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The House Committee on Energy and Commerce
Subcommittee on Energy and Air Quality
July 22, 2003
09:30 AM
2123 Rayburn House Office Building
Introduction
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The Beaumont - Port Arthur - Orange (BPA) area
of southeast Texas is a sparsely populated, mostly rural, area of less than
400,000 residents; although, a significant fraction of its nonagricultural
economy is driven by oil refining and chemical manufacturing.
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As a moderate ozone nonattaniment area, BPA had
a Clean Air Act deadline of November 1996 for attaining the 1-hour ozone
standard.
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Situated about 70 miles west of the BPA area is
the Houston - Galveston severe ozone nonattainment area, which has a
statutory attainment deadline of November 2007.
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The amount of local ozone precursor emissions
and the complexity of the ozone nonattainment situation in BPA are dwarfed
by comparison with Houston - Galveston, which is the fourth largest city in
the U.S. and 2nd to Los Angeles in terms of number of days per year when the
1-hour ozone standard is exceeded.
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In 1999, three years after the statutory
attainment deadline for BPA, the Texas Commission on Environmental Quality (TCEQ)
demonstrated that emissions from Houston - Galveston, transported by
eastward moving wind currents, were interfering with the BPA area's ability
to achieve attainment.
Current Air Quality Status
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Despite transported air pollution, the BPA area
has made substantial progress toward attaining the ozone standards.
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Due to effective planning and air quality
management by the TCEQ; public awareness and participation through the South
East Texas Regional Planning Commission; and costly emissions reductions
programs implemented by local industry, the BPA region has seen dramatic
improvements in its air quality since the passage of the 1990 Clean Air Act
Amendments.
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The number of days per year when ozone levels
exceeded the level of the 1-hour standard at one or more of the area's
monitoring sites has plummeted from about 20 in 1990 to an average of just 2
per year over the last three years - a decrease of 90%.
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Only one of the region's six ozone monitors
that violated the ozone standard in the early 1990's is still marginally
nonattainment today.
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That monitor, located at Sabine Pass near the
Gulf of Mexico, in extreme southeastern Jefferson County, is the one most
often impacted by air currents passing over the monitor from the Houston -
Galveston area.
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If not for this one monitor and the transported
air pollution that it intercepts, the air quality improvements in BPA would
be viewed as one of the major successes of the Clean Air Act.
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Of the last seven days when ozone levels
exceeded the level of the 1-hour ozone standard at Sabine Pass, six had wind
conditions favorable for transporting polluted air from Houston - Galveston.
Status of Air Quality Planning and Controls
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In partnership with the TCEQ, the BPA region
has faithfully met or exceeded all the air quality planning and control
requirements set forth by the 1990 Clean Air Act Amendments for an area of
its nonattainment classification, including adoption of a plan, based on
computer modeling, that provides for all the local emission reductions
needed for attainment.
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The attainment plan, based on the guidance EPA
published in 1998 for areas affected by downwind transport, calls for an
additional 45% reduction in local industry NOx emissions to be made between
2003 and 2005 and also aligned the attainment date for the BPA area with
that of Houston - Galveston to account for the longer period provided for by
the Clean Air Act for Houston - Galveston to reduce its emissions.
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The new NOx emission limits for industrial
sources in the BPA area are as stringent as or more than the ones being
implemented in any other area in the country having comparable air quality.
No one should question whether industry in the BPA area is doing its fair
share to clean up its contribution to the local ozone problem.
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Impact of Recent Court Action
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The court's reversal of the attainment date
extension portion of the BPA attainment plan means that EPA must reclassify
the area to a higher nonattainment classification, either serious or severe,
despite the area's air quality having actually improved markedly since the
time when it was first classified as moderate nonattainment and regardless
of whether the area would already be attaining the ozone standard but for
emissions from Houston - Galveston.
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Note that while reversing the attainment date
extension, the court never questioned Texas' and EPA's technical analyses
showing that upwind emissions were interfering with the BPA area's ability
to attain the ozone standard or whether the local industry in BPA was doing
its share to reduce its contribution to the local air pollution problem;
neither did the court's petitioners.
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Nevertheless, the court's action will impose,
as a matter of law, new air quality planning and control requirements
designed to address the more intractable air quality problems of serious and
severe ozone nonattainment areas, regardless of whether such new local
requirements would significantly improve air quality in BPA or help advance
its attainment date, or whether the existing air quality plan calling for an
additional 45% reduction in industrial source NOx emissions is already on
track for attainment.
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The mandated new requirements, which would
mostly affect transportation and smaller businesses, will more than likely
be ineffective, unnecessary, and are likely to erode public support for
clean air.
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In addition to mandating new costly and
burdensome requirements, which may be ineffective and unnecessary, EPA has
responded to the recent court action by proposing to advance the attainment
deadline for BPA. The advanced deadline may be impossible to achieve, given
the significant influence of upwind emissions on most high ozone days.
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Moreover, the mandated new planning and control
requirements imposed as result of being reclassified under the 1-hour
standard would carry forward to the 8-hour standard. According to EPA's
recent 8-hour implementation proposal, despite BPA having current 8-hour
ozone levels that would classify it as marginal nonattainment under the
8-hour standard, the area will still be required to implement the more
stringent planning and control requirements of a serious (or severe) area
because of its reclassification under the one hour standard.
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Of course, none of the aforementioned
consequences of the recent court action addresses the principal cause of
continued ozone nonattainment in the BPA area - transport of polluted air
from an upwind area having a later attainment date.
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In fact, the courts' actions leave EPA and the
states with no remedy for addressing air pollution transport other requiring
upwind areas having later attainment dates to accelerate implementation of
emission controls, which would contradict Congress' intent in giving areas
with more intractable air quality problems more time to achieve attainment.
The Solution
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EPA, in adopting its 1998 policy on extending
the attainment dates for areas affected by transport, sought to fill this
gap in the statutory framework, which on the one hand provides longer
attainment periods for areas with more intractable air quality problems, but
on the other hand does not hold them responsible for air pollution problems
downwind, and thus penalizes downwind areas for air pollution that is beyond
its control.
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In attempting to fill that gap, EPA sought to
harmonize the attainment dates for upwind and downwind transport areas,
without accelerating the deadlines for attainment provided for by the Act
for the more complex or intractable air pollution problems.
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EPA's 1998 policy provided a practical solution
to the nonattainment problem in BPA and areas like it that are impacted by
air pollution from an upwind area having a later statutory attainment date;
however, EPA's legal rationale for this common sense solution was voided by
the courts; although the Seventh Circuit Court of Appeals in the St. Louis
case recognized that the current statutory scheme may require downwind areas
to implement expensive controls that may well not help achieve an earlier
attainment deadline, but Congress would have to be petitioned to change the
law to allow for better approaches to resolving such conflicts.
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Congress can rectify the conflict in the Clean
Air Act by codifying EPA's 1998 policy on attainment date extensions into
law.
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Congress should act swiftly in doing so in
order for EPA to reaffirm its approval of Texas' attainment plan for BPA
before finalizing its proposal to reclassify the area as serious or severe
nonattainment.
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