Under the Clean Air Act (CAA), the U.S. Environmental Protection Agency (EPA) is authorized to set rules in order to strengthen air-quality standards, rules that have usually been met with enthusiasm by environmental organizations and large resistance by states and industries that bear much of the costs of implementation. Whenever the EPA announces new proposals, it inevitably generates a large amount of activity and attention from Congress, as members from states with a large stake in clean air (usually states with a large population, like California or the northeastern states) come up in support of new reductions, and members from states with cleaner air and a large industrial presence (in the midwest, for example) rise to fight what they see as unfair costs levied against them to pay for someone else's pollution problem. The 106th Congress has thus far proved to be lively, with new regulations proposed to reduce sulfur content in gasoline and a pair of decisions issued by the U.S. Circuit Court of Appeals for the District of Columbia that call into question the current extent of EPA's authority to regulate air quality under the Clean Air Act. Information on the many issues surrounding the Clean Air Act can be found at the National Council for Science and the Environment (formally the Committee for the National Institute for the Environment) website. Also available are AGI summaries of recent hearings on the Clean Air Act.
Most Recent Action
In a September 15th decision, the Environmental Appeals Board ruled that the Tennessee Valley Authority (TVA) violated the Clean Air Act's New Source Review (NSR) requirements, which "ensure that an increase in emissions due to a new source or modification to an existing source does not significantly deteriorate air quality." When Congress amended the Clean Air Act in 1990, it did not require existing utilities to immediately install the act's NSR pollution controls. Instead, Congress decided that these utilities could incorporate pollution controls when the plants were "modified," meaning a physical change to the structure that would result in increased emissions, or underwent "routine repairs and maintenance." The EPA filed suit against TVA and 16 other private utilities, primarily in the southeast, claiming that these utilities had violated the NSR regulations when they did not incorporate the pollution control technology at the time of major modifications. Several of the other utilities are in the midst of talks with the EPA to settle their case out of court. The EPA and Department of Justice claim in their suit that the failure of these utilities to install pollution control technologies has "resulted in tens of millions of tons of sulfur dioxides, nitrogen oxides and particulate matter illegally emitted into the air." A PDF version of the decision is available off the Environmental Appeals Board website.
Prior Action during the 106th Congress
Opponents of the new standards see the ruling as a windfall. Senator James Inhofe (R-OK) said, "The decision shows, as many of us argued at the time, that [Browner] clearly overreached her authority in imposing these standards and setting up a burdensome regulatory apparatus." Inhofe has previously questioned the science upon which the new standards are based and has consistently opposed the stiffer regulations.
The effect that the court's decision will have on other more recent EPA proposed rules, such as last years standards for nitrogen oxides (NOx) or this years proposed sulfur standards, is yet to be resolved. Inhofe took the stance at a June 24th hearing on the NOx standards that "overshadowing all of this is the NAAQS court case decision invalidating the new ozone standards. Much of the EPA's justification for [the NOx regulations] was based on the eight-hour ozone standard which has been held unconstitutional by the court, and unenforceable. I think it is important to note that while the constitutional decision was a split decision, all three judges agreed that the standard could not be enforced." The EPA's Office of Air Quality Planning and Standards has several documents outlining the EPA's take on the court decision (http://www.epa.gov/ttn/oarpg/news.html).
In response to the controversial court ruling, the Justice Department asked the full US Court of Appeals for the District of Columbia to overturn the decision. In a June 28th press release, Browner said that she was "pleased that the Department of Justice will formally appeal one of the most bizarre and extreme decisions ever rendered in the annals of environmental jurisprudence." For a complete copy of the Federal government's petition for a rehearing, see the EPA's Office of Air Quality Planning and Standards at http://www.epa.gov/ttn/oarpg/news.html.
In another ruling, the same two judges who voted in favor of overturning the particulate matter and soot regulations, suspended implementation of a rule requiring 22 states and the District of Columbia to submit State Implementation Plans (SIPs) for the 1998 NOx emissions standards by September. This ruling has caused some confusion among states, which are no longer sure what standard they will be held up against. With the new standards overturned pending the outcome of a lawsuit challenging the rule, the EPA has announced scaled back plans. The Eastern states had originally petitioned for emission reductions in 12 states, and under the scaled-back plans these 12 -- the District of Columbia, Delaware, Indiana, Kentucky, Maryland, Michigan, North Carolina, New Jersey, New York, Ohio, Pennsylvania, West Virginia, and Virginia -- will be held to a less stringent emission standard than the one recently overturned. The EPA sees this course of action as being less effective than the proposed regional reductions, and Administrator Browner was quoted in a June 15 article in the Washington Post as saying, "This is not the preferred path. The court has taken that preferred path away from us. But we felt we still have an obligation to people for cleaner air. When we prevail in court, we will go back to the original path." States may still submit Implementation Plans by September if they wish.
Activity related to new proposed Tier II and
The Senate Environment and Public Works Committee held a series of hearings to look at the EPA's proposed vehicle emission and sulfur standards. The U.S. EPA Administrator Carol Browner testified on May 20th and the AGI website has a summary of that hearing. For general information on the Tier II and lower-sulfur gasoline regulations ia available at the EPA website.
On December 21, 1999, President Clinton and Environmental Protection Agency Administrator Carol M. Browner announced new automobile emissions and cleaner gasoline rules that will phase in over five years. The new regulations, referred to as Tier II standards, will bring sport utility vehicles, trucks, and minivans emissions in line with other cars, as well as require petroleum companies to produce gasoline with a significantly lower sulfur content. Oil companies will have to decrease the sulfur content by 90 percent to 30 parts per million by 2006. Some refineries are predicting "major supply bottlenecks" that night lead to inflates gas prices and supply difficulties. In an EPA press release, the agency claimed, "these measures will cut smog-causing vehicle pollution 77 to 95 percent while preserving consumers' ability to drive the car of their choice."
In an unusual action, Ford Motor Company acknowledged at its May share-holders meeting that sport utility vehicles (SUVs) are major polluters. According to a May 12th New York Times article, "Ford said that the vehicles contributed more than cars to global warming, emitted more smog-causing pollution and endangered other motorists." Despite this information, the company will continue to manufacture SUVs because they are responsible for needed profit for the company. Ford will work to develop new technology and designs to help improve SUV performance and safety. "For the last two years, Ford Motor has voluntarily built its sport utilities to emit far less tailpipe pollution than allowed by law. Ford has also voluntarily installed bars below the bumpers of the Excursion to reduce the risk that it will override cars during collisions, even though there are no federal regulations on this." In December 1999, President Clinton and Environmental Protection Agency Administrator Carol. Browner announced the new Tier II standards that will bring sport utility vehicles, trucks, and minivans emissions in line with other cars, as well as require petroleum companies to produce gasoline with a significantly lower sulfur content.
Activity related to the Clean Air Act reauthorization
On October 14, 1999, the Senate Subcommittee on Clean Air, Wetlands, Private Property, and Nuclear Safety met to hear several witnesses testify about reauthorizing the Clean Air Act. Robert Perciasepe, who spoke on behalf of the EPA, discussed air quality improvements that have been made since the 1990 amendments were passed. "These impressive results have come about through involving stakeholders from the outset, using innovative and flexible environmental protection strategies, and adjusting when programs need improvement." Other testimonies addressed the issue of domestic and indoor sources of exposure, the use of cost-benefit analyses when setting standards, and how more stringent standards would help reduce acid rainfall. Opening statements and written testimonies from this hearing can be found at the Senate Environment and Public Works Committee website.
The Subcommittee on Livestock and Horticulture of the House Committee on Agriculture held a July 13, 2000 hearing on "The Implications of Banning Methyl Bromide for Fruit and Vegetable Production." Testimony was given by Members of Congress, representatives of specialty crop farms, and researchers who are currently assessing alternative pesticide products to methyl bromide. All testimony spoke of the lack of viable alternatives and that the current phase-out schedule under the Montreal Protocol is too aggressive. The phase-out and eventual ban of methyl bromide (see background) is scheduled to take place sooner for the U.S. and other industrialized countries than undeveloped countries. According to Cecil Martinez, a strawberry farmer in California, this schedule "will cause serious economic disruption to many segments of American agriculture, economic losses to communities that are reliant on our farms, the loss of jobs and a loss of international competitiveness." Many stated that the phase-out schedule should be relaxed so that more time could be allowed to further assess viable alternatives, because existing alternatives are less effective, more labor intensive, too costly, impractical to implement on some farms, and may even incur unexpected environmental damage. For example, in 1995, EPA listed heat sterilization as its top alternative. While heat sterilization does provide effective control for some pests now controlled by methyl bromide, it does so at a much slower pace while consuming enormous amounts of energy, water, and money. "This is a technology that cannot be practically implemented on farms," according to Carl Loop, President of the Florida Farm Bureau Federation. Rep. Richard Pombo (R-CA) stated that his proposed Methyl Bromide Fairness Act of 2000, H.R. 4215, will amend title VI of the CAA to relax the phaseout schedule for methyl bromide. For complete testimony of this hearing, visit the House Committee on Agriculture website. (7/13/00)
Activity concerning NOx standards
The Senate Subcommittee on Clean Air, Wetlands, Private Property and Nuclear Safety held a hearing on June 24, 1999 on the NOx State Implementation Plans (SIP) requested by the Environmental Protection Agency (EPA). This issue tends to break down along regional lines with the New England and Eastern states on one side and the Midwestern and Northern states on the other. The controversy revolves around the degree to which regional transport of pollution from the Midwest to the east coast affects air quality and whether involvement by federal agencies, such as the EPA, in how states reduce their NOx is necessary. Sen. Joe Lieberman (D-CT) and two witnesses from New England argued that the New England states cannot achieve healthy levels of air quality without reduction from the Midwest. Sen. George Voinovich (R-OH) and two witnesses from Ohio and Michigan argued that even if all the plants in their states shut down, states like Connecticut still would not meet their emission standards. At the heart of this issue is whether states or a federal agency should be responsible for implementing clean air policies when the problem may be a regional one, affecting communities outside state boundaries. Also at issue is the 85% reduction in NOx the EPA is requiring each state to achieve in the implementation plans they submit; witnesses testified that it creates a hardship for small businesses, will affect other issues such as urban sprawl, and is way beyond what is needed to meet health standards. A summary of that hearing is available on the AGI website.
On June 23rd, after over two years of litigation, the U.S. Court of Appeals for the D.C. Circuit cleared the way for EPA to enforce NOx emissions reductions across 22 states. The EPA rules, which were drafted in 1998 but delayed by a lawsuit from states and industry, target 392 coal-burning power plants and other pollution sources. Such rules were drafted as a response from Northeastern states complaining for years that they were not able to meet federal air quality standards because of pollution drifting in from other states, primarily located in the Midwest. The emissions have been blamed for creating serious ozone problems in major cities in the Northeast, and for putting millions of people at risk of asthma and other respiratory problems. Under the appeals decision, states would have to submit a NOx State Implementation Plan 128 days from June 22 and would have to fully comply with standards by May 1, 2003. Midwestern groups claim that the EPA is abusing its constitutional authority by enforcing unrealistic pollution reduction requirements and by overstepping its powers through the creation of laws it does not have the power to create as a non-legislative branch of the federal government. A spokesperson for the Ohio attorney general's office stated that the option of filing a request for the Supreme Court to hear the case is under consideration. EPA Administrator Carol Browner stated that this decision is a major environmental victory for everybody living throughout the eastern United States and that "more than 100 million people will benefit from cleaner more healthful air." (6/26/00)
The Senate Subcommittee on Clean Air, Wetlands, Private Property and Nuclear Safety held a hearing on June 14, 2000 on the environmental benefits and impacts of ethanol as an oxygenate for reformulated gasoline (RFG) as a possible replacement for methyl tertiary butyl ether (MTBE). Such debate comes at a time when MTBE, an additive in fuel to help clean the air, is found to be the second largest groundwater chemical contaminant in the country. Among the issues at the center of the debate in this hearing are: how MTBE should be phased out; is an oxygenate requirement in RFG as mandated in 1990 ultimately beneficial; and is ethanol a viable alternative to be used in replacement of MTBE. A summary is available at http://www.agiweb.org/gap/legis106/cleanair_hearings.html#61400. (6/14/00)
In 1997, the EPA proposed new air quality standards for both ground-level ozone and particulate matter. Ozone, or smog, is caused by the reaction of hydrocarbons and nitrous oxides with the presence of heat and sunlight. Scientific studies have determined that ozone causes respiratory illness and reduces lung capacity. Particulate matter is a general term for tiny air particles, such as dust and soot generated from power plants and incinerators. Particulates also interfere with breathing and aggregate respiratory and cardiovascular diseases.
The proposed ozone rule would permit 0.08 parts per million measured over 8 hours. Four exceedances would be allowed before an area is determined to be out of compliance. This standard is more stringent than the current regulation of 0.12 parts per million measured over one hour, with three allowable exceedances. The present particulate matter standard for PM10 (particulate matter sized 10 microns) will not change. The new standard establishes a limit for PM2.5: 15 micrograms per cubic meter annually with a 24-hour limit of 65 micrograms per cubic meter.
Critics have argued that the proposed standards will not have a dramatic effect on human health and bring exorbitant cost. For example, they cite figures that indicate that the new standards would only result in a 0.5% decrease in asthmatic hospital admittance in New York City. These minimal benefits will be outweighed by the costs from areas that must adopt new technology to meet the new criteria. The American Petroleum Institute estimates the new rules will triple the number of counties out of compliance, which must then adopt measures to reduce the pollutants.
Alternatively, the EPA argues that the standards are necessary for health reasons, citing studies that link early death rates with levels of pollution. The Natural Resources Defense Council puts the death-toll of people dying several years early from breathing polluted air at 64,000 per year. Regarding costs, a new EPA study illustrates that for every dollar we have spent on pollution controls since 1970, we have gained $45 in health and environmental benefits.
EPA is also emphasizing the flexibility and time frame of the implementation schedule for the standards. Areas that are not in attainment under the current ozone standard will be designated as "transitional" rather than non-attainment areas and will be given until 2004 to comply with the new standard. The attainment designation process for particulate matter will not begin until a full scientific review of particulate matter's human health effects is completed. EPA has allowed five years for this review.
The extended comment period for the proposed standards on ozone and particulate matter ended March 12, 1997. The National Conference of State Legislatures has issued a resolution asking Congress to block implementation of the rule, and Senator James Inhofe (R-OK), Chair of the Senate Subcommittee on Clean Air, Wetlands, Private Property, and Nuclear Safety, is considering the request. Additionally, several key Democrats, such as Robert Byrd (WV), John Glenn (OH), Charles Robb (VA), and Wendell Ford (KY), have joined Republicans in their opposition to the rule. The Air Quality Standards Coalition said it was "very likely" they would sue the EPA if the standards are passed as they feel "scientific evidence about the overall health effects of ozone and particulate matter is generally inconclusive."
To read the full text of the proposed ozone rule, visit the EPA subset of the Federal Register.
To read the full text of the proposed particulate matter rule, visit the EPA subset of the Federal Register.
House Science Committee Chairman Ken Calvert (R-CA) and Ranking Minority Member Tim Roemer (D-IN) have issued a report containing hearing summaries, findings and recommendations on the science behind the EPA's proposed standards. To read that report, visit the committee's website.
To obtain more background information on ozone and particulate matter, visit the Committee for the National Institute for the Environment web site, which has on-line reports from the Congressional Research Service on this and other environmental issues. The site includes the reports Air Quality: EPA's Proposed New Ozone and Particulate Matter Standards and Clean Air Act Issues. CRS reports are also available by calling your local representative or senator.
Sources: Environmental and Energy Study Institute; Investor's Business Daily; Washington Post; Natural Resources Defense Council; Tamara Nameroff, 1996-1997 GSA Congressional Science Fellow, in GSA Today; U.S. Chamber of Commerce Federation
Contributed by Kasey Shewey, AGI Government Affairs; and Stephanie Barrett, Catherine Runden, and Shannon Clark, AGI Government Affairs Interns
The Montreal Protocol, signed by over 160 countries (parties), is an international treaty developed to protect the earth from the detrimental effects of ozone depletion and acts as a guideline in the control of the production and trade of Ozone Depleting Substances (ODS) on a global basis. Under the auspices of the Montreal Protocol, methyl bromide was found to be a significant depleting substance with a best estimate of Ozone Depletion Potential (ODP) of 0.4. Research shows that the science of atmospheric methyl bromide is complex and is still not well understood. There is also incomplete knowlege in the determination and understanding of natural and anthropogenic sources and sinks. For more details, please read "Scientific Assessment of Ozone Depletion: 1998", a report conducted by the World Meteorological Organization, NOAA, NASA, United Nations Environment Program, and the European Commission.
In 1995, a meeting of the parties met in Vienna, Austria and added Methyl Bromide controls to the treaty with a phaseout for industrial nations in 2010 and a freeze in 2002 based on a consumption (production plus imports minus exports) average between 1995 and 1998 for developing countries. In 1997, global controls were accelerated, with production and importation reductions according to 1991 levels for industrial and developing nations as follows: Industrial Nations: 25% reduction by 1999, 50% reduction by 2001, 70% reduction by 2003, and 100% reduction by 2005; with a preshipment and quarantine exemption and an emergency use exemption. Developing Nations: 20% reduction by 2005 and 100% reduction by 2015 based on an average of 1995 through 1998 consumption levels that will be frozen by 2002. In the United States, the Environmental Protection Agency (EPA) is taking action under the Clean Air Act (CAA). Title VI of the CAA, as amended in 1990, considers that all substances with an ODP of 0.2 or greater (Class I ODS) as causing significant damage to the stratospheric ozone layer and requires a phaseout in the U.S. within seven years.
Both the EPA and USDA are working with research scientists and farms to insure that economically viable and environmentally sound alternatives to methyl bromide are in place as soon as possible. The EPA Office of Pesticide Programs has published 30 case studies (Vol.I, Vol. II, and Vol. III) that describe potential alternatives.
Sources: EPA Office of Atmospheric Programs-Division of Stratospheric Protection-Methyl Bromide Program website
The NOx issue has proved to be divisible among the states, with the Northeast arguing that drifting ozone form the Midwest hinders their ability to remedy their air pollution problems. The Midwest and Southern states claim the Northeast's air problems are local, and they maintain the new NOx standards will be an unfair cost burden. As such, and in response to the NOx SIP call, eight Midwestern and Southern states -- Michigan, West Virginia, Virginia, Ohio, Alabama, North Carolina, South Carolina, and Indiana -- asked for a stay until April, 2000. Midwestern power plants would be heavily affected by the new standards, and many electric utilities have supported the stay request. In May, 1999, the U.S. Court of Appeals for the District of Columbia suspended the NOx SIP call pending the outcome of a lawsuit challenging the new standards.
Opponents of the new proposed rule are concerned with the lack of regional flexibility. They think the more sparsely populated, and hence less polluted, western states will unfairly end up paying more for lower sulfur contents. The EPA stance is that without nationwide standards, clean vehicles which for any number of reasons might travel to a high-sulfur region would be irreversibly damaged. Their studies have shown introducing "dirty" gas to a car's engine just once will cause permanent damage to its emission control systems. Inhofe and his supporters also worry that the new regulations will force smaller gas refineries out of business. The EPA is currently adhering to the Small Business Administration's definition for a small refiner (no more than 1,500 employees) and allowing extra time for these refiners to meet the standards.
The automobile industry is standing behind the EPA on this issue, believing that if they are to meet the new tail pipe emission standards that lower sulfur contents in gasoline will be a necessity. Many in the oil industry see the new rules causing refineries economic hardships, however, and tend to side with Inhofe. Information on the Tier II and sulfur contect regulations is available at the EPA website.
Air Quality: An Imperative for Long-Term Observational Strategies
Committee on Atmospheric Chemistry, National
This report assesses the effectiveness and suitability of the current methods of analyzing the chemistry of the atmosphere and its relationship to air quality and climate change. It aims to place concerns about air quality in a regional and global context, citing rapid population growth, growing urbanization, and changing climatic condition as some of the factors that alter atmospheric conditions on a global scale. The report concludes that we currently do not have measures in place to effectively monitor atmospheric compositional changes for the medium- and long-term, and advocates a strengthening of observations capabilities.
The two major recommendations it makes are first the maintenance and strengthening of existing measurement programs that monitor global air quality changes, with high priority given to programs that monitor background levels of ozone and particulate matter (PM). The second reccomendation is the establishment of new programs able to provide long-term measurements and vertical profiles of PM and reactive compounds in order to monitor trends and long-range transport of background concentrations. Finally, the report ends by suggesting that responsibility for carrying out these suggestions should be assigned to a U.S. federal agency research program, and that the U.S. should assume a leadership role in the implementation of such measures that enhance our understanding of global air quality changes.
View the full text of this report..
Please send any comments or requests for information to the AGI Government Affairs Program at firstname.lastname@example.org.
Contributed by 1999 AGI/AIPG Geoscience Policy Intern Scott Broadwell; 1999-2000 AGI/AAPG Intern Alison Alcott; Margaret Baker, AGI Government Affairs; 2000 AGI/AIPG Geoscience Policy Intern Nathan Morris; and 2001 AGI/AIPG Geoscience Policy Intern Caetie Ofiesh
Last updated June 1, 2001
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