8-hour Ozone Implementation Summary of October 10, 2001 Conference Call

with Governmental Stakeholder Organizations

Draft - October 30, 2001

1. PARTICIPANTS

Participants included representatives from EPA, STAPPA/ALAPCO, US Conference of Mayors, National Conference of State Legislators (NCSL), Environmental Council of States (ECOS), and the National Association of Counties (NACO).

EPA -- Bill Baker (Region 2), Denise Gerth (OAQPS), Tom Helms (OAQPS), Jim Ketcham-Colwill (OAQPS), Annie Nikbakht (OAQPS), John Silvasi (OAQPS), Dave Sosnowski (OTAQ), Jan Tierney (OGC), Lydia Wegman (OAQPS)

STAPPA/ALAPCO -- Bill Becker, Nancy Kruger

US Conference of Mayors -- Alex Holt (City of Chicago, Department of Environment)

NCSL -- Larry Morandi, Molly Stauffer

ECOS -- Ralph Marquez (TNRCC), Herb Williams (TX)

NACO -- Richard Cron (Harris County Judge Robert Ekels, TX), Stephanie Osborn

2. PURPOSE

The purpose of the call was to discuss issues regarding implementation of the 8-hour ozone NAAQS, including approaches and timing. EPA wants to gather feedback from the organizations.

3. PRESENTATION AND DISCUSSION

Tom Helms began the call by thanking everyone for participating. He apologized for canceling the face-to-face meeting that was planned for September 14, 2001. Tom Helms stated that EPA wants to inform the organizations on the progress EPA is making to develop an implementation approach for the new 8-hour ozone standard and also wants to discuss some of the timing issues related to this standard. EPA wants the call to be an interactive session and all feedback from the organizations is welcome.

Tom Helms briefly reviewed the history of the new 8-hour ozone standard, including the initial implementation approach guidance stressing implementation under the more flexible Subpart 1 Nonattainment Areas in General of Title 1, Part D of the Clean Air Act (CAA) and the legal issues that arose. He said that EPA needs to resolve the difficult issues raised by the Supreme Court. The Court ruled that EPA could not implement the Standard totally under Subpart 1and ignore the more prescriptive Subpart 2. EPA hopes to be able to propose a draft rule by Spring 2002, with a final implementation rule in 2003. It is anticipated that no areas will be designated for the 8-
hour ozone standard prior to the final implementation rule.

Alex Holt asked why EPA considers Subpart 1 more flexible than Subpart 2. Tom Helms answered that Subpart 2 was written specifically for the 1-hour ozone standard and has mandated requirements depending on an area's classification. EPA learned over the years that many issues, including regional transport of ozone precursors, are involved in nonattainment. He stated that John Seitz wants the organizations to know that it is not "business as usual" and EPA wants to make the solution fit the problem.

Alex Holt asked how EPA plans to craft a more flexible approach that the courts will accept. Tom Helms said that EPA talked internally about several options which EPA will share with the organizations as the options become more focused to get their feedback.

Stephanie Osborn pointed out that some counties are interested in the Ozone Flex Program and asked how this program will fit into the discussion of Subpart 1 and 2. Tom Helms explained that this program gives counties the opportunity to adopt voluntarily whatever measures are necessary to clean the air with no Federal oversight. These counties can get an early start on cleaning up dirty air and may then be in attainment when it comes time to designate areas under the 8-hour standard. Implementation under Subpart 1or Subpart 2 would become a non-issue for such an area. Commissioner Ralph Marquez also noted the EPA should provide more protection under the Ozone Flex Program for the 8-hour ozone NAAQS.

John Silvasi reviewed two approaches for transition from the 1-hour to the 8-hour ozone standard. He then asked for questions or comments about the approaches.

Alex Holt and Commissioner Ralph Marquez indicated they were not ready to weigh in on which transition approach was preferable. Commissioner Marquez also was concerned that areas will end up with different attainment dates, which will make it difficult to coordinate regional, state, or multi-state efforts, especially when transport is involved. Tom Helms noted that there is an attainment date extension policy and currently EPA is extending dates for areas that have problems meeting attainment due to upwind transport. EPA will examine this issue more closely. EPA is working on a timeline to harmonize the programs.

Alex Holt suggested that everyone consider that in many larger urban areas, there are false distinctions (political boundaries) between areas which will lead to uncoordinated attainment plans. People should think about the ability of urban areas and communities to achieve attainment when they are highly dependent on national standards. She stated that a lot of areas are dealing more with area and mobile sources as causes of nonattainment, which are controlled by national standards. Future gains will come from the standards that EPA sets.

Bill Becker agreed and added that EPA needs to do an ever better job with sources other than stationary, over which states have little or no control. Nancy Kruger suggested that another alternative is to give local communities incentives for making major changes (i.e., zoning, transportation).

Commissioner Marquez suggested that EPA coordinate the 8-hour ozone and PM2.5 attainment designation dates. Tom Helms said that EPA is looking into this issue. Jim Ketcham-Colwill asked the Commissioner what were some problems/benefits from the harmonization of ozone and PM2.5. Herb Williams answered that it is a state resource issue - coordination can reduce burden, amount of planning, etc. He also mentioned that people need to consider how many times the states want to go back to industry with these regulations.

John Silvasi moved the discussion from the transition approaches to the key issues listed in the agenda. He went over each of the issues and then asked for feedback from the organizations. The issues are:

1.) Should EPA try to implement portions of the 8-hour ozone standard under Subpart 2 knowing that it may be challenged by the courts, or should EPA take an approach that is less of a legal risk?

2.) Can EPA, interpret the CAA in such a way as to not impose some of the mandatory requirements under Subpart 2?

3.) Should EPA classify areas using factors other than design values?

4.) For the 8-hour ozone standard, should EPA use the same parallel structure for timing that was used for the 1-hour ozone standard?

5.) When implementing under the new 8-hour standard, will new nonattainment areas, that may be next to existing 1-hour nonattainment areas, get the same 1-hour classification as the existing area, or will it get a new classification with new NSR offset requirements, etc.?

Regarding issue 1, Alex Holt felt that flexibility is important even though it may be challenged in court. She explained that some communities will not be able to clean the air and their economies may suffer if EPA does not give any flexibility. Stephanie Osborn agreed with Alex Holt's comments. Bill Becker was curious to know what the organizations mean by increased flexibility. Alex Holt provided an example. She said that attainment cannot be achieved in some areas just by controlling stationary sources because the real ozone problem is coming more from area and mobile sources. Local agencies must be allowed to craft the solution to the problem.

When reviewing issue 2, John Silvasi made the point that this may not be a viable option due to the way the CAA is written, but this issue will be discussed internally with EPA management.

Regarding issue 3, Bill Becker commented that the classification method will depend on what EPA is using the classification (designation) for - to describe air quality or to put control options into place.

Regarding issue 5, Herb Williams commented that there should be some flexibility for outlying counties that are rural and that are not contributing to a nonattainment area's pollution problem. Stephanie Osborn asked if EPA will revisit this issue with regard to the 8-hour ozone standard. Tom Helm stated the expectation that no areas will be designated until EPA finalizes the rule, but EPA will revisit this issue and States will be given the opportunity to provide comments. He reiterated that all factors (i.e., wind patterns, traffic patterns) will play into the designation classification, which means that it is possible that some areas will not be included in the CMSAs that EPA will define.

Tom Helms recapped the main issues and concerns that were discussed during the call and asked for any final comments from the organizations.

Herb Williams mentioned that Texas has State and local support to put programs into place without prescriptive measures. Texas is pushing for more flexibility. Getting flexibility may be a problem for areas that do not have this kind of local support.

EPA concluded the call by reviewing the next steps for continued discussions between EPA and the governmental stakeholder organizations.

4. WHAT IS NEXT?

•	Tom Helms will schedule the next conference call and try to inform everyone within a week.

•	All participants should focus on the issues that will be discussed during the next conference call, and be ready to share their ideas with EPA. The issues include:

•	What does flexibility mean to you?

•	Should EPA pursue a legally safer but more restrictive, or a legally riskier but more flexible implementation approach?

•	Is it better to designate an area as a whole or have less stringent requirements for new nonattainment areas?

•	Harmonizing attainment and SIP submission dates.

•	Tom Helms will send a graphic explaining the requirements for each of the classifications under Subpart 2.

•	EPA will send conference call agendas and materials to participants in advance of the conference calls.

•	EPA will send draft meeting notes to the call participants.