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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 fine example of one of the successes of the Clean
Air Act Amendments of 1990 but also, unfortunately, a glaring example of one
of its failures.
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Since the passage of the 1990 amendments, the
residents of southeast Texas have benefited from dramatic improvements in
the region's air quality, which have come as the result of effective air
quality planning and management by the Environmental Protection Agency (EPA)
and the state of Texas; public participation through the South East Texas
Regional Planning Commission; and expensive new emission controls installed
by the region's industry.
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Southeast Texas demonstrates a success of the
1990 Clean Air Act Amendments because, since the time of its passage, the
number of days per year when ozone levels exceed the level of the 1-hour
standard at one or more of the area's monitoring sites has dropped from
about 20 to an average of just 2 per year, over the last three years - a
decrease of 90%.
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More importantly, perhaps, the number of
monitors measuring violations of the ozone standard has dropped from 6 in
the early 1990's to only 1 in 2002 and 2003, showing that the number of
residents of southeast Texas potentially exposed to ozone levels in excess
of the EPA standard has plummeted.
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The lone remaining nonattainment monitor is
located in Sabine Pass, a town of about 1500 residents located in extreme
southeastern Jefferson County, near the Gulf of Mexico. If not for this one
ozone monitor, the BPA area would be in attainment with the 1-hour ozone
standard.
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Southeast Texas demonstrates a failure of the
1990 Clean Air Act Amendments because the air currents on most of the high
ozone days at Sabine Pass during the past several years were favorable for
transporting polluted air from the Houston - Galveston severe ozone
nonattainment area, which has a statutory attainment deadline of 2007, and
the Act provided no means for accounting for the influence of this
transported air pollution, according to recent court decisions, on the
ability of BPA to achieve attainment by its earlier statutory deadline.
EPA's 1998 Attainment Date Extension Policy
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EPA's 1998 policy for extending attainment
deadlines was a practical, common sense, solution for states and local areas
struggling to address transported air pollution in their ozone attainment
plans.
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Southeast Texas was supportive of this policy
when first announced by EPA in 1998, and still supports it today, despite
the recent court actions.
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No better example, than the BPA area exists, of
a moderate ozone nonattainment area that is impacted by intrastate transport
of air pollution from an upwind area having a more onerous air pollution
problem and later statutory attainment deadline.
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The Houston - Galveston severe ozone
nonattainment area, having an attainment deadline of 2007, is situated less
than 70 miles to the west of the BPA ozone monitors.
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Houston is the 4th largest city in the U.S. and
experiences more days per year having ozone levels in excess of the 1-hour
standard than any area in the nation, other than Los Angeles. The ozone
attainment plan Texas recently developed for Houston is as tough as or
tougher, in many respects, to ones being implemented in Los Angeles, or
anywhere else, and is being implemented as expeditiously as possible.
Nevertheless, it will not be fully implemented until 2007, the deadline
established by the 1990 amendments.
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Computer modeling conducted by the Texas
Commission on Environmental Quality (TCEQ) and research by other
investigators shows that on days having wind conditions favorable for
transporting polluted air from Houston - Galveston to BPA, ozone levels may
climb to exceed the EPA standard, because of the Houston - Galveston
emissions, thus, making it improbable for the BPA area to achieve attainment
before Houston - Galveston's 2007 deadline for attainment.
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EPA's 1998 attainment date extension policy
addressed this problem by harmonizing the Houston - Galveston and BPA
attainment deadlines, without accelerating the attainment schedule for
Houston - Galveston, while also requiring that BPA address its contribution
to the nonattainment problem as expeditiously as practicable.
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Indeed, the plan Texas adopted for southeast
Texas, while aligning the BPA attainment deadline with that of Houston, also
required new emission limits on local industry NOx emissions that are as
tough as or tougher than those of any other area in the U.S. having
comparable air quality.
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These new emission limits, to be phased in
during 2003 - 2005, will reduce industry NOx emissions by an additional 45%.
Clearly, local industry in BPA is doing its share to clean up the air.
Impact of Recent Court Action
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The court's reversal of the attainment date
extension portion of the BPA attainment plan will have many adverse
consequences but few apparent benefits to air quality.
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Reclassifying the area to a higher
nonattainment classification, either serious or severe, 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.
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These mandated new requirements, which will
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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Imposing these mandatory requirements while
failing to account for the true cause of continued nonattainment in the BPA
area may also erode public confidence in the EPA, TCEQ, and the regulatory
process.
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It is worthwhile to note that the Sabine Pass
monitor, the lone monitor in southeast Texas continuing to show
nonattainment, was installed and continues to be operated using funds
voluntarily contributed to the South East Texas Regional Planning Commission
by local industry.
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The Sabine Pass monitor was purposely installed
in a remote area of sparse population and no nearby emissions to measure the
impacts of air pollution entering the region from upwind. This was done
presuming that, through the collection of abundant data and application of
good science, a better and more effective ozone attainment plan would be
achieved for southeast Texas.
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The recent court action prevents EPA, Texas,
and the local area from addressing the true cause of continued noncompliance
and provides industry with a strong disincentive for future proactive
measures.
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To add insult to injury, 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 the BPA
area having current 8-hour ozone levels that would classify it as marginal
nonattainment under the 8-hour standard, the area will have to continue to
implement planning and control requirements as a serious (or severe) area
because of the court mandated reclassification.
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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 may not be practicable and would contradict
Congress' intent in giving areas with more intractable air quality problems
more time to achieve attainment.
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The Seventh Circuit Court of Appeals recognized
the dilemma in its ruling on the St. Louis nonattainment reclassification
case, and said that the mandatory control requirements of a bump-up may cost
the area millions of dollars and still not help achieve the standard
earlier, but, there was not a mechanism in the statute to allow for a common
sense approach to such issues; only Congress could change the law to allow
for that.
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, thus penalizing 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 the BPA area, 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.
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Congress can rectify, as suggested by the
Seventh Circuit Court of Appeals, 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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