TRANSCRIPT OF PROCEEDINGS

___________________________________________________________________

HERITAGE REPORTING CORPORATION

Official Reporters

1220 L Street, NW Suite 600

Washington, DC 20005

contracts@hrccourtreporters.com

U.S. ENVIRONMENTAL PROTECTION AGENCY

In the Matter of:

Public Hearing on the Proposed Action to Ensure 

Authority to Issue Permits under the Prevention of 

Significant Deterioration Program to Sources of 

Greenhouse Gas Emissions: Federal Implementation Plan 

Pages: 1 through 44

Place: Washington, DC

Date: September 14, 2010
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U.S. ENVIRONMENTAL PROTECTION AGENCY

Public Hearing on the Proposed Action to Ensure 

Authority to Issue Permits under the Prevention of 

Significant Deterioration Program to Sources of 

Greenhouse Gas Emissions: Federal Implementation Plan 

September 14, 2010

EPA Ariel Rios East Building, Room 1153

Washington, D.C.
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1 P R O C E E D I N G S

2 (9:00 a.m.)

3 MS. SUTTON: Good morning. Thank you for 

4 attending this public hearing, held by the U.S. 

5 Environmental Protection Agency. We're holding this 

6 hearing to take comment on EPA's proposed rulemaking 

7 entitled, Action to Ensure Authority to Issue Permits 

8 Under the Prevention of Significant Deterioration 

9 Program to Sources of Greenhouse Gas Emissions: Federal 

10 Implementation Plan, which proposes a federal 

11 implementation plan that would apply as early as 

12 January 2, 2011, in any state that is unable to submit 

13 a state implementation plan, or SIP, revision to ensure 

14 that the state has authority to issue permits under the 

15 PSD program for sources of greenhouse gas emissions. 

16 This proposed rulemaking was published in the Federal 

17 Register on September 2, 2010, at page 53883.

18 My name is Lisa Sutton, and I am an 

19 environmental engineer in the New Source Review Group 

20 in EPA's Air Quality Policy Division, in the Office of 

21 Air Quality Planning and Standards, down in North 

22 Carolina. I will be chairing today's hearing.

23 As stated, we're here today to listen to your 

24 comments on EPA's proposed FIP that would apply as 

25 early as January 2, 2011, in any state that is unable 
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1 to submit a SIP revision to ensure that the state has 

2 authority to issue permits under the PSD program for 

3 GHG sources. This proposed rule is a companion rule to 

4 a second proposed rulemaking, Action to Ensure 

5 Authority to Issue Permits under the Prevention of 

6 Significant Deterioration Program to Sources of 

7 Greenhouse Gas Emissions: Finding of Substantial 

8 Inadequacy and SIP Call, also published in the Federal 

9 Register on September 2, 2010, at page 53892.

10 In the second rulemaking, EPA proposed to 

11 find that 13 states with EPA-approved PSD programs are 

12 substantially inadequate to meet the Clean Air Act 

13 requirements because they do not appear to apply PSD 

14 requirements to greenhouse gas-emitting sources. For 

15 each of these states, EPA proposed to require the 

16 state, through a SIP call, to revise its SIP, as 

17 necessary, to correct such inadequacies.

18 Today's hearing is an opportunity for the 

19 public to comment on EPA's proposed FIP. I may answer 

20 questions that seek to clarify what we have proposed, 

21 but the purpose of this hearing is to listen to your 

22 comments, not to discuss or debate the proposal. 

23 Before we open the floor for testimony, I would like to 

24 briefly describe the circumstances that led EPA to 

25 propose the action that is the subject of today's 
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1 hearing.

2 On April 2nd of 2007, the Supreme Court found 

3 that greenhouse gases are pollutants covered by the 

4 Clean Air Act. In December of 2009, the EPA 

5 Administrator found that six key greenhouse gases 

6 threatened the public health and welfare of current and 

7 future generations, and that greenhouse gases from

8 new motor vehicles and engines contribute to greenhouse 

9 gas pollution, which threatens public health and 

10 welfare.

11 On April 1, 2010, EPA finalized the 

12 light-duty vehicle rule controlling greenhouse gas 

13 emissions, where January 2, 2011 is the earliest date 

14 on which a 2012 model year vehicle meeting these rule 

15 requirements may be sold in the U.S.

16 Based on EPA's interpretation, under the 

17 Johnson Memo Reconsideration, of when a pollutant is 

18 subject to regulation under the Clean Air Act, and, 

19 therefore, subject to PSD requirements, the Clean Air 

20 Act permitting requirements apply to a newly regulated 

21 pollutant at the time a regulatory requirement to 

22 control emissions of the pollutant takes effect. For 

23 greenhouse gases, that would be January 2, 2011.

24 In May of 2010, EPA issued the final PSD and 

25 Title V Greenhouse Gas Tailoring Rule. The Tailoring 
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1 Rule sets thresholds for greenhouse gas emissions that 

2 define when permits under the PSD and Title V Operating 

3 Permit programs are required for new and existing 

4 industrial facilities.

5 The Clean Air Act requires states to develop 

6 and follow SIPs that include requirements for issuing 

7 PSD permits. When federal permitting requirements 

8 change, states may need to revise their plans to 

9 address such changes. In areas where a state does not 

10 have a current SIP-approved program, sources are issued 

11 PSD permits under authority of federal PSD regulations, 

12 either by EPA or under a delegation agreement by the 

13 state. PSD in all tribal lands is currently 

14 implemented under the federal regulations.

15 As I noted previously, EPA has proposed, in 

16 an action simultaneous with but separate from the 

17 action that is the subject of today's hearing, to find 

18 that 13 states with EPA-approved PSD programs are 

19 substantially inadequate to meet Clean Air Act 

20 requirements, and proposed to issue a SIP call because 

21 the programs in the states do not appear to apply PSD 

22 requirements to greenhouse gas-emitting sources.

23 The states identified in the companion 

24 proposal are: Alaska; parts of Arizona; Arkansas; 

25 California's Sacramento Metro AQMD; Connecticut, 
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1 Florida; Idaho; Kansas; Kentucky; Nebraska; Nevada; 

2 Oregon; and Texas. Under the SIP call, these states 

3 must submit to EPA a SIP revision that applies the PSD 

4 program to greenhouse gas-emitting sources. Each of 

5 these states must submit its SIP revision within 12 

6 months of the date of the final SIP call, but the state 

7 may advise EPA that the state would not object to EPA's

8 establishing an earlier date that the state identifies, 

9 which may be as soon as the end of December 2010.

10 Also under the proposed companion rule, by 

11 October 4, 2010, each state permitting agency for which 

12 we proposed the SIP call must submit a letter to EPA 

13 that explains its greenhouse gas-permitting authority 

14 status and must provide information that documents why 

15 its program cannot cover greenhouse gas emissions.

16 Importantly, each state's letter must 

17 identify the date by which the state intends to submit 

18 the SIP revision. Further, all other states that 

19 implement their own PSD programs must review their 

20 greenhouse gas-permitting authority and inform EPA if 

21 their PSD programs do not apply to greenhouse gas 

22 sources.

23 So, the subject of today's hearing is the 

24 proposed FIP that would apply in any state, for 

25 example, the 13 states identified in the companion 
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1 proposal, that is unable to submit, by its specified 

2 deadline, a SIP revision to ensure that the state has 

3 authority to issue permits under the PSD program for 

4 GHG sources. Under the proposed FIP, any source 

5 requiring a PSD permit for greenhouse gases that is 

6 located in an area subject to this FIP would be issued 

7 a permit by the EPA, and the FIP would assure that PSD 

8 permitting for greenhouse gases can continue until the 

9 state is able to complete its SIP revision and EPA 

10 approves that SIP revision.

11 EPA proposes that the FIP would be limited to 

12 greenhouse gases, and it would readily incorporate a 

13 phase-in approach for PSD applicability to greenhouse 

14 gas sources that EPA has developed in the tailoring 

15 rule and expects to develop further through additional 

16 rulemaking. We invite comment on the specific elements 

17 of the proposal, as well as any other issues raised by 

18 the proposal.

19 Now, let me describe how this hearing will 

20 operate and how to comment.

21 Today, we will be accepting oral comments on 

22 our proposed FIP, and we will be preparing a written 

23 transcript of this hearing. The transcript will be 

24 available to the public as part of the official record 

25 for this rule, and EPA will consider both oral comments 
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1 and written comments as we move forward in the 

2 rulemaking process.

3 We are accepting written comments on the 

4 proposed rule until October 14, 2010. We have a fact 

5 sheet available in the registration area that 

6 summarizes our proposed action, and it includes 

7 detailed information for submitting written comments. 

8 For those who will be providing oral comments today, I 

9 will call each scheduled speaker to the microphone. 

10 When it is your turn to speak, please state your name 

11 and your affiliation. It will help the court reporter 

12 in preparing our transcript if you also spell your 

13 name. If you wish to speak but have not already 

14 registered to speak, either through the 

15 pre-registration or today at the registration desk, 

16 please check in with our staff at the registration 

17 table located just outside the entrance to this room.

18 Due to the small number of registered 

19 speakers, we will not restrict each speaker's testimony 

20 to five minutes, as is our normal practice. However, 

21 we do ask that you limit your testimony to not longer 

22 than 10 minutes. After you finish your testimony, I 

23 may ask you clarifying questions. If, in addition to 

24 the transcript, you would also like us to put the full 

25 text of your written comments into the docket, please 
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1 be sure to give a copy of any written comments to our 

2 staff at the registration table.

3 We intend to stay until either 6 p.m. this 

4 evening or one hour after the last registered speaker 

5 has spoken, whichever is earlier. A lunch break is 

6 scheduled from 12:30 p.m. until 2:00 p.m.

7 I would like to thank you all again for 

8 participating today. Let's get started.

9 MR. HOFFMAN: Let me introduce myself. I'm 

10 Howard Hoffman, and I'm with the Office of General 

11 Counsel in EPA.

12 MS. SUTTON: Thank you, Howard.

13 In fact, Howard's our first registered 

14 speaker, Howard J. Feldman.

15 MR. FELDMAN: Good morning. I'm Howard J. 

16 Feldman, director of Regulatory and Scientific Affairs 

17 at API. API represents over 400 member companies 

18 involved in all aspects of the oil and natural gas 

19 industry, an industry that supplies most of America's 

20 energy, supports 9.2 million U.S. jobs, and 7.5 percent 

21 of the U.S. economy, and has invested nearly 

22 $2 trillion in U.S. capital projects since 2000, 

23 including those spurring advances in nearly every form 

24 of alternative energy. Thank you for the opportunity 

25 to testify today.
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1 In summary, we do not believe the proposed 

2 rules under discussion can adequately address the 

3 implementation challenges the states face. But more 

4 importantly, they cannot remedy the incurable 

5 shortcomings of attempting to regulate greenhouse gas 

6 emissions under the Clean Air Act, which we believe 

7 poses a major threat to the nation's economic recovery 

8 and putting Americans back to work.

9 The Agency's proposed implementation rules 

10 are an admission that the states are unprepared to 

11 issue PSD and new facility permits for control of 

12 stationary source emissions. The state agencies 

13 deserve no blame for this. With little guidance and 

14 little lead time, they have been asked to define and 

15 apply industry-specific, and even equipment-specific, 

16 GHG emission standards for an indefinitely vast segment 

17 of the American economy. It is unclear what, how many, 

18 and what parts of entities would be covered, how many 

19 permits would be involved, what emission control 

20 technologies would be acceptable, and how much putting 

21 such a program into operation would cost the states.

22 Many state officials have complained. It is 

23 hard to see how the proposed rules would provide the 

24 support, guidance and time states will need. Nor, as I 

25 have said, would they lessen the adversity and 
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1 sacrifice that EPA's stationary source GHS emission 

2 regulation would impose on American workers, business 

3 and industry, and the economy.

4 Temporarily changing who is going to do the 

5 permitting does not solve the underlying problems with 

6 the regulation itself. No matter who signs off on the 

7 permits or how government implementation plans are 

8 revised, regulation of these emissions under the Clean 

9 Air Act will create vast uncertainty for U.S. citizens, 

10 spur endless litigation, slow or reduce investment in 

11 new enterprises, or possibly send investment out of the 

12 country entirely, and reduce job creation and economic 

13 growth.

14 EPA's own past evaluations of the impacts of 

15 the regulation largely confirm this. While the Agency 

16 has carefully avoided putting formal regulatory impact 

17 analysis on the costs of the regulation, I haven't seen 

18 it anywhere. Even while claiming benefits for entities 

19 that might temporarily escape its requirements, it has 

20 acknowledged that regulation could affect 6.1 million 

21 U.S. emission sources, introduce $78 billion in annual 

22 costs from just one element of the permitting 

23 requirements, cause at least a decade or longer of 

24 permitting delays, slow construction nationwide for 

25 years, introduce state and tribal burdens that are both 
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1 administratively infeasible and overwhelming, and 

2 impact sources otherwise not appropriate at this point 

3 to even consider regulating.

4 Climate change is a serious issue, and the 

5 oil and gas industry recognizes that action is needed. 

6 That is one reason why America's oil and natural gas 

7 industry invested more than $58 billion between 2000 

8 and 2008 in climate change mitigation, including 

9 efforts to increase the energy efficiency of its 

10 operations, develop lower carbon fuels, reduce natural 

11 gas flaring and fugitive emissions, and capture and 

12 sequester carbon emissions. It is also one of the 

13 reasons why government has increased fuel efficiency 

14 standards for highway vehicles, which promise to 

15 produce major reductions in carbon emissions.

16 But the challenge we face cannot justify the 

17 Agency's ill-advised stationary source greenhouse gas 

18 regulation. The Clean Air Act was not designed to 

19 address GHG emissions, and modifying the existing 

20 statutory thresholds to make them work for greenhouse 

21 gases, as the Agency has done, amounts to rewriting the 

22 Clean Air Act, not applying it. Furthermore, forcing 

23 the Clean Air Act into service for which it is 

24 ill-suited will unnecessarily increase the costs of 

25 emission reductions. This doesn't ever make sense, and 
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1 it beggars belief that the administration would do this 

2 when the nation is mired in one of the worst economic 

3 downturns since the Great Depression, with 15 million 

4 Americans still jobless.

5 The answer is clear. Set the regulation 

6 aside. Let Congress address climate change with new 

7 legislation. This will take time, but the result will 

8 be a fit-for-purpose law that reflects the will of the 

9 people and reduces the burden on the economy and the 

10 American worker. Thank you.

11 MS. SUTTON: Mr. Feldman, thank you.

12 We are ahead of schedule. Our next scheduled 

13 speaker, Janet Phoenix.

14 (No response.)

15 MS. SUTTON: If you are here, you are 

16 welcomed to speak at this time. Janet Phoenix?

17 (No response.)

18 MS. SUTTON: Craig Segall is our next 

19 registered speaker.

20 This is your option, if you'd like to speak.

21 MR. SEGALL: Sure.

22 MS. SUTTON: Thank you, and then we'll take a 

23 break.

24 MR. SEGALL: Good morning. My name is Craig 

25 Segall, and I'm with the Sierra Club. On behalf of its 
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1 more than 1 million members and supporters, we're very 

2 pleased to be here today to give comments.

3 The Clean Air Act provides that air pollution 

4 control at source is the primary responsibility of 

5 states and local governments, who recognize that 

6 federal financial assistance and leadership is 

7 essential to support the states. Global warming 

8 pollution poses an especially pressing pollution 

9 control responsibility. The Sierra Club agrees, 

10 strongly agrees in fact, with EPA that the science 

11 supporting the Administrator's finding that elevated 

12 concentrations of greenhouse gases in the atmosphere 

13 may reasonably be anticipated to endanger the public 

14 health and welfare of current and future U.S. 

15 generations is robust, voluminous and compelling, and 

16 that action is both needed and duly mandated in your 

17 Act now.

18 Now, the lion's share of stationary source 

19 greenhouse gas emissions comes from just a few thousand 

20 very large facilities that ADOT mentions in the 

21 tailoring law. It is entirely appropriate that EPA's 

22 decided to phase in control requirements, focusing 

23 initially only on these dominant polluters, rather than 

24 on the 6 million sources that Mr. Feldman cited, even 

25 though that -- he had no record whatsoever --
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1 (unintelligible).

2 Now, because greenhouse gases are pollutants 

3 due to regulation under the Clean Air Act, new 

4 facilities and facilities conducting major construction 

5 projects are required to use the best available control 

6 technology to limit their emissions and to obtain 

7 permits containing these limitations before they begin 

8 construction.

9 Many of these facilities regulated, of 

10 course, have long experience with this preconstruction 

11 permitting process and for other pollutants, and it 

12 will readily adapt the additional responsibility. And 

13 we expect the technologies used to control greenhouse 

14 gases, including controlling leaks, using more 

15 efficient boilers, to burning cleaner fuels -- and I'd 

16 like to make that cited in our testimony -- will be 

17 familiar to most emitters and will be relatively 

18 inexpensive to include in the preconstruction planning 

19 process. The states, moreover, have been handling this 

20 process for decades and certainly the experience and 

21 expertise to begin implementing these controls.

22 I want to state briefly some of the concerns 

23 EPA has raised under a 10-year old structure. 

24 (unintelligible). I mean, it's absurd.

25 Now, as to the counties, we agree with EPA 
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1 that some state SIPs have outdated language which may 

2 prevent them from including greenhouse gas controls at 

3 that time. Until these states update their plans, they 

4 will not be able to issue preconstruction permits to 

5 polluters emitting greenhouse gases. They would have 

6 to use Section 7477 -- (unintelligible). We'd like to 

7 be recognized that there is no need for that and that 

8 the states can avoid that. And you have to make sure 

9 the states continue their primary responsibility to 

10 control this emission.

11 We have a chance to require EPA 

12 (unintelligible). We also agree that EPA has the 

13 authority to issue the SIP as soon as, in this 

14 instance, (unintelligible). We agree with EPA that the 

15 January 2, 2011 control deadline is approaching 

16 quickly, and it makes sense to issue a SIP call by 

17 December of this year and establish reasonable 

18 deadlines per Section 7410 (k)(5) and work with the 

19 states. We also hope that many states will take EPA's 

20 offer to take earlier deadlines.

21 (Unintelligible.)

22 MS. SUTTON: Segall testimony. Thank you.

23 Next registered speaker, Janet Phoenix.

24 DR. PHOENIX: Good morning. My name is 

25 Dr. Janet Phoenix. I'm executive director for the 
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1 Coalition for Environmentally Safe Communities. CESC 

2 is an EPA grantee through the collaborative problem3 solving grant process, and we coordinate a coalition of 

4 organizations here in the District of Columbia called 

5 the D.C. Environmental Health Collaborative. And I'm 

6 here in that capacity, although I'm also an assistant 

7 professor in the Department of Health Policy at George 

8 Washington University in the School of Public Health, 

9 but that's for identification purposes only. I'm not 

10 here speaking on GW's behalf this morning.

11 I'm really here on behalf of the D.C. 

12 Environmental Health Collaborative to encourage the 

13 adoption of very strict enforcement policies and the 

14 adoption of this proposed rule. It's our viewpoint, 

15 speaking on behalf of children here in the District of 

16 Columbia, that we are in favor of the most protective 

17 process possible to ensure positive health outcomes for 

18 children.

19 It is our concern that exposure to pollutants 

20 is a hazard and has resulted in adverse health effects, 

21 particularly childhood asthma, here in the District. 

22 But this also has an impact on the health of the 

23 elderly as well, people with chronic conditions, 

24 co-morbid conditions such as congestive heart failure 

25 or chronic obstructive pulmonary disease. And so we're 
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1 in favor of the most protected environment possible to 

2 ensure the least exposure for these vulnerable 

3 populations.

4 As you are probably well aware, African 

5 American and Hispanic children are disproportionately 

6 impacted by poor air quality, which has been associated 

7 with asthma, increases in exacerbations, attacks, but 

8 also has been implicated in the development of this 

9 disease and may be, in part, responsible for 

10 differences that we see in the incidence of this 

11 disease in African American and Hispanic populations, 

12 particularly those who live in urban areas.

13 So, therefore, I would encourage the Agency 

14 to be forthcoming, to help protect children living in 

15 the District of Columbia and the areas of concern, but 

16 also in other areas of the country, other cities, and 

17 other urban areas where vulnerable populations may 

18 live. And so I'm speaking specifically on behalf of 

19 vulnerable populations in the District of Columbia, but 

20 generally on behalf of vulnerable populations across 

21 the country, to take this protective approach and do 

22 what's appropriate. It's long overdue. Thank you.

23 MS. SUTTON: Thank you. Phoenix testimony.

24 Our next registered speaker is not scheduled 

25 until 10:00.
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1 If Andy Wilson would like to speak now or 

2 wait until 10:00? Andy Wilson?

3 We'll adjourn the hearing for a break, 

4 resuming at 10:00 a.m. Thank you.

5 (Whereupon, a recess was taken.)

6 MS. SUTTON: Again, good morning. My name is 

7 Lisa Sutton. I'm with the New Source Review Group in 

8 EPA's Air Quality Policy Division in the Office of Air 

9 Quality Planning and Standards. Joining me on the 

10 panel is Anna Wood, also from OAQPS.

11 We'll reopen this public hearing. If you 

12 weren't here for the opening, I'll ask that you please 

13 state your name and your affiliation when you come to 

14 the podium to speak to present your testimony. It 

15 would also help the court reporter in preparing our 

16 transcript if you spell your name. If you wish to 

17 speak but are not already registered to speak, please 

18 check in with our staff at the table located just 

19 outside the entrance to this room.

20 Our next registered speaker, Andy Wilson.

21 MR. WILSON: Good morning. Ms. Sutton and 

22 other members of this distinguished board. My name is 

23 Andy Wilson. I'm a public citizen, specifically Public 

24 Citizen's Texas office, where I'm a climate change 

25 analyst.
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1 It's my pleasure to be here today on this 

2 great anniversary, the 40th anniversary of the signing 

3 of the Clean Air Act, and give comment on the creation 

4 of the state implementation programs and federal 

5 implementation programs on greenhouse gases.

6 Public Citizen is a nationwide, non-profit 

7 consumer advocacy group, founded in 1971, and our 

8 office in Texas has been open since 1985. Because 

9 energy is oftentimes, depending on where you are in the 

10 socioeconomic ladder, anywhere from the second to your 

11 fifth largest family expense that you pay every month, 

12 we view energy as a prime consumer issue, and climate 

13 change, because of its likely impacts on the energy 

14 sector, an equally important consumer issue.

15 Public Citizen Texas has been at the 

16 forefront of advocating for renewable energy and the 

17 push for renewable portfolio standards and other 

18 alternative energy programs within the state of Texas, 

19 which has led to Texas being the number one builder of 

20 green energy in the United States. However, Texas 

21 presents a challenge for federal greenhouse gas rules 

22 for the following reasons.

23 First, we're the number one emitter of 

24 greenhouse gases in the country, so much so that we are 

25 double what the next closest state is, which I believe 
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1 is Pennsylvania. This is in large part due to the 

2 presence of the oil and gas industry in our state and 

3 the large number of refinery and petrochemical plants 

4 in the state, and also our reliance upon coal-fired 

5 power due to the vagaries of being in our own separate 

6 grid and even tough (unintelligible) market.

7 To give you an idea of the scale of our 

8 greenhouse gas emissions, depending on your accounting 

9 and your year, we're between the sixth and the eighth 

10 largest emitter of greenhouse gases in the world, just 

11 the state of Texas, if you were to think of Texas as 

12 our own separate country, which brings me to the second 

13 problem of Texas, and that is that many people, 

14 including some of our highest politicians, view Texas 

15 as its own separate country.

16 Texas has, to put it lightly, a troubled 

17 history with the Clean Air Act, and many of these 

18 recent issues go back to the previous administration, 

19 the Bush administration, and recently, including 

20 disapproval of our Flex permitting program, and just 

21 last week, disapproving several other portions of our 

22 permitting program, including minor source-backed 

23 issues.

24 Furthermore, you have the recent 

25 communications between officials in the state of Texas 
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1 and the EPA, including a letter from the Texas attorney 

2 general, Greg Abbott, and TCEQ commissioner, Bryan 

3 Shaw, just last month stating that they had no 

4 intention of implementing any federal greenhouse gas 

5 rules. Now, we can't discount that this is just 

6 election year bluster; however, it is likely that even 

7 if these are just candidates trying to pick a fight 

8 with federal government, that should they be returned 

9 to office, it's probable that they will attempt to 

10 enact the same policies that are, after all, up and 

11 running.

12 Regardless of whether Texas decides to create 

13 a state implementation plan for greenhouse gases or 

14 fails to do so and goes forfeit, we ask for the same. 

15 We ask that the Clean Air Act be followed. And we are 

16 here to call for that because in so many cases, Texas 

17 has not been asked to follow the Clean Air Act, or has 

18 not been forced to follow the Clean Air Act, as 

19 evidenced by many of our programs, which are now being 

20 disapproved.

21 Since it is likely that Texas will be one of 

22 the only -- although I am told now that Wyoming has 

23 said they will also not create a state program. But we 

24 are one of the only that will refuse to create a state 

25 implementation program. We ask you to examine Texas's
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1 specific place in the greenhouse gas, green world. And 

2 our greenhouse gas emissions -- create rules that are 

3 tailored to those specific issues, specifically 

4 relating to refineries, petrochemical facilities, 

5 coal-fired power. And in any proposed FIP, that you 

6 would do the same with the state implementation 

7 program. We asked that you would do this not only 

8 because of the different types of emissions that we 

9 have, but because of our primacy in the world of 

10 greenhouse gas emissions.

11 We would ask that with any federal 

12 implementation program, that there will be no 

13 grandfathering of any facilities. In many cases, we 

14 have fought grandfathering from other rules and we want 

15 to keep that from happening, with many of our oldest 

16 and biggest pollutant plants.

17 There's also the question of attainment 

18 versus non-attainment. Since it is increasingly 

19 obvious from the scientific evidence that we've already 

20 passed what is considered by many scientists to be the 

21 safe level of greenhouse gas emissions, it's obvious 

22 that we will have to create just one standard for 

23 non-attainment, and be prepared, to some extent, for 

24 perpetual non-attainment because of the long-lived 

25 nature of carbon dioxide because of greenhouse gas. 
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1 And so we ask for very stringent standards so that we 

2 can not only curb the growth of our emissions, but 

3 eventually get to a place where we can begin to cut 

4 down, and where we return to a safer level below 370 or 

5 350 parts per million in the atmosphere.

6 It's probable that in order to do this rule, 

7 we have to employ other measures beyond just new source 

8 review. If you have any leeway as for further arrows 

9 in your quiver, we believe that it might be smart to 

10 create a kind of cash for clunkers program for 

11 coal-fired power because it is likely that in many 

12 cases that will mean fuel switching to natural gas or 

13 to wood pellets, or some other form of fuel, and that's 

14 going to require a retrofit. And if there were a pool 

15 of money set aside to be able to help plants cut their 

16 emissions in the best way possible and modernize a very 

17 old fleet of coal-fired power plants, that would be 

18 something we would support.

19 That's my testimony for today, and I thank 

20 you for your time.

21 MS. SUTTON: Thank you very much.

22 This is your opportunity to register to speak 

23 at this time. If we have no additional registered 

24 speakers, we have a long lull this morning until our 

25 lunch break. If you don't sign up now, we'll close the 
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1 hearing at this point. We open at 2 p.m.

2 (Pause.)

3 MS. SUTTON: For now, the hearing is closed.

4 (Whereupon, a recess was taken.)

5 MS. SUTTON: Our next speaker will be 

6 Antigone Ambrose.

7 MS. AMBROSE: Good morning. My name is 

8 Antigone Ambrose.

9 [30-second audio gap: Ms. Ambrose identified 

10 herself and her affiliation with the Sierra Club and 

11 its support for the proposed rulemaking.]

12 (Whereupon, at 10:32 a.m., a lunch recess was 

13 taken.)

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1 A F T E R N O O N S E S S I O N

2 (2:00 p.m.)

3 MS. SUTTON: I'll run through the 

4 introduction more briefly than this morning.

5 Thank you all for attending this public 

6 hearing held by the U.S. EPA. We're holding this 

7 hearing to take comment on EPA's proposed rulemaking 

8 entitled, Action to Ensure Authority to Issue Permits 

9 under the Prevention of Significant Deterioration 

10 Program to Sources of Greenhouse Gas Emissions: Federal 

11 Implementation Plan. This proposes a federal 

12 implementation plan that would apply as early as 

13 January 2, 2011 in any state that is unable to submit a 

14 state implementation plan, or SIP, revision, to ensure 

15 that the state has authority to issue permits under the 

16 PSD program for sources of greenhouse gas emissions. 

17 This proposed rulemaking was published in the Federal 

18 Register on September 2, 2010, at page 53883.

19 My name is Lisa Sutton. I'm an environmental 

20 engineer in the New Source Review Group in EPA's Air 

21 Quality Policy Division of the Office of Air Quality 

22 Planning and Standards, and I'm chairing today's 

23 hearing.

24 To recap my formal introduction of this 

25 morning, at today's hearing, we're accepting oral 
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1 comments on our proposed FIP, and we'll be preparing a 

2 written transcript of this hearing. The transcript 

3 will be available to the public as part of the official 

4 record of this rule, and EPA will consider both oral 

5 comments and written comments as we move forward in the 

6 rulemaking process.

7 We're accepting written comments on the 

8 proposed rule until October 14, 2010, and we have a 

9 fact sheet available in the registration area that 

10 summarizes our proposed action, and it includes 

11 detailed information for submitting written comments.

12 If you wish to speak but have not already 

13 registered to do so, please check in with our staff at 

14 the registration table -- we can accommodate 

15 you -- located just outside the entrance to this room. 

16 We intend to stay until either 6 p.m. this evening or 

17 one hour after the last registered speaker has spoken, 

18 whichever is earlier.

19 Again, thank you for participating in our 

20 public hearing today. I'll reopen the floor for oral 

21 testimony.

22 Our first speaker scheduled, Dr. Brenda 

23 Ekwurzel. If you'd come to the podium, we'd ask that 

24 you state your name and affiliation. And it will help 

25 our court reporter if you could spell your name as 
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1 well.

2 DR. EKWURZEL: Good afternoon. I'm 

3 Dr. Brenda Ekwurzel. I'm a climate scientist and 

4 assistant director of Climate Research and Analysis at 

5 the Union of Concerned Scientists. Thank you for 

6 hearing my testimony today.

7 On behalf of our members, the Union of 

8 Concerned Scientists supports EPA efforts to ensure 

9 state permitting programs comply with the 

10 administration's regulations on industrial sources of 

11 greenhouse gas emissions. Such programs would be in 

12 line with the best available science, which indicates 

13 the need for urgent actions to reduce global warming 

14 emissions. Unabated, overloading our atmosphere with 

15 heat-trapping gases poses significant risks to human 

16 life, health and well-being.

17 Today is the 40th anniversary of the Clean 

18 Air Act, and over the last 40 years, this law has saved 

19 hundreds of thousands of American lives and has allowed 

20 the government to keep up with the best available 

21 science on air pollution. In your report series, the 

22 Benefits and Costs of the Clean Air Act, it projects 

23 that in 2010 alone, the Clean Air Act is likely to 

24 save, on average, 23,000 lives and prevent nearly a 

25 million to over 2 million asthma attacks, and, on 
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1 average, 4 million lost work days, and between 23,000 

2 and 144,000 hospitalizations and/or emergency room 

3 visits. In its first two decades alone, it created 

4 benefits valued at over $22 trillion. That's 42 times 

5 greater than the estimated cost of its regulations.

6 Climate change has the potential to risk 

7 countless lives in the U.S. According to the National 

8 Weather Service, between 2000 and 2009, fatalities from 

9 heat, hurricanes and floods were the top three 

10 dangerous natural hazards for the U.S. citizens. 

11 Excessive heat can kill us. We can overheat if our 

12 steady, core body temperature of 98.6 degrees 

13 Fahrenheit rises with sustained skin temperatures above 

14 95 degrees Fahrenheit. If our skin is not sufficiently 

15 colder than our core, the body cannot cool itself by 

16 conducting metabolic heat to the skin. Once the heat 

17 is transferred to the skin, then a breeze or low 

18 humidity are critical for sweat to evaporate and help 

19 us cool down.

20 Despite modern technology and emergency 

21 response measures, heatwaves in Chicago and Europe in 

22 1995 and 2003 still took an excessive toll, with over 

23 35,000 deaths. Researchers estimated it is very 

24 likely, with greater than 90 percent confidence level, 

25 that the role of human-induced climate change doubled 
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1 the risk of exceeding the average 2003 summer 

2 temperature in Europe.

3 Shifts in precipitation also threaten human 

4 health. On average, in the United States, the amount 

5 of rain or snow falling in the heaviest 1 percent of 

6 storms has increased nearly 20 percent, almost three 

7 times the rate of increase in total precipitation since 

8 1958. For some regions of the United States, these 

9 percentages can go up as high as 67 percent increase in 

10 the amount of rain or snow falling in the heaviest 

11 precipitation events. This is a well-known consequence 

12 of a warming planet that has both increased the 

13 evaporation rates, delivering more water to a warmer 

14 atmosphere that can hold higher relative humidity.

15 In places where rain or snow occur, light 

16 precipitation events are dropping less rain or snow on 

17 average, and heavier precipitation events are dropping 

18 more rain or snow on average. Ironically, this trend 

19 creates conditions that are more likely to produce both 

20 intense drought periods punctuated by floods, often in 

21 the same region.

22 A study by Ashley & Ashley in 2008 analyzed 

23 flood fatalities between 1959 and 2005 in the 

24 contiguous United States, excluding those from 

25 Hurricane Katrina. Texas had the largest total number 
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1 of fatalities from flash floods and river floods over 

2 the study period. When standardized for population, 

3 South Dakota, Mississippi, West Virginia and Montana 

4 have the largest fatalities per 100,000 people from 

5 flooding.

6 Those between the ages of 10 and 29 and over 

7 60 years old were disproportionately at risk. Although 

8 human behavior contributed to these flood statistics, 

9 there is strong evidence that conditions that put 

10 people most at risk in the first place, flash floods, 

11 are due, in part, to the shift in the baseline to more 

12 extreme precipitation events in a warming world.

13 This makes me wonder if it is entirely honest 

14 to call these natural hazards. This gives a false 

15 impression, as it does not acknowledge the growing role 

16 of climate change and shifting the baseline conditions 

17 within which weather events spawn. There can be no 

18 doubt that when a storm forms over an ocean, or over a 

19 valley, the initial conditions of local sea surface 

20 temperature and atmospheric humidity are intimately 

21 linked to a warmer planet compared to a hundred years 

22 ago.

23 We must improve our weather warning systems, 

24 emergency response plans, public health, education, and 

25 so on. It is entirely prudent for the Environmental 
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1 Protection Agency to address the root cause, greenhouse 

2 gas emissions, that are causing the climate to change 

3 even further. Extreme weather events are increased in 

4 severity, and this is only the very beginning of what 

5 we risk if we allow heat-trapping gases to accumulate 

6 in the atmosphere.

7 According to the U.S. Global Change Research 

8 Program Report in 2009, the 1-in-20-year heavy downpour 

9 is expected to be between 10 and 25 percent heavier by 

10 the end of the century than it is now. According to 

11 studies published in the Journal of Science and Nature, 

12 if heat-trapping emissions continue to [] unabated, a 

13 heatwave similar to the 2003 event could occur every 

14 other year in Europe by the end of this century and be 

15 considered quite an ordinary summer, which is 

16 considered quite extraordinary in today's climate. And 

17 remember, this heatwave took between 35,000 and 50,000

18 lives.

19 It is extremely important that the EPA comply 

20 with the requirements under the Clean Air Act to take 

21 over permitting programs for states that can't or won't 

22 comply with greenhouse gas rules. The Clean Air Act 

23 has been so successful because, on its heart, it is 

24 driven by the best available science. Historically, 

25 the Clean Air Act has been used to respond to 
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1 scientific findings about the dangers of exposure to 

2 smog, lead, particulate matter, and acid rain. Now, we 

3 know that overloading our atmosphere with carbon 

4 dioxide is dangerously altering our climate and 

5 threatening public health, including more extreme 

6 weather events and as a catalyst for the creation of 

7 more ground-level ozone or smog, a conventional 

8 pollutant when fossil fuel emissions are present at 

9 similar levels.

10 Nearly all the studies to date find that more 

11 heat-trapping gases in the atmosphere mean more likely 

12 risks of severe events that are most threatening to 

13 human life. Knowing that future studies will only 

14 refine this general trend implies that, as a society, 

15 we would be wise to improve plans to adapt to what 

16 historic heat-trapping emissions have already locked in 

17 for the next couple decades, and at the same time, 

18 reduce global warming emissions so that the following 

19 decades do not put even more lives at risk.

20 We hope that the states will meet their 

21 deadlines in preparing their plans for upcoming 

22 greenhouse gas regulations, and that the EPA will move 

23 forward on their own if the states cannot meet their 

24 deadline. By holding up the requirements of the Clean 

25 Air Act, the Environmental Protection Agency can live 
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1 up to its name and protect the citizens of the United 

2 States, and perhaps many people around the world, by 

3 implementing sound regulations to swiftly and deeply 

4 reduce national global warming emissions. Thank you.

5 MS. SUTTON: Thank you. That was Ekwurzel's 

6 testimony.

7 We have only one other registered speaker 

8 this afternoon. That's William Snape.

9 MR. SNAPE: Good afternoon, Ms. Sutton, EPA, 

10 members in the audience. I am senior counsel with the 

11 Center for Biological Diversity. We're based in 

12 Tucson, Arizona. We have a climate law institute in 

13 San Francisco, California. We'll be submitting written 

14 comments that will be much more detailed than the 

15 overview I will give this afternoon. To the extent 

16 there is any contradiction between the two, and I don't 

17 imagine there would be, I think our written comments 

18 will be the comments that we will eventually adhere to.

19 I should note that I'm also a practitioner in 

20 residence at the American University Law School, the 

21 Washington College of Law. I have looked at the Clean 

22 Air Act, both as a practitioner and as a professor. I 

23 have studied it for over 20 years. And like my 

24 preceding speaker, I do want to talk about the factual 

25 context in which we are having this discussion. This 
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1 is ultimately a very legalistic set of questions you're 

2 presenting, and I appreciate that, and I will attempt 

3 to answer those questions. But I think why it matters 

4 and what the point is for this effort is highly 

5 relevant.

6 Building upon the Union of Concerned 

7 Scientists spokesperson's testimony, we are seeing 

8 example after example, just even within the last year, 

9 and certainly within the last decade, of the 

10 deleterious impact global warming and associated 

11 climate change are having upon not only the natural 

12 world but also human beings specifically.

13 We are seeing sea level rise. We are seeing 

14 and predicting sea level rise will continue to 

15 accelerate. We are seeing floods in Pakistan; 

16 heatwaves in Russia; storms such as Hurricane Katrina, 

17 certainly not limited to, a prolonged drought in the 

18 Colorado River Basin, for which much of the West 

19 depends upon their livelihood; predictions that a third 

20 of Florida may be under water by the year 2100; a 

21 melting arctic that is warming twice as fast as the 

22 rest of the planet; chunks of Greenland and Antarctica 

23 breaking away from their continental base. The 

24 examples go on and on.

25 From the Center's point of view, we have 
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1 traditionally focused on plants and animals and their 

2 natural habitats. That was how the organization was 

3 founded. There's no doubt that biological diversity as 

4 we know it is absolutely being negatively impacted by 

5 global warming and climate change and that this climate 

6 change, as I said, is having a negative impact upon 

7 humans, and will only get worse. So that is the 

8 factual context, and that's why we're here.

9 What's interesting about the proposal -- and 

10 by the way, I should just note, quite straightforwardly 

11 and for the record, that we strongly support EPA's move 

12 to fully implement the Clean Air Act to address climate 

13 change. We think the plain language of the statute in 

14 the legislative history makes it clear that the Agency 

15 has full authority to do so. The Supreme Court has 

16 already affirmed that authority, and I think public 

17 opinion is on your side as well.

18 It's ironic that as I stand here today, there 

19 are efforts in Congress -- which I know are not 

20 relevant to this hearing today, but actually in some 

21 ways still are relevant to this, at least 

22 potentially -- to somehow abridge the authority of the 

23 Environmental Protection Agency. And we can't predict 

24 right now what will happen with that, and it's outside 

25 the purview of this particular hearing. But the reason 
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1 I raise it is that it's indicative of the backlash that 

2 industry is engineering. And by industry, I mean the 

3 coal industry, the oil industry, the American Petroleum 

4 Institute, the Chamber of Commerce, who look at things 

5 on a quarterly, for-profit basis and are not looking at 

6 the annual decade- and century-long impacts that this 

7 will have upon the United States and the rest of the 

8 world.

9 So that's the context in which EPA is 

10 proposing these actions and has finalized some of the 

11 actions they've already finalized, such as the 

12 tailoring rule, which I'm going to talk about in a 

13 little bit. EPA's absolutely under incredible pressure 

14 from these industrial interests, but I would opine, and 

15 I think the public opinion polls back me up, that the 

16 public, when presented with the facts in a clear way, 

17 is behind EPA, and is behind the Clean Air Act, which 

18 has not only science-based standards but flexibility as 

19 well. The best available control technology standard 

20 as an example for stationary sources is ultimately a 

21 very flexible standard for which the Agency is given 

22 deference, in general, and for which it can take into

23 account socioeconomic issues, to the extent that they 

24 are relevant. So I think the Clean Air Act is 

25 perfectly situated to address greenhouse gases and 
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1 greenhouse pollutants, such as black carbon.

2 One last threshold matter -- actually, two 

3 more -- before I get into the question that was 

4 actually presented. The first is that the Center has 

5 an outstanding petition before the Agency, where we 

6 would like to see the Agency enunciate a global 

7 greenhouse pollution cap under the NAAQS program. We 

8 think the NAAQS program and the statute has language 

9 whereby the Agency could apportion various levels of 

10 greenhouse pollutants from each of the states and for 

11 the country as a whole, so that, for instance, we were 

12 not "carrying China's load" but taking the proportion 

13 of pollution that we emit. We think as a general 

14 matter, the United States needs a national greenhouse 

15 pollution cap, and we believe EPA already has the 

16 authority to establish one.

17 The next statement that I make actually 

18 demonstrates another point that will be relevant as I 

19 now head into the legal part of my presentation, which 

20 is that you have to look at the Clean Air Act in its 

21 entirety, all of its provisions. Whether it be mobile 

22 sources, stationary sources, new source review, new 

23 source performance standards, NAAQS, hazardous 

24 pollutants, et cetera, they each are in different 

25 sections of the Act and have different regulations that 
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1 adhere to them, but they are interrelated. They work 

2 together. And so, many of the things I will talk about 

3 legally today are related to NAAQS and are related to 

4 themselves in many ways.

5 We supported the Agency's endangerment 

6 finding. Congratulations on that. That was long 

7 overdue by the previous administration, which dragged 

8 its heels.

9 In terms of the specific question that has 

10 been presented on the Federal Implementation Plan, go 

11 forth. Implement fully. Use all your authorities. I 

12 think there are some states, such as Connecticut and 

13 California, that are making good-faith attempts right 

14 now to deal with how their state implementation will 

15 deal with the federal Act. Certainly, I think the 

16 Agency ought to work with those states.

17 I think there are other states, such as 

18 Alaska and Texas, that are being quite recalcitrant, 

19 and I think the EPA ought to use its powers to the 

20 fullest extent, particularly in Texas, where I think 

21 the governor's comments have been unconstructive, and 

22 ultimately illegal, to demonstrate under the supremacy 

23 clause of the Constitution that it is the federal 

24 government, under the laws that Congress passed, that 

25 implements this statute and will dictate the terms if 
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1 the state will not or cannot. Those are just two 

2 examples.

3 In terms of the tailoring rule, which is in 

4 litigation right now, the beginning of litigation, as I 

5 think some of you know, the Center, and myself 

6 personally, I agree with the philosophy of the 

7 tailoring rule. And by the philosophy, I mean that I 

8 believe the Agency has the authority, and that it 

9 logistically makes no sense for EPA to begin regulating 

10 households, small businesses, schools and the like. 

11 And I think the tailoring rule, as an overview, 

12 attempts to effectuate that goal.

13 However, when you read the final tailoring 

14 rule, which I believe is weaker than the proposed 

15 rule -- but when you read the final tailoring rule in 

16 conjunction with the Johnson memo and the Jackson memo, 

17 which has now postdated the Johnson memo -- some of 

18 this stuff gets pretty wonky and acronymed fast. So 

19 I'm calling it the Jackson memo, the most recent 

20 iteration of the Johnson memo.

21 Unfortunately, I think because of the 

22 aforementioned industry pressure I discussed, there has 

23 been a backtrack at some of the thresholds. And so 

24 now, for instance, entities such as coal-burning power 

25 plants, such as industrial boilers, such as oil 
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1 refineries, that are between 25,000 tons of carbon 

2 dioxide and 75,000 tons -- or 74,999 tons per year of 

3 carbon dioxide -- get a free pass until at least 2016 

4 under the tailoring rule and the Jackson memo, read in 

5 combination. And, in fact, under the Jackson memo, it 

6 appears, through our reading, that EPA could punt 

7 indefinitely on those sources. And just to put it in 

8 the context, even 25,000 tons of carbon dioxide is a 

9 lot of pollution. We think the threshold could be 

10 perhaps lower.

11 So we're not talking about mom-and-pop shops 

12 emitting 50,000 tons of carbon dioxide a year. None of 

13 us in this room, cumulatively, in our individual lives, 

14 come anywhere close to that, despite the rhetoric we 

15 hear and the fear-mongering by some of those industrial 

16 lobbyists.

17 One of the things that EPA could also do most 

18 immediately, in addition to regulating some of these 

19 not mega polluters but still the very big polluters 

20 that this 25- to 75,000-ton threshold shows, as I was 

21 just discussing, is to be more aggressive on 

22 fast-acting greenhouse pollutants, such as black carbon 

23 and methane. I'm not totally pleased with how the 

24 Agency dealt with black carbon in the endangerment 

25 finding. We'll see how that plays itself out. Other 
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1 rules that EPA is promulgating seems to be addressing 

2 black carbon, and that is good.

3 I've told the Agency and the State 

4 Department, and anyone else who will listen, that black 

5 carbon reductions around other parts of the 

6 world -- China, Indian, Pakistan, to name 

7 three -- reducing their black carbon would have 

8 tremendous public health benefits, tremendous global 

9 warming abatement benefits, American economic 

10 opportunities, and I think if you think about those 

11 three countries, and there are others, some diplomatic 

12 benefits as well. Those are three of the highest black 

13 carbon-emitting countries in the world.

14 Methane. We could be regulating methane 

15 today if we wanted to be, and I think we should be more 

16 aggressive. Methane does not stay in the atmosphere as 

17 long as carbon dioxide, so reducing it would actually 

18 have a positive impact in the short term and would give 

19 us some time to deal with carbon dioxide. And it also 

20 is 22 times more powerful than carbon dioxide. So 

21 methane from landfills, from agricultural operations 

22 and the like should be addressed right away.

23 So, in conclusion, interpret the Act and 

24 implement the Act to its fullest, EPA. I know it's 

25 hard. I know it's not always easy politically. But 
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1 it's the right thing to do, and you have the legal 

2 authority to do so. The Clean Air Act has the 

3 flexibility and the scientific standards. The rule of 

4 law and the weight of history is on your side. Thank 

5 you.

6 MS. SUTTON: Thank you. That was Mr. Snape's 

7 testimony.

8 I don't believe we have any other registered 

9 speakers. For this reason, I will close the floor to 

10 public testimony, adjourn, until 3:30 at the latest, at 

11 which point we will conclude today's public hearing. 

12 So, thank you.

13 (Whereupon, a recess is taken.)

14 MS. SUTTON: This is Lisa Sutton. The time 

15 is approximately 3:40 p.m. We will now conclude this 

16 public hearing. Thank you.

17 (Whereupon, at 3:40 p.m., the hearing was 

18 concluded.)

19 //

20 //

21 //

22 //

23 //

24 //

25 //
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1 CERTIFICATE OF REPORTER

I, JANET EVANS-WATKINS, do hereby certify that 

the foregoing proceedings were taken by me and 

thereafter reduced under my direction to typewritten 

form; that this transcript is a true record of the 

proceedings; that I am neither counsel for, related 

to, nor employed by any of the parties to this action; 

and, further, that I am not a relative or employee of 

any attorney or counsel employed by the parties 

hereto, nor financially or otherwise interested in the 

outcome of this action.

2 JANET EVANS-WATKINS

3 Digital Reporter