EPA's New Air Quality Standards for Particulate Matter and Ozone: Boon for Health or Threat to the Clean Air Act?

Lucinda Minton Langworthy

Editors' Summary: This Article discusses the new ozone and particulate matter (PM) NAAQS that EPA promulgated in 1997. It begins by examining the relevant provisions of the CAA and reviewing EPA's history of regulating ozone and PM. It also discusses the costs and impacts associated with implementing the new NAAQS. The Article concludes that less stringent ozone and PM NAAQS would meet the CAA's requisite level of health protection with far fewer negative impacts on the U.S. economy and society. Should the negative impacts of implementing the new NAAQS prove to be unacceptable to the American public, the Article suggests reconsidering whether the possible adverse health effects of airborne pollutants should be the only factor considered in establishing and revising NAAQS.

Lucinda Minton Langworthy is counsel to Hunton & Williams in Washington, D.C. She has been a member of the firm's environmental team for 15 years and focuses primarily on the Clean Air Act (CAA).

[28 ELR 10502]

In 1997, after a contentious debate, the U.S. Environmental Protection Agency (EPA) issued new national ambient air quality standards (NAAQS) for particulate matter (PM) and ozone.¹ These standards establish the maximum permissible concentration of PM and ozone in the ambient air. The Agency admits that implementation of these standards, which it claims will provide significant health benefits, will cost billions of dollars each year. Moreover, the new NAAQS raise complicated questions of how the states will implement them and on what schedule. Indeed, EPA is unable to identify technology capable of producing compliance with these standards in many parts of the country.

This Article briefly explains the Clean Air Act (CAA) program under which these standards were established. It summarizes the new NAAQS and addresses what kind of costs will be required to implement them. Finally, this Article questions whether these new standards will prove so costly and difficult to implement that they will ultimately force a reexamination of the CAA.

The NAAQS Program

The NAAQS program, under which the new standards for ozone and PM were promulgated, is at the heart of the federal CAA. It is the program through which conventional industrial air pollutants are controlled. Section 108 of the CAA directs EPA to list pollutants that are present in the ambient air as a result of emissions from "numerous or diverse mobile or stationary sources" and that "may reasonably be anticipated to endanger public health or welfare."² After preparing a criteria document that reflects "the latest scientific knowledge useful in indicating the kind and extent of all identifiable effects on public health or welfare which may be expected" to result from the pollutant,³ EPA must establish both "primary" and "secondary" NAAQS for the pollutants under § 109 of the Act.⁴ Primary NAAQS are to be set at a level that, in the EPA Administrator's judgment, is "requisite to protect the public health" with "an adequate margin of safety."⁵ Secondary NAAQS are to be set at a level that, in the Administrator's judgment, is "requisite to protect the public welfare from any known or anticipated adverse effects."⁶

EPA's long-standing interpretation of the CAA is that the feasibility and cost of controls needed to attain NAAQS, including possible adverse impacts on health resulting from measures necessary to attain the standards, are not considered when the Agency establishes the standards.⁷ The Agency believes that these factors are relevant only to the choice of measures used to attain and maintain the standards.⁸ This view has received support from the D.C. Circuit.⁹

The CAA establishes an independent scientific advisory body to assist EPA in reviewing the science and developing appropriate NAAQS.¹⁰ This Clean Air Scientific Advisory Committee (CASAC) consists, pursuant to the CAA, of [28 ELR 10503] seven members, including at least one member of the National Academy of Sciences, one physician, and one person from a state air pollution control agency.¹¹ In addition to recommending to the Agency any appropriate changes to the criteria or NAAQS, the CASAC is charged with advising the Administrator on (1) additional research needed to judge the adequacy of the NAAQS, (2) the roles of natural and anthropogenic emissions, and (3) "any adverse public health, welfare, social, economic, or energy effects" resulting from various strategies for attaining NAAQS.¹²

Once EPA has established NAAQS, it is the responsibility of the states, with oversight by EPA, to determine which areas are "nonattainment" for, or do not meet, the standards.¹³ States must then prepare and submit to EPA implementation plans that provide for the attainment and maintenance of the standards within a specified period.¹⁴ These plans are subject to review and approval by EPA, after which they are enforceable by both the state and federal governments.¹⁵

The CAA provides that NAAQS must be attained "as expeditiously as practicable."¹⁶ However, for primary standards, the Act further specifies that attainment is required not less than five years after an area is first determined to be nonattainment.¹⁷ The Act allows the EPA Administrator to extend the attainment date by another five years if he or she determines that such an extension is appropriate, considering the severity of the nonattainment and the availability and feasibility of means to control the pollution.¹⁸

EPA's obligations, however, do not end with the promulgation of NAAQS and the approval of states' plans to implement them. The Agency must review both the standards themselves and the criteria on which they are based at least every five years.¹⁹ At the end of such a review, the Agency revises the standards as appropriate.²⁰ The new 1997 PM and ozone NAAQS followed such a review.

EPA's Ozone and PM NAAQS

EPA has long regulated both PM and ozone through its NAAQS program. The initial PM standards, limiting levels of total suspended particles (TSP), were established in 1971.²¹ They included a daily primary standard of 260 micrograms per cubic meter ([mu] g/m³) and an annual primary standard of 75 [mu] g/m³.²² In addition, EPA promulgated a daily secondary standard of 150 [mu] g/m³ and a secondary "guide" of 60 [mu] g/m³, to be used as a guide for assessing plans to implement the daily standard.²³

In 1987, in recognition of significant limitations of the TSP indicator and questions concerning its relevance to health effects related to inhalation of PM, EPA replaced the TSP standards with standards for PM nominally 10 micrometers and less in diameter (PM[10]), a measure that focused on a subset of TSP that was small enough to enter human lungs.²⁴ The Agency reasoned that PM[10] was a better indicator of ambient particles that could cause problems if inhaled and was superior to TSP as a measure of PM associated with welfare effects such as soiling of household and other surfaces.²⁵ The new primary and secondary PM[10] standards were identical. They included annual standards of 50 [mu] g/m³ and daily standards of 150 [mu] g/m³.²⁶

Despite its legal obligation to review each NAAQS every five years, EPA took no action to reevaluate its 1987 PM NAAQS until the Agency was sued over its inaction, a lawsuit it lost in 1994.²⁷ The review of the PM[10] standards triggered by the lawsuit led, for the first time, to regulations that addressed two types of PM separately: "coarse" PM and "fine" PM.²⁸ The Agency reasoned that coarse and fine PM constituted different pollutants based on their size and their formation mechanism.²⁹ Thus, EPA established annual primary and secondary standards for fine PM — PM smaller than 2.5 micrometers in diameter (PM[2.5]) — of 15 [mu] g/m³, daily PM[2.5] standards of 65 [mu] g/m³, annual standards for coarse PM (measured as PM[10]) of 50 [mu] g/m³, and daily PM[10] standards of 150 [mu] g/m³.³⁰ In essence, then, the new coarse PM standards varied little from the previous, more generic PM[10] standards. The new PM[2.5] standards, on the other hand, focused on a specific subset of the material that had previously been regulated as PM[10].

The new standards were based primarily upon concerns that air pollution was associated with an increased risk of mortality.³¹ Premature mortality is obviouslya very serious health concern. Others, including EPA's own scientific advisors, however, have pointed out the "many unanswered questions and uncertainties associated with establishing causality of the association between PM[2.5] and mortality."³²

The history of EPA's NAAQS for ozone is somewhat more complicated. In 1971, the Agency established the NAAQS for photochemical oxidants.³³ These standards essentially regulated ozone, the most significant component of the photochemical oxidants. The primary and secondary standards were identical: a 1-hour standard of 0.08 parts per million (ppm).³⁴

[28 ELR 10504]

The first true ozone NAAQS were promulgated in 1979.³⁵ EPA replaced both the primary and secondary photochemical oxidant standards with standards that established a maximum permissible ozone concentration of 0.12 ppm, on a one-hour basis.³⁶ This revision, in effect, constituted a relaxation of the NAAQS.

In 1997, EPA reversed this relaxation. The Agency purportedly replaced the one-hour 0.12 ppm primary and secondary NAAQS with eight-hour 0.08 ppm standards.³⁷ Even with the longer eight-hour averaging time, the new standards are more stringent than the previous standards for most parts of the country.³⁸ In fact, given the way the Agency has chosen to make the transition from the one-hour to the new eight-hour standards, each part of the country will be required to attain both standards because the existing one-hour standards will have to be attained in each area before they are revoked.³⁹

EPA explained that the new standards protect against changes in lung function and respiratory changes as well as the risk of increased hospital admissions and other less certain or less clearly important effects.⁴⁰ The question, however, was less whether some of these effects resulted from ozone exposure, but whether the new standards provided a meaningful improvement in public health protection beyond that provided by the one-hour standard. Again, EPA scientific advisors were not clear that a more stringent standard was needed.⁴¹

What Will the Impact of the New NAAQS Be?

Development of plans for bringing nonattainment areas into attainment of the new NAAQS has not yet formally begun. EPA has determined that specific additional information is necessary before states can even designate areas as nonattainment for the new NAAQS. For ozone, EPA has indicated that states will require information on how nonattainment area boundaries should be drawn.⁴² For PM[2.5], the Agency has determined that three years of ambient PM[2.5] monitoring data of violations of the standards is needed.⁴³ Yet, the Agency also recognized that CAA § 107(d)(1) requires states to submit nonattainment area designations within a year after promulgation of the NAAQS.⁴⁴ In an attempt to address the problem of designations being due before adequate information was available, EPA suggested that states should submit information — but not nonattainment area designations — by July 1998.⁴⁵ For ozone, EPA requested that states submit their findings on monitors recording violations of the new NAAQS levels from the 1995-1997 air quality monitoring data.⁴⁶ For PM[2.5], the Agency suggested that the governors submit a recommendation that all areas within their states be designated as "unclassifiable."⁴⁷

Congress recently acted to ensure that nonattainment area designations would not be required until the necessary information is provided to states. Specifically, Title VI of the Transportation Equity Act for the 21st Century⁴⁸ directs states to submit proposed nonattainment designations for the PM[2.5] NAAQS within a year after they receive three years of ambient PM[2.5] monitoring data.⁴⁹ The Act also directs EPA to take final action on those designations within a year, but not later than December 31, 2005.⁵⁰ To facilitate these designations, the legislation instructs EPA to pay for the cost of the "establishment, purchase, operation and maintenance" of the necessary PM[2.5] monitoring network and orders that the network be established by December 31, 1999.⁵¹ With regard to the ozone NAAQS, the Act extends the date for governors to submit proposed designations of nonattainment areas for the eight-hour standards until July 1999.⁵² The Act notes that providing this one-year extension for eight-hour ozone nonattainment area designations would permit states to consider forthcoming EPA guidance on the criteria for drawing nonattainment area boundaries.⁵³ EPA recently issued revisions to its guidance on submittal of materials by states related to nonattainment designations to conform that guidance with the new legislation.⁵⁴

Although the deferral of nonattainment area designations has delayed the need to develop plans for implementing and attaining the new NAAQS, there is no question that meeting the new standards will require significant efforts across much of the country. Rep. Thomas Bliley (R-Va.), chairman of the House Commerce Committee, which has jurisdiction over the CAA, suggested that counties determined to be nonattainment areas for these standards will "undergo massive new lifestyle restrictions at the behest of the EPA."⁵⁵

[28 ELR 10505]

EPA's own documents provide evidence of the massive impact that these standards will have. In documents submitted to the House Commerce Committee, EPA estimated that 546 counties will not meet the new ozone rules and that 283 counties will violate the PM[2.5] rules.⁵⁶ In contrast, there were 59 nonattainment areas for the one-hour ozone NAAQS and 79 nonattainment areas for the previous PM[10] standards at the time the new standards became effective.⁵⁷ In other words, hundreds of new areas will be added to the list of those already struggling to attain the nation's air quality standards. Not surprisingly, the cost of bringing these hundreds of areas into attainment of the NAAQS will be high. The regulatory impact analyses that EPA prepared for these standards illustrates how costly and difficult it will be to attain these standards.⁵⁸ Using an attainment date of 2010 (a date that may be realistic for PM[2.5], but is beyond the normal five-year statutory attainment period for ozone if nonattainment designations are made in accordance with the recently adopted schedule), EPA estimates an annual direct cost of $ 9.6 billion for ozone attainment and $ 37 billion for PM[2.5] attainment in addition to the cost of meeting the prior standards.⁵⁹ Others have calculated the cost of attaining these standards to be as much as $ 90 to $ 150 billion annually.⁶⁰

Not only will attaining these standards be costly, it will be technically challenging, if not infeasible. According to EPA's regulatory impact analyses, 17 areas would still not attain the ozone standard even after applying all reasonably available control technologies costing less than $ 10,000 per ton.⁶¹ In addition, EPA predicted that 30 counties would remain nonattainment areas for PM[2.5] after the application of identifiable control measures costing less than $ 1 billion/[mu] g/m³.⁶²

The financial impact of the requirements for attaining these standards is widespread. Even for the "partial attainment" scenario for which EPA identified actual control measures,⁶³ the Agency's list of source categories and applicable control measures extends into the hundreds.⁶⁴ Of course, not all industry will bear the burden equally. Many of the business types that are most significantly impacted in terms of the ratio of control costs to sales (e.g., both residential and nonresidential construction) are predominantly small businesses.⁶⁵

Although EPA highlights the electric utility industry as likely to bear a significant portion of the control costs,⁶⁶ the Agency's estimate of annual costs of $ 2.6 billion is actually a significant underestimate of the likely cost to electric utilities of attaining the new NAAQS. Reductions of utility emissions of nitrogen oxides (NO_x) are a likely means of attaining the new NAAQS. EPA assumes that utilities would reduce their NO_x emissions in accordance with EPA's proposal to require such emission reductions in 22 states and the District of Columbia even in the absence of the new ozone NAAQS.⁶⁷ The Agency, therefore, does not consider the cost to achieve them as a cost of the new NAAQS.⁶⁸ However, the NO_x reductions that would be required under EPA's proposal, at a cost to electric utilities of $ 1 to $ 2 billion, are based in part on the need "to assure timely attainment of the 8-hour [ozone] standard."⁶⁹ Thus, the cost of the reductions are, at least in part, attributable to the new NAAQS but omitted from EPA's estimates.

The impact of complying with these new air quality standards will not be limited to the cost to industry of adding control equipment or changing production methods. The impact of implementing these standards will be felt by all of us through decreases in employment and disposable income. In fact, EPA acknowledges that jobs will be lost at electric generation units, coal mines, and coal transportation facilities as a result of the compliance activities required of electric power plants.⁷⁰ Although EPA does not report the total impact of the new standards on employment generally, a study by the Reason Public Policy Institute estimates that the number of lost jobs will reach at least 147,000 by 2010 (the date of EPA's projections) and will level off at no less than 200,000 lost jobs by 2014 and beyond.⁷¹ This study also predicts that the bulk of these job losses will occur within lower income ranges and small businesses.⁷² Finally, this study explains that per capita disposable income is likely to fall by $ 250 to $ 440 per year during the same period as a result of the new NAAQS.⁷³

EPA argues, however, that these estimates of the adverse impacts of the new NAAQS are too high.⁷⁴ EPA claims that costs can be reduced through technological innovation and creative approaches to implementation.⁷⁵ It is true that these impact estimates consider only available technology. Nevertheless, it is speculative to assume that technology will advance sufficiently not only to find ways to achieve reductions for which no demonstrated technology presently exists, but also to achieve those reductions at lower costs than the reductions we currently have the technology to achieve. Furthermore, while creative approaches to implementation [28 ELR 10506] are admirable, it is not clear that they will work in a scenario where all possible emission reductions must be made. In such a situation, it will not be possible to utilize only the most cost-effective controls. For example, EPA refers to a Clean Air Implementation Fund to which affected industries would be allowed to pay in lieu of buying controls that exceed $ 10,000 per ton for each pollutant.⁷⁶ However, the feasibility of this concept is questionable, given that EPA is unable to identify for many areas control measures, which are not already required, that could be purchased by the fund for $ 10,000.

EPA also argues that the health benefits from the new standards justify the costs of implementing the new NAAQS.⁷⁷ Yet, the Agency's own analyses show that quantifiable benefits may not exceed implementation costs if measures to attain the standards everywhere are implemented as required by law.⁷⁸ Moreover, EPA's analyses ignore the possible health effects associated with reducing the protective effect of tropospheric ozone with regard to skin cancer and cataracts and the negative health implications of reduced income and unemployment.⁷⁹

Furthermore, EPA has implicitly recognized that initial compliance with the new NAAQS will be infeasible for some areas by pointing out that CAA § 179(d) provides a way for states to avoid sanctions if they try, pursuant to an implementation plan approved by EPA, to attain the new standards but fail.⁸⁰ Under this provision, the state will be given additional time to attain the relevant standard, if it submits revisions to its implementation plan that "include such additional measures as the Administrator may reasonably prescribe, including all measures that can be feasibly implemented in the area in light of technological achievability, costs, and any nonair quality and other air quality-related health and environmental impacts."⁸¹

This provision, which was added to the Act in 1990, may provide a mechanism for addressing situations in which attainment of a NAAQS is not feasible or would have significant adverse health or economic consequences. In that sense, it may relieve the potentially draconian impact of the new standards. Unfortunately, in order for any state or locality to take advantage of this provision, it must first have developed an implementation plan that EPA initially accepts as adequate to attain the new NAAQS.⁸² Furthermore, when that plan fails, the state must essentially transfer its authority over NAAQS implementation to the federal government. This transfer of authority results from the charge given to the EPA Administrator to prescribe specific measures that must be included in the revised implementation plan.⁸³ A state that disagrees with EPA's assessment of the reasonableness or feasibility of those measures will nevertheless, under CAA § 179(a), be subject to sanctions if it does not adopt them.⁸⁴

In short, there is little question that implementing the new NAAQS will be both costly and difficult. EPA itself acknowledges that attaining them will likely cost billions of dollars annually. Moreover, both in calculating the cost for partial attainment of the NAAQS and in noting the provisions of § 179(d) concerning areas that fail to attain, EPA implicitly acknowledges that attainment of the standards will be infeasible in some areas, at least in the near future.

Will the Costs and Burdens of the New NAAQS Be Acceptable?

Given the potentially enormous impact of these new standards on society and the U.S. economy, it is reasonable to ask whether the American public will accept these consequences and whether such consequences are an inevitable result of the CAA. To date, EPA has focused its public information campaign on the health effects of air pollution that the Agency believes will be redressed by these standards (although others have questioned whether the standards will in fact improve health).⁸⁵ EPA has, however, promised to develop an implementation program that will minimize and defer the impact of the standards. As noted above, nonattainment areas will not be designated for up to three years for ozone and up to eight years for PM[2.5].⁸⁶ Moreover, the Administrator has considered providing 10 years to achieve attainment⁸⁷ despite the CAA's 5-year default period for states to achieve compliance in their nonattainment areas.⁸⁸ Evidently, the Agency is concerned about public reaction to implementation of these NAAQS.

Others in the government have more directly expressed their concern about whether the American public will accept the programs necessary to attain these standards. For example, Sen. John Chaffee (R-R.I.), known as a moderate on environmental issues, has opined that these standards may lead to "a revolt" against the CAA.⁸⁹ Some have questioned whether EPA, in an attempt to make the standards more palatable, has promised an implementation strategy that conflicts with the CAA. For instance, Rep. Michael Bilirakis (R-Fla.), chairman of the Health and Environmental Subcommittee of the House Commerce Committee, [28 ELR 10507] stated at a hearing on October 1, 1997, "The implementation plan either stretches the Clean Air Act far beyond its original intent or seeks without proper authority to make law."⁹⁰ Indeed, as discussed previously, questions about the legality of EPA's proposed approach led to language in Title VI of the recent Transportation Equity Act for the 21st Century that effectively amended the CAA with regard to the time for designating nonattainment areas.⁹¹

While the provisions in the Transportation Equity Act for the 21st Century have apparently resolved questions about the schedule for nonattainment designations, many questions concerning EPA's ability to deliver its proposed flexible implementation remain unresolved. As noted above, EPA has indicated that it plans to use a Clean Air Implementation Fund to limit the cost of attaining the ozone NAAQS to $ 10,000 per ton of pollution eliminated and that "local regulatory measures" will not be required to the extent the problem is regional.⁹² Section 172(c) of the CAA, however, requires state plans to "provide for attainment of the national primary ambient air quality standards" without any limitation on how much such attainment may cost.⁹³ CAA § 172(c) also requires specific measures including "the implementation of all reasonably available control measures as expeditiously as practicable" in nonattainment areas.⁹⁴ Thus, it is unclear whether EPA can follow its preferred implementation approach without additional actions by Congress.

Moreover, even if Congress helps EPA to deliver its promises for flexible implementation, the measures necessary to attain these standards will eventually take a toll on the economy, employment, health, and personal income in the United States. After all, even EPA's estimates put the cost of attainment at tens of billions of dollars a year.⁹⁵ At some point, the question of whether the American public is willing to accept the consequences of the new NAAQS will have to be resolved.

If the consequences of implementing these standards are unacceptable, as some in Congress have suggested, there appear to be two ways to make the ambient standards program more acceptable. First, it may be appropriate for EPA to reconsider whether the CAA precludes consideration of all factors except the possible risk of health effects from air pollution in specifying a NAAQS. Second, if the Act cannot be interpreted in a manner that produces results that are acceptable to the American public, it may be appropriate to consider revising the Act.

The first solution is obviously less drastic than the second. Further, it appears that reinterpretation of the Act would be a course open to the Agency. The Act itself does not directly address the factors that are relevant to the Administrator's judgment in setting a NAAQS that is requisite to protect the public health with an adequate margin of safety. Instead, the Administrator has historically reasoned that only the health effects of the pollutant are relevant.⁹⁶ The D.C. Circuit has essentially deferred to EPA's reasoning that factors other than the risk to health from the presence of the air pollutant in ambient air can be adequately addressed during the implementation process.⁹⁷

In the past, attainment of the NAAQS may not have necessitated publicly unacceptable measures. But if the Act requires that the NAAQS be attained, and the new NAAQS cannot be attained without unacceptable consequences, then deferring all consideration of issues other than the possible adverse health effects of the pollutant until implementation appears imprudent. Furthermore, consideration by EPA of a wide array of factors would provide a purpose for the CASAC's advice to the Agency on the health, welfare, social, economic, and energy effects of NAAQS implementation.⁹⁸ Moreover, in the case of the present NAAQS, it appears that consideration of the full array of impacts (even a full of array of health impacts) might suggest that less stringent NAAQS would provide the requisite level of health protection with far fewer negative impacts on the U.S. economy and society.

Conclusion

The NAAQS for PM[2.5] and ozone that EPA promulgated in 1997 will have a substantial impact on U.S. industry and society as a whole. EPA has promised flexible implementation to minimize that impact while protecting the public health. Yet, it is unclear whether the CAA permits the flexibility that EPA has promised in implementing the standards. Indeed, questions about EPA's authority to deliver its promises of flexibility have already led Congress to codify some of the Agency's promises. More broadly, however, the time may have come to reexamine whether the only question that is relevant in establishing and revising NAAQS is whether a pollutant in the ambient air at a given concentration risks negatively affecting health.

1. National Ambient Air Quality Standards for Particulate Matter, 62 Fed. Reg. 38652 (July 18, 1997) (to be codified at 40 C.F.R. pt. 50) [hereinafter NAAQS for PM]; NAAQS for Ozone, 62 Fed. Reg. 38856 (July 18, 1997) (to be codified at 40 C.F.R. pt. 50) [hereinafter NAAQS for Ozone].

2. 42 U.S.C. § 7408(a)(1), ELR STAT. CAA § 108(a)(1).

3. Id. § 7408(a)(2), ELR STAT. CAA § 108(a)(2).

4. Id. § 7409, ELR STAT. CAA § 109.

5. Id. § 7409(b)(1), ELR STAT. CAA § 109(b)(1).

6. Id. § 7409(b)(2), ELR STAT. CAA § 109(b)(2).

7. NAAQS for Ozone, supra note 1, at 38878 (citing National Primary and Secondary Ambient Air Quality Standards, 36 Fed. Reg. 8186 (Apr. 30, 1971)).

8. NAAQS for Ozone, supra note 1, at 38878; see also U.S. EPA, RESPONSES TO SIGNIFICANT COMMENTS ON THE 1996 PROPOSED RULES ON THE NAAQS FOR OZONE 123-26, 128-31 (1997).

9. See,e.g., Natural Resources Defense Council, Inc. v. U.S. EPA, 902 F.2d 962, 973, 20 ELR 20891, 20896 (D.C. Cir. 1990).

10. 42 U.S.C. § 7409(d)(2)(A), ELR STAT. CAA § 109(d)(2)(A).

11. Id.

12. Id. § 7409(d)(2)(C), ELR STAT. CAA § 109(d)(2)(C).

13. Id. § 7407, ELR STAT. CAA § 107.

14. Id. § 7410, ELR STAT. CAA § 110.

15. Id. §§ 7410(a)(2)(c), 7413(a), ELR STAT. CAA §§ 110(a)(2)(c), 113(a).

16. Id. § 7502(a)(2), ELR STAT. CAA § 172(a)(2).

17. Id.

18. Id.

19. Id. § 7409(d)(1), ELR STAT. CAA § 109(d)(1).

20. Id.

21. National Primary and Secondary Ambient Air Quality Standards, 36 Fed. Reg. 8186, 8187.

22. Id.

23. Id.

24. Revisions to the NAAQS for PM, 52 Fed. Reg. 24634 (July 1, 1987).

25. Id. at 24639, 24645.

26. Id. at 24663.

27. American Lung Ass'n v. Browner, 884 F. Supp. 345, 25 ELR 21428 (D. Ariz. 1994).

28. NAAQS for PM, supra note 1, at 38667.

29. U.S. EPA, PUB. No. EPA-4521R-96-016, REVIEW OF THE NAAQS FOR PM IV-2 (1996).

30. NAAQS for PM, supra note 1, at 38711-12.

31. Id. at 38657. The Agency also cited concerns about hospital admissions and aggravation of chronic disease. Mortality concerns were clearly most important, however.

32. Letter from George T. Wolff, Chair, CASAC, to Honorable Carol M. Browner 2 (June 13, 1996).

33. National Primary and Secondary Ambient Air Quality Standards, supra note 21, at 8187.

34. Id.

35. Revisions to the NAAQS for Photochemical Oxidants, 44 Fed. Reg. 8202 (Feb. 8, 1979).

36. Id. at 8220.

37. NAAQS for Ozone, supra note 1, at 38856.

38. See Presidential Memorandum on Implementation of Revised Air Quality Standards for Ozone and PM, 62 Fed. Reg. 38421, 38424 (July 18, 1997) [hereinafter Presidential Memorandum]. The new standards will create more nonattainment areas than exist for the one-hour standards and will require additional emission reductions. EPA's Administrator has estimated that an eight-hour standard of 0.09 ppm would have provided comparable public health protection to (i.e., of comparable stringency to) the one-hour standard. NAAQS for Ozone: Proposed Decision, 61 Fed. Reg. 65716, 65729 (Dec. 13, 1996).

39. NAAQS for Ozone, supra note 1, at 38894.

40. Id. at 38863.

41. Letter from George T. Wolff, Chair, CASAC, to Honorable Carol M. Browner 3 (Nov. 30, 1995) (citing lack of a "bright line" between the standard indicating one was "significantly more protective of public health").

42. Memorandum from Sally L. Shaver, Director, Air Quality Strategies and Standards Division, to Air Division Director, Regions I-X, attachment at 3 (May 6, 1998) (available on the Internet at http://www.epa.gov/ttn/oarpg/tl pgm.html (visited June 30, 1998)).

43. Id., attachment at 4.

44. 42 U.S.C. § 7407(d)(1), ELR STAT. CAA § 107(d)(1).

45. Id., attachment at 3, 4.

46. Id., attachment at 3.

47. Id., attachment at 4.

48. Pub. L. No. 105-178, § 6101-04 (1998).

49. Id. § 6102 (c)(1).

50. Id. § 6102(d).

51. Id. § 6102(a), (b).

52. Id. § 6103(a).

53. EPA plans to issue the guidance this year. Memorandum from Sally L. Shaver, supra note 42, attachment at 3.

54. Memorandum from Sally L. Shaver, Director, Air Quality Strategies and Standards Division, to Air Division Director, Regions I-X, attachment at 3-4 (June 12, 1998) (available on the Internet at http://www.epa.gov/ttn/oarpg/tlpgm.html (visited on June 30, 1998)).

55. Committee on Commerce, EPA Now Admits 634 Counties Will Violate New Air Standards (July 29, 1997) http://www.house.gov/commerce/releases/pr072997.htm.

56. Id.

57. U.S. EPA, 1996 NATIONAL AIR QUALITY AND EMISSIONS TRENDS REPORT 2 (1998).

58. INNOVATIVE STRATEGIES AND ECONOMICS GROUP, U.S. EPA, REGULATORY IMPACT ANALYSES FOR THE PM AND OZONE NAAQS AND PROPOSED REGIONAL HAZE RULE B-13 to B-18 (July 16, 1997) [hereinafter RIA].

59. Id. at ES-13 to ES-14.

60. ANNE E. SMITH ET AL., COSTS, ECONOMIC IMPACTS, AND BENEFITS OF EPA'S OZONE AND PARTICULATE STANDARDS 4 (Reason Public Policy Institute, Policy Study No. 226, July 1997). Although the final standards are somewhat less stringent than the proposed standards on which this study focused, most of the costs in both the EPA and the Reason Public Policy Institute analyses result from the need to meet the PM[2.5] standards. The annual PM[2.5] standard, which is generally expected to be more difficult to attain and maintain than the daily standard, was adopted in its proposed form. Therefore, these costs estimates are still reasonably accurate.

61. See RIA, supra note 58, at ES-12.

62. Id. at ES-13.

63. See supra text accompanying notes 61-62.

64. See RIA, supra note 58, at B-13 to B-18.

65. Id. at H-30.

66. Id. ch. 11, at 16.

67. EPA has proposed to find the implementation plans for 22 states and the District of Columbia inadequate and to require those states to impose caps on NO_x emissions, primarily from utility power plants. The caps that EPA has proposed would require substantial reductions in NO_x emissions in the 22-state region. 62 Fed. Reg. 60318 (Nov. 7, 1997).

68. RIA, supra note 58, ch. 4, at 26.

69. 62 Fed. Reg. at 60367.

70. RIA, supra note 58, at H-18.

71. See SMITH ET AL., supra note 60, at 40.

72. Id.

73. Id. at 39, 41.

74. RIA, supra note 58, at ES-10.

75. Id.

76. Presidential Memorandum, supra note 38, at 38429 (encouraging concept that "would allow sources facing control costs higher than $ 10,000 a ton for any of these pollutants to pay a set annual amount per ton to fund cost-effective emissions reductions from nontraditional and small sources").

77. See supra notes 31-32, 40-41 and accompanying text.

78. See RIA, supra note 58, ch. 13, at 1.

79. The U.S. Department of Energy's Office of Health and Environmental Research estimated that EPA's new ozone NAAQS could cause 25 to 50 more melanoma skin cancer deaths and increase the number of cataract cases by 13,000 to 28,000 each year. See Randall Lutter & Christopher Wolz, UV-B Screening by Tropospheric Ozone: Implications for the NAAQS, 31 ENVTL. SCI. & TECH. 142A, 144A (1997). Others have calculated that if attainment of the new standards costs $ 10 billion annually (well within EPA's estimated cost range), it will contribute to 2,200 premature deaths annually. See RALPH L. KEENEY & KENNETH GREEN, ESTIMATING FATALITIES INDUCED BY ECONOMIC IMPACTS OF EPA's OZONE AND PARTICULATE STANDARDS 8 (Reason Public Policy Institute, Policy Study No. 225, June 1997).

80. Brief for Respondent at 74, American Trucking Ass'n v. EPA, No. 97-1441 (D.C. Cir. filed July 18, 1997).

81. 42 U.S.C. § 7509(d)(2), ELR STAT. CAA § 179(d)(2).

82. Otherwise the Administrator's response would be sanctions on the state. See id. § 7509(a), ELR STAT. CAA § 179(a).

83. See id. § 7509(d)(2), ELR STAT. CAA § 179(d)(2).

84. Id. § 7509(a), ELR STAT. CAA § 179(a).

85. See supra notes 31-32, 40-41 and accompanying text.

86. See supra notes 48-53 and accompanying text.

87. See Presidential Memorandum, supra note 38, at 38425.

88. See 42 U.S.C. § 7502(a)(2), ELR STAT. CAA § 172(a)(2).

89. Senators Grill EPA Administrator on Ozone, PM Plan, OCTANE WEEK, Feb. 17, 1997, available in LEXIS, News Library, CURNNWS File.

90. Implementation of the CAA NAAQS Revisions for Ozone and PM: Before the Subcomm, on Health and Environment and the Subcomm, on Oversight and Investigations of the House Comm. on Commerce, 105th Cong. 1 (Oct. 1, 1997) (transcript available from Federal Information Systems Corporation).

91. See supra notes 48-53.

92. See Presidential Memorandum, supra note 38, at 38423-30.

93. 42 U.S.C. § 7502(c)(1), ELR STAT. CAA § 172(c)(1).

94. Id.

95. See supra text accompanying note 59.

96. See supra notes 7-8 and accompanying text.

97. See, e.g., Natural Resources Defense Council, Inc. v. U.S. EPA, 902 F.2d 962, 973, 20 ELR 20891, 20896 (D.C. Cir. 1990) (upholding the EPA Administrator's determination of the primary standards for PM without considering the health impacts of implementing the standards).

98. See 42 U.S.C. § 7409(d)(2)(C), ELR STAT. CAA § 109(d)(2)(C).