Comments and Testimonies

Aug. 11, 2003

THESE COMMENTS ARE THE CLEAN AIR COUNCIL'S OFFICIAL RESPONSE TO THE PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION'S PROPOSED RECOMMENDATIONS TO THE U.S. EPA FOR 8 HOUR ATTAINMENT/NONATTAINMEMT AREAS.

Clean Air Council was founded in 1967 as a citizen-based, non-profit organization to address the growing environmental problems in Pennsylvania, especially their impact on air quality. The Council works through a combination of public education, community advocacy, and oversight of government enforcement of environmental laws to ensure that all residents of Pennsylvania live in a healthy environment. Responses to these comments should be sent to Joseph Otis Minott, Esq., Clean Air Council, 135 S. 19th Street, Suite 300, Philadelphia, Pa. 19103. Joe_minott@cleanair.org.

The Pennsylvania Department of Environmental Protection (DEP) is in the process of submitting attainment area designation recommendations to the United States Environmental Protection Agency (EPA) as part of several steps necessary to meet the Court-ordered April 2004 national deadline for completing the designations under the 1997 8-hour ozone health standards. DEP has sought and received a brief extension on its date to submit these recommendations to EPA in order to solicit public input and comment. Clean Air Council appreciates this opportunity.

Ozone (smog) is dangerous to all of us. It is particularly dangerous to children, whose developing lungs are more vulnerable to the pollutant. Ozone has also been recently tied to the onset of asthma, a respiratory disease with rates among children that have increased by 70% since 1980. Ozone is also a threat to the health of the elderly, and people with pre-existing respiratory and heart disease. In 2002, Pennsylvania recorded 570 exceedances of the 8-hour NAAQS for ozone.

As an organization advocating on public health issues, the Council finds it troubling that six years after EPA revised the ozone standard to 85 ppm over 8 hours, we are still only discussing designating attainment/non-attainment areas. This process is much too slow, and condemns too many Americans to living with unhealthful air quality for longer than necessary!

The Council acknowledges the great progress Pennsylvania has made in improving air quality. Yet, despite the steady progress over the last thirty years, the air quality in many parts of Pennsylvania remains a major public health threat. It is imperative, therefore, that DEP and EPA take very seriously their duty to implement the policies, rules and regulations required to attain and maintain the 8-hour ozone health standard.

Under §107(d)(1)(A) of the Clean Air Act, DEP must recommend designations of either nonattainment, attainment, or unclassifiable for all areas of the state and must designate as nonattainment "any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant." 42 U.S.C. § 7407(d)(1)(A)(i) (emphasis added).

EPA recommends that the Metropolitan Statistical Area or Consolidated Statistical Area (C/MSA) serve as the presumptive boundary for the 8-hour NAAQS. This was the approached used under the one-hour standard. The advantage of continuing this approach is that it is one that the public and elected officials are familiar with and should easily accept. Pennsylvania has a long history of elected officials involving themselves in a negative way with environmental policies or programs that they do not fully understand. In the past that has led elected leaders in Pennsylvania to block implementation of such programs and policies. That being said, it must be recognized that the C/MSA often do not conform to the reality of air pollution transport. EPA itself recognizes this in the establishment of eleven criteria in its March 28, 2000 guidance memorandum entitled: "Boundary Guidance on Air Quality Designations for the 8-hour Ozone National Ambient Air Quality Standard." (EPA 2000 Guidance) The guidance specifically suggests criteria that may be considered in designating a non-attainment region including commuting patterns, population density, monitoring data, traffic patterns, emission sources, topography and meteorology, pollution transport, and urbanization.

Pennsylvania, much like other states in the mid-Atlantic is both greatly impacted by ozone transport into Pennsylvania and greatly contributes to ozone transport into other states. While air pollution is often not confined to state boundaries, the Clean Air Act is primarily based on each state implementing its own programs to attain the NAAQS. Yet Pennsylvania cannot attain the 8-hour ozone standard on its own. Attaining the standard will not occur unless emissions are reduced from sources that are "upwind" of Pennsylvania non-attainment areas. This is also true for New Jersey. Much as Pennsylvania will look to states such as Ohio and Delaware to work cooperatively to reduce pollution coming into Pennsylvania, so too must Pennsylvania work cooperatively to reduce pollution coming from Pennsylvania into New Jersey and Northeastern states.

The Council commends DEP for abandoning its earlier proposal to designate certain areas as "transitional non-attainment." The Council strongly opposed creating this new designation. The Council believes that the designations now proposed by Pennsylvania have much more integrity and for the most part are deserving of EPA's approval. In reviewing DEP's proposed recommendation to EPA, it is clear that Pennsylvania has chosen to approach the creation of non-attainment areas conservatively. Pennsylvania demonstrates a strong preference for adhering to the C/MSAs developed for the 1-hour standard. This approach occasionally results in unusual designations, but for the most part raises few concerns.

Still, the Council would question why counties such as Berks and Lancaster stand alone. The Council urges Pennsylvania DEP to look carefully at the transport contribution of these stand-alone counties. If it is determined that such counties contribute to elevated ozone in downwind counties, such counties should be combined with the downwind counties into a larger non-attainment area. This is in accordance with EPA's guidance:

"In reducing ozone concentrations above the NAAQS, EPA believes it is
best to consider controls on sources over a larger area due to the pervasive
nature of ground level ozone and transport of ozone and its precursors."

EPA 2000 Guidance, p.3.

In particular, the growth in increasingly suburban York County since the last designation surely raises the likelihood that the ozone generated there is contributing to Lancaster County's non-attainment. It may be appropriate for the two to be joined in one non-attainment area. Likewise, continuing growth in Berks County may impact pollution transport sufficiently to justify its inclusion in the Allentown-Bethlehem non-attainment area.

New Jersey proposes a very ambitious approach for Pennsylvania. New Jersey suggests greatly expanding non-attainment area for Philadelphia and Southern/Central New Jersey. This non-attainment area in addition to the existing counties of the Chester, Montgomery, Bucks, Delaware, Philadelphia, Cumberland, Salem, Gloucester, Camden, Burlington, and Mercer, would now include York, Lancaster, Lehigh and Berks from Pennsylvania and Ocean County from New Jersey. There are two issues raised by this suggestion. The first is whether there is a strong rationale for including York, Lancaster, Lehigh and Berks Counties in the Philadelphia non-attainment area. The second is whether Ocean County should be transferred from its present location in the NY non-attainment area to the Philadelphia non-attainment area.

In the absence of a demonstration that the counties of York, Lancaster, Lehigh, and Berks significantly contribute to non-attainment in the Philadelphia-Wilmington-Trenton non-attainment area at this time, the Council believes it is appropriate for them to remain separate from the Philadelphia region. Until such a demonstration is made, the political and economic cost cannot be justified.

Clean Air Council also opposes including Ocean County in the Philadelphia non-attainment area. What is clear is that both Pennsylvania and New York seem eager not to include Ocean County in their non-attainment areas. A look at the data may explain why: Ocean County exceeded the NAAQS for the 8-hour ozone standard 30 times in 2002. The depth of the exceedances also makes the County unappealing from an air quality point of view. If modeling shows that Southeastern Pennsylvania contributes significantly to Ocean County's exceedances, then it might be logical to include the County in the Philadelphia non-attainment area. But the burden should be placed on New Jersey and New York to explain why there is a need to change the presumptive CMSA. Furthermore, New York's pitch to drop Ocean County from its non-attainment area rings hollow and appears to be opposed by some of the New England states. It appears on the surface that New York's request is not principled, but is being made in order to avoid implementing controls needed to address its own serious ozone problem.

The issue of what to do with Mercer County New Jersey is more ambiguous. The Council believes that Mercer County should remain part of the Philadelphia non-attainment area as it was under the 1-hour standard, unless a compelling case can be made for moving into the Northern New Jersey-New York non-attainment area. New Jersey has not made such a showing.

The Council supports keeping Cecil County, Maryland part of the Philadelphia area non-attainment area. The burden would be on any state wanting to move county of the Philadelphia non-attainment to make a strong showing as to why it should be moved. No state has made such a case.

The Council is particularly pleased to see recommendations for the western Pennsylvania area that includes both Pennsylvania and Ohio. It is well established that ozone and ozone precursors traveling into Western Pennsylvania are significant contributors to the region's ozone problems. This was true under the 1-hour standard and continues to be true under the 8-hour standard. The Council questions why more areas in Western Pennsylvania are not included in an Ohio-Pennsylvania non-attainment region. It appears from the data that reaching into Ohio to include a number of eastern Ohio counties into the Beaver Valley non-attainment area may have great merit. The Council would urge Pennsylvania to consider including those Ohio counties into such a non-attainment area or justify why it chose not to.

Finally, the Council was intrigued by Delaware's suggestion of a giant non-attainment area that would encompass most of the states covered under EPA's recent 110 NOx SIP call. Although there are several reasons such an arrangement would not necessarily be desirable, the point that upwind states must be made to work cooperatively with downwind states is a powerful one. The Council urges EPA to take stronger action on the issue of pollution transport!

The Council thanks Pennsylvania for this opportunity to submit comments on this very important issue.