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.
AGENCY BACKGROUND
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 1-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 1-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 1-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 1-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 the 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 1-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 1 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 in carrying out that 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 problem, 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.