SECTION: CAPITOL HILL HEARING TESTIMONY

LENGTH: 1904 words

COMMITTEE: HOUSE ENERGY AND COMMERCE

SUBCOMMITTEE: ENERGY AND AIR QUALITY

HEADLINE: CLEAN AIR ACT IMPLEMENTATION: EXPERIENCE OF STATE AND LOCAL REGULATORS

TESTIMONY-BY: DOUG LEMPKE, ADMINISTRATOR

AFFILIATION: AIR QUALITY CONTROL COMMISSION

BODY:
Statement of Doug Lempke Administrator Air Quality Control Commission Colorado Department of Public Health and Environment

House Energy and Commerce Subcommittee on Energy and Air Quality

Clean Air Act Implementation: Experience of State and Local Regulators

June 5, 2002

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 PM10 standards.

Just three years ago Denver was still listed as a non-attainment area for Ozone, PM10, 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 PM10 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.



LOAD-DATE: June 6, 2002