Informational Hearing

of the

SENATE SELECT COMMITTEE ON AIR QUALITY

IN THE CENTRAL VALLEY

Senator Dean Florez, Chair

“SB 700 and Measures Related

to Air Quality in the Central Valley”

August 25, 2003

Sacramento, California

SENATOR DEAN FLOREZ: Let’s go ahead and get started. I know members will probably come in sometime during the afternoon, but I want to bring the Senate Select Committee on Air Quality in the Central Valley to order.

As many of you are aware, this committee was created by Senator Burton and the Rules Committee in January to collect information and make recommendations to address critical air pollution problems in the Central Valley. Today marks the tenth hearing of this committee, and it’s perhaps the most important.

As you probably know, a critical piece of legislation aimed at improving the Valley’s dirty air is in jeopardy in the Assembly Appropriations Committee; that being SB 700.

Before I address that specific issue, I’d like to again, for many of you in the audience who have been with us through the many hearings, lay out the problem. Three of the four dirtiest cities in the entire country in terms of air pollution are located in the Central Valley. Following Los Angeles are the cities of Fresno, Bakersfield, and Visalia. The fifth is ______, who are sandwiched, if you will, between Los Angeles and Houston. As you know, the Central Valley now has 10 percent more ozone exceedence days than the Los Angeles Basin, according to the federal eight-hour standard, and asthma rates are three times the national average. Fresno County has the highest asthma rate. In fact, it is almost an epidemic—in terms of 16.4 percent—where, in schools, one out of every six kids carry an inhaler to class today.

The reason—you know—that SB 700 came about is that the federal EPA ruled that it would impose sanctions on California if the state did not end the exemption for agriculture from the federal Clean Air Act. These sanctions, to be very clear, would include a loss of over $2 billion in funding for road and highway construction for the entire state.

The fact of the matter is, air pollution is severely affecting our children, the health and our economies in the Central Valley, and it’s clear to us, after the many hearings that we’ve had thus to date, that doing the minimum is simply not good enough.

This committee, as you probably know, has left no stone unturned. We have had hearings on federal compliance deadlines for air quality, the role of agriculture, how dairies affect pollution, specific air effects such as asthma and respiratory illnesses, as well as truck and vehicle emissions. As you might have seen, we had a hearing just recently here in the Capitol on railroad emissions, where Senator Boxer and I are doing our best to get an MOU for the Central Valley, to try to cut down on those emissions as well.

Today, I’d like to spend a little time, if possible, on SB 700. Both publicly and privately, individual members in the Assembly have expressed concerns with the bill as it currently stands. As you probably know, for either political reasons or others, these objections have stalled the bill somewhat in the committee. We will be having another hearing on that bill for vote only on Thursday, and as you probably know, SB 700 was introduced in February. We’ve amended the bill seven times. Despite hours of negotiations on the bill and policy hearings by both the Senate and the Assembly, certain members of the Assembly have continued to raise disagreements with this bill—and particularly troublesome to me at the eleventh hour.

So, this afternoon—and I want to stress in public—we will ask the various parties in this debate to present their case. It’s my hope to answer the following questions in today’s hearing:

  1. What specific policy objections do members of the Assembly Appropriations Committee have to the current version of SB 700? And what, if any, are their counterproposals?
  2. How does SB 700 go beyond the EPA minimum requirement to close agricultural exemption?
  3. What would the agricultural community like to see differently in this bill?
  4. And finally, to hear the case of why we must go beyond the legal requirement to clean the air.

Invited to testify to this committee today was Assemblyman Leland Yee and Assemblywoman Nicole Parra, who have both publicly expressed their opposition to this current version of the bill, the agencies responsible for air quality in California, the Air Resources Board, and our regional air districts, as well as representatives from the agricultural interests and, of course, the environmental community. Everyone knew. And this hearing was put in the file for a reason: This is an official hearing of the Senate Select Committee.

It’s important to note that the amendments that were offered the last eleventh hour, if you will, on Wednesday should be vetted in public. That’s very important that we hear the reasons for opposition and that the environmental community and others have an opportunity to respond to those amendments. I think that’s extremely important that we work this bill out as much as we have over the last seven amendments during this process.

There will be time for public comment. We do have an agenda, and so, we’ll begin and we’ll go through the agenda. Then we will ask those who are present to speak; and, of course, those who aren’t, I guess that will probably speak for itself.

So, let’s go ahead and start. I do know we’ll be joined by members very soon. I do know that some members who are very interested in this topic will join us who may not sit on the committee but, I think, have concerns on this issue as well.

So, let’s go to Item II of the agenda: Proposed Amendments to SB 700. Mr. Yee—or a representative here from the Assemblyman’s office? Any representatives from Assemblywoman Nicole Parra’s office in terms of the amendments?

Okay.

Let’s go on to the third section: Air Quality Agencies: Rob Oglesby, California Air Resources Board.

Thanks, Rob, for joining us.

I actually have questions. If I could proceed through those and then we can maybe have some comments after. But if you’d like to open with an opening, that’s just as well for us.

MR. ROB OGLESBY: Thank you, Senator. Rob Oglesby representing the Air Resources Board.

I don’t have an opening statement, but I’m happy to respond to the questions you have.

SENATOR FLOREZ: Okay.

Let’s start first by asking the state of air quality in the Central Valley—your perspective. And in terms of the role that agriculture plays in that, maybe you can give us just a broad overview.

MR. OGLESBY: Well, you’ve provided a very good context about the nature of air quality and the health effects in the San Joaquin Valley. In point of fact, the San Joaquin Valley is close to joining Southern California as the nation’s only extreme air quality nonattainment areas in federal designation.

Agriculture represents about 26 percent of the inventory for ozone precursors in the Valley, and in the wintertime. . . . or in the fall it can be up to about half of the directly emitted particulate.

SENATOR FLOREZ: Do you have any thought in terms of why SB 700 might be needed in terms of what you see in the bill thus far?

MR. OGLESBY: Well, I guess my reaction to SB 700 would be that, clearly, it’s a bill that has two objectives. One is to satisfy the requirements that are brought about by the looming federal sanctions for Title 5 purposes. The second is to clearly go beyond the minimum that’s required for the sanction and then put in place a framework to get emission reductions for ozone and particulate in large agricultural operations in the San Joaquin Valley. . . . in the Central Valley.

SENATOR FLOREZ: And under current law, can the Air Board advise and assist in the permitting of agricultural sources of pollution? Under current law.

MR. OGLESBY: Under current law, there is an exemption that really precludes us from getting involved in agricultural sources.

SENATOR FLOREZ: And I guess the follow-up is, then, do you believe the ability to permit agricultural sources with rules and regulations might improve the air, given that exemption?

MR. OGLESBY: Well, the short answer is: yes. I mean, we have a category of emission sources that are exempt from regulation.

To qualify the first answer I gave you, the role that we have with agriculture, emissions is related to data and inventory, but a permit system or other rules or regulations that would reduce emissions from those sources obviously would have an air quality impact that would be positive.

SENATOR FLOREZ: Currently, SB 700 is written. . . . it closes the exemption, from your perspective, in terms of the federal Clean Air Act?

MR. OGLESBY: Yes.

SENATOR FLOREZ: Yes, it does. Okay. So, this would probably allow us to avoid the $2 billion . . .

MR. OGLESBY: Two point four billion.

SENATOR FLOREZ: Is that a real threat, or is that some sort of perceived threat that may or may not happen?

MR. OGLESBY: It’s a nondiscretionary sanction that’s triggered by legal action.

SENATOR FLOREZ: And have there been other sanctions the EPA has put on various others in the nation when we’ve not met a certain threshold?

MR. OGLESBY: It’s happened before, elsewhere in the nation and in this state.

SENATOR FLOREZ: Could you describe for us and to the public in terms of what is referred to in this debate as the “Poochigian letter”? What was the impetus for the EPA’s response back to California in terms of what we might do or what we should do in order to avoid those sanctions?

MR. OGLESBY: It’s referred to as the “Poochigian letter,” but I believe you’re referring to the letter that’s from the USEPA in response to some language that was offered by Senator Poochigian, which I have in front of me. What I’m referring to, for the record, is the February 20th, 2003, response. It was a critique of the language that was offered up at that time, essentially saying. . . . and offering some suggestions on how to make the language more clear. To sum it up in a phrase, that language lacked some clarity that was presented. The “Poochigian letter,” in about a page, indicates some clarity that should be provided to clarify the language.

SENATOR FLOREZ: Okay. So, the Poochigian language from the EPA seems to be—and I know the Farm Bureau and others will probably come argue their case here somewhat aggressively, hopefully, because that’s the way it’s been thus far in terms of Appropriations Committee, in terms of what they would like to see—but the Poochigian language is a minimum requirement to meet the lawsuit. Or do you see it as going further, such as SB 700? Which is going further in terms of—from your perspective—cleaning the air? Because I think ultimately that’s what we’re talking about.

MR. OGLESBY: Well, let’s set this actual February 20th response and just talk to the sense of it. And the sense of it is, in a couple of letters that have gone back and forth, the question was to USEPA: What’s required? What do we need to do to satisfy the Title 5 requirements? And the response essentially has been back, in this letter and others, in testimony in front of your committee in Fresno, that a rather narrowly cast definition would satisfy the suit. You can repeal the Title 5 exemption and take care of the sanctions that are triggered solely by the existence of that exemption on California statutes.

The next issue really is: What do you want to do to get into attainment? What do you want to do to clean the air? For that, you need to essentially reduce emissions from all kinds of sources, including agriculture.

SENATOR FLOREZ: Okay.

Now, I’d like to talk about a provision in SB 700, Section 6, which would require mitigation from confined animal facilities. Many of us know those as dairies. And that seems to be the crux of a lot of disagreement in this bill. I guess from the perspective of just implementation, do you look at Section 6 as something that is somewhat clear and workable, or is there still some vague aspects to this, from your perspective?

MR. OGLESBY: Well, the air districts have to actually implement it, so I defer to them for whether that section is workable. We are asked in the bill, however, to define what a CAFO, what a large animal facility is, and that would be something that we would undertake.

SENATOR FLOREZ: Okay.

The last question I have simply has to do with in terms of your participation. I think you’ve been at almost every one of our hearings as we’ve traveled through the Central Valley, and I want to make sure it’s for the record. The Air Resources Board has worked with this committee and have been involved in the negotiations on SB 700.

MR. OGLESBY: Yes. Let me say for the record, we don’t have a position on the bill. Also for the record, we provided technical advice and participated in the roundtable meetings you’ve had and at your hearings up and down the valley.

SENATOR FLOREZ: And have you found our office, particularly in terms of the chairmanship of this committee, somewhat accessible?

MR. OGLESBY: You’ve been very accessible.

SENATOR FLOREZ: Thank you. Thank you, Mr. Oglesby. We appreciate that.

Larry Greene, legislative chairman, California Air Pollution Control Officers. We want to make sure we also have Barbara Lee as well who’s been negotiating with us.

Let’s start, either of you, in terms of your work on SB 700. Can you tell us, in essence, what we’ve done to date, and from your perspective—the question I left with Rob—is that is it workable? Is it clear? Can you implement it? I think that’s the real question.

And if you have an opening statement—I’m sorry—you’re welcome to give that.

MR. LARRY GREENE: And I’ll ask Barbara to answer most of the questions. She wasn’t originally available, and she’s been able to free up her schedule. She’s done most of the technical work for CAPCOA during the process, although many of us have participated with you and your office in that regard.

SENATOR FLOREZ: Is it implementable, workable? What has transpired, from your perspective, of where we started and where we ended up? I know that we’ve done a lot of work in terms of getting to the question of whether or not you folks at this particular time, with this particular version, could actually implement this bill, because it’s been said it is “too large, too big, too broad, and unimplementable.” And I guess the question would be: Is that the case, since you’re the folks that have to do it?

MS. BARBARA LEE: In terms of your question about our work on this bill, we have had several objectives going into this effort with you. The first, obviously, is to deal with the deficiency that EPA found in our permitting programs to clean up those programs and ensure we have the authority to implement the federal Clean Air Act and avert the sanctions that are otherwise going to come into place. And that’s been our first goal.

Our second goal has been to work with you as you have endeavored to make positive changes to affect air quality in the San Joaquin Valley, to make sure that the changes that you’re bringing forward are practical and implementable for all of the districts that they would take effect in.

SENATOR FLOREZ: And in terms of your perspective of the “Poochigian letter”—I’m going to refer to it, as I told Rob—the difference between the current versions of 700 and what the original language as offered by the EPA does, can you tell us what you believe the difference is between those two pieces? That seems to be the argument: that we’re going much further than what EPA is telling us to do. Just your perspective.

MS. LEE: Certainly.

In regard to the permit exemption, the “Poochigian letter” would only remove the permit exemption for those agricultural sources that require permits under federal law. And the districts are held to using federal processes for determining whether those requirements apply.

Under state law and for all other industrial sources, the local districts have the authority to issue permits to whatever sources are necessary to issue permits to in order to accomplish their mission for cleaning up the air. And which sources get permits varies from district to district based on the attainment status of the district.

SENATOR FLOREZ: And in terms of—from your opinion—what version would probably take us further in terms of cleaning the air? The Poochigian version or SB 700?

MS. LEE: The version of the language that was encapsulated in the “Poochigian letter” only deals with permitting. SB 700, in its current form, has objectives and deadlines to meet in order to implement measures to clean up the air.

SENATOR FLOREZ: In essence, then, SB 700 goes beyond what the EPA is requiring as the minimum, because we actually have some timetables and some types of definitions and other things that would allow you to implement it. Is that a better way to put it?

MS. LEE: In regards to permitting, certainly it goes beyond what EPA requires, especially in the San Joaquin Valley and in the South Coast. They have an enormous battle to meet attainment requirements, and they are required by EPA to do that. So, it isn’t, strictly speaking, going beyond. It’s merely giving specificity in those cases.