MINUTES OF THE
SENATE COMMITTEE ON NATURAL RESOURCES
AND
ASSEMBLY COMMITTEE ON NATURAL RESOURCES, AGRICULTURE AND MINING
Sixty-seventh Session
April 21, 1993
The Joint Senate Committee on Natural Resources and Assembly Committee on Natural Resources, Agriculture and Mining was called to order by Speaker Joseph E. Dini, Jr., at 4:07 p.m., on Wednesday, April 21, 1993, in Room 119 of the Legislative Building, Carson City, Nevada. This meeting was teleconferenced to the Cashman Field Center, Room 207, in Las Vegas, Nevada. Exhibit A is the Meeting Agenda. Exhibit B is the Attendance Roster.
COMMITTEE MEMBERS PRESENT:
Senator R. Hal Smith, Chairman
Senator Ernest E. Adler
Senator Thomas J. Hickey
Senator Mark A. James
Senator Joseph M., Jr. Neal
Senator Dina Titus
Assemblyman Vivian L. Freeman, Chairman
Assemblyman John B. Regan, Vice Chairman
Assemblyman Marcia D. deBraga
Assemblyman P.M. Neighbors
Assemblyman Michael A. Schneider
COMMITTEE MEMBERS ABSENT:
Senator Dean A. Rhoads, Vice Chairman (Excused)
Assemblyman Douglas A. Bache
Assemblyman Robert M. Sader
Assemblyman Stephanie Smith
Assemblyman John C. Carpenter
Assemblyman Peter G. Ernaut
GUEST LEGISLATORS PRESENT:
Speaker Joseph E. Dini, Jr.
Assemblyman Louis A. Toomin
Assemblyman Gene W. Segerblom
Assemblyman Joan A. Lambert
STAFF MEMBERS PRESENT:
Caren Jenkins, Senior Research Analyst
Rayanne Francis, Senate Committee Secretary
Pat Menath, Assembly Committee Secretary
OTHERS PRESENT:
Gene Tierney, Chief of Inspection and Maintenance, Ann Arbor
Michigan Office, United States Environmental Protection Agency
Deborah Jordan, Section Chief, Operating Permit Section, Region
Nine, United States Environmental Protection Agency
Jackie Cummins, Research Analyst, National Conference of State
Legislatures
Kara Christenson, Assistant Regional Counsel, Region Nine,
United States Environmental Protection Agency
Speaker Joseph E. Dini, Jr. convened the meeting and welcomed those in attendance. Further comments by Speaker Dini is contained in Exhibit C.
Assemblyman Vivian L. Freeman, Chairman, Assembly Committee on Natural Resources, Agriculture and Mining, introduced herself to those in attendance. Assemblyman Freeman's testimony is contained in Exhibit D.
Senator R. Hal Smith, Chairman, Senate Committee on Natural Resources, introduced himself to those in attendance. Further comments by Senator Smith is contained in Exhibit E.
Jackie Cummins, Research Analyst, National Conference of State Legislatures (NCSL), introduced herself to those in attendance. She mentioned she hoped the meeting's presenters would address many of the concerns and questions voiced by the legislators.
Ms. Cummins introduced Kara Christenson, Assistant Regional Counsel, Region Nine, United States Environmental Protection Agency (EPA). She pointed out Ms. Christenson was familiar with the EPA's permit provisions and recommended that questions relative to these matters be directed to her.
Senator Smith explained it was his intention, as well as Assemblyman Freeman's, to limit questions to only those presented by assembly and senate committee members. He continued by saying, if time permitted, members of the audience could present questions to the panel at the end of the meeting.
Gene Tierney, Chief of Inspection and Maintenance, Ann Arbor Michigan Office, United States Environmental Protection Agency, introduced himself to those in attendance. He thanked members of the Nevada State Legislature, as well as the NCSL, for hosting the meeting on the federal Clean Air Act (CAA).
At this point, Mr. Tierney utilized an overhead projector to make his presentation (the contents of which are contained in Exhibit F). During his presentation, Mr. Tierney apologized to those in attendance for repeatedly using the acronym, "I/M." He explained he had been unable to break the habit of using this term when describing the various "inspection and maintenance" programs.
Mr. Tierney referred to an IM240 emissions test and explained this process measured particulates emitted from the tailpipe of a vehicle during a transient driving cycle. Instead of testing a vehicle at an idle speed or 2,500 rpm, he explained the driving wheels of a vehicle would be driven onto a dynomometer (a set of steel rollers set into the the floor of the test facility). The vehicle is then restrained and driven in place at a variety of speeds (acceleration, decceleration, idle, etc.) for a period of 4 minutes or 240 seconds, thus IM240. For the duration of this test, the fumes emitted from the tailpipe of the vehicle are captured and tested for particulate pollution.
Mr. Tierney summarized by stating the "basic test" operates on the premise of an idle test and 2-speed test, while the "enhanced test" utilizes more sophisticated equipment (such as a dynomometer). Accordingly, the resulting reductions in total mobile source emissions of carbon monoxide are relative to the type of test being utilized. For example, he stated the use of a basic test would result in a 10 percent, or less, reduction in carbon monoxide emission levels from mobile sources. Therefore, the use of the enhanced test would result in a 30 to 35 percent reduction in mobile source emission levels of carbon monoxide.
Assemblyman Freeman asked if the cost of a biennial emissions test was the same for the basic or enhanced program. Mr. Tierney replied by explaining the choice of program design in terms of frequency was based upon whether the program met the performance standard. He explained the basic I/M program could be performed on an annual or biennial testing. However, Mr. Tierney cautioned Assemblyman Freeman that it was crucial to consider how the loss of emission reductions would affect the air quality in Reno if that city were to switch from an annual to biennial I/M program. In circumstances such as these, he recommended that Reno pursue more sophisticated testing (on a biennial basis), or switch to a test-only system.
Based upon what he knew about Reno's air quality problems, Mr. Tierney recommended that the city seriously contemplate switching to a more sophisticated testing system. Considering the area's anticipated growth, he stressed a better I/M program would play a very large part in attaining the federal air quality standard by 1996.
Senator James inquired how the EPA determined whether one locality is in the enhanced or basic category based upon attainment or non-attainment. In reference to a newsletter published by the NCSL, entitled "State Legislative Report", he commented on the last paragraph of page 1 (Exhibit G). Senator James asked if the basic and enhanced programs were determined by utilization of ozone levels, or was carbon monoxide (and other particulates) taken into account. Mr. Tierney replied by saying the carbon monoxide levels, in both Reno and Las Vegas, were of concern to the EPA. He continued by explaining gasoline powered vehicles emit quite a few pollutants; hydrocarbons, carbon monoxide, oxides and nitrogen. Mr. Tierney also drew attention to the particulate matter emitted by diesel powered vehicles.
Mr. Tierney said the air quality problem needing attention in the State of Nevada, was the high level of carbon monoxide. He continued by saying the federal CAA established two classifica-tions for carbon monoxide non-attainment areas: 1) moderate; and 2) serious. He pointed out an area classified as "moderate" would have tested at 9 to 16 parts per million (ppm), and a "serious" area would have tested at over 16 ppm (page 6 of Exhibit G).
Mr. Tierney stressed that areas which were classified in the moderate range, but whose carbon monoxide levels testing at or exceeded 12.7 ppm, would be required to establish an enhanced I/M program. He commented that an area testing at or below 12.6 ppm would be allowed to conduct basic emissions testing. He continued by clarifying "attainment" defined as an area whose air quality was meeting the national ambient air quality standards. He continued by saying an area would be classified as a non-attainment area if its air quality was worse than the federal CAA standards.
Senator James asked if a particular classification was based upon a certain number of non-attainment. He continued by saying Reno was higher in elevation than Las Vegas, thus less pollutant resulted in worse air quality. In other words, higher elevations have less air so it would require a lesser amount of pollutant to put the area in a non-attainment category. He wondered if the geographical differences between Lake Tahoe, Reno and Las Vegas would be taken into consideration when the CAA was re-authorized. Mr. Tierney explained each region is allowed to exceed the federal air quality standards once each year.
Senator James said he was aware that some grace periods would be made available to various states regarding the operating permits program. He asked if the vehicle testing program would also be allowed a grace period. Mr. Tierney said he was not aware of any grace periods which might be allowed in the vehicle emissions testing arena. He said the implementation dates of January 1994 and January 1995 were to be enforced. Mr. Tierney said the CAA had originally required that the emissions testing programs be in place a year or two ago. However, he said the implementation dates had been delayed to accommodate many of the states that had been unable to attain compliance.
Prior to the conclusion of his presentation, Mr. Tierney drew attention to a letter, dated April 13, 1993, to the Governor of California, Pete Wilson Exhibit H.
Deborah Jordan, Section Chief, Operating Permit Section, Region Nine, United States Environmental Protection Agency, introduced herself to those in attendance. Ms. Jordan explained the operating permit program was the "lynch pin" of the Clean Air Act Amendments (CAAA) of 1990, with respect to stationary sources of air pollution. She clarified that compliance with this federal program is mandatory and said her presentation will discuss the consequences of not meeting the minimum requirements.
Ms. Jordan said she intended to explain the operating permit program in enough detail to give the legislators in attendance an understanding of the importance of submitting an approvable air quality program to the EPA in November, 1993. At this point, Ms. Jordan utilized an overhead projector for her presentation, the contents of which are contained in Exhibit I.
In reference to information contained on page 8 of Exhibit I, Senator Hickey asked if the mobile sources of air pollution are being included in the fee program. Ms. Jordan replied by explaining the program only addresses air pollution emitted by stationary sources, not mobile sources. Senator Hickey asked what EPA program dealt with mobile sources of air pollution. Specifically, he clarified he was interested in the mobile transportation of hazardous material emissions.
Mr. Tierney said he did not deal with hazardous material emissions. Ms. Jordan explained the federal CAA specifically separates the control of mobile sources from stationary sources. She concluded by stating the operating permit program does not address emissions from mobile sources.
Assemblyman Freeman wondered if there has been any discussions of federal grants to help the states implement the operating permit program. Since the CAAA had been enacted, Ms. Jordan explained the grants set forth in Section 105 allowed the EPA to grant states an additional allocation of money to develop this program. However, she stated that once a state's program has been developed, the EPA assumed it would be self-supporting.
Assemblyman Freeman asked what was the criteria the EPA utilized when determining the grant amount allocated to each state. Ms. Jordan said she was not sure what criteria was used for Section 105 grants. Mr. Tierney responded by saying he could answer Assemblyman Freeman's question in very general terms. He stated the criteria used would be the various programs each state and region would be faced with in the coming year. He continued by saying the grant monies were divided, based upon the number of new or revised programs to be implemented in the nation. Mr. Tierney apologized and said he was unable to go into more detail.
Assemblyman Freeman said she felt the federal program was placing an awful lot of responsibility on each state. She wondered what kind of assistance, if any, the State of Nevada could hope to receive from the federal government. Ms. Jordan replied by saying once a program was in place, the fee structure should cover all of the direct and indirect costs. She explained the Section 105 grant monies were only available to assist a state in the development of their permit program.
Ms. Cummins explained that, very shortly, she would be discussing some of the monies available through the highway bill that could be used to implement some of the mobile source air quality requirements.
Senator James asked Ms. Jordan if she could address the interim approval process. Ms. Jordan replied by saying interim approval of an operating permits program would be available to states whose programs were submitted and substantially met all of the regulation requirements of the EPA. She continued by stating the EPA is currently developing a policy statement with the definition of what "substantially meets" actually means. After a plan was submitted, she asserted each state would be entitled to an 18 month extension, during which time the state can bring their plan into full compliance with the EPA regulations. However, Ms. Jordan stressed she would not refer to the 18 month extension as a "grace period." She stressed the EPA only grants an 18 month extension if the state is fairly close to meeting all of the requirements.
Senator James said he was interested in knowing what the best choices would be for the State of Nevada with regard to the operating permit program. He referred to an article from a publication entitled, "Natural Resources & Environment" (Exhibit J). He explained this article mentioned interim approval was an attractive option to states which are in the midst of fiscal and budget crises. Senator James continued by saying the second basic option, listed on page 2 of Exhibit J, describes a "ramp up" approach which can be implemented quickly.
Senator James was curious about the interim approval approach, especially since Ms. Jordan had not mentioned this option during her presentation. He stressed this option would reduce the cost of implementing an operating permit program, and allow the state to "ramp up" over a longer period of time. Another advantage, he said, would be the ability to develop a better program due to the fact Nevada would have more time to meet the EPA's regulations.
Ms. Jordan replied interim approval is available, but only if a state's program substantially meets all of the EPA's requirements. She stated it would be fair to say that every state's current operating permit program does not substantially meet the regulation requirements of the EPA.
In reference to an earlier statement by Senator James regarding a "ramp up" period, Ms. Jordan asserted if the State of Nevada obtained interim approval to address all of the sources required by the EPA (and addressed the remaining sources within the allowable 18-month period), the state would have 5 years (rather than 3) to issue all of the initial permits. Ms. Jordan anticipated this option was, probably, being played up as a good opportunity for states. If there were compelling reasons why the State of Nevada cannot issue permits to 100 percent of the sources covered by the program, she said interim approval may be a viable option.
Ms. Jordan disagreed with the article's interpretation of the interim approval process. She stressed a qualified state would not end up with an extra 3 or 4 years in which to develop its operating permit program.
Senator James professed not to be an authority on the matter, but asked Ms. Jordan if she were referring to the non-major source exemption. He thought the State of Nevada would have this exemption whether it adopted the full program or the interim program. Ms. Jordan under the EPA's current regulation covering major sources, interim approval is available. She continued by saying this subject was not relative to deferring non-major source exemptions.
Senator James said Michael R. Barr, the author of the article, stated, "Under an interim approval, the additional time available may be a long as 3 to 4 years (including the EPA's 1- to 2-year approval period)."
Ms. Jordan explained the EPA considers the transition period as a "ramp up" period while the state was issuing all of the initial permits. She stated the transition period is a time during which the state was collecting fees and gaining experience in the issuance of permits. Ms. Jordan explained the EPA regulations allow a longer period of time for the issuance of initial permits, than would be allowed a few years later when the program is in place and all of the sources have been permitted. She concluded her statements by saying this is what the EPA considers to be the "ramp up" period.
Senator James asked Ms. Jordan if she was familiar with Nevada's existing permit program and, if so, how did the program compare to others. Ms. Jordan explained she had been apprised of how Nevada was handling this issue and admitted the existing program fell short of many of the EPA requirements. She clarified most other states were in the same predicament, due to problems with: 1) what must be in a permit and/or permit application; 2) what enforcement authorities the state has; 3) EPA review; etc. Ms. Jordan asserted the State of Nevada has a permit program, but stressed the existing program does not meet the CAA requirements.
Senator James asked what function does interim approval possibly provide. He said the State of Nevada was currently in a budget crisis and the implementing process of the EPA's regulatory framework would not be paid for by permit fees, because no fees were being collected. Ms. Jordan said interim approval gives a a state additional time to issue any permits which had not been issued during the initial 3-year period.
Ms. Jordan said the question was how the EPA would view the state's existing operating permit program in comparison to the CAA requirements. She explained the EPA approaches this issue by reviewing each separate element of the program. In other words, does the existing program achieve the same end result, and equivalent to what the CAA would require. She said a permit program, in this element by element approach, could be judged as equivalent based upon the fact it had the same effect as the CAA requirements. Ms. Jordan stressed she could detail this process more, but simplified the process by stating regulation specified 11 areas which a program must substantially meet EPA criteria.
Senator James stated he understood that if a state enacted a program based upon interim approval, it would be entitled to some grant monies to assist in the implementation of the program. He asked if anyone on the panel could provide more information on this matter. Ms. Jordan replied she did not have any knowledge of such grant monies. She invited Kara Christenson, Assistant Regional Counsel, Region Nine, United States Environmental Protection Agency, to address this issue.
Ms. Christenson advised Senator James it would be a mistake for Nevada to set interim approval as a goal. She admitted she did not author the regulations, but stated the EPA's interpretation of granting a state interim approval was just short of activating a sanction clock. Ms. Christenson recommended that the State of Nevada strive to implement an approvable program, instead of hoping that the EPA would grant the state an interim approval.
Senator James stressed this was certainly not his intent, but stated the United States Congress had enacted the CAA and the section detailing interim approval was contained within this act. He was merely wondering how available this approval would be. He continued by pointing out the author of the article stated interim approval could implement this approach quickly. Additionally, the article also asserted this approach would quickly channel new fees to the state and local agency, and may qualify the agencies for EPA grants.
Senator James stressed the State of Nevada would not look at interim approval as a goal, but wondered what would be the most efficient and economical process to pursue. Ms. Christenson admitted she was still hearing Senator James refer to interim approval as an option, and she cautioned him about taking this viewpoint. Senator James pointed out the article quoted sections contained in the CAA [CAA 502(g); 40 C.F.R. 70.4(d)].
Ms. Jordan asserted quite a few states would undoubtably be granted interim approval, but only because their plans fall short of having a fully approvable operating permit program.
Senator Hickey inquired if the EPA would make the determination of whether a state's plan would be fully approvable, or if it would qualify for interim approval. Ms. Jordan explained the EPA would make the determination of whether full approval would be granted.
Ms. Cummins explained her presentation would address the mobile source requirements of the CAAA of 1990 (Exhibit K). She continued by saying she would also discuss some of the funding options available to states through the highway bill.
Further comments by Ms. Cummins were extracted from Exhibit L, Exhibit M and Exhibit N.
Ms. Cummins mentioned the Congestion Mitigation and Air Quality Improvement Program (CMAQ). She stated this program provides funding for transportation projects which are being constructed in ozone and carbon monoxide non-attainment areas. She explained the CMAQ funding is divided between states based upon air quality problems and the number of people living in non-attainment areas. Ms. Cummins commented almost any project, related to mobile sources, would be eligible for CMAQ funding as long as the intent was to reduce the amount of pollution in a non-attainment area. Additionally, she stated almost any project taking place in an approved state implementation plan is automatically approved.
Ms. Cummins mentioned CMAQ funding could be utilized to obtain the enchanced I/M emissions testing equipment most states will have to purchase. Mr. Tierney emphasized the United States Department of Transportation (USDOT) requires that any state, which utilizes CMAQ monies for the purchase of enhanced I/M equipment, retain ownership of anything purchased with the funding (equipment, facility, land, etc.). He stressed CMAQ funding could not be used if the state elects to hire a contractor to supply the equipment and operate the facility.
Mr. Tierney advised legislators there are numerous uses for CMAQ funding. For example, he explained this funding could be utilized to train and upgrade mechanics and testing personnel. He recommended the State of Nevada look into this program and infuse this money into its I/M emissions testing program.
Based upon the various programs and funds discussed throughout the meeting, Ms. Cummins emphasized a total of $78 million in funding could be utilized by the State of Nevada to implement mobile source provisions of the CAAA of 1990. However, she cautioned those in attendance, that air quality measures were also competing with other highway projects for a portion of this $78 million.
Ms. Cummins pointed out $4.9 million of the CMAQ was dedicated to air quality measures. Of course, if 10 percent of the Surface Transportation Program funding (which must be spent on environmental provisions) were added to the $4.9 million CMAQ monies, the total would be $8.8 million.
Ms. Cummins stated funding from the National Highway System (NHS), Surface Transportation Program (STP) and CMAQ were all funding at an 80 percent federal share. She remarked the State of Nevada would be required to provide the 20 percent fund. She stated provisions in the Intermodal Surface Transportation Efficiency Act (ISTEA) of 1991 would give each state a credit for the non-federal share. Ms. Cummins continued by saying these matching funds could be generated by collecting revenues (from public, quasi-public or private agencies) which have been used to build or improve public highways in the last 2 to 5 years. She testified that the State of Nevada had utilized non-federal funds for the construction or improvement of a public highway or road, the total amount of funding used in these projects could be credited toward the federal matching fund monies.
Senator Neal explained the State of Nevada utilized a system whereby state funds were used for building highways and roads and billed to the federal government at a later date. He wondered if this pass-through funding arrangement would hurt Nevada's chances of obtaining credits. Ms. Cummins responded by saying she did not feel this situation would interfere in any way, but advised the legislators may want to explore this matter in more detail.
An article describing a "pollution credit" trading plan is contained in the July, 1992 issue of the "State Legislatures" publication (Exhibit O). Additionally, a publication was supplied by the NCSL entitled, "Proposed Global Warming Legislation: A Framework for State Action" (Exhibit P).
Senator Smith thanked members of the Senate Committee on Natural Resources for their participation in the evening's meeting. He also thanked members of the audience at the Cashman Field Center, in Las Vegas, Nevada, for their patience.
SENATE BILL 347: Makes various statutory changes in compliance with federal Clean Air Act.
Senator Smith advised those in attendance that S.B. 347 had been scheduled for a Senate Committee on Natural Resources hearing on Thursday, April 29, 1993, in Room 119 at 8:30 a.m. He pointed out this meeting would also be teleconferenced to Room 207 at the Cashman Field Center.
Senator Smith invited all interested parties to attend the hearing on S.B. 347 and stated this hearing would be open to public testimony.
* * * * *
There being no further business before the joint meeting of the Senate Committee on Natural Resources and the Assembly Committee on Natural Resources, Agriculture and Mining, Senator Smith adjourned the hearing at 5:57 p.m.
RESPECTFULLY SUBMITTED:
Rayanne J. Francis,
Committee Secretary
APPROVED BY:
Senator R. Hal Smith, Chairman
DATE:
Assemblyman Vivian L. Freeman
DATE:
??
Senate Committee on Natural Resources
Assembly Committee on Natural Resources, Agriculture and Mining
April 21, 1993
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