[Congressional Record (Bound Edition), Volume 149 (2003), Part 19]
[House]
[Pages 26366-26382]
[From the U.S. Government Publishing Office, www.gpo.gov]




   MOTION TO INSTRUCT CONFEREES ON H.R. 6, ENERGY POLICY ACT OF 2003

  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I offer a motion to 
instruct conferees.
  The SPEAKER pro tempore. The Clerk will report the motion.
  The Clerk read as follows:

       (1) The House conferees shall be instructed to include in 
     the conference report the provisions of section 837 of the 
     Senate Amendment that concern reformulated gasoline in ozone 
     nonattainment areas and ozone transport regions under the 
     Clean Air Act.
       (2) The House conferees shall be instructed to confine 
     themselves to matters committed to conference in accordance 
     with clause 9 of rule XXII of the House of Representatives 
     with regard to any matters relating to ozone nonattainment 
     and ozone transport.

  The SPEAKER pro tempore. Pursuant to clause 7 of rule XXII, the 
gentlewoman from Texas (Ms. Eddie Bernice Johnson) and the gentleman 
from Texas (Mr. Barton) each will control 30 minutes.
  The Chair recognizes the gentlewoman from Texas (Ms. Eddie Bernice 
Johnson).
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield myself such 
time as I may consume.
  My motion to instruct the energy conferees is very, very simple. 
There is no provision in the House or Senate energy bills that allow 
ozone nonattainment areas to extend, or ``bump up,'' deadlines to 
comply with the Clean Air Act.
  Now, House GOP energy conferees, including my respected colleague, 
the gentleman from Texas (Mr. Barton), want to include a rider in the 
energy conference report to overturn four Federal court rulings and 
amend the Clean Air Act to allow polluted areas to have more time to 
clean up, but without having to implement air pollution controls. Every 
time one looks up, it is another extension. This would delay the 
adoption of urgently needed antipollution measures in communities 
throughout the country.
  Industry officials, environmentalists, local elected officials, the 
Texas Commission on Environmental Quality, and the Environmental 
Protection Agency have been working hard in recent months to find a way 
of complying with the ozone standards in north Texas. The Barton 
provision destroys that process.
  This special interest rider also shows reckless disregard for the 
health consequences that dirty air has on my constituents and others 
that live in smoggy cities across the country.
  To further delay necessary emissions reductions in ozone 
nonattainment areas is unacceptable and a betrayal of the public's 
trust. It is unacceptable, most of all, because it is based on false 
information that ozone transport jeopardizes attainment for smoggy 
cities.
  An article in my hometown newspaper, the Dallas Morning News, states 
today that documents and interviews from the Bush administration's EPA 
show little or no evidence to support claims that Houston's smog is 
harming the Dallas-Fort Worth attainment of clean air goals.

[[Page 26367]]

  This is not about jobs versus clean air; this is about a small set of 
areas seeking to avoid their responsibility under the Clean Air Act, 
thereby gaining a competitive advantage over other industries in other 
areas that have complied. The disadvantaged area is quite likely to be 
in your district.
  This provision is blatantly unfair to my constituents and the 
gentleman from Texas's (Mr. Barton) constituents who write me all the 
time and live down wind from the smokestacks in my colleague's 
district. Under this provision, dirty, unhealthy air will continue to 
blow downward on to my constituents, possibly until the year 2012.
  I am a nurse by profession. The health effects of air pollution 
imperil human lives. Ozone pollution burns cell walls in the lungs and 
air passages, causing tissues to swell, chest pain, coughing, 
irritation, and congestion. Ozone pollution decreases the ability of 
lungs to function properly. Air pollution aggravates asthma and 
increases susceptibility to bacterial infection. Long-term exposure to 
ozone in otherwise healthy individuals could set the stage for more 
serious illnesses. The cost for asthma, estimated at $11 billion 
annually, is only part of the total cost of the health care 
necessitated by exposure to harmful levels of ozone.
  The American Lung Association reports that exposure to high levels of 
ozone air pollution appears to be responsible for up to 50,000 
emergency room visits and up to 15,000 hospitalizations for respiratory 
problems each year. I had a dear friend lose her life this year from 
this very ailment, a 51-year-old M.D. who had never smoked a cigarette.
  In my district, the effects of air pollution are especially 
compelling. The American Lung Association reports that nearly a half 
million people in the Dallas-Fort Worth area live with diseases that 
are aggravated by air pollution. EPA's own consultants found that each 
year almost 370 residents of the Dallas-Fort Worth area died just 
because of pollution from the oldest and dirtiest unregulated power 
plants, and 10,500 asthma attacks are triggered.
  To further delay compliance and cleanup will increase health care 
costs for my constituents at a time when the health care system is 
broken. Clean air is crucial to the health of north Texans and the 
future economic well-being of our region.
  The Barton ``bump-up'' provision has no business in the energy bill.
  I suggest that if my colleague from Texas (Mr. Barton) and my 
colleague from Louisiana (Mr. Tauzin), gentlemen I respect, wish to 
amend the Clean Air Act, they should do so by showing respect for our 
legislative process and by using a more appropriate legislative 
vehicle. But instead, they have language they are not even sharing with 
people to do it.
  Enough is enough. Hard deadlines are necessary to get the job done 
and clean up our air. This time has been lengthened and lengthened and 
lengthened and, each time, what is the answer? Another lengthened time.
  Our Republican colleagues cannot continue to delay and stall. We have 
a greater obligation to protect public health than polluters' profits 
and campaign contributions.
  I am disappointed that many Republicans will frame this debate as a 
trade-off between jobs and the environment. They are dead wrong. I urge 
my colleagues to vote against giving a clean air holiday to a few areas 
with the right political connections. I ask my colleagues to put the 
public health ahead of polluters' profits. Please vote for the motion 
to instruct.
  Mr. Speaker, I reserve the balance of my time.
  Mr. BARTON of Texas. Mr. Speaker, I yield myself such time as I may 
consume.
  First, Mr. Speaker, I want to say I have nothing but the highest 
personal regard for the gentlewoman from Texas who is offering this 
motion to instruct conferees. She and I have served together in this 
body for, I think, approximately 11 years; and we have worked together 
on many, many issues and spent many, many moments together in very 
positive dialogue, and I appreciate her bringing this issue to the 
floor. My objection to the resolution is based on the policy, not on 
the person who is bringing the resolution.
  I do rise in opposition, respectfully, to the Johnson motion to 
instruct. To put it in the simplest terms, the issue before us today is 
not whether any Member of this body does not want the cleanest air 
possible for our citizens; the issue is whether we want to apply common 
sense to the Clean Air Act and to codify Clinton administration policy 
that was explicitly designed to avoid what the EPA, under the Clinton 
administration back in 1994, called an odd or even absurd result that 
penalizes an area for pollution that is beyond their ability to 
control.
  Let me put this in language that everybody can understand. The Clean 
Air Act amendments of 1990 categorized in a more definitive way ozone 
as a pollutant that needed to be regulated, and it set standards. It is 
the only pollutant in the act that has gradations of standards. For the 
other controlled pollutants, it is kind of an in or out, yes or no, 
pass or fail. But for ozone, it has different levels, from very 
moderate to very severe; and each of the levels has a different 
standard and a different timeline for compliance.
  I am an author of the Clean Air Act amendments. I spoke for them on 
the floor. I helped to work to put the bill together in the committee. 
So I have some personal history in this issue.
  As the Clean Air Act amendments of 1990 were being implemented, it 
became apparent that there were many regions of this country that were 
trying to comply; but because there were other areas down wind from 
them that had a different timetable and a different compliance 
criteria, it was making it difficult for some of these regions to 
comply in the technical sense with the act. So the Clinton 
administration came up with a proposal that said, we will show some 
flexibility. If, in fact, you have a State implementation plan that has 
been approved or is in the process of being approved and if, in fact, 
it looks like you are making a good-faith effort to come into 
compliance, we will give you an extension if we think it is meritorious 
and the reason that you need the extension is because there is another 
region that is not in compliance that is transporting their ozone 
pollution to you. That is common sense. There is nothing wrong with 
that.
  I want to put into the Record at this point in time, Mr. Speaker, the 
1994 Clinton administration policy that was contained in a memorandum 
signed by then-Assistant Administrator for Air and Radiation, Mary 
Nichols. This memorandum attempted to reconcile the conflicting 
provisions of the Clean Air Act and to give effect to as much of 
Congress' manifest intent as possible. I also want to put into the 
Record the 1998 Clinton administration policy on this issue that was 
actually published in the Federal Register.

                    Environmental Protection Agency


       Extension of Attainment Dates for Downwind Transport Areas

       Agency: Environmental Protection Agency (EPA).
       Action: Proposed interpretation; request for comments.
       Summary: Today's notice announces EPA's interpretation of 
     the Clean Air Act (Act) regarding the possibility of 
     extending attainment dates for ozone nonattainment areas that 
     have been classified as moderate or serious for the 1-hour 
     standard and which are downwind of areas that have interfered 
     with their ability to demonstrate attainment by dates 
     prescribed in the Act. The guidance memorandum that is being 
     printed in today's notice is entitled ``Extension of 
     Attainment Dates for Downwind Transport Areas'' and was 
     signed by Richard D. Wilson, Acting Assistant Administrator 
     for Air and Radiation, on July 16, 1998. This notice follows 
     up on the statement made in the guidance memorandum that EPA 
     would request comments on its interpretation.
       A number of areas may find themselves facing the prospect 
     of being reclassified or ``bumped up'' to a higher 
     classification in spite of the fact that pollution beyond 
     their control contributes to the levels of ozone they 
     experience. The notice addresses the problem by providing an 
     avenue to extend the attainment dates for areas affected by 
     transported pollution. The EPA intends to finalize the 
     interpretation in this guidance only when it applies in the 
     appropriate context of individual rulemakings addressing 
     specific attainment demonstrations and requests for 
     attainment date extensions. If EPA approves an area's 
     attainment demonstration and attainment date extension 
     request, the area would no longer be subject to

[[Page 26368]]

     bump up for failure to attain by its original attainment 
     date.
       Dates: The EPA is establishing an informal 30-day comment 
     period for today's notice, ending on [insert date 30 days 
     after date of publication in the Federal Register].
       Addresses: Documents relevant to this action are available 
     for inspection at the Air and Radiation Docket and 
     Information Center (6101), Attention: Docket No. A-98-47, US 
     Environmental Protection Agency, 401 M Street, SW, Room M-
     1500, Washington, DC 20460, telephone (202) 260-7548, between 
     8 a.m. and 4 p.m., Monday through Friday, excluding legal 
     holidays. A reasonable fee may be charged for copying. 
     Written comments should be submitted to this address.
       For Further Information Contact: Denise Gerth, Air Quality 
     Strategies and Standards Division, Office of Air Quality 
     Planning and Standards, US Environmental Protection Agency, 
     MD-15, Research Triangle Park, NC 27711, telephone (919) 541-
     5550.
       Supplementary Information: On July 16, 1998, the following 
     guidance was issued by Richard Wilson, Acting Assistant 
     Administrator for Air and Radiation. It should be noted that 
     the July 16, 1998 memorandum reprinted in this notice refers 
     to EPA's proposed NOx SIP call. After the 
     memorandum was signed, EPA took final action on the SIP call 
     and promulgated a final rule. See 63 FR 57356 (October 27, 
     1998).

 Guidance on extension of attainment dates for downwind transport areas

                                Preface

       The purpose of this guidance is to set forth EPA's current 
     views on the issues discussed herein. EPA intends soon to set 
     out its interpretation in an advance notice of proposed 
     rulemaking on which the Agency will take comment.
       While EPA intends to proceed under the guidance that it is 
     setting out today, the Agency will finalize this 
     interpretation only when it applies in the appropriate 
     context of individual rulemakings addressing specific 
     attainment demonstrations. At that time and in that context, 
     judicial review of EPA's interpretation would be available.

                          Introductory Summary

       A number of areas in the country that have been classified 
     as moderate or serious nonattainment areas for the 1-hour 
     ozone standard are affected by pollution transported from 
     upwind areas. For these downwind areas, transport from upwind 
     areas has interfered with their ability to demonstrate 
     attainment by the dates prescribed in the Clean Air Act 
     (Act). As a result, many of these areas find themselves 
     facing the prospect of being reclassified, or ``bumped up,'' 
     to a higher nonattainment classification in spite of the fact 
     that pollution that is beyond their control contributes to 
     the levels of ozone they experience. In the policy being 
     issued today, EPA is addressing this problem by planning to 
     extend the attainment date for an area that is affected by 
     transport from either an upwind area with a later attainment 
     date or an upwind area in another State that significantly 
     contributes to downwind nonattainment, as long as the 
     downwind area has adopted all necessary local measures, and 
     has submitted an approvable attainment plan to EPA which 
     includes those local measures. (By ``affected by transport,'' 
     EPA means an area whose air quality is affected by transport 
     from an upwind area to a degree that affects the area's 
     ability to attain.) EPA intends to initiate rulemaking for 
     each area seeking such relief and contemplates providing such 
     relief to those who qualify. If after consideration of public 
     comments EPA acts to approve an area's attainment 
     demonstration and extend its attainment date, the area will 
     no longer be subject to reclassification or ``bump-up'' for 
     failure to attain by its otherwise applicable attainment 
     date.

                               Background

       The Act may be interpreted to allow a later attainment date 
     than generally applicable to a particular ozone nonattainment 
     area if transport of ozone or its precursors (nitrogen oxides 
     (NOX) and volatile organic compounds (VOCs)) 
     prevents timely attainment. This principle has already been 
     advanced in EPA's Overwhelming Transport Policy, which 
     allowed a downwind area to assume the later attainment date 
     if it could meet certain criteria, including a demonstration 
     that it would have attained ``but for'' transport from an 
     upwind nonattainment area with a later attainment date. See 
     Memorandum from Mary D. Nichols, Assistant Administrator for 
     Air and Radiation, entitled, ``Ozone Attainment Dates for 
     Areas Affected by Overwhelming Transport,'' September 1, 
     1994. In the four years since the issuance of that 
     memorandum, the history of the efforts to analyze and control 
     ozone transport has led EPA to believe that it should expand 
     the policy's reach to ensure that downwind areas are not 
     unjustly penalized as a result of transport.
       In March 1995, EPA called for a collaborative, Federal-
     State process for assessing the regional ozone transport 
     problem and developing solutions, and the Ozone Transport 
     Assessment Group (OTAG) was subsequently formed. See 
     Memorandum from Mary D. Nichols, Assistant Administrator for 
     Air and Radiation, entitled ``Ozone Attainment 
     Demonstrations,'' March 2, 1995. The OTAG was an informal 
     advisory committee with representatives from EPA, thirty-
     seven states in the Midwestern and eastern portions of the 
     country, and industry and environmental groups. OTAG's major 
     functions included developing computerized modeling analyses 
     of the impact of various control measures on air quality 
     levels throughout the region and making recommendations as to 
     the appropriate ozone control strategy. Based on OTAG's 
     modeling analyses, it developed recommendations concerning 
     control strategies. These recommendations, issued in mid-
     1997, called upon EPA to calculate the specific reductions 
     needed from upwind areas.
       In November 1997, using OTAG's technical work, EPA issued a 
     proposed NOX State implementation plan (SIP) call, 
     directing certain States to revise their SIPs in order to 
     satisfy section 110(a)(2)(D) by reducing emissions of 
     NOX to specified levels, which in turn will reduce 
     the amounts of ozone being transported into nonattainment 
     areas from upwind areas. 62 FR 60318 (November 7, 1997). In 
     July 1997, the EPA promulgated a revised 8-hour ozone NAAQS. 
     62 FR 38856 (July 18, 1997). That promulgation included 
     regulations providing that the 1-hour NAAQS would be phased 
     out, and would not longer apply to an area once EPA 
     determined that the area had air quality meeting the 1-hour 
     standard. 40 CFR section 50.9(b). Until the 1-hour standard 
     is revoked for a particular area, the area must continue to 
     implement the requirements aimed at attaining that standard.

                          The Current Problem

       The Act called on areas classified as moderate ozone 
     nonattainment areas to submit SIPs that demonstrate 
     attainment by 1996 (unless they receive an extension), and 
     called on serious nonattainment areas to demonstrate 
     attainment by November 1999 (unless they receive an 
     extension). Section 181 and 182(b) and (c). For many of these 
     areas, EPA has preliminary determined in the proposed SIP 
     call that transport from upwind areas is contributing to 
     their nonattainment problems. Such transport also appears to 
     be interfering with their ability to demonstrate attainment 
     by the statutory attainment dates.
       The graduated control scheme in sections 181 and 182 of the 
     Act expressed Congress's intent that areas be assigned 
     varying attainment dates, depending upon the severity of the 
     air quality problem they confront. Sections 181 and 182 
     provide for attainment ``as expeditiously as practicable,'' 
     but establish later deadlines for attainment in more polluted 
     areas, and additional control measures that the more polluted 
     areas must accomplish over the longer time frame. Thus, many 
     of the upwind areas have later attainment dates than the 
     downwind areas which are affected by emissions from the 
     upwind States. On the other hand, section 110(a)(2)(D)(i)(I) 
     of the Act requires SIPs to prohibit ``consistent with the 
     other provisions of [title I],'' emissions which will 
     ``contribute significantly to nonattainment in . . . any 
     other State.'' The EPA interprets section 110(a)(2)(A) to 
     incorporate the same requirement in the case of intrastate 
     transport. Sections 176A and 184 provide for regional ozone 
     transport commissions that may recommend that EPA mandate 
     additional regional control measures to allow areas to reach 
     timely attainment in accordance with section 
     110(a)(2)(D)(i)(I).
       These provisions demonstrate Congressional intent that 
     upwind areas be responsible for preventing interference with 
     timely downwind attainment. They must be reconciled with 
     express Congressional intent that more polluted areas be 
     allotted additional time to attain. As EPA pointed out in its 
     overwhelming transport policy, Congress does not explicitly 
     address how these provisions are to be read together to 
     resolve the circumstances where more polluted upwind areas 
     interfere with timely attainment downwind, during the time 
     provided for those upwind areas to reduce their own 
     emissions.
       In the 1994 overwhelming transport policy, EPA stated that 
     it would harmonize these provisions to avoid arguably absurd 
     or odd results and to give effect to as much of Congress' 
     manifest intent as possible. The EPA struck a balance in the 
     overwhelming transport policy by requiring that the upwind 
     and downwind areas reduce their contribution to the 
     nonattainment problem while avoiding penalizing the downwind 
     areas for failure to do the impossible.
       In the 1994 policy, EPA reasoned that Congress did not 
     intend the section 110(a)(2)(D)(i)(I) obligation to supersede 
     the practicable attainment deadlines and graduated control 
     scheme in sections 181 and 182, especially since section 
     110(a)(2)(D)(i)(I) specifically applies only ``to the extent 
     consistent with the provisions of (title I).'' The same 
     rationale applies in the intrastate context under section 
     110(a)(2)(A).
       Developments since the issuance of the overwhelming 
     transport policy in 1994 have prompted EPA once again to 
     interpret these provisions so that they can be reconciled in 
     light of existing circumstances. Since the issuance of that 
     policy, EPA and the States, through OTAG, have made 
     significant progress in addressing interstate transport in 
     the eastern United States, and have

[[Page 26369]]

     worked to analyze the flow of transport and to allocate among 
     the States their respective responsibilities for control. 
     During the period required for this effort, which took longer 
     than was anticipated, the resolution of the regional 
     transport issue was held in abeyance. The effort to address 
     regional transport recently resulted in EPA's proposed 
     NOX SIP call, expected to be finalized in the next 
     few months. For areas in the OTAG region affected by 
     transport, the conclusion of the OTAG and SIP call processes 
     in September 1998 will result in assignments of 
     responsibility that will assist in the design of SIPs and the 
     formation and implementation of attainment demonstrations.
       Because EPA had not previously determined how much to 
     require upwind States in the OTAG region to reduce transport, 
     downwind areas were handicapped in their ability to determine 
     the amounts of emissions reductions needed to bring about 
     attainment. While operating in this environment of 
     uncertainty, many of these downwind areas confronted near-
     term attainment dates. Moreover, as described in the 
     NOX SIP call proposal, the reductions from the 
     proposed NOX SIP call will not likely be achieved 
     until at least 2002, well after the attainment dates for many 
     of the downwind nonattainment areas that depend on those 
     reductions to help reach attainment.

                              The Solution

       The EPA believes that a fair reading of the Act would allow 
     it to take these circumstances into account to harmonize the 
     attainment demonstration and attainment date requirements for 
     downwind areas affected by transport both with the graduated 
     attainment date scheme and the schedule for achieving 
     reductions in emissions from upwind areas. Thus, EPA will 
     consider extending the attainment date for an area that:
       (1) has been identified as a downwind area affected by 
     transport from either an upwind area in the same State with a 
     later attainment date or an upwind area in another State that 
     significantly contributes to downwind nonattainment. (By 
     ``affected by transport,'' EPA means an area whose air 
     quality is affected by transport from an upwind area to a 
     degree that affects the area's ability to attain);
       (2) has submitted an approvable attainment demonstration 
     with any necessary, adopted local measures and with an 
     attainment date that shows that it will attain the 1-hour 
     standard no later than the date that the reductions are 
     expected from upwind areas under the final NOX SIP 
     call and/or the statutory attainment date for upwind 
     nonattainment areas, i.e., assuming the boundary conditions 
     reflecting those upwind reductions;
       (3) has adopted all applicable local measures required 
     under the area's current classification and any additional 
     measures necessary to demonstrate attainment, assuming the 
     reductions occur as required in the upwind areas. (To meet 
     section 182(c)(2)(B), serious areas would only need to 
     achieve progress requirements until their original attainment 
     date of November 15, 1999);
       (4) has provided that it will implement all adopted 
     measures as expeditiously as practicable, but no later than 
     the date by which the upwind reductions needed for attainment 
     will be achieved.
       EPA contemplates that when it acts to approve such an 
     area's attainment demonstration, it will, as necessary, 
     extend that area's attainment date to a date appropriate for 
     that area in light of the schedule for achieving the 
     necessary upwind reductions. The area would no longer be 
     subject to reclassification or ``bump-up'' for failure to 
     attain by its original attainment date under section 
     181(b)(2).

                            Legal Rationale

       The legal basis for EPA's interpretation of the attainment 
     date requirements employs and updates the rationale invoked 
     in the Agency's overwhelming transport policy. By filling a 
     gap in the statutory framework, EPA's interpretation 
     harmonizes the requirements of sections 181 and 182 with the 
     Act's requirements (sections 110(a)(2)(D)(i)(I), 
     110(a)(2)(A), 176A and 184) on inter-area transport. It 
     reconciles the principle that upwind areas are responsible 
     for preventing interference with downwind attainment with the 
     Congressional intent to provide longer attainment periods for 
     areas with more intractable air pollution problems. It also 
     takes into account the amount of time it will take to achieve 
     emission reductions in upwind areas under the NOX 
     SIP call, which EPA expects to finalize in September 1998.
       The EPA's resolution respects the intent of sections 181 
     and 182 to provide longer attainment dates for areas burdened 
     with more onerous air pollution problems, while allowing 
     reductions from upwind areas to benefit the downwind areas. 
     Under EPA's interpretation, upwind areas will be required to 
     reduce emissions to control transport, but should not find 
     that the requirements imposed upon them amount to an 
     acceleration of the time frames Congress envisioned for these 
     areas in sections 181 and 182. Downwind areas will be 
     provided additional time to accommodate the delayed control 
     contributions from upwind areas, while at the same time being 
     held accountable for all measures required to control local 
     sources of pollution.
       The EPA's interpretation of the Act allows it to extend 
     attainment dates only for those areas which are prevented 
     from achieving timely attainment due to a demonstrated 
     transport problem from upwind areas, and which submit 
     attainment demonstrations and adopt local measures to address 
     the pollution that is within local control. The EPA believes 
     that Congress, had it addressed this issue, would not have 
     intended downwind areas to be penalized by being forced to 
     compensate for transported pollution by adopting measures 
     that are more costly and onerous and/or which will become 
     superfluous once upwind areas reduce their contribution to 
     the pollution problem.
       This interpretation also recognizes that downwind areas in 
     the OTAG region have been operating in a climate of 
     uncertainty as to the allocation of responsibility for 
     controlling transported pollution. Section 110(a)(2)(D) is 
     not self-executing and, until the NOX SIP call 
     rulemaking, downwind areas in the OTAG region could not 
     determine what boundary conditions they should assume in 
     preparing attainment demonstrations and determining the 
     sufficiency of local controls to bring about attainment. By 
     allowing these areas to assume the boundary conditions 
     reflecting reductions set forth in the NOX SIP 
     call and/or reductions from the requirements prescribed for 
     upwind nonattainment areas under the Act, EPA will hold 
     upwind areas responsible for reducing emissions of 
     transported pollution, and downwind areas will be obligated 
     to adopt and implement local controls that would bring about 
     attainment but for the transported pollution.
       The EPA's interpretation harmonizes the disparate 
     provisions of the Act. It avoids accelerating the obligations 
     of the upwind States so that downwind States can meet earlier 
     attainment dates, which would subvert Congressional intent to 
     allow upwind areas with more severe pollution longer 
     attainment time frames to attain the ozone standards. In 
     addition, EPA's interpretation of the Act takes into account 
     the fact that, under the SIP call, upwind area reductions 
     will not be achieved until after the attainment dates for 
     moderate and serious ozone nonattainment areas. To refuse to 
     interpret the Act to accomplish this would unduly penalize 
     downwind areas by requiring them to compensate for the 
     transported pollution that will be dealt with by controls 
     adopted in response to the requirements of the NOX 
     SIP call or to achieve attainment in an upwind area. The EPA 
     is thus interpreting the requirements to allow the Agency to 
     grant an attainment date extension to areas that submit their 
     attainment demonstrations and all adopted measures necessary 
     locally to show attainment. This solution preserves the 
     responsibility of these downwind areas to prepare attainment 
     demonstrations and adopt measures, but does not penalize them 
     for failing to achieve timely attainment by reclassifying 
     them upwards, since such attainment was foreclosed by 
     transport beyond their control.
       Under this policy, once EPA has acted to approve the 
     attainment demonstration and extend the area's attainment 
     date, the area would no longer be subject to reclassification 
     or ``bump-up'' for failure to attain by its original 
     attainment date under section 181(b)(2).
       The EPA requests comment on the interpretation in the 
     guidance memorandum reprinted above.

                                            Robert Perciasepe,

                                           Assistant Administrator
     for Air and Radiation.
                                  ____


                               Memorandum

     Subject: Ozone Attainment Dates for Areas Affected by 
         Overwhelming Transport.
     From: Mary D. Nichols, Assistant Administrator for Air and 
         Radiation (6101).
     To: Director, Air, Pesticides and Toxics Management Division, 
         Regions I and IV; Director, Air and Waste Management 
         Division, Region II; Director, Air, Radiation and Toxics 
         Division, Region III; Director, Air and Radiation 
         Division, Region V; Director, Air, Pesticides and Toxics 
         Division, Region VI; and Director, Air and Toxics 
         Division, Regions VII, VIII, IX, and X.

       The purpose of this memorandum is to provide guidance on 
     attainment dates for ozone nonattainment areas affected by 
     overwhelming transport. In particular, a number of States 
     have expressed concern that it may be difficult or impossible 
     for some areas to demonstrate attainment by the statutory 
     attainment date because they are affected by overwhelming 
     transport or pollutants and precursors from an upwind area 
     with higher classifications (and later attainment dates). 
     (Reference to upwind area in this memorandum and the 
     attachment may imply that there is more than one area 
     involved.) States containing such areas face difficulty in 
     complying with two specific requirements:
       1. Submitting an attainment demonstration by November 15, 
     1994 that includes measures for specific reductions in ozone 
     precursors, as necessary, to attain by the statutory 
     attainment date.
       2. Actually demonstrating attainment through monitoring 
     data by the statutory attainment date.

[[Page 26370]]

       We believe that, due to conflicting provisions of the Act, 
     it is reasonable to temporarily suspend the attainment date 
     for these areas without bumping them up to a higher 
     classification for the purpose of the two requirements listed 
     above. A revised attainment date will be determined based on 
     the analyses described in the attachment to this memorandum. 
     The attachment also provides the legal rationale for this 
     approach, along with specific criteria that States must meet. 
     This policy does not relieve any State of the obligation to 
     meet any other requirement of the Act. This memorandum 
     describes current policy and does not constitute final 
     action. Final action will be taken in the context of notice-
     and-comment rulemaking on the relevant SIP submittals.
       This approach is premised on the requirement that the area 
     in question clearly demonstrates through modeling that 
     transport from an area with a later attainment date makes it 
     practicably impossible to attain the standard by its own 
     attainment date. This modeling is expected to be submitted on 
     the same schedule as the required modeled attainment 
     demonstration due November 15, 1994. The modeling must 
     support the new attainment date which should be as 
     expeditious as practicable, but no later than the attainment 
     date in its SIP.
       The EPA encourages upwind and downwind areas to consult 
     with one another and the EPA Regional Offices to coordinate 
     on this issue. Immediately after the downwind area determines 
     that it plans to request an attainment date extension, it 
     should notify the appropriate Regional Office. The Regional 
     Office should then notify any affected upwind area of the 
     intentions of the downwind area and its obligations under 
     this policy. The EPA may use its authority under sections 
     110(a)(2)(D)(i)(I) and 110(k)(5) to issue a call for a SIP 
     revision for the upwind area to ensure that it provides the 
     necessary analyses and control measures needed to prevent 
     significant contribution to the downwind area's nonattainment 
     problem.
       The attachment does not specifically address all of the 
     modeling issues related to this demonstration. We recommend 
     that Regions work with our Technical Support Division to 
     determine what is appropriate for each area.
       The EPA is also developing a general transport policy that 
     will address situations where areas have difficulties 
     reaching or maintaining attainment because of large-scale 
     transport.
       Please share this information with your States and 
     appropriate local air pollution control agencies. Any general 
     questions about this approach may be addressed to Kimber 
     Scavo at (919) 541-3354, or Laurel Schultz at (919) 541-5511. 
     Specific questions concerning modeling should be addressed to 
     Ellen Baldridge at (919) 541-5684.

                              {time}  1915

  Mr. BARTON of Texas. Mr. Speaker, this policy built upon the 1994 
statutory interpretation memorandum that we have just put into the 
Record. And it indicated that the EPA considered its bump-up policy to 
be a fair reading of the act.
  Now, what happened after this 1994 memorandum and the 1998 Federal 
Register, no Member of Congress complained about that. There was no 
group of citizens that came to the Congress and complained about the 
Clinton administration proposal. But what did happen was that in 2002, 
the Sierra Club filed three different lawsuits in three different 
regions, one of them here in the D.C. Circuit, one in the 5th Circuit, 
and one in the 7th Circuit, and they really did not argue against the 
policy of flexibility. They simply said the Clean Air Act did not give 
the EPA that authority. It was a very technical argument. And, to their 
credit, the Sierra Club's argument was upheld by the courts. The courts 
said, ``We have read the Clean Air Act and it is ambiguous. And since 
it is ambiguous, we have to say no to flexibility because it does not 
explicitly state there can be flexibility.'' That was in 2002. Those 
were lawsuits filed by the Sierra Club that went to court.
  So we now fast forward to 2003. The gentleman from Louisiana (Mr. 
Tauzin), the distinguished chairman of the full committee, and the 
gentleman from Michigan (Mr. Upton), a member of the Committee on 
Energy and Commerce, all worked with me and other members of the 
committee on a bipartisan basis. We passed the most comprehensive 
energy legislation this Congress has seen back in April, April 11, I 
believe, on the floor of the House.
  We, at that time, had not had time to study the effect of the court 
ruling. We had not had time to put together a hearing on this issue. 
But we did in July. In July we had a hearing in my subcommittee. We had 
a number of witnesses testify, and, with one or two exceptions, 
everybody who testified said this policy of flexibility is a good idea. 
We should allow it.
  Democrats, my good friend from Houston, the gentleman from Texas (Mr. 
Green), my friend from Beaumont, the gentleman from Texas (Mr. 
Lampson), my friend from Crockett, the gentleman from Texas (Mr. 
Turner), they all came and brought some of their constituents who 
testify or put testimony into the Record that said flexibility is good.
  So as we went to conference with the other body, after consultation 
with the minority leadership of the Committee on Energy and Commerce, 
we put this in.
  Mr. Speaker, I yield to the gentlewoman from Texas (Ms. Eddie Bernice 
Johnson).
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, this really is not a 
partisan issue. It is a matter of clean air that people breathe. I am 
certain there are people on that side of the aisle that will stand with 
the gentlemen, who I consider both my good friends. But there will be 
some probably who will not because they want to breathe some clean air. 
That is all this is about. It has nothing to do with partisanship. It 
has nothing to do with the Clinton administration. They have been given 
time. That is all this indicates. They have already had time to clean 
the air.
  Mr. BARTON of Texas. Mr. Speaker, I thank my good friend, the 
gentlewoman from Texas (Ms. Eddie Bernice Johnson), and I will continue 
to yield to her because I think we should have a dialogue, but what I 
am trying to point out is this is a commonsense policy that we have put 
in or are attempting to put into the energy conference with the other 
body. Because there is a lot of support for it and it gives the 
flexibility, if the local region needs it. Everything in it is based on 
a transport issue, and if the EPA says that it will help. That is all 
it does.
  Mr. TAUZIN. Mr. Speaker, would the gentleman yield?
  Mr. BARTON of Texas. Mr. Speaker, I will be happy to yield.
  Mr. TAUZIN. Mr. Speaker, let me make the most important point here. 
Environmentalists for years have argued that we ought to have 
environmental laws that require the polluter to pay, that the polluter 
ought to be responsible for cleaning up his act and that the victims 
ought not be responsible for the actions of polluters. That is 
essentially what the EPA tried to do but was not allowed to do by the 
court and what we are trying to let the EPA do today.
  The polluter in this case is the upwind polluter, the victim is the 
downwind community. What the Clinton administration and Carol Browner 
tried to do was to create flexibility in the EPA so that the downwind 
community did not have to pay to clean up the pollution in the upwind 
community. In other words, to make sure that the upwind community 
cleaned up its act so that it did not dump pollution on an innocent 
victim community who might end up having to pay for it.
  So the idea was not to diminish the cleanliness of the air, it was 
not to exonerate anyone from their obligations to clean their air. It 
was certainly not to allow the air to stay dirty. It was all about 
requiring the upwind polluter to get their act together, to clean up 
their act, and then to be able to count that together with the work 
done by the downwind community to reach clean air attainment. Now, that 
is fair.
  Now, we have criticized the Clinton administration on this side many 
times for its action. In this case they were right. The EPA was right. 
The court, unfortunately, correctly, I think, said the EPA did not have 
the authority to do the right thing here.
  What we are trying to do in the conference is make sure EPA has the 
authority to do the right thing and to make sure that the polluter does 
pay, that the innocent community downwind does not have to sacrifice 
because they are being dumped on by some upwind community.
  Mr. Speaker, I urge this motion be defeated.
  Mr. Speaker, let me make one last point. I respect the gentlewoman 
from

[[Page 26371]]

Texas (Ms. Eddie Bernice Johnson) so much. I hope she knows that. We 
are in a conference right now with the Senate. We are trying to fix 
this. This would be a terrible instruction. This would be a terrible 
instruction to every community in America that suffers because someone 
upwind of them is polluting their community. It would be a terrible 
instruction.
  What we want to do in the conference committee with the Senate, and I 
hope we finish that bill soon, is bring Members back a chance to pass 
an energy policy that does enforce the idea that the polluter should be 
responsible to clean up their act first. We are going to try to bring 
that back to Members.
  This instruction hurts us, even though it is nonbinding, and I would 
urge that we reject it.
  Mr. Speaker, I rise in strong opposition to the Johnson motion and 
urge my colleagues to vote against it.
  I don't think any Member would disagree that the Clean Air Act has 
been extremely beneficial to America's environment over the last three 
decades. But as with any complex regulatory statute of its kind, there 
are times when the letter of the law either leads to unintended 
consequences or can give rise to conflicting interpretations.
  This is precisely the situation that confronted the Clinton 
administration nearly a decade ago. In 1994, under the leadership of 
then-Administrator Carol Browner, the Environmental Protection Agency 
adopted a regulatory interpretation of the Air Act that allowed for 
some flexibility in applying ozone nonattainment dates. EPA issued 
additional guidance several years later, under which, in limited 
circumstances, the Agency would extend dates for downwind areas that 
suffered from pollution transport. The EPA then applied this guidance 
on a discretionary basis through approval of various state 
implementation plans.
  Unfortunately, the courts threw out EPA's interpretations of the Air 
Act last year. So for the EPA's common-sense, flexible approach to 
nonattainment is to prevail across the country, Congress must codify it 
as part of the Clean Air Act.
  As we debate this motion tonight, it is by no means clear when we 
will be able to get an energy conference report to the House floor. And 
that's largely because conferees are continuing to negotiate a number 
of key provisions, including whether we should include the ``bump up'' 
codification.
  The motion before us is non-binding, Mr. Speaker. But I would not 
want for the House to be even symbolically constrained in its ability 
to negotiate with the other body, particularly when it comes to doing 
something like including a common-sense Clinton-era environmental 
regulation.
  I want to make clear to my colleagues that the Clinton-era policy on 
bump up does not let downwind areas off the hook. In order to qualify: 
(1) An area must be the victim of pollution transported from another 
area that significantly contributes to nonattainment in the downwind 
area; (2) EPA must approve a plan that complies with all requirements 
of the Clean Air Act that are currently applicable to the area--as well 
as includes any additional measures needed to reach attainment by the 
date for the upwind area; and (3) the extension of any date must 
provide for attainment of Clean Air Act standards ``as expeditiously as 
practicable,'' but in no case later than the time in which upwind 
controls are in place.
  The codification measure is fair and balanced. It prevents an unjust 
result--that a downwind area suffering from transported pollution is 
penalized for pollution that it does not generate. Many areas have made 
progress and are close to attaining--it makes no sense at this stage to 
impose additional penalties that will not advance attainment. In some 
cases, areas risk being classified as ``severe'' nonattainment even 
though they violated the 1 hour standard just a few times over 3 years 
and would otherwise be considered to be in ``marginal'' nonattainment.
  At the end of the day, the codification of the Clinton bump up policy 
may actually be the most pro-environment thing we can do because it 
provides for the best possible course to reach attainment. The sooner 
we have it in place--regardless of how it gets to the President's 
desk--the better for our constituents living in these areas.
  Again, Mr. Speaker, I urge opposition to the motion.
  Mr. BARTON of Texas. Mr. Speaker, I yield to the gentlewoman from 
Texas (Ms. Eddie Bernice Johnson).
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, what I need to ask 
is that at what point will these polluters be responsible for cleaning 
up? If we stand here and change the goal post one time after another, 
the time never comes.
  The Clinton administration, which you love to refer to on this, gave 
leeway, but it is time now to clean the air. People are dying from this 
dirty air.
  Mr. BARTON of Texas. Mr. Speaker, if I may reclaim my time to respond 
briefly. This is not about changing the goal post at all. The same 
standard is in effect. We are not changing the standard. We are simply 
saying if they are trying to comply, and one of the reasons they are 
not in technical compliance is because of an ozone transport issue 
outside of their control area, they have the flexibility to ask for an 
extension. And the EPA has the right to grant that extension. But if 
the EPA does, it cannot grant an extension that is any longer than in 
the noncompliant area that is causing the transport issue.
  Mr. Speaker, I yield to the gentleman from Michigan (Mr. Upton).
  Mr. UPTON. Mr. Speaker, I want to piggyback on to the comments of the 
gentleman from Louisiana (Mr. Tauzin). I can remember when Carol 
Browner, the then administrator of EPA, came and testified before the 
subcommittee. I was one that supported the Clean Air Act as well as the 
Clean Water Act. I can remember when we debated the Clean Air Act, the 
delegation at that time included important language, and I am not a 
lawyer but we thought it was sufficient, that gave the EPA the 
administrative authority when downwind communities were impacted by 
what came from the polluter itself.
  My district, southwestern Michigan, I have air that comes from Gary, 
Indiana, from Chicago, Illinois, and Milwaukee, Wisconsin, across Lake 
Michigan. Some of my counties have reported that they could actually 
remove all human activity in some of my counties, and we would still 
not be in compliance with the new 8-hour standard because of what is 
coming across the lake.
  When Carol Browner came and heard that at the subcommittee, she 
helped us with this language and the administrative relief that they 
put into effect for other areas around the country. What the gentleman 
from Texas (Mr. Barton) is doing, and the gentleman from Louisiana (Mr. 
Tauzin) as part of the conference, is to revert back to what the 
Clinton administration said then: We still want to help the polluters 
clean up their air, but we also recognize that the victims. For me, my 
area of southwest Michigan, can do absolutely nothing about it. In 
fact, they can have some relief if these new penalties are assessed, 
collecting millions of dollars which, at the end of the day, will not 
provide one iota of cleaner air. Because, again, we could remove 
everything, every road, every lawn mower, every small business, every 
large business, at the end of the day there is nothing we can do 
without some type of relief.
  And that is why it is important, I think, that we defeat the motion 
to instruct of the gentlewoman from Texas (Ms. Eddie Bernice Johnson) 
because we are left with no choice. And that is why the Clinton 
administration agreed with us when they came and testified before our 
subcommittee.
  Mr. BARTON of Texas. Mr. Speaker, I will reserve the balance of my 
time.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield 3\1/2\ 
minutes to the gentlewoman from California (Mrs. Capps.)
  Mrs. CAPPS. Mr. Speaker, I thank my colleague and fellow nurse for 
yielding and also for her motion to instruct conferees on the Energy 
Policy Act.
  Mr. Speaker, I rise in strong support of this motion. It is a real 
shame that at the 11th hour the Republican conferees have added a new 
provision to this energy bill which weakens the Clean Air Act and harms 
public health. This new provision will allow polluted cities to avoid 
having to clean up their dirty air.
  Right now cities can get extended deadlines to meet their 
requirements under the Clean Air Act, but in exchange for the time 
extension, within the Clean Air Act, cities with dirty air

[[Page 26372]]

have to meet specific goals and specific timetables. This is EPA's 
bump-up policy that is supposed to ensure that dirty air is cleaned up. 
And the policy is designed to work with cities, to make sure that this 
can happen in a timely fashion. But under the new energy provisions 
being proposed, cities that have not met their clean air requirements 
will just be given a pass. That means that cities with dirty air will 
not have to institute stronger pollution controls to clean up their act 
for a much longer time.
  People living in these cities and people living downwind will suffer 
longer from dirty air and its damaging health effects. We cannot afford 
this, not in our health care and not in our economy.
  As a public health nurse, I am so concerned with this very provision 
and its impact on the state of our air quality. The argument is that it 
is hard for these polluted areas to clean up due to dirty air blown in 
from elsewhere. That case has been made. But in many of these areas it 
is been demonstrated that these areas that would be exempted, 
transported pollution is only a small part of the problem.
  Now, what about continued local clean-up efforts which are 
demonstrated to be necessary? And, in addition, this new provision 
provides a special break for certain areas of Texas and Louisiana. That 
is blatantly unfair to all the cities and their businesses that have 
worked so hard to meet pollution control deadlines, to provide healthy 
air for their citizens.
  This added change also harms all the areas downwind of those that get 
the extension as more air pollution will continue to blow downwind for 
so many years longer.
  The truth is this last minute change was never approved by either the 
House or the Senate. In fact, this provision, and I was at the hearing 
that we held in July, but it has never been debated upon. Alternatives 
have never been able to be proposed in a committee setting.
  This change weakens the Clean Air Act and overturns three appellate 
court rulings upholding current law. This is an end run around the 
courts which have repeatedly held that the EPA does not have the 
authority to extend air quality deadlines without following the Clean 
Air Act requirements.
  Mr. Speaker, EPA reports that 133 million Americans in our country 
live where air is unhealthy to breathe because of ozone pollution. The 
provisions in this bill are denying these Americans their right to 
breathe clean air.
  The provision in this bill is going to be denying these Americans 
their right to breathe clean air. The provision in the energy bill is a 
bad idea. The end result will be a delay in cleanup, continued 
unhealthy air, and more asthma attacks, respiratory illnesses and other 
health problems. It is going to affect health and productivity of 
American companies and American workers. Our children and our families 
have waited too long for clean air.
  So I urge my colleagues to support this motion and oppose any energy 
bill that contains this shameful provision.
  Mr. BARTON of Texas. Mr. Speaker, could I inquire of the time on each 
side right now?
  The SPEAKER pro tempore (Mr. Kline). The gentleman from Texas (Mr. 
Barton) has 16 minutes remaining. The gentlewoman from Texas (Ms. Eddie 
Bernice Johnson) has 20\1/2\ minutes.
  Mr. BARTON of Texas. Mr. Speaker, I would like to yield 2\1/2\ 
minutes to the gentleman from Houston, Texas, (Mr. Green), a member of 
the committee and the subcommittee.
  Mr. GREEN of Texas. Mr. Speaker, I thank the gentleman from Texas 
(Mr. Barton), my colleague and the chairman of our subcommittee on the 
Committee on Energy and Commerce.

                              {time}  1930

  It is with reluctance I rise in opposition to the motion to instruct 
offered by my colleague and longtime and respected friend, the 
gentlewoman from Texas (Ms. Eddie Bernice Johnson). We have served 
together now for 30 years, and every once in a while we do find 
ourselves on opposite sides. Since I represent Houston, and I will deny 
under oath if necessary that we caused Dallas' pollution problems, but 
be that as it may, I understand the gentlewoman's passion to improve 
the air quality for her constituents. That is impressive and she is 
doing great work to raise the public profile of a difficult issue. But 
I find myself in a difficult situation myself today. A bipartisan group 
of my colleagues from north Texas and east Texas are blaming my area of 
Houston for increasing smog levels in their area.
  First, let me say that the Houston area is doing everything in our 
power to reach compliance with the Clean Air Act. Our deadline is 2007. 
We have a tremendous amount of manufacturing facilities and jobs in our 
area. And reengineering these facilities without causing a regional 
recession is a challenge, but we are making progress.
  The EPA has given areas with imported air emissions extra time to 
meet the deadlines, but the courts have ruled that they do not have 
that authority. A provision is in the draft conference report, which is 
what the gentleman from Texas (Mr. Barton) talks about that allows the 
EPA the authority to extend the deadline for two years with areas with 
imported emissions.
  Now, in the Houston area we do have some problem in imported 
emissions from if they have fires in Mexico, we receive it. But Houston 
would not come under this. But if the EPA decides that Houston's air 
quality significantly impacts Beaumont, for example, to the east and 
Dallas' air quality, then maybe they should also have the same deadline 
in Houston in 2007 instead of 2005. That is basically all this 
provision in the conference committee would do. We are not reopening 
the Clean Air Act. It is just allowing Dallas or Beaumont to ask for 
that extension.
  I understand there are similar situations in areas all over the 
country. And I also understand the concern of my colleague, the 
gentlewoman from Texas (Ms. Eddie Bernice Johnson), that the deadline 
be moved back, because often we relax if it is not pressing.
  Mr. Speaker, I strongly believe Dallas and Beaumont should not use an 
extension as an excuse to avoid local control and delay cleaner air for 
their citizens. But I do believe the EPA should be able to grant them 
an extension and give them as much time as my own area with the Clean 
Air Act.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield 4 minutes to 
the gentleman from Maine (Mr. Allen).
  Mr. ALLEN. Mr. Speaker, I thank the gentlewoman for yielding me time 
and for her leadership on this motion to instruct.
  Mr. Speaker, when it comes to air quality, Maine is America's 
tailpipe. We are downwind of industrialized areas to our south and 
west. Southern Maine endures unhealthy air days during most summers.
  According to the EPA's analysis, 98 percent of the emissions leading 
to unhealthy air days in Maine originate outside of our borders. And so 
as a result of our experience, I sympathize with those areas which also 
have pollution coming in, blowing into their areas from other parts of 
the country; but I do not believe this provision is the right answer.
  I rise today to oppose addressing the transport problem by rewriting 
the Clean Air Act within the energy bill conference. The Clean Air Act 
should not, in my opinion, be amended in secret meetings of the energy 
bill conference committee. If we look back at the secret meetings of 
the Cheney task force, they were linked to the administration's new 
source review rule changes, the clearest weakening of the Clean Air Act 
ever approved, and we do not need to weaken the Clean Air Act and 
threaten the health of our people.
  Portland, Maine, could not have attained healthy air by its 1996 
deadline if the whole city had packed its bags and moved to Quebec. We 
have suffered from such a severe transport problem, more severe in 
percentage terms than Dallas, Texas, that local efforts could not 
possibly have brought the city into attainment.
  Like my colleagues who have added this provision to the energy bill,

[[Page 26373]]

Maine's former Governor complained that the Clean Air Act was flawed 
back in 1996, some State policymakers even advocating changing the act 
to alleviate our burden. The same arguments are being made here today, 
but I do not buy it. No matter how many times flexibility is mentioned 
or the Clinton administration proposals, the real risk here is that we 
will weaken the Clean Air Act in a fundamental way.
  The transport problem is real, but the Clean Air Act gives States the 
tools to go after upwind sources that risk the health of our citizens. 
In the mid-1990s, for example, Maine's policymakers used the Clean Air 
Act by filing a section 126 petition against upwind sources, and other 
northeastern States did the same. In short, we pushed for a more 
comprehensive solution to the transport problem; and as a direct result 
of the section 126 petitions, EPA initiated the NOX SIP Call, which 
when this administration finally implemented it in 2004, will help us 
to attain healthy air.
  The Committee on Energy and Commerce can take appropriate action to 
address the needs of certain areas, such as Atlanta, without 
endangering public health. If this provision were reasonable and 
environmentally benign, the authors, I believe, would show us the text, 
mark it up in regular order, and place it on the suspension calendar.
  As I say, I am from an area that suffers from transport; but I do not 
believe this provision, whatever its exact language, will help the 
people of my State. We need to stop this effort to help polluters at 
the expense of children with asthma and grandparents with emphysema. So 
I want to encourage Members to support the motion to instruct.
  But I would like to yield the balance of my time to the gentleman 
from Texas (Mr. Barton) if he can answer a simple question.
  Would the gentleman agree to provide the text of this provision? We 
are in an odd position here, debating a provision that has been 
reported, but that we do not have a text of. Would the gentleman agree 
to provide the provision?
  Mr. BARTON of Texas. Mr. Speaker, will the gentleman yield?
  Mr. ALLEN. I yield to the gentleman from Texas.
  Mr. BARTON of Texas. If we had a finalized version of the text, I 
would certainly share it with the gentleman. We do not yet have a 
finalized version. I can tell the gentleman the substance of it and 
would be happy to do that; but I myself do not have a hard copy of it 
because we have not finalized the negotiations with the other body.
  Mr. ALLEN. Mr. Speaker, I would be happy to settle for the substance.
  Mr. BARTON of Texas. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I would like to try to answer my good friend's question. 
Before I do that, I want to put into the Record the witness list for 
the subcommittee hearing on July 22, 2003, that I believe the gentleman 
from Maine (Mr. Allen) attended, if I am not mistaken. My recollection 
is that he was there.
  We had 10 witnesses headed by the Honorable Jeffrey Holmstead, who is 
the assistant administrator for the air and radiation office of the 
Environmental Protection Agency.
  We had nine witnesses that were State and local witnesses. We had a 
fair panel. Of the nine State and local witnesses, my recollection is 
that five or six supported this proposal and that three did not. There 
may be one of the six that I count as a supporter that was kind of 50/
50 on it.
  The material referred to is as follows:


                                Panel I

       The Honorable Jeffrey Holmstead, Assistant Administrator 
     for Air and Radiation, Environmental Protection Agency, 6101A 
     USEPA Headquarters, Ariel Rios Building, 1200 Pennsylvania 
     Avenue, NW., Washington, DC 20460.


                                Panel II

       The Honorable Bobby Simpson, Mayor-President, Baton Rouge/
     Parish of East Baton Rouge, 222 St. Louis Street, 3rd Floor, 
     Baton Rouge, LA 7802.
       The Honorable Carl K. Thibodeaux, County Judge, Orange 
     County Courthouse, 123 South 6th Street, Orange, TX 77630.
       The Honorable Carl R. Griffith Jr., County Judge, Jefferson 
     County Courthouse, 1149 Pearl Street, Beaumont, TX 77704.
       The Honorable R.B. ``Ralph'' Marquez, Commissioner, Texas 
     Natural Resource Conservation Commission, P.O. Box 13087, 
     Mail Code 100, Austin, TX 78711.
       Dr. Ramon Alvarez, Scientist, Environmental Defense, 44 
     East Avenue, Suite 304, Austin, TX 78701.
       Mr. David Farren, Attorney, Southern Environmental Law 
     Center, 200 West Franklin Street, Suite 330, Chapel Hill, NC 
     27516.
       Mr. Ronald Methier, Chief, Georgia Department of Natural 
     Resources, Environmental Protection Division, Air Protection 
     Branch, 4244 International Parkway, Suite 120, Atlanta, GA 
     30354.
       Mr. David Baron, Staff Attorney, Earthjustice, 1625 
     Massachusetts Avenue, NW., Washington, DC 20036.
       Mr. Samuel Wolfe, Assistant Commissioner for Environmental, 
     Regulation, New Jersey Department of Environmental 
     Protection, P.O. Box 423, Trenton, NJ 08625-0423.

  Mr. BARTON of Texas. What the pending proposal with the other body 
would do is simply and very narrowly in the States that are part of the 
agreement with the EPA on NOx, and there are 17 States, most 
of them east of the Mississippi, if those States have a State 
implementation plan approved or in the process of being approved and 
they can show that one of the reasons they may not be in compliance is 
because of ozone transport, they can ask for an extension. The EPA has 
the discretion to grant the extension; but if the EPA does grant the 
extension, it can only grant it forward to the compliant date where the 
ozone transport is originating from, if that makes sense. It is purely 
discretionary on asking for the extension. It is purely discretionary 
on granting the extension.
  The extension can only be granted for ozone transport. It is an 
attempt to codify the Clinton administration's proposal that was put in 
the Federal Register in 1998.
  Mr. ALLEN. Mr. Speaker, will the gentleman yield?
  Mr. BARTON of Texas. I yield to the gentleman from Maine.
  Mr. ALLEN. My understanding of the current law is that if extensions 
are granted for any purpose, there is a requirement that stiffer 
pollution control requirements be implemented in the area. Does the 
gentleman's provision do away with that requirement for stiffer 
pollution requirements?
  Mr. BARTON of Texas. Let me call a time out if that is possible.
  It does not require additional implementation control measures, but 
it would require that they could file an addendum to the SIP that would 
do that.
  Mr. ALLEN. I thank the gentleman.
  Mr. BARTON of Texas. Reclaiming my time, Mr. Speaker, I want to 
comment on what might happen if a region is not granted an extension.
  The courts have ruled in these court cases that if the EPA is not 
allowed to give some discretion in terms of meeting the timeline and if 
that region does not look like it is going to be in compliance, it is 
automatically bumped up to the next highest attainment, nonattainment 
category.
  There are five nonattainment categories in the Clean Air Act. The 
least nonattainment is called marginal. Their design parameter is 
between 121 parts per billion for ozone and 138 parts per billion. You 
go to moderate which is 138 parts per billion to 160. You go to serious 
.160 to .180. And you go to severe which is 180 parts per billion to 
190 parts per billion, and anything above that is extreme. And if you 
do not have the flexibility to give an extension, and if the region 
cannot show that it will be in compliance by that specific deadline, 
EPA has to bump them up in the next higher nonattainment area.
  And we might ask ourselves, well, so what? So we are bumped up from 
serious to severe, from moderate to serious. No big deal. Well, it 
actually is a big deal because as we go into the more severe 
nonattainment criteria, the things that have to be done, there is no 
discretion on that. For example, if you apply for a permit to perhaps 
build a new factory to provide new jobs, you have to show that there is 
a two to one offset.
  In other words, you have to shut down two tons of pollution for each 
new ton that the new factory would provide. You almost bring to a halt 
any

[[Page 26374]]

highway funding in the area. And in the DFW area that the gentlewoman 
and I share representation with, those highway funds on an annual basis 
or order of magnitude are around $600 million just in Dallas and 
Tarrant County.
  Any new source that is over 25 tons per year has to get a special 
permit, and 25 tons per year is not a large amount of emissions. And it 
is possible that the Federal Government can come in and just take over 
the entire State implementation.
  Now, there are some that may think that those are all well and good; 
but most of this body I would postulate would say, would it not be 
better to give the region some flexibility to ask for an extension and 
would it not be better to give the EPA the authority if they felt it 
was in order to give the extension. That is the question. And again, we 
are not changing the standards; we are not changing the 125 part per 
billion standard for ozone. We are not maintaining that at all. We are 
not changing the criteria for being classified from marginal to 
extreme. We are not changing that at all. We are not changing the 
general attainment dates that go back in the statute to 1990. We are 
simply saying flexibility and discretion are a good thing, not a bad 
thing.
  Mr. Speaker, I reserve the balance of my time.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I have no further 
requests for time, and I believe I have the right to close.
  The SPEAKER pro tempore (Mr. Kline). The gentlewoman from Texas (Ms. 
Eddie Bernice Johnson) has the right to close.

                              {time}  1945

  Mr. BARTON of Texas. Mr. Speaker, if she is about to close, I have 
some more comments, and she does have the right to close. Would she 
allow me to speak and then she could close the debate?
  The SPEAKER pro tempore (Mr. Kline). The gentleman from Texas (Mr. 
Barton) is recognized.
  Mr. BARTON of Texas. Mr. Speaker, how much time do I have left?
  The SPEAKER pro tempore. The gentleman from Texas has 8\1/2\ minutes 
remaining.
  Mr. BARTON of Texas. Mr. Speaker, I yield myself such time as I may 
consume.
  I do not want to belabor the debate. Let me just in summary, before 
the gentlewoman closes, point out that while the gentlewoman is from 
the Dallas-Fort Worth area, and I am also, this is not a local Dallas-
Fort Worth issue. These court cases were brought in three different 
circuit courts, one of which is the District of Columbia here in 
Washington, D.C., the 5th circuit and the 7th circuit. So this is a 
national issue.
  Regions that are affected immediately by these court cases do include 
the Beaumont-Port Arthur area, Dallas-Fort Worth area. So there are two 
areas in Texas but we also have St. Louis, Missouri; Atlanta, Georgia; 
Washington, D.C.; greater Connecticut; and Baton Rouge, Louisiana. 
Those are the cases that we know of, the State implementation plans 
that were pending that have been stayed by these are affected by these 
court rulings. So this is not just a Texas issue or just a Dallas-Fort 
Worth issue. This is a national issue.
  The second thing that I would point out is that we are not affecting 
the standard, the national standard of 120 parts per billion, but let 
me say on that, when the gentlewoman from Dallas indicates that she has 
constituents that are affected by ozone and, as she called it, by the 
dirty area, so do I.
  I am slightly asthmatic. My son is, I would say, moderately to 
severely asthmatic. I have done a lot on the floor of this body to try 
to help asthmatics. I am the cofounder, along with Senator Kennedy in 
the other body and the gentlewoman from New York (Mrs. Lowey), of 
Asthma Awareness Day. Back before it was politically correct to be 
talking about asthma, in some earlier Congresses, I was one of the 
handful of sponsors of the Asthma Act back in the 105th Congress. I was 
one of only three sponsors of H.R. 4654. In the 106th Congress, I was 
one of only four sponsors of H.R. 1965. I am still a leader of the 
Asthma Awareness Day that we have had every year in the Congress for 
the last 8 years I think.
  So we are not trying to say it is not a problem, but there are some 
people in our society, when they set these standards for ozone, that we 
could take ozone to background levels, five parts per billion, six 
parts per billion like we have in Atlanta, Georgia, and there would 
still be some asthmatics that were negatively affected.
  The other pollutants that are regulated under the Clean Air Act, in 
every case there was some sort of a bright line test, and again, it is 
not the different categories. It is yes or no. For lead, yes or no. For 
SO2, yes or no. For NOx, yes or no. But for ozone, it is not a yes or 
no, and there is wide scientific debate about where to set the 
standard.
  Having said that, we could set the standard at a level that only the 
Supreme Being of the universe could meet, and we would still have some 
people that would be negatively affected. So when we get into the 
debate about parts per billion and number of days they are out of 
compliance, 3 days in a 3-year period is okay, but 4 days in a 3-year 
period is not if they exceed it by one part per billion, then I think 
discretion is advisable, and I think flexibility is advisable. And I 
think the pending House position with the other body on the energy 
conference report is a very defensible, not only defensible, it is a 
very useful provision, and I would hope, if the gentlewoman insists on 
a record vote, that we would vote against her motion to instruct, not 
because it is not well-intentioned, not because she is not well-
meaning, but because it actually would, in many ways, I think, hurt the 
effort to clean the air because of the arbitrariness of the way the 
courts have ruled under the current Clean Air Act.
  Mr. Speaker, I yield back the balance of my time.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield myself the 
balance of my time.
  There are lots of areas in the country that have already implemented 
the controls that the gentleman from Texas (Mr. Barton) speaks about 
and had worse transport problems and are not seeking extensions. It is 
a matter of whether these companies want to do it and have the 
encouragement to come into compliance rather than to help to stay out 
of compliance.
  I would also like to note that the gentleman from Michigan (Mr. 
Upton) was here speaking, and I do not know about his application for 
an extension, but all the areas in Michigan have attained the 1-hour 
standard. So I do not know why the EPA policy would even apply to 
Michigan.
  The only transport occurring in my area is from the gentleman from 
Texas' (Mr. Barton) district to mine. It is not from Houston to Dallas, 
and in today's article that was well-researched in the Dallas Morning 
News, it states that the region missed Federal deadlines in 1996 and 
1999 to clean up its air. The last missed date made the region, now 
classified as a serious ozone violator, eligible to move to the next 
worse category, as severe. That would impose the new deadline set by a 
Federal law for 2005 and new orders for pollution cuts.
  Mr. BARTON of Texas. Mr. Speaker, will the gentlewoman yield?
  Ms. EDDIE BERNICE JOHNSON of Texas. I yield to the gentleman from 
Texas.
  Mr. BARTON of Texas. Mr. Speaker, I know she has the right to close, 
but she made a characterization about my district, and at the 
appropriate time, I would like to respond to that. I do not mean to 
interrupt her, but if she would yield to me some time.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield 30 seconds 
to the gentleman from Texas (Mr. Barton).
  Mr. BARTON of Texas. Mr. Speaker, I will put into the Record data by 
the Texas Environmental Air Quality Commission that shows the 
monitoring in Ellis County has not exceeded one time the standard, not 
one time. Now, there are monitors in Arlington, Texas, that have, and 
that is also in my district, but if a reference is to Ellis County, the 
data shows that there have not

[[Page 26375]]

been any exceedences. I do not know which part of my district she was 
referring to, but if it is Ellis County, we are okay in Ellis County. 
If it is part of Arlington that I represent, then we have had an 
exceedence.
  The data is for ozone exceedences in Dallas/Fort Worth area in 2002 
and 2003 (through 10/28/2003).
  Measured values for Midlothian Tower C94/C158/C160 show 91 ppb on 15 
May 2002, 86 ppb on 22 June 2002, 90 ppb on 23 June 2002, 85 ppb on 24 
June 2002, 87 ppb on 8 July 2002, 88 ppb on 7 August 2002, 87 ppb on 8 
August 2002, 99 ppb on 9 August 2002, 94 ppb on 11 September 2002, 86 
ppb on 13 September 2002, 89 ppb on 28 May 2003, 86 ppb on 9 June 2003, 
and 89 ppb on 6 August 2003.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield myself such 
time as I may consume.
  Wherever we are dirtying this air, it is dangerous to the lungs, and 
it is dangerous to the health.
  According to the Environmental Protection Agency, 127 million 
Americans breathe air that violates Federal standards for smog and soot 
pollutions. EPA's own consultants found that each year almost 370 
residents of the Dallas-Fort Worth area died just because of pollution 
from the oldest and dirtiest unregulated power plants in the country, 
and 10,500 asthma attacks are triggered.
  During the past several years, EPA gave several metropolitan areas a 
free pass, extending air deadlines for dirty areas without bumping them 
up to the higher pollution categories that would require more 
protective standards. Four separate Federal appellate courts all ruled 
that EPA's extension policy violated the language and purpose of the 
Clean Air Act. Appropriately, that led the agency to abandon the 
policy.
  With so many Americans breathing in dirty air, it should be obvious 
that air quality standards are already not being enforced enough. Why 
would we make them weaker? But rather than accepting the judgment of 
the EPA and the courts, the gentleman from Texas (Mr. Barton) and his 
allies are seeking to amend the Clean Air Act. His changes would turn 
the clock back, extend the air time frames once again, without raising 
the bar for air quality. What this means in real terms for real people 
is simple: Dirtier air for longer.
  In their desire to pass any comprehensive energy bill, some of my 
colleagues may be willing to overlook the massive damage this bill 
would do to our existing clean air policies. Including the Barton dirty 
air rider, which I do not even know what it says because he will not 
let us see it, but it means ignoring overwhelming scientific evidence 
on the serious health effects of ozone pollution. It will mean that 
pollution in these areas will go unchecked for longer and longer in the 
future.
  Asthma attacks, respiratory problems and pulmonary disease will go 
up, while the amount of time children can spend playing outside will go 
down. Developing lungs process 50 percent more air, pound for pound, 
than those of adults.
  Children suffer most from the current air quality shortfalls. Letting 
the situation worsen for years and even decades does nothing for a 
child unable to go outside today.
  It is true that we must secure our energy future, and this is why a 
comprehensive energy bill is attempting to move forward, but we must 
not roll back critical safeguards. We must not pass a bill with great 
shortfalls simply because we need to pass a bill. We must instead work 
toward a fair bill that protects us all and does not endanger ourselves 
and our children.
  This is not an attack upon my colleague and nor is it Democrats 
versus Republicans. We see Democrats sitting over here that are for 
this, too. He is for dirty air, but while we agree that emissions from 
vehicles are significant contributors to ozone formation in north 
Texas, we also want to highlight the fact that the volume of the 
emissions coming from sources in Ellis County equals that of 2.5 
million vehicles annually. These emission figures do not account for 
the two power plants that have sited their plants in Ellis County. Many 
of them have moved from Dallas County to Ellis County to avoid 
compliance with better emission controls because they knew they would 
find the gentleman from Texas (Mr. Barton) there to protect them, which 
is not a part of this quote, with better pollution controls nor do 
these emission figures account for the three permit amendments that are 
pending at the Texas Commission of Environmental Quality to increase 
emissions.
  Are we going to forget about the people and the health of the people 
altogether and not care what happens to the people's lungs, including 
those of us who are here, or are we going to say to the companies, get 
serious, comply with the standards?
  Mr. Speaker, I also have testimony from that hearing from four 
witnesses in July, as well as other material that I have referred to, 
to place in the Record at this point.

             [From the Dallas Morning News, Oct. 28, 2003]

                   Houston Link to D-FW Smog Doubted

                         (By Randy Lee Loftis)

       Internal reviews at the Environmental Protection Agency 
     found little or no evidence to support Texas' contention that 
     Houston's smog was harming Dallas-Fort Worth's attainment of 
     clean-air goals, documents and interviews show.
       Nonetheless, EPA officials publicly used much different 
     language--asserting that Houston's smog ``jeopardized'' 
     Dallas' attainment--and proposed giving urban North Texas two 
     more years to clean up its smog than federal law allowed. The 
     move postponed a tougher smog crackdown.
       Current and former EPA officials this week defended their 
     decisions and said there was no attempt to alter scientific 
     findings to justify their January 2001 proposal to extend 
     North Texas' smog deadline.
       ``I don't recollect anybody trying to hide a shell game on 
     Dallas-Forth Worth,'' said Tom Diggs, the EPA's chief air 
     planner for Texas. He said the agency's actions were in line 
     with national policy.
       But a scientist at a major environmental group called the 
     discrepancy between the EPA's internal reviews and its public 
     statements ``damning'' evidence of collusion to avoid 
     statutory deadlines, at a cost to public health.
       ``It is shameful that the EPA was more worried about 
     appearing inflexible than upholding the law,'' said Dr. Ramon 
     Alvarez of Environmental Defense's Texas office.


                            time to clean up

       North Urban Texas is under pressure to resolve one of the 
     nation's most stubborn smog problems. Emissions from vehicles 
     and industries combine to create hazy skies and health risks, 
     especially for children, the elderly and people with lung 
     ailments.
       The region missed federal deadlines in 1996 and 1999 to 
     clean up its air. The last missed date made the region, now 
     classified as a serious ozone violator, eligible to move to 
     the next-worse category, severe. That would have imposed a 
     new deadline, set by federal law for 2005, and new orders for 
     pollution cuts.
       When the EPA proposed postponing the deadline to 2007, it 
     also put off the area's designation as severe. That decision 
     two years ago has surged back into the headlines in recent 
     days as part of a bitter fight in Congress.
       The agency gave such extensions to several metropolitan 
     areas, in each case saying scientific evidence supported 
     them. Federal courts have struck down the extensions as 
     illegal.
       An effort by U.S. Rep. Joe Barton, R-Enis, to legalize them 
     has helped to stall a major energy bill.
       Some Senate Republican leaders and Democrats in both 
     chambers oppose Mr. Barton's attempt. ``We did some research 
     on the issue,'' Mr. Barton said Tuesday in Washington. ``We 
     had a hearing in the committee. And all but some of the more 
     radical environmentalists said we ought to give the EPA this 
     discretion.''
       The EPA's policy on ``transport'' of smog, or ozone, 
     between cities was supposedly meant to keep a downwind area 
     from paying a price for an upwind area's pollution.
       Starting with the Clinton administration, the EPA offered 
     to extend deadlines for any urban area that could demonstrate 
     that another area's smog was significantly affecting its 
     clean-air attainment.
       Atlanta, Washington, D.C., St. Louis and Beaumont-Port 
     Arthur were among the takers.
       So was Dallas-Fort Worth. The Texas Natural Resource 
     Conservation Commission, now the Texas Commission on 
     Environmental Quality, submitted technical findings in 
     September 1999 that it said showed Houston's effect on 
     Dallas-Fort Worth.
       The EPA's Dallas office formally accepted the state's 
     evidence Jan. 4, 2001. The EPA cited the evidence in 
     proposing to postpone Dallas-Fort Worth's deadline to 2007 
     from 2005, the date set by law.
       ``We are proposing that this transported pollution affects 
     DFW's ability to attain by the current attainment date,'' the 
     EPA announced in the Federal Register.

[[Page 26376]]

       ``Thus, the DFW and HGA [Houston-Galveston] areas are 
     inextricably linked,'' the agency wrote. ``Without controls 
     in the HGA, the DFW area's ability to attain is 
     jeopardized.''
       Environmentalists questioned that assertion at the time, 
     saying the EPA was using transport as an excuse to give 
     states more time for cleanups. The federal court rulings kept 
     the EPA from finalizing the North Texas extension. Future 
     smog plans are being negotiated.
       Mr. Diggs, the EPA's chief regional planner, said Tuesday 
     that the state's submittal met the EPA national policy for 
     such claims. He acknowledged, however, that the EPA set the 
     scientific hurdle so low that it was easy for states to get 
     the deadlines extended.
       ``Whether [making the extensions easy] was a good decision 
     or not, it was out there for every state,'' he said.


                         ``significant'' impact

       Elsewhere in that Federal Register document, Mr. Diggs 
     noted, the EPA said Houston's impact on North Texas was small 
     and limited to some days, but met the agency's definition of 
     ``significant.'' However, EPA technical reviews in 1999 had 
     found that Texas' scientific case was ``weak'' and that 
     Houston actually had ``minimal, if any'' effect on Dallas-
     Fort Worth's attainment, documents and interviews show.
       One former EPA staff expert who reviewed the evidence 
     concluded then: ``Thus, there is not much of an impact of HG 
     [Houston-Galveston] on the DFW [area] that would interfere 
     with DFW's ability to achieve attainment.''
       Dick Karp said in an interview that he was given no new 
     information later that would change that conclusion.


                          too rigorous review

       The problem, he said, was that supervisors told him his 
     review was ``more rigorous'' than the agency wanted.
       ``There was a lot of passing back and forth,'' Mr. Karp 
     said. ``I know in the beginning I was probably a bit more of 
     a stickler for them being able to prove it--show me that 
     there's a real impact from Houston.
       ``And I kind of got taken aside and told, `Well, that's not 
     exactly what this policy is about.'''
       EPA executives wanted to grant the extensions, but making 
     the states prove their claims would go against that goal, Mr. 
     Karp said.
       So he was told that the burden was on the EPA to disprove 
     the states' claims, not on the states to prove them, he said.
       ``I wasn't real comfortable with that, but I don't get to 
     make the rules,'' said Mr. Karp, who has left the EPA.
       Former EPA regional administrator Gregg Cooke, who made the 
     decision to delay Dallas-Fort Worth's deadline, said he was 
     never told that there were questions about the state's 
     evidence.
       ``The staff document that was sent to me [said that] we 
     think we should give the extension, ``he said. ``And I 
     approved that based upon whatever was given to me at the 
     time. . . . I thought the analysis from staff was that the 
     technical argument was well-taken.''
       Asked whether knowing of lower-level staff concerns about 
     the state's case might have changed his decision, Mr. Cooke 
     said, ``It might have been germane.''
       Mr. Cooke, who has since left the EPA, is an attorney 
     representing the governments of Dallas-Fort Worth-area 
     counties on clean-air planning.
       Mr. Diggs said the EPA's final technical documents, 
     published along with the proposal to extend North Texas' 
     deadline, laid out the agency's policy requirements and 
     showed that Texas had met them. The documents did not claim, 
     he said, that Houston's smog was keeping Dallas-Fort Worth 
     out of clean-air attainment. That was clear in an Oct. 22, 
     1999, letter to Texas officials, he said.
       ``We would never say that Houston is the reason for Dallas-
     Fort Worth's nonattainment,'' Mr. Diggs said, ``Houston 
     coming into attainment does not solve Dallas-Fort Worth.''
       Even the Texas officials who assembled the state's evidence 
     knew that they couldn't prove that Houston was a big factor 
     for North Texas, said Brian Foster, an air planner with the 
     Texas Commission on Environmental Quality.


                            `minimal impact'

       ``We did show that there was a minimal impact. We admit 
     that it wasn't the greatest amount there was,'' Mr. Foster 
     said.
       But the state agency, hoping that new federal and state 
     measures would help ease Texas smog, readily took advantage 
     of the delays that the transport policy offered, he said.
       ``We felt that we needed more time,'' Mr. Foster said. The 
     key to getting it was EPA's low standard for showing 
     ``significant'' impacts. ``Once again, it goes back to the 
     EPA policy,'' Mr. Foster said.
       Dr. Alvarez, the Environmental Defense scientist, said the 
     EPA oversold Houston's impact to the public to justify the 
     extension. Added together, he said, such seemingly small 
     steps backward help explain why decades of efforts have 
     failed to clean up North Texas' air.
       ``It seems like sophomoric high school decision-making,'' 
     he said. ``Unfortunately, the stakes are much higher: It is 
     the asthmatic children in the metroplex that pay the price of 
     yet another delay in the fight for clean air.''
                                 ______
                                 


                                                  U.S. Senate,

                                 Washington, DC, October 27, 2003.
     Hon. Pete Domenici,
     Chairman, Senate Committee on Energy and Natural Resources, 
         Dirksen Senate Office Building, Washington, DC.
       Dear Mr. Chairman: The Clean Air Act has reduced pollution 
     from many different sources, but there is still much more 
     work to be done. Nearly 150 million Americans are living in 
     areas that currently do not meet the nation's air quality 
     standards. As you know, in the Senate, the Environment and 
     Public Works Committee has the responsibility for reviewing 
     and revising that Act in a manner that will help us achieve 
     the unanimous goal of improved air quality for all our 
     citizens.
       We understand that members of the energy bill Conference 
     Committee from the House of Representatives have proposed an 
     amendment to Title I of the Clean Air Act. That amendment, to 
     codify a policy with respect to ozone nonattainment 
     designations, is not relevant to energy issues, has been 
     overturned by the courts, and has not been the subject of 
     consultation with or legislative action by the Environment 
     and Public Works Committee or the Senate. Therefore, we 
     believe it is inappropriate to include such provisions as 
     part of the energy bill.
       The effect of the proposed amendment would be to disregard 
     the compelling scientific evidence on the serious health 
     effects of ozone pollution and delay necessary emissions 
     reductions. This will increase pollution in those areas and 
     in downwind areas, increasing asthma attacks, the number of 
     hospital admissions for respiratory and pulmonary problems, 
     and reducing the number of days that children can play 
     outside safely. This would be contrary to the system 
     established by the Clean Air Act and unsound policy.
       In addition, the precedent of bypassing the Committee on 
     Environment and Public Works would be unfortunate. Disregard 
     for the views of the committee of jurisdiction would be 
     compounded by incorporating a new matter such as the proposed 
     amendment, which is not in either Houses' version of H.R. 6, 
     into the conference report. Inclusion of the amendment in the 
     conference report on H.R. 6 will delay Senate consideration 
     and any final action on H.R. 6.
       Finally, we clearly understand that this proposal is not 
     emanating from the Senate conferees and urge you to oppose 
     it. Energy Committee majority staff has indicated publicly 
     that you do not think that the energy bill is the appropriate 
     vehicle for amending the Clean Air Act.
       We hope that you will maintain that position with respect 
     to this proposed amendment and any such proposals outside the 
     scope of what has already passed the Senate when the 
     conferees meet again.
           Sincerely,
         Jim Jeffords, Jack Reed, Patrick Leahy, Barbara Boxer, 
           Joe Biden, Ron Wyden, Dianne Feinstein, John F. Kerry, 
           Hillary Rodham Clinton.
                                  ____


Testimony by Samuel A. Wolfe, Assistant Commissioner for Environmental 
   Regulation, New Jersey Department of Environmental Protection, on 
 USEPA's Bump-up Policy Under Title I of the Clean Air Act Before the 
  House Energy and Commerce Committee Subcommittee on Energy and Air 
                         Quality, July 22, 2003

       Good morning, Mr. Chairman and members of the Subcommittee. 
     My name is Samuel Wolfe. I am Assistant Commissioner for 
     Environmental Regulation for the New Jersey Department of 
     Environmental Protection. Thank you for the opportunity to 
     testify before you today regarding the Environmental 
     Protection Agency's bump-up policy under Title I of the Clean 
     Air Act.
       Even though the EPA created the bump-up policy in an effort 
     to help areas affected by ozone transport, New Jersey cannot 
     support revising the Clean Air Act to accommodate the EPA 
     policy. The policy does nothing to address transport. It 
     simply rewards an area's failure to attain air quality 
     standards by extending deadlines beyond the two years that 
     the law allowed without requiring any additional action to 
     address air pollution.
       The 1990 Clear Air Act Amendments created five classes of 
     ozone nonattainment areas to reflect the severity of each 
     area's ozone problem, ranging from marginal to extreme. The 
     classification system followed the principle that a more 
     severe problem would require more work and more time to 
     correct. For that reason, the law requires areas with more 
     severe problems to take more actions to reduce air pollution, 
     and allows those areas more time to attain the Federal air 
     quality standard.
       Under the law, areas that fail to attain the standard by 
     the statutory deadline could get the deadline extended for up 
     to two years. If they still failed after that extension, they 
     would be ``bumped up'' to a higher classification, giving 
     them more time but also requiring that they do more to 
     control air pollution.

[[Page 26377]]

       The EPA's 1998 ``bump-up'' policy extended the attainment 
     deadlines for moderate or serious nonattainment areas when 
     pollution transported from outside the area interfered with 
     its ability to demonstrate attainment by the deadline. More 
     than many States, New Jersey appreciates the need to address 
     transport. Over a third of the air pollution in our State is 
     transported from outside our borders. However, we cannot 
     support codifying into law a policy that simply provides 
     extensions and does nothing to address transport.
       Granting these cost-free extensions would be easier to 
     justify if a bump-up forced an area to impose costly or 
     onerous requirements to control air pollution. This is not 
     the case. From the beginning, the EPA classified most of New 
     Jersey as severe nonattainment areas. As a result, New Jersey 
     has had to implement almost all of the ozone pollution 
     control measures required under Title I of the Clean Air Act. 
     We required our major sources of ozone precursors to install 
     reasonably available control technology. We required vapor 
     recovery at gas stations. We run an enhanced program for 
     motor vehicle inspection and maintenance, which is much 
     easier to create now than it was when we started.
       The truth is that these types of Title I measures are now 
     the ``low hanging fruit'' of emission reductions. Areas that 
     fail to meet their attainment deadlines can put these 
     measures in place without difficulty or great expense.
       It would also be easier to justify these extensions if the 
     areas that received them were merely passive victims of 
     transport from upwind. Unfortunately, many of these areas 
     themselves contribute to poor air quality downwind. Extending 
     attainment deadlines, without requiring additional action, 
     means that these areas by transport will continue to receive 
     unabated air pollution from outside their borders. This air 
     pollution will harm the health of the area's own residents, 
     as well as the health of people who live and work downwind.
       New Jersey itself provides a good example of the problem. 
     Again, more than a third of our air pollution comes from 
     outside our borders. At the same time, air pollution from 
     inside New Jersey affects other States downwind. For that 
     reason, we have filed a petition with the EPA to restrict 
     emissions from facilities upwind of us, while States downwind 
     of us have filed similar petitions targeting facilities in 
     New Jersey. We participated in the research that made it 
     clear that ozone transport is a significant issue in the 
     United States, especially in the eastern half of the country. 
     We have also worked actively with other Northeastern and Mid-
     Atlantic States and with the EPA to develop regulatory 
     programs and legal actions that would address transport.
       At the same time, it was never an option to do nothing 
     while we wait for the transport problem to be solved. For 
     that reason, we continued to pursue sources of air pollution 
     that affected our own residents as well as people downwind. 
     Among other things, we reached an agreement with the operator 
     of the three largest coal-fired electric generating units in 
     the State, which will bring advanced air pollution controls 
     to those units.
       Givinig a free pass to areas affected by transport does not 
     solve the problem of transport. What will solve the problem 
     of transport is a strong national effort to reduce the 
     formation of ozone air pollution throughout the country, 
     complemented by continuing State and local efforts to find 
     and implement cost-effective ways to reduce air pollution 
     within our borders.
       We therefore ask that the existing bump-up provisions of 
     the Clean Air Act be left in place.
       Thank you for this opportunity to testify. I am happy to 
     answer any questions you may have.
                                  ____


 Testimony of Ramon Alvarez, Ph.D., Scientist, Environmental Defense, 
 Before the Subcommittee on Energy and Air Quality of the Committee on 
Energy and Commerce of the U.S. House of Representatives, July 22, 2003

       Good morning. My name is Ramon Alvarez and I am an 
     atmospheric scientist in the Austin, Texas office of 
     Environmental Defense, a non-profit, non-partisan, non-
     governmental environmental organization representing 
     approximately 300,000 members nationally. Thank you for the 
     invitation to share with you the experience of the Dallas/
     Fort Worth ozone nonattainment area with EPA's attainment 
     date extension policy.


                                Summary

       Achieving the ozone standard in the Dallas/Fort Worth (DFW) 
     area and other U.S. communities is of vital importance of 
     public health. Ozone impairs the body's respiratory system, 
     aggravates existing respiratory diseases, and has been 
     associated as a causative factor in the development of asthma 
     in children. Unfortunately, the DFW area has made little 
     progress in reducing ozone pollution since the passage of the 
     1990 Clean Air Act Amendments.
       The DFW region twice failed to meet the ozone standard, in 
     1996 (due to a scientifically flawed plan) and in 1999 (after 
     failing to develop a plan prior to the clean air deadline). 
     After EPA threatened sanctions, a new clean air was developed 
     in April 2000. In 2001, EPA proposed to approve this plan, 
     including the request from Texas to extend the attainment 
     date to 2007 without reclassifying the area to severe 
     nonattainment. EPA has indicated that it will not finalize 
     this approval in light of the appellate court decisions on 
     the attainment date extension policy.
       As discussed below, transported pollution from Houston has 
     only a minor and infrequent impact on the DFW area. EPA's 
     transport policy, even if legal, was thus erroneously applied 
     in the DFW area, since the evidence shows DFW could attain 
     the ozone standard even if Houston were to do nothing to 
     clean up its air pollution.
       As public concern about local air pollution has increased, 
     stakeholders in the DFW area are now more actively working 
     together to agree on a path forward to clean up the region's 
     air. Legislative proposals to extend attainment deadlines 
     pose a serious risk of disrupting these ongoing negotiations 
     that have a good likelihood of reaching a solution that meets 
     the needs of all the parties involved. Moreover, any further 
     delay in deadlines for the DFW area would mean that thousands 
     of children and other sensitive individuals will continue to 
     suffer the adverse health effects associated with ozone 
     pollution.


 Failure to Reduce High Ozone Levels Seriously Threatens Public Health

       Inhaling ozone significantly harms human health: ozone can 
     burn cell walls in the lungs and air passages, causing 
     tissues to swell, chest pain, coughing, irritation and 
     congestion. Other effects include decreased lung function, 
     aggravation of asthma, increased susceptibility to bacterial 
     infection, and generation of scar tissue and lesions in the 
     respiratory system.
       In reviewing recent evidence of the harm caused by ozone, 
     EPA reached an ominous conclusion on the effects of repeated 
     and long-term exposure to ozone: ``EPA has concluded that 
     repeated occurrences of moderate responses, even in otherwise 
     healthy individuals, may be considered to be adverse since 
     they could well set the stage for more serious illnesses.''
       EPA's conclusion was confirmed by new evidence showing that 
     children who participate in high activity, outdoor sports in 
     portions of the Los Angeles air basin are 3.3 times more 
     likely to develop childhood asthma than children who play 
     equally active sports in communities with low ozone 
     environments. For most children who develop asthma, it is an 
     incurable lifetime affliction. EPA recognizes that whatever 
     the effect of ozone inhalation on average adults, the impact 
     on those who suffer from asthma, the elderly, outdoor 
     workers, and active children are far more severe.
       A lifetime of asthma is a high price to exact from our 
     children for failing to reduce ozone to safer levels. Any 
     further delay in deadlines to meet the ozone standard would 
     mean that hundreds of thousands of American children and 
     other sensitive individuals will suffer the adverse health 
     effects associated with ozone pollution.


How did Dallas/Fort Worth come to rely on the attainment date extension 
                                policy?

       The Dallas/Fort Worth area has had little success in 
     curbing ozone air pollution since the passage of the 1990 
     Clean Air Act Amendments. Both the frequency of ozone 
     exceedances and the peak levels monitored each year have 
     remained largely unchanged since the late 1980s. (See Exhibit 
     1). The Dallas/Fort Worth area continues to routinely record 
     1-hour ozone exceedances, including this year's high value to 
     date of 161 parts per billion.
       Under the 1990 Clean Air Act Amendments, the 4-county 
     Dallas/Fort Worth area was classified as a moderate 
     nonattainment area and required to meet the health standard 
     for ozone by 1996. The State Implementation Plan (SIP) 
     submitted to EPA in 1994 contained only the Act's minimum 
     mandatory reduction (15% of the emissions of volatile organic 
     compounds). Notably, this plan lacked any measures to reduce 
     nitrogen oxides, significant reductions of which are now 
     accepted to be essential to achieving the ozone standard. Not 
     surprisingly, the minimalist VOC-only plan of 1994 failed to 
     bring the region into attainment by the 1996 deadline. EPA 
     reclassified (``bumped up'') the Dallas/Fort Worth 
     nonattainment area from moderate to serious in March 1998.
       The bump-up to serious required Texas to prepare a new SIP 
     by March 1999. The SIP Texas submitted was, by its own 
     admission, inadequate. Accordingly, EPA found the SIP 
     incomplete and started the sanctions and Federal 
     Implementation Plan clocks.
       The looming threat of sanctions spurred the development and 
     submission in April 2000 of a new SIP. This plan relies on 
     EPA's 1998 attainment date extension policy, which is the 
     subject of today's hearing. In January 2001, EPA proposed to 
     approve the April 2000 SIP and extend the attainment date to 
     November 2007 while retaining the area's serious 
     classification.


transporation from houston does not prevent the dallas/fort worth area 
                             from attaining

       EPA's proposed extension of the DFW area's attainment date 
     is based on a claim that transported pollution from Houston

[[Page 26378]]

     jeopardized the DFW area's ability to attain the ozone 
     standard. The evidence, however, does not support that claim. 
     We accept the notion that emissions from the Houston/
     Galveston nonattainment area can contribute to observed ozone 
     levels in the DFW area on some days. Since 1996 we have 
     argued that the control strategy for the DFW area must 
     address ozone transport. However, we do not believe that 
     ozone transported from Houston/Galveston would alone prevent 
     the DFW area from attaining the ozone standard.
       EPA justified its proposed extension of the DFW area's 
     attainment date largely on two analyses performed by Texas:
       Ozone source apportionment analysis. On the day with the 
     highest modeled zone, 2 to 4 ppb of ozone in some portion of 
     the DFW area cam from Houston sources.
       Back trajectory analysis. Air masses entering the DFW area 
     had trajectories going back to the Houston area on 
     approximately 10 percent of the days when ozone exceedances 
     were recorded in DFW between 1993 to 1998.
       The only conclusion that can be reached from the analyses 
     contained in the administrative record is that on a small 
     number of days, there may be a small amount of additional 
     ozone in the DFW area that came from Houston. Such a result 
     is not surprising--ozone air pollution is known to travel 
     over even longer distances such as from the Midwest to the 
     Northeast. However, the fundamental question that was never 
     answered by Texas or EPA is whether the small amount of ozone 
     originating in Houston that might occasionally arrive in the 
     DFW area is enough to prevent DFW from attaining the ozone 
     standard before Houston's attainment date.
       A fair evaluation of the evidence would lead to the 
     conclusion that the Dallas/Fort Area could still attain the 
     ozone standard even if Houston did nothing to clean up its 
     air pollution. For example, Houston's emissions could be 
     expected to impact the DFW area less than one time per year. 
     Even if all of the monitored ozone on those relatively rare 
     days came from Houston, the DFW area could still comply with 
     the 1-hour standard, which allows for 1 exceedance per year. 
     Thus, EPA's transport policy, even if it were legal, was 
     erroneously applied in the DFW area.
       Because transport from Houston is only a minor component of 
     Dallas/Fort Worth's ozone air pollution, attainment of the 1-
     hour ozone standard will only be achieved after sufficient 
     local controls are in place to eliminate the vast majority of 
     exceedances that are the result of ozone precursor emissions 
     generated within the DFW area itself. It is misguided to 
     blame the small amount of transport from an upwind area as 
     the reason to once again extend a deadline established to 
     ensure the DFW area's more than 4 million residents can 
     breathe healthier air.


        legislation threatens locally-driven, win-win solutions

       In both the Dallas/Fort Worth and Beaumont/Port Arthur 
     areas, legislative proposals at this time pose a serious risk 
     of disrupting ongoing negotiations that have a good 
     likelihood of reaching a solution that meets the needs of all 
     the parties involved.
       In the Dallas/Fort Worth area, local government officials, 
     business leaders, EPA, the Texas Commission on Environmental 
     Quality and environmental groups are working in a cooperative 
     spirit to agree on a path forward to cleaning up the region's 
     air. One outcome might be expeditious attainment of the 1-
     hour standard and early compliance with the 8-hour ozone 
     standard now being implemented by EPA. I and other DFW area 
     stakeholders feel that the current air quality challenges 
     facing the region can best be handled at the local level and 
     that Federal legislation on the attainment data extension 
     policy is not needed. (See for example Exhibit 2, e-mail from 
     Ron Harris, Collin County Judge)
       In Beaumont/Port Arthur (BPA), discussions are actively 
     taking place between all the parties (including the 
     environmental plaintiffs, regulated industry, Texas and EPA) 
     to respond to the 5th Circuit Court decision on EPA's use of 
     the attainment date extension policy for the BPA area. These 
     discussions could lead to a negotiated agreement whereby the 
     area would not be bumped up to severe. EPA has already 
     demonstrated the Act's potential flexibility by proposing, in 
     the alternative, a single or double bump up for BPA.


 exhibit 2, r. alvarez--text of e-mail from Ron Harris dated 7/19/2003

     To: Ramon Alvarez
     From: Ron Harris, Collin County Judge, Co-Chair, North Texas 
         Clean Air Steering Committee
       As we discussed yesterday, please relay to the House 
     Committee hearings on delay of attainment dates the 
     following:
       The North Texas Area is currently working closely with both 
     local government, business, EPA, Texas Commission on 
     Environmental Quality and specifically Environmental Defense 
     along with Public Citizen to continue efforts at cleaning up 
     the air in North Texas.
       The efforts include working with the Texas Clean Air 
     Working Group and the Texas Legislature. In my opinion, we 
     are making progress toward attainment of the National Clean 
     Air Standard.
       At this juncture, I think it would be better left to local 
     partnerships to work and not change the rules again, until 
     such partnerships become unsuccessful and mistrust from those 
     involved results in a slowing down of the clean air goals.
                                  ____


Written Testimony of J. David Farren, Southern Environmental Law Center 
   Before the U.S. House of Representatives, Committee on Energy and 
Commerce, Subcommittee on Energy and Air Quality, Honorable Joe Barton, 
 Texas, Chairman: Hearing on Bump Up Policy Under Title I of the Clean 
                         Air Act, July 22, 2003


                        introduction and summary

       Mr. Chairman and Members of the Subcommittee: Thank you for 
     the opportunity to provide information on the application of 
     EPA's Downwind Extension Policy as an alternative to 
     reclassification, or ``bump up'' as the appropriate mechanism 
     to extend the attainment date under Section 181 of the Clean 
     Air Act (the ``Act''). As an attorney with the Southern 
     Environmental Law Center, which has an office in Atlanta, I 
     have worked closely over the past decade with conservation 
     groups, other citizen organizations, and health professionals 
     in Georgia on issues related to air quality.
       The Atlanta area has never achieved the ``one-hour'' 
     National Ambient Air Quality Standard (NAAQS) for ground 
     level ozone, an important step in the effort to protect the 
     health and quality of life of the Atlanta area's four million 
     residents. The Eleventh Circuit Court of Appeals ruled last 
     month that the Downwind Extension Policy is illegal as 
     applied to the Atlanta area. For the following reasons, I 
     urge this Subcommittee not to recommend changes to the Act 
     that would undermine its carefully crafted deadline-driven 
     scheme:
       The failure to achieve attainment of the one-hour ozone 
     NAAQS in Atlanta has very little to do with pollution 
     transport and, instead, results overwhelmingly from the 
     failure timely to institute available controls on local 
     sources of pollution. In fact, only 9% of the violation days 
     in Atlanta are contributed to by transport.
       Georgia officials project that Atlanta will achieve the 
     ``one-hour'' ozone standard by 2004, which will avoid any 
     additional consequences under the Act that would result from 
     the failure to meet the 2005 deadline applicable to 
     ``severe'' nonattainment Areas.
       Reclassification creates a planning opportunity to ensure 
     that the ``one-hour'' standard is attained no later than 
     2005. In addition to the mandatory measures specified in the 
     Act for ``severe'' areas, Atlanta can choose to implement 
     other measures of its choosing to attain the ``one-hour'' 
     standard and also to make progress toward meeting the new 
     ``eight-hour'' standard which EPA has determined to be 
     necessary to protect public health.
       The prompt reduction of ozone pollution in Atlanta will 
     result in significant public health benefits, increased 
     productivity and reduced health care costs. A study published 
     in the Journal of the American Medical Association co-
     authored by an Atlanta pediatric pulmonologist found that 
     reducing ozone precursors during the 1996 Olympics led to a 
     significant decline in acute respiratory illness.


                      history of delay in atlanta

       Ground-level ozone, one of the main harmful ingredients in 
     smog, is produced when its precursors, volatile organic 
     compounds (``VOCs'') and nitrogen oxides (``NOX'') 
     from motor vehicles, smokestacks, and other sources, react in 
     the presence of sunlight. In the thirty years since EPA 
     established the first national ozone standard in 1971, 
     Georgia has never adopted an effective strategy for achieving 
     the pollution reductions necessary to bring the Atlanta area 
     into attainment with the ``one-hour'' ozone standard. Under 
     the 1990 Amendments to the Clean Air Act, the Atlanta area 
     was designated a ``serious'' ozone nonattainment area and was 
     given almost a decade, until November 15, 1999, to develop 
     and implement a plan to control air pollution to attain the 
     NAAQS for ground-level ozone. Unfortunately, the history in 
     Atlanta has been to delay the adoption and enforcement of 
     readily available local controls on ozone precursors. As a 
     result of this failure, hundreds of thousands of Atlantans 
     continue to suffer the adverse health effects associated with 
     ozone, despite the passage of the 1999 deadline for Georgia 
     to implement the emissions reductions required for attainment 
     of the NAAQS.
       The 1990 Amendments established a 1994 deadline for Georgia 
     and other states to submit to EPA a plan that would provide 
     for attainment of the NAAQS by the 1999 deadline. See 42 
     U.S.C. Sec. 7511a(c)(2)(A). It was not until five years after 
     this submittal deadline, October 28, 1999, that Georgia 
     finally submitted for approval its proposed State 
     Implementation Plan (SIP). Even then, EPA proposed to 
     disapprove the SIP unless Georgia included additional 
     pollution control measures to achieve further emissions 
     reductions. See 64 Fed. Reg. 70,478 (Dec. 16, 1999).
       A revised SIP with various modifications was not submitted 
     until July 17, 2001, six years after the submittal deadline 
     and almost two years after the deadline for actual

[[Page 26379]]

     attainment. Rather than demonstrating timely attainment of 
     the NAAQS by 1999, this SIP purports to demonstrate 
     attainment by the year 2004 based on EPA's 1998 ``Guidance on 
     Extension of Attainment Dates for Downwind Transport Areas'' 
     (the ``Downwind Extension Policy''). Thus, the delay in 
     attaining the ozone NAAQS in Atlanta is the result of 
     Georgia's delay in developing and implementing a plan to 
     address the longstanding local air pollution problem in 
     Atlanta.


     transport is a very small factor in atlanta's ozone pollution

       Never formally adopted as a rule by EPA, the Extension 
     Policy permits the extension of the attainment date without 
     ``bump up'' for some ``moderate'' and ``serious'' 
     nonattainment areas based on EPA's belief that certain of 
     these areas have been hindered in their attempts to meet air 
     quality standards by pollution transported from other states. 
     The Extension Policy, however, does not require a showing of 
     ``but, for'' causation. To be eligible for a waiver of the 
     attainment deadline, the 1999 Federal Register notice 
     announcing the policy explains that downwind areas only need 
     show that transport ``significantly contributes to downwind 
     nonattainment,'' not that transport has rendered attainment 
     by the deadline impossible or even impracticable. 64 Fed. 
     Reg. 14,441 (March 25, 1999).
       For Georgia, by example, to be eligible for the policy, it 
     was not required to demonstrate that it was unable to attain 
     the NAAQS in Atlanta by 1999 through more aggressive control 
     of local pollution. In addition, EPA was exceedingly liberal 
     in its interpretation of the ``significantly affected'' 
     standard for application of the policy. In fact, EPA found 
     that ``upwind controls are predicted to reduce the number of 
     exceedances in Atlanta by 9 percent.'' 63 Fed. Reg. 57,446 
     (Oct. 27, 1998). This means that over 90% of violation days 
     in Atlanta result from local emissions. If Congress were to 
     change the Act to allow extensions based on small amounts of 
     transport, as occurred with Atlanta, almost any area could 
     claim that it is somewhat affected, delaying public health 
     protections for many millions of American families.
       As Georgia acknowledges in its most recent SIP revision, 
     the ``worst ozone episodes'' occur during ``multiple day 
     stagnation and recirculation events.'' In other words, the 
     smog days result from extended periods of calm weather where 
     local pollutants hover in the air, not on days where the wind 
     is bringing in emissions from out of state. Thus, it is clear 
     that the most effective way to achieve the public health 
     protections of ozone pollution reduction is to focus on local 
     controls, which Georgia has been reluctant to do.
       According to Georgia's submitted SIP, the majority of the 
     emissions that cause ozone in Atlanta come from motor 
     vehicles rather than from transport or stationary sources. 
     The nature of the transportation network, the resulting 
     number of vehicle miles traveled in the nonattainment area 
     and the failure to address this issue are directly related to 
     the severity of the ozone pollution problem. As Georgia 
     acknowledges in its SIP, smog in the area ``is spreading 
     outward in the shape of a giant doughnut,'' and is greatly 
     exacerbated by the fact that Atlantans drive about 35 miles 
     per day for every man, woman and child--more miles per capita 
     than in any other major city in the United States.
       Unfortunately, Georgia has been extremely reluctant to 
     address transportation emissions. For example, just this 
     spring it further delayed the implementation of a new low-
     sulfur fuel rule in the Atlanta nonattainment area at the 
     request of interest groups within the oil industry. In 
     addition, Georgia has repeatedly fallen through on promises 
     to provide funding for transportation options to single 
     occupant vehicle driving, such as commuter rail, HOV lanes 
     and other air-quality beneficial transportation investments. 
     Further, the Atlanta transit system languishes with the 
     highest fare in the country, service cutbacks and no support 
     from the State or suburban counties. Georgia has not 
     attempted to develop and implement timely strategies and 
     programs that have been shown to effectively reduce vehicle 
     travel and motor vehicle emissions. Many such strategies are 
     identified in the Act itself, 42 U.S.C. Sec. 7408(f)(1)(A), 
     and even are illustrated in Georgia's SIP as capable of 
     achieving prompt reductions in summer ozone levels in 
     Atlanta.


 Georgia Can Readily achieve the ``one hour'' standard in Atlanta with 
                             local controls

       The proposed SIP for Atlanta based on the extension policy, 
     recently struck down by the Eleventh Circuit, projected that 
     air quality will be improved sufficiently to meet the one 
     hour standard by 2004, after out of state power plants 
     institute required controls under the national NOX 
     SIP call agreement. Thus, the strategy chosen by Georgia for 
     Atlanta was to sit back and do less to control pollution 
     locally, based on the extension policy, rather than institute 
     more strategies to achieve the NAAQS by 1999.
       While this choice for Atlanta is now a fait accompli, it 
     has consequences for the area, the primary one being the 
     delay in public health benefits. The failure to attain also 
     means that Atlanta must be reclassified to ``severe'' status 
     and prepare a new SIP, which contains certain additional 
     control measures. Because Atlanta had projected that it could 
     attain the ``one-hour'' standard even under the prior SIP by 
     2004, Georgia faces little danger of not meeting the 2005 
     deadline for `'severe'' areas. These additional control 
     measures, however, should in no sense be considered 
     superfluous, as they are required under the Act to ensure 
     attainment by the new deadline. In addition, the additional 
     measures will be necessary to meet EPA's new ``eight-hour'' 
     ozone standard beginning next year.
       Further, to the extent that transport is a small 
     contributor to nonattainment in Atlanta, many of the 
     appropriate controls are in the process of being implemented. 
     For example, Alabama, the largest source of transport that 
     affects Atlanta, has begun this year to implement 
     NOX controls for most of its power plants. Of 
     course, the most effective way to reduce stationary source 
     pollution in Georgia would be to require further reductions 
     from in-state stationary sources, which are second only to 
     transportation emissions as a source of ozone precursors in 
     Atlanta. For example, two of the older power plants in 
     Georgia, McDonough and Yates, lack the post-combustion 
     NOX controls of modern facilities.


substantial public health benefits can be achieved through prompt ozone 
                               reduction

       Ozone is a lung-scarring irritant that affects everyone in 
     the Atlanta region and which can cause or exacerbate serious 
     health problems. For example, people with asthma and others 
     who experience breathing difficulties must limit outdoor 
     activities on days with high ozone levels. Frequently during 
     the spring and summer months, air quality in Atlanta fails to 
     meet the ozone NAAQS established by EPA for the protection of 
     public health.
       According to EPA, in 1999, the year established under the 
     Act for attainment, Atlanta violated the existing ``one-
     hour'' ozone standard on 23 days and exceeded the ``eight-
     hour'' standard on 69 days. See Georgia Environmental 
     Protection Division air quality data posted at http://
www.air.dnr.state.ga.us/tmp/99exceedences/old/index.html. 
     (Due to more favorable weather conditions in the last couple 
     of years, the number of violation days has been lower, as has 
     occurred during previous periods of especially favorable 
     weather patterns.) This means that on many summer days in 
     Atlanta it is not safe for kids to go outside for recess, for 
     the elderly to be working in their gardens and walking in the 
     neighborhood or for healthy adults to exercise outdoors.
       Evidence regarding the adverse health effects attributable 
     to ozone pollution strongly influenced the adoption of the 
     1990 Amendments to the Act. Expert testimony presented to 
     Congress included evidence that: ``Ninety percent of the 
     ozone breathed into the lung is never exhaled. Instead, the 
     ozone molecules react with sensitive lung tissues, irritating 
     and inflaming the lungs. This can cause a host of negative 
     health consequences, including chest pains, shortness of 
     breath, coughing, nausea, throat irritation, and increased 
     susceptibility to respiratory infections. . . . Some 
     scientific evidence indicates that over the long term, 
     repeated exposure to ozone pollution may scar lung tissue 
     permanently. . . . Ultimately, emphysema or lung cancer may 
     result. . . . Young children may be especially vulnerable to 
     both the acute and permanent effects of ozone pollution.''
       H.R. Rep. No. 101-490 (1990), reprinted in Environment and 
     Natural Resources Policy Division of the Congressional 
     Research Service, Legislative History of the Clean Air Act 
     Amendments of 1990 3021, 3223 (1993).
       The frequent, dangerously high ozone levels in Atlanta 
     during warmer months affect not only children and persons 
     with impaired respiratory systems, but also healthy adults. 
     As the former EPA Administrator concluded: ``Exposure to 
     ozone for six to seven hours at relatively low concentrations 
     has been found to reduce lung function significantly in 
     normal, healthy people during periods of moderate exercise. 
     This decrease in lung function is accompanied by such 
     symptoms as chest pain, coughing, nausea, and pulmonary 
     congestion.'' 60 Fed. Reg. 4712, 4712 (Jan. 24, 1995). In 
     reviewing more recent evidence of the harm caused by ozone, 
     EPA published a lengthy notice summarizing the adverse health 
     effects of both short-term and long-term ozone exposure. 
     According to the Agency, the effects of short-term exposure 
     on healthy individuals include reduced lung function, chest 
     pain, reduced productivity, increased susceptibility to 
     respiratory infection, and pulmonary inflammation. 66 Fed. 
     Reg. 57,268, 57,274-75 (Nov. 14, 2001). With respect to 
     repeated and long-term exposure, the finding is ominous: 
     ``EPA has concluded that repeated occurrences of moderate 
     responses, even in otherwise healthy individuals, may be 
     considered to be adverse since they could well set the stage 
     for more serious illness.'' Id. at 57,275.
       These general findings by EPA have been underscored by 
     additional research conducted in many cities, including 
     Atlanta. One recent study published in the prestigious peer-
     reviewed Journal of the American Medical Association on 
     February 21, 2001 demonstrates that when ozone was reduced in

[[Page 26380]]

     Atlanta by encouraging alternatives to motor vehicle travel 
     during the 1996 Olympic Games, the number of children 
     requiring emergency or urgent care for asthma decreased 
     dramatically. There was a 41.6% decline in visits for 
     Medicaid claimants, a 44.1% decline for HMO enrollees and a 
     19.1% decline in overall hospital asthma admissions. A copy 
     of this study is appended to this testimony, which is 
     entitled ``Impact of Changes in Transportation and Commuting 
     Behaviors During the 1995 Summer Olympic Games in Atlanta on 
     Air Quality and Childhood Asthma.''
       The study specifically tied the positive public health 
     results to the lower ozone concentrations due to a reduction 
     in vehicle emissions. Overall, during the Olympics there was 
     a 27.9% decrease in ozone and no violations of the ``one-
     hour'' standard. In contrast, the standard was violated on 
     five days immediately before and after the games. While 
     favorable weather conditions contributed somewhat to the 
     lower pollution levels, this dramatic percentage decrease in 
     ozone pollution and emergency care was substantially 
     contributed to by the 22.5% decrease in peak morning traffic 
     counts resulting from travel demand strategies, increased 
     transit service and other programs encouraged in the Act to 
     reduce transportation emissions.


                               conclusion

       ``Bump up'' of Atlanta to ``severe'' is an example of the 
     Act working as Congress intended: If a deadline is not met, a 
     new SIP with additional controls is required to ensure that a 
     new deadline is met. The most recent Supreme Court case 
     addressing the Clean Air Act statutory scheme noted that the 
     NAAQS is the ``engine that drives nearly all of Title I of 
     the CAA,'' id. at 468, and characterized the attainment 
     deadline provisions as the ``backbone'' of the ozone control 
     requirements for nonattainment areas. Whitman v. Am. Trucking 
     Ass'ns, Inc, 531 U.S. 457 (2001). Codification of EPA's 
     extension policy would fundamentally weaken the deadline and 
     incentive structure in the Act carefully crafted by Congress 
     in 1990. Instead, it would reward officials, at the expense 
     of many citizens--including the four million residents of 
     Atlanta, who fail to take all appropriate steps to address 
     local ozone pollution. This would set a dangerous precedent 
     that would undermine the Act at a time when the scientific 
     consensus is that more, rather than less, must be done to 
     protect the public from ozone pollution.
                                  ____


    Testimony of David S. Baron, Attorney, Earthjustice, Before the 
 Subcommittee on Energy and Air Quality of the Committee on Energy and 
         Commerce, U.S. House of Representatives, July 22, 2003


                        Introduction and Summary

       Mr. Chairman and members of the Subcommittee, my name is 
     David S. Baron. I am an attorney with the Washington, D.C., 
     office of Earthjustice, a nonprofit law firm that represents 
     conservation and community groups on a wide range of 
     environmental and public health issues, including air 
     quality. Our clients on clean air matters include the 
     American Lung Association, Sierra Club, Environmental 
     defense, and others. I am very familiar with the Clean Air 
     Act, having specialized in enforcement of that statute for 
     more than twenty years at the local, state, and national 
     levels. In 1996-97, I served on the Subcommittee for 
     Development of Ozone, Particulate Matter and Regional Haze 
     Implementation Programs, a Federal Advisory Committee to the 
     U.S. Environmental Protection Agency (EPA). I have also 
     taught environmental law courses as an adjunct professor at 
     the University of Arizona College of Law and Tulane Law 
     School.
       I appreciate your invitation to discuss the Clean Air Act's 
     requirements for reclassification (or ``bump up'') of areas 
     that fail to timely meet clean air standards, and EPA's prior 
     attempts to waive bump up for cities affected somewhat by air 
     pollution transported from other areas. I strongly believe 
     that EPA's waiver of bump ups via its ``downwind extension 
     policy'' not only violated the Clean Air Act, but also 
     wrongly delayed measures that are sorely needed to protect 
     public health in these and other communities.


                               Background

       In the late 1990's, EPA announced an ``Attainment Date 
     Extension Policy'' (sometimes called the ``downwind 
     extension'' policy) that was not authorized by the Clean Air 
     Act. This unfounded policy allowed industries to pollute at 
     higher levels for longer than the Clean Air act authorized 
     merely because they were located in cities affected somewhat 
     by pollution transported from other areas. EPA applied the 
     policy to unlawfully extend clean air deadlines for a number 
     of cities without requiring them to be reclassified into more 
     protective pollution categories with stronger pollution 
     controls. The courts invalidated this policy as being 
     completely contrary to both the language and purpose of the 
     Clean Air Act.
       The 1990 Clean Air Act, signed by the first President Bush, 
     classified cities as marginal, moderate, serious or severe 
     based on the severity of their ozone pollution problem. Areas 
     with higher classifications were given more time to meet 
     clean air standards, but also had to adopt stronger anti-
     pollution measures. The clean air deadline for moderate areas 
     was 1996, for serious areas 1999 and for severe areas 2005 or 
     2007.
       Wher a city missed its clean air deadline, the Act required 
     that it be reclassified (``bumped up'') to the next highest 
     classification. For example, if a serious area failed to meet 
     standards by 1999, it was to be reclassified to severe. It 
     would then be given until 2005 to meet standards, but would 
     also have to adopt the stronger pollution controls required 
     for severe areas.
       Reclassification triggers stronger pollution control 
     requirements for industry as well as additional measures to 
     reduce pollution from car and truck exhaust. These stronger 
     measures are already required in numerous communities 
     throughout the nation, including Chicago, Milwaukee, 
     Baltimore, Philadelphia, New York, Los Angeles, Wilmington, 
     Trenton, Sacramento, Ventura County (CA), Riverside County 
     (CA), and San Bernardino County (CA).
       Relying on its unfounded extension policy, EPA extended the 
     clear air deadlines for a number of cities without bumping 
     them up to the higher pollution categories that would require 
     the adoption of more protective ozone control measures to 
     help address the adverse public health impacts resulting from 
     the additional delay. EPA also allowed these areas to 
     postpone the adoption and implementation of local measures 
     that were necessary for each area to attain the ozone health 
     standard on the original schedule, thereby postponing a large 
     portion of the public health benefits from reduced ozone that 
     these measures would have achieved. In addition, EPA waived 
     the statutory requirement that each area continue to reduce 
     emissions by 3% annually until the area attains the standard. 
     Three separate federal appellate courts have all ruled that 
     EPA's policy violates the language and purpose of the Clean 
     Air Act. In voiding the extension policy as applied to the 
     Washington, D.C. area, Chief Judge David Ginsberg of the U.S. 
     Court of Appeals for the D.C. Circuit, wrote that ``to permit 
     an extension of the sort urged by the EPA would subvert the 
     purposes of the Act.'' Sierra Club v. EPA, 294 F.3d 155, 161 
     (D.C. Cir. 2002) (emphasis added).


       harm to public health from epa's downwind extension policy

       EPA's application of this discredited policy has delayed 
     adoption of additional pollution controls that are badly 
     needed to meet clean air standards in Atlanta, Washington, 
     DC, Baton Rouge, and Beaumont Texas. The illegal extensions 
     have burdened the public in those areas with dirty air until 
     at least 2005 without the additional pollution controls 
     already required in other cities. As a result of EPA's 
     illegal deadline extensions, the air in these cities is 
     substantially dirtier than it should be.
       If the Clean Air Act were weakened in an attempt to 
     legalize EPA's extension policy, this would delay the 
     adoption of badly needed antipollution measures in the 
     affected communities. Last summer, the Washington, DC area, 
     for example, suffered from the worst ozone pollution in more 
     than a decade, exceeding the 1-hour standard on nine days, 
     and recording another 19 days when the air was deemed 
     unhealthful for children and persons with lung ailments. On 
     all of these days, children were warned to limit outdoor 
     play. By some estimates, breathing difficulties during a 
     typical smoggy summer in the DC area send 2,400 people to the 
     hospital, and cause 130,000 asthma attacks.
       Last year alone, the Beaumont/Port Arthur, Dallas/Fort 
     Worth, and Houston/Galveston regions exceeded the one-hour 
     ozone standard on three, seven, and 26 days respectively. 
     Atlanta exceeded the one-hour ozone standard seven times and 
     the 8-hour ozone standard 38 times. Ultimately, delay of 
     stronger pollution controls has left the air in these cities 
     more unhealthful than it would have been had the law been 
     followed.
       Adoption of the EPA policy would also make it harder for 
     other communities to meet clean air standards. Pollution from 
     cities like Washington, Atlanta, Beaumont, and Baton Rouge 
     can be transported elsewhere, where it contributes to ozone 
     violations. Cities like Baltimore, Philadelphia, and New York 
     that have already adopted more protective ``severe'' area 
     measures should not have to suffer pollution from upwind 
     cities that have failed to adopt the same level of control.


EPA's downwind extension policy is unfair to states that did the right 
                                 thing

       As noted above, many states and cities have already adopted 
     the more protective control measures associated with higher 
     pollution classifications. These areas are also affected by 
     transported pollution, a situation understood by Congress at 
     the time that the 1990 amendments placed them in these higher 
     classifications. Adoption of EPA's policy, accordingly, would 
     have an inequitable impact on areas that are already doing 
     the right thing without resorting to delays that imperil the 
     health of their citizens.
       EPA's extension policy has been opposed by Republicans as 
     well as Democrats. In 1999, the State of New York under a 
     Republican administration, criticized EPA's extension policy. 
     The State noted the inequity of allowing some states to avoid 
     achieving timely

[[Page 26381]]

     clean air while other states--also affected by transported 
     pollution like New York--were already undertaking necessary, 
     effective control steps: ``[T]hese more effective control 
     steps [required for higher nonattainment classifications] 
     already have been implemented in many areas of the country 
     and have been proven to reduce the emissions of ozone 
     precursors. Implementation of these measures would help level 
     the playing field among the states, provide some localized 
     relief of ozone levels, and help the affected areas in their 
     efforts to achieve the revised eight-hour ozone standard.''
       In 1999, the State of Ohio, also under a Republican 
     administration, criticized this same attainment date 
     extension policy and approach: ``U.S. EPA is rewriting one of 
     the most important and substantive measures placed in the 
     1990 CAA. . . .
       ``Ohio EPA does not believe that the CAA intended that 
     extensions be granted to areas which have not demonstrated 
     attainment. In some cases, these areas have not implemented 
     current CAA requirements and would not achieve the 1-hour 
     ozone standard even after transport had been addressed. These 
     areas need an additional level of local controls, which is 
     the precise purpose of the bump-up provisions of the CAA.''
       Thus, a roll back of pollution control requirements under a 
     policy will harm the public health of citizens locally and 
     regionally by delaying more rigorous ozone pollution 
     abatement measures needed to meet clean air standards.
       In its unsuccessful defense of its extension policy, EPA 
     claimed that deadline extensions and bump-up waivers for some 
     areas are justified because those areas are impacted somewhat 
     by pollution transported from other areas (generally within 
     the same state). But other cities with higher 
     classifications--and therefore stronger local pollution 
     control requirements--are also impacted by transported 
     pollution--in some cases to a much greater extent. For 
     example, transported emissions account for a smaller 
     percentage (24%) of the ozone problem in the Washington, D.C. 
     area than in areas that were previously classified as severe, 
     such as Baltimore (56%), Philadelphia (32%), or New York 
     (45%). Conversely, EPA's data for Atlanta shows that 
     implementation of the NOX SIP call controls would 
     eliminate only 9% of the days with expected ozone violations. 
     For Baton Rouge, EPA has found that only 7% of ozone 
     exceedance days between 1996 and 2000 were potentially 
     associated with transported pollution from Houston.
       This situation was also true when Congress adopted the 1990 
     amendments and established the classifications system with 
     its consequences for failure to attain air quality standards. 
     Indeed, Congress was aware of EPA's assessment of the ozone 
     transport problem in its post-1987 attainment date analysis 
     of he reasons why ozone areas failed to attain, and adopted 
     into law EPA's decision ``not to allow a delay in submittal 
     of the post-1987 ozone attainment demonstrations and revised 
     SIPs for areas affected by [regional transport].'' 52 Fed. 
     Reg. 45,874.


 current circumstances make EPA's extension policy even less defensible

       EPA's policy was ill-advised when it was adopted in 1999, 
     for many of the same reasons given by Ohio and New York 
     above. But whether or not the policy was a good idea then, 
     circumstances have changed in such a way that its 
     codification now would be a terrible idea. Technical advances 
     reflected in EPA's new MOBILE VI emissions estimation model 
     are showing that many areas have much larger local emissions 
     problems than were previously thought, and greater local 
     emission reductions will therefore be needed. Moreover, with 
     the upcoming implementation of EPA's more protective 8-hour 
     ozone standard, the areas affected by EPA's policy, and many 
     other areas as well, will need to implement the suite of 
     protective control measures required in the 1990 Clean Air 
     Act Amendments, in addition to reductions in transported 
     pollution. Many of the areas for which EPA has sought to 
     avoid the stronger pollution control measures associated with 
     reclassification are already exceeding the 8-hour ozone 
     standard repeatedly each year. It is insupportable to delay 
     local control measures needed to reduce these annual 
     exceedances, thereby exacerbating local air quality and 
     public health problems, and forestalling the meaningful steps 
     that will be necessary to attain the 1-hour and 8-hour ozone 
     standards.

  Mr. HOLT. Mr. Speaker, I rise in support of the motion to instruct 
offered by my colleague from Texas, Eddie Bernice Johnson.
  Ms. Johnson is understandably upset about the provision she is trying 
to remove from the energy conference report. Under a shroud of secrecy, 
the way virtually all of the energy negotiations have happened so far, 
a provision was slipped in that will extend deadlines for cities to 
clean up their dirty air. This will have dramatic effects on the health 
of Ms. Johnson's constituents.
  I'm not here because of any city in my district that isn't complying 
with clean air regulations. I'm here because New Jersey has the 
unfortunate distinction of being number one in worst smog pollution for 
2002, according to a recent New Jersey Public Interest Research Group 
Report. Even by the EPA's 8-hour standard, New Jersey has the second-
worst pollution in the country.
  New Jersey's efforts to clean up our air are laudable. The state has 
implemented a large number of ozone control measures and even 
negotiated a deal to close two coal-fired power plants in a neighboring 
state. But there is simply no way that the state can adequately tackle 
this problem--New Jersey can't control the jet stream. Because 
prevailing winds carry pollution from plants in the Midwest to the East 
Coast, much of the smog, soot, and fine particulates that endanger the 
health of state residents do not come from in-state sources.
  That's why the federal government needs to take an active role. This 
was the motivation behind the 1970 Clean Air Act and the New Source 
Review rules. The Clean Air Act has helped the country take major steps 
towards making the air we breathe better for our health.
  So just like Ms. Johnson, I am dismayed to see that members of the 
energy conference committee have slipped in this provision that will 
undermine the spirit and the letter of the Clean Air Act.
  It seems that some of the conferees are working in concert with the 
Bush Administration to conduct a frontal assault on clean air 
protections and to let polluters get out of making necessary 
environmental upgrades.
  Take New Source Review, for example. NSR is an important part of the 
Clean Air Act that requires power plants, chemical factories, and other 
large industrial facilities to adopt effective emission controls when 
expansions or upgrades lead to increased pollution. According to the 
EPA, this has meant keeping 300 million tons of pollution out of the 
atmosphere in areas that meet national air quality standards.
  The Administration has proposed changes to the New Source Review 
program that will create gaping loopholes in clean air protections. 
Facilities would be allowed to increase the amount of pollution they 
emit if the cost of making a change is less than a certain percentage 
of the cost of the entire facility. Thus companies can easily make 
incremental changes to renovate a facility without triggering NSR. And 
even if the cost of the upgrade does exceed the percentage trigger, 
plants will still not need to implement pollution controls if the 
upgrade consists of replacing existing equipment with new equipment 
performing the same function, regardless of cost.
  These are changes that have been clearly demonstrated by numerous 
experts--including Abt Associates, who has done research for the EPA--
that will result in more premature deaths and more cases of asthma and 
other respiratory illnesses.
  I came to Congress five years ago to represent the people of the 12th 
District of New Jersey. It's pretty obvious that among the more 
important responsibilities I have in representing my constituents is 
standing up for them when someone is making them sick or killing them--
the way air pollution is now.
  That is why I urge all of my colleagues to support the Johnson motion 
to instruct.
  Ms. WOOLSEY. Mr. Speaker, I would like to thank the gentlewoman from 
Texas for offering this Motion to Instruct Energy Bill Conferees.
  Instead of working on an Energy Bill that will work to solve our 
nation's energy crisis, the Republicans are holding a conference 
without any Democrats and now they are trying to add in riders to 
weaken the Clean Air Act. What will they think of next?
  This rider allows polluters to further delay establishing clean air 
controls--contributing to air pollution that bellows out of giant 
smokestacks and puffs out of tailpipes. This air pollution has led to a 
record number of people with asthma, particularly in our cities. By 
trying to attach this rider to the Energy Bill, the Republicans are 
showing once again that they do not value clean air or the health of 
Americans.
  And the sad fact is that children are the most vulnerable to air 
pollution. They spend more time outdoors, they inhale more pollutant 
per body weight, and their bodies, lungs and immune systems are still 
developing. Children are particularly vulnerable to smog and soot--
continued exposure can scar and severely damage children's lungs.
  Instead of weakening the Clean Air Act, the Republicans should be 
using this opportunity to develop and use new technologies and to cut 
our reliance on dirty energy fuels. Unfortunately, in the Energy 
Conference, the Republicans have chosen the interests of big business 
over the health of the American people.
  Mr. Speaker, I ask my colleagues to join me in supporting this motion 
to instruct.
  Mr. BURGESS. Mr. Speaker, I rise to speak against the Motion to 
Instruct Conferees on the H.R. 6, The Energy Policy Act.
  As discussed thus far, under the Clean Air Act of 1990, areas 
designated as ``severe''

[[Page 26382]]

nonattainment areas, such as Houston, must meet the 1-hour standard by 
2007, and Dallas, classified as ``serious'' areas was required to meet 
the 1-hour standard by 2005.
  Wind currents can transport ozone and its chemical components over 
long distances, which can have an adverse affect on the air quality of 
areas that are downwind of more severe nonattainment areas. For 
example, Houston's air quality can impact Dallas's air quality.
  In 1998, under the direction of President Clinton's EPA Administrator 
Carol Browner, the EPA promulgated transport policy rules that allowed 
the EPA to allow affected ``moderate'' and ``serious'' areas until 2007 
to meet the 1-hour standard. This common sense rule simply allows 
cities to take into account the ozone that is transported from other 
cities.
  Strict judicial interpretation of the Clean Air Act of 1990 said that 
the EPA did not have statutory authority to promulgate this rule. As a 
strict constitutionalist, I was glad to see the judicial restraint 
exhibited by these decisions.
  However, I think it is important to note that Congress did not give 
the EPA this authority under the Clean Air Act of 1990 because Congress 
was not aware of the impact of ozone transport on air quality at that 
time. Since 1990, the science has improved to the point that we are 
aware of and better able to determine the impact of the transport of 
ground level ozone.
  That is why there is a provision in this year's energy bill to give 
EPA that authority, if they so choose.
  Some have claimed that this will ``roll back'' the Clean Air Act, and 
that is just not true. The State of Texas and other affected States and 
the cities of Dallas and Fort Worth are not going to stop working 
toward clear air. In fact, as recently as reported last Friday in the 
Fort Worth Star-Telegram, the North Texas Clean Air Steering Committee 
said that they will not slow down efforts to clean the air if Congress 
pushes back the deadline.
  As a member of the Transportation and Infrastructure Committee, I do 
not support tying the issue of ozone transport to my district's 
transportation funding. I do not believe that taking away 
transportation funding from the Dallas-Fort Worth region will result in 
improved air quality.
  In fact, I believe eroding our transportation funding would adversely 
affect air quality because studies have shown that automobiles operate 
more efficiently at around 60 miles per hour than at lower speeds such 
as those cars idling during bumper-to-bumper traffic in bottleneck 
areas, such as on Interstate 35 East in my district. A more efficient 
motor decreases the amount of ozone-creating pollutants that are 
released into the air. This is especially important to the Dallas-Fort 
Worth region because EPA studies have shown that our region's air 
quality is especially affected by mobile-source (automobile) pollution.
  If my colleagues disagree with me and believe that we should decrease 
transportation funding in order to improve air quality, I am more than 
happy to accept their piece of the transportation funding pie. I know 
we all agree--we need to keep our cash on the dash!
  Clean air is one of the most important legacies that we can leave our 
children. If we are going to preserve this world for future 
generations, we must take steps that will protect our natural 
resources, but we must also not harm our economy.
  If you cannot identify the source, and control the source, you cannot 
effectively reduce ozone. I will vote against the Motion to Instruct 
Conferees on H.R. 6.
  Ms. EDDIE BERNICE JOHNSON of Texas. Mr. Speaker, I yield back the 
balance of my time.
  The SPEAKER pro tempore. Without objection, the previous question is 
ordered.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to instruct 
offered by the gentlewoman from Texas (Ms. Eddie Bernice Johnson).
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. BARTON of Texas. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this motion will be postponed.

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