Joe Barton

Mr. BARTON of Texas

Mr. BARTON of Texas. Mr. Speaker, will the gentlewoman yield?

Mr. BARTON of Texas. If we had a finalized version of the text, I would certainly share it with the gentleman. We do not yet have a finalized version. I can tell the gentleman the substance of it and would be happy to do that; but I myself do not have a hard copy of it because we have not finalized the negotiations with the other body.

Mr. BARTON of Texas. Mr. Speaker, I yield myself such time as I may consume. I do not want to belabor the debate. Let me just in summary, before the gentlewoman closes, point out that while the gentlewoman is from the Dallas-Fort Worth area, and I am also, this is not a local Dallas- Fort Worth issue. These court cases were brought in three different circuit courts, one of which is the District of Columbia here in Washington, D.C., the 5th circuit and the 7th circuit. So this is a national issue. Regions that are affected immediately by these court cases do include the Beaumont-Port Arthur area, Dallas-Fort Worth area. So there are two areas in Texas but we also have St. Louis, Missouri; Atlanta, Georgia; Washington, D.C.; greater Connecticut; and Baton Rouge, Louisiana. Those are the cases that we know of, the State implementation plans that were pending that have been stayed by these are affected by these court rulings. So this is not just a Texas issue or just a Dallas-Fort Worth issue. This is a national issue. The second thing that I would point out is that we are not affecting the standard, the national standard of 120 parts per billion, but let me say on that, when the gentlewoman from Dallas indicates that she has constituents that are affected by ozone and, as she called it, by the dirty area, so do I. I am slightly asthmatic. My son is, I would say, moderately to severely asthmatic. I have done a lot on the floor of this body to try to help asthmatics. I am the cofounder, along with Senator Kennedy in the other body and the gentlewoman from New York (Mrs. Lowey), of Asthma Awareness Day. Back before it was politically correct to be talking about asthma, in some earlier Congresses, I was one of the handful of sponsors of the Asthma Act back in the 105th Congress. I was one of only three sponsors of H.R. 4654. In the 106th Congress, I was one of only four sponsors of H.R. 1965. I am still a leader of the Asthma Awareness Day that we have had every year in the Congress for the last 8 years I think. So we are not trying to say it is not a problem, but there are some people in our society, when they set these standards for ozone, that we could take ozone to background levels, five parts per billion, six parts per billion like we have in Atlanta, Georgia, and there would still be some asthmatics that were negatively affected. The other pollutants that are regulated under the Clean Air Act, in every case there was some sort of a bright line test, and again, it is not the different categories. It is yes or no. For lead, yes or no. For SO2, yes or no. For NOx, yes or no. But for ozone, it is not a yes or no, and there is wide scientific debate about where to set the standard. Having said that, we could set the standard at a level that only the Supreme Being of the universe could meet, and we would still have some people that would be negatively affected. So when we get into the debate about parts per billion and number of days they are out of compliance, 3 days in a 3-year period is okay, but 4 days in a 3-year period is not if they exceed it by one part per billion, then I think discretion is advisable, and I think flexibility is advisable. And I think the pending House position with the other body on the energy conference report is a very defensible, not only defensible, it is a very useful provision, and I would hope, if the gentlewoman insists on a record vote, that we would vote against her motion to instruct, not because it is not well-intentioned, not because she is not well- meaning, but because it actually would, in many ways, I think, hurt the effort to clean the air because of the arbitrariness of the way the courts have ruled under the current Clean Air Act. Mr. Speaker, I yield back the balance of my time.

Mr. BARTON of Texas. Mr. Speaker, how much time do I have left?

Mr. BARTON of Texas. Mr. Speaker, if she is about to close, I have some more comments, and she does have the right to close. Would she allow me to speak and then she could close the debate?

Mr. BARTON of Texas. Reclaiming my time, Mr. Speaker, I want to comment on what might happen if a region is not granted an extension. The courts have ruled in these court cases that if the EPA is not allowed to give some discretion in terms of meeting the timeline and if that region does not look like it is going to be in compliance, it is automatically bumped up to the next highest attainment, nonattainment category. There are five nonattainment categories in the Clean Air Act. The least nonattainment is called marginal. Their design parameter is between 121 parts per billion for ozone and 138 parts per billion. You go to moderate which is 138 parts per billion to 160. You go to serious .160 to .180. And you go to severe which is 180 parts per billion to 190 parts per billion, and anything above that is extreme. And if you do not have the flexibility to give an extension, and if the region cannot show that it will be in compliance by that specific deadline, EPA has to bump them up in the next higher nonattainment area. And we might ask ourselves, well, so what? So we are bumped up from serious to severe, from moderate to serious. No big deal. Well, it actually is a big deal because as we go into the more severe nonattainment criteria, the things that have to be done, there is no discretion on that. For example, if you apply for a permit to perhaps build a new factory to provide new jobs, you have to show that there is a two to one offset. In other words, you have to shut down two tons of pollution for each new ton that the new factory would provide. You almost bring to a halt any highway funding in the area. And in the DFW area that the gentlewoman and I share representation with, those highway funds on an annual basis or order of magnitude are around $600 million just in Dallas and Tarrant County. Any new source that is over 25 tons per year has to get a special permit, and 25 tons per year is not a large amount of emissions. And it is possible that the Federal Government can come in and just take over the entire State implementation. Now, there are some that may think that those are all well and good; but most of this body I would postulate would say, would it not be better to give the region some flexibility to ask for an extension and would it not be better to give the EPA the authority if they felt it was in order to give the extension. That is the question. And again, we are not changing the standards; we are not changing the 125 part per billion standard for ozone. We are not maintaining that at all. We are not changing the criteria for being classified from marginal to extreme. We are not changing that at all. We are not changing the general attainment dates that go back in the statute to 1990. We are simply saying flexibility and discretion are a good thing, not a bad thing. Mr. Speaker, I reserve the balance of my time.

Mr. BARTON of Texas. Let me call a time out if that is possible. It does not require additional implementation control measures, but it would require that they could file an addendum to the SIP that would do that.

Mr. BARTON of Texas. Mr. Speaker, I yield to the gentlewoman from Texas (Ms. Eddie Bernice Johnson).

Mr. BARTON of Texas. Mr. Speaker, this policy built upon the 1994 statutory interpretation memorandum that we have just put into the Record. And it indicated that the EPA considered its bump-up policy to be a fair reading of the act. Now, what happened after this 1994 memorandum and the 1998 Federal Register, no Member of Congress complained about that. There was no group of citizens that came to the Congress and complained about the Clinton administration proposal. But what did happen was that in 2002, the Sierra Club filed three different lawsuits in three different regions, one of them here in the D.C. Circuit, one in the 5th Circuit, and one in the 7th Circuit, and they really did not argue against the policy of flexibility. They simply said the Clean Air Act did not give the EPA that authority. It was a very technical argument. And, to their credit, the Sierra Club's argument was upheld by the courts. The courts said, ``We have read the Clean Air Act and it is ambiguous. And since it is ambiguous, we have to say no to flexibility because it does not explicitly state there can be flexibility.'' That was in 2002. Those were lawsuits filed by the Sierra Club that went to court. So we now fast forward to 2003. The gentleman from Louisiana (Mr. Tauzin), the distinguished chairman of the full committee, and the gentleman from Michigan (Mr. Upton), a member of the Committee on Energy and Commerce, all worked with me and other members of the committee on a bipartisan basis. We passed the most comprehensive energy legislation this Congress has seen back in April, April 11, I believe, on the floor of the House. We, at that time, had not had time to study the effect of the court ruling. We had not had time to put together a hearing on this issue. But we did in July. In July we had a hearing in my subcommittee. We had a number of witnesses testify, and, with one or two exceptions, everybody who testified said this policy of flexibility is a good idea. We should allow it. Democrats, my good friend from Houston, the gentleman from Texas (Mr. Green), my friend from Beaumont, the gentleman from Texas (Mr. Lampson), my friend from Crockett, the gentleman from Texas (Mr. Turner), they all came and brought some of their constituents who testify or put testimony into the Record that said flexibility is good. So as we went to conference with the other body, after consultation with the minority leadership of the Committee on Energy and Commerce, we put this in. Mr. Speaker, I yield to the gentlewoman from Texas (Ms. Eddie Bernice Johnson).

Mr. BARTON of Texas. Mr. Speaker, I thank my good friend, the gentlewoman from Texas (Ms. Eddie Bernice Johnson), and I will continue to yield to her because I think we should have a dialogue, but what I am trying to point out is this is a commonsense policy that we have put in or are attempting to put into the energy conference with the other body. Because there is a lot of support for it and it gives the flexibility, if the local region needs it. Everything in it is based on a transport issue, and if the EPA says that it will help. That is all it does.

Mr. BARTON of Texas. Mr. Speaker, I will be happy to yield.

Mr. BARTON of Texas. Mr. Speaker, if I may reclaim my time to respond briefly. This is not about changing the goal post at all. The same standard is in effect. We are not changing the standard. We are simply saying if they are trying to comply, and one of the reasons they are not in technical compliance is because of an ozone transport issue outside of their control area, they have the flexibility to ask for an extension. And the EPA has the right to grant that extension. But if the EPA does, it cannot grant an extension that is any longer than in the noncompliant area that is causing the transport issue. Mr. Speaker, I yield to the gentleman from Michigan (Mr. Upton).

Mr. BARTON of Texas. Mr. Speaker, I will reserve the balance of my time.

Mr. BARTON of Texas. Mr. Speaker, could I inquire of the time on each side right now?

Mr. BARTON of Texas. Mr. Speaker, I would like to yield 2\1/2\ minutes to the gentleman from Houston, Texas, (Mr. Green), a member of the committee and the subcommittee.

Mr. BARTON of Texas. Mr. Speaker, I yield myself such time as I may consume. First, Mr. Speaker, I want to say I have nothing but the highest personal regard for the gentlewoman from Texas who is offering this motion to instruct conferees. She and I have served together in this body for, I think, approximately 11 years; and we have worked together on many, many issues and spent many, many moments together in very positive dialogue, and I appreciate her bringing this issue to the floor. My objection to the resolution is based on the policy, not on the person who is bringing the resolution. I do rise in opposition, respectfully, to the Johnson motion to instruct. To put it in the simplest terms, the issue before us today is not whether any Member of this body does not want the cleanest air possible for our citizens; the issue is whether we want to apply common sense to the Clean Air Act and to codify Clinton administration policy that was explicitly designed to avoid what the EPA, under the Clinton administration back in 1994, called an odd or even absurd result that penalizes an area for pollution that is beyond their ability to control. Let me put this in language that everybody can understand. The Clean Air Act amendments of 1990 categorized in a more definitive way ozone as a pollutant that needed to be regulated, and it set standards. It is the only pollutant in the act that has gradations of standards. For the other controlled pollutants, it is kind of an in or out, yes or no, pass or fail. But for ozone, it has different levels, from very moderate to very severe; and each of the levels has a different standard and a different timeline for compliance. I am an author of the Clean Air Act amendments. I spoke for them on the floor. I helped to work to put the bill together in the committee. So I have some personal history in this issue. As the Clean Air Act amendments of 1990 were being implemented, it became apparent that there were many regions of this country that were trying to comply; but because there were other areas down wind from them that had a different timetable and a different compliance criteria, it was making it difficult for some of these regions to comply in the technical sense with the act. So the Clinton administration came up with a proposal that said, we will show some flexibility. If, in fact, you have a State implementation plan that has been approved or is in the process of being approved and if, in fact, it looks like you are making a good-faith effort to come into compliance, we will give you an extension if we think it is meritorious and the reason that you need the extension is because there is another region that is not in compliance that is transporting their ozone pollution to you. That is common sense. There is nothing wrong with that. I want to put into the Record at this point in time, Mr. Speaker, the 1994 Clinton administration policy that was contained in a memorandum signed by then-Assistant Administrator for Air and Radiation, Mary Nichols. This memorandum attempted to reconcile the conflicting provisions of the Clean Air Act and to give effect to as much of Congress' manifest intent as possible. I also want to put into the Record the 1998 Clinton administration policy on this issue that was actually published in the Federal Register. Environmental Protection Agency Extension of Attainment Dates for Downwind Transport Areas Agency: Environmental Protection Agency (EPA). Action: Proposed interpretation; request for comments. Summary: Today's notice announces EPA's interpretation of the Clean Air Act (Act) regarding the possibility of extending attainment dates for ozone nonattainment areas that have been classified as moderate or serious for the 1-hour standard and which are downwind of areas that have interfered with their ability to demonstrate attainment by dates prescribed in the Act. The guidance memorandum that is being printed in today's notice is entitled ``Extension of Attainment Dates for Downwind Transport Areas'' and was signed by Richard D. Wilson, Acting Assistant Administrator for Air and Radiation, on July 16, 1998. This notice follows up on the statement made in the guidance memorandum that EPA would request comments on its interpretation. A number of areas may find themselves facing the prospect of being reclassified or ``bumped up'' to a higher classification in spite of the fact that pollution beyond their control contributes to the levels of ozone they experience. The notice addresses the problem by providing an avenue to extend the attainment dates for areas affected by transported pollution. The EPA intends to finalize the interpretation in this guidance only when it applies in the appropriate context of individual rulemakings addressing specific attainment demonstrations and requests for attainment date extensions. If EPA approves an area's attainment demonstration and attainment date extension request, the area would no longer be subject to bump up for failure to attain by its original attainment date. Dates: The EPA is establishing an informal 30-day comment period for today's notice, ending on [insert date 30 days after date of publication in the Federal Register]. Addresses: Documents relevant to this action are available for inspection at the Air and Radiation Docket and Information Center (6101), Attention: Docket No. A-98-47, US Environmental Protection Agency, 401 M Street, SW, Room M- 1500, Washington, DC 20460, telephone (202) 260-7548, between 8 a.m. and 4 p.m., Monday through Friday, excluding legal holidays. A reasonable fee may be charged for copying. Written comments should be submitted to this address. For Further Information Contact: Denise Gerth, Air Quality Strategies and Standards Division, Office of Air Quality Planning and Standards, US Environmental Protection Agency, MD-15, Research Triangle Park, NC 27711, telephone (919) 541- 5550. Supplementary Information: On July 16, 1998, the following guidance was issued by Richard Wilson, Acting Assistant Administrator for Air and Radiation. It should be noted that the July 16, 1998 memorandum reprinted in this notice refers to EPA's proposed NOx SIP call. After the memorandum was signed, EPA took final action on the SIP call and promulgated a final rule. See 63 FR 57356 (October 27, 1998). Guidance on extension of attainment dates for downwind transport areas Preface The purpose of this guidance is to set forth EPA's current views on the issues discussed herein. EPA intends soon to set out its interpretation in an advance notice of proposed rulemaking on which the Agency will take comment. While EPA intends to proceed under the guidance that it is setting out today, the Agency will finalize this interpretation only when it applies in the appropriate context of individual rulemakings addressing specific attainment demonstrations. At that time and in that context, judicial review of EPA's interpretation would be available. Introductory Summary A number of areas in the country that have been classified as moderate or serious nonattainment areas for the 1-hour ozone standard are affected by pollution transported from upwind areas. For these downwind areas, transport from upwind areas has interfered with their ability to demonstrate attainment by the dates prescribed in the Clean Air Act (Act). As a result, many of these areas find themselves facing the prospect of being reclassified, or ``bumped up,'' to a higher nonattainment classification in spite of the fact that pollution that is beyond their control contributes to the levels of ozone they experience. In the policy being issued today, EPA is addressing this problem by planning to extend the attainment date for an area that is affected by transport from either an upwind area with a later attainment date or an upwind area in another State that significantly contributes to downwind nonattainment, as long as the downwind area has adopted all necessary local measures, and has submitted an approvable attainment plan to EPA which includes those local measures. (By ``affected by transport,'' EPA means an area whose air quality is affected by transport from an upwind area to a degree that affects the area's ability to attain.) EPA intends to initiate rulemaking for each area seeking such relief and contemplates providing such relief to those who qualify. If after consideration of public comments EPA acts to approve an area's attainment demonstration and extend its attainment date, the area will no longer be subject to reclassification or ``bump-up'' for failure to attain by its otherwise applicable attainment date. Background The Act may be interpreted to allow a later attainment date than generally applicable to a particular ozone nonattainment area if transport of ozone or its precursors (nitrogen oxides (NOX) and volatile organic compounds (VOCs)) prevents timely attainment. This principle has already been advanced in EPA's Overwhelming Transport Policy, which allowed a downwind area to assume the later attainment date if it could meet certain criteria, including a demonstration that it would have attained ``but for'' transport from an upwind nonattainment area with a later attainment date. See Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, entitled, ``Ozone Attainment Dates for Areas Affected by Overwhelming Transport,'' September 1, 1994. In the four years since the issuance of that memorandum, the history of the efforts to analyze and control ozone transport has led EPA to believe that it should expand the policy's reach to ensure that downwind areas are not unjustly penalized as a result of transport. In March 1995, EPA called for a collaborative, Federal- State process for assessing the regional ozone transport problem and developing solutions, and the Ozone Transport Assessment Group (OTAG) was subsequently formed. See Memorandum from Mary D. Nichols, Assistant Administrator for Air and Radiation, entitled ``Ozone Attainment Demonstrations,'' March 2, 1995. The OTAG was an informal advisory committee with representatives from EPA, thirty- seven states in the Midwestern and eastern portions of the country, and industry and environmental groups. OTAG's major functions included developing computerized modeling analyses of the impact of various control measures on air quality levels throughout the region and making recommendations as to the appropriate ozone control strategy. Based on OTAG's modeling analyses, it developed recommendations concerning control strategies. These recommendations, issued in mid- 1997, called upon EPA to calculate the specific reductions needed from upwind areas. In November 1997, using OTAG's technical work, EPA issued a proposed NOX State implementation plan (SIP) call, directing certain States to revise their SIPs in order to satisfy section 110(a)(2)(D) by reducing emissions of NOX to specified levels, which in turn will reduce the amounts of ozone being transported into nonattainment areas from upwind areas. 62 FR 60318 (November 7, 1997). In July 1997, the EPA promulgated a revised 8-hour ozone NAAQS. 62 FR 38856 (July 18, 1997). That promulgation included regulations providing that the 1-hour NAAQS would be phased out, and would not longer apply to an area once EPA determined that the area had air quality meeting the 1-hour standard. 40 CFR section 50.9(b). Until the 1-hour standard is revoked for a particular area, the area must continue to implement the requirements aimed at attaining that standard. The Current Problem The Act called on areas classified as moderate ozone nonattainment areas to submit SIPs that demonstrate attainment by 1996 (unless they receive an extension), and called on serious nonattainment areas to demonstrate attainment by November 1999 (unless they receive an extension). Section 181 and 182(b) and (c). For many of these areas, EPA has preliminary determined in the proposed SIP call that transport from upwind areas is contributing to their nonattainment problems. Such transport also appears to be interfering with their ability to demonstrate attainment by the statutory attainment dates. The graduated control scheme in sections 181 and 182 of the Act expressed Congress's intent that areas be assigned varying attainment dates, depending upon the severity of the air quality problem they confront. Sections 181 and 182 provide for attainment ``as expeditiously as practicable,'' but establish later deadlines for attainment in more polluted areas, and additional control measures that the more polluted areas must accomplish over the longer time frame. Thus, many of the upwind areas have later attainment dates than the downwind areas which are affected by emissions from the upwind States. On the other hand, section 110(a)(2)(D)(i)(I) of the Act requires SIPs to prohibit ``consistent with the other provisions of [title I],'' emissions which will ``contribute significantly to nonattainment in . . . any other State.'' The EPA interprets section 110(a)(2)(A) to incorporate the same requirement in the case of intrastate transport. Sections 176A and 184 provide for regional ozone transport commissions that may recommend that EPA mandate additional regional control measures to allow areas to reach timely attainment in accordance with section 110(a)(2)(D)(i)(I). These provisions demonstrate Congressional intent that upwind areas be responsible for preventing interference with timely downwind attainment. They must be reconciled with express Congressional intent that more polluted areas be allotted additional time to attain. As EPA pointed out in its overwhelming transport policy, Congress does not explicitly address how these provisions are to be read together to resolve the circumstances where more polluted upwind areas interfere with timely attainment downwind, during the time provided for those upwind areas to reduce their own emissions. In the 1994 overwhelming transport policy, EPA stated that it would harmonize these provisions to avoid arguably absurd or odd results and to give effect to as much of Congress' manifest intent as possible. The EPA struck a balance in the overwhelming transport policy by requiring that the upwind and downwind areas reduce their contribution to the nonattainment problem while avoiding penalizing the downwind areas for failure to do the impossible. In the 1994 policy, EPA reasoned that Congress did not intend the section 110(a)(2)(D)(i)(I) obligation to supersede the practicable attainment deadlines and graduated control scheme in sections 181 and 182, especially since section 110(a)(2)(D)(i)(I) specifically applies only ``to the extent consistent with the provisions of (title I).'' The same rationale applies in the intrastate context under section 110(a)(2)(A). Developments since the issuance of the overwhelming transport policy in 1994 have prompted EPA once again to interpret these provisions so that they can be reconciled in light of existing circumstances. Since the issuance of that policy, EPA and the States, through OTAG, have made significant progress in addressing interstate transport in the eastern United States, and have worked to analyze the flow of transport and to allocate among the States their respective responsibilities for control. During the period required for this effort, which took longer than was anticipated, the resolution of the regional transport issue was held in abeyance. The effort to address regional transport recently resulted in EPA's proposed NOX SIP call, expected to be finalized in the next few months. For areas in the OTAG region affected by transport, the conclusion of the OTAG and SIP call processes in September 1998 will result in assignments of responsibility that will assist in the design of SIPs and the formation and implementation of attainment demonstrations. Because EPA had not previously determined how much to require upwind States in the OTAG region to reduce transport, downwind areas were handicapped in their ability to determine the amounts of emissions reductions needed to bring about attainment. While operating in this environment of uncertainty, many of these downwind areas confronted near- term attainment dates. Moreover, as described in the NOX SIP call proposal, the reductions from the proposed NOX SIP call will not likely be achieved until at least 2002, well after the attainment dates for many of the downwind nonattainment areas that depend on those reductions to help reach attainment. The Solution The EPA believes that a fair reading of the Act would allow it to take these circumstances into account to harmonize the attainment demonstration and attainment date requirements for downwind areas affected by transport both with the graduated attainment date scheme and the schedule for achieving reductions in emissions from upwind areas. Thus, EPA will consider extending the attainment date for an area that: (1) has been identified as a downwind area affected by transport from either an upwind area in the same State with a later attainment date or an upwind area in another State that significantly contributes to downwind nonattainment. (By ``affected by transport,'' EPA means an area whose air quality is affected by transport from an upwind area to a degree that affects the area's ability to attain); (2) has submitted an approvable attainment demonstration with any necessary, adopted local measures and with an attainment date that shows that it will attain the 1-hour standard no later than the date that the reductions are expected from upwind areas under the final NOX SIP call and/or the statutory attainment date for upwind nonattainment areas, i.e., assuming the boundary conditions reflecting those upwind reductions; (3) has adopted all applicable local measures required under the area's current classification and any additional measures necessary to demonstrate attainment, assuming the reductions occur as required in the upwind areas. (To meet section 182(c)(2)(B), serious areas would only need to achieve progress requirements until their original attainment date of November 15, 1999); (4) has provided that it will implement all adopted measures as expeditiously as practicable, but no later than the date by which the upwind reductions needed for attainment will be achieved. EPA contemplates that when it acts to approve such an area's attainment demonstration, it will, as necessary, extend that area's attainment date to a date appropriate for that area in light of the schedule for achieving the necessary upwind reductions. The area would no longer be subject to reclassification or ``bump-up'' for failure to attain by its original attainment date under section 181(b)(2). Legal Rationale The legal basis for EPA's interpretation of the attainment date requirements employs and updates the rationale invoked in the Agency's overwhelming transport policy. By filling a gap in the statutory framework, EPA's interpretation harmonizes the requirements of sections 181 and 182 with the Act's requirements (sections 110(a)(2)(D)(i)(I), 110(a)(2)(A), 176A and 184) on inter-area transport. It reconciles the principle that upwind areas are responsible for preventing interference with downwind attainment with the Congressional intent to provide longer attainment periods for areas with more intractable air pollution problems. It also takes into account the amount of time it will take to achieve emission reductions in upwind areas under the NOX SIP call, which EPA expects to finalize in September 1998. The EPA's resolution respects the intent of sections 181 and 182 to provide longer attainment dates for areas burdened with more onerous air pollution problems, while allowing reductions from upwind areas to benefit the downwind areas. Under EPA's interpretation, upwind areas will be required to reduce emissions to control transport, but should not find that the requirements imposed upon them amount to an acceleration of the time frames Congress envisioned for these areas in sections 181 and 182. Downwind areas will be provided additional time to accommodate the delayed control contributions from upwind areas, while at the same time being held accountable for all measures required to control local sources of pollution. The EPA's interpretation of the Act allows it to extend attainment dates only for those areas which are prevented from achieving timely attainment due to a demonstrated transport problem from upwind areas, and which submit attainment demonstrations and adopt local measures to address the pollution that is within local control. The EPA believes that Congress, had it addressed this issue, would not have intended downwind areas to be penalized by being forced to compensate for transported pollution by adopting measures that are more costly and onerous and/or which will become superfluous once upwind areas reduce their contribution to the pollution problem. This interpretation also recognizes that downwind areas in the OTAG region have been operating in a climate of uncertainty as to the allocation of responsibility for controlling transported pollution. Section 110(a)(2)(D) is not self-executing and, until the NOX SIP call rulemaking, downwind areas in the OTAG region could not determine what boundary conditions they should assume in preparing attainment demonstrations and determining the sufficiency of local controls to bring about attainment. By allowing these areas to assume the boundary conditions reflecting reductions set forth in the NOX SIP call and/or reductions from the requirements prescribed for upwind nonattainment areas under the Act, EPA will hold upwind areas responsible for reducing emissions of transported pollution, and downwind areas will be obligated to adopt and implement local controls that would bring about attainment but for the transported pollution. The EPA's interpretation harmonizes the disparate provisions of the Act. It avoids accelerating the obligations of the upwind States so that downwind States can meet earlier attainment dates, which would subvert Congressional intent to allow upwind areas with more severe pollution longer attainment time frames to attain the ozone standards. In addition, EPA's interpretation of the Act takes into account the fact that, under the SIP call, upwind area reductions will not be achieved until after the attainment dates for moderate and serious ozone nonattainment areas. To refuse to interpret the Act to accomplish this would unduly penalize downwind areas by requiring them to compensate for the transported pollution that will be dealt with by controls adopted in response to the requirements of the NOX SIP call or to achieve attainment in an upwind area. The EPA is thus interpreting the requirements to allow the Agency to grant an attainment date extension to areas that submit their attainment demonstrations and all adopted measures necessary locally to show attainment. This solution preserves the responsibility of these downwind areas to prepare attainment demonstrations and adopt measures, but does not penalize them for failing to achieve timely attainment by reclassifying them upwards, since such attainment was foreclosed by transport beyond their control. Under this policy, once EPA has acted to approve the attainment demonstration and extend the area's attainment date, the area would no longer be subject to reclassification or ``bump-up'' for failure to attain by its original attainment date under section 181(b)(2). The EPA requests comment on the interpretation in the guidance memorandum reprinted above. Robert Perciasepe, Assistant Administrator for Air and Radiation.

Mr. BARTON of Texas. Mr. Speaker, I yield myself such time as I may consume. Mr. Speaker, I would like to try to answer my good friend's question. Before I do that, I want to put into the Record the witness list for the subcommittee hearing on July 22, 2003, that I believe the gentleman from Maine (Mr. Allen) attended, if I am not mistaken. My recollection is that he was there. We had 10 witnesses headed by the Honorable Jeffrey Holmstead, who is the assistant administrator for the air and radiation office of the Environmental Protection Agency. We had nine witnesses that were State and local witnesses. We had a fair panel. Of the nine State and local witnesses, my recollection is that five or six supported this proposal and that three did not. There may be one of the six that I count as a supporter that was kind of 50/ 50 on it.

Mr. BARTON of Texas. What the pending proposal with the other body would do is simply and very narrowly in the States that are part of the agreement with the EPA on NOx, and there are 17 States, most of them east of the Mississippi, if those States have a State implementation plan approved or in the process of being approved and they can show that one of the reasons they may not be in compliance is because of ozone transport, they can ask for an extension. The EPA has the discretion to grant the extension; but if the EPA does grant the extension, it can only grant it forward to the compliant date where the ozone transport is originating from, if that makes sense. It is purely discretionary on asking for the extension. It is purely discretionary on granting the extension. The extension can only be granted for ozone transport. It is an attempt to codify the Clinton administration's proposal that was put in the Federal Register in 1998.

Mr. BARTON of Texas. I yield to the gentleman from Maine.

Mr. BARTON of Texas. Mr. Speaker, will the gentleman yield?

Mr. BARTON of Texas. Mr. Speaker, I know she has the right to close, but she made a characterization about my district, and at the appropriate time, I would like to respond to that. I do not mean to interrupt her, but if she would yield to me some time.

Mr. BARTON of Texas. Mr. Speaker, I will put into the Record data by the Texas Environmental Air Quality Commission that shows the monitoring in Ellis County has not exceeded one time the standard, not one time. Now, there are monitors in Arlington, Texas, that have, and that is also in my district, but if a reference is to Ellis County, the data shows that there have not been any exceedences. I do not know which part of my district she was referring to, but if it is Ellis County, we are okay in Ellis County. If it is part of Arlington that I represent, then we have had an exceedence. The data is for ozone exceedences in Dallas/Fort Worth area in 2002 and 2003 (through 10/28/2003). Measured values for Midlothian Tower C94/C158/C160 show 91 ppb on 15 May 2002, 86 ppb on 22 June 2002, 90 ppb on 23 June 2002, 85 ppb on 24 June 2002, 87 ppb on 8 July 2002, 88 ppb on 7 August 2002, 87 ppb on 8 August 2002, 99 ppb on 9 August 2002, 94 ppb on 11 September 2002, 86 ppb on 13 September 2002, 89 ppb on 28 May 2003, 86 ppb on 9 June 2003, and 89 ppb on 6 August 2003.

Mr. BARTON of Texas. Mr. Speaker, on that I demand the yeas and nays.

Joe Barton

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