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27–298PDF 2017

S. HRG. 115–103 

MAKING IMPLEMENTATION OF THE NATIONAL 

AMBIENT AIR QUALITY STANDARDS FOR 

GROUND-LEVEL OZONE ATTAINABLE: 

LEGISLATIVE HEARING ON S. 263 AND S. 452 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CLEAN AIR 

AND NUCLEAR SAFETY 

OF THE

COMMITTEE ON 

ENVIRONMENT AND PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

MAY 23, 2017 

Printed for the use of the Committee on Environment and Public Works 

( 

Available via the World Wide Web: http://www.fdsys.gov 

(II) 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED FIFTEENTH CONGRESS 

FIRST SESSION 

JOHN BARRASSO, Wyoming, Chairman 

JAMES M. INHOFE, Oklahoma 

SHELLEY MOORE CAPITO, West Virginia 

JOHN BOOZMAN, Arkansas 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

MIKE ROUNDS, South Dakota 

JONI ERNST, Iowa 

DAN SULLIVAN, Alaska 

RICHARD SHELBY, Alabama 

THOMAS R. CARPER, Delaware 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

SHELDON WHITEHOUSE, Rhode Island 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

CORY A. BOOKER, New Jersey 

EDWARD J. MARKEY, Massachusetts 

TAMMY DUCKWORTH, Illinois 

KAMALA HARRIS, California 

RICHARD M. RUSSELL, Majority Staff Director 

GABRIELLE BATKIN, Minority Staff Director 

SUBCOMMITTEE ON CLEAN AIR AND NUCLEAR SAFETY

SHELLEY MOORE CAPITO, West Virginia, Chairman 

JAMES M. INHOFE, Oklahoma 

JOHN BOOZMAN, Arkansas 

ROGER WICKER, Mississippi 

DEB FISCHER, Nebraska 

JERRY MORAN, Kansas 

JONI ERNST, Iowa 

RICHARD SHELBY, Alabama 

JOHN BARRASSO, Wyoming (ex officio) 

SHELDON WHITEHOUSE, Rhode Island 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

JEFF MERKLEY, Oregon 

KIRSTEN GILLIBRAND, New York 

EDWARD J. MARKEY, Massachusetts 

TAMMY DUCKWORTH, Illinois 

THOMAS R. CARPER, Delaware (ex officio) 

(III) 

C O N T E N T S 

Page 

MAY 23, 2017 

OPENING STATEMENTS 

Capito, Hon. Shelley Moore, U.S. Senator from the State of West Virginia ...... 1 

Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode Island ......... 42 

Carper, Hon. Thomas, U.S. Senator from the State of Delaware ........................ 64 

Flake, Hon. Jeff, U.S. Senator from the State of Arizona .................................... 65 

WITNESSES 

Cabrera, Misael, P.E., Director, Arizona Department of Environmental Quality .......................................................................................................................... 66 

Prepared statement .......................................................................................... 69 

Responses to additional questions from Senator Carper .............................. 94 

Hakimi, Ahron, Executive Director, Kern Council of Governments .................... 101 

Prepared statement .......................................................................................... 103 

Responses to additional questions from Senator Carper .............................. 110 

Zeringue, Kyle, Senior Vice President, Business Development, Baton Rouge 

Area Chamber ...................................................................................................... 114 

Prepared statement .......................................................................................... 116 

Garvin, Shawn, Secretary, Delaware Department of Natural Resources and 

Environmental Control ........................................................................................ 119 

Prepared statement .......................................................................................... 122 

Responses to additional questions from Senator Carper .............................. 127 

Monica Kraft, Md, Past President of the American Thoracic Society, University of Arizona College of Medicine ..................................................................... 131 

Prepared statement .......................................................................................... 133 

Responses to additional questions from Senator Carper .............................. 139 

ADDITIONAL MATERIAL 

Statements: 

Ozone Transport Commission .......................................................................... 153 

American Forest & Paper Association ............................................................ 156 

(1) 

MAKING IMPLEMENTATION OF THE NATIONAL AMBIENT AIR QUALITY STANDARDS 

FOR GROUND-LEVEL OZONE ATTAINABLE: 

LEGISLATIVE HEARING ON S. 263 AND S. 452 

TUESDAY, MAY 23, 2017 

U.S. SENATE, 

COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, 

SUBCOMMITTEE ON CLEAN AIR

AND NUCLEAR SAFETY, 

Washington, DC. 

The subcommittee met, pursuant to notice, at 2:31 p.m. in room 

406, Dirksen Senate Building, Hon. Shelley Moore Capito [chairwoman of the subcommittee] presiding. 

Present: Senators Capito, Inhofe, Fischer, Ernst, Carper, 

Whitehouse, Merkley, Gillibrand, Duckworth, Booker, and Carper. 

OPENING STATEMENT OF HON. SHELLEY MOORE CAPITO, 

U.S. SENATOR FROM THE STATE OF WEST VIRGINIA 

Senator CAPITO. The hearing will come to order. 

I would like to welcome everybody to the EPW Subcommittee on 

Clean Air and Nuclear Safety. 

I would like to welcome the witnesses. Our first witness is someone we know very well. We will do our opening statements and 

then I will recognize you, Senator Flake. As we know, he is our colleague from Arizona, Senator Jeff Flake, a sponsor of S. 452, the 

ORDEAL Act. We are glad to have him here. 

With that, I will proceed with my opening statement. 

Today’s hearing in the Subcommittee on Clean Air and Nuclear 

Safety will focus on the challenges posed by the implementation of 

the National Ambient Air Quality Standards, the NAAQS, for 

ground level ozone. 

I will begin by recognizing myself for an opening statement and 

then move to Ranking Member Whitehouse for his statement. 

Roughly a year has passed since the subcommittee last had a 

hearing on the Ozone NAAQS and legislation seeking to address 

the uncertainty regarding implementation of the new standards. A 

year later, no legislative fix has been enacted and so that uncertainty continues. 

The EPA took 7 years to finalize implementing regulations of its 

2008 standards. Nearly contemporaneously, it announced a revision, EPA did, of the standards to 70 ppb. 

2 

Now State and local governments and private industry are faced 

with potentially abiding by two different standards at the same 

time. 

To that end, I request unanimous consent to submit for the 

record two letters: one signed by more than 200 trade associations 

from around the Country to congressional leadership in support of 

last year’s version of S. 263, and a letter sent yesterday by the Association of Air Pollution Control Agencies to this subcommittee expressing concerns over the NAAQS review and implementation 

process. 

Is there objection? 

[No audible response.] 

Senator CAPITO. Hearing none, so submitted. 

[The referenced information follows:] 

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Senator CAPITO. This is a multibillion dollar issue, as there are 

severe constraints on economic development in areas designated as 

in ‘‘nonattainment.’’ Perversely, in nonattainment areas it may be 

more profitable for a company to close a factory and kill jobs to create ozone offset credits to sell, than it would be to reinvest in or 

expand that facility. 

Furthermore, while this committee is improving our Nation’s infrastructure, nonattainment status delays affected-area access to 

Federal support for transportation projects. I think one of our witnesses will address that issue. 

The bills before us today are meant to end the regulatory uncertainty and its impacts on the livelihood of Americans. 

S. 263, the Ozone Standards Implementation Act, which I introduced with Senators Cornyn, Fischer, Flake, Inhofe, and Manchin, 

would make needed reforms to the implementation of the standards, including requiring that the EPA promulgate implementing 

regulations at the time it finalizes the standards, not 8 years later. 

Where there is a range of levels that would protect public health, 

it would also require the EPA to consider whether the selected 

standard is technically feasible. 

S. 452, the Ozone Regulatory Delay and Extension of Assessment 

Length, the ORDEAL Act, introduced by Senator Flake with myself 

as a co-sponsor, and Senators Cotton, McCain, and Wicker, would, 

like my bill, move the EPA from a 5-year schedule of reviewing the 

standards to a 10-year schedule, affording enough time for compliance. 

The EPA has repeatedly failed to comply with the existing 5-year 

schedule and, as the standards have gradually tightened, compliance has become costlier and more complicated. The longer schedule will give much needed time to comply. 

Different States and regions have unique challenges in meeting 

the ozone standards. Elevation, weather patterns, natural phenomena, traffic, varying levels and types of industrial activity, and 

interState and international transport of ozone and its precursors 

all impact ozone levels and vary significantly by jurisdiction. 

With all of those variables in mind, modeling is extremely complicated and is largely left up to the States and municipalities, at 

great cost. Western and mountain States are particularly burdened 

by elevated background levels of ozone. 

To achieve compliance, governments and industry need a clear, 

certain timeline for implementation of standards and a willing 

partner in the EPA. Up to now, we have not had that support in 

Washington. 

The EPA repeatedly misses the deadlines for finalization, 2008 

was not an outlier. One of these delays was 14 years. Implementation almost always takes longer than the 5-years required by statute. 

Now, just as the 2008 standards are being implemented, implementation regulations for 2015 are being drawn up. Areas that 

have just reached attainment status may once again be thrown into 

nonattainment, even as ozone levels nationally are trending downwards. 

Based on data collected between 2013 and 2015, the number of 

counties in nonattainment will increase from 197 to 214 across 20 

13 

States and the District of Columbia. More than one-third of the US 

population would live in areas facing regulatory sanctions for nonattainment. 

EPA has estimated the cost to comply with this new standard will be $1.4 billion annually for 49 States and $800 million annually for California, which would have until the 2030’s to come into 

attainment. 

Ground-level ozone is already declining nationwide due to emissions controls. There is no need to rush into implementation of new 

standards when the trend lines are positive and the late implementation of 2008 has not allowed the compliance process to play out. 

Even a State like West Virginia, which is projected to be in attainment under both the 2008 and, narrowly, the 2015 standards 

have raised opposition with the EPA over the tightening of the 

standards over the uncertainty and costs the standards generate on 

those grounds. 

The West Virginia Department of Environmental Protection has 

noted in communications to the EPA that ‘‘the costs of achieving 

lower ozone concentrations increase exponentially as the standard 

is lowered, a policy decision as to the level at which the NAAQS 

should be set should not require the expenditure of billions of dollars to achieve health benefits that are not real, or at least extremely dubious under the science.’’ 

I request unanimous consent that this letter be entered into the 

record. 

[The referenced information follows:] 

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Senator CAPITO. Our panel has a unique perspective. I welcome 

them. I look forward to the debate and hearing from our witnesses. 

I yield to Ranking Member Whitehouse for a 5-minute opening 

statement. 

[The prepared statement of Senator Capito follows:] 

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OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 

U.S. SENATOR FROM THE STATE OF RHODE ISLAND 

Senator WHITEHOUSE. Let me thank Chairman Capito and other 

members of the subcommittee and our witnesses for being here 

today to discuss the EPA’s 2015 National Ambient Air Quality 

Standards for ozone, colloquially known as NAAQS and two related 

legislative proposals. 

Ironically, this hearing comes the week that the American Thoracic Society, 16,000 strong, is here in Washington urging action to 

protect American lungs from climate change and pollution. 

In March, President Trump unveiled an Executive Order instructing agencies to review regulations that affect domestic energy 

production, which includes EPA’s 2015 ozone standard. A few 

weeks later, EPA attorneys were granted a delay in the ozone 

standard’s case now before the U.S. Court of Appeals for the D.C. 

Circuit. 

EPA stated it needed time as ‘‘EPA officials in the new Administration will be closely scrutinizing the 2015 rule to determine 

whether the standard should be maintained, modified or otherwise 

reconsidered.’’ 

Despite all this administrative activity, we are here today talking 

about bills to delay implementation and formation of health standards for ozone and other pollutants. Why is that? The answer, I am 

afraid, is that there is neither the law nor the science to dismantle 

the ozone standard quickly through administrative action, so the 

fossil fuel industry is calling as usual on politics. 

The Clean Air Act mandates that NAAQS be set solely based on 

what is necessary to protect public health, specifically not on how 

it affects domestic energy production. The 2015 ozone standard was 

based on sound peer-reviewed science and the 70 ppb standard was 

the high bound of the proposed 60 ppb to 70 ppb range. 

EPA’s independent science advisors, leading medical groups like 

the American Medical Association, the American Academy of Pediatrics, the American Thoracic Society, the American Lung Association and the American Heart Association, and public interest 

groups such as the NAACP, had all called for a stricter standard, 

closer to 60 ppb. Winning with 70 ppb was not enough for the fossil 

fuel industry. 

State compliance dates are linked to the severity of their pollution. Some States have upwards of 20 years to comply. The congressional Research Service compiled a preliminary list of nonattainment areas based on State recommendations. 

As you can see from this chart, West Virginia, Arkansas, Oklahoma, Nebraska, Iowa, Kansas, Mississippi and Alabama, the 

States represented by the Republicans on the subcommittee, all believe they are already in attainment of the 2015 standard. Why 

then delay ozone compliance for these States that are already in attainment? 

I would ask unanimous consent to enter the CRS material into 

the record, Madam Chair. 

Senator CAPITO. Without objection. 

[The referenced information follows:] 

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Senator WHITEHOUSE. Polluters never want to reduce their pollution and regularly attack the Clean Air Act based on overblown 

costs that always ignore the other side of the ledger, the public 

health and other benefits of reducing pollution. 

My State is on the other side of that ledger. We are downwind 

of the polluters. For years, tall, upwind, out-of-State smokestacks 

have been launching ozone-forming pollution into the prevailing 

winds that carry it to the playgrounds and backyards of Rhode Island. 

Rhode Island parents should not have to tell their children they 

cannot play outside on what looks like a perfect summer day because it is a bad air day caused by out-of-State, upwind pollution. 

In evaluating proposed ozone legislation, I encourage members of 

the subcommittee to take both sides of the ledger into account, including the substantial public health benefits of reducing pollution. 

Madam Chair, I would like to ask unanimous consent that a letter from my Director of Environmental Management, Janet Coit, 

and four other northeastern States, be entered into the record in 

opposition to the proposed legislation. 

Senator CAPITO. Without objection. 

[The referenced information follows:] 

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Senator WHITEHOUSE. I have another opposition letter from 22 

public interest groups including the Appalachian Mountain Club, 

the National Parks Conservation Association, the Nebraska Wildlife Federation and the Wilderness Society be put into the record. 

Senator CAPITO. Without objection. 

[The referenced information follows:] 

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Senator WHITEHOUSE. I have an opposition letter from 15 State 

Attorneys General, the District of Columbia Attorney General, and 

the Acting Secretary of the Pennsylvania Department of Environmental Protection be put into the record. 

Senator CAPITO. Without objection. 

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Senator WHITEHOUSE. Finally, I have an opposition letter from 

14 health and medical groups including the American Lung Association, the American Thoracic Society, the American Public Health 

Association and the Asthma and Allergy Foundation of America be 

put into the record. 

Senator CAPITO. Without objection. 

[The referenced information follows:] 

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Senator WHITEHOUSE. Thank you, Madam Chair. 

Senator CAPITO. Before we proceed to Senator Flake, Senator 

Carper, the Ranking Member of the full committee, is going to introduce a member of the next panel. He asked if he could make a 

4-minute statement which I granted him the right to do but if you 

would do your introduction at the same time, I would appreciate 

that. 

OPENING STATEMENT OF HON. TOM CARPER, 

U.S. SENATOR FROM THE STATE OF DELAWARE 

Senator CARPER. I am happy to do that. 

In 2015, the EPA finished its congressionally mandated review 

of the 2008 ozone health standard. After reviewing more than a 

thousand scientific studies, the EPA concluded that the 2008 ozone 

health standard was too weak and no longer adequately protected 

public health. 

The EPA’s rule is essentially a statement of fact, in order to protect the 6.3 million children with asthma, we need less ozone pollution in our air. 

Fortunately, many of today’s biggest emitters of ozone pollution, 

such as old coal plants, are already scheduled to be cleaned up. 

This means the costs of compliance are not as high as they might 

have been two, four or 6 years ago. 

If Administrator Scott Pruitt and Congress keep the clean air 

protections on the books today intact, only 14 counties outside of 

California will not meet the new ozone standard by 2025. 

I have a friend when you ask him how he is doing, he always 

says compared to what. How many counties are there outside of 

California in the United States. There are 2,949. The path that we 

are on, only 14 of those 2,949 will be out of compliance for ozone 

by 2025. 

However, instead of working together to help the remaining communities meet the new ozone health standard, this Administration, 

unfortunately, is doing the opposite. Not only is the Administrator 

working on rolling back Federal clean air protections that will put 

more communities at risk, the Administration’s Fiscal Year 2018 

budget, which was released today, slashes critical clean air resources to States and local governments. 

Congress is not doing much more to be helpful. The bills that are 

the subject of today’s hearing direct EPA and the States to ignore 

the health science for 10 years before having to think about cleaning up. 

It is little like taking your children to the doctor to see if they 

are sick and the doctor waiting 10 years to call you back with the 

test results. Not acceptable to me, probably not acceptable to most 

of us. I think it is also unacceptable when EPA is doing it. 

These delays only serve to harm the 6.3 million children in this 

Country who have asthma today, many of them living in downwind 

States in the Eastern U.S. at the end of what many of us call 

America’s tailpipe. 

I have one chart I want to refer to very briefly. The blue line up 

here, growth in gross domestic product, is almost 150 percent. The 

bottom line is aggregate emissions, the six most common pollutVerDate Aug 31 2005 10:20 Nov 07, 2017 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\27298.TXT VERN
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ants, during the same period of time since 1980, down by 63 percent. Those are pretty good trajectories for both of those. 

Our Nation’s clean air protections have allowed our Country to 

make remarkable progress. We need to make some more of that. 

We still have some ways to go. As Robert Frost used to say, ‘‘We 

have miles to go before we sleep.’’ 

Before I introduce Shawn Garvin, the Secretary of the Department of Natural Resources and Environmental Control, I want to 

point out sitting right behind him is Ali Mirzakhalili. When Shawn 

testifies, you will see Ali move his lips. He has been our air guy 

forever. 

Shawn Garvin was just confirmed for the position of Secretary of 

the Department of Natural Resources and Environmental Control 

by our State Senate in March of this year. This agency is tasked 

with protecting and managing the State’s natural resources and 

protecting public health and the environment. 

Shawn has years of experience serving the people of the first 

State and addressing clean air issues, especially the unique challenges that face downwind States like Delaware. 

I have more to say here but you have been very generous already 

with giving my opening statement. I would ask unanimous consent 

to enter the rest of my statement and my introduction of Shawn 

for the record. 

Thank you. 

Senator CAPITO. Without objection. 

Senator CARPER. Shawn, welcome. 

Senator CAPITO. Thank you. 

On our first panel is our colleague from Arizona, Senator Flake. 

Senator Flake, you are recognized for 5 minutes. 

OPENING STATEMENT OF HON. JEFF FLAKE, 

U.S. SENATOR FROM THE STATE OF ARIZONA 

Senator FLAKE. Thank you, Chairwoman Capito and Ranking 

Member Whitehouse. I appreciate you allowing me to speak in support of the Ozone Standards Implementation Act of 2017 which I 

am pleased to join the Chairwoman in co-sponsoring. I believe it is 

a sensible piece of legislation. 

I also want to thank Chairwoman Capito and Ranking Member 

Whitehouse and the rest of the panel for allowing my legislation, 

the Ozone Regulatory Delay and Extension of Assessment Length, 

the ORDEAL Act. It is an ordeal just to get through that acronym 

I know. 

We all want clean air and as a Nation, we have come a long way 

since the Clean Air Act and its subsequent amendments. However, 

we all ought to be concerned about regulation that creates burdensome red tape for little or no appreciable benefit. 

I am happy to see Director Cabrera representing the Arizona Department of Environmental Quality on the witness panel today and 

providing the perspective of Arizona environmental regulators who 

have to implement these standards. 

I am also glad that Dr. Monica Kraft from Arizona is here to 

share her perspective as well. 

This issue is very important to my home State of Arizona. I have 

testified twice on the pressing need for ozone reform. In 2015, the 

66 

EPA essentially changed the rules in the middle of the game and 

finalized its rules on the ozone emissions standard at 70 ppb. 

After this rule came out, I heard from stakeholders throughout 

Arizona that it might be impossible for the State to meet this new 

standard. With costly compliance requirements, this onerous rule 

will burden counties and businesses already working in good faith 

to meet the previous standard. 

In my opinion, the rule demonstrates complete tone deafness. It 

is particularly detrimental to Arizona where we greatly feel the impact of EPA’s failed air regulatory regime. This rule comes with 

great cost and with little to no benefit. 

In fact, Arizona’s Attorney General joined other States in filing 

a lawsuit over the rule. I believe it is time for Congress to step in. 

That is why I was happy to work with Chairwoman Capito in introducing the Ozone Standards Implementation Act of 2017. 

Among other provisions, this legislation phases-in the implementation of the 2008 and 2015 ozone standards, extending the compliance date for the 2015 standards to 2025. This bill also includes 

a provision from the bill I have introduced, the ORDEAL Act, that 

would change the mandatory review of national ambient air quality 

standards from 5 years to 10 years. This would make a big difference. 

It is critical that States have the flexibility and time to implement their own innovative and proactive measures. That is why 

last year, I introduced a congressional Resolution to halt implementation of EPA’s 2015 rule on ozone. We have to have time to be 

able to comply. We cannot change the rules in the middle of the 

game. 

I am pleased that Congress is focusing on legislative remedies 

and I will continue to support legislation and regulatory changes 

to lessen the impact of this devastating rule on Arizona communities. 

Thank you, Madam Chair and members of the subcommittee. 

Senator CAPITO. Thank you, Senator Flake. I appreciate your testimony. 

With that, I will ask the witnesses for the second panel to please 

join the table. Welcome to all of you. I am going to provide a brief 

introduction of all of you. 

Mr. Garvin has been introduced. I will skip over him in the interest of time. 

Our first panelist is Mr. Misael Cabrera, P.E., Director, Arizona 

Department of Environmental Quality. Thank you for coming. 

Next, we have Ahron Hakimi, welcome to you. He is the Executive 

Director, Kern Council of Governments in California. Next we 

have, Mr. Kyle Zeringue, Senior Vice President, Business Development, Baton Rouge Area Chamber in Louisiana. Last, we have Dr. 

Monica Kraft, MD, Past President of the American Thoracic Society, University of Arizona College of Medicine in Tucson. 

Mr. Cabrera, you have 5 minutes. 

STATEMENT OF MISAEL CABRERA, P.E., DIRECTOR, ARIZONA 

DEPARTMENT OF ENVIRONMENTAL QUALITY 

Mr. CABRERA. Madam Chairman and members of the committee, 

my name is Misael Cabrera. I am the Director of the Arizona of 

67 

Environmental Quality. I greatly appreciate the opportunity to 

offer testimony today. 

It is important to know that because ozone creating compounds 

can travel hundreds, if not thousands of miles, the new ozone rule 

punishes the victims of pollution, not just the polluters. 

Because of that, we appreciate the ORDEAL Act and the Ozone 

Standards Implementation Act of 2017 because they provide immediate relief to all States and some of Arizona’s industrialized areas, 

allowing enough time for measures required by the 2008 ozone 

standard to fully take effect and air quality to improve. 

Irrespective of the implementation timeframe, however, the 

standard itself remains a challenge for Arizona. That is why we are 

the lead State challenging the standard in court. The Clean Air Act 

has five mechanisms to bring nonattainment areas into compliance 

or provide relief. All of them are inadequate for rural Arizona and 

likely other western States, again punishing the victims of pollution, not just the polluters. 

These mechanisms include State regulation, designation of rural 

transport areas, designation of interState or international transport areas, and demonstrating exceptional events. I will discuss 

each mechanism and its shortcomings in the context of a small 

county in rural Arizona. 

Yuma County is located in the southwest corner of Arizona bordered by both California and Mexico. The county contains a few 

small towns and the city of Yuma and has the highest unemployment rate of any metropolitan area in the U.S. as of July 2016 according to Bureau of Labor statistics. 

Yuma is predominantly an agricultural community and despite 

its lack of industrialization, Yuma County exceeds the 2015 ozone 

standard. As you may know, volatile organic compounds and oxides 

of nitrogen react in the presence of sunlight to produce ozone. 

According to the U.S. EPA’s 2014 National Emission Inventory, 

industrial sources account for only 2 percent of total volatile organic compound emissions and only 5 percent of NOx emissions 

within the county. 

All other sources are either naturally occurring or not regulated 

by the State of Arizona. Simply put, there are not enough emission 

sources that Arizona can regulate to achieve compliance with the 

new standard. 

In addition, Yuma County would not qualify for the rural transport mechanism because the Clean Air Act states that a rural area 

seeking relief cannot be adjacent to or include any part of a metropolitan statistical area. 

The cross-State air pollution rule does not apply to Yuma County. Although 20 percent of ozone concentrations in Yuma County 

emanate from California manmade sources, the rule only helps 

downwind nonattainment areas receive emissions reductions from 

upwind attainment areas. California has no emissions reductions to 

contribute downwind. 

Further, the exceptional events rule is of dubious value to Yuma 

County, if not the whole Country. Although Arizona has been a national leader in development of an exceptional event documentation 

for dust events, the process for documenting and receiving EPA apVerDate Aug 31 2005 10:20 Nov 07, 2017 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6633 S:\_EPW\DOCS\27298.TXT VERN
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proval for ozone exceptional events has not been explained, will be 

resource intensive and is difficult to predict. 

The best case scenario for Yuma is that our agency can make an 

international transport demonstration given that EPA’s own modeling shows that international sources are responsible for up to 68 

percent of ozone emissions affecting Yuma. 

Unfortunately, that demonstration can only occur after the 3- 

year marginal attainment deadline is exceeded. Yuma would still 

have to comply with higher, nonattainment classification requirements, effectively limiting economic growth in a high unemployment area in perpetuity as a consequence of emission sources that 

originate primarily outside of Arizona or outside of Arizona’s jurisdiction to control. 

To further exacerbate the issue of international transport demonstrations, the EPA’s proposed implementation rule requires an 

area to implement reasonable, available control measures before 

EPA will review the demonstration. In short, the current ozone 

rules punish the victims of the pollution, not the polluters. 

For all these reasons, Arizona is challenging the 2015 ozone 

standard in court and favors longer implementation timeframes. 

We also request that consideration be given to legislation that 

would allow rural and international transport demonstrations before areas are classified as nonattainment and before unnecessary 

regulation is initiated. 

Thank you. I am happy to answer any questions. 

[The prepared statement of Mr. Cabrera follows:] 

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Senator CAPITO. Thank you. 

Mr. HAKIMI. 

STATEMENT OF AHRON HAKIMI, EXECUTIVE DIRECTOR, KERN 

COUNCIL OF GOVERNMENTS 

Mr. HAKIMI. Madam Chairman Capito, Ranking Member 

Whitehouse and esteemed Senators, and fellow veterans, my name 

is Ahron Hakimi. I am the Executive Director for Kern Council of 

Governments, a metropolitan planning organization in California’s 

San Joaquin Valley. 

As a colonel in the Army Reserve’s Logistics Corp, it is my honor 

and privilege to sit before you today offering testimony and answering your questions. 

For more than 30 years, I have worked as an engineer and manager in the transportation industry, including 25 years with the 

California Department of Transportation and 31 years in the Army 

Reserve. 

To begin, thank you for the opportunity to consider the Federal 

mandates under the Clean Air Act and potential improvements 

that may be warranted. What follows is an appended version of my 

full testimony which have provided to the committee staff. 

The Joaquin Valley encompasses eight counties and 25,000 

square miles, an area larger than 20 percent of the 50 States with 

a population greater than half the States at 4.1 million and poverty 

levels that meet or exceed the Appalachian region. 

Due to geography, topography and weather conditions that trap 

air pollutants, we continue to exceed the latest Federal ambient air 

quality standards for ozone and particulate matter of PM 2.5. This 

is even after imposing some of the toughest air regulations in the 

Nation and having reduced emissions by over 80 percent, costing 

Valley businesses roughly $40 billion. 

Since the 1970’s, EPA has established numerous ambient air 

quality standards for individual pollutants. The San Joaquin Valley 

air basin is subject to no less than four standards each for ozone 

and PM 2.5. Each of these standards requires a separate attainment plan that leads to multiple, overlapping requirements and 

deadlines. 

The pollution that industry, agricultural operations, cars and 

trucks release is at historic loads. Our residents’ exposure to high 

smog levels has been reduced by over 90 percent. Unfortunately, 

after all this investment and sacrifice, we have reached a point 

where we cannot attain the Federal standards even if we eliminated all Valley businesses, all agricultural operations or all the 

trucks traveling through our valley. 

Federal law specifically prohibits local jurisdictions from imposing tailpipe emission standards on mobile sources. The San Joaquin Valley cannot attain the Federal standards without significant 

emission reductions from these sources. 

Trans-boundary transport is another source over which we have 

no local control. It is delivered onshore in the spring and summer 

from prevailing tropospheric winds across the Pacific Ocean all the 

way from Asia. 

We believe that common sense and fairness dictate that Federal 

law include an overriding provision to prohibit sanctions on local 

102 

regions and States where the inability to attain Federal standards 

is due to pollution from outside their regulatory authority. 

Right now, the Valley is in nonattainment for three ozone standards and three PM 2.5 standards. Each of these requires a separate 

air quality plan which leads to multiple requirements and deadlines. 

There are 51 different air quality tests each of the eight transportation planning agencies must pass. As a Valley, we could deliver more than $40 billion in transportation projects over the next 

two decades if we are not tripped up through a labyrinth of air 

quality tests requiring massive coordination among numerous regional, State and Federal agencies. 

These projects put people to work, move agricultural goods to 

market, move freight from northern to southern California, and 

help our citizens be mobile. 

In closing, we support a strong Clean Air Act with commonsense 

revisions that actually result in improved air quality. We need a 

way to significantly reduce the almost biennial updates with 51 

tests that place our transportation funding constantly at risk. 

Commonsense amendments to the Clean Air Act will benefit the 

San Joaquin Valley and the Nation as a whole. 

Thank you. It has been my honor and privilege to address your 

subcommittee this afternoon. I will be happy to answer any questions I can. 

[The prepared statement of Mr. Hakimi follows:] 

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Senator CAPITO. Thank you very much. Thank you for your service to our Country in the military. 

Mr. ZERINGUE. 

STATEMENT OF KYLE ZERINGUE, SENIOR VICE PRESIDENT, 

BUSINESS DEVELOPMENT, BATON ROUGE AREA CHAMBER 

Mr. ZERINGUE. Thank you, Chairman, Ranking Member and 

members of this subcommittee. It is an honor to testify before you 

today. 

My name is Kyle Zeringue, Senior Vice President of Business Development for the Baton Rouge Area Chamber, BRAC. BRAC is the 

regional economic development organization over a nine-parish region in southern Louisiana, representing over 825,000 residents. 

I stand before you today to express BRAC’s support of the proposed Ozone Standards Implementation Act of 2017 and the ORDEAL Act of 2017 based on three points. 

One, the unimplemented standards have already cost our region 

tens of thousands of jobs and billions of dollars in capital investment and salaries. Second, the standards would impose hardships 

to many of the top performing metropolitan economies due to nonattainment status. Third, the vast majority of U.S. counties are on 

track to attain the EPA’s 2015 standards by 2025 with practices already in place. 

Foremost, BRAC fully supports cleaner air and environmental 

stewardship. For over 12 years, BRAC has played an active role in 

the Baton Rouge Clean Air Coalition. Thanks in large part to the 

Coalition’s efforts in April 2014, the Baton Rouge Area attained the 

2008 ozone standard of 75 ppb. 

Since then, the region has continued to decrease ground-level 

ozone and improve air quality and health for its residents. Our 

commitment and success is proven by the EPA’s re-designation of 

the Baton Rouge Area to attainment for the 2008 standard in January 2016. 

Despite our efforts, the unimplemented 2015 standards have 

caused our region incalculable economic loss. Since 2014, BRAC 

has worked with a number of manufacturers seeking to make significant investments in the region. 

When the EPA first proposed lowering the ozone NOx in November 2014, numerous companies indicated that the proposed new 

standards, as they created market uncertainty and limited available emission reduction credits, influenced them to proceed elsewhere or to cancel their projects altogether. 

To quantify, the unimplemented standards have cost our region 

at least 3,570 direct jobs, $439.5 million in annual payroll and 

more than $33.9 billion in capital investment. Economic modeling 

completed by BRAC shows these projects would have brought in 

significant, indirect value as well, making the total loss of opportunity exceed 18,000 total jobs, $1.2 billion in payroll and $46.2 billion in capital investment. This does not include opportunity cost. 

Should these bills fail to pass, the Baton Rouge area, in all likelihood, will once again be thrust into nonattainment status, thus 

eliminated from consideration on additional major investments. 

While I represent the Baton Rouge area, our region would not be 

alone in suffering economically. If the EPA were to implement the 

115 

lower ozone standard at 70 ppb at the normal schedule, eight of the 

Nation’s top 15 metropolitan area economies, as ranked by the 

Brookings Institution, would be relegated to nonattainment status. 

The cost associated with nonattainment creates significant risk 

to new investments and places additional burden on existing companies. The unrealistic schedule to implement the standards will 

continue to stifle growth and development in the top U.S. metro 

areas. 

While the EPA enacted stricter ozone standards 7 years ago, the 

agency effectively suspended implementation of their standards 

from 2010 to 2012. Because of this delay, States are behind in putting the current standards into effect, meaning we have yet to see 

the full impact of the last standard decrease. 

In fact, the EPA provided a map in a December 2014 webinar 

concerning the standards which showed that all but 14 U.S. counties will meet the new standard by 2025 with the rules and programs being successfully executed. 

Implementing this standard now when the EPA has itself identified that 241 counties would be in nonattainment is needlessly punitive and puts the U.S. economic health at risk. 

Madam Chairman, Ranking Member and members of the subcommittee, the Baton Rouge area’s commitment to clean air proves 

that economic development and environmental stewardship does 

not have to be mutually exclusive. 

Policies that have significant adverse effect on local economies, 

as the impending NOx implementation schedule does, should be 

enacted with broader consideration. Therefore, BRAC strongly recommends these bills, which extend implementation to a realistically achievable timeframe, be passed to prevent additional loss of 

existing and future economic opportunity for the Baton Rouge area, 

as we as other top metro economies in the U.S. and to provide local 

and regional economies with a realistic timeline for attainment 

with the 2015 standards utilizing the successful practices already 

in place. 

This concludes my prepared statement. I thank you for your 

time. I will be pleased to answer any questions. 

[The prepared statement of Mr. Zeringue follows:] 

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Senator CAPITO. Thank you. 

Mr. GARVIN. 

STATEMENT OF SHAWN GARVIN, SECRETARY, DELAWARE DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL 

Mr. GARVIN. Chairman Capito, Ranking Member Whitehouse, 

Senator Carper, and members of the subcommittee, I am Shawn 

Garvin. I serve as Delaware’s Secretary of the Department of Natural Resource and Environmental Control. 

Thank you for the opportunity to testify on Making Implementation of the National Ambient Air Quality Standards for Ground 

Level Ozone Attainable: Legislative Hearing on S. 263 and S. 452. 

Since the Clean Air Act was last amended 27 years ago, it has 

prevented literally hundreds of thousands of premature deaths, as 

well as averted millions of instances of morbidity, including, for example, heart disease, chronic bronchitis and asthma. 

The health benefits associated with this landmark legislation 

have far outweighed the cost of reducing pollution by more than 30 

to 1. Moreover, we secured these health benefits over the same period that our Nation’s gross domestic product has grown. 

I think everyone can agree the Clean Air Act is one of the Nation’s most effective environmental statutes. Simply put, the Clean 

Air Act works. 

Accordingly, it is crucial that any comprehensive amendments to 

the Act be deliberative and thoughtful and ensures that the basic, 

important tenets of the legislation, protection of public health and 

welfare, remain intact. 

Unfortunately, after reviewing S. 263 and S. 452, I concluded 

these bills significantly weaken the existing Clean Air Act by delaying important deadlines and substantially altering the process 

for settling air-based, air quality standards. 

This results in undermining the health protection afforded by the 

Clean Air Act to our citizens, our environment and our future. 

Delawareans continue to struggle to bring healthy air to our citizens because we are downwind and subject to air pollution transport from facilities in other parts of the Country. 

The Clean Air Act requires States to obtain their ozone National 

Ambient Air Quality Standards, NAAQS, as exponentially as practicable, a responsibility that would be unduly impacted by these 

bills. 

Because the NAAQS are set to protect public health with adequate margin of safety and are based on the base available science, 

any delay in implementing NAAQS would prolong exposure by the 

public to unhealthy air. 

EPA’s 2015 ozone NAAQS is expected to provide ample public 

health benefits across the United States, including preventing 

230,000 asthma attacks in children, 630 asthma-related emergency 

room visits, and 320 to 660 premature deaths annually by 2025, excluding California. 

Arbitrarily delaying implementation of the 2015 ozone NAAQS to 

2025 would leave the 2008 standard which has been found to be 

outdated and insufficiently protective of public health as a prolonged, inadequate target for protecting health. 

120 

This unnecessarily puts our citizens in great peril for suffering 

from pollution’s adverse health and welfare impacts, including premature mortality. 

In addition, it does not accurately inform the public of the true 

quality of the air. The bill’s provision to extend the review cycle for 

all NAAQS from 5 years to 10 years further exacerbates this problem. 

Experience has shown that NAAQS reviews rarely occur within 

the current statutory 5-year cycle. An extension to 10 years with 

additional analysis will likely result in a much longer review time 

and additional work by EPA that will extend well beyond 10 years. 

Thus, our State’s ability to provide clean, healthy air as expeditiously as practicable becomes an unattainable goal. Indeed, the cumulative effect of delayed implementation and longer review cycles 

means that by the time EPA reviews the ozone standard again, the 

underlying science for the existing standard will be 20 years old. 

This is what Congress wanted to avoid when the Clean Air Act was 

amended. 

Allowing technological feasibility to be considered when setting 

NAAQS runs counter to the original core principles of the Clean 

Air Act. NAAQS should be set solely on the basis of health. This 

is now well settled law, including a unanimous opinion from the 

Supreme Court in the Whitman v. American Trucking Associations 

case. 

Once health-based standards are established, the Clean Air Act 

appropriately allows States to consider other factors such as cost 

and technological feasibility as they develop strategies to attain the 

standards. 

Allowing the consideration of technological feasibility when setting NAAQS will defeat the critical purpose of a health-based 

standard. The adverse harm from polluted air is a matter of science 

and has nothing to do with controlled technology costs. 

Furthermore, historical experience has shown that current considerations of technological feasibility are poor predictors of future 

innovation breakthroughs created by the technologically forcing nature of the Clean Air Act. 

The bill’s provision regarding permitting also impairs the health 

of our citizens. Allowing air pollution sources to obtain permits 

under an outdated standard, whether because of an arbitrary delay 

as proposed for the 2015 ozone NAAQS, or because EPA has not 

issued rules or guidance imprudently punishes people who reside 

and work in areas with poor air quality and prolongs the inequity 

that exists between upwind and downwind States. 

If Congress is truly concerned about the timeliness of EPA rules, 

it should ensure that EPA has adequate resources to carry out its 

responsibilities. 

The bills also inappropriately address exceptional events by expanding the exceptional events criteria to include conditions occurring on days during which the highest pollution episodes actually 

occur. 

This makes setting a health-based ozone NAAQS a meaningless 

exercise by absolving EPA and the States from taking efforts to 

achieve it under the prevalent conditions leading to the worse air 

quality days. 

121 

The intent of exceptional event criteria is to allow a State to discount NAAQS exceedances that result from one time, unpredictable 

and uncontrollable events, for example, a volcanic eruption or a 

wild fire. 

This short-sightedness would result in continuation of harmful 

exposure to polluted air while ignoring that a repeatable, predictable and preventable high pollution day occurred. 

Other provisions of the Act already address the issues that appear to be motivating this legislation. The Act’s nonattainment 

area classification provides areas with more ozone pollution problems more time to comply. 

Other mechanisms allow States the flexibility to adjust the minimum pollution reduction requirements based on showing of the 

need, success in lowering ozone levels and the adoption of certain 

other measures. 

In addition, the Act’s good neighbor provision requires States 

with emissions that contribute significantly to other States’ ozone 

attainment to take action to reduce that contribution. 

Even with all the in-State emission improvements, we continue 

to struggle to meet the ozone standard. The answer to solving our 

ozone problem lies outside our boundaries and we need emission 

reductions upwind. 

We have lodged four separate petitions with the EPA requesting 

controls to be installed at power plants or for EPA to compel the 

power plants to operate their installation pollution control equipment. 

We have tried to prompt our upwind neighbors through the State 

Collaborative on Ozone Transport to reduce emissions but to no 

avail. 

In conclusion, the proposed legislation under cuts requirements 

of the Clean Air Act that are crucial to obtaining healthy air quality as expeditiously as practicable. Further, the proposed amendments change the intent of the Clean Air Act which is the swift 

protection of public health to one of delay and deprivation of public 

health protection. 

Delaware supports efficient and expeditious implementation of 

the National Ambient Air Quality Standard but opposes bills which 

would weaken public health protection. Revisions to the Clean Air 

Act may be warranted such as provisions to directly address climate change or strengthen the good neighbor provision to deal with 

air pollution transport, but changes in S. 263 and S. 452 are problematic because they take us backward in the protection of our citizens from public health and economic harms of air pollution. 

Thank you for the opportunity to testify. I am happy to answer 

any questions. 

[The prepared statement of Mr. Garvin follows:] 

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Senator CAPITO. Thank you, Mr. Garvin. 

Dr. KRAFT. 

STATEMENT OF MONICA KRAFT, MD, PAST PRESIDENT OF THE 

AMERICAN THORACIC SOCIETY, UNIVERSITY OF ARIZONA 

COLLEGE OF MEDICINE 

Dr. KRAFT. Chairman Capito, Ranking Member Whitehouse, Senator Carper and members of the committee, thank you so much for 

the opportunity to testify on behalf of the American Thoracic Society. 

As a clinician who actively treats patents with lung disease such 

as asthma and COPD and an asthma researcher who spent the majority of my academic career investigating causes and treatments 

for asthma, there are a few key points I would like to make. 

First, I think we would all agree that ozone is detrimental to the 

health of millions of patients with severe lung disease. As a lung 

disease specialist, I treat people with these severe respiratory diseases and with medications, trigger avoidance and other interventions. I work with patients to help them control their disease so 

they can feel in control of their lives. However, they cannot control 

the outdoor air quality. 

Having taken care of patients in areas of Arizona with specific 

air quality problems, I know from experience that ozone impacts 

my patients’ health. We know it can cause asthma attacks, COPD 

exacerbations that can lead to emergency department visits, hospitalizations and even premature death. 

There are literally hundreds of high quality, peer review research 

articles showing that ozone exposure is bad for patients with chronic diseases such as asthma and COPD, but also for those with cardiovascular disease. 

Ozone is bad for healthy people too. That often gets lost in the 

discussion. We know that when young, healthy people are exposed 

to ozone, they also demonstrate declines in their lung function. It 

is not just the young, the ill and the frail that feel the detrimental 

effects of ozone; it is everyone. 

In addition to delaying the ozone standard, the bill actually 

forces the EPA to update or to delay updating science-based initiatives for widespread and prevalent dangerous air pollutants. As the 

Clean Air Act has required for decades, the Nation needs to ensure 

that we set standards for our citizens, who are my patients every 

5 years, which is what the law currently calls for. 

The current request to delay to every 10 years would force the 

Nation to set aside important new research that is currently identifying potential threats that air pollution presents to my patients 

and our citizens. 

The dangerous levels of deadly air pollutants like lead, particulates, and carbon monoxide remain in the air longer, needlessly exposing our citizens to the toxic health effects. 

The health impacts of the delay, in addition to what I have stated, are not trivial. In the 10-year review called for by this bill, a 

child will grow from a new borne to age ten. We know that lung 

development substantially increases after birth and exposure, especially in early life, to ozone and other particulates can actually 

132 

interact with allergens and other processes to create asthma, to actually cause it. 

By delaying improvements in air quality, we are literally burdening our children with lifelong health issues. 

Also, I think the legislation would affect the people of Arizona, 

which is where I live. The prevalence of asthma in Arizona is higher than it is nationally, which is 10 percent. In Arizona, it is 15 

percent and even higher in children. 

According to the Arizona Hospital Discharge Data base, there are 

between 30 to 35 emergency department and hospital visits for 

asthma every year, leading to about 130,000 hospitalizations at a 

cost of $1 billion annually. 

According to the 2000 State of the Air Report by the American 

Lung Association, Phoenix ranks No. 5 of the 25 most polluted cities with regard to ozone and 21st out of 25 with regard to particulates. 

I take care of patients all around the region, in Tucson, Phoenix 

and the southwest. We routinely have to talk about how they 

should curb their activities and change their lives based on the air 

quality. Despite my best efforts, these patients still experience 

asthma attacks and COPD exacerbations a day or two after those 

high ozone days. 

Last, I think the bill fundamentally rewrites the Clean Air Act 

by directing the EPA Administrator to consider factors unrelated to 

health when setting national ambient air quality standards. As the 

Clean Air Act clearly states, the EPA Administrator must set clean 

air standards to protect public health, irrespective of estimated 

costs or assumed technological feasibility to clean it up. 

The Administrator does that following a very careful, scientific 

review. Even at 70 ppb, there still are health effects. Therefore, I 

think decreasing the standard from 75 ppb to 70 ppb actually is a 

meaningful difference. 

Fortunately, the approach has worked well to clean up the Nation’s air for decades. Ozone levels are decreasing, which is good. 

However, I would propose to you that there are still detrimental effects even at the current levels. 

In fact, the measurements to create health-based standards have 

pushed the U.S. to develop new technologies, which also create 

jobs, save money and save lives. The current approach has been affirmed in the U.S. Supreme Court in the majority opinion written 

by the late Justice Scalia. 

As a clinician, a scientist and a citizen, I urge you to reject this 

legislation. Thank you very much. 

[The prepared statement of Dr. Kraft follows:] 

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Senator CAPITO. Thanks to all of you. 

We will begin questioning. I will begin first. 

Senator CAPITO. Mr. Cabrera and Mr. Hakimi, both of your 

States, Arizona and California, have some similarities in your testimony. You used Yuma County and San Joaquin Valley as your examples. You stated no matter what you do or short of taking everyone off the road and ceasing any kind of industrial activity, you are 

still not going to meet the standards. Did I hear your testimony 

correctly? 

Mr. CABRERA. In Yuma County, the effects on vehicles, which 

only the Federal Government can enact, that has not been studied. 

We are sure that there is not enough industry in Yuma County in 

order to bring us back to attainment. 

Senator CAPITO. Mr. Hakimi. 

Mr. HAKIMI. Madam Chair, yes, you are correct. We could move 

all the people out of the southern San Joaquin Valley and still not 

attain the current standard. 

Senator CAPITO. In your discussions with the EPA, what sort of 

recommendations do they give you to try to meet the standards? 

Mr. HAKIMI. They do not have any recommendations. 

Senator CAPITO. Mr. Cabrera, they do not work with you to try 

to figure out alternative methods, give you some kind of longer 

timeline, or anything of that nature? 

Mr. HAKIMI. We have the absolute longest timeline that is available to us but there is plenty of scientific evidence that background 

levels exceed the most current standards. 

Mr. CABRERA. EPA’s normal relief mechanisms, which I outlined 

in my testimony which include rural transport areas, exceptional 

events, or international transport, do not do the trick for Yuma 

County. Simply put, Yuma County could be punished for the pollutions that others create. 

Senator CAPITO. Mr. Zeringue, you mentioned job losses and lost 

opportunities, lost tax dollars and so forth for not maybe making 

the next standard. What kind of punitive measures are out there? 

My understanding is that your Federal transportation tax dollars 

are tied to your attainment and nonattainment. Can you speak to 

that? 

Mr. CABRERA. I do not have direct knowledge on what funding 

mechanisms are going to support the Louisiana Department of Environmental Quality in their implementation. 

Senator CAPITO. Let me go to Mr. Hakimi. 

Mr. HAKIMI. I can comment on that, Madam Chairman. Former 

Congressman Bill Thomas is in the room. He was able to get our 

region in Kern County almost $730 million. One of the consequences of not being in compliance or being a nonattainment 

area and having a lapse in attainment is our funds for transportation projects that increase capacity and reduce congestion in 

many cases are taken away. 

We are working on many projects in my county and in our valley 

which would reduce congestion. Yet, those are the types of projects, 

in many cases, that we would lose our Federal funds for when we 

have a conformity lapse. 

144 

It is not if we have a conformity lapse in Kern County. If we 

maintain and stay on our current path, it is when we have a conformity lapse. 

Senator CAPITO. In reference to the bills, in my opinion, it does 

not undermine the Clean Air Act; it does not throw out the 2008 

or 2015 standards or otherwise erode those existing protections. 

Mr. Garvin said that every 5 years this should be done and you 

have to make sure that EPA has the resources to do this. I would 

say that in the last 8 years, the EPA has had more than enough 

resources and they could not even get their regulations out for 8 

years. You are already 3 years beyond the 5-year window at which 

we were supposed to be. 

Simply by pushing the timelines and making them tighter, hopefully making EPA responsive to the timeline, it is going to give you 

all the chance to react and react in a more reasonable way. 

The last thing I will say, before I turn to my Ranking Member, 

is this downwind issue we hear a lot on a lot of different pollutants. 

Not living in a downwind State but I guess I am living in an attainment State, as the Ranking Member reminded me, we have to 

find a way to help those downwind States really meet the challenges they have whether it is through certain allowances, I do not 

know. I hear this as a repeating theme that makes it impossible 

for compliance. 

I think if we could all work together to find a way to help those 

States, work with either the surrounding States or the regulators 

to try to figure out a way to bring those numbers down, I think it 

would be useful for a lot of the panelists I have heard over the last 

several years. 

Senator WHITEHOUSE. 

Senator WHITEHOUSE. Senator Capito, I would be delighted to 

work with you on that. There is kind of a mismatch between 

upwind polluter States and downwind nonattainment States. Many 

of us have seen that requiring attainment closer to the source of 

the pollution has improved the quality of the air. 

I think it is Director Garvin’s testimony that shows very impressive results that have been achieved in many air pollution indices 

in the last decade as a result of this. As a result of that, Rhode 

Island is actually now in attainment, not because of anything that 

happened in our State but because of you all down in the Midwest. 

In the beautiful part of the Country, because there were controls 

put on the emissions that landed on Rhode Island. 

What worries me is when you have pockets where there is a 

problem area where you cannot generate attainment because of 

your own emissions not being the problem. Then the solution to 

that isn’t to address the problem in the pocket area, but to take 

a whack across the board at the entire regulation that, overall, has 

produced the extraordinary results Director Garvin indicated. 

Just to be clear, Mr. Cabrera, you said the problem with this regime for your county is that is punishing the victims of pollution 

and not the polluters. Who are your polluters? 

Mr. CABRERA. California, Mexico and some China. 

Senator WHITEHOUSE. A wall would fix that pollution problem 

with Mexico, a big wall. 

Mr. CABRERA. Not exactly, sir. 

145 

Senator WHITEHOUSE. Am I correct in looking at this legislation, 

Director Garvin, that while there are these pocket problems, which 

we were in for a while in Rhode Island where there was nothing 

we could have done to come into attainment within our borders, 

nevertheless, having these rules apply across the Country did 

produce a level of cleanup that actually brought us into attainment. 

Overall, it has worked for us. Rhode Island is now in attainment. 

It is rare actually when you hear the bad air day warning as you 

are driving into work in the morning. It used to be fairly frequent. 

I am really glad to not be having to hear that any longer. It made 

me mad as hell that we had to have that happen. 

In Delaware, you are another downwind State. Do you see it the 

same way? 

Mr. GARVIN. Absolutely. Other than ozone, we are attaining in 

all of the other areas. Ozone is one of those places that we cannot 

control it within our State. We need support. 

Senator WHITEHOUSE. The difference is it has worked for you because those national results have improved the conditions in the 

way that you described. It has not worked for the San Joaquin Valley and it has not worked for Yuma County, but it has worked for 

you? 

Mr. GARVIN. That is correct. 

Senator WHITEHOUSE. Dr. Kraft, first of all, thank you for your 

testimony. Thank you for your service as the head of the American 

Thoracic Society. You are in town now. I had the privilege of speaking at your gathering yesterday. 

Dr. KRAFT. I saw you on the program. 

Senator WHITEHOUSE. Here, we often see the industry coming in 

and saying, oh, boy, look how much it is going to cost us to clean 

up and this is a terrible cost. They never look at the other side of 

the ledger. They usually ignore it entirely. When they do not, they 

tend to underState it, call the claims dubious and so forth. 

Can you kind of lay out the case for what the health benefits side 

of the ledger looks like in air quality? 

Dr. KRAFT. Absolutely. I am certainly glad I am able to do that. 

We are learning more and more about the effects of air quality 

in a number of arenas, especially with regard to lung disease, but 

also cardiovascular disease. I think that is a relatively newer finding. If you think about all of our citizens affected by one or both 

of those diseases, we are talking about a lot of people. 

As I mentioned, it is also healthy people that can be affected as 

well. As a runner myself, I avoid high ozone days because of the 

health effects that I know to be apparent. I have actually experienced them and I do not have lung disease, for instance. 

One of the worries I have on the air pollution side is take a case 

like asthma. Yes, we know that ozone can cause asthma attacks, 

COPD exacerbations, lead to hospitalizations and death, but I am 

worried that it can actually cause disease. 

There is some more recent research suggesting that especially in 

someone who has allergies, this interaction of poor air quality, the 

particulates, the ozone with the allergens at a young age can actually affect the immune system and lead to the presentation of the 

disease. 

146 

If we think about a 10-year lag, that is worrisome to me because 

I think about those small children who are exposed at a very young 

age and have 10 years’ worth of time to evolve. Usually, asthma 

presents itself early in life but then really becomes established by 

about five to 8 years of age. 

I see a very detrimental situation there as well, certainly with 

the development of the disease. We are actually contributing to this 

increased asthma prevalence that we see. 

Senator WHITEHOUSE. Thank you, Doctor. 

My time has expired. 

Senator CAPITO. Thank you. 

Senator INHOFE. 

Senator INHOFE. Thank you, Madam Chair. 

I was Mayor of Tulsa when we were out of attainment so I lived 

through that and it was pretty difficult. When things changed for 

the better, the misery lags on for a long period of time. 

There are two pieces of legislation from Senator Capito and Senator Flake, I am on both, I think, and both have one thing in common. That is the 10-year cycle as opposed to the 5-year cycle. 

Mr. Cabrera, let us talk a bit about if you think that is a good 

idea and why do you think it is a good idea? 

Mr. CABRERA. Madam Chair and members of the committee, the 

extension of time provides immediate relief to allow standards and 

controls that are already in place to, over time, reduce ozone concentrations. Having said that, an extension of time will not help 

Yuma County because they are not creating the pollution. 

Senator INHOFE. Let us find somebody it would affect then. How 

about you, Mr. Hakimi? 

Mr. HAKIMI. Madam Chair and Senator, yes, it would. As I said 

in my testimony, there are over 51 plans with which the eight 

counties in the San Joaquin Valley have to comply that literally 

takes millions of dollars away from concrete and steel. 

By having new standards every 5 years, for us, that means we 

have to come up with a brand-new plan. It does not stop us from 

coming up with plans for all the previous plans. Currently, we are 

in non-compliance for 3 PM, 2.5 and 3 ozones. If we come up with 

another plan in 5 years, we will likely not be in compliance with 

that. That is eight times three more plans that we have to do. 

We spend literally millions of dollars and months, if not years, 

demonstrating and doing computer modeling to try to show how we 

obtain these new standards. 

Senator INHOFE. I have been here for a long time. I have chaired 

this committee for many years. Not a year goes by that there is not 

another idea and some of it might work. I think it was Senator 

Thune who last year was talking about until you take the 85 percent of those in nonattainment, you would not be able to have another standard. I do not know what happened to that except it 

never passed out of committee. 

The EPA did not issue guidance to the States for the 2008 ozone 

standard until 7 years later. I would kind of like to know what 

kind of challenge does that make for you in terms of not having the 

guidance until 7 years after a standard is adopted? Do you have 

any comments about that, Mr. Zerinque? 

147 

Mr. ZERINQUE. I think the delay in the implementation guidelines certainly put us at a disadvantage. The proposed 2015 regulations and that lapse in time put undue burden, ambiguity and a 

certain level of risk on potential investment in our region. As a result, it cost us significant jobs and investment. 

Senator INHOFE. I would think it would be very difficult. I do not 

know how you would do it without guidance. I cannot think of any 

justification for not doing the guidance right after that. 

Mr. Zerinque, I would ask you the question because the EPA has 

indicated that counties in nonattainment will grow substantially 

under the 2015 ozone standard. The EPA modeling projects those 

counties would be in nonattainment only for a short period of time. 

Even if it is for a short period of time, isn’t that still a problem? 

Doesn’t the problem linger on after that period of time? 

Mr. ZERINQUE. I think the onset of those being in nonattainment 

presents a risk to companies that would look elsewhere for investment. I think the interesting thing is that the EPA, itself, identified in a webinar that they had completed in December 2014 that 

showed 14 of the U.S. counties would meet the new standard by 

2025 with the rules and practices already in place. 

Senator INHOFE. Yes, but if there is someone out there looking 

for relocation, they are going to look to see what the history is 

going to be because they would be moving into an area that could 

have the same problem we had in Sand Springs, Oklahoma when 

I was Mayor of Tulsa. The problems do not go away with it. 

Mr. ZERINQUE. Correct. 

Senator INHOFE. Thank you, Madam Chair. 

Senator CAPITO. Thank you. 

Senator CARPER. 

Senator CARPER. Again, our thanks to each and every one of you. 

Thanks so much for joining us. 

Dr. Kraft, I have a couple yes or no questions, if I could. Maybe 

we could review the basics. 

In layman’s terms, national ambient air quality standards, as I 

understand it, are health standards. The EPA reviews the latest 

health studies to determine what level of ozone in the air makes 

us sick. Is that correct or not? 

Dr. KRAFT. Yes. 

Senator CARPER. It is my understanding that EPA’s own Scientific Review Board determined that 75 ppb, the 2008 ozone 

standard, was not strong enough to protect public health as early 

as 2007, is that correct? 

Dr. KRAFT. Yes. 

Senator CARPER. As a doctor and clinician, do you consider either 

treatment costs or efficacy before diagnosing a patient? 

Dr. KRAFT. I think of both. I think they both go into the thought 

process but certainly efficacy is the first order of business in order 

to effectively treat a patient. There is always the consideration of 

cost as the reality of the medical care we can provide but efficacy 

would be first. 

Senator CARPER. On similar ground, do you think it makes sense 

for the EPA to consider cost when establishing a health standard? 

Dr. KRAFT. I think, first and foremost, is the health of our citizens and my patients, first. I think that cost can enter into it but 

148 

I think the priority needs to be, first, the health. Detrimental 

health can actually lead to increased cost as well. There are actually two sides to the financial aspect of it. 

Senator CARPER. Do you think the public has a right to know the 

air pollution in the air might make them sick? 

Dr. KRAFT. Absolutely. I think it is our obligation to inform them. 

Senator CARPER. I just want to share something with my colleagues, you and the rest of the panel. 

Last Wednesday, some of us like to work out and one of the 

things I do a couple days of the week is I run. I usually run at 

home in Delaware, catch a train in the morning and come on down 

here, like Joe Biden, who Shawn used to work for, who did the 

same thing. 

Last Wednesday, I stayed here Tuesday night because of other 

obligations. I went out and ran on Wednesday morning. I like to 

run down to the Washington Monument and back. It is about five 

miles. You are a runner as I recall. 

I did not feel good that day. I got back to the gym and somebody 

told me that one of our colleagues, Tom Tillis, had been running 

in a race. They said he collapsed and had to have CPR, but it was 

not true. He had to stop running and basically stooped down until 

he felt better. 

I told my wife about it that night. She was in Delaware, and I 

think last Wednesday and Thursday, was in nonattainment for 

ozone. I thought, boy, that is strange because I frankly do not often 

feel that way. It was not all that hot but I just did not feel good. 

I spoke with Senator Tillis yesterday when we were on the floor. 

I asked him about it. I sent him a text message to see how he was 

doing. I think he was running a 5K race. He is a good athlete and 

in good shape but he said his legs were stronger than his lungs. 

I found that kind of interesting. Could you tell us what might have 

been happening to our lungs that day? 

Dr. KRAFT. Absolutely. Ozone can interact with our cells, so we 

breathe in and obviously when we are running, our respiratory rate 

increases, we have a lot of air movement in and out. Usually we 

breathe in and out about 5 liters a minute; when we are running, 

it is more like 15 liters a minute, so it is almost double or triple. 

What can happen if there is a high concentration of ozone and 

also particulates is it can interact directly with the cells that line 

our lungs. They are very protective of these elements in the environment and can actually cause inflammation, redness and swelling, narrow the airways and also cause coughs, and sometimes 

wheeze. 

As you saw, it can even occur when you do not have a history 

of lung disease. That can be very disconcerting, especially if you 

have never had this sensation before. The patients I take care of, 

unfortunately, have this happen a lot. 

They have medications, but the medications do not always completely negate the effects. Yes, it can be a very significant reaction 

going on in the lungs. 

Senator CARPER. Thank you. 

One of our witnesses, I think it was the Colonel, Navy salutes 

Army. Thanks for your service. He talked about basically if they 

149 

shut down the economy, their State vehicles, plants, manufacturing, everything and still be out of compliance. 

That reminds me a bit of where we were in Delaware a few years 

ago, doesn’t it, Secretary Garvin? 

Mr. GARVIN. Yes. 

Senator CARPER. What did we do about it? We shut everything 

down, didn’t we, and we were still out of compliance? 

Mr. GARVIN. We shut everything down. We made a lot of investments in power plants, the Indian River Power Plant and a number of other places, and focused on multi-pollutants and counted on 

some of our surrounding States and nationally making investments 

as well. 

As I said before, for ozone, it has been very beneficial but we still 

have the transport issue that we are not going to be able to address 

in our borders. One of the things we are talking about is if there 

is a reduction over kind of a broad range of areas, it is actually 

probably more beneficial to our State than having one facility 

which makes significant reductions. 

We are looking to ensure that there is leadership throughout the 

Country to make sure everyone is doing what they need to do 

which will benefit our State. 

Senator CARPER. Thank you. 

Senator CAPITO. Thank you. 

Senator MERKLEY. 

Senator MERKLEY. Thank you, Madam Chair. 

Mr. Garvin, are the top two sources of ground level ozone transportation and power production? 

Mr. GARVIN. Yes. 

Senator MERKLEY. As we see in the transportation world, people 

are driving higher mileage vehicles or plug-in vehicles. Are we seeing a reduction in the ozone generated? 

Mr. GARVIN. We have been, but in our State, we have also shown 

that even with a significant reduction in that area, transport is still 

going to keep us from getting to where we need to go. 

Senator MERKLEY. I am just trying to get a sense as we are seeing the auto industry evolve, whether that is helping us make this 

more achievable. 

Mr. GARVIN. Yes, absolutely. 

Senator MERKLEY. Also in terms of burning, coal-fired power 

plants are being replaced in substantial amounts by gas-powered 

and also by renewable. Is that also reducing the amount of ozone 

being generated? 

Mr. GARVIN. Yes. 

Senator MERKLEY. Those factors alone do not drive us to the 

point we need to get to. The existing trends do not drive us toward 

the goal being laid out by the EPA? 

Mr. GARVIN. That is correct. 

Senator MERKLEY. Additionally, what would be the most cost effective things a community could look to, is it a faster reduction or 

change in power production, a change in the cars people drive, is 

it trucking or particular types of industries that generate a lot of 

the precursors that form ozone? What is the best bang for the buck 

to address this problem? 

150 

Mr. GARVIN. I think it is across the board. I think there is some 

simple stuff that is available now that we are not taking advantage 

of. We have some facilities upwind of Delaware which have control 

technologies on their plants but do not run them all the time which 

impacts us. 

They run them at peak times and at various times but if they 

ran them consistently, things that already in place, that would 

have a big advantage to us. 

Senator MERKLEY. That is one. Are there other most cost effective things that top the list? Counties and States are looking at 

what can we do and are concerned about the cost. I am trying to 

get a common sense of the things we really need to work on to 

make a difference. 

Mr. GARVIN. Clearly renewable energy, investments in renewables, investments in more efficient vehicles that are using renewable energy, focusing on light duty trucks and cars and reducing 

the emissions coming from them, having that come online faster 

and not being pushed off longer would be beneficial. 

Senator MERKLEY. The EPA is looking at the question of changing the automobile efficiency standards and also possibly taking 

away the waiver for the California standards. Would that take us 

in the wrong direction in terms of ozone production? 

Mr. GARVIN. Absolutely. 

Senator MERKLEY. Similarly, in terms of slowing down the transition to renewable energy? 

Mr. GARVIN. Yes. 

Senator MERKLEY. Dr. Kraft, you are immersed in the medical 

side of this. Is there a point in terms of reducing the ground level 

ozone at which essentially the health benefits tend to flatten out 

as a curve? Where are we at that point? Are we still at a point 

where significant changes in ground level ozone creates significant 

health benefits and therefore, medical savings? 

Dr. KRAFT. Right now we are talking about a movement of 75 

ppb to 70 ppb. The American Thoracic Society recommends consideration of 60 ppb. That really comes from the research being done 

from many of our own members, both in people as well as animal 

models and so forth to really understand how low do we need to 

go. 

Even at 60 ppb, it is not perfect. I think there are still health 

effects even at 60 ppb because you can imagine a population, we 

are very heterogeneous, so those of us who have lung disease, very 

low concentrations of ozone are going to cause problems or particulates. 

Therefore, it actually is difficult to give you a threshold. I think 

of some of my patients with more severe disease whereas others 

who are healthier may be able to tolerate higher levels. I would say 

we still have a way to go for the population as a whole. 

Senator MERKLEY. Thank you. 

Senator CAPITO. Senator Duckworth. 

Senator DUCKWORTH. Thank you. 

As a mother, I believe that safeguarding communities against 

public health issues like smog and pollution must remain a top priority. I was actually participating in that run with Senator Tillis. 

I was in the wheelchair division. It was actually my Deputy Chief 

151 

of Staff who called 911 and my staff watched while he received 

CPR. 

It is frightening but there was another runner who collapsed during that run and also needed CPR. There were two people who 

needed CPR on what was a really beautiful day. 

I am really concerned that efforts to reconsider regulations like 

the ozone standard could make it harder, not easier, for industry 

to do its job. 

My concern is compounded by the fact that the current Administration’s budget cuts 30 percent of the EPA’s budget and that millions of Americans with preexisting conditions may face higher 

health care costs if Trump Care passed in the Senate. 

This question is for Dr. Kraft. Can you please share with us the 

health benefits associated with the ozone standard and whether 

you consider asthma to be a preexisting condition? 

Dr. KRAFT. We know that any severe lung disease, it does not 

have to be severe, mild to moderate when we talk about asthma 

or COPD, is affected by ozone levels, especially the levels we are 

talking about, 70 ppb, as we saw, 75 ppb, even 60 ppb. 

As I mentioned, the lower we can go, obviously the better for 

health overall of the population. I think that certainly is a concern. 

I spoke earlier about the concern I have about the development 

of disease, that air pollution and ozone in particular, can actually 

interact with allergens and actually cause asthma. That is a real 

concern for me. 

I think many of us think of asthma as something that is mild 

and not a real problem. We probably all know someone with asthma, if we do not have it ourselves. There is actually a substantial 

fraction of the population which has pretty severe disease with 

morbidity and sometimes mortality. 

I tend to take care of the more severe segment of that population 

and can tell you, it can be a very serious disease. 

Senator DUCKWORTH. It is. Indeed, it was very frightening to see 

and hear of someone like our colleague, who is incredibly fit, Senator Tillis, to be passed out on the ground receiving CPR. I saw the 

second runner who had also passed out on the ground and received 

CPR. It is deeply concerning. 

Efforts to delay, weaken or eliminate the ozone standard are justified by supporters as necessary to save money. However, there 

are expenses associated with taking care of sick kids. Dr. Kraft and 

Mr. Garvin, can you please share your thoughts on who would save 

money if the ozone standard is weakened and who would bear the 

cost of that profit? What are the costs of asthma to our economy? 

Dr. KRAFT. I can speak to the cost on the health care side. I gave 

an example for the State of Arizona where I live. There are about 

30,000 to 35,000 emergency department acute visits every year for 

asthma. The prevalence is actually higher than in the rest of the 

U.S. 

There are probably a couple reasons for that. Sometimes people 

with asthma come to Arizona because they think it will get better 

with the dry air but we have changed our environment actually 

quite a bit. I live in Tucson. We have a year-round blooming season 

now because we have all these plants. 

152 

In Phoenix, there is a serious air quality problem, both ozone and 

particulates. Phoenix is ranked in the top 25 of the worst cities for 

both those categories. I worry a lot about that and the dust. The 

cost to the State of Arizona alone is $1 billion annually. 

Senator DUCKWORTH. Mr. Garvin. 

Mr. GARVIN. Yes, Senator. The cost goes to a lot throughout the 

economy. You have lost school days and lost work days. We are 

dealing with a close to $400 million shortfall in the State of Delaware. One of the largest costs that we have is health care costs in 

the State Government. 

When you have a population that is facing pollution that causes 

health issues, there is a cost to not only government but to businesses, plus the other side of it which is the investments in addressing this pollution which actually helps to stimulate the economy. 

If you look at a lot of the pollution control systems with air and 

water, they came out of setting standards on what was good for 

health. The private sector and academic institutions found the 

ways to meet those standards which was stimulated the economy. 

There are benefits while you are protecting the health and also 

how it has a positive impact on the economy. 

Senator DUCKWORTH. Do you support the 30 percent to the EPA’s 

budget? How would affect the ability of State and local entities to 

do their jobs? 

Mr. GARVIN. It will have a very significant impact. I speak on behalf of my State. I was actually handed something on my way in 

that showed me what the number was. We kind of heard what it 

might be. A lot of those are State implementation grants which 

help to support the States in discharging the delegation responsibilities we have from the Federal Government. 

If the budget is passed the way it is, it could have dramatic impacts on our ability in the State of Delaware to protect human 

health and the environment. 

Senator DUCKWORTH. Thank you. 

I am out of time. I yield back. 

Senator CAPITO. Thank you. 

I want to thank all the witnesses for their testimony. I think that 

concludes our questions. 

The record will remain open for 2 weeks for members to submit 

any followup questions to the witnesses. I would ask if you could 

reply in a timely manner. 

This concludes our subcommittee hearing. Thank you. 

[Whereupon, at 3:56 p.m., the subcommittee was adjourned.] 

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