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80–673CC 2002

CLEAN AIR ACT IMPLEMENTATION: EXPERIENCE

OF STATE AND LOCAL REGULATORS

HEARING

BEFORE THE

SUBCOMMITTEE ON ENERGY AND AIR QUALITY

OF THE

COMMITTEE ON ENERGY AND 

COMMERCE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

SECOND SESSION

JUNE 5, 2002

Serial No. 107–119

Printed for the use of the Committee on Energy and Commerce

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

COMMITTEE ON ENERGY AND COMMERCE

W.J. ‘‘BILLY’’ TAUZIN, Louisiana, Chairman 

MICHAEL BILIRAKIS, Florida 

JOE BARTON, Texas 

FRED UPTON, Michigan 

CLIFF STEARNS, Florida 

PAUL E. GILLMOR, Ohio 

JAMES C. GREENWOOD, Pennsylvania 

CHRISTOPHER COX, California 

NATHAN DEAL, Georgia 

RICHARD BURR, North Carolina 

ED WHITFIELD, Kentucky 

GREG GANSKE, Iowa 

CHARLIE NORWOOD, Georgia 

BARBARA CUBIN, Wyoming 

JOHN SHIMKUS, Illinois 

HEATHER WILSON, New Mexico 

JOHN B. SHADEGG, Arizona 

CHARLES ‘‘CHIP’’ PICKERING, Mississippi 

VITO FOSSELLA, New York 

ROY BLUNT, Missouri 

TOM DAVIS, Virginia 

ED BRYANT, Tennessee 

ROBERT L. EHRLICH, Jr., Maryland 

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

CHARLES F. BASS, New Hampshire 

JOSEPH R. PITTS, Pennsylvania 

MARY BONO, California 

GREG WALDEN, Oregon 

LEE TERRY, Nebraska 

ERNIE FLETCHER, Kentucky 

JOHN D. DINGELL, Michigan 

HENRY A. WAXMAN, California 

EDWARD J. MARKEY, Massachusetts 

RALPH M. HALL, Texas 

RICK BOUCHER, Virginia 

EDOLPHUS TOWNS, New York 

FRANK PALLONE, Jr., New Jersey 

SHERROD BROWN, Ohio 

BART GORDON, Tennessee 

PETER DEUTSCH, Florida 

BOBBY L. RUSH, Illinois 

ANNA G. ESHOO, California 

BART STUPAK, Michigan 

ELIOT L. ENGEL, New York 

TOM SAWYER, Ohio 

ALBERT R. WYNN, Maryland 

GENE GREEN, Texas 

KAREN MCCARTHY, Missouri 

TED STRICKLAND, Ohio 

DIANA DEGETTE, Colorado 

THOMAS M. BARRETT, Wisconsin 

BILL LUTHER, Minnesota 

LOIS CAPPS, California 

MICHAEL F. DOYLE, Pennsylvania 

CHRISTOPHER JOHN, Louisiana 

JANE HARMAN, California

DAVID V. MARVENTANO, Staff Director 

JAMES D. BARNETTE, General Counsel 

REID P.F. STUNTZ, Minority Staff Director and Chief Counsel

SUBCOMMITTEE ON ENERGY AND AIR QUALITY

JOE BARTON, Texas, Chairman

CHRISTOPHER COX, California 

Vice Chairman 

RICHARD BURR, North Carolina 

ED WHITFIELD, Kentucky 

GREG GANSKE, Iowa 

CHARLIE NORWOOD, Georgia 

JOHN SHIMKUS, Illinois 

HEATHER WILSON, New Mexico 

JOHN SHADEGG, Arizona 

CHARLES ‘‘CHIP’’ PICKERING, Mississippi 

VITO FOSSELLA, New York 

ROY BLUNT, Missouri 

ED BRYANT, Tennessee 

STEVE BUYER, Indiana 

GEORGE RADANOVICH, California 

MARY BONO, California 

GREG WALDEN, Oregon 

W.J. ‘‘BILLY’’ TAUZIN, Louisiana 

(Ex Officio) 

RICK BOUCHER, Virginia 

RALPH M. HALL, Texas 

TOM SAWYER, Ohio 

ALBERT R. WYNN, Maryland 

MICHAEL F. DOYLE, Pennsylvania 

CHRISTOPHER JOHN, Louisiana 

HENRY A. WAXMAN, California 

EDWARD J. MARKEY, Massachusetts 

BART GORDON, Tennessee 

BOBBY L. RUSH, Illinois 

KAREN MCCARTHY, Missouri 

TED STRICKLAND, Ohio 

THOMAS M. BARRETT, Wisconsin 

BILL LUTHER, Minnesota 

JOHN D. DINGELL, Michigan 

(Ex Officio) 

(II) 

C O N T E N T S 

Page

Testimony of: 

Jones, Christopher, Director, Ohio Environmental Protection Agency ........ 14

Lempke, Doug, Administrator, Air Quality Control Commission, Colorado 

Department of Public Health and Environment ........................................ 37

Nicholson, Brock, Chief of Air Quality Planning, North Carolina Department of Environment and Natural Resources ............................................ 24

Nielson, Dianne R., Executive Director, Utah Department of Environmental Quality .............................................................................................. 10

Williams, Arthur L., Director, Jefferson County Air Pollution Control 

District, on behalf of STAPPA/ALAPCO ..................................................... 29

Additional material submitted for the record: 

Southern Appalachian Mountains Initiative .................................................. 54

(III) 

(1)

CLEAN AIR ACT IMPLEMENTATION: EXPERIENCE OF STATE AND LOCAL REGULATORS 

WEDNESDAY, JUNE 5, 2002

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON ENERGY AND COMMERCE, 

SUBCOMMITTEE ON ENERGY AND AIR QUALITY, 

Washington, DC. 

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

2123, Rayburn House Office Building, Hon. Joe Barton (chairman) 

presiding. 

Members present: Representatives Barton, Burr, Whitfield, 

Shimkus, Shadegg, Boucher, Sawyer, Waxman, Markey, McCarthy, 

Strickland, and Barrett. 

Staff present: Bob Meyers, majority counsel; Joseph Stanko, majority counsel; Andy Black, policy coordinator; Hollyn Kidd, legislative clerk; Michael L. Goo, minority counsel; and Courtney Anderson, minority research assistant. 

Mr. BARTON. The subcommittee will come to order. 

The Chair would recognize himself for an opening statement. 

This afternoon the Subcommittee on Energy and Air Quality will 

continue its series of hearings on the Clean Air Act. Our last hearing covered the accomplishments of the Clean Air Act. In that 

hearing, the subcommittee received testimony from academic, environmental, and public health groups concerning the significant 

progress that has been made toward achieving Federal air quality 

standards. 

Today’s hearing will focus on implementation of the Clean Air 

Act, specifically the experiences of State and local regulators in implementing emissions reductions programs. Importantly, the subcommittee will hear from those on the front line of Clean Air Act 

implementation, the State and local officials responsible for ensuring that the States meet the Federal air quality standards established by the Environmental Protection Agency. 

Under the subcommittee realignment that began at the first of 

this Congress, the clean air jurisdiction is now within the subcommittee that I chair, the Energy and Air Quality Subcommittee. 

I note that I am one of the few current Energy and Commerce 

Committee members who participated in the last major reauthorization of the Clean Air Act back in 1990. 

I hope that our hearing today will be a part of a larger record 

upon which this subcommittee and the full committee can later 

build another equally bipartisan and effective review of the Clean 

Air Act. 

2

I am also one of many Members of Congress who believes that 

all wisdom does not reside in Washington, DC. For that reason, I 

am eager to hear the experiences of our panel of State and local 

regulators who were kind enough to come to Washington today and 

educate us about the real world implementation issues. 

I cannot emphasize how important these State officials have been 

in achieving our Nation’s significant improvement in air quality. 

We Federal legislators should certainly heed their remarks when 

determining what approach, if any, in terms of new thinking are 

appropriate for future programs. 

Our panel today has officials from the States of Utah, Ohio, 

North Carolina, Colorado, and Kentucky. So we have got a crossreference of the geography of this great Nation in terms of the 

State regulators that are here—officials that are here today. I look 

forward to hearing their testimony. 

Our ranking member on the Democratic side, Mr. Rick Boucher 

of Virginia, is in his district this afternoon and cannot be here. So 

taking his place very ably is the distinguished Congressman from 

Ohio, Mr. Sawyer, and I would recognize him now for an opening 

statement. 

Mr. SAWYER. Well, thank you, Mr. Chairman, and thank you for 

holding this second hearing today on the Clean Air Act. 

As a consequence of the work that has been done over the last 

now more than 30 years, this country has made enormous progress 

in terms of the quality of air. It is sometimes difficult to measure 

the benefits of the work that we do in Congress, but the Clean Air 

Act is a clear example of the public good that can come from legislation when we work at it. 

Nothing is easy. It requires long-term grip, tenacity, and effort. 

But the Clean Air Act has had that indeed. Overall levels of pollution in this country have dropped nearly 30 percent. Cars in the 

2004 model year will be 99 percent cleaner than those produced in 

1970. Quite simply, we benefit from the Clean Air Act with every 

breath we take. 

It demonstrates that this country can achieve ambitious environmental objectives that it sets for itself when it makes the goals 

clear and measures progress toward them. But as the recent EPA 

report submitted to the U.N. reveals, we still have to confront the 

issue of global warming in this country and develop meaningful solutions to address it. 

The U.S. would still increase the overall amount of greenhouse 

gases at the same rate that we are today. The President’s 17.5 percent target is almost the same as the 17.4 percent reduction that 

we experienced from 1990 to 2000. It almost guarantees that we 

will have much higher emissions of greenhouse gases in 10 years, 

and we will have done little to address the serious problem of global warming. 

We have technology to reduce the emissions of greenhouse gases. 

Now we need a—goodness gracious. 

Mr. BARTON. Will the gentleman yield? 

Mr. SAWYER. This is the furthest extent that I have seen Western Virginia extend in 200 years. 

Mr. BARTON. I just announced that you were in your district this 

afternoon. 

3

Mr. BOUCHER. Well, let me say that I have made an unexpected 

appearance for the purpose of contributing an opening statement, 

and I want to express my appreciation to Mr. Sawyer for being 

willing to carry out ranking member responsibilities this afternoon. 

But I did want to make a statement, so after——

Mr. SAWYER. As soon as I am done, why——

Mr. BARTON. He is ranking now. 

Mr. SAWYER. In short, what I was about to say was that we need 

a comprehensive Federal policy for setting benchmarks for compliance. The President’s plan recognizes the benefits of cap and trade 

programs, and I am eager to hear testimony about how those programs have worked in the States. 

The acid ran cap and trade program of 1990 has been remarkably successful, and I am convinced that with care and design 

achievable targets and careful management of a trading system 

that we can do the same thing. It offers great promise with regard 

to global warming. 

I am also interested in learning more about the challenges that 

you faced at the State level and the approaches you have developed 

that can be applied more broadly across the country. 

Our witnesses, Mr. Chairman, are the ones that are in the 

trenches. They know what the difficulties have been in bringing 

communities into compliance with Federal requirements. I understand your need for flexibility in designing those approaches, and 

I commend you all today for your work at the State levels, and I 

am pleased to welcome and recognize Chris Jones from my State 

of Ohio. 

With that, Mr. Chairman, I yield back the balance of Mr. Boucher’s time. 

Mr. BARTON. I thank the gentleman. 

We would recognize the distinguished vice chairman of the subcommittee, Mr. Shimkus, for an opening statement. 

Mr. SHIMKUS. Mr. Chairman, if I may, I am not sure if the gentleman from Virginia is in a time crunch. But if he is, I am willing 

to give him my 5 minutes, so that he can expedite——

Mr. BARTON. All right. The gentleman from——

Mr. SHIMKUS. [continuing] I yield my time to the gentleman from 

Virginia. 

Mr. BARTON. [continuing] Reserves his time, and he is going to 

let Mr. Boucher give an opening statement. 

Mr. BOUCHER. Well, thank you very much, Mr. Chairman. And, 

Mr. Shimkus, thank you for your courtesies. And, Mr. Sawyer, 

thank you so much for taking this responsibility this afternoon. I 

regret that I will not be able to stay for the balance of the hearing. 

I did want to take this opportunity, however, to thank the chairman for scheduling this hearing and, in fact, a series of hearings 

that are planned as we examine the Clean Air Act and the experience that our Nation has had under this series of clean air requirements. Many of the provisions of the Clean Air Act set national air 

quality standards and then direct State and local regulators to develop and implement strategies for meeting the guidelines that 

have been set forth at the Federal level. 

4

States and local regulators have truly been on the front lines in 

improving our Nation’s air quality as they have discharged this responsibility under the Federal clean air laws. 

The State and local regulators have been largely successful in 

meeting their goals. Since enactment of the Clean Air Act and of 

the 1990 amendments to the law, the Nation has made significant 

progress in reducing emissions and improving air quality while the 

Nation’s economy and energy use have expanded. 

From 1970 to 1999, the gross domestic product of the United 

States increased by 158 percent, and during that same period electricity use increased by 148 percent. Despite these increases and 

general economic activity, and in the pace of energy consumption, 

the Nation’s air is much cleaner today than it was in 1970. 

During the last 30 years, sensible environmental regulations, 

along with new technology and voluntary actions by our Nation’s 

industry, have led to a significant reduction in air emissions. Sulfur dioxide emissions have declined by 39 percent. Particulate matter has declined by 75 percent. Airborne lead levels are down 98 

percent. And volatile organic compounds have decreased by 42 percent. 

In addition, coal use has increased by 195 percent during this period of time, while total emissions per ton of coal consumed have 

decreased by 70 percent since 1970. Particulate matter levels from 

coal-based utilities decreased 84 percent between 1970 and 1998. 

Our Nation’s air has been getting cleaner while coal use by electric utilities has been steadily increasing. These improvements in 

air quality have been due largely to the success of the Clean Air 

Act of 1970 and the 1990 amendments. And the success of the 

Clean Air Act has been due, in significant part, to the efforts that 

have been made by State and local regulators as they have implemented the provisions of the Federal law. 

The witnesses testifying before the subcommittee today have extensive knowledge about the Nation’s air quality and the implementation of the Clean Air Act. While I will not be here to hear 

the testimony, I look forward to reading the testimony that these 

witnesses are presenting regarding the progress in improving air 

quality which has been made by this Nation over the past 30 years, 

and the ways in which their State and local agencies have contributed substantially to achieving that success. 

I particularly look forward to reading the testimony of these witnesses regarding their opinions on the strengths and weaknesses of 

the Clean Air Act, their views on the practicality of the Act’s requirements, and their recommendations for any potential changes 

to the Act that they would suggest that this subcommittee consider. 

Mr. Chairman, thank you again for scheduling this timely consideration by the subcommittee, and I welcome the testimony of 

our witnesses. 

Mr. SAWYER. Mr. Chairman, I would at this point ask unanimous 

consent that all members have the opportunity to submit their full 

statements for the record. 

Mr. SHIMKUS [presiding]. If there is no objection, so ordered. 

The Chair recognizes the gentleman from North Carolina, Mr. 

Burr. 

5

Mr. BURR. I thank the chair. Mr. Chairman, it is my pleasure to 

use my opening statement to introduce Brock Nicholson from North 

Carolina Division of Air Quality. This is Brock’s second tour of duty 

with the State government serving this time as the State’s chief of 

air quality planning. Prior to rejoining State government, Brock 

was the chief of the ozone and carbon monoxide development section of EPA’s agency office of air quality, planning, and standards. 

A registered professional engineer, Brock holds a mechanical engineering degree from North Carolina State and is a retired commission officer with the United States Public Health Service. Most 

recently, Brock has been working with our State’s industry, environmental enthusiasts, and elected officials to craft a North Carolina Clean Smokestacks Bill. 

Six months ago I would have given the chances that industry, 

the environmental community, and State government would have 

been able to reach an agreement on legislation that reduces emissions without increasing electricity rates for our consumers about 

the same chances I would have given the Carolina Hurricanes at 

being in the Stanley Cup. 

Well, as of today, a bill has passed the State Senate on April 25. 

Governor Mike Easley announced that the State’s two largest investor-owned utilities have agreed on the framework of legislation 

that accomplishes lower emissions without raising rates on retail 

customers. 

And, yes, the Hurricanes are up one to zero in the Stanley Cup 

finals over our ranking minority member Mr. Dingell’s Detroit Red 

Wings after last night’s overtime win. 

The framework of North Carolina’s legislation would lower sulfur 

dioxide emissions to 250,000 tons by January 1, 2009, and 130,000 

tons by January 1, 2013; lower nitrogen oxide emissions to 60,000 

tons by January 1, 2017, and 56,000 tons by January 1, 2009. 

This legislation is a great example of State initiatives that 

should be given the flexibility to operate above and beyond the 

framework of EPA regulations. I hope that Mr. Nicholson will be 

able to share with us his experience with North Carolina’s legislative success, specifically the requirement to study mercury emissions, the uncertainties in mercury control and the health and economic benefits of additional studies of this issue. 

Brock, I know that these are difficult budget times in Raleigh, 

North Carolina, on behalf of the committee. I would like to thank 

you for taking the time off to be with us. 

With that, I yield back my time. 

Mr. SAWYER. Will the gentleman yield? 

Mr. BURR. I would be happy to yield. 

Mr. SAWYER. Is it true, as I heard reported over the weekend, 

that if, in fact, indeed North Carolina beat Detroit that this would 

have been the first time that they had beaten Detroit in any setting since 1989? 

Not to rub it in, Mr.—— Mr. BURR. The gentleman is incorrect. 

Mr. SAWYER. Incorrect. 

Mr. SHIMKUS. The gentleman’s time has expired. The Chair recognizes the gentleman from Ohio, Mr. Strickland. 

Mr. STRICKLAND. Thank you, Mr. Chairman. 

6

I am especially glad that Mr. Jones is here today. Mr. Jones, I 

appreciate your attendance. I have reviewed your testimony about 

the implementation of the Clean Air Act. I make note of the fact 

that you are going to mention the city of Steubenville in your testimony, a place that is near and dear to my heart. 

However, an urgent matter regarding the Portsmouth Gaseous 

Diffusion Plant I think warrants immediate attention, and so I 

would like to direct your attention to that. 

Yesterday evening the Department of Energy held a public hearing about dumping 14,000 metric tons of uranium waste at the 

Portsmouth site in my district. Over the past, I have worked with 

your staff to ensure that thousands of canisters of depleted uranium hexofluoride that are currently onsite are converted to a more 

stable form and stored safely. 

I know your agency is concerned that the construction of a conversion facility get underway as soon as possible, but now it is apparent that DOE has not only failed to begin the conversion of the 

DUF6 since passage of Public Law 105-204, which we passed in 

1998, but now DOE intends to compound the problem by making 

Portsmouth a dumping ground for all of the Department’s low energy uranium, natural uranium, and depleted uranium, which is 

now stored at over 150 sites within the DOE complex. 

I have learned that this amount of waste would more than triple 

the amount of uranium material stored onsite. This plan by DOE 

is an outrage. I will not stand by quietly while Southern Ohio gets 

dumped on. 

The United States Enrichment Corporation was privatized in 

1998, and we were assured that layoffs would be limited. Well, 

since privatization, I hear regularly about more layoffs at the 

plant. The brilliant decision to privatize USEC, which I strongly 

opposed, resulted in the closure of the Portsmouth plant last year, 

the only plant in the country capable of enriching uranium to commercial specifications using natural feed. 

Approximately 2 years after privatization, $630 million was announced for the Portsmouth site in October of 2000. Unfortunately, 

the Bush administration reversed that decision during the President’s first day in office. As I mentioned, we were also promised a 

DUF6 conversion facility, and this administration continues to 

deny that it is required by law to build two such facilities, one in 

Portsmouth, Ohio, and one in Paducah, Kentucky. 

When DOE announced it would ship materials from Fernald to 

Portsmouth, we were told that jobs were at stake. Only a handful 

of jobs were created under this mission, and now the fact that the 

Fernald material is already at the Portsmouth site serves as a justification for dumping more of the Department’s waste on the communities in Southern Ohio. 

It seems as if the Department wants to clean up Fernald, as they 

promised to do and should do. But in order to accomplish this, they 

want to dump the material on Portsmouth. It is unacceptable. 

I feel that 14,000 metric tons of uranium waste will render the 

site completely unattractive for economic development opportunities, and that would be a disaster for a part of the State that is 

already economically distressed. 

7

Director Jones, I intend to call upon our two Senators, DeWine 

and Voinovich, the Governor, Governor Taft, and my colleagues 

Portman and Ney to do everything that we can to oppose this unwise and unwarranted decision on the part of DOE to further dump 

on Southern Ohio. 

I return the balance of my time, Mr. Chairman. 

Mr. SHIMKUS. The gentleman’s time has expired. I now recognize 

myself for a brief opening statement. 

Under the 1998 amendments to the Clean Air Act, six areas in 

Illinois were designed as non-attainment for one or more criteria 

pollutants. As a result of Illinois’ efforts, five of those areas have 

since come into attainment. Illinois was able to improve their air 

quality through a number of common-sense voluntary and marketdriven approaches. 

For example, the State started the Emission Reduction Market 

System, a volatile organic materials emissions trading program. Illinois was the first State in the Nation to adopt this type of cap 

and trade program for volatile organic materials, which contribute 

to the formulation of ground-level ozone or smog. The program is 

a cost-effective way to obtain emissions reductions. 

Overall, in 2001, participating sources emitted 52 percent less in 

their baselines and 46 percent less than their allotments of trading 

units. The State has established a program called Partners for 

Clean Air, a voluntary organization which was established in 1995 

and is comprised of over 300 businesses, industries, local governments, and health organizations, and representing thousands of 

employees. 

Members of the Partners for Clean Air commit to taking voluntary green actions, which is vanpooling, public transportation, 

limited use of energy, deferring gas-powered lawnmowering, 

etcetera, to reduce ozone precursor emissions for forecasted ozone 

action days. 

Tax credit and rebate programs are another tool the State has 

used to reduce pollution. From January 1997 through the end of 

this month, Illinois offered a rebate program for motorists who purchased alternative fuel vehicles or converted conventional vehicles 

to alternative fuel vehicles. 

Rebates were offered for 80 percent of the conversion costs or 

original equipment costs, 80 percent of the fuel cost differential 

over a 3-year period not to exceed $4,000 per vehicle. This coming 

Saturday, the State is also asking citizens to trade in old gas-driven lawnmowers. In return, they receive a $60 coupon toward purchase of a more environmentally friendly lawnmower. 

In my past comments, I talked about how the Clean Air Act really devastated Southern Illinois and the coal industry and some of 

the other energy producing sectors of the economy. Even with that, 

Illinois has moved significantly forward to help clean up their air. 

And with clean coal technology and a new positive energy bill, we 

look forward to being able to move both generating electricity for 

the country and doing it in a very positive environment way. 

And with that, I will end my statements, and now yield to the 

gentleman from California, Mr. Waxman, for 5 minutes. 

Mr. WAXMAN. Mr. Chairman, thank you for holding this hearing. 

8

Today we will hear from State and local officials regarding their 

experiences with implementation of the Clean Air Act. The States 

have a critical role in meeting our clean air goals. The Federal Government has delegated implementation of environmental laws to 

the States, and each year gives the States millions in Federal funds 

to ensure that the laws are adequately implemented. 

This approach gives the States flexibility to find workable solutions while providing a Federal guarantee that we are working toward healthful air throughout the country. Today’s witnesses will 

discuss some of their successes under this approach. 

When learning of the State’s impressive work, we must remember the importance of maintaining a strong Federal backstop for 

clean air. There are many sources that the States are not in a position to properly regulate, particularly those sources which have 

out-of-State impacts. Additionally, it would be impractical to have 

every State regulating the emissions of cars, trucks, airplanes, and 

other mobile sources. Moreover, not all States do an adequate job 

at cleaning up air pollution. 

For these reasons, it is essential that we maintain a balance in 

the Clean Air Act and keep a strong Federal rule in ensuring clean 

air. As a series of audits from the EPA’s Office of Inspector General 

made clear a few years ago, States are sometimes failing to police 

even the most basic requirements of our Nation’s clean air and 

water laws. 

That is why I have fought over the years to maintain the Federal 

role in the Clean Air Act and why big polluters try year after year 

to weaken Federal oversight and enforcement. And, unfortunately, 

the polluters all too often find allies to help them with this effort. 

In 1995, the Republican leadership in Congress attempted to 

defund the environmental enforcement attorneys at the Department of Justice. In 1998, the Republican leadership attempted to 

cut EPA’s enforcement budget by $10 million. Last year, President 

Bush proposed to cut EPA’s enforcement budget by $25 million and 

reduced the EPA’s enforcement staff by some 200 positions. And 

this year, the President has again proposed slashing EPA’s enforcement staff by over 200 positions. 

This is a serious matter. Without adequate enforcement, our environmental laws will undoubtedly fall short of their intended goal. 

I welcome today’s witnesses and look forward to hearing from 

them. 

Thank you, Mr. Chairman. 

Mr. SHIMKUS. The gentleman yields back his time. 

[Additional statements submitted for the record follow:]

PREPARED STATEMENT OF HON. GEORGE RADANOVICH, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Good afternoon, and thank you Mr. Chairman for holding this hearing today on 

the experience of state and local regulators in implementing the Clean Air Act. 

After reviewing the purpose of this hearing with local regulators, I have three 

critical issues to discuss that are of great importance to the San Joaquin Valley congressional district I represent in California. 

To begin, one of the major issues is that the EPA has not recognized the San Joaquin Valley Air Pollution Control District’s local operating permit program as equivalent to the Title V program under the Clean Air Act 1990 amendments. 

The primary distinction between the federal Title V program and the local programs in California is administrative. The federal regulation prescribes numerous 

9

detailed administrative requirements, which pose significant economic burden on 

the permitting agencies as well as many small businesses, without any resultant air 

quality benefit. As a result, I believe EPA should recognize the San Joaquin Valley 

air district’s permitting program as equivalent to the federal program. 

Another issue of concern in my congressional district, is the discounting of Emission Reductions Credits (ERCs) at the time of use, as required by EPA. California 

uses a different model to bank ERCs and can demonstrate that, taken as a whole, 

its programs result in greater reduction in emissions without having to discount 

ERCs at the time of use. Because of the viability of California’s program, I believe 

EPA should recognize and allow California the ability to continue its current ERC 

discount program. 

Finally, I also have an interest in the development of markets for the trading of 

non-point source air pollution credits with fixed sources. Several experiments in the 

trading of water pollution credits between non-point and fixed sources have resulted 

in significant improvement in overall water quality. That method should be applied 

to the establishment of similar markets in the air quality arena to determine whether like results occur. I know that there has been some initial work done in this regard in California, and we ought to ensure that we do not miss an opportunity to 

use market innovations to improve overall air quality. 

In closing, I look forward to hearing the experiences of our witnesses and am 

ready to work with this Subcommittee and the Administration to resolve Clean Air 

Act issues facing state and local regulators. 

PREPARED STATEMENT OF HON. W.J. ‘‘BILLY’’ TAUZIN, CHAIRMAN, CIOMMITTEE ON

ENERGY AND COMMERCE

Today, Chairman Joe Barton’s Subcommittee continues its series of Clean Air Act 

hearings. I applaud Chairman Barton for assembling another informative panel for 

our Members. 

I, along with several other Members still on the Committee, crafted the last major 

revision of Clean Air Act, the extremely successful 1990 Amendments. Looking back 

on that process a decade ago, I am proud of the bipartisan nature in which the Committee conducted its business. I know that, under Chairman Barton’s leadership, 

that same bipartisan tradition continues with the Energy and Air Quality Subcommittee’s current examination of the Clean Air Act. 

I am eager to hear from today’s panel of state and local air regulators. Of course, 

it is the states that must take the policy we establish here in Congress and make 

it work our there in the real world. Accordingly, it is critical that we receive feedback from states regarding what has, and has not, worked under the current program. Our shared goal is cleaner air, with a strong economy. We can have both. 

I thank the witnesses for taking time out of their busy schedules to come to Washington and participate in today’s hearing. I look forward to their testimony. 

Mr. Chairman, I yield back my time. 

PREPARED STATEMENT OF HON. BILL LUTHER, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF MINNESOTA

Mr. Chairman, thank you for holding this hearing today. State and local regulators are our partners in trying to effectively implement the Clean Air Act and it 

is essential that we hold hearings to get their perspective on how to reach the goal 

of improving the nation’s overall air quality. I am especially interested in hearing 

about states that have gone beyond current federal requirements in an attempt to 

combat regional air quality concerns. 

I am also very concerned about possible changes to the New Source Review program that have been rumored for months. If the Administration moves forward with 

plans to relax NSR standards, I believe it essential that the strong clean air and 

public health standards under the current program not be sacrificed. If there are 

fundamental problems to the NSR program, as many have claimed, I believe it is 

this committee’s responsibility to hold investigative hearings on the matter. I look 

forward to any insight today’s state and local regulators may have on the issue and 

I look forward to the testimony. Thank you.

Mr. SHIMKUS. Now I would like to ask the panel to take their 

seats. And we would first like to hear from Ms. Dianne Nielson, 

Executive Director of Utah Department of Environmental Quality. 

10

You will have 7 minutes to give your opening statements. Your full 

statement is in the record already. The time is yours. Welcome. 

STATEMENTS OF DIANNE R. NIELSON, EXECUTIVE DIRECTOR, 

UTAH DEPARTMENT OF ENVIRONMENTAL QUALITY; CHRISTOPHER JONES, DIRECTOR, OHIO ENVIRONMENTAL PROTECTION AGENCY; BROCK NICHOLSON, CHIEF OF AIR QUALITY PLANNING, NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES; ARTHUR L. WILLIAMS, DIRECTOR, JEFFERSON COUNTY AIR POLLUTION 

CONTROL DISTRICT, ON BEHALF OF STAPPA/ALAPCO; AND 

DOUG LEMPKE, ADMINISTRATOR, AIR QUALITY CONTROL 

COMMISSION, COLORADO DEPARTMENT OF PUBLIC HEALTH 

AND ENVIRONMENT 

Ms. NIELSON. Thank you very much, Mr. Chairman, members of 

the committee, for the opportunity to be here today to talk about 

implementation of the Clean Air Act. 

My name is Dianne Nielson. I am Governor Leavitt’s Executive 

Director for Environmental Quality in the State of Utah, and I am 

appearing today on behalf of the State of Utah. 

In Utah and throughout the west, visibility and air quality represent essential components of western vistas, of our public health 

and environmental protection, the quality and life and spirit that 

represents the west. And we value those resources. We protect 

them through State programs in partnerships with States, tribes, 

and our Federal neighbors, through organizations such as the 

Western Governors Association and the Western Regional Air Partnership. 

We have learned that we can best accomplish our air quality and 

visibility goals, the objectives of the Clean Air Act and laws and 

regulations, where we have programs that foster innovation and 

flexible approaches to attainment and maintenance of air quality 

goals and standards. 

The Clean Air Act was based on the premise that we would have 

a national government that set air quality standards and States 

that develop the plans to implement those standards. Air quality 

programs traditionally have relied on command and control regulation for achieving those emissions reductions. 

And while these approaches have achieved significant environment benefit, benefit that we are all proud of and are served well 

by, the economic incentive approaches to regulation, such as market trading, also have a place in an enforcement and compliance 

program, and they have the potential to achieve greater emissions 

reductions while offering the flexibility and cost savings of program 

implementation. 

The Grand Canyon Visibility Transport Commission and the 

Western Regional Air Partnership have demonstrated an ability for 

States, tribes, industry, environmental representatives, academia, 

local government, the EPA, and our Federal land managers to be 

able to work together in partnership to develop comprehensive regional air quality programs that work and that serve as a model 

for future environmental management. 

In April 1999, EPA adopted the Regional Haze Rule. In September of 2000, the WRAP submitted an Annex to the report of the 

11

Grand Canyon Commission which detailed the sulfur dioxide emissions reduction milestone graph and a backstop emissions trading 

program to ensure attainment of that visibility improvement. On 

May 6 of this year, the EPA proposed a revision to the Regional 

Haze Rule that would include that Annex. 

The States who choose to implement a program under Section 

309 of the Annex and the Regional Haze Program must submit 

their plans by December 31, 2003, not much more than a year from 

now. The work of the WRAP remains on schedule and will enable 

us to meet that deadline, and we intend to do that. 

The success of this process has been in no small measure a result 

of the contributions that EPA has made to the partnership and the 

willingness of Congress to fund that work, and we appreciate both. 

On a related note, in a recent decision from the U.S. Court of Appeals regarding the Regional Haze Rule, while the court rejected 

EPA’s group BART determination, or best available retrofit technology application, it did reaffirm the State’s role in implementing 

the program. And the market-based Section 309 program right now 

remains a viable option under the Regional Haze Rule, perhaps 

now with even more regulatory certainty. 

Congressional multipollutant proposals and President Bush’s 

Clear Skies Initiative also provide opportunities for flexibility for 

market-based reductions in air pollutants. 

As this process moves forward, it is important, however, to remember that a new national program can best serve the west if it 

preserves the consensus on the sulfur dioxide reductions which are 

attained within the WRAP’s Annex. 

And, furthermore, it should preserve the ability for States to require additional emissions reductions, if they need those to meet 

air quality standards, require new sources to utilize best-available 

control technology at the time they are constructed, and ensure 

that new sources do not create visibility impairments or other air 

quality related problems for nearby mandatory Class I areas. 

We participated in the Joint House-Senate Committee workshop 

on multipollutants, and we are prepared to continue to work with 

Congress in this effort and the administration. 

Where regulatory programs have failed, there have been some 

basic problems that have been common to those situations. First of 

all, the process of implementing innovative incentive-based programs is sometimes so complex that the process itself becomes a 

disincentive. While Project XL was a great idea for piloting innovation, the process was so complex that it wasn’t an incentive program at all, but, in fact, a disincentive. 

The economic incentive programs that are now being considered 

offer opportunities for market-based strategies, but the guidance 

document is 200 pages long. The process is, again, a disincentive. 

Laws and regulations and policies are sometimes contradictory. We 

find that in New Source Review, with respect to offsets, and we 

find it also to some degree as we look at integrated planning and 

the need to coordinate guidelines and deadlines and conformity and 

transportation regulation. 

Furthermore, frankly, sometimes the Federal regulatory approvals, the process of approval, just takes too long. A non-attainment 

area can qualify for redesignation after 3 years of conforming moniVerDate 0ct 09 2002 09:44 Oct 28, 2002 Jkt 010199 PO 00000 Frm 00015 Fmt 6633 Sfmt 6602 W:\DISC\80673 80673
12

1For further information, see www.westgov.org 

2For further information, see www.wrapair.org 

3See Enlibra on www.westgov.org 

4See also www.wrapair.org 

toring data. However, the process of filing the application and the 

review and approval take many years with very little effect or benefit and added value. 

The Clean Air Act should provide for automatic redesignation by 

operation of law if an area has 3 years of compliant air quality 

data and leaves State implementation plan controls in place. 

Again, thank you to the committee for taking this very important 

issue under consideration, and I would be happy to answer questions. 

[The prepared statement of Dianne R. Nielson follows:]

PREPARED STATEMENT OF DIANNE R. NIELSON, EXECUTIVE DIRECTOR UTAH

DEPARTMENT OF ENVIRONMENTAL QUALITY

Mr. Chairman, Members of the Subcommittee, thank you for the opportunity to 

appear before you today to discuss implementation of the Clean Air Act. My name 

is Dianne Nielson, I serve as Governor Leavitt’s Executive Director for Environmental Quality, and I am appearing today on behalf of the State of Utah. 

In Utah and throughout the West, visibility and air quality represent essential 

components of Western vistas, quality of life, and spirit. We value these resources 

and work to protect them through state programs, in partnership with state, tribal, 

and federal neighbors, and through organizations such as the Western Governors’

Association 1 and the Western Regional Air Partnership (WRAP) 2, which Governor 

Leavitt co-chairs with Governor Chino of the Pueblo of Acoma. We have learned that 

we can best accomplish our air quality and visibility objectives if Clean Air laws, 

regulations, and program implementation foster innovative, flexible approaches to 

attainment and maintenance of air quality goals and standards. Through the 

WRAP, states and tribes have been able to improve technical program components, 

such as inventories, modeling and fire emissions, and work to implement initiatives 

such as the SO2 Annex, pollution prevention and renewable energy strategies, and 

a consensus-based recommendation for EPA’s Sulfur In Gasoline Rule. The environmental principles of Enlibra 3 are being used to develop partnerships and solve air 

quality and regional haze as well as other environmental problems. 

The work of the WRAP should serve as the model for consensus-based air quality 

initiatives and a commitment to workable regional air quality solutions. The Clean 

Air Act is based on the premise that the national government sets air quality standards, and states develop plans to meet those standards. Although state plans rely 

on some national programs (e.g., motor vehicle and fuel standards), states have the 

responsibility for developing and implementing most of the programs in these plans. 

Air quality regulations have traditionally relied on command and control regulations 

for achieving emissions reductions. While this approach has achieved significant environmental benefit, economic incentive approaches to regulation, such as market 

trading, have the potential to achieve greater emissions reductions while offering 

flexibility and cost savings. The Grand Canyon Visibility Transport Commission 4

and the WRAP have demonstrated the ability of states, tribes, industry, environmentalists, academia, local government, EPA, and federal land managers to work 

in partnership to develop comprehensive regional air quality programs that work 

and serve as a model for future environmental management. 

In April 1999, EPA adopted the Regional Haze Rule, including an option for nine 

Western states to implement the recommendations of the Grand Canyon Visibility 

Transport Commission, through Section 309. In September 2000, the WRAP submitted an Annex to the report of the Commission detailing a set of sulfur dioxide 

(SO2) emission reduction milestones and a backstop emissions trading program. On 

May 6, 2002, EPA proposed a revision to the Regional Haze Rule to incorporate this 

sulfur dioxide program for the West. States that choose to implement a 309 program 

under the Annex must submit State Implementation Plans by December 31, 2003. 

The work of WRAP remains on schedule to enable us to accomplish that goal. The 

success of this process is in no small measure related to EPA’s work with states and 

tribes to develop and implement WRAP initiatives and Congressional funding for 

the WRAP’s work. We appreciate the commitment to the partnership. 

13

5 American Corn Growers Association v. EPA 

On a related note, the recent decision by the U.S. Court of Appeals for the District 

of Columbia Circuit 5 regarding the Regional Haze Rule, while rejecting EPA’s 

‘‘group BART’’ or Best Available Retrofit Technology application, did reaffirm the 

state’s role in implementing the program. The market-based Section 309 program 

remains a viable option, perhaps now with even more regulatory certainty than a 

Section 308 program. 

Congressional multi-pollutant proposals and President Bush’s Clear Skies Initiative to reduce multiple pollutants from electric utilities provide additional opportunity for more flexible, market-based reductions in air pollution. Any new national 

program to address emissions from electric utilities should preserve the Western 

consensus on sulfur dioxide reductions contained in the WRAP’s Annex. Furthermore, any reform of current air quality laws and regulations should preserve the 

ability of states to require additional emission reductions if they are needed to satisfy Clean Air Act requirements, require new sources to utilize the best control technology available at the time they are constructed, and ensure that new sources do 

not create visibility or other air quality related problems at nearby mandatory federal Class I areas. We appreciated the opportunity to participate in the joint HouseSenate committee workshop on multi-pollutant legislation, and we are prepared to 

continue to work with Congress and the Administration to accomplish those goals. 

Where regulatory and incentive-based air quality programs are not working well, 

one or more of the following characteristics are common. EPA has worked to understand and resolve state concerns with implementation of the Clean Air Act. However, past conflicting laws, regulations, and guidance, coupled with legal positions 

that fail to accommodate the conflicts, and the cumbersome command and control 

regulatory process make progress difficult. 

• The process of implementing an innovative, incentive-based program is so complex that it becomes a disincentive. For example, EPA’s Project XL was a great idea 

for piloting innovation. However, the time required for the lengthy, complex application process is a disincentive. Likewise, Economic Incentive Programs (EIPs) provide 

the opportunity for market-based strategies. However, the guidance document is 200 

pages long and contains so many protections that only very large, sophisticated 

state programs can afford to pursue EIPs. 

• Laws, regulations and policies are contradictory. Emissions offsets under the 

New Source Review (NSR) program offer a timely example. Section 173 of the 1990 

Clean Air Act (CAA) states that actual emissions are required for offsets. Yet, 40 

CFR 51 provides for the use of allowable emissions in limited circumstances. NSR 

offset and emissions banking programs, such as Utah’s 10-year old program, have 

been successful in providing real environmental results and economic flexibility. 

While EPA has not produced new guidance or rulemaking to address the apparent 

contradictions, the strict interpretation of the CAA by EPA’s Office of General Counsel leaves established offset programs in disarray. 

Integrated planning requires coordinated or flexible deadlines for various regulatory decisions. The ability to address regional haze along with PM2.5 and ozone, 

pollutants that have the same sources and similar technical analyses, makes sense. 

Conformity of transportation and air quality plans is also appropriate. However, 

conformity regulations allow only 12-18 months to switch to new mobile emissions 

models. Where the models represent significant change or increased emissions factors, as they normally do, major revisions in transportation and air quality plans 

are also required. In those cases 12-18 months is not enough time. Flexibility in integrated planning and transportation conformity deadlines would facilitate program 

goals. 

• Federal regulatory approvals take too long. The process of development and approval of Maintenance Plans and Attainment Redesignations is too complex and 

lengthy. A non-attainment area can apply for redesignation with three years of compliant monitoring data. However, the process of application and administrative review and approval takes years, with little or no environmental benefit or added 

value. Moreover, in the interim, states are subject to costly, analytical and legal requirements designed for areas that have not attained national air quality standards. 

The CAA should provide for automatic redesignation by operation of law if an area 

has three years of compliant air quality data and leaves State Implementation Plan 

controls in place. 

In conclusion, I appreciated the Subcommittee’s interest in implementation of the 

Clean Air Act, and would be willing to answer questions and provide additional information.

14

Mr. SHIMKUS. I thank you for your testimony and your punctuality on the clock, and now would like to recognize Mr. Chris 

Jones, who is the Director of the Ohio Environmental Protection 

Agency. 

My colleagues from Ohio would like to welcome you, as I do, and 

you have 7 minutes. Your full statement is in the record. 

STATEMENT OF CHRISTOPHER JONES 

Mr. JONES. Thank you, Mr. Chairman, and it is good to see good 

Ohio representation here on the committee. 

I appreciate the opportunity to reflect upon my experience as a 

regulator implementing the Clean Air Act, and I would like to 

begin with a simple but often overlooked observation. That is, the 

Clean Air Act has successfully produced cleaner air across America, 

much cleaner air. Perhaps nowhere is this more evident than in 

the State of Ohio. 

We are reminded that Time magazine once declared Steubenville, 

Ohio, the city with the dirtiest air in the Nation, little wonder since 

in 1975 alone Steubenville had 32 air pollution alerts. Ohio was the 

first State to use emergency powers granted under the Clean Air 

Act to temporarily stop production at manufacturing facilities in 

order to alleviate a particularly severe air pollution episode in 

Steubenville. 

Given this history, I am continually amazed and dismayed by the 

public perception that the condition of the environment has gotten 

worse over the past 10, 20, or 30 years. That is far from the truth 

because of the strong Federal laws, including the Clean Air Act, 

and because of competent State administration of those laws. 

With regard to air quality, for example, Ohio’s trend analysis 

shows over the past 20 years that carbon monoxide levels have reduced more than 61 percent, sulfur dioxide levels reduced an average of 52 percent, nitrogen oxide levels are down 15 percent, and 

ozone levels in Ohio have been reduced by an average of 13 percent. 

In addition, lead levels have decreased by more than 95 percent 

from 1979 to 1998. From 1972 to 1987, the total particulate matter 

levels dropped by 45 percent. And PM10 decreased by 22 percent 

from 1989 to 2000. These successes are clear evidence that much 

of the Clean Air Act works and works well, and I would like to 

mention a few particular elements. 

The acid rain program—by all accounts, Congress’ approach toward reducing sulfur dioxide and nitrogen oxides has been a success story. The reductions were achieved on schedule. There is 

widespread compliance with the standards. The cost of compliance 

is lower than expected, and the program operates well with a relatively small staff. 

State requirements for the 1-hour ozone standard—another area 

in which the 1990 amendments took an innovative approach to recognizing regional differences was the attainment requirements for 

the 1-hour ozone standard. Congress created various categories 

ranging from marginal to extreme, depending on the level of ozone 

pollution. 

The areas with higher levels of ozone had additional time to 

come into compliance, recognizing the complexity of the situation. 

15

With additional time came more stringent requirements, which 

were both appropriate and necessary to achieve eventual attainment. In the case of Ohio, we started with seven non-attainment 

areas for ozone, four moderate and three marginal. 

In each case, we were able to meet the 1-hour ozone standard by 

the prescribed date, except for Cincinnati where we were granted 

two 1-year extensions that are allowed under the Act. Today, all of 

Ohio’s counties measure attainment with the 1-hour ozone standard, again pointing to the overall improvement in air quality that 

resulted from the Clean Air Act. 

It is worth noting, however, that not all areas of the Nation have 

complied with the 1-hour standard. As U.S. EPA works to develop 

its implementation plan for the new 8-hour standard, the issue of 

a level playing field arises between areas that have yet to meet the 

old, less stringent standard, and those that have complied and now 

face additional controls. 

Since the early 1970’s, there have been large reductions in emissions from automobiles. This continuing improvement has been the 

result of more efficient engines, emission control technologies, and 

cleaner burning fuel. And, of course, there have been some unintended consequences, such as the MTBE contamination of groundwater and localized price spikes. 

But overall the provisions of the Clean Air Act have combined to 

keep emissions from automotive sources in check, despite a significant increase in vehicle miles traveled. While these components of 

the Clean Air Act have resulted in demonstrable benefit, there are 

other areas proving to be problematic in their implementation. Unfortunately, the result is the provisions of the Act were well conceived in concept, are failing to produce the environmental gains 

that were promised. 

With respect to the Title V program, the Title V permit was intended to provide one document that identifies all of the air regulations a facility must meet. Clearly, this is a sensible approach that 

can ease compliance monitoring for regulators and for the regulated community. However, U.S. EPA has expanded the required 

content of the Title V permit to the point that it is excessively 

lengthy, cumbersome, and confusing, precisely the difficulties I believe Congress sought to avoid in mandating a single permit. 

One source of the problem is that Federal regulators are intent 

on assuring that all portions of the Title V permit are federally enforceable. While I understand the need for Federal enforceability of 

key provisions, this virtual obsession with duplicative oversight 

suggests a lack of confidence in the States that undermines our 

partnership relationship. At the same time, it burdens the States 

with excessively onerous permit issuance demands. 

For example, Ohio EPA recently issued a draft permit for a refinery that’s over 600 pages long. Another permit in development, at 

last count, was 820 pages long. In addition, after initially instructing States to omit insignificant sources from Title V permits, U.S. 

EPA reversed course and is forcing States to focus resources on insignificant sources. 

Ohio facilities currently operate approximately 11,000 larger 

emissions units at 760 Title V facilities. An additional 22,000 insignificant sources are exempt by State rule from the Federal side of 

16

the permit, although they are subject to State oversight. U.S. EPA 

recently notified us that our rules are deficient and must be modified, so that these 22,000 additional sources may undergo additional review and scrutiny by the Federal Government. 

I would submit to you that that defies common sense. These 

sources are called insignificant for a reason. Yet we are charged 

with increasing the number of sources covered by the Federal side 

of the Title V permits by 200 percent. With virtually every State 

behind schedule for issuing Title V permits, doesn’t it make more 

sense to move forward and complete the permitting process for the 

significant sources rather than slowing down the entire process by 

bringing in large numbers of sources that are, by definition, insignificant and are already regulated by States. 

With respect to the MACT standards, Congress set a very aggressive goal for U.S. EPA to issue all of the rules for air toxics within 

10 years. We met the early deadlines, and U.S. EPA should be commended. However, we have fallen behind. It doesn’t make sense to 

have 50 States now writing MACT standards for a number of 

sources that didn’t meet the level, and we ought to look at that. 

Finally, with respect to redesignation, I would like to echo Ms. 

Nielson’s comments. We have two counties in Ohio that haven’t 

had a violation of the sulfur dioxide standard in 20 years, and we 

can’t get them redesignated because two companies in—one company in each of those counties doesn’t meet the standard. It doesn’t 

make sense that we can’t redesignate those counties. 

The Clean Air Act is complicated. It is multifaceted. Congress 

can be proud of the extensive air quality benefits it has produced. 

As States, we share your interest and the interest of U.S. EPA in 

making it work. I appreciate the opportunity to testify. 

[The prepared statement of Christopher Jones follows:]

PREPARED STATEMENT OF CHRISTOPHER JONES, DIRECTOR, OHIO ENVIRONMENTAL

PROTECTION AGENCY

Mr. Chairman, members of the subcommittee, thank you for this opportunity to 

reflect upon my experience as a regulator with Clean Air Act implementation. I 

would like to begin with a simple but often overlooked observation: the Clean Air 

Act has successfully produced cleaner air across America. Much cleaner air. Perhaps 

nowhere is this more evident than in the State of Ohio. 

As the Ohio Environmental Protection Agency prepares to celebrate its 30th anniversary this October, we are reminded of our past. We are reminded that Time magazine declared Steubenville, Ohio, the city with the dirtiest air in the nation. Little 

wonder, since in 1975 alone, Steubenville had 32 air pollution alerts. These alerts 

were issued when air quality was so unhealthy that people at risk were advised to 

remain indoors. Ohio was the first state to use emergency powers granted under the 

Clean Air Act to temporarily stop production at manufacturing facilities in order to 

alleviate a particularly severe air pollution episode in Steubenville. 

Given this history, I am continually amazed—and dismayed—by the public perception that the condition of the environment has gotten worse over the past ten, 

twenty or thirty years. That is far from the truth, because of strong federal laws 

including the Clean Air Act, and because of competent state administration of those 

laws. 

With regard to air quality, for example, Ohio’s trend analysis shows over the past 

20 years:

• Carbon monoxide levels reduced more than 61 percent; 

• Sulfur dioxide levels reduced an average of 52 percent; 

• Nitrogen dioxide levels down 15 percent; 

• Ozone levels in Ohio have been reduced by an average of 13 percent. 

In addition:

• Lead levels decreased by more than 95 percent during the 1979-1998 period. 

17

• From 1972 to 1987, the total particulate matter levels dropped by 45 percent. • Particulates (PM10) decreased by 22 percent from 1989 to 2000. 

These successes are clear evidence that much of the Clean Air Act works and 

works well. I’d like to speak to particular elements of the Act that have been especially effective. 

Acid Rain Control Program—By all accounts, Congress’ approach toward reducing 

sulfur dioxide and nitrogen oxides has been a success story. The reductions were 

achieved on schedule, there is widespread compliance with the standards, the cost 

of compliance is lower than expected, and the program operates well with a relatively small staff. 

The market-based trading program was innovative in its approach to dealing with 

the regional nature of many air pollution problems. Its success therefore provides 

a model that can be used in the future for other circumstances where there are significant reductions to be achieved over a wide area. 

State Requirements for One-hour Ozone—Another area in which the 1990 Amendments to the Act took an innovative approach to recognizing regional differences 

was the attainment requirements for the one-hour ozone standard. Congress created 

various categories ranging from marginal to extreme, depending on the level of 

ozone pollution. The areas with higher levels of ozone had additional time to bring 

come into compliance, recognizing the complexity of the situation. With the additional time came more stringent requirements, which were both appropriate and 

necessary to achieve eventual attainment. 

In the case of Ohio, we started with seven nonattainment areas for ozone (four 

moderate, three marginal). In each case, we were able to meet the one-hour ozone 

standard by the prescribed date, except for Cincinnati where we were granted two 

one-year extensions that are allowed for under the Act. Today, all of Ohio’s counties 

measure attainment with the one-hour ozone standard, again pointing to the overall 

improvements in air quality that have resulted from the Clean Air Act. 

It is worth noting, however, that not all areas of the nation have complied with 

the one-hour standard. As U.S. EPA works to develop its implementation plan for 

the new eight-hour standard, the issue of a level playing field arises, between areas 

that have yet to meet the old, less stringent standard and those that have complied 

and now face additional controls. 

Reductions in Vehicle Emissions—Since the early 1970s, there have been large reductions in emissions from automobiles. This continuing improvement has been the 

result of more efficient engines, emission control technologies, and cleaner burning 

fuel. Of course, there have been some unintended consequences such as MTBE contamination of groundwater and localized price spikes in areas where specially formulated fuels are mandated. But overall, the provisions of the Clean Air Act have 

combined to keep emissions from automotive sources in check despite a significant 

increase in vehicle miles traveled. 

While these components of the Clean Air Act have resulted in demonstrable environmental benefit, others are proving to be problematic in their implementation. 

Unfortunately, the result is that provisions of the Act that were well-conceived in 

concept are failing to produce the environmental gains they promised. 

Title V Permit Program—The Title V permit was intended to provide one document that identifies all the regulations a facility must meet. Clearly, this is a sensible approach that can ease compliance monitoring for regulators and for the regulated community. However, U.S. EPA has expanded the required content of the Title 

V permit to the point that it is excessively lengthy, cumbersome, and confusing—

precisely the difficulties I believe Congress sought to avoid in mandating a single 

permit. 

One source of the problem is that federal regulators are intent on assuring that 

all portions of the Title V permit are federally enforceable. While I understand the 

need for federal enforceability of key provisions, this virtual obsession with duplicative oversight suggests a lack of confidence in the States that undermines our partnership relationship at the same time that it burdens the States with excessively 

onerous permit issuance demands. For example, Ohio EPA recently issued a draft 

permit for a refinery that is over 600 pages long. Another permit in development 

was 820 pages long at last count. 

In addition, after initially instructing States to omit insignificant sources from 

Title V permits, U.S. EPA reversed course and is forcing States to focus resources 

on insignificant sources. Ohio facilities currently operate approximately 11,000 larger emission units at 760 Title V facilities. An additional 22,000 insignificant sources 

are exempt by state rule from the federal side of the Title V permit, although they 

are subject to state oversight. U.S. EPA recently notified us that our rules are deficient and must be modified so that these 22,000 additional sources may undergo additional review and scrutiny by the federal government. 

18

I submit that this defies common sense. These sources are called ‘‘insignificant’’

for a reason. Yet we are charged with increasing the number of sources covered by 

Title V permits by 200%. With virtually every State behind schedule for issuing 

Title V permits, doesn’t it make more sense to move forward and complete the permitting process for the ‘‘significant’’ sources, rather than slowing down the entire 

process by bringing in large numbers of sources that are by definition ‘‘insignificant?’’

This is just one example of how U.S. EPA has changed course in the middle of 

the Title V process. This lack of continuity is frustrating to the States and is a 

major contributor to our being unable to meet the original timeframes for permit 

issuance. For example, in 1995 Ohio received a full approval of our Title V program, 

which means U.S. EPA found our program acceptable in its entirety. Last November, 

some six years later, we were told in a letter from U.S. EPA that we must change 

our basic Title V program in seven different ways or risk losing the program. 

In other words, in 1995 U.S. EPA told us we have a completely acceptable program. Now, despite there being no change in the Clean Air Act, we are told that 

the same program is deficient. Some of the issues raised in the letter had never before been identified by U.S. EPA as a concern. Others were specifically addressed 

as a part of the delegation process. Instead of allowing us to use our resources to 

issue Title V permits under the program they themselves approved, U.S. EPA is 

forcing us to keep tinkering with the program itself. 

The Inspector General’s Office of U.S. EPA has reviewed the workings of the Title 

V program and has identified several areas for improvement, including simplified 

terms and conditions. As a first step, these recommendations should be implemented. 

Second, the fee structure and funding for the Title V permit program should be 

reviewed and revised. Although the current $25 per ton adjusted to the Consumers 

Price Index was sufficient at the beginning of the program, it no longer produces 

sufficient revenue to support the program. This is in part due to the increasing responsibilities associated with these permits and also to the fact that states like Ohio 

are requiring additional controls, which reduce emissions and improve air quality 

but lower our fee income. 

MACT Standards—In the Clean Air Act Amendments, Congress set a very aggressive goal for U.S. EPA to issue all the rules for air toxics within ten years. U.S. 

EPA was able to meet earlier MACT issuance deadlines and should be commended 

for those actions. However, they have fallen behind on the issuance of the ‘‘10 year’’

MACT standards. Under 112(j) of the Clean Air Act, if U.S. EPA fails to issue the 

MACT standards, then states will have the responsibility to issue them on a ‘‘caseby-case’’ basis. This will obviously lead to an inconsistent program with unavoidable 

inequities for the regulated community, as well as another drain on State resources 

without financial compensation. More importantly, it subverts the intent of a having 

a national standard, and thereby makes it less likely that the full potential of air 

quality improvements envisioned by Congress will be achieved. 

Requirements for Redesignation—The attainment or nonattainment status of an 

area should reflect actual air quality. Ohio has not experienced a violation of the 

ambient air quality standards for sulfur dioxide for over twenty years, yet two counties in Ohio (Lucas and Cuyahoga) remain designated nonattainment. U.S. EPA procedural rules make it very difficult to redesignate in both these cases. In both counties, a single company in does not comply, so U.S. EPA will not redesignate. (One 

of those companies is litigating its compliance status.) The rules governing attainment designation should be eased to be better able to reflect actual air quality. 

The Clean Air Act is a complicated, multi-faceted piece of legislation. Congress 

can be proud of the extensive air quality benefits it has produced. The States share 

your interest—and the interest of U.S. EPA—in continued progress. Our suggestions 

for administrative improvements are offered in the spirit of enabling the Clean Air 

Act to achieve its full potential. 

Thank you. Mr. Chairman.

19

U.S. ENVIRONMENTAL PROTECTION AGENCY

REGION 5—AIR AND RADIATION DIVISION

November 21, 2001

Correspondence

(AR-18J)

ROBERT F. HODANBOSI, Chief 

Division of Air Pollution Control 

Ohio Environmental Protection Agency 

122 South Front Street 

P. O. Box 1049

Columbus, Ohio 43266-1049

DEAR MR. HODANBOSI: This letter is to inform you of the action required by the 

Ohio Environmental Protection Agency (OEPA) to avoid an April 1, 2002, United 

States Environmental Protection Agency (USEPA) publication of a notice of program 

deficiency for the Ohio Title V operating permit program. As you know, we published a Notice of Comment Period on operating permit program deficiencies in the 

Federal Register on December 11, 2000. Pursuant to the settlement agreement discussed in that notice, USEPA will publish notices of program deficiencies for individual operating permit programs, based on the issues raised that we agree are deficiencies. In that notice, USEPA committed to publishing these notice of program deficiencies for fully approved programs, such as Ohio’s program, by April 1, 2002. 

USEPA received comments concerning the Ohio’s Title V program on or before the 

March 12, 2001, deadline. We have reviewed these comments and, based on our preliminary review, have identified the issues on which Ohio must have taken significant action to avoid Title V notice of program deficiency on April 1, 2002. These 

issues include; 

1. The language of Ohio Administrative Code (OAC) 3745-77-07 (A)(3)(c)(ii) and 

(iii) limits the reporting of deviations to those which can be detected by the compliance method required by the permit, in violation of the Credible Evidence rule. 

2. The Title V permits exempt the reporting of the malfunctions under OAC 3745-

15-06(B) from the six-month monitoring reports required by 40 C.F.R. 70.6(a)(3)(iii). 

3. The six-month monitoring reports do not require permitees to submit reports 

of all required monitoring as required by 40 C.F.R. 70.6(a)(3)(iii). 

4. All of initial Title V permits have not been issued. 

5. Title V permits must contain monitoring, recordkeeping,and reporting requirements sufficient to assure compliance. 

6. Applicability of 112(r) and Title IV in the Title V permit. 

7. Identification of origin and authority of each permit term and condition in the 

Title V permit. 

8. The statements of basis must conform to the guidelines we will provide to you 

under separate cover. We enclosed a more detailed discussion of these issues with 

this letter. 

We have been working with your staff concerning these comments and are pleased 

with Ohio’s intent to correct many of these potential deficiencies within a reasonable 

timeframe. We would like for you to provide us with confirmation of the issues that 

you are planning to resolve,along with timeframes for these resolutions, so that we 

will be better prepared to work with you to achieve your goal. Please be aware 

USEPA reserves the right established in the Act and 40 C.F.R. 70.10 to publish a 

notice of program deficiency for any or all of these deficiencies at a later date if Ohio 

fails to address these deficiencies adequately and expeditiously. USEPA also reserves the right to publish subsequent notice of program deficiencies concerning 

other deficiencies in the Ohio Title V program that were not identified during the 

comment period ending March 12, 2001. 

We look forward to continued cooperation between our offices on Title V program 

issues. If you have any questions, please contact Genevieve Damico or Kaushal 

Gupta, of my staff,at (312) 353-4761 and (312) 886-6803 respectively. 

Sincerely yours, 

BHARAT MATHUR, DIRECTOR

Air and Radiation Division 

Enclosure 

20

Enclosure 

ISSUES CONCERNING DEFICIENCIES IN THE OHIO TITLE V OPERATING PERMITS PROGRAM

The language of Ohio Administrative Code (OAC) 3745-77-07(A)(3)(c)(ii) and (iii) 

limits the reporting of deviations to those which can be detected by the compliance 

method required by the permit. 

OAC 3745-77-07(A)(3)(c)(ii) and (iii) states: 

(ii) That each report submitted under paragraph (A)(3)(c)(i) of this rule shall 

clearly identify any deviations from permit requirements since the previous report that have been detected by the compliance method required under the permit 

and any deviations from the monitoring, recordkeeping, and reporting requirements under the permit; 

(iii) That each permit shall require prompt reporting of deviations from federally enforceable permit requirements that have been detected by the compliance 

method required under the permit, including deviations attributable to upset 

conditions as defined in the permit, the probable cause of such deviations, and 

any corrective actions or preventive measures taken. Verbal reports under this 

paragraph shall be submitted to the director as soon as practicable, consistent 

with diligent verification and certification, but in no case later than three business days after discovery of the deviation, with a follow up written report within thirty days after such discovery. 

The underlined portions of the language demonstrates that Ohio’s rules do not require permittees to consider all credible evidence when the permittee reports deviations from the permit requirements. Ohio must remove this language from OAC 

3745-77-07(A)(3)(c)(ii) and (iii). 

The Title V permits exempt the reporting of the malfunctions under OAC 

3745-15-06(B) from the six-month monitoring reports required by 40 C.F.R. 

70.6(a)(3)(iii). 

Ohio’s permits provide that quarterly reports satisfy the requirements pertaining 

to prompt reporting of all deviations (Part I A.1.c.ii). For this reason, the quarterly 

reports must meet the criteria for deviation reports. Both 40 C.F.R. 70.6(a)(3)(iii)(B) 

and OAC 3745-77-07(A)(3)(c)(iii) require permittees to report promptly deviations 

from permit requirements. Yet, Part I.A.1.c.ii of the Ohio Title V permits specifically 

exclude from the quarterly reporting requirement deviations resulting from malfunctions reported in accordance with OAC rule 3745-15-06, a part of the Ohio State Implementation Plan. The reporting aspects of the Ohio SIP, OAC 3745-15-06, do not 

alter the Title V requirement to report all deviations, including malfunctions, in the 

Title V quarterly report. Ohio must revise Part I A.1.c.ii of the Title V permits to 

no longer exclude the reporting of deviations resulting from malfunctions in the 

quarterly deviation reports. OEPA may choose to require that the permittee simply 

reference the malfunction report required by OAC 3745-15-06 by requiring a similar 

report to Section D of USEPA’s Part 71 six-month report form. 

The six-month monitoring reports do not require permitees to submit reports of any required monitoring as required by 40 C.F.R. 70.6(a)(3)(iii). 

Ohio’s permits provide that quarterly reports satisfy the six month reporting requirements (Part I A.1.c.ii). For this reason, the quarterly reports must meet the 

same criteria as the six-month reports. Both 40 C.F.R. 70.6(a)(3)(iii) and OAC 3745-

77-07(A)(3)(c)(i) require that the permittee submit a report of the results of all required monitoring. Ohio’s quarterly reports only include a compilation of the deviations being reported by the permittee. This does not satisfy the requirement to submit a report of any required monitoring. Ohio may choose to resolve this issue by 

requiring permittees to submit reports similar to those required by Section C of 

USEPA’s Part 71 six-month report form. 

Furthermore, these same rules require that all applicable reporting requirements 

must include a semiannual (or more frequent) reporting requirement. The rule allows no exceptions. Therefore, all federally enforceable reporting requirements in a 

Title V permit must require at least semiannual submission of the reports. Some 

of Ohio’s Title V permits currently require only annual submission of certain reports; Ohio must revise these permits to submit reports at least semiannually. 

All of the Title V permits have not been issued. 

Section 503(c) of the Clean Air Act clearly requires states to issue all of the original Title V permits within 3 years of program approval. We do understand that 

there are many reasons why Ohio was unable to complete the issuance of these permits within the required 3-year timeframe. However, because the success of this 

program is dependant on the issuance of the Title V permits, Ohio must develop 

by March 2002 a schedule for permit issuance, including milestones, to ensure 

issuance of all outstanding initial permits no later than December 1, 2003. Pamela 

21

Blakley provided an example of a permit issuance schedule in an e-mail on November 7, 2001. 

Title V permits must contain monitoring, recordkeeping, and reporting 

requirements sufficient to assure compliance. 

A. Title V permits contain monitoring and recordkeeping conditions on the stateonly enforceable side when those conditions should be made federally enforceable. 

Some Title V permits incorrectly make monitoring and recordkeeping provisions enforceable only by the state when those provisions are federally enforceable. Because a federal rule, 40 C.F.R. 70.6(a)(3)(i)(B),requires the permit to 

contain all monitoring and recordkeeping necessary to assure compliance, such 

monitoring and recordkeeping must be on the federally enforceable side of the 

permit. 

One example of this problem comes from the draft Title V permit for Cleveland Electric Illuminating Avon Lake Power Plant (facility ID 0247030013, 

issued January 30, 2000). The permit requires the source to operate and maintain a temperature monitor in order to measure the temperature of gases entering an electrostatic precipitator. Because the temperature of these inlet gases 

will indicate whether the source is complying with federally enforceable emission limits in the permit, the requirement to operate and maintain the temperature monitor also is federally enforceable. However, the requirement as written 

in the draft permit is currently enforceable only by the state. 

In another example, the same permit contains a state-only requirement for 

the source to maintain a logbook for a federally required continuous monitoring 

system. Such a requirement should be federally enforceable, even though there 

may already be federally enforceable requirements sufficient to ensure proper 

operation of the monitoring system. Requirements that will ensure the proper 

operation of federally required monitoring systems are part of the underlying 

requirements, and therefore are federally enforceable. 

B. Title V permits must contain monitoring, recordkeeping, and reporting requirements sufficient to assure compliance with all applicable limits. The permitting authority must write these requirements in sufficient detail to allow no room for interpretation or ambiguity in meaning. 

According to 40 C.F.R. 70.6(c)(1), Title V permits must contain monitoring, 

recordkeeping, and reporting requirements sufficient to assure compliance with 

the terms and conditions of the permit. These requirements must involve the 

best compliance methods practicable, taking into consideration the source’s compliance history, likelihood of violating the permit,and feasibility of the methods. 

Ohio’s Title V permits currently rely too heavily on AP-42 emission factors. 

These emission factors were not meant to be a basis of compliance with part 

70. They are a last resort in compliance assurance (and are not a viable option 

at all when their reliability ratings are low). In most instances in which AP42 emission factors are used, more reliable compliance methods are available. 

The permitting authority need not impose onerous compliance assurance requirements, but it cannot allow sources to use emission factors as an escape 

from monitoring, recordkeeping, and reporting activities. 

In addition to implementing appropriate compliance methods, the monitoring, 

recordkeeping, and reporting requirements must be written in sufficient detail 

to allow no room for interpretation or ambiguity in meaning. Requirements that 

are imprecise or unclear make compliance assurance impossible. 

For example, some Title V permits require monitoring devices to be ‘‘installed, 

calibrated, operated, and maintained in accordance with the manufacturer’s 

specifications,’’ without explaining in detail the steps in these processes or the 

manufacturer’s specifications. These steps must be explained in detail in order 

for such a requirement to have any meaning. The description of plant activities 

need not be exhaustive, but they must be specified in the permit if they would 

significantly affect the source’s ability to comply. Leaving the source to follow 

‘‘manufacturer’s specifications’’ does not help direct the source toward compliance. 

In some instances, manufacturer’s specifications may not even exist. Many 

Title V permits contain ambiguous phrases, such as ‘‘if necessary.’’ For example: 

‘‘If necessary, the permittee shall maintain monthly records...’’ The phrase ‘‘if 

necessary’’ should be removed altogether; the permit should specify exactly 

what is necessary. In this example, the permit should either precisely explain 

the situation that would necessitate monthly records, or simply require monthly 

records at all times. Ambiguous language hampers the source in its duty to 

independently assure compliance, and leaves legal requirements open to interpretation. 

22

C. Title V permits do not require the submission of an emission control action 

plan until 60 days after final issuance of the permit, in violation of OAC 3745-25. 

Although emission control action plans may no longer be critical due to improvements in air quality, Ohio should resolve the deficiency by changing the permits to 

comply with the rule or by changing the rule itself. 

Applicability of 112(r) and Title IV in the Title V permit. 

We understand from a October 16, 2001, e-mail from Tom Rigo to staff, that 

OEPA is immediately making changes to the Title V permit to state applicability 

to 112(r) and Title IV. We are appreciative of this effort and look forward to the 

timely incorporation of this language in the Title V permits. 

Identification of origin and authority of each permit term and condition 

in the Title V permit. 

40 C.F.R. 70.6 (a)(1)(i) requires that the Title V permit state the origin of and authority for each term and condition in the permit. Ohio’s permits do list the origin 

and authority on an emission unit basis. It is clear that part 70 and the OAC envision that the origin and authority would be listed on a term and condition basis. 

For this reason we would like confirmation that OEPA is planning on revising the 

Title V permit format to include the origin of and authority for each term and condition. 

The statements of basis must conform to the guidelines we will provide 

to you under separate cover. 

40 C.F.R. 70.7(a)(5) requires that each draft permit must be accompanied by a 

statement that sets forth the legal and factual basis for the draft permit conditions. 

Although we recognize that there is little information available to judge the adequacy of a statement of basis besides this requirement, we concur with the comments made by the commentors alleging that Ohio’s statements of basis do not meet 

the intent of part 70. We are, therefore, committing to provide OEPA with some 

guidelines that will be useful in meeting the intent of part 70. OEPA must follow 

these guidelines in preparing all future statements of basis to resolve this issue. 

Office of Inspector General—Evaluation Report 

AIR 

EPA AND STATE PROGRESS IN ISSUING TITLE V PERMITS

Report No. 2002-P-00008, March 29, 2002

Executive Summary 

To reduce violations of air pollution laws and improve the enforcement of those 

laws, Title V of the 1990 Clean Air Act (Act) requires that all major stationary 

sources of air pollutants obtain a permit to operate. Translating and consolidating 

the applicable air pollution requirements for major stationary sources into site-specific, legally enforceable permit limits is a complex, time-consuming, and resource 

intensive process. Nonetheless, in passing Title V, Congress provided the statutory 

authority, fee collection authority, and expectation that all Title V permits would 

be issued by November 1997, seven years after it passed the Act. However, over a 

decade later, only 70 percent of the sources have been issued Title V permits. 

PURPOSE

The Office of Inspector General (OIG) initiated this evaluation at the request of 

U.S. Environmental Protection Agency (EPA) Region 5 management because they 

were concerned about the progress state and local air pollution control agencies 

(state and local agencies) were making in issuing Title V permits under the Act. In 

planning the evaluation, we expanded the scope to include other EPA regions and 

states because problems in issuing Title V permits were not isolated to Region 5. 

The objectives of our evaluation were to identify:

• Factors delaying the issuance of Title V permits by selected state and local agencies, and 

• Practices contributing to more timely issuance of permits by selected state and 

local agencies. 

23

RESULTS IN BRIEF

Lack of State Resources, Complex EPA Regulations, and Conflicting Priorities Contributed to Permit Delays 

Nationwide, as of December 31, 2001, state and local agencies had issued 70 percent (13,036 of 18,709) of the required Title V permits. Of 112 state and local agencies approved to administer the Title V program, only 4 state and 17 local agencies 

had issued all of their Title V permits. In the six states we reviewed, key factors 

delaying the issuance of Title V permits included insufficient state resources, complex EPA regulations, and conflicting state priorities. 

• Insufficient resources. Of the six state agencies reviewed, three had problems 

with resources or staffing. For example, the Massachusetts Department of Environmental Protection collected $1.3 million in Title V fees in 2000, but program costs 

were $1.9 million for the year. 

• Complex regulations and limited guidance. In each of the six state agencies reviewed, one or more permit writers reported having difficulty understanding and resolving questions on EPA’s complex air toxics regulations and reported having difficulty using EPA’s limited guidance to establish adequate site-specific monitoring 

requirements. 

• Conflicting priorities. In addition to Title V operating permits, each of the state 

agencies also issue construction permits to new sources and to sources that are 

making significant changes to their operations permits that they must act on within 

specified time limits. Two agencies took deliberate action to ensure that staff were 

not forced to work on construction permits rather than Title V operating permits. 

As a result, many sources do not have the operating permits that were designed 

to reduce source violations, improve regulatory agency enforcement abilities, establish site-specific monitoring requirements, increase source accountability, and ensure adequate public involvement in the permitting process. 

EPA Oversight And Technical Assistance Had Limited Impact 

EPA did not provide adequate oversight and technical assistance to state and local 

Title V programs, and did not use the sanctions provided in the Act to foster more 

timely issuance of Title V permits. 

• Fee reviews of many state and local agencies not performed. From January 1998 

to December 2001, EPA had only evaluated 28 of 112 state and local agencies regarding how they were assessing and managing Title V fees. These reviews are 

needed to identify potential resource issues at state and local agencies. 

• Revisions to Title V regulations not completed. While EPA issued regulations in 

1992, due to concerns about selected provisions, EPA has been working to revise 

them since 1994. State officials indicated that dealing with repeated draft and proposed revisions to Title V regulations introduced an element of uncertainty that also 

contributed to delays in issuing Title V permits. 

• Insufficient data collected. State and local agencies were not required to consistently provide the information EPA identified as being needed to adequately oversee 

the Title V program. EPA collected information from all state and local agencies on 

the number of permits issued, but did not maintain an adequate database on specific delays in issuing individual permits. 

• Act’s provisions to take action not used. Although most state and local programs 

did not issue their permits within three years of EPA approval, EPA has not used 

the Act’s provisions for issuing notices of deficiency, sanctions, and program withdrawal when state and local agencies have missed the Act’s deadline for issuing initial Title V permits. 

As a result, EPA oversight had little impact on the delays experienced by state 

and local agencies. The perspective of senior EPA officials is that they face a dilemma in trying to take more stringent actions, such as sanctions against state and 

local agencies, while adhering to agency policies to work with state and local agencies as partners in environmental protection to the maximum extent possible. Also, 

they believe that the Title V program has limited incentives for both states and industries to proactively address the existing permit backlog. 

Management Support, Partnerships, and Site Visits Contributed to More Timely 

Issuance of Title V Permits 

In the six states we reviewed, three practices that contributed to the progress that 

agencies made in issuing Title V operating permits were:

• State agency management support for the Title V program. 

• State agency and industry partnering. 

• Permit writer site visits to facilities. 

24

Each of these practices contributed to the writing and issuance of Title V operating permits on a more timely basis. Employing one or more of these practices, 

along with sufficient resources, contributed to Florida and Pennsylvania completing 

most of their permits before other states. However, EPA has not taken a leadership 

role in collecting and disseminating information on practices that show promise of 

helping agencies issue permits on a more timely basis. 

RECOMMENDATIONS

We recommend that the Assistant Administrator for Air and Radiation:

• Require EPA regions to conduct fee protocol reviews. 

• Revive agency efforts to make air toxics standards easier to incorporate into Title 

V permits. 

• Complete the revisions to the Title V regulations. 

• Identify and collect information from regions, states, and local agencies to adequately oversee the Title V program. 

• Develop and execute a national plan for addressing implementation deficiencies 

in Title V programs, including specifying the actions EPA will take to address 

missed milestone dates for issuing the initial permits. 

• Develop a plan for identifying, collecting, and disseminating promising practices 

on the implementation of Title V programs. 

Detailed recommendations are contained at the end of chapters 3 and 4. 

AGENCY ACTIONS

In his March 26, 2002 response to the draft report, the Assistant Administrator 

stated that while state and local agencies have made good progress in issuing initial 

Title V permits, there is still more work to do. He stated that many of the sources 

remaining to be permitted are the more complex facilities and that the problems 

identified in the report continue to be of concern. The Assistant Administrator 

agreed with the conclusion that more can be done to help this effort and will follow 

up, within 90 days of issuance of the final report, with an action plan based on the 

report’s findings and recommendations. 

The Assistant Administrator also provided comments to several recommendations, 

which are summarized at the end of chapter 3, and some suggested clarifications 

that were incorporated into the final report. 

A major stationary source is any non-mobile source of air pollution that meets one 

or more criteria as defined in the 1990 Clean Air Act. The criteria for major stationary source determinations is listed in appendix 1.

Mr. SHIMKUS. And we thank you. 

Next, we will hear from Mr. Brock Nicholson, Chief of Air Quality Planning for the North Carolina Department of Environment 

and Natural Resources. Thank you for joining us, sir, and you are 

recognized for 7 minutes. 

STATEMENT OF BROCK NICHOLSON 

Mr. NICHOLSON. Good afternoon, Mr. Chairman, and members of 

the subcommittee. I am Brock Nicholson. Today I will—I am going 

to talk about what I think is right with the current system and 

then discuss some of our concerns and suggestions for improvement. 

I do want to first start out by saying that Mr. Williams, to my 

left here, will talk about a number of items as a representative of 

STAPPA/ALAPCO. And as also a member of STAPPA/ALAPCO, we 

certainly endorse those comments that he will make. 

What is right with the current system? I think clearly the current Clean Air Act is a conceptually sound approach. We don’t 

think it is fundamentally broken. Under this system, the EPA sets 

the national goals for protecting public health and welfare. States 

have the primary responsibility for program development and implementation. 

25

This program is a reasonable compromise between the Federal 

Government setting straight national technology standards, I will 

say as the only approach, and each State operating independently 

of a national system, perhaps as it was prior to the 1970 amendments. 

Currently, the National Air Program complements State programs and areas where it makes sense to have nationwide standards—fuels, mobile sources, major stationary emission sources. 

I will summarize a little bit what I have below here and just say 

that this approach, an air quality management approach as opposed to a straight technology approach, carries with it, though, a 

burden of extra complexity and cumbersomeness in terms of approval, some of the things that you have just heard about, and I 

think because of that does cause us problems in the implementation. It is resource-intensive, and so forth. 

All in all, though, it is a good approach. If, however, we had a 

straight technology approach that all parties could buy into, that 

might be a reasonable alternative. But in practice, what has 

evolved as the preferred approach is this air quality management 

approach where we do modeling, we determine what is necessary 

to attain. But this approach needs to be supplemented with doses 

of prescribed technology, and what I mean by this is strong national measures. 

There are some concerns, however, and I will just touch on it a 

little bit in the interest of time, where the Act is perhaps too cumbersome, time-consuming, resource-intensive, and perhaps inflexible in terms of implementing it in an efficient and cost-effective 

way, and perhaps, I should say, expeditious manner. 

One of these that I will give as an example of maybe questionable technological requirements or technical requirements or technical soundness is that of designations of non-attainment areas. I 

think we must find a better way to handle designations. States 

need more flexibility in meeting designation and planning requirements. 

First, the non-attainment label is very much disliked by local officials, because of impacts on economic development and the tag 

that it gives to the area. 

Second, designations are often applied across large areas in ways 

that make little sense. A common mind-set is that non-attainment 

areas must be very large to catch all possible contributing sources 

and to deal with pollution transport. However, the authority to control sources need not apply only in non-attainment areas. A better 

approach might be the area of—concept of areas of violation, AOVs, 

and areas of influence, or AOIs. 

Under the approach, the AOI is the primary area of sources impacting the violating area, but controls are not limited to just this 

area. The AOV might then be sized in a manner that best balances 

the need to advise the public of the public health issue of standards 

violation and the impacts of designating an area. 

In addition, the transport of pollutants across States or regions 

could be better addressed by other means, including stringent national standards on sources contributing to the broad problem 

across the region or the country. However, I will say that EPA has 

generally discouraged the development of this AOV/AOI concept. 

26

Another key concern is the need for consistent national emissions 

control standards that achieve reductions based on state-of-art 

technologies. To be of most value to the States, the rule adoption 

process must be as short as possible, certainly shorter than we 

have been seeing. Emission source categories that are appropriate 

for national rules include: major stationary sources, light- and 

heavy-duty on-road vehicles, including diesel retrofits, off-road engines and equipment, both large and small, and MACT sources. 

States also need flexibility to go beyond Federal requirements or 

act sooner. An example is the North Carolina Clean Smokestacks 

Bill that you heard a reference to earlier, to address multiple pollutants from coal-fired powerplants. North Carolina believes it is 

vital to move ahead now with this initiative to protect public 

health, especially from fine particles and ozone. 

Given the uncertainty of EPA and Congressional initiatives, 

North Carolina and other States are taking similar actions providing leadership and impetus for action at the Federal level. The 

Clean Air Act should provide encouragement and credits for States 

that take such initiatives. States clearly need strong support from 

Federal emissions control standards in order to achieve significant 

progress in meeting air quality goals. 

EPA recently has provided the States with some significant 

measures in national rules for on-road, heavy-duty diesel truck engines. This rule, as well as the 2004 light-duty gasoline standard, 

or Tier 2 standard with low sulfur, will achieve reductions that individual States could not otherwise realize. And I might add if 

these reductions aren’t realized through stringent national rules, 

these are opportunities lost that the States can never make up in 

their strategies to deal with non-attainment. 

While North Carolina and some of our surrounding States will 

benefit greatly from our Clean Smokestacks Bill, we still need the 

benefits of these reductions across all States. 

Another example is the Southern Appalachian Mountains Initiative, which is recently or currently coming to conclusion. It made 

some significant policy recommendations regarding controls to reduce ozone, acid deposition, and haze in our region. The SAMI 

study concludes each SAMI State would receive the most benefit 

from reductions of emissions from within their own State boundaries. 

However, the air quality-related problems being encountered by 

SAMI’s Class I areas would not be resolved by only controlled emissions from within SAMI States; hence, again, the need for national 

programs. 

The eight SAMI States with the general support of other stakeholders have specifically recommended the State—and I quote, 

‘‘The SAMI States support and will promote strong national multipollutant legislation for electric utility plants to ensure significant 

sulfur dioxide and nitrogen oxide reductions both inside and outside the SAMI region.’’ The national multipollutant legislation 

should result in no less than the reductions for sulfur dioxide and 

nitrogen oxides represented by the administration’s Clear Skies 

Initiative. 

Reductions from other source categories should also be considered in national legislation, and such legislation should contain sufVerDate 0ct 09 2002 09:44 Oct 28, 2002 Jkt 010199 PO 00000 Frm 00030 Fmt 6633 Sfmt 6602 W:\DISC\80673 80673
27

ficient measures to protect Class I areas. Should national legislation fail to materialize, the States that participated in SAMI will 

work together to consider regulatory alternatives and to encourage 

non-SAMI States to participate. Leadership by States ahead of national legislation is encouraged. 

And, in summary, I will also mention that four Governors—

North Carolina, South Carolina, Georgia, and Tennessee—signed 

an agreement a year ago called the Southern Air Principles, and 

in this they charged the State environmental commissioners to 

come up with a multipollutant strategy for this region, innovative 

energy and innovative transportation initiatives. 

The recommendation specifically given our Governor, who hosted 

the recent summit, was to support and promote strong multipollutant legislation for electric utility plants to ensure significant reductions of sulfur dioxide and nitrogen oxides and mercury, both in 

and outside of the Southern Air Principles States. Such State initiatives, when allowed, encouraged, and given proper credit, can 

provide significant air quality benefit and set precedents for national action. 

So, in conclusion, the basic framework of the Clean Air Act is 

sound, even though one might want to consider we want to say on 

the air quality management approach, or the more technology approach, we need the technology approach in addition. However, we 

suggest the following improvements. 

States need more flexibility to implement, act quicker, or go beyond Federal requirements. Flexibility should not be used as an excuse to do less. States need strong national regulations to provide 

a foundation for the State plans and the local specific initiatives to 

take care of air quality at the local level, and national regulations 

must not be the lowest common denominator. 

Thank you for this opportunity to participate in this area. 

[The prepared statement of Brock Nicholson follows:]

PREPARED STATEMENT OF BROCK NICHOLSON, CHIEF OF AIR QUALITY PLANNING, 

NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES

Good afternoon, Mr. Chairman and members of the Subcommittee. I am Brock 

Nicholson, Chief of Air Quality Planning in North Carolina’s Department of Environment and Natural Resources. I am testifying today regarding the development 

and implementation of state air quality programs to meet requirements of the Clean 

Air Act. Today, I am going to talk about what I think is right with the current system, and then discuss some of our concerns and suggestions for improvements. 

What is Right with the Current System 

The current Clean Air Act is a conceptually sound approach. It is not fundamentally broken. Under this system, the EPA sets the national goals for protecting public health and welfare. States have the primary responsibility for program development and implementation. This approach is a reasonable compromise between the 

federal government setting straight national technology requirements and each 

state operating independently of a national system. Currently, the national air program complements state programs in areas where it makes sense to have nationwide standards—fuels, mobile sources, and major stationary emissions sources. 

The current system, sometimes called air quality management approach, demands 

a high level of local, state and federal resources to operate properly. However, it is 

generally a good way to ensure each state problem is dealt with adequately without 

excessive compliance costs. 

An alternative approach, in the extreme, would be a straight technology prescription by the EPA with a one-size-fits-all requirements for all sources categories. This 

approach would not rely on computer modeling to limit controls to only those 

sources shown to be critical for attaining the ambient standards. 

28

There are some days when would like the straight technology approach to avoid 

the lengthy and resource-intensive modeling demonstrations. In the midst of lengthy 

arguments over modeling assumptions with various stakeholders, we often think: 

‘‘Let’s just have everyone must put on controls without doing the modeling. If later, 

more controls are needed to meet the ambient standards, we will prescribe more.’’ Then, we are quickly jerked back to the reality of designing a strategy that will 

meet the ambient standards in the most cost-effective manner. This is the surgical 

‘‘air quality management’’ approach versus the ‘‘shotgun’’ technology approach. 

In practice, what has evolved as the preferred approach is the air quality management concept supplemented with doses of prescribed technology. This is a good balance for all stakeholders. 

Concerns and Suggestions Regarding the Current System 

The current system has aspects that are too cumbersome, time-consuming, resource-intensive and sometimes inflexible for the states to develop a program, or 

State Implementation Plan (SIP), in a manner that is best suited for that area. In 

other cases, we believe the requirements may not be technically sound. For example, 

the designations of non-attainment areas need to better set the stage for development of state air plans. 

We must find a better way to handle designations. States need more flexibility 

in meeting designation and planning requirements. First, the ‘‘non-attainment’’ label 

is very much disliked by local officials because of impacts on economic development. 

Second, designations are often applied across large areas in ways that make little 

sense. The mindset is that non-attainment areas must be very large to catch all possible contributing sources and to deal with pollution transport. Also, the authority 

to control sources need not apply only in non-attainment areas. A better approach 

might be the concept of Areas of Violation (AOV)/Areas of Influence (AOI). Under 

this approach, the AOI is the primary area of sources impacting the violating area, 

but controls are not limited to AOI. The AOV might then be sized in a manner that 

best balances the need to advise the public of a standard violation area and the impacts of designating an area. In addition, the transport of pollutants across states 

or regions could be addressed by other means, including stringent national standards on sources contributing to the problem. However, the EPA has discouraged the 

development of the AOV/AOI concept. 

Another key concern is the need for consistent national emissions control standards that achieve reductions based on state-of-the-art technologies. To be of most 

value to the states, the rule adoption process should be as short as possible. Emission source categories that are appropriate for national rules include:

• Major stationary sources • Light and heavy-duty on-road vehicles, including diesel retrofits • Off-road engines and equipment, both large and small • MACT sources. 

States also need flexibility to go beyond federal requirements or act sooner. An 

example is the North Carolina ‘‘Clean Smokestacks Bill’’ to address multiple pollutants from coal-fired power plants. North Carolina believes it is vital to move ahead 

now with this initiative to protect public health, especially from fine particles. Given 

the uncertainty of EPA and Congressional initiatives, North Carolina and other 

states are taking similar actions providing leadership and impetus for action at the 

federal level. The Clean Air Act should provide encouragement and credit for states 

that take such initiatives. States clearly need strong support from federal emissions 

control standards in order to achieve significant progress in meeting their air quality goals. EPA recently has provided the states with some significant measures in 

national rules for on-road, heavy-duty diesel engines. The reductions from this rule, 

as well as the 2004 light-duty gasoline with low-sulfur gasoline standard, will 

achieve reductions that individual states could not otherwise realize. While North 

Carolina and some of our surrounding states will benefit greatly from our Clean 

Smokestacks Bill, we still need the benefits of these reductions across all states. 

As another example the Southern Appalachian Mountains Initiative (SAMI) has 

recently made some significant policy recommendations regarding controls to reduce 

ozone, acid deposition and haze in our region. The SAMI study concludes: ‘‘Each 

SAMI state would receive the most benefit from reductions of emissions from within 

their own state boundaries. However, the air quality related problems being encountered by SAMI’s Class I areas would not be resolved by only controlling emission 

within the SAMI states.’’

The eight SAMI states, with the consensus of other stakeholders, have specifically 

recommended: ‘‘The SAMI states support and will promote strong national multipollutant legislation for electric utility plants to assure significant sulfur dioxide and 

nitrogen oxides reductions both in and outside the SAMI region. This national 

29

multi-pollutant legislation should result in no less than the reductions for sulfur dioxide and for nitrogen oxides represented by the Administration’s Clear Skies Initiative. Reductions from other source categories should also be considered in national 

legislation, and such legislation should contain sufficient measures to protect Class 

I areas. Should national legislation fail to materialize, the states that participated 

in SAMI will work together to consider regulatory alternatives and to encourage 

non-SAMI states to participate. Leadership by states ahead of national legislation 

is encouraged.’’

In addition to the SAMI effort, the Governors of North Carolina, Tennessee, Georgia and South Carolina agreed to a set of ‘‘Southern Air Principles,’’ which recommend multi-pollutant controls for coal-fired power plants and innovative energy 

and transportation programs that benefit air quality. These recommendations were 

released at the Governors’ Summit on Air Quality hosted by North Carolina Governor Mike Easley on May 10, 2002. The specific recommendation on utility plants 

is to: Support and promote strong multi-pollutant legislation for electric utility 

plants to assure significant reductions of sulfur dioxide, nitrogen oxides and mercury both in and outside of the Southern Air Principles states. Such state initiatives—when allowed, encouraged and given proper credit—can provide significant 

air quality benefit and set precedents for national action. 

Conclusions 

In summary, the basic framework of Clean Air Act is sound. However, we suggest 

the following improvements:

• States need more flexibility to implement, act quicker or go beyond federal requirements. However, this flexibility should not be used as an excuse to do less. 

• States need strong national regulations to provide a foundation for state plans. 

• National regulations must not be the ‘‘lowest-common denominator.’’

Thank you for this opportunity to participate in this hearing.

Mr. SHIMKUS. Thank you. 

Next, Mr. Art Williams, Director of the Jefferson County Air Pollution Control District, on behalf of STAPPA/ALAPCO. I yield 7 

minutes. 

STATEMENT OF ARTHUR L. WILLIAMS 

Mr. WILLIAMS. Thank you, Mr. Chairman. Good afternoon, Mr. 

Chairman, members of the subcommittee. I am Art Williams, Director of the Jefferson County Air Pollution Control District, and 

today I am testifying on behalf of the State and Territorial Air Pollution Program Administrators and the Association of Local Air 

Pollution Control Officials. Perhaps we have the longest acronym 

at the table. I current serve as immediate past president of that 

organization. 

STAPPA and ALAPCO are national associations of air quality officials in 54 States and territories in over 165 major metropolitan 

areas across the country. We are pleased to have this opportunity 

to provide our perspectives regarding implementation of the Clean 

Air Act. 

Notwithstanding the impressive progress associated with implementation of the 1990 Clean Air Act, progress that Federal, State, 

and local governments have achieved together, our Nation continues to face air quality and public health challenges of substantial proportions. I would like to touch on several of the key challenges that remain and a few areas where enhancements can be 

made. 

Perhaps the most complex air quality problem we face is achievement and maintenance of the health-based national standards for 

particulate matter and ozone. Fine particulate matter, or PM2.5, 

poses the greatest health risk of any air pollutant resulting in as 

30

many as 30,000 premature deaths each year and a variety of adverse health impacts. 

Based on preliminary air quality monitoring data, it appears that 

PM2.5 concentrations in 250 U.S. counties located primarily in the 

east and in California exceed this health-based standard. Attainment of the ozone standard also poses significant challenges. Current data show that more than 300 counties measure exceedances 

of the 8-hour ozone standard. 

Now that the courts have cleared the way for EPA, States, and 

localities to move forward, it is essential that EPA take swift action 

to establish implementation strategies for PM2.5 and 8-hour ozone. 

Further, STAPPA and ALAPCO urge timely and effective control 

programs for sources that contribute significantly to these air quality problems, including powerplants and non-road heavy-duty diesels. 

The magnitude of emissions from powerplants and the serious 

public health and welfare implications these emissions have make 

controlling electric utilities a top priority. Fortunately, there are 

tremendous opportunities for doing so in a very cost-effective manner. 

Among the most important steps Congress can take to address 

air pollution is to establish a comprehensive national multipollutant approach for cleaning up outdated powerplants and ensuring 

that new plants are dramatically cleaner. 

STAPPA and ALAPCO endorse the concept of a comprehensive 

strategy for reducing emissions from electric utilities and, to that 

end, recently adopted a set of principles upon which we believe a 

viable multipollutant approach should be based. Our associations 

believe that such an approach should address all significant emissions from electric power generation, establish stringent emission 

reduction goals reflecting the best-available control technology, set 

expeditious deadlines, supplement, not supplant, provisions of the 

existing Clean Air Act, encourage energy efficiency, and provide 

flexibility to industry, including trading. More detail is provided in 

my written statement. 

With respect to the regulation of mobile sources and their fuels, 

we have achieved great progress over the past decade. Perhaps 

most laudable are two landmark rulemakings issued by EPA in recent years, including the Tier 2 motor vehicle emission standards 

and low-sulfur gasoline programs, and the 2007 heavy-duty diesel 

engine and fuel rule. 

Our top remaining mobile source priority is the rigorous control 

of emissions from non-road, heavy-duty diesel engines, including 

construction, industrial, and agricultural equipment. STAPPA and 

ALAPCO urge that non-road, heavy-duty diesel engines and their 

fuels be subject to Federal standards equivalent to those for onroad, heavy-duty diesels and in the same timeframes. 

My written testimony includes STAPPA and ALAPCO specific 

recommendations in this regard. The serious and pervasive public 

health threat posed nationwide by emissions of hazardous air pollutants, or HAPs, is another continuing concern of our associations. 

According to EPA, more than 200 million people in the United 

States live in areas where the lifetime cancer risk from exposure 

31

to HAPs exceeds 1 in 100,000. Moreover, approximately 3 million 

people face a lifetime cancer risk of 1 in 10,000. 

One of the primary sources of HAPs is motor vehicles, including 

cars and trucks. Unfortunately, EPA’s action relative to the Clean 

Air Act’s requirement to regulate mobile sources’ air toxics is deficient. We believe far more is necessary at the Federal level to adequately address this critical public health threat. 

With respect to industrial sources of hazardous air pollution, the 

Clean Air Act called for EPA to establish technology-based standards for a large number of source categories by November 2000. Regrettably, EPA did not fulfill its obligation. Accordingly, State and 

local air pollution control agencies may be obligated to establish 

these standards on a case-by-case basis for all source categories for 

which EPA has not set these standards. 

Moreover, each day that these sources remain uncontrolled, 

many millions of people continue to be exposed to hazardous pollutants. EPA must do everything in its power to establish these standards as quickly as possible. 

The Clean Air Act’s NSR program, New Source Review, is a fundamental component of our Nation’s clean air program. However, 

we believe that this program can be improved. In short, STAPPA/

ALAPCO support reform, not replacement, of the existing NSR program with two provisos. First, such reforms must be limited to 

major modifications and not extended to new sources. And, second, 

under no circumstances should reforms result in any less protection 

of the environment than is derived under the current program. 

One final issue on which I would like to touch is Federal funding 

for State and local air pollution agencies. The magnitude of our air 

quality problem and the associated health effects make it clear that 

funding for the control of air pollution should be a top priority. Unfortunately, the reality is that State and local air agencies are underfunded. 

STAPPA and ALAPCO, in cooperation with EPA, conducted a 

study of air program funding and estimated that Federal grants to 

State and local air pollution control agencies, under Section 105 of 

the Clean Air Act, fell short of our needs by $100 million a year. 

While we have received modest funding increases in recent years, 

these increases are not enough. 

Unless our programs receive a substantially greater boost in 

funding, we will continue to face a serious financial shortfall, which 

will adversely affect our ability to protect and improve air quality. 

Once again, I thank you for this opportunity to provide STAPPA/

ALAPCO’s perspectives on the implementation of the Clean Air 

Act. 

[The prepared statement of Arthur L. Williams follows:]

PREPARED STATEMENT OF ARTHUR L. WILLIAMS, DIRECTOR, AIR POLLUTION CONTROL

DISTRICT OF JEFFERSON COUNTY, KENTUCKY ON BEHALF OF THE STATE AND TERRITORIAL AIR POLLUTION PROGRAM ADMINISTRATORS AND THE ASSOCIATION OF

LOCAL AIR POLLUTION CONTROL OFFICIALS

Good afternoon, Mr. Chairman and members of the Subcommittee. I am Arthur 

Williams, Director of the Air Pollution Control District of Jefferson County, Kentucky. I am testifying today on behalf of STAPPA—the State and Territorial Air Pollution Program Administrators—and ALAPCO—the Association of Local Air Pollution Control Officials, of which I currently serve as Immediate Past President. 

STAPPA and ALAPCO are the national associations of air quality officials in 54 

32

states and territories and over 165 major metropolitan areas across the country. The 

members of STAPPA and ALAPCO have primary responsibility under the Clean Air 

Act for implementing our nation’s air pollution control laws and regulations and, 

moreover, for achieving and sustaining clean, healthful air for our citizens. Accordingly, we are pleased to have this opportunity to provide our perspectives regarding 

implementation of the Clean Air Act. 

On November 15, 1990, when President Bush signed into law the Clean Air Act 

Amendments of 1990, he put in place a precedent-setting statute that completely revamped our nation’s approach to improving air quality and declared it a ‘‘true redletter day for all Americans.’’ At the time, STAPPA and ALAPCO endorsed the statute as an earnest commitment to environmental protection and believed that the 

comprehensive air pollution control strategy established in the Act provided state 

and local regulators with the tools we needed to make meaningful strides toward 

achieving our clean air goals. Eleven and a half years later, our associations believe 

our assessment was accurate and that the Act has served as the firm foundation 

for many success stories over the past decade. 

Prior to the 1990 amendments, our country spent decades struggling with a ubiquitous, perilous and seemingly unrelenting air pollution problem. About 100 areas 

across the country, home to about 130 million people, exceeded the national healthbased standard for ozone; over 40 areas, with a combined population of over 55 million, violated the standard for carbon monoxide; 85 areas, in which 25 million people 

resided, violated the coarse particulate matter (PM10) standard; billions of pounds 

of toxic chemicals were emitted into our air every year; millions of tons of sulfur 

dioxide (SO2) emissions contributed to acid rain; and our production of ozone-depleting substances was leading us directly toward devastating damage to our stratospheric ozone layer. 

Clearly, we were in need of a fresh start and a clear direction and we got them. 

The 1990 amendments homed in on the crux of our air pollution problems and 

framed a comprehensive strategy for attaining the health-based National Ambient 

Air Quality Standards (NAAQS), cleaning up mobile sources and their fuels, decreasing toxic air pollution, reducing acid rain and protecting the stratospheric 

ozone layer. As a result, Americans today are breathing cleaner air and reaping the 

benefits of a cleaner environment. 

More than two-thirds of the cities that in 1990 violated health-based national 

standards for at least one of the six criteria pollutants now comply with those standards; about 1.5 million tons of industrial toxic air pollutants are expected to be 

eliminated annually due to rules issued since 1990; rainfall in the eastern United 

States is 25 percent less acidic, due to reductions in SO2 emissions on the order of 

6.7 million tons per year; and we have stopped production in the U.S. of the most 

harmful ozone-depleting substances. What is more, we have achieved these milestones while, at the same time, experiencing strong economic growth. In fact, since 

1970, when the first Clean Air Act was enacted, Gross Domestic Product has increased by 158 percent, vehicle miles traveled by 143 percent, energy consumption 

by 45 percent and U.S. population by 36 percent. Further, it is estimated that by 

2010, implementation of the Clean Air Act will prevent 23,000 incidences of premature mortality, 67,000 cases of acute and chronic bronchitis, 1.7 million asthma 

attacks, 4.1 million lost work days and 31 million days on which activity is restricted. 

Notwithstanding this impressive progress associated with implementation of the 

Clean Air Act—progress that federal, state and local governments have achieved together—our nation continues to face air quality and public health challenges of substantial proportions. In addition, while we continue to maintain that the Clean Air 

Act, in general, offers a solid and viable framework for our efforts, the benefit of 

almost 12 years of hindsight allows us to pinpoint those aspects of the statute and 

the national clean air program that we believe can be improved or augmented. I 

would like to elaborate on several of the key challenges that remain and a few areas 

where enhancements can be made. 

Fine Particulate Matter and Eight-Hour Ozone Standards 

Perhaps the most complex air quality problem we face is achievement and maintenance of the health-based NAAQS for particulate matter and ozone. 

In 1997, EPA established a new standard for fine particulate matter (PM2.5). Although we are still working to complete the data-gathering efforts necessary to determine which areas of the country violate the PM2.5 standard, one thing is very 

clear: PM2.5 poses the greatest health risk of any air pollutant, resulting in as many 

as 30,000 premature deaths each year. Additionally, fine particles are responsible 

for a variety of adverse health impacts, including aggravation of existing respiratory 

33

and cardiovascular disease, damage to lung tissue, impaired breathing and respiratory symptoms, irregular heart beat, heart attacks and lung cancer. 

Fine particles are not only emitted into the atmosphere directly from combustion 

processes, they are also formed secondarily in the atmosphere from such precursor 

emissions as oxides of nitrogen (NOX), SO2 and ammonia; in addition to their adverse health consequences, fine particles also contribute to regional haze. Based on 

preliminary air quality monitoring data, it appears that PM2.5 concentrations in 250 

counties in the U.S.—located primarily in the East and in California—exceed the 

health-based standard. 

Overall, progress in attaining clean air has been slowest with respect to groundlevel ozone. In the southern and north central regions of the U.S., ozone levels have 

actually increased in the past 10 years, and in 29 national parks, ozone levels have 

risen by more than 4 percent. A significant factor in this trend is the increase we 

have experienced in NOX emissions, which are not only a precursor to ozone, but 

also a contributor to such public health and welfare threats as acid rain, eutrophication of water bodies, regional haze and, as I just mentioned, secondary PM2.5. Over 

the past 30 years or so, NOX emissions have increased by almost 20 percent, largely 

due to emissions from nonroad engines and power plants. Current data show that 

more than 300 counties measure exceedances of the eight-hour ozone standard. 

In 1997, EPA revised the health-based standard for ozone by establishing an 

eight-hour standard, representing greater protection of public health. Litigation over 

both the new PM2.5 standard and the revised ozone standard has delayed their implementation; however, the courts have now cleared the way for EPA, states and 

localities to move forward. Not only do STAPPA and ALAPCO urge swift action by 

EPA in establishing implementation strategies for PM2.5 and eight-hour ozone, we 

also urge timely and effective control programs for sources that contribute significantly to these air quality problems, including power plants and nonroad heavy-duty 

diesels. 

Power Plants 

Electric utilities are one of the most significant sources of harmful air emissions 

in the U.S., responsible for 64 percent of annual SO2 emissions, which contribute 

to acid rain and the formation of PM2.5, and 26 percent of NOX emissions. 

In addition, electric utilities are responsible for 37 percent of U.S. carbon dioxide 

emissions and emit upwards of 67 hazardous air pollutants (HAPs)—including nickel, arsenic and dioxins—in substantial quantities. In fact, power plants are the 

major emitter of hydrochloric acid, which is the HAP emitted in the greatest quantity in the U.S, and are also responsible for more than one-third of anthropogenic 

mercury emissions. The persistent and bioaccumulative nature of mercury makes it 

of particular concern relative to aquatic ecosystems, where it can contaminate 

aquatic life and pose a serious threat to humans who consume the contaminated 

species. Based on just such a threat, over 40 U.S. states and territories have issued 

fish consumption advisories for mercury for some or all water bodies in their jurisdictions. 

The magnitude of emissions from power plants, and the serious public health and 

welfare implications these emissions have, make controlling electric utilities a top 

priority. Fortunately, there are tremendous opportunities for doing so in a very costeffective manner. Our nation’s electricity generation infrastructure is aged, comprised of many 30-, 40- and 50-year-old plants that continue to operate without 

modern pollution control technology. Among the most important steps Congress can 

take to address air pollution is to establish a comprehensive national multi-pollutant approach for cleaning up outdated power plants and ensuring that new plants 

are dramatically cleaner. 

STAPPA and ALAPCO endorse the concept of a comprehensive strategy for reducing emissions from electric utilities and, to that end, recently adopted a set of principles upon which we believe a viable multi-pollutant approach should be based. Our 

associations believe that such an approach should address all significant emissions 

from electric power generation and, if properly structured, can increase and accelerate protection of public health and the environment, reduce pollution more costeffectively than incremental approaches and offer greater certainty to both industry 

and regulators. 

In our principles, STAPPA and ALAPCO call for an integrated approach based on 

an expeditious schedule that allows us to reduce emissions as rapidly as we can. 

Such an approach—which should supplement, and not supplant, provisions of the 

existing Clean Air Act—should include deadlines that are synchronized with other 

clean air programs. To ensure steady progress toward the final compliance deadline, 

interim deadlines should be established, with the first interim compliance requirements taking effect quickly. 

34

A viable multi-pollutant approach will also establish the most stringent enforceable national emission reduction goals feasible by capping emissions at levels that 

reflect the installation of technology no less stringent than best available controls 

on all existing units nationwide, with existing power plants required to meet a minimum level of control by the final compliance deadline. 

STAPPA and ALAPCO also believe that in meeting these emission goals, the regulated community should be afforded flexibility, including an emissions trading 

mechanism with appropriate limitations and protections against any adverse health 

or environmental impacts. If emissions allowances are required under a multi-pollutant approach, then they should be allocated equitably, and provisions for allocating to new sources should be established. Further, sources should be encouraged 

to reduce emissions as soon as possible and, to the extent early reduction credits 

are provided for, the use of such credits should be appropriately limited. 

On the matter of New Source Review (NSR), STAPPA and ALAPCO believe firmly 

that power plants—both new and existing—must continue to be subject to NSR requirements. Although I will elaborate on STAPPA and ALAPCO’s perspectives on 

NSR and NSR reforms, in general, later in my testimony, I would like to offer the 

following regarding our views with respect to NSR for power plants. 

Current NSR requirements for new sources should remain intact, including, 

among others, those related to the installation of control technology (i.e., the Lowest 

Achievable Emission Rate in nonattainment areas and Best Available Control Technology in attainment areas), the acquisition of offsets in nonattainment areas and 

the protection of air quality increments to guard against adverse local air quality 

impacts in attainment areas. Further, while certain NSR reforms for existing 

sources are definitely in order, such sources making major modifications to existing 

units should be required to install the best available controls on affected units at 

the time of the modification, acquire any emissions allowances required to address 

emission increases and ensure against adverse local health or environmental impacts. 

In addition, a multi-pollutant approach to reducing emissions from power generation should strongly encourage the most efficient use of any fuel used as input to 

electric generation or process energy sources, as well as energy efficiency, energy 

conservation and renewable electric energy. Further, it should support efforts to develop and deploy consistent approaches for distributed resources to mitigate the impacts of small units not otherwise covered by a national multi-pollutant strategy. 

Finally, a viable multi-pollutant strategy will ensure that regions, states and localities retain their authority to adopt and/or implement measures—including local 

offset requirements—that are more stringent than those of the federal government. 

As our nation approaches the issue of a multi-pollutant strategy for one of our 

most significant sources of air emissions, we must do so in a way that institutes 

an appropriately rigorous emissions reduction scheme on a timely schedule and compels the use of state-of-the-art technology, commensurate not only with the substantial contribution of power plants to our nation’s continuing air quality and public 

health challenges, but also with the level of reductions we will garner from new regulatory programs addressing other big-emitting sources, like passenger cars and 

heavy-duty diesel engines. 

Nonroad Heavy-Duty Diesel Engine and Fuels 

With respect to the regulation of mobile sources and their fuels, we have achieved 

great progress over the past decade. Perhaps most laudable are two landmark 

rulemakings issued by EPA in recent years. In December of 1999, the agency promulgated Tier 2 motor vehicle emission standards and a national low-sulfur gasoline 

program. The following December, the agency issued a rule (the 2007 Diesel Rule) 

establishing tighter engine standards for onroad heavy-duty diesels, such as big diesel trucks, and a commensurately stringent cap on sulfur in onroad diesel fuel. 

Notwithstanding these truly remarkable accomplishments that will yield tremendous public health and environmental benefit across the entire country, we still 

have more work to do in reducing emissions from mobile sources and fuels. First 

and foremost in this regard is the rigorous control of emissions from the last really 

big mobile source category remaining: nonroad heavy-duty diesel engines (HDDEs), 

including construction (e.g., bulldozers and excavators), industrial (e.g., portable 

generators, airport service equipment and forklifts) and agricultural (e.g., tractors, 

combines and irrigation pumps) equipment. 

Nonroad HDDEs are huge contributors to elevated levels of ozone and PM2.5—representing a substantial and growing share of the emissions inventories for both NOX

and PM—thus posing a substantial threat to public health, including, among other 

things, premature mortality from exposure to PM2.5, as I discussed earlier. In fact, 

the aggregate NOX and PM emissions from nonroad HDDEs exceed those from all 

35

of the nation’s highway diesel engines. In addition, the Clean Air Scientific Advisory 

Committee has concluded that diesel exhaust is a likely human carcinogen at environmental levels of exposure, further heightening the need to take swift and aggressive action to control emissions from nonroad HDDEs. Given the limited authority 

states and localities have to regulate heavy-duty engines and their fuels, rigorous 

new federal standards for nonroad HDDEs and nonroad diesel fuel—equivalent to 

those for onroad HDDEs and fuels and in the same timeframes—are imperative. 

STAPPA and ALAPCO have been advocating such new nonroad standards for several years. Specifically, our recommendations are based on several key principles 

that include the following: 1) availability of 15-ppm low-sulfur nonroad diesel fuel 

beginning in June 2006, subject to the same flexibilities and schedules provided 

under the onroad low-sulfur diesel fuel program; 2) promulgation of Tier 3 nonroad 

HDDE standards for PM (for all horsepower engines covered by the rule), based on 

emission reductions of 90+ percent (similar to the PM reductions achieved by the 

onroad heavy-duty diesel rule) to be fully applicable in 2007; 3) promulgation of Tier 

4 nonroad HDDE standards for NOX (for 50 to 750 hp engines), based on emission 

reductions of 95+ percent (similar to the reductions achieved by the onroad heavyduty diesel rule), to be phased in between 2007 and 2010; and 4) a strong program 

to ensure that in-use emissions are not compromised by durability issues, the use 

of defeat devices or other factors. 

Unless emissions from nonroad HDDEs are sharply reduced, it is very likely that 

many areas of the country will be unable to attain and maintain national healthbased air quality standards for ozone and PM. Moreover, a nonroad heavy-duty diesel rule that establishes engine and fuel standards equivalent to those for onroad 

HDDEs and in the same timeframes will yield enormous public health benefits. EPA 

must take full advantage of the opportunity to adopt meaningful and timely controls 

for nonroad HDDEs and their fuels. 

Hazardous Air Pollutants 

The serious and pervasive public health threat posed nationwide by emissions of 

hazardous air pollutants (HAPs) is another continuing concern of STAPPA and 

ALAPCO. Just last week, EPA released the results of its National-Scale Air Toxics 

Assessment (NATA), which provides nationwide estimates of exposure and health 

risks associated with 32 HAPs. According to EPA, more than 200 million people in 

the U.S. live in areas where the lifetime cancer risk from exposure to HAPs exceeds 

1 in 100,000. Moreover, approximately 3 million face a lifetime cancer risk of 1 in 

10,000. Considering that EPA has established 1 in 1,000,000 as the generally acceptable level of risk, these estimates not only illustrate the pervasive nature of the 

threat posed by HAPs, they also speak to the level of effort that will be required 

to reduce the risk and the high level of priority that should be placed on doing so. 

According to EPA’s data and information collected by state and local agencies, one 

of the primary sources of HAPs is motor vehicles, including cars and trucks. EPA 

has estimated that approximately 50 percent of all national HAP emissions, which 

do not include diesel exhaust, comes from mobile sources. The agency has further 

estimated that for more than 100 million people, the combined upper-bound lifetime 

cancer risk from mobile source air toxics exceeds 1 in 100,000. 

In recognition of the health impacts of mobile source air toxics and the limited 

capacity of states and localities to directly regulate mobile sources and fuels, Congress included in section 202(l) of the 1990 Clean Air Act a requirement for EPA 

to promulgate regulations to control mobile source emissions of toxic air pollution. 

Specifically, the Act mandated that ‘‘[t]he regulations shall contain standards for 

such fuels or vehicles, or both, which the Administrator determines reflect the greatest degree of emission reduction achievable through the application of technology 

which will be available...The regulations shall, at a minimum, apply to emissions 

of benzene and formaldehyde.’’ Unfortunately, EPA’s action relative to this statutory 

requirement—a December 2000 rulemaking—is deficient. Instead of aggressively addressing mobile source air toxics in a manner consistent with section 202(l) and proportionate to the risk posed, the rule calls for nothing more than the status quo and 

merely contemplates additional regulation in 2004, if further study warrants it. 

Clearly, far more is necessary at the federal level to adequately address this critical 

public health threat. 

With respect to industrial sources of toxic air pollution, the Clean Air Act called 

for EPA to establish technology-based standards for a large number of source categories by November 2000. These standards—known as MACT (Maximum Achievable Control Technology) standards—were to require new sources to apply state-ofthe-art technology and existing sources to achieve reductions equal to those achieved 

by the top performing existing sources. Regrettably, EPA has not fulfilled its obligation; more than 18 months after the statutory deadline, 36 MACT standards covVerDate 0ct 09 2002 09:44 Oct 28, 2002 Jkt 010199 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 W:\DISC\80673 80673
36

ering 62 source categories still have not been established. Under the section 112(j) 

of the Clean Air Act, state and local air pollution control agencies are obligated to 

establish MACT on a case-by-case basis for all source categories for which EPA has 

not set standards. Although the agency has taken regulatory steps to delay this 

state and local obligation, environmental groups have objected and it is unclear 

what the section 112(j) case-by-case MACT regulation will ultimately require. More 

importantly, however, each day that these sources remain uncontrolled, many millions of people continue to be exposed to hazardous pollutants. EPA must do everything in its power to establish these standards as quickly as possible. 

In addition to calling for MACT standards, the Clean Air Act calls for Residual 

Risk standards, to reduce the risks that remain after implementation of the MACT 

standards. EPA is required to establish Residual Risk standards eight years after 

the issuance of MACT standards. However, EPA’s delay in establishing MACT 

standards has also delayed establishment of the health-protective Residual Risk 

standards. To minimize the public’s exposure to dangerous toxic air pollution, EPA 

must work diligently to establish Residual Risk standards as quickly as possible. 

New Source Review 

The Clean Air Act’s NSR program is a fundamental component of our nation’s 

clean air program. For the past 25 years, NSR has been instrumental in achieving 

millions of tons of emissions reductions that otherwise would not have occurred. Air 

quality in the U.S. is decidedly better because of this program. However, notwithstanding the pivotal role NSR has played in environmental protection and the fact 

that for new sources the program is working well, there is broad consensus that the 

program can be improved with respect to requirements for major modifications to 

existing sources. Over the past eight years, STAPPA and ALAPCO have worked 

with EPA and other stakeholders to develop recommendations in this regard. During that time, our associations have gone on record in favor of reforms to the NSR 

process, and we continue to hold that position. 

Although STAPPA and ALAPCO do not believe that the current NSR program is 

preventing industry from expanding or from increasing efficiency, we do believe 

that, with respect to major modifications, certain flexibilities should be afforded to 

sources that install the best controls. For example, our associations have agreed 

that sources that install the best available controls today should be afforded a clean 

unit exemption—that is, an exemption from further NSR for a limited time into the 

future. Similarly, we have supported a plant-wide applicability limit (PAL), provided 

it declines over time to a level reflecting installation of best available controls and 

requires all significant new sources constructing under the PAL to install the best 

available controls. 

In short, STAPPA and ALAPCO support reform, not replacement, of the existing 

NSR program with two provisos: 1) such reforms should be limited to major modifications and 2) under no circumstances should reforms result in any less protection 

of the environment than is derived under the current program. 

Funding 

One final issue on which I would like to touch is federal funding for state and 

local air pollution control agencies. It is well established that air pollution presents 

a pervasive national threat to public health and the environment. The health risks 

are not only significant, we know of no other environmental problem presenting 

greater risk. Air quality regulators at all levels of government have worked diligently for many years in pursuit of our clean air goals. In spite of the considerable 

improvements that we have achieved, clean, healthful air nationwide still eludes us. 

Over 160 million tons of pollution are still emitted into the air each year. One 

hundred and twenty one million people live in areas of the country that violate at 

least one of the six health-based NAAQS, not to mention the many millions of people who are exposed to toxic air pollutants that cause cancer and other health problems. The magnitude of our air quality problem and the associated health effects 

make it clear that funding for the control of air pollution should be a top priority. 

Unfortunately, the reality is that state and local air agencies are underfunded. Although states and localities devote significant resources to their air quality programs, air agencies have been operating for years with inadequate financial support 

from the federal government. As a result, many of our programs are not as robust 

as they need to be. 

A few years ago, STAPPA and ALAPCO, in cooperation with EPA, conducted a 

study of air program funding and estimated that federal grants to state and local 

air pollution control agencies under Section 105 of the Clean Air Act fell short of 

our needs by nearly $100 million a year. While we have received modest funding 

increases in recent years, these increases are simply not enough, especially in light 

37

of our expanded responsibilities. Unless our programs receive a substantially greater boost in funding, we will continue to face a serious financial shortfall, which will 

adversely affect our ability to protect and improve air quality. This shortfall will 

only become worse as greater demands are placed on our programs. Among the air 

program priorities for which state and local agencies require additional funding are 

HAPs; fine particulate matter, especially diesel particulate; compliance; inspections; 

monitoring; data improvements, including maintaining and improving infrastructures, emission inventories and modeling; haze and visibility monitoring; and outreach to and education of the public and regulated community. 

We urge Congress to give careful consideration to our request for a $25-million 

increase in FY 2003 federal grants to state and local air agencies under Sections 

103 and 105 of the Clean Air Act. 

Finally, notwithstanding the pivotal role of state and local air agencies in our nation’s air quality program, we cannot do the job alone. A strong and effective EPA 

that is adequately funded to carry out its responsibilities is essential to state and 

local efforts. Accordingly, we encourage Congress to ensure that EPA is also well 

funded, and to consider increasing, rather than decreasing, EPA’s budget to allow 

the agency to carry out such important activities as those related to fine particulate 

matter; mobile sources; retrofitting diesel school buses; national emission standards, 

including toxic air pollutant standards; training; health research and risk estimates; 

and modeling. 

Conclusion 

Is the Clean Air Act the perfect environmental statute? No. But it has proven to 

be a good, sound, workable law with the potential to yield clean air in an efficient 

and cost-effective manner. 

As we look back on our implementation of the Clean Air Act over the past 11 and 

a half years, we can do so with pride for all that we have accomplished. Though 

challenges still lie ahead, there are many opportunities for rising to these challenges. As we look forward, we should do so in a way that focuses on how we can 

augment, rather than replace, our current statutory foundation so that the considerable momentum we have created is not disrupted. 

Among other things, we can look to and learn from the successes that have resulted from regional initiatives. Beyond the firm foundation provided by strong federal programs, such regional efforts allow for the development of approaches tailored to regional needs. 

We can also continue our efforts to identify and implement innovative approaches 

to addressing air pollution and find ways to capitalize on the flexibilities provided 

by the law to resolve implementation problems and move ahead. Our past experiences in seeking ‘‘common-sense’’ solutions to difficult issues have demonstrated 

that the current statute is structured to accommodate change and keep pace with 

our needs. 

Above all, we must remember that the most valuable asset our nation can ever 

have is a healthy population and a clean environment. In working to achieve our 

clean air goals, protecting these assets must be our highest priority.

Mr. SHIMKUS. Thank you. 

And I do want to commend the panel for really doing a good job 

on the opening statements. If you are doing that well protecting the 

air as you are staying on track of time, I think we are in pretty 

good shape. 

Now I would like to welcome Mr. Doug Lempke, Administrator 

of Air Quality Control Commission, Colorado Department of Public 

Health and Environment. You have 7 minutes, sir. 

STATEMENT OF DOUG LEMPKE 

Mr. LEMPKE. Good afternoon, Mr. Chairman, members of the 

committee. My name is Doug Lempke, and on behalf of Governor 

Owens I would like to thank you today for holding this hearing and 

for giving the State of Colorado the opportunity to share some of 

our successes under the Clean Air Act and some of our thoughts 

on implementing emission reduction programs to meet the requirements of the Act. 

38

Colorado’s overall experience in working with EPA, particularly 

Region VIII, has been positive. However, we believe that changes 

to the Act and overall programs within EPA would enhance the 

tools States are provided to improve and protect air quality, as well 

as provide more options to State agencies to implement effective air 

quality management strategies and demonstrate our ability to 

maintain compliance into the future. 

Over the past 3 years, Colorado has made it a top priority to ensure that our non-attainment areas meet the national standards 

and will continue to meet them into the foreseeable future. The 

Denver metro area was once one of two areas in the United States 

to be out of compliance with five of the national ambient air quality 

standards. 

As of today, EPA has proposed—EPA has approved our redesignation plans for the Denver metro area for all but the pollutant 

PM10, which they have currently proposed for approval in the Federal Register. This makes the Denver metro area the first major 

metropolitan area in the country to demonstrate its ability to maintain long-term compliance with so many problematic pollutants. 

Region VIII EPA has been particularly helpful in completing this 

process over the past 3 years. And without their upfront involvement in the process, we would not be where we are at today. 

Additionally, my comments today will focus on requirements for 

the vehicle inspection and maintenance programs, EPA’s guidance 

and its usefulness to States, and the Regional Haze Rule. Colorado 

believes that enormous emission reductions have been achieved 

over the years through the implementation of the corporate CAFE 

or the Federal CAFE standards. However, it has been necessary to 

implement vehicle inspection and maintenance programs in many 

non-attainment areas to demonstrate compliance with the national 

standards. 

These programs require all vehicles to be tested to identify a 

small number of higher-emitting vehicles that require repairs. In 

some cases, such as Denver, enhanced vehicle inspection and maintenance programs are required to be implemented under the Act. 

Colorado believes that the technology and programs exist to identify high-emitting vehicles without putting each motorist through 

the process of visiting the vehicle testing center. These programs 

utilize remote sensing instrumentation in programs referred to as 

clean screening or high-emitter programs. We would suggest that 

the Act and EPA regulations should readily provide for the implementation of these types of programs instead of the traditional 

I&M programs. 

Over the years, EPA has undertaken an enormous effort to develop guidance documents and keep track of numerous memorandum of interpretation of the programs and provisions of the 

Clean Air Act. These guidance documents and memorandum can be 

useful resources. However, they are often adhered to as if they 

were rules and regulations unto themselves. 

This often strict adherence to guidance blunts the attempts of 

State agencies to creatively apply air quality strategies to meet the 

requirements of the Act. Colorado suggests that guidance documents should be present—should represent a readily approvable 

avenue to compliance but not the only avenue. 

39

We propose that implementation of the Clean Air Act could be 

made significantly more flexible by changing the approach that 

EPA has taken to rely on some of the guidance documents and the 

memorandum of interpretation. 

The Regional Haze Rule focuses its primary emission reduction 

requirements on major stationary sources of visibility impairing 

pollutants. However, there are many sources of pollutants that contribute to visibility impairment in our national parks and wilderness areas. 

The first phase of the rule focuses on application of emission controls to stationary sources alone through the analysis and application of best-available retrofit control technology. This process is 

complicated and litigious at best and unworkable at worst. In fact, 

the DC Circuit Court of Appeals, a little over a week ago, remanded at least part, and some have argued all, of the rule back 

to EPA over this very issue. 

Colorado believes that prior to our moving forward with implementation of the Regional Haze Rule, EPA needs to resolve the 

provisions that were remanded by the court. Under the rule, Western States were provided with two options to comply with the rule, 

and at this point at least one of those options is clearly affected by 

the court ruling. 

We were on the verge of making the choice of which approach to 

follow, but now we must take a step back and understand what the 

court has done, as well as wait for EPA to take action on the remand. We suggest that EPA and/or Congress resolve the BART 

issues, as well as any other issues, as expeditiously as possible. 

That concludes my testimony. Again, we appreciate the opportunity to testify here today. And if you have any questions, I would 

be happy to try to answer them. 

[The prepared statement of Doug Lempke follows:]

PREPARED STATEMENT OF DOUG LEMPKE, ADMINISTRATOR, AIR QUALITY CONTROL

COMMISSION, COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

Good afternoon Mr. Chairman, members of the Subcommittee, thank you for holding this hearing today and for giving the State of Colorado the opportunity to share 

some our successes under the Clean Air Act and to share some of our thoughts on 

implementing emission reduction programs to meet the requirements of the Act. 

Colorado’s overall experience in working with EPA, particularly Region VIII, has 

been positive. However, we believe that changes to the Act and overall operations 

within EPA would enhance the tools states are provided to improve and protect air 

quality as well as provide more options to state agencies to implement effective air 

quality management strategies and demonstrate our ability to maintain compliance 

into the future. 

The issue of implementing programs to demonstrate long-term compliance with 

national standards is a particularly timely subject for the Subcommittee to ask the 

State of Colorado to address. Over the past three years Colorado has made it a top 

priority to ensure that our non-attainment areas meet the national standards and 

will continue to meet them into the foreseeable future. We are particularly proud 

of our work in the Denver Metro Area. 

The Denver Metro Area was once one of the two areas in the United States to 

be out of compliance with 5 of the National Ambient Air Quality Standards. At one 

point Denver and Los Angeles shared this ignoble distinction. Denver was out of 

compliance at one point with the Lead, Nitrogen Oxide, Carbon Monoxide, Ozone, 

and the PM10 standards. 

Just three years ago Denver was still listed as a non-attainment area for Ozone, 

PM10, and Carbon Monoxide. As of today EPA has approved our redesignation the 

Denver Metro area for Ozone and Carbon Monoxide and adopted our long term compliance plans for both. EPA has recently proposed for public comment the approval 

40

of our Denver PM10 maintenance plan and request for redesignation. We anticipate 

full approval of that plan this year. 

This makes the Denver Metro Area the first major metropolitan area in the country to demonstrate its ability to maintain long-term compliance with so many problematic pollutants. It has taken us over 20 years to reach this point with a significant amount of effort invested by a great number of people to comply with the federal requirements to improve Colorado’s air quality and protect it into the future. 

Region VIII EPA has been particularly helpful in completing this process over the 

past three years. Without their upfront involvement in the process we would not be 

where we are today. We applaud Region VIII for their participation in our efforts 

and their willingness to express their opinion on our approaches to demonstrate 

long-term compliance with the requirements of the Act in regards to returning Colorado non-attainment areas to attainment status. We would suggest that all regional 

EPA offices be involved in the development of proposed plans for non-attainment 

areas to demonstrate long-term maintenance of the national standards as EPA has 

been with Colorado. 

This is our greatest success story of implementing the requirements of the Clean 

Air Act, with the help of EPA. Additionally, my comments today will focus on; 1. 

Requirements for vehicle inspection and maintenance programs; 2. EPA guidance 

and its usefulness to states; and 3. The Regional Haze Rule 

Vehicle Inspection & Maintenance Programs 

Colorado believes that enormous emission reductions have been achieved over the 

years through the implementation of the federal Corporate Average Fuel Economy 

Standards and that these standards have provided much of the benefit that carbon 

monoxide and ozone non-attainment areas have relied upon to achieve the national 

standards. However, it has been necessary to implement vehicle inspection and 

maintenance programs in many non-attainment areas such as the Front Range 

Communities in Colorado. These programs require all vehicles to be tested to identify a small number of higher emitting vehicles that require repairs to lower vehicle 

emissions to acceptable levels. In some cases, such as Denver, enhanced vehicle inspection and maintenance programs are required to be implemented under the Act. 

Colorado believes that the technology and programs exist to identify the high 

emitting vehicles without putting each motorist through the process of visiting the 

vehicle testing center. We believe that the implementation of such programs could 

be used to maintain air quality compliance with the national standards and should 

be readily provided for under the Act. These programs utilize remote sensing instrumentation and can identify vehicles with lower emissions in programs referred to 

as ‘‘Clean Screening’’ or conversely they can identify vehicles with unacceptably high 

emissions in what is typically referred to as ‘‘Hi Emitter’’ programs. This technology 

can be implemented through a variety of passive or active programs. Remote sensing can be conducted in real world or on road settings with subsequent notification 

to motorists or with motorists actively being pulled over on the spot for confirmatory 

testing and if necessary be required to repair the vehicle such that the emissions 

are reduced to acceptable levels. 

In addition, current requirements for vehicle inspection & maintenance programs 

mandate modeling techniques with EPA approved models that have been sharply 

criticized to over-predict the impacts of mobile source emissions on ambient air quality. In fact, the National Research Council reached this conclusion in their 2001 report where they stated; 

The MOBILE model will continue to be used to determine future emissionsreduction credits that states will receive from implementing I/M or from modifying their current I/M programs. MOBILE is a static, not a dynamic, model 

and is therefore a simplified representation of emissions changes from I/M. Historically, MOBILE has overestimated emissions reductions from I/M programs. 

It remains to be seen whether MOBILE6, which is a major revision from 

MOBILE5, will also overestimate I/M benefits or whether it will be a more accurate representation of I/M benefits. Indications are that MOBILE6 will estimate 

lower emissions reductions from I/M programs than are estimated by 

MOBILE5. 

While MOBILE6 is an improvement with respect to quantifying the benefits of an 

I/M program, we are concerned that the model still does not accurately reflect the 

benefits of the I/M program nor does it quantify the degree of certainty with which 

it predicts the benefits. As mentioned, it is a static measurement and does not reflect what is actually happening in the real world. While identifying this problem 

is easy, identifying the solution is not. One problem is that while MOBILE6 is an 

improvement over MOBILE5 it has taken so long for it to come out that newer data 

is most likely available that would be more reliable. Therefore, a recommendation 

41

that we would make is that the turnaround time on revisions to the MOBILE model 

be reduced so that it is not outdated when we receive it. 

EPA Guidance Documents 

Over the years EPA has undertaken an enormous effort to develop guidance documents and keep track of numerous memorandum of interpretation of the programs 

and provisions of the Clean Air Act. These guidance documents and memorandum 

can be useful resources, however, they are often adhered to as if they were rules 

and regulations in and of themselves. This often strict adherence to guidance blunts 

the attempts of state agencies to creatively apply air quality strategies to meet the 

requirements of the Act to the situation of the day. All to often we experience circumstances of a situation that are different than the guidance, but we are required 

to adhere to the guidance and make it fit. This is particularly true in the modeling 

of emission impacts and permitting of stationary sources. 

Colorado suggests that guidance documents should be just that—guidance on how 

to achieve the desired result. We believe that guidance documents should be, at 

least somewhat, open to interpretation. We believe that guidance documents should 

present a readily approvable avenue to compliance, but not the only avenue. We also 

believe that the programs we submit for consideration of approval into our State Implementation Plan should not be put on hold until guidance is developed only to 

have the program subsequently rejected because it does not follow the guidance. 

We propose that implementation of the Clean Air Act could me made significantly 

more flexible by changing the approach that EPA has taken to reliance on the guidance documents and the memorandum of interpretation it has created. We believe 

that this added flexibility could address many of the issues that we, and other states 

experience in attempting to implement the requirements of the Clean Air Act. 

Colorado has previously commented on the inflexibility of guidance in regard to 

the overhaul of the New Source Review Program and the proposed multi-pollutant 

legislation and can make those comments available. 

Regional Haze Rule 

The regional haze rule focuses its primary emission reduction requirements on 

major stationary sources of visibility impairing pollutants. There are many sources 

of pollutants that contribute to visibility impairment in our National Parks and Wilderness Areas, however, the first phase of the rule focuses on application of control 

technology requirements to stationary sources alone through the analysis of Best 

Available Retrofit Technology. This process is complicated and litigious at best and 

unworkable at worst, and in fact, the DC Circuit Court of Appeals, a little over a 

week ago, remanded the determination of BART in the regional haze rule back to 

EPA for further action. 

On Friday, May 24th the DC Circuit Court of Appeals issued its’ ruling in American Corn Growers Association versus United States EPA. It appears that the Court 

ruled that the process of analysis to determine the most appropriate Best Available 

Retrofit Technology to an individual source was invalid. The Court vacated the 

BART rules and remanded them to EPA. In its opinion the court expressed that the 

manner in which EPA addressed the five factors to be considered in a BART analysis were inconsistent with the text and structure of the Act. 

Colorado believes that prior to our moving forward with implementation of the regional haze rule, EPA needs to resolve the provisions that were remanded by the 

court. While it is important to resolve haze issues in our country’s Class I areas, 

we suggest that the legal issues raised with the rule must be resolved before we 

can move forward with its implementation. Under the rule western states were provided two options to comply with the rule and at this point at least one of those 

options is blurred. In Colorado, the choice of which option to pursue has been very 

controversial. We were on the verge of making that choice as the court issued its 

ruling. Now, we must take a step back and understand what the court has done 

as well as wait for EPA to take action on the remand.

Mr. SHIMKUS. Thank you, and we appreciate your attendance 

today. 

I think the chairman has directed that I ask Mr. Shadegg if he 

would like to take the first round of questions. You have 5 minutes. 

Mr. SHADEGG. Yes, I would very much. Thank you very much. I 

will be brief. 

I want to begin by asking you, Mr. Williams, about the issue of 

diesel and the—you touched upon in your testimony the issue of 

diesels that are currently exempt. As I understand it, that includes 

42

diesel construction equipment, anything that is considered off-road 

diesel equipment. Does that include—and that would include construction equipment and farm equipment, is that correct? 

Mr. WILLIAMS. Yes. 

Mr. SHADEGG. Does that also include diesel railroad trains? 

Mr. WILLIAMS. I believe EPA has a separate rulemaking for locomotives. 

Mr. SHADEGG. It has a separate rulemaking? 

Mr. WILLIAMS. I believe so. 

Mr. SHADEGG. Okay. 

Mr. WILLIAMS. And I think also for marine engines there has 

been a separate rulemaking. So the primary—I am sorry. 

Mr. SHADEGG. Can you elucidate for me when those exemptions 

were granted, whether or not you think they are appropriate, and 

how you think we ought to address whether they should be continued or they should be brought in? Because it seems to me if we are 

doing—we are making real progress on over-the-road diesel engines, and while I don’t disagree with having exempted them initially, it seems to me at some point you have to broaden the net 

and bring in other sources. And I guess I am interested in specifically what it is you recommend with regard to those sources. 

Mr. WILLIAMS. I don’t know that it is so much an exemption as 

that they have not yet been regulated through the Clean Air Act. 

The first significant category were the on-road diesels, both with 

the technology—the emissions technology and sulfur in the fuels. 

This remaining category of non-road, which includes construction, industrial, agricultural, really dwarfs, in terms of the magnitude of emissions, the on-road. And what we have recommended 

is a very similar approach over similar timeframes both addressing 

the technology for emissions control equipment on the engine side, 

but also significant reductions in the sulfur on the fuel side. 

We believe that this—addressing this category of diesel, the nonroad heavy-duty diesel, will dramatically improve air quality, will 

help make progress both on the ozone and the PM2.5 standard. Of 

course, there is growing concern about the carcinogenic impacts of 

diesel. So we do believe that this is a very important and appropriate role for EPA to extend regulation to, and we are hopeful and 

optimistic that by the end of the year EPA will undertake a rulemaking to do that. 

Mr. SHADEGG. Well, we are making progress I think on clean diesel. We are getting close. I believe there is a significantly improved 

standard to be in effect for 2004. And I hear discussions—and I 

have asked a couple of people that are constituents of mine whether it is accurate, and I get differing opinions. But I hear that in 

the not-too-distant future we are on the verge of a diesel engine 

that is cleaner than a natural gas engine. And there has been some 

discussion of that. 

I read a letter to the editor here in Washington, DC. The DC 

City Council just bought a bunch of natural gas buses, and shortly 

after doing so a letter to the editor appeared saying that was foolish because they are costly, and we are on the verge of a diesel engine that is cleaner than a natural gas engine. 

And while I don’t want to impose a burden on some of these industries, particularly the farm industry or the construction indusVerDate 0ct 09 2002 09:44 Oct 28, 2002 Jkt 010199 PO 00000 Frm 00046 Fmt 6633 Sfmt 6602 W:\DISC\80673 80673
43

try, or, for that matter, the trains that move a great deal of freight, 

it seems to me over the road was our first target. If over the road 

has been the cutting edge to get to cleaner diesel, then we ought 

to be expanding that cleaner diesel out to where it is applicable in 

other sources. 

And it seems to me if we are going to—there is no point in having two different diesel fuels around. If we have a cleaner diesel 

for over the road use, I see little reason to make it not applicable 

also to off the road or used for engines that are not on the road. 

I guess the other question I would like to ask is Mr.—do you pronounce your name Lepemke? 

Mr. LEMPKE. Lempke. 

Mr. SHADEGG. Lempke. Okay. I was fascinated by your testimony 

on the issue of guidance, and I was a little bit confused. I want to 

make clear, what you are saying is that using the term ‘‘guidance,’’

the EPA is essentially establishing rules without actually creating 

rules. Or is it that people just follow them as rules voluntarily? 

I mean, is it a problem that EPA needs to correct by making it 

clear that they are not—that you, as the State of Colorado, are not 

bound by guidance? Or is it a problem that people just don’t have 

the courage to not follow guidance? 

Mr. LEMPKE. Thank you. I think it is a little bit in between the 

two of those. 

Mr. SHADEGG. Okay. 

Mr. LEMPKE. I think everybody realizes that they are not enforceable as rules. But in practice, overcoming that is difficult. So 

just, you know, leaving those guidance documents and those memorandum up to a little bit of interpretation to the situation of the 

day, so to speak, would be a bit more helpful, you know. Just a little bit of change in the way that EPA overall looks at those. 

Now, we have worked with Region VIII pretty well on that, but 

it is difficult sometimes. As I think was mentioned earlier in a 

presentation here today, some of these guidance documents are, 

you know, hundreds of pages long. And that, in and of itself, is a 

giant hurdle to get over when you are trying to look at trying to 

implement a program. 

Mr. SHADEGG. Well, I am very sympathetic with your call for 

flexibility. My home State is Arizona. The air pollution problems 

we face in Arizona are dramatically different than they face in, say, 

Maine, or maybe even Virginia. We have severe problems with particulate driven by dust. That is not a problem in other parts of the 

country. We have lots of dirt roads still in existence. 

We have just lots of issues, and there are many places where we 

need flexibility, and I thought you made a rather compelling case 

for how flexibility has worked for Colorado. And if the Congress 

needs to address this issue of making it clear that guidance is guidance, and that you cannot be held accountable for deciding that 

that guidance doesn’t work for your State, I would be happy to 

work on that point, because I think that is a valid point. 

If, in fact, something rises to the level of requiring a rule, make 

it a rule. But if it is guidance and it will work for Maine or Minnesota or Michigan, or someplace where it is wet and green, but 

it won’t work for parts of Arizona which are dry and brown, or, for 

44

that matter, parts of Colorado that are dry and brown, I think you 

need the flexibility to use what works in your region. 

Mr. SHIMKUS. The gentleman’s time has expired. The Chair recognizes the gentleman from Ohio, Mr. Sawyer, for 5 minutes. 

Mr. SAWYER. Thank you very much, Mr. Chairman. 

Mr. Jones, thank you very much for being here and for your testimony. You talked about the significant progress that our State 

has made in meeting the 1-hour ozone standard. Are there regulatory approaches in Ohio that can serve as lessons elsewhere in 

the country, either for the 1-hour standard or for other standards 

that are involved in the Clean Air Act? 

Mr. JONES. Mr. Sawyer, I probably risk alienating the Northeast 

States. They get offended when I say we are in attainment and 

they are not. Part of what we did, as you know, was the enhanced 

automobile emissions testing, which I think has been described as 

the single-most unpopular program Ohio has ever put in place. 

Mr. SAWYER. Painful. 

Mr. JONES. But we did it at a relatively low cost for the motoring 

public, and we did it to our targeted non-attainment areas. 

What we attempted to do was essentially broaden the base that 

sought reductions. We have obviously made significant reductions, 

believe it or not, in our powerplant emissions. I think the statistics 

I mentioned in my testimony are an indication that we have literally gone after pretty much all of the sources in our State, and 

we will face that again with the new 8-hour standard once we get 

an implementation plan promulgated by U.S. EPA. 

But I think the one item I would suggest is there has to be the 

ability to look at regional approaches. But your definition of ‘‘region’’ is the key. I think we are—we have never said anything but 

that we have an impact on Western Pennsylvania, and I think that 

is what all of the modeling says. We have a very hard time convincing people that the State of Maine is in non-attainment because of Ohio. 

Certainly, there are transport issues, and we have acknowledged 

that, but there is a need for a regional approach. And where it is 

particularly important is an area like Cincinnati. The Cincinnati 

metropolitan area actually goes into Northern Kentucky, which not 

only puts us into another State but into another U.S. EPA region. 

And you have the potential for literally the same metropolitan 

area having separate designations from separate U.S. EPA regions 

governed by different State law and regulation. And it makes it 

tremendously complicated for us to try to come up with something 

that isn’t impacted downwind. 

Mr. SAWYER. What can we do from here? 

Mr. JONES. I think the—and this is the difficult part of it. You 

keep hearing about flexibility from us, and I think that is the 

linchpin. I think there is—there seems to always be a concern that 

there will be a race to the bottom at the State level. And I think 

what you have seen when you look at the facts is the States aren’t 

racing to the bottom. 

Mr. SAWYER. I think that is——

Mr. JONES. In simplest terms, we can’t afford to. And so I think 

allowing States to experiment, and sometimes not succeed, is a key 

to this. And, unfortunately, the penalties that are imposed are sigVerDate 0ct 09 2002 09:44 Oct 28, 2002 Jkt 010199 PO 00000 Frm 00048 Fmt 6633 Sfmt 6602 W:\DISC\80673 80673
45

nificant, and there is not a lot of incentive not to follow the guidance or follow the cookbook. 

Mr. SAWYER. Everybody has talked about flexibility, and some of 

you have talked about the importance of market-based trading systems. 

Could you care to comment—would any of you care to comment 

on the efficacy of such systems in dealing with mercury? No? 

Mr. NICHOLSON. Well, I think just a quick reaction, I know people do get excited about that prospect, maybe in both directions. 

But a lot of people feel like that given the immediate area health 

concerns that maybe that is not the right course to follow. 

We haven’t, in North Carolina, given it a lot of thought yet, even 

though our bill, our Clean Smokestacks Bill, has a provision where 

we are to study the issues of need for control further than what 

we may get with our scrubbers for the SO2, which we hope to get 

a considerable co-benefit. But we are to report back to the legislature in 2005 with recommendations on what to do about mercury 

beyond what we might otherwise be getting. 

But we are allowing trading within the State for the SO2 control. 

So this will be an issue we will have to study. I think, though, any 

program that would allow trading must necessarily have a provision that allows for protection of local impacts, assuming we can 

learn enough to understand how to do that. That could very well 

be an issue, and what are those impacts and the nature of them. 

Mr. SAWYER. Thank you. 

Mr. SHIMKUS. The Acting Chair now turns to the chairman of the 

subcommittee, Mr. Barton, for 5 minutes. 

Mr. BARTON. Thank you, Mr. Chairman. I enjoy being down here. 

I can throw bombs from here. You know, I can’t—I have to be responsible when I am sitting where you are sitting. 

I want to commend our panel today. We have worked very hard 

to try to get a balanced panel of State and local input on the Clean 

Air Act. And I have read your testimony, and I have listened to 

some of the answers to the questions, and I just want to compliment each of you individually for being here. 

I have a general question, and then I have some specific questions. My general question, which is open to all of you, we have a—

I think our representative from Utah put it best, that the basic 

model of State, Federal, and local interaction, or that Federal set 

the standard but we ask the States and locals to help implement 

it, with kind of a negotiation or a cooperative approach, it works, 

but it works very cumbersomely. 

One of the things that the Feds have which causes a lot of consternation at your level is this ability to threaten these huge fines 

and the withholding of highway funds if you don’t do certain 

things. Now, those threats are normally made by some mid-level, 

non-responsible EPA representatives, so that if your level complains to my level, and my level complains to the EPA, the EPA 

says, ‘‘We didn’t do that,’’ because it didn’t come from the person 

who could actually impose the fine or withhold the funds. 

We have to have some hammers. So my general question—and 

if you all can’t give us an answer today, if you want to talk to your 

association groups—I would be very interested in an alternative 

46

hammer. In other words, doing away with the withholding of highway funds or the threat of withholding of highway funds. 

If we were to eliminate that, but still need some sanction weapon, some sanction instrument in the Federal arsenal, what would 

that be? How could we maintain the general model yet eliminate 

the highway fund withholding and maybe these huge fines, but still 

give the Federal Government some ability to sanction its State and 

local governments—just refuse to cooperate. 

If you all want to take a stab at it right now on the record, fine. 

If you want to think about it and get back to us in writing, that 

is fine, too. But that is my general question. I think, Mr. Jones, you 

have got a comment. 

Mr. JONES. Mr. Barton, I am the sixth kid in my family, and our 

negotiations with the U.S. EPA are a lot like when I negotiate with 

my older brothers. 

Mr. BARTON. Big brother, huh? 

Mr. JONES. Yes, I can negotiate, but that is my big brother and 

they are going to win. And I think without talking to my colleagues 

at ECOS, I think part of it is the incentive side of it. Other than 

the intrinsic value of cleaning the environment, you don’t necessarily gain anything by doing more or meeting the deadlines. 

And there is certainly an intrinsic value to improved environmental conditions, but beyond that there is a big hammer and not 

sort of a co-equal incentive on the other end. 

Mr. BARTON. Well, it is a hammer that is seldom used. But it is 

often intimated that it will be used. So what I am looking for is 

something that you may not threaten it as often, but if the State 

and locals don’t cooperate, you could actually use it, but the highway thing just seems like a nuclear bomb. I mean, and in Texas 

when, you know, cars stalled in traffic in the Dallas/Ft. Worth area 

probably are 60 percent of the emissions problem, it doesn’t make 

a lot of sense to withhold highway funding, which is going to make 

the problem even worse. 

Does anybody else want to comment on it before I go into my 

specifics? Let the record show they are all shaking their heads no. 

I want to ask the gentleman from Colorado, one of your citizens 

12, 13, 14 years ago, when we did the Clean Air Act, came to me 

with an idea for remote sensing, which some—I think in its commercial form is called the Smog Dog. EPA has pretty well fought 

that tooth and nail in terms of giving credits for using it. But good 

ideas actually do work, and that technology does work, and it has 

been used in some parts of the country. Colorado has used it some. 

What would you recommend we do if we—when we do legislative 

revisions to the Clean Air Act to perhaps increase the availability 

of that as a solution to some of the issues that we are trying to address? 

Mr. LEMPKE. Thank you. The Denver metro area, as a serious 

carbon monoxide non-attainment area, was required under the 

statute to implement an enhanced inspection and maintenance program, when we fully had available a remote sensing technology 

that we could have looked at to implement instead of an enhanced 

vehicle inspection and maintenance program. 

The reason that we were termed serious is not because we had 

such excess violations. It was really because we had a lag in the 

47

time of turning in a plan to show long-term compliance. I think 

that if Congress or EPA were to act by statute or regulation, it 

would simply be to provide the opportunity under the rules or the 

provisions to allow for the implementation and the use of clean 

screening in either of those two fashions, or the implementation of 

remote sensing in either of those two fashions, sort of in the identification of clean vehicles and screening them out of the fleet, or 

identifying the high emitters. That technology has—or that process 

has a little bit more of a challenge I think on implementation, but 

it is still out there and seems to be, from our perspective, pretty 

viable. 

Mr. BARTON. Okay. My time has expired. I am going to—I may 

have a wrap up question when we get back from the vote. We will 

go to the other side. 

I do want to let you know one thing. We are going to do a number of hearings on the Clean Air Act. We are not going to rush to 

judgment one way or the other. But when we get ready to go to 

possible legislative solutions, you know, I am really going to encourage members of this subcommittee to work with their State 

and local officials to come up with constructive improvements. 

If we are going to continue to get the air quality cleaner and 

cleaner, which we all want to do, we have got to depend upon people at your level to give us real world potential solutions, because 

they will not come from this town. They are only going to come 

from people that are there on the streets every day trying to make 

the Clean Air Act work. 

So while we don’t have a lot of members here, this hearing and 

the follow up to it is one of the most important hearings we are 

going to do in terms of looking at the Clean Air Act. And I yield 

back. 

Mr. SHIMKUS. Thank you, Mr. Chairman. 

I would just say on the remote sensing, I know the State of Missouri uses it on exit ramps. I am from Illinois, but I travel through 

there, and they bill—they just send the passing form to their citizen. And sometimes the citizens forget to send in the money. So 

even though they have been told they passed, they haven’t paid for 

the certification that they passed the test. But it is a—it is working 

in the State of Missouri from what I understand. 

I would like to yield to my other colleague from the State of 

Ohio, Mr. Strickland, for 5 minutes. 

Mr. STRICKLAND. Thank you, Mr. Chairman. 

Mr. Jones, I will ask you a question on today’s topic. But before 

I do that, I would just like to ask one question regarding the issue 

that I brought up in my opening statement regarding DOE’s plan 

to ship this what I would call waste—they may choose to call it 

something else—to the Portsmouth site. Has DOE discussed that 

with you, to your knowledge? 

Mr. JONES. Well, Mr. Strickland, we have had general discussions with DOE at the Ohio field office level, but not in particular. 

I did have people at the meeting last night. We have already been 

in touch with a couple other States, Representative Portman’s office. We don’t believe any additional shipments should occur until 

we get very clear decisions made by DOE to fulfill what we believe, 

48

as you do, is the commitment to plants. And we are very concerned 

about where this is going. 

We have expressed that a number of times to the Secretary, and 

we will continue to press it. But we certainly share your concern. 

The Governor has been very involved in trying to work through 

this situation, as you have, and we very much appreciate your support as well. But we very much plan to comment on the meeting 

last night. 

Mr. STRICKLAND. Thank you, sir. It is very reassuring to hear 

you say that. 

The only question that I have, and I know my friend Mr. Markey 

probably has lots of questions that he wants to ask, so I am just 

going to ask one question, and then, Mr. Markey, if you would like, 

I will yield the remainder of my time to you. 

You have indicated in your testimony that the Title V permitting 

process is a problem because there have been decisions to change 

forces in the middle of the stream, so to speak, and that a program 

that Ohio had that was considered sufficient, even a model program perhaps, is now being looked upon as a model—or as an effort that is inefficient or deficient and may be—you know, although 

the law hasn’t changed, you know, you are being judged in a different kind of way. 

And I am wondering if you would just make a statement about 

that, and I am wondering if the others feel—if they are confronted 

with the same kind of dilemma—result of changing expectations 

after you have made good faith efforts to comply in every way. 

Mr. JONES. Actually, I think part of the frustration with changing it is that, obviously, we haven’t done the most complicated Title 

V permits yet. We still have additional fairly complex permits, the 

utility permits, some of the refinery permits that have to be done. 

Part of this process was building up an ability to do Title V permits, the training that goes into learning how to do that, to prepare 

you to do the really complex ones. 

Well, 6 years ago we had a fully delegated program, and last November we got a letter that basically says seven different parts of 

your program, although they haven’t changed, are now deficient. 

And when I look at them, some of them are, in my mind, kind of 

silly. I mean, we—the comment was, we don’t require a report to 

appear in our 6-month reports. 

Well, right, we require them in a quarterly report. It strikes me 

that is a little more frequent. Doesn’t make sense that that is a deficiency, but that is something that we have to then go through the 

rulemaking process at the State level, which involves public hearings, comment period, responsiveness to comments, then the legislative process, to approve rules. 

So it doesn’t do anything to help us get these permits done in a 

timely manner, and I think everybody here shares the same problem. We haven’t met the deadline. We are trying to meet the deadline. We have got—we have submitted a new schedule to U.S. EPA 

to try to actually beat the next deadline. When you change programs in the middle, it is going to make it hard for us to meet that 

deadline. 

Mr. STRICKLAND. Thank you. 

49

I yield back my time to the Chair. If Mr. Markey wants it, I 

would be happy to yield it to him. 

Mr. SHIMKUS. The gentleman is recognized for 25 seconds. 

Mr. MARKEY. Thank you, Mr. Chairman, very much. 

You know what is interesting is that everyone comes here, they 

wait in line, and then they watch it on the screen up there. 

You know, like they could sit back in their office and watch it 

on WebTV, you know, Webcast. But that way they wouldn’t be able 

to tell everyone back in the office who else was there. Okay? So I 

think that is the only reason people come now, because they are 

only coming and getting a good view, you know, of the screen. But 

they can go home and say who—what other interests were represented in the room that the TV didn’t pick up. 

Anyway, I thank you, Mr. Chairman. 

It is an interesting phenomena, though, watching where people’s 

eyes are during the testimony. 

So we have this problem in New England. We are not represented on this panel, first of all, so we begin there. So we will 

have to try to construct, to some extent, the position that—— Mr. SHIMKUS. The Chair would hate to interrupt my friend and 

colleague, but we are already 30 seconds over the final end of Mr. 

Strickland’s time. If you would allow me to move back to regular 

order, I will try and make my questions real quick, so that you 

would have time to ask yours. 

Mr. MARKEY. Oh, sure. Have you—you haven’t recognized yourself yet? 

Mr. SHIMKUS. I always defer to my colleagues. 

Mr. MARKEY. Oh, no. I didn’t know that you hadn’t asked—— Mr. SHIMKUS. No, we are still—we still have Mr. Whitfield and 

myself, and we are bouncing back and forth. 

Mr. MARKEY. Oh, I did not know that. I did not know that. Okay. 

Mr. SHIMKUS. And I will be quick. I wanted to ask Ms. Nielson, 

based upon the May 24 DC Court of Appeals decision recently on 

the EPA’s regional haze, can you please clarify whether the recent 

Appeals decision will inhibit the WRAP Annex or the States that 

are parties to the Annex from moving forward to address regional 

haze and visibility issues in the west? 

Ms. NIELSON. Mr. Chairman, I don’t believe it will impact the 

Annex or the Section 309 programs. The Annex, in fact, includes 

a set of milestones which are specifically designated within the rule 

that is now out for public comment and a backstop trading program, both of which will assure that we make reasonable progress. 

So I believe that the Annex could go forward through rulemaking. We hope EPA will adopt it promptly, because, as I indicated in my testimony, that needs to be in place for us to submit 

SIPs by the end of December 2003. And that with that rule in place 

that the Section 309 program, as the State of Utah looks at it, 

could go forward. 

Mr. SHIMKUS. Great. Thank you. 

Mr. Lempke, I am also very interested in New Source Review, 

and I think in your testimony you talk about some of the problems 

of the limitations. Can you readdress that for us? 

Mr. LEMPKE. Thank you. Some of the primary problems that we 

have had in New Source Review is with the guidance documents. 

50

EPA has issued several interpretations, memoranda of interpretation with regard to how the New Source Review Program is implemented. And some of these guidance documents and memoranda 

are even conflicting with themselves. 

It has been very difficult for the State of Colorado to implement 

some of the New Source Review provisions and comply with the 

guidance also. 

Mr. SHIMKUS. Go ahead and just continue talking. We are used 

to them. 

Mr. LEMPKE. So it is—some of the provisions of the New Source 

Review Program, in regards to the guidance, have been most difficult for Colorado. 

Mr. SHIMKUS. Thank you. And if I can get Mr. Markey back in 

here, I will give him some of my final time. 

And, Mr. Whitfield, is he—Mr. Whitfield, for the sake of time, I 

will just yield my remaining 21⁄2 minutes to you. And if you can 

pick up on your questions. 

Mr. WHITFIELD. Well, I had a number of questions, Mr. Chairman, but we are voting. I have got somebody out here, and I know 

these people have been very patient. But we will have a number 

of other hearings on this, but one issue that I want to just touch 

on briefly—on this issue of non-attainment, how is it determined 

in each State where monitors are placed to determine if a particular county or a city is in non-attainment or in attainment? 

Mr. NICHOLSON. I will try to answer that. Brock Nicholson. There 

are criteria that EPA suggests that States use in terms of locating 

monitors to cover population, types of areas, whether it be rural or 

urban, and then the States also place monitors to support modeling 

demonstrations or gather data to understand the impacts of urban 

areas. In fact, that is one of our problems in terms of designation 

of areas. 

We have what we think have been good technical reasons to do 

these models properly, placed monitors downwind of urban areas, 

typically in rural areas. And, of course, one of the issues that we 

are facing is once we measure a violation in that rural area, even 

though we think it properly represents the upwind urban area, 

which may be 30, 40—20 to maybe 60 miles away, that it properly 

indicates the problem from the urban area, not necessarily the—

suggesting a strategy is necessary specifically for that rural area, 

even though it does indicate, you know, population exposure and 

non-attainment there. So that is one of our issues. 

In terms of the recommendations we are suggesting for areas of 

violation and areas of influence, that kind of approach could help 

better address that issue than a one-size-fits-all, whole counties, 

whole MSAs. 

Mr. WHITFIELD. Well, how many monitors does the State of 

North Carolina have? 

Mr. NICHOLSON. We have—for ozone, we have a fairly extensive 

network, and we have anywhere from 44 to 47 a year—operating 

a year statewide. This is ozone monitors. And about a comparable 

number of PM fine. 

Mr. WHITFIELD. And, Mr. Williams, in Louisville, how many 

monitors are there in Louisville? 

51

Mr. WILLIAMS. Mr. Whitfield, we have three monitors in Jefferson County, and then we have one each in Clark and Floyd and 

Southern Indiana, one in Bullitt, and one in Oldham. So we have 

a total of seven in the non-attainment area. 

Mr. BARTON. [presiding] The gentleman’s time has expired. 

Mr. WHITFIELD. Okay. 

Mr. BARTON. If there are any other questions, put them in the 

record. We have got—recognize Mr. Markey for 5 minutes, and, if 

no other member shows up, then that will be our last in-person 

questioner, and we will adjourn. 

Mr. Markey for 5 minutes. 

Mr. MARKEY. Thank you, Mr. Chairman, very much. 

There is no New Englander on the panel. Just the way the winds 

blow, much of what happens in a big chunk of the country just 

blows the bad air over New England. That is just the way the air 

currents work. 

And so it is a little bit like being in a restaurant and having 10 

guys over there on that side of the restaurant decide they are going 

to all break out cigars after dinner. And there is a fan right behind 

them blowing it all the way across the other side of the room toward you, and you are still eating dessert. And somebody goes over 

to complain, and they go, you know, ‘‘Cut it out. You know what 

I mean? We have got a right to smoke cigars. You know? It is a 

free country.’’ And so, you know, you decide you are going to start 

a movement to ban smoking in restaurants, you know, because you 

get very upset with them because they are not being respectful of 

what is happening with that fan blowing the smoke in your face. 

That is what happens to us, so we get a little bit upset by it and 

pretending that it has no impact on us. 

Mr. Nicholson, in your testimony, you touched on the need for 

stringent national standards for pollution sources contributing to 

problems beyond their State and regional borders. What parts, very 

quickly, of the Clean Air Act have helped control this interstate 

pollution problem? 

Mr. NICHOLSON. Well, I think that is correct. I do believe that 

we need national rules to help take care of this issue, even though 

we may have differences of opinion on the extent to which longrange transport occurs. Our results of our analyses suggest that we 

do need, under the national program, control across the Nation to 

deal with this issue, not necessarily—— Mr. MARKEY. What have you learned from the Southern Appalachian Mountains Initiative that could be helpful? 

Mr. NICHOLSON. I think a key thing we have learned is that it 

is important to control in every State. Each State gets the greatest 

benefit from control in its own State, with some spillover benefit 

to its neighbors. Long-range transport is not as long-range as we 

had originally thought. It is a significant lesson learned, but necessary to be controlled across the whole region or country to effect 

benefits, even downwind in New England. 

Mr. MARKEY. Mr. Williams, do you agree with Mr. Nicholson? Do 

you agree with Mr. Nicholson as to the limits of how far this pollution can travel? 

Mr. WILLIAMS. Well, I assume he is talking primarily about 

ozone. I think ozone has a several hundred mile reach, based on 

52

the studies I have seen coming out of the Ozone Transport Commission. And certainly Section 126 of the Clean Air Act is an important mechanism that has been used in the northeast to impose 

obligations in particular on the Midwest of the U.S.—— Mr. MARKEY. So are you saying that you don’t believe that New 

England is affected by—— Mr. WILLIAMS. Oh, no. 

Mr. MARKEY. [continuing] what is coming out of the Midwest? 

Mr. WILLIAMS. No, I am agreeing with you. 

Mr. MARKEY. Oh, you are agreeing with me. 

Mr. WILLIAMS. Yes. 

Mr. MARKEY. Okay. So do you agree with that as well, Mr. Nicholson, that we are affected in New England by what happens in the 

Midwest? 

Mr. NICHOLSON. Well, I think it is a matter of degree. I am not 

saying that all of New England’s problems only come out of the 

Midwest. There may be days on which there are reasonable contributions. I think what is important is every State intervening between the Midwest and the New England area needs to control, to 

a significant degree, and I think if everybody does their share then 

we will all be better because of that. 

Mr. MARKEY. We now have 8 million children in the United 

States with asthma, 16 million adults, 24 million Americans with 

asthma all together, and the number just continues to skyrocket. 

And we know it is logically related to the air that people breathe 

in their lungs, and obviously this is about as serious a health care 

problem as you could have. 

Mr. Williams, New England regulators have also expressed 

strong support for the New Source Review Program. They believe 

that New Source Review has led to significant advancements in 

pollution control and that these advancements would not have 

come about without technology control-based regulation. Do you 

agree with that assessment? 

Mr. WILLIAMS. Yes. STAPPA/ALAPCO agrees with that assessment. 

Mr. MARKEY. Now, as you know, the administration’s Clear Skies 

proposal is linked to elimination of the New Source Review Program. Jeffrey Holmstead, EPA Assistant Administrator for Air and 

Radiation, has said that New Source Review would provide no benefits, and even would be counterproductive with an emission trading system. Do you agree or disagree with Mr. Holmstead? 

Mr. WILLIAMS. We have had over 10 years of involvement with 

EPA and other key stakeholders working on NSR reform. We clearly believe that NSR should be reformed, that there are opportunities for improvement. We believe it should be retained and improved. 

Mr. MARKEY. He says that there are no benefits, and it would be 

counterproductive to have a New Source Review. Do you agree or 

disagree with Mr. Holmstead? 

Mr. WILLIAMS. I would tend to disagree with that. 

Mr. MARKEY. Disagree. Okay. Hasn’t New Source Review and the 

acid rain program also, and emissions trading program, same concept, successfully coexisted since the 1990 amendments to the 

Clean Air Act? 

53

Mr. WILLIAMS. Yes. 

Mr. MARKEY. Yes. Isn’t it necessary to maintain the New Source 

Review Program in any national emissions trading program in 

order to protect local and regional public health? 

Mr. WILLIAMS. Our associations believe that is true. 

Mr. MARKEY. Yes. How about you, Mr. Nicholson? 

Mr. NICHOLSON. Well, I think certainly a form of New Source Review should remain. Whether it is the existing one, that is a good 

question to look at. 

Mr. MARKEY. Do you disagree with Jeffrey Holmstead when he 

says that the New Source Review would provide no benefits and 

even would be counterproductive? Do you agree or disagree with 

that? 

Mr. NICHOLSON. Well, whether or not I agree or disagree, I don’t 

understand the basis of his comment. So I guess I cannot comment 

on that. 

Mr. MARKEY. If those were his comments, would you disagree? 

Mr. NICHOLSON. I would tend to disagree with that. 

Mr. MARKEY. Tend to disagree. 

Mr. NICHOLSON. Yes. 

Mr. MARKEY. Okay. So, Mr. Chairman, I know that time is of the 

essence here, and there is a roll call on the floor. Again, I think 

this is the No. 1 public health issue in the country, and I think 

that we just have to deal with the fact that we are shortening the 

life expectancy of millions of people even as we are funding NIH 

to solve, you know, the—to find the clues to diseases. 

Simultaneously, we have a program which creates disease, and 

I am afraid that increasingly we are finding that in most—in 

many, many cancers that the links are environmental and not genetic. And, in fact, only 10 percent of cancer is, in fact, genetic. 

That most of it comes from some other place in our economy. 

And since we also know that Japanese women, for example, contract breast cancer at only one-quarter of the rate as American 

women, but within one generation after coming to America they 

contract it at the same rate as American women, then there is 

something in our environment. There is something in what we do 

in this country. And I think this is a big part of it, the way in 

which we treat emissions from these powerplants and from automobiles as well. 

Mr. Chairman, I yield back the balance of my time. 

Mr. BARTON. I thank the gentleman from Massachusetts. We will 

have other written questions for the record. I want to, again, thank 

each of the panelists for your excellent testimony and participation. 

We will be in touch. 

This hearing is adjourned. 

[Whereupon, at 3:44 p.m., the subcommittee was adjourned.] 

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