[Senate Hearing 110-1100]
[From the U.S. Government Publishing Office]



                                                       S. Hrg. 110-1100
 
          REVIEW OF EPA'S PROPOSED REVISION TO THE OZONE NAAQS

=======================================================================

                                HEARING

                               before the

              SUBCOMMITTEE ON CLEAN AIR AND NUCLEAR SAFETY

                                 of the

               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                             July 11, 2007

                               __________

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


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

                               __________


                  U.S. GOVERNMENT PRINTING OFFICE
61-975                    WASHINGTON : 2012
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office, 
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202ï¿½09512ï¿½091800, or 866ï¿½09512ï¿½091800 (toll-free). E-mail, [email protected].  


               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED TENTH CONGRESS
                             FIRST SESSION

                  BARBARA BOXER, California, Chairman
MAX BAUCUS, Montana                  JAMES M. INHOFE, Oklahoma
JOSEPH I. LIEBERMAN, Connecticut     JOHN W. WARNER, Virginia
THOMAS R. CARPER, Delaware           GEORGE V. VOINOVICH, Ohio
HILLARY RODHAM CLINTON, New York     JOHNNY ISAKSON, Georgia
FRANK R. LAUTENBERG, New Jersey      DAVID VITTER, Louisiana
BENJAMIN L. CARDIN, Maryland         JOHN BARRASSO, Wyoming1
BERNARD SANDERS, Vermont             LARRY E. CRAIG, Idaho
AMY KLOBUCHAR, Minnesota             LAMAR ALEXANDER, Tennessee
SHELDON WHITEHOUSE, Rhode Island     CHRISTOPHER S. BOND, Missouri

       Bettina Poirier, Majority Staff Director and Chief Counsel
                Andrew Wheeler, Minority Staff Director
                                 ------                                

              Subcommittee on Clean Air and Nuclear Safety

                  THOMAS R. CARPER, Delaware, Chairman

JOSEPH I. LIEBERMAN, Connecticut     GEORGE V. VOINOVICH, Ohio,
HILLARY RODHAM CLINTON, New York     JOHNNY ISAKSON, Georgia
BERNARD SANDERS, Vermont             LAMAR ALEXANDER, Tennessee
BARBARA BOXER, California, (ex       JAMES M. INHOFE, Oklahoma, (ex 
officio)                             officio)

                                 ______

1Note: During the 110th Congress, Senator Craig 
    Thomas, of Wyoming, passed away on June 4, 2007. Senator John 
    Barrasso, of Wyoming, joined the committee on July 10, 2007.


                            C O N T E N T S

                              ----------                              
                                                                   Page

                             JULY 11, 2007
                           OPENING STATEMENTS

Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..     1
Voinovich, Hon. George, U.S. Senator from the State of Ohio......     3
Boxer, Hon. Barbara, U.S. Senator from the State of California...     5
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     9

                               WITNESSES:

Johnson, Stephen L., Administrator, U.S. Environmental Protection 
  Agency.........................................................    12
Bell, Michelle L. PhD., Assistant Professor of Environmental 
  Health, School of Forestry and Environmental Studies, Yale 
  University.....................................................    45
Werner, James D., Director, Air and Waste Management Division, 
  Department of Natural Resources and Environmental Control, 
  State of Delaware..............................................    49
Patton, Vickie, Deputy General Counsel, Environmental Defense....    62
McClellan, Roger O., Advisor, Toxicology and Human Health Risk 
  Analysis.......................................................    73
Grace, George L., Mayor, St. Gabriel, LA and President, National 
  Conference of Black Mayors.....................................    99

                          ADDITIONAL MATERIAL

Statements:
    American Road and Transportation Builders Association (ARTBA)   108
    Department of Statistics and Operations Research.............   112


          REVIEW OF EPW'S PROPOSED REVISION TO THE OZONE NAAQS

                              ----------                              


                         TUESDAY, JULY 11, 2007

                               U.S. Senate,
         Committee on Environment and Public Works,
               Subcommittee on Clean Air and Nuclear Safety
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10 o'clock 
a.m. in room 406, Dirksen Senate Office Building, Hon. Thomas 
R. Carper (chairman of the committee) presiding.
    Present: Senators Carper, Voinovich, Boxer, Inhofe

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

    Senator Carper. The hearing will come to order. Welcome, 
everyone.
    Today's hearing, as we know, is on the EPA's recent 
proposal to tighten, the strengthen, I believe, the National 
Air Quality Standard for Ground Level Ozone. Our Senators will 
have, each of us will have 5 minutes for opening statements. 
Then I will recognize Administrator Johnson from EPA to offer 
his testimony to our Committee. We will subject him to two 
rounds of questions following his statement, and then we will 
ask our second panel to come forward and present their 
testimonies and we will query them as well.
    I understand that we have a vote coming up at 11:30, and if 
we are smart, and can do our job well, we can conclude this 
hearing right in time to be able to get over and vote, to do 
justice here to this important subject and also to fulfill our 
responsibilities in the Senate chamber itself.
    Let me begin with an opening statement, then I will defer 
to my friend and colleague, Senator Voinovich, and we will 
abide after that, Senator Boxer, Senator Inhofe and then by the 
early bird rule.
    Since the Clean Air Act was first passed into law, we have 
made significant environmental progress in this Country. But 
our work is not over. In Delaware, our entire State exceeds 
EPA's health standards for ozone. And New Castle County, which 
is where I live, in northern Delaware, doesn't meet EPA 
standards for fine particulate matter. According to a recent 
survey, during each of the summer months when ozone pollution 
is at its worst in our part of the Country, over 10,000 adult 
Delawareans are unable to work or carry out daily activities 
for at least one or more days per year. And that is just in one 
small State, my home State. The dirty air that millions of 
Americans are being forced to breathe is costing us dearly.
    The National Association of Manufacturers released a 
publication in March that some of us may have seen. It is 
entitled Health Care Cost Crisis. The publication states that 
the rising cost of health coverage is one of the biggest 
challenges that manufacturers face today. I am sure that most 
of us would agree. In fact, I am going to ask unanimous consent 
to enter their statement into the record, without objection.
    [The referenced material was not received at time of 
print.]
    Senator Carper. In terms of solutions, the first quick fix 
that the National Association of Manufacturers offers is the 
following: intensively managing chronic health care conditions, 
such as diabetes, hypertension, asthma, saying that we can 
generate substantial cost savings and increase productivity at 
the same time.
    The health care costs of asthma are staggering. In Delaware 
each year, one out of three adults with asthma will visit the 
hospital one or more times. And one out of five adults with 
asthma reported one or more visits to an emergency room or an 
urgent care center because of their asthma during the course of 
the year. In a report titled The Burden of Asthma in Delaware, 
Delaware's Division of Public Health determined the total 
statewide charges for asthma treatment and medication could be 
as high as $25 million to $30 million a year. That is just in a 
small State with fewer than a million people. But in my State, 
that is real money.
    When I was privileged to be Governor of Delaware, I 
discovered that the costs of breathing dirty air are a far 
heavier burden on our economy than the costs of air pollution 
controls. Setting air quality standards to protect our citizens 
from the physical and economic burdens of dirty air is an 
important step.
    However, setting more stringent national standards must be 
coupled with a national strategy to achieve them. That is why I 
feel that the enactment of legislation that a number of my 
colleagues have joined me in introducing, the Clean Air 
Planning Act, or legislation similar to it, is so important. 
Some of you know, our bill will require significant reductions 
in sulfur dioxide, nitrogen oxide, mercury and CO2 
from the largest polluter in this Country, and that is our 
power plants. Specifically, our bill will greatly reduce ozone 
pollution. It requires that the emission of nitrogen oxide from 
power plants be cut from 5 million tons annually to about 1.7 
million tons annually by 2015. With these reductions in 10 
years only 11 areas in our Nation will then exceed EPA's health 
standards for ozone, only 11.
    I might add that our proposal also calls for cuts in sulfur 
dioxide emissions by some 82 percent by 2015. As you know, 
sulfur dioxide pollution causes several chronic health 
problems. I won't elaborate, but we are familiar with many of 
them.
    According to EPA, our proposal would cut the number of 
areas currently in non-attainment for particulate matter by 
over 70 percent by 2010. I commend you, Administrator Johnson, 
for realizing that more needs to be done to radically protect 
public health from ozone and for proposing to do something 
about it by strengthening the current standards. Let me implore 
you, though, to make sure that your decision follows the 
scientific advice given to you by your staff and by the Clean 
Air Scientific Advisory Committee.
    Last, let me encourage you to work with this Committee to 
develop a national strategy to achieve those standards. With 
that having been said, I will turn to my friend, Senator 
Voinovich, for his statement.
    [The prepared statement of Senator Carper follows:]

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

    Since the Clean Air Act was first passed into law we have 
made significant environmental progress. But our work is not 
over. In Delaware, the entire State exceeds EPA's health 
standards for ozone, and New Castle County doesn't meet EPA's 
standard for fine particulate matter. According to a recent 
survey\1\, during each of the summer months when ozone 
pollution is at its worst over 10,000 adult Delawareans are 
unable to work or carry out daily activities for one or more 
days. And that's just in my small, home State. The dirty air 
millions of Americans are being forced to breathe is costing us 
dearly.
---------------------------------------------------------------------------
    \1\(the Behavioral Risk Factor Survey is an annual survey of 
Delaware's adult population about behaviors which affect risk of 
disease and disability).
---------------------------------------------------------------------------
    The National Association of Manufacturers released a 
publication in March titled Health Care Cost Crisis. The 
publication states ``the rising cost of health coverage is one 
of the biggest challenges manufacturers face today.'' In terms 
of solutions, the first ``quick fix'' the NAM offers is the 
following: ``Intensively managing chronic health care 
conditions (e.g. diabetes, hypertension, asthma) can generate 
substantial cost savings and increase productivity.''
    The health care costs of asthma are staggering. In 
Delaware, each year, about 32 percent of adults with asthma 
must visit the doctor one or more times. And 19 percent 
reported one or more visits to an emergency room or urgent care 
center because of asthma. In a report titled, The Burden of 
Asthma in Delaware, Delaware's Division of Public Health 
determined that total statewide charges for asthma treatment 
and medications could be as high as $25 to $30 million a year.
    In my small State, that is real money. While I was 
Governor, I discovered that the costs of breathing dirty air 
are a far heavier burden on our economy than the costs of air 
pollution controls. Setting air quality standards to protect 
our citizens from the physical and economic burdens of dirty 
air is an important step.
    However, setting more stringent national standards must be 
coupled with a national strategy to achieve them. That is why I 
feel my legislation, the Clean Air Planning Act, is so 
important. It will require significant reductions from the 
largest polluters in the country--power plants. Specifically, 
my bill will greatly reduce ozone pollution. It will cut 
nitrogen oxide from 5 million tons today to 1.7 million tons in 
2015. With these reductions in 10 years only 11 areas in the 
Nation will exceed EPA's health standards for ozone.
    My proposal will also cut sulfur dioxide emissions by 82 
percent by 2015. Sulfur dioxide pollution causes several 
chronic health problems. According to EPA, my proposal would 
cut the number of areas currently in nonattainment for 
particulate matter by over 70 percent by 2010. I commend you, 
Administrator Johnson, for realizing that more needs to be done 
to adequately protect public health, and proposing to 
strengthen the current standard. I would implore you to make 
sure your decision follows the scientific advice given to you 
by your staff and by the Clean Air Science Advisory Committee. 
And last, I encourage you to work with this committee to 
develop the national strategies to achieve these standards.

          OPENING STATEMENT OF HON. GEORGE VOINOVICH, 
              U.S. SENATOR FROM THE STATE OF OHIO

    Senator Voinovich. Thank you, Senator Carper. Thanks for 
holding this hearing today on the EPA's review of the National 
Ambient Air Quality Standards. I hope it will provide us with 
some real good debate as the agency determines whether to 
retain or amend the current standards.
    Administrator Johnson, I appreciate your being here to 
share your thoughts on the agency's review. I appreciate all of 
the conversations that we have had over the last number of 
months. I look forward to your comments. I would also like to 
thank the other panelists for being here today to share their 
perspective on this important rulemaking. EPA's review of the 
ozone NAAQS should not be taken lightly. The NAAQS standards 
have been instrumental in improving our Nation's air quality. 
That is right, air quality has been steadily improving in the 
U.S. between 1970 and 2005, total emissions of the six NAAQS 
pollutants have dropped by 53 percent. And measured ambient air 
concentrations of ozone have dropped 20 percent since 1980. 
This is while our gross domestic product, vehicle miles 
traveled, energy consumption and population have increased 
substantially.
    So basically, our economy has been growing quite nicely, 
and at the same time, we have been doing a halfway decent job 
of reducing the six most harmful pollutants.
    The gains are impressive and we want to improve upon them. 
But as a policy matter, we should weigh additional gains 
against the overall costs to communities. By now we should all 
be well aware that economic burdens associated with complying 
with more stringent standards could fall disproportionately on 
those least able to pay. It really gets into weighing these 
things that are difficult. Senator Carper did an eloquent job 
of explaining the health and hazmat impact and that. I wrote a 
note down to get the information that we have in Ohio. You have 
that right there, and then you have the other costs of this. 
And even though you are not able to weigh them, that you have 
to figure out just what makes the most sense.
    And today, for example, there are 391 counties that are out 
of compliance with the standards. Twenty-five of those are in 
my State. EPA is now considering revising those standards. Even 
before the States implement programs to meet the current 
standards, State implementation plans for the current standards 
were due to the EPA just last month. In fact, from what I have 
heard from the folks in Ohio, they are unsure the targets can 
be met. And we are talking about the current ones, not the new 
ones.
    If EPA increases the stringency of the ozone standard 
during this review, it will again hamper States with a new and 
more difficult target before the current standard is attained. 
The agency will have allowed no time to evaluate the 
environmental benefits and economic impacts of attaining the 
standard we have today. Since some may not be aware, but 
standards at the lower end of the range now under consideration 
would nearly triple the number of non-attainment counties 
across the U.S. Ohio could see as many as half our 88 counties 
designated as non-attainment. EPA claims that Federal programs 
such as the Clean Air InterState Rule and the new diesel fuel 
and engine regulations will bring most of the counties into 
attainment without additional local effort.
    While Federal rules may help in some areas, I am concerned 
that EPA is trivializing the impact of being designated non-
attainment in the first place. The negative effects of non-
attainment designations are real. I am very familiar with the 
difficult decisions that must be made by each State to comply 
with them. As a former Governor who brought Ohio's counties 
into attainment, I know first-hand that this is an extremely 
complicated and resource-intensive task. A non-attainment 
designation directly affects a community's economic viability.
    The bottom line is that you have businesses that are there 
and you want them to expand. But if the costs of the emissions 
control are such that they feel they are excessive, you will 
find that they will locate somewhere else. And for sure I know, 
from my experience as Governor, that if you have, and you are 
in non-attainment, there are companies that come and they will 
just fly over your State and go somewhere else, because they 
don't want to be involved with the initial costs of the 
emissions that are going to be required from them.
    I think that, because I don't want to take too much time 
here, I want to keep within my 5 minutes, you have a difficult 
job. And that is to try and again, weigh environment, economic, 
energy, try to figure out what makes the most sense and are 
these new rules that are going to be put in place really going 
to achieve additional health care benefits that will outweigh 
the other disincentives that would occur as a result of and a 
cost to people.
    I have people in my town that, for example, their energy 
cost of natural gas is up 300 percent. I am talking about the 
elderly and I am talking about the poor. I think so often when 
we do some of our environmental things, we fail to consider 
that has an impact also on another side of someone's life. So 
it is there.
    I will never forget Steubenville, Ohio. This woman came up 
and she spoke broken English and she said, Mr. Voinovich, she 
said, you know, the air is clean. But my children have all 
moved because there are no jobs. So I think there is a balance 
that we can achieve here. I think that is a Solomon-like 
decision you are going to have to make. We want you to do it, 
as Senator Carper said, based on the best information that you 
can get.
    Thank you.
    Senator Carper. Thanks, Senator Voinovich.
    Senator Boxer, Madam Chair.

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

    Senator Boxer. Thank you so much, Senator Carper, for 
scheduling this very important hearing on ozone, often called 
smog.
    I wanted to pick up on what Senator Voinovich said, because 
I think it is important. According to the law, and the Supreme 
Court decision, the EPA Administrator is not supposed to 
consider anything but the science and the health. He is not 
supposed to consider the economics. That is up to us. In 
Eastern Europe, they never paid any attention to the air, and 1 
day they just shut it down, the whole economy, until they 
realized that would do it.
    So I think what is important here is the EPA Administrator 
must give us the science and the health. The economics, if we 
want to weigh in and say, we don't care how many kids have 
asthma, or we are willing to see that number go up, that is up 
to us. Now, I for one, will never take that position. Because 
in California, asthma is the most common chronic disease among 
children, in my State. Smog kills. And EPA should do everything 
it can to save lives and protect the health of our children and 
our families.
    Now, what has the EPA expert panel said? And Mr. Johnson 
and I had a phone conversation about this. They unanimously 
concluded that the current ozone standard will not protect 
health, period. There isn't any doubt about it. Smog pollution 
is a major public health problem nationwide. And again, in my 
State, leading cause of school absences, and the California Air 
Board estimated smog causes 4.7 million school absences a year 
statewide.
    I would encourage everyone in this room who is interested 
in this to visit a school, any school, any grade, and ask 
children to raise their hand if they have asthma or if they 
know someone who has asthma. You will be stunned to see half to 
two-thirds of the hands go up. I certainly was stunned to see 
it.
    Now, EPA Administrator Johnson has publicly stated he 
agrees that the current smog standard is not protective. But 
unfortunately, as we will hear today, EPA's ozone proposal 
allows for more pollution than the science supports, and it 
could even leave the current unsafe standard in place, which to 
me would be the height of immorality. The science 
overwhelmingly supports the closing the door on the current 
standard once and for all.
    But instead of listening to science, as I told the 
Administrator in a conversation we had recently, he seems to be 
listening to the wish lists of the polluters. The final ozone 
rule must protect clean air and public health, period. Because 
anything less is just unacceptable to the American people.
    This morning, I woke up to the news that China executed the 
head of the FDA over there. And I thought----
    Senator Carper. Let me just interrupt. We are not 
considering executing anybody here today.
    [Laughter, side conversations.]
    Senator Boxer. If you allow me to finish----
    Senator Carper. We are not going to commute sentences 
either, though, are we?
    Senator Boxer. I was going to go to a very similar place, 
which is that we don't have people who in these high positions, 
who are on the take from companies and allow unsafe products on 
the market. Because if we did have that, they would go to jail.
    The point is here, what we need to do is what the Supreme 
Court says, which is to consider health and science. And that 
is what your job is, Mr. Johnson.
    Now, scientists agree EPA needs to adopt a stricter 
standard to protect the health of the public, especially our 
children. You and I share stories of our grandchildren. Those 
are the kids that we have to protect, and the elderly. The 
National Ambient Air Quality Standards are the backbone of the 
Clean Air Act, and they set the maximum level of an air 
pollutant, such as ozone, that is safe for us to breathe. 
Setting an appropriate standard is crucial to protecting the 
health of millions of Americans.
    And again, I want to reiterate this, because it is the law. 
Ever since 1970, the Clean Air Act has required that these 
standards be set solely on the basis of the latest available 
health science. That is the job of the EPA. Anything less than 
that is against the law. It is unlawful. And the Supreme Court 
has recently confirmed that these standards are to be set based 
on science and health effects, nothing else. The law says the 
standards must protect public health with an adequate margin of 
safety. That is, ``The law requires that in setting such 
standards, EPA shall consider sensitive sub-populations,'' 
which means children and the elderly. The law says the 
standards must be based on the latest scientific knowledge.
    Now, unfortunately, EPA has failed to heed the unanimous 
scientific opinion of the expert review panel created under the 
Clean Air Act. They are set up to provide advice regarding 
these standards. EPA has said it may set the standards at 
levels above those recommended by the review panel and has 
agreed to take comments about retaining the existing standard.
    When Mr. Johnson and I spoke on the phone, I expressed my 
disillusionment with that. Because he himself had stated that 
the current standard is not protective, and yet in the rule, 
Mr. Chairman, he leaves open the door to keep it at the same 
level.
    So EPA is doing this even though we now know ozone harms 
people at levels below the existing standard. We know that 
ozone leads to a whole pyramid of effects, lost school days, 
lost work days, aggravation of asthma and other chronic lung 
diseases, susceptibility to infection, reduced lung function, 
hospital admissions and even premature death.
    So the people who are the youngest among us are those most 
vulnerable, those who stay outside longer. Adults with asthma 
and other lung diseases, older adults and adults who work 
outdoors are also very vulnerable. These facts led the 
independent review panel to say unanimously there is no 
scientific justification for retaining the current standard of 
0.08 parts per million, and the panel unanimously recommended a 
range of .060 to .070 parts per mission, as the ozone standard. 
And yet the proposed range is .070 to .075, and again leaving 
the door open for comments to keep it at the 8 level.
    So this is really unacceptable. I would ask unanimous 
consent to place the rest of my statement into the record, 
because I know you want to move forward. But I will again 
conclude with one sentence, which is I know repetitive. It is 
your job, Mr. Johnson, to set a standard that is based on the 
latest science. The simple act of breathing mustn't threaten 
anyone's life, particularly the most vulnerable among us. Thank 
you.
    [The prepared statement of Senator Boxer follows:]

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

    Thank you, Senator Carper, for scheduling this important 
hearing on ozone--often called smog. It is appropriate that we 
are discussing today the health threats from the ozone air 
pollution--during a week plagued by ``code orange'' unhealthy 
ozone level warnings for vulnerable people right here in 
Washington, and in many other parts of the Nation. Smog kills, 
and EPA should be doing everything it can to save lives and 
protect the health of our children and families. EPA's own 
expert panel of scientists has unanimously concluded that the 
current ozone standard won't protect public health.
    Smog pollution is a major public health problem nationwide, 
and is often especially severe in my home State of California. 
It is a leading cause of school absences in my state. The 
California Air Resources Board has estimated that smog causes 
over 4.7 million school absences a year statewide. EPA 
Administrator Johnson has publicly stated that he agrees that 
the current smog standard is not protective. Unfortunately, as 
we will hear today, EPA's ozone proposal allows for more 
pollution than the science supports, and it could even leave 
the current unsafe standard in place.
    The science overwhelmingly supports closing the door on the 
current standard once and for all. Instead of listening to 
science, the Administrator seems to be listening to the wish 
lists of polluting industries. The final ozone rule must 
protect clean air and public health, period. Anything less is 
unacceptable. Scientists agree that EPA needs to adopt a 
stricter standard for ozone to protect the health of the 
public, especially vulnerable citizens including children, 
people with asthma, and the elderly.
    The National Ambient Air Quality Standards are the backbone 
of the Clean Air Act. They set the maximum level of an air 
pollutant, such as ozone, that is safe for us to breathe. 
Setting an appropriate standard for ozone is crucial to 
protecting the health of millions of Americans. Ever since 
1970, the Clean Air Act has required that these standards be 
set solely on the basis of the latest available health 
science.The Supreme Court has recently confirmed that these 
standards are to be set based on science and health effects.

    The law says that the standards must ``protect public 
health with an adequate margin of safety.''

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

    The law says that the standards must be based on ``the 
latest scientific knowledge.''

    Unfortunately, EPA has failed to heed the unanimous 
scientific opinion of the expert review panel created under the 
Clean Air Act specifically to provide advice regarding these 
standards. EPA has said that it may set the standard at levels 
above those recommended by the review panel, and has agreed to 
take comments about retaining the existing standard. EPA did 
this even though we know now that ozone harms people at levels 
below the existing standard.
    We know that ozone leads to a whole ``pyramid'' of effects, 
including lost school and work days, aggravation of asthma and 
other chronic lung diseases, increased susceptibility to 
infection, reduced lung function, hospital admissions, and even 
premature death. All children, but especially asthmatic 
children and those who are active outdoors, are among the most 
vulnerable. Adults with asthma and other lung disease, older 
adults and adults who work outdoors are also particularly 
vulnerable.
    These facts led the independent review panel to say 
unanimously that ``there is no scientific justification for 
retaining the current [standard] of 0.08 parts per million.'' 
As a result, the panel ``unanimously recommends a range of 
0.060--0.070 parts per million'' as the ozone standard. Yet EPA 
proposed a standard in the range of 0.070--0.075 parts per 
million.
    EPA's proposal is unacceptable. This is not the first time 
in recent months that EPA has ignored the science with regard 
to setting these kinds of standards. At the end of last year, 
EPA refused to revise the annual standard for particulate 
matter. The agency's own independent scientific review panel 
had taken the unusual step of reconvening to reiterate its 
advice that the annual standard needed to be tightened, but EPA 
disregarded its advice.
    EPA has also decided to change its process for setting 
future ambient air quality standards--it will treat the 
independent review panel like any other commenter and it will 
allow political considerations to intrude into the 
recommendations made by staff scientists based on scientific 
evidence alone. Playing politics with public health is 
unconscionable. We need an EPA that will, above all else, make 
sound scientific judgments that protect public health and not 
polluters.
    We need an EPA that will heed the clear words of the Clean 
Air Act, which call for an adequate ``margin of safety'' to 
protect ``sensitive subpopulations'' which include the most 
vulnerable members of society. We need an EPA that will read 
the clear language of the law in a way that will pass muster in 
the courts, unlike many of EPA's recent Clean Air Act rules.
    Breathing clean air is not a luxury. EPA's standards must 
be set based on the latest and best science. The simple act of 
breathing must not threaten anyone's health or the life, most 
especially our elderly citizens and children who are least able 
to protect themselves.
    Senator Carper. Thank you, Madam Chair.
    Senator Inhofe, we are delighted that you are here and you 
are recognized.

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

    Senator Inhofe. Thank you, Mr. Chairman. Let me start off 
by saying that EPA's proposed ozone standard is flawed. If 
enacted it would have enormous consequences for our Nation, 
with the disadvantaged hardest hit. Defenders of tightening the 
ozone standard will say that the law does not take into account 
the economic devastation, loss of jobs, and that was stated by 
Chairman Boxer, and I agree, that is what the law says.
    And the ruined the lives that would be left in its wake, 
but it should, this is something that should be changed. We 
should take the responsibility for doing it. Defenders of 
tightening the standard will say that it is not necessary that 
EPA rely on peer-reviewed studies or that those that are peer-
reviewed are directly applicable to setting an 8-hour ozone 
standard. But it should, and we should demand that they do so.
    The fact is, this proposal is rife with political 
considerations with little thought given to the people who will 
be forced to endure its consequences. We have here today, and 
by the way, I regret that I am not going to be able to be here 
during that panel, because I would like to hear Dr. McClellan. 
We have a security briefing that I have to attend.
    But Dr. McClellan, the past chair of the Clean Air 
Scientific Advisory Committee, the CASAC, has detailed the many 
flaws and the questionable approaches taken in justification of 
this proposal. The science panel no longer offers its judgment 
of the scientific integrity of the process but its policy 
opinions. There are large scientific uncertainties regarding 
confounding attribution and risk.
    Mr. Administrator, I find it odd that our Government would 
force cities to comply with standards over which they have no 
control. As we regulate almost every city in America under this 
standard, even collectively they cannot control the outcome, 
because you have included emissions form Mexico and Canada. 
What is truly perverse is that you send jobs over the border 
and these in turn become emissions that come back into this 
Country. We know that is true, we know that is happening. And 
we can't control our borders. We have said many times, air 
doesn't know borders.
    I want to turn your attention to this EPA map. Oklahoma, 
like many States, has made tremendous progress, including of 
its air. Not a single county in Oklahoma, look at it, there it 
is right now, that is under the current standards, Oklahoma is 
clean. We have done that. Contrast that with California. Not a 
single one, Mr. Administrator. Yet your proposal will put 
virtually every, the entire State in non-attainment.
    Hold that other one up just for a second, here. And I think 
probably, Senator Voinovich, you are being conservative in your 
estimate as to how many counties will be affected in Ohio. 
Because these are just the monitored counties in Oklahoma, some 
12 of them. But it would also put out of attainment the 
surrounding counties. We know that our entire State would be 
out of attainment. Yet we are going from pure white to totally 
out of attainment.
    Well, anyway, we are hearing testimony today that it will 
be burdensome on communities if you finalize your proposal, Mr. 
Administrator. Let me be clear: lost jobs and closing factories 
are a health risk. As others have said, access to medical care 
is a health risk. In disadvantaged communities, how many people 
will lose health coverage as a result of this rule, Mr. 
Administrator? If the rebuilding of communities ravaged by 
Katrina is slowed or stalled, tell me how this rule will 
enhance the quality of the people trying to return their lives 
to some degree of normalcy?
    I am not asking you to take concerns into account that you 
are not allowed to by law. Instead, I am asking you to see the 
enormous importance of this decision and to ensure that your 
decision does not go beyond what you are required to do: that 
is, set the standard level requisite to protect the public 
health.
    I look at this, and I know that we are talking about, I 
read the same thing that Chairman Boxer read about what 
happened in China, and that they actually executed someone. But 
it was just a couple weeks ago in California that Governor 
Schwarzenegger fired, I guess it was the California Air 
Resources Board chairman, because they are not doing a good job 
out there.
    Senator Boxer. That is not right.
    Senator Inhofe. Well, that is what the article says here.
    So we also encourage you to focus more of your attention to 
where it should be, getting areas with truly dirty air into 
compliance with the existing law. It is why today I am 
reintroducing the Clean Air Attainment Enforcement Act, to 
provide you with the tools necessary to force areas that have 
ignored existing Clean Air laws and are in serious non-
attainment with ozone standards as well as non-attainment with 
particulate matter standards. It is time the free ride ends. We 
can no longer trust these areas will step up to the plate 
voluntarily. It is time for the EPA to have the tools to ensure 
these dirty areas are cleaned up, cleanup their own act, and 
particularly under the existing standards.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Inhofe follows:]

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

    Mr. Chairman, this is a timely oversight hearing. EPA's 
proposed ozone standard is flawed. If enacted, it would have 
enormous consequences for our Nation, with the disadvantaged 
among the hardest hit. Defenders of tightening the ozone 
standard will say that the law does not take into account the 
economic devastation, the loss of jobs, and ruined lives that 
will be left in its wake. But it should. And more to the point, 
we should.
    Defenders of tightening the standard will say that it is 
not necessary that EPA rely on peer-reviewed studies or that 
those that are peer-reviewed are directly applicable to setting 
an 8-hour ozone standard. But it should. And we should demand 
that they do so.
    The fact is this proposal is ripe with political 
considerations, with little thought given to the people who 
will be forced to endure its consequences. We have here today 
Dr. McClellan, a past Chair of the Clean Air Science Advisory 
Committee who has detailed the many flaws and questionable 
approaches taken in justification of this proposal. The science 
panel no longer offers its judgment of the scientific integrity 
of the process, but its policy opinions. There are large 
scientific uncertainties regarding confounding, attribution, 
and risk.
    Mr. Administrator, I find it odd that our government would 
force cities to comply with standards over which they have no 
control. As we regulate almost every city in America under this 
standard, even collectively they cannot control the outcome 
because you have included emissions from Mexico and Canada . 
What is truly perverse is that as you send jobs over the 
border, these in turn become emissions we cannot control within 
our borders. But cities will be penalized nevertheless.
    I want to turn your attention to this EPA map. Oklahoma , 
like many States, has made tremendous progress in cleaning up 
its air. Not a single county in Oklahoma is in violation of the 
ozone standards. Not a single one, Mr. Administrator. Yet your 
proposal will put virtually the entire State into non-
attainment. How is it that EPA last year considered States like 
Oklahoma to have clean air that was healthy to breathe, yet 
next year it will consider the air unhealthy ? even as their 
pollution levels continue to plummet?
    We are hearing testimony today that it will be burdensome 
on communities if you finalize your proposal, Mr. 
Administrator. Let me be clear: lost jobs and closing factories 
are a health risk. As others have said, access to medical care 
is a health risk in disadvantaged communities. How many people 
will lose health coverage as a result of this rule, Mr. 
Administrator?
    If the rebuilding of communities ravaged by Katrina is 
slowed or stalled, tell me how this rule will enhance the 
quality of life of the people trying to return their lives to 
normalcy. I am not asking you to take concerns into account 
that you are not allowed by law. Instead, I am asking you to 
see the enormous importance of this decision and to ensure that 
your decision does not go beyond what you are required to do--
that is, set the standard a level requisite to protect the 
public health.
    I also encourage you to focus more of your attention to 
where it should be ? getting areas with truly dirty air into 
compliance with the existing law. It is why today I am 
reintroducing the Clean Air Attainment Enforcement Act to 
provide you the tools necessary to force areas that have 
ignored existing clean air laws and are in serious non 
attainment with ozone standards as well as non attainment with 
particulate matter standards. It is time the free ride ends. We 
can no longer trust these areas will step up to the plate 
voluntarily ? it is time EPA had the tools to ensure these 
dirty air areas cleaned up their act.
    Thank you.

    Senator Carper. Thank you, Senator Inhofe.
    Senator Voinovich, why don't you go ahead and complete your 
statement, and then I will recognize the Administrator.
    Senator Voinovich. Thank you, Mr. Chairman.
    We hear that the Supreme Court has said that the EPA may 
not consider costs when determining the NAAQS standards. But 
the Court also said that the standard is to be set at a level 
that is requisite to protect human health. That is a level that 
is neither higher nor lower than necessary. And I agree that 
the standard should be based on public health consideration. 
But a person's health is also influenced by their standard of 
living.
    With respect to the scientific record underpinning EPA's 
proposal, I note there is a disagreement over what the science 
says. We have two well-respected scientists with us here today 
and they have different views on the scientific basis for 
revising the NAAQS standard. For example, Dr. Bell suggests in 
her testimony that there is no safe level of ozone and that 
even natural background concentrations may present risks to 
human health. On the other hand, Dr. McClellan states that in 
his professional judgment, EPA's proposed range is too narrow 
and based on a flawed and inaccurate presentation of the 
science.
    This suggests that the scientific debate is not over. I am 
happy to see that the agency is taking comment on a full range 
of options in their review, including the possibility of 
retaining the current standard. The agency has until March 12th 
to make it decision. It is my hope that the Administrator will 
continue to keep an open mind as he weighs the policy options 
he has before him.
    Thank you.
    Senator Carper. Senator Voinovich, thanks very much.
    Administrator Johnson, a tough job. We appreciate your 
stewardship and your attention to those responsibilities and 
the good work that is done by the people that you are 
privileged to lead. Thank you for being here with us today. We 
will enter your full statement into the record and we will ask 
you to use about 5 minutes. If you run a little bit long, we 
will certainly accommodate that. You are recognized at this 
time. Thank you for joining us.

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

    Mr. Johnson. Good morning, Chairman Carper and Madam Chair, 
members of the Subcommittee. Thank you for this opportunity to 
discuss EPA's proposal to revise the National Ambient Air 
Quality Standards for ground level ozone.
    America's air is cleaner than just a generation ago. Under 
the Bush administration, this progress continues. We have come 
a long way in understanding that economic growth and 
environmental health can in fact go hand in hand. Since 1970, 
our gross domestic product has nearly tripled. Over this time, 
our energy use is up by nearly half. Our population has grown 
by nearly 40 percent, and vehicle traffic has almost tripled. 
Yet, even with this added strain on our resources, the emission 
of six criteria air pollutants have decreased by more than 50 
percent.
    The Bush administration is building on this environmental 
success story. Through regulations like the Clean Air 
InterState Rule, we are on track to reduce emissions from power 
plants by millions of tons, keeping pace in our steady march 
toward cleaner air and healthier lives for all Americans.
    While our air is improving, our scientific knowledge 
continues to advance. For example, today we know much more 
about pollutants like ozone than when EPA updated our ozone 
standards 10 years ago. Ground level ozone, commonly referred 
to as smog, is one of the six criteria pollutants for which EPA 
has established National Ambient Air Quality Standards.
    The Clean Air Act requires EPA to set standards for 
pollutants that can be reasonably anticipated to endanger 
public health or welfare and to periodically review those 
standards. Since 1997, when EPA last updated the ozone 
standards, more than 1,700 studies on the public health impacts 
of ozone have been conducted. This new scientific evidence 
indicates that ozone's impacts are more significant than we 
previously thought. Collectively, the research confirms that 
ozone is harmful to people with asthma or other lung diseases, 
adults who are active outdoors and the youngest and oldest 
members of our population.
    Based upon the large body of scientific evidence, including 
significant new evidence concerning effects that ozone 
concentrations below the level of the current standard, I 
concluded the current standard does not protect public health 
with an adequate margin of safety and should be strengthened. 
The current primary NAAQS for ozone is .08 parts per million. 
After considering the advice from EPA's world-class scientists 
and our Clean Air Scientific Advisory Committee, I proposed to 
set a standard within the range of .070 to .075 parts per 
million.
    As part of this proposal, I also invited comment on a range 
of primary standard levels from as low as .060 to the level of 
the current standard. We are accepting comments on this wider 
range as part of an open public comment process, which provides 
an opportunity to anyone wishing to express their views on 
various scientific interpretations related to ground level 
ozone and its health effects.
    I believe it is important and good policy to provide the 
public an opportunity to comment on this wider range and 
consider what they have to say. I have also proposed two 
options for revising the secondary ozone standard to improve 
protection of plants, trees and crops. The publication of the 
proposal in today's Federal Register marks the beginning of the 
official 90 day public comment period. I will issue a final 
decision on the standards by March 12th, 2008.
    Here in America, both science and air quality have seen 
major improvements over the last generation. This progress in 
science is keeping our air quality advances moving forward. 
Bottom line, advances in science are leading to cleaner skies 
and healthier lives.
    Thank you very much, and I would be happy to answer 
questions, Mr. Chairman.
    [The prepared statement of Mr. Johnson follows:]

  Statement of Stephen L. Johnson, Administrator, U.S. Environmental 
                           Protection Agency

    Good morning, Chairman Carper and members of the 
Subcommittee on Clean Air and Nuclear Safety. I appreciate the 
opportunity to appear before you today to discuss the 
Environmental Protection Agency's (EPA) proposal to revise the 
National Ambient Air Quality Standards (NAAQS) for ground-level 
ozone.


                              introduction


    President Bush has said that breakthroughs in science and 
technology will help us become better stewards of the 
environment. I am proud of the work that EPA has been doing to 
promote the science and apply the technology that is helping 
protect our environment and improve our lives.
    The air we breathe in America has consistently improved 
over the past 30 years. Each year, EPA looks at emissions that 
impact the ambient concentrations of the criteria pollutants. 
These annual emissions estimates are used as one indicator of 
the effectiveness of our programs. Between 1970 and 2006, total 
emissions of the six principal air pollutants dropped by 54 
percent. During that same time period our nation continued to 
grow--gross domestic product increased 203 percent, vehicle 
miles traveled increased 177 percent, energy consumption 
increased 49 percent, and U.S. population grew by 46 percent. 
This success has not happened by accident. By promulgating 
requirements and implementing various Clean Air Act programs, 
and by advancing the State of our scientific understanding, EPA 
and its partners are continuing to make progress in reducing 
air pollution from both mobile and stationary sources.
    The Clean Air Act requires EPA to set national ambient air 
quality standards for pollutants that can be reasonably 
anticipated to endanger public health or welfare. Under the 
Act, EPA develops human health-based and environmentally based 
air quality criteria (which evaluate and integrate the latest 
scientific information), for the six so-called ``criteria 
pollutants.'' EPA uses the air quality criteria in setting the 
acceptable ambient levels for the pollutant--the NAAQS. Primary 
standards for these pollutants protect human health with an 
adequate margin of safety while secondary standards protect 
public welfare (that is, protect against damage to the 
environment or to property). EPA is required to periodically 
review the standards and the scientific basis of the standards 
to determine whether revisions are appropriate.
    Ground-level ozone, commonly referred to as smog, is one of 
the six criteria pollutants for which EPA has established 
national ambient air quality standards. Ozone is rarely emitted 
directly into the air but is formed by the reaction of volatile 
organic compounds (VOCs) and nitrogen oxides (NOx) in the 
presence of sunlight. VOCs are emitted from a variety of 
sources, including motor vehicles, chemical plants, refineries, 
factories, consumer and commercial products, other industrial 
sources, and biogenic sources. NOx is emitted from motor 
vehicles, power plants, and other sources of combustion. 
Changing weather patterns contribute to yearly differences in 
ozone concentrations from region to region. Ozone and the 
pollutants that form ozone can also be transported into an area 
from pollution sources found hundreds of miles upwind.
    By working effectively with our state, local, and industry 
partners, we have made tremendous progress in reducing ambient 
concentrations of ozone throughout the United States. Since 
1980, national average levels of ozone pollution have dropped 
by more than 20 percent, and in just the last 3 years, more 
than half of the communities out of attainment for ozone moved 
into attainment and now meet the current standards.


                            PROPOSAL SUMMARY


    Since EPA last updated the ozone standards in 1997, 
researchers have been working to better understand how ozone 
affects human health and the environment. In fact, more than 
1,700 studies examining the relationship between ozone exposure 
and human health and the environment have been published over 
the past decade. Many of these studies have been undertaken 
under the auspices of EPA's own research programs.
    Some of these studies corroborate previous clinical 
findings showing health effects caused by exposure to ozone, 
while others report effects at ozone levels below the current 
standard. Some new studies of people with asthma indicate that 
they experience, relative to what was previously known, larger 
and more serious responses to ozone that take longer to 
resolve. Furthermore, new epidemiological studies, including 
new multi-city studies, strengthen EPA's confidence in the 
associations between increasing ozone exposures and health 
effects, including increased asthma medication use, school 
absenteeism, and premature mortality in those with preexisting 
heart and lung disease.
    An extensive scientific review has preceded this proposal 
involving both EPA scientists and our Clean Air Scientific 
Advisory Committee, some of the most talented scientists in the 
world. I value their advice and I fully respect their judgment 
of the strength of the science and their views on the 
appropriate level at which to set NAAQS for ozone. In the 
course of developing this proposal, I personally spent 
considerable time with EPA scientists reviewing and discussing 
the information that has been collected.
Primary Standard
    Based on the large body of evidence concerning the public 
health impacts of ozone pollution, including new evidence 
concerning effects at ozone concentrations below the level of 
the current standard, I proposed that the current standard does 
not protect public health with an adequate margin of safety and 
should be revised to provide additional public health 
protection, particularly for those with asthma or other lung 
diseases, adults who are active outdoors, and the youngest and 
oldest members of our population.
    This decision was based on careful consideration of the 
conclusions contained in the Criteria Document, the rationale 
and recommendations contained in the Staff Paper, the advice 
and recommendations from the CASAC, and public comments to 
date. The current primary NAAQS for 8-hour ozone established in 
1997 is 0.08 parts per million (ppm)--effectively 0.084 ppm 
because of our rounding conventions. After considering the 
advice from EPA's scientists and our Clean Air Scientific 
Advisory Committee, I proposed to set a standard within the 
range of 0.070 to 0.075 ppm. This proposal marks the beginning 
of an open public comment process, during which EPA is inviting 
comment on a range of primary standard levels from as low as 
0.060 parts per million up to the level of the current 
standard, 0.084 ppm.
    EPA is accepting comment on levels for a primary ozone 
standard that are outside of the specific range of the standard 
I proposed. While the proposal language addresses in detail our 
reasons for proposing 0.070 to 0.075 ppm, EPA scientists 
concluded that it was appropriate for me to consider a range of 
standards levels from somewhat below 0.080 ppm down to as low 
as 0.060 ppm. I am also aware of the diversity of views held by 
various stakeholders concerning what might constitute 
appropriate levels for the standard. I understand that some 
support a standard set lower than the range proposed and some 
support a higher level than I proposed or retaining the 
existing standard. Given such views, I believe it is prudent 
public policy to ask for comment specifically on a wider range. 
Doing so allows us to benefit from the input of the public, 
including the many scientists in the field who are not part of 
the advisory committee or the EPA staff. I fully welcome 
information from the public addressing whether there are other 
interpretations of the science or other public health policy 
judgments that would suggest different levels than those I put 
forward in the proposal.
Secondary Standard
    I also proposed two alternatives for a secondary ozone 
NAAQS to improve protection for plants, trees, and crops. One 
option would be to set the standard identical to the primary 
standard, as we have done in the past. The other option, 
however, would be to set a new, separate secondary standard 
that addresses the kinds of ozone exposures that studies 
indicate can harm vegetation. This option reflects the 
available science indicating that cumulative, repeated 
exposures to ozone are an important way ozone can harm 
vegetation, compared to the short-term, higher exposures that 
can harm people.
    This proposed option, known as a ``W126 form,'' is a 
cumulative, seasonal standard. It focuses on ozone levels 
occurring over every hour from 8AM to 8PM during the summer 
growing season (specifically the 3-month period with the 
highest ozone concentrations). The form of the standard is 
expressed as a sum of weighted hourly ozone concentrations, and 
under this option, I am proposing to set that standard within a 
range of 7 to 21 parts per million-hours, as well as asking for 
comment on variations of this form and level.


                               NEXT STEPS


    We will accept public comment for 90 days after the 
proposal is published in the Federal Register, and plan to hold 
five public hearings. These hearings will be held in Los 
Angeles and Philadelphia on August 30, and in Chicago, Atlanta, 
and Houston on September 5. This schedule puts us on track to 
issue final standards by March 12, 2008.
    As to the implementation of any new or revised ozone 
standards, States have primary responsibility for ensuring 
attainment and maintenance of ground-level ozone standards once 
EPA has established them. Thus, if I ultimately decide to set 
final standards for ozone that are different from the current 
standards, EPA would work with states and other government 
entities to identify geographical areas that fail to meet the 
new standards. Under the timelines specified in the Clean Air 
Act and the Agency's past experience, I would expect that 
designations of areas that do not meet any new or revised 
standard would occur in 2010. By 2013, States would then be 
required to submit, for EPA approval, State implementation 
plans (SIPs) that provide for the attainment and maintenance of 
such standards through control programs directed to emission 
sources. Areas designated as non attainment would then have 
between 2013 and 2030 to meet any new or revised standard, 
depending on the severity of their air quality problem.


                               CONCLUSION


    Once again, I want to thank you for the opportunity to be 
with you here today. I would be pleased to answer your 
questions.

    Senator Carper. Thanks, Mr. Johnson.
    I am pleased to hear your testimony and welcome your 
comments very much. You have concluded at the current, and I am 
just going to go back and explore a little bit what you said 
and ask you to elaborate on it. You have clearly concluded that 
the current ozone standard does not adequately protect human 
health with an adequate margin of safety. Could you just 
explain for us a little bit more how you came to that 
conclusion, why you believe the proposed levels provide the 
adequate protection?
    Mr. Johnson. I followed first the routine process that the 
agency follows with developing a regulation, particularly major 
regulations such as revising an ozone standard. We took advice, 
held public meetings with our Clean Air Scientific Advisory 
Committee. We had a staff document that reviewed all of the 
science, the over 1,700 studies, the new studies. We had option 
selection, where the staff presented me with their options and 
observations.
    After carefully considering the full range of 
recommendations with both our Clean Air Advisory Committee as 
well as our world-class scientists in EPA, I concluded that the 
current standard is insufficient to protect public health; 
therefore I am proposing to revise it.
    Senator Carper. Talk to us a little bit about the Clean Air 
Scientific Advisory Committee, which we affectionately call 
CASAC.
    Mr. Johnson. Yes, that is correct.
    Senator Carper. Tell us who is on it, how many people. I 
understand they unanimously recommended a somewhat stronger 
standard, .06 parts per mission to .07. Talk to us about the 
composition of that committee. Who chooses the committee? And 
how seriously do you take their recommendations?
    Mr. Johnson. I fully and sincerely appreciate the 
scientific input of the Clean Air Scientific Advisory 
Committee. It is an advisory committee where members are 
selected by, in this case, me and the agency. These are world 
leading experts.
    Senator Carper. Roughly how many people?
    Mr. Johnson. It is chaired by Dr. Rogene Henderson.
    Senator Carper. How many people are on the committee, just 
roughly?
    Mr. Johnson. Twenty-two.
    Senator Carper. And you choose them?
    Mr. Johnson. We choose, the agency chooses, as part of the 
typical Federal Advisory Committee Act process.
    Senator Carper. And they came in and they said, 
unanimously, that all 22 of them believe that the appropriate 
range is .06 to 07?
    Mr. Johnson. Well, I certainly agree with CASAC, and as a 
scientist myself, as you know, they stated, and I fully agree 
with them, that there is no scientific justification, based 
upon the current science, for retaining the current standard. 
And I unanimously agree with them.
    Senator Carper. All right. Yesterday, I think it was 
yesterday, there was some testimony over in the House of 
Representatives before an oversight subcommittee. I think the 
fellow who testified was a former surgeon general. I had not 
met him before, but his name is Richard Carmona. He asserted 
that the Administration, this Administration, often manipulated 
important public health policies due to political concerns and 
disregarded scientific evidence again and again. Some have 
asserted that similar non-science based influences have already 
influenced this rulemaking process.
    As you stated, the science is very clear in this matter. 
Lives truly are at stake. What assurances can you give us today 
on this Committee that the decisions that you make regarding 
this standard will in fact be based on the science and on the 
health of our citizens, instead of the political concerns which 
Dr. Carmona has decried just this week?
    Mr. Johnson. Mr. Chairman, first, let me say that as a 26 
year veteran of EPA and a scientist at EPA, and now 
Administrator, that has not been my experience, that the 
Surgeon General has stated. Certainly, as Administrator for 
this decision and all decisions, I am going to base my 
decision, in this case based upon the science, making sure that 
I meet the statutory requirement, which is requisite to protect 
public health with an adequate margin of safety. That is what 
my proposal does, and that as we go through the public comment 
period and consider whatever public comments that come in, I 
will be basing my decision on the science, making sure that I 
ultimately make the decision that is requisite to protect 
public health with an adequate margin of safety, which is the 
statutory requirement.
    Senator Carper. Good.
    Before I turn the questioning over to Senator Voinovich, 
let me just say, you and I first met, I believe, when you had 
been nominated to be the Administrator. Some of my colleagues 
may recall that I opposed your nomination, not because I didn't 
admire you, like you, respect you, that I didn't think you 
would be a good administrator. That is not why.
    But the reason why is because I wanted assurances from the 
Administration that they would allow you, allow EPA to model 
three different proposals for reducing emissions from power 
plants, a proposal from the Administration, a proposal from 
Senator Jeffords and a proposal from me. Your nomination was 
confirmed, we had a quite a battle, but your nomination was 
confirmed. I think I called you the next day----
    Mr. Johnson. Yes, you did.
    Senator Carper [continuing].--to congratulate you and to 
say that was behind us and we wanted to work with you, to 
enable not just you to be successful, but EPA to help cleanup 
our air and our environment further. To your credit, you, I am 
sure, took some heat from others, probably within the 
Administration, to make sure that the modeling was done. And 
you called it straight. I appreciate that. I would just say, in 
this instance, we need to do the same. Thank you.
    Mr. Johnson. Thank you.
    Senator Carper. Senator Voinovich.
    Senator Voinovich. Thank you.
    The EPA Green Book website says there are 391 counties 
located in non-attainment areas. Yet EPA maps released with the 
ozone standard announcement only lists 104 counties under the 
current standard. Is this because EPA is only counting the 
counties with an ozone monitor and that all the counties 
included in ozone non-attainment areas, which are typically 
drawn to include all the counties in the metropolitan 
statistical area? I am getting at the issue of just how many 
counties actually right now are in non-compliance. Under the 
.07 proposed rule, if that is what you come up with, how does 
that change?
    Mr. Johnson. Senator, let me first State, I think it is 
important, that the Clean Air Act requires my decision 
regarding NAAQS to not consider costs, not to consider 
implementation issues. So this is certainly for the primary 
standard, a public health decision based upon science.
    So while we will be moving to implementation and 
implementation issues for purposes of establishing or revising 
a NAAQS standard, I am actually prohibited to consider costs by 
implementation issues.
    Senator Voinovich. That is not the question. The question 
is, we want to know how many counties actually are included in 
this, because of the fact that we have, the last head of our 
EPA in Ohio came here and testified and said, I don't know how 
we are going to comply with the current standards that have 
been put in place. We don't know how we are going to comply 
with them. And I haven't seen the report for the State of Ohio 
and what their SIP plan calls for. But I hear from businesses 
and I hear from other people that, how are we going to do this? 
It is just like I have been after you for a long time about the 
orders that you have, the political subdivisions in Ohio, 
dealing with stormwater overflow, where there are going to be 
increased costs of millions of dollars. And the communities 
haven't the capacity to comply with it. How is it going to get 
done?
    So I would like to know, and I am sure most of my 
colleagues would like to know just how many counties today are 
impacted today by the current rule. What have you heard from 
the States in terms of how they are going to comply? Is that 
correct that they just came in with their SIPs in terms of 
complying with the current standard?
    Mr. Johnson. That is correct.
    Senator Voinovich. OK, so that is just coming in now. So 
they really went out there and worked hard and said, here is 
the way we are going to do it. I would like to know what 
response they are giving to that. And then you are coming back 
to them and saying, and by the way, the science says that this 
current standard is inadequate, we have to go to another 
standard, and you have to figure out how you are going to 
comply with that standard.
    Mr. Johnson. Senator, again, my focus is making sure that I 
am basing the decision for revising the standard based upon 
science without regard to cost impacts or implementation 
issues. I can certainly ask my staff. I don't know the numbers.
    So it appears that there currently are 354 counties that 
are in non-attainment. Then an additional, depending upon what 
the final decision were made, if it were within the range I 
have proposed, would add an additional--as you can see, I have 
not focused on the issue of implementation or cost. I think it 
would be best, Senator, if I can get back to you on the record 
without giving you misinformation.
    Senator Voinovich. It is interesting, because the 
communities that are going to be asked to do this have to 
concentrate on that. How do you, from a realistic point of 
view, comply with the new standard? How many years will an area 
have to comply with the new standards, assuming it gets at what 
it is and it doesn't, well, whatever the new standard you 
finally come up with in March of next year, how long will they 
have to comply with that?
    Mr. Johnson. The schedule, which is dictated by the Clean 
Air Act, is that we would expect June 2009, States to recommend 
to the agency their areas for non-attainment, June 2010, then 
the agency would make a final decision, final determination on 
which areas are in attainment or non-attainment. Then in the 
year 2013, State implementation plans are due, which is 3 years 
after the designation. And those then between the years 2013 
and 2030, States then are required to meet the standard. The 
reason for the range of years----
    Senator Voinovich. Repeat that again, please?
    Mr. Johnson. In 2013 to 2030, and the reason that there is 
a range is the way the Clean Air Act is constructed, depending 
upon where you are in non-attainment, there are additional 
years that are given under the Clean Air Act to help the States 
achieve attainment. So we have to look area or county by county 
to see whether you are on the short end of the 2013 or all the 
way up to 2030.
    Senator Voinovich. I have run out of time. Will we have 
another round of questions?
    Senator Carper. Yes, we will have another round, sure. Let 
me just say to the point my colleague was making, and I think, 
just to paraphrase the person in Ohio, saying, I don't know how 
we are going to comply, how can we do it. You know what they 
say in Home Depot in their advertising campaign, they say, you 
can do it, we can help. The States, we believe they can do it, 
but we need to help. Among the ways that we can help is the 
promulgation of the Clean Air InterState Rule, the passage of 
an energy bill that has strong provisions for more energy 
efficient, cleaner engines in our cars, trucks and vans, 
legislation that deals with the emissions of SOx, NOx, mercury 
from our power plants. Those are things that we can do and we 
need to do . It is not just, you promulgate the rules, you look 
at the science, and say, this is what we can do according to 
the science, this is what we have to do for health. And then we 
have a responsibility here, too, to work to make sure the 
States get the help that they need.
    Senator Boxer.
    Senator Boxer. Thank you so much, Senator Carper. I just 
wanted to underscore what you just said, because sometimes we 
divide this issue too much. When we talk about, for example, 
tackling global warming, which you alluded to in the energy 
bill, will we start to have clean fuels and more hybrid and 
plug-in hybrid and electric cars? We are looking at smog here 
is from cars and utilities. So we are going to have some 
benefits here that are going to make life a lot easier for our 
home counties as they strive to meet a standard that is based 
on health.
    The other point I make to Senator Voinovich, who I deeply 
respect and don't in any way underestimate his concerns, is 
that if you can't breathe, you can't work. It is pretty simple. 
And if you can't go to school because you have an asthma 
attack, you don't do well. And you may not get as good a job. 
So we need to work together on this. It shouldn't be one thing 
battling the other. We need to make a healthy environment here 
for our families, so they can thrive and prosper. As Senator 
Carper said, we need to set a background in all this that by 
the policies we set we make it possible to attain these goals, 
they become achievable goals, which is want I want to focus on, 
is the goal, which we have already agreed, I am happy to say, 
that Mr. Johnson totally agrees, must be set on science and 
protecting the health.
    So we know that specific studies show the lungs of even 
healthy adults are harmed at ozone levels below the current 
standard. Asthmatics, we have talked about that, the most 
vulnerable, you have talked about it. And you have been very 
strong in your language here. In your testimony you note you 
spent considerable time reviewing the scientific information. 
In your own view, doesn't the available evidence make it clear 
that the current standard of .08 parts per million is 
inadequate to protect public health with an adequate margin of 
safety?
    Mr. Johnson. Yes.
    Senator Boxer. OK. Then why do you hold the door open to 
.08 in your rule, in the Federal Register? Explain it. I don't 
understand it.
    Mr. Johnson. During the development of the proposal, I 
invited in the public health community, members of industry, 
the agriculture community, a variety of others, to express 
their opinion to me as to what things I should be taking into 
consideration, again, regarding the science of the decision and 
what was requisite to protect public health and the environment 
with an adequate margin of safety. I heard from members of the 
public that believed very strongly that the standard needed to 
be maintained at its current level. I also heard from members--
--
    Senator Boxer. Who in the public told you that?
    Mr. Johnson. Typically it was members of industry and 
typically members of the public health community told me that I 
needed to lower the standard and in fact, many were on the 
lower end of the CASAC----
    Senator Boxer. OK, well, let me--I have so little time--I 
am confused. You were very straightforward and said that the 
standard right now doesn't protect the public health. So I am 
not going to just keep on questioning you. Let me just express 
myself, Mr. Chairman. The Administrator has been very eloquent 
on the point that .08 does not meet the public health standard. 
And yet and still, for whatever reason, in the actual Federal 
Register, they are welcoming these comments. I would ask 
unanimous consent to place this piece of the Federal 
Environmental Protection Agency, this National Ambient Air 
Quality Standard for Ozone into the record, showing that they 
allow comments up to .08, which is the same level.
    Senator Carper. Without objection.
    [The referenced material follows:]

    [GRAPHIC] [TIFF OMITTED] T1975.005
    
    [GRAPHIC] [TIFF OMITTED] T1975.006
    
    Senator Boxer. And I understand from OMB's website that OMB 
officials met at least three times with outside parties on the 
ozone proposal. One of the meetings with industry 
representatives did not include any EPA representative. That 
meeting took place on June 4th and involved a representative 
from the Vice President's office. So you have the Vice 
President's office, and I can tell you who was there. American 
Forests and Paper Association, Latham and Watkins represents 
industry, International Truck and Engine, and the industry 
witness that is here today, Mr. McClellan was there, and a law 
firm representing utilities and the Auto Alliance. OK? The Vice 
President had this meeting about the ozone proposal.
    And I am just wondering why EPA wasn't there to present the 
science. You weren't at that meeting.
    Mr. Johnson. I don't know why we were or were not invited. 
Again, I based my decision on the input of our world class 
scientific staff at EPA and the CASAC recommendations. And I 
made an independent decision. And the independent decision is 
that based upon the current science, that the current standard 
is not protective of public health. So I proposed to change it.
    Senator Boxer. But yet you leave open the possibility of 
keeping it by the way you phrased it, for people to still 
comment on it. And I want to get back to this, were you aware 
of this meeting taking place with the industry people on June 
4?
    Mr. Johnson. I don't recall being aware of that particular 
meeting.
    Senator Boxer. Did the Vice President ever talk to you 
about this, or his people, who were at this meeting, brief you 
on this meeting and tell you what was said?
    Mr. Johnson. I don't recall.
    Senator Boxer. You don't recall?
    Mr. Johnson. No, I don't recall.
    Senator Boxer. Can you please go back to the staff? Because 
I just want to make sure that they didn't do an end run and 
somehow influence your people. Because you know, your top-notch 
staff was much weaker than the outside science board, as you 
know. The Science Board was much tougher than your top-notch 
staff.
    So I would like you to commit to me today that you will ask 
all of your staff if they were briefed on this meeting that 
took place on June 4th with the special interests, with the 
Vice President's people. Will you go back and will you please 
answer in writing if anyone was aware of it or was briefed on 
it, and what their input was, based on the meeting?
    Mr. Johnson. To the extent that I can, I would be more than 
happy to respond to your question.
    Senator Boxer. What do you mean, to the extent that you 
can?
    Mr. Johnson. I don't know whether there are any executive 
privilege issues or anything else like that. So I am more than 
happy to----
    Senator Boxer. Well, this is on the website, OMB's own 
website.
    Mr. Johnson. I don't recall even the meeting or being aware 
of it. As I said, I will be happy to respond to the extent that 
I can.
    Senator Boxer. OK. My interest is, after that meeting with 
all the special interests in the Vice President's office, was 
there pressure put on anyone in EPA to come out with a 
recommendation that in my view is way too high when you 
consider what the outside science people have told you? So if 
you would please get back to us within a week, I would greatly 
appreciate it. Please inform all the members of the Committee 
through my office as to what occurred after the meeting.
    And I will hold for a second round.
    Senator Carper. I have asked someone to go fetch a couple 
of the charts that Senator Inhofe was good enough to share with 
us earlier. Just in case they don't show up in time, let me 
just ask you to recall--here they are. Good. The charts are 
maps of the United States and one of the charts could--do you 
have two charts there? Put the other one up first, please.
    This chart indicates, correct me if I am wrong, Mr. 
Johnson, but I believe this chart indicates in red, the areas 
in red are those areas that are in non-attainment given a 
standard of .08 parts per million for ozone.
    Mr. Johnson. That looks correct.
    Senator Carper. Now, if we were to change that standard to 
.09 or .10, my guess is that there would be even less red, and 
if we go high enough for a standard, maybe .15, there would be 
no red. Then we could maybe feel good about the fact that 
everybody was in attainment.
    What we wouldn't feel so good about was the fact that a lot 
of people are breathing air high in ozone that is going to make 
them sick. Sometimes we lose sight of the fact, I don't like 
being in non-attainment in my State, in all three counties. I 
don't like the fact that we are at the end of the tailpipe. 
There was a time when I was Governor, Senator Voinovich, you 
may recall this too, there was a time when I was Governor we 
had to literally close down the economy of my State, and still 
were in non-attainment, not because of what we were putting 
into the air, but what others were putting into the air, and 
all the cars, trucks and vehicles that are driving up and down 
the Northeast Corridor, and the pollution that is being put up 
to the west of us and blowing into my State.
    The fact that a State or an area is in non-attainment 
shouldn't be taken as a badge of shame. What should be a badge 
of shame for us is our failure to address eliminating those 
areas of non-attainment. We need strong standards, strong 
health standards based on good science and then--let's see the 
next chart, please.
    And then when all these areas of non-attainment pop up 
under a standard of anywhere from .07 to .05, which you seem to 
have embraced, then we have all these areas of non-attainment 
pop. Some are troubled by that. I am not. I would be challenged 
by that if I were running my State again. Mr. Werner here is 
from Delaware, he has a big challenge, figuring out how to get 
us into attainment. We are going to help him. We are going to 
help him in some of the ways that I have already talked about.
    I would just ask you to reflect on what I just said, 
please.
    Mr. Johnson. Thank you, Mr. Chairman. Again, as stated, and 
it is worth repeating, the decision that is before me with 
regard to the standard is to consider health impacts for the 
primary standard solely, and not consider costs and not 
consider implementation. Clearly, once we make that decision, 
then we will do everything in our power to work with our State 
and tribal officials and others to help them meet the new 
standard. But for purposes of the standard setting, it is very 
clear to me that I am prohibited by law from considering cost 
and implementation issues.
    I would just, I am not that familiar with the second chart 
that was put up, because I am not sure that takes into 
consideration a number of the items that you and Chairman Boxer 
have mentioned, such as the Clean Air InterState Rule, such as 
the diesel rules, such as our NOx SIP Call. There is a variety 
of steps that we have taken nationally that are in place that 
will be delivering real air quality results that will 
significantly help on ozone.
    And again, I don't know whether that particular map 
reflects that or not.
    Senator Carper. If the panel, this advisory panel has said 
they think the proper range is .06 to .07, is the right place 
to be in terms of focus on better health, better air quality 
for better health, if they are right, then what that suggests 
is that this chart that we have up here today shows those areas 
of our Country, including my State, where we have work to do. 
We have work to do. And as much as I would like to see--we 
could raise the standard high enough so we could end up with a 
clean slate that would indicate nobody is in non-attainment. 
Unfortunately, if we leave the standard that high or leave it 
where it is, the fact that nobody is in non-attainment means 
that a lot of people are sick. And frankly, sicker than they 
need to be or ought to be.
    It is a challenge for us, I would say. And I would yield to 
my colleague, Senator Voinovich. The challenge for us is to 
find a way to adhere to good science, to set a rigorous 
standard that is consistent with good health, and for us to 
find ways, working together, as Senator Boxer has said, for us 
to find ways working together, the Federal Government, State 
and local governments, the private sector, find ways we can 
reach these more rigorous standards, and do so in a way that 
doesn't disadvantage consumers and doesn't put our economy in a 
tailspin. We have done that before and I am convinced we can do 
it again.
    Senator Voinovich.
    Senator Voinovich. Thank you, Mr. Chairman. I, for the 
record, would like to read into the record the excerpt from 
submitted testimony by former Director Joe Koncelik of the Ohio 
EPA: ``To demonstrate the impossibility of the task of meeting 
the standard in northeast Ohio, we have performed studies that 
show that even if all the industry was shut down and the area 
depopulated, it would just barely be able to meet the standard 
by 2010, the applicable deadline under the Federal rule. 
However, these same studies show that northeast Ohio could 
attain the new standard by 2015 using almost exclusively local 
and Federal control programs.
    So the one question I have is, communities will have to 
meet the current standard by 2010. Is that correct?
    Mr. Johnson. That is correct, 2010. Well, again, as staff 
is pointing out and as I have pointed out, it depends upon 
whether the particular county or area is, what its designation 
is, is it severe or is it----
    Senator Voinovich. Well, anyhow, this is 2010, and one of 
the things Senator Carper talked about, ways that you could 
help, but the issue becomes, you reach 2010 and these new 
draconian measures come in and say, you have to do this and 
that. We tried to get some legislation that said if a county 
was in substantial compliance and moving in the right 
direction, that they would be given credit for that. We have 
never been able to clear that one up.
    But if this is what the former EPA director is saying about 
the current rule, I just wondered what he would have to say 
about a new rule. And that gets to one other thing. Senator 
Carper and I worked very hard to get this DERA legislation 
passed, the Diesel Emissions Reduction Act, which is going to 
have an enormous impact on reducing ozone and particulate 
matter. And yet, the Office of Management and Budget was very, 
very stingy in providing money for that program and because of 
the continuing resolution, the fact of the matter is that 
absolutely nothing except maybe for school buses is going to be 
done on that program.
    So the point is that looking at the programs that the EPA 
has in terms of funding programs that would help communities 
comply with this, looking at the Energy Department and some of 
the initiatives that we have about where we are spending money 
on these things, all of that should be taken into consideration 
to try and help these counties comply with just the current 
standards. Of course, we will need even more than that if we 
bring in the new standard.
    I would like to ask you a very technical question, but it 
gets at something that several members have brought up. CASAC 
indicated in its March 2007 letter to the Administrator that 
EPA did not adequately justify its modeling approach to 
determine policy relevant background. As noted in the March 
2000 letter by one of CASAC's ozone review panel members, 
actual PRB levels appear to be significantly higher than the 
PRB modeling estimates. This implies that the human health risk 
estimates made by the EPA have been overstated.
    What effort has the EPA made to correct for its low PRB 
estimates and overestimates of human health risk and are you 
aware that Dr. Adams reported in his papers no statistically 
significant results below .08 ppm. And what was the basis for 
EPA substituting its own peer-reviewed reinterpretation of the 
Adams published works instead of using the peer-reviewed Adams 
results that were properly cited in this State of Science EPA 
Ozone Criteria document? That is a pretty complicated question, 
but that gets to the stuff that you are doing. Could you shed 
some light on that?
    Mr. Johnson. Senator, actually, I do understand it. There 
are----
    Senator Carper. Good, would you explain it to me?
    [Laughter.]
    Mr. Johnson. Dr. Adams' study is one of the 1,700 studies 
that the agency reviewed. There was a full range of studies, 
clinical studies, there were epidemiology studies, multi-city 
epidemiology studies, as well as laboratory studies. So as the 
CASAC and as my staff and certainly as I looked at the 
recommendations, we had the benefit of 1,700 new studies on 
which to base our proposal.
    Adams' study is an important study. It is not the only 
study. As I said, we looked at the full range and breadth and 
depth of all the studies. What is noteworthy is that among the 
clinical studies, which actually are the ones that are showing 
the health effects that we are so concerned about, the large 
portion of those studies were actually conducted at the .08, 
which is the current level or in some cases, even above.
    So looking at all the weight of information, I again 
concluded that based upon the current science, the current 
standard is insufficient to protect public health and the 
environment.
    With regard to the background level, that has been a 
science issue, one that we have studied, continue to study. It 
is certainly our estimate that the background level is 
somewhere between .015 and .035 parts per million. We note that 
as part of our proposal. It is my recollection that we note it 
as that there are, that has been a science issue where people 
have disagreed. That is our best professional judgment on the 
science. But we certainly welcome comments and additional 
science that would add clarity to the background level.
    Senator Voinovich. Thank you.
    Chairman Boxer.
    Senator Boxer. Thank you. Thank you, Senator Carper.
    Administrator, this is the second NAAQS review where you 
didn't heed the advice of the expert science review panel that 
the Clean Air Act requires that you select. The first case was 
particulate matter, you didn't heed them then, either. And so 
it is troubling that you don't find persuasive the consensus in 
even unanimous views of your independent science experts. Why 
don't you give those views greater weight? Mr. Johnson. I 
carefully considered and certainly do appreciate the CASAC's 
comments and recommendations. In the case of the PM, there 
were, it was not a unanimous recommendation. And in fact, there 
were those that differed with other members of the CASAC. Our 
staff also had additional opinions. We had a lot of public 
comments. And again on the PM----
    Senator Boxer. Well, I didn't say they were always 
unanimous. I said consensus and even unanimous views. Sometimes 
they were unanimous.
    Mr. Johnson. Madam Chair, I made the decision on the PM, 
which is the most health protective PM standard in the history 
of the United States, and certainly here on ozone, what I have 
proposed is the most protective ozone standard in history.
    Senator Boxer. I know, wait a minute. I just asked why you 
don't give those views greater weight. You said yourself you 
chose to go with your staff.
    Mr. Johnson. No, I----
    Senator Boxer. You said that at the beginning.
    Mr. Johnson. No, what I said, Madam Chair, was that I 
carefully considered both CASAC and our world class scientists 
and what the requirement is under the law, it is requisite to 
protect public health with an adequate margin of safety. And as 
the Supreme Court indicated, neither too high nor too low. So 
it is a judgment, it is a policy judgment that started with the 
Administrator.
    Senator Boxer. Yes, it is.
    Mr. Johnson. It is my policy judgment that requisite to 
protect public health is within the range of .07 to----
    Senator Boxer. I understand. I know it is your judgment. 
That is why I am asking you about it. And it is troubling to me 
that in two cases, your judgment didn't go with this amazing 
group of people. I would ask unanimous consent to place into 
the record the CASAC review panel roster, if I might, Mr. 
Chairman.
    Senator Carper. Without objection.
    [The referenced material follows:]

    [GRAPHIC] [TIFF OMITTED] T1975.007
    
    [GRAPHIC] [TIFF OMITTED] T1975.008
    
    [GRAPHIC] [TIFF OMITTED] T1975.009
    
    [GRAPHIC] [TIFF OMITTED] T1975.010
    
    [GRAPHIC] [TIFF OMITTED] T1975.011
    
    [GRAPHIC] [TIFF OMITTED] T1975.012
    
    [GRAPHIC] [TIFF OMITTED] T1975.013
    
    [GRAPHIC] [TIFF OMITTED] T1975.014
    
    [GRAPHIC] [TIFF OMITTED] T1975.015
    
    [GRAPHIC] [TIFF OMITTED] T1975.016
    
    [GRAPHIC] [TIFF OMITTED] T1975.017
    
    [GRAPHIC] [TIFF OMITTED] T1975.018
    
    [GRAPHIC] [TIFF OMITTED] T1975.019
    

    Senator Boxer. And you will see that these are the greatest 
scientists from all over the Country, including a couple from 
Canada. So I will put that into the record, because I think 
that is disturbing to me. And we already know that one of the 
rollbacks that you presided over was to take the role of the 
independent scientific review board and push it aside. We 
already know you have done that, because they are getting in 
your way. So now you just ignore them, I think. That is my 
opinion.
    Now, I want to ask you about OMB. Did you take into account 
any of their written comments to you in your proposal?
    Mr. Johnson. Yes, we did.
    Senator Boxer. OK. Which were those?
    Mr. Johnson. I don't recall the specifics. It is all part 
of the record, Madam Chair.
    Senator Boxer. OK. Well, I have one here where they asked 
you to be careful because with the new bill on alternative 
fuels, it may be hard to, it may make difficult compliance with 
a lowered ozone NAAQS standard. So you did take into 
consideration, you did take that into account and yes, you did 
reflect their comments in the rules.
    So what I am putting together here, Mr. Chairman, is this. 
I hate to say this, I think what is going to come out of this 
is a very small, very small improvement in the standard. And it 
is sad to me, because we know what is happening to our kids. 
You were eloquent on the point. I would hope that after this 
hearing and hearing some of our concerns, you would certainly 
make it clear to everyone, including the special interests who 
have the Vice President's ear, quite obviously, that there is 
no way we are going to keep it at the same .08.
    You didn't do that in your request for comments. You left 
the door open. That is disturbing. Why would you leave the door 
open? It just defies common sense. If you already decided that 
the current standard is not protective of public health, why 
would you leave the door open? Your answer to me was, well, 
some of the public wanted to comment. Well, they could have 
commented on making the standard 9. There is nothing against 
that. But you specifically said you were leaving the door open. 
It is very disturbing to me.
    If you ever saw a kid have an asthma attack, it is not a 
pretty thing, it is not a pretty picture. And I know you are 
compassionate to our children, and I think that is the issue. 
And by the way, the charts that are up there are EPA's charts. 
It really responded to Senator Voinovich's question, which you 
said you really hadn't looked at the outcome of this. But there 
it is. We know it is going to be tough. And we know in 
California that we are going to have to have some plans that 
move us forward, and that we will work together with our 
States.
    But this is an opportunity. Just every few years we do 
this. OK? We don't do this every year. So you have to think 
about this, looking ahead. It seems to me, with all the 
improvements we are going to have out there as we fight global 
warming and we reduce the greenhouse gases, it is going o have 
a salutary impact on ozone. So let's set this at the right 
level. Let's not throw away the work of these people here, the 
outside advisors who are, really, they don't have an axe to 
grind. And I know Senator Carper is much sweeter than I am in 
general about the environment. I know he is willing to sit down 
with you, as am I.
    The bottom line is, we need to do what is right for our 
children, the elderly, the people who suffer from ozone. This 
isn't a theoretical exercise. And yes, if we want a strong 
economy, we had better have healthy families. Because we all 
run, we all have offices to run, and when our folks get sick, 
things don't go so well.
    So thank you very much, Mr. Johnson. I hope that you will 
make it clear that you are not going to keep the status quo and 
that as a matter of fact, perhaps you will reconsider and get 
this thing down to a level where people can breathe more 
easily.
    Thank you.
    Senator Carper. Mr. Johnson, if you would like to just 
very, very briefly respond, a quick closing statement, you are 
welcome to.
    Mr. Johnson. Mr. Chair, Madam Chair and Senator Voinovich, 
again, thank you for the opportunity. I am very proud of the 
work that the agency has done. I do believe that our team is a 
world class team of not only scientists but a world class team 
at EPA. I am very proud that we have proposed the most 
protective health standard in the Nation's history for ozone. 
And again, I will base my decision on the best available 
science that is requisite to protect public health and the 
environment with an adequate margin of safety. You have my 
assurance of that.
    Senator Carper. Thank you.
    Senator Boxer. Can I just say one thing, just about the 
future? We are looking forward to having you back before the 
full Committee on the 26th of October to talk about the 
California waiver. I hope you will consider the eloquent 
comments you just made. Because one way to really help us get 
going here is to grant that waiver, which affects so many other 
States. And we can get on with cleaning up the air and 
improving the health of our families. So I hope when you come 
back on the 26th, 12 other States are hanging in the balance 
here and want to do more than the Federal Government is doing 
on it.
    So I hope that you will grant that waiver and that we will 
have a good hearing that day. Thank you.
    Senator Carper. If I can, in closing, I just want to follow 
up on something that Senator Boxer said a minute or two ago. I 
am not sure what the right number is, between .06 and .08 parts 
per million. I know, and clearly you know the number is not 
.08. I do know that there is a number that is somewhere between 
.06 and 08, which is also within the prescribed range suggested 
by the advisory committee, .06 to .07, and also within the 
range that your own top folks at EPA have suggested it, between 
.07 and 074. There is a number there that is consistent with 
all of those three.
    My hope is that when March 12th of next year rolls around 
and you announce your decision that you will have at least 
found that one number. And if you can do better than that, God 
bless you.
    We have another witness in our second panel who is coming 
up, I thought the statements, the testimony of all of the 
witnesses was very good. And I want to paraphrase one paragraph 
in the statement of Vickie Patton that I hope she will permit 
me to do this. But today, Administrator Johnson, you hold the 
trust of healthier air in your hands. Like the administrators 
that preceded you, you are confronting powerful headwinds. We 
have heard about some of those today.
    We respectfully ask that you follow the path of science in 
protecting human health, that you heed the course charted by 
EPA's own unanimous 23 member independent science advisory 
committee and that you be guided by EPA's own professional 
staff in continuing the Nation's critical race for healthier 
air. We ask that you carry forward the legacy entrusted to you 
under the Clean Air Act to protect human health from ground 
level ozone with an adequate margin of safety.
    Go forth, do good work.
    Senator Voinovich. Mr. Chairman, as long as we are making a 
final statement, I think it is denying common sense that you 
are operating under legislation passed by the U.S. Congress 
that says that you take into consideration only the health 
benefits of this proposed new rule. I was a member, or I was 
Governor and worked very hard to get the Clean Water Act 
amended, so that when you considered regulations in the clean 
water area, you did cost benefit analysis, alternative peer 
review, so on and so forth.
    But to just say to you that is all you can do, I think 
defies common sense, in that you don't take into consideration 
whether a community can or cannot comply with these, what 
impact it would have on the economy of a State, if a business 
closes and the people don't have the jobs and they have no, 
they can't afford health care. There are many things that 
should be taken into consideration here.
    Mr. Chairman, I know I am probably going to get drubbed 
again, but I am going to reintroduce a bill to this Senate, as 
I did the first two or 3 years I was here, to try and maybe get 
this body to understand that there should be some cost benefit 
analysis when we look at some of these things that you are 
doing. Thank you.
    Senator Carper. Thank you, Senator Voinovich.
    Again, Administrator Johnson, you have been generous with 
your time. We thank you for your work and frankly, the work of 
your team at EPA and for your testimony here today and your 
response to our questions. We look forward to seeing you soon. 
Thank you.
    Senator Boxer. Mr. Chairman, as the new panel comes up, so 
please do----
    Senator Carper. Senator Boxer.
    Senator Boxer. I wanted to clear the air, so to speak, 
about a comment that Senator Inhofe made about a gentleman, a 
wonderful person in California, Robert Sawyer, who was the ARB, 
the Air Resources Board chairman. Senator Inhofe said he was 
fired because he wasn't doing a good job. And I want to place 
into the record, ask unanimous consent, an article that states, 
``The only reason Sawyer's gone is because the administration 
was tying his hands behind his back and not allowing him to do 
the job he needed to do to implement global warming.'' So I 
just want to put that in there, because he is a wonderful and 
very important environmentalist and scientist. Thank you.
    Senator Carper. Without objection.
    [The referenced material was not received at time of 
print.]
    Senator Carper. Our witnesses have joined us. As far as we 
know, our first vote is going to start at 11:30. My goal here 
is to be able to at least hear the testimony of each of our 
witnesses, then we will recess for a few minutes, run and vote 
and come right back.
    We are honored today to have a really distinguished panel. 
Some of you come from a long distance, and we are grateful for 
that. We are very much looking forward to the opportunity to 
have a conversation with you today.
    The first panelist that we are going to hear from is Dr. 
Michelle Bell. Dr. Bell is the Assistant Professor of 
Environmental Health at Yale University. Thank you for joining 
us. Your full testimony will be made a part of the record. We 
would ask you to summarize it in about 5 minutes. Dr. Bell.

  STATEMENT OF MICHELLE L. BELL PhD., ASSISTANT PROFESSOR OF 
  ENVIRONMENTAL HEALTH, SCHOOL OF FORESTRY AND ENVIRONMENTAL 
                    STUDIES, YALE UNIVERSITY

    Ms. Bell. Thank you. Thank you for the opportunity to speak 
with you today regarding the relationship between ozone 
pollution and human mortality. I am Michelle Bell, Assistant 
Professor of Environmental Health at Yale University at the 
School of Forestry and Environmental Studies, with joint 
appointments at the School of Public Health and also the 
Environmental Engineering Program.
    My scientific research investigates how air pollution 
affects human health. I am the lead author on several national 
studies of ozone and human mortality.
    Given the pervasive high ozone levels in many parts of our 
Country, ozone pollution is a critically important health 
concern. Links between ozone and adverse health responses have 
been established for years. However, new scientific evidence 
regarding ozone's impact on mortality has been presented in 
recent years.
    When the U.S. Environmental Protection Agency last revised 
the health-based ozone standards in 1997, the agency concluded 
that while ozone was clearly linked to many adverse health 
responses, more research was needed regarding ozone and human 
mortality. Since that time, several studies have demonstrated 
that this link does in fact exist.
    My colleagues and I performed a national, peer-reviewed 
study of how day-to-day changes in ozone levels are associated 
with mortality rates for 95 U.S. urban communities over a 14 
year period. This large data set covers over 40 percent of the 
U.S. population and is one of the largest ozone studies ever 
conducted.
    We found that mortality rates were higher in these urban 
communities when the previous week's ozone levels were higher. 
Specifically, we found that a ten part per billion increase in 
the previous week's ozone was associated with a .52 percent 
increase in mortality. To put these numbers in perspective, our 
research implies that a ten part per billion decrease in ozone 
levels would avoid about 320 premature deaths each year in the 
New York City area and would save approximately 4,000 lives 
annually in the 95 communities studied. A larger reduction in 
ozone levels would avert even more deaths.
    This may actually be an underestimate of the total impact 
of ozone on mortality, as our study only looked at the 
relationship for health for ozone exposure over the past few 
days, and does not consider the human health risk from 
breathing a lifetime of air pollution.
    Other researchers also found that ozone levels are 
associated with increased risk of mortality, including a study 
of 23 European cities and a study of 14 U.S. cities. In 
summary, several studies have provided robust scientific 
evidence that ozone pollution is associated with human 
mortality. These studies include a range of different 
methodologies and study locations.
    In a follow up study, we investigated the impact of low 
ozone levels for 98 U.S. urban communities over a 14 year 
period. We found that even very low levels of ozone are 
associated with increased risks of mortality, including 
concentrations lower than the current EPA regulatory standard 
or California standard. We have conducted extensive sensitivity 
analysis to investigate the role of weather in the ozone and 
mortality relationship and our results show that the 
association we observed between ozone and mortality is not an 
artifact of high temperatures or heat waves. This conclusion 
was confirmed by a Harvard University study identifying an 
impact of ozone on human mortality independent of an effective 
temperature for 14 U.S. cities.
    Our national studies on ozone and mortality also account 
for particle pollution. Results from multiple analyses 
consistently show that the mortality risk from ozone cannot be 
attributed to particulate matter pollution and other studies 
found similar results. The scientific findings support a 
mortality effect from ozone separate from the mortality effect 
of particles.
    In conclusion, the health impacts of ozone have been 
vigorously studied for many years. The connection between ozone 
and health is well established. We now have strong scientific 
evidence that ozone increases risk of human mortality, even at 
very low levels. Other recent research has also identified 
effects of ozone levels lower than the current regulatory 
standard, such as a Yale University study of symptoms in 
asthmatic children.
    The current State of the science is evidenced by the Clean 
Air Scientific Advisory Committee's unanimous conclusion that 
adverse health outcomes occur at the level of the current 
regulatory standard. Our research indicates that health 
benefits would result from lowering ozone concentrations even 
in communities with currently low levels.
    I thank you for the opportunity to speak with you on this 
important issue.
    [The prepared statement of Ms. Bell follows:]

      Statement of Michelle L. Bell Ph.D., Assistant Professor of 
  Environmental Health, School of Forestry and Environmental Studies, 
                            Yale University


                              introduction


    Thank you for the opportunity to speak with you regarding 
the relationship between tropospheric ozone pollution and 
mortality. I am Michelle Bell, Assistant Professor of 
Environmental Health at Yale University in the School of 
Forestry and Environmental Studies with joint appointments at 
the School of Public Health and the Environmental Engineering 
Program. My research investigates how air pollution affects 
human health, including the impacts of ozone pollution. I am 
lead author on several national studies of ozone and human 
mortality.
    Given the pervasive high ozone levels in many parts of our 
country, ozone pollution is a critically important health 
concern. Emissions from transportation, industry, and power 
generation contribute to ozone. Links between ozone and various 
adverse health responses have been established for years, such 
as for increased risk of hospital admissions and respiratory 
symptoms. However, new scientific evidence regarding ozone's 
impact on mortality has been presented in recent years since 
the last time the U.S. Environmental Protection Agency (EPA) 
revised the National Ambient Air Quality Standard (NAAQS) for 
ozone in 1997. I will focus on this new information today, 
which addresses four key points.

    1. The relationship between ozone and mortality
    2. The impact of ozone on mortality at low ozone levels
    3. The role of weather
    4. The role of particulate pollution
The relationship between ozone and mortality
    When EPA last revised the health-based ozone standards in 
1997, the agency concluded that while ozone was clearly linked 
to many health consequences, the scientific evidence for a link 
between ozone and death was unclear and that more research was 
needed. Since that time, several studies have demonstrated that 
this link does in fact exist. My colleagues at Johns Hopkins 
University and I performed a national study of how day-to-day 
changes in ozone levels are associated with mortality rates for 
95 U.S. urban communities over a 14-year period, from 1987 to 
2000 (Bell et al. 2004). The communities are shown in Figure 1.

[GRAPHIC] [TIFF OMITTED] T1975.044


    This large data set covers over 40 percent of the U.S. 
population and is one of the largest ozone studies ever 
conducted. This data set is not hypothetical or laboratory-
based, but rather is based on real-world data for ozone levels, 
weather, and mortality. The study accounts for many factors 
such as weather, day of the week, and seasonal trends. We found 
that mortality rates are higher in urban communities when the 
previous week's ozone levels are higher. Specifically, we found 
that a 10 ppb increase in the previous week's ozone levels 
raised mortality rates by 0.52 percent. To put these numbers in 
perspective, our results imply that a 10 ppb decrease in ozone 
levels would avoid about 320 premature deaths in the New York 
City area each year, and would save approximately 4,000 lives 
annually in the 95 communities studied. A larger reduction in 
ozone levels would avert even more deaths. This may be an 
underestimate of the total impact of ozone on mortality as our 
study only looked at how risk is affected by recent exposure 
over the past few days and does not include the risk from a 
lifetime of breathing air pollution.
    We also identified a link between ozone and mortality in a 
meta-analysis study, which pools estimates from previously 
conducted research to generate an overall result (Bell et al. 
2005a). Other researchers have also found that daily levels of 
ozone are associated with increased mortality risk including 
additional meta-analyses studies (Anderson et al. 2004, Ito et 
al. 2005, Levy et al. 2005, Stieb et al. 2002, Thurston and Ito 
2001), a European study of 23 cities with an average of 5.5 
years of data each (Gryparis et al. 2004), and a study of 14 
U.S. cities (Schwartz 2005). In summary, several studies have 
provided robust evidence that ozone pollution is associated 
with human mortality. These studies include a range of 
methodologies and study locations.
2. The impact of ozone on mortality at low concentrations
    In a follow-up study, we investigated the impact of ozone 
at low concentrations for 98 U.S. urban communities over a 14-
year period (Bell et al. 2005b). In particular, we were 
interested in determining whether there exists a threshold 
level, below which ozone does not adversely impact risk of 
mortality. We found that even very low levels of ozone are 
associated with increased mortality risk, including 
concentrations lower than current EPA regulatory standards or 
California's standards and nearing natural background 
concentrations. We found no safe level of ozone that does not 
affect risk of mortality.
    One approach used in this analysis is the Subset Method in 
which only days with ozone levels below a specified value are 
included in the analysis. Figure 2 shows the percent increase 
in the risk of mortality per 10 ppb increase in the average of 
the same and previous days' (Lag 01) ozone levels using all 
data and using the subset approach, for cutoff values of 30 to 
60 ppb. The points represent the central estimate, and the 
vertical lines reflect the 95 percent posterior interval, which 
relates to the certainty of the estimate. For example, the 
vertical line at the left side of the graph demonstrates an 
association between ozone and mortality, including only days 
with levels below 30 ppb.

[GRAPHIC] [TIFF OMITTED] T1975.045

3. The role of weather
    A significant question regarding the ozone and mortality 
relationship is the role of weather. Temperature influences 
ozone formation through the emissions of some natural gases 
that contribute to ozone and through acceleration of ozone 
chemistry. Ozone levels tend to be higher when temperature is 
higher, such as during the summer. Thus, we conducted extensive 
sensitivity analysis to investigate the role of weather in the 
ozone and mortality relationship. Using a range of different 
techniques, we consistently found an effect of ozone on 
mortality, independent of temperature. In other words, our 
results show that the relationship we observed between ozone 
and mortality is not an artifact of high temperatures or heat 
waves. This conclusion was confirmed by a study led by Dr. Joel 
Schwartz of Harvard University who also identified an impact of 
ozone on mortality, independent of temperature, for 14 U.S. 
cities (Schwartz 2005).
4. The role of particulate pollution
    A wealth of literature exists on the health impacts of 
particulate pollution. Our national studies on ozone and 
mortality account for particle pollution through a variety of 
different approaches. Results from these multiple analyses 
consistently show that the mortality risk from ozone cannot be 
attributed to particulate matter pollution. Other work also 
found an impact of ozone on mortality, independent of the 
mortality risk from particles (Bell et al. 2005a, Ito et al. 
2005, Gryparis et al. 2004, Schwartz et al. 2005, Stieb et al. 
2002, Thurston and Ito 2001). The scientific findings support a 
mortality effect from ozone, separate from the mortality effect 
from particles.


                               CONCLUSION


    In conclusion, the health impacts of ozone have been 
vigorously studied for many years. The connection between ozone 
and health is well-established based on evidence from 
epidemiology studies using real-world data, laboratory data 
using human exposure, and animal models. We now have strong 
scientific evidence that ozone also increases risk of human 
mortality. This increase in mortality risk is persistent even 
at very low levels of ozone near natural background 
concentrations. Other recent research also identified effects 
at ozone levels lower than the current regulatory standard, 
such as a Yale University study finding ozone is associated 
with use of asthma medication and respiratory symptoms in 
asthmatic children under 12 years (Gent et al. 2003). The 
current State of the science is evidenced by the Clean Air 
Scientific Advisory Committee's (CASAC's) unanimous conclusion 
that adverse health outcomes occur at the level of the current 
regulatory standard. Our research indicates that health 
benefits would result from lowering ozone concentrations, even 
in communities with currently low levels.
    Thank you for the opportunity to testify on this important 
issue.

    Senator Carper. Dr. Bell, thank you for taking the time to 
be here with us today and for your good work.
    Next, I wish time allowed me to give a more elaborate and 
extensive introduction to Jim Werner, but he is a person in our 
State that we are enormously proud of. I feel lucky that we 
stole him from Missouri a number of years ago. He has served 
our Nation well in a variety of capacities. He is currently the 
Director of the Division of Air and Waste Management for the 
Delaware Department of Natural Resources and Environmental 
Control. I got to ride down with him on the train today, and 
was with him on another train trip not long ago with him and 
his son, Nicolai.
    So we are happy that you are here, Jim, thank you for 
coming, and we look forward to your testimony.

     STATEMENT OF JAMES D. WERNER, DIRECTOR, AIR AND WASTE 
   MANAGEMENT DIVISION, DEPARTMENT OF NATURAL RESOURCES AND 
            ENVIRONMENTAL CONTROL, STATE OF DELAWARE

    Mr. Werner. Thank you, Mr. Chairman, and thank you Madam 
Chairman and members of the Committee, for the opportunity to 
appear today. and Madam Chairman. I am going to present four 
basic points here. One is the need for EPA to follow the 
science. Second, the concern about EPA's apparent failure to 
heed the advice again of the Clean Air ScienceAdvisory 
Committee. Third, Delaware's successful efforts to meet the 
challenge of attaining the ozone standard. Finally, the 
additional efforts that need to be made.
    First, where you stand on the issue, like many things, 
depends on where you sit. In Delaware, we sit downwind. We are 
at the end of a conveyor belt of pollution that is loaded often 
in the Midwest and unloaded after it is cooked for a couple of 
days in Delaware. As Senator Voinovich said, you could shut 
down the economy and we would still have a challenge. That 
reflects the need for doing more to meet the standard, but does 
not change the need to follow the science on setting the 
standard. There is a huge difference between what you do to 
meet the standard, and setting it, which is simply to following 
the science.
    The concern, though, about EPA's failure to heed the advice 
of the Clean Air Science Advisory Committee, as others have 
already articulately mentioned, started with the PM Fine rule 
that was really unprecedented in the nearly 30 years of EPA 
setting National Ambient Air Quality Standards. We would say 
the EPA proposal is directionally correct, but there are 
several concerns about the difference. First of all, the 
question is, why didn't EPA heed the advice? Second, why is 
there this difference between the .070 recommend as the ceiling 
and the .075 included as EPA's ceiling? There apparently is no 
basis in the record for supporting that, much less opening the 
door to retain the .080 standard, where there is no technical 
justification for that as well.
    I think Americans depend on EPA to keep a steely eyed 
focused on setting the standard, following the science, period. 
For us States, that is very important. Because we have an 
enormous amount of work to do. We hold up, I think, more than 
half the sky in doing our efforts to meet the standard. If 
there is some uncertainty about whether EPA has followed the 
science in setting the standard, it is like somebody changing 
the North Star: all our ships of States become disoriented 
about how we are guide off the direction that EPA sets.
    Last, the efforts that States have made is something that 
we shouldn't ignore here. I have heard concerns about what this 
new ozone standard will do in terms of putting other counties 
in non-attainment. Well, so be it, I would say. That is where 
the science leads you. Setting the standard doesn't change the 
fact that these counties already are breathing dirty air. 
Frankly, more than that, and not to take away from that 
concern, their dirty air contributes to our dirty air as well. 
More needs to be done.
    But we have had a lot of success. We have met the 1-hour 
ozone standard. We just submitted our SIP to meet the 8-hour 
standard. We are confident we can do that. But doing more is 
going to require a national effort and regional efforts. That 
is where more complete success will come from. We couldn't have 
gotten as far as we did without certain efforts like CAIR, as 
Administrator Johnson said, without the diesel rule, without a 
number of other efforts, and a NOx SIP Call. But more needs to 
be done to help the States get there. I think the Clean Air 
Planning Act that Senator Carper has introduced is an important 
step in the right direction to get there.
    But we need more. We need more Federal mobile air 
standards, we need improved modeling.
    Last, I would like to point out the concern that States 
like ours have in the budget cuts that have come down from EPA 
on States for about 3 years straight. Our Section 103 and 105 
grants have gone down. We can't do this without a little 
funding help from EPA. There was a recent transfer by EPA out 
of Air funding into tanks work. Not that tanks aren't 
important, there is an unfunded mandate out of the EPACT rule, 
which I must also deal with that under my purview, which 
includes underground storage tanks. It makes it a lot harder 
when we are setting an ozone standard that is going to be tough 
to meet. We are confident we can get there with EPA's help. But 
we feel like we are getting the rug cut out from under us with 
the recent funding cuts.
    Last, I would turn our attention to doing even more outside 
the box working to reduce air pollution, including working on 
land use planning. This is where we need to go in the long run 
to meet our standards. With that, I thank you for your 
attention and will be happy to take any questions.
    [The prepared statement of Mr. Werner follows:]

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

    Thank you Mr. Chairman and members of the Environment and 
Public Works' Subcommittee for the opportunity to speak with 
you today about EPA's recently proposed revisions to the 
National Ambient Air Quality Standards (NAAQS) for ground-level 
ozone.
    I serve as the Director of the Division of Air and Waste 
Management in Delaware's Department of Natural Resources and 
Environmental Control, and served previously in a similar 
position in the Missouri Department of Natural Resources. Prior 
to these State positions, I served in the U.S. Department of 
Energy as Director of Strategic Planning and Analysis for the 
Environmental Management office, as well as a private 
engineering consulting firm, nongovernmental organization, and 
the Office of Technology Assessment (U.S. Congress). In the 
1980's I served on the Board of the Delaware Valley Clean Air 
Council. I would also like to acknowledge the assistance of my 
astute Air Quality Management staff, particularly Ron Amirikian 
and Frank Gao who assisted in preparation of this testimony, 
though I bear full responsibility for the content.
    After introducing some of the unique aspects of air quality 
management in Delaware, I will present:

     some concerns about EPA's proposed ozone NAAQS,a summary 
of the success in reducing ozone concentrations and meeting 
ozone NAAQS, and
     some remaining challenges for states in meeting the 
NAAQS, including some observation on future control needs.


               A. DELAWARE--SMALL, PRECIOUS AND DOWNWIND


    President Thomas Jefferson dubbed Delaware ``The Diamond 
State'' because we are ``small but precious.'' To which we 
would add, ``downwind.'' Our air quality on many days is 
decided before people wake up in the morning and start turning 
on lights or driving cars. As you may know, all of Delaware is 
currently in non attainment for ozone, and our most populous 
county, New Castle, is also non-attainment for fine 
particulates. This situation should not obscure the fact that 
Delaware has made enormous progress improving air quality. We 
have met the 1-hour standard for ozone, and substantially 
reduced SO2 emissions, especially from the oil 
refinery in Delaware City, which is one of the few oil 
refineries with the capability of processing ``sour'' crude. 
Thanks largely to a variety of State measures and EPA's Clean 
Air InterState Rule (CAIR) rule and implementation we expect 
further improvements in air quality. Although Delaware expects 
to meet the ozone standard by 2010, it will be a challenge and 
require our best efforts. Again the main reason is our down 
wind location. As with many policy questions, where you stand 
depends on where you sit. We sit at the end of a conveyor belt 
of air pollution that is loaded in the mid-west and delivered 
fully cooked on the Atlantic seaboard. Monday's rush hour in 
St. Louis and Cincinnati can become Wednesday's Ozone alert in 
Delaware.
    Part of our routine function as a State air agency is to 
constantly monitor air quality and provide reports on the 
Internet. Often, our high pollution levels are measured in 
southern Delaware where there are more acres of soybeans than 
suburbs, and far more chickens than people or industrial 
emissions. This observation is no puzzle when you consider 
upwind sources. Our non-attainment status might be 
understandable if the whole State were industrial or heavily 
populated. As you well know, Mr. Chairman, the southern portion 
of New Castle County, and all of Kent and Sussex Counties are 
relatively rural. They are part of the Delmarva Peninsula, a 
strip of land extending below the Chesapeake and Delaware 
Canal, bordered on the east by the Delaware Bay and Atlantic 
Ocean, and bordered on the west and south by the Chesapeake 
Bay. In addition to Delaware, the Delmarva Peninsula contains 
all or portions of eight Maryland counties and two Virginia 
counties. Except for a few small pockets of relatively high 
growth, the entire Delmarva Peninsula, including Delaware's 
portion, is sparsely populated rural, with agriculture as the 
predominant business. The counties on the Delmarva Peninsula 
share similar emissions profiles, population densities, traffic 
patterns, topography and meteorology. The Peninsula counties 
also share similar air quality problems. Although only a few of 
these counties have ozone monitors, all those that do have 
shown numerous violations of the current 8-hour standard. In 
addition, photochemical modeling runs performed by the EPA have 
projected that most counties on the Delmarva Peninsula 
experience episodes similar to Delaware's in exceeding the 8-
hour NAAQS.
    To some, the expected non-attainment is an excuse to kick 
the can down the road even further. To us, it motivates us to 
seek other cost-effective controls to control ozone precursors 
and PM2.5 sources. Toward that end we have promulgated rules 
controlling a variety of ozone precursor sources. Delaware's 
permitting of a major source of Volatile Organic Compounds 
(VOC)--the lightening (off-loading of crude oil) of 
Supertankers coming out of the Atlantic Ocean into the Delaware 
Bay before they make their way upriver to refiners in Delaware, 
Pennsylvania and New Jersey--is an example of the need for each 
State to address its own unique circumstances. We are proud 
that we have been able to work constructively with Maritrans 
(ne' OSG, Inc.) on these lightering controls in a way that 
results in a win-win by requiring the lightering company to 
refit their entire fleet with vapor balancing equipment, and 
encouraging their customers to contract with compatible ships, 
to capture the lost VOCs, which is a product for them and their 
customers. Other examples include Delaware's stringent 
regulation of power plants and oil refinery boilers, and 
Delaware's participation with the OTC in the development and 
implementation of numerous regionally consistent control 
measures.
    We are pursuing this variety of air pollution controls 
initiatives because we know the benefits outweigh the costs. We 
also know that national and regional solutions are necessary to 
help control air quality in Delaware. We persevere nonetheless 
knowing we cannot ask others to take action we ourselves are 
not willing to take.


 B. SETTING NATIONAL AMBIENT AIR QUALITY STANDARDS--FOLLOW THE SCIENCE


    When I last appeared before this subcommittee in November 
2005, EPA was then working on a revised ozone NAAQS. At that 
time, we counseled EPA to ``follow the science.'' Regrettably, 
EPA's subsequent proposal to revise the ozone NAAQS appears to 
fail to heed that admonition fully.
    The Clean Air Act proscribes that primary standards ``shall 
be ambient air quality standards the attainment and maintenance 
of which in the judgment of the Administrator, based on such 
criteria and allowing an adequate margin of safety, are 
requisite to protect the public health.''\1\ Despite the 
difficulty the 8-hour ozone standard presents to Delaware, we 
nonetheless support EPA's proposal for a more stringent ozone 
NAAQS, which is what EPA's independent scientific advisory 
committee and others have recommended as being needed to 
protect public health and the environment. It is simply a 
matter of supporting the integrity of the Clean Air Act, and 
the air quality management process of which we are a part.
---------------------------------------------------------------------------
    \1\42 U.S.C. 4209(b)(1)
---------------------------------------------------------------------------
    It may surprise some people, given Delaware's challenge in 
attaining the current standard, that we strongly support EPA's 
proposal to revise downward the ozone NAAQS. We are the ones 
who bear the burden of sitting across the table from the people 
who we must ask to take further control measures, many of whom 
have already installed some controls. We are ``closer to the 
ground'' and deal directly on a daily basis with the business 
who must take action to further reduce emissions, and the 
citizens who need options to current auto emissions dependent 
travel and the current fleet of cars. In a small State like 
Delaware, these are our friends and neighbors and families 
affected by the cost of controls. It is also our friends and 
neighbors and families affect by dirty air. The reason we 
support downward direction of the ozone NAAQS revision--despite 
the difficulties--is the distinction between the process of 
setting standards and states' dominant role in determining how 
to meet those standards.
1. EPA Has Recently Failed to Follow the Historic Pattern of Heeding 
        Science Advisory Board Advice
    On June 20, 2007 EPA announced its proposal to ``revise the 
level of the 8-hour standard to a level within the range of 
0.070 to 0.075 parts per million (ppm).''\2\ Moreover, the 
Agency's proposal indicated intent ``to specify the level of 
the primary standards to the nearest one-thousandth ppm'' 
(i.e., 0.070 ppm would mean exactly that, not rounded up to 
0.0074 ppm).
---------------------------------------------------------------------------
    \2\ U.S. EPA announcement on June 21, 2007, Fed. Reg. Notice 
available at http://www.epa.gov/ttn/naaqs/standards/ozone/data/2007--
06--o3npr.pdf not published as of July 6, 2007 (Hereinafter ``EPA ozone 
NPR), at 1, 21, 241, and 253.
---------------------------------------------------------------------------
    In proposing this slightly more stringent standard, EPA has 
generally followed the science, in being ``directionally 
correct''--down not up. EPA's proposed standard overlaps with, 
but is not fully consistent with, the recommendation of the 
Clean Air Science Advisory Committee (CASAC). This 
inconsistency raises some areas of concern I would like to 
highlight briefly.
    We are concerned about the potential implications of EPA 
unprecedented recent actions that fail to follow the advice of 
the Clean Air Science Advisory Committee (CASAC) of the Science 
Advisory Board (SAB). This proposed ozone NAAQS is the second 
instance where EPA has not followed the recommendation of the 
CASAC; the first example was the 2006 NAAQS for fine 
particulates.
    Congress required in the 1977 CAA, that an independent 
scientific review committee (i.e., CASAC of the SAB) ``. . . 
complete a review of the criteria. . .  and the national and 
secondary ambient air quality standards--and shall recommend to 
the Administrator any new--standards and revisions of existing 
criteria and standards as may be appropriate. . . .''\3\ Since 
1979\4\ the CASAC has been making recommendation to EPA, and 
EPA has generally followed those recommendations in setting 
NAAQS. After 28 years and dozens of major recommendations, it 
is troubling that EPA has diverged twice from CASAC 
recommendations in as many years. The PM2.5 standard 
proposed in January 2006\5\ and finalized in October 2006\6\ 
was the first time EPA failed to heed to recommendations of the 
CASAC.\7\ In this case of the PM2.5 standard, EPA 
highlighted the lack of a unanimous consensus among CASAC panel 
members, although only 2 out of 22 members dissented.
---------------------------------------------------------------------------
    \3\42 U.S.C. 7409(d)(2)
    \4\Butterfield, Fred, EPA CASAC Designated Federal Officer, 
Personal Communication, July6, 2007
    \5\EPA National Ambient Air Quality Standards for Particulate 
Matter; 71 Fed.Reg. 2619, January 17, 2006 (amending 40 CFR Part 50).
    \6\EPA NAAQS PM; 71 Fed.Reg. 61144, October 17, 2006 (amending 40 
CFR Part 50).
    \7\Henderson, Rogene, CASAC chair, Letter to EPA Administrator 
Johnson; CASAC's Recommendations Concerning Regarding Proposed NAAQS 
for Particulate Matter, (EPA-CASAC-07-01), March 21, 2006.
---------------------------------------------------------------------------
    In the wake of this historic change in course, EPA's recent 
ozone NAAQS proposal raises some concern about the extent to 
which EPA is giving adequate consideration to the scientific 
recommendations of it own scientific advisory committee.
    In the case of the ozone NAAQS, the divergence between 
EPA's proposal and the CASAC recommendations was not as great 
the PM2.5 NAAQS. The range of concentrations in 
EPA's proposed ozone NAAQS (0.070 to 0.075) ppm at least 
intersected with the CASAC recommendation (0.060 to 0.070). 
CASAC's ceiling was EPA's floor.
    It is unclear what EPA's scientific basis is for proposing 
a range from 0.070 to 0.075, in light of the explicit CASAC 
recommendation not to exceed 0.070 ppm. Specifically, in 
October 2006, after EPA's second draft Staff Paper, the CASAC 
wrote to the Agency:

    ``. . . the CASAC unanimously recommends a range of 0.060 
ppm to 0.070 ppm for the primary ozone NAAQS.''\8\
---------------------------------------------------------------------------
    \8\Henderson, Rogene, CASAC chair, Letter to EPA Administrator 
Johnson: CASAC;'s Review of the Agency's Second Ozone Staff Paper, 
(EPA-CASAC-07-01), October 24, 2006.
---------------------------------------------------------------------------
    After EPA's Final Staff paper, the CASAC wrote again to 
EPA:

    ``Ozone Panel Members were unanimous in recommending that 
the level of the current primary ozone standard be lowered from 
0.08 ppm to no greater than 0.070 ppm.''\9\
---------------------------------------------------------------------------
    \9\Henderson, Rogene, CASAC chair, Letter to EPA Administrator 
Stephen Johnson: CASAC's Review of the Agency's Final Ozone Staff 
Paper'', (EPA-CASAC-07-02), March 26, 2007.
---------------------------------------------------------------------------
    Despite these repeated CASAC recommendations, EPA has 
proposed an ozone NAAQS range of 0.070 to 0.075 ppm.
    It is also unclear what EPA's technical justification is 
for inviting comments on retaining the current standard when it 
has been found to be unprotective by all groups who have 
examined the issue. In its October 2006 letter to EPA, the 
CASAC ozone panel unanimously concluded that a 0.08 standard 
could not be justified scientifically:

    ``[T]he [CASAC] Ozone Panel is in complete agreement both 
that: the EPA staff conclusion arguing that `consideration 
could be given to retaining the current 8-hour ozone standard'; 
is not supported by the relevant scientific data; and that the 
current primary 8-hour standard of 0.080 ppm needs to be 
substantially reduced to be protective of public health, 
particularly in sensitive subpopulations.''\10\
---------------------------------------------------------------------------
    \10\Henderson, Rogene, CASAC chair, Letter to EPA Administrator 
Johnson: CASAC;'s Review of the Agency's Second Ozone Staff Paper, 
(EPA-CASAC-07-01), October 24, 2006.
---------------------------------------------------------------------------
    This finding by CASAC was further supported by a group of 
more than 100 scientists and physicians, who wrote:
    ``[W]e strongly and solemnly request that you follow the 
recommendations of the Clean Air Scientific Advisory Committee 
and reduce the 8-hour primary ozone standard to a range between 
0.060 and 0.070 ppm.''\11\
---------------------------------------------------------------------------
    \11\Levy, Jonathan I., Kent Pinkerton, and William Rom (also signed 
by more 100 scientists and physicians), Letter to EPA Administrator 
Johnson, Broad Scientific Consensus to Lower Ozone Air Quality Standard 
and Close the Rounding Loophole, April 4, 2007.
---------------------------------------------------------------------------
    And in a remarkable show of collective agreement, the Ozone 
Transport Commission, composed of states with a very broad 
range of views, wrote to EPA, noting:

    ``The [Clean Air Act] calls on EPA to rely heavily on the 
science and CASAC's recommendation in setting both the primary 
and secondary NAAQS. OTC supports the work of the CASAC and 
urges EPA to give great weight to the recommendations of the 
CASAC for a revisions of the ozone NAAQS as set forth in its 
March 26, 2007 letter to Administrator Johnson.''\12\
---------------------------------------------------------------------------
    \12\Ozone Transport Commission, signed by David Paylor, OTC Chair 
and Director of Virginia DEP, June 6, 2007.
---------------------------------------------------------------------------
    In part of its June 2006 proposal, EPA appears to accept 
the scientific advice:

    ``The Administrator judges that there is important new 
evidence demonstrating that exposures to O3 at levels below the 
level of the current standard are associated with a broad array 
of adverse health effects, especially in at-risk 
populations.''\13\
---------------------------------------------------------------------------
    \13\EPA ozone NPR at 203.
---------------------------------------------------------------------------
    And EPA adds solid support for rejecting the current 8-hour 
standard:

    ``Upon meeting the current 8-hour standard, the median 
estimates are that about 610,000 children would experience a 
moderate or greater lung function response 1 or more times for 
the aggregate of the 12 urban areas over a single O3 season. . 
. and that there would be almost 3.2 million occurrences. Thus, 
on average it is estimated that there would be about 5 
occurrences per O3 season per responding child for air quality 
just meeting the current 8-hour standard across the 12 urban 
areas.''\14\ [and T]he Administrator judges that there is 
important new evidence demonstrating that exposures to O3 at 
levels below the level of the current standard are associated 
with a broad array of adverse health effects, especially in at-
risk populations.''\15\
---------------------------------------------------------------------------
    \14\EPA ozone NPR at 166.
    \15\EPA ozone NPR at 203.
---------------------------------------------------------------------------
    Nonetheless, EPA appears to roll out the red carpet to 
naysayers who would seek to dispute this broadly based 
scientific conclusion:

    ``EPA solicits comment on alternative levels up to an 
including retaining the current 8-hour standard of 0.080 
ppm.''\16\
---------------------------------------------------------------------------
    \16\EPA ozone NPR at 1-2.
---------------------------------------------------------------------------
    Perhaps it is part of legal strategy, rather than stemming 
from some unseen scientific basis, as a method of trying 
``smoke out'' opposition arguments early in preparation for 
litigation. We wish EPA well in this endeavor, though it is 
unlikely to dampen the enthusiasm of K-Street where billable 
hours can be justified by merely delaying the inevitable 
adoption of a NAAQS based on solid science. We agree with EPA's 
assertion that ``review of this information has been extensive 
and deliberate.''\17\ Obviously, litigants have due process 
rights that are likely to be exhausted, and in the case of 
commercial transaction or property takings, no stone should be 
unturned in giving parties their day in court. What frustrates 
those of us in the public health business is that when a rule 
being delayed affects the lives and health of all Americans, 
especially children, there is a moral dimension that is ignored 
in the process.
---------------------------------------------------------------------------
    \17\EPA ozone NPR at 28.
---------------------------------------------------------------------------
    We know that the road to this standard has been long and 
tortuous, beginning with the promulgation of the existing ``8-
hour standard'' in 1997\18\, and suffering a near-death 
experience for EPA rule writers. Ultimately both EPA's 
authority to promulgate an ozone NAAQS, and to do so without 
regard to cost considerations, was upheld by the Supreme 
Court.\19\ EPA deadline for setting the new ozone NAAQS was set 
by Consent Decree in December 2005.\20\ These years of 
litigation following EPA's 1997 proposed standard were after 
decades of mounting scientific evidence that it was not only 
the concentration of ozone exposure that determined the effect 
on public health and the environment, but also the duration of 
exposure. We have come a long way since pollution was measured 
in ``tons per cubic mile'' and government action waited until 
health effects were apparent, but the lag time between the 
science and policy remains.\21\ It is humbling personally to 
have read scientific journals and heard undergraduate 
professors talk in the 1970's about the chronic ozone exposure 
phenomenon and the need to change the short-term standard, only 
to be involved with implementing a standard thirty years later. 
Hence, we appreciate why EPA appears ``gun shy'' in setting a 
new NAAQS. Nonetheless, Americans rely on EPA to keep a steely 
eye focus on the science, and act boldly to speak truth to 
power, rather than preemptively surrendering to the almost 
inevitable litigation against its actions.
---------------------------------------------------------------------------
    \18\(62 Fed.Reg. 38856) July 18. 1997 (amending 40 CFR 50)
    \19\Whitman v. American Trucking Associations, 531 U.S. 457, 464, 
475-476)
    \20\American Lung Association v. Whitman (No. 1:03CV00778, D.D.C. 
2003).
    \21\Bachman, John, ``Will The Circle be Unbroken: A History of U.S. 
National Ambient Air Quality Standards,'' Journal of Air and Waste 
Management Association, Vol. 57, p652, June 2007.
---------------------------------------------------------------------------
    We believe it is important to view the revised ozone NAAQS 
in the context of decades of fine-tuning. The 1-hour ozone 
standard was first established in 1970, with an attainment date 
of 1977. After states failed to meet it the attainment date was 
changed to 1987. When states again failed to meet the standard, 
the CAA was strengthened in 1990, which proscribed more 
explicitly what non-attainment areas must do (e.g., lower major 
source thresholds, RACT, RFP, conformity, etc.). It also set an 
attainment date for Delaware of 2005 (extreme non-attainment 
areas were later). Delaware achieved this goal of meeting the 
1-hour ozone standard. Although, as described above, EPA first 
promulgated the 8-hour standard in 1997, litigation delayed 
designations until 2004, and Delaware's attainment date was 
established as 2009. We anticipate meeting this attainment date 
for the current 8-hour standard. So, our message to EPA is 
simple; set a standard based on solid science, give us the 
tools, and work with us collaboratively to get the job done.
    EPA proposal also appears not to accept CASAC's 
recommendation about the need for a distinct secondary ozone 
standard. Ozone also adversely affects trees, crops (soybeans 
are a particularly sensitive species), and other vegetation. 
EPA has abundant evidence in 1996 for a strong secondary 
standard to help avoid the national agricultural loss from 
ozone pollution estimated to be several billion dollars 
annually.\22\ For a secondary standard (for welfare 
protection), EPA proposes two options: (1) setting up a new 
form of standard which focuses on the highest exposure level 
during plant and vegetation growing season; and (2) setting the 
secondary standard identical to the proposed primary standard. 
Hence, EPA leaves open the door on this issue, and we hope its 
final rule accept this long-accepted scientific data on the 
need for a protective secondary standard. Delaware remains 
largely agricultural in is southern counties, and these farmer 
are also our friends and neighbors. We know that making a 
living as a farmer is already too difficult without the extra 
burden of crop losses due to air pollution.
---------------------------------------------------------------------------
    \22\(61 FR 65742, December 13, 1996, National Ambient Air Quality 
Standards for Ozone: Proposed Decision An examination of the monetized 
benefits reported above indicates that most of the estimated benefits 
accrue from attainment of the 8-hour, 0.08 ppm primary standard with a 
smaller incremental improvement obtained by the addition of a seasonal 
secondary standard. The projected national approximations for commodity 
crops and fruits and vegetables suggest that benefits on the order of 1 
to more than 2 billion dollars would result from the proposed 8-hour, 
0.08 ppm primary standard, alone or in combination with a seasonal 
secondary standard.
---------------------------------------------------------------------------
    There are two primary reasons why EPA's failure to follow 
its scientific advisory committee is troubling for a regulator. 
First, when EPA sets a NAAQS, it is like a ``north star'' used 
for navigating by more than 200 states and territories and 
major metropolitan areas across the United States who have a 
significant role in regulating air pollution.\23\ We chart our 
course toward this common\24\ NAAQS goal according to State 
Implementation Plans (SIPs) as we promulgate regulations, write 
permits, perform inspections, and conduct enforcement. It is at 
this stage in the process that we consider cost-effectiveness, 
not during the standard setting stage. We routinely look 
carefully at the costs and benefits of various options in an 
endless complex web of issues, including tradeoffs of time, 
money, State priorities and staff resources. We need to know 
that when we attain the NAAQS, it reflects a goal that is 
protective, based on the best available science. This is 
something worth working toward. If EPA flinches from its role 
is setting a NAAQS based on anything less than the best 
scientific advice, it is like someone putting a prism in our 
sextants throwing off the navigation of hundreds of regulatory 
ships.
---------------------------------------------------------------------------
    \23\The National Association of Clean Air Agencies generally 
represents air pollution control agencies. See http://
www.4cleanair.org/
    \24\California has adopted an ambient 1-hour ozone standard of 0.09 
ppm, and an 8-hour standard of 0.070 ppm. Cal. Reg. Notice Reg. 2006, 
Vol. 17-Z, April 28, 2006, at http://www.oal.ca.gov/pdfs/notice/17z-
2006.pdf; or http://www.arb.ca.gov/research/aaqs/ozone-rs/ozone-rs.htm, 
and 17 CCR 70100.
---------------------------------------------------------------------------
    Second, EPA's failure to propose a standard consistent with 
the CASAC recommendation tends to undermine environmental 
professionals everywhere who take pride in operating as much as 
possible on a science-based approach to problem solving.
    Finally, the Committee may wish to examine EPA's broader 
NAAQS-setting process, which has reportedly changed to 
eliminate use of staff papers and to instead use risk 
assessments and Advanced Notices of Proposed Rulemaking. It is 
not clear what the ultimate impact of this fundamental process 
change will have, but I recognize it results from weighing the 
best ways to assess the science, given factors such as the need 
for reviews every 5 years, and the lack of a clear health 
effect threshold.
2. An Increased Number of Non-Attainment Areas is Appropriate and 
        Universally Helpful Toward Improved Air Quality
    One of the concerns expressed about EPA's proposed ozone 
standard is the increased number of non-attainment areas that 
would be created. Obviously, if the air quality in certain 
areas--typically bordering current non-attainment areas--fails 
to meet the new NAAQS, then they should properly be classified 
as non-attainment. The result of these new non-attainment 
designations will obviously be more stringent air pollution 
control requirements and larger offsets.
    These additional pollution reduction measures are 
appropriate not only to protect public health in those new non-
attainment areas, but will also help improve air quality in 
adjacent areas that were previously non-attainment. Significant 
upwind sources located in attainment areas, continue to enjoy 
less stringent control requirements than downwind non-
attainment areas, even though part of the cause of the downwind 
non-attainment problems is the upwind sources. For example, if 
a new cement plant were to be constructed 100 yards inside the 
border of a county designated as attaining NAAQS, it would 
enjoy far less stringent air pollution control requirements, 
even though the top of the smokestack would likely be located 
in the adjacent non-attainment county if it were to fall over 
in the right direction. A State agency would have difficulty 
imposing controls on such a plant in order to protect an 
adjacent downwind county that is the victim of the new 
emissions source. This inequity could be rectified by 
designating this host county as ``non-attainment.''
    We understand there is some concern with the prospect of 
adopting a new scientific standard for human health protection, 
when the implementation of the previous health standard has 
barely begun. For environmental engineers and scientists, 
however, this ``pipeline'' of standards and implementation is 
part of the normal process of careful development of programs 
to protect human health, and of the perils of litigation that 
affect these programs. Accordingly, we believe that a 
protective ozone NAAQS--certainly no less stringent than 
proposed by EPA--should be adopted with all due alacrity so 
that the public benefits can be realized through detailed 
implementation. Based on the proposal we anticipate the 
following timeline:

     2009, States make recommendations for areas to be 
designated attainment and non-attainment,
     2010, EPA makes final designations,
     2013, State Implementation Plans outlining how states 
will reduce pollution to meet the standards will be due, and
     2013 to 2030, attainment will be required depending on 
the severity of the problem.
3. Meeting the Ozone NAAQS Requires Support, Not Cuts, to State and 
        Local Programs
    Obviously, further reduction in ozone precursor emissions 
will be necessary to attain and maintain compliance with any 
new, more stringent ozone NAAQS. A reduction in emissions will 
involve the development of control programs, and consultation 
with other States, the EPA, the OTC, etc; and such activates 
will take funding. Continued cuts of EPA air grants, like the 
CAA 105 grant, will set us up to fail. Delaware's 2008 CAA 105 
grant is about 15 percent below the level it was in 2004, and 
this reduction occurred at a time when State rules and SIPs 
were being developed to meet the 1997 ozone and fine 
particulate matter standards. This trend cannot continue. 
Development, and implementation and enforcement of new control 
programs take resources, and the cost of these resources is 
minimal compared to the value of the benefit of clean air.
    We have worked through the Environmental Council of States 
(ECOS) and other organizations to try to reverse these damaging 
budget cuts. In a June 2006 letter to EPA, ECOS included 
``State and Local Air Quality Management'' categorical grants 
among a limited number of ``Higher Priority Programs.''\25\ 
Despite this explicit recommendation, EPA's fiscal year budget 
included additional cuts to our air grant funding. These cuts 
follow several years of damaging budget cuts and occur at a 
time when the workload on states to meet tighter NAAQS has 
increased. Overall, State and Tribal Assistance Grants 
comprised nearly half of EPA's overall budget (94 percent in 
2004), but have received 94 and 100 percent of the cuts in 2005 
and 2006, respectively.\26\ Clearly, these cuts are 
disproportionate, and we believe should be reversed. States 
continue to implement the nation's core environmental programs. 
These cuts have hit home hard in Delaware: our air quality 
management grants from EPA have been cut 10 percent for 3 
years--every year since 2004 (FY 2007 grants has not yet been 
determined). These compounded cuts have caused an overall 15 
percent reduction in our Federal air quality management funding 
from EPA since 2004 (assuming 3 percent inflation).
---------------------------------------------------------------------------
    \25\Hallock, Stephanie, Environmental Council of States President 
and Director of Oregon DEQ, Letter to Lyons Gray, EPA Chief Financial 
Officer, June 20, 2006. http://www.ecos.org/files/2177--file--Letter--
to--Lyons--Gray--on--2008--STAG--Budget--Priorities.pdf
    \26\Environmental Council of States, ``The States' Proposal to 
Congress for EPA's 2008 STAG Budget (State and Tribal Assistance Grants 
Budget); An Alternative to US EPA's 2008 Budget proposal Supported by 
the States' Environmental Agencies'', February 2008.
---------------------------------------------------------------------------
    States in fact conduct most of the permitting, enforcement, 
inspections, monitoring and date collection required by Federal 
law. All of this work is performed through funding Congress 
provides to states through EPA's budget. Without adequate 
funding meeting existing NAAQS, much less revised NAAQS will be 
more difficult a concern voiced articulately by Michigan 
Governor Granholm; ``If you truly want Clean Air to be more 
than just a good idea you will restore the fiscal year funding 
cuts and fully invest in State air offices.''\27\
---------------------------------------------------------------------------
    \27\Granholm, Jennifer (Governor of Michigan), Letter to EPA 
Administrator Stephen Johnson, April 10, 2007 [restore the fiscal year 
funding cuts and invest in State air offices]
---------------------------------------------------------------------------
    Contrary to EPA's verbal commitments to continued 
partnership, EPA's recent rescission package included a shift 
from air quality to underground storage tanks funding. We 
recognize the need to provide funding to address this unfunded 
Federal mandate or increase inspection frequency as mandated by 
the Energy Policy Act, but we do not agree that this funding 
should be provided at the expense of another critical State 
program grant.


      4. air pollution costs and benefits: deja vu all over again


    Recent reports\28\ of the costs, technical challenges and 
complexity of meeting Clean Air Act attainment deadlines remind 
me of the observation of baseball great and philosopher, Yogi 
Berra, ``It's Deja Vu all over again.'' Regrettably, much of 
the analysis behind these claims has not been subject to the 
normal peer review process for publication in a scientific 
journal. More substantively, it fails entirely to consider the 
substantial benefits of emission reductions and examines only 
the projected costs. Finally, the complexity of the Clean Air 
Act is nothing new to those of us who live in this world of air 
pollution control. We are more sympathetic than most to the 
desire for simplification. The essential management metric for 
evaluating the performance of any proposal is the impact on air 
quality. And by this measure, we cannot support trading off 
paperwork simplification for dirtier air in the real world. We 
urge the Committee not to confuse ``harmonizing'' dates with 
merely ``kicking the can down the road'' on improving the air 
quality and achieving the sustainable health benefits known to 
be possible.
---------------------------------------------------------------------------
    \28\For example, NERA Economic Consulting for the American 
Petroleum Institute, Economic Impact of 8-Hour Ozone Attainment 
Deadlines on Philadelphia Region, September 2005 (released November 7, 
2005).
---------------------------------------------------------------------------
    These ``cost-only'' studies also have had a strong track 
record of overstating the eventual costs, whether it was the 
original acid rain studies or the more recent estimates of New 
Source Review (NSR) compliance. And on this matter we must also 
disagree: we do not agree that American engineers lack the 
skill and creativity to develop innovative technologies and 
methods for achieving air pollution reductions more cost-
effectively than merely extrapolating from current trends. We 
also stand ready to continue to pursue regulatory streamlining 
that reduces compliance costs (e.g., paperwork and permitting 
value stream mapping). In short, we are very bullish on 
American ingenuity, and have been richly rewarded for our 
confidence in the past.
    We are not insensitive to costs. We live in the communities 
where our neighbors' jobs are on the line. We cannot, however, 
ignore the substantial and subsequent savings derived from 
health-related costs from air pollution. So, the question is 
not whether there are costs, but rather ``who bears the 
costs?'' There are clear, though less quantifiable, costs to 
public health that result from failing to address air pollution 
problems. In conjunction with our State Division of Public 
Health, Delaware recently released a report on ``the Asthma 
Burden'',\29\ which showed a continuing increase in the number 
of asthma cases. We realize these asthma cases cannot be 
attributed solely to air pollution. However, this report 
provides local data supporting hundreds of other studies 
finding a rising tide of asthma that represents a terrible 
burden on individuals, families, communities, employers and the 
economy. So, when you hear calls to adjust current schedules 
for compliance, we urge you to consider the other side of the 
cost formula; the health benefits and subsequent savings 
derived from controlling air pollution promptly.
---------------------------------------------------------------------------
    \29\The Burden of Asthma in Delaware, Delaware Health & Social 
Services Division of Public Health, and Department of Natural Resources 
and Environmental Control, August 2005.
---------------------------------------------------------------------------
    We realize there are those who argue that health standards 
should be subject to strict cost-benefit analysis. We 
respectfully disagree with this view. Fortunately, this is not 
a question we need before us, because of both the science and 
the law. Over the years, every major, peer-reviewed study has 
found substantially greater benefits than costs from 
controlling air pollution, and found greater benefits from air 
pollution control than virtually any other environmental 
programs (e.g., oil spill cleanup). Among the most prominent 
studies was EPA's ``unfinished business report, release in 
1987, which found air pollution to be among the highest benefit 
program in EPA.\30\ A few years later, under President George 
H.W. Bush, EPA's Science Advisory Board reviewed this 
assessment more rigorously and found uncertainty in the 
estimates for many areas, except air pollution control.\31\ 
Criteria Air pollutants were ranked as a high risk by the 
unfinished Business report in the 1980's. In 1990 the Science 
Advisory Board report on Reducing Risk ``considered to be 
supported more firmly by the available data than were the 
rankings for the others.'' More recently, in 2003, the White 
House Office of Management and Budget, Office of Information 
and Regulatory Affairs, under John Graham, found air pollution 
control to be one of the clearest examples of an environmental 
program producing benefits outweighing costs.
---------------------------------------------------------------------------
    \30\EPA, Unfinished Business: A Comparative Assessment of 
Environmental Problems, 1987.
    \31\EPA, Reducing Risk: Setting Priorities and Strategies for 
Environmental Protection, SAB-EC--21, September 1990. and Stevens, 
William K., ``What Really Threatens the Environment'', New York Times, 
January 29, 1991.
---------------------------------------------------------------------------
    We fully realize there is a substantial cost to complying 
with the air pollution control requirements necessary to meet 
these new standards. We also realize there is a cost to not 
complying with these standards. These costs are the often 
ignored benefits of attaining healthful air quality. We realize 
the real benefits of controlling PM2.5 pollution is 
difficult to quantify and that estimates vary significantly 
from local epidemiological estimates on one end of the spectrum 
to the John Locke institute on the other end. We refer you to 
EPA's estimate of the health benefits, described in the recent 
implementation rule for fine particulates\32\, which, of course 
could not have been published without approval by the White 
House Office of Management and Budget's Office of Information 
and Regulatory Affairs. And the evidence of serious health 
problems from particulates continues to mount a recent survey 
of data from 90 urban areas.\33\ Again, we do not suggest cost 
be ignored, but strongly urge that the benefits be weighed as 
well.
---------------------------------------------------------------------------
    \32\Proposed Rule To Implement the Fine Particle National Ambient 
Air Quality Standards; Proposed Rule 70 Fed. Reg. (210) 65984-66067, 
November 1, 2005.
    \33\JAMA study Pope CA 3d, Burnett RT, Thun MJ, et al., ``Lung 
cancer, cardiopulmonary mortality, and long-term exposure to fine 
particulate air pollution,'' Journal of the American Medical 
Association (JAMA), 2002;287:1132-1141; Brook RD, Brook JR, Urch B, et 
al. Inhalation of fine particulate air pollution and ozone causes acute 
arterial vasoconstriction in healthy adults. Circulation. 
2002;105:1534-1536; and Ozone and Short-term Mortality in 95 U.S. Urban 
Communities Bell, M.L., et al. (2004). JAMA 292, p. 2372-2378.
---------------------------------------------------------------------------


   C. COLLECTIVE EFFORT BY STATES, EPA AND INDUSTRY HAS YIELDED REAL 
                        PROGRESS IN AIR QUALITY


    All states, in cooperation with the EPA and industry, have 
made significant strides in improving the quality of the air in 
recent decades. We have also advanced our collective 
understanding of what forms of control offer the most effective 
path to success, both from ease of implementation and from an 
economic view. We have managed to improve air quality by 
reducing emissions while enjoying increases in GDP and 
experiencing significant growth in vehicle miles traveled. 
Since 1970, we have cut emissions that cause soot, smog and 
acid rain by more than half, even while our nation's economy 
has grown by 187 percent--clear evidence that a growing economy 
and environmental results can, in fact, go hand-in-hand.\34\
---------------------------------------------------------------------------
    \34\EPA Administrator Stephen Johnson speech at Adirondack Council 
30th Anniversary, Essex, NY, August 4, 2005.
---------------------------------------------------------------------------
    The CAA established a clear path to ameliorate these 
problems, and it has worked. The Act provides the states with 
the mechanism to accomplish this task by identifying the 
culprit areas and identifying sources within the areas most 
likely to be causing the problem. Areas designated 
nonattainment have 3 years to develop State Implementation 
Plans (SIPS), the most recent of which was recently submitted 
to EPA to meet our June 2007 8-hour ozone SIP deadline. The 
preparation and adoption of past SIPs by each State containing 
a nonattainment area are grueling tasks, but with very limited 
exceptions, and only in extraordinary circumstances, have these 
SIPs not been submitted by the appointed date. A combination of 
detailed information on the amount of air pollution entering 
the state, plus information on the amount of pollution 
generated internally, constitute the cornerstone of the SIP 
preparation. Knowing how serious the pollution problem is, and 
what is causing the problem, states can perform complex 
modeling to determine how much reductions in emissions are 
necessary to result in an attainment condition. Determining the 
necessary control measures to achieve that reduction in 
emissions, whether locally or regionally, is the final major 
step in the process. When regional emissions are the major 
contributor, regional solutions must be developed. One example 
of this activity is the exemplary work accomplished by the 
Northeast Ozone Transport Commission (OTC), including all 
states from Maine to Virginia, working together for a common 
cause. Using the mechanisms of MOUs and Resolutions, members of 
the OTC work together to develop control measures that benefit 
wide areas and not strictly one State.
    It is EPA's responsibility and authority to require the 
preparation of SIPs as expeditiously as possible, and provide 
adequate support by developing guidance documents, in a timely 
manner, which states can use to move forward with their work on 
the SIPs. This mandate, as clearly defined in the Clean Air 
Act, forms the backbone for the important relationship between 
the Federal, State and local governments, and allows the entire 
process to move forward effectively and efficiently. For 
example, under the ozone and fine particle standard 
implementation rule, it is the clear responsibility for the 
Federal Government to promulgate rules on utilities and other 
large sources, mobile sources, ports, rail operations and 
others, that produce a universally positive impact on reducing 
emissions. Subsequent to that activity, and depending on how 
severe a nonattainment condition remains, State and local areas 
must fill in the gap with more localized measures that are not 
pre-empted by Federal authority.
    Thanks largely to the tools provided in the 1990 Clean Air 
Act Amendments, the number of days when air quality exceeded 
the ozone NAAQS has dropped significantly since 1990. On this 
hot day in July, which is typically a time of year when ozone 
pollution is at it worse, we need to be aware of the effect of 
the combination of high temperatures, abundant sunshine and 
extra ozone precursors (NOx and VOCs ) 
emitted from coal-and oil-fired power plants supplying power to 
the grid, which create a recipe for high ozone levels. The good 
news is that for several years, the average peak concentrations 
of ozone have declined based on data from Maryland, which is 
fairly typical for an eastern state. So, while today's air 
quality is a ``Code Orange'' (Unhealthy for Sensitive Groups) 
here in Washington and other eastern metropolitan areas, there 
is better chance of healthful air quality than 10 years ago, 
thanks to a variety of controls. For example, more than 170 
Selective Catalytic Reduction (SCR) NOx control 
units have been installed from 2001 to 2005, and more than 50 
percent of the coal fired capacity in five important states 
(IN, OH, KY, TN, and WV) have SCR. What is amazing is the 
current projection that many of us thought would be impossible 
only a few years ago: all of the major metropolitan areas in 
the OTC are now projected to meet 8-hour ozone standard--
Washington, DC, Boston, Philadelphia, Baltimore, and, 
hopefully, New York/ Connecticut.\35\
---------------------------------------------------------------------------
    \35\Aburn, George (Tad), Maryland Department of the Environment, 
Air Director, (Ozone Transport Commission Summary), Improving Air 
Quality Through Regional Action: Presentation to OTC Annual Meeting, 
June 2007. Available at http://www.otcair.org/
document.asp?Fview=meeting#
---------------------------------------------------------------------------
    This forum does not allow for a full description of the 
various controls that have contributed to this improvement in 
air quality, but I would like to list just some of the measures 
Delaware has adopted or are in the process of adopting, in 
coordination with other OTC states, most of which are not 
specifically identified in the CAA:

    1. Architectural and Industrial Maintenance (AIM) Coatings: 
reduced VOC content of numerous coatings beyond Federal 
requirements.
    2. Mobile Equipment: established coating equipment 
standards to reduce VOc emissions.
    3. Gas Cans: required gas cans meet certain performance and 
permeability standards to reduce VOc emissions.
    4. Degreasing: reduced degreaser vapor pressure and 
instated equipment standards and work practices to reduce 
VOc emissions.
    5. Control of NOx Emissions from Large Boilers: 
reduced NOx emissions from boilers larger than 100 
mmbtu/hr that weren't well controlled through other programs.
    6. Anti-Idling: reduced VOc, NOx, 
SOx, and DPM emissions from heavy duty vehicles by 
reducing allowable idling time.
    7. Open Burning: instated strict open burning ban during 
the ozone season.
    8. Minor NSR: reduced criteria pollutant and air toxic 
emissions by subjecting new minor stationary sources to top-
down BACT requirements.
    9. OTC NOX Budget Program: participated in a regional 
NOx Cap and Trade program to reduce NOx 
emissions from power plants (program later replaced by the 
NOx SIP Call).
    10. Adopted several regulations to reinforce EPA-adopted 
heavy-duty diesel rules.
    11. Stationary Generator Regulation: will reduce criteria 
pollutant and carbon dioxide emissions from stationary 
generators.
    12. Peaking Units: will reduce peak ozone day 
NOx emissions from combustion turbines used as 
electrical peaking units.
    13. Refinery Boilers: will reduce NOx emissions 
from large refinery boilers.
    14. Non-Refinery Boilers: will reduce NOx 
emissions from large non-refinery boilers.
    15. Utilities Multi-P: will reduce NOx, 
SOx, and Hg emissions from Delaware's coal and 
residual oil fired electric utilities.
    16. Lightering: will reduce VOc emissions from 
crude oil lightering operations in the Delaware Bay.

    The point is that there is no ``silver bullet'' solution, 
but a variety of individual actions that yield success. We 
weigh each of these control measures carefully to seek the most 
cost effective measures to meet our air quality goals in a way 
that makes sense for our state. This is where the various cost-
effectiveness issues are appropriately considered, not in 
setting the NAAQS.
    D. More Work is Needed to Meet Air Quality Goals
    Notwithstanding this progress, largely through State 
efforts, air pollution control cries out for a complementary 
strong Federal role over interState activity. The primary EPA 
response to this need for a stronger Federal role is the Clean 
Air InterState Rule (CAIR)\36\, which was an important step 
toward addressing the age-old problem long known to those of us 
in the dismal science of air pollution: the wind obeys no State 
boundaries.
---------------------------------------------------------------------------
    \36\70 Fed. Reg. 25162 (May 12, 2005); 40 CFR 51.
---------------------------------------------------------------------------
    We have worked with other Ozone Transport Commission (OTC) 
states to evaluate CAIR and found it does not adequately reduce 
emissions to levels needed to reach attainment of lower ozone 
and PM standards in the northeast and mid-Atlantic States. EPA 
acknowledged that there would be ``residual'' non-attainment 
areas after full implementation of CAIR, but detailed modeling 
suggests strongly that the difference between EPA's coarse 
scale modeling and that which was done by the OTC shows there 
was a larger gap to fill. Relative to the current ozone and 
fine particulate matter standards we believe we have bridged 
this gap left by the CAIR rule. However, a gap between the 
where we are now, and the new ozone and fine particulate matter 
standards still exists. The kinds of improvements on the 
original CAIR framework include nonroad emission control and 
fuel requirements, and the tightening of the existing controls 
on stationary sources. Another example of measures directed to 
improve upon the CAIR framework are being accomplished under 
the auspices of other regional organizations in the Midwest and 
the Southeast.
    EPA's adoption of the CAIR rule is clearly a universally 
effective first step, but it only a first step. While EPA has 
taken an important first step to address transport, we are 
still concerned that the agency has not done enough, and more 
must be done to address these new, more stringent health based 
standards. Additionally, we are troubled by EPA effort to 
weaken an important regulatory tool under Section 126 of the 
Clean Air Act for addressing interState transport, and actions 
such as preemption of State authority on small engine controls, 
accomplished by legislated activity and prevention of State's 
ability to adopt mobile source rules identical to those of 
California, severely hamper a state's ability to do its job. 
Very simply put, if a State is able to pass muster through its 
normal adoption process, which is both very open and rigorous, 
there is no reason to prevent a State from doing so.
    Delaware has been working for more than 30 years to reduce 
ozone concentrations. We have controlled all large sources of 
emissions that contribute to the ozone problem far beyond the 
minimum Federal requirements. We have controlled all our major 
VOc and NOx sources with reasonably 
available control technology (RACT). We have gone beyond RACT, 
and further controlled Delaware-unique sources like Lightering; 
sources that are large on a regional and national basis like 
consumer products and paints; and sources where the EPA did not 
go far enough, like regulations covering power plants.
    We have done a lot to reduce ozone concentrations, and it 
shows in our air quality. Delaware has attained compliance with 
the previous 1-hour ozone NAAQS, and have recently demonstrated 
that we will attain compliance with the current 8-hour NAAQS by 
2010. We know what it takes to reduce ozone concentrations, and 
we will do more, however we also know that we, ourselves, 
cannot reduce ozone concentrations much more. The 
implementation process associated with any new, tighter ozone 
NAAQS must recognize this, and a key to that recognition is how 
non-attainment area boundaries are established. It is this area 
that we need EPA and legislative support.
    In the past the EPA has concentrated on Metropolitan 
Statistical Area or Consolidated Metropolitan Statistical Area 
(C/MSA) associations as the presumptive NAAQS non-attainment 
area boundary. Delaware believes that continuing this practice 
will not be successful under a tighter ozone NAAQS. Reasons for 
this belief include:

     The C/MSA approach is based on census data rather than 
airshed analysis data. Census data, in comparison to airshed 
analysis data, represents a poor surrogate for determining non-
attainment boundaries.
     Detailed regional airshed studies have been completed, 
such as the Regional Oxidant Modeling (ROM) project covering 
most of the Ozone Transport Region (OTR) states, the Ozone 
Transport Assessment Group (OTAG) project and the NOX SIP Call 
analysis covering most of the Eastern U.S. These studies have 
demonstrated that the ozone problem is transport-driven and 
regional in scope, rather than localized or confined to 
relatively small C/MSA's. These studies have further 
demonstrated that individual C/MSA's have minimal control over 
their ability to demonstrate or achieve attainment. Delaware 
believes that this conclusion should become the cornerstone of 
good air quality planning and policy, starting with the crucial 
boundary determinations.
     In many areas, including Delaware, the air coming into a 
county is often with ozone concentration greater than the 
current 85 ppb ozone NAAQS, so under the C/MSA approach such an 
area may be required to solve a problem that is not possible to 
solve under its own authority. This will likely be more of a 
factor under a tighter ozone NAAQS. Should the EPA continue to 
fail to address transport completely and in a timely manner, 
this could lead to a need to install ineffective and costly 
controls, sanctions under the CAA, and likely delay protecting 
public health in those areas.
     The C/MSA-based approach has had, at best, minimal 
success toward achieving attainment of the prior 1-hour and the 
current 8-hour NAAQS. From Delaware's experience, most of the 
success on the east coast to date is attributable to national 
measures taken by the EPA, and regional measures developed and 
adopted by the Ozone Transport Commission (OTC) member states. 
Given that 8-hour non-attainment under any new, tighter NAAQS 
would be more regional in nature than the current 8-hour non-
attainment, a C/MSA-based approach is not appropriate.

    Delaware believes that the EPA must designate non-
attainment area boundaries consistent with the regional nature 
of the problem. Delaware believes that one way of doing this is 
by designating as a single non-attainment area, within an area 
that is as regional as possible, all counties that are ``non-
attainment'' with the 8-hour ozone NAAQS. Practically speaking, 
this recommendation would likely establish a single non-
attainment area that encompasses all counties that are 
monitoring non-attainment, or that are part of a non-attainment 
CMSA, within the NOx SIP Call domain.
    Delaware believes that a regional approach would:

     Include in the non-attainment area all or most of the 
counties necessary to solve this regional problem. It will give 
all involved a vested interest in solving this regional 
problem. It will also foster cooperative development and 
implementation of control strategies that will best serve the 
designated areas.
     Remove political barriers, and level the playing field by 
setting the consistent, proven baseline control requirements of 
Subpart 2 of Title I, Part D of the CAA within the region, 
which include New Source Review (NSR), vehicle Inspection and 
Maintenance, and Reasonably Available Control Technology (RACT) 
requirements.
     Compliment national and regional rules that address 
regional transport.
     Recognize that ozone non-attainment is a ``regional 
problem'' and not a ``local problem with a transport 
component,'' and that it is necessary to go beyond the C/MSA 
approach that has largely failed for nearly three decades under 
the 1-hour ozone NAAQS.
     Simplify and provide equity to the process of 
implementing the 8-hour NAAQS. In short, demonstrate that we 
have learned that a continuation of the existing process does 
not work.

    Delaware fully acknowledges that the progress we have made 
to date in the control of ozone has only been possible because 
of the collaborative process between EPA and the states. EPA's 
continuing efforts to establish stringent Federal mobile source 
emission standards, develop improved modeling and other 
analytical techniques, and develop policies that facilitate the 
development and implementation of large-scale attainment 
strategies are greatly appreciated. An intensified level of 
effort will be imperative to our continued success. I hope that 
EPA will be open to policy changes that will support the 
technically sound and equitable ozone attainment process being 
recommended here by Delaware.
    In addition to continued near-term implementation of these 
measures, a whole new set of air pollution controls will likely 
required in the long term. Beyond using ``end-of the pipe'' 
controls, and ``command and control systems,'' we know that 
fundamentally different approaches will be needed if we are to 
meet our long-term air quality goals. For example, much more 
investment into energy efficiency is needed. Also, a much 
stronger and serious coordination on land use goals to help 
prevent suburban sprawl, which leaves generations of citizens 
with no realistic option but the use of their private 
automobiles for transportation. After decades of unbridled 
sprawl, it is virtually impossible to superimpose a mass-
transit system on top of land-use patterns designed for cars, 
much less encourage more walkable and livable communities among 
car-friendly development patterns. I was proud to attend the 
recent celebration of the completion of the Wilmington and 
Western Railroad in Hockessin, Delaware, and hear our home 
State Senator Tom Carper speak. He used the opportunity to make 
the point that trains are not merely part of the past, but will 
be part of our future as well; and that we must meet the 
challenge of reducing our oil dependency, which results in 
sending money overseas to a part of the world where people want 
to harm us. My 10-year old son, said, ``Dad, he sounds like 
you.'' I told him, ``No, Nicolai; maybe I sound like him.'' I 
greatly appreciate your leadership on these issues, Mr. 
Chairman.
    Thank you for the opportunity to present these views. I 
would be happy to answer your questions.

    Senator Carper. Thank you. Thank you for an excellent 
statement.
    Now we will hear from Vickie Patton, who is Deputy General 
Counsel of Environmental Defense. She was introduced to me as 
one of five people in the United States who actually 
understands the Clean Air Act. I suspect one or two more who 
understand it are in this room. But that is a high 
commendation, and I am glad somebody does. I am glad that I 
have you around to explain some of it to us from time to time. 
Thank you for being here today. You are recognized for 5 
minutes.

      STATEMENT OF VICKIE PATTON, DEPUTY GENERAL COUNSEL, 
                     ENVIRONMENTAL DEFENSE

    Ms. Patton. Thank you very much, Senator Carper, Senator 
Boxer, Senator Voinovich, for the opportunity to be here today.
    I have spent about 16 years of my career working on clean 
air issues. First, in the Environmental Protection Agency's 
Office of General Counsel, where I served in the first Bush 
administration and then in the Clinton administration as a 
staff attorney, and then working at Environmental Defense, a 
non-partisan, non-profit science-based environmental advocacy 
organization.
    I would like to just build on some of the comments that you 
all have made. Several of you have commented on the 
recommendations of EPA's Clean Air Scientific Advisory 
Committee. There was, in fact, something remarkable happened on 
October 4th of 2006, when that Clean Air Scientific Advisory 
Committee gave its recommendations to the Administrator of EPA.
    There are several aspects of this letter that are quite 
striking. The first is the force and the clarity of the 
recommendations. What they said to the Administrator of EPA is 
that there is no scientific justification for retaining the 
current health standard, no scientific justification. Those are 
very strong words from the Nation's leading scientists.
    Second, they said that the current standard should be 
substantially reduced. Not only did they say that it should be 
substantially reduced, but they said, based on this body of 
science before us, the appropriate range of protection is 
between 06 and .07.
    Then they went on to say that really, not only are these 
the views of the individual members of the CASAC, but these are 
the views of this 23 member body that includes the Nation's 
leading epidemiologists, toxicologists, doctors. Not only does 
it reflect their views, but what it reflected is really the 
culmination of one of the most powerful processes we have in 
our system of government for integrating science into public 
policy. And that is this process under the Clean Air Act 
whereby we look at this amalgam of really tremendous scientific 
evidence and integrate it into this really important system of 
laws to protect human health and the environment.
    What they said is that the nature of the evidence here is 
really compelling, because it is not just that we have multi-
city and single city epidemiological studies, we do, and it is 
not just that we have human exposure studies where citizens, 
oftentimes healthy college students, voluntarily submit 
themselves to exposures in chambers where scientists look at 
how they respond to different levels of ozone. They measure how 
their body reacts. We do.
    But we also have toxicological evidence, epidemiological 
evidence, human exposure studies, toxicological evidence, this 
really broad nature of evidence that tells us that we need to 
do better to protect human health. But we also have compelling 
evidence about the range of effects that are observed. We know 
that there are increased school absences on high ozone days. We 
know that there are increased emergency room visits. We know 
that there is increased use of medication as Americans struggle 
to try to manage constricted chest symptoms on an unhealthy 
ozone day. And we know that there is premature death because of 
the research of people like Professor Bell, who is with us 
today.
    So there are a range of different pieces of evidence 
indicating that there are a broad suite of effects across the 
population. And indeed, that population reaches quite broadly. 
The CASAC letter said that it includes children, because their 
lungs are developing. The CASAC letter said that the population 
at risk includes people who are active. If you are, for 
example, a United States Senator who enjoys running half 
marathons, you are at risk on high ozone days. If you are above 
the age of 65, you are at risk on high ozone days. And if you 
are an American that suffers from any kind of respiratory 
ailment, you are susceptible to serious risk on high ozone 
days.
    So it was this body of evidence that these tremendous 
respected scientists reviewed in making their recommendation to 
EPA. I would just say quickly that is in contrast with what 
happened here in this rulemaking proceeding in a Washington 
minute, when in the final stages of the rulemaking process, on 
June 20th, the day that EPA was entrusted with making this 
decision, there was a fax sent over from the Office of 
Management and Budget that altered the strength of this body of 
scientific evidence and was incorporated into this rule. And it 
suggests that the Administrator is under tremendous headwinds 
in making a decision that is truly requisite to protect public 
health based on an adequate margin of safety.
    Thank you.
    [The prepared statement of Ms. Patton follows:]

          Statement of Vickie Patton, Deputy General Counsel, 
                         Environmental Defense

    Thank you very much, Mr. Chairman and members of the 
subcommittee, for the opportunity to testify about the U.S. 
Environmental Protection Agency's proposed revisions to the 
nation's health-based ambient air quality standard for ground-
level ozone.
    My name is Vickie Patton. I am the Deputy General Counsel 
at Environmental Defense, a national non-partisan science-based 
environmental organization, where I manage national and 
regional air quality programs. I previously served as an 
attorney in the U.S. Environmental Protection Agency's Office 
of General Counsel under the George H.W. Bush and William 
Clinton administrations where I worked on a variety of Clean 
Air Act matters.


             BIPARTISAN SUPPORT, EXTRAORDINARY ACHIEVEMENTS


    The Clean Air Act is one of the nation's single most 
effective environmental statutes. Since its adoption in 1970, 
it has been a triumph of bipartisanship and healthier air.
    Senator John Sherman Cooper, a Republican from Kentucky, 
captured the spirit of bipartisan cooperation that led to the 
U.S. Senate's historic--and unanimous--adoption of the Clean 
Air Act in 1970:

    We worked together. We disagreed. We worried about many 
provisions of the bill. At last, however, we joined unanimously 
in recommending and sponsoring this bill,believing that our 
approach was one that could make progress toward the solution 
of the problem of air pollution.

    Senator Cooper was wise in his predictions.
    The unanimous will of the U.S. Senate has secured healthier 
air for millions of Americans. The 1970 Clean Air Act embodies 
the great promise of the American system of law-making in 
practice. People of good will translated studious research and 
bold aspirations to writing, and changed history forever.
    Through its judicious words, the 1970 Senate saved numerous 
lives and prevented countless illnesses. The bipartisan 
founders of the Clean Air Act enabled millions of children to 
realize their potential unencumbered by neurotoxic lead 
pollution, and for children across the land to share their 
precious childhood dreams with grandparents whose lives have 
been prolonged by reductions in air pollution.


                  THE CLEAN AIR ACT'S TWO-STEP PROCESS


    Congress in 1970 established an effective process in the 
fight against air pollution. Congress commanded that the 
national ambient air quality standards be based on public 
health considerations alone. Then, economics are thoroughly 
considered in devising the air pollution control strategies to 
achieve the health standards. So the law is sharply focused in 
ensuring the nation's health-standards are established solely 
on the basis of public health, and this same law is broadly 
encompassing in considering economics when Federal, State and 
local officials determine how to cost-effectively achieve the 
health standards.
PUBLIC HEALTH
    Some in industry have long protested this carefully 
calibrated dual system. Some have argued that this two-step 
inquiry should be conflated rather than distinct, that the 
nation's health standards should be based on economics and then 
economics should likewise infuse the policies to achieve the 
standards. This argument has been thoroughly presented--and 
resoundingly rejected--over the past 37 years.
    This question was answered by a unanimous Senate in 1970. 
The language crafted by Congress in 1970 is straight forward; 
its meaning is plain. The Administrator is instructed to 
establish standards that ``are requisite to protect the public 
health'' with ``an adequate margin of safety.''\1\ The statute 
thus provides for the health-based standards to be based 
exclusively on public health and to be precautionary in 
safeguarding against adverse health effects.
---------------------------------------------------------------------------
    \1\Clean Air Act 109(b)(1), 42 U.S.C.7409(b)(1).
---------------------------------------------------------------------------
    This question has also been consistently answered by the 
decisions of prior EPA Administrators and numerous judicial 
decisions of the Federal court of appeals in Washington, DC.\2\
---------------------------------------------------------------------------
    \2\See Lead Industries Assn., Inc. v. EPA, 647 F.2d 1130 (D.C. Cir. 
1980); American Lung Assn. v. EPA, 134 F.3d 388 (1998); NRDC v. 
Administrator, EPA, 902 F.2d 962 (D.C. Cir. 1990), vacated in part on 
other grounds, NRDC v. EPA, 921 F.2d 326 (D.C. Cir. 1991); American 
Petroleum Institute v. Costle, 665 F.2d 1176 (D.C. Cir. 1981).
---------------------------------------------------------------------------
    Ultimately, this question was emphatically answered by a 
unanimous Supreme Court. Justice Antonin Scalia, writing for 
the high Court, explained that the text of the Clean Air Act is 
clear notwithstanding the copious arguments of industry 
lawyers: ``Were it not for the hundreds of pages of briefing 
respondents have submitted on the issue, one would have thought 
it fairly clear that this text does not permit the EPA to 
consider costs in setting the standards.''\3\
---------------------------------------------------------------------------
    \3\Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 465 
(2001).
---------------------------------------------------------------------------
    Justice Scalia then set forth the inquiry the Administrator 
must make in establishing the nation's health-based air quality 
standards on the basis of science:

    The EPA, `based on' the information about health effects 
contained in the technical `criteria'documents compiled under 
108(a)(2), 42 U.S.C. 7408(a)(2), is to identify the maximum 
airborne concentration of a pollutant that the public health 
can tolerate, decrease the concentration to provide an 
`adequate' margin of safety, and set the standard at that 
level. Nowhere are the costs of achieving such a standard made 
part of that initial calculation.\4\
---------------------------------------------------------------------------
    \4\Id. (emphasis added).
---------------------------------------------------------------------------
    Accordingly, in setting the health-based air quality 
standard for ozone, Administrator Johnson must be steadfast--
and unwavering--in basing his decision exclusively on what is 
requisite to protect the public health with an adequate margin 
of safety.
ECONOMICS
    After the standards are established, the Clean Air Act 
provides a prominent role for consideration of costs in 
national, State and local decisions about the pollution control 
strategies deployed to achieve the health standards. EPA is not 
only empowered to consider costs in setting emission limits for 
cars, SUVs, trucks, buses, construction equipment, lawnmowers, 
aircraft, fuels, power plants, and industrial facilities but it 
is expressly required by law to do so.\5\
---------------------------------------------------------------------------
    \5\42 U.S.C. 7521(a), 7547(a), 7545, 7541, and 7411(a).
---------------------------------------------------------------------------
    States and local governments, in turn, are distinctly 
responsible for designing the air quality management plans for 
their communities and entrusted with determining how the 
cleanup burden is allocated. Justice Scalia succinctly 
explained that ``[i]t is to the States that the Act assigns 
initial and primary responsibility for deciding what emissions 
reductions will be required from which sources.''\6\
---------------------------------------------------------------------------
    \6\Whitman v. American Trucking Assns., Inc., 531 U.S. at 470.
---------------------------------------------------------------------------
THE RESULTS
    In practice, the two-step process forged in 1970 has been 
integral to the enduring success of the Clean Air Act. By any 
measure, the achievements under the national ambient air 
quality standards have been profound.
Emissions Reductions and Economic Growth
    Under this two-step process, America has dramatically 
reduced the emissions that contribute to the national ambient 
air quality standards while the economy has grown.

     Lead emissions have been slashed some 98 percent since 
1970.
     Volatile organic compounds, which form ground-level ozone 
and are often comprised of toxic contaminants, have been 
reduced by over 50 percent since 1970.
     Sulfur dioxide, which transforms into deleterious 
particulate pollution, has also been cut in half since 1970.
     Nitrogen oxides, which are implicated in the formation of 
ground-level ozone and particulate pollution, have been lowered 
nearly one quarter since 1970.

    During the period that these remarkable emissions 
reductions have occurred, gross domestic product has risen some 
174 percent.\7\
---------------------------------------------------------------------------
    \7\Department of Commerce, Gross Domestic Product (2005).

    [GRAPHIC] [TIFF OMITTED] T1975.042
    

Restoring Healthy Air in Communities and Neighborhoods
    Similarly, communities with pollution concentrations above 
the national ambient air quality standards have reduced 
pollution, saved lives, prevented respiratory diseases and made 
enormous strides in restoring healthy air.

     Carbon Monoxide. In 1971, when the carbon monoxide health 
standards were established, 53 out of 58 air quality monitors 
recorded violations. In 2000, only four monitors in the country 
exceeded the standards.\8\ EPA estimates that the average 
ambient carbon monoxide concentration in 2001 was 62 percent 
lower than it was in 1982. The 2001 carbon monoxide levels were 
the lowest recorded in 20 years.\9\ Reductions in carbon 
monoxide pollution have yielded dramatic returns for health and 
quality of life by preventing thousands of deaths. The Centers 
for Disease Control and Prevention estimate that approximately 
11,700 deaths from accidental, acute exposures to carbon 
monoxide were avoided between 1968 and 1998 as a result of the 
strict vehicle emissions standards for carbon monoxide.\10\
---------------------------------------------------------------------------
    \8\National Research Council, Committee on Carbon Monoxide Episodes 
in Meteorological and Topographical Problem Areas. Managing Carbon 
Monoxide Pollution in Meteorological and Topographical Problem Areas, 
National Academies Press (2003).
    \9\U.S. EPA, ``National Air Quality; 2001 Status and Trends'' 
(Sept. 2004).
    \10\Mott JA, Wolfe MI, Alverson CJ, Macdonald SC, Bailey CR, Ball 
LB, Moorman JE, Somers JH, Mannino DM, Redd SC. ``National Vehicle 
Emissions Policies and Practices and Declining US Carbon Monoxide-
Related Mortality,'' JAMA, 299 (2002) 988-995.
---------------------------------------------------------------------------
     Ozone. In 2004, EPA identified some 126 communities 
across the Nation with air pollution concentrations above the 
ozone health standard adopted in 1997. Today, based on 
preliminary air quality data, EPA estimates that all but 35 of 
those areas have ozone concentrations that meet that health 
standard. Since 1980, peak ozone concentrations monitored at 
some 275 sites across the country have declined by more than 20 
percent.\11\These pollution reductions have prevented hospital 
admissions and school absences for respiratory illnesses, and 
have saved lives.
---------------------------------------------------------------------------
    \11\U.S. EPA, The Ozone Report, Measuring Progress through 2003, 
(Nov. 17, 2005).

[GRAPHIC] [TIFF OMITTED] T1975.043

    Health Benefits and Costs
    The health benefits secured--each year--due in predominant 
measure to the national ambient air quality standards under the 
Clean Air Act are extensive.

     In the late 1970's, nearly every child in America--88.2 
percent--had blood lead levels higher than the level of concern 
established by the Centers for Disease Control and Prevention. 
By 2000, after the full phase-out of leaded gasoline, 2.2 
percent of American children had blood lead levels exceeding 
the level of concern.\12\
---------------------------------------------------------------------------
    \12\Centers for Disease Control and Prevention, Executive Summary, 
Third National Report on Human Exposure to Environmental Chemicals 
(2005).
---------------------------------------------------------------------------
     Each year, the Clean Air Act prevents well over 200,000 
premature deaths, more than 650,000 cases of chronic 
bronchitis, over 200,000 hospital admissions, more than 200 
million respiratory ailments, and over 22 million lost work 
days.\13\
---------------------------------------------------------------------------
    \13\U.S. EPA, ``The Benefits and Costs of the Clean Air Act, 1970 
to 1990,'' (Oct. 1997)
---------------------------------------------------------------------------
     The monetary benefits to society have outweighed the 
costs by a factor of more than 40:1.\14\
---------------------------------------------------------------------------
    \14\Id.

Technological and Economic Innovation
    Technological innovation has made these far-reaching gains 
in reducing air pollution and protecting public health possible 
at far less cost than originally anticipated.
     Carbon monoxide is caused by incomplete combustion of 
gasoline in passenger cars and trucks. Pollution levels were 
reduced through improved catalytic converters, fuel injection 
systems and oxygenated fuels.
     In the 1970's, the automakers warned of grave economic 
consequences if they were required to place catalytic 
converters in new cars. Today, every car manufactured is 
equipped with a catalytic control device to reduce tailpipe 
emissions.
     In 2002, DuPont developed paints and industrial coatings 
for Daimler Chrysler's coating operation, such as the ``Super 
High Solid'' clear coat, that emit few, if any, ozone-forming 
volatile organic compounds.
     Selective catalytic reduction technologies, deemed 
infeasible in the early 1990's, are now broadly achieving 90 
percent NOx removal from existing coal plants in the East 
thereby lowering ozone and particulate pollution.
     Diesel desulfurization and fluid catalyst cracking 
technologies have enabled ultra low sulfur diesel fuels and 
dramatically reduced emissions of particulates, NOx and sulfur 
dioxide.
     Scrubber technology to remove sulfur dioxide from power 
plant stack gases is now deployed at a fraction of the costs 
predicted during the debate over the 1990 Clean Air Act 
amendments, and wet scrubbers can now achieve 98 percent sulfur 
dioxide control.
     In 2001, EPA established rigorous particulate pollution 
emission standards for new diesel trucks and buses, based on 
the use of catalyzed diesel particulate filters, after a public 
rulemaking process in which engine manufactures questioned the 
timing and stringency. Today, new diesel truck and bus engines 
rolling off the assembly line have dramatically lower 
particulate pollution.
     In 1994, automobile manufacturers estimated the cost of 
advanced low emission vehicles would be in excess of 
$1,500.\15\ One year later, Honda placed a Civic subcompact 
model on the market that emitted less than half of what was 
permitted under California law, at a cost of $100.\16\
---------------------------------------------------------------------------
    \15\Sierra Research, Inc., ``The Cost Effectiveness of Further 
Regulating Mobile Source Emissions,'' Feb. 28, 1994.
    \16\he New York Times, ``Honda Meets a Strict Emission Rule,'' 
August 30, 1995.

    EPA estimates that the suite of innovative technologies, 
processes and products that have been developed to meet the 
nation's air quality standards and other Clean Air Act programs 
have not only delivered extraordinary results but that the 
nation's pollution control industry has thrived, generating 
over $200 billion in revenues and supporting more than 3 
million jobs.\17\
---------------------------------------------------------------------------
    \17\Prepared for EPA by ICF Consulting, The Clean Air Act 
Amendments: Spurring Innovation and Growth While Cleaning the Air, 
(Oct. 27, 2005).
---------------------------------------------------------------------------
Telling the Public Whether the Air is Safe to Breathe
    The two-step system of air quality management adopted in 
1970 ensures that the nation's health standards will be based, 
exclusively, on health science. This system of air quality 
management puts the nation's very best scientists at the 
forefront while provisionally relegating the economists, 
lobbyists and lawyers to the backburner. Most importantly, 
however, this system of air quality management provides 
American families with a transparent and unmitigated science-
grounded benchmark for determining whether the air in their 
neighborhood or community is safe to breathe. And it leaves 
ample room for the economists and the lawyers and the lobbyists 
to argue subsequently, in a variety of forums, to what extent 
society should invest in restoring healthy air.
    In sum, the Clean Air Act has been vigorously tested over 
the past 37 years and it has delivered robust results. Central 
to its success is the two-part inquiry in which the 
consideration of costs is not commingled with the establishment 
of the national ambient air quality standards on the basis of 
public health. As Justice Scalia explained for a unanimous 
Supreme Court, conflating costs with public health in setting 
the standards may altogether eliminate protection against 
adverse health effects: the consideration of costs ``is both so 
indirectly related to public health and so full of potential 
for canceling the conclusions drawn from direct health 
effects.''\18\
---------------------------------------------------------------------------
    \18\Whitman v. American Trucking Assns., Inc., 531 U.S. at 469.
---------------------------------------------------------------------------


                     EPA'S PROPOSED OZONE DECISION


    The Administrator, in making his final decision on the 
ozone NAAQS due March 12, 2008, must establish standards that 
``are requisite to protect the public health'' with ``an 
adequate margin of safety.''\19\ There are, however, grounds 
for concern about the direction EPA's final decision will tack 
notwithstanding this plain statutory mandate and the nation's 
time tested air quality management system.
---------------------------------------------------------------------------
    \19\Clean Air Act 109(b)(1), 42 U.S.C.7409(b)(1).
---------------------------------------------------------------------------
    Retaining the Current Health Standard is Not Supported by 
Science and Would Continue to Put Large Numbers of Individuals 
at Risk
    The EPA Clean Air Scientific Advisory Committee unanimously 
and unambiguously advised EPA Administrator Stephen Johnson: 
``(1) There is no scientific justification for retaining the 
current primary 8-hr NAAQS of 0.08 parts per million (ppm), and 
(2) The primary 8-hr NAAQS needs to be substantially reduced to 
protect human health, particularly in sensitive 
subpopulations.''\20\ The Committee also unanimously agreed 
upon a recommended range: ``Therefore, the CASAC unanimously 
recommends a range of 0.060 to 0.070 ppm for the primary ozone 
NAAQS.''\21\ These recommendations leave no room for 
misinterpretation.
---------------------------------------------------------------------------
    \20\Dr. Rogene Henderson, Chair, CASAC, to Stephen Johnson, EPA 
Administrator, ``Clean Air Scientific Advisory Committee's (CASAC) Peer 
Review of the Agency's 2d Draft Ozone Staff Paper,'' (Oct. 24, 2006).
    \21\Id. at 2 (italics in original).
---------------------------------------------------------------------------
    But EPA has nevertheless expressly held open the prospect 
of retaining the current health standard for ozone unchanged, 
and EPA explicitly seeks public comment on such an outcome. The 
CASAC squarely addressed this matter and pointedly found that 
``there is no longer significant scientific uncertainty 
regarding CASAC's conclusion that the current 8-hr primary 
NAAQS must be lowered'' and ``[r]etaining this standard would 
continue to put large numbers of individuals at risk'' --
    [T]here is no longer significant scientific uncertainty 
regarding the CASAC's conclusion that the current 8-hr primary 
NAAQS must be lowered. A large body of data clearly 
demonstrates adverse human health effects at the current level 
of the 8-hr primary ozone standard. Retaining this standard 
would continue to put large numbers of individuals at risk for 
respiratory effects and/or significant impact on quality of 
life including asthma exacerbations, emergency room visits, 
hospital admissions and mortality.\2\
---------------------------------------------------------------------------
    \22\Id. at 5 (italics in original).
---------------------------------------------------------------------------
    In sum, CASAC unequivocally found that there is no basis in 
public health considerations for EPA to retain the current 
standard. EPA nevertheless persists in considering this flawed 
option.
    OMB Instructed EPA to Delete References to Ozone Mortality 
Benefits in Important Recent Rulemakings Under the Clean Air 
Act
    The scientific evidence of mortality benefits is one of the 
significant scientific developments since EPA's 1997 decision 
to lower the ozone health standard. The CASAC expressly pointed 
to the studies on ozone mortality effects as part of the body 
of evidence documenting adverse health effects below the 
current health standard. The CASAC found:
     ``Several new single-city studies and large multi-city 
studies designed specifically to examine the effects of ozone 
and other pollutants on both morbidity and mortality have 
provided more evidence for adverse health effects at 
concentrations lower than the current standard.''\23\
---------------------------------------------------------------------------
    \23\Id. at 3 (citations omitted).
---------------------------------------------------------------------------
     ``[A]dverse health effects due to low-concentration 
exposure to ambient ozone (that is, below the current primary 
8-hour NAAQS) found in the broad range of epidemiologic and 
controlled exposure studies cited above include . . . an 
increase in mortality (non-accidental, cardiorespiratory 
deaths) reported at exposure levels well below the current 
standard.''\24\
---------------------------------------------------------------------------
    \24\Id. at 4.
---------------------------------------------------------------------------
     ``Retaining this [the current] standard would continue to 
put large numbers of individuals at risk for . . . 
mortality.''\25\
---------------------------------------------------------------------------
    \25\Id. at 5.

    CASAC's series of statements in its October 24, 2006 
correspondence to the Administrator placed CASAC's full force, 
unanimously, on the evidence of mortality and other health 
effects in compelling EPA to adopt a lower standard to protect 
public health with an adequate margin of safety. But, only a 
few moths thereafter, OMB was moving in the opposite direction, 
instructing EPA staff to remove ozone mortality benefits from 
major rulemaking initiatives involving reductions in ozone-
forming pollution.
    Appendix A attached contains three emails between EPA staff 
and OMB in the context of a draft rulemaking proposal to lower 
ozone-forming pollutants and other contaminants from diesel 
locomotives and commercial ships.\26\ The first email, dated 
January 17, 2007, from EPA staff to Mr. David Rostker at OMB, 
transmits the discussion of ozone mortality that EPA ``plan[s] 
to include in the RIA for the proposed Locomotive and Marine 
Engine Rule.''\27\ The EPA staff member further explains that 
``[m]any Agency staff have contributed to this version, 
including representatives from OAQPS, OPEI, ORD, and 
OPAR.''\28\ On February 22, 2007, EPA staff sends a follow up 
note to Mr. Rostker at OMB describing the current status of 
discussions with OMB: ``As best we know, the only open issues/
comments are ozone mortality and your question about idle 
reduction.''\29\ The very next day, EPA staff sends an email to 
Mr. Rostker, of OMB, now reporting that the discussion of ozone 
mortality benefits will be removed from the both the preamble 
to the rule and the draft Regulatory Impact Analysis: ``The 
text below was written to address the fact that we aren't 
including ozone benefits (mortality or otherwise) in our 
analysis. The same paragraph will be included in both the 
preamble and the RIA. For now, however, I'm pasting it below 
for your review.''\30\ The implication is clear. OMB rejected 
EPA's language analyzing the ozone mortality benefits as part 
of the basis for an important national rulemaking, and did so 
only months after CASAC recognized the powerful force of the 
studies associating ozone and death.
---------------------------------------------------------------------------
    \26\The notice of proposed rulemaking was formally published on 
April 3, 2007, 72 Fed. Reg. 15,938.
    \27\EPA Staff Email to David Rostker, OMB (Jan. 17, 2007), Appendix 
A.
    \28\Id.
    \29\EPA Staff Email to David Rostker, OMB (Feb. 22, 2007), Appendix 
A.
    \30\EPA Staff Email to David Rostker, OMB (Feb. 23, 2007), Appendix 
A.
---------------------------------------------------------------------------
    The process repeated itself the very next month. During the 
development of another important rule, EPA staff responded to 
an email from Mr. David Rostker at OMB flagging his objections 
to quantified ozone mortality benefits in the draft Regulatory 
Impact Analysis. The EPA response to OMB's objection states: 
``We have removed all references to quantified ozone benefits 
(including mortality) in the most recent version of the 
ES.''\31\ The rulemaking in questions involved proposed new 
emission standards to limit the ozone-forming pollution from 
gasoline-powered lawnmowers, handheld garden engines, and 
marine sterndrive engines.\32\
---------------------------------------------------------------------------
    \31\EPA Staff Email to David Rostker, OMB (March 29, 2007), 
Appendix B.
    \32\72 Fed. Reg. 28,098 (May 18, 2007).
---------------------------------------------------------------------------
OMB Transmitted Significant 11th Hour Language Changes to Weaken the 
        Rule That were Incorporated Into EPA's Formal Ozone NAAQS 
        Proposal
    EPA was under a court-supervised deadline to issue its 
proposal regarding the ozone NAAQS by June 20th. The public 
docket shows that on that day, OMB transmitted a series of 
inserts to EPA that altered, and materially weakened, the 
proposal in the following significant respects:
     The first page of the fax from OMB contains excerpts from 
Justice Breyer's concurring opinion in Whitman v. American 
Trucking Assns, Inc. OMB presents the language to EPA as the 
basis for the Agency to avoid the majority opinion of the 
United States Supreme Court. The explanatory language at the 
top of the fax states: ``EPA could follow the direction of a 
Supreme Court Justice without fear of contempt, especially if 
(as OIRA pointed out) the EPA risk assessment finds little 
health improvement nationwide.''\33\ Justice Breyer's language 
was in fact incorporated on pages 11-12 of the final proposal 
now posted on EPA's website at: http://www.epa.gov/ttn/naaqs/
standards/ozone/data/2007--06--o3npr.pdf
---------------------------------------------------------------------------
    \33\OMB Interagency Fax, available at EPA-HQ-OAR-2005-0171-0215, p. 
1, Appendix C (emphasis added).
---------------------------------------------------------------------------
     The second page of this same fax from OMB contains 
language laying out the rationale for EPA to retain the current 
ozone health standard without changes based on a host of 
``uncertainties'' provided by OMB. This OMB transmitted 
language, which was incorporated in substantial part in EPA's 
preamble, reads as follows: ``The Administrator recognizes that 
there is a concern that adopting a more stringent 8-hour 
standard now, without a better understanding of the health 
effects associated with O3 exposure at these lower levels, will 
have an uncertain public health payoff. These questions include 
uncertainty in (1) the exposure estimates, (2) the estimation 
of concentration-response associations in epi studies, (3) the 
potential role of co-pollutants in interpreting the reported 
associations in these epi studies, and 4) [sic] the effect of 
background concentrations. In fact, the Agency continues to 
undertake a substantial research program in an effort to 
clarify some of these uncertainties. As a result, the 
Administrator acknowledges the possibility that it would be 
appropriate to consider modifications of the 8-hour standard 
with a more complete body of information in hand rather than to 
initiative a change in the standard at this time.'' This 
language was incorporated in significant respects at page 252 
of the final proposal now posted on EPA's website. The OMB 
transmitted litany of uncertainties associated with health 
effects below the current standard is in direct contrast with 
CASAC's unwavering unanimous statements, recounted above, that 
there are a suite of adverse health effects below the current 
standard that compel EPA action and that there is no longer 
significant scientific uncertainty that the standard must be 
lowered.
     The final document in the fax from OMB to EPA invokes 
three separate strands of argument in seeking to buttress EPA's 
case for inaction. First, the OMB language argues, 
paradoxically, that the sluggish implementation pace of the 
current ozone health-standard should delay a new health 
standard. Second, OMB maintains that the likely delays in 
achieving a more protective health standard preclude the 
Administrator from considering the health benefits of lower 
ozone and, therefore, lowering the health standard will not 
realize public health gains. Third, it is claimed that the 
nation's alternative fuels program may supersede the 
Administrator's duty to establish standards requisite to 
protect public health with an adequate margin of safety. On 
this latter point, the language that appears in final form on 
pages 251-52 expressly cross-references back to Justice 
Breyer's concurrence, thereby completing the circle with the 
first insertion above. The actual final language incorporated 
at OMB's behest provides: ``The Administrator is mindful that 
the country has important goals related to the increase 
production and use of renewable energy, and that these new 
energy sources can have important public health, environmental 
and other benefits, such as national security benefits. In some 
contexts and situations, however, the use of renewable fuels 
may impact compliance with a lowered ozone NAAQS standard. For 
example, the Agency recently promulgated final regulations 
pursuant to section 211(o) of the Clean Air Act, which was 
enacted as part of the Energy Policy Act of 2005. This 
provision requires the use of 7.5 billion gallons of renewable 
fuel by 2012, a level which will be greatly exceeded in 
practice. In the Regulatory Impact Analysis which accompanied 
the renewable fuel regulations, the Agency recognized the 
impact of this program on emissions related to ozone, toxics 
and greenhouse gases and otherwise reviewed the impacts on 
energy security. The Administrator requests comment on such 
factors and any relationship to this rulemaking, including the 
extent of EPA's discretion under the Clean Air Act to take such 
factors into account (see section I.A).'' This final portion of 
the OMB fax was incorporated in large part at pages 251-52 of 
the final proposal now available on EPA's website.
    While the nation's interest in renewable fuels is well-
understood, OMB's language inverts the public health protection 
mandate of the law. OMB's approach would supersede the 
statute's directive to establish NAAQS that protect public 
health with an adequate margin of safety for ozone, particulate 
pollution, lead or any other pollutant by invoking a favored 
industrial activity or process. In such an illogical world, 
emissions would inexorably rise as the nation's health 
standards are adjusted upward to accommodate more pollution.
    The rushed OMB fax, which was belatedly inserted into EPA's 
formal proposal, provides an array of technical, policy and 
legal arguments designed to justify EPA inaction OMB also 
pressed for inclusion of the language in the Administrator's 
own voice. In one revealing passage, the OMB transmitted fax 
asks whether it is ``Possible to include as Administrator's 
voice or somewhere other than the five pages of input from 
`commenters'?''

The Clean Air Scientific Advisory Committee Issued a Unanimous, Clarion 
        Call for the Administrator to Adopt an Ozone Standard More 
        Protective of Public Health
    The CASAC has unanimously called for a more protective 
health standard. It has unambiguously advised EPA that there is 
no scientific basis for retaining the current health standard. 
But some political forces have directly commanded important 
aspects of EPA's proposal.
    Today, Administrator Johnson holds the trust of healthier 
air in his hands. Like the Administrators that preceded him, he 
is confronting powerful headwinds. We respectfully ask that 
Administrator Johnson follow the path of science in protecting 
human health, that he heed the course charted by EPA's own 
unanimous 23 member independent science advisory committee, and 
that he be guided by EPA's own professional staff in continuing 
the nation's critical race for healthier air. We ask that he 
carry forward the legacy entrusted to him under the Clean air 
Act to protect human health from ground-level ozone with an 
adequate margin of safety.


                          ECHOES FROM THE PAST


    In 1997, EPA strengthened the nation's particulate matter 
and ozone health standards in response to new science. EPA's 
decision engendered claims of economic demise and social havoc 
from representatives of industry and Members of Congress.
     ``So economically you are strangled, you are hung up, you 
are not going to grow, jobs will not occur.'' Congressman 
Ronald Klink.\34\
---------------------------------------------------------------------------
    \34\143 Cong. Rec. 3560 (1997).
---------------------------------------------------------------------------
     The new standards ``will wreak havoc on economic growth, 
jobs, and even personal lifestyles.'' Congressman Fred 
Upton.\35\
---------------------------------------------------------------------------
    \35\143 Cong. Rec. 1286 (1997).
---------------------------------------------------------------------------
     ``Dry cleaning establishments, hair salons, and other 
small businesses will not be able to absorb the increased costs 
imposed by these regulations.'' Senator Spencer Abraham.\36\
---------------------------------------------------------------------------
    \36\143 Cong. Rec. S10813 (1997).
---------------------------------------------------------------------------
    These claims are not dissimilar from arguments being made 
now about ozone. But, during the 1997 debate, Senator Max 
Baucus provided perspective on the predictable cycle of 
discourse that ensues from EPA's decision to strengthen the 
nation's air quality standards. He recounted the inevitable 
prognostications of economic demise. He also explained a world 
where, in the final analysis, costs are in fact reasonable and 
millions breathe cleaner air:
    This is a familiar pattern. Air quality standards have 
always been met with claims of economic demise. But then 
technology catches up. Innovative programs are implemented. 
Further research bolsters the initial decision. In the end, 
costs are a fraction of initial claims, and everyone breathes 
cleaner air.


                      A BIPARTISAN AMERICAN LEGACY


    I leave you with the retrospective of former Senator Howard 
Baker, Jr., who reviewed the historic Clean Air Act legacy 
forged through the bipartisanship of the 1970 U.S. Senate and 
gave life to a law ``which more than well demonstrated that the 
whole is greater than the sum of its parts.''
    Retrospectives are interesting for people of my generation. 
There are many ways to sum up our careers. Many Members of 
Congress do that with the myriad pictures and awards they 
display on the walls of their offices. Others summarize their 
career by pointing to their elective and appointive 
achievements. Needless to say, mine has been bountiful thanks 
to my parents, the people of Tennessee, President Ronald Reagan 
and President George W. Bush.
    But at the end of the day, those personal achievements and 
rewards will be of most importance to my descendants and, 
hopefully, to my biographers. They will be measures of my 
success, but they won't reflect the achievement of which I am 
most proud. But so long as the Clean Air Act, its principles 
and goals survive, I will have a lasting legacy.
    I have always been struck by the fact that Thomas Jefferson 
insisted that his tombstone reflect only that he had founded 
the University of Virginia--not that he was Ambassador to 
France--or Secretary of State--or Vice President or even 
President of the United States--not that he had drafted the 
Declaration of Independence, but that he had founded an 
institution of higher learning.
    I cannot compare my own career to Jefferson's, nor would I 
be so bold to say that I alone wrote the Clean Air Act. But I 
am willing to say and let my legacy rest on the fact that I was 
one of two or three American citizens who happened to be United 
States Senators who came together at a particular moment in 
history and developed the concept which in many respects can be 
said to have changed the world in which we live.
    In 1969 Senator Ed Muskie and I came together with a shared 
vision. We each provided critical elements to that vision and 
we succeeded in producing a law which more than well 
demonstrated that the whole is greater than the sum of its 
parts.\37\
---------------------------------------------------------------------------
    \37\Remarks by Howard H. Baker, Jr., ``Cleaning America's Air--
Progress and Challenges,'' The University of Tennessee, Knoxville, 
March 9, 2005.
---------------------------------------------------------------------------
    Basing the nation's health-based air quality standards on 
public health concerns is, singularly, the most important 
principle woven into the vibrant fabric of the bipartisan Clean 
Air Act. The resulting benefits for healthier air have in fact 
changed the world in which we live.

    Senator Carper. Thank you very much, Ms. Patton.
    Dr. McClellan, in recognizing you, let me just note that 
earlier, before he left, actually at the beginning of the 
hearing, Administrator Johnson was up here talking with Senator 
Boxer and I was congratulating her on her latest grandchild. He 
mentioned the fact that he had five grandchildren of his own. 
My friend, George Voinovich here, has seven, no fewer than 
seven grandchildren.
    But none of them, in fact probably no one in this room but 
you actually had a grandchild with you. And I am going to ask 
you, before you give us your testimony, that you take a moment 
and introduce this 8 year old young man who is sitting right 
behind Jim Werner. Would you do that, please?
    Before you do, let me just say, Christi Whitman, who used 
to be EPA Administrator and was a colleague of ours when we 
were Governors, Christi Whitman said to me not long ago after 
the birth of her grandchildren, she said to me, grandchildren 
are one of the few things in the world that are not overrated.
    [Laughter.]
    Mr. McClellan. I certainly agree with that. Thank you very 
much.
    I would like to introduce my grandson, Connor Byrne, if you 
will just stand up. He is from Portland, Oregon. He took time 
from his vacation with us in New Mexico to come here today for 
this hearing.
    [Applause.]
    Senator Carper. Thank you for coming. Welcome.
    I am going to watch very carefully to see if your lips move 
when your grandfather speaks.
    [Laughter.]
    Senator Carper. Dr. McClellan, we are delighted that you 
are here. Dr. McClellan is an advisor in the field of 
Toxicology and Human Health Risk Analysis. We are glad that he 
is here. Thank you.

STATEMENT OF ROGER O. McCLELLAN, ADVISOR, TOXICOLOGY AND HUMAN 
                      HEALTH RISK ANALYSIS

    Dr. McClellan. Good morning, Senator Carper, Senator Boxer 
and Senator Voinovich. It is a pleasure to again appear before 
this Committee and offer you my views on EPA's current review 
of the ozone standard. I request that my written testimony be 
entered into the record as though read in its entirety.
    Senator Carper. And I assure you that it will be.
    Dr. McClellan. My testimony today draws on my experience 
serving on many EPA science advisory committees, including the 
Clean Air Scientific Advisory Committee, which I chaired from 
1988 to 1992, and on CASAC panels that have considered all of 
the criteria pollutants, including ozone.
    I wish to make several points today concerning the current 
review. These are my professional opinions on the science that 
undergirds this very important standard. The issue at hand is 
not does ozone do bad things. Ozone is capable of being 
injurious to public health. The question is one of at what 
level do we set the standard for an averaging time of 8 hours 
to protect public health.
    It is important to recognize that ozone in the ambient air 
arises from precursors that are both natural and man-made in 
origin. Ozone concentration vary throughout the day and 
throughout the year. As the level of the standard is reduced, 
it is important to recognize that the portion of the ozone in 
the air that we can control is reduced, because it is laid on 
top of natural background levels of ozone.
    Thus, the issue of the policy relevant background for ozone 
is very important. I will simply say that in this case, EPA got 
the science wrong in specifying the policy background level of 
ozone. This has very important implications for setting the 
standard and, ultimately, attaining the standard.
    There is data on the health effects of exposure to ambient 
levels of ozone. We have heard reference to the controlled 
human exposure studies. There is clear evidence of functional 
changes above 0.08 ppm. What EPA did in this case is to re-
analyze the data of one investigation, Adams, and purport that 
it shows effects below 0.08. This is a matter of considerable 
scientific debate.
    Another source of data are the long-term epidemiological 
studies. These same studies were used to show that particulate 
matter had effects on mortality. They have not shown an effect 
of long-term exposure to ozone on mortality. There have been 
many time series analyses done. Professor Bell has referred to 
some of those. I would emphasize that the results have been 
quite variable, with significant associations of ozone 
concentrations observed in a few cities, while there is no 
statistical association between ozone exposure and mortality in 
most cities, including many cities that would be impacted by a 
reduced standard.
    The risk assessment done by the ABT Associates and used by 
EPA to inform the policy judgments in setting the ozone 
standard is seriously flawed. The assessment depends primarily 
on ozone concentration-response functions derived using 1 hour 
maximum ozone levels and 24 hour ozone concentrations. The 
ozone standard pre-1997 used a 1-hour averaging time. The ozone 
standard has never used the hour averaging time. Only 2 
coefficients out of 96 coefficients used in the risk assessment 
were based on 8 hour ozone concentrations, the averaging time 
of the current and the proposed standard.
    Thus, the calculated excess risks ascribed to recent ozone 
concentrations are of questionable relevance to setting the 
standard with an 8-hour averaging time. The risk assessment 
simply is flawed and needs to be redone. Moreover, the 
calculated reductions in excess risk attributed to man-made 
ozone are not realistic, because of the inappropriate 
assumptions made about the policy relevant background of ozone.
    It is my opinion that the CASAC ozone panel did not 
adequately pursue critical scientific issues concerning the 
policy relevant background, the short term mortality studies, 
the averaging time and the impact of these issues on the 
scientific validity of the ozone risk assessment. The panel, in 
a rush to judgment imposed by the court ordered schedule 
offered a collective policy judgment, on the level of the 
standard. The range they recommended reflects their personal 
policy preferences.
    In my professional judgment, the Administrator's proposed 
decision to revise the existing ozone standard by lowering the 
level is a policy judgment based on a flawed and inaccurate 
presentation of science that should have informed the policy 
decision. I applaud the Administrator's decision to solicit 
comments on alternative levels up to the present standard.
    In closing, let me comment on the references made to 
earlier meetings with EPA and OMB officials. As a scientist of 
ozone and the standard setting process I visited with EPA 
officials, including Mr. Robert Meyers. During the visit he was 
informed that we would also be meeting with OMB officials. As I 
recall he was invited to attend the OMB meeting. At both 
meetings, I emphasized the same points I have made here today.
    Thank you for this opportunity to appear before you.
    [The prepared statement of Dr. McClellan follows:]

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

    Good Morning, Mr. Chairman and Members of the Subcommittee. 
Thank you for the invitation to present my views on the U.S. 
Environmental Protection Agency's current review of the 
National Ambient Air Quality Standards (NAAQS) for Ozone.
    My biography is attached to this statement (Attachment 1). 
Since 1999, I have served as an Advisor to public and private 
organizations on issues related to air quality in the ambient 
environment and workplace drawing on more than 45 years of 
experience in comparative medicine, toxicology, aerosol 
science, and risk analysis. Prior to 1999, I provided 
scientific leadership for two organizations, the Chemical 
Industry Institute of Toxicology in Research Triangle Park, NC 
and the Lovelace Inhalation Toxicology Research Institute in 
Albuquerque, NM, that earned an international reputation for 
developing scientific information under-girding occupational 
and environmental health standards.
    The testimony I offer today also draws on my experience 
serving on numerous scientific advisory committees. This has 
included service on many EPA Scientific Advisory Committees 
from the origin of the Agency to date, including the Clean Air 
Scientific Advisory Committee (CASAC), which I chaired from 
1988 to 1992, and on CASAC Panels that have considered all the 
criteria pollutants at various times. I served on the CASAC 
Ozone Panel that reviewed the basis for the NAAQS promulgated 
in 1997. I did not serve on the most recent CASAC Ozone Panel. 
I have followed the current NAAQS Ozone review process from its 
inception in September 2000 to date. The testimony I offer 
today reflects my own views on that review process and the 
science that should inform policy judgments on any revision of 
the NAAQS for Ozone. In Attachment 2, I briefly review the 
NAAQS process as background for my comments.
    I wish to make the following points:
    (1) The ozone present in the ambient air arises both from 
natural processes and from precursors that are of man-made 
origin. Ambient ozone concentrations vary by time of day, 
season and location across the country.
    (2) Since promulgation of the original NAAQS for the 
criteria pollutants most cities in the U.S. have made 
remarkable progress in substantially reducing ambient 
concentrations of ozone and other criteria pollutants. As 
ambient concentrations of ozone are reduced the fraction of 
remaining ozone associated with precursors of manmade US 
emissions ? the only part which we can control through policy ? 
falls. This makes further reductions in ambient ozone a 
challenge in many areas.
    (3) The Policy Relevant Background for Ozone used by the 
EPA is not a scientifically valid projection of the part of 
ozone that would not be controllable through policy. For one 
thing, it excludes the contribution of Mexico and Canada's 
emissions to U.S. ozone concentrations and does not adequately 
model ozone concentrations across the U.S. The projected mean 
and high range concentrations are unrealistically low. These 
scientific inadequacies result in unrealistically high 
mathematical projections of mortality and morbidity from low 
concentrations of ozone with excess risks being inappropriately 
attributed to ozone from anthropogenic precursors. Moreover, 
the failure to accurately project the upper end of the 
background ozone range may result in a policy judgment to set a 
NAAQS that will frequently be exceeded due to ozone that is not 
related to precursors of ozone from man-made sources in the 
U.S. I am pleased that the ``proposed rule'' recognizes the 
shortcomings in considering the ``Policy Relevant Background'' 
(see pg 155, footnote 40 of the Proposed Rule) and intends to 
address this issue.
    (4) Data on the potential health effects of exposure to 
ambient levels of ozone that should inform policy judgments on 
the NAAQS are from five kinds of studies; human clinical 
studies, three kinds of epidemiological studies, and 
toxicological studies. I will briefly describe the evidence for 
each of these kinds of evidence.
    (a) The human clinical studies conducted with controlled 
exposure of exercising human volunteers provide useful 
information on changes in respiratory function with extreme 
levels of ozone intake. There is clear evidence of functional 
changes with protracted exposure to ozone at concentrations of 
0.08 ppm and higher. In this review, EPA has re-interpreted 
data developed by one investigator and purport to show that 
exposures below 0.08 ppm cause functional changes. The validity 
of this re-interpretation and the significance of the 
functional changes are open to debate.
    (b) Major long-term epidemiological studies have not shown 
an association between ozone exposure and long-term mortality. 
These studies, which compare the life expectancies of groups of 
people living in areas with different long-term average 
pollutant concentrations, were used to show an association 
between Particulate Matter and long-term mortality.
    (c) Time-series analyses consider the association between 
daily fluctuations in ambient ozone concentrations and day to 
day death rates within a particular city or other locale. These 
have yielded variable results, statistically significant 
associations with ozone concentrations have been observed in a 
few cities while there is no association between ambient ozone 
and increased short-term mortality for many cities even when 
the studies have been conducted using the higher ozone levels 
found several decades ago. (I elaborate on these issues in 
Attachment 4).
    (d) Panel studies follow a specific group of people, often 
a group of children, intensively for short periods of time, 
measuring specific health outcomes--such as asthma symptoms ? 
and assesses how these outcomes are correlated to an air 
pollution mixture that includes ozone. These too have yielded 
variable results. When positive effects are observed in some 
studies it is not apparent the effects are attributable to 
ozone exposure.
    (e) An enlarging body of toxicological data provides a 
basis for hypothesizing how ozone may cause biological changes 
with relatively high, short-term exposures to ozone, exposures 
in excess of the current ozone NAAQS. This information cannot 
be reliably extrapolated to ambient ozone levels currently 
observed across the United States.
    (5) The risk assessment conducted by Abt Associates and 
used by EPA to inform policy judgments in setting the ozone 
NAAQS is seriously flawed. The assessment depends primarily on 
ozone concentration-response functions derived primarily using 
24-hour ozone concentrations. Only two coefficients of 96 used 
in the risk assessment is based on 8-hour ozone concentrations, 
the averaging time of the current and proposed NAAQS. Thus, the 
calculated excess risk ascribed to the ozone concentrations 
measured in 2002, 2003, and 2004 are likely not relevant to 
setting a NAAQS with an 8-hour averaging time. Moreover, the 
calculated reductions in excess risk attributed to ozone are 
not realistic because of the inappropriate assumptions made 
about Policy Relevant Background for ozone. (I elaborate on 
these issues in Attachment 5).
    (6) It is my opinion that the CASAC Panel did not 
adequately pursue critical scientific issues concerning Policy 
Relevant Background, the short-term mortality studies, the 
averaging time and the impact of these issues on the scientific 
validity of the ozone risk assessment. It is my opinion that 
the Panel, in a ``rush to judgment'' offered a collective 
policy judgment as to the level of the NAAQS for ozone. The 
scientific rationale for their collective policy judgment 
preference has not been articulated in the transcripts of 
public meetings or their letters to the Administrator.
    (7) In my professional judgment, the Administrator's 
``proposed decision to revise the existing 8-hour O3 primary 
standard by lowering the level to within a range from 0.070 to 
0.075 ppm'' is a policy judgment based on a flawed and 
inaccurate presentation of the science that should inform the 
policy decision. I applaud the Administrator's decision to 
``solicit comments on alternative levels--up to and including 
retaining the current 8-hour standard of 0.08 ppm.''


                              ATTACHMENT 1


    BIOGRAPHY
    Roger O. McClellan is currently an advisor to public and 
private organizations on issues concerned with inhalation 
toxicology and human health risk analysis. He received his 
Doctor of Veterinary Medicine degree with Highest Honors from 
Washington State University in 1960 and a Master of Management 
Science degree from the University of New Mexico in 1980. He is 
a Diplomate of the American Board of Toxicology, a Diplomate of 
the American Board of Veterinary Toxicology and a Fellow of the 
Academy of Toxicological Sciences.
    He served as Chief Executive Officer and President of the 
Chemical Industry Institute of Toxicology (CIIT) in Research 
Triangle Park, NC from September 1988 through July 1999. The 
CIIT continues today as The Hamner Institute. During his 
tenure, the organization achieved international recognition for 
the development of science under-girding important 
environmental and occupational health regulations. Prior to his 
appointment as President of CIIT, Dr. McClellan was Director of 
the Inhalation Toxicology Research Institute, and President and 
Chief Executive Officer of the Lovelace Biomedical and 
Environmental Research Institute, Albuquerque, New Mexico. The 
Institute continues operation today as a core element of the 
Lovelace Respiratory Research Institute. During his 22 years 
with the Lovelace organization, he provided leadership for 
development of one of the world's leading research programs 
concerned with the toxic effects of airborne radioactive and 
chemical materials. Prior to joining the Lovelace organization, 
he was a scientist with the Division of Biology and Medicine, 
U.S. Atomic Energy Commission, Washington, DC (1965-1966), and 
Hanford Laboratories, General Electric Company, Richland, WA 
(1959-1964). In these assignments, he was involved in 
conducting and managing research directed toward understanding 
the human health risks of internally deposited radionuclides.
    Dr. McClellan is an internationally recognized authority in 
the fields of inhalation toxicology, aerosol science and human 
health risk analysis. He has authored or co-authored over 300 
scientific papers and reports and edited 10 books. In addition, 
he frequently speaks on risk assessment and air pollution 
issues in the United States and abroad. He is active in the 
affairs of a number of professional organizations, including 
past service as President of the Society of Toxicology and the 
American Association for Aerosol Research. He serves in an 
editorial role for a number of journals, including continuing 
service as Editor of Critical Reviews in Toxicology. He serves 
or has served on the Adjunct Faculty of 8 universities.
    Dr. McClellan has served in an advisory role to numerous 
public and private organizations. He has served on senior 
advisory committees for 8 Federal agencies. He is past Chairman 
of the Clean Air Scientific Advisory Committee, Environmental 
Health Committee, Research Strategies Advisory Committee, and 
Member of the Executive Committee, Science Advisory Board, U. 
S. Environmental Protection Agency; Member, National Council on 
Radiation Protection and Measurements; Member, Advisory Council 
for Center for Risk Management, Resources for the Future; a 
former Member, Health Research Committee, Health Effects 
Institute; and service on National Academy of Sciences/National 
Research Council Committees on Toxicology (served as Chairman 
for 7 years), Risk Assessment for Hazardous Air Pollutants, 
Health Risks of Exposure to Radon, Research Priorities for 
Airborne Particulate Matter, as well as the Committee on 
Environmental Justice of the Institute of Medicine. He has 
recently completed a term on the Board of Scientific Councilors 
for the Centers for Disease Control and Prevention for 
Environmental Health Research and the Agency for Toxic 
Substances and Disease Registry. He is currently serving on the 
National Institutes of Health Scientific Advisory Committee on 
Alternative Toxicological Methods and the National Aeronautics 
and Space Administration Lunar Airborne Dust Toxicity Advisory 
Group.
    Dr. McClellan's contributions have been recognized by 
receipt of a number of honors, including election in 1990 to 
membership in the Institute of Medicine of the National Academy 
of Sciences. He is a Fellow of the Society for Risk Analysis, 
the Health Physics Society, and the American Association for 
the Advancement of Science. In 1998, he received the 
International Achievement Award of the International Society of 
Regulatory Toxicology and Pharmacology of standing 
contributions to improving the science used for decision making 
and the International Aerosol Fellow Award of the International 
Aerosol Research Assembly for outstanding contributions to 
aerosol science and technology. He received the Society of 
Toxicology 2005 Merit Award for a distinguished career in 
toxicology. In 2005, The Ohio State University awarded him an 
Honorary Doctor of Science degree for his contributions to the 
science under-girding improved air quality. In 2006 he received 
the New Mexico Distinguished Public Service Award. He has a 
long-standing interest in environmental and occupational health 
issues, especially those involving risk assessment and air 
pollution, and in the management of multidisciplinary research 
organizations. He is a strong advocate of risk-based decision 
making and the need to integrate data from epidemiological, 
controlled clinical, laboratory animal and cell studies to 
assess human health risks of exposure to toxic materials.


                              ATTACHMENT 2


    Setting National Ambient Quality Standards
    Each NAAQS consists of four elements: (a) an indicator 
(such as ozone for photochemical oxidants, (b) an averaging 
time (such as 8 hours), (c) a numerical level (such as 0.08 ppm 
ozone averaged over 8 hours), and (d) a statistical form (such 
as the annual fourth-highest daily maximum 8-hour average 
concentration, averaged over 3 years.
    Under the Clean Air Act, the EPA Administrator is required 
to review the NAAQS for the criteria pollutants at 5-year 
intervals to evaluate whether or not the four elements of the 
NAAQS are still deemed to be acceptable based on current 
scientific knowledge as it applies to the assessment of public 
health risks. In practice, the interval between reviews has 
been longer. The process for review and promulgation of a 
NAAQS, either continuation of the existing standard or 
establishing a new NAAQS, consists of multiple phases. The 
initial phase, which is obviously on-going, consists of conduct 
of research on the various criteria pollutants. This includes a 
broad spectrum of activities; understanding emissions of 
pollutants, transport and transformation of pollutants in the 
atmosphere, ambient measurements of pollutants, estimation of 
personal exposures to pollutants, assessment of toxic effects 
and mechanisms of action in cells, tissues and animals, conduct 
of controlled exposure studies to pollutants in human 
volunteers and epidemiological investigations of human 
populations. Most of the research is funded by the EPA, some in 
the Agency's own laboratories and some in academic and other 
laboratories, the National Institutes of Health and, to a 
modest extent, private industry. The dominance of Federal 
Government support of research on criteria pollutants relates 
to their effects being of broad societal concerns with the 
pollutants, by and large, having no unique industrial emission 
source.
    The findings of this research are used by the EPA's Office 
of Research and Development to prepare a criteria document 
(CD). Each CD traditionally has been essentially an 
encyclopedia of everything known about a given criteria 
pollutant and is used as a basis of information for the 
preparation of a Staff Paper (SP) by the EPA's Office of Air 
Quality Planning and Standards. This is a Policy Assessment of 
Scientific and Technical Information; in short, an integration 
and synthesis of the information in the CD that is most 
relevant to setting the four elements of a NAAQS. In recent 
years, the Staff Papers have made substantial use of risk 
assessments for the criteria pollutant being considered. These 
risk assessments have been conducted by a single EPA Contractor 
organization. The various versions of the CD and SP are 
released to the public with an invitation to provide comments 
as a basis for improving the documents.
    Throughout this process, a Clean Air Scientific Advisory 
Committee Panel, operating as an element of the EPA's Science 
Advisory Board, is involved in reviewing and advising on the 
scientific content of both the CD and the SP, including the 
related risk assessment. This has typically involved several 
revisions. Prior to the current cycle of ozone review, the 
CASAC Panel sent a closure letter to the EPA Administrator when 
the CASAC was of the opinion that the revised documents were 
suitable for use by the Administrator in promulgating a NAAQS. 
In the current ozone review, the ``closure letter'' process was 
abandoned. Instead, the current CASAC Ozone Panel has focused 
on offering a consensus opinion.
    At the next step, the Administrator proposes, via a Federal 
Register Notice, a NAAQS including specific proposals for each 
of the four elements of the NAAQS; the indicator, averaging 
times, numerical levels and statistical forms. Comments are 
solicited from the Public with the opportunity to submit 
written comments to a specific Docket. The Administrator, 
acting under a Consent Decree, signed a ``Proposed Rule.''
    The next step is for the Administrator to promulgate a 
NAAQS consisting of the four elements discussed previously. I 
purposefully do not use the phrase ? ``final step,'' because 
the Courts may have a role in deciding whether the 
Administrator's proposed NAAQS for Ozone will stand. The NAAQS 
are to be based on the available scientific information 
reviewed in the CD and SP and summarized in the notice of 
proposed rules. The primary, health-based NAAQS are to be set 
at a level that will protect public health, including sensitive 
populations, with an adequate margin of safety. The 
Administrator is precluded from considering cost in the setting 
of the NAAQS.
    At this point, I would like to emphasize that there exists 
no absolute and unambiguous scientific methodology that can 
determine which specific indicator, precise averaging time, 
numerical level or statistical form will be adequate to protect 
public health. The available scientific information can inform 
the NAAQS decisions, however, the Administrator must ultimately 
use policy judgment in making decisions on each of the four 
elements from among an array of scientifically acceptable 
options including consideration of their attendant scientific 
uncertainties. Beyond the language in the Clean Air Act, 
Justice Breyer in Whitman v. American Trucking Association (531 
U.S. 457, 473) has given very useful guidance for the 
Administrator in exercising policy judgment in the setting of 
NAAQS (see Attachment 3).


                              ATTACHMENT 3


    Justice Breyer on Using Policy Judgment (from Whitman v. 
American Trucking Association, 531 U.S. 457, 473)
    In setting standards that are ``requisite'' to protect 
public health and welfare, as provided in section 109(b), EPA's 
task is to establish standards that are neither more or less 
stringent than necessary for these purposes. Whitman v. 
American Trucking Associations, 531 U.S. 457, 473. In 
establishing ``requisite'' primary and secondary standards, EPA 
may not consider the costs of implementing the standards. Id. 
At 471. As discussed by Justice Breyer in Whitman v. American 
Trucking Associations, however, ``this interpretation of 109 
does not require the EPA to eliminate every health risk, 
however slight, at any economic cost, however great, to the 
point of ``hurtling'' industry over ``the brink of ruin,'' or 
even forcing ``deindustrialization.'' Id. At 494 (Breyer, J., 
concurring in part and concurring in judgment) (citations 
omitted). Rather, as Justice Breyer explained:
    ``The statute, by its express terms, does not compel the 
elimination of all risk; and it grants the Administrator 
sufficient flexibility to avoid setting ambient air quality 
standards ruinous to industry.
    Section 109(b)(1) directs the Administrator to set 
standards that are ``requisite to protect the public health'' 
with ``an adequate margin of safety.'' But these words do not 
describe a world that is free of all risk ? an impossible and 
undesirable objective. (citation omitted). Nor are the words 
``requisite'' and ``public health'' to be understood 
independent of context. We consider football equipment ``safe'' 
even if its use entails a level of risk that would make 
drinking water ``unsafe'' for consumption. And what counts as 
``requisite'' to protecting the public health will similarly 
vary with background circumstances, such as the public's 
ordinary tolerance of the particular health risk in the 
particular context at issue. The Administrator can consider 
such background circumstances when ``deciding what risks are 
acceptable in the world in which we live.'' (citation omitted).
    The statute also permits the Administrator to take account 
of comparative health risks. That is to say, she may consider 
whether a proposed rule promotes safety overall. A rule likely 
to cause more harm to health than it prevents is not a rule 
that is ``requisite to protect the public health.'' For 
example, as the Court of Appeals held and the parties do not 
contest, the Administrator has the authority to determine to 
what extent possible health risks stemming from reductions in 
tropospheric ozone (which, it is claimed, helps prevent 
cataracts and skin cancer) should be taken into account in 
setting the ambient air quality standard for ozone.
    (Citation omitted)/
    The statute ultimately specifies that the standard set must 
be ``requisite to protect the public health'' ``in the judgment 
of the Administrator,'' 109(b)(1), 84 Stat. 1680 (emphasis 
added), a phrase that grants the Administrator considerable 
discretionary standard-setting authority.
    The statute's words, then, authorize the Administrator to 
consider the severity of a pollutant's potential adverse health 
effects, the number of those likely to be affected, the 
distribution of the adverse effects, and the uncertainties 
surrounding each estimate. (citation omitted). They permit the 
Administrator to take account of comparative health 
consequences. They allow him to take account of context when 
determining the acceptability of small risks to health. And 
they give her considerable discretion when she does so.
    This discretion would seem sufficient to avoid the extreme 
results that some of the industry parties fear. After all, the 
EPA, in setting standards that ``protect the public health'' 
with ``an adequate margin of safety,'' retains discretionary 
authority to avoid regulating risks that it reasonably 
concludes are trivial in context. Nor need regulation lead to 
deindustrialization. Pre-industrial society, was not a very 
health society; hence a standard demanding the return of the 
Stone Age would not prove ``requisite to protect the public 
health.''


                              ATTACHMENT 4


    Time-Series Analyses of Short-Term Mortality
    The EPA places substantial reliance on the time-series 
analyses of short-term mortality in the Staff Paper and the 
associated Risk Assessment. To a large extent, results from the 
National Morbidity and Mortality Air Pollution (NMMAPs) studies 
being conducted at the Johns Hopkins University serve as a 
center piece of the EPA evaluation and risk assessment. The 
paper by Bell et al. (2004) is given considerable weight. 
Unfortunately, this study is founded on a very weak and dubious 
goal? the derivation of a national ozone concentration excess 
mortality coefficient. In my opinion, the heterogeneity of air 
pollution across the United States and the heterogeneity of the 
population, including morbidity and mortality patterns in 
cities across the Unites States, makes it inappropriate to 
create a ``national'' concentration-response coefficient for 
ozone. This task, even if appropriate, is challenging because 
of the very weak effect of ozone, even in the cities with the 
highest ozone concentrations, compared to all the other factors 
influencing morbidity and mortality.
    To help illustrate the problems involved in interpreting 
the Bell et al. (2004) study, I am presenting some analyses 
performed by my colleague, Richard Smith (2007) at the 
University of North Carolina-Chapel Hill, using the NMMAPs data 
kindly provided by the Johns Hopkins University investigators. 
Figure 1 was developed by Professor Smith and is essentially 
identical to Figure 2 in the Bell et al. (2004) paper. His 
reproduction of the results of Bell et al. (2004) is 
reassuring. You will note this figure, developed using a 
Bayesian statistical approach, indicates values for a percent 
rise in mortality per 10 ppb average 24-hour ozone and the 
associated confidence intervals. Note that even with the 
Bayesian analysis, only six cities (Houston, Dallas-Ft. Worth, 
Newark, Philadelphia, Chicago and New York) have statistically 
significant associations between 24-hour average ozone and 
short-term mortality. At the bottom of Figure 1 is shown a 
national concentration-response coefficient. It agrees well 
with the value of 0.52 percent (95 percent Confidence Interval, 
0.27-0.77 percent) for 10 ppb increase in the 24-hour average 
ozone concentration given in the Bell et al. (2004) paper. I 
personally do not believe this national value is of much use ? 
this is a case where ``one size does not fit all.''
    In my opinion, I think it is important to also consider raw 
estimates of the ozone ambient concentration response 
coefficients developed for the specific cities. The estimates 
prepared by Professor Smith are shown in Figure 2. Note that 
the scale in Figure 2 is expanded compared to Figure 1. These 
estimates for the individual cities have substantial 
statistical validity because the observations are based on 14 
years of data from cities whose size is such that a substantial 
number of deaths were observed over that time period. It may be 
noted in this graph that the six cities that had positive 
coefficients in the Bayesian analysis plus one other city, 
Cincinnati, (Fig. 1) had raw estimate coefficients that were 
also positive and statistically significant. Thirty-four cities 
had negative coefficients.
    When reviewing the Bell et al. (2004) results, it is useful 
to recall the averaging time used for the NAAQS for ozone. It 
is not the 24-hour average ozone considered in detail by Bell 
et al. (2004), it is the 8-hour maximum concentration. Thus, 
the Bell et al. (2004) analyses as presented are not directly 
applicable to setting the NAAQS for ozone nor in calculating 
health risks/benefits of alternative NAAQS. Bell et al. (2004) 
does give an overall national coefficient for the daily 8-hour 
maximum. It is 0.64 percent (95 percent Confidence Interval, 
0.41 percent-0.86 percent) for a 15 ppb increase in the daily 
8-hour maximum. Note that the denominator used for the 8-hour 
maximum ozone increase in 15 ppb in contrast to the 10 ppb used 
for the 24-hour average ozone metric. As I have already noted, 
it is my view that a single national ozone concentration-
response coefficient is of limited value because of the great 
heterogeneity of air quality and population health statistics 
such as for morbidity and mortality, that describe communities 
across the U.S. The results of analyses that focus on 
individual city results would be more scientifically valid in 
evaluating potential health ozone effects for any given city.
    The results of analyses for the 8-hour maximum ozone metric 
conducted by Professor Smith are shown in Figures 3 and 4. In 
Figure 3, results are presented for the individual cities in 
the NMMAPs data base. Note that for 31 cities the raw 
regression coefficients are below zero, clearly no association 
of increased ozone short-term mortality. I am pleased that my 
home town, Albuquerque, NM, is one of these cities. The results 
should be reassuring to our mayor. Of the remaining cities, 
only 10 have statistically significant associations between 
increases in the 8-hour concentration of ozone and increased 
mortality. Shown in Figure 4 are the Community-specific 
Bayesian estimates for the 8-hour maximum ozone metric, 
calculated in a manner similar to Bell et al. (2004). Note that 
now the central values all are to the right of the zero line. 
However, only seven cities have positive coefficients that are 
statistically significant.
    In my view, the community-specific estimates are highly 
relevant to the setting of the NAAQS. That can be illustrated 
in part by reviewing the data in Attachment 6. This attachment 
is based on EPA data and shows the 8-hour design values for 
individual cities. A review of the list of Core-Base 
Statistical Areas and their associated 8-hour design values 
will reveal that the cities shown to have positive associations 
between increases in 8-hour maximum ozone and increases in 
short-term mortality are near the top of the list. These cities 
are out of compliance with the current NAAQS for ozone, 0.084 
ppm using conventional rounding techniques for the NAAQS set at 
0.080 ppm.
    What is equally important is to recognize that many cities 
shown in Figures 3 and 4 that have no statistically significant 
association between ambient ozone concentration and increased 
mortality have 8-hour design values in the range of 0.060 ppm 
to 0.084 ppm. This is the range for which the Administrator has 
solicited comments on alternative numerical standards. Indeed, 
many cities such as Albuquerque are in the range between 0.075 
ppm (the upper end of the proposed range in the proposed rule) 
and 0.084 ppm. It is my view that these data provide the kind 
of context that Justice Breyer has indicated is a part of the 
considerable discretionary standard-setting authority granted 
to the Administrator in making policy judgments. As a citizen 
of Albuquerque, NM, with an 8-hour design value of 0.077 ppm, I 
would have great difficulty explaining to my mayor the 
scientific basis for having to attain a new standard set in the 
range of 0.070 to 0.075 ppm, with an averaging time of 8 hours, 
if that were the numerical level set for the NAAQS for ozone in 
the final rule.
    References
    Bell, M.L., McDermott, A., Zeger, S.L., Samet, J.M. and 
Dominici, F. (2004). Ozone and Short-Term Mortality in 95 U.S. 
Urban Communities, 1987-2000. JAMA 292(19): 2372-2378.
    Smith, Richard, Personal Communication (2007). (Professor 
Richard Smith is in the Department of Statistics and Operations 
Research at the University of North Carolina-Chapel Hill).

[GRAPHIC] [TIFF OMITTED] T1975.028

[GRAPHIC] [TIFF OMITTED] T1975.029

[GRAPHIC] [TIFF OMITTED] T1975.030

[GRAPHIC] [TIFF OMITTED] T1975.031

                              ATTACHMENT 5


EPA/Abt Risk Assessment
    The ``Ozone Health Risk Assessment for Selected Urban 
Areas'' conducted by Abt Associates for the EPA provides key 
information to inform the Administrator's policy judgments in 
setting the NAAQS for ozone. Substantial use is made of the 
risk assessment in the Staff Paper and in the Proposed Rule.
    There are serious problems with the present risk assessment 
which I will briefly comment on. Key elements of the risk 
assessment are: (a) the cities selected for evaluation, (b) the 
historical population morbidity and mortality data for these 
cities, (c) the estimated ambient concentrations of ozone 
projected for these cities, and (d) the ambient ozone 
concentration-response coefficients used in estimating excess 
risk for the identified populations.
    The risk assessment and its appendices are turgid with 
detailed information. Unfortunately, it is not presented in a 
manner that is easy to grasp. It is especially noteworthy that 
the presentation does not provide the kind of contextual 
information that is needed by the Administrator to make policy 
judgments on setting the NAAQS for ozone. Justice Breyer's 
opinion referenced earlier and contained in Attachment 2 
emphasizes that any calculated risk attributed to ozone needs 
to be placed in context relative to other risks commonly 
encountered by the populace. That kind of information is not 
made clear in the risk assessment or the Staff Paper with side-
by-side comparison of the size of the population and historical 
data on common morbidity and mortality indices and calculated 
ozone attributable morbidity and mortality. The use of 
percentage values common in the risk assessment is not a 
substitute for the starkness of absolute numbers to inform 
policy judgments.
    A major shortcoming of the risk assessment is the failure 
to directly link the analysis to the 8-hour averaging time used 
in the current and projected NAAQS for ozone. A quick reading 
of the risk assessment would lead one to assume that a 24-hour 
averaging time was to be advocated for the NAAQS for ozone. 
Table B.1 of the Risk Assessment lists the study specific 
information used. This table lists 96 ambient concentration 
response metrics used in the risk assessment; 80 are for 24-
hour average, 14 for the 1 hour maximum and only 2 for 8-hour 
maximum. This leaves open the question of what the risk 
analysis would have revealed if an 8-hour maximum metric had 
been used. As discussed earlier, there is data available for 
the 8-hour maximum metric for all the cities evaluated in the 
risk assessment.
    The fallacy of assuming there are some national metrics 
that can be used for converting from the 24-hour daily average 
to the 8-hour maximum values is illustrated in Figure a and b 
which plots the ratio of the coefficients derived using an 8-
hour maximum ozone versus 24-hour daily ozone for both the raw 
and posterior (Bayesian) estimates for individual cities. The 
straight lines shown in both Figure 1a and 1b have a slope of 
0.75 through the origin. The 0.75 slope is equal to 1/1.33, the 
1.33 value being a ratio used to convert from an 8-hour maximum 
metric to the daily 24-hour average by several investigators 
(Bell et al., 2004; Levy et al., 2001; Thurston and Ito, 2001). 
It is apparent that there is a general association between the 
two metrics. However, it is clear that ``one size does not fit 
all.'' In many cases, 24-hour daily average metric is a poor 
surrogate for the 8-hours maximum metric. In my view, it is 
crucial to use city-specific 8-hour maximum coefficients if the 
NAAQS for ozone is to be set with an 8-hour averaging time.
    A comparison of 1a (the raw estimates) with 1b (the 
Bayesian posterior estimates) indicates how the Bayesian 
estimates are ``shrunk'' toward a common central value. It is 
my opinion that for most cities the raw estimates are 
sufficiently robust based on observations over 14 years in 
cities with populations usually exceeding 500 thousand that it 
is not necessary to use Bayesian techniques to bolster 
statistically confidence in the values. Some might argue that 
the use of the Bayesian approach helps sharpen the estimated 
concentration-response coefficients for individual cities. I 
argue that consideration should also be given to the city-
specific raw estimates of the coefficients. If Bayesian 
techniques are to be used, the results might have more validity 
if the focus were on regional estimates rather than the 
creation of national ambient ozone concentration-response 
coefficients. In my opinion, there is need for respecting the 
underlying heterogeneity.
    As already noted, the risk assessment is seriously flawed 
in that inappropriate estimates have been used for the Policy 
Relevant Background. By using estimates of the Policy Relevant 
Background developed by low resolution modeling in calculating 
excess risk, the risk assessment inappropriately attributes 
risks to ozone arising from man-made precursors that in fact is 
a part of the background ozone.
    A review of the transcripts of the CASAC meetings and CASAC 
letters reveals that CASAC recognized that the ``Policy 
Relevant Background'' issue was not resolved. Unfortunately, 
CASAC did not adequately pursue this issue and especially the 
impact on the risk assessment. I am pleased that the EPA (see 
page 155, footnote 40 of the proposed rule) recognizes this 
matter needs more attention by calling for additional 
sensitivity analyses related to Policy Relevant Background. It 
is my opinion that this matter is of sufficient importance that 
it requires the development of amendments to the Criteria 
Document, Staff Paper and Risk Assessments with associated 
public meetings for review and comment. Indeed, it is my 
understanding that material germane to this issue has already 
been prepared by EPA contractors and was excluded by 
Administrative decisions from the final documentation used in 
the ozone NAAQS review.
    It is my opinion that the Risk Assessment is so seriously 
flawed that it should be revised focusing on the 8-hour maximum 
ozone concentration-response coefficients and subjected to 
public comment and review. It is my contention that the flawed 
and inaccurate presentation of the risks of ambient ozone 
concentrations did not provide the Administrator with a 
scientifically adequate basis for making the Policy Judgments 
necessary in setting the NAAQS for ozone.
    Figure 1. The upper panel is a plot of the ratios for 
individual cities of the raw estimates of the concentration 
metric versus the 24-hour metric. The lower panel is a plot of 
the posterior (Bayesian) estimates of the ozone concentration-
response coefficients for the 8-hour maximum metric versus the 
24-hour metric.

[GRAPHIC] [TIFF OMITTED] T1975.032

    References
    Bell, M.L., McDermott, A., Zeger, S.L., Samet, J.M. and 
Dominici, F. (2004). Ozone and Short-Term Mortality in 95 U.S. 
Urban Communities, 1987-2000. JAMA 292(19): 2372-2378.
    Levy, J.L., Carrothers, T.J., Tuomisto, J.T., Hammitt, J.K. 
and Evans, J.S. (2001). Assessing the Public Health Benefits of 
Reduced Ozone Concentrations. Environmental Health Perspectives 
109: 1215-1226.
    Thurston, G.D. and Ito, K. (2001). Epidemiological Studies 
of Acute Ozone Exposures and Mortality. J. Exp. Anal. Environ. 
Epidemiol. 11: 286-294.

[GRAPHIC] [TIFF OMITTED] T1975.033

[GRAPHIC] [TIFF OMITTED] T1975.034

[GRAPHIC] [TIFF OMITTED] T1975.035

[GRAPHIC] [TIFF OMITTED] T1975.036

[GRAPHIC] [TIFF OMITTED] T1975.037

[GRAPHIC] [TIFF OMITTED] T1975.038

[GRAPHIC] [TIFF OMITTED] T1975.039

[GRAPHIC] [TIFF OMITTED] T1975.040

[GRAPHIC] [TIFF OMITTED] T1975.041

    Senator Carper. Dr. McClellan, thank you very, very much.
    Our vote is underway, and Mayor Grace, I want to make sure 
we get your testimony in before Senator Voinovich and I hot-
foot it over to the floor to vote, then we will be back to ask 
you some questions.
    Our final witness here today on this panel is Mayor George 
L. Grace. I understand you are also something that a lot of my 
colleagues would like to be, and that is you are also 
president, in this case not of the United States, but President 
of the National Conference of Black Mayors. Mayor, Mr. 
President, wearing both of those hats, you have 5 minutes. I 
will ask you to use those 5 minutes well. Thanks so much.

 STATEMENT OF HON. GEORGE L. GRACE, MAYOR, ST. GABRIEL, LA AND 
         PRESIDENT, NATIONAL CONFERENCE OF BLACK MAYORS

    Mr. Grace. Thank you, Chairman Carper, Senator Voinovich.
    As said, I am George L. Grace, and I am Mayor of the city 
of St. Gabriel, Louisiana, and I am President of the National 
Conference of Black Mayors.
    On behalf of the more than 600 member mayors, I want to 
thank you for this opportunity to appear before your 
Subcommittee this morning to share with you our views and 
concerns regarding the U.S. Environmental Protection Agency's 
recently announced Notice of Proposed Rulemaking to Review the 
National Ambient Air Quality Standard for ozone. Mr. Chairman, 
without objection, I will summarize the main points of my 
record statement and attempt to respond to any questions you 
and any other member of the Subcommittee may have.
    Senator Carper. Mayor Grace, your entire statement will be 
entered into the record. Feel free to summarize.
    Mr. Grace. Thank you.
    I would like to begin by making three points. First, the 
National Conference of Black Mayors supports EPA's regulatory 
polices that are intended to improve our Nation's air quality 
in a manner that is cost-effective for our communities and 
based on sound science. Second, because of such EPA policies, 
and the coordinated efforts of State and local governments as 
well as industry, substantial progress has been made over the 
past 25 years in meeting the Clean Air Act's air quality goals. 
While more progress is needed in selected areas of the 
communities across the Country, we should make no mistake that 
the Clean Air Act is working as intended.
    EPA's own data shows that between 1970 and 2006, total 
emissions of the six principal air pollutants dropped by 54 
percent. Last, the National Conference of Black Mayors is 
deeply concerned about the potential adverse effects on the 
communities we represent should EPA decide in its final ruling 
to adopt a more stringent NAAQS standard for ozone.
    In specific regards to Louisiana, my understanding is that 
there are currently five parishes classified as in non-
attainment. My parish of Iberville is one of those. Under 
either proposal being considered, over half of the 64 parishes 
in the State would be reclassified as in non-attainment for 
ozone. As I am sure you aware, the designation of a county, or 
a parish in my case, as in non-attainment for ozone triggers a 
second process in which States must develop and submit to EPA a 
State Implementation Plan that demonstrates compliance within a 
new standard within a certain timeframe. The emission control 
strategy required to make such a demonstration will 
significantly impact the economics of local communities, 
including jobs and future growth.
    Many parishes across our State will for the first time 
experience the stigma and compliance challenges of being 
designated non-attainment for ozone. Moreover, these parishes, 
or counties, that are currently designated as being in non-
attainment for ozone would be faced with identifying and 
implementing even more demanding compliance strategies, even 
before they have had an opportunity to implement fully the 
plans on which they are now working to comply with, the present 
.08 parts per million standard.
    The situation in Louisiana is representative of what many 
other member mayors across the Country will face should the 
ozone standard be made more stringent. Alabama, for example, 
currently has only two of the State's 67 counties designated as 
non-attainment for ozone. This number would increase to over 
half the State's counties, depending on which new standard is 
chosen.
    Similarly, in Mississippi, up to one-third of the State's 
82 counties would become non-attainment, again depending upon 
which standard is chosen. The impact of being designated non-
attainment will also have a disparate impact on those 
communities undertaking economic revitalization efforts and 
rebuilding, like those in the Gulf Coast States in the 
aftermath of Hurricanes Katrina and Rita. Such impacts manifest 
themselves in the form of increased costs to industry, 
permitting delays and restrictions on industry, industrial 
expansion within an area, impacts on transportation planning, 
increased costs to consumers for commercial and consumer 
products.
    This will result in continuing oversight by EPA at the 
local level until the area has met and maintained the standard 
for the required period of years. These aspects have a very 
real impact on the community.
    We can't afford to jeopardize the progress being made in 
the south as well as the Country as a whole. Thank you very, 
very much for this opportunity.
    [The prepared statement of Mr. Grace follows:]

     Statement of Hon. George L. Grace, Mayor, St. Gabriel, LA and 
             President, National Conference of Black Mayors

    Good morning.
    I am George l. Grace, mayor, St Gabriel, Louisiana, and 
president of the National Conference of Black Mayors (NCBM).
    Mr. Chairman, on behalf of its more than 600 member mayors, 
I want to thank you for the opportunity to appear before your 
subcommittee this morning to share with you our views and 
concerns regarding the us environmental protection agency's 
recently announced notice of proposed rulemaking (nprm) to 
review the National Ambient Air Quality Standard (NAAQS) for 
ozone.
    Mr. Chairman, without objection I will summarize the main 
points of my record statement and attempt to respond to any 
questions you or other members of the subcommittee might have.
    I would like to begin by making three points.
    First, the National Conference of Black Mayors supports EPA 
regulatory policies that are intended to improve our Nation's 
air quality in a manner that is cost-effective for our 
communities and based on sound science.
    Second, because of such EPA policies, and the coordinated 
efforts of State and local Governments and industry, 
substantial progress has been made over the past 25 years in 
meeting the clean air act's air quality goals. While more 
progress is needed in selected areas and communities across the 
country, we should make no mistake that the clean air act is 
working as it was intended. EPA's own data show that between 
1970 and 2006, total emissions of the six principal air 
pollutants dropped by 54 percent.
    Lastly, the NCBM is, however, deeply concerned about the 
potential adverse impact on the communities we represent, 
should EPA decide in its final ruling to adopt a more stringent 
NAAQS standard for ozone.
    In specific regard to Louisiana, my understanding is that 
currently, there are only 5 parishes classified as non-
attainment for ozone. Under either of the proposed new 
standards under consideration over half of the 64 parishes in 
the State could be reclassified as non-attainment for ozone.
    As I am sure you are aware, the designation of a county (or 
parish) as non-attainment for ozone triggers a second process 
in which affected States must develop and submit to EPA a State 
Implementation Plan (SIP) that demonstrates compliance with the 
new standard within a certain time frame. The emission control 
strategies required to make such a demonstration will 
significantly impact the economies of local communities, 
including jobs and future growth.
    Many parishes across our State will, for the first time 
experience the stigma and compliance challenges of being 
designated non-attainment for ozone. Moreover, those parishes 
that are currently designated as being non-attainment for ozone 
will be faced with identifying and implementing even more 
demanding compliance strategies, even before they have had an 
opportunity to implement fully, the plans on which they are now 
working to comply with the present 0.08 ppm standard.
    The situation in Louisiana is representative of what many 
of our member mayors across the country will be facing should 
the ozone standard be made more stringent.
    Alabama, for example, currently has only two of the State's 
67 counties designated as non-attainment for ozone. This number 
could increase to over half of the State's counties depending 
upon which new standard is chosen.
    Similarly, in Mississippi, up to one third of the State's 
82 counties would become non-attainment, again, depending upon 
which standard is chosen.
    The impact of being designated non-attainment will also 
have a disparate impact on those communities undertaking 
economic revitalization efforts and rebuilding, like those in 
the gulf coast in the aftermath of Katrina. Such impacts 
manifest themselves in the form of increased costs to industry, 
permitting delays, restrictions on industrial expansion within 
an area, impacts on transportation planning, increased costs to 
consumers and for commercial and consumer products. This 
results in continuing oversight by EPA at the local level until 
the area has met and maintained this standard for the required 
period of years. These aspects have very real impacts on 
communities.
    I have heard some say that at the levels being proposed, 
attainment and maintenance of the standard will be out of reach 
for most industrialized States.
    We simply cannot afford to jeopardize the progress being 
made in the south, as well as the country as a whole.
    At the National Conference of Black Mayors annual meeting, 
we adopted unanimously a resolution calling upon EPA to include 
among its policy options, consideration of retaining the 
current 0.08 ppm standard. I am providing a copy of that 
resolution for the record.
    In closing, Mr. Chairman, the National Conference of Black 
Mayors is committed to a clean environment and improved air 
quality for our communities. However, I'd like to stress that 
air quality is not the only thing that impacts the health of 
the people we represent. The health and welfare of our 
communities is also dependant on having good jobs, economic 
growth and the quality of life that goes with it.
    Accordingly, it is important to have a full and fair 
discussion of the air quality progress we have achieved to 
date, and the health and welfare aspects of the economic 
impacts to our communities.
    The National Conference of Black Mayors intends to 
participate fully in the public comment process associated with 
EPA's proposed rule. We believe that the current standard 
should not be made more stringent at this time and will urge 
EPA to make a realistic assessment of our air quality needs and 
give careful consideration to the potential adverse impact of a 
lower standard on our local communities, and the welfare of 
those who work and live there, including the small and 
minority-owned businesses that operate and provide services in 
these areas.
    Thank you again, Mr. Chairman.
    I will be happy to respond to any questions you might have.

    Senator Carper. Mayor, thank you. The rest of your 
testimony will be entered into the record.
    We are going to recess for about 10 minutes, we are going 
to run and vote. And we will be way back. While we are away, if 
the five of you could sort of work out what you think is the 
consensus position and share that with us, that would just be 
much appreciated.
    [Laughter.]
    Senator Carper. We will see you in about 10 minutes.
    [Recess.]
    Senator Carper. I am going to ask our witnesses to take 
your seats again, please.
    Mr. Werner, did you all work things out while Senator 
Voinovich and I were off voting?
    Mr. Werner. We did. Base it on the science.
    [Laughter.]
    Senator Carper. All right. Let me start off, again, my 
thanks to each of you for your excellent testimony. I want to 
start off with my first question, I would like to address to 
Mr. Werner, please. When I was Governor, we were trying to 
develop a State Implementation Plan. I don't know if you were 
here in D.C. then or in Missouri in your previous post. But we 
were trying to retain the current standard. However, much of 
the pollution in our State didn't come from our State, as you 
know. Can you just tell us how Delaware has managed to improve 
our air and to still be on target for reaching attainment by 
2010, without shutting down the State's economy?
    Mr. Werner. Absolutely. Not only did we not shut down the 
economy, we have increased it enormously, probably because the 
quality of life is something that is valued, and we work on 
very hard. We have taken a number of creative steps to address 
the air pollution problem. But as I said, we can't do it alone, 
but we do our part. There are some of the things that are 
unique to Delaware. For example, we bring in supertankers off 
the Atlantic Ocean and lighter them to remove crude oil onto 
other ships. When that happens, about 2,000 tons a year of 
volatile organic compounds are contributed to the ozone 
problem. To control that, we have worked with industry on 
trying to develop methods for containing the VOCs coming off 
those lightering vessels.
    Another example, we have one of the largest sour crude 
refineries operating in the United States. It not only emits a 
huge amount of SOx, but VOCs, and of course, NOx, from boilers 
and other sources. What we have found is working with them, we 
could focus our regulatory time tables at a time when they are 
shutting down equipment anyway for regular maintenance, whether 
it is the coker or the boilers, so that the control costs are 
kept low. We find the key is working with industry in 
identifying ways to keep the costs down and identifying sources 
where you can obtain cost-effective reductions. Again, we can 
only do so much. We need more regional and national initiatives 
to help out.
    Senator Carper. What are some things we could do, we here 
at the Federal end, to help?
    Mr. Werner. I think your CAPA bill, or ``Clean Air Planning 
Act'' goes a long way toward that, the 80 plus percent 
reduction in SOx, the enormous reductions in NOx, setting 
tighter caps, allowing for market-based solutions that the 
Environmental Defense Fund has really promoted as well and has 
demonstrated would be very effective.
    Setting those standards, setting a tighter cap helps. Some 
more monitoring and modeling assistance, different things, 
money is needed there that States can't do alone. The Ozone 
Transport Commission, OTC, has been an enormously valuable 
partner in that. But they can't do all the modeling without 
more EPA funding assistance.
    Last, some of the federally mandated sources, like mobile 
sources, more has to be done there. Of course, as I mentioned 
before, some out of the box things, land use planning, smart 
growth. There used to be a major effort in the Federal 
Government to provide technical assistance on smart growth that 
will help with reducing mobile source emissions. Some more 
support for those things as well.
    Senator Carper. Thank you.
    Dr. Bell, I want to go back to some of the testimony that 
Dr. McClellan presented. I would just ask, where do you agree 
with him and where do you disagree?
    Ms. Bell. I disagree with the written testimony's 
interpretation of my work. And I----
    Senator Carper. In what respect?
    Ms. Bell. Excuse me?
    Senator Carper. Could you elaborate on that?
    Ms. Bell. I believe that the relationship between ozone and 
mortality has been demonstrated by numerous studies and that 
the evidence is compelling and overwhelming. There is my own 
study, which is a national U.S. study, there is also a study on 
23 European cities, a study from Harvard University, studies 
from New York University School of Medicine and many other 
studies I could list today that show that this relationship 
stands up to a variety of statistical techniques, a variety of 
study locations as well.
    So I disagree with his interpretation that the scientific 
evidence on mortality and ozone is not compelling.
    Senator Carper. Are there other parts of his testimony with 
which you agree or disagree that you would like to share?
    Ms. Bell. Well, he spent a good deal of his testimony both 
in the oral portion and the written portion talking about the 
difference between the 24 hour exposure metric and the 8 hour 
exposure metric. I agree that both of these exposure metrics 
have been used in a variety of studies. In fact, if you look 
historically at the human health literature, the changing 
nature of what exposure metric has been used reflects expanding 
scientific knowledge about the way in which ozone impacts human 
health.
    The 24 hour ozone levels are very highly related to the 8 
hour ozone levels, and by that I mean that on days when the 24 
hour level is high, the 8 hour level is typically high. So 
while some studies have provided the 8 hour standard, 8 hour 
metric time, and some studies have provided the 24 hour metric 
time. In my own study in the Journal of the American Medical 
Association, I provided both relevant measures.
    But all of these different types of studies using this 
range of exposure times are very, very relevant to our 
understanding of ozone and human health, not just the ones 
based on the 8 hour standard, excuse me, 8 hour metric time.
    Senator Carper. Mr. Werner, you were nodding your head as 
Dr. Bell was speaking. We didn't get that on the record.
    [Laughter.]
    Senator Carper. What was that head nod about?
    Mr. Werner. Just briefly, studying toxicology in the 1970's 
as an undergraduate and then later in grad school at Johns 
Hopkins, the science has been pointing to exactly what Dr. Bell 
said for quite some time. It is just frustrating to be a 
practitioner, being the bureaucrat, who has to sit down toe to 
toe with these industries and hear them complain about the 
standard. I am sorry, the science has pointed that direction 
for some time. The policy, has lagged behind for too long a 
time. Maybe I am just an impatient person, I just want to see 
that the science and the policy get bridged.
    Senator Carper. All right, good. Dr. McClellan, a rebuttal, 
a comment?
    Mr. McClellan. I would agree that as the science has 
evolved over time we have used a variety of metrics. But the 
very important point to keep in mind is that when we set the 
standard, it is a precise numeric standard and it is set for a 
precise averaging time. Thus, while there is a correlation 
between ozone exposure coefficients developed with 24 hours 
averaging time daily versus an 8 hour averaging time, there is 
considerable city to city variation. That has to be 
acknowledged. And in the end, the policy judgment is one that 
has to be based on the 8 hour averaging time, unless Dr. Bell 
or others would like to propose that we move to a 24 hour 
averaging time as standard. Obviously, the numerical level 
selected for a 24 hour averaging time standard would be quite 
different than one selected for an 8 hour averaging time 
standard.
    It is important to keep in mind, that we have been talking 
here about the possibility of a change from 0.08 ppm down to 
0.07. That is a very small change. One shouldn't casually slip 
from talking about that change in an 8 hour averaging time and 
then use data that is for 24 hours or for 1 hour averaging 
times to justify reduction. It has to be done in a very 
careful, structured way. Unfortunately that was not done in 
EPA's risk assessment.
    Senator Carper. All right, thank you.
    Mayor Grace, in your testimony, you spoke really about the 
threat to the economy, threat to job creation and job 
preservation in your town and other towns whose mayors are 
members of your national association. I fully appreciate the 
need for jobs. We could have perfectly clean air and have no 
jobs and all is not well.
    Talk to us a little bit, if you would, there is another 
side to this coin, as you know. The coin that you have 
addressed is the coin that says, we need jobs, we need to make 
sure we have a strong and vibrant economy. How do we balance 
that with the fact that we do have a lot of people who suffer 
from asthma and other chronic diseases that are related to the 
quality of the air that we breathe. How do we balance those 
two?
    Mr. Grace. Let me just say, in my area, which is the Baton 
Rouge area, and we are in a non-attainment posture at this 
time, but I have lived in that area all my life. I have seen 
the quality of air evolve from where it used to be to where it 
is now. I also see, as Mayor of the city, and I am familiar 
with other mayors in that area, I have seen the effort that has 
been made by EPA and by industry as well as local government. 
Things are improving just tremendously. I can, just by living 
there, I can tell the difference.
    What I am simply saying is, we have had a lot of work that 
has been done and that is being done. A lot of these industries 
in my area, I have 12 petrochemical plants within the confines 
of the city of St. Gabriel. These people are working very hard 
to attain the level of 0.08 parts per million. And I think it 
would be disruptive and maybe a little premature to start 
moving drastically in another direction.
    Also, we have plants that want to expand and they are sort 
of on hold. They are having to choose whether they want to 
actually make an investment in my city or in my area, or move 
their operations abroad. These kinds of things are very much of 
a concern to our citizens in that area. We are talking about 
reformulated gasoline, we are talking about a whole lot of 
things as being very disruptive. And the investment capital 
that I think we would get by virtue of the fact that we have a 
lot to offer, the Mississippi River and other available land 
and things like that, is mitigated by the fact that we have 
some uncertainty as it relates to the ozone levels.
    Senator Carper. Thank you, sir. Part of Mayor Grace's 
testimony, on page three, I will just read one sentence. It 
says, many parishes across our State will for the first time 
experience the stigma, this is if the standard is 
strengthened----
    Mr. Grace. Correct.
    Senator Carper [continuing].--will experience the stigma 
and compliance challenges of being designated non-attainment 
for ozone. And I would say as a former Governor, now a Senator 
of a State whose all three counties are in non-attainment, 
there are worse things than being in non-attainment. You don't 
want to be there forever. But among the worse things are having 
kids, older people, especially, not being able to breathe the 
air and they suffer health problems because of that. Our 
challenge, and I think it is the challenge that the EPA 
Administrator faces is, he is required under law to figure out 
what is the science and what do we need to do for health.
    Our challenge, we happen to be the mayor, we happen to be 
Governor, we happen to be somebody who is in charge of economic 
development in your State, in charge of environmental controls 
in your State, Senator, our job is to figure out how we can 
work together so we can maybe not have it all, but come pretty 
close, and having it all being a strong, vibrant economy and 
improving health and improving air quality so we can reduce our 
health problems.
    I have a question, if I could, for Ms. Patton. I believe 
you, along with Administrator Johnson, and several others of 
our witnesses today have talked about how the Clean Air Act has 
already achieved significant reductions in air pollution. Many 
claim that taking this next step will only hurt the economy and 
it is not necessary. Mayor Grace in his testimony has alluded 
to that. Let me just ask, what is your response to these 
concerns?
    Ms. Patton. Senator Carper, I am not aware of any 
circumstance where EPA has been confronted with such clear and 
convincing science. I think that is embodied in the 
recommendations of the Clean Air Scientific Advisory Committee. 
The Nation's Ambient Air Quality Standards have been revised a 
number of times since the inception of the modern Clean Air Act 
in 1970. The particulate matter health standard has been 
revised on four occasions, including most recently in September 
2006. The ozone health standard was originally established in 
1971, revised in 1979, then again in 1997. Ultimately, there 
will be a decision made on March 12th of 2008.
    In each instance, the Administrator of EPA was entrusted 
with looking at this body of science and making a decision to 
set a standard that is requisite to protect public health with 
an adequate margin of safety. This is a very unusual 
circumstance, where 1,700 studies since the standard was last 
reviewed tell us clearly and convincingly that we need to 
substantially reduce the Nation's health standard to protect 
the public health against this very serious range of impacts 
that were documented in this CASAC letter and in the volumes of 
materials that underlie it.
    Senator Boxer said when we were last confronted with these 
similar arguments, and the Nation reviewed the adequacy of the 
health standard in 1997 for ozone and particulate pollution 
that this is a familiar argument. The decision to tighten the 
Nation's health standards are always met with claims of 
economic demise. Then technology catches up, we deploy 
innovative solutions. The science only confirms what we thought 
in terms of the public health impacts. And everyone breathes 
cleaner air.
    Senator Carper, what you described was a world in which we 
don't look at a non-attainment map and shrink from that 
challenge. You described a world in which we stand up. And we 
take that challenge on. And in fact, there is a third map that 
was not presented today that shows that in 2020, based on the 
emissions standards on the books and under consideration right 
now at the Environmental Protection Agency, that over 60 
percent of the areas on the second map that would be affected 
by a .070 standard would come into compliance in 2020.
    So we have this great American success story where we have 
met the challenge. And we must accept it. And we can in fact 
protect human health with an adequate margin of safety.
    Senator Carper. All right, thank you. As we come to a 
conclusion here, I would simply add, there is plenty of work 
here for all of us to do. That includes the folks who are 
privileged to sit in the seats that I am now sitting in, and 
folks back home in our State and local governments, and folks 
that are working in universities to invent new technologies 
like those plug-in hybrids and those lithium ion batteries that 
will enable us to build a Chevrolet product or a Ford product 
or Chrysler product or other product that will help us to clean 
our air and reduce our dependence on foreign oil at the same 
time.
    In our jobs, we get to sit through a lot of hearings. And 
it is rarely that I sit through a hearing and walk away and 
say, well, that wasn't much help. That is rare that happens. 
Having said that, this has been an extraordinarily helpful 
hearing, uncommonly helpful hearing. I am encouraged, walking 
away from here, that next March 12th, the Administrator is 
going to make a decision and announcement that is not going to 
be wildly cheered by everyone, but most people will say that 
was the right thing to do, and it keeps us moving in the right 
direction. Then the obligation falls on the rest of us to make 
sure if we do have that more rigorous standard that we cannot 
just meet it, but also meet it in a way that enables us to 
continue to grow our economy and to meet those needs of our 
people, whether they happen to be down there in Alabama or up 
in Delaware or any other place in our Country.
    You all could have been some place else today, and we are 
just very grateful that you are here. And to each of you for 
the work that you do and the stewardship that you provide for 
folks, whether it is in a State or a town, thank you for that.
    Connor, young man, we are delighted that you took a day 
off. You could have been at the beach some place, you could 
have been at the beach in Delaware today having a good time. 
But we are glad you came here today and we are glad you brought 
your grandfather with you. I thought he did a nice job, and I 
hope that you are pleased as well.
    With that having been said, we will close this hearing. 
Some of our Senators are going to be submitting additional 
questions for you to answer. I would appreciate if you would do 
that, and that would become part of the record.
    Senator Carper. I would ask that you complete the answers 
to those questions for the record promptly, if you will, so we 
can publish our hearing. We try to do that in a timely fashion.
    Again, thank you all for coming. We wish you a good week 
and better air quality, wherever you are headed. God bless you. 
Thank you so much.
    This hearing is adjourned.
    [Whereupon, at 12:25 p.m., the committee was adjourned.]

    [GRAPHIC] [TIFF OMITTED] T1975.001
    
    [GRAPHIC] [TIFF OMITTED] T1975.002
    
    [GRAPHIC] [TIFF OMITTED] T1975.003
    
    [GRAPHIC] [TIFF OMITTED] T1975.004
    
    [GRAPHIC] [TIFF OMITTED] T1975.020
    
    [GRAPHIC] [TIFF OMITTED] T1975.021
    
    [GRAPHIC] [TIFF OMITTED] T1975.022
    
    [GRAPHIC] [TIFF OMITTED] T1975.023
    
      

                               
