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61–975 PDF 2012

S. HRG. 110–1100 

REVIEW OF EPA’S PROPOSED REVISION TO THE 

OZONE NAAQS 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CLEAN AIR AND NUCLEAR 

SAFETY 

OF THE

COMMITTEE ON ENVIRONMENT AND 

PUBLIC WORKS 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

July 11, 2007 

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

( 

Available via the World Wide Web: http://www.access.gpo.gov 
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

BARBARA BOXER, California, Chairman 

MAX BAUCUS, Montana 

JOSEPH I. LIEBERMAN, Connecticut 

THOMAS R. CARPER, Delaware 

HILLARY RODHAM CLINTON, New York 

FRANK R. LAUTENBERG, New Jersey 

BENJAMIN L. CARDIN, Maryland 

BERNARD SANDERS, Vermont 

AMY KLOBUCHAR, Minnesota 

SHELDON WHITEHOUSE, Rhode Island 

JAMES M. INHOFE, Oklahoma 

JOHN W. WARNER, Virginia 

GEORGE V. VOINOVICH, Ohio 

JOHNNY ISAKSON, Georgia 

DAVID VITTER, Louisiana 

JOHN BARRASSO, Wyoming1

LARRY E. CRAIG, Idaho 

LAMAR ALEXANDER, Tennessee 

CHRISTOPHER S. BOND, Missouri 

BETTINA POIRIER, Majority Staff Director and Chief Counsel 

ANDREW WHEELER, Minority Staff Director 

SUBCOMMITTEE ON CLEAN AIR AND NUCLEAR SAFETY

THOMAS R. CARPER, Delaware, Chairman 

JOSEPH I. LIEBERMAN, Connecticut 

HILLARY RODHAM CLINTON, New York 

BERNARD SANDERS, Vermont 

BARBARA BOXER, California, (ex officio) 

GEORGE V. VOINOVICH, Ohio, 

JOHNNY ISAKSON, Georgia 

LAMAR ALEXANDER, Tennessee 

JAMES M. INHOFE, Oklahoma, (ex officio) 

1Note: During the 110th Congress, Senator Craig Thomas, of Wyoming, 

passed away on June 4, 2007. Senator John Barrasso, of Wyoming, joined 

the committee on July 10, 2007. 
(III) 

C O N T E N T S 

Page 

JULY 11, 2007 

OPENING STATEMENTS 

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware .................. 1 

Voinovich, Hon. George, U.S. Senator from the State of Ohio ............................ 3 

Boxer, Hon. Barbara, U.S. Senator from the State of California ....................... 5 

Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma .................... 9 

WITNESSES: 

Johnson, Stephen L., Administrator, U.S. Environmental Protection Agency ... 12 

Bell, Michelle L. PhD., Assistant Professor of Environmental Health, School 

of Forestry and Environmental Studies, Yale University ................................ 45 

Werner, James D., Director, Air and Waste Management Division, Department of Natural Resources and Environmental Control, State of Delaware .. 49 

Patton, Vickie, Deputy General Counsel, Environmental Defense ..................... 62 

McClellan, Roger O., Advisor, Toxicology and Human Health Risk Analysis .... 73 

Grace, George L., Mayor, St. Gabriel, LA and President, National Conference 

of Black Mayors .................................................................................................... 99 

ADDITIONAL MATERIAL 

Statements: 

American Road and Transportation Builders Association (ARTBA) ............ 108 

Department of Statistics and Operations Research ....................................... 112 

(1) 

REVIEW OF EPW’S PROPOSED REVISION TO 

THE OZONE NAAQS 

TUESDAY, JULY 11, 2007 

U.S. SENATE, COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS, SUBCOMMITTEE ON CLEAN AIR AND NUCLEAR SAFETY

Washington, DC. 

The subcommittee met, pursuant to notice, at 10 o’clock a.m. in 

room 406, Dirksen Senate Office Building, Hon. Thomas R. Carper 

(chairman of the committee) presiding. 

Present: Senators Carper, Voinovich, Boxer, Inhofe 

OPENING STATEMENT OF HON. THOMAS R. CARPER, 

U.S. SENATOR FROM THE STATE OF DELAWARE 

Senator CARPER. The hearing will come to order. Welcome, everyone. 

Today’s hearing, as we know, is on the EPA’s recent proposal to 

tighten, the strengthen, I believe, the National Air Quality Standard for Ground Level Ozone. Our Senators will have, each of us 

will have 5 minutes for opening statements. Then I will recognize 

Administrator Johnson from EPA to offer his testimony to our 

Committee. We will subject him to two rounds of questions following his statement, and then we will ask our second panel to 

come forward and present their testimonies and we will query 

them as well. 

I understand that we have a vote coming up at 11:30, and if we 

are smart, and can do our job well, we can conclude this hearing 

right in time to be able to get over and vote, to do justice here to 

this important subject and also to fulfill our responsibilities in the 

Senate chamber itself. 

Let me begin with an opening statement, then I will defer to my 

friend and colleague, Senator Voinovich, and we will abide after 

that, Senator Boxer, Senator Inhofe and then by the early bird 

rule. 

Since the Clean Air Act was first passed into law, we have made 

significant environmental progress in this Country. But our work 

is not over. In Delaware, our entire State exceeds EPA’s health 

standards for ozone. And New Castle County, which is where I live, 

in northern Delaware, doesn’t meet EPA standards for fine particulate matter. According to a recent survey, during each of the summer months when ozone pollution is at its worst in our part of the 

Country, over 10,000 adult Delawareans are unable to work or 

carry out daily activities for at least one or more days per year. 

And that is just in one small State, my home State. The dirty air 
2 

that millions of Americans are being forced to breathe is costing us 

dearly. 

The National Association of Manufacturers released a publication 

in March that some of us may have seen. It is entitled Health Care 

Cost Crisis. The publication states that the rising cost of health 

coverage is one of the biggest challenges that manufacturers face 

today. I am sure that most of us would agree. In fact, I am going 

to ask unanimous consent to enter their statement into the record, 

without objection. 

[The referenced material was not received at time of print.] 

Senator CARPER. In terms of solutions, the first quick fix that the 

National Association of Manufacturers offers is the following: intensively managing chronic health care conditions, such as diabetes, hypertension, asthma, saying that we can generate substantial 

cost savings and increase productivity at the same time. 

The health care costs of asthma are staggering. In Delaware each 

year, one out of three adults with asthma will visit the hospital one 

or more times. And one out of five adults with asthma reported one 

or more visits to an emergency room or an urgent care center because of their asthma during the course of the year. In a report titled The Burden of Asthma in Delaware, Delaware’s Division of 

Public Health determined the total statewide charges for asthma 

treatment and medication could be as high as $25 million to $30 

million a year. That is just in a small State with fewer than a million people. But in my State, that is real money. 

When I was privileged to be Governor of Delaware, I discovered 

that the costs of breathing dirty air are a far heavier burden on 

our economy than the costs of air pollution controls. Setting air 

quality standards to protect our citizens from the physical and economic burdens of dirty air is an important step. 

However, setting more stringent national standards must be coupled with a national strategy to achieve them. That is why I feel 

that the enactment of legislation that a number of my colleagues 

have joined me in introducing, the Clean Air Planning Act, or legislation similar to it, is so important. Some of you know, our bill will 

require significant reductions in sulfur dioxide, nitrogen oxide, 

mercury and CO2 from the largest polluter in this Country, and 

that is our power plants. Specifically, our bill will greatly reduce 

ozone pollution. It requires that the emission of nitrogen oxide from 

power plants be cut from 5 million tons annually to about 1.7 million tons annually by 2015. With these reductions in 10 years only 

11 areas in our Nation will then exceed EPA’s health standards for 

ozone, only 11. 

I might add that our proposal also calls for cuts in sulfur dioxide 

emissions by some 82 percent by 2015. As you know, sulfur dioxide 

pollution causes several chronic health problems. I won’t elaborate, 

but we are familiar with many of them. 

According to EPA, our proposal would cut the number of areas 

currently in non-attainment for particulate matter by over 70 percent by 2010. I commend you, Administrator Johnson, for realizing 

that more needs to be done to radically protect public health from 

ozone and for proposing to do something about it by strengthening 

the current standards. Let me implore you, though, to make sure 
3 

1(the Behavioral Risk Factor Survey is an annual survey of Delaware’s adult population about 

behaviors which affect risk of disease and disability). 

that your decision follows the scientific advice given to you by your 

staff and by the Clean Air Scientific Advisory Committee. 

Last, let me encourage you to work with this Committee to develop a national strategy to achieve those standards. With that 

having been said, I will turn to my friend, Senator Voinovich, for 

his statement. 

[The prepared statement of Senator Carper follows:] 

STATEMENT OF HON. THOMAS R. CARPER, U.S. SENATOR FROM THE

STATE OF DELAWARE

Since the Clean Air Act was first passed into law we have made significant environmental progress. But our work is not over. In Delaware, the entire State exceeds 

EPA’s health standards for ozone, and New Castle County doesn’t meet EPA’s 

standard for fine particulate matter. According to a recent survey1, during each of 

the summer months when ozone pollution is at its worst over 10,000 adult Delawareans are unable to work or carry out daily activities for one or more days. And 

that’s just in my small, home State. The dirty air millions of Americans are being 

forced to breathe is costing us dearly. 

The National Association of Manufacturers released a publication in March titled 

Health Care Cost Crisis. The publication states ‘‘the rising cost of health coverage 

is one of the biggest challenges manufacturers face today.’’ In terms of solutions, the 

first ‘‘quick fix’’ the NAM offers is the following: ‘‘Intensively managing chronic 

health care conditions (e.g. diabetes, hypertension, asthma) can generate substantial 

cost savings and increase productivity.’’ 

The health care costs of asthma are staggering. In Delaware, each year, about 32 

percent of adults with asthma must visit the doctor one or more times. And 19 percent reported one or more visits to an emergency room or urgent care center because 

of asthma. In a report titled, The Burden of Asthma in Delaware, Delaware’s Division of Public Health determined that total statewide charges for asthma treatment 

and medications could be as high as $25 to $30 million a year. 

In my small State, that is real money. While I was Governor, I discovered that 

the costs of breathing dirty air are a far heavier burden on our economy than the 

costs of air pollution controls. Setting air quality standards to protect our citizens 

from the physical and economic burdens of dirty air is an important step. 

However, setting more stringent national standards must be coupled with a national strategy to achieve them. That is why I feel my legislation, the Clean Air 

Planning Act, is so important. It will require significant reductions from the largest 

polluters in the country—power plants. Specifically, my bill will greatly reduce 

ozone pollution. It will cut nitrogen oxide from 5 million tons today to 1.7 million 

tons in 2015. With these reductions in 10 years only 11 areas in the Nation will 

exceed EPA’s health standards for ozone. 

My proposal will also cut sulfur dioxide emissions by 82 percent by 2015. Sulfur 

dioxide pollution causes several chronic health problems. According to EPA, my proposal would cut the number of areas currently in nonattainment for particulate matter by over 70 percent by 2010. I commend you, Administrator Johnson, for realizing 

that more needs to be done to adequately protect public health, and proposing to 

strengthen the current standard. I would implore you to make sure your decision 

follows the scientific advice given to you by your staff and by the Clean Air Science 

Advisory Committee. And last, I encourage you to work with this committee to develop the national strategies to achieve these standards. 

OPENING STATEMENT OF HON. GEORGE VOINOVICH, 

U.S. SENATOR FROM THE STATE OF OHIO 

Senator VOINOVICH. Thank you, Senator Carper. Thanks for 

holding this hearing today on the EPA’s review of the National Ambient Air Quality Standards. I hope it will provide us with some 

real good debate as the agency determines whether to retain or 

amend the current standards. 

Administrator Johnson, I appreciate your being here to share 

your thoughts on the agency’s review. I appreciate all of the con-
4 

versations that we have had over the last number of months. I look 

forward to your comments. I would also like to thank the other 

panelists for being here today to share their perspective on this important rulemaking. EPA’s review of the ozone NAAQS should not 

be taken lightly. The NAAQS standards have been instrumental in 

improving our Nation’s air quality. That is right, air quality has 

been steadily improving in the U.S. between 1970 and 2005, total 

emissions of the six NAAQS pollutants have dropped by 53 percent. 

And measured ambient air concentrations of ozone have dropped 20 

percent since 1980. This is while our gross domestic product, vehicle miles traveled, energy consumption and population have increased substantially. 

So basically, our economy has been growing quite nicely, and at 

the same time, we have been doing a halfway decent job of reducing the six most harmful pollutants. 

The gains are impressive and we want to improve upon them. 

But as a policy matter, we should weigh additional gains against 

the overall costs to communities. By now we should all be well 

aware that economic burdens associated with complying with more 

stringent standards could fall disproportionately on those least able 

to pay. It really gets into weighing these things that are difficult. 

Senator Carper did an eloquent job of explaining the health and 

hazmat impact and that. I wrote a note down to get the information that we have in Ohio. You have that right there, and then you 

have the other costs of this. And even though you are not able to 

weigh them, that you have to figure out just what makes the most 

sense. 

And today, for example, there are 391 counties that are out of 

compliance with the standards. Twenty-five of those are in my 

State. EPA is now considering revising those standards. Even before the States implement programs to meet the current standards, 

State implementation plans for the current standards were due to 

the EPA just last month. In fact, from what I have heard from the 

folks in Ohio, they are unsure the targets can be met. And we are 

talking about the current ones, not the new ones. 

If EPA increases the stringency of the ozone standard during this 

review, it will again hamper States with a new and more difficult 

target before the current standard is attained. The agency will 

have allowed no time to evaluate the environmental benefits and 

economic impacts of attaining the standard we have today. Since 

some may not be aware, but standards at the lower end of the 

range now under consideration would nearly triple the number of 

non-attainment counties across the U.S. Ohio could see as many as 

half our 88 counties designated as non-attainment. EPA claims 

that Federal programs such as the Clean Air InterState Rule and 

the new diesel fuel and engine regulations will bring most of the 

counties into attainment without additional local effort. 

While Federal rules may help in some areas, I am concerned that 

EPA is trivializing the impact of being designated non-attainment 

in the first place. The negative effects of non-attainment designations are real. I am very familiar with the difficult decisions that 

must be made by each State to comply with them. As a former Governor who brought Ohio’s counties into attainment, I know firsthand that this is an extremely complicated and resource-intensive 
5 

task. A non-attainment designation directly affects a community’s 

economic viability. 

The bottom line is that you have businesses that are there and 

you want them to expand. But if the costs of the emissions control 

are such that they feel they are excessive, you will find that they 

will locate somewhere else. And for sure I know, from my experience as Governor, that if you have, and you are in non-attainment, 

there are companies that come and they will just fly over your 

State and go somewhere else, because they don’t want to be involved with the initial costs of the emissions that are going to be 

required from them. 

I think that, because I don’t want to take too much time here, 

I want to keep within my 5 minutes, you have a difficult job. And 

that is to try and again, weigh environment, economic, energy, try 

to figure out what makes the most sense and are these new rules 

that are going to be put in place really going to achieve additional 

health care benefits that will outweigh the other disincentives that 

would occur as a result of and a cost to people. 

I have people in my town that, for example, their energy cost of 

natural gas is up 300 percent. I am talking about the elderly and 

I am talking about the poor. I think so often when we do some of 

our environmental things, we fail to consider that has an impact 

also on another side of someone’s life. So it is there. 

I will never forget Steubenville, Ohio. This woman came up and 

she spoke broken English and she said, Mr. Voinovich, she said, 

you know, the air is clean. But my children have all moved because 

there are no jobs. So I think there is a balance that we can achieve 

here. I think that is a Solomon-like decision you are going to have 

to make. We want you to do it, as Senator Carper said, based on 

the best information that you can get. 

Thank you. 

Senator CARPER. Thanks, Senator Voinovich. 

Senator Boxer, Madam Chair. 

OPENING STATEMENT OF HON. BARBARA BOXER, 

U.S. SENATOR FROM THE STATE OF CALIFORNIA 

Senator BOXER. Thank you so much, Senator Carper, for scheduling this very important hearing on ozone, often called smog. 

I wanted to pick up on what Senator Voinovich said, because I 

think it is important. According to the law, and the Supreme Court 

decision, the EPA Administrator is not supposed to consider anything but the science and the health. He is not supposed to consider the economics. That is up to us. In Eastern Europe, they 

never paid any attention to the air, and 1 day they just shut it 

down, the whole economy, until they realized that would do it. 

So I think what is important here is the EPA Administrator 

must give us the science and the health. The economics, if we want 

to weigh in and say, we don’t care how many kids have asthma, 

or we are willing to see that number go up, that is up to us. Now, 

I for one, will never take that position. Because in California, asthma is the most common chronic disease among children, in my 

State. Smog kills. And EPA should do everything it can to save 

lives and protect the health of our children and our families. 
6 

Now, what has the EPA expert panel said? And Mr. Johnson and 

I had a phone conversation about this. They unanimously concluded that the current ozone standard will not protect health, period. There isn’t any doubt about it. Smog pollution is a major public health problem nationwide. And again, in my State, leading 

cause of school absences, and the California Air Board estimated 

smog causes 4.7 million school absences a year statewide. 

I would encourage everyone in this room who is interested in this 

to visit a school, any school, any grade, and ask children to raise 

their hand if they have asthma or if they know someone who has 

asthma. You will be stunned to see half to two-thirds of the hands 

go up. I certainly was stunned to see it. 

Now, EPA Administrator Johnson has publicly stated he agrees 

that the current smog standard is not protective. But unfortunately, as we will hear today, EPA’s ozone proposal allows for more 

pollution than the science supports, and it could even leave the current unsafe standard in place, which to me would be the height of 

immorality. The science overwhelmingly supports the closing the 

door on the current standard once and for all. 

But instead of listening to science, as I told the Administrator in 

a conversation we had recently, he seems to be listening to the 

wish lists of the polluters. The final ozone rule must protect clean 

air and public health, period. Because anything less is just unacceptable to the American people. 

This morning, I woke up to the news that China executed the 

head of the FDA over there. And I thought—— 

Senator CARPER. Let me just interrupt. We are not considering 

executing anybody here today. 

[Laughter, side conversations.] 

Senator BOXER. If you allow me to finish—— 

Senator CARPER. We are not going to commute sentences either, 

though, are we? 

Senator BOXER. I was going to go to a very similar place, which 

is that we don’t have people who in these high positions, who are 

on the take from companies and allow unsafe products on the market. Because if we did have that, they would go to jail. 

The point is here, what we need to do is what the Supreme Court 

says, which is to consider health and science. And that is what 

your job is, Mr. Johnson. 

Now, scientists agree EPA needs to adopt a stricter standard to 

protect the health of the public, especially our children. You and 

I share stories of our grandchildren. Those are the kids that we 

have to protect, and the elderly. The National Ambient Air Quality 

Standards are the backbone of the Clean Air Act, and they set the 

maximum level of an air pollutant, such as ozone, that is safe for 

us to breathe. Setting an appropriate standard is crucial to protecting the health of millions of Americans. 

And again, I want to reiterate this, because it is the law. Ever 

since 1970, the Clean Air Act has required that these standards be 

set solely on the basis of the latest available health science. That 

is the job of the EPA. Anything less than that is against the law. 

It is unlawful. And the Supreme Court has recently confirmed that 

these standards are to be set based on science and health effects, 

nothing else. The law says the standards must protect public 
7 

health with an adequate margin of safety. That is, ‘‘The law requires that in setting such standards, EPA shall consider sensitive 

sub-populations,’’ which means children and the elderly. The law 

says the standards must be based on the latest scientific knowledge. 

Now, unfortunately, EPA has failed to heed the unanimous scientific opinion of the expert review panel created under the Clean 

Air Act. They are set up to provide advice regarding these standards. EPA has said it may set the standards at levels above those 

recommended by the review panel and has agreed to take comments about retaining the existing standard. 

When Mr. Johnson and I spoke on the phone, I expressed my disillusionment with that. Because he himself had stated that the current standard is not protective, and yet in the rule, Mr. Chairman, 

he leaves open the door to keep it at the same level. 

So EPA is doing this even though we now know ozone harms 

people at levels below the existing standard. We know that ozone 

leads to a whole pyramid of effects, lost school days, lost work days, 

aggravation of asthma and other chronic lung diseases, susceptibility to infection, reduced lung function, hospital admissions and 

even premature death. 

So the people who are the youngest among us are those most vulnerable, those who stay outside longer. Adults with asthma and 

other lung diseases, older adults and adults who work outdoors are 

also very vulnerable. These facts led the independent review panel 

to say unanimously there is no scientific justification for retaining 

the current standard of 0.08 parts per million, and the panel 

unanimously recommended a range of .060 to .070 parts per mission, as the ozone standard. And yet the proposed range is .070 to 

.075, and again leaving the door open for comments to keep it at 

the 8 level. 

So this is really unacceptable. I would ask unanimous consent to 

place the rest of my statement into the record, because I know you 

want to move forward. But I will again conclude with one sentence, 

which is I know repetitive. It is your job, Mr. Johnson, to set a 

standard that is based on the latest science. The simple act of 

breathing mustn’t threaten anyone’s life, particularly the most vulnerable among us. Thank you. 

[The prepared statement of Senator Boxer follows:] 

STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR FROM THE

STATE OF CALIFORNIA

Thank you, Senator Carper, for scheduling this important hearing on ozone—often 

called smog. It is appropriate that we are discussing today the health threats from 

the ozone air pollution—during a week plagued by ‘‘code orange’’ unhealthy ozone 

level warnings for vulnerable people right here in Washington, and in many other 

parts of the Nation. Smog kills, and EPA should be doing everything it can to save 

lives and protect the health of our children and families. EPA’s own expert panel 

of scientists has unanimously concluded that the current ozone standard won’t protect public health. 

Smog pollution is a major public health problem nationwide, and is often especially severe in my home State of California. It is a leading cause of school absences 

in my state. The California Air Resources Board has estimated that smog causes 

over 4.7 million school absences a year statewide. EPA Administrator Johnson has 

publicly stated that he agrees that the current smog standard is not protective. Unfortunately, as we will hear today, EPA’s ozone proposal allows for more pollution 
8 

than the science supports, and it could even leave the current unsafe standard in 

place. 

The science overwhelmingly supports closing the door on the current standard 

once and for all. Instead of listening to science, the Administrator seems to be listening to the wish lists of polluting industries. The final ozone rule must protect 

clean air and public health, period. Anything less is unacceptable. Scientists agree 

that EPA needs to adopt a stricter standard for ozone to protect the health of the 

public, especially vulnerable citizens including children, people with asthma, and 

the elderly. 

The National Ambient Air Quality Standards are the backbone of the Clean Air 

Act. They set the maximum level of an air pollutant, such as ozone, that is safe for 

us to breathe. Setting an appropriate standard for ozone is crucial to protecting the 

health of millions of Americans. Ever since 1970, the Clean Air Act has required 

that these standards be set solely on the basis of the latest available health 

science.The Supreme Court has recently confirmed that these standards are to be 

set based on science and health effects. 

The law says that the standards must ‘‘protect public health with an adequate 

margin of safety.’’ 

The law requires that in setting such standards, EPA shall consider sensitive subpopulations, which often means children and the elderly. 

The law says that the standards must be based on ‘‘the latest scientific knowledge.’’ 

Unfortunately, EPA has failed to heed the unanimous scientific opinion of the expert review panel created under the Clean Air Act specifically to provide advice regarding these standards. EPA has said that it may set the standard at levels above 

those recommended by the review panel, and has agreed to take comments about 

retaining the existing standard. EPA did this even though we know now that ozone 

harms people at levels below the existing standard. 

We know that ozone leads to a whole ‘‘pyramid’’ of effects, including lost school 

and work days, aggravation of asthma and other chronic lung diseases, increased 

susceptibility to infection, reduced lung function, hospital admissions, and even premature death. All children, but especially asthmatic children and those who are active outdoors, are among the most vulnerable. Adults with asthma and other lung 

disease, older adults and adults who work outdoors are also particularly vulnerable. 

These facts led the independent review panel to say unanimously that ‘‘there is 

no scientific justification for retaining the current [standard] of 0.08 parts per million.’’ As a result, the panel ‘‘unanimously recommends a range of 0.060—0.070 

parts per million’’ as the ozone standard. Yet EPA proposed a standard in the range 

of 0.070—0.075 parts per million. 

EPA’s proposal is unacceptable. This is not the first time in recent months that 

EPA has ignored the science with regard to setting these kinds of standards. At the 

end of last year, EPA refused to revise the annual standard for particulate matter. 

The agency’s own independent scientific review panel had taken the unusual step 

of reconvening to reiterate its advice that the annual standard needed to be tightened, but EPA disregarded its advice. 

EPA has also decided to change its process for setting future ambient air quality 

standards—it will treat the independent review panel like any other commenter and 

it will allow political considerations to intrude into the recommendations made by 

staff scientists based on scientific evidence alone. Playing politics with public health 

is unconscionable. We need an EPA that will, above all else, make sound scientific 

judgments that protect public health and not polluters. 

We need an EPA that will heed the clear words of the Clean Air Act, which call 

for an adequate ‘‘margin of safety’’ to protect ‘‘sensitive subpopulations’’ which include the most vulnerable members of society. We need an EPA that will read the 

clear language of the law in a way that will pass muster in the courts, unlike many 

of EPA’s recent Clean Air Act rules. 

Breathing clean air is not a luxury. EPA’s standards must be set based on the 

latest and best science. The simple act of breathing must not threaten anyone’s 

health or the life, most especially our elderly citizens and children who are least 

able to protect themselves. 

Senator CARPER. Thank you, Madam Chair. 

Senator Inhofe, we are delighted that you are here and you are 

recognized. 
9 

OPENING STATEMENT OF HON. JAMES M. INHOFE, 

U.S. SENATOR FROM THE STATE OF OKLAHOMA 

Senator INHOFE. Thank you, Mr. Chairman. Let me start off by 

saying that EPA’s proposed ozone standard is flawed. If enacted it 

would have enormous consequences for our Nation, with the disadvantaged hardest hit. Defenders of tightening the ozone standard 

will say that the law does not take into account the economic devastation, loss of jobs, and that was stated by Chairman Boxer, and 

I agree, that is what the law says. 

And the ruined the lives that would be left in its wake, but it 

should, this is something that should be changed. We should take 

the responsibility for doing it. Defenders of tightening the standard 

will say that it is not necessary that EPA rely on peer-reviewed 

studies or that those that are peer-reviewed are directly applicable 

to setting an 8-hour ozone standard. But it should, and we should 

demand that they do so. 

The fact is, this proposal is rife with political considerations with 

little thought given to the people who will be forced to endure its 

consequences. We have here today, and by the way, I regret that 

I am not going to be able to be here during that panel, because I 

would like to hear Dr. McClellan. We have a security briefing that 

I have to attend. 

But Dr. McClellan, the past chair of the Clean Air Scientific Advisory Committee, the CASAC, has detailed the many flaws and 

the questionable approaches taken in justification of this proposal. 

The science panel no longer offers its judgment of the scientific integrity of the process but its policy opinions. There are large scientific uncertainties regarding confounding attribution and risk. 

Mr. Administrator, I find it odd that our Government would force 

cities to comply with standards over which they have no control. 

As we regulate almost every city in America under this standard, 

even collectively they cannot control the outcome, because you have 

included emissions form Mexico and Canada. What is truly perverse is that you send jobs over the border and these in turn become emissions that come back into this Country. We know that 

is true, we know that is happening. And we can’t control our borders. We have said many times, air doesn’t know borders. 

I want to turn your attention to this EPA map. Oklahoma, like 

many States, has made tremendous progress, including of its air. 

Not a single county in Oklahoma, look at it, there it is right now, 

that is under the current standards, Oklahoma is clean. We have 

done that. Contrast that with California. Not a single one, Mr. Administrator. Yet your proposal will put virtually every, the entire 

State in non-attainment. 

Hold that other one up just for a second, here. And I think probably, Senator Voinovich, you are being conservative in your estimate as to how many counties will be affected in Ohio. Because 

these are just the monitored counties in Oklahoma, some 12 of 

them. But it would also put out of attainment the surrounding 

counties. We know that our entire State would be out of attainment. Yet we are going from pure white to totally out of attainment. 

Well, anyway, we are hearing testimony today that it will be burdensome on communities if you finalize your proposal, Mr. Admin-
10 

istrator. Let me be clear: lost jobs and closing factories are a health 

risk. As others have said, access to medical care is a health risk. 

In disadvantaged communities, how many people will lose health 

coverage as a result of this rule, Mr. Administrator? If the rebuilding of communities ravaged by Katrina is slowed or stalled, tell me 

how this rule will enhance the quality of the people trying to return their lives to some degree of normalcy? 

I am not asking you to take concerns into account that you are 

not allowed to by law. Instead, I am asking you to see the enormous importance of this decision and to ensure that your decision 

does not go beyond what you are required to do: that is, set the 

standard level requisite to protect the public health. 

I look at this, and I know that we are talking about, I read the 

same thing that Chairman Boxer read about what happened in 

China, and that they actually executed someone. But it was just a 

couple weeks ago in California that Governor Schwarzenegger 

fired, I guess it was the California Air Resources Board chairman, 

because they are not doing a good job out there. 

Senator BOXER. That is not right. 

Senator INHOFE. Well, that is what the article says here. 

So we also encourage you to focus more of your attention to 

where it should be, getting areas with truly dirty air into compliance with the existing law. It is why today I am reintroducing the 

Clean Air Attainment Enforcement Act, to provide you with the 

tools necessary to force areas that have ignored existing Clean Air 

laws and are in serious non-attainment with ozone standards as 

well as non-attainment with particulate matter standards. It is 

time the free ride ends. We can no longer trust these areas will 

step up to the plate voluntarily. It is time for the EPA to have the 

tools to ensure these dirty areas are cleaned up, cleanup their own 

act, and particularly under the existing standards. 

Thank you, Mr. Chairman. 

[The prepared statement of Senator Inhofe follows:] 

STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM THE

STATE OF OKLAHOMA

Mr. Chairman, this is a timely oversight hearing. EPA’s proposed ozone standard 

is flawed. If enacted, it would have enormous consequences for our Nation, with the 

disadvantaged among the hardest hit. Defenders of tightening the ozone standard 

will say that the law does not take into account the economic devastation, the loss 

of jobs, and ruined lives that will be left in its wake. But it should. And more to 

the point, we should. 

Defenders of tightening the standard will say that it is not necessary that EPA 

rely on peer-reviewed studies or that those that are peer-reviewed are directly applicable to setting an 8-hour ozone standard. But it should. And we should demand 

that they do so. 

The fact is this proposal is ripe with political considerations, with little thought 

given to the people who will be forced to endure its consequences. We have here 

today Dr. McClellan, a past Chair of the Clean Air Science Advisory Committee who 

has detailed the many flaws and questionable approaches taken in justification of 

this proposal. The science panel no longer offers its judgment of the scientific integrity of the process, but its policy opinions. There are large scientific uncertainties 

regarding confounding, attribution, and risk. 

Mr. Administrator, I find it odd that our government would force cities to comply 

with standards over which they have no control. As we regulate almost every city 

in America under this standard, even collectively they cannot control the outcome 

because you have included emissions from Mexico and Canada . What is truly perverse is that as you send jobs over the border, these in turn become emissions we 

cannot control within our borders. But cities will be penalized nevertheless. 
11 

I want to turn your attention to this EPA map. Oklahoma , like many States, has 

made tremendous progress in cleaning up its air. Not a single county in Oklahoma 

is in violation of the ozone standards. Not a single one, Mr. Administrator. Yet your 

proposal will put virtually the entire State into non-attainment. How is it that EPA 

last year considered States like Oklahoma to have clean air that was healthy to 

breathe, yet next year it will consider the air unhealthy ? even as their pollution 

levels continue to plummet? 

We are hearing testimony today that it will be burdensome on communities if you 

finalize your proposal, Mr. Administrator. Let me be clear: lost jobs and closing factories are a health risk. As others have said, access to medical care is a health risk 

in disadvantaged communities. How many people will lose health coverage as a result of this rule, Mr. Administrator? 

If the rebuilding of communities ravaged by Katrina is slowed or stalled, tell me 

how this rule will enhance the quality of life of the people trying to return their 

lives to normalcy. I am not asking you to take concerns into account that you are 

not allowed by law. Instead, I am asking you to see the enormous importance of 

this decision and to ensure that your decision does not go beyond what you are required to do—that is, set the standard a level requisite to protect the public health. 

I also encourage you to focus more of your attention to where it should be ? getting areas with truly dirty air into compliance with the existing law. It is why today 

I am reintroducing the Clean Air Attainment Enforcement Act to provide you the 

tools necessary to force areas that have ignored existing clean air laws and are in 

serious non attainment with ozone standards as well as non attainment with particulate matter standards. It is time the free ride ends. We can no longer trust these 

areas will step up to the plate voluntarily ? it is time EPA had the tools to ensure 

these dirty air areas cleaned up their act. 

Thank you. 

Senator CARPER. Thank you, Senator Inhofe. 

Senator Voinovich, why don’t you go ahead and complete your 

statement, and then I will recognize the Administrator. 

Senator VOINOVICH. Thank you, Mr. Chairman. 

We hear that the Supreme Court has said that the EPA may not 

consider costs when determining the NAAQS standards. But the 

Court also said that the standard is to be set at a level that is requisite to protect human health. That is a level that is neither higher nor lower than necessary. And I agree that the standard should 

be based on public health consideration. But a person’s health is 

also influenced by their standard of living. 

With respect to the scientific record underpinning EPA’s proposal, I note there is a disagreement over what the science says. 

We have two well-respected scientists with us here today and they 

have different views on the scientific basis for revising the NAAQS 

standard. For example, Dr. Bell suggests in her testimony that 

there is no safe level of ozone and that even natural background 

concentrations may present risks to human health. On the other 

hand, Dr. McClellan states that in his professional judgment, 

EPA’s proposed range is too narrow and based on a flawed and inaccurate presentation of the science. 

This suggests that the scientific debate is not over. I am happy 

to see that the agency is taking comment on a full range of options 

in their review, including the possibility of retaining the current 

standard. The agency has until March 12th to make it decision. It 

is my hope that the Administrator will continue to keep an open 

mind as he weighs the policy options he has before him. 

Thank you. 

Senator CARPER. Senator Voinovich, thanks very much. 

Administrator Johnson, a tough job. We appreciate your stewardship and your attention to those responsibilities and the good work 

that is done by the people that you are privileged to lead. Thank 
12 

you for being here with us today. We will enter your full statement 

into the record and we will ask you to use about 5 minutes. If you 

run a little bit long, we will certainly accommodate that. You are 

recognized at this time. Thank you for joining us. 

STATEMENT OF STEPHEN L. JOHNSON, ADMINISTRATOR, U.S. 

ENVIRONMENTAL PROTECTION AGENCY 

Mr. JOHNSON. Good morning, Chairman Carper and Madam 

Chair, members of the Subcommittee. Thank you for this opportunity to discuss EPA’s proposal to revise the National Ambient Air 

Quality Standards for ground level ozone. 

America’s air is cleaner than just a generation ago. Under the 

Bush administration, this progress continues. We have come a long 

way in understanding that economic growth and environmental 

health can in fact go hand in hand. Since 1970, our gross domestic 

product has nearly tripled. Over this time, our energy use is up by 

nearly half. Our population has grown by nearly 40 percent, and 

vehicle traffic has almost tripled. Yet, even with this added strain 

on our resources, the emission of six criteria air pollutants have decreased by more than 50 percent. 

The Bush administration is building on this environmental success story. Through regulations like the Clean Air InterState Rule, 

we are on track to reduce emissions from power plants by millions 

of tons, keeping pace in our steady march toward cleaner air and 

healthier lives for all Americans. 

While our air is improving, our scientific knowledge continues to 

advance. For example, today we know much more about pollutants 

like ozone than when EPA updated our ozone standards 10 years 

ago. Ground level ozone, commonly referred to as smog, is one of 

the six criteria pollutants for which EPA has established National 

Ambient Air Quality Standards. 

The Clean Air Act requires EPA to set standards for pollutants 

that can be reasonably anticipated to endanger public health or 

welfare and to periodically review those standards. Since 1997, 

when EPA last updated the ozone standards, more than 1,700 studies on the public health impacts of ozone have been conducted. This 

new scientific evidence indicates that ozone’s impacts are more significant than we previously thought. Collectively, the research confirms that ozone is harmful to people with asthma or other lung 

diseases, adults who are active outdoors and the youngest and oldest members of our population. 

Based upon the large body of scientific evidence, including significant new evidence concerning effects that ozone concentrations 

below the level of the current standard, I concluded the current 

standard does not protect public health with an adequate margin 

of safety and should be strengthened. The current primary NAAQS 

for ozone is .08 parts per million. After considering the advice from 

EPA’s world-class scientists and our Clean Air Scientific Advisory 

Committee, I proposed to set a standard within the range of .070 

to .075 parts per million. 

As part of this proposal, I also invited comment on a range of primary standard levels from as low as .060 to the level of the current 

standard. We are accepting comments on this wider range as part 

of an open public comment process, which provides an opportunity 
13 

to anyone wishing to express their views on various scientific interpretations related to ground level ozone and its health effects. 

I believe it is important and good policy to provide the public an 

opportunity to comment on this wider range and consider what 

they have to say. I have also proposed two options for revising the 

secondary ozone standard to improve protection of plants, trees and 

crops. The publication of the proposal in today’s Federal Register 

marks the beginning of the official 90 day public comment period. 

I will issue a final decision on the standards by March 12th, 2008. 

Here in America, both science and air quality have seen major 

improvements over the last generation. This progress in science is 

keeping our air quality advances moving forward. Bottom line, advances in science are leading to cleaner skies and healthier lives. 

Thank you very much, and I would be happy to answer questions, Mr. Chairman. 

[The prepared statement of Mr. Johnson follows:] 

STATEMENT OF STEPHEN L. JOHNSON, ADMINISTRATOR, U.S. ENVIRONMENTAL

PROTECTION AGENCY

Good morning, Chairman Carper and members of the Subcommittee on Clean Air 

and Nuclear Safety. I appreciate the opportunity to appear before you today to discuss the Environmental Protection Agency’s (EPA) proposal to revise the National 

Ambient Air Quality Standards (NAAQS) for ground-level ozone. 

INTRODUCTION

President Bush has said that breakthroughs in science and technology will help 

us become better stewards of the environment. I am proud of the work that EPA 

has been doing to promote the science and apply the technology that is helping protect our environment and improve our lives. 

The air we breathe in America has consistently improved over the past 30 years. 

Each year, EPA looks at emissions that impact the ambient concentrations of the 

criteria pollutants. These annual emissions estimates are used as one indicator of 

the effectiveness of our programs. Between 1970 and 2006, total emissions of the 

six principal air pollutants dropped by 54 percent. During that same time period 

our nation continued to grow—gross domestic product increased 203 percent, vehicle 

miles traveled increased 177 percent, energy consumption increased 49 percent, and 

U.S. population grew by 46 percent. This success has not happened by accident. By 

promulgating requirements and implementing various Clean Air Act programs, and 

by advancing the State of our scientific understanding, EPA and its partners are 

continuing to make progress in reducing air pollution from both mobile and stationary sources. 

The Clean Air Act requires EPA to set national ambient air quality standards for 

pollutants that can be reasonably anticipated to endanger public health or welfare. 

Under the Act, EPA develops human health-based and environmentally based air 

quality criteria (which evaluate and integrate the latest scientific information), for 

the six so-called ‘‘criteria pollutants.’’ EPA uses the air quality criteria in setting the 

acceptable ambient levels for the pollutant—the NAAQS. Primary standards for 

these pollutants protect human health with an adequate margin of safety while secondary standards protect public welfare (that is, protect against damage to the environment or to property). EPA is required to periodically review the standards and 

the scientific basis of the standards to determine whether revisions are appropriate. 

Ground-level ozone, commonly referred to as smog, is one of the six criteria pollutants for which EPA has established national ambient air quality standards. Ozone 

is rarely emitted directly into the air but is formed by the reaction of volatile organic compounds (VOCs) and nitrogen oxides (NOx) in the presence of sunlight. 

VOCs are emitted from a variety of sources, including motor vehicles, chemical 

plants, refineries, factories, consumer and commercial products, other industrial 

sources, and biogenic sources. NOx is emitted from motor vehicles, power plants, 

and other sources of combustion. Changing weather patterns contribute to yearly 

differences in ozone concentrations from region to region. Ozone and the pollutants 

that form ozone can also be transported into an area from pollution sources found 

hundreds of miles upwind. 
14 

By working effectively with our state, local, and industry partners, we have made 

tremendous progress in reducing ambient concentrations of ozone throughout the 

United States. Since 1980, national average levels of ozone pollution have dropped 

by more than 20 percent, and in just the last 3 years, more than half of the communities out of attainment for ozone moved into attainment and now meet the current 

standards. 

PROPOSAL SUMMARY

Since EPA last updated the ozone standards in 1997, researchers have been working to better understand how ozone affects human health and the environment. In 

fact, more than 1,700 studies examining the relationship between ozone exposure 

and human health and the environment have been published over the past decade. 

Many of these studies have been undertaken under the auspices of EPA’s own research programs. 

Some of these studies corroborate previous clinical findings showing health effects 

caused by exposure to ozone, while others report effects at ozone levels below the 

current standard. Some new studies of people with asthma indicate that they experience, relative to what was previously known, larger and more serious responses 

to ozone that take longer to resolve. Furthermore, new epidemiological studies, including new multi-city studies, strengthen EPA’s confidence in the associations between increasing ozone exposures and health effects, including increased asthma 

medication use, school absenteeism, and premature mortality in those with preexisting heart and lung disease. 

An extensive scientific review has preceded this proposal involving both EPA scientists and our Clean Air Scientific Advisory Committee, some of the most talented 

scientists in the world. I value their advice and I fully respect their judgment of 

the strength of the science and their views on the appropriate level at which to set 

NAAQS for ozone. In the course of developing this proposal, I personally spent considerable time with EPA scientists reviewing and discussing the information that 

has been collected. 

Primary Standard 

Based on the large body of evidence concerning the public health impacts of ozone 

pollution, including new evidence concerning effects at ozone concentrations below 

the level of the current standard, I proposed that the current standard does not protect public health with an adequate margin of safety and should be revised to provide additional public health protection, particularly for those with asthma or other 

lung diseases, adults who are active outdoors, and the youngest and oldest members 

of our population. 

This decision was based on careful consideration of the conclusions contained in 

the Criteria Document, the rationale and recommendations contained in the Staff 

Paper, the advice and recommendations from the CASAC, and public comments to 

date. The current primary NAAQS for 8-hour ozone established in 1997 is 0.08 parts 

per million (ppm)—effectively 0.084 ppm because of our rounding conventions. After 

considering the advice from EPA’s scientists and our Clean Air Scientific Advisory 

Committee, I proposed to set a standard within the range of 0.070 to 0.075 ppm. 

This proposal marks the beginning of an open public comment process, during which 

EPA is inviting comment on a range of primary standard levels from as low as 0.060 

parts per million up to the level of the current standard, 0.084 ppm. 

EPA is accepting comment on levels for a primary ozone standard that are outside 

of the specific range of the standard I proposed. While the proposal language addresses in detail our reasons for proposing 0.070 to 0.075 ppm, EPA scientists concluded that it was appropriate for me to consider a range of standards levels from 

somewhat below 0.080 ppm down to as low as 0.060 ppm. I am also aware of the 

diversity of views held by various stakeholders concerning what might constitute appropriate levels for the standard. I understand that some support a standard set 

lower than the range proposed and some support a higher level than I proposed or 

retaining the existing standard. Given such views, I believe it is prudent public policy to ask for comment specifically on a wider range. Doing so allows us to benefit 

from the input of the public, including the many scientists in the field who are not 

part of the advisory committee or the EPA staff. I fully welcome information from 

the public addressing whether there are other interpretations of the science or other 

public health policy judgments that would suggest different levels than those I put 

forward in the proposal. 
15 

Secondary Standard 

I also proposed two alternatives for a secondary ozone NAAQS to improve protection for plants, trees, and crops. One option would be to set the standard identical 

to the primary standard, as we have done in the past. The other option, however, 

would be to set a new, separate secondary standard that addresses the kinds of 

ozone exposures that studies indicate can harm vegetation. This option reflects the 

available science indicating that cumulative, repeated exposures to ozone are an important way ozone can harm vegetation, compared to the short-term, higher exposures that can harm people. 

This proposed option, known as a ‘‘W126 form,’’ is a cumulative, seasonal standard. It focuses on ozone levels occurring over every hour from 8AM to 8PM during 

the summer growing season (specifically the 3-month period with the highest ozone 

concentrations). The form of the standard is expressed as a sum of weighted hourly 

ozone concentrations, and under this option, I am proposing to set that standard 

within a range of 7 to 21 parts per million-hours, as well as asking for comment 

on variations of this form and level. 

NEXT STEPS

We will accept public comment for 90 days after the proposal is published in the 

Federal Register, and plan to hold five public hearings. These hearings will be held 

in Los Angeles and Philadelphia on August 30, and in Chicago, Atlanta, and Houston on September 5. This schedule puts us on track to issue final standards by 

March 12, 2008. 

As to the implementation of any new or revised ozone standards, States have primary responsibility for ensuring attainment and maintenance of ground-level ozone 

standards once EPA has established them. Thus, if I ultimately decide to set final 

standards for ozone that are different from the current standards, EPA would work 

with states and other government entities to identify geographical areas that fail 

to meet the new standards. Under the timelines specified in the Clean Air Act and 

the Agency’s past experience, I would expect that designations of areas that do not 

meet any new or revised standard would occur in 2010. By 2013, States would then 

be required to submit, for EPA approval, State implementation plans (SIPs) that 

provide for the attainment and maintenance of such standards through control programs directed to emission sources. Areas designated as non attainment would then 

have between 2013 and 2030 to meet any new or revised standard, depending on 

the severity of their air quality problem. 

CONCLUSION

Once again, I want to thank you for the opportunity to be with you here today. 

I would be pleased to answer your questions. 

Senator CARPER. Thanks, Mr. Johnson. 

I am pleased to hear your testimony and welcome your comments 

very much. You have concluded at the current, and I am just going 

to go back and explore a little bit what you said and ask you to 

elaborate on it. You have clearly concluded that the current ozone 

standard does not adequately protect human health with an adequate margin of safety. Could you just explain for us a little bit 

more how you came to that conclusion, why you believe the proposed levels provide the adequate protection? 

Mr. JOHNSON. I followed first the routine process that the agency 

follows with developing a regulation, particularly major regulations 

such as revising an ozone standard. We took advice, held public 

meetings with our Clean Air Scientific Advisory Committee. We 

had a staff document that reviewed all of the science, the over 

1,700 studies, the new studies. We had option selection, where the 

staff presented me with their options and observations. 

After carefully considering the full range of recommendations 

with both our Clean Air Advisory Committee as well as our worldclass scientists in EPA, I concluded that the current standard is in-
16 

sufficient to protect public health; therefore I am proposing to revise it. 

Senator CARPER. Talk to us a little bit about the Clean Air Scientific Advisory Committee, which we affectionately call CASAC. 

Mr. JOHNSON. Yes, that is correct. 

Senator CARPER. Tell us who is on it, how many people. I understand they unanimously recommended a somewhat stronger standard, .06 parts per mission to .07. Talk to us about the composition 

of that committee. Who chooses the committee? And how seriously 

do you take their recommendations? 

Mr. JOHNSON. I fully and sincerely appreciate the scientific input 

of the Clean Air Scientific Advisory Committee. It is an advisory 

committee where members are selected by, in this case, me and the 

agency. These are world leading experts. 

Senator CARPER. Roughly how many people? 

Mr. JOHNSON. It is chaired by Dr. Rogene Henderson. 

Senator CARPER. How many people are on the committee, just 

roughly? 

Mr. JOHNSON. Twenty-two. 

Senator CARPER. And you choose them? 

Mr. JOHNSON. We choose, the agency chooses, as part of the typical Federal Advisory Committee Act process. 

Senator CARPER. And they came in and they said, unanimously, 

that all 22 of them believe that the appropriate range is .06 to 07? 

Mr. JOHNSON. Well, I certainly agree with CASAC, and as a scientist myself, as you know, they stated, and I fully agree with 

them, that there is no scientific justification, based upon the current science, for retaining the current standard. And I unanimously 

agree with them. 

Senator CARPER. All right. Yesterday, I think it was yesterday, 

there was some testimony over in the House of Representatives before an oversight subcommittee. I think the fellow who testified 

was a former surgeon general. I had not met him before, but his 

name is Richard Carmona. He asserted that the Administration, 

this Administration, often manipulated important public health 

policies due to political concerns and disregarded scientific evidence 

again and again. Some have asserted that similar non-science 

based influences have already influenced this rulemaking process. 

As you stated, the science is very clear in this matter. Lives truly 

are at stake. What assurances can you give us today on this Committee that the decisions that you make regarding this standard 

will in fact be based on the science and on the health of our citizens, instead of the political concerns which Dr. Carmona has decried just this week? 

Mr. JOHNSON. Mr. Chairman, first, let me say that as a 26 year 

veteran of EPA and a scientist at EPA, and now Administrator, 

that has not been my experience, that the Surgeon General has 

stated. Certainly, as Administrator for this decision and all decisions, I am going to base my decision, in this case based upon the 

science, making sure that I meet the statutory requirement, which 

is requisite to protect public health with an adequate margin of 

safety. That is what my proposal does, and that as we go through 

the public comment period and consider whatever public comments 

that come in, I will be basing my decision on the science, making 
17 

sure that I ultimately make the decision that is requisite to protect 

public health with an adequate margin of safety, which is the statutory requirement. 

Senator CARPER. Good. 

Before I turn the questioning over to Senator Voinovich, let me 

just say, you and I first met, I believe, when you had been nominated to be the Administrator. Some of my colleagues may recall 

that I opposed your nomination, not because I didn’t admire you, 

like you, respect you, that I didn’t think you would be a good administrator. That is not why. 

But the reason why is because I wanted assurances from the Administration that they would allow you, allow EPA to model three 

different proposals for reducing emissions from power plants, a proposal from the Administration, a proposal from Senator Jeffords 

and a proposal from me. Your nomination was confirmed, we had 

a quite a battle, but your nomination was confirmed. I think I 

called you the next day—— 

Mr. JOHNSON. Yes, you did. 

Senator CARPER [continuing].—to congratulate you and to say 

that was behind us and we wanted to work with you, to enable not 

just you to be successful, but EPA to help cleanup our air and our 

environment further. To your credit, you, I am sure, took some 

heat from others, probably within the Administration, to make sure 

that the modeling was done. And you called it straight. I appreciate 

that. I would just say, in this instance, we need to do the same. 

Thank you. 

Mr. JOHNSON. Thank you. 

Senator CARPER. Senator Voinovich. 

Senator VOINOVICH. Thank you. 

The EPA Green Book website says there are 391 counties located 

in non-attainment areas. Yet EPA maps released with the ozone 

standard announcement only lists 104 counties under the current 

standard. Is this because EPA is only counting the counties with 

an ozone monitor and that all the counties included in ozone nonattainment areas, which are typically drawn to include all the 

counties in the metropolitan statistical area? I am getting at the 

issue of just how many counties actually right now are in non-compliance. Under the .07 proposed rule, if that is what you come up 

with, how does that change? 

Mr. JOHNSON. Senator, let me first State, I think it is important, 

that the Clean Air Act requires my decision regarding NAAQS to 

not consider costs, not to consider implementation issues. So this 

is certainly for the primary standard, a public health decision 

based upon science. 

So while we will be moving to implementation and implementation issues for purposes of establishing or revising a NAAQS standard, I am actually prohibited to consider costs by implementation 

issues. 

Senator VOINOVICH. That is not the question. The question is, we 

want to know how many counties actually are included in this, because of the fact that we have, the last head of our EPA in Ohio 

came here and testified and said, I don’t know how we are going 

to comply with the current standards that have been put in place. 

We don’t know how we are going to comply with them. And I 
18 

haven’t seen the report for the State of Ohio and what their SIP 

plan calls for. But I hear from businesses and I hear from other 

people that, how are we going to do this? It is just like I have been 

after you for a long time about the orders that you have, the political subdivisions in Ohio, dealing with stormwater overflow, where 

there are going to be increased costs of millions of dollars. And the 

communities haven’t the capacity to comply with it. How is it going 

to get done? 

So I would like to know, and I am sure most of my colleagues 

would like to know just how many counties today are impacted 

today by the current rule. What have you heard from the States 

in terms of how they are going to comply? Is that correct that they 

just came in with their SIPs in terms of complying with the current 

standard? 

Mr. JOHNSON. That is correct. 

Senator VOINOVICH. OK, so that is just coming in now. So they 

really went out there and worked hard and said, here is the way 

we are going to do it. I would like to know what response they are 

giving to that. And then you are coming back to them and saying, 

and by the way, the science says that this current standard is inadequate, we have to go to another standard, and you have to figure 

out how you are going to comply with that standard. 

Mr. JOHNSON. Senator, again, my focus is making sure that I am 

basing the decision for revising the standard based upon science 

without regard to cost impacts or implementation issues. I can certainly ask my staff. I don’t know the numbers. 

So it appears that there currently are 354 counties that are in 

non-attainment. Then an additional, depending upon what the final 

decision were made, if it were within the range I have proposed, 

would add an additional—as you can see, I have not focused on the 

issue of implementation or cost. I think it would be best, Senator, 

if I can get back to you on the record without giving you misinformation. 

Senator VOINOVICH. It is interesting, because the communities 

that are going to be asked to do this have to concentrate on that. 

How do you, from a realistic point of view, comply with the new 

standard? How many years will an area have to comply with the 

new standards, assuming it gets at what it is and it doesn’t, well, 

whatever the new standard you finally come up with in March of 

next year, how long will they have to comply with that? 

Mr. JOHNSON. The schedule, which is dictated by the Clean Air 

Act, is that we would expect June 2009, States to recommend to 

the agency their areas for non-attainment, June 2010, then the 

agency would make a final decision, final determination on which 

areas are in attainment or non-attainment. Then in the year 2013, 

State implementation plans are due, which is 3 years after the designation. And those then between the years 2013 and 2030, States 

then are required to meet the standard. The reason for the range 

of years—— 

Senator VOINOVICH. Repeat that again, please? 

Mr. JOHNSON. In 2013 to 2030, and the reason that there is a 

range is the way the Clean Air Act is constructed, depending upon 

where you are in non-attainment, there are additional years that 

are given under the Clean Air Act to help the States achieve at-
19 

tainment. So we have to look area or county by county to see 

whether you are on the short end of the 2013 or all the way up 

to 2030. 

Senator VOINOVICH. I have run out of time. Will we have another 

round of questions? 

Senator CARPER. Yes, we will have another round, sure. Let me 

just say to the point my colleague was making, and I think, just 

to paraphrase the person in Ohio, saying, I don’t know how we are 

going to comply, how can we do it. You know what they say in 

Home Depot in their advertising campaign, they say, you can do it, 

we can help. The States, we believe they can do it, but we need to 

help. Among the ways that we can help is the promulgation of the 

Clean Air InterState Rule, the passage of an energy bill that has 

strong provisions for more energy efficient, cleaner engines in our 

cars, trucks and vans, legislation that deals with the emissions of 

SOx, NOx, mercury from our power plants. Those are things that 

we can do and we need to do . It is not just, you promulgate the 

rules, you look at the science, and say, this is what we can do according to the science, this is what we have to do for health. And 

then we have a responsibility here, too, to work to make sure the 

States get the help that they need. 

Senator Boxer. 

Senator BOXER. Thank you so much, Senator Carper. I just wanted to underscore what you just said, because sometimes we divide 

this issue too much. When we talk about, for example, tackling 

global warming, which you alluded to in the energy bill, will we 

start to have clean fuels and more hybrid and plug-in hybrid and 

electric cars? We are looking at smog here is from cars and utilities. So we are going to have some benefits here that are going to 

make life a lot easier for our home counties as they strive to meet 

a standard that is based on health. 

The other point I make to Senator Voinovich, who I deeply respect and don’t in any way underestimate his concerns, is that if 

you can’t breathe, you can’t work. It is pretty simple. And if you 

can’t go to school because you have an asthma attack, you don’t do 

well. And you may not get as good a job. So we need to work together on this. It shouldn’t be one thing battling the other. We 

need to make a healthy environment here for our families, so they 

can thrive and prosper. As Senator Carper said, we need to set a 

background in all this that by the policies we set we make it possible to attain these goals, they become achievable goals, which is 

want I want to focus on, is the goal, which we have already agreed, 

I am happy to say, that Mr. Johnson totally agrees, must be set 

on science and protecting the health. 

So we know that specific studies show the lungs of even healthy 

adults are harmed at ozone levels below the current standard. 

Asthmatics, we have talked about that, the most vulnerable, you 

have talked about it. And you have been very strong in your language here. In your testimony you note you spent considerable time 

reviewing the scientific information. In your own view, doesn’t the 

available evidence make it clear that the current standard of .08 

parts per million is inadequate to protect public health with an 

adequate margin of safety? 

Mr. JOHNSON. Yes. 
20 

Senator BOXER. OK. Then why do you hold the door open to .08 

in your rule, in the Federal Register? Explain it. I don’t understand 

it. 

Mr. JOHNSON. During the development of the proposal, I invited 

in the public health community, members of industry, the agriculture community, a variety of others, to express their opinion to 

me as to what things I should be taking into consideration, again, 

regarding the science of the decision and what was requisite to protect public health and the environment with an adequate margin 

of safety. I heard from members of the public that believed very 

strongly that the standard needed to be maintained at its current 

level. I also heard from members—— 

Senator BOXER. Who in the public told you that? 

Mr. JOHNSON. Typically it was members of industry and typically 

members of the public health community told me that I needed to 

lower the standard and in fact, many were on the lower end of the 

CASAC—— 

Senator BOXER. OK, well, let me—I have so little time—I am 

confused. You were very straightforward and said that the standard right now doesn’t protect the public health. So I am not going 

to just keep on questioning you. Let me just express myself, Mr. 

Chairman. The Administrator has been very eloquent on the point 

that .08 does not meet the public health standard. And yet and 

still, for whatever reason, in the actual Federal Register, they are 

welcoming these comments. I would ask unanimous consent to 

place this piece of the Federal Environmental Protection Agency, 

this National Ambient Air Quality Standard for Ozone into the 

record, showing that they allow comments up to .08, which is the 

same level. 

Senator CARPER. Without objection. 

[The referenced material follows:] 
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Senator BOXER. And I understand from OMB’s website that OMB 

officials met at least three times with outside parties on the ozone 

proposal. One of the meetings with industry representatives did not 

include any EPA representative. That meeting took place on June 

4th and involved a representative from the Vice President’s office. 

So you have the Vice President’s office, and I can tell you who was 

there. American Forests and Paper Association, Latham and Watkins represents industry, International Truck and Engine, and the 

industry witness that is here today, Mr. McClellan was there, and 

a law firm representing utilities and the Auto Alliance. OK? The 

Vice President had this meeting about the ozone proposal. 

And I am just wondering why EPA wasn’t there to present the 

science. You weren’t at that meeting. 

Mr. JOHNSON. I don’t know why we were or were not invited. 

Again, I based my decision on the input of our world class scientific 

staff at EPA and the CASAC recommendations. And I made an 

independent decision. And the independent decision is that based 

upon the current science, that the current standard is not protective of public health. So I proposed to change it. 

Senator BOXER. But yet you leave open the possibility of keeping 

it by the way you phrased it, for people to still comment on it. And 

I want to get back to this, were you aware of this meeting taking 

place with the industry people on June 4? 

Mr. JOHNSON. I don’t recall being aware of that particular meeting. 

Senator BOXER. Did the Vice President ever talk to you about 

this, or his people, who were at this meeting, brief you on this 

meeting and tell you what was said? 

Mr. JOHNSON. I don’t recall. 

Senator BOXER. You don’t recall? 

Mr. JOHNSON. No, I don’t recall. 

Senator BOXER. Can you please go back to the staff? Because I 

just want to make sure that they didn’t do an end run and somehow influence your people. Because you know, your top-notch staff 

was much weaker than the outside science board, as you know. The 

Science Board was much tougher than your top-notch staff. 

So I would like you to commit to me today that you will ask all 

of your staff if they were briefed on this meeting that took place 

on June 4th with the special interests, with the Vice President’s 

people. Will you go back and will you please answer in writing if 

anyone was aware of it or was briefed on it, and what their input 

was, based on the meeting? 

Mr. JOHNSON. To the extent that I can, I would be more than 

happy to respond to your question. 

Senator BOXER. What do you mean, to the extent that you can? 

Mr. JOHNSON. I don’t know whether there are any executive 

privilege issues or anything else like that. So I am more than 

happy to—— 

Senator BOXER. Well, this is on the website, OMB’s own website. 

Mr. JOHNSON. I don’t recall even the meeting or being aware of 

it. As I said, I will be happy to respond to the extent that I can. 

Senator BOXER. OK. My interest is, after that meeting with all 

the special interests in the Vice President’s office, was there pressure put on anyone in EPA to come out with a recommendation 
24 

that in my view is way too high when you consider what the outside science people have told you? So if you would please get back 

to us within a week, I would greatly appreciate it. Please inform 

all the members of the Committee through my office as to what occurred after the meeting. 

And I will hold for a second round. 

Senator CARPER. I have asked someone to go fetch a couple of the 

charts that Senator Inhofe was good enough to share with us earlier. Just in case they don’t show up in time, let me just ask you 

to recall—here they are. Good. The charts are maps of the United 

States and one of the charts could—do you have two charts there? 

Put the other one up first, please. 

This chart indicates, correct me if I am wrong, Mr. Johnson, but 

I believe this chart indicates in red, the areas in red are those 

areas that are in non-attainment given a standard of .08 parts per 

million for ozone. 

Mr. JOHNSON. That looks correct. 

Senator CARPER. Now, if we were to change that standard to .09 

or .10, my guess is that there would be even less red, and if we 

go high enough for a standard, maybe .15, there would be no red. 

Then we could maybe feel good about the fact that everybody was 

in attainment. 

What we wouldn’t feel so good about was the fact that a lot of 

people are breathing air high in ozone that is going to make them 

sick. Sometimes we lose sight of the fact, I don’t like being in nonattainment in my State, in all three counties. I don’t like the fact 

that we are at the end of the tailpipe. There was a time when I 

was Governor, Senator Voinovich, you may recall this too, there 

was a time when I was Governor we had to literally close down the 

economy of my State, and still were in non-attainment, not because 

of what we were putting into the air, but what others were putting 

into the air, and all the cars, trucks and vehicles that are driving 

up and down the Northeast Corridor, and the pollution that is 

being put up to the west of us and blowing into my State. 

The fact that a State or an area is in non-attainment shouldn’t 

be taken as a badge of shame. What should be a badge of shame 

for us is our failure to address eliminating those areas of non-attainment. We need strong standards, strong health standards 

based on good science and then—let’s see the next chart, please. 

And then when all these areas of non-attainment pop up under 

a standard of anywhere from .07 to .05, which you seem to have 

embraced, then we have all these areas of non-attainment pop. 

Some are troubled by that. I am not. I would be challenged by that 

if I were running my State again. Mr. Werner here is from Delaware, he has a big challenge, figuring out how to get us into attainment. We are going to help him. We are going to help him in some 

of the ways that I have already talked about. 

I would just ask you to reflect on what I just said, please. 

Mr. JOHNSON. Thank you, Mr. Chairman. Again, as stated, and 

it is worth repeating, the decision that is before me with regard to 

the standard is to consider health impacts for the primary standard 

solely, and not consider costs and not consider implementation. 

Clearly, once we make that decision, then we will do everything in 

our power to work with our State and tribal officials and others to 
25 

help them meet the new standard. But for purposes of the standard 

setting, it is very clear to me that I am prohibited by law from considering cost and implementation issues. 

I would just, I am not that familiar with the second chart that 

was put up, because I am not sure that takes into consideration a 

number of the items that you and Chairman Boxer have mentioned, such as the Clean Air InterState Rule, such as the diesel 

rules, such as our NOx SIP Call. There is a variety of steps that 

we have taken nationally that are in place that will be delivering 

real air quality results that will significantly help on ozone. 

And again, I don’t know whether that particular map reflects 

that or not. 

Senator CARPER. If the panel, this advisory panel has said they 

think the proper range is .06 to .07, is the right place to be in 

terms of focus on better health, better air quality for better health, 

if they are right, then what that suggests is that this chart that 

we have up here today shows those areas of our Country, including 

my State, where we have work to do. We have work to do. And as 

much as I would like to see—we could raise the standard high 

enough so we could end up with a clean slate that would indicate 

nobody is in non-attainment. Unfortunately, if we leave the standard that high or leave it where it is, the fact that nobody is in nonattainment means that a lot of people are sick. And frankly, sicker 

than they need to be or ought to be. 

It is a challenge for us, I would say. And I would yield to my colleague, Senator Voinovich. The challenge for us is to find a way to 

adhere to good science, to set a rigorous standard that is consistent 

with good health, and for us to find ways, working together, as 

Senator Boxer has said, for us to find ways working together, the 

Federal Government, State and local governments, the private sector, find ways we can reach these more rigorous standards, and do 

so in a way that doesn’t disadvantage consumers and doesn’t put 

our economy in a tailspin. We have done that before and I am convinced we can do it again. 

Senator Voinovich. 

Senator VOINOVICH. Thank you, Mr. Chairman. I, for the record, 

would like to read into the record the excerpt from submitted testimony by former Director Joe Koncelik of the Ohio EPA: ‘‘To demonstrate the impossibility of the task of meeting the standard in 

northeast Ohio, we have performed studies that show that even if 

all the industry was shut down and the area depopulated, it would 

just barely be able to meet the standard by 2010, the applicable 

deadline under the Federal rule. However, these same studies show 

that northeast Ohio could attain the new standard by 2015 using 

almost exclusively local and Federal control programs. 

So the one question I have is, communities will have to meet the 

current standard by 2010. Is that correct? 

Mr. JOHNSON. That is correct, 2010. Well, again, as staff is pointing out and as I have pointed out, it depends upon whether the 

particular county or area is, what its designation is, is it severe or 

is it—— 

Senator VOINOVICH. Well, anyhow, this is 2010, and one of the 

things Senator Carper talked about, ways that you could help, but 

the issue becomes, you reach 2010 and these new draconian meas-
26 

ures come in and say, you have to do this and that. We tried to 

get some legislation that said if a county was in substantial compliance and moving in the right direction, that they would be given 

credit for that. We have never been able to clear that one up. 

But if this is what the former EPA director is saying about the 

current rule, I just wondered what he would have to say about a 

new rule. And that gets to one other thing. Senator Carper and I 

worked very hard to get this DERA legislation passed, the Diesel 

Emissions Reduction Act, which is going to have an enormous impact on reducing ozone and particulate matter. And yet, the Office 

of Management and Budget was very, very stingy in providing 

money for that program and because of the continuing resolution, 

the fact of the matter is that absolutely nothing except maybe for 

school buses is going to be done on that program. 

So the point is that looking at the programs that the EPA has 

in terms of funding programs that would help communities comply 

with this, looking at the Energy Department and some of the initiatives that we have about where we are spending money on these 

things, all of that should be taken into consideration to try and 

help these counties comply with just the current standards. Of 

course, we will need even more than that if we bring in the new 

standard. 

I would like to ask you a very technical question, but it gets at 

something that several members have brought up. CASAC indicated in its March 2007 letter to the Administrator that EPA did 

not adequately justify its modeling approach to determine policy 

relevant background. As noted in the March 2000 letter by one of 

CASAC’s ozone review panel members, actual PRB levels appear to 

be significantly higher than the PRB modeling estimates. This implies that the human health risk estimates made by the EPA have 

been overstated. 

What effort has the EPA made to correct for its low PRB estimates and overestimates of human health risk and are you aware 

that Dr. Adams reported in his papers no statistically significant 

results below .08 ppm. And what was the basis for EPA substituting its own peer-reviewed reinterpretation of the Adams published works instead of using the peer-reviewed Adams results that 

were properly cited in this State of Science EPA Ozone Criteria 

document? That is a pretty complicated question, but that gets to 

the stuff that you are doing. Could you shed some light on that? 

Mr. JOHNSON. Senator, actually, I do understand it. There 

are—— 

Senator CARPER. Good, would you explain it to me? 

[Laughter.] 

Mr. JOHNSON. Dr. Adams’ study is one of the 1,700 studies that 

the agency reviewed. There was a full range of studies, clinical 

studies, there were epidemiology studies, multi-city epidemiology 

studies, as well as laboratory studies. So as the CASAC and as my 

staff and certainly as I looked at the recommendations, we had the 

benefit of 1,700 new studies on which to base our proposal. 

Adams’ study is an important study. It is not the only study. As 

I said, we looked at the full range and breadth and depth of all the 

studies. What is noteworthy is that among the clinical studies, 

which actually are the ones that are showing the health effects 
27 

that we are so concerned about, the large portion of those studies 

were actually conducted at the .08, which is the current level or in 

some cases, even above. 

So looking at all the weight of information, I again concluded 

that based upon the current science, the current standard is insufficient to protect public health and the environment. 

With regard to the background level, that has been a science 

issue, one that we have studied, continue to study. It is certainly 

our estimate that the background level is somewhere between .015 

and .035 parts per million. We note that as part of our proposal. 

It is my recollection that we note it as that there are, that has been 

a science issue where people have disagreed. That is our best professional judgment on the science. But we certainly welcome comments and additional science that would add clarity to the background level. 

Senator VOINOVICH. Thank you. 

Chairman Boxer. 

Senator BOXER. Thank you. Thank you, Senator Carper. 

Administrator, this is the second NAAQS review where you 

didn’t heed the advice of the expert science review panel that the 

Clean Air Act requires that you select. The first case was particulate matter, you didn’t heed them then, either. And so it is troubling that you don’t find persuasive the consensus in even unanimous views of your independent science experts. Why don’t you 

give those views greater weight? Mr. Johnson. I carefully considered and certainly do appreciate the CASAC’s comments and recommendations. In the case of the PM, there were, it was not a 

unanimous recommendation. And in fact, there were those that differed with other members of the CASAC. Our staff also had additional opinions. We had a lot of public comments. And again on the 

PM—— 

Senator BOXER. Well, I didn’t say they were always unanimous. 

I said consensus and even unanimous views. Sometimes they were 

unanimous. 

Mr. JOHNSON. Madam Chair, I made the decision on the PM, 

which is the most health protective PM standard in the history of 

the United States, and certainly here on ozone, what I have proposed is the most protective ozone standard in history. 

Senator BOXER. I know, wait a minute. I just asked why you 

don’t give those views greater weight. You said yourself you chose 

to go with your staff. 

Mr. JOHNSON. No, I—— 

Senator BOXER. You said that at the beginning. 

Mr. JOHNSON. No, what I said, Madam Chair, was that I carefully considered both CASAC and our world class scientists and 

what the requirement is under the law, it is requisite to protect 

public health with an adequate margin of safety. And as the Supreme Court indicated, neither too high nor too low. So it is a judgment, it is a policy judgment that started with the Administrator. 

Senator BOXER. Yes, it is. 

Mr. JOHNSON. It is my policy judgment that requisite to protect 

public health is within the range of .07 to—— 

Senator BOXER. I understand. I know it is your judgment. That 

is why I am asking you about it. And it is troubling to me that in 
28 

two cases, your judgment didn’t go with this amazing group of people. I would ask unanimous consent to place into the record the 

CASAC review panel roster, if I might, Mr. Chairman. 

Senator CARPER. Without objection. 

[The referenced material follows:] 
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Senator BOXER. And you will see that these are the greatest scientists from all over the Country, including a couple from Canada. 

So I will put that into the record, because I think that is disturbing 

to me. And we already know that one of the rollbacks that you presided over was to take the role of the independent scientific review 

board and push it aside. We already know you have done that, because they are getting in your way. So now you just ignore them, 

I think. That is my opinion. 

Now, I want to ask you about OMB. Did you take into account 

any of their written comments to you in your proposal? 

Mr. JOHNSON. Yes, we did. 

Senator BOXER. OK. Which were those? 

Mr. JOHNSON. I don’t recall the specifics. It is all part of the 

record, Madam Chair. 

Senator BOXER. OK. Well, I have one here where they asked you 

to be careful because with the new bill on alternative fuels, it may 

be hard to, it may make difficult compliance with a lowered ozone 

NAAQS standard. So you did take into consideration, you did take 

that into account and yes, you did reflect their comments in the 

rules. 

So what I am putting together here, Mr. Chairman, is this. I 

hate to say this, I think what is going to come out of this is a very 

small, very small improvement in the standard. And it is sad to 

me, because we know what is happening to our kids. You were eloquent on the point. I would hope that after this hearing and hearing some of our concerns, you would certainly make it clear to everyone, including the special interests who have the Vice President’s ear, quite obviously, that there is no way we are going to 

keep it at the same .08. 

You didn’t do that in your request for comments. You left the 

door open. That is disturbing. Why would you leave the door open? 

It just defies common sense. If you already decided that the current 

standard is not protective of public health, why would you leave 

the door open? Your answer to me was, well, some of the public 

wanted to comment. Well, they could have commented on making 

the standard 9. There is nothing against that. But you specifically 

said you were leaving the door open. It is very disturbing to me. 

If you ever saw a kid have an asthma attack, it is not a pretty 

thing, it is not a pretty picture. And I know you are compassionate 

to our children, and I think that is the issue. And by the way, the 

charts that are up there are EPA’s charts. It really responded to 

Senator Voinovich’s question, which you said you really hadn’t 

looked at the outcome of this. But there it is. We know it is going 

to be tough. And we know in California that we are going to have 

to have some plans that move us forward, and that we will work 

together with our States. 

But this is an opportunity. Just every few years we do this. OK? 

We don’t do this every year. So you have to think about this, looking ahead. It seems to me, with all the improvements we are going 

to have out there as we fight global warming and we reduce the 

greenhouse gases, it is going o have a salutary impact on ozone. So 

let’s set this at the right level. Let’s not throw away the work of 

these people here, the outside advisors who are, really, they don’t 

have an axe to grind. And I know Senator Carper is much sweeter 
43 

than I am in general about the environment. I know he is willing 

to sit down with you, as am I. 

The bottom line is, we need to do what is right for our children, 

the elderly, the people who suffer from ozone. This isn’t a theoretical exercise. And yes, if we want a strong economy, we had better have healthy families. Because we all run, we all have offices 

to run, and when our folks get sick, things don’t go so well. 

So thank you very much, Mr. Johnson. I hope that you will make 

it clear that you are not going to keep the status quo and that as 

a matter of fact, perhaps you will reconsider and get this thing 

down to a level where people can breathe more easily. 

Thank you. 

Senator CARPER. Mr. Johnson, if you would like to just very, very 

briefly respond, a quick closing statement, you are welcome to. 

Mr. JOHNSON. Mr. Chair, Madam Chair and Senator Voinovich, 

again, thank you for the opportunity. I am very proud of the work 

that the agency has done. I do believe that our team is a world 

class team of not only scientists but a world class team at EPA. I 

am very proud that we have proposed the most protective health 

standard in the Nation’s history for ozone. And again, I will base 

my decision on the best available science that is requisite to protect 

public health and the environment with an adequate margin of 

safety. You have my assurance of that. 

Senator CARPER. Thank you. 

Senator BOXER. Can I just say one thing, just about the future? 

We are looking forward to having you back before the full Committee on the 26th of October to talk about the California waiver. 

I hope you will consider the eloquent comments you just made. Because one way to really help us get going here is to grant that 

waiver, which affects so many other States. And we can get on with 

cleaning up the air and improving the health of our families. So I 

hope when you come back on the 26th, 12 other States are hanging 

in the balance here and want to do more than the Federal Government is doing on it. 

So I hope that you will grant that waiver and that we will have 

a good hearing that day. Thank you. 

Senator CARPER. If I can, in closing, I just want to follow up on 

something that Senator Boxer said a minute or two ago. I am not 

sure what the right number is, between .06 and .08 parts per million. I know, and clearly you know the number is not .08. I do 

know that there is a number that is somewhere between .06 and 

08, which is also within the prescribed range suggested by the advisory committee, .06 to .07, and also within the range that your 

own top folks at EPA have suggested it, between .07 and 074. 

There is a number there that is consistent with all of those three. 

My hope is that when March 12th of next year rolls around and 

you announce your decision that you will have at least found that 

one number. And if you can do better than that, God bless you. 

We have another witness in our second panel who is coming up, 

I thought the statements, the testimony of all of the witnesses was 

very good. And I want to paraphrase one paragraph in the statement of Vickie Patton that I hope she will permit me to do this. 

But today, Administrator Johnson, you hold the trust of healthier 

air in your hands. Like the administrators that preceded you, you 
44 

are confronting powerful headwinds. We have heard about some of 

those today. 

We respectfully ask that you follow the path of science in protecting human health, that you heed the course charted by EPA’s 

own unanimous 23 member independent science advisory committee and that you be guided by EPA’s own professional staff in 

continuing the Nation’s critical race for healthier air. We ask that 

you carry forward the legacy entrusted to you under the Clean Air 

Act to protect human health from ground level ozone with an adequate margin of safety. 

Go forth, do good work. 

Senator VOINOVICH. Mr. Chairman, as long as we are making a 

final statement, I think it is denying common sense that you are 

operating under legislation passed by the U.S. Congress that says 

that you take into consideration only the health benefits of this 

proposed new rule. I was a member, or I was Governor and worked 

very hard to get the Clean Water Act amended, so that when you 

considered regulations in the clean water area, you did cost benefit 

analysis, alternative peer review, so on and so forth. 

But to just say to you that is all you can do, I think defies common sense, in that you don’t take into consideration whether a 

community can or cannot comply with these, what impact it would 

have on the economy of a State, if a business closes and the people 

don’t have the jobs and they have no, they can’t afford health care. 

There are many things that should be taken into consideration 

here. 

Mr. Chairman, I know I am probably going to get drubbed again, 

but I am going to reintroduce a bill to this Senate, as I did the first 

two or 3 years I was here, to try and maybe get this body to understand that there should be some cost benefit analysis when we look 

at some of these things that you are doing. Thank you. 

Senator CARPER. Thank you, Senator Voinovich. 

Again, Administrator Johnson, you have been generous with your 

time. We thank you for your work and frankly, the work of your 

team at EPA and for your testimony here today and your response 

to our questions. We look forward to seeing you soon. Thank you. 

Senator BOXER. Mr. Chairman, as the new panel comes up, so 

please do—— 

Senator CARPER. Senator Boxer. 

Senator BOXER. I wanted to clear the air, so to speak, about a 

comment that Senator Inhofe made about a gentleman, a wonderful person in California, Robert Sawyer, who was the ARB, the Air 

Resources Board chairman. Senator Inhofe said he was fired because he wasn’t doing a good job. And I want to place into the 

record, ask unanimous consent, an article that states, ‘‘The only 

reason Sawyer’s gone is because the administration was tying his 

hands behind his back and not allowing him to do the job he needed to do to implement global warming.’’ So I just want to put that 

in there, because he is a wonderful and very important environmentalist and scientist. Thank you. 

Senator CARPER. Without objection. 

[The referenced material was not received at time of print.] 

Senator CARPER. Our witnesses have joined us. As far as we 

know, our first vote is going to start at 11:30. My goal here is to 
45 

be able to at least hear the testimony of each of our witnesses, then 

we will recess for a few minutes, run and vote and come right back. 

We are honored today to have a really distinguished panel. Some 

of you come from a long distance, and we are grateful for that. We 

are very much looking forward to the opportunity to have a conversation with you today. 

The first panelist that we are going to hear from is Dr. Michelle 

Bell. Dr. Bell is the Assistant Professor of Environmental Health 

at Yale University. Thank you for joining us. Your full testimony 

will be made a part of the record. We would ask you to summarize 

it in about 5 minutes. Dr. Bell. 

STATEMENT OF MICHELLE L. BELL PhD., ASSISTANT PROFESSOR OF ENVIRONMENTAL HEALTH, SCHOOL OF FORESTRY AND ENVIRONMENTAL STUDIES, YALE UNIVERSITY 

Ms. BELL. Thank you. Thank you for the opportunity to speak 

with you today regarding the relationship between ozone pollution 

and human mortality. I am Michelle Bell, Assistant Professor of 

Environmental Health at Yale University at the School of Forestry 

and Environmental Studies, with joint appointments at the School 

of Public Health and also the Environmental Engineering Program. 

My scientific research investigates how air pollution affects 

human health. I am the lead author on several national studies of 

ozone and human mortality. 

Given the pervasive high ozone levels in many parts of our Country, ozone pollution is a critically important health concern. Links 

between ozone and adverse health responses have been established 

for years. However, new scientific evidence regarding ozone’s impact on mortality has been presented in recent years. 

When the U.S. Environmental Protection Agency last revised the 

health-based ozone standards in 1997, the agency concluded that 

while ozone was clearly linked to many adverse health responses, 

more research was needed regarding ozone and human mortality. 

Since that time, several studies have demonstrated that this link 

does in fact exist. 

My colleagues and I performed a national, peer-reviewed study 

of how day-to-day changes in ozone levels are associated with mortality rates for 95 U.S. urban communities over a 14 year period. 

This large data set covers over 40 percent of the U.S. population 

and is one of the largest ozone studies ever conducted. 

We found that mortality rates were higher in these urban communities when the previous week’s ozone levels were higher. Specifically, we found that a ten part per billion increase in the previous week’s ozone was associated with a .52 percent increase in 

mortality. To put these numbers in perspective, our research implies that a ten part per billion decrease in ozone levels would 

avoid about 320 premature deaths each year in the New York City 

area and would save approximately 4,000 lives annually in the 95 

communities studied. A larger reduction in ozone levels would 

avert even more deaths. 

This may actually be an underestimate of the total impact of 

ozone on mortality, as our study only looked at the relationship for 

health for ozone exposure over the past few days, and does not con-
46 

sider the human health risk from breathing a lifetime of air pollution. 

Other researchers also found that ozone levels are associated 

with increased risk of mortality, including a study of 23 European 

cities and a study of 14 U.S. cities. In summary, several studies 

have provided robust scientific evidence that ozone pollution is associated with human mortality. These studies include a range of 

different methodologies and study locations. 

In a follow up study, we investigated the impact of low ozone levels for 98 U.S. urban communities over a 14 year period. We found 

that even very low levels of ozone are associated with increased 

risks of mortality, including concentrations lower than the current 

EPA regulatory standard or California standard. We have conducted extensive sensitivity analysis to investigate the role of 

weather in the ozone and mortality relationship and our results 

show that the association we observed between ozone and mortality 

is not an artifact of high temperatures or heat waves. This conclusion was confirmed by a Harvard University study identifying an 

impact of ozone on human mortality independent of an effective 

temperature for 14 U.S. cities. 

Our national studies on ozone and mortality also account for particle pollution. Results from multiple analyses consistently show 

that the mortality risk from ozone cannot be attributed to particulate matter pollution and other studies found similar results. The 

scientific findings support a mortality effect from ozone separate 

from the mortality effect of particles. 

In conclusion, the health impacts of ozone have been vigorously 

studied for many years. The connection between ozone and health 

is well established. We now have strong scientific evidence that 

ozone increases risk of human mortality, even at very low levels. 

Other recent research has also identified effects of ozone levels 

lower than the current regulatory standard, such as a Yale University study of symptoms in asthmatic children. 

The current State of the science is evidenced by the Clean Air 

Scientific Advisory Committee’s unanimous conclusion that adverse 

health outcomes occur at the level of the current regulatory standard. Our research indicates that health benefits would result from 

lowering ozone concentrations even in communities with currently 

low levels. 

I thank you for the opportunity to speak with you on this important issue. 

[The prepared statement of Ms. Bell follows:] 

STATEMENT OF MICHELLE L. BELL PH.D., ASSISTANT PROFESSOR OF ENVIRONMENTAL

HEALTH, SCHOOL OF FORESTRY AND ENVIRONMENTAL STUDIES, YALE UNIVERSITY

INTRODUCTION

Thank you for the opportunity to speak with you regarding the relationship between tropospheric ozone pollution and mortality. I am Michelle Bell, Assistant Professor of Environmental Health at Yale University in the School of Forestry and Environmental Studies with joint appointments at the School of Public Health and the 

Environmental Engineering Program. My research investigates how air pollution affects human health, including the impacts of ozone pollution. I am lead author on 

several national studies of ozone and human mortality. 

Given the pervasive high ozone levels in many parts of our country, ozone pollution is a critically important health concern. Emissions from transportation, indus-
47 

try, and power generation contribute to ozone. Links between ozone and various adverse health responses have been established for years, such as for increased risk 

of hospital admissions and respiratory symptoms. However, new scientific evidence 

regarding ozone’s impact on mortality has been presented in recent years since the 

last time the U.S. Environmental Protection Agency (EPA) revised the National Ambient Air Quality Standard (NAAQS) for ozone in 1997. I will focus on this new information today, which addresses four key points. 

1. The relationship between ozone and mortality 

2. The impact of ozone on mortality at low ozone levels 

3. The role of weather 

4. The role of particulate pollution 

The relationship between ozone and mortality 

When EPA last revised the health-based ozone standards in 1997, the agency concluded that while ozone was clearly linked to many health consequences, the scientific evidence for a link between ozone and death was unclear and that more research was needed. Since that time, several studies have demonstrated that this 

link does in fact exist. My colleagues at Johns Hopkins University and I performed 

a national study of how day-to-day changes in ozone levels are associated with mortality rates for 95 U.S. urban communities over a 14-year period, from 1987 to 2000 

(Bell et al. 2004). The communities are shown in Figure 1. 

This large data set covers over 40 percent of the U.S. population and is one of 

the largest ozone studies ever conducted. This data set is not hypothetical or laboratory-based, but rather is based on real-world data for ozone levels, weather, and 

mortality. The study accounts for many factors such as weather, day of the week, 

and seasonal trends. We found that mortality rates are higher in urban communities when the previous week’s ozone levels are higher. Specifically, we found that 

a 10 ppb increase in the previous week’s ozone levels raised mortality rates by 0.52 

percent. To put these numbers in perspective, our results imply that a 10 ppb decrease in ozone levels would avoid about 320 premature deaths in the New York 

City area each year, and would save approximately 4,000 lives annually in the 95 

communities studied. A larger reduction in ozone levels would avert even more 

deaths. This may be an underestimate of the total impact of ozone on mortality as 

our study only looked at how risk is affected by recent exposure over the past few 

days and does not include the risk from a lifetime of breathing air pollution. 

We also identified a link between ozone and mortality in a meta-analysis study, 

which pools estimates from previously conducted research to generate an overall result (Bell et al. 2005a). Other researchers have also found that daily levels of ozone 

are associated with increased mortality risk including additional meta-analyses 

studies (Anderson et al. 2004, Ito et al. 2005, Levy et al. 2005, Stieb et al. 2002, 

Thurston and Ito 2001), a European study of 23 cities with an average of 5.5 years 

of data each (Gryparis et al. 2004), and a study of 14 U.S. cities (Schwartz 2005). 

In summary, several studies have provided robust evidence that ozone pollution is 

associated with human mortality. These studies include a range of methodologies 

and study locations. 
48 

2. The impact of ozone on mortality at low concentrations 

In a follow-up study, we investigated the impact of ozone at low concentrations 

for 98 U.S. urban communities over a 14-year period (Bell et al. 2005b). In particular, we were interested in determining whether there exists a threshold level, 

below which ozone does not adversely impact risk of mortality. We found that even 

very low levels of ozone are associated with increased mortality risk, including concentrations lower than current EPA regulatory standards or California’s standards 

and nearing natural background concentrations. We found no safe level of ozone 

that does not affect risk of mortality. 

One approach used in this analysis is the Subset Method in which only days with 

ozone levels below a specified value are included in the analysis. Figure 2 shows 

the percent increase in the risk of mortality per 10 ppb increase in the average of 

the same and previous days’ (Lag 01) ozone levels using all data and using the subset approach, for cutoff values of 30 to 60 ppb. The points represent the central estimate, and the vertical lines reflect the 95 percent posterior interval, which relates 

to the certainty of the estimate. For example, the vertical line at the left side of 

the graph demonstrates an association between ozone and mortality, including only 

days with levels below 30 ppb. 

3. The role of weather 

A significant question regarding the ozone and mortality relationship is the role 

of weather. Temperature influences ozone formation through the emissions of some 

natural gases that contribute to ozone and through acceleration of ozone chemistry. 

Ozone levels tend to be higher when temperature is higher, such as during the summer. Thus, we conducted extensive sensitivity analysis to investigate the role of 

weather in the ozone and mortality relationship. Using a range of different techniques, we consistently found an effect of ozone on mortality, independent of temperature. In other words, our results show that the relationship we observed between ozone and mortality is not an artifact of high temperatures or heat waves. 

This conclusion was confirmed by a study led by Dr. Joel Schwartz of Harvard University who also identified an impact of ozone on mortality, independent of temperature, for 14 U.S. cities (Schwartz 2005). 
49 

4. The role of particulate pollution 

A wealth of literature exists on the health impacts of particulate pollution. Our 

national studies on ozone and mortality account for particle pollution through a variety of different approaches. Results from these multiple analyses consistently show 

that the mortality risk from ozone cannot be attributed to particulate matter pollution. Other work also found an impact of ozone on mortality, independent of the 

mortality risk from particles (Bell et al. 2005a, Ito et al. 2005, Gryparis et al. 2004, 

Schwartz et al. 2005, Stieb et al. 2002, Thurston and Ito 2001). The scientific findings support a mortality effect from ozone, separate from the mortality effect from 

particles. 

CONCLUSION

In conclusion, the health impacts of ozone have been vigorously studied for many 

years. The connection between ozone and health is well-established based on evidence from epidemiology studies using real-world data, laboratory data using 

human exposure, and animal models. We now have strong scientific evidence that 

ozone also increases risk of human mortality. This increase in mortality risk is persistent even at very low levels of ozone near natural background concentrations. 

Other recent research also identified effects at ozone levels lower than the current 

regulatory standard, such as a Yale University study finding ozone is associated 

with use of asthma medication and respiratory symptoms in asthmatic children 

under 12 years (Gent et al. 2003). The current State of the science is evidenced by 

the Clean Air Scientific Advisory Committee’s (CASAC’s) unanimous conclusion that 

adverse health outcomes occur at the level of the current regulatory standard. Our 

research indicates that health benefits would result from lowering ozone concentrations, even in communities with currently low levels. 

Thank you for the opportunity to testify on this important issue. 

Senator CARPER. Dr. Bell, thank you for taking the time to be 

here with us today and for your good work. 

Next, I wish time allowed me to give a more elaborate and extensive introduction to Jim Werner, but he is a person in our State 

that we are enormously proud of. I feel lucky that we stole him 

from Missouri a number of years ago. He has served our Nation 

well in a variety of capacities. He is currently the Director of the 

Division of Air and Waste Management for the Delaware Department of Natural Resources and Environmental Control. I got to 

ride down with him on the train today, and was with him on another train trip not long ago with him and his son, Nicolai. 

So we are happy that you are here, Jim, thank you for coming, 

and we look forward to your testimony. 

STATEMENT OF JAMES D. WERNER, DIRECTOR, AIR AND 

WASTE MANAGEMENT DIVISION, DEPARTMENT OF NATURAL 

RESOURCES AND ENVIRONMENTAL CONTROL, STATE OF 

DELAWARE 

Mr. WERNER. Thank you, Mr. Chairman, and thank you Madam 

Chairman and members of the Committee, for the opportunity to 

appear today. and Madam Chairman. I am going to present four 

basic points here. One is the need for EPA to follow the science. 

Second, the concern about EPA’s apparent failure to heed the advice again of the Clean Air ScienceAdvisory Committee. Third, 

Delaware’s successful efforts to meet the challenge of attaining the 

ozone standard. Finally, the additional efforts that need to be 

made. 

First, where you stand on the issue, like many things, depends 

on where you sit. In Delaware, we sit downwind. We are at the end 

of a conveyor belt of pollution that is loaded often in the Midwest 

and unloaded after it is cooked for a couple of days in Delaware. 
50 

As Senator Voinovich said, you could shut down the economy and 

we would still have a challenge. That reflects the need for doing 

more to meet the standard, but does not change the need to follow 

the science on setting the standard. There is a huge difference between what you do to meet the standard, and setting it, which is 

simply to following the science. 

The concern, though, about EPA’s failure to heed the advice of 

the Clean Air Science Advisory Committee, as others have already 

articulately mentioned, started with the PM Fine rule that was 

really unprecedented in the nearly 30 years of EPA setting National Ambient Air Quality Standards. We would say the EPA proposal is directionally correct, but there are several concerns about 

the difference. First of all, the question is, why didn’t EPA heed the 

advice? Second, why is there this difference between the .070 recommend as the ceiling and the .075 included as EPA’s ceiling? 

There apparently is no basis in the record for supporting that, 

much less opening the door to retain the .080 standard, where 

there is no technical justification for that as well. 

I think Americans depend on EPA to keep a steely eyed focused 

on setting the standard, following the science, period. For us 

States, that is very important. Because we have an enormous 

amount of work to do. We hold up, I think, more than half the sky 

in doing our efforts to meet the standard. If there is some uncertainty about whether EPA has followed the science in setting the 

standard, it is like somebody changing the North Star: all our ships 

of States become disoriented about how we are guide off the direction that EPA sets. 

Last, the efforts that States have made is something that we 

shouldn’t ignore here. I have heard concerns about what this new 

ozone standard will do in terms of putting other counties in nonattainment. Well, so be it, I would say. That is where the science 

leads you. Setting the standard doesn’t change the fact that these 

counties already are breathing dirty air. Frankly, more than that, 

and not to take away from that concern, their dirty air contributes 

to our dirty air as well. More needs to be done. 

But we have had a lot of success. We have met the 1-hour ozone 

standard. We just submitted our SIP to meet the 8-hour standard. 

We are confident we can do that. But doing more is going to require a national effort and regional efforts. That is where more 

complete success will come from. We couldn’t have gotten as far as 

we did without certain efforts like CAIR, as Administrator Johnson 

said, without the diesel rule, without a number of other efforts, and 

a NOx SIP Call. But more needs to be done to help the States get 

there. I think the Clean Air Planning Act that Senator Carper has 

introduced is an important step in the right direction to get there. 

But we need more. We need more Federal mobile air standards, 

we need improved modeling. 

Last, I would like to point out the concern that States like ours 

have in the budget cuts that have come down from EPA on States 

for about 3 years straight. Our Section 103 and 105 grants have 

gone down. We can’t do this without a little funding help from 

EPA. There was a recent transfer by EPA out of Air funding into 

tanks work. Not that tanks aren’t important, there is an unfunded 

mandate out of the EPACT rule, which I must also deal with that 
51 

under my purview, which includes underground storage tanks. It 

makes it a lot harder when we are setting an ozone standard that 

is going to be tough to meet. We are confident we can get there 

with EPA’s help. But we feel like we are getting the rug cut out 

from under us with the recent funding cuts. 

Last, I would turn our attention to doing even more outside the 

box working to reduce air pollution, including working on land use 

planning. This is where we need to go in the long run to meet our 

standards. With that, I thank you for your attention and will be 

happy to take any questions. 

[The prepared statement of Mr. Werner follows:] 

STATEMENT OF JAMES D. WERNER, DIRECTOR, AIR AND WASTE MANAGEMENT DIVISION, DEPARTMENT OF NATURAL RESOURCES AND ENVIRONMENTAL CONTROL, STATE

OF DELAWARE

Thank you Mr. Chairman and members of the Environment and Public Works’ 

Subcommittee for the opportunity to speak with you today about EPA’s recently proposed revisions to the National Ambient Air Quality Standards (NAAQS) for 

ground-level ozone. 

I serve as the Director of the Division of Air and Waste Management in Delaware’s Department of Natural Resources and Environmental Control, and served 

previously in a similar position in the Missouri Department of Natural Resources. 

Prior to these State positions, I served in the U.S. Department of Energy as Director 

of Strategic Planning and Analysis for the Environmental Management office, as 

well as a private engineering consulting firm, nongovernmental organization, and 

the Office of Technology Assessment (U.S. Congress). In the 1980’s I served on the 

Board of the Delaware Valley Clean Air Council. I would also like to acknowledge 

the assistance of my astute Air Quality Management staff, particularly Ron 

Amirikian and Frank Gao who assisted in preparation of this testimony, though I 

bear full responsibility for the content. 

After introducing some of the unique aspects of air quality management in Delaware, I will present: 

• some concerns about EPA’s proposed ozone NAAQS,•a summary of the success 

in reducing ozone concentrations and meeting ozone NAAQS, and 

• some remaining challenges for states in meeting the NAAQS, including some 

observation on future control needs. 

A. DELAWARE—SMALL, PRECIOUS AND DOWNWIND

President Thomas Jefferson dubbed Delaware ‘‘The Diamond State’’ because we 

are ‘‘small but precious.’’ To which we would add, ‘‘downwind.’’ Our air quality on 

many days is decided before people wake up in the morning and start turning on 

lights or driving cars. As you may know, all of Delaware is currently in non attainment for ozone, and our most populous county, New Castle, is also non-attainment 

for fine particulates. This situation should not obscure the fact that Delaware has 

made enormous progress improving air quality. We have met the 1-hour standard 

for ozone, and substantially reduced SO2 emissions, especially from the oil refinery 

in Delaware City, which is one of the few oil refineries with the capability of processing ‘‘sour’’ crude. Thanks largely to a variety of State measures and EPA’s Clean 

Air InterState Rule (CAIR) rule and implementation we expect further improvements in air quality. Although Delaware expects to meet the ozone standard by 

2010, it will be a challenge and require our best efforts. Again the main reason is 

our down wind location. As with many policy questions, where you stand depends 

on where you sit. We sit at the end of a conveyor belt of air pollution that is loaded 

in the mid-west and delivered fully cooked on the Atlantic seaboard. Monday’s rush 

hour in St. Louis and Cincinnati can become Wednesday’s Ozone alert in Delaware. 

Part of our routine function as a State air agency is to constantly monitor air 

quality and provide reports on the Internet. Often, our high pollution levels are 

measured in southern Delaware where there are more acres of soybeans than suburbs, and far more chickens than people or industrial emissions. This observation 

is no puzzle when you consider upwind sources. Our non-attainment status might 

be understandable if the whole State were industrial or heavily populated. As you 

well know, Mr. Chairman, the southern portion of New Castle County, and all of 

Kent and Sussex Counties are relatively rural. They are part of the Delmarva Pe-
52 

142 U.S.C. 4209(b)(1) 

ninsula, a strip of land extending below the Chesapeake and Delaware Canal, bordered on the east by the Delaware Bay and Atlantic Ocean, and bordered on the 

west and south by the Chesapeake Bay. In addition to Delaware, the Delmarva Peninsula contains all or portions of eight Maryland counties and two Virginia counties. Except for a few small pockets of relatively high growth, the entire Delmarva 

Peninsula, including Delaware’s portion, is sparsely populated rural, with agriculture as the predominant business. The counties on the Delmarva Peninsula share 

similar emissions profiles, population densities, traffic patterns, topography and meteorology. The Peninsula counties also share similar air quality problems. Although 

only a few of these counties have ozone monitors, all those that do have shown numerous violations of the current 8-hour standard. In addition, photochemical modeling runs performed by the EPA have projected that most counties on the Delmarva Peninsula experience episodes similar to Delaware’s in exceeding the 8-hour 

NAAQS. 

To some, the expected non-attainment is an excuse to kick the can down the road 

even further. To us, it motivates us to seek other cost-effective controls to control 

ozone precursors and PM2.5 sources. Toward that end we have promulgated rules 

controlling a variety of ozone precursor sources. Delaware’s permitting of a major 

source of Volatile Organic Compounds (VOC)—the lightening (off-loading of crude 

oil) of Supertankers coming out of the Atlantic Ocean into the Delaware Bay before 

they make their way upriver to refiners in Delaware, Pennsylvania and New Jersey—is an example of the need for each State to address its own unique circumstances. We are proud that we have been able to work constructively with 

Maritrans (ne’ OSG, Inc.) on these lightering controls in a way that results in a winwin by requiring the lightering company to refit their entire fleet with vapor balancing equipment, and encouraging their customers to contract with compatible 

ships, to capture the lost VOCs, which is a product for them and their customers. 

Other examples include Delaware’s stringent regulation of power plants and oil refinery boilers, and Delaware’s participation with the OTC in the development and 

implementation of numerous regionally consistent control measures. 

We are pursuing this variety of air pollution controls initiatives because we know 

the benefits outweigh the costs. We also know that national and regional solutions 

are necessary to help control air quality in Delaware. We persevere nonetheless 

knowing we cannot ask others to take action we ourselves are not willing to take. 

B. SETTING NATIONAL AMBIENT AIR QUALITY STANDARDS—FOLLOW

THE SCIENCE

When I last appeared before this subcommittee in November 2005, EPA was then 

working on a revised ozone NAAQS. At that time, we counseled EPA to ‘‘follow the 

science.’’ Regrettably, EPA’s subsequent proposal to revise the ozone NAAQS appears to fail to heed that admonition fully. 

The Clean Air Act proscribes that primary standards ‘‘shall be ambient air quality 

standards the attainment and maintenance of which in the judgment of the Administrator, based on such criteria and allowing an adequate margin of safety, are requisite to protect the public health.’’1 Despite the difficulty the 8-hour ozone standard 

presents to Delaware, we nonetheless support EPA’s proposal for a more stringent 

ozone NAAQS, which is what EPA’s independent scientific advisory committee and 

others have recommended as being needed to protect public health and the environment. It is simply a matter of supporting the integrity of the Clean Air Act, and 

the air quality management process of which we are a part. 

It may surprise some people, given Delaware’s challenge in attaining the current 

standard, that we strongly support EPA’s proposal to revise downward the ozone 

NAAQS. We are the ones who bear the burden of sitting across the table from the 

people who we must ask to take further control measures, many of whom have already installed some controls. We are ‘‘closer to the ground’’ and deal directly on 

a daily basis with the business who must take action to further reduce emissions, 

and the citizens who need options to current auto emissions dependent travel and 

the current fleet of cars. In a small State like Delaware, these are our friends and 

neighbors and families affected by the cost of controls. It is also our friends and 

neighbors and families affect by dirty air. The reason we support downward direction of the ozone NAAQS revision—despite the difficulties—is the distinction between the process of setting standards and states’ dominant role in determining how 

to meet those standards. 
53 

2 U.S. EPA announcement on June 21, 2007, Fed. Reg. Notice available at http://www.epa.gov/ 

ttn/naaqs/standards/ozone/data/2007—06—o3npr.pdf not published as of July 6, 2007 (Hereinafter ‘‘EPA ozone NPR), at 1, 21, 241, and 253. 342 U.S.C. 7409(d)(2) 

4Butterfield, Fred, EPA CASAC Designated Federal Officer, Personal Communication, July6, 

2007 5EPA National Ambient Air Quality Standards for Particulate Matter; 71 Fed.Reg. 2619, January 17, 2006 (amending 40 CFR Part 50). 6EPA NAAQS PM; 71 Fed.Reg. 61144, October 17, 2006 (amending 40 CFR Part 50). 

7Henderson, Rogene, CASAC chair, Letter to EPA Administrator Johnson; CASAC’s Recommendations Concerning Regarding Proposed NAAQS for Particulate Matter, (EPA-CASAC– 

07–01), March 21, 2006. 8Henderson, Rogene, CASAC chair, Letter to EPA Administrator Johnson: CASAC;’s Review 

of the Agency’s Second Ozone Staff Paper, (EPA-CASAC–07–01), October 24, 2006. 9Henderson, Rogene, CASAC chair, Letter to EPA Administrator Stephen Johnson: CASAC’s 

Review of the Agency’s Final Ozone Staff Paper’’, (EPA-CASAC–07–02), March 26, 2007. 

1. EPA Has Recently Failed to Follow the Historic Pattern of Heeding Science Advisory Board Advice 

On June 20, 2007 EPA announced its proposal to ‘‘revise the level of the 8-hour 

standard to a level within the range of 0.070 to 0.075 parts per million (ppm).’’2

Moreover, the Agency’s proposal indicated intent ‘‘to specify the level of the primary 

standards to the nearest one-thousandth ppm’’ (i.e., 0.070 ppm would mean exactly 

that, not rounded up to 0.0074 ppm). 

In proposing this slightly more stringent standard, EPA has generally followed 

the science, in being ‘‘directionally correct’’—down not up. EPA’s proposed standard 

overlaps with, but is not fully consistent with, the recommendation of the Clean Air 

Science Advisory Committee (CASAC). This inconsistency raises some areas of concern I would like to highlight briefly. 

We are concerned about the potential implications of EPA unprecedented recent 

actions that fail to follow the advice of the Clean Air Science Advisory Committee 

(CASAC) of the Science Advisory Board (SAB). This proposed ozone NAAQS is the 

second instance where EPA has not followed the recommendation of the CASAC; the 

first example was the 2006 NAAQS for fine particulates. 

Congress required in the 1977 CAA, that an independent scientific review committee (i.e., CASAC of the SAB) ‘‘. . . complete a review of the criteria. . . and 

the national and secondary ambient air quality standards—and shall recommend to 

the Administrator any new—standards and revisions of existing criteria and standards as may be appropriate. . . .’’3 Since 19794 the CASAC has been making recommendation to EPA, and EPA has generally followed those recommendations in 

setting NAAQS. After 28 years and dozens of major recommendations, it is troubling 

that EPA has diverged twice from CASAC recommendations in as many years. The 

PM2.5 standard proposed in January 20065 and finalized in October 20066 was the 

first time EPA failed to heed to recommendations of the CASAC.7 In this case of 

the PM2.5 standard, EPA highlighted the lack of a unanimous consensus among 

CASAC panel members, although only 2 out of 22 members dissented. 

In the wake of this historic change in course, EPA’s recent ozone NAAQS proposal 

raises some concern about the extent to which EPA is giving adequate consideration 

to the scientific recommendations of it own scientific advisory committee. 

In the case of the ozone NAAQS, the divergence between EPA’s proposal and the 

CASAC recommendations was not as great the PM2.5 NAAQS. The range of concentrations in EPA’s proposed ozone NAAQS (0.070 to 0.075) ppm at least intersected with the CASAC recommendation (0.060 to 0.070). CASAC’s ceiling was 

EPA’s floor. 

It is unclear what EPA’s scientific basis is for proposing a range from 0.070 to 

0.075, in light of the explicit CASAC recommendation not to exceed 0.070 ppm. Specifically, in October 2006, after EPA’s second draft Staff Paper, the CASAC wrote 

to the Agency: 

‘‘. . . the CASAC unanimously recommends a range of 0.060 ppm to 0.070 ppm 

for the primary ozone NAAQS.’’8

After EPA’s Final Staff paper, the CASAC wrote again to EPA: 

‘‘Ozone Panel Members were unanimous in recommending that the level of the 

current primary ozone standard be lowered from 0.08 ppm to no greater than 0.070 

ppm.’’9

Despite these repeated CASAC recommendations, EPA has proposed an ozone 

NAAQS range of 0.070 to 0.075 ppm. 

It is also unclear what EPA’s technical justification is for inviting comments on 

retaining the current standard when it has been found to be unprotective by all 
54 

10Henderson, Rogene, CASAC chair, Letter to EPA Administrator Johnson: CASAC;’s Review 

of the Agency’s Second Ozone Staff Paper, (EPA-CASAC–07–01), October 24, 2006. 11Levy, Jonathan I., Kent Pinkerton, and William Rom (also signed by more 100 scientists 

and physicians), Letter to EPA Administrator Johnson, Broad Scientific Consensus to Lower 

Ozone Air Quality Standard and Close the Rounding Loophole, April 4, 2007. 12Ozone Transport Commission, signed by David Paylor, OTC Chair and Director of Virginia 

DEP, June 6, 2007. 13EPA ozone NPR at 203. 14EPA ozone NPR at 166. 15EPA ozone NPR at 203. 16EPA ozone NPR at 1–2. 17EPA ozone NPR at 28. 18(62 Fed.Reg. 38856) July 18. 1997 (amending 40 CFR 50) 

groups who have examined the issue. In its October 2006 letter to EPA, the CASAC 

ozone panel unanimously concluded that a 0.08 standard could not be justified scientifically: 

‘‘[T]he [CASAC] Ozone Panel is in complete agreement both that: the EPA staff 

conclusion arguing that ‘consideration could be given to retaining the current 8-hour 

ozone standard’; is not supported by the relevant scientific data; and that the current primary 8-hour standard of 0.080 ppm needs to be substantially reduced to be 

protective of public health, particularly in sensitive subpopulations.’’10

This finding by CASAC was further supported by a group of more than 100 scientists and physicians, who wrote: 

‘‘[W]e strongly and solemnly request that you follow the recommendations of the 

Clean Air Scientific Advisory Committee and reduce the 8-hour primary ozone 

standard to a range between 0.060 and 0.070 ppm.’’11

And in a remarkable show of collective agreement, the Ozone Transport Commission, composed of states with a very broad range of views, wrote to EPA, noting: 

‘‘The [Clean Air Act] calls on EPA to rely heavily on the science and CASAC’s recommendation in setting both the primary and secondary NAAQS. OTC supports the 

work of the CASAC and urges EPA to give great weight to the recommendations 

of the CASAC for a revisions of the ozone NAAQS as set forth in its March 26, 2007 

letter to Administrator Johnson.’’12

In part of its June 2006 proposal, EPA appears to accept the scientific advice: 

‘‘The Administrator judges that there is important new evidence demonstrating 

that exposures to O3 at levels below the level of the current standard are associated 

with a broad array of adverse health effects, especially in at-risk populations.’’13

And EPA adds solid support for rejecting the current 8-hour standard: 

‘‘Upon meeting the current 8-hour standard, the median estimates are that about 

610,000 children would experience a moderate or greater lung function response 1 

or more times for the aggregate of the 12 urban areas over a single O3 season. . . and that there would be almost 3.2 million occurrences. Thus, on average 

it is estimated that there would be about 5 occurrences per O3 season per responding child for air quality just meeting the current 8-hour standard across the 12 

urban areas.’’14 [and T]he Administrator judges that there is important new evidence demonstrating that exposures to O3 at levels below the level of the current 

standard are associated with a broad array of adverse health effects, especially in 

at-risk populations.’’15

Nonetheless, EPA appears to roll out the red carpet to naysayers who would seek 

to dispute this broadly based scientific conclusion: 

‘‘EPA solicits comment on alternative levels up to an including retaining the current 8-hour standard of 0.080 ppm.’’16

Perhaps it is part of legal strategy, rather than stemming from some unseen scientific basis, as a method of trying ‘‘smoke out’’ opposition arguments early in preparation for litigation. We wish EPA well in this endeavor, though it is unlikely to 

dampen the enthusiasm of K-Street where billable hours can be justified by merely 

delaying the inevitable adoption of a NAAQS based on solid science. We agree with 

EPA’s assertion that ‘‘review of this information has been extensive and deliberate.’’17 Obviously, litigants have due process rights that are likely to be exhausted, 

and in the case of commercial transaction or property takings, no stone should be 

unturned in giving parties their day in court. What frustrates those of us in the 

public health business is that when a rule being delayed affects the lives and health 

of all Americans, especially children, there is a moral dimension that is ignored in 

the process. 

We know that the road to this standard has been long and tortuous, beginning 

with the promulgation of the existing ‘‘8-hour standard’’ in 199718, and suffering a 

near-death experience for EPA rule writers. Ultimately both EPA’s authority to pro-
55 

19Whitman v. American Trucking Associations, 531 U.S. 457, 464, 475–476) 20American Lung Association v. Whitman (No. 1:03CV00778, D.D.C. 2003). 21Bachman, John, ‘‘Will The Circle be Unbroken: A History of U.S. National Ambient Air 

Quality Standards,’’ Journal of Air and Waste Management Association, Vol. 57, p652, June 

2007. 22(61 FR 65742, December 13, 1996, National Ambient Air Quality Standards for Ozone: Proposed Decision An examination of the monetized benefits reported above indicates that most of 

the estimated benefits accrue from attainment of the 8-hour, 0.08 ppm primary standard with 

a smaller incremental improvement obtained by the addition of a seasonal secondary standard. 

The projected national approximations for commodity crops and fruits and vegetables suggest 

that benefits on the order of 1 to more than 2 billion dollars would result from the proposed 

8-hour, 0.08 ppm primary standard, alone or in combination with a seasonal secondary standard. 23The National Association of Clean Air Agencies generally represents air pollution control 

agencies. See http://www.4cleanair.org/ 24California has adopted an ambient 1-hour ozone standard of 0.09 ppm, and an 8-hour standard of 0.070 ppm. Cal. Reg. Notice Reg. 2006, Vol. 17-Z, April 28, 2006, at http://www.oal.ca.gov/ 

pdfs/notice/17z–2006.pdf; or http://www.arb.ca.gov/research/aaqs/ozone-rs/ozone-rs.htm, and 17 

CCR 70100. 

mulgate an ozone NAAQS, and to do so without regard to cost considerations, was 

upheld by the Supreme Court.19 EPA deadline for setting the new ozone NAAQS 

was set by Consent Decree in December 2005.20 These years of litigation following 

EPA’s 1997 proposed standard were after decades of mounting scientific evidence 

that it was not only the concentration of ozone exposure that determined the effect 

on public health and the environment, but also the duration of exposure. We have 

come a long way since pollution was measured in ‘‘tons per cubic mile’’ and government action waited until health effects were apparent, but the lag time between the 

science and policy remains.21 It is humbling personally to have read scientific journals and heard undergraduate professors talk in the 1970’s about the chronic ozone 

exposure phenomenon and the need to change the short-term standard, only to be 

involved with implementing a standard thirty years later. Hence, we appreciate why 

EPA appears ‘‘gun shy’’ in setting a new NAAQS. Nonetheless, Americans rely on 

EPA to keep a steely eye focus on the science, and act boldly to speak truth to 

power, rather than preemptively surrendering to the almost inevitable litigation 

against its actions. 

We believe it is important to view the revised ozone NAAQS in the context of decades of fine-tuning. The 1-hour ozone standard was first established in 1970, with 

an attainment date of 1977. After states failed to meet it the attainment date was 

changed to 1987. When states again failed to meet the standard, the CAA was 

strengthened in 1990, which proscribed more explicitly what non-attainment areas 

must do (e.g., lower major source thresholds, RACT, RFP, conformity, etc.). It also 

set an attainment date for Delaware of 2005 (extreme non-attainment areas were 

later). Delaware achieved this goal of meeting the 1-hour ozone standard. Although, 

as described above, EPA first promulgated the 8-hour standard in 1997, litigation 

delayed designations until 2004, and Delaware’s attainment date was established as 

2009. We anticipate meeting this attainment date for the current 8-hour standard. 

So, our message to EPA is simple; set a standard based on solid science, give us 

the tools, and work with us collaboratively to get the job done. 

EPA proposal also appears not to accept CASAC’s recommendation about the need 

for a distinct secondary ozone standard. Ozone also adversely affects trees, crops 

(soybeans are a particularly sensitive species), and other vegetation. EPA has abundant evidence in 1996 for a strong secondary standard to help avoid the national 

agricultural loss from ozone pollution estimated to be several billion dollars annually.22 For a secondary standard (for welfare protection), EPA proposes two options: 

(1) setting up a new form of standard which focuses on the highest exposure level 

during plant and vegetation growing season; and (2) setting the secondary standard 

identical to the proposed primary standard. Hence, EPA leaves open the door on 

this issue, and we hope its final rule accept this long-accepted scientific data on the 

need for a protective secondary standard. Delaware remains largely agricultural in 

is southern counties, and these farmer are also our friends and neighbors. We know 

that making a living as a farmer is already too difficult without the extra burden 

of crop losses due to air pollution. 

There are two primary reasons why EPA’s failure to follow its scientific advisory 

committee is troubling for a regulator. First, when EPA sets a NAAQS, it is like 

a ‘‘north star’’ used for navigating by more than 200 states and territories and major 

metropolitan areas across the United States who have a significant role in regulating air pollution.23 We chart our course toward this common24 NAAQS goal according to State Implementation Plans (SIPs) as we promulgate regulations, write 

permits, perform inspections, and conduct enforcement. It is at this stage in the 
56 

process that we consider cost-effectiveness, not during the standard setting stage. 

We routinely look carefully at the costs and benefits of various options in an endless 

complex web of issues, including tradeoffs of time, money, State priorities and staff 

resources. We need to know that when we attain the NAAQS, it reflects a goal that 

is protective, based on the best available science. This is something worth working 

toward. If EPA flinches from its role is setting a NAAQS based on anything less 

than the best scientific advice, it is like someone putting a prism in our sextants 

throwing off the navigation of hundreds of regulatory ships. 

Second, EPA’s failure to propose a standard consistent with the CASAC recommendation tends to undermine environmental professionals everywhere who take 

pride in operating as much as possible on a science-based approach to problem solving. 

Finally, the Committee may wish to examine EPA’s broader NAAQS-setting process, which has reportedly changed to eliminate use of staff papers and to instead 

use risk assessments and Advanced Notices of Proposed Rulemaking. It is not clear 

what the ultimate impact of this fundamental process change will have, but I recognize it results from weighing the best ways to assess the science, given factors such 

as the need for reviews every 5 years, and the lack of a clear health effect threshold. 

2. An Increased Number of Non-Attainment Areas is Appropriate 

and Universally Helpful Toward Improved Air Quality 

One of the concerns expressed about EPA’s proposed ozone standard is the increased number of non-attainment areas that would be created. Obviously, if the air 

quality in certain areas—typically bordering current non-attainment areas—fails to 

meet the new NAAQS, then they should properly be classified as non-attainment. 

The result of these new non-attainment designations will obviously be more stringent air pollution control requirements and larger offsets. 

These additional pollution reduction measures are appropriate not only to protect 

public health in those new non-attainment areas, but will also help improve air 

quality in adjacent areas that were previously non-attainment. Significant upwind 

sources located in attainment areas, continue to enjoy less stringent control requirements than downwind non-attainment areas, even though part of the cause of the 

downwind non-attainment problems is the upwind sources. For example, if a new 

cement plant were to be constructed 100 yards inside the border of a county designated as attaining NAAQS, it would enjoy far less stringent air pollution control 

requirements, even though the top of the smokestack would likely be located in the 

adjacent non-attainment county if it were to fall over in the right direction. A State 

agency would have difficulty imposing controls on such a plant in order to protect 

an adjacent downwind county that is the victim of the new emissions source. This 

inequity could be rectified by designating this host county as ‘‘non-attainment.’’ 

We understand there is some concern with the prospect of adopting a new scientific standard for human health protection, when the implementation of the previous health standard has barely begun. For environmental engineers and scientists, 

however, this ‘‘pipeline’’ of standards and implementation is part of the normal process of careful development of programs to protect human health, and of the perils 

of litigation that affect these programs. Accordingly, we believe that a protective 

ozone NAAQS—certainly no less stringent than proposed by EPA—should be adopted with all due alacrity so that the public benefits can be realized through detailed 

implementation. Based on the proposal we anticipate the following timeline: 

• 2009, States make recommendations for areas to be designated attainment and 

non-attainment, • 2010, EPA makes final designations, • 2013, State Implementation Plans outlining how states will reduce pollution to 

meet the standards will be due, and • 2013 to 2030, attainment will be required depending on the severity of the problem. 

3. Meeting the Ozone NAAQS Requires Support, Not Cuts, to State 

and Local Programs 

Obviously, further reduction in ozone precursor emissions will be necessary to attain and maintain compliance with any new, more stringent ozone NAAQS. A reduction in emissions will involve the development of control programs, and consultation 

with other States, the EPA, the OTC, etc; and such activates will take funding. Continued cuts of EPA air grants, like the CAA 105 grant, will set us up to fail. Delaware’s 2008 CAA 105 grant is about 15 percent below the level it was in 2004, and 

this reduction occurred at a time when State rules and SIPs were being developed 
57 

25Hallock, Stephanie, Environmental Council of States President and Director of Oregon DEQ, 

Letter to Lyons Gray, EPA Chief Financial Officer, June 20, 2006. http://www.ecos.org/files/ 

2177—file—Letter—to—Lyons—Gray—on—2008—STAG—Budget—Priorities.pdf 26Environmental Council of States, ‘‘The States’ Proposal to Congress for EPA’s 2008 STAG 

Budget (State and Tribal Assistance Grants Budget); An Alternative to US EPA’s 2008 Budget 

proposal Supported by the States’ Environmental Agencies’’, February 2008. 27Granholm, Jennifer (Governor of Michigan), Letter to EPA Administrator Stephen Johnson, 

April 10, 2007 [restore the fiscal year funding cuts and invest in State air offices] 28For example, NERA Economic Consulting for the American Petroleum Institute, Economic 

Impact of 8-Hour Ozone Attainment Deadlines on Philadelphia Region, September 2005 (released November 7, 2005). 

to meet the 1997 ozone and fine particulate matter standards. This trend cannot 

continue. Development, and implementation and enforcement of new control programs take resources, and the cost of these resources is minimal compared to the 

value of the benefit of clean air. 

We have worked through the Environmental Council of States (ECOS) and other 

organizations to try to reverse these damaging budget cuts. In a June 2006 letter 

to EPA, ECOS included ‘‘State and Local Air Quality Management’’ categorical 

grants among a limited number of ‘‘Higher Priority Programs.’’25 Despite this explicit recommendation, EPA’s fiscal year budget included additional cuts to our air 

grant funding. These cuts follow several years of damaging budget cuts and occur 

at a time when the workload on states to meet tighter NAAQS has increased. Overall, State and Tribal Assistance Grants comprised nearly half of EPA’s overall budget (94 percent in 2004), but have received 94 and 100 percent of the cuts in 2005 

and 2006, respectively.26 Clearly, these cuts are disproportionate, and we believe 

should be reversed. States continue to implement the nation’s core environmental 

programs. These cuts have hit home hard in Delaware: our air quality management 

grants from EPA have been cut 10 percent for 3 years—every year since 2004 (FY 

2007 grants has not yet been determined). These compounded cuts have caused an 

overall 15 percent reduction in our Federal air quality management funding from 

EPA since 2004 (assuming 3 percent inflation). 

States in fact conduct most of the permitting, enforcement, inspections, monitoring and date collection required by Federal law. All of this work is performed 

through funding Congress provides to states through EPA’s budget. Without adequate funding meeting existing NAAQS, much less revised NAAQS will be more difficult a concern voiced articulately by Michigan Governor Granholm; ‘‘If you truly 

want Clean Air to be more than just a good idea you will restore the fiscal year 

funding cuts and fully invest in State air offices.’’27

Contrary to EPA’s verbal commitments to continued partnership, EPA’s recent rescission package included a shift from air quality to underground storage tanks 

funding. We recognize the need to provide funding to address this unfunded Federal 

mandate or increase inspection frequency as mandated by the Energy Policy Act, 

but we do not agree that this funding should be provided at the expense of another 

critical State program grant. 

4. AIR POLLUTION COSTS AND BENEFITS: DEJA VU ALL OVER AGAIN

Recent reports28 of the costs, technical challenges and complexity of meeting 

Clean Air Act attainment deadlines remind me of the observation of baseball great 

and philosopher, Yogi Berra, ‘‘It’s Deja Vu all over again.’’ Regrettably, much of the 

analysis behind these claims has not been subject to the normal peer review process 

for publication in a scientific journal. More substantively, it fails entirely to consider 

the substantial benefits of emission reductions and examines only the projected 

costs. Finally, the complexity of the Clean Air Act is nothing new to those of us who 

live in this world of air pollution control. We are more sympathetic than most to 

the desire for simplification. The essential management metric for evaluating the 

performance of any proposal is the impact on air quality. And by this measure, we 

cannot support trading off paperwork simplification for dirtier air in the real world. 

We urge the Committee not to confuse ‘‘harmonizing’’ dates with merely ‘‘kicking the 

can down the road’’ on improving the air quality and achieving the sustainable 

health benefits known to be possible. 

These ‘‘cost-only’’ studies also have had a strong track record of overstating the 

eventual costs, whether it was the original acid rain studies or the more recent estimates of New Source Review (NSR) compliance. And on this matter we must also 

disagree: we do not agree that American engineers lack the skill and creativity to 

develop innovative technologies and methods for achieving air pollution reductions 

more cost-effectively than merely extrapolating from current trends. We also stand 

ready to continue to pursue regulatory streamlining that reduces compliance costs 
58 

29The Burden of Asthma in Delaware, Delaware Health & Social Services Division of Public 

Health, and Department of Natural Resources and Environmental Control, August 2005. 30EPA, Unfinished Business: A Comparative Assessment of Environmental Problems, 1987. 31EPA, Reducing Risk: Setting Priorities and Strategies for Environmental Protection, SABEC—21, September 1990. and Stevens, William K., ‘‘What Really Threatens the Environment’’, 

New York Times, January 29, 1991. 32Proposed Rule To Implement the Fine Particle National Ambient Air Quality Standards; 

Proposed Rule 70 Fed. Reg. (210) 65984–66067, November 1, 2005. 33JAMA study Pope CA 3d, Burnett RT, Thun MJ, et al., ‘‘Lung cancer, cardiopulmonary mortality, and long-term exposure to fine particulate air pollution,’’ Journal of the American Medical 

Association (JAMA), 2002;287:1132–1141; Brook RD, Brook JR, Urch B, et al. Inhalation of fine 

particulate air pollution and ozone causes acute arterial vasoconstriction in healthy adults. Circulation. 2002;105:1534–1536; and Ozone and Short-term Mortality in 95 U.S. Urban Communities Bell, M.L., et al. (2004). JAMA 292, p. 2372–2378. 

(e.g., paperwork and permitting value stream mapping). In short, we are very bullish on American ingenuity, and have been richly rewarded for our confidence in the 

past. 

We are not insensitive to costs. We live in the communities where our neighbors’ 

jobs are on the line. We cannot, however, ignore the substantial and subsequent 

savings derived from health-related costs from air pollution. So, the question is not 

whether there are costs, but rather ‘‘who bears the costs?’’ There are clear, though 

less quantifiable, costs to public health that result from failing to address air pollution problems. In conjunction with our State Division of Public Health, Delaware recently released a report on ‘‘the Asthma Burden’’,29 which showed a continuing increase in the number of asthma cases. We realize these asthma cases cannot be attributed solely to air pollution. However, this report provides local data supporting 

hundreds of other studies finding a rising tide of asthma that represents a terrible 

burden on individuals, families, communities, employers and the economy. So, when 

you hear calls to adjust current schedules for compliance, we urge you to consider 

the other side of the cost formula; the health benefits and subsequent savings derived from controlling air pollution promptly. 

We realize there are those who argue that health standards should be subject to 

strict cost-benefit analysis. We respectfully disagree with this view. Fortunately, 

this is not a question we need before us, because of both the science and the law. 

Over the years, every major, peer-reviewed study has found substantially greater 

benefits than costs from controlling air pollution, and found greater benefits from 

air pollution control than virtually any other environmental programs (e.g., oil spill 

cleanup). Among the most prominent studies was EPA’s ‘‘unfinished business report, 

release in 1987, which found air pollution to be among the highest benefit program 

in EPA.30 A few years later, under President George H.W. Bush, EPA’s Science Advisory Board reviewed this assessment more rigorously and found uncertainty in the 

estimates for many areas, except air pollution control.31 Criteria Air pollutants were 

ranked as a high risk by the unfinished Business report in the 1980’s. In 1990 the 

Science Advisory Board report on Reducing Risk ‘‘considered to be supported more 

firmly by the available data than were the rankings for the others.’’ More recently, 

in 2003, the White House Office of Management and Budget, Office of Information 

and Regulatory Affairs, under John Graham, found air pollution control to be one 

of the clearest examples of an environmental program producing benefits outweighing costs. 

We fully realize there is a substantial cost to complying with the air pollution control requirements necessary to meet these new standards. We also realize there is 

a cost to not complying with these standards. These costs are the often ignored benefits of attaining healthful air quality. We realize the real benefits of controlling 

PM2.5 pollution is difficult to quantify and that estimates vary significantly from 

local epidemiological estimates on one end of the spectrum to the John Locke institute on the other end. We refer you to EPA’s estimate of the health benefits, described in the recent implementation rule for fine particulates32, which, of course 

could not have been published without approval by the White House Office of Management and Budget’s Office of Information and Regulatory Affairs. And the evidence of serious health problems from particulates continues to mount a recent survey of data from 90 urban areas.33 Again, we do not suggest cost be ignored, but 

strongly urge that the benefits be weighed as well. 

C. COLLECTIVE EFFORT BY STATES, EPA AND INDUSTRY HAS YIELDED

REAL PROGRESS IN AIR QUALITY

All states, in cooperation with the EPA and industry, have made significant 

strides in improving the quality of the air in recent decades. We have also advanced 
59 

34EPA Administrator Stephen Johnson speech at Adirondack Council 30th Anniversary, 

Essex, NY, August 4, 2005. 35Aburn, George (Tad), Maryland Department of the Environment, Air Director, (Ozone 

Transport Commission Summary), Improving Air Quality Through Regional Action: Presentation to OTC Annual Meeting, June 2007. Available at http://www.otcair.org/document.asp?Fview=meeting# 

our collective understanding of what forms of control offer the most effective path 

to success, both from ease of implementation and from an economic view. We have 

managed to improve air quality by reducing emissions while enjoying increases in 

GDP and experiencing significant growth in vehicle miles traveled. Since 1970, we 

have cut emissions that cause soot, smog and acid rain by more than half, even 

while our nation’s economy has grown by 187 percent—clear evidence that a growing economy and environmental results can, in fact, go hand-in-hand.34

The CAA established a clear path to ameliorate these problems, and it has 

worked. The Act provides the states with the mechanism to accomplish this task by 

identifying the culprit areas and identifying sources within the areas most likely to 

be causing the problem. Areas designated nonattainment have 3 years to develop 

State Implementation Plans (SIPS), the most recent of which was recently submitted to EPA to meet our June 2007 8-hour ozone SIP deadline. The preparation 

and adoption of past SIPs by each State containing a nonattainment area are grueling tasks, but with very limited exceptions, and only in extraordinary circumstances, have these SIPs not been submitted by the appointed date. A combination of detailed information on the amount of air pollution entering the state, plus 

information on the amount of pollution generated internally, constitute the cornerstone of the SIP preparation. Knowing how serious the pollution problem is, and 

what is causing the problem, states can perform complex modeling to determine how 

much reductions in emissions are necessary to result in an attainment condition. 

Determining the necessary control measures to achieve that reduction in emissions, 

whether locally or regionally, is the final major step in the process. When regional 

emissions are the major contributor, regional solutions must be developed. One example of this activity is the exemplary work accomplished by the Northeast Ozone 

Transport Commission (OTC), including all states from Maine to Virginia, working 

together for a common cause. Using the mechanisms of MOUs and Resolutions, 

members of the OTC work together to develop control measures that benefit wide 

areas and not strictly one State. 

It is EPA’s responsibility and authority to require the preparation of SIPs as expeditiously as possible, and provide adequate support by developing guidance documents, in a timely manner, which states can use to move forward with their work 

on the SIPs. This mandate, as clearly defined in the Clean Air Act, forms the backbone for the important relationship between the Federal, State and local governments, and allows the entire process to move forward effectively and efficiently. For 

example, under the ozone and fine particle standard implementation rule, it is the 

clear responsibility for the Federal Government to promulgate rules on utilities and 

other large sources, mobile sources, ports, rail operations and others, that produce 

a universally positive impact on reducing emissions. Subsequent to that activity, 

and depending on how severe a nonattainment condition remains, State and local 

areas must fill in the gap with more localized measures that are not pre-empted by 

Federal authority. 

Thanks largely to the tools provided in the 1990 Clean Air Act Amendments, the 

number of days when air quality exceeded the ozone NAAQS has dropped significantly since 1990. On this hot day in July, which is typically a time of year when 

ozone pollution is at it worse, we need to be aware of the effect of the combination 

of high temperatures, abundant sunshine and extra ozone precursors (NOx and 

VOCs ) emitted from coal-and oil-fired power plants supplying power to the grid, 

which create a recipe for high ozone levels. The good news is that for several years, 

the average peak concentrations of ozone have declined based on data from Maryland, which is fairly typical for an eastern state. So, while today’s air quality is a 

‘‘Code Orange’’ (Unhealthy for Sensitive Groups) here in Washington and other eastern metropolitan areas, there is better chance of healthful air quality than 10 years 

ago, thanks to a variety of controls. For example, more than 170 Selective Catalytic 

Reduction (SCR) NOx control units have been installed from 2001 to 2005, and more 

than 50 percent of the coal fired capacity in five important states (IN, OH, KY, TN, 

and WV) have SCR. What is amazing is the current projection that many of us 

thought would be impossible only a few years ago: all of the major metropolitan 

areas in the OTC are now projected to meet 8-hour ozone standard—Washington, 

DC, Boston, Philadelphia, Baltimore, and, hopefully, New York/ Connecticut.35
60 

3670 Fed. Reg. 25162 (May 12, 2005); 40 CFR 51. 

This forum does not allow for a full description of the various controls that have 

contributed to this improvement in air quality, but I would like to list just some 

of the measures Delaware has adopted or are in the process of adopting, in coordination with other OTC states, most of which are not specifically identified in the CAA: 

1. Architectural and Industrial Maintenance (AIM) Coatings: reduced VOC content of numerous coatings beyond Federal requirements. 

2. Mobile Equipment: established coating equipment standards to reduce VOc

emissions. 

3. Gas Cans: required gas cans meet certain performance and permeability standards to reduce VOc emissions. 

4. Degreasing: reduced degreaser vapor pressure and instated equipment standards and work practices to reduce VOc emissions. 

5. Control of NOx Emissions from Large Boilers: reduced NOx emissions from boilers larger than 100 mmbtu/hr that weren’t well controlled through other programs. 

6. Anti-Idling: reduced VOc, NOx, SOx, and DPM emissions from heavy duty vehicles by reducing allowable idling time. 

7. Open Burning: instated strict open burning ban during the ozone season. 

8. Minor NSR: reduced criteria pollutant and air toxic emissions by subjecting 

new minor stationary sources to top-down BACT requirements. 

9. OTC NOX Budget Program: participated in a regional NOx Cap and Trade program to reduce NOx emissions from power plants (program later replaced by the 

NOx SIP Call). 

10. Adopted several regulations to reinforce EPA-adopted heavy-duty diesel rules. 

11. Stationary Generator Regulation: will reduce criteria pollutant and carbon dioxide emissions from stationary generators. 

12. Peaking Units: will reduce peak ozone day NOx emissions from combustion 

turbines used as electrical peaking units. 

13. Refinery Boilers: will reduce NOx emissions from large refinery boilers. 

14. Non-Refinery Boilers: will reduce NOx emissions from large non-refinery boil- ers. 15. Utilities Multi-P: will reduce NOx, SOx, and Hg emissions from Delaware’s 

coal and residual oil fired electric utilities. 

16. Lightering: will reduce VOc emissions from crude oil lightering operations in 

the Delaware Bay. 

The point is that there is no ‘‘silver bullet’’ solution, but a variety of individual 

actions that yield success. We weigh each of these control measures carefully to seek 

the most cost effective measures to meet our air quality goals in a way that makes 

sense for our state. This is where the various cost-effectiveness issues are appropriately considered, not in setting the NAAQS. 

D. More Work is Needed to Meet Air Quality Goals 

Notwithstanding this progress, largely through State efforts, air pollution control 

cries out for a complementary strong Federal role over interState activity. The primary EPA response to this need for a stronger Federal role is the Clean Air InterState Rule (CAIR)36, which was an important step toward addressing the age-old 

problem long known to those of us in the dismal science of air pollution: the wind 

obeys no State boundaries. 

We have worked with other Ozone Transport Commission (OTC) states to evaluate CAIR and found it does not adequately reduce emissions to levels needed to 

reach attainment of lower ozone and PM standards in the northeast and mid-Atlantic States. EPA acknowledged that there would be ‘‘residual’’ non-attainment areas 

after full implementation of CAIR, but detailed modeling suggests strongly that the 

difference between EPA’s coarse scale modeling and that which was done by the 

OTC shows there was a larger gap to fill. Relative to the current ozone and fine 

particulate matter standards we believe we have bridged this gap left by the CAIR 

rule. However, a gap between the where we are now, and the new ozone and fine 

particulate matter standards still exists. The kinds of improvements on the original 

CAIR framework include nonroad emission control and fuel requirements, and the 

tightening of the existing controls on stationary sources. Another example of measures directed to improve upon the CAIR framework are being accomplished under 

the auspices of other regional organizations in the Midwest and the Southeast. 

EPA’s adoption of the CAIR rule is clearly a universally effective first step, but 

it only a first step. While EPA has taken an important first step to address transport, we are still concerned that the agency has not done enough, and more must 

be done to address these new, more stringent health based standards. Additionally, 

we are troubled by EPA effort to weaken an important regulatory tool under Section 
61 

126 of the Clean Air Act for addressing interState transport, and actions such as 

preemption of State authority on small engine controls, accomplished by legislated 

activity and prevention of State’s ability to adopt mobile source rules identical to 

those of California, severely hamper a state’s ability to do its job. Very simply put, 

if a State is able to pass muster through its normal adoption process, which is both 

very open and rigorous, there is no reason to prevent a State from doing so. 

Delaware has been working for more than 30 years to reduce ozone concentrations. We have controlled all large sources of emissions that contribute to the ozone 

problem far beyond the minimum Federal requirements. We have controlled all our 

major VOc and NOx sources with reasonably available control technology (RACT). 

We have gone beyond RACT, and further controlled Delaware-unique sources like 

Lightering; sources that are large on a regional and national basis like consumer 

products and paints; and sources where the EPA did not go far enough, like regulations covering power plants. 

We have done a lot to reduce ozone concentrations, and it shows in our air quality. Delaware has attained compliance with the previous 1-hour ozone NAAQS, and 

have recently demonstrated that we will attain compliance with the current 8-hour 

NAAQS by 2010. We know what it takes to reduce ozone concentrations, and we 

will do more, however we also know that we, ourselves, cannot reduce ozone concentrations much more. The implementation process associated with any new, tighter ozone NAAQS must recognize this, and a key to that recognition is how non-attainment area boundaries are established. It is this area that we need EPA and legislative support. 

In the past the EPA has concentrated on Metropolitan Statistical Area or Consolidated Metropolitan Statistical Area (C/MSA) associations as the presumptive 

NAAQS non-attainment area boundary. Delaware believes that continuing this practice will not be successful under a tighter ozone NAAQS. Reasons for this belief include: 

• The C/MSA approach is based on census data rather than airshed analysis data. 

Census data, in comparison to airshed analysis data, represents a poor surrogate 

for determining non-attainment boundaries. 

• Detailed regional airshed studies have been completed, such as the Regional 

Oxidant Modeling (ROM) project covering most of the Ozone Transport Region 

(OTR) states, the Ozone Transport Assessment Group (OTAG) project and the NOX 

SIP Call analysis covering most of the Eastern U.S. These studies have demonstrated that the ozone problem is transport-driven and regional in scope, rather 

than localized or confined to relatively small C/MSA’s. These studies have further 

demonstrated that individual C/MSA’s have minimal control over their ability to 

demonstrate or achieve attainment. Delaware believes that this conclusion should 

become the cornerstone of good air quality planning and policy, starting with the 

crucial boundary determinations. 

• In many areas, including Delaware, the air coming into a county is often with 

ozone concentration greater than the current 85 ppb ozone NAAQS, so under the 

C/MSA approach such an area may be required to solve a problem that is not possible to solve under its own authority. This will likely be more of a factor under a 

tighter ozone NAAQS. Should the EPA continue to fail to address transport completely and in a timely manner, this could lead to a need to install ineffective and 

costly controls, sanctions under the CAA, and likely delay protecting public health 

in those areas. 

• The C/MSA-based approach has had, at best, minimal success toward achieving 

attainment of the prior 1-hour and the current 8-hour NAAQS. From Delaware’s experience, most of the success on the east coast to date is attributable to national 

measures taken by the EPA, and regional measures developed and adopted by the 

Ozone Transport Commission (OTC) member states. Given that 8-hour non-attainment under any new, tighter NAAQS would be more regional in nature than the 

current 8-hour non-attainment, a C/MSA-based approach is not appropriate. 

Delaware believes that the EPA must designate non-attainment area boundaries 

consistent with the regional nature of the problem. Delaware believes that one way 

of doing this is by designating as a single non-attainment area, within an area that 

is as regional as possible, all counties that are ‘‘non-attainment’’ with the 8-hour 

ozone NAAQS. Practically speaking, this recommendation would likely establish a 

single non-attainment area that encompasses all counties that are monitoring nonattainment, or that are part of a non-attainment CMSA, within the NOx SIP Call 

domain. 

Delaware believes that a regional approach would: 

• Include in the non-attainment area all or most of the counties necessary to 

solve this regional problem. It will give all involved a vested interest in solving this 
62 

regional problem. It will also foster cooperative development and implementation of 

control strategies that will best serve the designated areas. 

• Remove political barriers, and level the playing field by setting the consistent, 

proven baseline control requirements of Subpart 2 of Title I, Part D of the CAA 

within the region, which include New Source Review (NSR), vehicle Inspection and 

Maintenance, and Reasonably Available Control Technology (RACT) requirements. 

• Compliment national and regional rules that address regional transport. 

• Recognize that ozone non-attainment is a ‘‘regional problem’’ and not a ‘‘local 

problem with a transport component,’’ and that it is necessary to go beyond the C/ 

MSA approach that has largely failed for nearly three decades under the 1-hour 

ozone NAAQS. 

• Simplify and provide equity to the process of implementing the 8-hour NAAQS. 

In short, demonstrate that we have learned that a continuation of the existing process does not work. 

Delaware fully acknowledges that the progress we have made to date in the control of ozone has only been possible because of the collaborative process between 

EPA and the states. EPA’s continuing efforts to establish stringent Federal mobile 

source emission standards, develop improved modeling and other analytical techniques, and develop policies that facilitate the development and implementation of 

large-scale attainment strategies are greatly appreciated. An intensified level of effort will be imperative to our continued success. I hope that EPA will be open to 

policy changes that will support the technically sound and equitable ozone attainment process being recommended here by Delaware. 

In addition to continued near-term implementation of these measures, a whole 

new set of air pollution controls will likely required in the long term. Beyond using 

‘‘end-of the pipe’’ controls, and ‘‘command and control systems,’’ we know that fundamentally different approaches will be needed if we are to meet our long-term air 

quality goals. For example, much more investment into energy efficiency is needed. 

Also, a much stronger and serious coordination on land use goals to help prevent 

suburban sprawl, which leaves generations of citizens with no realistic option but 

the use of their private automobiles for transportation. After decades of unbridled 

sprawl, it is virtually impossible to superimpose a mass-transit system on top of 

land-use patterns designed for cars, much less encourage more walkable and livable 

communities among car-friendly development patterns. I was proud to attend the 

recent celebration of the completion of the Wilmington and Western Railroad in 

Hockessin, Delaware, and hear our home State Senator Tom Carper speak. He used 

the opportunity to make the point that trains are not merely part of the past, but 

will be part of our future as well; and that we must meet the challenge of reducing 

our oil dependency, which results in sending money overseas to a part of the world 

where people want to harm us. My 10-year old son, said, ‘‘Dad, he sounds like you.’’ 

I told him, ‘‘No, Nicolai; maybe I sound like him.’’ I greatly appreciate your leadership on these issues, Mr. Chairman. 

Thank you for the opportunity to present these views. I would be happy to answer 

your questions. 

Senator CARPER. Thank you. Thank you for an excellent statement. 

Now we will hear from Vickie Patton, who is Deputy General 

Counsel of Environmental Defense. She was introduced to me as 

one of five people in the United States who actually understands 

the Clean Air Act. I suspect one or two more who understand it are 

in this room. But that is a high commendation, and I am glad 

somebody does. I am glad that I have you around to explain some 

of it to us from time to time. Thank you for being here today. You 

are recognized for 5 minutes. 

STATEMENT OF VICKIE PATTON, DEPUTY GENERAL COUNSEL, 

ENVIRONMENTAL DEFENSE 

Ms. PATTON. Thank you very much, Senator Carper, Senator 

Boxer, Senator Voinovich, for the opportunity to be here today. 

I have spent about 16 years of my career working on clean air 

issues. First, in the Environmental Protection Agency’s Office of 

General Counsel, where I served in the first Bush administration 
63 

and then in the Clinton administration as a staff attorney, and 

then working at Environmental Defense, a non-partisan, non-profit 

science-based environmental advocacy organization. 

I would like to just build on some of the comments that you all 

have made. Several of you have commented on the recommendations of EPA’s Clean Air Scientific Advisory Committee. There was, 

in fact, something remarkable happened on October 4th of 2006, 

when that Clean Air Scientific Advisory Committee gave its recommendations to the Administrator of EPA. 

There are several aspects of this letter that are quite striking. 

The first is the force and the clarity of the recommendations. What 

they said to the Administrator of EPA is that there is no scientific 

justification for retaining the current health standard, no scientific 

justification. Those are very strong words from the Nation’s leading 

scientists. 

Second, they said that the current standard should be substantially reduced. Not only did they say that it should be substantially 

reduced, but they said, based on this body of science before us, the 

appropriate range of protection is between 06 and .07. 

Then they went on to say that really, not only are these the 

views of the individual members of the CASAC, but these are the 

views of this 23 member body that includes the Nation’s leading 

epidemiologists, toxicologists, doctors. Not only does it reflect their 

views, but what it reflected is really the culmination of one of the 

most powerful processes we have in our system of government for 

integrating science into public policy. And that is this process 

under the Clean Air Act whereby we look at this amalgam of really 

tremendous scientific evidence and integrate it into this really important system of laws to protect human health and the environment. 

What they said is that the nature of the evidence here is really 

compelling, because it is not just that we have multi-city and single 

city epidemiological studies, we do, and it is not just that we have 

human exposure studies where citizens, oftentimes healthy college 

students, voluntarily submit themselves to exposures in chambers 

where scientists look at how they respond to different levels of 

ozone. They measure how their body reacts. We do. 

But we also have toxicological evidence, epidemiological evidence, 

human exposure studies, toxicological evidence, this really broad 

nature of evidence that tells us that we need to do better to protect 

human health. But we also have compelling evidence about the 

range of effects that are observed. We know that there are increased school absences on high ozone days. We know that there 

are increased emergency room visits. We know that there is increased use of medication as Americans struggle to try to manage 

constricted chest symptoms on an unhealthy ozone day. And we 

know that there is premature death because of the research of people like Professor Bell, who is with us today. 

So there are a range of different pieces of evidence indicating 

that there are a broad suite of effects across the population. And 

indeed, that population reaches quite broadly. The CASAC letter 

said that it includes children, because their lungs are developing. 

The CASAC letter said that the population at risk includes people 

who are active. If you are, for example, a United States Senator 
64 

who enjoys running half marathons, you are at risk on high ozone 

days. If you are above the age of 65, you are at risk on high ozone 

days. And if you are an American that suffers from any kind of respiratory ailment, you are susceptible to serious risk on high ozone 

days. 

So it was this body of evidence that these tremendous respected 

scientists reviewed in making their recommendation to EPA. I 

would just say quickly that is in contrast with what happened here 

in this rulemaking proceeding in a Washington minute, when in 

the final stages of the rulemaking process, on June 20th, the day 

that EPA was entrusted with making this decision, there was a fax 

sent over from the Office of Management and Budget that altered 

the strength of this body of scientific evidence and was incorporated into this rule. And it suggests that the Administrator is 

under tremendous headwinds in making a decision that is truly 

requisite to protect public health based on an adequate margin of 

safety. 

Thank you. 

[The prepared statement of Ms. Patton follows:] 

STATEMENT OF VICKIE PATTON, DEPUTY GENERAL COUNSEL, ENVIRONMENTAL DEFENSE

Thank you very much, Mr. Chairman and members of the subcommittee, for the 

opportunity to testify about the U.S. Environmental Protection Agency’s proposed 

revisions to the nation’s health-based ambient air quality standard for ground-level 

ozone. My name is Vickie Patton. I am the Deputy General Counsel at Environmental 

Defense, a national non-partisan science-based environmental organization, where 

I manage national and regional air quality programs. I previously served as an attorney in the U.S. Environmental Protection Agency’s Office of General Counsel 

under the George H.W. Bush and William Clinton administrations where I worked 

on a variety of Clean Air Act matters. 

BIPARTISAN SUPPORT, EXTRAORDINARY ACHIEVEMENTS

The Clean Air Act is one of the nation’s single most effective environmental statutes. Since its adoption in 1970, it has been a triumph of bipartisanship and 

healthier air. 

Senator John Sherman Cooper, a Republican from Kentucky, captured the spirit 

of bipartisan cooperation that led to the U.S. Senate’s historic—and unanimous— 

adoption of the Clean Air Act in 1970: 

We worked together. We disagreed. We worried about many provisions of the bill. 

At last, however, we joined unanimously in recommending and sponsoring this 

bill,believing that our approach was one that could make progress toward the solution of the problem of air pollution. 

Senator Cooper was wise in his predictions. 

The unanimous will of the U.S. Senate has secured healthier air for millions of 

Americans. The 1970 Clean Air Act embodies the great promise of the American 

system of law-making in practice. People of good will translated studious research 

and bold aspirations to writing, and changed history forever. 

Through its judicious words, the 1970 Senate saved numerous lives and prevented 

countless illnesses. The bipartisan founders of the Clean Air Act enabled millions 

of children to realize their potential unencumbered by neurotoxic lead pollution, and 

for children across the land to share their precious childhood dreams with grandparents whose lives have been prolonged by reductions in air pollution. 

THE CLEAN AIR ACT’S TWO-STEP PROCESS

Congress in 1970 established an effective process in the fight against air pollution. 

Congress commanded that the national ambient air quality standards be based on 

public health considerations alone. Then, economics are thoroughly considered in devising the air pollution control strategies to achieve the health standards. So the 
65 

1Clean Air Act §109(b)(1), 42 U.S.C.§7409(b)(1). 2See Lead Industries Assn., Inc. v. EPA, 647 F.2d 1130 (D.C. Cir. 1980); American Lung Assn. 

v. EPA, 134 F.3d 388 (1998); NRDC v. Administrator, EPA, 902 F.2d 962 (D.C. Cir. 1990), vacated in part on other grounds, NRDC v. EPA, 921 F.2d 326 (D.C. Cir. 1991); American Petroleum Institute v. Costle, 665 F.2d 1176 (D.C. Cir. 1981). 3Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 465 (2001). 

4Id. (emphasis added). 

542 U.S.C. §§7521(a), 7547(a), 7545, 7541, and 7411(a). 6Whitman v. American Trucking Assns., Inc., 531 U.S. at 470. 

law is sharply focused in ensuring the nation’s health-standards are established 

solely on the basis of public health, and this same law is broadly encompassing in 

considering economics when Federal, State and local officials determine how to costeffectively achieve the health standards. 

PUBLIC HEALTH 

Some in industry have long protested this carefully calibrated dual system. Some 

have argued that this two-step inquiry should be conflated rather than distinct, that 

the nation’s health standards should be based on economics and then economics 

should likewise infuse the policies to achieve the standards. This argument has been 

thoroughly presented—and resoundingly rejected—over the past 37 years. 

This question was answered by a unanimous Senate in 1970. The language crafted by Congress in 1970 is straight forward; its meaning is plain. The Administrator 

is instructed to establish standards that ‘‘are requisite to protect the public health’’ 

with ‘‘an adequate margin of safety.’’1 The statute thus provides for the health-based 

standards to be based exclusively on public health and to be precautionary in safeguarding against adverse health effects. 

This question has also been consistently answered by the decisions of prior EPA 

Administrators and numerous judicial decisions of the Federal court of appeals in 

Washington, DC.2

Ultimately, this question was emphatically answered by a unanimous Supreme 

Court. Justice Antonin Scalia, writing for the high Court, explained that the text 

of the Clean Air Act is clear notwithstanding the copious arguments of industry lawyers: ‘‘Were it not for the hundreds of pages of briefing respondents have submitted 

on the issue, one would have thought it fairly clear that this text does not permit 

the EPA to consider costs in setting the standards.’’3

Justice Scalia then set forth the inquiry the Administrator must make in establishing the nation’s health-based air quality standards on the basis of science: 

The EPA, ‘based on’ the information about health effects contained in the technical ‘criteria’documents compiled under §108(a)(2), 42 U.S.C. §7408(a)(2), is to identify the maximum airborne concentration of a pollutant that the public health can 

tolerate, decrease the concentration to provide an ‘adequate’ margin of safety, and 

set the standard at that level. Nowhere are the costs of achieving such a standard 

made part of that initial calculation.4

Accordingly, in setting the health-based air quality standard for ozone, Administrator Johnson must be steadfast—and unwavering—in basing his decision exclusively on what is requisite to protect the public health with an adequate margin of 

safety. 

ECONOMICS 

After the standards are established, the Clean Air Act provides a prominent role 

for consideration of costs in national, State and local decisions about the pollution 

control strategies deployed to achieve the health standards. EPA is not only empowered to consider costs in setting emission limits for cars, SUVs, trucks, buses, construction equipment, lawnmowers, aircraft, fuels, power plants, and industrial facilities but it is expressly required by law to do so.5

States and local governments, in turn, are distinctly responsible for designing the 

air quality management plans for their communities and entrusted with determining how the cleanup burden is allocated. Justice Scalia succinctly explained that 

‘‘[i]t is to the States that the Act assigns initial and primary responsibility for deciding what emissions reductions will be required from which sources.’’6

THE RESULTS 

In practice, the two-step process forged in 1970 has been integral to the enduring 

success of the Clean Air Act. By any measure, the achievements under the national 

ambient air quality standards have been profound. 
66 

7Department of Commerce, Gross Domestic Product (2005). 

8National Research Council, Committee on Carbon Monoxide Episodes in Meteorological and 

Topographical Problem Areas. Managing Carbon Monoxide Pollution in Meteorological and Topographical Problem Areas, National Academies Press (2003). 9U.S. EPA, ‘‘National Air Quality; 2001 Status and Trends’’ (Sept. 2004). 

10Mott JA, Wolfe MI, Alverson CJ, Macdonald SC, Bailey CR, Ball LB, Moorman JE, Somers 

JH, Mannino DM, Redd SC. ‘‘National Vehicle Emissions Policies and Practices and Declining 

US Carbon Monoxide-Related Mortality,’’ JAMA, 299 (2002) 988–995. 11U.S. EPA, The Ozone Report, Measuring Progress through 2003, (Nov. 17, 2005). 

Emissions Reductions and Economic Growth 

Under this two-step process, America has dramatically reduced the emissions that 

contribute to the national ambient air quality standards while the economy has 

grown. 

• Lead emissions have been slashed some 98 percent since 1970. 

• Volatile organic compounds, which form ground-level ozone and are often comprised of toxic contaminants, have been reduced by over 50 percent since 1970. 

• Sulfur dioxide, which transforms into deleterious particulate pollution, has also 

been cut in half since 1970. 

• Nitrogen oxides, which are implicated in the formation of ground-level ozone 

and particulate pollution, have been lowered nearly one quarter since 1970. 

During the period that these remarkable emissions reductions have occurred, 

gross domestic product has risen some 174 percent.7

Restoring Healthy Air in Communities and Neighborhoods 

Similarly, communities with pollution concentrations above the national ambient 

air quality standards have reduced pollution, saved lives, prevented respiratory diseases and made enormous strides in restoring healthy air. 

• Carbon Monoxide. In 1971, when the carbon monoxide health standards were 

established, 53 out of 58 air quality monitors recorded violations. In 2000, only four 

monitors in the country exceeded the standards.8 EPA estimates that the average 

ambient carbon monoxide concentration in 2001 was 62 percent lower than it was 

in 1982. The 2001 carbon monoxide levels were the lowest recorded in 20 years.9

Reductions in carbon monoxide pollution have yielded dramatic returns for health 

and quality of life by preventing thousands of deaths. The Centers for Disease Control and Prevention estimate that approximately 11,700 deaths from accidental, 

acute exposures to carbon monoxide were avoided between 1968 and 1998 as a result of the strict vehicle emissions standards for carbon monoxide.10

• Ozone. In 2004, EPA identified some 126 communities across the Nation with 

air pollution concentrations above the ozone health standard adopted in 1997. 

Today, based on preliminary air quality data, EPA estimates that all but 35 of those 

areas have ozone concentrations that meet that health standard. Since 1980, peak 

ozone concentrations monitored at some 275 sites across the country have declined 

by more than 20 percent.11These pollution reductions have prevented hospital admissions and school absences for respiratory illnesses, and have saved lives. 
67 

12Centers for Disease Control and Prevention, Executive Summary, Third National Report on 

Human Exposure to Environmental Chemicals (2005). 13U.S. EPA, ‘‘The Benefits and Costs of the Clean Air Act, 1970 to 1990,’’ (Oct. 1997) 14Id. 

Health Benefits and Costs 

The health benefits secured—each year—due in predominant measure to the national ambient air quality standards under the Clean Air Act are extensive. 

• In the late 1970’s, nearly every child in America—88.2 percent—had blood lead 

levels higher than the level of concern established by the Centers for Disease Control and Prevention. By 2000, after the full phase-out of leaded gasoline, 2.2 percent 

of American children had blood lead levels exceeding the level of concern.12

• Each year, the Clean Air Act prevents well over 200,000 premature deaths, 

more than 650,000 cases of chronic bronchitis, over 200,000 hospital admissions, 

more than 200 million respiratory ailments, and over 22 million lost work days.13

• The monetary benefits to society have outweighed the costs by a factor of more 

than 40:1.14

Technological and Economic Innovation 

Technological innovation has made these far-reaching gains in reducing air pollution and protecting public health possible at far less cost than originally anticipated. 

• Carbon monoxide is caused by incomplete combustion of gasoline in passenger 

cars and trucks. Pollution levels were reduced through improved catalytic converters, fuel injection systems and oxygenated fuels. 

• In the 1970’s, the automakers warned of grave economic consequences if they 

were required to place catalytic converters in new cars. Today, every car manufactured is equipped with a catalytic control device to reduce tailpipe emissions. 

• In 2002, DuPont developed paints and industrial coatings for Daimler Chrysler’s coating operation, such as the ‘‘Super High Solid’’ clear coat, that emit few, if 

any, ozone-forming volatile organic compounds. 

• Selective catalytic reduction technologies, deemed infeasible in the early 1990’s, 

are now broadly achieving 90 percent NOx removal from existing coal plants in the 

East thereby lowering ozone and particulate pollution. 
68 

15Sierra Research, Inc., ‘‘The Cost Effectiveness of Further Regulating Mobile Source Emissions,’’ Feb. 28, 1994. 16he New York Times, ‘‘Honda Meets a Strict Emission Rule,’’ August 30, 1995. 17Prepared for EPA by ICF Consulting, The Clean Air Act Amendments: Spurring Innovation 

and Growth While Cleaning the Air, (Oct. 27, 2005). 18Whitman v. American Trucking Assns., Inc., 531 U.S. at 469. 19Clean Air Act §109(b)(1), 42 U.S.C.§7409(b)(1). 20Dr. Rogene Henderson, Chair, CASAC, to Stephen Johnson, EPA Administrator, ‘‘Clean Air 

Scientific Advisory Committee’s (CASAC) Peer Review of the Agency’s 2d Draft Ozone Staff 

Paper,’’ (Oct. 24, 2006). 

• Diesel desulfurization and fluid catalyst cracking technologies have enabled 

ultra low sulfur diesel fuels and dramatically reduced emissions of particulates, 

NOx and sulfur dioxide. • Scrubber technology to remove sulfur dioxide from power plant stack gases is 

now deployed at a fraction of the costs predicted during the debate over the 1990 

Clean Air Act amendments, and wet scrubbers can now achieve 98 percent sulfur 

dioxide control. • In 2001, EPA established rigorous particulate pollution emission standards for 

new diesel trucks and buses, based on the use of catalyzed diesel particulate filters, 

after a public rulemaking process in which engine manufactures questioned the timing and stringency. Today, new diesel truck and bus engines rolling off the assembly 

line have dramatically lower particulate pollution. • In 1994, automobile manufacturers estimated the cost of advanced low emission 

vehicles would be in excess of $1,500.15 One year later, Honda placed a Civic subcompact model on the market that emitted less than half of what was permitted 

under California law, at a cost of $100.16

EPA estimates that the suite of innovative technologies, processes and products 

that have been developed to meet the nation’s air quality standards and other Clean 

Air Act programs have not only delivered extraordinary results but that the nation’s 

pollution control industry has thrived, generating over $200 billion in revenues and 

supporting more than 3 million jobs.17

Telling the Public Whether the Air is Safe to Breathe 

The two-step system of air quality management adopted in 1970 ensures that the 

nation’s health standards will be based, exclusively, on health science. This system 

of air quality management puts the nation’s very best scientists at the forefront 

while provisionally relegating the economists, lobbyists and lawyers to the 

backburner. Most importantly, however, this system of air quality management provides American families with a transparent and unmitigated science-grounded 

benchmark for determining whether the air in their neighborhood or community is 

safe to breathe. And it leaves ample room for the economists and the lawyers and 

the lobbyists to argue subsequently, in a variety of forums, to what extent society 

should invest in restoring healthy air. 

In sum, the Clean Air Act has been vigorously tested over the past 37 years and 

it has delivered robust results. Central to its success is the two-part inquiry in 

which the consideration of costs is not commingled with the establishment of the 

national ambient air quality standards on the basis of public health. As Justice 

Scalia explained for a unanimous Supreme Court, conflating costs with public 

health in setting the standards may altogether eliminate protection against adverse 

health effects: the consideration of costs ‘‘is both so indirectly related to public 

health and so full of potential for canceling the conclusions drawn from direct health 

effects.’’18

EPA’S PROPOSED OZONE DECISION

The Administrator, in making his final decision on the ozone NAAQS due March 

12, 2008, must establish standards that ‘‘are requisite to protect the public health’’ 

with ‘‘an adequate margin of safety.’’19 There are, however, grounds for concern 

about the direction EPA’s final decision will tack notwithstanding this plain statutory mandate and the nation’s time tested air quality management system. 

Retaining the Current Health Standard is Not Supported by Science and Would 

Continue to Put Large Numbers of Individuals at Risk 

The EPA Clean Air Scientific Advisory Committee unanimously and unambiguously advised EPA Administrator Stephen Johnson: ‘‘(1) There is no scientific justification for retaining the current primary 8-hr NAAQS of 0.08 parts per million 

(ppm), and (2) The primary 8-hr NAAQS needs to be substantially reduced to protect human health, particularly in sensitive subpopulations.’’20 The Committee also 
69 

21Id. at 2 (italics in original). 22Id. at 5 (italics in original). 23Id. at 3 (citations omitted). 24Id. at 4. 25Id. at 5. 26The notice of proposed rulemaking was formally published on April 3, 2007, 72 Fed. Reg. 

15,938. 27EPA Staff Email to David Rostker, OMB (Jan. 17, 2007), Appendix A. 28Id. 29EPA Staff Email to David Rostker, OMB (Feb. 22, 2007), Appendix A. 

unanimously agreed upon a recommended range: ‘‘Therefore, the CASAC unanimously recommends a range of 0.060 to 0.070 ppm for the primary ozone NAAQS.’’21

These recommendations leave no room for misinterpretation. 

But EPA has nevertheless expressly held open the prospect of retaining the current health standard for ozone unchanged, and EPA explicitly seeks public comment 

on such an outcome. The CASAC squarely addressed this matter and pointedly 

found that ‘‘there is no longer significant scientific uncertainty regarding CASAC’s 

conclusion that the current 8-hr primary NAAQS must be lowered’’ and ‘‘[r]etaining 

this standard would continue to put large numbers of individuals at risk’’ — 

[T]here is no longer significant scientific uncertainty regarding the CASAC’s conclusion that the current 8-hr primary NAAQS must be lowered. A large body of data 

clearly demonstrates adverse human health effects at the current level of the 8-hr 

primary ozone standard. Retaining this standard would continue to put large numbers of individuals at risk for respiratory effects and/or significant impact on quality 

of life including asthma exacerbations, emergency room visits, hospital admissions 

and mortality.2

In sum, CASAC unequivocally found that there is no basis in public health considerations for EPA to retain the current standard. EPA nevertheless persists in considering this flawed option. 

OMB Instructed EPA to Delete References to Ozone Mortality Benefits in Important Recent Rulemakings Under the Clean Air Act 

The scientific evidence of mortality benefits is one of the significant scientific developments since EPA’s 1997 decision to lower the ozone health standard. The 

CASAC expressly pointed to the studies on ozone mortality effects as part of the 

body of evidence documenting adverse health effects below the current health standard. The CASAC found: 

• ‘‘Several new single-city studies and large multi-city studies designed specifically to examine the effects of ozone and other pollutants on both morbidity and 

mortality have provided more evidence for adverse health effects at concentrations 

lower than the current standard.’’23

• ‘‘[A]dverse health effects due to low-concentration exposure to ambient ozone 

(that is, below the current primary 8-hour NAAQS) found in the broad range of epidemiologic and controlled exposure studies cited above include . . . an increase in 

mortality (non-accidental, cardiorespiratory deaths) reported at exposure levels well 

below the current standard.’’24

• ‘‘Retaining this [the current] standard would continue to put large numbers of 

individuals at risk for . . . mortality.’’25

CASAC’s series of statements in its October 24, 2006 correspondence to the Administrator placed CASAC’s full force, unanimously, on the evidence of mortality 

and other health effects in compelling EPA to adopt a lower standard to protect public health with an adequate margin of safety. But, only a few moths thereafter, 

OMB was moving in the opposite direction, instructing EPA staff to remove ozone 

mortality benefits from major rulemaking initiatives involving reductions in ozoneforming pollution. 

Appendix A attached contains three emails between EPA staff and OMB in the 

context of a draft rulemaking proposal to lower ozone-forming pollutants and other 

contaminants from diesel locomotives and commercial ships.26 The first email, dated 

January 17, 2007, from EPA staff to Mr. David Rostker at OMB, transmits the discussion of ozone mortality that EPA ‘‘plan[s] to include in the RIA for the proposed 

Locomotive and Marine Engine Rule.’’27 The EPA staff member further explains 

that ‘‘[m]any Agency staff have contributed to this version, including representatives 

from OAQPS, OPEI, ORD, and OPAR.’’28 On February 22, 2007, EPA staff sends 

a follow up note to Mr. Rostker at OMB describing the current status of discussions 

with OMB: ‘‘As best we know, the only open issues/comments are ozone mortality 

and your question about idle reduction.’’29 The very next day, EPA staff sends an 

email to Mr. Rostker, of OMB, now reporting that the discussion of ozone mortality 

benefits will be removed from the both the preamble to the rule and the draft Regu-
70 

30EPA Staff Email to David Rostker, OMB (Feb. 23, 2007), Appendix A. 31EPA Staff Email to David Rostker, OMB (March 29, 2007), Appendix B. 3272 Fed. Reg. 28,098 (May 18, 2007). 33OMB Interagency Fax, available at EPA-HQ-OAR–2005–0171–0215, p. 1, Appendix C (emphasis added). 

latory Impact Analysis: ‘‘The text below was written to address the fact that we 

aren’t including ozone benefits (mortality or otherwise) in our analysis. The same 

paragraph will be included in both the preamble and the RIA. For now, however, 

I’m pasting it below for your review.’’30 The implication is clear. OMB rejected EPA’s 

language analyzing the ozone mortality benefits as part of the basis for an important national rulemaking, and did so only months after CASAC recognized the powerful force of the studies associating ozone and death. 

The process repeated itself the very next month. During the development of another important rule, EPA staff responded to an email from Mr. David Rostker at 

OMB flagging his objections to quantified ozone mortality benefits in the draft Regulatory Impact Analysis. The EPA response to OMB’s objection states: ‘‘We have removed all references to quantified ozone benefits (including mortality) in the most 

recent version of the ES.’’31 The rulemaking in questions involved proposed new 

emission standards to limit the ozone-forming pollution from gasoline-powered 

lawnmowers, handheld garden engines, and marine sterndrive engines.32

OMB Transmitted Significant 11th Hour Language Changes to 

Weaken the Rule That were Incorporated Into EPA’s Formal 

Ozone NAAQS Proposal 

EPA was under a court-supervised deadline to issue its proposal regarding the 

ozone NAAQS by June 20th. The public docket shows that on that day, OMB transmitted a series of inserts to EPA that altered, and materially weakened, the proposal in the following significant respects: • The first page of the fax from OMB contains excerpts from Justice Breyer’s concurring opinion in Whitman v. American Trucking Assns, Inc. OMB presents the 

language to EPA as the basis for the Agency to avoid the majority opinion of the 

United States Supreme Court. The explanatory language at the top of the fax states: 

‘‘EPA could follow the direction of a Supreme Court Justice without fear of contempt, especially if (as OIRA pointed out) the EPA risk assessment finds little 

health improvement nationwide.’’33 Justice Breyer’s language was in fact incorporated on pages 11–12 of the final proposal now posted on EPA’s website at: http:// 

www.epa.gov/ttn/naaqs/standards/ozone/data/2007—06—o3npr.pdf • The second page of this same fax from OMB contains language laying out the 

rationale for EPA to retain the current ozone health standard without changes 

based on a host of ‘‘uncertainties’’ provided by OMB. This OMB transmitted language, which was incorporated in substantial part in EPA’s preamble, reads as follows: ‘‘The Administrator recognizes that there is a concern that adopting a more 

stringent 8-hour standard now, without a better understanding of the health effects 

associated with O3 exposure at these lower levels, will have an uncertain public 

health payoff. These questions include uncertainty in (1) the exposure estimates, (2) 

the estimation of concentration-response associations in epi studies, (3) the potential 

role of co-pollutants in interpreting the reported associations in these epi studies, 

and 4) [sic] the effect of background concentrations. In fact, the Agency continues 

to undertake a substantial research program in an effort to clarify some of these 

uncertainties. As a result, the Administrator acknowledges the possibility that it 

would be appropriate to consider modifications of the 8-hour standard with a more 

complete body of information in hand rather than to initiative a change in the 

standard at this time.’’ This language was incorporated in significant respects at 

page 252 of the final proposal now posted on EPA’s website. The OMB transmitted 

litany of uncertainties associated with health effects below the current standard is 

in direct contrast with CASAC’s unwavering unanimous statements, recounted 

above, that there are a suite of adverse health effects below the current standard 

that compel EPA action and that there is no longer significant scientific uncertainty 

that the standard must be lowered. • The final document in the fax from OMB to EPA invokes three separate strands 

of argument in seeking to buttress EPA’s case for inaction. First, the OMB language 

argues, paradoxically, that the sluggish implementation pace of the current ozone 

health-standard should delay a new health standard. Second, OMB maintains that 

the likely delays in achieving a more protective health standard preclude the Administrator from considering the health benefits of lower ozone and, therefore, lowering the health standard will not realize public health gains. Third, it is claimed 
71 

34143 Cong. Rec. 3560 (1997). 35143 Cong. Rec. 1286 (1997). 

that the nation’s alternative fuels program may supersede the Administrator’s duty 

to establish standards requisite to protect public health with an adequate margin 

of safety. On this latter point, the language that appears in final form on pages 

251–52 expressly cross-references back to Justice Breyer’s concurrence, thereby completing the circle with the first insertion above. The actual final language incorporated at OMB’s behest provides: ‘‘The Administrator is mindful that the country 

has important goals related to the increase production and use of renewable energy, 

and that these new energy sources can have important public health, environmental 

and other benefits, such as national security benefits. In some contexts and situations, however, the use of renewable fuels may impact compliance with a lowered 

ozone NAAQS standard. For example, the Agency recently promulgated final regulations pursuant to section 211(o) of the Clean Air Act, which was enacted as part 

of the Energy Policy Act of 2005. This provision requires the use of 7.5 billion gallons of renewable fuel by 2012, a level which will be greatly exceeded in practice. 

In the Regulatory Impact Analysis which accompanied the renewable fuel regulations, the Agency recognized the impact of this program on emissions related to 

ozone, toxics and greenhouse gases and otherwise reviewed the impacts on energy 

security. The Administrator requests comment on such factors and any relationship 

to this rulemaking, including the extent of EPA’s discretion under the Clean Air Act 

to take such factors into account (see section I.A).’’ This final portion of the OMB 

fax was incorporated in large part at pages 251–52 of the final proposal now available on EPA’s website. 

While the nation’s interest in renewable fuels is well-understood, OMB’s language 

inverts the public health protection mandate of the law. OMB’s approach would supersede the statute’s directive to establish NAAQS that protect public health with 

an adequate margin of safety for ozone, particulate pollution, lead or any other pollutant by invoking a favored industrial activity or process. In such an illogical 

world, emissions would inexorably rise as the nation’s health standards are adjusted 

upward to accommodate more pollution. 

The rushed OMB fax, which was belatedly inserted into EPA’s formal proposal, 

provides an array of technical, policy and legal arguments designed to justify EPA 

inaction OMB also pressed for inclusion of the language in the Administrator’s own 

voice. In one revealing passage, the OMB transmitted fax asks whether it is ‘‘Possible to include as Administrator’s voice or somewhere other than the five pages of 

input from ‘commenters’?’’ 

The Clean Air Scientific Advisory Committee Issued a Unanimous, 

Clarion Call for the Administrator to Adopt an Ozone Standard 

More Protective of Public Health 

The CASAC has unanimously called for a more protective health standard. It has 

unambiguously advised EPA that there is no scientific basis for retaining the current health standard. But some political forces have directly commanded important 

aspects of EPA’s proposal. 

Today, Administrator Johnson holds the trust of healthier air in his hands. Like 

the Administrators that preceded him, he is confronting powerful headwinds. We respectfully ask that Administrator Johnson follow the path of science in protecting 

human health, that he heed the course charted by EPA’s own unanimous 23 member independent science advisory committee, and that he be guided by EPA’s own 

professional staff in continuing the nation’s critical race for healthier air. We ask 

that he carry forward the legacy entrusted to him under the Clean air Act to protect 

human health from ground-level ozone with an adequate margin of safety. 

ECHOES FROM THE PAST

In 1997, EPA strengthened the nation’s particulate matter and ozone health 

standards in response to new science. EPA’s decision engendered claims of economic 

demise and social havoc from representatives of industry and Members of Congress. 

• ‘‘So economically you are strangled, you are hung up, you are not going to grow, 

jobs will not occur.’’ Congressman Ronald Klink.34

• The new standards ‘‘will wreak havoc on economic growth, jobs, and even personal lifestyles.’’ Congressman Fred Upton.35
72 

36143 Cong. Rec. S10813 (1997). 37Remarks by Howard H. Baker, Jr., ‘‘Cleaning America’s Air—Progress and Challenges,’’ The 

University of Tennessee, Knoxville, March 9, 2005. 

• ‘‘Dry cleaning establishments, hair salons, and other small businesses will not 

be able to absorb the increased costs imposed by these regulations.’’ Senator Spencer 

Abraham.36

These claims are not dissimilar from arguments being made now about ozone. 

But, during the 1997 debate, Senator Max Baucus provided perspective on the predictable cycle of discourse that ensues from EPA’s decision to strengthen the nation’s air quality standards. He recounted the inevitable prognostications of economic demise. He also explained a world where, in the final analysis, costs are in 

fact reasonable and millions breathe cleaner air: 

This is a familiar pattern. Air quality standards have always been met with 

claims of economic demise. But then technology catches up. Innovative programs are 

implemented. Further research bolsters the initial decision. In the end, costs are a 

fraction of initial claims, and everyone breathes cleaner air. 

A BIPARTISAN AMERICAN LEGACY

I leave you with the retrospective of former Senator Howard Baker, Jr., who reviewed the historic Clean Air Act legacy forged through the bipartisanship of the 

1970 U.S. Senate and gave life to a law ‘‘which more than well demonstrated that 

the whole is greater than the sum of its parts.’’ 

Retrospectives are interesting for people of my generation. There are many ways 

to sum up our careers. Many Members of Congress do that with the myriad pictures 

and awards they display on the walls of their offices. Others summarize their career 

by pointing to their elective and appointive achievements. Needless to say, mine has 

been bountiful thanks to my parents, the people of Tennessee, President Ronald 

Reagan and President George W. Bush. 

But at the end of the day, those personal achievements and rewards will be of 

most importance to my descendants and, hopefully, to my biographers. They will be 

measures of my success, but they won’t reflect the achievement of which I am most 

proud. But so long as the Clean Air Act, its principles and goals survive, I will have 

a lasting legacy. 

I have always been struck by the fact that Thomas Jefferson insisted that his 

tombstone reflect only that he had founded the University of Virginia—not that he 

was Ambassador to France—or Secretary of State—or Vice President or even President of the United States—not that he had drafted the Declaration of Independence, 

but that he had founded an institution of higher learning. 

I cannot compare my own career to Jefferson’s, nor would I be so bold to say that 

I alone wrote the Clean Air Act. But I am willing to say and let my legacy rest on 

the fact that I was one of two or three American citizens who happened to be United 

States Senators who came together at a particular moment in history and developed 

the concept which in many respects can be said to have changed the world in which 

we live. 

In 1969 Senator Ed Muskie and I came together with a shared vision. We each 

provided critical elements to that vision and we succeeded in producing a law which 

more than well demonstrated that the whole is greater than the sum of its parts.37

Basing the nation’s health-based air quality standards on public health concerns 

is, singularly, the most important principle woven into the vibrant fabric of the bipartisan Clean Air Act. The resulting benefits for healthier air have in fact changed 

the world in which we live. 

Senator CARPER. Thank you very much, Ms. Patton. 

Dr. McClellan, in recognizing you, let me just note that earlier, 

before he left, actually at the beginning of the hearing, Administrator Johnson was up here talking with Senator Boxer and I was 

congratulating her on her latest grandchild. He mentioned the fact 

that he had five grandchildren of his own. My friend, George 

Voinovich here, has seven, no fewer than seven grandchildren. 

But none of them, in fact probably no one in this room but you 

actually had a grandchild with you. And I am going to ask you, before you give us your testimony, that you take a moment and intro-
73 

duce this 8 year old young man who is sitting right behind Jim 

Werner. Would you do that, please? 

Before you do, let me just say, Christi Whitman, who used to be 

EPA Administrator and was a colleague of ours when we were Governors, Christi Whitman said to me not long ago after the birth of 

her grandchildren, she said to me, grandchildren are one of the few 

things in the world that are not overrated. 

[Laughter.] 

Mr. MCCLELLAN. I certainly agree with that. Thank you very 

much. 

I would like to introduce my grandson, Connor Byrne, if you will 

just stand up. He is from Portland, Oregon. He took time from his 

vacation with us in New Mexico to come here today for this hearing. 

[Applause.] 

Senator CARPER. Thank you for coming. Welcome. 

I am going to watch very carefully to see if your lips move when 

your grandfather speaks. 

[Laughter.] 

Senator CARPER. Dr. McClellan, we are delighted that you are 

here. Dr. McClellan is an advisor in the field of Toxicology and 

Human Health Risk Analysis. We are glad that he is here. Thank 

you. 

STATEMENT OF ROGER O. McCLELLAN, ADVISOR, 

TOXICOLOGY AND HUMAN HEALTH RISK ANALYSIS 

Dr. MCCLELLAN. Good morning, Senator Carper, Senator Boxer 

and Senator Voinovich. It is a pleasure to again appear before this 

Committee and offer you my views on EPA’s current review of the 

ozone standard. I request that my written testimony be entered 

into the record as though read in its entirety. 

Senator CARPER. And I assure you that it will be. 

Dr. MCCLELLAN. My testimony today draws on my experience 

serving on many EPA science advisory committees, including the 

Clean Air Scientific Advisory Committee, which I chaired from 

1988 to 1992, and on CASAC panels that have considered all of the 

criteria pollutants, including ozone. 

I wish to make several points today concerning the current review. These are my professional opinions on the science that 

undergirds this very important standard. The issue at hand is not 

does ozone do bad things. Ozone is capable of being injurious to 

public health. The question is one of at what level do we set the 

standard for an averaging time of 8 hours to protect public health. 

It is important to recognize that ozone in the ambient air arises 

from precursors that are both natural and man-made in origin. 

Ozone concentration vary throughout the day and throughout the 

year. As the level of the standard is reduced, it is important to recognize that the portion of the ozone in the air that we can control 

is reduced, because it is laid on top of natural background levels 

of ozone. 

Thus, the issue of the policy relevant background for ozone is 

very important. I will simply say that in this case, EPA got the 

science wrong in specifying the policy background level of ozone. 
74 

This has very important implications for setting the standard and, 

ultimately, attaining the standard. 

There is data on the health effects of exposure to ambient levels 

of ozone. We have heard reference to the controlled human exposure studies. There is clear evidence of functional changes above 

0.08 ppm. What EPA did in this case is to re-analyze the data of 

one investigation, Adams, and purport that it shows effects below 

0.08. This is a matter of considerable scientific debate. 

Another source of data are the long-term epidemiological studies. 

These same studies were used to show that particulate matter had 

effects on mortality. They have not shown an effect of long-term exposure to ozone on mortality. There have been many time series 

analyses done. Professor Bell has referred to some of those. I would 

emphasize that the results have been quite variable, with significant associations of ozone concentrations observed in a few cities, 

while there is no statistical association between ozone exposure 

and mortality in most cities, including many cities that would be 

impacted by a reduced standard. 

The risk assessment done by the ABT Associates and used by 

EPA to inform the policy judgments in setting the ozone standard 

is seriously flawed. The assessment depends primarily on ozone 

concentration-response functions derived using 1 hour maximum 

ozone levels and 24 hour ozone concentrations. The ozone standard 

pre-1997 used a 1-hour averaging time. The ozone standard has 

never used the hour averaging time. Only 2 coefficients out of 96 

coefficients used in the risk assessment were based on 8 hour ozone 

concentrations, the averaging time of the current and the proposed 

standard. 

Thus, the calculated excess risks ascribed to recent ozone concentrations are of questionable relevance to setting the standard 

with an 8-hour averaging time. The risk assessment simply is 

flawed and needs to be redone. Moreover, the calculated reductions 

in excess risk attributed to man-made ozone are not realistic, because of the inappropriate assumptions made about the policy relevant background of ozone. 

It is my opinion that the CASAC ozone panel did not adequately 

pursue critical scientific issues concerning the policy relevant background, the short term mortality studies, the averaging time and 

the impact of these issues on the scientific validity of the ozone risk 

assessment. The panel, in a rush to judgment imposed by the court 

ordered schedule offered a collective policy judgment, on the level 

of the standard. The range they recommended reflects their personal policy preferences. 

In my professional judgment, the Administrator’s proposed decision to revise the existing ozone standard by lowering the level is 

a policy judgment based on a flawed and inaccurate presentation 

of science that should have informed the policy decision. I applaud 

the Administrator’s decision to solicit comments on alternative levels up to the present standard. 

In closing, let me comment on the references made to earlier 

meetings with EPA and OMB officials. As a scientist of ozone and 

the standard setting process I visited with EPA officials, including 

Mr. Robert Meyers. During the visit he was informed that we 

would also be meeting with OMB officials. As I recall he was in-
75 

vited to attend the OMB meeting. At both meetings, I emphasized 

the same points I have made here today. 

Thank you for this opportunity to appear before you. 

[The prepared statement of Dr. McClellan follows:] 

STATEMENT OF ROGER O. MCCLELLAN, ADVISOR, TOXICOLOGY AND HUMAN HEALTH

RISK ANALYSIS

Good Morning, Mr. Chairman and Members of the Subcommittee. Thank you for 

the invitation to present my views on the U.S. Environmental Protection Agency’s 

current review of the National Ambient Air Quality Standards (NAAQS) for Ozone. 

My biography is attached to this statement (Attachment 1). Since 1999, I have 

served as an Advisor to public and private organizations on issues related to air 

quality in the ambient environment and workplace drawing on more than 45 years 

of experience in comparative medicine, toxicology, aerosol science, and risk analysis. 

Prior to 1999, I provided scientific leadership for two organizations, the Chemical 

Industry Institute of Toxicology in Research Triangle Park, NC and the Lovelace Inhalation Toxicology Research Institute in Albuquerque, NM, that earned an international reputation for developing scientific information under-girding occupational 

and environmental health standards. 

The testimony I offer today also draws on my experience serving on numerous scientific advisory committees. This has included service on many EPA Scientific Advisory Committees from the origin of the Agency to date, including the Clean Air Scientific Advisory Committee (CASAC), which I chaired from 1988 to 1992, and on 

CASAC Panels that have considered all the criteria pollutants at various times. I 

served on the CASAC Ozone Panel that reviewed the basis for the NAAQS promulgated in 1997. I did not serve on the most recent CASAC Ozone Panel. I have followed the current NAAQS Ozone review process from its inception in September 

2000 to date. The testimony I offer today reflects my own views on that review process and the science that should inform policy judgments on any revision of the 

NAAQS for Ozone. In Attachment 2, I briefly review the NAAQS process as background for my comments. 

I wish to make the following points: 

(1) The ozone present in the ambient air arises both from natural processes and 

from precursors that are of man-made origin. Ambient ozone concentrations vary by 

time of day, season and location across the country. 

(2) Since promulgation of the original NAAQS for the criteria pollutants most cities in the U.S. have made remarkable progress in substantially reducing ambient 

concentrations of ozone and other criteria pollutants. As ambient concentrations of 

ozone are reduced the fraction of remaining ozone associated with precursors of 

manmade US emissions ? the only part which we can control through policy ? falls. 

This makes further reductions in ambient ozone a challenge in many areas. 

(3) The Policy Relevant Background for Ozone used by the EPA is not a scientifically valid projection of the part of ozone that would not be controllable through 

policy. For one thing, it excludes the contribution of Mexico and Canada’s emissions 

to U.S. ozone concentrations and does not adequately model ozone concentrations 

across the U.S. The projected mean and high range concentrations are unrealistically low. These scientific inadequacies result in unrealistically high mathematical 

projections of mortality and morbidity from low concentrations of ozone with excess 

risks being inappropriately attributed to ozone from anthropogenic precursors. 

Moreover, the failure to accurately project the upper end of the background ozone 

range may result in a policy judgment to set a NAAQS that will frequently be exceeded due to ozone that is not related to precursors of ozone from man-made 

sources in the U.S. I am pleased that the ‘‘proposed rule’’ recognizes the shortcomings in considering the ‘‘Policy Relevant Background’’ (see pg 155, footnote 40 

of the Proposed Rule) and intends to address this issue. 

(4) Data on the potential health effects of exposure to ambient levels of ozone that 

should inform policy judgments on the NAAQS are from five kinds of studies; 

human clinical studies, three kinds of epidemiological studies, and toxicological 

studies. I will briefly describe the evidence for each of these kinds of evidence. 

(a) The human clinical studies conducted with controlled exposure of exercising 

human volunteers provide useful information on changes in respiratory function 

with extreme levels of ozone intake. There is clear evidence of functional changes 

with protracted exposure to ozone at concentrations of 0.08 ppm and higher. In this 

review, EPA has re-interpreted data developed by one investigator and purport to 

show that exposures below 0.08 ppm cause functional changes. The validity of this 

re-interpretation and the significance of the functional changes are open to debate. 
76 

(b) Major long-term epidemiological studies have not shown an association between ozone exposure and long-term mortality. These studies, which compare the 

life expectancies of groups of people living in areas with different long-term average 

pollutant concentrations, were used to show an association between Particulate Matter and long-term mortality. 

(c) Time-series analyses consider the association between daily fluctuations in ambient ozone concentrations and day to day death rates within a particular city or 

other locale. These have yielded variable results, statistically significant associations 

with ozone concentrations have been observed in a few cities while there is no association between ambient ozone and increased short-term mortality for many cities 

even when the studies have been conducted using the higher ozone levels found several decades ago. (I elaborate on these issues in Attachment 4). 

(d) Panel studies follow a specific group of people, often a group of children, intensively for short periods of time, measuring specific health outcomes—such as asthma 

symptoms ? and assesses how these outcomes are correlated to an air pollution mixture that includes ozone. These too have yielded variable results. When positive effects are observed in some studies it is not apparent the effects are attributable to 

ozone exposure. 

(e) An enlarging body of toxicological data provides a basis for hypothesizing how 

ozone may cause biological changes with relatively high, short-term exposures to 

ozone, exposures in excess of the current ozone NAAQS. This information cannot be 

reliably extrapolated to ambient ozone levels currently observed across the United 

States. 

(5) The risk assessment conducted by Abt Associates and used by EPA to inform 

policy judgments in setting the ozone NAAQS is seriously flawed. The assessment 

depends primarily on ozone concentration-response functions derived primarily 

using 24-hour ozone concentrations. Only two coefficients of 96 used in the risk assessment is based on 8-hour ozone concentrations, the averaging time of the current 

and proposed NAAQS. Thus, the calculated excess risk ascribed to the ozone concentrations measured in 2002, 2003, and 2004 are likely not relevant to setting a 

NAAQS with an 8-hour averaging time. Moreover, the calculated reductions in excess risk attributed to ozone are not realistic because of the inappropriate assumptions made about Policy Relevant Background for ozone. (I elaborate on these issues 

in Attachment 5). 

(6) It is my opinion that the CASAC Panel did not adequately pursue critical scientific issues concerning Policy Relevant Background, the short-term mortality studies, the averaging time and the impact of these issues on the scientific validity of 

the ozone risk assessment. It is my opinion that the Panel, in a ‘‘rush to judgment’’ 

offered a collective policy judgment as to the level of the NAAQS for ozone. The scientific rationale for their collective policy judgment preference has not been articulated in the transcripts of public meetings or their letters to the Administrator. 

(7) In my professional judgment, the Administrator’s ‘‘proposed decision to revise 

the existing 8-hour O3 primary standard by lowering the level to within a range 

from 0.070 to 0.075 ppm’’ is a policy judgment based on a flawed and inaccurate 

presentation of the science that should inform the policy decision. I applaud the Administrator’s decision to ‘‘solicit comments on alternative levels—up to and including 

retaining the current 8-hour standard of 0.08 ppm.’’ 

ATTACHMENT 1

BIOGRAPHY 

Roger O. McClellan is currently an advisor to public and private organizations on 

issues concerned with inhalation toxicology and human health risk analysis. He received his Doctor of Veterinary Medicine degree with Highest Honors from Washington State University in 1960 and a Master of Management Science degree from 

the University of New Mexico in 1980. He is a Diplomate of the American Board 

of Toxicology, a Diplomate of the American Board of Veterinary Toxicology and a 

Fellow of the Academy of Toxicological Sciences. 

He served as Chief Executive Officer and President of the Chemical Industry Institute of Toxicology (CIIT) in Research Triangle Park, NC from September 1988 

through July 1999. The CIIT continues today as The Hamner Institute. During his 

tenure, the organization achieved international recognition for the development of 

science under-girding important environmental and occupational health regulations. 

Prior to his appointment as President of CIIT, Dr. McClellan was Director of the 

Inhalation Toxicology Research Institute, and President and Chief Executive Officer 

of the Lovelace Biomedical and Environmental Research Institute, Albuquerque, 

New Mexico. The Institute continues operation today as a core element of the 

Lovelace Respiratory Research Institute. During his 22 years with the Lovelace or-
77 

ganization, he provided leadership for development of one of the world’s leading research programs concerned with the toxic effects of airborne radioactive and chemical materials. Prior to joining the Lovelace organization, he was a scientist with 

the Division of Biology and Medicine, U.S. Atomic Energy Commission, Washington, 

DC (1965–1966), and Hanford Laboratories, General Electric Company, Richland, 

WA (1959–1964). In these assignments, he was involved in conducting and managing research directed toward understanding the human health risks of internally 

deposited radionuclides. 

Dr. McClellan is an internationally recognized authority in the fields of inhalation 

toxicology, aerosol science and human health risk analysis. He has authored or coauthored over 300 scientific papers and reports and edited 10 books. In addition, 

he frequently speaks on risk assessment and air pollution issues in the United 

States and abroad. He is active in the affairs of a number of professional organizations, including past service as President of the Society of Toxicology and the American Association for Aerosol Research. He serves in an editorial role for a number 

of journals, including continuing service as Editor of Critical Reviews in Toxicology. 

He serves or has served on the Adjunct Faculty of 8 universities. 

Dr. McClellan has served in an advisory role to numerous public and private organizations. He has served on senior advisory committees for 8 Federal agencies. He 

is past Chairman of the Clean Air Scientific Advisory Committee, Environmental 

Health Committee, Research Strategies Advisory Committee, and Member of the 

Executive Committee, Science Advisory Board, U. S. Environmental Protection 

Agency; Member, National Council on Radiation Protection and Measurements; 

Member, Advisory Council for Center for Risk Management, Resources for the Future; a former Member, Health Research Committee, Health Effects Institute; and 

service on National Academy of Sciences/National Research Council Committees on 

Toxicology (served as Chairman for 7 years), Risk Assessment for Hazardous Air 

Pollutants, Health Risks of Exposure to Radon, Research Priorities for Airborne Particulate Matter, as well as the Committee on Environmental Justice of the Institute 

of Medicine. He has recently completed a term on the Board of Scientific Councilors 

for the Centers for Disease Control and Prevention for Environmental Health Research and the Agency for Toxic Substances and Disease Registry. He is currently 

serving on the National Institutes of Health Scientific Advisory Committee on Alternative Toxicological Methods and the National Aeronautics and Space Administration Lunar Airborne Dust Toxicity Advisory Group. 

Dr. McClellan’s contributions have been recognized by receipt of a number of honors, including election in 1990 to membership in the Institute of Medicine of the National Academy of Sciences. He is a Fellow of the Society for Risk Analysis, the 

Health Physics Society, and the American Association for the Advancement of 

Science. In 1998, he received the International Achievement Award of the International Society of Regulatory Toxicology and Pharmacology of standing contributions to improving the science used for decision making and the International Aerosol Fellow Award of the International Aerosol Research Assembly for outstanding 

contributions to aerosol science and technology. He received the Society of Toxicology 2005 Merit Award for a distinguished career in toxicology. In 2005, The Ohio 

State University awarded him an Honorary Doctor of Science degree for his contributions to the science under-girding improved air quality. In 2006 he received the 

New Mexico Distinguished Public Service Award. He has a long-standing interest 

in environmental and occupational health issues, especially those involving risk assessment and air pollution, and in the management of multidisciplinary research organizations. He is a strong advocate of risk-based decision making and the need to 

integrate data from epidemiological, controlled clinical, laboratory animal and cell 

studies to assess human health risks of exposure to toxic materials. 

ATTACHMENT 2

Setting National Ambient Quality Standards 

Each NAAQS consists of four elements: (a) an indicator (such as ozone for photochemical oxidants, (b) an averaging time (such as 8 hours), (c) a numerical level 

(such as 0.08 ppm ozone averaged over 8 hours), and (d) a statistical form (such as 

the annual fourth-highest daily maximum 8-hour average concentration, averaged 

over 3 years. 

Under the Clean Air Act, the EPA Administrator is required to review the 

NAAQS for the criteria pollutants at 5-year intervals to evaluate whether or not the 

four elements of the NAAQS are still deemed to be acceptable based on current scientific knowledge as it applies to the assessment of public health risks. In practice, 

the interval between reviews has been longer. The process for review and promulgation of a NAAQS, either continuation of the existing standard or establishing a new 
78 

NAAQS, consists of multiple phases. The initial phase, which is obviously on-going, 

consists of conduct of research on the various criteria pollutants. This includes a 

broad spectrum of activities; understanding emissions of pollutants, transport and 

transformation of pollutants in the atmosphere, ambient measurements of pollutants, estimation of personal exposures to pollutants, assessment of toxic effects and 

mechanisms of action in cells, tissues and animals, conduct of controlled exposure 

studies to pollutants in human volunteers and epidemiological investigations of 

human populations. Most of the research is funded by the EPA, some in the Agency’s own laboratories and some in academic and other laboratories, the National Institutes of Health and, to a modest extent, private industry. The dominance of Federal Government support of research on criteria pollutants relates to their effects 

being of broad societal concerns with the pollutants, by and large, having no unique 

industrial emission source. 

The findings of this research are used by the EPA’s Office of Research and Development to prepare a criteria document (CD). Each CD traditionally has been essentially an encyclopedia of everything known about a given criteria pollutant and is 

used as a basis of information for the preparation of a Staff Paper (SP) by the EPA’s 

Office of Air Quality Planning and Standards. This is a Policy Assessment of Scientific and Technical Information; in short, an integration and synthesis of the information in the CD that is most relevant to setting the four elements of a NAAQS. 

In recent years, the Staff Papers have made substantial use of risk assessments for 

the criteria pollutant being considered. These risk assessments have been conducted 

by a single EPA Contractor organization. The various versions of the CD and SP 

are released to the public with an invitation to provide comments as a basis for improving the documents. 

Throughout this process, a Clean Air Scientific Advisory Committee Panel, operating as an element of the EPA’s Science Advisory Board, is involved in reviewing 

and advising on the scientific content of both the CD and the SP, including the related risk assessment. This has typically involved several revisions. Prior to the current cycle of ozone review, the CASAC Panel sent a closure letter to the EPA Administrator when the CASAC was of the opinion that the revised documents were 

suitable for use by the Administrator in promulgating a NAAQS. In the current 

ozone review, the ‘‘closure letter’’ process was abandoned. Instead, the current 

CASAC Ozone Panel has focused on offering a consensus opinion. 

At the next step, the Administrator proposes, via a Federal Register Notice, a 

NAAQS including specific proposals for each of the four elements of the NAAQS; 

the indicator, averaging times, numerical levels and statistical forms. Comments are 

solicited from the Public with the opportunity to submit written comments to a specific Docket. The Administrator, acting under a Consent Decree, signed a ‘‘Proposed 

Rule.’’ 

The next step is for the Administrator to promulgate a NAAQS consisting of the 

four elements discussed previously. I purposefully do not use the phrase ? ‘‘final 

step,’’ because the Courts may have a role in deciding whether the Administrator’s 

proposed NAAQS for Ozone will stand. The NAAQS are to be based on the available 

scientific information reviewed in the CD and SP and summarized in the notice of 

proposed rules. The primary, health-based NAAQS are to be set at a level that will 

protect public health, including sensitive populations, with an adequate margin of 

safety. The Administrator is precluded from considering cost in the setting of the 

NAAQS. 

At this point, I would like to emphasize that there exists no absolute and unambiguous scientific methodology that can determine which specific indicator, precise 

averaging time, numerical level or statistical form will be adequate to protect public 

health. The available scientific information can inform the NAAQS decisions, however, the Administrator must ultimately use policy judgment in making decisions 

on each of the four elements from among an array of scientifically acceptable options 

including consideration of their attendant scientific uncertainties. Beyond the language in the Clean Air Act, Justice Breyer in Whitman v. American Trucking Association (531 U.S. 457, 473) has given very useful guidance for the Administrator in 

exercising policy judgment in the setting of NAAQS (see Attachment 3). 

ATTACHMENT 3

Justice Breyer on Using Policy Judgment (from Whitman v. American Trucking 

Association, 531 U.S. 457, 473) 

In setting standards that are ‘‘requisite’’ to protect public health and welfare, as 

provided in section 109(b), EPA’s task is to establish standards that are neither 

more or less stringent than necessary for these purposes. Whitman v. American 

Trucking Associations, 531 U.S. 457, 473. In establishing ‘‘requisite’’ primary and 
79 

secondary standards, EPA may not consider the costs of implementing the standards. Id. At 471. As discussed by Justice Breyer in Whitman v. American Trucking 

Associations, however, ‘‘this interpretation of 109 does not require the EPA to eliminate every health risk, however slight, at any economic cost, however great, to the 

point of ‘‘hurtling’’ industry over ‘‘the brink of ruin,’’ or even forcing 

‘‘deindustrialization.’’ Id. At 494 (Breyer, J., concurring in part and concurring in 

judgment) (citations omitted). Rather, as Justice Breyer explained: 

‘‘The statute, by its express terms, does not compel the elimination of all risk; and 

it grants the Administrator sufficient flexibility to avoid setting ambient air quality 

standards ruinous to industry. 

Section 109(b)(1) directs the Administrator to set standards that are ‘‘requisite to 

protect the public health’’ with ‘‘an adequate margin of safety.’’ But these words do 

not describe a world that is free of all risk ? an impossible and undesirable objective. 

(citation omitted). Nor are the words ‘‘requisite’’ and ‘‘public health’’ to be understood independent of context. We consider football equipment ‘‘safe’’ even if its use 

entails a level of risk that would make drinking water ‘‘unsafe’’ for consumption. 

And what counts as ‘‘requisite’’ to protecting the public health will similarly vary 

with background circumstances, such as the public’s ordinary tolerance of the particular health risk in the particular context at issue. The Administrator can consider 

such background circumstances when ‘‘deciding what risks are acceptable in the 

world in which we live.’’ (citation omitted). 

The statute also permits the Administrator to take account of comparative health 

risks. That is to say, she may consider whether a proposed rule promotes safety 

overall. A rule likely to cause more harm to health than it prevents is not a rule 

that is ‘‘requisite to protect the public health.’’ For example, as the Court of Appeals 

held and the parties do not contest, the Administrator has the authority to determine to what extent possible health risks stemming from reductions in tropospheric 

ozone (which, it is claimed, helps prevent cataracts and skin cancer) should be taken 

into account in setting the ambient air quality standard for ozone. 

(Citation omitted)/ 

The statute ultimately specifies that the standard set must be ‘‘requisite to protect 

the public health’’ ‘‘in the judgment of the Administrator,’’ 109(b)(1), 84 Stat. 1680 

(emphasis added), a phrase that grants the Administrator considerable discretionary 

standard-setting authority. 

The statute’s words, then, authorize the Administrator to consider the severity of 

a pollutant’s potential adverse health effects, the number of those likely to be affected, the distribution of the adverse effects, and the uncertainties surrounding 

each estimate. (citation omitted). They permit the Administrator to take account of 

comparative health consequences. They allow him to take account of context when 

determining the acceptability of small risks to health. And they give her considerable discretion when she does so. 

This discretion would seem sufficient to avoid the extreme results that some of 

the industry parties fear. After all, the EPA, in setting standards that ‘‘protect the 

public health’’ with ‘‘an adequate margin of safety,’’ retains discretionary authority 

to avoid regulating risks that it reasonably concludes are trivial in context. Nor 

need regulation lead to deindustrialization. Pre-industrial society, was not a very 

health society; hence a standard demanding the return of the Stone Age would not 

prove ‘‘requisite to protect the public health.’’ 

ATTACHMENT 4

Time-Series Analyses of Short-Term Mortality 

The EPA places substantial reliance on the time-series analyses of short-term 

mortality in the Staff Paper and the associated Risk Assessment. To a large extent, 

results from the National Morbidity and Mortality Air Pollution (NMMAPs) studies 

being conducted at the Johns Hopkins University serve as a center piece of the EPA 

evaluation and risk assessment. The paper by Bell et al. (2004) is given considerable 

weight. Unfortunately, this study is founded on a very weak and dubious goal? the 

derivation of a national ozone concentration excess mortality coefficient. In my opinion, the heterogeneity of air pollution across the United States and the heterogeneity of the population, including morbidity and mortality patterns in cities across 

the Unites States, makes it inappropriate to create a ‘‘national’’ concentration-response coefficient for ozone. This task, even if appropriate, is challenging because 

of the very weak effect of ozone, even in the cities with the highest ozone concentrations, compared to all the other factors influencing morbidity and mortality. 

To help illustrate the problems involved in interpreting the Bell et al. (2004) 

study, I am presenting some analyses performed by my colleague, Richard Smith 

(2007) at the University of North Carolina-Chapel Hill, using the NMMAPs data 
80 

kindly provided by the Johns Hopkins University investigators. Figure 1 was developed by Professor Smith and is essentially identical to Figure 2 in the Bell et al. 

(2004) paper. His reproduction of the results of Bell et al. (2004) is reassuring. You 

will note this figure, developed using a Bayesian statistical approach, indicates values for a percent rise in mortality per 10 ppb average 24-hour ozone and the associated confidence intervals. Note that even with the Bayesian analysis, only six cities 

(Houston, Dallas-Ft. Worth, Newark, Philadelphia, Chicago and New York) have 

statistically significant associations between 24-hour average ozone and short-term 

mortality. At the bottom of Figure 1 is shown a national concentration-response coefficient. It agrees well with the value of 0.52 percent (95 percent Confidence Interval, 0.27–0.77 percent) for 10 ppb increase in the 24-hour average ozone concentration given in the Bell et al. (2004) paper. I personally do not believe this national 

value is of much use ? this is a case where ‘‘one size does not fit all.’’ 

In my opinion, I think it is important to also consider raw estimates of the ozone 

ambient concentration response coefficients developed for the specific cities. The estimates prepared by Professor Smith are shown in Figure 2. Note that the scale in 

Figure 2 is expanded compared to Figure 1. These estimates for the individual cities 

have substantial statistical validity because the observations are based on 14 years 

of data from cities whose size is such that a substantial number of deaths were observed over that time period. It may be noted in this graph that the six cities that 

had positive coefficients in the Bayesian analysis plus one other city, Cincinnati, 

(Fig. 1) had raw estimate coefficients that were also positive and statistically significant. Thirty-four cities had negative coefficients. 

When reviewing the Bell et al. (2004) results, it is useful to recall the averaging 

time used for the NAAQS for ozone. It is not the 24-hour average ozone considered 

in detail by Bell et al. (2004), it is the 8-hour maximum concentration. Thus, the 

Bell et al. (2004) analyses as presented are not directly applicable to setting the 

NAAQS for ozone nor in calculating health risks/benefits of alternative NAAQS. Bell 

et al. (2004) does give an overall national coefficient for the daily 8-hour maximum. 

It is 0.64 percent (95 percent Confidence Interval, 0.41 percent–0.86 percent) for a 

15 ppb increase in the daily 8-hour maximum. Note that the denominator used for 

the 8-hour maximum ozone increase in 15 ppb in contrast to the 10 ppb used for 

the 24-hour average ozone metric. As I have already noted, it is my view that a single national ozone concentration-response coefficient is of limited value because of 

the great heterogeneity of air quality and population health statistics such as for 

morbidity and mortality, that describe communities across the U.S. The results of 

analyses that focus on individual city results would be more scientifically valid in 

evaluating potential health ozone effects for any given city. 

The results of analyses for the 8-hour maximum ozone metric conducted by Professor Smith are shown in Figures 3 and 4. In Figure 3, results are presented for 

the individual cities in the NMMAPs data base. Note that for 31 cities the raw regression coefficients are below zero, clearly no association of increased ozone shortterm mortality. I am pleased that my home town, Albuquerque, NM, is one of these 

cities. The results should be reassuring to our mayor. Of the remaining cities, only 

10 have statistically significant associations between increases in the 8-hour concentration of ozone and increased mortality. Shown in Figure 4 are the Communityspecific Bayesian estimates for the 8-hour maximum ozone metric, calculated in a 

manner similar to Bell et al. (2004). Note that now the central values all are to the 

right of the zero line. However, only seven cities have positive coefficients that are 

statistically significant. 

In my view, the community-specific estimates are highly relevant to the setting 

of the NAAQS. That can be illustrated in part by reviewing the data in Attachment 

6. This attachment is based on EPA data and shows the 8-hour design values for 

individual cities. A review of the list of Core-Base Statistical Areas and their associated 8-hour design values will reveal that the cities shown to have positive associations between increases in 8-hour maximum ozone and increases in short-term mortality are near the top of the list. These cities are out of compliance with the current 

NAAQS for ozone, 0.084 ppm using conventional rounding techniques for the 

NAAQS set at 0.080 ppm. 

What is equally important is to recognize that many cities shown in Figures 3 and 

4 that have no statistically significant association between ambient ozone concentration and increased mortality have 8-hour design values in the range of 0.060 ppm 

to 0.084 ppm. This is the range for which the Administrator has solicited comments 

on alternative numerical standards. Indeed, many cities such as Albuquerque are 

in the range between 0.075 ppm (the upper end of the proposed range in the proposed rule) and 0.084 ppm. It is my view that these data provide the kind of context 

that Justice Breyer has indicated is a part of the considerable discretionary standard-setting authority granted to the Administrator in making policy judgments. As 
81 

a citizen of Albuquerque, NM, with an 8-hour design value of 0.077 ppm, I would 

have great difficulty explaining to my mayor the scientific basis for having to attain 

a new standard set in the range of 0.070 to 0.075 ppm, with an averaging time of 

8 hours, if that were the numerical level set for the NAAQS for ozone in the final 

rule. 

References 

Bell, M.L., McDermott, A., Zeger, S.L., Samet, J.M. and Dominici, F. (2004). 

Ozone and Short-Term Mortality in 95 U.S. Urban Communities, 1987–2000. JAMA 

292(19): 2372–2378. 

Smith, Richard, Personal Communication (2007). (Professor Richard Smith is in 

the Department of Statistics and Operations Research at the University of North 

Carolina-Chapel Hill). 
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ATTACHMENT 5

EPA/Abt Risk Assessment 

The ‘‘Ozone Health Risk Assessment for Selected Urban Areas’’ conducted by Abt 

Associates for the EPA provides key information to inform the Administrator’s policy judgments in setting the NAAQS for ozone. Substantial use is made of the risk 

assessment in the Staff Paper and in the Proposed Rule. 

There are serious problems with the present risk assessment which I will briefly 

comment on. Key elements of the risk assessment are: (a) the cities selected for 

evaluation, (b) the historical population morbidity and mortality data for these cities, (c) the estimated ambient concentrations of ozone projected for these cities, and 

(d) the ambient ozone concentration-response coefficients used in estimating excess 

risk for the identified populations. 

The risk assessment and its appendices are turgid with detailed information. Unfortunately, it is not presented in a manner that is easy to grasp. It is especially 

noteworthy that the presentation does not provide the kind of contextual information that is needed by the Administrator to make policy judgments on setting the 

NAAQS for ozone. Justice Breyer’s opinion referenced earlier and contained in Attachment 2 emphasizes that any calculated risk attributed to ozone needs to be 

placed in context relative to other risks commonly encountered by the populace. 

That kind of information is not made clear in the risk assessment or the Staff Paper 

with side-by-side comparison of the size of the population and historical data on 

common morbidity and mortality indices and calculated ozone attributable morbidity 

and mortality. The use of percentage values common in the risk assessment is not 

a substitute for the starkness of absolute numbers to inform policy judgments. 

A major shortcoming of the risk assessment is the failure to directly link the analysis to the 8-hour averaging time used in the current and projected NAAQS for 

ozone. A quick reading of the risk assessment would lead one to assume that a 24- 

hour averaging time was to be advocated for the NAAQS for ozone. Table B.1 of the 

Risk Assessment lists the study specific information used. This table lists 96 ambient concentration response metrics used in the risk assessment; 80 are for 24-hour 

average, 14 for the 1 hour maximum and only 2 for 8-hour maximum. This leaves 

open the question of what the risk analysis would have revealed if an 8-hour maximum metric had been used. As discussed earlier, there is data available for the 8- 

hour maximum metric for all the cities evaluated in the risk assessment. 

The fallacy of assuming there are some national metrics that can be used for converting from the 24-hour daily average to the 8-hour maximum values is illustrated 

in Figure a and b which plots the ratio of the coefficients derived using an 8-hour 

maximum ozone versus 24-hour daily ozone for both the raw and posterior 

(Bayesian) estimates for individual cities. The straight lines shown in both Figure 

1a and 1b have a slope of 0.75 through the origin. The 0.75 slope is equal to 1/1.33, 

the 1.33 value being a ratio used to convert from an 8-hour maximum metric to the 

daily 24-hour average by several investigators (Bell et al., 2004; Levy et al., 2001; 

Thurston and Ito, 2001). It is apparent that there is a general association between 

the two metrics. However, it is clear that ‘‘one size does not fit all.’’ In many cases, 

24-hour daily average metric is a poor surrogate for the 8-hours maximum metric. 

In my view, it is crucial to use city-specific 8-hour maximum coefficients if the 

NAAQS for ozone is to be set with an 8-hour averaging time. 

A comparison of 1a (the raw estimates) with 1b (the Bayesian posterior estimates) 

indicates how the Bayesian estimates are ‘‘shrunk’’ toward a common central value. 

It is my opinion that for most cities the raw estimates are sufficiently robust based 

on observations over 14 years in cities with populations usually exceeding 500 thousand that it is not necessary to use Bayesian techniques to bolster statistically confidence in the values. Some might argue that the use of the Bayesian approach 

helps sharpen the estimated concentration-response coefficients for individual cities. 

I argue that consideration should also be given to the city-specific raw estimates of 

the coefficients. If Bayesian techniques are to be used, the results might have more 

validity if the focus were on regional estimates rather than the creation of national 

ambient ozone concentration-response coefficients. In my opinion, there is need for 

respecting the underlying heterogeneity. 

As already noted, the risk assessment is seriously flawed in that inappropriate 

estimates have been used for the Policy Relevant Background. By using estimates 

of the Policy Relevant Background developed by low resolution modeling in calculating excess risk, the risk assessment inappropriately attributes risks to ozone arising from man-made precursors that in fact is a part of the background ozone. 

A review of the transcripts of the CASAC meetings and CASAC letters reveals 

that CASAC recognized that the ‘‘Policy Relevant Background’’ issue was not re-
87 

solved. Unfortunately, CASAC did not adequately pursue this issue and especially 

the impact on the risk assessment. I am pleased that the EPA (see page 155, footnote 40 of the proposed rule) recognizes this matter needs more attention by calling 

for additional sensitivity analyses related to Policy Relevant Background. It is my 

opinion that this matter is of sufficient importance that it requires the development 

of amendments to the Criteria Document, Staff Paper and Risk Assessments with 

associated public meetings for review and comment. Indeed, it is my understanding 

that material germane to this issue has already been prepared by EPA contractors 

and was excluded by Administrative decisions from the final documentation used in 

the ozone NAAQS review. 

It is my opinion that the Risk Assessment is so seriously flawed that it should 

be revised focusing on the 8-hour maximum ozone concentration-response coefficients and subjected to public comment and review. It is my contention that the 

flawed and inaccurate presentation of the risks of ambient ozone concentrations did 

not provide the Administrator with a scientifically adequate basis for making the 

Policy Judgments necessary in setting the NAAQS for ozone. 

Figure 1. The upper panel is a plot of the ratios for individual cities of the raw 

estimates of the concentration metric versus the 24-hour metric. The lower panel 

is a plot of the posterior (Bayesian) estimates of the ozone concentration-response 

coefficients for the 8-hour maximum metric versus the 24-hour metric. 
88 
89 

References 

Bell, M.L., McDermott, A., Zeger, S.L., Samet, J.M. and Dominici, F. (2004). 

Ozone and Short-Term Mortality in 95 U.S. Urban Communities, 1987–2000. JAMA 

292(19): 2372–2378. 

Levy, J.L., Carrothers, T.J., Tuomisto, J.T., Hammitt, J.K. and Evans, J.S. (2001). 

Assessing the Public Health Benefits of Reduced Ozone Concentrations. Environmental Health Perspectives 109: 1215–1226. 

Thurston, G.D. and Ito, K. (2001). Epidemiological Studies of Acute Ozone Exposures and Mortality. J. Exp. Anal. Environ. Epidemiol. 11: 286–294. 
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93 
94 
95 
96 
97 
98 
99 

Senator CARPER. Dr. McClellan, thank you very, very much. 

Our vote is underway, and Mayor Grace, I want to make sure we 

get your testimony in before Senator Voinovich and I hot-foot it 

over to the floor to vote, then we will be back to ask you some questions. 

Our final witness here today on this panel is Mayor George L. 

Grace. I understand you are also something that a lot of my colleagues would like to be, and that is you are also president, in this 

case not of the United States, but President of the National Conference of Black Mayors. Mayor, Mr. President, wearing both of 

those hats, you have 5 minutes. I will ask you to use those 5 minutes well. Thanks so much. 

STATEMENT OF HON. GEORGE L. GRACE, MAYOR, ST. GABRIEL, LA AND PRESIDENT, NATIONAL CONFERENCE OF 

BLACK MAYORS 

Mr. GRACE. Thank you, Chairman Carper, Senator Voinovich. 

As said, I am George L. Grace, and I am Mayor of the city of St. 

Gabriel, Louisiana, and I am President of the National Conference 

of Black Mayors. 

On behalf of the more than 600 member mayors, I want to thank 

you for this opportunity to appear before your Subcommittee this 

morning to share with you our views and concerns regarding the 

U.S. Environmental Protection Agency’s recently announced Notice 

of Proposed Rulemaking to Review the National Ambient Air Quality Standard for ozone. Mr. Chairman, without objection, I will 

summarize the main points of my record statement and attempt to 

respond to any questions you and any other member of the Subcommittee may have. 

Senator CARPER. Mayor Grace, your entire statement will be entered into the record. Feel free to summarize. 

Mr. GRACE. Thank you. 

I would like to begin by making three points. First, the National 

Conference of Black Mayors supports EPA’s regulatory polices that 

are intended to improve our Nation’s air quality in a manner that 

is cost-effective for our communities and based on sound science. 

Second, because of such EPA policies, and the coordinated efforts 

of State and local governments as well as industry, substantial 

progress has been made over the past 25 years in meeting the 

Clean Air Act’s air quality goals. While more progress is needed in 

selected areas of the communities across the Country, we should 

make no mistake that the Clean Air Act is working as intended. 

EPA’s own data shows that between 1970 and 2006, total emissions of the six principal air pollutants dropped by 54 percent. 

Last, the National Conference of Black Mayors is deeply concerned 

about the potential adverse effects on the communities we represent should EPA decide in its final ruling to adopt a more stringent NAAQS standard for ozone. 

In specific regards to Louisiana, my understanding is that there 

are currently five parishes classified as in non-attainment. My parish of Iberville is one of those. Under either proposal being considered, over half of the 64 parishes in the State would be reclassified 

as in non-attainment for ozone. As I am sure you aware, the designation of a county, or a parish in my case, as in non-attainment 
100 

for ozone triggers a second process in which States must develop 

and submit to EPA a State Implementation Plan that demonstrates 

compliance within a new standard within a certain timeframe. The 

emission control strategy required to make such a demonstration 

will significantly impact the economics of local communities, including jobs and future growth. 

Many parishes across our State will for the first time experience 

the stigma and compliance challenges of being designated non-attainment for ozone. Moreover, these parishes, or counties, that are 

currently designated as being in non-attainment for ozone would be 

faced with identifying and implementing even more demanding 

compliance strategies, even before they have had an opportunity to 

implement fully the plans on which they are now working to comply with, the present .08 parts per million standard. 

The situation in Louisiana is representative of what many other 

member mayors across the Country will face should the ozone 

standard be made more stringent. Alabama, for example, currently 

has only two of the State’s 67 counties designated as non-attainment for ozone. This number would increase to over half the State’s 

counties, depending on which new standard is chosen. 

Similarly, in Mississippi, up to one-third of the State’s 82 counties would become non-attainment, again depending upon which 

standard is chosen. The impact of being designated non-attainment 

will also have a disparate impact on those communities undertaking economic revitalization efforts and rebuilding, like those in 

the Gulf Coast States in the aftermath of Hurricanes Katrina and 

Rita. Such impacts manifest themselves in the form of increased 

costs to industry, permitting delays and restrictions on industry, 

industrial expansion within an area, impacts on transportation 

planning, increased costs to consumers for commercial and consumer products. 

This will result in continuing oversight by EPA at the local level 

until the area has met and maintained the standard for the required period of years. These aspects have a very real impact on 

the community. 

We can’t afford to jeopardize the progress being made in the 

south as well as the Country as a whole. Thank you very, very 

much for this opportunity. 

[The prepared statement of Mr. Grace follows:] 

STATEMENT OF HON. GEORGE L. GRACE, MAYOR, ST. GABRIEL, LA AND PRESIDENT, 

NATIONAL CONFERENCE OF BLACK MAYORS

Good morning. 

I am George l. Grace, mayor, St Gabriel, Louisiana, and president of the National 

Conference of Black Mayors (NCBM). 

Mr. Chairman, on behalf of its more than 600 member mayors, I want to thank 

you for the opportunity to appear before your subcommittee this morning to share 

with you our views and concerns regarding the us environmental protection agency’s 

recently announced notice of proposed rulemaking (nprm) to review the National 

Ambient Air Quality Standard (NAAQS) for ozone. 

Mr. Chairman, without objection I will summarize the main points of my record 

statement and attempt to respond to any questions you or other members of the 

subcommittee might have. 

I would like to begin by making three points. 

First, the National Conference of Black Mayors supports EPA regulatory policies 

that are intended to improve our Nation’s air quality in a manner that is cost-effective for our communities and based on sound science. 
101 

Second, because of such EPA policies, and the coordinated efforts of State and 

local Governments and industry, substantial progress has been made over the past 

25 years in meeting the clean air act’s air quality goals. While more progress is 

needed in selected areas and communities across the country, we should make no 

mistake that the clean air act is working as it was intended. EPA’s own data show 

that between 1970 and 2006, total emissions of the six principal air pollutants 

dropped by 54 percent. 

Lastly, the NCBM is, however, deeply concerned about the potential adverse impact on the communities we represent, should EPA decide in its final ruling to adopt 

a more stringent NAAQS standard for ozone. 

In specific regard to Louisiana, my understanding is that currently, there are only 

5 parishes classified as non-attainment for ozone. Under either of the proposed new 

standards under consideration over half of the 64 parishes in the State could be reclassified as non-attainment for ozone. 

As I am sure you are aware, the designation of a county (or parish) as non-attainment for ozone triggers a second process in which affected States must develop and 

submit to EPA a State Implementation Plan (SIP) that demonstrates compliance 

with the new standard within a certain time frame. The emission control strategies 

required to make such a demonstration will significantly impact the economies of 

local communities, including jobs and future growth. 

Many parishes across our State will, for the first time experience the stigma and 

compliance challenges of being designated non-attainment for ozone. Moreover, 

those parishes that are currently designated as being non-attainment for ozone will 

be faced with identifying and implementing even more demanding compliance strategies, even before they have had an opportunity to implement fully, the plans on 

which they are now working to comply with the present 0.08 ppm standard. 

The situation in Louisiana is representative of what many of our member mayors 

across the country will be facing should the ozone standard be made more stringent. 

Alabama, for example, currently has only two of the State’s 67 counties designated as non-attainment for ozone. This number could increase to over half of the 

State’s counties depending upon which new standard is chosen. 

Similarly, in Mississippi, up to one third of the State’s 82 counties would become 

non-attainment, again, depending upon which standard is chosen. 

The impact of being designated non-attainment will also have a disparate impact 

on those communities undertaking economic revitalization efforts and rebuilding, 

like those in the gulf coast in the aftermath of Katrina. Such impacts manifest 

themselves in the form of increased costs to industry, permitting delays, restrictions 

on industrial expansion within an area, impacts on transportation planning, increased costs to consumers and for commercial and consumer products. This results 

in continuing oversight by EPA at the local level until the area has met and maintained this standard for the required period of years. These aspects have very real 

impacts on communities. 

I have heard some say that at the levels being proposed, attainment and maintenance of the standard will be out of reach for most industrialized States. 

We simply cannot afford to jeopardize the progress being made in the south, as 

well as the country as a whole. 

At the National Conference of Black Mayors annual meeting, we adopted unanimously a resolution calling upon EPA to include among its policy options, consideration of retaining the current 0.08 ppm standard. I am providing a copy of that resolution for the record. 

In closing, Mr. Chairman, the National Conference of Black Mayors is committed 

to a clean environment and improved air quality for our communities. However, I’d 

like to stress that air quality is not the only thing that impacts the health of the 

people we represent. The health and welfare of our communities is also dependant 

on having good jobs, economic growth and the quality of life that goes with it. 

Accordingly, it is important to have a full and fair discussion of the air quality 

progress we have achieved to date, and the health and welfare aspects of the economic impacts to our communities. 

The National Conference of Black Mayors intends to participate fully in the public 

comment process associated with EPA’s proposed rule. We believe that the current 

standard should not be made more stringent at this time and will urge EPA to 

make a realistic assessment of our air quality needs and give careful consideration 

to the potential adverse impact of a lower standard on our local communities, and 

the welfare of those who work and live there, including the small and minorityowned businesses that operate and provide services in these areas. 

Thank you again, Mr. Chairman. 

I will be happy to respond to any questions you might have. 
102 

Senator CARPER. Mayor, thank you. The rest of your testimony 

will be entered into the record. 

We are going to recess for about 10 minutes, we are going to run 

and vote. And we will be way back. While we are away, if the five 

of you could sort of work out what you think is the consensus position and share that with us, that would just be much appreciated. 

[Laughter.] 

Senator CARPER. We will see you in about 10 minutes. 

[Recess.] 

Senator CARPER. I am going to ask our witnesses to take your 

seats again, please. 

Mr. Werner, did you all work things out while Senator Voinovich 

and I were off voting? 

Mr. WERNER. We did. Base it on the science. 

[Laughter.] 

Senator CARPER. All right. Let me start off, again, my thanks to 

each of you for your excellent testimony. I want to start off with 

my first question, I would like to address to Mr. Werner, please. 

When I was Governor, we were trying to develop a State Implementation Plan. I don’t know if you were here in D.C. then or in 

Missouri in your previous post. But we were trying to retain the 

current standard. However, much of the pollution in our State 

didn’t come from our State, as you know. Can you just tell us how 

Delaware has managed to improve our air and to still be on target 

for reaching attainment by 2010, without shutting down the State’s 

economy? 

Mr. WERNER. Absolutely. Not only did we not shut down the 

economy, we have increased it enormously, probably because the 

quality of life is something that is valued, and we work on very 

hard. We have taken a number of creative steps to address the air 

pollution problem. But as I said, we can’t do it alone, but we do 

our part. There are some of the things that are unique to Delaware. For example, we bring in supertankers off the Atlantic Ocean 

and lighter them to remove crude oil onto other ships. When that 

happens, about 2,000 tons a year of volatile organic compounds are 

contributed to the ozone problem. To control that, we have worked 

with industry on trying to develop methods for containing the 

VOCs coming off those lightering vessels. 

Another example, we have one of the largest sour crude refineries operating in the United States. It not only emits a huge 

amount of SOx, but VOCs, and of course, NOx, from boilers and 

other sources. What we have found is working with them, we could 

focus our regulatory time tables at a time when they are shutting 

down equipment anyway for regular maintenance, whether it is the 

coker or the boilers, so that the control costs are kept low. We find 

the key is working with industry in identifying ways to keep the 

costs down and identifying sources where you can obtain cost-effective reductions. Again, we can only do so much. We need more regional and national initiatives to help out. 

Senator CARPER. What are some things we could do, we here at 

the Federal end, to help? 

Mr. WERNER. I think your CAPA bill, or ‘‘Clean Air Planning 

Act’’ goes a long way toward that, the 80 plus percent reduction in 

SOx, the enormous reductions in NOx, setting tighter caps, allow-
103 

ing for market-based solutions that the Environmental Defense 

Fund has really promoted as well and has demonstrated would be 

very effective. 

Setting those standards, setting a tighter cap helps. Some more 

monitoring and modeling assistance, different things, money is 

needed there that States can’t do alone. The Ozone Transport Commission, OTC, has been an enormously valuable partner in that. 

But they can’t do all the modeling without more EPA funding assistance. 

Last, some of the federally mandated sources, like mobile 

sources, more has to be done there. Of course, as I mentioned before, some out of the box things, land use planning, smart growth. 

There used to be a major effort in the Federal Government to provide technical assistance on smart growth that will help with reducing mobile source emissions. Some more support for those 

things as well. 

Senator CARPER. Thank you. 

Dr. Bell, I want to go back to some of the testimony that Dr. 

McClellan presented. I would just ask, where do you agree with 

him and where do you disagree? 

Ms. BELL. I disagree with the written testimony’s interpretation 

of my work. And I—— 

Senator CARPER. In what respect? 

Ms. BELL. Excuse me? 

Senator CARPER. Could you elaborate on that? 

Ms. BELL. I believe that the relationship between ozone and mortality has been demonstrated by numerous studies and that the 

evidence is compelling and overwhelming. There is my own study, 

which is a national U.S. study, there is also a study on 23 European cities, a study from Harvard University, studies from New 

York University School of Medicine and many other studies I could 

list today that show that this relationship stands up to a variety 

of statistical techniques, a variety of study locations as well. 

So I disagree with his interpretation that the scientific evidence 

on mortality and ozone is not compelling. 

Senator CARPER. Are there other parts of his testimony with 

which you agree or disagree that you would like to share? 

Ms. BELL. Well, he spent a good deal of his testimony both in the 

oral portion and the written portion talking about the difference 

between the 24 hour exposure metric and the 8 hour exposure metric. I agree that both of these exposure metrics have been used in 

a variety of studies. In fact, if you look historically at the human 

health literature, the changing nature of what exposure metric has 

been used reflects expanding scientific knowledge about the way in 

which ozone impacts human health. 

The 24 hour ozone levels are very highly related to the 8 hour 

ozone levels, and by that I mean that on days when the 24 hour 

level is high, the 8 hour level is typically high. So while some studies have provided the 8 hour standard, 8 hour metric time, and 

some studies have provided the 24 hour metric time. In my own 

study in the Journal of the American Medical Association, I provided both relevant measures. 

But all of these different types of studies using this range of exposure times are very, very relevant to our understanding of ozone 
104 

and human health, not just the ones based on the 8 hour standard, 

excuse me, 8 hour metric time. 

Senator CARPER. Mr. Werner, you were nodding your head as Dr. 

Bell was speaking. We didn’t get that on the record. 

[Laughter.] 

Senator CARPER. What was that head nod about? 

Mr. WERNER. Just briefly, studying toxicology in the 1970’s as an 

undergraduate and then later in grad school at Johns Hopkins, the 

science has been pointing to exactly what Dr. Bell said for quite 

some time. It is just frustrating to be a practitioner, being the bureaucrat, who has to sit down toe to toe with these industries and 

hear them complain about the standard. I am sorry, the science 

has pointed that direction for some time. The policy, has lagged behind for too long a time. Maybe I am just an impatient person, I 

just want to see that the science and the policy get bridged. 

Senator CARPER. All right, good. Dr. McClellan, a rebuttal, a 

comment? 

Mr. MCCLELLAN. I would agree that as the science has evolved 

over time we have used a variety of metrics. But the very important point to keep in mind is that when we set the standard, it is 

a precise numeric standard and it is set for a precise averaging 

time. Thus, while there is a correlation between ozone exposure coefficients developed with 24 hours averaging time daily versus an 

8 hour averaging time, there is considerable city to city variation. 

That has to be acknowledged. And in the end, the policy judgment 

is one that has to be based on the 8 hour averaging time, unless 

Dr. Bell or others would like to propose that we move to a 24 hour 

averaging time as standard. Obviously, the numerical level selected 

for a 24 hour averaging time standard would be quite different 

than one selected for an 8 hour averaging time standard. 

It is important to keep in mind, that we have been talking here 

about the possibility of a change from 0.08 ppm down to 0.07. That 

is a very small change. One shouldn’t casually slip from talking 

about that change in an 8 hour averaging time and then use data 

that is for 24 hours or for 1 hour averaging times to justify reduction. It has to be done in a very careful, structured way. Unfortunately that was not done in EPA’s risk assessment. 

Senator CARPER. All right, thank you. 

Mayor Grace, in your testimony, you spoke really about the 

threat to the economy, threat to job creation and job preservation 

in your town and other towns whose mayors are members of your 

national association. I fully appreciate the need for jobs. We could 

have perfectly clean air and have no jobs and all is not well. 

Talk to us a little bit, if you would, there is another side to this 

coin, as you know. The coin that you have addressed is the coin 

that says, we need jobs, we need to make sure we have a strong 

and vibrant economy. How do we balance that with the fact that 

we do have a lot of people who suffer from asthma and other chronic diseases that are related to the quality of the air that we 

breathe. How do we balance those two? 

Mr. GRACE. Let me just say, in my area, which is the Baton 

Rouge area, and we are in a non-attainment posture at this time, 

but I have lived in that area all my life. I have seen the quality 

of air evolve from where it used to be to where it is now. I also 
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see, as Mayor of the city, and I am familiar with other mayors in 

that area, I have seen the effort that has been made by EPA and 

by industry as well as local government. Things are improving just 

tremendously. I can, just by living there, I can tell the difference. 

What I am simply saying is, we have had a lot of work that has 

been done and that is being done. A lot of these industries in my 

area, I have 12 petrochemical plants within the confines of the city 

of St. Gabriel. These people are working very hard to attain the 

level of 0.08 parts per million. And I think it would be disruptive 

and maybe a little premature to start moving drastically in another 

direction. 

Also, we have plants that want to expand and they are sort of 

on hold. They are having to choose whether they want to actually 

make an investment in my city or in my area, or move their operations abroad. These kinds of things are very much of a concern 

to our citizens in that area. We are talking about reformulated gasoline, we are talking about a whole lot of things as being very disruptive. And the investment capital that I think we would get by 

virtue of the fact that we have a lot to offer, the Mississippi River 

and other available land and things like that, is mitigated by the 

fact that we have some uncertainty as it relates to the ozone levels. 

Senator CARPER. Thank you, sir. Part of Mayor Grace’s testimony, on page three, I will just read one sentence. It says, many 

parishes across our State will for the first time experience the stigma, this is if the standard is strengthened—— 

Mr. GRACE. Correct. 

Senator CARPER [continuing].—will experience the stigma and 

compliance challenges of being designated non-attainment for 

ozone. And I would say as a former Governor, now a Senator of a 

State whose all three counties are in non-attainment, there are 

worse things than being in non-attainment. You don’t want to be 

there forever. But among the worse things are having kids, older 

people, especially, not being able to breathe the air and they suffer 

health problems because of that. Our challenge, and I think it is 

the challenge that the EPA Administrator faces is, he is required 

under law to figure out what is the science and what do we need 

to do for health. 

Our challenge, we happen to be the mayor, we happen to be Governor, we happen to be somebody who is in charge of economic development in your State, in charge of environmental controls in 

your State, Senator, our job is to figure out how we can work together so we can maybe not have it all, but come pretty close, and 

having it all being a strong, vibrant economy and improving health 

and improving air quality so we can reduce our health problems. 

I have a question, if I could, for Ms. Patton. I believe you, along 

with Administrator Johnson, and several others of our witnesses 

today have talked about how the Clean Air Act has already 

achieved significant reductions in air pollution. Many claim that 

taking this next step will only hurt the economy and it is not necessary. Mayor Grace in his testimony has alluded to that. Let me 

just ask, what is your response to these concerns? 

Ms. PATTON. Senator Carper, I am not aware of any circumstance where EPA has been confronted with such clear and 

convincing science. I think that is embodied in the recommenda-
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tions of the Clean Air Scientific Advisory Committee. The Nation’s 

Ambient Air Quality Standards have been revised a number of 

times since the inception of the modern Clean Air Act in 1970. The 

particulate matter health standard has been revised on four occasions, including most recently in September 2006. The ozone health 

standard was originally established in 1971, revised in 1979, then 

again in 1997. Ultimately, there will be a decision made on March 

12th of 2008. 

In each instance, the Administrator of EPA was entrusted with 

looking at this body of science and making a decision to set a 

standard that is requisite to protect public health with an adequate 

margin of safety. This is a very unusual circumstance, where 1,700 

studies since the standard was last reviewed tell us clearly and 

convincingly that we need to substantially reduce the Nation’s 

health standard to protect the public health against this very serious range of impacts that were documented in this CASAC letter 

and in the volumes of materials that underlie it. 

Senator Boxer said when we were last confronted with these 

similar arguments, and the Nation reviewed the adequacy of the 

health standard in 1997 for ozone and particulate pollution that 

this is a familiar argument. The decision to tighten the Nation’s 

health standards are always met with claims of economic demise. 

Then technology catches up, we deploy innovative solutions. The 

science only confirms what we thought in terms of the public 

health impacts. And everyone breathes cleaner air. 

Senator Carper, what you described was a world in which we 

don’t look at a non-attainment map and shrink from that challenge. You described a world in which we stand up. And we take 

that challenge on. And in fact, there is a third map that was not 

presented today that shows that in 2020, based on the emissions 

standards on the books and under consideration right now at the 

Environmental Protection Agency, that over 60 percent of the areas 

on the second map that would be affected by a .070 standard would 

come into compliance in 2020. 

So we have this great American success story where we have met 

the challenge. And we must accept it. And we can in fact protect 

human health with an adequate margin of safety. 

Senator CARPER. All right, thank you. As we come to a conclusion 

here, I would simply add, there is plenty of work here for all of us 

to do. That includes the folks who are privileged to sit in the seats 

that I am now sitting in, and folks back home in our State and 

local governments, and folks that are working in universities to invent new technologies like those plug-in hybrids and those lithium 

ion batteries that will enable us to build a Chevrolet product or a 

Ford product or Chrysler product or other product that will help us 

to clean our air and reduce our dependence on foreign oil at the 

same time. 

In our jobs, we get to sit through a lot of hearings. And it is rarely that I sit through a hearing and walk away and say, well, that 

wasn’t much help. That is rare that happens. Having said that, 

this has been an extraordinarily helpful hearing, uncommonly helpful hearing. I am encouraged, walking away from here, that next 

March 12th, the Administrator is going to make a decision and announcement that is not going to be wildly cheered by everyone, but 
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most people will say that was the right thing to do, and it keeps 

us moving in the right direction. Then the obligation falls on the 

rest of us to make sure if we do have that more rigorous standard 

that we cannot just meet it, but also meet it in a way that enables 

us to continue to grow our economy and to meet those needs of our 

people, whether they happen to be down there in Alabama or up 

in Delaware or any other place in our Country. 

You all could have been some place else today, and we are just 

very grateful that you are here. And to each of you for the work 

that you do and the stewardship that you provide for folks, whether it is in a State or a town, thank you for that. 

Connor, young man, we are delighted that you took a day off. 

You could have been at the beach some place, you could have been 

at the beach in Delaware today having a good time. But we are 

glad you came here today and we are glad you brought your grandfather with you. I thought he did a nice job, and I hope that you 

are pleased as well. 

With that having been said, we will close this hearing. Some of 

our Senators are going to be submitting additional questions for 

you to answer. I would appreciate if you would do that, and that 

would become part of the record. 

Senator CARPER. I would ask that you complete the answers to 

those questions for the record promptly, if you will, so we can publish our hearing. We try to do that in a timely fashion. 

Again, thank you all for coming. We wish you a good week and 

better air quality, wherever you are headed. God bless you. Thank 

you so much. 

This hearing is adjourned. 

[Whereupon, at 12:25 p.m., the committee was adjourned.] 
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