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Stieb will also have to revise the claim he made last November in trying to boost the new program's credibility -- that the Tejas sites would be available to motorists as an additional option that could serve up to 40 percent of the public. That's unlikely, since Tejas has sued the state for $187.5 million over the discarded program, and no resolution is pending. "I was optimistic that we'd be able to negotiate a role for Tejas," Stieb says. "Now, I am not so confident."
Then there's remote sensing, a developing technology designed to catch out-of-town commuter polluters in the act. Using specially equipped vans strategically stationed on congested routes, sensors sniff out offending vehicles as they pass. If caught, motorists would receive a letter asking that they come in for an emissions test. An active remote-sensing component, the EPA says, must be a part of any plausible test-and-repair program.
Trouble is, remote sensing so far has proven highly inaccurate, and the political peril of hauling in motorists whose cars are in fine shape would scare off even the EPA. TNRCC's solution? "What we're evaluating," says Stieb, "is raising the pollution detection limit so that we're only going to look at truly gross, gross polluters."
Which might well mean a whole lot of money spent on fancy vans and remote sensing equipment for nothing. When you simply raise the detection limit, says EPA's David Sosnowski dryly, "the utility of the program gets quite dicey."
Texas has until late March to present a revised implementation plan that shows how Motorist's Choice will achieve its clean-air goals. If the state beats the deadline and makes a "good faith effort" to do the right thing, says John Stieb, then the EPA has no choice but to accept TNRCC's judgment. That's because of the National Highway System Designation Act of 1995, the same federal law that removed interstate speed limits, which gives Texas 100 percent credit for its test-and-repair program -- unless the EPA can prove it doesn't deserve the credit.
If push comes to shove, however, it may not matter what the EPA says. These are not fat times for the agency, which is under a sustained attack by Republicans in Congress. The highway bill was a slap in the EPA's face, and some members of Congress are threatening to reopen consideration of the Clean Air Act itself. "The EPA is running scared," says George Smith, who chairs the state Sierra Club air quality committee. "They just can't stand up to business and the politicians."
Just in case the EPA finds enough backbone to challenge the Texas plan, state officials are pursuing a parallel strategy by challenging the standards themselves. In addition to leading the charge for the 100-percent credit change, the state offered general support for proposed changes to the Clean Air Act by North Carolina Senator Lauch Faircloth, with one addition: a two-year extension on deadlines for problem ozone areas classified as "moderate."
Not coincidentally, the moderately polluted Dallas-Fort Worth area will likely miss its November cleanup deadline.
And last November, TNRCC Commissioner Ralph Marquez traveled to Washington to urge a change in the way ozone is measured. The EPA is working toward strengthening the current standard, prompted by evidence that it doesn't do enough to protect the public and a federal court order to make a change. But the proposal Marquez suggested on behalf of his agency would actually weaken the standard, and, not surprisingly, bring polluted Texas cities closer to "attainment."
TNRCC's explanation is that Marquez was not presenting the agency's official position, only floating ideas to stimulate discussion. "The agency has not adopted or as a collective agency approved this new ozone standard discussion," says John Stieb. But Marquez was following the exact strategy proposed in memos from TNRCC executive director Dan Pearson and chief engineer Dan Wittliff. "The staff and I believe that this is an appropriate position for the state to take regarding this issue," wrote Pearson.
Marquez didn't stop at asking for a lowered standard. Doing his best imitation of a tobacco company executive, the commissioner argued that ozone pollution wasn't such a big deal, and perhaps it would be best to focus attention on other problems. "After all," said Marquez, "ozone is not a poison or a carcinogen. It is a relatively benign pollutant compared to other environmental risks."
Though such comments might be expected from a former Monsanto engineer and vice chairman of the Texas Chemical Council, Marquez's statement contradicts reality. Ozone pollution has been linked to respiratory disease in children, asthma attacks and other medical emergencies, even severe lung damage and premature death. "We don't feel it's benign by any means," says Wade Thomason, director of government relations and environmental health for the American Lung Association of Texas, "and I know that those who are most affected by it, particularly children and the elderly and people with lung disease, don't feel that way either."
Marquez may not have been spouting bona fide TNRCC dogma, but his lobbying for an end to ozone enforcement is consistent with other official opinions, such as that of Bush. Citing Marquez's testimony in a November speech announcing Motorist's Choice, Bush called on the EPA to simplify the state's ability to comply with the Clean Air Act. "Texans want the EPA to measure air quality in a more reliable way," Bush said.