government
FOES TAKE AIM AT NEW AIR STANDARDS Lawsuit has been filed against EPA, and opponents in Congress have introduced bills to fight ozone, particulate standards Linda R.Raber C&EN Washington
The national ambient air quality stan dard for ozone has been strengthened from 0.12 ppm measured over one hour ongressional and industrial oppo to a standard of 0.08 ppm measured over nents of the Environmental Protec eight hours. tion Agency's new clean air rules For particulate matter, EPA has added for ozone and particulate matter are a new standard for particles smaller than throwing everything they've got into 2.5 pm in diameter. This ultrafine parti stopping the standards from taking ef cle standard will have two components: fect. A lawsuit has been filed against EPA an annual standard, set at 15 μg per cu by groups representing small businesses, bic meter and a 24-hour standard, set at and bills have been introduced in the 65 μ% per eu m. House and in the Senate to derail the EPA's implementation schedule will controversial standards. However, with not require compliance until 2004 for President Clinton, EPA, and the public ozone. Compliance with the new partic firmly behind what they believe are sci ulate standard will not be required until entifically valid health-based standards, it EPA gathers additional scientific data on is likely to be an uphill battle, and, in the particulate concentrations and health ef words of Rep. John D. Dingell (D-Mich.), fects, and would be enforced no earlier "a very nasty fight." than 2005. However, a lawsuit filed by the Amer EPA announced its new final rules on July 16, but the agency and its administra ican Trucking Associations, the U.S. tor, Carol M. Browner, were under fire Chamber of Commerce, and others con well before the rules were published for tends that EPA failed to follow proper comment last November. Mary D. Nichols, procedure during rulemaking. According assistant EPA administrator for air and radi to the lawsuit, EPA's proposed standards ation, says the new limits on ozone and for particulate matter and ozone fail to particulate matter in the air "have the po tential to prevent as many as 15,000 pre mature deaths, as many as 350,000 cases of aggravated asthma, and as many as 1 million cases of significantly decreased lung function in children, annually." Op ponents of the rules say the agency's claims are based on incomplete and incon clusive science and the costs of the regula tions would cripple the nation's economy (C&EN, April 14, page 10). The "regulations are a slap in the face to common sense and due process," says Sen. James M. Inhofe (R-Okla.), chairman of the Senate Environment & Public Works Committee's Subcommittee on Clean Air, Wetlands, Private Property & Nuclear Safety. According to Inhofe, the standards "are arbitrary, unfair, and un warranted [and] they are based less on science and public health than they are on politics." Inhofe: standards are based on politics
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comply with the substantive and proce dural requirements of the Regulatory Flexibility Act as amended by the Small Business Regulatory Enforcement Fair ness Act of 1996 (SBREFA). Simply stated, if die ozone and particu late matter rulemakings are subject to the Regulatory Flexibility Act and SBREFA— and EPA maintains they are not—the agency would have been required by law to conduct a series of regulatory impact analyses to gauge the impact of the pro posed rulemaking on state, local, and tribal governments as well as on the pri vate sector, including small business— before the rulemaking. In addition, EPA would have been required to measure the costs and benefits, including the costeffectiveness of its decision, and to mini mize significant economic impacts on small business. If SBREFA applied to the rulemaking, it would have required the agency to con vene review panels to collect small busi ness input and makefindingson the deter minations reached in EPA's initial regulato ry flexibility submission. This would all have had to occur before the rulemaking proceeded. It didn't happen because the agency certified the rulemaking would not have "a significant economic impact on a substantial number of small entities" and was therefore exempt from the requirements. In a recent hearing before a House Ju diciary Committee panel, Fred J. Hansen, EPA deputy administrator, maintained the agency position that the standard-set ting process was never subject to these statutes. "As the federal courts have ruled, the
Waxman: difficult to roll back Clean Air Act
purpose [of the law] can only be served in the case of federal rules that apply to small businesses. National ambient air quality standards, by contrast, do not apply to small or large businesses, but are instead implemented primarily through state regulation," said Hansen. "EPA therefore concluded that rules revising the standards are exempt from the Regulatory Flexibility Act's requirement to prepare an analysis and thus from the SBREFA requirement to convene a small business panel prior to proposing a rule for which such a regulatory flexibility analysis is required," he explained. And the air quality standards don't apply to any small entity—not directly. They are enforced through state implementation plans that allow states to meet ambient standards. So technically, small entities would be complying with state implementation plans, not with federal rules. Keith Cole, an attorney at the Washington, D.C., offices of Beveridge & Diamond, explains that if EPA's interpretation is wrong, and he believes it is, then the agency "will have to look beyond who is subject to the rule to the universe of entities that are going to have new regulations placed on them as the result of ambient standards." And he says, "The impacts are huge." What interpretation prevails likely will be decided by the U.S. Court of Appeals for the District of Columbia Circuit. Cole thinks it will be a close call. He tells C&EN, however, that the appeals court of late has not been hesitant to "slap EPA down." Yet another provision of SBREFA gives Congress 60 legislative days from the time a rule is finalized to pass a "resolution of disapproval," which would stop the rule dead in its tracks. The law, which has never been tried, sets up a special streamlined procedure for passing the resolution, but a veto-proof majority would be required to stop the regulations. "You've got the usual shouts and moanings and groanings from certain quarters, but when all is said and done, I would be one of the most surprised guys in the world if someone tried to pass a resolution of disapproval," says Rep. Sherwood L. Boehlert (R-N.Y.), chairman of the House Transportation & Infrastructure Committee's Subcommittee on Water Resources & the Environment. Stopping the standards has also been the subject of new legislative efforts. "My bill will try to stop these ill-fated standards that will devastate our economy and halt any potential for industrial
growth in my congressional district and others," says Rep. Ron Klink (D-Pa.). Klink, Fred Upton (R-Mich.), and Rick Boucher (D-Va.) have introduced H.R. 1984 as a way to delay the standards. The bill provides a four-year moratorium on the new standards—until the next review cycle for criteria pollutants under the Clean Air Act. In addition, the bill authorizes $75 million each fiscal year for the next five years to further study the effect of fine particulate matter on human health. So far, the bill has 132 cosponsors, and Commerce Committee Chairman Tom Bliley (R-Va.), one of the most vehement opponents of the air standards, will try to move the bill in September. Inhofe and John B. Breaux (D-La.) have introduced a virtually identical bill in the Senate. But again, because President Clinton supports the standards, any legislation would require a veto-proof majority. And while Inhofe and others think they've got it, some are doubtful that opponents of the air standards can muster enough votes to override. Rep. Henry A. Waxman (D-Calif.) believes that he and other congressional sup-
porters of the ozone and particulate matter standards have the "overwhelming support of the American people." Waxman, a veteran of many battles over the Clean Air Act, recalls some heated battles on the House floor. "In 1983, the environmentalists won 227 to 146. In 1987, industry groups were absolutely confident of their victory, but when the vote got to the housefloor,they lost 257 to 162. In 1990, there was another fight on the Clean Air Act Amendments, and the environmentalists prevailed 239 to 180. "In all these floor fights, industry never received more than 180 votes," says Waxman. "For this bill, they are going to have to have a two-thirds majority to overturn a presidential veto. I don't want to appear overconfident, but industry will have an awfully steep hill to climb if they are going to prevail in rolling back the Clean Air Act. And while environmental issues shouldn't be partisan, Republicans control Congress, and if the Republican Congress votes to turn back clean air standards that are designed to protect the public health, I think they will be making a political mistake."^
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AUGUST 11, 1997 C&EN
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