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3 EPA PUBLIC HEARING

3 PROPOSED RULE TO IMPLEMENT

4 THE 8-HOUR OZONE NATIONAL AMBIENT

4 AIR QUALITY STANDARD

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6 PALACE HOTEL

6 2 New Montgomery Street

7 San Francisco, CA 94105

8 Transcript of Proceeding

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10 Thursday, June 19, 2003, 8:30 A.M.

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17 Reported by: Freddie Reppond

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22 GOLDEN GATE REPORTERS LLC

22 35 Mitchell Blvd., Suite 8

23 San Rafael, CA 94903-2010

23 (415)491-4611 * (800) 442-4611

24 FAX (415) 491-4635

25 email:ggrdepos.com web:http://www.depos.com

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1 A P P E A R A N C E S

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3 Tom Helms, EPA

4 Matt Haber, EPA

5 John Silvasi, EPA

6 David Schonbrunn, TRANSDEF

7 Peter Hess, Bay Area Air Quality Management District

8 Julia Bussey, Advanced Micro Devices

9 Zorik Pirveysian, South Coast Air Quality Management District

10 Edie Chang, California Air Resources Board

11 Linda Civitello-Joy, American Lung Association

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1 [THE PROCEEDING BEGAN AT 8:35 A.M.]

2 MR. HELMS: Good morning. Today is June 19th,

3 2003, in San Francisco, California. I want to welcome

4 all of you and thank you for coming out to participate

5 with us in, we believe, this important event. What

6 we're about today, we are here to seek your comments,

7 public comments, on the EPA's proposed 8-hour ozone

8 implementation rulemaking.

9 I'm Tom Helms with the U.S. Environmental

10 Protection Agency, the Office of Air Quality Planning &

11 Standards, Research Triangle Park, North Carolina.

12 With me in serving on the panel, we have John

13 Silvasi, who works with me in the ozone program in North

14 Carolina. He and Denise Gerth are the principal

15 authors, coordinators, and developers, if you will, on

16 this rule, which is the subject of our public hearing.

17 We have Dr. David McKee, our principal ozone

18 health effects person in the Office of Air Quality

19 Planning & Standards; and Matt Haber -- Matt, you're the

20 director for the air program out here in Region IX.

21 And, Matt, we thank you for working with us today.

22 We are here to receive comments, your

23 comments, on our proposed rulemaking. The record will

24 remain open until August 1st. So if you sit here today

25 and you think of something that you would like to put on

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1 the record, you, of course, can do it today. We ask

2 that you register back on the outside so we have a

3 record of who you are and a follow-up address. If you

4 choose not to speak today but go back and have a burning

5 feeling when you get back, or your boss has a burning

6 feeling for you when you get back, submit the comments

7 to us in writing. And if you choose to submit an

8 executive summary, we love executive summaries. So if

9 you want to send something an inch thick, wonderful. We

10 will take it. But, boy, if you get us the ten really

11 critical points in an executive summary, that's even

12 better.

13 We will review all the comments and they will

14 be part of our final rulemaking record. It is important

15 to point out to each of you today we have several

16 activities going on in parallel, like the designation of

17 ozone nonattainment areas. That is not the subject of

18 this hearing. If you make comments about them, that's

19 fine. That will be put into the record, but we will not

20 react, other than out of courtesy to designation

21 requests. The Bay Area should be designated or not

22 designated. That is not the purpose of our hearing

23 today, so please keep that in mind.

24 Let me give you a brief history of what we are

25 all about today. The 8-hour ozone national ambient air

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1 quality standard, our new health-protective standard,

2 was promulgated in July of 1997. Since that time, we

3 have had numerous litigation activities dealing with

4 that standard. From May 1999 to February 2001 and

5 March 2002 were court decisions coming out of that. The

6 punchline from all that litigation was our standard's

7 okay. Implementing it, you can't do it the way you were

8 planning on doing it, EPA. You did not give full

9 consideration to what we call Subpart 2 of Title I of

10 the Clean Air Act. And what we are about today with our

11 rule is to address the Court's concerns.

12 Our rule is complicated and complex. It has

13 the ability late at night to put you to sleep going

14 through all the words, but we encourage you to look at

15 it very carefully and give us feedback on how we can

16 make it better, how we can clarify it, what was omitted,

17 and so forth. We have held -- during the development of

18 this rule -- we have held a number of outreach

19 activities, stakeholder interactions. We held three

20 public meetings across the country. The gentlemen from

21 Caltrans was reminding me that he was in Phoenix at one

22 of the meetings, and I think you said you'd rather come

23 to California than Phoenix. All right.

24 We held three public meetings in Atlanta,

25 Washington, and Phoenix. The rule was signed by the

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1 Administrator -- the proposed rule was signed by the

2 Administrator on May 14th and published on June 2nd of

3 this year.

4 I'd like to take a second to tell you where

5 we're going on this rule and the time frame associated,

6 when you might expect to see a final rule. After our

7 publication -- we'll receive comments from you, as I

8 said several times, by August 1. We will look through

9 those comments and dissect them. We will make

10 appropriate modifications. We intend to finalize this

11 rule on or about December of this year. It's absolutely

12 necessary that we get the rule done as fast as possible

13 because states will ultimately receive final

14 nonattainment designation with the 8-hour ozone standard

15 by April of next year, April 15th, 2004. And that's

16 agreed to with the consent decree that was defined

17 through one of the potential litigation activities. So

18 that date or designation is real, which means we need to

19 get our rule certainly in time for states and local

20 agencies to fully understand what obligations they

21 accrue as a result of our final rule.

22 There will be a transcript. We have a court

23 reporter right here. There will be a transcript of this

24 session. It'll be available about 30 days from now. If

25 you have questions about the timing and so forth you can

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1 always talk about that with Matt's staff, who either

2 will know or get a hold us. We'll be available.

3 We have contractors from E. H. Pechan &

4 Associates here and registering. If you have any

5 special needs prior to your presentation, please contact

6 them. We'll do the best we can, of course, with no

7 guarantees.

8 Let's talk about some ground rules for

9 hearings. Everyone is available. This podium is

10 available to everyone. We welcome your comments. If

11 you have written comments, the court reporter would just

12 love to have them prior to testimony, but it is not a

13 prerequisite. You do not have to have written comments.

14 If you haven't registered to speak, as I said earlier,

15 you just feel like you want to say something, let us

16 know. We'll let you speak and you can register

17 afterwards, but we do want you to register before or

18 afterwards. Testimony will be limited to ten minutes.

19 Denise Gerth will raise a sign about nine minutes, one

20 minute left. And that was not a problem in Dallas. You

21 can come here. We want to make sure you have a full

22 opportunity to testify.

23 When I call your name, please come up to the

24 podium and make your statement from this podium. Start

25 by identifying yourself, who you represent, an address

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1 so we will have a record in the event that by some

2 strange chance you did not register outside.

3 Does anyone have any questions? John, did I

4 miss anything? Okay.

5 Do we have the speaker list?

6 I want to turn it over to Matt from Region IX.

7 Matt, did you have any comments? Welcome comments or

8 anything?

9 MR. HABER: I'm Matt Haber. I'm acting deputy

10 director for air issues in Region IX. On behalf of

11 Wayne Nastri, our regional administrator, and Jack

12 Robin, our division director, I'd like to welcome you to

13 the West Coast hearing for the 8-hour limitation

14 guidance.

15 With most of California's and Arizona's

16 population in areas that do not meet the 8-hour

17 standard, implementation of the 8-hour is really

18 critical to us to get to healthy air in our region. We

19 have very large counties, very large air districts, in

20 the region. That makes us unique compared to the other

21 region of the country. The current level of vigorous

22 air pollution control in most of the parts of our region

23 really brings us unique challenges. And we are going to

24 draw on our creativity and stretch so that we can do

25 things so that we actually get to healthy air. So

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1 that's why it's really important to us. I want to thank

2 you for your input in the EPA decision-making process.

3 MR. HELMS: As we begin to take public

4 comment, it's important to remember my heritage. I'm

5 from the South. We have trouble with names longer than

6 Smith and Jones and Brown and Helms. So as I butcher

7 your name, please have a smile. Then when you come up

8 here, correct it, and restate your name. I worked over

9 some people unmercifully in Dallas. Let's begin now.

10 David Schonbrunn.

11 MR. SCHONBRUNN: Thank you, sir. I'm David

12 Schonbrunn, president of TRANSDEF, Transportation

13 Solutions Defense and Education Fund. And we are at 16

14 Monte Cimas Avenue, Mill Valley, California, 94941.

15 We're the Bay Area organization dedicated to

16 transportation, land use, and air quality, getting a

17 regional plan that functions and is sustainable. In our

18 activities, we have twice sued EPA. One time we won.

19 One time we didn't, for a deadline case and we

20 challenged the determination of the adequacy of motor

21 vehicles emission budget and were thrown out of court on

22 bogus grounds. EPA claims that citizens effectively

23 don't have the right to sue to protect their air

24 quality, and we think that is an entirely outrageous

25 position.

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1 In addition, we won a TCM implementation

2 enforcement action against your MPO here. And we also

3 won a State court judgment against that MPO and local

4 air districts declaring that they had failed to plan for

5 attainment. So we take this issue very seriously. We

6 are particularly interested in mobile sources in VMT and

7 transportation control measures. We think this is the

8 area that has been ignored because it's more

9 controversial, because it gets to most people's lives.

10 And, as such, not enough has been done here.

11 So with that introduction, I would then start

12 off by saying, in our opinion, the Federal Register

13 notice is not a rule. It's not a rulemaking. And we're

14 very concerned that a lot of time has elapsed since the

15 court decision. And, since the entire purpose of the

16 8-hour standard is to protect health, we are not pleased

17 to see all this time go by. We can't figure out what's

18 been going on since the Phoenix meeting last February.

19 We participated by telephone in that call and have been

20 waiting and waiting and waiting. So we are not happy

21 about that.

22 In terms of the criteria that your agency

23 brought to the forefront in crafting these proposals for

24 rulemaking, we are especially unhappy with the focus on

25 flexibility. We have seen far too much flexibility take

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1 place here in our region. And we don't see the law

2 being enforced. We don't see a focus on health

3 protection. What we see is the resistance to actually

4 regulating. And when the regulator won't regulate, then

5 you're not accomplishing your mission and we are

6 suffering in terms of health effects. So we're not at

7 all impressed with this focus on flexibility in these

8 proposals and are not happy with that. We want to see

9 Subpart 2. And we want to, in particular, see a very

10 different approach to the transition from the 1-hour

11 rule.

12 Our region here in the Bay Area is probably

13 different from most in that it appears that we may very

14 well attain the 8-hour while being in nonattainment for

15 the 1-hour. And given those circumstances, it's not in

16 the least bit obvious that the 8-hours is more health

17 protective. So we're very concerned about proposals

18 that would revoke the 1-hour designation and want to see

19 a requirement that regions attain the 1-hour before

20 those get revoked.

21 And, in particular, we want to see the 1-hour

22 SIP be kept separate from the 8-hour SIP. Let's not

23 complicate matters. People know how to do a 1-hour SIP,

24 so let's just keep that going and have conformity based

25 on whichever standard is more restrictive. And, in our

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1 view, that keeps it very simple and straightforward.

2 So, again, not enough interest has been placed

3 on health. It's been much more who are we going to

4 offend by actually regulating. And that's why we sued.

5 I'd like to address one other thing in terms

6 of phraseology. It looks like in this proposal -- we

7 have had "bump up" -- and now we are about to have "bump

8 down." So that appears to be an innovation.

9 The majority of my comments I would like to

10 focus on the issue of clean air development communities.

11 We are very focused as an organization on the

12 intersection of land use and air quality and

13 transportation. In fact, the license plate on my car is

14 "LUTRAQ," which was a term invented by Peter Calthorpe,

15 the great regional planner.

16 Land use is absolutely the key to the growth

17 in VMT. This is a national problem and it desperately

18 needs national attention. And I believe that your

19 rulemaking is the proper place to see something

20 innovative occur that will benefit the entire country.

21 And this is a much more broad issue than just new source

22 review. So we think that the focus in the proposed rule

23 missed the point. And while we don't have a fully

24 crafted concept for you today, we would like to present

25 some ideas.

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1 We very much want to see SIP credits for

2 appropriate land use decisions as a basic principle. We

3 think that's incredibly important. And your RCOM

4 standards get right in the way of accomplishing this,

5 and that has to do with the issue of advancing the

6 attainment date. We have put forward land-use-oriented

7 TCMs for our local SIP, then rejected again and again on

8 the basis that these wouldn't advance attainment. So

9 it's important in this area, we think, to modify RCOM is

10 number one.

11 We read the materials in the EPA guidelines

12 relative to SIP credits for land use and found them

13 impenetrable and unhelpful. They just didn't give local

14 jurisdictions the kind of guidance that they need, nuts

15 and bolts. Do this, do this, and then you get that. So

16 that just did not move far enough.

17 Some of our colleagues produced a very

18 interesting density calculator. And unfortunately I

19 don't have the exact URL for it, but it's something like

20 SFLCV/density, San Francisco League of Conservation

21 Voters.

22 And what this is is a calculator that yields

23 essentially the VMT per acre for various levels of

24 density of development; and it demonstrates with good

25 research that there is an inverse relationship between

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1 density and VMT, which I believe is perhaps the most

2 important thing about air quality, certainly in

3 California, that needs to be at the forefront of EPA's

4 attention.

5 And our understanding is that travel-demand

6 models don't necessarily account properly for this VMT

7 reduction benefit. This is an area where EPA's

8 technical competence could be extremely helpful in

9 getting corrections to models. That's a little separate

10 initiative from the issue of SIP credits, but it's

11 absolutely crucial.

12 We liked the reference to the 0.5 miles

13 surrounding the rail or express bus station. We thought

14 that was exactly right. And so the question at hand is

15 changing zoning, intensifying the potential development

16 at a site, is a good thing that needs to be

17 incentivized, but we recognize that that doesn't produce

18 the actual change on the ground. That change on the

19 ground comes from the occupancy. And so it's obvious --

20 I think I'm going to take longer. Not that much longer

21 but a little longer. What -- we see the need to create

22 databases in regions that look at densities surrounding

23 rail stations and aggregate the occupancy surrounding

24 rail stations, so one premise is that by tracking what's

25 actually been given occupancy permits that you would

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1 have immediately a data handle on what's been done in

2 terms of densification. That's where the data ought to

3 come from. So you probably want to net it out over the

4 entire region. And you want to give credit for transfer

5 of development rights. That's a particularly

6 interesting area for us, because we very much want to

7 see areas that are currently undeveloped remain so.

8 That's one of our high environmental values. So to have

9 the rights to develop transferred to areas surrounding a

10 station is precisely the right thing to do from an air

11 quality standpoint, from a transportation standpoint,

12 and from an environmental standpoint. That's something

13 we would like to see SIP credits for, because that is a

14 permanent benefit in the future.

15 So exactly how to get at this we're not

16 exactly clear, but one place that we could benefit would

17 be as safety margin or contingency. The benefit clearly

18 is in the future, but when you're dealing with

19 occupancies, particularly occupancies that haven't been

20 recorded in the database that creates the baseline the

21 for your travel-demand model, then you definitely have a

22 real-world effect. So the development that's occurred

23 after the baseline that's in the travel-demand model

24 generally ought to create regional credits for that.

25 This could also be considered as part of a

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1 weight-of-evidence procedure. And also could be

2 considered an alternative to part of the required action

3 under Subpart 2.

4 So, again, there's a lot of places where this

5 can plug in. We don't have quite have a defined concept

6 for you. We think that incentivizing good land use is

7 hugely important for EPA, that there is in America today

8 there's complete lack of understanding of the failure

9 that occurred after World War II to understand the

10 consequences of suburbanization. And, in particular,

11 what we've learned is that a majority of people cannot

12 live in suburbs and have a high quality of life; that

13 congestion, pollution, and sprawl, and the destruction

14 of open space is an inherent consequence of

15 suburbanization; and that suburbs, while it works for a

16 portion of the population, to have a vast majority

17 living in suburbs, we find that it is simply a dead end

18 in terms of land-use planning. It just is generally not

19 recognized to be the case. We are asking that you use

20 the same flexibility that your agency has used to

21 benefit heavy industry, to craft incentives for

22 air-quality-supported land use. We would really benefit

23 the country by doing so. Thanks very much.

24 MR. HELMS: A couple questions. Can you

25 provide us with the URL that you mentioned here and

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1 provide that in writing? Do you plan on submitting

2 written comments to us?

3 MR. SCHONBRUNN: Quite likely.

4 MR. HELMS: If you could summarize those

5 that'd be wonderful.

6 Any other questions?

7 Thank you very much.

8 MR. HELMS: Linda Civitello-Joy?

9 Peter Hess?

10 MR. HESS: Good morning. I am Peter F. Hess,

11 deputy air pollution control officer at the Bay Area Air

12 Quality Management District, 939 Ellis Street, San

13 Francisco, 94109.

14 Welcome to San Francisco, the home of the Bay

15 Area Air Quality Management District. The Bay Area

16 District was founded in 1955. And for the past 48 years

17 we have strived to be the nation's foremost leader of

18 air pollution control programs. We are pleased to have

19 the opportunity to comment to EPA on the concepts in

20 your June 2nd, 2003, proposal, regarding implementation

21 of the 8-hour national ambient air quality standard for

22 ground-level ozone.

23 The San Francisco Bay Area is currently

24 designated as a nonattainment area for the 1-hour ozone

25 standard. Although by our monitoring record for the

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1 last three years we meet the standard, our monitoring

2 record for the 8-hour standard also shows attainment.

3 We have comments on the aspects of the proposal

4 addressing areas designated attainment and nonattainment

5 for the 8-hour standard.

6 We support the goals specified in the proposed

7 implementation rule to protect health, provide

8 incentives for expeditious attainment, provide

9 reasonable attainment deadlines, establish a

10 straightforward structure, provide flexibility standards

11 to states and regions, emphasize national measures, and

12 provide a smooth transition from the 1-hour to the

13 8-hour standard.

14 In elaboration of these goals we believe that

15 the implementation rule should avoid imposing costly

16 administrative burdens, such as duplicative or

17 overlapping planning and reporting requirements during

18 the transition from the 1-hour to the 8-hour standard.

19 And yet the rule should ensure continued progress toward

20 clean air during the planning period for the 8-hour

21 standard. An example of such regulatory burden is that

22 in our experience the cost to prepare and submit a

23 federal ozone attainment plan for the 1-hour standard is

24 over $2 million.

25 This is the current planning program we are

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1 currently undertaking for the 2004 ozone planning.

2 EPA's proposal includes two options for classifying

3 nonattainment areas for the 8-hour standard. Under

4 Option 1, all nonattainment areas would be classified

5 under Subpart 2 of the Act as "marginal," "moderate,"

6 "serious," "severe," or "extreme" and would be required

7 to comply with the associated requirements. Under

8 Option 2, areas with 1-hour design values of less than

9 0.121 ppm would be designated under Subpart 1. And all

10 other areas would be designated under Subpart 2.

11 We prefer Option 1 for classifying

12 nonattainment areas. The requirements under this

13 classification scheme are more clearly defined; and the

14 labeling of nonattainment severity is an important and

15 useful communication tool. We also support the proposal

16 to use 8-hour design values to classified areas because

17 they more accurately reflect the magnitude of the 8-hour

18 ozone problem than the 1-hour design values.

19 As stated above, we believe that during the

20 transition from the 1-hour to the 8-hour ozone standard

21 it is important to ensure continued process toward clean

22 air but avoid spending scarce resources on duplicative

23 or significantly overlapping planning and reporting

24 functions. EPA has stated that the 8-hour standard is

25 generally more health protective than the 1-hour

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1 standard. Therefore, we believe that shifting our

2 collective focus to attaining and maintaining the more

3 stringent 8-hour standard is appropriate.

4 We have the following comments on obligations

5 that should continue to apply as we transition from the

6 1-hour to the 8-hour ozone standard.

7 For areas that are nonattainment for both the

8 8-hour and 1-hour standards, we support EPA's proposal

9 to have these areas continue to implement the control

10 obligations in approval of the 1-hour ozone SIPs, with

11 the existing ability to remove or revise discretionary

12 measures in accordance with Sections 110 and 193 of the

13 Act. We also support the proposal to continue the NSR

14 major source and offset thresholds related to the 1-hour

15 classification. The proposal makes clear that mandatory

16 obligations related to an area's 1-hour classification

17 would not expire. However, the proposal suggests two

18 options for when these obligations would become

19 contingency measures: when the area attains the 1-hour

20 standard or when the area attains the 8-hour standard.

21 We recommend a third option: We believe the obligation

22 should not become contingency measures until the area

23 attains both standards.

24 In terms of planning requirements, we believe

25 that areas should not remain subject to the planning

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1 obligations related to the 1-hour standard so that focus

2 can be directed toward planning for the attainment and

3 maintenance of the 8-hour standard. The proposal

4 solicits comments on two options for ensuring that

5 progress continues if 1-hour planning obligations are

6 not retained. Option 1 is submittal of a plan revision

7 that requires a specific percentage of emission

8 reductions within two years of submittal (and subsequent

9 submittal of the 8-hour attainment demonstration).

10 Option 2 is the early submittal of the 8-hour attainment

11 demonstration. To ensure progress but avoid excessive

12 regulatory planning burdens, we support Option 2.

13 For areas that are attainment of the 8-hour

14 standard and are (or have been) nonattainment for the

15 1-hour standard we support EPA's proposal that planning

16 obligations for the 1-hour standard would not apply as

17 long as the area continues to meet the 8-hour standard.

18 If the area subsequently violates the 8-hour standard

19 prior to having an approved 8-hour maintenance plan, the

20 planning obligations for an 8-hour nonattainment plan

21 would apply.

22 As just mentioned above, the proposal includes

23 a requirement for the 8-hour attainment areas to submit

24 a maintenance plan under Section 110(a)(1) to ensure

25 continued attention to ozone air quality. We support

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1 this requirement in general but find the conceptual

2 language of the proposal to be vague. EPA's proposed

3 rule language should clarify the intent of submitting a

4 maintenance plan for an attainment area and specify the

5 required elements of a Section 110(a)(1) maintenance

6 plan.

7 I'd like to turn my attention briefly to

8 congestion management for air quality funding. As

9 stated above, EPA's proposal includes a requirement for

10 areas designated as attainment for the 8-hour standard

11 to prepare a maintenance plan under Section 110. This

12 requirement recognizes a continuing obligation and

13 effort to maintain the standard. Part of that effort

14 would be implementing air-quality-beneficial

15 transportation programs. We strongly recommend that the

16 congestion management for air quality funding continue

17 to flow to such areas.

18 Finally, with respect to transport of air

19 contaminants we support the proposal's continuation of

20 the past policy: EPA has the responsibility for

21 addressing interstate transport and states have the

22 responsibility for addressing intrastate transport.

23 The Bay Area Air Quality Management District

24 stands ready to work with the California Air Resources

25 Board and our neighboring air quality management

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1 districts to address intrastate transport of ozone and

2 ozone precursors.

3 Thank you for the opportunity to comment on

4 EPA's proposal.

5 We will be presenting additional comments in

6 writing prior to the deadline.

7 MR. HELMS: Questions? Thank you very much.

8 Julia Bussey? Come forward.

9 MS. BUSSEY: Julia Bussey. I represent AMD,

10 Advanced Micro Devices, Inc., One AMD Place, Sunnyvale,

11 California.

12 Good morning. AMD appreciates this

13 opportunity to provide oral comments on the proposed

14 rule to implement the 8-hour NAAQS. A copy of these

15 oral comments is also being submitted today. I will

16 present AMD's position that the proposed rule's two

17 options for NAAQS implementation are not workable and do

18 not provide sufficient flexibility to the states and

19 that a third option should be considered.

20 Let me state at the outset that AMD

21 appreciates the difficult challenge faced by EPA in

22 trying to implement the 8-hour NAAQS in compliance with

23 the U.S. Supreme Court's decision in American Trucking

24 Associations versus Whitman.

25 As I will explain more fully today, in

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1 developing a revised implementation rule that accords

2 with the Court's decision, AMD strongly believes that

3 EPA should implement the 8-hour NAAQS primarily under

4 Subpart 1 and take steps to preserve the "textually

5 applicable" provisions of Subpart 2, as opposed to

6 reformulating design values in Table 1. Such an

7 approach will provide states the maximum flexibility in

8 establishing regulatory controls and other measures to

9 meet the NAAQS. Notably, such flexibility has paramount

10 importance to the electronics industry. We are a highly

11 controlled industry and take care to ensure that our

12 operations do not impact the communities in which we

13 operate. That said, we need the maximum amount of

14 flexibility in order to maintain technically and

15 economically viable options. We are concerned with the

16 two approaches in this proposed rule, both of which

17 contemplate implementation either exclusively or

18 significant under Subpart 2 and will result in reduced

19 flexibility for states as well as for the U.S.

20 electronics industry, thereby reducing the industry's

21 ability to compete in the world market with little or no

22 air quality or health benefit. AMD agrees with EPA that

23 it must implement the 8-hour NAAQS in accordance with

24 the Court's decision. That said, Option 1,

25 implementation exclusively under Subpart 2, does not

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1 accord with either the Court's decision or the Clean Air

2 Act. Indeed, if the Supreme Court had intended to

3 mandate exclusive implementation of the 8-hour NAAQS

4 under Subpart 2, then the Court would have simply

5 affirmed the decision of D.C. Circuit Court of Appeals,

6 American Trucking Associations versus EPA. Instead, the

7 Supreme Court rejected the Court of Appeals approach.

8 In light of the Court's decision, we cannot understand

9 why EPA is proposing the very option rejected by the

10 Court. It is clearly inconsistent with both the

11 structure of Subpart 2 of the Clean Air Act and the

12 decision of the U.S. Supreme Court.

13 Option 2, implementation of some areas under

14 Subpart 1 and other areas under Subpart 2, reflects a

15 better attempt to comply with the decision of the

16 Supreme Court in Whitman but nonetheless suffers from

17 legal and policy problems. Option 2 would require some

18 areas to implement the 8-hour NAAQS exclusively under

19 Subpart 2. In particular, while Option 2 acknowledges

20 the statutory ambiguity noted by the Supreme Court and

21 attempts to address that ambiguity by dividing areas

22 between Subparts 1 and 2, Option 2 would require EPA to

23 revise the design values in Table 1, Subpart 2, to

24 accommodate some areas that have not met the 1-hour

25 NAAQS. Those design values were embedded by Congress

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1 into the statutory text and framework and may not simply

2 be abandoned, rewritten, or superseded through

3 regulation.

4 In addition, Option 2 does not make good

5 policy sense. It will subject areas with similar air

6 quality to different implementation approaches. For

7 example, under Option 2, based on EPA data for the

8 1999-2001 time frame, Wake County and Davies County in

9 North Carolina would both have 8-hour design values of

10 0.95 and 0.96 respectively, but both would be designated

11 classified under Subpart 1 because of their current

12 1-hour NAAQS status, while Washington, D.C., and Boston,

13 Massachusetts, which both have 8-hour design values of

14 0.85, would be classified under Subpart 2. We believe

15 that such an approach is, by definition, arbitrary and

16 capricious.

17 Because both options proposed by EPA require

18 revision of the Clean Air Act in a manner that goes

19 beyond that allowed by law and beyond that authorized by

20 the Supreme Court in Whitman, AMD does not believe

21 either approach is viable. Under the circumstances, AMD

22 urges EPA to consider a third option that is more

23 consistent with both the Clean Air Act and Whitman than

24 either Options 1 or 2 and makes more sense from a policy

25 perspective.

27

1 AMD believes that EPA should implement the

2 8-hour NAAQS under Subpart 1 and take steps to preserve

3 the "textually applicable" provisions of Subpart 2.

4 Such an approach allows EPA to exercise that discretion

5 and adopt an option that provides the maximum degree of

6 flexibility to the states and implement the 8-hour

7 NAAQS. EPA appears to recommend the Supreme Court's

8 proposed rule that implementation of the 8-hour NAAQS

9 under Subpart 1 provides the most flexibility to the

10 states. In AMD's view the most reasonable resolution of

11 the ambiguity is to implement the 8-hour NAAQS under

12 Subpart 1 and retain those "textually applicable" parts

13 of Subpart 2. Such a reasonable resolution should

14 require provisions that are not limited to a 1-hour

15 NAAQS and thus can be applied to an 8-hour NAAQS. Such

16 provisions would include, for example, ozone transport

17 under Section 184 and as another example measures that

18 have already been implemented under Subpart 2 in certain

19 1-hour NAAQS nonattainment areas which are retained

20 under EPA'S traditional anti-backsliding approach. This

21 third option is the most reasonable solution and avoids

22 the issues with Options 1 and 2. EPA has looked at this

23 option in the past and has dismissed it as a sequential

24 implementation approach because it was inconsistent with

25 Section 107. However, Section 107 of the Clean Air Act

28

1 does not prevent EPA from implementing the 1-hour NAAQS

2 and the 8-hour NAAQS sequentially for the few

3 nonattainment areas that it requires. Moreover, any

4 past nonadherence by EPA to Section 107 is just that --

5 past nonadherence, which should not prevent EPA from

6 exercising the appropriate judgment and discretion

7 regarding Section 107 in the future.

8 In addition, although AMD believes that

9 sequential implementation approach represents one way to

10 implement the 8-hour NAAQS, sequential implementation is

11 not the only way.

12 If, as the proposed rule contemplates, EPA

13 were to revoke 1-hour NAAQS, then no need would exist

14 for a sequential implementation approach and no issue

15 would arise with the Section 107 designations and SIP

16 timelines. Thus, EPA's proposal to revoke the 1-hour

17 NAAQS within 1-year of designation of the 8-hour

18 attainment areas is consistent with AMD's third

19 implementation approach. EPA's proposal to revoke the

20 1-hour NAAQS also accords with Whitman -- which clearly

21 rejected simultaneous implementation approaches -- and

22 has the additional advantages of simplifying

23 implementation and avoiding waste of state resources.

24 In inclusion, AMD recommends that EPA adopt an

25 option that best preserves flexibility and that blends

29

1 the requirements of Subparts 1 and 2. Such blending

2 would occur if EPA classifies all areas under Subpart 1

3 and adopts regulations to preserve "textually

4 applicable" requirements under Subpart 2.

5 Thank you for this opportunity to provide

6 these comments.

7 MR. HELMS: Thank you. Questions?

8 Zorik Pirveysian.

9 MR. PIRVEYSIAN: Good morning. My name is

10 Zorik Pirveysian, Planning and Rules Manager with the

11 South Coast Air Quality Management District.

12 I would like to express my appreciation for

13 the opportunity to provide brief oral comments on the

14 U.S. EPA's proposed rule for implementing the 8-hour

15 ozone national ambient air quality standards. We will

16 provide more detailed written comments on this proposal

17 before the end of the comment period.

18 As you know, the South Coast Air Basin is

19 designated as an extreme nonattainment area for the

20 federal 1-hour ozone ambient air quality standard. We

21 are currently in the process of finalizing our 2003 Air

22 Quality Management Plan to update our attainment

23 demonstration by 2010, as mandated by the federal Clean

24 Air act.

25 Despite the significant progress made in

30

1 recent years, substantial additional reductions in the

2 order of 330 tons per day of VOC and 220 tons per day of

3 NOx must still be achieved within the next seven years

4 for this region to demonstrate attainment with the

5 federal health-based 1-hour ozone standard. Therefore,

6 it is critical for our region to continue to maintain

7 the current momentum to achieve the necessary reductions

8 as expeditiously as possible to protect public health.

9 The transition into the new 8-hour ozone

10 standard should be done in a way that does not slow down

11 or interfere with the current progress to achieve the

12 reductions required to protect public health. With the

13 new attainment date of 2021 for the 8-hour ozone

14 standard for severe nonattainment areas, we want to make

15 sure that our continued progress would not be hindered,

16 potentially subjecting our basin's population to higher

17 ozone concentrations, particularly during the early

18 years as well as interim years following the effective

19 date of the designation for the 8-hour ozone standard in

20 2004. Therefore, we urge EPA staff to carefully

21 evaluate the implications of transitioning into the new

22 8-hour ozone standards before finalizing this proposal.

23 However, at this time I have a few clarifying

24 questions that I would appreciate your response either

25 at this meeting or later on in writing to assist us in

31

1 completing our review and formulating our formal

2 response to you. I have three questions.

3 If EPA revokes the 1-hour ozone standard one

4 year after the effective date of the designation of the

5 8-hour ozone standard, what would happen to previously

6 approved SIPs by U.S. EPA with respect to commitments

7 made to short-term measures as well as long-term

8 strategies under the two proposed options, i.e., full

9 revocation and partial revocation of the 1-hour ozone

10 standard?

11 MR. HELMS: Go through them all. What we will

12 do, we are not going to attempt to answer questions on

13 the spot. We will put them in the record and get back

14 to you in writing.

15 MR. PIRVEYSIAN: The second question:

16 Considering the level of reductions necessary for

17 meeting the 1-hour ozone standard in the South Coast Air

18 Basin and the potential need to rely on the development

19 of new control technologies or improvement of existing

20 technologies (allowed under Section 182(e)(5) for

21 extreme nonattainment areas) would future SIPs submitted

22 for the 8-hour ozone standard by areas designated as

23 severe nonattainment areas be allowed to include

24 182(e)(5) provisions since the South Coast Air Basin

25 would be reclassified from extreme to severe-17 under

32

1 the current proposal?

2 And the final question: The purpose of

3 submitting the rate of progress after two years of

4 designation needs to be clarified, especially if the

5 previously approved SIP is still in place.

6 We can provide additional clarification to our

7 questions if needed. Thank you again for the

8 opportunity for providing these comments. As I

9 mentioned before, we will provide more detailed written

10 comments as soon as possible. Meanwhile, we look

11 forward to working with the EPA staff to refine our

12 final proposal.

13 MR. HELMS: Let me ask you to do that. If you

14 would, leave copies of your questions over there with

15 the court reporter. If you would like to think a little

16 bit, you talked about refining things and refining your

17 questions. If you want to adjust any of the questions,

18 send them in to the public comment address. Send them

19 to Matt at the regional office. We will get back with

20 Matt and get you some answers and put those answers then

21 in the record. That would be great. Thank you very

22 much.

23 Is Linda Civitello-Joy present?

24 Okay. Edie Chang, State of California.

25 MS. CHANG: Good morning. My name is Edie

33

1 Chang. I'm with the California Air Resources Board.

2 The Air Resources Board is the agency charged with

3 overseeing the State's efforts to meet federal Clean Air

4 Act requirements and provide more helpful air for all

5 Californians. Together with our local air district

6 partners it is our responsibility to put into practice

7 the proposed federal rules for implementing the new

8 8-hour ozone standard. It is essential that this

9 process does not undermine our current efforts to meet

10 the national 1-hour standard and to achieve near-term

11 public health benefits.

12 As you know, California has a significant

13 ozone problem. The Los Angeles region and the San

14 Joaquin Valley faces a tremendous challenge in meeting

15 the current 1-hour ozone standard. The Sacramento

16 region also remains nonattainment for the 1-hour

17 standard. The U.S. EPA's proposal to revoke the 1-hour

18 standard raises an important question: How to avoid

19 backsliding on air quality progress. The proposal

20 acknowledges that, in terms of the 1-hour standard,

21 there are outstanding SIP obligations for some areas in

22 the nation. This is at the heart of the

23 anti-backsliding issue. In fact, proposal recognizes

24 that areas with unmet SIP obligations for the 1-hour

25 standard would likely make slower progress toward

34

1 attaining the new 8-hour standard. We agree with this

2 assessment and believe it is important to retain

3 anti-backsliding provisions relative to the 1-hour ozone

4 standards. It is also critical that the implementation

5 policy leads to a smooth transition to the standard.

6 If the 1-hour standard is revoked, the timing

7 should take into account the nature of any outstanding

8 SIP obligations for the 1-hour standard. Emission

9 reduction measures are the mechanism for achieving

10 clean-air progress, and we want to maintain the momentum

11 of our collective control programs. We recognize that

12 planning for the 8-hour standard will by necessity take

13 time to develop new plans and to take those plans

14 through the process. At least for California, there's

15 no doubt that the 8-hour standard will be more

16 challenging, requiring more emission reductions and more

17 time to attain.

18 Given these circumstances, we must continue to

19 focus on adoption of new emission measures as we plan

20 for the 8-hour standards. Air agencies at all levels --

21 state, local, and federal -- must continue to adopt all

22 feasible and cost-effective value strategies so there

23 are no gaps in air quality progress as we transition to

24 the new standard. We are in the process of major ozone

25 SIP revisions for the Los Angeles region and the San

35

1 Joaquin Valley. The focus of these efforts is to

2 develop and implement new emission reduction strategies

3 at the state and local level as well to identify new

4 federal strategies. We need U.S. EPA's partnership in

5 this effort that would provide a strong foundation for

6 implementation of the new 8-hour ozone standard.

7 Thank you for the opportunity to speak today.

8 Thank you for making the trek out to California to see

9 us all. And we may provide further comments as we

10 continue to review the details of the proposal. Thank

11 you.

12 MR. HELMS: Any questions? Thank you very

13 much. We will look forward to additional comments.

14 Is there anyone else here that would like to

15 make a statement? Give public comment? What we will do

16 is we will keep the hearing open and an opportunity to

17 speak to 5:00 o'clock today. We will adjourn at this

18 point in time and go off the record. If any of you are

19 walking around outside and think of something you

20 forgot, we will open the hearing back up and record your

21 comments. Thank you so much for coming. Have a great

22 day and a great week. The hearing is recessed for the

23 time being.

24 [THE HEARING WENT OFF THE RECORD AT 9:21 A.M.

25 AND RESUMED AT 10:35 A.M.]

36

1 MR. HELMS: We'll reconvene, reopen, if you

2 will, and reopen this public meeting today on the EPA

3 8-hour ozone standard. I am Tom Helms with the U.S.

4 Environmental Protection Agency. I serve as the hearing

5 officer. John Silvasi also works in our group, the

6 Office of Air Quality Planning & Standards, U.S. EPA.

7 He will serve with me on the panel.

8 Anyone wishing to make statements or other

9 comments, you're welcome. We'd love to have them. We

10 have Linda Civitello-Joy.

11 The floor is yours. You have up to ten

12 minutes and longer if you need it. Come forward to the

13 podium, state your name and address for the record, so

14 if we want to follow up with you afterward. We're glad

15 to have you with us.

16 MS. CIVITELLO-JOY: Thank you. I'm Linda

17 Civitello-Joy, the president and CEO, American Lung

18 Association for San Francisco and San Mateo Counties.

19 Our address is 2171 Junipero Serra Boulevard, Suite 720,

20 Daly City, California, 94014.

21 On behalf of the American Lung Association, I

22 am here to oppose the published options to implement the

23 1997 8-hour ozone standard that would sustain results in

24 weakening air quality protections.

25 In 1997, the more stringent 8-hour ozone smog

37

1 standard was put in place by the EPA because scientific

2 evidence showed that the 1-hour ozone standard in place

3 since 1979 does not do enough to protect the public from

4 the adverse health effects due to exposure to ozone

5 smog. These health effects include decreased lung

6 function, respiratory ailments, hospital admissions, and

7 emergency room visits from respiratory causes,

8 inflammation of the lungs, and possible long-term lung

9 damage. While we have made strides to improve air

10 quality over the last 30 years, we have not done enough

11 to protect public health. This is evident in the

12 increase rates of asthma and other respiratory illness.

13 Lung disease is the fastest-rising and third-leading

14 cause of death in our country.

15 This proposal is a huge step backwards for air

16 quality and public health. We know the history of the

17 ozone problem has been characterized by local

18 foot-dragging and failure to meet clean-air compliance

19 deadlines. Congress recognized this in 1990 when it

20 passed into law rigorous requirements for cleanup

21 schedules and ozone control measures.

22 Despite these facts, the EPA has developed a

23 proposal that would return us to that pre-1990 world of

24 extended deadlines and insufficient control measures in

25 most parts of the country that do not meet the ozone

38

1 standard.

2 EPA's proposal is wrong for air quality and

3 wrong for public health. It would allow areas currently

4 violating the ozone standard that is in the smoggiest

5 areas in the country to:

6 Further delay or even avoid meeting their

7 existing Clean Air Act compliance deadlines; discard the

8 requirements of the 1-hour standard entirely; allow

9 these areas to avoid the additional rigorous new source

10 review and transportation conformity requirements based

11 on the 8-hour standard; lower 8-hour classifications and

12 therefore less stringent control measure requirements

13 under the 8-hour standard, based only on vaguely

14 specified "modeling" demonstrations, which may not meet

15 EPA's own published requirements; EPA would potentially

16 allow areas with average smog concentrations high enough

17 to warrant moderate or serious 8-hour classification to

18 avoid that classification scheme altogether and also to

19 avoid rigorous congressionally mandated control

20 measures.

21 In short, the EPA's proposal would maximize

22 "flexibility" for states while minimizing or weakening

23 requirements necessary to actually clean the air. The

24 results would be to offer to areas in nonattainment of

25 the 8-hour standard but attaining the 1-hour standard,

39

1 the maximum in terms of program flexibility and time to

2 attain. For areas violating both the 1-hour and 8-hour

3 standard, the Agency offers only further extensions and

4 opportunities to avoid or minimize the application of

5 congressionally mandated control programs

6 Please don't dismantle the air quality and

7 public health protections we have in place. The effects

8 of ozone costs to our society are too high to ignore.

9 Increased emergency room visits, increased death rates

10 due to respiratory failure, these occur on days when

11 ozone is high, days that might pass the 1-hour standard.

12 Children who grow up in high smog areas with lungs that

13 are not fully developed for their body size, this too is

14 documented. Those areas as well might pass a one-hour

15 standard while public health goes unprotected. Allowing

16 the opportunity to continue noncompliance is allowing

17 environmental illness and death to occur. As someone

18 who has asthma and has seen firsthand the effects on

19 many in our community, I know all too well that. When

20 you can't breathe, nothing else matters. Thank you.

21 MR. HELMS: Thank you.

22 Questions?

23 MS. SILVASI: You mentioned that you believe

24 our proposal disregards the requirements for the 1-hour

25 standard. Could you -- do you have, like, specific

40

1 examples of what you were referring to?

2 MS. CIVITELLO-JOY: What I meant was that if

3 you discard the 8-hour standard and allow only the

4 1-hour standard that you are allowing too much

5 opportunity for areas that aren't in compliance to avoid

6 the requirements.

7 MR. HELMS: Thank you very much for coming

8 out.

9 Is there anyone present who would like to make

10 a statement? Remember, our record is open until August

11 1st of this year, so you have plenty of time to submit

12 comments to amplify your comments.

13 Seeing no additional speakers, we will again

14 adjourn -- "recess" is a much better word -- recess this

15 hearing until additional speakers show up. We will be

16 here occupying this room until 5:00 p.m. today. Thank

17 you so much. Now we'll go off the record .

18 [THE PROCEEDING WENT OFF THE RECORD FROM 10:43 A.M. TO 4:58

19 P.M.]

20 MR. HELMS: It's 4:58 p.m., San Francisco

21 time. This hearing is adjourned. Thank you all for

22 participating.

23 [PROCEEDING ENDED AT 4:58 P.M.]

24

25