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Congressional Testimony
September 27, 2000, Wednesday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 7160 words
COMMITTEE:
SENATE environment & public works
SUBCOMMITTEE: clean air, wetlands, private property,
and nuclear safety
HEADLINE: TESTIMONY CLEAN AIR,
WETLANDS, PRIVATE PROPERTY AND NUCLEAR SAFETY CLEAN AIR ACT
TESTIMONY-BY: RON METHIER , GEORGIA ENVIRONMENTAL
PROTECTION DIVISION
BODY:
September 27, 2000
TESTIMONY OF RON METHIER Chief, Air Protection Branch Georgia Environmental
Protection Division Before the Sub-Committee on Clean Air, Wetlands, Private
Property and Nuclear Safety, of the Committee on Environment and Public Works
The Clean Air Act: Revisions to Help States Achieve The Goal of Clean Air Good
afternoon ladies and gentlemen: My name is Ronald Methier. I am the Chief of the
Air Protection Branch of the Georgia Environmental Protection Division. On
behalf of the State of Georgia, I would like to thank you for this opportunity
to testify on what is a very important issue, not only to the people of Georgia,
but I believe to the people of the United States as a whole. You have asked me
to address the important topic of what, if anything, needs to be "fixed" in the
Clean Air Act. What is working in Georgia and what is not? What can be done to
address the problems? In thinking about these questions, we have concluded that
the single most valuable "fix" that Congress could effect would be to increase
the flexibility given to both EPA and the individual states, to allow the states
to take advantage of solutions most relevant and most effective for their
regions. Today, I will give you our perspective on the Clean Air Act and discuss
two specific areas where the Act's lack of flexibility makes it difficult for
Georgia to address its air quality problems in a timely and cost-effective
manner. First, I will address the difficult situation Georgia faces in trying to
meet the Act's strict attainment dates - - an unachievable goal, because these
dates apply even to areas which, like Georgia, are significantly affected by the
transport of pollutants from other states. Second, I will show how the rigidity
of the Acts specific mandated control measure such as federal fuel requirement
say be more hindrance than help in Georgia's struggle to achieve attainment. The
federal government and the states share the same goal ational clean air, as soon
as possible. It is self-evident that this goal cannot be achieved without
federal and state cooperation and partnership. The complexities of some aspects
of the air pollution problem make it almost impossible for either the federal
government or states acting on their own, to develop and carry out all the
programs necessary to achieve nationwide attainment of Ambient Air Quality
Standards. This is especially true for a state like Georgia, which, like most
eastern and southern states, must contend with pollutants transported from
upwind states over which it has no control. Georgia has developed what it
believes are workable and scientifically sound solutions to these problems. Some
of these solutions are based on science developed long after the Clean Air Act
Amendments of 1990. EPA must be given the flexibility to allow states like
Georgia to take advantage of such state-of-the-art technology and scientific
knowledge in crafting regional solutions that will meaningfully contribute to
clean air throughout the nation. The last major amendments to the Clean Air Act
were made, as you know, in 1990. These amendments impose strict and specific
controls, ranging from required vehicle inspection programs to the required use
of specially formulated gasoline, on areas that fail to reach
attainment by a specific date. The decade since 1990, however, has seen
exponential advances in scientific knowledge about the causes of air pollution
and the solutions to it. The technology to implement these solutions has
likewise changed dramatically. Specific requirements prescribed by the 1990
Clean Air Act Amendments are, in some cases, no longer the most effective or
efficient ways to achieve clean air. The Clean Air Act, however, has not been
amended to reflect these scientific advances. As a result, EPA and the states
are left with limited ability to take advantage of new knowledge and technology,
to craft creative, regionally-specific solutions. If the Clean Air Act is to
remain relevant in this new millenium, something must be done to give EPA and
the individual states the flexibility to take advantage of the knowledge and
technological explosion of the 1 990s. EVOLUTION OF THE CLEAN AIR ACT To
understand this issue better, it may be useful to briefly revisit the evolution
of the Clean Air Act and how emerging scientific knowledge has shaped that
evolution. It seems apparent that for the last thirty years, Congress has
struggled with ways to mandate a solution to the nation's air pollution problem.
This seems especially true for Georgia's largest air pollution problem
round-level ozone. Congress first addressed the ground-level ozone problem in
1970, when it directed EPA to establish National Ambient Air Quality Standards
for ozone and other pollutants and directed the states to develop implementation
plans for the "implementation, maintenance and enforcement" of these standards
by 1973. In early recognition that partnerships between the states and the
federal government were crucial given the national character of the ozone
problem and the impact of ozone transport among states, Congress required that
these plans include provisions for "intergovernmental cooperation," in achieving
attainment of the Air Quality Standards. For a wide variety of reasons, despite
Congressional mandates, very little progress was made during the 1970's and
1980's toward attainment of the ozone standard. This failure was in large part
traceable to a lack of scientific understanding of the effects of ozone
transport, leading to an inability to quantify with specificity the control
measures necessary to reduce ozone transport impacts on downwind areas. By 1990,
when most areas had still not achieved attainment, Congress decided to employ a
much more specific and prescriptive plan in the Clean Air Act Amendments of
1990. Attainment deadlines were set and sanctions contemplated for failure to
meet those deadlines. Strict control measures were prescribed. The record
clearly shows that Congress felt it was crucial to force the development of
technology and science to correct the air problems. Congress also understood the
need for partnerships between the states and the federal government. Congress
recognized that ". . . a reas in some states may be unable to attain the Ozone
standard despite implementation of stringent emissions control because of
pollution transported into such areas from other states."' In 1990, Congress
entrusted EPA with the authority to convene "ozone transport commissions" to
study and propose additional control measures necessary to enable downwind
states to attain the ozone standard by the attainment date. With the transport
commission provisions, the "Good Neighbor" provision in section 1 10(a)(2)(D),
and section 126 authorizing states to bring suit to require control measures in
upwind states, Congress endeavored to provide the tools necessary for EPA and
the states to address transported pollution. Although we clearly understood more
about air pollution in 1990 than we had in 1970, scientific knowledge about the
causes and the solutions, however, was still in relative infancy. For example,
in 1990, the scientific community did not fully understand how ozone itself was
formed, nor did it recognize the significance of nitrogen oxides (NOx) in this
formation process. We did not yet recognize that, for the southeast, NOx rather
than volatile organic compounds (VOCs) were the critical factor in ozone
formation. Likewise, although transport was recognized to be a significant
hurdle, the regulatory agencies had limited ability to quantify or rectify its
impact. 'S. Rep. No. 101-228, at 48 (1990), reprinted in U.S.C.C.A.N. 3385,
3434. PROGRESS TOWARD ACHIEVING CLEAN AIR ACT GOALS Despite the problems with
scientific understanding, the 1990 Amendments have forced progress toward
attainment. Under the 1990 Amendments, Atlanta was designated a "serious" ozone
nonattainment area, with an attainment date of November 15, 1999. After some
initial problems, this plan is working. The 1999 attainment date proved not to
be practicable for Atlanta or for numerous other serious nonattainment areas;
but we have nevertheless made considerable progress in reducing pollution..
Despite the tremendous population growth of the metropolitan Atlanta area,
controls are already in place which have reduced peak ozone concentrations and
both NOx and VOC emissions. With additional controls coming on line, the Atlanta
area is now projected to attain the 1 -hour standard for ozone by 2004. Georgia
recognizes that much of the progress that it has made toward attainment is a
direct result of the various controls required by the 1990 Amendments. For
example, Georgia has benefited from the acid rain reduction controls, the
requirements for enhanced vehicle inspection programs, the
gasoline vapor recovery requirements, as well as the
requirement to prepare implementation plans showing specific rates of progress
toward attainment. Now, however, some of the specific controls enumerated in the
1990 Amendments have served their purpose and have, in fact, outlived their
usefulness. During the last ten years, vast strides have been made in
understanding the science of ozone formation. Likewise, the understanding of the
mechanisms and impacts of ozone transport are much improved. Consequently, some
of the specific control measures set out in 1990 are now obsolete. Likewise,
some of the attainment dates imposed by Congress in 1990 proved to be
unrealistic and, where attainment has been impeded by ozone transport, should be
extended. ATLANTA ILLUSTRATES MAJOR PROBLEMS WITH THE CLEAN AIR ACT As stated
above, Atlanta was unable to meet its 1999 attainment deadline. Atlanta was not
alone. More than twenty metropolitan areas all over the county are still
classified as nonattainment for ozone, as shown on the attached map. Except for
those areas ranked "extreme" or "severe," shown in red on the map, all of the
areas missed their statutory attainment dates. These areas range from California
to Connecticut, from Texas to Wisconsin, from relatively small cities like
Louisville, KY and Springfield, MA, to large cities like Dallas and Atlanta. The
reasons for non- attainment vary from location to location; there are important
regional and technical distinctions that affect the attainment efforts. The very
fact, however, that so many areas have failed to attain itself demonstrates that
something is not working the way Congress intended and certainly is not working
as effectively as it could. Atlanta's experience is illustrative of problems
that are common to many of these nonattainment areas. The reasons that the
attainment dates set by Congress proved unrealistic are clear now in a way that
they were not a decade ago. The attainment schedule began to fall apart when the
first attainment demonstration State Implementation Plans (SIPs) became due. For
serious non- attainment areas, these were due on November 15, 1994. As it turned
out, however, scientists at that time were just beginning to understand the
complexity of the transport problem. These gaps in knowledge made it impossible
for the states to forecast attainment by the given deadlines, or to determine
what additional controls might be required short of draconian, very costly
measures with uncertain efficacy. Because the modeling data was not available to
forecast attainment by the statutory deadlines, EPA, of necessity, extended the
deadlines for these submittals. In an effort to develop better models for
forecasting attainment and to propose solutions to the ozone transport problem,
the Ozone Transport Assessment Group ("OTAG") was formed in 1995 by
representatives of 37 states east of the Rocky Mountains, along with
representatives from EPA and industry and environmental groups. OTAG conducted
comprehensive studies of interstate ozone formation and transport. The group
concluded its work in June of 1997, six months after EPA had expected, and only
18 months before the serious-area attainment deadline. Even then, while the
group was able to conclude that NOx reductions were necessary to address
transport, it was not able to reach consensus on specific control
recommendations. Once again EPA took the reasonable step of extending the
deadline for submittal of the states attainment demonstration SIPs, this time
until April 1998. EPA took final action on the ozone transport problem in
September 1998. This final rule, generally referred to as the "NOx SIP Call,"
required 22 states and the District of Columbia to revise their SIPs to provide
for NOx reductions specifically quantified in the rule. The chosen control
measures were to be implemented no later than May, 2003. The NOx SIP Call has
been upheld by the D.C. Circuit, but the court recently extended the final
implementation date until May 2004. Thus, while Congress expected that it would
be feasible, with diligence, for serious nonattainment areas to come into
compliance by 1999, the protracted timetable required for EPA to finalize
regulations to address the complex problem of interstate transport of NOx has
prevented us from meeting that statutory deadline in Atlanta, despite our
concerted efforts. Georgia has already implemented regulations to obtain major
reductions in NOx emissions and is imposing controls at least equal to those
which will be imposed by the NOx SIP Call. Georgia projects that Atlanta will
attain the I -hour standard for ozone in 2004 as soon as the NOx SIP Call
controls reduce NOx emissions from our neighboring states. The uncertainties and
difficulties presented by Atlanta's failure to meet the statutory attainment
deadline illustrate critical problem areas in the Clean Air Act. Georgia has
already adopted extensive control measures on both stationary and mobile
sources, all of which work to reduce ground level ozone in Atlanta. Once the NOx
SIP Call is fully implemented, ozone levels in Atlanta will meet the Air Quality
Standard. In the meantime, however, uncertainty as to EPA's authority and
discretion may result in the absurd consequence of the imposition of costly
control measures which are scientifically obsolete and which will not result in
faster attainment. CONGRESS SHOULD EXTEND OR CONFIRM THAT EPA HAS THE AUTHORITY
TO EXTEND THE ATTAINMENT DEADLINES In the 1990 amendments to the Clean Air Act,
Congress imposed sanctions for a failure to meet the attainment deadlines.
Because Congress clearly assumed that the attainment deadlines were reasonable,
the Act provides that if EPA determines
thatanareahasnotaffaineddiestandard,sucharea"shallbereclassifiedb
yoperationoflaw." 181(b)(2).In the case of Atlanta, for example, such a
determination by EPA could result in "bump up" of the Atlanta area to
classification as a If severe" nonattainment area. With a "bump up" to severe,
automatic consequences would result, such as a requirement that we use federal
reformulated gas (RFG), stricter standards on industrial facilities, and
monetary penalties for failure to attain. 182(d), 185, 21 I (k). Recognizing the
unfairness that would result from requiring bump-up and the attendant sanctions
upon states with areas unable to show attainment due to interstate transport of
ozone, EPA has proposed a policy which allows it to extend attainment dates
where interstate transport is a significant contributor to non-attainment (the
"Extension Policy").2 In issuing the Extension Policy, EPA recognized that
downwind states have been operating in a "climate of uncertainty" as to the
allocation of responsibility for pollutants transported from upwind states. EPA
has stated its view that "Congress, had it addressed the issue, would not have
intended downwind areas to be penalized by being forced to compensate 2
Extension of Attainment Dates for Downwind Transport Areas, 64 Fed. Reg. 14,441
(March 25, 1999). for transported pollution by adopting measures that are more
costly and onerous and/or which will become superfluous once upwind areas reduce
their contribution to the pollution problem." Id. at 14,444. EPA's Extension
Policy reasonably allows downwind states to assume the benefit of the NOx SIP
Call reductions in making their attainment demonstrations, so long as areas can
demonstrate that they meet the criteria.3 EPA has acknowledged that Atlanta's
ozone problem is significantly affected by transport and in December, 1999, EPA
proposed to apply the Extension Policy to Atlanta upon approval of the
attainment demonstration SIPA EPA has also proposed to apply the Extension
Policy to a number of other nonattainment areas affected by ozone transport,
such as Beaumont/Port Arthur s Louisville,6 and St. Louis.7 The practical effect
of the Extension Policy is to allow EPA to extend attainment dates for serious
ozone non-attainment areas such as Atlanta to June, 2004, the date on which NOx
SIP Call reductions are to take effect. EPA believes, and Georgia agrees, that
the Extension Policy is within EPA's authority under the Clean Air Act and that
it is consistent with Congressional intent. CHALLENGES TO THE EXTENSION POLICY
In spite of the reasonableness of the Extension Policy, it has come under severe
criticism. There are many who contend that the Extension Policy is beyond EPA's
authority and that EPA 3 4 s 6 To qualify for application of the extension
policy an area must: (1) (2) (3) (4) be identified as a downwind area affected
by transport from either an upwind area in the same state with a later
attainment date or an upwind area in another state that significantly
contributes to a downwind non-attainment; submit an approvable attainment
demonstration with any necessary, adopted local measures and within an
attainment date that reflects when the upwind reductions will occur; adopt all
local measures required under the areas cur-rent classification and any
additional measures necessary to demonstrate attainment; and provide that it
will implement all adopted measures as expeditiously as practicable, but no
later than the date by which the upwind reductions needed for attainment will be
achieved. Id. at 14,444. 64 Fed. Reg. 70,478 (Dec. 16, 1999). 64 Fed. Reg.
18,864 (April 16, 1999). 64 Fed. Reg. 27,734 (May 21, 1999). has no power to
vary the strict attainment dates set forth in the Clean Air Act amendments of
1990. In the case of Georgia, we are currently involved in litigation in which
the validity of the Extension Policy has been attacked. The case is pending
before the Court of Appeals for the Eleventh Circuit and has not yet been
resolved. Very recently a suit was filed seeking an order to require EPA to bump
up 15 areas, including Beaumont/Port Arthur and Louisville, to the next higher
classification, in spite of EPA's proposal to extend the attainment dates for
some of those areas. We have received a notice of intent to file such a suit
seeking to force "bump up" of the Atlanta area. If the Extension Policy were
held invalid in current or future litigation, the necessary result is that
Atlanta and all other areas which have failed to reach their statutory
attainment dates must be "bumped up" to the next higher classification. In the
case of Georgia, bumping up Atlanta to classification as a severe area would
have significant punitive consequences, which do nothing to promote better air
quality objectives and which impose needless extra costs upon Georgia consumers.
Georgia urges Congress to address the Clean Air Act and to remedy the problem of
automatic bump-up where the failure to attain is due to circumstances beyond the
State's control, such as interstate ozone transport. THE CLEAN AIR ACT DOES NOT
ALLOW SUFFICIENT FLEXIBILITY IN THE DEVELOPMENT OF STATE-SPECIFIC OR REGION-
SPECIFIC CLEAN FUELS In its ongoing efforts to reach attainment in Atlanta,
Georgia is also struggling with compliance with the Clean Air Act requirements
on clean fuels. Georgia has worked 7 64 Fed. Reg. 13,384 (Mar. 18, 1999).
cooperatively with all stakeholders, including the oil industry, to develop a
Georgia fuel which is designed to address Georgia's pollution issues and is cost
effective. The Clean Air Act should be revised to permit states to implement
state-specific control measures, so long as they satisfy the Clean Air Act
goals. CLEAN AIR ACT AMENDMENTS OF 1990 MANDATE FEDERAL REFORMULATED FUEL UPON
RECLASSIFICATION TO SEVERE The Clean Air Act currently provides that when an
area is reclassified from serious to severe, it is subject to the federal
reformulated gas requirements.8 As with so many other provisions of the 1990
amendments to the Clean Air Act, the clean fuel provisions of the Act are very
prescriptive and extremely detailed. Since 1990, technology has advanced and
knowledge of ozone non- attainment has changed. We now know that pollution is
different in the southeast than in other parts of the country, Air pollution in
general, and ground level ozone specifically, form differently in the south than
in other areas of the country. Transport in the southeast is significant, but
distances of transport are not as extensive as in the midwest and northeast. In
addition, in Atlanta as in most of the southeast, the ozone problem is largely
caused by NOx. That is, because of the tremendous amount of biogenic (natural)
VOCs from forests and other vegetation, control of VOCs has not proved to be as
effective in reducing ground-level ozone. Rather, it has been determined by
numerous studies that the best method to address ozone in the southeast is by
reduction of NOx emissions. For this reason, the fuel issue as well is simply
not appropriate for a "one size fits all" solution. It is important that
Congress allows the states sufficient flexibility to tailor solutions which
address their specific air quality problems in the most efficient and cost
effective manner. -Cow 21 1(k)(10)(D), 42 U.S.C. 7545(k)(10)(D)- THE GEORGIA
FUEL IS CAREFULLY DESIGNED TO ADDRESS ATLANTA'S AIR QUALITY PROBLEM In June
1997, at the conclusion of the OTAG process, Georgia began immediately to craft
the mobile source control strategy needed to bring Atlanta into attainment. We
started by meeting with oil industry representatives to identify the best fuel
program for the metro area. We hosted an extensive consultative process with the
Georgia Petroleum Council and its members, representing refiners, marketers and
pipeline operators. Together we determined that low sulfur
gasoline is the most cost effective fuel to reduce NOx emissions from
gasoline- powered vehicles operated in the Atlanta region. With
the support of the oil industry, Georgia adopted regulations in May 1998 that
lowered the average sulfur concentration in
gasoline sold during the summer ozone season to 150 ppm. The
industry began delivering this gasoline in 1999 for use in a
control area encompassing Atlanta and 25 counties. This fuel reduces NOx
emissions from gasoline-powered vehicles by 6.6 percent at a
cost of approximately I to 2 cents per gallon, as estimated by the oil industry.
In 2003, Georgia is going to a more stringent low sulfur fuel,
one that requires an annual average sulfur content of 30 ppm,
in a larger 45-county control area. This gasoline will reduce
NOx emissions by 12.0 percent, or 23.54 tons per day, at a cost of 2.2 to 2.4
cents per gallon, as estimated by an oil industry consultant. Also ' because of
a 7.0 pound per square inch Reid vapor pressure limit instituted in Georgia in
1995, VOCs and toxics will both be reduced by more than 25 percent. This fuel is
a critical part of the targeted strategy to improve air quality and bring
Atlanta into attainment with the ozone Air Quality Standard by 2004. FEDERAL
REFORMULATED GAS (RFG) WOULD BE LESS EFFECTIVE AND MORE COSTLY Federal
reformulated gas (RFG), if required in Georgia, would not only be less effective
in combating Atlanta's ozone pollution but would also be more costly. Under the
federal Phase 2 RFG program, which started January I of this year,
gasoline sold in RFG areas will reduce NOx emissions by up to
8.8 percent at a cost of about 4 to 6 cents per gallon, as estimated by the U.S.
Environmental Protection Agency.9 Compared with the Georgia low sulfur
gasoline that is slated for arrival in 2003, the implementation of
Phase 2 RFG in the Atlanta area would result in a fuel at least 27 percent less
effective in reducing NOx at about twice the incremental cost. Federal Phase 2
RFG is not the right fuel solution for Atlanta but might be forced on us by
prescriptive Clean Air Act requirements and EPA's limited discretion. CONCLUSION
During the debates on the 1990 amendments to the Clean Air Act, Sen. Baucus
noted that the transport provisions were designed to avoid placing an "unfair
burden on any state which is the victim of transported air pollution."'
Nevertheless, Atlanta and other areas which have been significantly affected by
ozone transport are indeed on the brink of being sanctioned, when it is clear
that their failure to attain results not from lack of effort on their part but
on the time required to address the very complex problem of ozone transport. We
do not believe that Congress intended this result. We urge you to act
expeditiously to address these unintended consequences of the strict
prescriptive provisions of the 1990 Amendments, We request that Congress either
extend the attainment dates, where the failure to attain is a result of
interstate transport or, in the alternative, make it clear that EPA has
authority to extend. Secondly, we urge you to revise the Clean Air Act to allow
the states more flexibility in developing specific control strategies, such as
clean fuels that are best suited to their particular air quality problems. With
clean fuels, the one size fits all prescription in the Clean Air Act simply does
not work. Giving EPA the authority to approve state-specific fuels would promote
the goal of better air quality. 9 59 Fed. Reg.7810 (1994). - 136 Cong. Rec.
S16895, at S16970 (1990). Moreover, as a general rule we believe that it is
appropriate for Congress to invest EPA and the states with more flexibility and
discretion, so that they can continue to utilize developments in science and
technology to craft improved solutions to the critical national issue of air
quality. On the part of Georgia, I want to express our commitment to continue to
work hard to ensure that Atlanta and all other areas in our state meet the
national air quality standards. If Congress gives us more flexibility, I believe
that the public will benefit. I thank you for giving me the opportunity to tell
you about some of the critical issues which Georgia is facing under the Clean
Air Act.
LOAD-DATE: October 18, 2000, Wednesday