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Congressional Testimony
September 27, 2000, Wednesday
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 5667 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: JOHN E. TERRILL, JR. , OKLAHOMA
DEPARTMENT OF ENVIRONMENTAL QUALITY
BODY:
September
27, 2000 Testimony of John E. Terrill, Jr. Air Quality Division Director
Oklahoma Department of Environmental Quality Subcommittee on Clean Air,
Wetlands, Private Property and Nuclear Safety Committee on Environment and
Public Works United States Senate Mr. Chairman, and members of the Committee. My
name is John Terrill and I am the Air Quality Division Director for the Oklahoma
Department of Environmental Quality. I respectfully request that the
Department's written statement be included in today's hearing record. It is a
pleasure to appear before you today to share with you our thoughts as you begin
the hearing process to reauthorize the Clean Air Act. Our experience indicates a
number of areas in which the Act has allowed us to be successful and other areas
in which there needs to be improvement. AGENCYBACKGROUND The Clean Air Act, last
amended in 1990, provides the national framework for efforts to protect air
quality. The Air Quality Division (AQD) of the Oklahoma Department of
Environmental Quality (ODEQ) implements the state and federal Clean Air Acts. As
part of this implementation, the agency adopts rules, promotes compliance
efforts, enforces rules, and develops pollution prevention strategies to reduce
emissions and improve air quality. An EPA-approved State Implementation Plan
(SIP) provides strategies and procedures for the daily operations of AQD. This
SIP is reviewed and amended as necessary. It includes rules and strategies
developed at the state level for implementing the various federal air quality
programs. To date, ODEQ has acquired all appropriate EPA air quality programs.
OZONE ALERT AND FLEXIBLE ATTAINMENT REGION SUCCESS Probably nothing illustrates
our experience with the Act better than our struggle in the Tulsa area to attain
and then stay in attainment with the I -hour ozone standard. Just prior to the
passage of the Clean Air Amendments in 1990, the Tulsa area was designated
attainment for all National Ambient Air Quality Standards, including ozone.
During the summer of 1991, Tulsa experienced two exceedances of the 1 -hour
ozone standard. Two more exceedances of the standard in either 1992 or 1993
would likely have placed the Tulsa area back into nonattainment. Rather than
wait for the fate of whatever the summer weather of the next two years might
bring, a group of concerned public officials, citizens and industry leaders
voluntarily cooperated to create and implement the Ozone Alert! Program. Based
on community outreach, public education and voluntary reduction measures, the
program has become a model throughout the United States. As an outgrowth of the
success of the Ozone Alert! Program, the Environmental Protection Agency,
Oklahoma Department of Environmental Quality, the City of Tulsa, Indian Nation
Council of Governments and various other state and local governmental entities
entered into a memorandum of understanding creating the Flexible Attainment
Region for the Tulsa area. Because of the cooperative efforts at the local,
state and federal level, Tulsa was able to avoid violation of the I -hour ozone
standard until this past Labor Day weekend. During two of the past three Labor
Day weekends, truly exceptional weather events involving record high
temperatures and persistent high pressure ridges, conspired to produce 3 of the
4 exceedances the Tulsa area has experienced over that three year period. The
two exceedances, which occurred this past Labor Day weekend, places the Tulsa
area in jeopardy of being designated nonattainment for the I -hour standard,
even though when you look at trends over the past several years the ozone levels
continue to decline. However, the mandatory measures contained within the
Flexible Attainment Region agreement may provide a mechanism to allow Tulsa to
avoid this fate. The Tulsa area and quite possibly large portions of the State
of Oklahoma will not be so fortunate under the 8-hour scenario if reinstated by
the Supreme Court. 8-HOUR OZONE STANDARD DIFFICULTIES Let me emphasize that we
support the concept of a standard for ozone that looks at exposure over an
8-hour period. We believe that this form of the standard best represents real
world exposures likely to be experienced by the population most at risk. We
disagree with the level at which the standard was implemented. It is our belief
that any time a standard such as this is changed and the bar is raised as it
clearly has been in this case, the statute should require clear and
incontrovertible evidence that such a change is necessary. In addition, once it
has been established that a change in an existing standard is necessary, it
should be mandatory upon the EPA that all guidance necessary to help the states
and local agencies with implementation must be formulated and made available
prior to the beginning of any implementation of that program. Ideally, this
guidance would be written in cooperation with the state and local programs or at
least there should be an opportunity for comment before the guidance becomes
effective. For example, we never have received guidance that outlines EPA's
position relative to the consequences of nonattainment under the 8-hour standard
as it relates to New Source Review (NSR) transition areas. The Act itself is
specific to the 1 -hour standard only. It has also become quite obvious that the
things we understood about the 1 -hour standard do not necessarily apply to the
8-hour version. Voluntary measures that worked well to help shave the peaks on
days of concern do not work as well under the 8-hour scenario. Ozone forecasting
under the 8-hour standard is much more difficult and unpredictable. This is
illustrated by the dramatic increase in the number of ozone alerts that have
been called under the 8-hour standard as opposed to those that were called when
the I -hour standard was controlling. It has also become apparent that transport
of ozone and ozone precursors on a near-regional basis such as between
neighboring states is very important in forecasting ozone formation and in
meeting die new standard. Until we know the effect of national measures such as
low sulfur gasoline and Tier 2 standards, as well as regional
measures such as implementation of control strategies in areas still in
violation of the I -hour standard, planning to meet attainment with the new
standard is problematic. The resultant issues, such as development of an
unnecessary state implementation plan to meet a standard beyond the control of
the state, should have been thought through and clarified before the standard
was changed. LOW SULFUR GASOLINE This leads me to examples
implemented under the existing Clean Air Act that we feel will be very
productive if done correctly. The first is low sulfur gasoline.
Unless overturned by the Supreme Court, it will be very difficult for Oklahoma
to ever meet the 8-hour standard as it presently exists without the emission
reduction benefits from the lower sulfur gasoline. This measure
along with stricter automotive emission standards, will lower mobile source
emissions in local metropolitan areas, which would otherwise have to be lowered
through forced mass transit, inspection and maintenance programs, or other more
onerous and less effective control strategies. It will also help reduce the
formation of ozone that would be available for transport between neighboring
states. However, it will be several years before those requirements are fully
implemented. An opportunity to see what air quality changes these significant
measures will make on monitored data before near attainment areas are penalized
is the only course of action that makes sense. REGIONAL PLANNING BODY The
Regional Planning Body concept formulated in response to mandated requirements
to reduce regional haze is also a good tool that has come out of the existing
Act. This program allows adjoining states with like concerns and similar
airsheds to work together in a regional context to analyze and propose
strategies to address regional haze and fine particulate problems, should they
be found to exist. We believe that addressing air pollution on a regional basis
is likely to be a strong tool for future regulatory activities. States working
together and exchanging data relative to the impact each state's emissions has
on its neighbors will allow for more effective control strategies that will
achieve greater reductions at a lesser cost. We believe that this concept should
be expanded to include multipollutant strategies covering other criteria
pollutants such as ozone, oxides of nitrogen, and sulfur
dioxide. It is imperative under this concept however that the state and local
programs continue to be viewed as partners in this endeavor. NEED FOR
CONSISTENCY If there were one word that would summarize our concerns with the
current system it would be consistency or the lack thereof Consistency in the
interpretation of statutes, as well as rules and regulations as they apply from
state to state and region to region is fundamental to the integrity of any
federal law. The same is true for consistency in the databases that are used for
a variety of purposes throughout the state and federal system. Statutes, Rules,
and Regulation Consistency The consistent interpretation of statutes, rules, and
regulations is vitally important to both the regulators and the regulated
community. It is important to know that when we obtain an applicability
determination or some other type of rule interpretation from EPA that we are
getting the same interpretation as that which would be given to another state
with a similar fact situation. It is very damaging to our credibility and that
of the EPA when industry points out that the same fact circumstance has resulted
in a different interpretation in a different state or region. It can also create
an unfair competitive advantage for like industrial facilities operating in
different states and regions. The regulated community deserves to know what the
rules are and that they are being applied the same throughout the country.
Database Consistency Database consistency, including the handling of the data,
who should have access to that data and when, is also an area that needs to be
addressed. The vast majority of the activities done by the EPA are driven by the
data collected in the state and local programs. Currently, there is no
consistent understanding as to what these data are useful to determine and what
they are not; consequently, there is little consistency from state to state and
region to region. This is especially troublesome when outside parties such as
industrial, environmental, and other special interest groups attempt to use the
data in support of their particular issue. We believe that the EPA should be
required to establish standards for data to be submitted by states and utilized
by EPA, yet allow state programs great flexibility in the design of their data
management systems. EPA should also be encouraging and supporting the states
movement toward electronic data submittal to ease the paperwork burden on the
regulated community and the state and local agencies. We would also encourage
further definition of what and when data are accessible by the public. We are
supportive and believe in the public's right to have access to any data that are
used to make decisions relative to the air quality programs. However, Congress
should statutorily insist that before any data is made public by any agency, it
is carefully evaluated as to its accuracy and made available for public viewing
only in the context in which it was collected. For example, if ambient air
sampling is conducted to determine possible toxic exposure, these data should
reflect clearly the local area sampled and who likely exposure candidates might
be. There should be no manipulation of the data that could cause the general
public unnecessary alarm without justifiable cause. In addition, under no
circumstances should federal extractions or other manipulations of the data be
made available to the public without first notifying the affected state or local
program as to where the data will be made available and an opportunity provided
to view and correct where warranted such data in the context in which it will be
presented. NEW SOURCE REVIEW/PREVENTION OF SIGNIFICANT DETERIORATION REFORM New
Source Review/Prevention of Significant Deterioration (NSR/PSD) reform is a
concept that has been in the discussion stages for a number of years now with
very little apparent progress. Unless a significant modification of the whole
process is undertaken which would make the current system totally obsolete, much
good could be accomplished by evaluating the existing applicability
determinations, guidance, and other decisions that EPA has made since the
inception of the original program. For example, there are literally thousands of
various applicability determinations, some of which are outdated and others that
contradict each other. There should be a statutory requirement that these
determinations go through a process where duplicative, conflicting, and
ambiguous applicability determinations are eliminated. Once these determinations
have undergone this process, they need to then be made available in an easily
accessible database through the Internet so that each state, region, and
affected industry can have access to the information. This would help give each
facility undergoing NSR or PSD review reasonable assurance that the same answer
will be given regardless of where they are located. However, the better approach
would be statutorily to require EPA to make meaningful reforms to this system.
Included in this should be the requirements that the PSD modeling continue to be
improved especially as it relates to the impacts on the Class I areas. OKLAHOMA
TRIBAL ISSUES In Oklahoma we have a unique situation relative to the tribal air
rule as currently implemented. EPA has defined "reservation" by this rule to
mean " all land within the limits of any Indian reservation under the
jurisdiction of the United States government ", while under federal law
"reservations" are " Indian reservations, public domain Indian allotments,
former Indian reservations in Oklahoma and land held by incorporated Native
groups." Under these definitions, most of the state of Oklahoma is considered
"former Indian reservation". Further it appears that EPA has given tribes the
authority to regulate businesses on non-Indian owned fee lands within the
exterior boundaries of a reservation, which in effect is the state of Oklahoma
with the exception of Greer County, the Panhandle and Unassigned Lands. EPA is
now referring to this rule interpretation as "treatment in a manner similar to
states" rather than "treatment as a state". Unlike the state of Oklahoma, the
tribe does not have to qualify for eligibility under established criteria. The
tribe must simply show that it is a federally recognized tribe, that it has a
governing body carrying out substantial governmental duties and powers and that
it is capable of implementing the program. There are no criteria for a
capability determination. The EPA Regional Administrator has the discretionary
authority to decide on a case by case basis whether a tribe should have a
program or not. Unlike a state, the tribe may develop portions of programs that
are most relevant to the air quality needs of the tribe rather than enact the
whole program. Unlike the state, the tribe is not required to provide an
opportunity for permit applicants or other interested persons to seek judicial
review of the tribe's implementation of the rule. Nor is the tribe subject to
citizen suits. Given the number of tribes in Oklahoma, we have a confusing
situation regarding this issue. We believe that each entity assigned
responsibilities under the Act should have to meet the same criteria that in
carrying out assignment. Further, we believe that it is mandatory upon EPA that
they insure that no industry receives an unfair advantage as a result of EPA's
interpretation of this rule. Compounding the problen-4 the EPA has been unable
to assure us that they understand exactly what the tribes having air grants are
doing with the money or what data is being collected and how it will be used.
ROLE OF THE RESPECTIVE AGENCIES The final topic we would like to discuss is, in
our opinion, the most important - the respective roles of various offices within
the federal environmental agency and the roles of the state and local
environmental agencies. We strongly support the regional office concept as it
relates to EPA's structure. We believe there are research and planning functions
that should be performed by EPA headquarters, an oversight and technical
assistance role to be performed by the regional offices, and monitoring,
permitting, inspection, and enforcement roles to be performed by the state and
local programs. Headquarters EPA headquarters should be primarily responsible
for looking at the big picture while the regional offices should be responsible
for the day-to-day oversight of state activities. The gathering and analysis of
data submitted to Washington by the regional offices and the state and local
programs should be EPA Headquarter's primary objective. From this analysis,
national trends could be identified which should lead to national initiatives as
needed. The writing and promulgating of rules and regulations, after input from
appropriate stakeholders, should also be a major responsibility. Headquarters
should also be responsible for insuring that databases are accurate and that the
rules and regulations are interpreted and administered equitably in all regional
offices. They should also insure that each regional office is providing the
appropriate oversight of the states within their jurisdiction through consistent
interpretation of the federal regulations. Regional Offices The primary role of
the regional office should be as technical resource for the states within their
jurisdiction. They should also be responsible to see that each state equitably
enforces all federal requirements within their jurisdiction. States must carry
out their responsibilities as the primary authority under the federal Clean Air
Act and if not, the regional office must assume that responsibility. The
regional office should also be able to act, when requested by a state or local
agency, in a timely and effective manner. States Finally, the states must be
given the latitude to carry out their functions as provided under the Clean Air
Act. Greater deference must be given to decisions made by the states within
established guidelines. This does not mean that EPA should give up its'
oversight authority. EPA is welcome to Oklahoma whenever they want to go with us
and see how we do our job and work side by side with us to augment our programs.
We welcome them to examine and participate in any activity we do - from how we
run our monitoring program to how we write permits, to how we enforce those
permits. We also invite constructive criticism and believe there is much we each
can learn from the other. Further, EPA should be capable of assisting us in
those technical areas where we don't have expertise. Expectations should be the
same for all states or other agencies with similar program responsibilities.
States must have a special opportunity to comment on all rules and guidance that
are issued by EPA. While rule input is usually not an issue, guidance is often
used as though it is a rule and thus should be subject to the same public input
as a rule. CONCLUSION In our view, reauthorization of the Clean Air Act offers a
wonderful opportunity to make meaningful changes to an area of environmental law
that over the years has provided the framework for a number of advances
resulting in cleaner, healthier air for our citizens. This also provides a
wonderful opportunity to evaluate the overall program enhancing the areas that
are working well and making some necessary corrections in those that are not.
The entire regulatory scheme as it applies to air quality is too complicated.
While this may be good for the attorneys, consultants, and special interest
groups that are involved in the process on a daily basis, it is not good for
those implementing the vast number of rules and regulations that have been
enacted over the years. Nor is it good for the regulated community or the
citizens the Act was designed to protect. We would urge you to take this
opportunity and give careful consideration to making those changes that will
simplify the final product. This will not be an easy task and will likely be met
with some resistance. However, we believe the long-term benefits of making the
Act easier to understand and implement will make whatever efforts we need to
make to facilitate this change insignificant. We look forward to working with
this Committee in any capacity necessary as you continue this important work.
Thank you for the opportunity to submit this testimony. I would be pleased to
answer any questions that you may have.
LOAD-DATE:
October 18, 2000, Wednesday