                     ENVIRONMENTAL PROTECTION AGENCY (EPA)

                            40 CFR Parts 50 and 51
               Docket Nos. EPA-HQ-OAR-2016-0596; FRL-9960-38-OAR
                                 RIN 2060-AT22

RESPONSE TO DECEMBER 9, 2013 CLEAN AIR ACT SECTION 176A PETITION FROM CONNECTICUT, DELAWARE, MARYLAND, MASSACHUSETTS, NEW HAMPSHIRE, NEW YORK, PENNSYLVANIA, RHODE ISLAND, AND VERMONT

                           Thursday, April 13, 2017
                                   9:00 a.m.

                        Environmental Protection Agency
                    William Jefferson Clinton East Building
                         1201 Connecticut Avenue, N.W.
                                   Room 1153
                            Washington, D.C.  20004
                                 PARTICIPANTS
EPA PANEL:
      STEPHANIE HOGAN, Office of General Counsel
      AMBER IGLESIAS, Office of Air Quality Planning and
           Standards
      MICHAEL LING, Air Quality Policy Division

OTHERS:
      TAD ABURN, Maryland Department of the Environment
      RON AMIRIKIAN, Delaware DNREC
      CHRISTINA ARCHER, University of Delaware
      THOMAS R. BALLOU, Virginia Department of
           Environmental Quality
      JOSH BERMAN
      DAVID FEES, Delaware DNREC
      STEVEN GOLDSTEIN, Sierra Club
      VALERIE GRAY, Delaware DNREC
      LAURA HALE, American Lung Association of the
           Mid-Atlantic
      ROBERT KLEE, Connecticut Department of Energy and
           Environmental Protection
      TERRY McGUIRE, Earthjustice
                           PARTICIPANTS (Continued)
OTHERS (Continued):
      ALI MIRZAKHALILI, P.E., Delaware DNREC
      GENE PETTINGILL, Delaware DNREC
      MARK PRETTYMAN, Delaware DNREC
      ARIEL SOLASKI, Chesapeake Bay Foundation
      J. JARED SNYDER, State of New York
      TED STEICHEN, American Petroleum Institute

                             P R O C E E D I N G S
            MR. LING:  Good morning, everybody.  I would like to call this hearing to order.  Good morning.  And thank you for attending the public hearing on ozone transport under the Clean Air Act.
            My name is Michael Ling.  I am the associate director of the Air Quality Policy Division in EPA's Office of Air Quality Planning and Standards.  I will be chairing today's hearing.  Joining me on the panel are Stephanie Hogan of the Office of General Counsel and Amber Iglesias of the Office of Air Quality Planning and Standards.
            The purpose of today's hearing is to take comment on the Environmental Protection Agency's proposed response to a petition that was filed under Clean Air Act Section 176A, which addresses expansion of the Ozone Transport Region.  The specific petition being addressed today is from Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and Vermont.  The petition, filed in December 2013, requested that EPA add the following states to the Ozone Transport Region:  Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia, and the remainder of Virginia.  The petition requested that we add those states to the Ozone Transport Region to address interstate transport for the 2008 ozone National Ambient Air Quality Standard, or NAAQS.
            We are here today to listen to your comments on EPA's January 19th, 2017 notice proposing to deny the petition.  This is an opportunity for the public to provide oral presentation of data, views, or arguments on EPA's proposed response.  There is also a written opportunity to provide comments.  As a result of the storm which forced the reschedule of today's hearing, the period for providing written public comments will not remain open until May 15th, 2017.
            The panel members, we may ask questions that seek to clarify any presented testimony, but the purpose of this hearing is to listen to your comments, not to discuss or debate the proposal.
            Before we begin receiving testimony, I would like to briefly describe the proposed petition denial that is the subject of today's hearing.  The proposal was published in the Federal Register on January 19th of 2017.  In December 2013, EPA received the petition.  Again, the states to petition were Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and Vermont, and requesting that we add to the Ozone Transport Region Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia, and the remainder of Virginia.  The petitioning states contend that those nine states significantly contribute to violations of the 2008 ozone NAAQS in the Ozone Transport Region.
            The EPA is proposing to deny the petition under Section 176A(a) of the Clean Air Act.  EPA has discretion under that section to grant or deny such petitions.  In this case, we have proposed to deny the petition on the basis that other Clean Air Act authorities provide a better pathway for states and the EPA to develop a targeted remedy to address interstate transport for the 2008 ozone NAAQS in a way that focuses on the precursor pollutants and sources most effective at addressing the nature of the downwind air quality problems that were identified by the petitioning states.
            The states and the EPA have historically and effectively reduced ozone and the interstate transport of ozone pollution using transport Clean Air Act authorities such as the good neighbor provision, 110A(2)(d)(i)(1); and its related petition provision, Section 126.  For the purposes of addressing interstate transport of ozone, with respect to the 2008 ozone NAAQS, the EPA believes that these Clean Air Act authorities and other control programs that reduce ozone precursor emissions are a more effective means of addressing regional ozone pollution transport with respect to the 2008 ozone NAAQS within the OTR.
            Specifically, and summarizing the proposal, EPA's current analyses continue to demonstrate that nitrogen oxides are the ozone precursor that is most effective to reduce when addressing regional transport for ozone in the eastern U.S.  In the proposed denial, EPA explained that we expect to see a continuing trend of reductions in emissions of nitrogen oxide as well as volatile organic compounds, which will result in lower levels of transported ozone pollution to the downwind states, due, in part, to these other control programs.  To address the good neighbor provision, some states have submitted plans addressing their Clean Air Act interstate transport requirements for this NAAQS.  And additional submittals may be forthcoming.
            In addition, the EPA issued a rule, a cross-state air pollution rule, update in October 2016 that requires 22 states to further reduce ozone season nitrogen oxide emissions from power plants starting in May of this year.
            Implementation of the cross-state air pollution roll-up date will help to resolve some downwind states' air quality problems by the July 2018 attainment date for the 2008 NAAQS and will make progress to reduce contributions to high ozone levels in areas that may have continuing problems attaining the NAAQS beyond 2018.
            There are also numerous federal rules that have already been adopted, which have resulted or will continue to result in a further reduction of ozone precursor emissions.  The rules are described in detail on page 65-19 and 20 of the Federal Register notice describing this proposed action.  Those rules reduce ozone precursor emissions from a number of pollution sources, including, but not limited to, vehicles, on and off the road; engines; turbines; boilers; and incinerators.
            Now let me describe briefly how we will run this hearing.  Today, we will be accepting oral comments on our proposal, and we will be preparing a written transcript of this hearing.  The transcript will be available as part of the official record for this rule, and the EPA will consider it as we move forward.
            As I mentioned, we are also accepting written comments for the proposed rule until May 15th of 2017.  We have a fact sheet available in the registration area that contains detailed information for submitting written comments.
            For those who will be providing oral comments today, I will call the scheduled speakers to the microphone in pairs.  When it is your turn to speak, please state your name and your affiliation.  It will help our court reporter if you also spell your name.
            In order to be fair to everyone, we are asking that you limit your testimony to five minutes each and to remain at the microphone until both speakers in a pair have finished.  After you finish your testimony, a panel member may ask clarifying questions.  If, in addition to the transcript of your testimony, you would like us to put the full text of your written remarks into the docket, we can do that if you give us a copy of any written comments.  You can give them to the staff at the registration table outside.
            We have a timekeeping system, consisting of green, yellow, and red lights.  When you begin speaking, the green light will come on.  You will have five minutes to speak.  When a yellow light comes on, that means you have two minutes left to speak.  And when the red light comes on, I will ask you to stop speaking or wrap up.
            Today's public hearing will end at 6 p.m. or end earlier, at least 2 hours after our last registered speaker.  We will have a lunch break from 12 noon to 1 o'clock p.m.  If you would like to testify but have not yet registered to do so, please sign up at the registration table.
            I would like to thank everybody again for participating today.  Now let's get started.  I will call the first two speakers.  We have Ted Steichen and Ariel Solaski.  And, Ted, we will start whenever you are ready.
            MR. STEICHEN:  Okay.  Good morning.  I am Ted Steichen, S-T-E-I-C-H-E-N, with the American Petroleum Institute.
            API appreciates the opportunity to comment on EPA's proposed response to deny the subject Clean Air Act Section 126A petition.  API represents over 625 oil and natural gas companies, leaders of a technology-driven industry that supplies most of America's energy, supporting more than 9.8 million jobs and 8 percent of the U.S. economy and since 2000 has invested nearly $2 trillion in U.S. capital projects to advance all forms of energy, including alternatives.
            First, let me emphasize the dramatic improvement in air quality that continues as the previous air quality controls are implemented.  For example, ground-level ozone in the U.S. declined by 17 percent between 2000 and 2015 according to EPA data.  In the fact sheet released with the 2005 ozone NAAQS rule, EPA stated the agency's analysis shows that the vast majority of U.S. counties will meet those standards by 2025 with just the federal and state controls and programs in place or underway at that time.
            Clearly, the states, tribes, and businesses are successfully implementing the ozone standards.  And API supports the protection of public health.  Of course, the NAAQS process should be further streamlined to reduce burdens on states and businesses, but those comments are for a different venue.
            Second, API supports EPA's proposed denial of the subject 2013 Clean Air Act Section 176A petition.  API agrees with EPA that it is not necessary to expand the Ozone Transport Region by adding nine additional states.  API members would be impacted as they operate multiple refining and federal chemical manufacturing facilities in that proposed expansion area.  The additional requirements that would be imposed through the petitioned expansion are not necessary for downwind states' attainment of the 2008 ozone NAAQS and could only serve to increase compliance costs for state citizens and businesses, including API members operating in those states.
            API agrees with EPA that other Clean Air Act provisions can provide better alternatives for states and EPA to develop targeted remedies to address interstate ozone.
            API further agrees with the agency that states and the EPA have historically addressed ozone issues and interstate transport of ozone pollution using the other Clean Air Act authorities to implement those emission reductions the regulators deem necessary.  API supports EPA's assertion that applying these past practices, we will be able to successfully address interstate transport of ozone with respect to the 2008 ozone NAAQS.
            EPA has promulgated several rules that reduce the transport of ozone and ozone precursors and help address any remaining OTR noncompliance issues with the 2008 ozone NAAQS.  These actions include the NOX SIP call, the cross-state air pollution control, air pollution rule, and its October 28, 2016 update; and, of course, the 2015 ozone NAAQS; and the numerous other emissions standards and rules.
            API appreciates EPA's careful consideration and determination that these other tools are adequate.  EPA's proposed action will prevent additional administrative burden for the nine targeted states and unnecessary controls on sources in those states.  API requests EPA to continue to first utilize the historically effective tools to address interstate transport and avoid expanding the OTR.
            API will provide written comments that further describe why EPA's preferred option to deny this Clean Air Act Section 176A petition is appropriate and also highlight that it would be burdensome on many sources with little or no benefit to the downwind states to meet the 2008 ozone NAAQS.
            In closing, air quality progress continues.  And EPA has, rightly, concluded the expansion of the OTR is not necessary.  Again, we thank EPA for the opportunity to comment.
            MR. LING:  Thank you.
            Any questions?  I have one question for you, Mr. Steichen.  Early in your testimony, you referred to the 2005 ozone NAAQS.  Just for the court reporter's sake, I think you meant 2015.  I just want to confirm that that is right.
            MR. STEICHEN:  That is correct.
            MR. LING:  Okay.
            MR. STEICHEN:  I misspoke.
            MR. LING:  Thank you.
            Okay.  Ms. Solaski?
            MS. SOLASKI:  Good morning.  My name is Ariel Solaski.  That is A-R-I-E-L, last name S-O-L-A-S-K-I.  I am here on behalf of the Chesapeake Bay Foundation.  The Bay Foundation urges the EPA to grant the 176A petition and add the 9 upwind states to the Ozone Transport Region.  Ultimately, granting the petition will reduce nitrogen oxide emissions from sources in the nine upwind states.  These emissions lead to ozone standard violations in the petitioning downwind states, as shown in the technical support document submitted with the petition.
            The Bay Foundation represents more than 200,000 members, many of whom live in downwind areas impacted by ground-level ozone pollution.  And, importantly for the Chesapeake Bay Watershed, the reduction in nitrogen oxide emissions would also decrease the amount of nitrogen that is deposited to the land and water within the Chesapeake Bay Watershed.
            The Chesapeake Bay Foundation is dedicated to the implementation and success of the Chesapeake Bay clean water blueprint, which seeks to reduce nitrogen, phosphorus, and sediment pollution within the Bay Watershed.  The blueprint consists of the 2010 Chesapeake Bay total maximum daily load, or TMDL, issued by EPA and the state-developed watershed implementation plan that detail how the TMDL pollution reductions will be achieved.  The EPA's Chesapeake Bay program identified atmospheric nitrogen deposition as the highest nitrogen input load to the Chesapeake Bay Watershed.
            The states, local governments, businesses, and citizens within the bay jurisdictions must spend money to install practices that, among other things, control stormwater runoff, carrying nitrogen deposited from nitrogen oxide emissions.  In this way, the bay jurisdictions are having to clean up nitrogen pollution generated in the upwind states.  Making the upwind states part of the Ozone Transport Region will require them to do more to limit nitrogen oxide emissions and, thus, save costs for the downwind states, local governments, businesses, and citizens.
            Bay restoration efforts are working.  There is measurable progress in restoring local rivers, streams, and the Chesapeake Bay Watershed.  The Bay Foundation's 2016 state-of-the-bay score was the highest it has ever been.  Crabs and oysters are rebounding.  The dead zone is getting smaller.  And bay grasses are at their highest level in decades.  The progress is the result of the federal and state partnership implementing the clean water blueprint as well as the work of citizens, businesses, and local governments all doing their share to reduce pollution.
            But there is still much work to be done.  And reducing nitrogen oxide emissions through the Ozone Transport Region in this petition and any other available mechanisms is a critical way to continue the blueprint's progress.
            The Bay Foundation urges EPA to grant the 176A petition and show its support for the Chesapeake Bay clean water blueprint and for the health of all residents in downwind states subject to ozone pollution.
            Thank you for the opportunity to speak today.  And we look forward to submitting written comments for the record.
            MR. LING:  Thank you very much.
            Questions?  Okay.  No questions.  Thanks.
            All right.  I would like to call the next two speakers:  Steve Goldstein and Josh Berman.  Goldstein I think.  I am sure he will tell us.  And, Mr. Goldstein, you can start.
            MR. GOLDSTEIN:  Thank you.
            My name is Steven Goldstein, S-T-E-V-E-N G-O-L-D-S-T-E-I-N.  And I am here today on behalf of the Sierra Club.  It is more than 730,000 members nationwide, 165,000 of which live in the OTR member states.
            The Sierra Club is the nation's oldest nonprofit environmental organization.
            We urge that EPA grant the petitioning states' request to expand the Ozone Transport Region.  Granting this petition will benefit public health.  Denying it will only delay needed improvements in air quality, leaving residents of downwind states exposed to unhealthy levels of air pollution.
            I want to emphasize two points today:  first, that expanding the OTR is necessary to place upwind and downwind states on an even playing field; and, second, now, the reasoning behind EPA's proposed denial is arbitrary and capricious.
            To the first point, OTR states and their upwind neighbors are currently under two separate, uneven regulatory systems.  Most notably, while major sources within the OTR states must implement the reasonably available control technology to limit emissions, large polluters in upwind states are under no such obligation.  This lack of source-specific limits has serious consequences for downwind air quality.
            Analysis conducted by EPA to support its own cross-state air pollution rule and cross-state air pollution rule up demonstrate that the upwind states included in the petition have a significant adverse impact on air quality within the OTR.  Given the magnitude of these impacts and the different regulatory playing fields faced by upwind and downwind businesses, it is critical that upwind and downwind states be subject to the same stringency of emissions controls.
            MR. LING:  Mr. Goldstein, can I just ask you to move that mike a little closer so our court reporter can hear you better?
            MR. GOLDSTEIN:  Sure.
            MR. LING:  Thank you.
            MR. GOLDSTEIN:  My apologies.
            With regard to the second point, EPA's proposed justification for denying the 176A petition is arbitrary and capricious.  The agency justifies denying the petition by suggesting that other provisions of the Clean Air Act are better suited to respond to the petitioning states' concerns.  Specifically, EPA points to Sections 110A(2)(d) and Section 126 of the Clean Air Act as more appropriate avenues for addressing this pollution.  Well, the agency's actions and its inactions regarding these provisions defeat that very contention.  EPA's most recent use of Section 110A(2)(d) is in its one words insufficient to limit interstate ozone pollution.  And the agency has taken the position that fixing that insufficiency is at least three years away.
            Furthermore, EPA has failed to act on any of the five Section 126 petitions that have been placed before it since July of 2016, despite facing clear statutory deadlines to do so.  EPA's claim that the downwind states' air quality is adequately protected by these sections of the Clean Air Act, therefore, rings hollow.  The agency's response to the Section 176A petition amounts to little more than a shell game.  It fails to provide the recent decision-making required of it under federal law.
            Interstate ozone pollution has real impacts on the likes of millions of people living in downwind states.  Ozone is a potent asthma trigger.  Exposure provokes new respiratory symptoms in previously healthy individuals.  And it exacerbates preexisting conditions in those with preexisting conditions.
            The impacts of ozone are most acutely felt by two of the most vulnerable portions of our population:  children and the elderly.  While the Sierra Club continues to press current OTR members to implement appropriately stringent requirements, EPA should do its part to improve air quality by leveling the playing field between upwind and downwind states.  When more of the entities responsible for air pollution reduce their emissions, air quality improves in a manner that is cheap, fast, and equitable.
            For those reasons, we ask that you grant the petition to expand the Ozone Transport Region.  I will provide a copy of my remarks in case the court reporter missed anything.  Thank you.
            MR. LING:  Thank you.
            Questions?  Thank you.
            Mr. Ballou?
            MR. BERMAN:  Pardon?  Josh Berman.
            MR. LING:  Oh, I am sorry.  I called the wrong name, yes.  I am sorry.  Josh Berman.  Sorry.
            MR. BERMAN:  Josh Berman, J-O-S-H B-E-R-M-A-N.  And I am here today in my capacity as a resident of the District of Columbia and also as the father of two young children, who are now aged seven months and two years.
            As a parent, nothing is more important to me than ensuring that my children have the opportunity to grow up in an environment where they can thrive.  Living in an urban area within the Ozone Transport Region, I closely monitor EPA's air quality advisories and make my kids stay indoors when air pollution reaches levels that may be unhealthy for them to breathe.
            Remarkably, nine years after EPA finalized its 75 part per billion ozone standard in 2008, many areas within the Ozone Transport Region continue to routinely experience ozone levels that exceed the standard.  An even larger number of areas are failing to achieve the more protective 75 part per billion standard that EPA finalized in 2015.  While some additional progress can certainly still be made within the Ozone Transport Region, the OTR states will continue to struggle to achieve the 2008 and 2015 ozone standards due to transported ozone from upwind states unless and until EPA takes meaningful action to impose the same requirements on sources in those states that apply to sources in the OTR.
            Even though my older son is only two years old, he has a pretty strong grasp of the concept of fairness.  If I tell him that half the kids in his daycare class have to clean up all the toys while the other half gets to continue to play and make a mess, he recognizes that this is unfair.
            The ozone situation is no different.  The common sense protections that apply within the Ozone Transport Region should be extended to the upwind states that are compromising our air quality.  That is basic fairness.
            My older son also knows a little something about making excuses.  I listened to Mr. Ling's explanation of EPA's proposed denial and was surprised and disappointed.  The Ozone Transport Region states have repeatedly attempted to use the provisions of the Clean Air Act referenced by Mr. Ling.  And, as Mr. Goldstein just testified, EPA to date has failed to use these provisions to rectify the current air pollution situation.
            Earlier this week, on April 11th, some 3 weeks before the formal start of the ozone season, monitors in the D.C. metro area exceeded the 2015 standard.  If this is a sign of what to expect this summer, I have grave concerns for the health of my children.  I don't want my kids to have to spend their summer indoors.  It is time to ask everyone to do their part in cleaning up our air.  The first step is for EPA to grant OTC states' petition and expand the Ozone Transport Region.
            Thank you.
            MR. LING:  Thank you.
            Any questions?  Thank you, Mr. Berman.  Thank you.  Bye.
            All right.  The next two speakers are Jared Snyder and Thomas Ballou.  Good morning.
            MR. SNYDER:  Good morning.
            MR. LING:  Mr. Snyder, you can start whenever you are ready.
            MR. SNYDER:  Okay.  Thank you.  Good morning.  I am Jared Snyder, deputy commissioner of New York Department of Environmental Conservation.  I am also currently chair of the Ozone Transport Commission but speaking today on behalf of New York.  Thank you for providing this opportunity to explain why EPA should grant the 176A petition.
            Today's hearing is about protecting the public health of millions of people in New York and elsewhere in the region.  Ozone concentrations are associated with asthma attacks and other serious respiratory impacts and even increased mortality.  New York City estimates that 10 percent of emergency room visits for asthma attacks in the city are triggered by high pollution levels.  For years, states in the Northeast have been plagued with the transport of emissions from outside the region.  Despite New York's emission reductions of over 50 percent since 2007, we still exceed the ozone standard because nearly half of our ozone levels are due to emissions from major sources outside New York and 19 percent outside the current Ozone Transport Region.
            The 1990 Clean Air Act amendments established the Ozone Transport Commission to reduce ozone transport across the Northeast.  As chair of the OTC, I have observed firsthand how this collaborative process has worked to develop and implement cost-effective strategies to reduce emissions in the region.  The collaborative effort starts with a sound basis for action.  The OTC states collaborate on modeling and other technical analysis to determine what levels of emission reductions are needed.  And then they develop strategies to achieve those reductions.  One of the earliest successes was the NOx budget trading program in 1994, which capped and reduced NOx emissions and formed the basis for subsequent EPA transport rules.
            The OTC states have also developed two dozen model rules governing a variety of sources from consumer products, large NOx sources, high energy demand day sources, and mobile source strategies, including adopting the California's low-emission vehicle program in many OTC states.
            Although the OTC states retain discretion to decide which rules to implement, all of the states have implemented some of the rules.  And they share the same objective of reducing ozone levels.
            As the OTC states have reduced their emissions at significant cost to their sources, the disparity between the environmental performance of the sources within the OTC and outside has grown.  And at the same time, the current balance of the Ozone Transport Region no longer reflects the regional nature of ozone pollution.  While northern New England states formerly exceeded the ozone standard, recent data reveals increasing nonattainment in areas to the west of the Ozone Transport Region.  States outside the Ozone Transport Region contribute much more than New England sources to ozone levels in nonattainment areas from Washington, D.C. to Connecticut.  For example, the eight states named in the petition are responsible for 15 percent of the ozone at our Staten Island monitor, compared with less than 1 percent attributable to the 6 OTR states in New England.  Even in New England, at the Connecticut monitor, with the highest levels in New England, the eight states named in the petition contribute more to ozone levels than the six New England states, including Connecticut.
            So Congress anticipated this possibility and provided a mechanism to change the OTR's composition to conform to the changing nature of the ozone challenge.  EPA effectively concedes that the technical record supports this change in the OTR's competition, but it has expressed in its proposal a preference for other mechanisms to address ozone transport, namely 126 petitions and action under Section 110 of the Clean Air Act.  These mechanisms are not substitutes for expanding the OTR.
            First, these mechanisms have not succeeded in eliminating regional ozone nonattainment.  States located upwind of the OTR have rarely, if ever, taken the initiative to address their contribution to downwind ozone nonattainment, as required by Section 110A(2)(d), forcing EPA to step in with needed transport rules.
            And then these transport rules generally occur too late to enable downwind states to meet compliance deadlines.  For example, this past October's transport rule update is intended to address nonattainment under the 2008 standard but far too late to enable New York, New Jersey, and Connecticut to meet their attainment deadline.  Likewise, EPA action on 126 petitions has languished, forcing petitioners to resort to litigation.
            If upwind states were included in the OTR, they would contribute to the needed emission reductions without the need for action from EPA and the courts.
            Second, these other mechanisms are resource-intensive and time-consuming, which greatly reduces their viability during times of budget cutbacks.  In contrast, many of the measures required of OTR states are self-effectuating, reducing or eliminating the need for EPA action.
            MR. LING:  I am going to ask you to wrap up.
            MR. SNYDER:  Okay.  So just wrap up, you said?
            MR. LING:  Yep.
            MR. SNYDER:  I am sorry.
            So, although we support the availability of these other remedies, we don't see how a piecemeal approach of repeated transport rules or Section 126 petitions is more effective, more efficient than the collective regional approach available under 176A, which relies on giving the states the authority and ability to solve their own environmental obligations.  Expanding the OTC to include all states the contribute materially to regional ozone levels will facilitate the development of a fair and equitable state-led response to the persistent challenge of ozone nonattainment, without the need for repeated EPA action.
            Thank you.
            MR. LING:  Thank you.
            Any questions?  I have one question for you, Mr. Snyder.  You gave a number of facts relative to contribution in your oral testimony today.  My question is, are those directly from the analysis that was submitted to support the petition or is there additional analytical information that you would want to provide to the record to --
            MR. SNYDER:  I am prepared to provide that information to the record.  I have footnotes that document those various things.
            MR. LING:  Great.  Thanks.  We would be very interested in that.
            MR. SNYDER:  Sure.  Okay.
            MR. LING:  Mr. Ballou?
            MR. BALLOU:  Good morning.  My name is Thomas R. Ballou.  That is B-A-L-L-O-U.  And I am the error data analysis and planning manager for the Virginia Department of Environmental Quality.
            Virginia DEQ fully supports EPA's proposed denial of the petition to expand the Ozone Transport Region.  Furthermore, the Virginia DEQ agrees with the EPA that the Clean Air Act provides other, more effective and efficient tools for EPA and the states to address ozone precursor emissions and transport.  Examples of these authorities are under Section 110A(2)(d), good neighbor provisions to address transport of pollution; and Section 126, which allows petitions to EPA to address emission impacts from specific facilities.
            Virginia is in a unique position because we are the only state where several of our jurisdictions currently fall within the Ozone Transport Region.  Section 184 of the Clean Air Act mandates the inclusion in the Washington, D.C. consolidated metropolitan statistical area in the Ozone Transport Region.  Therefore, 10 of our 134 jurisdictions in Virginia participate in the OTC and are in the OTR.
            Regardless of what monitoring data shows about the air quality in these areas, these 10 jurisdictions have numerous requirements due to their inclusion in the OTR.  These requirements are not mandated in other Virginia jurisdictions.  These requirements include nonattainment permitting requirements, application of control technology guidelines, and reasonably available control technology and vehicle emissions inspection program.
            Many of these requirements are a legacy of outdated strategies of the early 1990s to reduce red levels of ozone that are costly and ineffective in reducing ozone.  Specific measures, such as numerous CTGs, are focused on BOC emission reductions, which have been demonstrated to be generally ineffective in reducing ozone in most areas of the eastern United States.  Other requirements, such as offset requirements for nonattainment resource review, are mostly paperwork exercises of little or no meaningful ozone benefit.
            The other OTR-related requirements that may produce some benefits are both labor-intensive to implement and intrusive in the lives of businesses and those who the rules affect.  It is also not clear that the expansion of the OTR and these requirements to the rest of Virginia would be an effective means to improve ozone air quality or reduce pollution transport.
            What is clear, however, is that air pollutants have been reduced in Virginia.  And ozone air quality has improved significantly in the last 10 to 15 years.
            Just two examples of that are that in Virginia, power plane NOx emissions have been reduced by about 80 percent and motor vehicle emissions by 60 percent since 2003.  These emission reductions and ozone air quality improvements are the result of federal and state programs implemented by the Clean Air Act to reduce emissions.  These programs include the NOx budget trading program and the cross-state air pollution rule that address EG emissions in accordance with the good neighbor provisions, motor vehicle emissions standards, and clean air fuel standards, and standards for non-road vehicles and equipment.  These focused regional and national controls have been highly successful in reducing emissions and improving air quality due to their alignment with current science and ozone formation.  These types of programs also allow EPA to target control efforts on sectors that have the most emissions to produce the most cost-effective controls, measures.
            Additionally, EPA has authority under the Clean Air Act to address emissions from on-road and non-road engines, which most states do not have.
            EPA's ability to examine all sectors for cost-effective beneficial controls is crucial to air quality improvement.  Furthermore, such an approach is necessary at this time of scarce fiscal and financial resources.  And this approach is the most economical, cost-effective method to improving air quality.
            For these reasons and many more, Virginia DEQ supports the denial of the Section 110A petition for the expansion of the OTR.  Virginia DEQ encourages EPA to continue to examine and implement control strategies on those sectors of the emissions inventory that provide the most air quality benefit at the least cost to regulated entities and to those tasked with implementing those regulations.
            Virginia DEQ strongly recommends EPA issue any new control programs in a timely manner so that nonattainment areas under the 2015 ozone standard can be met as expeditiously as possible.  And Virginia DEQ urges EPA to provide the necessary rulemaking and guidance documents in a timely manner so that states can implement new mandates in a reasonable schedule.
            Finally, Virginia DEQ urges EPA to continue the collaborative approach with states to address these issues.
            And, in closing, I would say that we believe Virginia has been and will continue to be a good neighbor, regardless of how this matter is concluded.
            Thank you.
            MR. LING:  Thank you.
            Any questions?  Thank you both very much.
            MR. BALLOU:  Thank you.
            MR. LING:  Okay.  The next two speakers are Robert Klee and Laura Hale.  All right.  Mr. Klee, you can start whenever you are ready.
            MR. KLEE:  Good morning.   My name is Robert Klee.  I am the commissioner of Connecticut's Department of Energy and Environmental Protection.  Thank you for the opportunity to testify today.
            My message here is simple.  EPA needs to accept and act favorably on the Clean Air Act Section 176A petition submitted on December 9th, 2013 by Connecticut and 8 other states.  This action is necessary to protect the health and well-being of Connecticut residents.  For many years, we have been forced to breathe unhealthy air created when ozone pollution is transported from upwind states.  Adoption of the federal Clean Air Act was intended to address this issue, but to date, it hasn't effectively done so.  EPA leadership is required to bring upwind and downwind states together to solve this problem because a small downwind state such as Connecticut can't do that on its own.
            The entire State of Connecticut is designated nonattainment for ozone.  We measure the highest levels of ozone in the Northeast.  More than 90 percent of this pollution blows into our state from other places.  On some days, every power plant and factory could shut down in Connecticut.  Connecticut would still exceed the ozone NAAQS.  That is not fair to the people of Connecticut, and it places the health of our population at severe risk.  The unhealthy levels of ozone in our air, through no fault of our own, impacts the health of our population, especially vulnerable groups, such as senior citizens and infants, by irritating respiratory systems and aggravating asthma and other chronic lung diseases.  Ozone and other air pollutants have also been linked to premature death.
            As noted in a letter submitted for the record by Connecticut's commissioner of public health, children, females, Hispanics, non-Hispanic blacks, and residents of Connecticut's five largest cities are disproportionately affected by asthma.  Connecticut is above the national average in asthma sufferers.  And in 2014, Connecticut incurred over $135 million in acute care charges due to asthma.
            In addition to placing our health at risk, the interstate transport of air pollution also undermines our economy and places us at a competitive disadvantage.  In a nonattainment area, industries face additional administrative and air pollution control costs when applying for a new permit or expanding their businesses.
            As noted in a letter submitted for the record by Connecticut's commissioner of economic and community development, industries in our state are required to install the most stringent emissions controls in the country when building a new plant and have to purchase pollution credits to offset new emissions.  This can add millions of dollars to the cost of doing business in Connecticut.
            The cost of removing an additional ton of pollution in Connecticut and other downwind states, where we already have stringent requirements in place, is estimated at $10,000 to $40,000 a ton.  Compare this to the estimated cost of as little as $500 to $1,200 a ton it takes to remove the same amount of pollution in upwind states, where even some basic pollution control technologies have not been installed at various facilities.
            The 176A petition submitted by Connecticut and the other partner states asks EPA to have the 9 upwind states join the Ozone Transport Region.  Including these 9 states in the OTR will require them to take actions to limit air pollution, consistent with the efforts of Connecticut and the other petitioning downwind states, including the use of reasonably available control technologies in reliance on cleaner fuels to generate power.
            Connecticut strongly believes that including the petition states in the OTR is the most efficient and equitable means to address interstate air pollution transport.  In fact, when creating the OTC, Congress recognized that interstate transport of ozone pollution needed to be addressed regionally and understood that individual states could not solve the problem on their own.
            After 30-plus years, EPA's own ozone models continue to show states outside the OTR significantly contributing to ozone levels in Connecticut, highlighting the fact that interstate pollution is even broader than even originally thought.
            To satisfy the intent of the good neighbor provision of the Clean Air Act, EPA must expand the OTR to reduce unhealthy regional ozone levels.  And so it will establish the minimum baseline emission control in the upwind states, there will be a step in leveling the playing field with the OTR states.  It will also give the upwind states a seat at the table in the OTC to collaborate in the development of measures to solve the problem.
            EPA must approve the petition and give the states the ability to address ozone transport expeditiously through cooperation, as opposed to the adversarial method of attacking individual transport plans and filing petitions.
            In Connecticut, we respectfully disagree with the manner in which EPA has proposed to deny our 176A petition.  EPA acknowledges the administrator must adequately explain the facts and policy concerns relied on on the petition to conform such regions with the authorizing statute.  EPA has failed to do so by not reviewing the merits of the petition.
            Furthermore, the explanation EPA has articulated for the denial is inadequate.  For example, EPA repeatedly states it would be more effective to use Sections 110 and 126 than 176A, but it offers no analysis whatsoever to relative costs of the various approaches.
            Finally, the efforts by petitioning states to obtain relief under the alternative sections have been less than fully successful.  So the availability of these sections cannot provide a valid justification for denying the 176A petition.  The CSPAR update only provides a partial remedy for Connecticut, as EPA acknowledges itself in its proposed decision.
            In Connecticut, we now believe that it is time for EPA to take action to improve the air quality of downwind states.  They should approve the Section 176A petition and give states the ability to effectively address ozone transport.
            I will close with a letter that we have filed for the record from my governor, Connecticut's governor, Dannel Malloy, who clearly articulates our state's position on this matter.  He writes, "Now is the time to require upwind states to take action.  EPA must move to include the petition states in the collaborative and efficient OTC process to resolve finally the illegal transport of air pollution in Connecticut.  Connecticut is tired of serving as the tailpipe of America.  The health of our citizens depends on a positive resolution of this matter, which can only be accomplished by EPA accepting our 176A petition and implementing the requirement it proposes."
            MR. LING:  Thank you so much for the opportunity to testify today.
            MR. LING:  Thank you.
            Ms. Hale, I notice you have left us some copies of your testimony.
            MS. HALE:  Yes.
            MR. LING:  Did you also leave one with the registration table outside?
            MS. HALE:  Not with the registration table, but I can do that.
            MR. LING:  Okay.
            MS. HALE:  Thank you.
            MR. LING:  I will give the extra one to them.  So we will take care of it.  Thanks.
            MS. HALE:  Wonderful.  Thank you so much.
            MR. LING:  You may start when you are ready.
            MS. HALE:  All right.  Thank you for the opportunity to comment today on the decision EPA made to deny the Section 176A petition from these Northeast and Mid=Atlantic states.  My name is Laura Hale, and I am a program specialist with the American Lung Association of the Mid-Atlantic.  Our office here in D.C. is part of a larger region that encompasses three of the petitioning states, Delaware, Maryland, and Pennsylvania, as well as New Jersey, Virginia, West Virginia, and the District of Columbia.
            The American Lung Association of the Mid-Atlantic strongly urges EPA to reconsider its decision to reject this petition for many reasons.  The states have requested the position separate levels of ozone pollution long recognized as unhealthy.  Much of that ozone pollution blows into their states from sources far, far away.  Because of the serious risk from this pollution, the states need every resource possible to reduce emissions crossing state borders.  EPA's decision to reject that petition denies them access to a tool in the Clean Air Act that can help them achieve cleaner, healthier air.  This decision creates real risk.
            As EPA has determined ozone possesses serious harm to human health, large studies in the U.S. and internationally have shown that breathing ground-level ozone pollution can shorten life, can kill, and can trigger coughing, wheezing, and asthma attacks as well as increase the risk of going to the emergency room or to the hospital.  Newer evidence links ozone to an array of other health threats, including cardiovascular harm and increased risk of low birth weight in newborns.
            We have learned more about the wide-ranging threats that ozone possesses to human health in the EPA's 2013 review of the current research on ozone pollution.  EPA worked with a panel of independent experts, scientists, the Clean Air Scientific Advisory Committee to assess hundreds of studies.  These experts on the committee and the EPA concluded that ozone pollution posed multiple serious threats to health.  Specifically, they determined that ozone pollution causes respiratory harm, is likely to cause early death, is likely to cause cardiovascular harm, may cause harm to the central nervous system, and may cause reproductive and developmental harm.
            Hundreds of thousands of people in these states face greater risk from breathing unhealthy levels of ozone pollution, including newborns; children; and teenagers; people with asthma, COPD, or other lung diseases; people with cardiovascular disease; and people with low incomes.  Even healthy adults who work or exercise outdoors can be affected by breathing this pollution.
            In the most recent American Lung Association state of the air report, we point out improvement in ozone in the Mid-Atlantic but recognize the continued need to clean up.  Many cities improved, but far too many earned F's in ozone, meaning that they had far too many days on average when ozone reached levels recognized as unhealthy.  Major cities, like Pittsburgh; Philadelphia; Washington, D.C.; Baltimore; as well as smaller cities, like Harrisburg and Lancaster, Pennsylvania, also suffered too many days with unhealthy ozone pollution.
            EPA has taken steps to reduce the ozone transportation into these states, but those actions are not enough.  We have supported steps, including the cross-state action pollution rule that seeks to reduce the emissions from states as far away as Tennessee, Illinois, and Indiana that contribute to the ozone problems in our states.  However, the current CSPAR only partially solves the problem and faces legal challenge as well as uncertain political future.  EPA should not assume that the problem is solved and should, instead, allow the states to use the tools that Congress envisioned for them in the Clean Air Act itself.
            Our states have worked hard to reduce the emissions that create ozone in their counties.  The Ozone Transportation Region states have a long history of working together to solve problems that all share.  EPA should reconsider this decision and allow the states to expand this region to include these additional states.
            Thank you for the opportunity to provide comments.
            MR. LING:  Thank you.
            I realize I forgot to ask the panel if they had any questions for Mr. Klee.  Sorry.  And also any questions for Ms. Hale?  All right.
            Thank you both very much.
            That is all of the currently registered speakers we have signed up.  If you would like to speak, please check in at the registration table.  And in the absence of any currently signed-up speakers, we are going to recess the hearing until 10 o'clock or thereabouts, when our next scheduled speakers are signed up to arrive.  Thank you.
            (Recess taken.)
            MR. LING:  Okay, folks.  I am going to bring the hearing back to order.  I understand that our next speaker has arrived.  We just have one speaker signed up for this next block.  And it is Terry McGuire.  Mr. McGuire?  Is that Mr. McGuire?  Okay.  Sorry.  I heard you were here.  I just called you up to speak, but take your time.
            MR. McGUIRE:  Sorry about that.  I ran to the restroom.
            MR. LING:  If you are like me, it was difficult to find.
            MR. McGUIRE:  Yes and to lock the door, but I made it.
            Good morning.  My name is Terry McGuire.  I am here to speak on behalf of Earthjustice about why EPA should grant the petition to expand the Ozone Transport Region.  We can improve people's health and their lives by lowering the dangerous smog levels that continue to plague the Northeastern United States.  Granting the petition would serve that end by reducing ozone-forming emissions in states that significantly contribute to the nonattainment problem.  EPA's reasons for proposing to deny it are arbitrary.
            As EPA knows well, ozone is a regional pollutant.  It is the main component of urban smog, and it is a corrosive air pollutant that inflames lungs, constricts breathing, and likely kills.
            Among other serious health harms, it causes asthma attacks, emergency room visits, and hospitalizations for bronchial conditions.  Health problems induced by ozone force people to alter their ordinary activities, compelling children to stay indoors and driving people to take medication and miss work or school.
            The heavily populated Northeastern part of the country has long endured dangerous ozone levels.  The most recent ozone design values for 2015 show multiple counties in states like Connecticut, New York, New Jersey, Maryland, and Pennsylvania violate the 2015 ozone standards, with counties in other states hovering at or just below violations.  The 2016 design values are likely to show similar results.
            This dangerous air pollution stems from sources in the Northeast and also from sources outside the area, as EPA itself agrees.  Ozone pollution doesn't limit itself based on state lines, and the solution to it can't either.  The Northeastern states have all taken strides towards reducing emissions of ozone-forming pollution.
            To be sure, there is more that sources in the Northeastern states can and must do, but EPA must make sure that the other states that contribute significantly to the Northeastern states' problems do their fair share, too.  So far, EPA has failed to do its job.  The cross-state air pollution rule and the cross-state air pollution rule update were good starts, but EPA itself agrees that they are inadequate.  They don't satisfy the statutory obligation that states prohibit sources and activates from emitting air pollution that contribute significantly to nonattainment in or interferes with maintenance by other states.  It is not clear when EPA is going to fix it.  The earliest looks like it would be 2018.  And if the past is any example, implementation may be delayed.
            Another available tool is less comprehensive and more ad hoc, Section 126 petitions.  The EPA has failed to act on Section 126 petitions on time anyhow.
            Here, EPA proposes not to use a tool at its disposal that would address ozone-forming pollution very broadly.  This proposal is indefensible.  EPA should be taking steps to help states address pollution flowing into them from other states.  Instead, EPA is telling the Northeastern states that it would rather wait to use other tools later.  By taking this course of an action, EPA delays legally required public health improvements.  EPA should grant the petition, and it should commit to swiftly and fully implement the Clean Air Act's good neighbor provision for the 2008 and 2015 ozone standards.  By doing both, EPA will benefit public health and the environment and do so in a timely and efficient way.
            Thank you.
            MR. LING:  Thank you.
            Any questions?
            MR. McGUIRE:  Thank you.
            MR. LING:  Okay.  Thank you very much.
            MR. McGUIRE:  Sorry I was late.
            MR. LING:  No worries.  You weren't late.
            Okay.  So according to my records, we have another group of speakers signed up to arrive around 11:30.  And so unless we get a speaker who has not signed up, then I am going to recess the hearing until shortly before 11:30.  Thank you.
            (Recess takes.)
            MR. LING:  Let's call the hearing back to order.  So I am just going to quickly note since a number of the speakers were not here when I originally went through this that we are calling up speakers in pairs.  When you speak, please state your name and your affiliation.  So it will help the court reporter also if you spell your name.  I would also like to request that people speak directly into the microphone.  It helps the court reporter and the audience hear you better.
            We are limiting testimony to five minutes.  And if you would remain until both speakers in the pair have finished?  The panel may ask questions.  And the timekeeping system has green, yellow, and red lights.  And when the yellow light comes on, you have one minute left.  When the red light comes on, I will ask you to wrap up.
            So those are the highlights of how the hearing works.  And I did read an opening statement at the beginning of the hearing.  I am not going to reread it now.
            And so I will begin by calling our first two speakers.  And that is Ron Amirikian and Valerie Gray.  Okay.  At their request, we are going to change it to Ron Amirikian and David Fees will be the first two.  Mr. Amirikian, you may begin speaking whenever you are ready.
            MR. AMIRIKIAN:  Okay.  Good morning and thank you.  My name is Ron Amirikian.  And it is spelled A-M-I-R-I-K-I-A-N.  I am a planning branch manager in the Division of Air Quality for the State of Delaware.  Thank you for providing this opportunity to speak on EPA's proposed denial for the predirect on the 176A petition.
            I believe its proposed denial is not warranted because it does not fully consider the Clean Air Act provisions that govern the establishment of the Ozone Transport Region and it does not fully consider either the burden or benefits of the Ozone Transport Region.
            Congress established by operational law an OTR comprised of the States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the consolidated metropolitan statistical area that includes the District of Columbia.  The OTR was established based on the science and data available in 1990.  Much data has been gathered the last 26 years since the establishment of the OTR.  Their modeling tools are better.  And we know that this region does not encompass the area that significantly contributes to violation of the ozone NAAQS.  We know this because every major modeling effort done by EPA -- that is OTAG, NOx SIP call, CAIR, CSPAR, and the recent CSPAR update -- all point to a larger.
            The 1990 Clean Air Act did not get the boundaries of the OTR correct, but Congress did put in place a process to fix it.  Clean Air 176A provides the administrator may add any state to the OTR whenever the administrator has reason to believe that interstate transport of air pollutants from such states significantly contributes to a violation of the standard in the transport region.  And, similarly, 176A states that the administrator may remove any state or portion from the region whenever the administrator has reason to believe that the control of emissions in that state or portions of that state pursuant to this section will not significantly contribute to the attainment of the standard in any area of the region.
            The Clean Air Act specifically provides the administrator may take either action on its own motion.  Yet, despite the fact that every major modeling effort undertaken by EPA has clearly indicated that the current OTR is not sized correctly, the EPA has not taken action.  I am baffled by this because the air in the OTR remains unhealthy, and EPA has not used the OTR tool to help address the problem.  The result is that areas like Delaware are subject to both the burden of unhealthy air and the burden of emission control costs.
            The Clean Air Act 176A not only provides for the administrator on its own motion to adjust the area of the OTR.  It also provides for the petition from the governor of any state to do so.  That is what this hearing is about.  The petition of not one governor but the governors of nine states ask the EPA to adjust the size of the OTR based on EPA's own modeling.
            EPA notes in its proposed denial the OTR provisions have been an effective tool for air quality management.  And, despite this, EPA is proposing denial of the petition because expanding the OTR is not EPA's preferred approach to addressing interstate transport with respect to the 2008 ozone NAAQS.
            A problem with the EPA approach is that the EPA is not deciding whether or not to use the OTR tool.  Rather, the EPA is deciding to use the tool in some areas and not others.  Scientists have shown us the scale of the transport area.  And EPA's preferred approach creates inequity by not applying the OTR tool to part of this area and continues to subject the current OTR states to far greater obligations than non-OTR states.
            EPA claims that an expansion of the OTR is unnecessary at this time and would not be the most efficient way to address the remainder interstate transport issues for the 2008 ozone NAAQS and states currently included in the OTR.  It is not apparent what the proposal means by "efficient," certainly not efficient to downwind areas that endure control costs for air quality, certainly not efficient relative to the control of upwind areas.
            EPA has known the OTR is not sized correctly since the mid 1990s.  The OTR has been subject to OTR requirements iteratively three times to date while other areas that significantly contribute have not yet been subject.  This is not efficient by any definition I can think of.
            The OTR is a tool that can only be effective if it encompasses the area that is a significant cause of the problem.  EPA has demonstrated that the current OTR boundaries do not do this.  Continuing to apply the OTR tool to the wrong area will continue to lead to inefficient controls, inequity, unnecessary controls, and failure to attain.
            The EPA must grant this petition because it is technically sound, correct identifies the states that contribute to the nonattainment of petitioning statements, is permissible under the Clean Air Act, and is an approach that will work.
            Delaware plans to submit EPA with comprehensive written comments.
            Thank you for this opportunity.
            MR. LING:  Thank you.
            Any questions for Mr. Amirikian?
            MS. IGLESIAS:  I don't have a question but a comment.  Can you move the microphone closer to you when you are reading your testimony so the court reporter can -- thank you.
            MR. FEES:  Okay.
            MR. LING:  Okay.  Mr. Fees?
            MR. FEES:  Thank you.
            Good morning.  My name is David Fees.  That is spelled F-E-E-S.  And I am a manager in the Division of Air Quality for the State of Delaware.
            I would like to begin by thanking the EPA for providing this opportunity to present comments on the proposed decision on the Clean Air Act Section 176A petition.
            I believe this proposed denial is not warranted because it does not fully consider the requirements and benefits for states in the Ozone Transport Region, which I will refer to as the OTR.  The Clean Air Act delineates specific requirements for states in the OTR, to include nonattainment, new source review, a vehicle inspection and maintenance program, and reasonably available control technologies.  States are required to submit a state implementation plan that demonstrates they meet these requirements.  The Clean Air Act specifies these requirements for nonattainment areas and for all areas included in the OTR.
            The Ozone Transport Commission, or OTC, has the ability to develop additional control programs that are established by a majority vote of the OTC's members and accepted by EPA.  These additional control measures are often defined through a model rule that is used by each OTC member state to enact the control at the state level.  These measures are established through a collaborative and equitable process that ensures states in the OTR establish consistent control programs to achieve and maintain the ozone standards throughout the OTR.  Delaware believes that the collaborative process inherent in the OTC's mission is well-suited to address transport, timely attainment of ozone NAAQS, and achieving cleaner air for all states.
            The expanded OTR approach includes two important elements:  the establishment of a minimum level of baseline emission control in the area and a mechanism that brings states together to develop approaches and to implement measures to solve the problem.  By approving the 176A petition, the EPA would give states the ability to address ozone transport in a timely manner through cooperation, as opposed to the tried-and-failed method of individual transport plans.  This collaborative process would help upwind states satisfy their Clean Air Act Section 110A(2)(d)(i) good neighbor obligations and negate the need for Clean Air Act Section 126 petitions and negate the need for future EPA federal implementation plans, or SIP calls.
            Expansion of the OTC is the mechanism established by the Clean Air Act to position the states to work cooperatively together to address transported ozone pollution.  EPA should not decline to expand the OTC simply because EPA is utilizing other measures authorized by the Clean Air Act to reduce transported pollution.
            The current Ozone Transport Region is unable to apply the minimum level of control and the collaborative process to the entire area that is significantly causing the problem.  The EPA must grant this petition because it is technically sound.  It correctly identifies the states that significantly contribute to the nonattainment of petitioning states.  It is permissible under the Clean Air Act.  And it is an approach that will work.
            Delaware plans to provide the EPA with comprehensive written comments by the extended deadline in May.
            Thank you.
            MR. LING:  Thank you.
            Any questions?
            Thank you both very much.
            MR. FEES:  Thank you.
            MR. LING:  Okay.  The next two speakers are Gene Pettingill and Mark Prettyman.  So, Mr. Pettingill, you are first, and you can begin whenever you are ready.
            MR. PETTINGILL:  Thank you.
            MR. LING:  Yes.
            MR. PETTINGILL:  Good morning.  My name is Gene Pettingill, and I am an environmental engineer for the Division of Air Quality for the State of Delaware.
            I would like to begin by thanking the EPA for providing this opportunity to present comments on the proposed decision.
            MR. LING:  Can you hold the mike even a little closer?  Yes.
            MR. PETTINGILL:  Excuse me?
            MR. LING:  Can you hold the mike even a little closer, like speak directly, get as close to your mouth as you can?  Yes.
            MR. PETTINGILL:  Hear me all right?
            MR. LING:  Yes.  That is great.
            MR. PETTINGILL:  I believe this proposed denial is not warranted because it does not fully consider the Clean Air Act's provisions to require RACT in Ozone Transport Regions and the air quality benefits which states realize from its implementation.  As part of their overall plan to meet the ozone NAAQS, nonattainment areas as well as states in the OTR are required to adopt or revise certain reasonably available control technology, or RACT, rules to reduce air emissions of ozone precursors, NOx, and VOCs.
            The EPA defines RACT as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility.  EPA periodically issues RACT guidelines for different sources.  Nonattainment areas in OTR states must follow these guidelines or adopt more stringent rules.
            Delaware submitted their RACT state implementation plan, or SIP, under the 2008 ozone NAAQS to EPA in August of 2014, as required.  This SIP showed 51 RACT rules for Delaware sources, including 4 with more stringent rules and 2 with low guidelines.  All of these rules have contributed to the steady and significant reduction in Delaware ozone-monitored regions and to improvement in Delaware's nonattainment status.
            Although EPA seems to require RACT rules not be based upon national rules, Delaware and other states believe using OTC model rules limiting the VOC content of architectural and industrial maintenance codings in our consumer products are appropriate RACT.
            EPA issued national rules for these two categories in 1998.  And, despite our pleas for them to do so, EPA has not updated them.
            Many states have taken action to avoid nonattainment requirements; that is, seeking attainment designations for the 2008 ozone NAAQS, even when monitoring data around them at the time of designations indicated they were nonattainment, instead of taking action to reduce pollution.  Because of their history attainment status, these states have not yet adopted even the most basic control strategies, such as major source NOx RACTs.
            The requirement for RACT in the OTR has helped reduce emissions in the OTR states, the controls, which are reasonably available and economically feasible.
            In an effort to develop consistent RACT guidance for its member states, the OTC developed a white paper, which includes a compendium of the emission levels, control technologies, and pending regulatory measures in the OTR related to NOx emissions from eight non-large electric generator unit sources.  This documentation is a technical resource that could be useful in developing an updated RACT guidance by the EPA or by the states named within the 176A petition.
            In addition, some upwind states have applied for and been granted NOx waivers under Clean Air Act 182F for their nonattainment areas.  NOx waivers allow areas to continue to have large significant sources of NOx emissions uncontrolled, despite significant contributions to nonattainment areas in downwind states.  For example, in a final rule, approving a 2005 NOx waiver request by Michigan, the EPA disagreed with a New York comment against the approval of Michigan's request because CAIR modeling showed a link between statewide Michigan NOx and VOC emissions in a nonattainment area in New York.
            EPA rejected this comment on the basis that consideration of impacts on downwind attainment areas, and I quote, "is not a part of the process for evaluating Section 182F waiver requests."  EPA's policy decision, which was not based upon requirements of the Clean Air Act, allowed Michigan to forego NOx reduction, even though EPA's modeling showed that it significantly contributes to projected downwind nonattainment and/or maintenance areas in New York and other states.
            Further exacerbating the inequality between OTR and non-OTR states, EPA has repeatedly overestimated the cost of NOx controls in its transport rules, such as CAIR and CSPAR, and underestimated the ability of sources to meet more stringent emission limitations.  This is a result of --
            MR. LING:  Mr. Pettingill, I am going to have to ask you to wrap up.  The timer has elapsed.
            MR. PETTINGILL:  Excuse me?
            MR. LING:  I just need you to wrap up.  The timer has elapsed.  Go ahead.
            MR. PETTINGILL:  RACT is a necessary minimum requirement, and it must be implemented in all states, causing significant contribution to the Ozone Transport Region.  The EPA must grant this petition because it is technically sound.  It correctly identifies the states that significantly contribute to the nonattainment of petitioning states.  It is permissible under the Clean Air Act.  And it is an approach that will work.  Delaware plans to provide the EPA with comprehensive written comments by the extended deadline in May.
            Thank you.
            MR. LING:  Thank you.
            Any questions for Mr. Pettingill?
            I am going to guess you are not Mark Prettyman.
            MS. GRAY:  No.  I am Valerie Gray.  Sorry.
            MR. LING:  Okay.  Valerie Gray, whenever you are ready.  Is Mr. Prettyman still --
            MS. GRAY:  He is next.
            MR. LING:  -- going to speak next?  Oh, okay.  Great.  So whenever you are ready, Ms. Gray.
            MS. GRAY:  Good morning.  My name is Valerie Gray.  It is G-R-A-Y.  I am a manager for the Division of Air Quality for the State of Delaware.
            I would like to begin by thanking the EPA for providing this opportunity to present comments on the proposed decision on the Clean Air Act Section 176A petition.
            I believe this proposed denial is not warranted because it does not fully consider the Clean Air Act's provisions to require inspection and maintenance programs in the Ozone Transport Regions and the air quality benefits which states realize from its implementation.  Under the Clean Air Act, the EPA promulgated rules related to the plans for motor vehicle inspection and maintenance programs, also known as I&M programs.  Vehicle I&M programs help improve air quality by identifying cars and trucks with high emissions that may need repairs.  Owners or operators of vehicles with high emissions are notified to make any repairs so that emissions are within legal limits.
            The 1990 amendments to the Clean Air Act made inspection and maintenance mandatory for several areas across the country, such as the Ozone Transport Region.  By requiring that vehicles with excess emissions be repaired and maintained, the inspection and maintenance emission testing program is a meaningful element of the Delaware state implementation plan to meet federal air quality standards.
            If the 176A petition is approved and the Ozone Transport Region is expanded to include the upwind states named in the petition, not only will those named states benefit from reduced pollution from on-road vehicles, but Delaware will benefit as well.
            Section 182 of the Clean Air Act is prescriptive regarding the various elements that are required as part of an enhanced inspection and maintenance performance standard.  It also provides states with flexibility in meeting the numerical performance standards for enhanced or basic inspection and maintenance programs.  States in the Ozone Transport Region requested additional flexibility in implementing inspection and maintenance in areas which area in attainment, which are areas designated and classified as marginal ozone areas or which are designated and classified as moderate ozone areas under 200,000 in population.  These three types of areas would be exempt from all inspection and maintenance requirements but for their location in the Ozone Transport Region.  These areas are included in the Ozone Transport Region enhanced inspection and maintenance requirements to help achieve overall attainment and maintenance goals for the region, which include serious and severe ozone nonattainment areas.
            The EPA has already made great strides in reducing emissions from on-road vehicles nationwide.  For example, the EPA's Tier 3 program is part of a comprehensive approach for reducing the impacts of motor vehicles on air quality and public health.  The program considers the vehicle and its fuels as an integrated system, setting new vehicle emissions standards and a new gasoline sulfur standard beginning in 2017.  The vehicle emissions standards will reduce both tailpipe and evaporative emissions from passenger cars, light-duty trucks, medium-duty passenger vehicles, and some heavy-duty vehicles.  The gasoline sulfur standard will enable more stringent vehicle emissions standards and will make emission control systems more effective.  Inspection and maintenance programs are a key ingredient for the recipe of success for reducing vehicle emissions in that they help ensure that the vehicle emissions continue to stay low throughout the life of the vehicle and emissions do not begin to increase.
            As nonattainments are already required to implement inspection and maintenance programs, most of our states named in the 176 petition should have infrastructure to evaluate and expand statewide as part of the Ozone Transport Region.  Onboard diagnostics have been mandatory for all vehicles manufactured in the United States to be sold since 1996.  A vehicle's onboard diagnostic system helps to alert motorists when an emission-related fault is encountered, provides valuable information to assist the emissions-related repair, as well as serving as an important check as part of the required periodic inspection.  The EPA and states have generally found that onboard diagnostic systems are more effective in detecting emissions-related malfunction on in-use vehicles compared to the existing inspection and maintenance tailpipe testing procedures.  As such, implementing onboard diagnostic-only inspection and maintenance programs in the states named in the 176A petition would not only be more cost-effective to the states but more convenience to its drivers but would be beneficial in ensuring reduced emissions in those states as well as the downwind states of the petitioners.
            In conclusion, vehicle inspection and maintenance is a necessary minimum requirement that must be implemented in all states that are causing significant contributions to the Ozone Transport Region.  The EPA must grant this petition because it is technically sound.  It correctly identifies the states that significantly contribute to the nonattainment of petitioning states.  It is permissible under the Clean Air Act.  And it is an approach that will work.
            Delaware plans to provide the EPA with comprehensive written requirements by the extended deadline in May.
            Thank you.
            MR. LING:  Thank you.
            Any questions?
            Thank you both very much.
            Now I will call Mark Prettyman and Ali Mirzakhalili.  And, Mr. Prettyman, you can start whenever you are ready.
            MR. PRETTYMAN:  Thank you.
            Good morning.  My name is Mark Prettyman, P-R-E-T-T-Y-M-A-N.  I am an environmental scientist for the Division of Air Quality for the State of Delaware.
            I would like to begin by thanking the EPA for providing the opportunity to present comments on the proposed decision on the Clean Air Act Section 176A petition.
            I believe the proposed denial is not warranted because, among other things, it does not fully consider the Clean Air Act's provisions for nonattainment new source review, or NSR.  EPA approval of the petition would provide for nonattainment new source review to be implemented in a manner that is consistent with science and a good air quality policy and fair to all.
            Nonattainment NSR is a program that provides a way for major new or modified sources to construct such that they do not make an existing air quality problem worse.  In the Ozone Transport Region, or OTR, these sources are defined as having the potential to emit greater than 50 tons per year of volatile organic compounds or 100 tons per year of nitrogen oxide.  Nonattainment NSR provides a net air quality benefit by requiring any major new stationary source or any major modification to an existing major stationary source to control emissions by installing and operating lowest achievable emission rate, or LAER, technology and to secure emission offsets at a rate of 1.15 to 1 or higher in the OTR.  Sections 182 and 184 of the Clean Air Act subject all areas of the OTR to nonattainment NSR.
            The Clean Air Act 176A petition which is the subject of this public hearing identifies the states that are most significantly causing the ozone problem in the OTR.  The states were identified based on EPA modeling, the selection of which is supported even by EPA's most recent modeling.  And the proposed disapproval does not dispute this.
            Much of the area of the upwind states named in the petition implement a prevention of significant deterioration, or PSD, program instead of a nonattainment NSR program.  Under PSD, there is no emissions offset requirement.  As such, NSR is being implemented such that part of the area that is in the significant cause of the ozone problem is subject to an emission offset requirement and part is not.  This is problematic for several reasons.  The first problem is that upwind areas are allowed to increase emissions.  Under PSD, new major sources and modifications increasing emissions in an area is okay as long as air quality is not significantly deteriorated.  Under nonattainment NSR, the air quality is already bad and the program is designed so that there is an air quality benefit associated with the major source group.
            The basis and construct of nonattainment NSR is consistent with good air quality control policy, but by not applying it to the correct area, the air quality benefit is lost.  EPA approval of the petition would level the field relative to NSR, and the emissions would be decreased in the entire area that is significantly causing the problem.
            A second problem is that the area in which offsets can be generated is being inappropriately restrained.  The Clean Air Act allows areas in the OTR to obtain emissions offsets from another area in the OTR.  Establishing the OTR boundaries such that they encompass the area that is most significantly causing the ozone problem would align the area with science and remove the existing constraint on emission offset generation and use, which is not bounded in science.
            EPA is requesting comment on the proposed denial of the petition, not based on its merits but, rather, based on it not being EPA's preferred approach to addressing interstate transport with respect to the 2008 ozone NAAQS.  The proposed denial indicates the EPA preferred approach is the use of Clean Air Act Sections 110A(2)(d) and 110K.  The EPA is classifying the OTR as a tool, like these others, that they can choose to implement as they deem necessary.  The problem is that by denying the petition, the EPA is not choosing to use these other tools instead.  The EPA is really choosing to continue to use the OTR as a tool in part of an area and not other parts.  This is significant because the EPA approach is ignoring the inequities that they are propagating.
            Nonattainment NSR is a necessary minimum requirement that must be implemented in all states that are causing significant contribution to the OTR.  Nonattainment NSR is particularly important because of the offset market, which must be aligned with a scale of the problem.
            The EPA must grant this petition because it is technically sound.  It correctly identifies the states that significantly contribute to the nonattainment of petitioning states.  It is permissible under the Clean Air Act.  And it is an approach that will work.
            Delaware plans to provide the EPA with comprehensive written comments by the extended deadline in May.
            Thank you.
            MR. LING:  Thank you.
            Any questions?  All right.
            Mr. Mirzakhalili?
            MR. MIRZAKHALILI:  Thank you very much.
            Good morning.  My name is Ali Mirzakhalili.  It is spelled M-I-R-Z-A-K-H-A-L-I-L-I.  I am the director of the Air Quality Division for the State of Delaware.
            Thank you for holding the hearing.  And although we would have preferred that you held it in Wilmington, Delaware, we appreciate the opportunity to come here and speak with you.
            As EPA is well-aware, Delaware is located downwind of the states that the petition covers and suffers significantly from the collective pollution.  In fact, according to EPA's own modeling analysis, nearly 94 percent of Delaware's ozone pollution is attributable to emissions emanating outside of Delaware boundaries.
            Delaware has reduced its ozone precursor emissions of NOx and VOC by almost 70 percent each since 2008 at a significant cost to its economy.  EPA's approach to addressing transport has been to allocate the headroom that we have created to upwind states so they can pollute more.
            Section 176A of the Clean Air Act provides the administrator with the authority to develop interstate transport regions for particular pollutants where the administrator has reason to believe based on a petition by the governor of any state or on its own motion that interstate transport from one or more states contributes significantly to the violation of air quality standards in other states.
            There is little disagreement around the facts.  According to the Federal Register notice, the EPA does not dispute that the named upwind states in the petition significantly contribute to violations of the 2008 ozone NAAQS in one or more of the downwind states.  However, the EPA believes that it can fully and more effectively address the upwind states' impact on downwind ozone air quality through the use of other authorities available with the Clean Air Act and is citing this as a reasonable explanation for what it interprets as discretionary response to the petition.
            While Delaware fully supports the use of these alternative authorities, they will be insufficient on their own in the timeframe needed for certain states in the Ozone Transport Region to demonstrate attainment with the ozone national ambient air quality standards.
            Based on EPA's history of inaction, delay, and failure to adequately address transport, Delaware strongly urges the agency to reconsider this proposed denial and allow for provisions in the Clean Air Act that call for the states to address their own air quality needs to prevail.  The EPA believes that the Clean Air Act Section 110 and 126 provide better alternative pathways for addressing transport, but the history tells us otherwise.
            Delaware has fought five separate petitions under Section 126 of the Clean Air Act, dating back to December of 2008.  In every instance, EPA has granted itself six months of extension and then has failed to take any additional action.  If this were a serious remedy, we would have had better results.
            States have been left with no recourse but judicial channels to force EPA to fulfill its obligation to address transport.  It is rather disingenuous for EPA to lead states down this path when it has historically not taken any action in response.  This is not a serious remedy and one that does not pass a test to be considered a reasonable explanation for denying the petition.
            The EPA also cites 110A(2)(d)(ii) as a more suitable remedy, but here again the history tells us otherwise.  Even though the good neighbor state implementation plans under the 2008 ozone standards were due by 2011, to fully mitigate significant contribution, the EPA just recently promulgated FIPs to only partially address those requirements.  This is nine years after the promulgation of the NAAQS and 4 years after the time most areas were required to come into attainment.  The EPA has lost the concept of attainment of NAAQS as expeditiously has practicable.
            Expansion of the Ozone Transport Region, as requested, would expeditiously lead to attainment because it positions the states to work cooperatively together to resolve what is a regional problem with transported pollution within those states.  It is unacceptable for EPA to fail to take action authorized by the Clean Air Act that would expeditiously lead to attainment.
            Two of the petitioning states failed to attain the 2008 ozone NAAQS by the attainment deadline.  And projection modeling by EPA and the states show that attainment in 2018 is unlikely.  EPA has justified its denial based on other actions it has taken to address transport, but EPA is aware those actions will not alleviate significant contribution sufficient to meet current attainment deadlines in downwind nonattainment areas.  This justification falls short, and EPA should grant the petition, as requested.
            Let me be perfectly clear.  The EPA cannot selectively choose to not use a perfectly appropriate tool provided in the Clean Air Act to address a lingering public health issue by merely stating that other provisions are preferable.  As I stated earlier, the EPA has an abysmal track record responding to Section 126 petitions.  So that the option cannot be reasonably construed as viable or realistic.
            The cross-state air pollution rule, which EPA considers to be their silver bullet, is deficient because it is only a partial remedy and is also, yet again, under litigation.  Given all of the uncertainty surrounding cross-state rule, it cannot be reasonably considered a reliable option.  EPA's refusal to use every appropriate tool in the toolbox has resulted in delaying attainment, contrary to the clear goals of the Clean Air Act, which is attaining the standard and as expeditiously as practicable before the deadline.
            I appreciate the opportunity to speak and answer any questions.  Thank you.
            MR. LING:  Any questions?  No, no questions.
            Thank you both very much.
            We have one more speaker before we adjourn for lunch.  So I will call her up:  Christina Archer.  Feel free to start whenever you are ready.
            MS. ARCHER:  Good morning.  My name is Christina Archer, A-R-C-H-E-R.  I am a professor at the University of Delaware.  My intervention today is in support of the approval of the 176A petition.
            My team at the University of Delaware studies air quality issues in Delaware and the Mid-Atlantic using advanced numerical simulations.  In my intervention today, I want to describe five relevant findings about the transport of ozone precursors into Delaware.  Here is the first one.
            Number one, five upwind states, specifically Maryland, Pennsylvania, Virginia, Ohio, and West Virginia, contribute to Delaware ozone more than Delaware itself.
            Finding number two, at least Ohio and West Virginia should be included in the OTR, at least those two.
            Finding number three, reducing Delaware emissions does not -- I repeat, does not -- reduce Delaware ozone.
            Number four, reducing upwind states' emissions is the only way to reduce Delaware ozone.
            And, finally, small emission reductions over all upwind states are actually more beneficial to Delaware than large emission reductions over individual states.
            So our study indicates that the only way to improve air quality in Delaware is through a joint effort by upwind states, including at least two additional states, Ohio and West Virginia, which are not currently in the Ozone Transport Region, or OTR.  And they have to reduce emissions by at least 10 percent.
            So these are the five findings in summary.  Now I am going to tell you some details about them.  So about the first finding, it is actually a finding by EPA itself, as Ali explained earlier.  So in September 2016, EPA produced a report in which you guys indicated that the five states that contribute to Delaware's ozone the most are Maryland, by 19 percent -- again, 19 percent of the ozone in Delaware comes from Maryland, 19, a 5th of it -- Pennsylvania, 10 percent; Virginia, 6; Ohio, 5; and West Virginia, 4.  Delaware alone contributes 3.7.
            The EPA study was based on simulations with the model CAMEX, comprehensive air quality model with extensions, with 2011 emission inventory projected to the year 2017 and with the 2011 meteorology previously generated with the model called WRF, W-R-F.
            EPA used an advanced method called ozone source apportionment technique, or OSAT, in CAMEX to quantify the contribution of each state to the projected 2017 ozone concentration.  They looked at the entire period of the summer, between May and September.  So this was an EPA study.
            My team at the University of Delaware confirms basically the same findings as the EPA study, but we conducted simulations with the same model but just focusing on the period of June 7 to 9, which was a period in which ozone levels were the highest in Delaware.  So this is our base case, basically.
            We conducted a detailed model performance evaluation to examine the ability of our modeling platform to reproduce the 2011 measured concentrations.  And we were extremely satisfied with the results.  Basically, the simulation produced error statistics that were very close to the ranges in other peer-reviewed papers.
            We also performed the same technique as EPA did, this OSAT technique, on the Eastern half of the United States for the June 7 to 9, 2011 episode.  And we actually obtained the exact same ranking of the five upwind states in terms of contribution to Delaware ozone.  So those five states are the biggest contributors, whether you look at the entire summer or whether you look at the worst ozone episode in Delaware.
            In terms of finding number three, reducing Delaware's emission does not reduce Delaware's ozone, how did we do this?  We basically performed the same simulation that we did for the base case, but now we reduced the emissions, the local emissions, by 20 percent.  We did this in the Philadelphia nonattainment region.  So wipe out 20 percent of the emissions of NOx and VOC in the local region.  And guess what?  Ozone in Delaware doesn't improve a bit, not in any significant way.  And you can look at figure 3 in the document if you want to see some details.
            By comparison, we reduced by 20 percent the emissions of the OTR region states as well as Ohio and West Virginia.  And we actually reduced, finally, A concentration of ozone in Delaware by anything between 0.5 and 1.3 PPBs on average.  The ranges can be higher on a day-to-day basis.  And you can see it in table 1.
            If you compare again Philadelphia nonattainment region, we improved by 0.1 PPB, basically nothing; and the other states, anything between 0.l5 and 1.3.
            Finally, last finding, we now reduced by 10 percent, not 20, half as much, 10 percent, the emissions of ozone precursors, but now in all the 5 upwind states together.  So before we reduced 1 state at a time by 20 percent, now altogether by 10.  And we actually found the best benefit to Delaware.
            So work is in progress right now to identify if there is an optimal mix that will get better results, but so far that is all I have.
            Thank you.
            MR. LING:  Any questions?  I have one question.  Your second point about at least Ohio and West Virginia should be in, as I understand, the basis for that -- I just want to clarify this is right -- is of the five states that contribute more than Delaware, those are the two that are not already in the OTR.
            MS. ARCHER:  Correct.
            MR. LING:  Okay.  So the metric for at least including them was more than Delaware?
            MS. ARCHER:  Yes.  Thank you.
            MR. LING:  Okay.  Thank you.
            MS. ARCHER:  Very good.
            MR. LING:  All right.  Thank you very much.  We will adjourn the hearing now for a lunch break.  We will convene at 1:00 or maybe a little bit thereafter.  I will just note that there is not currently a speaker scheduled until 1:35.  And so, actually, what I think we will do is we will have people outside at 1:00.  But unless there is someone who wants to speak right at 1:00, we will reconvene the hearing closer to 1:30, when we have our next scheduled speaker.  So it is a little uncertain, but that is my best recommendation is in the event that someone who is not registered comes to speak between 1:00 and 1:30, if you want to hear them, you should be here.  But in the event that no one shows up, then we have the first scheduled speaker at 1:30.  Okay?  Thank you very much.
            (A luncheon recess was taken.)
                       A F T E R N O O N  S E S S I O N
            MR. LING:  We are going to convene the afternoon session of the public hearing on the 176A petition.  I will do a shortened version of the opening statement that I gave this morning at the beginning of the hearing just for folks who may only have come for the afternoon session.
            So I want to thank everybody for attending once again.  My name is Michael Ling, and I am the associate director of the Air Quality Policy Division in EPA's Office of Air Quality Planning and Standards.  Joining me on the panel are Stephanie Hogan of the Office of General Counsel and Amber Iglesias of the Office of Air Quality Planning and Standards.
            So the purpose of today's hearing is to take comment on the EPA's proposed response to a petition filed under 176A which addresses the expansion of the Ozone Transport Region.  The petition is from the States of Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island, and Vermont.  And it requests that EPA add the States of Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, West Virginia, and the remainder of Virginia to the Ozone Transport Region to address ozone transport for the 2008 ozone NAAQS.
            I am not going to summarize the proposal.  I summarized it briefly this morning.  And it is available, copies are available, I believe, outside.  And if not, they are certainly available in the Federal Register and on EPA's website.
            Today we are here to listen to oral testimony, but there is also an opportunity to provide written testimony.  And that written opportunity for comments will remain open until May 15th of 2017 in light of the reschedule of this hearing because of the snowstorm.
            So just basic ground rules.  We will be accepting oral comments.  I will call up speakers in pairs or in this case, we only have one speaker.  So I will call him up shortly.  It would be helpful to state your name and your affiliation.  And it would also help the court reporter if you spell your name.  We are asking that you limit testimony to five minutes each.  And the panel members may ask clarifying questions.  If you have brought a written transcript of your testimony and want us to put that into the docket, you can give a coy to me or to the staff at the registration table.
            We are using a timekeeping system.  When the yellow light comes on, you will have one minute left to speak.  And so I will ask you to wrap up.  The red light will come on one minute after that.  And I will ask you to wrap up at that point.
            So I think those are the highlights.  And so, without further ado, I will call our first afternoon speaker:  Tad Aburn.  Okay.  Thank you.
            MR. ABURN:  I could talk for a couple of hours.
            MR. LING:  It wouldn't be fair to everybody this morning who wanted to talk for a couple of hours.
            MR. ABURN:  So I guess you could also say that I guess the last word on this.  Is that sort of a -- so, again, my name is Tad Aburn.  I am the air director with the Maryland Department of the Environment.  I appreciate this opportunity to come testify on this important issue.
            In the handed-out version of this, I just repeat everything Michael just said about who submitted the petition, who the petition was against.  So I will not repeat all of that.  I will get into the rest of the stuff.
            One of the things Maryland is well-known for is our research program.  It has been something I have been working on for 30 years.  It involves University of Maryland, two different branches; Penn State University; NASA; other local universities; Howard University.  It has been a highly effective effort.  We fly airplanes.  We use radar profilers.  We have ozone sound balloons.  We invest about $500,000 a year on our research program.
            One of the things, forget the models.  What the data says is that the ozone pollution that Maryland records in its ground-level ozone monitors, about 70 percent of it is coming from areas outside of Maryland, no models, just measured hard data.  We actually fly airplanes and launch balloons on all the bad ozone days.  We literally measure incoming ozone coming into Maryland on many days.  It is already at a 70 part per billion level.  It doesn't give us a lot of room for error in terms of local controls.  Modeling that has been done by EPA has already shown that the states that we are asking be added to the Ozone Transport Region are significantly contributing to Maryland's ozone.  Our analysis, our own modeling analysis, shows that when these states add the same type of controls that are already in place in the Ozone Transport Commission states, that that would allow Maryland to actually attain the 2008 standard and to come very close to being in attainment for the 2015 standard.
            So in EPA's proposed denial, EPA argued that there are other tools in the Clean Air Act that allow you all to take care of transport.  We do not disagree with that.  What we will note is that that is only true if those provisions are actually used.  So a little history.
            An earlier 126 petition Maryland submitted over 10 years ago was denied; denied Maryland's request to establish a very large transport-related nonattainment area for the 2008 standard; denied Maryland's request to require large, significantly contributing upwind power plants that are already subject to RACT to actually run those controls.  Yes, EPA has actually determined that it is okay for sources to buy controls and not run the controls and that is okay for purposes of RACT.  EPA rejected Maryland's comments to require daily power plant limits in the CSPAR update rule; ignored our recommendations on how to implement a full remedy, a full solution for the 2008 standard under the CSPAR update rule.  And, unfortunately, we are in a position where we think EPA will deny a 126 petition that we submitted in November of 2016 that is scheduled for action in July, but given the history of this, very simple petition.  It identifies the 36 most significantly contributing power plants that have stopped running their pollution controls.  And it simply asks EPA to require these power plants to run their controls every single day.  Controls are already bought.  Just run them.  Very simple.  We actually expect that to be denied.
            And all of this has taken place, all of these denials and rejections have taken place, during a period where we are measuring incoming ozone that is already at around 70 parts per billion.
            So it is not just about MDE.  It is about our citizens.  And this long record of failure has led to millions of Marylanders breathing unhealthy air for quite a long time, despite the state's aggressive efforts to implement more and more control programs in our own state.
            Asthma rates in Maryland, on some parts of Maryland, are amongst the worst in the country.  It is a really important issue, and our citizens deserve better.  It has also become an important issue because the way the Clean Air Act works, we have to continue to implement more and more local regulations.  And so it is having a significant impact on our economic development activities and our job creation activities.  So not only do we have the public health concerns, we have the economic development and job creation concerns.
            Some of the things that we have done in Maryland, we have adopted hundreds, if not thousands, of regulations to control VOCs and NOx for ozone.  I can point to virtually everything in this room and say how we would regulate it in Maryland.  Two thousand six, we adopted the Maryland Healthy Air Act, drove dramatic reductions in NOx, dramatic reductions in SO2, over $2.6 billion just in Maryland power plants invested.  Two thousand seven, we adopted the Maryland Clean Cars program, which requires that the vehicles that are sold in Maryland be the cleanest allowed by law, opts us into the California car program.  We also adopted an additional round of NOx controls in 2015 to deal with smaller units and units actually this rule in -- in 2012, we saw our units stop using their controls because they were meeting ozone season caps without running them all the time.  So this rule literally requires sources to run their controls every single day.  It also requires a phase 2, where some of our units that don't have SERs are required to either shut down, convert to natural gas, or add an SER by 2020.
            So in Maryland, we have become very used to implementing regulations that have a $5,000 per ton cost attached to them.  That is sort of business as usual in Maryland, $3,000 to $5,000 a ton.
            So the things that we see that other states could do are generally in the upwind states that are not part of the Ozone Transport Region come at a cost as low as $500 to $1,000 per ton.  They not only are less expensive.  We have seen in our measured data and our modeling that they actually give us more ozone benefit as well.
            Adding the nine new states to the OTC is really important because it would require those states to work collaboratively with the other states to help solve the problem.  We really think that is important.  The OTC partnership is a proven partnership.  We tried to work with states outside of the OTC.  The most recent effort didn't work real well.  We had about a year-and-a-half process, but because it was an unlevel playing field, it just didn't work.  We feel very strongly that for a collaboration to work, all of the states that are at the table have to have skin in the game and have a reason to be there.
            We also think that some of the more mandatory requirements of being in the Ozone Transport Region make a tremendous amount of policy and scientific sense.  The big three, if you look at them, there is literally no reason that any large stationary source of NOx should not have reasonable controls on in 2017.  The RACT requirement that comes with being part of the OTR is a practical, common-sense thing that just makes a ton of sense.
            New source review, there is virtually n o scientific justification for saying new source review should not be implemented at a much larger area of influence, including attainment areas and nonattainment areas.  It is all part of the Clean Air Act that just doesn't really make sense anymore.  So having new source review be part of a requirement for a larger OTR we think makes a lot of sense.
            And the third one, which was -- I go back to the `90s.  So I remember the days of the original I&M implementation.  But the whole inspection and maintenance program is such a different animal these days.  It is no longer the nightmare of the early `90s with onboard diagnostics.  It is really a pretty simple, straightforward program and really gives us very little problems these days.
            So based on EPA's history of delay and failure to adequately address transport, we believe you should reconsider your proposed denial of the December 9th, 2013 176A petition.  Then, consistent with that process, EPA should require the expanded set of states to actively participate in the collaborative process and the strategy development process to identify and implement solutions to reduce ozone transport.
            Up to this point, from Maryland's perspective, EPA's alternative approaches in the Clean Air Act to deal with transport have only been partially successful or have not worked at all.  EPA's own modeling shows that Maryland will continue to have difficulty complying with both the 2008 and the 2015 standards.  What that basically means is that we are in a position where we will continue to have our residents breathing unhealthy air and our businesses being at an economic disadvantage because the local controls just aren't doing it nowadays.
            So, in closing, I urge EPA to reverse the proposed decision and to grant the 176A petition.  From our perspective, the most likely way we will solve the ozone problem is through a collaborative process where the states are working together to find common solutions and we move forward to do that.  Our experience is that a collaborative process without a level playing field will simply not work.  An expanded Ozone Transport Region that requires all of the contributing states to come to the table and negotiate in good faith we believe will work.  We think it really will help us move to solve not only the 2008 but the 2015 ozone standard.  So we ask EPA to do the right thing and reverse its decision.
            And, again, I thank you all for letting me come to testify today.
            MR. LING:  Thank you.
            Any questions?  I have one question.  You mentioned a $5,000-per-ton figure for Maryland.  Is that a general average across pollutants or is that specifically for NOx and VOCs?
            MR. ABURN:  That is our most recent VOC regulation.  We still regulate VOCs.  Believe it or not, we still see a need to regulate VOCs.  So that comes from our most recent rule adoption.  Our consumer product regulations come in about $5,000 per ton.
            MR. LING:  Do you have a similar figure for what Maryland has historically done for NOx?
            MR. ABURN:  NOx is lower, but it is around $1,500.
            MR. LING:  Fifteen?  Okay.  Thank you very much.
            Anything else?
            MR. ABURN:  Thank you, guys.
            MR. LING:  All right.  Thanks.
            Okay.  With that and given that there are no more speakers left registered or signed up, what I am going to do is I am actually going to adjourn the hearing, but I am going to note that we will open the hearing if after the last registered speaker, someone else comes to sign up within two hours.  So what that, practically speaking, means is that someone who is running the hearing will remain here for two hours in case anyone else comes to speak, but unless that happens, the hearing is adjourned.  So thanks, everybody.
            (Whereupon, at 1:40 p.m., the meeting was adjourned.)