1
IMPLEMENTATION
OF
THE
8­
HOUR
OZONE
NATIONAL
AMBIENT
AIR
QUALITY
STANDARD
­

PHASE
1:
RECONSIDERATION
PUBLIC
HEARING
18
FEBRUARY
2005
BEFORE:
Tom
Helms,
U.
S.
EPA
John
Silvasi,
U.
S.
EPA
Held
at:
U.
S.
EPA
­
Research
Triangle
Park
Room
C114
Research
Triangle
Park,
North
Carolina
February
18,
2005
Reported
by:
Susanne
M.
Newman,

Court
Reporter
2
I
N
D
E
X
SPEAKER
PAGE
NO.
DOCUMENT
NO.

Howard
J.
Feldman
6
1
American
Petroleum
Institute
Ted
Michaels
11
2
Integrated
Waste
Services
Association
3
1
P
R
O
C
E
E
D
I
N
G
S
2
MR.
HELMS:
Good
morning.
Welcome
to
the
3
public
hearing
on
the
reconsideration
of
the
Phase
1
4
ozone
implementation.
I'm
Tom
Helms.
We
welcome
all
5
of
you
to
the
hearing.
I
have
with
me
today
John
6
Silvasi,
who
will
assist
on
the
hearing
panel.
John
7
and
I
will
be
conducting
the
hearing.

8
We
have
a
contractor
managing
logistics
from
9
E.
H.
Pechan.
The
staff
present
are
Barbara
Bauer
and
10
Kara
Syversten.
Susanne
Newman
is
our
court
reporter.

11
She
will
be
taking
a
verbatim
transcript
of
our
session
12
today.
The
transcript
will
be
placed
in
the
Docket
13
No.
OAR­
2003­
0079.

14
Let
me
give
you
some
background
today
on
the
15
topics
that
we'll
be
discussing,
the
topics
that
you
16
will
be
discussing.
Back
on
April
30
of
2004,
EPA
17
published
the
final
Phase
1
portion,
the
first
part,
if
18
you
will,
of
our
8­
hour
implementation
rule.
We
19
received
three
petitions
to
reconsider
several
of
these
20
Phase
1
issues.

21
Then
in
September
of
last
year,
2004,
EPA
22
granted
reconsideration
of
three
issues
of
the
many
23
that
were
in
the
Phase
1
rule.
Two
are
the
subject
of
24
this
public
hearing
today.
Then
in
January
of
2005,
25
EPA
granted
an
additional
reconsideration
of
the
4
1
additional
issue
but
that
is
not
the
subject
of
this
2
public
hearing
today.

3
Let's
review
what
Phase
1
of
the
8­
hour
ozone
4
implementation
rule
covered.
In
the
way
of
background,

5
there
are
four
items
I'd
like
to
mention.

6
Classifications
for
the
8­
hour
standard
designations,

7
that's
the
first
topic.
The
second
dealt
with
the
8
revocation
of
the
old
1­
hour
national
ambient
air
9
quality
standard
for
ozone
and
the
associated
10
anti­
backsliding
provisions
of
our
rule.
The
third
11
item
dealt
with
attainment
dates
and
attainment
date
12
extensions.
And
the
fourth
item
dealt
with
the
timing
13
of
emission
reductions
needed
for
attainment
of
this
14
8­
hour
ozone
national
ambient
air
quality
standard.

15
Our
reconsideration
proposal,
what
we'll
be
16
talking
about
today,
was
published
on
February
3
of
17
this
year.
We
have
a
public
comment
period
open
until
18
March
21
of
this
year.
And
we
will
not,
we
do
not
plan
19
on
extending
the
public
comment
period
or
responding
to
20
all
the
comments
on
the
issues
that
were
not
addressed
21
in
this
proposal.
We
plan
to
take
action
on
these
22
issues
today
on
or
before
May
20,
2005.

23
Again,
let
me
remind
you,
the
purpose
of
this
24
public
hearing
is
to
take
comments
on
four
issues.
Two
25
of
the
issues
were
raised
by
the
environmental
group
5
1
Earthjustice
in
their
petition
for
reconsideration.
At
2
EPA,
we
are
also
proposing
to
revise
the
Phase
1
3
implementation
rule
in
two
respects.

4
First,
we
proposed
in
our
Phase
1
rule
that
the
5
Section
185
fee
provisions
would
not
be
triggered
for
6
the
1
hour,
old
1­
hour
ozone
standard
once
that
7
standard
is
revoked,
and
the
schedule
for
revocation
is
8
June
of
this
year.
The
EPA
also
proposed
to
change
the
9
timing
for
determining
what
is
an
applicable
10
requirement
for
the
purposes
of
anti­
backsliding
from
11
April
15
of
2004
or
June
15,
2004.
That's
what
we're
12
taking
comments
on,
because
applicable
requirements
13
will
derive
or
spin
off
that
date.

14
Two
items,
additional
items,
now
of
the
four,

15
the
last
two
items,
we
propose
that
the
contingency
16
measures
for
failure
to
make
reasonable
further
17
progress
or
attain
by
the
applicable
attainment
date
18
for
this
old
1­
hour
standard
are
no
longer
required.

19
You
do
not
have
to
do
them
once
the
8­
hour
standard
is
20
revoked.
Finally,
we
propose
to
revise
the
definition
21
of
applicable
requirement
to
include
1­
hour
attainment
22
demonstration.

23
This
overhead
right
here
contains
a
detailed
24
listing
from
our
rule
of
the
applicable
requirements.
25
I
will
not
go
through
that
other
than
to
note
there
are
6
1
many
of
them.
The
record
will
have
a
list
of
them,
if
2
you
follow
up
on
it.
These
are
the
applicable
3
requirements
that
stand
today.

4
Are
there
any
questions?
If
there
are
no
5
questions,
we'll
move
to
the
first
speaker.
And
we'll
6
go
off
the
record.

7
(
A
recess
was
held
from
9:
20
a.
m.
until
8
9:
33
a.
m.)

9
MR.
HELMS:
Our
first
speaker
is
Howard
10
Feldman
representing
the
American
Petroleum
Institute.

11
Howard,
the
floor
is
yours.

12
MR.
FELDMAN:
Thank
you
very
much,

13
Mr.
Helms.
Thank
you
for
the
opportunity
to
speak
here
14
today.
My
name
is
Howard
J.
Feldman.
I'm
here
on
15
behalf
of
the
American
Petroleum
Institute.
API
is
a
16
national
trade
association
representing
all
aspects
of
17
the
oil
and
natural
gas
industry,
including
exploration
18
and
production,
refining,
marketing,
pipeline,
marine,

19
and
the
associated
industries.
API
members
have
20
invested
a
significant
amount
of
money,
billions
of
21
dollars,
since
the
passage
of
the
Clean
Air
Act
of
1990
22
to
install
and
operate
air
emissions
controls
and
to
23
modify
refineries
to
produce
cleaner
fuels.

24
API
will
be
submitting
written
comments
on
each
25
of
the
issues
discussed
in
the
February
3
Federal
7
1
Register
notice.
In
my
remarks
today,
I
will
address
2
two
of
those
issues:
The
applicability
of
the
3
Section
185
penalty
provisions
on
the
former
1­
hour
4
standard
in
nonattainment
areas
­­
on
former
1­
hour
5
nonattainment
areas
after
that
standard
is
revoked
and
6
secondly,
contingency
measures
in
SIPs
for
the
1­
hour
7
standard.
On
both
issues,
API
supports
EPA's
8
positions.

9
As
noted
in
our
comments
on
the
proposed
8­
hour
10
NAAQS
implementation
rule,
API
believes
that
11
Section
185
penalties
should
no
longer
apply
to
12
attainment
of
the
1­
hour
standard
after
that
standard
13
is
revoked.
At
that
point,
states
will
be
focusing
14
their
finite
resources
on
attainment
of
the
8­
hour
15
standard.
It
makes
no
sense
to
carry
over
penalty
16
provisions
applicable
to
attainment
of
a
standard
that
17
has
been
revoked
and
superceded
by
a
more
stringent
18
standard.

19
The
8­
hour
ozone
NAAQS
has
been
upheld
by
the
20
courts.
It
is
time
now
to
focus
on
the
attainment
of
21
the
standard.
EPA
promulgated
the
8­
hour
standard
22
because
it
believes
it
to
be
more
productive
­­
more
23
protective
of
human
health
and
the
environment
than
the
24
1­
hour
standard.
EPA's
8­
hour
implementation
rule
25
carefully
continues
to
keep
in
place
those
1­
hour
8
1
standard
provisions
that
will
help
areas
attain
and
2
maintain
the
8­
hour
NAAQS
while
eliminating
those
that
3
do
not
serve
that
purpose.
The
8­
hour
implementation
4
rule
requires
areas
to
submit
new
SIPs
and
demonstrate
5
attainment
with
8­
hour
NAAQS.
Once
the
1­
hour
standard
6
is
revoked
in
June
of
this
year,
EPA
no
longer
will
7
make
findings
of
failure
to
attain
the
1­
hour
standard
8
or
reclassify
those
areas
to
a
higher
nonattainment
9
classification.
Thus,
it
is
appropriate
that
the
185
10
no
longer
­­
Section
185
no
longer
apply
with
regard
to
11
the
1­
hour
standard.

12
Further,
as
API
indicated
in
its
comments,

13
effective
strategies
to
attain
the
1­
hour
standard
may
14
not
be
effective
to
­­
as
strategies
to
attain
the
15
8­
hour
standard.
Areas
need
to
be
able
to
develop
16
effective
attainment
strategies
for
meeting
the
8­
hour
17
standard
without
having
to
consider
whether
these
18
strategies
may
impede
their
ability
to
meet
a
revoked,

19
less
protective
standard
and
result
in
penalties
being
20
assessed
against
major
sources
in
their
areas.

21
As
API
pointed
out
in
its
written
comments
on
22
the
proposed
8­
hour
implementation
rule,
attainability
23
analyses
done
by
API
indicate
that
an
effective
24
strategy
to
attain
the
1­
hour
standard
may
not
be
the
25
most
effective
for
attaining
the
8­
hour
standard.
For
9
1
example,
in
the
San
Joaquin
Valley,
either
reduction
2
VOCs
or
Nox
or
a
combination
of
the
two
could
3
theoretically
bring
Fresno
into
attainment
for
the
4
1­
hour
standard.
However,
modeling
indicates
that
for
5
the
8­
hour
standard,
the
minimal
benefits
of
VOC
6
reductions
are
overwhelmed
by
the
major
benefits
of
NOx
7
reductions.
Thus,
devoting
resources
to
reducing
VOCs
8
in
this
case
would
be
an
effort
that
would
not
be
9
productive
and
it
would
be
­­
and
it
would
be,
really,

10
an
effort
to
attain
the
1­
hour
superseded
standard.

11
And
it
would
be
a
misallocation
of
resources
that
would
12
be
better
focused
on
expeditious
attainment
of
the
13
8­
hour
standard.
This
one
hour
or
eight
hour
dichotomy
14
is
not
unique
for
the
San
Joaquin
Valley.
It
was
15
observed
in
modeling
for
the
eastern
U.
S.
for
some
16
places,
as
well.

17
Finally,
Section
185
would
impose
millions
of
18
dollars
in
penalties
on
the
very
same
refineries
and
19
other
major
stationary
sources
that
invested
the
most
20
resources
on
the
installation
of
control
technology
21
responsible
for
a
significant
part
of
the
tremendous
22
improvement
in
air
quality
nationwide
since
the
passage
23
of
the
Clean
Air
Act
Amendments
of
1990.
Refineries
24
not
only
have
spent
billions
of
dollars
since
1990
to
25
reduce
their
own
emissions
in
an
effort
to
attain
the
10
1
1­
hour
standard,
they
will
spend
more
than
17
billion
2
by
2012
to
modify
refinery
processes
to
produce
3
cleaner,
lower
sulfur
fuels
for
use
by
cars,
trucks,

4
and
nonroad
engines
in
an
effort
to
attain
the
8­
hour
5
standard.

6
Regarding
contingency
measures,
API
agrees
with
7
EPA's
proposed
approach.
Consistent
with
moving
8
forward
to
implement
the
more
stringent
8­
hour
NAAQS
9
and
eliminate
provisions
that
are
not
directed
as
10
timely
at
­­
not
directed
at
timely
attainment
of
the
11
standard,
contingency
measures
that
were
developed
as
12
part
of
the
effort
to
attain
and
maintain
the
1­
hour
13
standard
should
no
longer
be
required
once
that
14
standard
has
been
revoked,
as
they
will
have
been
15
replaced
by
contingency
measures
designed
to
attain
and
16
maintain
the
more
protective
8­
hour
NAAQS.
And
since
17
EPA
will
no
longer
make
findings
that
an
area
has
18
failed
to
attain
or
maintain
the
superceded
1­
hour
19
standard,
there's
no
reason
to
keep
in
place
provisions
20
that
will
be
triggered
only
when
such
findings
were
21
made.

22
Thank
you
for
this
opportunity
to
testify
on
23
EPA's
reconsideration
of
these
important
provisions
of
24
the
8­
hour
ozone
implementation
rule.
25
MR.
HELMS:
You
will
be
sending,
you
will
11
1
be
sending
additional
comments
in
for
the
record?

2
MR.
FELDMAN:
Yes.

3
MR.
HELMS:
On
all
the
issues
or
­­

4
MR.
FELDMAN:
On
all
four.

5
MR.
HELMS:
All
four,
okay.
We'll
wait
6
for
those.
Thank
you,
Howard.
John,
do
you
have
any
7
questions?

8
MR.
SILVASI:
No
questions.

9
MR.
HELMS:
Thank
you,
Howard.
We'll
go
10
off
the
record
now.

11
(
A
recess
was
held
from
9:
39
a.
m.
until
12
10:
45
a.
m.)

13
MR.
HELMS:
Our
next
speaker
is
Ted
14
Michaels
representing
Integrated
Waste
Services
15
Association.
Ted,
it's
yours.

16
MR.
MICHAELS:
Good
morning.
Thank
you
17
for
the
opportunity
to
be
here.
My
name
is
Ted
18
Michaels,
and
I
serve
as
president
of
Integrated
Waste
19
Services
Association.
IWSA
is
the
national
trade
20
association
representing
the
waste­
to­
energy
industry.

21
The
waste­
to­
energy
industry
is
made
up
of
89
22
waste­
to­
energy
facilities
in
27
states
that
generate
23
approximately
2800
megawatts
of
power,
renewable
24
energy,
through
combustion
of
nearly
30
million
tons
of
25
municipal
solid
waste
annually.
This
represents
12
1
15
percent
of
the
disposal
capacity
of
municipal
solid
2
waste
in
the
United
States.

3
The
municipalities
and
companies
that
comprise
4
our
association
are
proud
of
waste­
to­
energy's
5
environmental
track
record.
Through
investments
6
totaling
$
1
billion,
the
waste­
to­
energy
industry
7
retrofitted
its
facilities
to
comply
with
the
maximum
8
achievable
control
technology
standards
for
municipal
9
waste
combustors.
The
results
achieved
by
these
10
investments
have
been
well­
documented
and
highly
11
praised.

12
I
appreciate
the
opportunity
to
provide
13
comments
today
on
the
reconsideration
of
the
final
rule
14
to
implement
the
8­
hour
ozone
national
ambient
air
15
quality
standard
Phase
1.
IWSA
is
concerned
about
the
16
potential
imposition
of
fees
under
Section
185
of
the
17
Clean
Air
Act.
If
not
for
the
provisions
of
this
rule,

18
17
municipal
waste
combustors
potentially
would
be
19
subject
to
Section
185
fees
for
­­
excuse
me
­­
because
20
they
are
located
in
nonattainment
areas
currently
21
classified
as
severe
or
extreme
under
the
1­
hour
NAAQ
22
standards.

23
In
today's
dollars,
the
municipalities
and
24
owners
of
these
facilities,
these
17
facilities,
have
a
25
potential
exposure
of
approximately
$
25
million
per
13
1
year
in
Section
185
fees.
The
potential
imposition
of
2
these
fees
has
already
had
a
chilling
effect
on
plans
3
to
expand
capacity
of
facilities.
An
example
of
this
4
effect
is
Covanta
Energy's
Babylon
facility
on
5
Long
Island
in
New
York.
Long
Island
has
severe
waste
6
disposal
challenges
and
waste­
to­
energy
plays
a
7
critical
role.
Despite
its
four
waste­
to­
energy
8
facilities,
Long
Island
still
sends
fleets
of
garbage
9
trucks
onto
already
crowded
highways
every
day
for
10
disposal
at
faraway
sites.

11
To
accommodate
the
local
trash
needs,
Covanta
12
has
proposed
to
construct
an
additional
unit
at
their
13
Babylon
facility,
which
would
double
the
available
14
disposal
capacity
annually.
In
order
to
generate
15
enough
offsets
to
expand
this
facility,
Babylon
will
16
aggressively
reduce
emissions
at
existing
units.

17
Because
Long
Island
is
in
severe
nonattainment
under
18
the
1­
hour
ozone
standard,
this
facility
would
have
to
19
reduce
emissions
by
20
percent
from
baseline
under
20
Section
185.
The
Babylon
facility
simply
cannot
reduce
21
emissions
another
20
percent
beyond
the
reductions
made
22
to
comply
with
MACT
and
beyond
the
reductions
being
23
proposed
to
offset
the
expansion
of
the
facility.
The
24
risk
and
uncertainty
associated
with
the
provisions
of
25
Section
185
has
forced
Covanta
to
withhold
its
14
1
application
to
add
the
new
unit.

2
IWSA
was
relieved
when
EPA
promulgated
the
3
Phase
1
rule
that
terminated
the
Section
185
fees
in
4
conjunction
with
the
revocation
of
the
1­
hour
NAAQS.

5
We
support
EPA's
conclusion
that
Section
185
fees
for
6
failure
to
attain
the
1­
hour
NAAQS
cannot
be
imposed
7
once
the
1­
hour
NAAQS
have
been
revoked.
EPA's
8
position
is
consistent
with
a
statutory
trigger
for
the
9
imposition
of
Section
185
fees
as
set
forth
in
the
10
Clean
Air
Act,
Section
181(
b)(
4)
and
Section
185(
a).

11
If
a
NAAQS
has
been
revoked,
it
follows
that
there
12
cannot
be
failure
to
attain
that
NAAQS
unless
the
13
deadline
for
attainment
was
prior
to
the
date
of
14
revocation
of
the
standards.
Since
attainment
dates
15
for
severe­
15,
severe­
17,
and
extreme
nonattainment
16
areas
all
occur
after
the
date
of
revocation
of
the
17
1­
hour
standard,
it
is
logical
that
no
fees
can
be
18
imposed.

19
Opponents
criticize
EPA
for
tying
the
20
imposition
of
Section
185
fees
to
EPA's
finding
of
21
nonattainment.
Although
Sections
185
and
181
do
not
22
use
the
term
"
finding,"
attainment
designations
are
not
23
self­
effectuating.
Congress
expressly
required
that
24
EPA
determine
whether
an
area
has
failed
to
attain
a
25
standard
using
a
specific
process.
EPA's
role
in
15
1
assessing
failures
to
attain
a
standard
is
consistent
2
with
the
Act's
overall
approach
to
nonattainment
3
designations
and
classifications.
Ultimately,
EPA
4
cannot
make
a
finding
of
nonattainment
for
failure
to
5
meet
a
standard
that
has
been
revoked.
Furthermore,
if
6
EPA
is
unable
to
make
a
determination
of
nonattainment,

7
EPA
is
also
unable
to
impose
fees
based
on
such
8
nonattainment.

9
In
addition,
we
believe
that
opponents
are
10
wrong
when
they
contend
that
EPA's
Section
185
11
conclusion
is
inconsistent
with
requiring
states
to
12
meet
current
1­
hour
nonattainment
obligations,
such
as
13
submitting
attainment
designations.
There
is
no
14
inconsistency
in
EPA's
position.
In
contrast
to
a
15
state's
existing
obligation
to
submit
a
1­
hour
16
attainment
demonstration,
states
currently
are
under
no
17
obligation
to
impose
Section
185
fees
for
failure
to
18
attain
the
1­
hour
NAAQS,
nor
will
they
ever
be
19
obligated
to
do
so
because
the
NAAQS
will
be
revoked
20
before
that
obligation
could
ever
be
triggered.

21
The
waste­
to­
energy
industry
is
not
a
22
significant
contributor
to
NOx
emissions,
as
illustrated
23
by
EPA's
estimate
that
our
industry
will
emit
less
than
24
0.7
percent
of
total
NOx
emissions
in
the
CAIR
region
by
25
2010.
EPA
recognized
in
the
1988
­­
I'm
sorry,
1998
NOx
16
1
SIP
call
that
municipal
waste
combustors
should
not
be
2
required
to
reduce
emissions
beyond
levels
already
3
required
by
NAAQS
­­
by
MACT
for
NOx.

4
If,
following
the
reconsideration,
EPA
5
determines
that
states
must
impose
Section
185
fees
6
based
on
the
1­
hour
standard,
IWSA
believes
that
the
7
baseline
used
to
determine
reductions
must
take
into
8
consideration
the
fact
that
municipal
waste
combustors
9
have
already
implemented
and
are
in
compliance
with
10
MACT
standards.
We
believe
that
it
would
be
unfair
to
11
establish
baseline
emissions
for
the
industry
after
it
12
has
implemented
the
maximum
achievable
control
13
technologies.
The
result
would
be
a
decrease
in
the
14
volume
of
waste
being
processed
through
our
facilities
15
at
a
time
when
our
environmentally­
friendly
disposal
16
services
and
our
clean
renewable
energy
are
desperately
17
needed.

18
For
the
reasons
outlined
in
these
comments,
we
19
respectfully
urge
EPA
to
finalize
the
8­
hour
ozone
20
national
ambient
air
quality
standard
Phase
1
rule
21
without
the
imposition
of
the
Section
185
fees.
Thank
22
you
very
much.

23
MR.
HELMS:
John,
do
you
have
any
24
questions?
25
MR.
SILVASI:
No.
No
questions.
17
1
MR.
HELMS:
I
have
no
questions
for
you,

2
either.
Thank
you
for
coming.

3
MR.
MICHAELS:
Thank
you
very
much
for
4
your
time.

5
MR.
HELMS:
We
will
now
recess
the
hearing
6
until
additional
speakers
arrive.

7
(
A
recess
was
held
from
10:
52
a.
m.
until
8
2:
02
p.
m.)

9
MR.
HELMS:
Thank
you,
everyone,
for
10
attending.
I
want
to
remind
you
that
there
will
be
a
11
public
hearing
transcript.
Our
court
reporter
will
12
complete
it.
We
will
post
it
in
the
docket
at
Docket
13
No.
OAR­
2003­
0079.
Are
there
any
other
questions?

14
Hearing
none,
this
concludes
our
public
hearing.
Thank
15
you.

16
(
The
hearing
concluded
at
2:
03
p.
m.)

17
18
19
20
21
22
23
24
25
18
STATE
OF
NORTH
CAROLINA
COUNTY
OF
DURHAM
C
E
R
T
I
F
I
C
A
T
E
I,
Susanne
M.
Newman,
Notary
Public/

Court
Reporter,
before
whom
the
foregoing
public
hearing
was
conducted,
do
hereby
certify
that
the
witnesses'
unsworn
testimony
which
appears
in
the
foregoing
public
hearing
was
taken
down
by
me
to
the
best
of
my
ability
and
thereafter
transcribed
under
my
supervision
and
that
I
am
neither
counsel
for
nor
employed
by
the
agency
conducting
this
hearing.

Susanne
M.
Newman,
Notary
Public
My
commission
expires:
September
24,
2005
