Testimony of Chairman Barry R. McBee
Texas Natural Resource Conservation Commission
March 3, 1997

Thank you very much for inviting me here today to offer testimony on this vitally important issue for Oklahoma, for Texas and for all of our states.

For the record I need to clearly express that these are my personal comments as Chairman of the state's environmental agency, but not yet the official agency policy - a policy that will be voted on and finalized later next week.

Also for purposes of the record it is important to note that we in Texas felt it was important to solicit public input on these new proposed standards. In January and February we held nine public meetings across the state and heard from hundreds of citizens. In total, we received more than 2,200 comments.

Everyone in this room supports clean air . The good news is that ozone levels in our state are dropping and our standards and controls are having the desired impact. We in Texas, while making progress, have been waiting like other states for these new EPA standards to be announced, hopeful that they would be a clear mandate fully supported by the scientific community. That is not what happened.

It should not be too much to ask government, especially given the potential effects on families, business and industry and lifestyles and the staggering cost of many regulations, to adopt standards that are both clear and based on sound and complete science. With so much at stake, the federal government simply is not doing its job if these standards are not clear and not built on that basis.

Sadly, however, these proposals from EPA have not established the "bright line" about where the standards should be. And, in my opinion, there have to be bright lines for these standards. Instead, I - as an environmental policymaker in a state in which more than 18 million people live, and with untold billions of dollars at stake - am forced to make decisions in the midst of a gray area of science, where everyone agrees that nothing is certain and not enough is known. We don't have bright lines. At best we have only dim ones. We have educated guesswork - and for our citizens that is clearly not enough.

Some of you may be familiar with a recent study sponsored by EPA - a study which Texas was not notified about before it appeared on the Internet - that has increased the uncertainty about replacing the one-hour ozone standard with an eight-hour standard. The study seems to suggest that the one-hour standard would be more protective than the eight-hour standard in two cities, Houston and Los Angeles.

This has contributed to the atmosphere of confusion which already exists about this whole process. It clearly points out that we do not know as much as we think we do about ozone. Surprisingly, we do not know enough even about the two cities with the worst problems in the country. We have to know more.

Because of this, the EPA proposals on ozone and particulate matter should be separated. And in light of this new EPA study alone, it is not good public policy to act now to change the ozone standard. EPA was compelled by the courts to move on the particulate standard. That is not the case for ozone, but EPA chose to proceed at the same time. If more research is needed on ozone, we should do that now instead of prematurely altering a standard which, I will remind you, is working in Texas.

And yet another compelling reason to separate the issues is the cost to society of these new ozone standards which E.P.A.'s own studies have indicated will be significant.

This EPA study also points out another problem. If research shows that different areas of Texas should have different standards to protect their citizens, how can EPA still maintain that "one size fits all?" EPA in this study itself has pointed out that what is good for Dallas/Fort Worth may not be good for Houston - and the State of Texas should not therefore be forced to enact a state standard on top of the federal standard to fix what EPA refuses to fix. It should be clear that one size may not fit all, and that it may be time for a flexible, regional approach to clean air and air standards. It should be possible under EPA guidance for regions to select controls, based on research, that will do the most to clean up their air.

If, however, the EPA decides to move forward with its ozone proposal with a level of .08 ppm - perceiving that somehow as the bright line for the nation - please let me tell you that the line is in the wrong place. There is no consensus. EPA chose .08 even though the range of .08 to .09 ppm or higher was recommended by more of EPA's own Clean Air Science Advisory Committee members who expressed an opinion on a specific standard. And there is no toxicological study which shows more health protection from a .09 level than one of .08.

Given that, setting the allowable ozone level thus becomes a matter of public policy. And I believe the right policy decision is one that does not, as the .08 proposal does, boost the number of nonattainment areas in Texas from four to nine - more than any other state. That standard might not ever be attained by some areas, regardless of the level of controls. And all of this in the context of EPA's admission that we don't know what we thought we knew about ozone in the Houston area.

As I mentioned earlier, the levels of ozone in our state have seen a general decline. We can point to hard data, for example, that show ozone levels in the Dallas/Fort Worth nonattainment area are decreasing and that specific controls are working. But if the standard is changed in midstream, at what cost to DFW and other areas do we do so? And do we know that the new standard - given the uncertainties from studies like the one I've mentioned, from ongoing studies about ozone transport and other issues - will work better in DFW or any area in Texas? We do not.

On other aspects of the ozone proposal, I do believe that those areas that have worked hard for flexible attainment region status - including Tulsa, and two areas in my state, Corpus Christi and Longview/Tyler/Marshall, should be given time to let their strategies work.

In reference to the interim implementation policy proposal we support the following points: spatial averaging; the need for greater communication of ozone highs, especially to populations sensitive to ozone; and the need to have incentives for early emission reductions. And one final point, we need agreement that there is no need to keep working on the premise of a one-hour standard if this will be changing, so we should refocus our resources towards a new standard.

As for particulate matter, we have gone from ozone's dim line to no line at all. There are very few data on fine particulate matter and, based on what EPA is proposing, absolutely no data from monitoring in Texas. There does appear to be a growing body of evidence that there could be long-term health effects from fine particulate matter. But CASAC, which expressed concern about potential health effects, was not even close to a consensus on a standard; it expressed instead legitimate concerns and unanswered questions. What we have to do instead of setting a premature standard is speed up dramatically the federal research efforts, which CASAC and the Western Governors Association have called for, and only after that research has concluded decide on a standard, if any.

Also, I would ask members of this Committee to press for review of these proposals under the Small Business Regulatory Enforcement Fairness Act (SBREFA). Although EPA may say that the proper time for this review is at implementation of these standards, if and when that happens, that will not work. The standard will be implemented not by EPA but by the 50 states and at different paces.

Finally, in this time when our citizens expect fiscal responsibility and reject incomplete science, we should very carefully consider any legislation which does not require a very formal and careful assessment of actual costs compared to proven benefits. As in the case of these standards, citizens have every right to expect a bright line about sound science and costs vs. benefits, not educated guesswork.