Good afternoon ladies and gentlemen:
My name is Ronald Methier. I am the Chief of the Air Protection Branch of the Georgia Environmental Protection Division. On behalf of the State of Georgia, I would like to thank you for this opportunity to testify on what is a very important issue, not only to the people of Georgia, but I believe to the people of the United States as a whole.
You have asked me to address the important topic of what, if anything, needs to be "fixed" in the Clean Air Act. What is working in Georgia and what is not? What can be done to address the problems? In thinking about these questions, we have concluded that the single most valuable "fix" that Congress could effect would be to increase the flexibility given to both EPA and the individual states, to allow the states to take advantage of solutions most relevant and most effective for their regions. Today, I will give you our perspective on the Clean Air Act and discuss two specific areas where the Act's lack of flexibility makes it difficult for Georgia to address its air quality problems in a timely and cost-effective manner. First, I will address the difficult situation Georgia faces in trying to meet the Act's strict attainment dates - - an unachievable goal, because these dates apply even to areas which, like Georgia, are significantly affected by the transport of pollutants from other states. Second, I will show how the rigidity of the Act's specific mandated control measures—such as federal fuel requirements—may be more hindrance than help in Georgia's struggle to achieve attainment.
The federal government and the states share the same goal—national clean air, as soon as possible. It is self-evident that this goal cannot be achieved without federal and state cooperation and partnership. The complexities of some aspects of the air pollution problem make it almost impossible for either the federal government or states acting on their own, to
develop and carry out all the programs necessary to achieve nationwide attainment of Ambient Air Quality Standards. This is especially true for a state like Georgia, which, like most eastern and southern states, must contend with pollutants transported from upwind states over which it has no control. Georgia has developed what it believes are workable and scientifically sound solutions to these problems. Some of these solutions are based on science developed long after the Clean Air Act Amendments of 1990. EPA must be given the flexibility to allow states like Georgia to take advantage of such state-of-the-art technology and scientific knowledge in crafting regional solutions that will meaningfully contribute to clean air throughout the nation. The last major amendments to the Clean Air Act were made, as you know, in 1990. These amendments impose strict and specific controls, ranging from required vehicle inspection programs to the required use of specially formulated gasoline, on areas that fail to reach attainment by a specific date. The decade since 1990, however, has seen exponential advances in scientific knowledge about the causes of air pollution and the solutions to it. The technology to implement these solutions has likewise changed dramatically. Specific requirements prescribed by the 1990 Clean Air Act Amendments are, in some cases, no longer the most effective or efficient ways to achieve clean air. The Clean Air Act, however, has not been amended to reflect these scientific advances. As a result, EPA and the states are left with limited ability to take advantage of new knowledge and technology, to craft creative, regionally-specific solutions. If the Clean Air Act is to remain relevant in this new millenium, something must be done to give EPA and the individual states the flexibility to take advantage of the knowledge and technological explosion of the 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—ground-level ozone.
Congress first addressed the ground-level ozone problem in 1970, when it directed EPA to establish National Ambient Air Quality Standards for ozone and other pollutants and directed the states to develop implementation plans for the "implementation, maintenance and enforcement" of these standards by 1973. In early recognition that partnerships between the states and the federal government were crucial given the national character of the ozone problem and the impact of ozone transport among states, Congress required that these plans include provisions for "intergovernmental cooperation," in achieving attainment of the Air Quality Standards.
For a wide variety of reasons, despite Congressional mandates, very little progress was made during the 1970's and 1980's toward attainment ofthe 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 110(a)(2)(D), and section 126 authorizing states to bring suit to require control measures in upwind states, Congress endeavored to provide the tools necessary for EPA and the states to address transported pollution.
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 ir' 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 1-hour standard for ozone in 2004 as soon as the NOx SIP Call controls reduce NOx emissions from our neighboring states.
The uncertainties and difficulties presented by Atlanta's failure to meet the statutory attainment deadline illustrate critical problem areas in the Clean Air Act. Georgia has already
adopted extensive control measures on both stationary and mobile sources, all of which work to reduce ground level ozone in Atlanta. Once the NOx SIP Call is fully implemented, ozone levels in Atlanta will meet the Air Quality Standard. In the meantime, however, uncertainty as to EPA's authority and discretion may result in the absurd consequence of the imposition of costly control measures which are scientifically obsolete and which will not result in faster attainment.
CONGRESS SHOULD EXTEND OR CONFIRM THAT EPA HAS THE AUTHORITY TO EXTEND THE ATTAINMENT DEADLINES
In the 1990 amendments to the Clean Air Act, Congress imposed sanctions for a failure to meet the attainment deadlines. Because Congress clearly assumed that the attainment deadlines were reasonable, the Act provides that if EPA determines that an area has not attained the standard, such area "shall be reclassified by operation of law." § 181(b)(2). In the case of Atlanta, for example, such a determination by EPA could result in "bump up" of the Atlanta area to classification as a "severe" nonattainment area. With a "bump up" to severe, automatic consequences would result, such as a requirement that we use federal reformulated gas (RFG), stricter standards on industrial facilities, and monetary penalties for failure to attain. §§ 182(d), 185, 211(k). Recognizing the unfairness that would result from requiring bump-up and the attendant sanctions upon states with areas unable to show attainment due to interstate transport of ozone, EPA has proposed a policy which allows it to extend attainment dates where interstate transport is a significant contributor to non-attainment (the "Extension Policy").2
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 Attairunent 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 SIP.4 EPA has also proposed to apply the Extension Pohcy 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 current 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 l(k)(lO)(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 1 to 2 cents per gallon, as estimated by the oil industry.
In 2003, Georgia is going to a more stringent low sulfur fuel, one that requires an annual average sulfur content of 30 ppm, in a larger 45-county control area. This gasoline will reduce NOx emissions by 12.0 percent, or 23.54 tons per day, at a cost of 2.2 to 2.4 cents per gallon, as estimated by an oil industry consultant. Also, because of a 7.0 pound per square inch Reid vapor pressure limit instituted in Georgia in 1995, VOCs and toxics will both be reduced by more than 25 percent. This fuel is a critical part of the targeted strategy to improve air quality and bring Atlanta into attainment with the ozone Air Quality Standard by 2004.
FEDERAL REFORMULATED GAS (RFG) WOULD BE LESS EFFECTIVE
AND MORE COSTLY
Federal reformulated gas (RFG), if required in Georgia, would not only be less effective in combating Atlanta's ozone pollution but would also be more costly. Under the federal Phase
2 RFG program, which started January 1 of this year, gasoline sold in RFG areas will reduce NOx emissions by up to 8.8 percent at a cost of about 4 to 6 cents per gallon, as estimated by the U.S. Environmental Protection Agency.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.