Mr. Chairman, I have an amendment at the desk. Mr. Chairman, before I begin, I would like to commend the gentleman from Washington and Chairman Dicks and the gentleman from Kansas (Mr. Tiahrt) for their good work on this underlying bill.…
Mr. Chairman, I have an amendment at the desk.
Mr. Chairman, before I begin, I would like to commend the gentleman from Washington and Chairman Dicks and the gentleman from Kansas (Mr. Tiahrt) for their good work on this underlying bill.
The amendment I offered today stems directly from concerns I have over a recently proposed rule by the Environmental Protection Agency that could radically alter the current interpretation of the Clean Air Act and adversely impact public health.
On December 21 last year, 4 days before Christmas, EPA introduced a cleverly timed proposal that would essentially weaken hazardous air pollutant emission standards for major sources of pollution as defined by section 112 of the Clean Air Act. My amendment would prohibit the use of fiscal year 2008 funds by EPA to promulgate this ill-advised and environmentally dangerous proposal.
Currently, major sources, major source polluters, facilities that emit 10 tons per year of a single air toxin or 25 tons per year of any combination of toxic pollutants are required to comply with the Maximum Achievable Control Technology standards, called MACT, permanently, a policy adopted in 1995 known as Once In, Always In.''
MACT standards are technology-based area emission standards established under title 3 of the 1990 Clean Air Act amendment. Compliance with MACT standards can require facility owners and operators to meet emission limits, install emission control technologies, monitor emissions and/or operating parameters and use specified work practices.
These public safeguard standards have proven most effective in reducing
toxic, harmful, cancer-causing eye pollutants such as mercury, chlorine, benzene, methanol and asbestos. If EPA's proposed rule were to take effect, industrial facilities could emit hazardous air pollutants at levels just below 10/25 major source thresholds and not be subject to the MACT standards.
This move has been criticized by the State clean air agencies, our regional officers, our major metropolitan leaders, as well as the county leaders and environmental groups. A majority of EPA's own regional offices initially excluded from viewing and providing input on the proposed policy have been highly critical of the proposed rule citing health and emission concerns.
EPA has done very little to justify such a dramatic shift in congressional intent or the agency's own long-standing interpretation. Moreover, the Agency has performed very little, if any, substantive emissions analysis, and they have performed no public health analysis for any industrial sector. In my view the Agency's proposed rule represents another installment of regulatory attacks designed to gut the Clean Air Act.
The public health of this Nation should not be forced to take the back seat to the interest of big polluters. The congressional authorities captured in section 112 of Clean Air Act are intended to ensure that major source emitters of hazardous air pollutants are required to comply with MACT standards permanently to ensure that the elimination of air toxics are achieved and maintained in the interest of public health.
In 1995, upon adoption of the ``once in, always in'' policy, EPA stated the following:
``EPA believes that this once in, always in policy follows most naturally from the language and structure of the [Clean Air Act] statute. In many cases, application of MACT will reduce a major emitter's emissions to levels substantially below the major thresholds.
``Without a once in, always in policy, these facilities could 'backslide' from MACT control levels by obtaining potential-to-emit limits, escaping applicability of the MACT standard, and increasing emissions to the major source threshold.
``Thus, the maximum achievable emission reductions that Congress mandated from major sources would not be achieved.
``A once in, always in policy ensures that MACT emission reductions are permanent, and that the health and environment protection provided by MACT standards is not undermined.''
In the Federal Register, the Agency raged on and on about how great the proposed rule is for major source polluters, because it will create incentives for industry to reduce emissions.
When it comes to quantifying the implications of this proposal on the environment and public health of this Nation, the Agency is silent.
The burden of proof regarding soundness of this proposed rule rests squarely on the shoulders of EPA. Thus far, the Agency has failed, at best, to make even a lackluster case.
My constituents in Dallas and the surrounding area are already burdened by the scarlet letter of nonattainment. I refuse to let their public health be subject to another further deterioration from a proposal laced with tortured assumptions. This is an unsound policy that should be stopped.
I urge my colleagues to join me in supporting clean air, a healthy environment, and a strong Clean Air Act. Vote ``yes'' on the Johnson amendment and the Interior and the Environment Appropriations bill.
While I appreciate the vigor of the opposing side's view on this matter, it is my respectful view that they are simply wrong on this matter.
I would like to amplify an area of concern raised by EPA's own regional offices regarding enforcement should the once in, always in policy be negated.
In a 2005 Regional Memorandum to EPA Headquarters, the regions assert the following:
A related concern with regard to the draft changes as
written is that a facility, by changing from a major source
to an area source, and back again, could virtually avoid
regulation and greatly complicate any enforcement against
them.
Take, for example, a facility that is covered by a MACT
standard, and has 3 years from the date the rule is
promulgated to come into compliance. Three years go by, and
just before the end of that time period, the facility
announces its area source status.
If an area source regulation exists, there may also be some
equivalent waiting period before the facility is required to
comply with the area source requirements.
If the facility later announces that it is after all, a
major source, then it may again enter a grace period,
possibly up to another 3 years, before it is subject to the
MACT standard requirements.
Thus, by continually going back and forth between major and
area source status, a facility could be a major source
[polluter] for most of its operating life and never have to
comply with the MACT standard requirements.
Again Mr. Chairman, these are not my words but those of EPA's own regional offices.
Mr. Chairman, my congressional district lies within the heart of EPA Region 6. Throughout Region 6 there are approximately 3,000 major source polluters according to EPA data.
If EPA's rule were to take effect, based on the guidance of EPA's own regional offices I just referenced, 3,000 major source polluters could continually backslide on a public health safeguard meant to minimize my constituent's exposure to toxic, cancer causing air pollutants.
Clearly, this was not the intent of Congress as reflected in Section 112 of the Clean Air Act.
Mr. Chairman, I include for the Record a memorandum dated December 13, 2005, from Michael S. Bandrowski, Chief, Air Toxics, Radiation and Indoor Air Office, Region IX, of the Environmental Protection Agency.
United States Environmental
Protection Agency, Region IX.
San Francisco, CA, December 13, 2005.
Regional Comments on Draft OIAI Policy Revisions
David Cozzie,
Group Leader, Minerals and Inorganic Chemicals Group, Office
of Air Quality Planning and Standards.
Thank you for allowing the Regional Offices the opportunity
to comment on the draft proposed changes to the General
Provisions of 40 CFR Part 63, intended to replace EPA's Once-
in-Always-In (OIAI) policy established in a May 16, 1995,
memorandum entitled, ``Potential to Emit for MACT standards--
Guidance on Timing Issues,'' from John S. Seitz to the
Regional Air Directors. A draft copy of the proposed changes,
dated November 16, 2005, was received by Region IX on
November 30, 2005, and we shared this copy with the Regional
Offices. As sub-lead Region for air toxics, we have
summarized and consolidated the feedback received from the
Regional Offices, and are forwarding these Regional comments
and concerns through this memo. Eight Regions provided
comments. For your convenience, the original comments from
each Regional Office are included as attachments to this
memo.
Over the years, many questions and implementation issues
have arisen that have initiated the reconsideration of the
OIAI policy. The new revisions being planned by OAQPS would
essentially negate the original policy, and this change would
be codified in the 40 CFR Part 63 General Provisions. This
change in policy would have major implications for
implementation and enforcement of the maximum achievable
control technology (MACT) standards. The Regional Offices,
therefore, appreciate the opportunity to review and comment
on HQ drafts before the revisions are proposed in the Federal
Register for public comment. However, we are disappointed
that OAQPS formulated revisions to the OIAI policy without
seeking Regional input and was reluctant to share the draft
policy with the Regional Offices. This trend of excluding the
Regional Offices from involvement in rule and policy
development efforts is disturbing. We are requesting that
OAQPS establish a means for Regional input during the
development of future policies and rules.
With regard to the OIAI policy, all the Regional Offices
that submitted comments acknowledged the need for a change
from the 1995 guidance in limited circumstances. For example,
if EPA finalizes the delisting of methyl ethyl ketone as a
hazardous air pollutant (HAP), it would be logical for EPA to
allow existing major sources of HAPs to reevaluate their PTE,
excluding emissions of methyl ethyl ketone. Likewise, if a
source eliminates, or significantly reduces their use of
HAPs, then it would be reasonable for EPA to allow such a
source to reevaluate MACT standard applicability. In
addition, certain pollution prevention benefits may follow in
circumstances where a source has an incentive to obtain
actual reductions in emissions of HAPs equivalent to or
greater than the level required by the MACT standard with
less burden and cost. Overall, the Regions support the intent
behind the draft proposed amendments to provide incentive to
companies for engaging in emission-reducing activities.
Several Regions also explicitly stated their support of
revising the policy through a public rulemaking process and
encouraging sources to explore different control technologies
and pollution prevention
options to reduce emissions and potential to emit (PTE). One
Region was supportive of the change in policy as drafted.
However, all other Regional Offices expressed varying degrees
of concern about allowing any source to take synthetic minor
limits at any time, for any reason. The concerns are
described below, followed by suggestions for addressing these
concerns while still encouraging existing MACT sources to
take actions towards pollution prevention. Our comments are
organized as follows:
Health and Emissions Concerns
1. Reversal of Position with Inadequate Justification
The May 16, 1995, Seitz memo regarding potential to emit
for MACT standards states: EPA believes that this once in,
always in policy follows most naturally from the language and
structure of the statute. In many cases, application of MACT
will reduce a major emitter's emissions to levels
substantially below the major thresholds. Without a once in,
always in policy, these facilities could ``backslide'' from
MACT control levels by obtaining potential-to-emit limits,
escaping applicability of the MACT standard, and increasing
emissions to the major-source threshold (10/25 tons per
year).
Thus, the maximum achievable emissions reductions that
Congress mandated for major sources would not be achieved. A
once in, always in policy ensures that MACT emissions
reductions are permanent, and that the health and
environmental protection provided by MACT standards is not
undermined. (See page 9)
Elsewhere, the Seitz memo states: In the absence of a
rulemaking record supporting a different result, EPA believes
that once a source is required to install controls or take
other measures to comply with a MACT standard, it should not
be able to substitute different controls of measures that
happen to bring the source below major source levels. (See
page 5)
While it is true that policy is not set in stone, and that
policy decisions may be reversed, the preamble, as currently
drafted, does not set forth an adequate rulemaking record to
justify this drastic change in interpretation. In 1995, EPA
believed that the OIAI policy follows ``most naturally'' from
the language and structure of the statute, and that allowing
facilities to backslide would undermine the maximum
achievable emissions reductions mandated by Congress. Now, in
2005, EPA is claiming that ``there is nothing in the statute
which compels the conclusion that a source cannot attain area
source status after the first compliance date of a MACT
standard'' (see page 15 of the draft proposed changes). In
order to provide an adequate rulemaking record, the preamble
should more clearly articulate why EPA no longer believes
that the OIAI policy flows naturally from the statute.
2. Increased HAP Emissions Resulting from Abandoning MACT
Control Levels
The Clean Air Act requires the maximum degree of reduction
in emissions of HAPs from sources subject to the MACT
standards. The reductions anticipated through the MACT
program will not be achieved through the strategy described
in the draft rule proposal. A key concern is that the draft
proposal allows facilities to obtain synthetic minor permits
after the MACT standard compliance date by taking potentially
less protective requirements than the MACT standard would
otherwise require them to install. The proposal, as written,
would be detrimental to the environment and undermine the
intent of the MACT program.
Many MACT standards require affected facilities to reduce
their HAP levels at a control efficiency of 95% and higher.
In many instances, the MACT requirements could lead to
greater reductions when compared to sources accepting
synthetic minor limits of 24 tons per year (tpy) for a
combination of HAPs and 9 tpy for a single HAP. Clearly, the
intent in promulgating MACT standards was to reduce emissions
to the extent feasible, not just to the minor source level.
However, under the current draft proposal, the reductions
that were intended to be achieved through the MACT standards
would be offset by synthetic minor limits that allow sources
to emit HAPs at levels higher than those allowed by the MACT
standard. The cost of the increased HAP emissions would be
borne by the communities surrounding the sources. On pages 15
and 16 of the draft preamble, EPA states:
``A concern has been raised that sources that are currently
well below the major source threshold will increase emissions
to a point just below the threshold. We believe these
concerns are unfounded. While this may occur in some
instances, it is more likely that sources will adopt PTE
limitations at or near their current levels to avoid negative
publicity and to maintain their appearance as responsible
businesses.''
This statement is unfounded and overly optimistic. Regional
experience indicates that sources requesting synthetic minor
limits to avoid a MACT standard typicaI1y request, and are
frequently given, limits of at least 24 tpy for a combination
of HAPs and 9 tpy for a single HAP. The Regional Offices
anticipate that many sources would take limits less stringent
than MACT requirements, if allowed. Thus, the cumulative
impact of many ``area'' sources whose status is derived after
the MACT compliance date could be significant. This change in
policy would offset the intended environmental benefits of
the MACT standards. Although the draft changes could serve to
alleviate some possible inequity under the current OIAI
policy, or encourage some sources to further reduce emissions
to achieve area source status, EPA should look closely at
this issue to determine whether the likely benefits would be
greater than the potential environmental costs. This analysis
should occur before the proposal is put forth for public
comment. One Region suggested that EPA should not enact a
policy allowing facilities to qualify out of the MACT
standards until a strong area source toxics program is in
place, or until state, local and tribal air quality agencies
have programs that can provide an equivalent level of
protection.
A related concern with regard to the draft changes as
written is that a facility, by changing from a major source
to an area source, and back again, could virtually avoid
regulation and greatly complicate any enforcement against
them. Take, for example, a facility that is covered by a MACT
standard, and has three years from the date that the rule is
promulgated to come into compliance. Three years go by, and
just before the end of that time period, the facility
announces its area source status. If an area source
regulation exists, there may also be some equivalent waiting
period before the facility is required to comply with the
area source requirements. If the facility later announces
that it is, after all, a major source, then it may again
enter a grace period, possibly up to another 3 years, before
it is subject to the MACT standard requirements. Thus, by
continually going back and forth between major and area
source status, a facility could be a major source for most of
its operating life and never have to comply with the MACT
standard requirements. The 1995 OIAI policy recognizes this
and states, ``The EPA believes the structure of section 112
strongly suggests certain outer limits for when a source may
avoid a standard through a limit on its potential to emit.''
This type of problem must be addressed if the OIAI policy is
changed.
Michael S. Bandrowski,
Chief, Air Toxics, Radiation and Indoor Air Office, Region