPCO. And as also a member of
STAPPA/ALAPCO, we certainly endorse those comments that he will
make.
What is right with the current system? I think clearly the
current Clean Air Act is a conceptually sound approach. We
don't think it is fundamentally broken. Under this system, the
EPA sets the national goals for protecting public health and
welfare. States have the primary responsibility for program
development and implementation.
This program is a reasonable compromise between the Federal
Government setting straight national technology standards, I
will say as the only approach, and each State operating
independently of a national system, perhaps as it was prior to
the 1970 amendments.
Currently, the National Air Program complements State
programs and areas where it makes sense to have nationwide
standards--fuels, mobile sources, major stationary emission
sources.
I will summarize a little bit what I have below here and
just say that this approach, an air quality management approach
as opposed to a straight technology approach, carries with it,
though, a burden of extra complexity and cumbersomeness in
terms of approval, some of the things that you have just heard
about, and I think because of that does cause us problems in
the implementation. It is resource-intensive, and so forth.
All in all, though, it is a good approach. If, however, we
had a straight technology approach that all parties could buy
into, that might be a reasonable alternative. But in practice,
what has evolved as the preferred approach is this air quality
management approach where we do modeling, we determine what is
necessary to attain. But this approach needs to be supplemented
with doses of prescribed technology, and what I mean by this is
strong national measures.
There are some concerns, however, and I will just touch on
it a little bit in the interest of time, where the Act is
perhaps too cumbersome, time-consuming, resource-intensive, and
perhaps inflexible in terms of implementing it in an efficient
and cost-effective way, and perhaps, I should say, expeditious
manner.
One of these that I will give as an example of maybe
questionable technological requirements or technical
requirements or technical soundness is that of designations of
non-attainment areas. I think we must find a better way to
handle designations. States need more flexibility in meeting
designation and planning requirements.
First, the non-attainment label is very much disliked by
local officials, because of impacts on economic development and
the tag that it gives to the area.
Second, designations are often applied across large areas
in ways that make little sense. A common mind-set is that non-
attainment areas must be very large to catch all possible
contributing sources and to deal with pollution transport.
However, the authority to control sources need not apply only
in non-attainment areas. A better approach might be the area
of--concept of areas of violation, AOVs, and areas of
influence, or AOIs.
Under the approach, the AOI is the primary area of sources
impacting the violating area, but controls are not limited to
just this area. The AOV might then be sized in a manner that
best balances the need to advise the public of the public
health issue of standards violation and the impacts of
designating an area.
In addition, the transport of pollutants across States or
regions could be better addressed by other means, including
stringent national standards on sources contributing to the
broad problem across the region or the country. However, I will
say that EPA has generally discouraged the development of this
AOV/AOI concept.
Another key concern is the need for consistent national
emissions control standards that achieve reductions based on
state-of-art technologies. To be of most value to the States,
the rule adoption process must be as short as possible,
certainly shorter than we have been seeing. Emission source
categories that are appropriate for national rules include:
major stationary sources, light- and heavy-duty on-road
vehicles, including diesel retrofits, off-road engines and
equipment, both large and small, and MACT sources.
States also need flexibility to go beyond Federal
requirements or act sooner. An example is the North Carolina
Clean Smokestacks Bill that you heard a reference to earlier,
to address multiple pollutants from coal-fired powerplants.
North Carolina believes it is vital to move ahead now with this
initiative to protect public health, especially from fine
particles and ozone.
Given the uncertainty of EPA and Congressional initiatives,
North Carolina and other States are taking similar actions
providing leadership and impetus for action at the Federal
level. The Clean Air Act should provide encouragement and
credits for States that take such initiatives. States clearly
need strong support from Federal emissions control standards in
order to achieve significant progress in meeting air quality
goals.
EPA recently has provided the States with some significant
measures in national rules for on-road, heavy-duty diesel truck
engines. This rule, as well as the 2004 light-duty gasoline
standard, or Tier 2 standard with low sulfur, will achieve
reductions that individual States could not otherwise realize.
And I might add if these reductions aren't realized through
stringent national rules, these are opportunities lost that the
States can never make up in their strategies to deal with non-
attainment.
While North Carolina and some of our surrounding States
will benefit greatly from our Clean Smokestacks Bill, we still
need the benefits of these reductions across all States.
Another example is the Southern Appalachian Mountains
Initiative, which is recently or currently coming to
conclusion. It made some significant policy recommendations
regarding controls to reduce ozone, acid deposition, and haze
in our region. The SAMI study concludes each SAMI State would
receive the most benefit from reductions of emissions from
within their own State boundaries.
However, the air quality-related problems being encountered
by SAMI's Class I areas would not be resolved by only
controlled emissions from within SAMI States; hence, again, the
need for national programs.
The eight SAMI States with the general support of other
stakeholders have specifically recommended the State--and I
quote, ``The SAMI States support and will promote strong
national multipollutant legislation for electric utility plants
to ensure significant sulfur dioxide and nitrogen oxide
reductions both inside and outside the SAMI region.'' The
national multipollutant legislation should result in no less
than the reductions for sulfur dioxide and nitrogen oxides
represented by the administration's Clear Skies Initiative.
Reductions from other source categories should also be
considered in national legislation, and such legislation should
contain sufficient measures to protect Class I areas. Should
national legislation fail to materialize, the States that
participated in SAMI will work together to consider regulatory
alternatives and to encourage non-SAMI States to participate.
Leadership by States ahead of national legislation is
encouraged.
And, in summary, I will also mention that four Governors--
North Carolina, South Carolina, Georgia, and Tennessee--signed
an agreement a year ago called the Southern Air Principles, and
in this they charged the State environmental commissioners to
come up with a multipollutant strategy for this region,
innovative energy and innovative transportation initiatives.
The recommendation specifically given our Governor, who
hosted the recent summit, was to support and promote strong
multipollutant legislation for electric utility plants to
ensure significant reductions of sulfur dioxide and nitrogen
oxides and mercury, both in and outside of the Southern Air
Principles States. Such State initiatives, when allowed,
encouraged, and given proper credit, can provide significant
air quality benefit and set precedents for national action.
So, in conclusion, the basic framework of the Clean Air Act
is sound, even though one might want to consider we want to say
on the air quality management approach, or the more technology
approach, we need the technology approach in addition. However,
we suggest the following improvements.
States need more flexibility to implement, act quicker, or
go beyond Federal requirements. Flexibility should not be used
as an excuse to do less. States need strong national
regulations to provide a foundation for the State plans and the
local specific initiatives to take care of air quality at the
local level, and national regulations must not be the lowest
common denominator.
Thank you for this opportunity to participate in this area.
[The prepared statement of Brock Nicholson follows:]
Prepared Statement of Brock Nicholson, Chief of Air Quality Planning,
North Carolina Department of Environment and Natural Resources
Good afternoon, Mr. Chairman and members of the Subcommittee. I am
Brock Nicholson, Chief of Air Quality Planning in North Carolina's
Department of Environment and Natural Resources. I am testifying today
regarding the development and implementation of state air quality
programs to meet requirements of the Clean Air Act. Today, I am going
to talk about what I think is right with the current system, and then
discuss some of our concerns and suggestions for improvements.
What is Right with the Current System
The current Clean Air Act is a conceptually sound approach. It is
not fundamentally broken. Under this system, the EPA sets the national
goals for protecting public health and welfare. States have the primary
responsibility for program development and implementation. This
approach is a reasonable compromise between the federal government
setting straight national technology requirements and each state
operating independently of a national system. Currently, the national
air program complements state programs in areas where it makes sense to
have nationwide standards--fuels, mobile sources, and major stationary
emissions sources.
The current system, sometimes called air quality management
approach, demands a high level of local, state and federal resources to
operate properly. However, it is generally a good way to ensure each
state problem is dealt with adequately without excessive compliance
costs.
An alternative approach, in the extreme, would be a straight
technology prescription by the EPA with a one-size-fits-all
requirements for all sources categories. This approach would not rely
on computer modeling to limit controls to only those sources shown to
be critical for attaining the ambient standards.
There are some days when would like the straight technology
approach to avoid the lengthy and resource-intensive modeling
demonstrations. In the midst of lengthy arguments over modeling
assumptions with various stakeholders, we often think: ``Let's just
have everyone must put on controls without doing the modeling. If
later, more controls are needed to meet the ambient standards, we will
prescribe more.'' Then, we are quickly jerked back to the reality of
designing a strategy that will meet the ambient standards in the most
cost-effective manner. This is the surgical ``air quality management''
approach versus the ``shotgun'' technology approach.
In practice, what has evolved as the preferred approach is the air
quality management concept supplemented with doses of prescribed
technology. This is a good balance for all stakeholders.
Concerns and Suggestions Regarding the Current System
The current system has aspects that are too cumbersome, time-
consuming, resource-intensive and sometimes inflexible for the states
to develop a program, or State Implementation Plan (SIP), in a manner
that is best suited for that area. In other cases, we believe the
requirements may not be technically sound. For example, the
designations of non-attainment areas need to better set the stage for
development of state air plans.
We must find a better way to handle designations. States need more
flexibility in meeting designation and planning requirements. First,
the ``non-attainment'' label is very much disliked by local officials
because of impacts on economic development. Second, designations are
often applied across large areas in ways that make little sense. The
mindset is that non-attainment areas must be very large to catch all
possible contributing sources and to deal with pollution transport.
Also, the authority to control sources need not apply only in non-
attainment areas. A better approach might be the concept of Areas of
Violation (AOV)/Areas of Influence (AOI). Under this approach, the AOI
is the primary area of sources impacting the violating area, but
controls are not limited to AOI. The AOV might then be sized in a
manner that best balances the need to advise the public of a standard
violation area and the impacts of designating an area. In addition, the
transport of pollutants across states or regions could be addressed by
other means, including stringent national standards on sources
contributing to the problem. However, the EPA has discouraged the
development of the AOV/AOI concept.
Another key concern is the need for consistent national emissions
control standards that achieve reductions based on state-of-the-art
technologies. To be of most value to the states, the rule adoption
process should be as short as possible. Emission source categories that
are appropriate for national rules include:
<bullet> Major stationary sources
<bullet> Light and heavy-duty on-road vehicles, including diesel
retrofits
<bullet> Off-road engines and equipment, both large and small
<bullet> MACT sources.
States also need flexibility to go beyond federal requirements or
act sooner. An example is the North Carolina ``Clean Smokestacks Bill''
to address multiple pollutants from coal-fired power plants. North
Carolina believes it is vital to move ahead now with this initiative to
protect public health, especially from fine particles. Given the
uncertainty of EPA and Congressional initiatives, North Carolina and
other states are taking similar actions providing leadership and
impetus for action at the federal level. The Clean Air Act should
provide encouragement and credit for states that take such initiatives.
States clearly need strong support from federal emissions control
standards in order to achieve significant progress in meeting their air
quality goals. EPA recently has provided the states with some
significant measures in national rules for on-road, heavy-duty diesel
engines. The reductions from this rule, as well as the 2004 light-duty
gasoline with low-sulfur gasoline standard, will achieve reductions
that individual states could not otherwise realize. While North
Carolina and some of our surrounding states will benefit greatly from
our Clean Smokestacks Bill, we still need the benefits of these
reductions across all states.
As another example the Southern Appalachian Mountains Initiative
(SAMI) has recently made some significant policy recommendations
regarding controls to reduce ozone, acid deposition and haze in our
region. The SAMI study concludes: ``Each SAMI state would receive the
most benefit from reductions of emissions from within their own state
boundaries. However, the air quality related problems being encountered
by SAMI's Class I areas would not be resolved by only controlling
emission within the SAMI states.''
The eight SAMI states, with the consensus of other stakeholders,
have specifically recommended: ``The SAMI states support and will
promote strong national multi-pollutant legislation for electric
utility plants to assure significant sulfur dioxide and nitrogen oxides
reductions both in and outside the SAMI region. This national multi-
pollutant legislation should result in no less than the reductions for
sulfur dioxide and for nitrogen oxides represented by the
Administration's Clear Skies Initiative. Reductions from other source
categories should also be considered in national legislation, and such
legislation should contain sufficient measures to protect Class I
areas. Should national legislation fail to materialize, the states that
participated in SAMI will work together to consider regulatory
alternatives and to encourage non-SAMI states to participate.
Leadership by states ahead of national legislation is encouraged.''
In addition to the SAMI effort, the Governors of North Carolina,
Tennessee, Georgia and South Carolina agreed to a set of ``Southern Air
Principles,'' which recommend multi-pollutant controls for coal-fired
power plants and innovative energy and transportation programs that
benefit air quality. These recommendations were released at the
Governors' Summit on Air Quality hosted by North Carolina Governor Mike
Easley on May 10, 2002. The specific recommendation on utility plants
is to: Support and promote strong multi-pollutant legislation for
electric utility plants to assure significant reductions of sulfur
dioxide, nitrogen oxides and mercury both in and outside of the
Southern Air Principles states. Such state initiatives--when allowed,
encouraged and given proper credit--can provide significant air quality
benefit and set precedents for national action.
Conclusions
In summary, the basic framework of Clean Air Act is sound. However,
we suggest the following improvements:
<bullet> States need more flexibility to implement, act quicker or go
beyond federal requirements. However, this flexibility should
not be used as an excuse to do less.
<bullet> States need strong national regulations to provide a
foundation for state plans.
<bullet> National regulations must not be the ``lowest-common
denominator.''
Thank you for this opportunity to participate in this hearing.
Mr. Shimkus. Thank you.
Next, Mr. Art Williams, Director of the Jefferson County
Air Pollution Control District, on behalf of STAPPA/ALAPCO. I
yield 7 minutes.
STATEMENT OF ARTHUR L. WILLIAMS
Mr. Williams. Thank you, Mr. Chairman. Good afternoon, Mr.
Chairman, members of the subcommittee. I am Art Williams,
Director of the Jefferson County Air Pollution Control
District, and today I am testifying on behalf of the State and
Territorial Air Pollution Program Administrators and the
Association of Local Air Pollution Control Officials. Perhaps
we have the longest acronym at the table. I current serve as
immediate past president of that organization.
STAPPA and ALAPCO are national associations of air quality
officials in 54 States and territories in over 165 major
metropolitan areas across the country. We are pleased to have
this opportunity to provide our perspectives regarding
implementation of the Clean Air Act.
Notwithstanding the impressive progress associated with
implementation of the 1990 Clean Air Act, progress that
Federal, State, and local governments have achieved together,
our Nation continues to face air quality and public health
challenges of substantial proportions. I would like to touch on
several of the key challenges that remain and a few areas where
enhancements can be made.
Perhaps the most complex air quality problem we face is
achievement and maintenance of the health-based national
standards for particulate matter and ozone. Fine particulate
matter, or PM<INF>2.5</INF>, poses the greatest health risk of
any air pollutant resulting in as many as 30,000 premature
deaths each year and a variety of adverse health impacts.
Based on preliminary air quality monitoring data, it
appears that PM<INF>2.5</INF> concentrations in 250 U.S.
counties located primarily in the east and in California exceed
this health-based standard. Attainment of the ozone standard
also poses significant challenges. Current data show that more
than 300 counties measure exceedances of the 8-hour ozone
standard.
Now that the courts have cleared the way for EPA, States,
and localities to move forward, it is essential that EPA take
swift action to establish implementation strategies for
PM<INF>2.5</INF> and 8-hour ozone. Further, STAPPA and ALAPCO
urge timely and effective control programs for sources that
contribute significantly to these air quality problems,
including powerplants and non-road heavy-duty diesels.
The magnitude of emissions from powerplants and the serious
public health and welfare implications these emissions have
make controlling electric utilities a top priority.
Fortunately, there are tremendous opportunities for doing so in
a very cost-effective manner.
Among the most important steps Congress can take to address
air pollution is to establish a comprehensive national
multipollutant approach for cleaning up outdated powerplants
and ensuring that new plants are dramatically cleaner.
STAPPA and ALAPCO endorse the concept of a comprehensive
strategy for reducing emissions from electric utilities and, to
that end, recently adopted a set of principles upon which we
believe a viable multipollutant approach should be based. Our
associations believe that such an approach should address all
significant emissions from electric power generation, establish
stringent emission reduction goals reflecting the best-
available control technology, set expeditious deadlines,
supplement, not supplant, provisions of the existing Clean Air
Act, encourage energy efficiency, and provide flexibility to
industry, including trading. More detail is provided in my
written statement.
With respect to the regulation of mobile sources and their
fuels, we have achieved great progress over the past decade.
Perhaps most laudable are two landmark rulemakings issued by
EPA in recent years, including the Tier 2 motor vehicle
emission standards and low-sulfur gasoline programs, and the
2007 heavy-duty diesel engine and fuel rule.
Our top remaining mobile source priority is the rigorous
control of emissions from non-road, heavy-duty diesel engines,
including construction, industrial, and agricultural equipment.
STAPPA and ALAPCO urge that non-road, heavy-duty diesel engines
and their fuels be subject to Federal standards equivalent to
those for on-road, heavy-duty diesels and in the same
timeframes.
My written testimony includes STAPPA and ALAPCO specific
recommendations in this regard. The serious and pervasive
public health threat posed nationwide by emissions of hazardous
air pollutants, or HAPs, is another continuing concern of our
associations. According to EPA, more than 200 million people in
the United States live in areas where the lifetime cancer risk
from exposure to HAPs exceeds 1 in 100,000. Moreover,
approximately 3 million people face a lifetime cancer risk of 1
in 10,000.
One of the primary sources of HAPs is motor vehicles,
including cars and trucks. Unfortunately, EPA's action relative
to the Clean Air Act's requirement to regulate mobile sources'
air toxics is deficient. We believe far more is necessary at
the Federal level to adequately address this critical public
health threat.
With respect to industrial sources of hazardous air
pollution, the Clean Air Act called for EPA to establish
technology-based standards for a large number of source
categories by November 2000. Regrettably, EPA did not fulfill
its obligation. Accordingly, State and local air pollution
control agencies may be obligated to establish these standards
on a case-by-case basis for all source categories for which EPA
has not set these standards.
Moreover, each day that these sources remain uncontrolled,
many millions of people continue to be exposed to hazardous
pollutants. EPA must do everything in its power to establish
these standards as quickly as possible.
The Clean Air Act's NSR program, New Source Review, is a
fundamental component of our Nation's clean air program.
However, we believe that this program can be improved. In
short, STAPPA/ALAPCO support reform, not replacement, of the
existing NSR program with two provisos. First, such reforms
must be limited to major modifications and not extended to new
sources. And, second, under no circumstances should reforms
result in any less protection of the environment than is
derived under the current program.
One final issue on which I would like to touch is Federal
funding for State and local air pollution agencies. The
magnitude of our air quality problem and the associated health
effects make it clear that funding for the control of air
pollution should be a top priority. Unfortunately, the reality
is that State and local air agencies are underfunded.
STAPPA and ALAPCO, in cooperation with EPA, conducted a
study of air program funding and estimated that Federal grants
to State and local air pollution control agencies, under
Section 105 of the Clean Air Act, fell short of our needs by
$100 million a year. While we have received modest funding
increases in recent years, these increases are not enough.
Unless our programs receive a substantially greater boost
in funding, we will continue to face a serious financial
shortfall, which will adversely affect our ability to protect
and improve air quality.
Once again, I thank you for this opportunity to provide
STAPPA/ALAPCO's perspectives on the implementation of the Clean
Air Act.
[The prepared statement of Arthur L. Williams follows:]
Prepared Statement of Arthur L. Williams, Director, Air Pollution
Control District of Jefferson County, Kentucky on Behalf of the State
and Territorial Air Pollution Program Administrators and the
Association of Local Air Pollution Control Officials
Good afternoon, Mr. Chairman and members of the Subcommittee. I am
Arthur Williams, Director of the Air Pollution Control District of
Jefferson County, Kentucky. I am testifying today on behalf of STAPPA--
the State and Territorial Air Pollution Program Administrators--and
ALAPCO--the Association of Local Air Pollution Control Officials, of
which I currently serve as Immediate Past President. STAPPA and ALAPCO
are the national associations of air quality officials in 54 states and
territories and over 165 major metropolitan areas across the country.
The members of STAPPA and ALAPCO have primary responsibility under the
Clean Air Act for implementing our nation's air pollution control laws
and regulations and, moreover, for achieving and sustaining clean,
healthful air for our citizens. Accordingly, we are pleased to have
this opportunity to provide our perspectives regarding implementation
of the Clean Air Act.
On November 15, 1990, when President Bush signed into law the Clean
Air Act Amendments of 1990, he put in place a precedent-setting statute
that completely revamped our nation's approach to improving air quality
and declared it a ``true red-letter day for all Americans.'' At the
time, STAPPA and ALAPCO endorsed the statute as an earnest commitment
to environmental protection and believed that the comprehensive air
pollution control strategy established in the Act provided state and
local regulators with the tools we needed to make meaningful strides
toward achieving our clean air goals. Eleven and a half years later,
our associations believe our assessment was accurate and that the Act
has served as the firm foundation for many success stories over the
past decade.
Prior to the 1990 amendments, our country spent decades struggling
with a ubiquitous, perilous and seemingly unrelenting air pollution
problem. About 100 areas across the country, home to about 130 million
people, exceeded the national health-based standard for ozone; over 40
areas, with a combined population of over 55 million, violated the
standard for carbon monoxide; 85 areas, in which 25 million people
resided, violated the coarse particulate matter (PM<INF>10</INF>)
standard; billions of pounds of toxic chemicals were emitted into our
air every year; millions of tons of sulfur dioxide (SO<INF>2</INF>)
emissions contributed to acid rain; and our production of ozone-
depleting substances was leading us directly toward devastating damage
to our stratospheric ozone layer.
Clearly, we were in need of a fresh start and a clear direction and
we got them. The 1990 amendments homed in on the crux of our air
pollution problems and framed a comprehensive strategy for attaining
the health-based National Ambient Air Quality Standards (NAAQS),
cleaning up mobile sources and their fuels, decreasing toxic air
pollution, reducing acid rain and protecting the stratospheric ozone
layer. As a result, Americans today are breathing cleaner air and
reaping the benefits of a cleaner environment.
More than two-thirds of the cities that in 1990 violated health-
based national standards for at least one of the six criteria
pollutants now comply with those standards; about 1.5 million tons of
industrial toxic air pollutants are expected to be eliminated annually
due to rules issued since 1990; rainfall in the eastern United States
is 25 percent less acidic, due to reductions in SO<INF>2</INF>
emissions on the order of 6.7 million tons per year; and we have
stopped production in the U.S. of the most harmful ozone-depleting
substances. What is more, we have achieved these milestones while, at
the same time, experiencing strong economic growth. In fact, since
1970, when the first Clean Air Act was enacted, Gross Domestic Product
has increased by 158 percent, vehicle miles traveled by 143 percent,
energy consumption by 45 percent and U.S. population by 36 percent.
Further, it is estimated that by 2010, implementation of the Clean Air
Act will prevent 23,000 incidences of premature mortality, 67,000 cases
of acute and chronic bronchitis, 1.7 million asthma attacks, 4.1
million lost work days and 31 million days on which activity is
restricted.
Notwithstanding this impressive progress associated with
implementation of the Clean Air Act--progress that federal, state and
local governments have achieved together--our nation continues to face
air quality and public health challenges of substantial proportions. In
addition, while we continue to maintain that the Clean Air Act, in
general, offers a solid and viable framework for our efforts, the
benefit of almost 12 years of hindsight allows us to pinpoint those
aspects of the statute and the national clean air program that we
believe can be improved or augmented. I would like to elaborate on
several of the key challenges that remain and a few areas where
enhancements can be made.
Fine Particulate Matter and Eight-Hour Ozone Standards
Perhaps the most complex air quality problem we face is achievement
and maintenance of the health-based NAAQS for particulate matter and
ozone.
In 1997, EPA established a new standard for fine particulate matter
(PM<INF>2.5</INF>). Although we are still working to complete the data-
gathering efforts necessary to determine which areas of the country
violate the PM<INF>2.5</INF> standard, one thing is very clear:
PM<INF>2.5</INF> poses the greatest health risk of any air pollutant,
resulting in as many as 30,000 premature deaths each year.
Additionally, fine particles are responsible for a variety of adverse
health impacts, including aggravation of existing respiratory and
cardiovascular disease, damage to lung tissue, impaired breathing and
respiratory symptoms, irregular heart beat, heart attacks and lung
cancer.
Fine particles are not only emitted into the atmosphere directly
from combustion processes, they are also formed secondarily in the
atmosphere from such precursor emissions as oxides of nitrogen
(NO<INF>X</INF>), SO<INF>2</INF> and ammonia; in addition to their
adverse health consequences, fine particles also contribute to regional
haze. Based on preliminary air quality monitoring data, it appears that
PM<INF>2.5</INF> concentrations in 250 counties in the U.S.--located
primarily in the East and in California--exceed the health-based
standard.
Overall, progress in attaining clean air has been slowest with
respect to ground-level ozone. In the southern and north central
regions of the U.S., ozone levels have actually increased in the past
10 years, and in 29 national parks, ozone levels have risen by more
than 4 percent. A significant factor in this trend is the increase we
have experienced in NO<INF>X</INF> emissions, which are not only a
precursor to ozone, but also a contributor to such public health and
welfare threats as acid rain, eutrophication of water bodies, regional
haze and, as I just mentioned, secondary PM<INF>2.5</INF>. Over the
past 30 years or so, NO<INF>X</INF> emissions have increased by almost
20 percent, largely due to emissions from nonroad engines and power
plants. Current data show that more than 300 counties measure
exceedances of the eight-hour ozone standard.
In 1997, EPA revised the health-based standard for ozone by
establishing an eight-hour standard, representing greater protection of
public health. Litigation over both the new PM<INF>2.5</INF> standard
and the revised ozone standard has delayed their implementation;
however, the courts have now cleared the way for EPA, states and
localities to move forward. Not only do STAPPA and ALAPCO urge swift
action by EPA in establishing implementation strategies for
PM<INF>2.5</INF> and eight-hour ozone, we also urge timely and
effective control programs for sources that contribute significantly to
these air quality problems, including power plants and nonroad heavy-
duty diesels.
Power Plants
Electric utilities are one of the most significant sources of
harmful air emissions in the U.S., responsible for 64 percent of annual
SO<INF>2</INF> emissions, which contribute to acid rain and the
formation of PM<INF>2.5</INF>, and 26 percent of NO<INF>X</INF>
emissions.
In addition, electric utilities are responsible for 37 percent of
U.S. carbon dioxide emissions and emit upwards of 67 hazardous air
pollutants (HAPs)--including nickel, arsenic and dioxins--in
substantial quantities. In fact, power plants are the major emitter of
hydrochloric acid, which is the HAP emitted in the greatest quantity in
the U.S, and are also responsible for more than one-third of
anthropogenic mercury emissions. The persistent and bioaccumulative
nature of mercury makes it of particular concern relative to aquatic
ecosystems, where it can contaminate aquatic life and pose a serious
threat to humans who consume the contaminated species. Based on just
such a threat, over 40 U.S. states and territories have issued fish
consumption advisories for mercury for some or all water bodies in
their jurisdictions.
The magnitude of emissions from power plants, and the serious
public health and welfare implications these emissions have, make
controlling electric utilities a top priority. Fortunately, there are
tremendous opportunities for doing so in a very cost-effective manner.
Our nation's electricity generation infrastructure is aged, comprised
of many 30-, 40- and 50-year-old plants that continue to operate
without modern pollution control technology. Among the most important
steps Congress can take to address air pollution is to establish a
comprehensive national multi-pollutant approach for cleaning up
outdated power plants and ensuring that new plants are dramatically
cleaner.
STAPPA and ALAPCO endorse the concept of a comprehensive strategy
for reducing emissions from electric utilities and, to that end,
recently adopted a set of principles upon which we believe a viable
multi-pollutant approach should be based. Our associations believe that
such an approach should address all significant emissions from electric
power generation and, if properly structured, can increase and
accelerate protection of public health and the environment, reduce
pollution more cost-effectively than incremental approaches and offer
greater certainty to both industry and regulators.
In our principles, STAPPA and ALAPCO call for an integrated
approach based on an expeditious schedule that allows us to reduce
emissions as rapidly as we can. Such an approach--which should
supplement, and not supplant, provisions of the existing Clean Air
Act--should include deadlines that are synchronized with other clean
air programs. To ensure steady progress toward the final compliance
deadline, interim deadlines should be established, with the first
interim compliance requirements taking effect quickly.
A viable multi-pollutant approach will also establish the most
stringent enforceable national emission reduction goals feasible by
capping emissions at levels that reflect the installation of technology
no less stringent than best available controls on all existing units
nationwide, with existing power plants required to meet a minimum level
of control by the final compliance deadline.
STAPPA and ALAPCO also believe that in meeting these emission
goals, the regulated community should be afforded flexibility,
including an emissions trading mechanism with appropriate limitations
and protections against any adverse health or environmental impacts. If
emissions allowances are required under a multi-pollutant approach,
then they should be allocated equitably, and provisions for allocating
to new sources should be established. Further, sources should be
encouraged to reduce emissions as soon as possible and, to the extent
early reduction credits are provided for, the use of such credits
should be appropriately limited.
On the matter of New Source Review (NSR), STAPPA and ALAPCO believe
firmly that power plants--both new and existing--must continue to be
subject to NSR requirements. Although I will elaborate on STAPPA and
ALAPCO's perspectives on NSR and NSR reforms, in general, later in my
testimony, I would like to offer the following regarding our views with
respect to NSR for power plants.
Current NSR requirements for new sources should remain intact,
including, among others, those related to the installation of control
technology (i.e., the Lowest Achievable Emission Rate in nonattainment
areas and Best Available Control Technology in attainment areas), the
acquisition of offsets in nonattainment areas and the protection of air
quality increments to guard against adverse local air quality impacts
in attainment areas. Further, while certain NSR reforms for existing
sources are definitely in order, such sources making major
modifications to existing units should be required to install the best
available controls on affected units at the time of the modification,
acquire any emissions allowances required to address emission increases
and ensure against adverse local health or environmental impacts.
In addition, a multi-pollutant approach to reducing emissions from
power generation should strongly encourage the most efficient use of
any fuel used as input to electric generation or process energy
sources, as well as energy efficiency, energy conservation and
renewable electric energy. Further, it should support efforts to
develop and deploy consistent approaches for distributed resources to
mitigate the impacts of small units not otherwise covered by a national
multi-pollutant strategy.
Finally, a viable multi-pollutant strategy will ensure that
regions, states and localities retain their authority to adopt and/or
implement measures--including local offset requirements--that are more
stringent than those of the federal government.
As our nation approaches the issue of a multi-pollutant strategy
for one of our most significant sources of air emissions, we must do so
in a way that institutes an appropriately rigorous emissions reduction
scheme on a timely schedule and compels the use of state-of-the-art
technology, commensurate not only with the substantial contribution of
power plants to our nation's continuing air quality and public health
challenges, but also with the level of reductions we will garner from
new regulatory programs addressing other big-emitting sources, like
passenger cars and heavy-duty diesel engines.
Nonroad Heavy-Duty Diesel Engine and Fuels
With respect to the regulation of mobile sources and their fuels,
we have achieved great progress over the past decade. Perhaps most
laudable are two landmark rulemakings issued by EPA in recent years. In
December of 1999, the agency promulgated Tier 2 motor vehicle emission
standards and a national low-sulfur gasoline program. The following
December, the agency issued a rule (the 2007 Diesel Rule) establishing
tighter engine standards for onroad heavy-duty diesels, such as big
diesel trucks, and a commensurately stringent cap on sulfur in onroad
diesel fuel.
Notwithstanding these truly remarkable accomplishments that will
yield tremendous public health and environmental benefit across the
entire country, we still have more work to do in reducing emissions
from mobile sources and fuels. First and foremost in this regard is the
rigorous control of emissions from the last really big mobile source
category remaining: nonroad heavy-duty diesel engines (HDDEs),
including construction (e.g., bulldozers and excavators), industrial
(e.g., portable generators, airport service equipment and forklifts)
and agricultural (e.g., tractors, combines and irrigation pumps)
equipment.
Nonroad HDDEs are huge contributors to elevated levels of ozone and
PM<INF>2.5</INF>--representing a substantial and growing share of the
emissions inventories for both NO<INF>X</INF> and PM--thus posing a
substantial threat to public health, including, among other things,
premature mortality from exposure to PM<INF>2.5</INF>, as I discussed
earlier. In fact, the aggregate NO<INF>X</INF> and PM emissions from
nonroad HDDEs exceed those from all of the nation's highway diesel
engines. In addition, the Clean Air Scientific Advisory Committee has
concluded that diesel exhaust is a likely human carcinogen at
environmental levels of exposure, further heightening the need to take
swift and aggressive action to control emissions from nonroad HDDEs.
Given the limited authority states and localities have to regulate
heavy-duty engines and their fuels, rigorous new federal standards for
nonroad HDDEs and nonroad diesel fuel--equivalent to those for onroad
HDDEs and fuels and in the same timeframes--are imperative.
STAPPA and ALAPCO have been advocating such new nonroad standards
for several years. Specifically, our recommendations are based on
several key principles that include the following: 1) availability of
15-ppm low-sulfur nonroad diesel fuel beginning in June 2006, subject
to the same flexibilities and schedules provided under the onroad low-
sulfur diesel fuel program; 2) promulgation of Tier 3 nonroad HDDE
standards for PM (for all horsepower engines covered by the rule),
based on emission reductions of 90+ percent (similar to the PM
reductions achieved by the onroad heavy-duty diesel rule) to be fully
applicable in 2007; 3) promulgation of Tier 4 nonroad HDDE standards
for NO<INF>X</INF> (for 50 to 750 hp engines), based on emission
reductions of 95+ percent (similar to the reductions achieved by the
onroad heavy-duty diesel rule), to be phased in between 2007 and 2010;
and 4) a strong program to ensure that in-use emissions are not
compromised by durability issues, the use of defeat devices or other
factors.
Unless emissions from nonroad HDDEs are sharply reduced, it is very
likely that many areas of the country will be unable to attain and
maintain national health-based air quality standards for ozone and PM.
Moreover, a nonroad heavy-duty diesel rule that establishes engine and
fuel standards equivalent to those for onroad HDDEs and in the same
timeframes will yield enormous public health benefits. EPA must take
full advantage of the opportunity to adopt meaningful and timely
controls for nonroad HDDEs and their fuels.
Hazardous Air Pollutants
The serious and pervasive public health threat posed nationwide by
emissions of hazardous air pollutants (HAPs) is another continuing
concern of STAPPA and ALAPCO. Just last week, EPA released the results
of its National-Scale Air Toxics Assessment (NATA), which provides
nationwide estimates of exposure and health risks associated with 32
HAPs. According to EPA, more than 200 million people in the U.S. live
in areas where the lifetime cancer risk from exposure to HAPs exceeds 1
in 100,000. Moreover, approximately 3 million face a lifetime cancer
risk of 1 in 10,000. Considering that EPA has established 1 in
1,000,000 as the generally acceptable level of risk, these estimates
not only illustrate the pervasive nature of the threat posed by HAPs,
they also speak to the level of effort that will be required to reduce
the risk and the high level of priority that should be placed on doing
so.
According to EPA's data and information collected by state and
local agencies, one of the primary sources of HAPs is motor vehicles,
including cars and trucks. EPA has estimated that approximately 50
percent of all national HAP emissions, which do not include diesel
exhaust, comes from mobile sources. The agency has further estimated
that for more than 100 million people, the combined upper-bound
lifetime cancer risk from mobile source air toxics exceeds 1 in
100,000.
In recognition of the health impacts of mobile source air toxics
and the limited capacity of states and localities to directly regulate
mobile sources and fuels, Congress included in section 202(l) of the
1990 Clean Air Act a requirement for EPA to promulgate regulations to
control mobile source emissions of toxic air pollution. Specifically,
the Act mandated that ``[t]he regulations shall contain standards for
such fuels or vehicles, or both, which the Administrator determines
reflect the greatest degree of emission reduction achievable through
the application of technology which will be available . . . The
regulations shall, at a minimum, apply to emissions of benzene and
formaldehyde.'' Unfortunately, EPA's action relative to this statutory
requirement--a December 2000 rulemaking--is deficient. Instead of
aggressively addressing mobile source air toxics in a manner consistent
with section 202(l) and proportionate to the risk posed, the rule calls
for nothing more than the status quo and merely contemplates additional
regulation in 2004, if further study warrants it. Clearly, far more is
necessary at the federal level to adequately address this critical
public health threat.
With respect to industrial sources of toxic air pollution, the
Clean Air Act called for EPA to establish technology-based standards
for a large number of source categories by November 2000. These
standards--known as MACT (Maximum Achievable Control Technology)
standards--were to require new sources to apply state-of-the-art
technology and existing sources to achieve reductions equal to those
achieved by the top performing existing sources. Regrettably, EPA has
not fulfilled its obligation; more than 18 months after the statutory
deadline, 36 MACT standards covering 62 source categories still have
not been established. Under the section 112(j) of the Clean Air Act,
state and local air pollution control agencies are obligated to
establish MACT on a case-by-case basis for all source categories for
which EPA has not set standards. Although the agency has taken
regulatory steps to delay this state and local obligation,
environmental groups have objected and it is unclear what the section
112(j) case-by-case MACT regulation will ultimately require. More
importantly, however, each day that these sources remain uncontrolled,
many millions of people continue to be exposed to hazardous pollutants.
EPA must do everything in its power to establish these standards as
quickly as possible.
In addition to calling for MACT standards, the Clean Air Act calls
for Residual Risk standards, to reduce the risks that remain after
implementation of the MACT standards. EPA is required to establish
Residual Risk standards eight years after the issuance of MACT
standards. However, EPA's delay in establishing MACT standards has also
delayed establishment of the health-protective Residual Risk standards.
To minimize the public's exposure to dangerous toxic air pollution, EPA
must work diligently to establish Residual Risk standards as quickly as
possible.
New Source Review
The Clean Air Act's NSR program is a fundamental component of our
nation's clean air program. For the past 25 years, NSR has been
instrumental in achieving millions of tons of emissions reductions that
otherwise would not have occurred. Air quality in the U.S. is decidedly
better because of this program. However, notwithstanding the pivotal
role NSR has played in environmental protection and the fact that for
new sources the program is working well, there is broad consensus that
the program can be improved with respect to requirements for major
modifications to existing sources. Over the past eight years, STAPPA
and ALAPCO have worked with EPA and other stakeholders to develop
recommendations in this regard. During that time, our associations have
gone on record in favor of reforms to the NSR process, and we continue
to hold that position.
Although STAPPA and ALAPCO do not believe that the current NSR
program is preventing industry from expanding or from increasing
efficiency, we do believe that, with respect to major modifications,
certain flexibilities should be afforded to sources that install the
best controls. For example, our associations have agreed that sources
that install the best available controls today should be afforded a
clean unit exemption--that is, an exemption from further NSR for a
limited time into the future. Similarly, we have supported a plant-wide
applicability limit (PAL), provided it declines over time to a level
reflecting installation of best available controls and requires all
significant new sources constructing under the PAL to install the best
available controls.
In short, STAPPA and ALAPCO support reform, not replacement, of the
existing NSR program with two provisos: 1) such reforms should be
limited to major modifications and 2) under no circumstances should
reforms result in any less protection of the environment than is
derived under the current program.
Funding
One final issue on which I would like to touch is federal funding
for state and local air pollution control agencies. It is well
established that air pollution presents a pervasive national threat to
public health and the environment. The health risks are not only
significant, we know of no other environmental problem presenting
greater risk. Air quality regulators at all levels of government have
worked diligently for many years in pursuit of our clean air goals. In
spite of the considerable improvements that we have achieved, clean,
healthful air nationwide still eludes us.
Over 160 million tons of pollution are still emitted into the air
each year. One hundred and twenty one million people live in areas of
the country that violate at least one of the six health-based NAAQS,
not to mention the many millions of people who are exposed to toxic air
pollutants that cause cancer and other health problems. The magnitude
of our air quality problem and the associated health effects make it
clear that funding for the control of air pollution should be a top
priority. Unfortunately, the reality is that state and local air
agencies are underfunded. Although states and localities devote
significant resources to their air quality programs, air agencies have
been operating for years with inadequate financial support from the
federal government. As a result, many of our programs are not as robust
as they need to be.
A few years ago, STAPPA and ALAPCO, in cooperation with EPA,
conducted a study of air program funding and estimated that federal
grants to state and local air pollution control agencies under Section
105 of the Clean Air Act fell short of our needs by nearly $100 million
a year. While we have received modest funding increases in recent
years, these increases are simply not enough, especially in light of
our expanded responsibilities. Unless our programs receive a
substantially greater boost in funding, we will continue to face a
serious financial shortfall, which will adversely affect our ability to
protect and improve air quality. This shortfall will only become worse
as greater demands are placed on our programs. Among the air program
priorities for which state and local agencies require additional
funding are HAPs; fine particulate matter, especially diesel
particulate; compliance; inspections; monitoring; data improvements,
including maintaining and improving infrastructures, emission
inventories and modeling; haze and visibility monitoring; and outreach
to and education of the public and regulated community.
We urge Congress to give careful consideration to our request for a
$25-million increase in FY 2003 federal grants to state and local air
agencies under Sections 103 and 105 of the Clean Air Act.
Finally, notwithstanding the pivotal role of state and local air
agencies in our nation's air quality program, we cannot do the job
alone. A strong and effective EPA that is adequately funded to carry
out its responsibilities is essential to state and local efforts.
Accordingly, we encourage Congress to ensure that EPA is also well
funded, and to consider increasing, rather than decreasing, EPA's
budget to allow the agency to carry out such important activities as
those related to fine particulate matter; mobile sources; retrofitting
diesel school buses; national emission standards, including toxic air
pollutant standards; training; health research and risk estimates; and
modeling.
Conclusion
Is the Clean Air Act the perfect environmental statute? No. But it
has proven to be a good, sound, workable law with the potential to
yield clean air in an efficient and cost-effective manner.
As we look back on our implementation of the Clean Air Act over the
past 11 and a half years, we can do so with pride for all that we have
accomplished. Though challenges still lie ahead, there are many
opportunities for rising to these challenges. As we look forward, we
should do so in a way that focuses on how we can augment, rather than
replace, our current statutory foundation so that the considerable
momentum we have created is not disrupted.
Among other things, we can look to and learn from the successes
that have resulted from regional initiatives. Beyond the firm
foundation provided by strong federal programs, such regional efforts
allow for the development of approaches tailored to regional needs.
We can also continue our efforts to identify and implement
innovative approaches to addressing air pollution and find ways to
capitalize on the flexibilities provided by the law to resolve
implementation problems and move ahead. Our past experiences in seeking
``common-sense'' solutions to difficult issues have demonstrated that
the current statute is structured to accommodate change and keep pace
with our needs.
Above all, we must remember that the most valuable asset our nation
can ever have is a healthy population and a clean environment. In
working to achieve our clean air goals, protecting these assets must be
our highest priority.
Mr. Shimkus. Thank you.
And I do want to commend the panel for really doing a good
job on the opening statements. If you are doing that well
protecting the air as you are staying on track of time, I think
we are in pretty good shape.
Now I would like to welcome Mr. Doug Lempke, Administrator
of Air Quality Control Commission, Colorado Department of
Public Health and Environment. You have 7 minutes, sir.
STATEMENT OF DOUG LEMPKE
Mr. Lempke. Good afternoon, Mr. Chairman, members of the
committee. My name is Doug Lempke, and on behalf of Governor
Owens I would like to thank you today for holding this hearing
and for giving the State of Colorado the opportunity to share
some of our successes under the Clean Air Act and some of our
thoughts on implementing emission reduction programs to meet
the requirements of the Act.
Colorado's overall experience in working with EPA,
particularly Region VIII, has been positive. However, we
believe that changes to the Act and overall programs within EPA
would enhance the tools States are provided to improve and
protect air quality, as well as provide more options to State
agencies to implement effective air quality management
strategies and demonstrate our ability to maintain compliance
into the future.
Over the past 3 years, Colorado has made it a top priority
to ensure that our non-attainment areas meet the national
standards and will continue to meet them into the foreseeable
future. The Denver metro area was once one of two areas in the
United States to be out of compliance with five of the national
ambient air quality standards.
As of today, EPA has proposed--EPA has approved our
redesignation plans for the Denver metro area for all but the
pollutant PM<INF>10</INF>, which they have currently proposed
for approval in the Federal Register. This makes the Denver
metro area the first major metropolitan area in the country to
demonstrate its ability to maintain long-term compliance with
so many problematic pollutants.
Region VIII EPA has been particularly helpful in completing
this process over the past 3 years. And without their upfront
involvement in the process, we would not be where we are at
today.
Additionally, my comments today will focus on requirements
for the vehicle inspection and maintenance programs, EPA's
guidance and its usefulness to States, and the Regional Haze
Rule. Colorado believes that enormous emission reductions have
been achieved over the years through the implementation of the
corporate CAFE or the Federal CAFE standards. However, it has
been necessary to implement vehicle inspection and maintenance
programs in many non-attainment areas to demonstrate compliance
with the national standards.
These programs require all vehicles to be tested to
identify a small number of higher-emitting vehicles that
require repairs. In some cases, such as Denver, enhanced
vehicle inspection and maintenance programs are required to be
implemented under the Act.
Colorado believes that the technology and programs exist to
identify high-emitting vehicles without putting each motorist
through the process of visiting the vehicle testing center.
These programs utilize remote sensing instrumentation in
programs referred to as clean screening or high-emitter
programs. We would suggest that the Act and EPA regulations
should readily provide for the implementation of these types of
programs instead of the traditional I&M programs.
Over the years, EPA has undertaken an enormous effort to
develop guidance documents and keep track of numerous
memorandum of interpretation of the programs and provisions of
the Clean Air Act. These guidance documents and memorandum can
be useful resources. However, they are often adhered to as if
they were rules and regulations unto themselves.
This often strict adherence to guidance blunts the attempts
of State agencies to creatively apply air quality strategies to
meet the requirements of the Act. Colorado suggests that
guidance documents should be present--should represent a
readily approvable avenue to compliance but not the only
avenue.
We propose that implementation of the Clean Air Act could
be made significantly more flexible by changing the approach
that EPA has taken to rely on some of the guidance documents
and the memorandum of interpretation.
The Regional Haze Rule focuses its primary emission
reduction requirements on major stationary sources of
visibility impairing pollutants. However, there are many
sources of pollutants that contribute to visibility impairment
in our national parks and wilderness areas.
The first phase of the rule focuses on application of
emission controls to stationary sources alone through the
analysis and application of best-available retrofit control
technology. This process is complicated and litigious at best
and unworkable at worst. In fact, the DC Circuit Court of
Appeals, a little over a week ago, remanded at least part, and
some have argued all, of the rule back to EPA over this very
issue.
Colorado believes that prior to our moving forward with
implementation of the Regional Haze Rule, EPA needs to resolve
the provisions that were remanded by the court. Under the rule,
Western States were provided with two options to comply with
the rule, and at this point at least one of those options is
clearly affected by the court ruling.
We were on the verge of making the choice of which approach
to follow, but now we must take a step back and understand what
the court has done, as well as wait for EPA to take action on
the remand. We suggest that EPA and/or Congress resolve the
BART issues, as well as any other issues, as expeditiously as
possible.
That concludes my testimony. Again, we appreciate the
opportunity to testify here today. And if you have any
questions, I would be happy to try to answer them.
[The prepared statement of Doug Lempke follows:]
Prepared Statement of Doug Lempke, Administrator, Air Quality Control
Commission, Colorado Department of Public Health and Environment
Good afternoon Mr. Chairman, members of the Subcommittee, thank you
for holding this hearing today and for giving the State of Colorado the
opportunity to share some our successes under the Clean Air Act and to
share some of our thoughts on implementing emission reduction programs
to meet the requirements of the Act.
Colorado's overall experience in working with EPA, particularly
Region VIII, has been positive. However, we believe that changes to the
Act and overall operations within EPA would enhance the tools states
are provided to improve and protect air quality as well as provide more
options to state agencies to implement effective air quality management
strategies and demonstrate our ability to maintain compliance into the
future.
The issue of implementing programs to demonstrate long-term
compliance with national standards is a particularly timely subject for
the Subcommittee to ask the State of Colorado to address. Over the past
three years Colorado has made it a top priority to ensure that our non-
attainment areas meet the national standards and will continue to meet
them into the foreseeable future. We are particularly proud of our work
in the Denver Metro Area.
The Denver Metro Area was once one of the two areas in the United
States to be out of compliance with 5 of the National Ambient Air
Quality Standards. At one point Denver and Los Angeles shared this
ignoble distinction. Denver was out of compliance at one point with the
Lead, Nitrogen Oxide, Carbon Monoxide, Ozone, and the PM<INF>10</INF>
standards.
Just three years ago Denver was still listed as a non-attainment
area for Ozone, PM<INF>10</INF>, and Carbon Monoxide. As of today EPA
has approved our redesignation the Denver Metro area for Ozone and
Carbon Monoxide and adopted our long term compliance plans for both.
EPA has recently proposed for public comment the approval of our Denver
PM<INF>10</INF> maintenance plan and request for redesignation. We
anticipate full approval of that plan this year.
This makes the Denver Metro Area the first major metropolitan area
in the country to demonstrate its ability to maintain long-term
compliance with so many problematic pollutants. It has taken us over 20
years to reach this point with a significant amount of effort invested
by a great number of people to comply with the federal requirements to
improve Colorado's air quality and protect it into the future.
Region VIII EPA has been particularly helpful in completing this
process over the past three years. Without their upfront involvement in
the process we would not be where we are today. We applaud Region VIII
for their participation in our efforts and their willingness to express
their opinion on our approaches to demonstrate long-term compliance
with the requirements of the Act in regards to returning Colorado non-
attainment areas to attainment status. We would suggest that all
regional EPA offices be involved in the development of proposed plans
for non-attainment areas to demonstrate long-term maintenance of the
national standards as EPA has been with Colorado.
This is our greatest success story of implementing the requirements
of the Clean Air Act, with the help of EPA. Additionally, my comments
today will focus on; 1. Requirements for vehicle inspection and
maintenance programs; 2. EPA guidance and its usefulness to states; and
3. The Regional Haze Rule
Vehicle Inspection & Maintenance Programs
Colorado believes that enormous emission reductions have been
achieved over the years through the implementation of the federal
Corporate Average Fuel Economy Standards and that these standards have
provided much of the benefit that carbon monoxide and ozone non-
attainment areas have relied upon to achieve the national standards.
However, it has been necessary to implement vehicle inspection and
maintenance programs in many non-attainment areas such as the Front
Range Communities in Colorado. These programs require all vehicles to
be tested to identify a small number of higher emitting vehicles that
require repairs to lower vehicle emissions to acceptable levels. In
some cases, such as Denver, enhanced vehicle inspection and maintenance
programs are required to be implemented under the Act.
Colorado believes that the technology and programs exist to
identify the high emitting vehicles without putting each motorist
through the process of visiting the vehicle testing center. We believe
that the implementation of such programs could be used to maintain air
quality compliance with the national standards and should be readily
provided for under the Act. These programs utilize remote sensing
instrumentation and can identify vehicles with lower emissions in
programs referred to as ``Clean Screening'' or conversely they can
identify vehicles with unacceptably high emissions in what is typically
referred to as ``Hi Emitter'' programs. This technology can be
implemented through a variety of passive or active programs. Remote
sensing can be conducted in real world or on road settings with
subsequent notification to motorists or with motorists actively being
pulled over on the spot for confirmatory testing and if necessary be
required to repair the vehicle such that the emissions are reduced to
acceptable levels.
In addition, current requirements for vehicle inspection &
maintenance programs mandate modeling techniques with EPA approved
models that have been sharply criticized to over-predict the impacts of
mobile source emissions on ambient air quality. In fact, the National
Research Council reached this conclusion in their 2001 report where
they stated;
The MOBILE model will continue to be used to determine future
emissions-reduction credits that states will receive from
implementing I/M or from modifying their current I/M programs.
MOBILE is a static, not a dynamic, model and is therefore a
simplified representation of emissions changes from I/M.
Historically, MOBILE has overestimated emissions reductions
from I/M programs. It remains to be seen whether MOBILE6, which
is a major revision from MOBILE5, will also overestimate I/M
benefits or whether it will be a more accurate representation
of I/M benefits. Indications are that MOBILE6 will estimate
lower emissions reductions from I/M programs than are estimated
by MOBILE5.
While MOBILE6 is an improvement with respect to quantifying the
benefits of an I/M program, we are concerned that the model still does
not accurately reflect the benefits of the I/M program nor does it
quantify the degree of certainty with which it predicts the benefits.
As mentioned, it is a static measurement and does not reflect what is
actually happening in the real world. While identifying this problem is
easy, identifying the solution is not. One problem is that while
MOBILE6 is an improvement over MOBILE5 it has taken so long for it to
come out that newer data is most likely available that would be more
reliable. Therefore, a recommendation that we would make is that the
turnaround time on revisions to the MOBILE model be reduced so that it
is not outdated when we receive it.
EPA Guidance Documents
Over the years EPA has undertaken an enormous effort to develop
guidance documents and keep track of numerous memorandum of
interpretation of the programs and provisions of the Clean Air Act.
These guidance documents and memorandum can be useful resources,
however, they are often adhered to as if they were rules and
regulations in and of themselves. This often strict adherence to
guidance blunts the attempts of state agencies to creatively apply air
quality strategies to meet the requirements of the Act to the situation
of the day. All to often we experience circumstances of a situation
that are different than the guidance, but we are required to adhere to
the guidance and make it fit. This is particularly true in the modeling
of emission impacts and permitting of stationary sources.
Colorado suggests that guidance documents should be just that--
guidance on how to achieve the desired result. We believe that guidance
documents should be, at least somewhat, open to interpretation. We
believe that guidance documents should present a readily approvable
avenue to compliance, but not the only avenue. We also believe that the
programs we submit for consideration of approval into our State
Implementation Plan should not be put on hold until guidance is
developed only to have the program subsequently rejected because it
does not follow the guidance.
We propose that implementation of the Clean Air Act could me made
significantly more flexible by changing the approach that EPA has taken
to reliance on the guidance documents and the memorandum of
interpretation it has created. We believe that this added flexibility
could address many of the issues that we, and other states experience
in attempting to implement the requirements of the Clean Air Act.
Colorado has previously commented on the inflexibility of guidance
in regard to the overhaul of the New Source Review Program and the
proposed multi-pollutant legislation and can make those comments
available.
Regional Haze Rule
The regional haze rule focuses its primary emission reduction
requirements on major stationary sources of visibility impairing
pollutants. There are many sources of pollutants that contribute to
visibility impairment in our National Parks and Wilderness Areas,
however, the first phase of the rule focuses on application of control
technology requirements to stationary sources alone through the
analysis of Best Available Retrofit Technology. This process is
complicated and litigious at best and unworkable at worst, and in fact,
the DC Circuit Court of Appeals, a little over a week ago, remanded the
determination of BART in the regional haze rule back to EPA for further
action.
On Friday, May 24th the DC Circuit Court of Appeals issued its'
ruling in American Corn Growers Association versus United States EPA.
It appears that the Court ruled that the process of analysis to
determine the most appropriate Best Available Retrofit Technology to an
individual source was invalid. The Court vacated the BART rules and
remanded them to EPA. In its opinion the court expressed that the
manner in which EPA addressed the five factors to be considered in a
BART analysis were inconsistent with the text and structure of the Act.
Colorado believes that prior to our moving forward with
implementation of the regional haze rule, EPA needs to resolve the
provisions that were remanded by the court. While it is important to
resolve haze issues in our country's Class I areas, we suggest that the
legal issues raised with the rule must be resolved before we can move
forward with its implementation. Under the rule western states were
provided two options to comply with the rule and at this point at least
one of those options is blurred. In Colorado, the choice of which
option to pursue has been very controversial. We were on the verge of
making that choice as the court issued its ruling. Now, we must take a
step back and understand what the court has done as well as wait for
EPA to take action on the remand.
Mr. Shimkus. Thank you, and we appreciate your attendance
today.
I think the chairman has directed that I ask Mr. Shadegg if
he would like to take the first round of questions. You have 5
minutes.
Mr. Shadegg. Yes, I would very much. Thank you very much. I
will be brief.
I want to begin by asking you, Mr. Williams, about the
issue of diesel and the--you touched upon in your testimony the
issue of diesels that are currently exempt. As I understand it,
that includes diesel construction equipment, anything that is
considered off-road diesel equipment. Does that include--and
that would include construction equipment and farm equipment,
is that correct?
Mr. Williams. Yes.
Mr. Shadegg. Does that also include diesel railroad trains?
Mr. Williams. I believe EPA has a separate rulemaking for
locomotives.
Mr. Shadegg. It has a separate rulemaking?
Mr. Williams. I believe so.
Mr. Shadegg. Okay.
Mr. Williams. And I think also for marine engines there has
been a separate rulemaking. So the primary--I am sorry.
Mr. Shadegg. Can you elucidate for me when those exemptions
were granted, whether or not you think they are appropriate,
and how you think we ought to address whether they should be
continued or they should be brought in? Because it seems to me
if we are doing--we are making real progress on over-the-road
diesel engines, and while I don't disagree with having exempted
them initially, it seems to me at some point you have to
broaden the net and bring in other sources. And I guess I am
interested in specifically what it is you recommend with regard
to those sources.
Mr. Williams. I don't know that it is so much an exemption
as that they have not yet been regulated through the Clean Air
Act. The first significant category were the on-road diesels,
both with the technology--the emissions technology and sulfur
in the fuels.
This remaining category of non-road, which includes
construction, industrial, agricultural, really dwarfs, in terms
of the magnitude of emissions, the on-road. And what we have
recommended is a very similar approach over similar timeframes
both addressing the technology for emissions control equipment
on the engine side, but also significant reductions in the
sulfur on the fuel side.
We believe that this--addressing this category of diesel,
the non-road heavy-duty diesel, will dramatically improve air
quality, will help make progress both on the ozone and the
PM<INF>2.5</INF> standard. Of course, there is growing concern
about the carcinogenic impacts of diesel. So we do believe that
this is a very important and appropriate role for EPA to extend
regulation to, and we are hopeful and optimistic that by the
end of the year EPA will undertake a rulemaking to do that.
Mr. Shadegg. Well, we are making progress I think on clean
diesel. We are getting close. I believe there is a
significantly improved standard to be in effect for 2004. And I
hear discussions--and I have asked a couple of people that are
constituents of mine whether it is accurate, and I get
differing opinions. But I hear that in the not-too-distant
future we are on the verge of a diesel engine that is cleaner
than a natural gas engine. And there has been some discussion
of that.
I read a letter to the editor here in Washington, DC. The
DC City Council just bought a bunch of natural gas buses, and
shortly after doing so a letter to the editor appeared saying
that was foolish because they are costly, and we are on the
verge of a diesel engine that is cleaner than a natural gas
engine.
And while I don't want to impose a burden on some of these
industries, particularly the farm industry or the construction
industry, or, for that matter, the trains that move a great
deal of freight, it seems to me over the road was our first
target. If over the road has been the cutting edge to get to
cleaner diesel, then we ought to be expanding that cleaner
diesel out to where it is applicable in other sources.
And it seems to me if we are going to--there is no point in
having two different diesel fuels around. If we have a cleaner
diesel for over the road use, I see little reason to make it
not applicable also to off the road or used for engines that
are not on the road.
I guess the other question I would like to ask is Mr.--do
you pronounce your name Lepemke?
Mr. Lempke. Lempke.
Mr. Shadegg. Lempke. Okay. I was fascinated by your
testimony on the issue of guidance, and I was a little bit
confused. I want to make clear, what you are saying is that
using the term ``guidance,'' the EPA is essentially
establishing rules without actually creating rules. Or is it
that people just follow them as rules voluntarily?
I mean, is it a problem that EPA needs to correct by making
it clear that they are not--that you, as the State of Colorado,
are not bound by guidance? Or is it a problem that people just
don't have the courage to not follow guidance?
Mr. Lempke. Thank you. I think it is a little bit in
between the two of those.
Mr. Shadegg. Okay.
Mr. Lempke. I think everybody realizes that they are not
enforceable as rules. But in practice, overcoming that is
difficult. So just, you know, leaving those guidance documents
and those memorandum up to a little bit of interpretation to
the situation of the day, so to speak, would be a bit more
helpful, you know. Just a little bit of change in the way that
EPA overall looks at those.
Now, we have worked with Region VIII pretty well on that,
but it is difficult sometimes. As I think was mentioned earlier
in a presentation here today, some of these guidance documents
are, you know, hundreds of pages long. And that, in and of
itself, is a giant hurdle to get over when you are trying to
look at trying to implement a program.
Mr. Shadegg. Well, I am very sympathetic with your call for
flexibility. My home State is Arizona. The air pollution
problems we face in Arizona are dramatically different than
they face in, say, Maine, or maybe even Virginia. We have
severe problems with particulate driven by dust. That is not a
problem in other parts of the country. We have lots of dirt
roads still in existence.
We have just lots of issues, and there are many places
where we need flexibility, and I thought you made a rather
compelling case for how flexibility has worked for Colorado.
And if the Congress needs to address this issue of making it
clear that guidance is guidance, and that you cannot be held
accountable for deciding that that guidance doesn't work for
your State, I would be happy to work on that point, because I
think that is a valid point.
If, in fact, something rises to the level of requiring a
rule, make it a rule. But if it is guidance and it will work
for Maine or Minnesota or Michigan, or someplace where it is
wet and green, but it won't work for parts of Arizona which are
dry and brown, or, for that matter, parts of Colorado that are
dry and brown, I think you need the flexibility to use what
works in your region.
Mr. Shimkus. The gentleman's time has expired. The Chair
recognizes the gentleman from Ohio, Mr. Sawyer, for 5 minutes.
Mr. Sawyer. Thank you very much, Mr. Chairman.
Mr. Jones, thank you very much for being here and for your
testimony. You talked about the significant progress that our
State has made in meeting the 1-hour ozone standard. Are there
regulatory approaches in Ohio that can serve as lessons
elsewhere in the country, either for the 1-hour standard or for
other standards that are involved in the Clean Air Act?
Mr. Jones. Mr. Sawyer, I probably risk alienating the
Northeast States. They get offended when I say we are in
attainment and they are not. Part of what we did, as you know,
was the enhanced automobile emissions testing, which I think
has been described as the single-most unpopular program Ohio
has ever put in place.
Mr. Sawyer. Painful.
Mr. Jones. But we did it at a relatively low cost for the
motoring public, and we did it to our targeted non-attainment
areas.
What we attempted to do was essentially broaden the base
that sought reductions. We have obviously made significant
reductions, believe it or not, in our powerplant emissions. I
think the statistics I mentioned in my testimony are an
indication that we have literally gone after pretty much all of
the sources in our State, and we will face that again with the
new 8-hour standard once we get an implementation plan
promulgated by U.S. EPA.
But I think the one item I would suggest is there has to be
the ability to look at regional approaches. But your definition
of ``region'' is the key. I think we are--we have never said
anything but that we have an impact on Western Pennsylvania,
and I think that is what all of the modeling says. We have a
very hard time convincing people that the State of Maine is in
non-attainment because of Ohio.
Certainly, there are transport issues, and we have
acknowledged that, but there is a need for a regional approach.
And where it is particularly important is an area like
Cincinnati. The Cincinnati metropolitan area actually goes into
Northern Kentucky, which not only puts us into another State
but into another U.S. EPA region.
And you have the potential for literally the same
metropolitan area having separate designations from separate
U.S. EPA regions governed by different State law and
regulation. And it makes it tremendously complicated for us to
try to come up with something that isn't impacted downwind.
Mr. Sawyer. What can we do from here?
Mr. Jones. I think the--and this is the difficult part of
it. You keep hearing about flexibility from us, and I think
that is the linchpin. I think there is--there seems to always
be a concern that there will be a race to the bottom at the
State level. And I think what you have seen when you look at
the facts is the States aren't racing to the bottom.
Mr. Sawyer. I think that is----
Mr. Jones. In simplest terms, we can't afford to. And so I
think allowing States to experiment, and sometimes not succeed,
is a key to this. And, unfortunately, the penalties that are
imposed are significant, and there is not a lot of incentive
not to follow the guidance or follow the cookbook.
Mr. Sawyer. Everybody has talked about flexibility, and
some of you have talked about the importance of market-based
trading systems.
Could you care to comment--would any of you care to comment
on the efficacy of such systems in dealing with mercury? No?
Mr. Nicholson. Well, I think just a quick reaction, I know
people do get excited about that prospect, maybe in both
directions. But a lot of people feel like that given the
immediate area health concerns that maybe that is not the right
course to follow.
We haven't, in North Carolina, given it a lot of thought
yet, even though our bill, our Clean Smokestacks Bill, has a
provision where we are to study the issues of need for control
further than what we may get with our scrubbers for the SO2,
which we hope to get a considerable co-benefit. But we are to
report back to the legislature in 2005 with recommendations on
what to do about mercury beyond what we might otherwise be
getting.
But we are allowing trading within the State for the SO2
control. So this will be an issue we will have to study. I
think, though, any program that would allow trading must
necessarily have a provision that allows for protection of
local impacts, assuming we can learn enough to understand how
to do that. That could very well be an issue, and what are
those impacts and the nature of them.
Mr. Sawyer. Thank you.
Mr. Shimkus. The Acting Chair now turns to the chairman of
the subcommittee, Mr. Barton, for 5 minutes.
Mr. Barton. Thank you, Mr. Chairman. I enjoy being down
here. I can throw bombs from here. You know, I can't--I have to
be responsible when I am sitting where you are sitting.
I want to commend our panel today. We have worked very hard
to try to get a balanced panel of State and local input on the
Clean Air Act. And I have read your testimony, and I have
listened to some of the answers to the questions, and I just
want to compliment each of you individually for being here.
I have a general question, and then I have some specific
questions. My general question, which is open to all of you, we
have a--I think our representative from Utah put it best, that
the basic model of State, Federal, and local interaction, or
that Federal set the standard but we ask the States and locals
to help implement it, with kind of a negotiation or a
cooperative approach, it works, but it works very cumbersomely.
One of the things that the Feds have which causes a lot of
consternation at your level is this ability to threaten these
huge fines and the withholding of highway funds if you don't do
certain things. Now, those threats are normally made by some
mid-level, non-responsible EPA representatives, so that if your
level complains to my level, and my level complains to the EPA,
the EPA says, ``We didn't do that,'' because it didn't come
from the person who could actually impose the fine or withhold
the funds.
We have to have some hammers. So my general question--and
if you all can't give us an answer today, if you want to talk
to your association groups--I would be very interested in an
alternative hammer. In other words, doing away with the
withholding of highway funds or the threat of withholding of
highway funds.
If we were to eliminate that, but still need some sanction
weapon, some sanction instrument in the Federal arsenal, what
would that be? How could we maintain the general model yet
eliminate the highway fund withholding and maybe these huge
fines, but still give the Federal Government some ability to
sanction its State and local governments--just refuse to
cooperate.
If you all want to take a stab at it right now on the
record, fine. If you want to think about it and get back to us
in writing, that is fine, too. But that is my general question.
I think, Mr. Jones, you have got a comment.
Mr. Jones. Mr. Barton, I am the sixth kid in my family, and
our negotiations with the U.S. EPA are a lot like when I
negotiate with my older brothers.
Mr. Barton. Big brother, huh?
Mr. Jones. Yes, I can negotiate, but that is my big brother
and they are going to win. And I think without talking to my
colleagues at ECOS, I think part of it is the incentive side of
it. Other than the intrinsic value of cleaning the environment,
you don't necessarily gain anything by doing more or meeting
the deadlines.
And there is certainly an intrinsic value to improved
environmental conditions, but beyond that there is a big hammer
and not sort of a co-equal incentive on the other end.
Mr. Barton. Well, it is a hammer that is seldom used. But
it is often intimated that it will be used. So what I am
looking for is something that you may not threaten it as often,
but if the State and locals don't cooperate, you could actually
use it, but the highway thing just seems like a nuclear bomb. I
mean, and in Texas when, you know, cars stalled in traffic in
the Dallas/Ft. Worth area probably are 60 percent of the
emissions problem, it doesn't make a lot of sense to withhold
highway funding, which is going to make the problem even worse.
Does anybody else want to comment on it before I go into my
specifics? Let the record show they are all shaking their heads
no.
I want to ask the gentleman from Colorado, one of your
citizens 12, 13, 14 years ago, when we did the Clean Air Act,
came to me with an idea for remote sensing, which some--I think
in its commercial form is called the Smog Dog. EPA has pretty
well fought that tooth and nail in terms of giving credits for
using it. But good ideas actually do work, and that technology
does work, and it has been used in some parts of the country.
Colorado has used it some.
What would you recommend we do if we--when we do
legislative revisions to the Clean Air Act to perhaps increase
the availability of that as a solution to some of the issues
that we are trying to address?
Mr. Lempke. Thank you. The Denver metro area, as a serious
carbon monoxide non-attainment area, was required under the
statute to implement an enhanced inspection and maintenance
program, when we fully had available a remote sensing
technology that we could have looked at to implement instead of
an enhanced vehicle inspection and maintenance program.
The reason that we were termed serious is not because we
had such excess violations. It was really because we had a lag
in the time of turning in a plan to show long-term compliance.
I think that if Congress or EPA were to act by statute or
regulation, it would simply be to provide the opportunity under
the rules or the provisions to allow for the implementation and
the use of clean screening in either of those two fashions, or
the implementation of remote sensing in either of those two
fashions, sort of in the identification of clean vehicles and
screening them out of the fleet, or identifying the high
emitters. That technology has--or that process has a little bit
more of a challenge I think on implementation, but it is still
out there and seems to be, from our perspective, pretty viable.
Mr. Barton. Okay. My time has expired. I am going to--I may
have a wrap up question when we get back from the vote. We will
go to the other side.
I do want to let you know one thing. We are going to do a
number of hearings on the Clean Air Act. We are not going to
rush to judgment one way or the other. But when we get ready to
go to possible legislative solutions, you know, I am really
going to encourage members of this subcommittee to work with
their State and local officials to come up with constructive
improvements.
If we are going to continue to get the air quality cleaner
and cleaner, which we all want to do, we have got to depend
upon people at your level to give us real world potential
solutions, because they will not come from this town. They are
only going to come from people that are there on the streets
every day trying to make the Clean Air Act work.
So while we don't have a lot of members here, this hearing
and the follow up to it is one of the most important hearings
we are going to do in terms of looking at the Clean Air Act.
And I yield back.
Mr. Shimkus. Thank you, Mr. Chairman.
I would just say on the remote sensing, I know the State of
Missouri uses it on exit ramps. I am from Illinois, but I
travel through there, and they bill--they just send the passing
form to their citizen. And sometimes the citizens forget to
send in the money. So even though they have been told they
passed, they haven't paid for the certification that they
passed the test. But it is a--it is working in the State of
Missouri from what I understand.
I would like to yield to my other colleague from the State
of Ohio, Mr. Strickland, for 5 minutes.
Mr. Strickland. Thank you, Mr. Chairman.
Mr. Jones, I will ask you a question on today's topic. But
before I do that, I would just like to ask one question
regarding the issue that I brought up in my opening statement
regarding DOE's plan to ship this what I would call waste--they
may choose to call it something else--to the Portsmouth site.
Has DOE discussed that with you, to your knowledge?
Mr. Jones. Well, Mr. Strickland, we have had general
discussions with DOE at the Ohio field office level, but not in
particular. I did have people at the meeting last night. We
have already been in touch with a couple other States,
Representative Portman's office. We don't believe any
additional shipments should occur until we get very clear
decisions made by DOE to fulfill what we believe, as you do, is
the commitment to plants. And we are very concerned about where
this is going.
We have expressed that a number of times to the Secretary,
and we will continue to press it. But we certainly share your
concern. The Governor has been very involved in trying to work
through this situation, as you have, and we very much
appreciate your support as well. But we very much plan to
comment on the meeting last night.
Mr. Strickland. Thank you, sir. It is very reassuring to
hear you say that.
The only question that I have, and I know my friend Mr.
Markey probably has lots of questions that he wants to ask, so
I am just going to ask one question, and then, Mr. Markey, if
you would like, I will yield the remainder of my time to you.
You have indicated in your testimony that the Title V
permitting process is a problem because there have been
decisions to change forces in the middle of the stream, so to
speak, and that a program that Ohio had that was considered
sufficient, even a model program perhaps, is now being looked
upon as a model--or as an effort that is inefficient or
deficient and may be--you know, although the law hasn't
changed, you know, you are being judged in a different kind of
way.
And I am wondering if you would just make a statement about
that, and I am wondering if the others feel--if they are
confronted with the same kind of dilemma--result of changing
expectations after you have made good faith efforts to comply
in every way.
Mr. Jones. Actually, I think part of the frustration with
changing it is that, obviously, we haven't done the most
complicated Title V permits yet. We still have additional
fairly complex permits, the utility permits, some of the
refinery permits that have to be done. Part of this process was
building up an ability to do Title V permits, the training that
goes into learning how to do that, to prepare you to do the
really complex ones.
Well, 6 years ago we had a fully delegated program, and
last November we got a letter that basically says seven
different parts of your program, although they haven't changed,
are now deficient. And when I look at them, some of them are,
in my mind, kind of silly. I mean, we--the comment was, we
don't require a report to appear in our 6-month reports.
Well, right, we require them in a quarterly report. It
strikes me that is a little more frequent. Doesn't make sense
that that is a deficiency, but that is something that we have
to then go through the rulemaking process at the State level,
which involves public hearings, comment period, responsiveness
to comments, then the legislative process, to approve rules.
So it doesn't do anything to help us get these permits done
in a timely manner, and I think everybody here shares the same
problem. We haven't met the deadline. We are trying to meet the
deadline. We have got--we have submitted a new schedule to U.S.
EPA to try to actually beat the next deadline. When you change
programs in the middle, it is going to make it hard for us to
meet that deadline.
Mr. Strickland. Thank you.
I yield back my time to the Chair. If Mr. Markey wants it,
I would be happy to yield it to him.
Mr. Shimkus. The gentleman is recognized for 25 seconds.
Mr. Markey. Thank you, Mr. Chairman, very much.
You know what is interesting is that everyone comes here,
they wait in line, and then they watch it on the screen up
there.
You know, like they could sit back in their office and
watch it on WebTV, you know, Webcast. But that way they
wouldn't be able to tell everyone back in the office who else
was there. Okay? So I think that is the only reason people come
now, because they are only coming and getting a good view, you
know, of the screen. But they can go home and say who--what
other interests were represented in the room that the TV didn't
pick up.
Anyway, I thank you, Mr. Chairman.
It is an interesting phenomena, though, watching where
people's eyes are during the testimony.
So we have this problem in New England. We are not
represented on this panel, first of all, so we begin there. So
we will have to try to construct, to some extent, the position
that----
Mr. Shimkus. The Chair would hate to interrupt my friend
and colleague, but we are already 30 seconds over the final end
of Mr. Strickland's time. If you would allow me to move back to
regular order, I will try and make my questions real quick, so
that you would have time to ask yours.
Mr. Markey. Oh, sure. Have you--you haven't recognized
yourself yet?
Mr. Shimkus. I always defer to my colleagues.
Mr. Markey. Oh, no. I didn't know that you hadn't asked----
Mr. Shimkus. No, we are still--we still have Mr. Whitfield
and myself, and we are bouncing back and forth.
Mr. Markey. Oh, I did not know that. I did not know that.
Okay.
Mr. Shimkus. And I will be quick. I wanted to ask Ms.
Nielson, based upon the May 24 DC Court of Appeals decision
recently on the EPA's regional haze, can you please clarify
whether the recent Appeals decision will inhibit the WRAP Annex
or the States that are parties to the Annex from moving forward
to address regional haze and visibility issues in the west?
Ms. Nielson. Mr. Chairman, I don't believe it will impact
the Annex or the Section 309 programs. The Annex, in fact,
includes a set of milestones which are specifically designated
within the rule that is now out for public comment and a
backstop trading program, both of which will assure that we
make reasonable progress.
So I believe that the Annex could go forward through
rulemaking. We hope EPA will adopt it promptly, because, as I
indicated in my testimony, that needs to be in place for us to
submit SIPs by the end of December 2003. And that with that
rule in place that the Section 309 program, as the State of
Utah looks at it, could go forward.
Mr. Shimkus. Great. Thank you.
Mr. Lempke, I am also very interested in New Source Review,
and I think in your testimony you talk about some of the
problems of the limitations. Can you readdress that for us?
Mr. Lempke. Thank you. Some of the primary problems that we
have had in New Source Review is with the guidance documents.
EPA has issued several interpretations, memoranda of
interpretation with regard to how the New Source Review Program
is implemented. And some of these guidance documents and
memoranda are even conflicting with themselves.
It has been very difficult for the State of Colorado to
implement some of the New Source Review provisions and comply
with the guidance also.
Mr. Shimkus. Go ahead and just continue talking. We are
used to them.
Mr. Lempke. So it is--some of the provisions of the New
Source Review Program, in regards to the guidance, have been
most difficult for Colorado.
Mr. Shimkus. Thank you. And if I can get Mr. Markey back in
here, I will give him some of my final time.
And, Mr. Whitfield, is he--Mr. Whitfield, for the sake of
time, I will just yield my remaining 2\1/2\ minutes to you. And
if you can pick up on your questions.
Mr. Whitfield. Well, I had a number of questions, Mr.
Chairman, but we are voting. I have got somebody out here, and
I know these people have been very patient. But we will have a
number of other hearings on this, but one issue that I want to
just touch on briefly--on this issue of non-attainment, how is
it determined in each State where monitors are placed to
determine if a particular county or a city is in non-attainment
or in attainment?
Mr. Nicholson. I will try to answer that. Brock Nicholson.
There are criteria that EPA suggests that States use in terms
of locating monitors to cover population, types of areas,
whether it be rural or urban, and then the States also place
monitors to support modeling demonstrations or gather data to
understand the impacts of urban areas. In fact, that is one of
our problems in terms of designation of areas.
We have what we think have been good technical reasons to
do these models properly, placed monitors downwind of urban
areas, typically in rural areas. And, of course, one of the
issues that we are facing is once we measure a violation in
that rural area, even though we think it properly represents
the upwind urban area, which may be 30, 40--20 to maybe 60
miles away, that it properly indicates the problem from the
urban area, not necessarily the--suggesting a strategy is
necessary specifically for that rural area, even though it does
indicate, you know, population exposure and non-attainment
there. So that is one of our issues.
In terms of the recommendations we are suggesting for areas
of violation and areas of influence, that kind of approach
could help better address that issue than a one-size-fits-all,
whole counties, whole MSAs.
Mr. Whitfield. Well, how many monitors does the State of
North Carolina have?
Mr. Nicholson. We have--for ozone, we have a fairly
extensive network, and we have anywhere from 44 to 47 a year--
operating a year statewide. This is ozone monitors. And about a
comparable number of PM fine.
Mr. Whitfield. And, Mr. Williams, in Louisville, how many
monitors are there in Louisville?
Mr. Williams. Mr. Whitfield, we have three monitors in
Jefferson County, and then we have one each in Clark and Floyd
and Southern Indiana, one in Bullitt, and one in Oldham. So we
have a total of seven in the non-attainment area.
Mr. Barton. [presiding] The gentleman's time has expired.
Mr. Whitfield. Okay.
Mr. Barton. If there are any other questions, put them in
the record. We have got--recognize Mr. Markey for 5 minutes,
and, if no other member shows up, then that will be our last
in-person questioner, and we will adjourn.
Mr. Markey for 5 minutes.
Mr. Markey. Thank you, Mr. Chairman, very much.
There is no New Englander on the panel. Just the way the
winds blow, much of what happens in a big chunk of the country
just blows the bad air over New England. That is just the way
the air currents work.
And so it is a little bit like being in a restaurant and
having 10 guys over there on that side of the restaurant decide
they are going to all break out cigars after dinner. And there
is a fan right behind them blowing it all the way across the
other side of the room toward you, and you are still eating
dessert. And somebody goes over to complain, and they go, you
know, ``Cut it out. You know what I mean? We have got a right
to smoke cigars. You know? It is a free country.'' And so, you
know, you decide you are going to start a movement to ban
smoking in restaurants, you know, because you get very upset
with them because they are not being respectful of what is
happening with that fan blowing the smoke in your face. That is
what happens to us, so we get a little bit upset by it and
pretending that it has no impact on us.
Mr. Nicholson, in your testimony, you touched on the need
for stringent national standards for pollution sources
contributing to problems beyond their State and regional
borders. What parts, very quickly, of the Clean Air Act have
helped control this interstate pollution problem?
Mr. Nicholson. Well, I think that is correct. I do believe
that we need national rules to help take care of this issue,
even though we may have differences of opinion on the extent to
which long-range transport occurs. Our results of our analyses
suggest that we do need, under the national program, control
across the Nation to deal with this issue, not necessarily----
Mr. Markey. What have you learned from the Southern
Appalachian Mountains Initiative that could be helpful?
Mr. Nicholson. I think a key thing we have learned is that
it is important to control in every State. Each State gets the
greatest benefit from control in its own State, with some
spillover benefit to its neighbors. Long-range transport is not
as long-range as we had originally thought. It is a significant
lesson learned, but necessary to be controlled across the whole
region or country to effect benefits, even downwind in New
England.
Mr. Markey. Mr. Williams, do you agree with Mr. Nicholson?
Do you agree with Mr. Nicholson as to the limits of how far
this pollution can travel?
Mr. Williams. Well, I assume he is talking primarily about
ozone. I think ozone has a several hundred mile reach, based on
the studies I have seen coming out of the Ozone Transport
Commission. And certainly Section 126 of the Clean Air Act is
an important mechanism that has been used in the northeast to
impose obligations in particular on the Midwest of the U.S.----
Mr. Markey. So are you saying that you don't believe that
New England is affected by----
Mr. Williams. Oh, no.
Mr. Markey. [continuing] what is coming out of the Midwest?
Mr. Williams. No, I am agreeing with you.
Mr. Markey. Oh, you are agreeing with me.
Mr. Williams. Yes.
Mr. Markey. Okay. So do you agree with that as well, Mr.
Nicholson, that we are affected in New England by what happens
in the Midwest?
Mr. Nicholson. Well, I think it is a matter of degree. I am
not saying that all of New England's problems only come out of
the Midwest. There may be days on which there are reasonable
contributions. I think what is important is every State
intervening between the Midwest and the New England area needs
to control, to a significant degree, and I think if everybody
does their share then we will all be better because of that.
Mr. Markey. We now have 8 million children in the United
States with asthma, 16 million adults, 24 million Americans
with asthma all together, and the number just continues to
skyrocket. And we know it is logically related to the air that
people breathe in their lungs, and obviously this is about as
serious a health care problem as you could have.
Mr. Williams, New England regulators have also expressed
strong support for the New Source Review Program. They believe
that New Source Review has led to significant advancements in
pollution control and that these advancements would not have
come about without technology control-based regulation. Do you
agree with that assessment?
Mr. Williams. Yes. STAPPA/ALAPCO agrees with that
assessment.
Mr. Markey. Now, as you know, the administration's Clear
Skies proposal is linked to elimination of the New Source
Review Program. Jeffrey Holmstead, EPA Assistant Administrator
for Air and Radiation, has said that New Source Review would
provide no benefits, and even would be counterproductive with
an emission trading system. Do you agree or disagree with Mr.
Holmstead?
Mr. Williams. We have had over 10 years of involvement with
EPA and other key stakeholders working on NSR reform. We
clearly believe that NSR should be reformed, that there are
opportunities for improvement. We believe it should be retained
and improved.
Mr. Markey. He says that there are no benefits, and it
would be counterproductive to have a New Source Review. Do you
agree or disagree with Mr. Holmstead?
Mr. Williams. I would tend to disagree with that.
Mr. Markey. Disagree. Okay. Hasn't New Source Review and
the acid rain program also, and emissions trading program, same
concept, successfully coexisted since the 1990 amendments to
the Clean Air Act?
Mr. Williams. Yes.
Mr. Markey. Yes. Isn't it necessary to maintain the New
Source Review Program in any national emissions trading program
in order to protect local and regional public health?
Mr. Williams. Our associations believe that is true.
Mr. Markey. Yes. How about you, Mr. Nicholson?
Mr. Nicholson. Well, I think certainly a form of New Source
Review should remain. Whether it is the existing one, that is a
good question to look at.
Mr. Markey. Do you disagree with Jeffrey Holmstead when he
says that the New Source Review would provide no benefits and
even would be counterproductive? Do you agree or disagree with
that?
Mr. Nicholson. Well, whether or not I agree or disagree, I
don't understand the basis of his comment. So I guess I cannot
comment on that.
Mr. Markey. If those were his comments, would you disagree?
Mr. Nicholson. I would tend to disagree with that.
Mr. Markey. Tend to disagree.
Mr. Nicholson. Yes.
Mr. Markey. Okay. So, Mr. Chairman, I know that time is of
the essence here, and there is a roll call on the floor. Again,
I think this is the No. 1 public health issue in the country,
and I think that we just have to deal with the fact that we are
shortening the life expectancy of millions of people even as we
are funding NIH to solve, you know, the--to find the clues to
diseases.
Simultaneously, we have a program which creates disease,
and I am afraid that increasingly we are finding that in most--
in many, many cancers that the links are environmental and not
genetic. And, in fact, only 10 percent of cancer is, in fact,
genetic. That most of it comes from some other place in our
economy.
And since we also know that Japanese women, for example,
contract breast cancer at only one-quarter of the rate as
American women, but within one generation after coming to
America they contract it at the same rate as American women,
then there is something in our environment. There is something
in what we do in this country. And I think this is a big part
of it, the way in which we treat emissions from these
powerplants and from automobiles as well.
Mr. Chairman, I yield back the balance of my time.
Mr. Barton. I thank the gentleman from Massachusetts. We
will have other written questions for the record. I want to,
again, thank each of the panelists for your excellent testimony
and participation. We will be in touch.
This hearing is adjourned.
[Whereupon, at 3:44 p.m., the subcommittee was adjourned.]
[Additional material submitted for the record follows:]
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