Major Titles of the 1990 Clean Air Act
Amendments
Title I (Urban Air Pollution)
Gives 96 cities with marginal to severe ozone problems 3-20 years to meet air quality standards. Areas with more severe problems will have to implement more stringent controls, such as improved inspection/maintenance programs.
Forty-one cities with moderate or serious carbon monoxide pollution will have to adopt oxygenated fuels programs or other measures, depending on the degree of pollution.
Seventy-two areas with moderate or serious particulate matter (PM-10) pollution will have to adopt reasonable available control measures or best available control measures, among others.
Title II (Mobile Sources)
Provides for reduced tailpipe emissions in cars and light trucks, beginning in 1994 model year.
Requires reformulation of gasoline to reduce emissions and use of oxygenated fuels in winter to reduce carbon monoxide in certain areas.
Provides for centrally fueled vehicle fleets in 26 dirtier areas to buy low-emission vehicles beginning in 1998: requires sale of some low-emission vehicles in California beginning with the 1996 model year.
Title III (Air Toxics)
Lists 189 toxic air pollutants that must be reduced through stringent control technology on sources within 10 years. If residual risk remains, additional standards would be issued.
Title IV (Acid Rain)
Mandates reduction of sulfur dioxide emissions from power plants by more than half, to an annual level of 8.9 million tons. Plants phased into program in 1995 and 2000. Issues allowances to plants for specified levels of emissions: allowances can be bought, sold, or traded.
Title V (Operating Permits)
Establishes operating permits program for major sources in Title I and sources in other titles.
Title VI (Stratospheric Ozone)
Provides for phase-out of ozone-depleting chemicals on a schedule similar to that established by the Montreal Protocol.
Milestones of the 1990 Clean Air Act Amendments
- November 1990:
President Bush signs the act.
- July 1992:
EPA announces initial list of 174 industrial sources potentially subject to maximum achievable control technology (MACT) standard for air toxics.
- September 1992:
EPA announces 10-year schedule for issuing MACT standards for air toxics.
- November 1992:
Winter oxygenated fuels program begins in 20 areas
- March 1993:
EPA conducts first auction of emission allowances.
- 1993:
States must develop operating permit programs for sources covered by the act.
- 1994:
New cars and light trucks must have reduced tailpipe emissions.
- December 1994:
Areas initially designated PM-10 nonattainment must attain air quality standards.
- 1995:
Phase I sulfur dioxide emission reductions must be met by larger, dirtier power plants.
- 1995:
Reformulated gasoline required in nine worst ozone areas.
- 1996:
Begin selling 150,000 new low-emission vehicles in California annually.
- 1996:
Cities with moderate or worse ozone levels must achieve 15% volatile organic chemical reduction.
- 1996:
Lead is banned from motor-vehicle fuel.
- 1998:
Twenty-six dirtiest areas must adopt programs limiting emissions from centrally fueled fleets of 10 or more vehicles.
- 1999:
Increase annual sales of new low-emission vehicles to 300,000 in California.
- 2000:
Phase II sulfer dioxide emission reductions must be met by power plants.
- 2000:
Chlorofluorocarbons, halons, and carbon tetrachloride phased out.
- 2000:
Tighter standards for low-emission vehicles in California.
- 2002:
Methyl chloroform phased out.
- 2010:
Los Angeles must attain ozone standards.
- 2030:
Hydrochlorofluorocarbons phased out. |
Two and a half years after the 1990 amendments to the Clean Air Act became law, some of the provisions implementing the amendments have fallen as much as two years behind schedule, triggering lawsuits from parties disgruntled with the pace of implementation or the character of rules being developed. Yet most critics and supporters of the amendments still call it a remarkable, even revolutionary, piece of legislation that sooner or later will clean the majority of pollutants from the air and improve the health of Americans. Few people wonder whether the amendments could succeed; rather, they question how fully the amendments will be implemented or how much the changes will cost.
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Robert Brenner-- Noncancer effects should also be a focus of air toxics program. |
Ron White, director of environmental health for the American Lung Association, says, "The question really is . . . can we get strong, effective, yet cost-effective regulations on the books that are really going to significantly improve air quality?" Rob Brenner, director of the Air Policy Office in the Office of Air and Radiation, which administers EPA air programs, believes the answer to this question is yes. Said Brenner, "When you go through the different pieces of the act . . . and you add it all up . . . you get up to 55 billion pounds a year of emission reductions when the thing is fully phased in after the year 2000. That is enough, we believe, to have a pretty dramatic effect on people's health."
David Driesen, a project attorney with the Natural Resource Defense Council, points out some of the problems with implementing the amendments. There's enormous pressure from regulated industries to weaken the Clean Air Act. "The question is, will the Clinton administration have the energy and the commitment to stand up to the special interests to enforce it well?"
The 1990 amendments seek to reduce air emissions by 57 billion pounds annually when fully implemented, by the year 2005. The amendments aim primarily at urban air pollution (ozone, sulfur dioxide, carbon monoxide, particulates), and acid rain (sulfur dioxide). The amendments also require a phase-out of chemicals, primarily chlorofluorocarbons, that deplete stratospheric ozone. The amendments use innovative regulatory procedures.
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David Driesen--Will Clinton enforce the Clean Air Act? |
The regulatory stage has been set to achieve the majority of the reductions. By November 1992, EPA had in place rules to reduce emissions by 48 billion pounds per year. The biggest portion, 20 billion pounds, should be achieved by the acid rain program, which begins operation in 1995. "I'm pretty confident that will occur," said William Rosenberg, head of EPA's Air and Radiation office during the Bush administration. "Probably half of what has to be reduced by '95 has already been reduced."
The 1990 amendments were passed in large part to complete efforts began by the Clean Air Act of 1970 and amendments made in 1977. Since 1970, ambient concentrations of the six "criteria pollutants" regulated under the acts have been greatly reduced. In addition, emissions of lead have dropped 98%, according to EPA. Particulate matter, such as soot and dust, has fallen 61%, carbon monoxide 50% and sulfur oxides 27%. Volatile organic compounds (VOCs) and nitrogen oxides, precursors to ozone, have dropped 38% and 1%, respectively.
Despite these improvements in air quality, some criteria pollutants continued to be serious problems during the 1980s. For example, EPA estimated in 1990 that 100 million people were living in cities that had not attained public health standards for ozone. Acid rain, resulting from sulfur dioxide and nitrogen oxide emissions, remained uncontrolled. In addition, EPA listed and established emission standards for only seven chemicals (arsenic, asbestos, benzene, beryllium, mercury, radionuclides, and vinyl chloride) deemed to be toxic air pollutants.
The 1990 amendments address each of these major issues. They also require a phase-out of the most damaging of the stratospheric ozone-depleting chemicals, such as chlorofluorocarbons and halons, on a schedule similar to that required by the Montreal Protocol, the international agreement on these substances. Finally, the amendments provide for a variety of supportive research, enforcement, and other measures. One of the research projects mandated by the amendments is a two-part comprehensive cost-benefit analysis of the Clean Air Acts being conducted by EPA. The first part consists of a retrospective analysis of the 20 years preceding 1990 and the second part takes a prospective look at the impact of the new legislation. The prospective has not yet been started; the retrospective is due later this year.
Flexible Approaches
Few people have more than weak criticism of the 1990 amendments. Many, in fact, praise its innovative approach to regulation. EPA used flexible techniques to formulate the amendments--negotiations, round-table discussions, advisory committees--which produced the understanding, trust, and consensus that led to successful rule making. Rosenberg was particularly pleased with the results of the round-table discussions. "That procedure is real, important government reform," he said. "It enables all the parties to understand where everybody's coming from, to review the foundation for the law, and to try to craft something that at least was acceptable procedurally and operationally."
Bill Bumpers, a lawyer representing several power utilities, gives equally high marks to the advisory committee. "Probably the single most effective regulatory development tool the agency has ever used was the acid rain advisory committee," Bumpers said. About 50% of the committee represented EPA, environmentalists, and industries such as utility companies and coal producers. "These were people . . . who were very untrusting of the other side, and they realized that everyone had a fairly common goal, and that was to get an effective implementation of the amendment. And I think the results of that process show in the regulations."
Criticism of the 1990 amendments generally focuses on their implementation. Some are concerned about the slowness of the rule-making processes, others about the pressure of deadlines, and most are concerned about the quality of the regulations being generated.
Huge Regulatory Effort
The immensity of the regulatory task mandated by the 1990 amendments is sometimes difficult to grasp. The new regulations are expected to fill 6000 pages of the U.S. code books; all other environmental codes together fill only 9000 pages. Virtually all stationary sources of air pollution of any size in or near urban areas will be regulated, requiring the issuance of operating permits to thousands of facilities. EPA's Air and Radiation Office, which administers the Clean Air Act, previously issued five to eight rules a year; during the two years after the signing of the amendments, the agency proposed or finalized 76 implementation rules.
"On balance, EPA's done a pretty good job of getting regulations out the door and having those regulations track fairly reliably what Congress expected," says Joseph Goffman, senior lawyer with the Environmental Defense Fund. "This process has really just started. It's going to be many years before the bulk of the requirements are engaged and are really starting to change the world out there."
EPA's Brenner estimates a workload increase of 50% or more in the Air and Radiation Office since passage of the 1990 act. The office budget has nearly doubled in that time, growing from $212 million in 1990 to a proposed $404 billion in 1994. Says Brenner, "We've certainly held our own as far as agencies go."
Tight Deadlines
The 1990 amendments are to be implemented by the year 2005. To ensure the act's implementation by that time, dozens of interim deadlines have been established. EPA has missed its deadline in a number of cases. "One of the key resources is time, and you can only do so much to increase that," says Goffman. "So some of the delays are just built into the dimensions of the volume and complexity of the job that has to be done."
Several parties, including Congressman Henry Waxman (D, California), Public Citizen, and the Sierra Club, have been helping EPA meet its deadlines. "Wherever we're missing deadlines, we're getting sued very automatically," says Brenner, "and we're getting court deadlines." In November, for example, Waxman announced settlement of a lawsuit against the Bush administration that put into place deadlines for 19 actions required by the amendment but that were never taken. The strategy seems to work. Says Brenner, "The agency has just never missed court deadlines that I'm aware of."
Others voice concern that EPA may produce faulty rules in its haste to meet deadlines and could wind up in court for not properly analyzing a rule before issuing it. "Process takes time," says Gregory Dana, vice president of the Association of International Automobile Manufacturers. "You're better off, I think, spending the extra four months you would have spent to do the rule right . . . rather than doing a sloppy job and end up causing somebody to sue you."
Concern over haste at EPA extends beyond developing regulations to conducting the quality science needed to support such far-reaching legislation. "Particularly, when you embark on these long-term changes, good science is very important," Rosenberg said. As an example, Rosenberg cited the findings of a 1991 National Academy of Sciences study that indicated the importance in some localities of concentrating on nitrogen oxides, rather than on VOCs, in attempting to reduce ozone. He said the finding is causing a shift in emphasis from VOC reduction, which has been the focus of regulators for the last 20 years. "Good science can really get you much more cost-effective initiatives that work better and lower the price to society. And it's a small price to pay for the potential loss of economic activity that comes from going in the wrong directions."
Bush Legacy
The 1990 amendments are beginning to chalk up the first successes, but seldom are they credited to George Bush. However, Rosenberg, a Bush appointee, says that Bush was the first president to propose an environmental statute to Congress and was the one who broke the 10-year stalemate over passage of the amendments. Goffman recalls how the president forged an unusual alliance, first with environmentalists and then with congressional Democrats, to support the amendments.
People in the administration viewed emissions allowance trading as an important regulatory reform to inject into the Clean Air Act, Goffman explained, and the Environmental Defense Fund saw it as a means to get even steeper emissions reductions. "Suddenly you had an environmental group and a Republican White House in agreement on how to deal with a particular and very politically vexing environmental problem," he said. Democrats on Capitol Hill saw the coalition as a opportunity to pass the long-cherished acid raid program. Once the Democrats joined, the coalition was unstoppable.
The history of the Bush administration on environmental policy remains a puzzle, Goffman said. Political strategists in the Bush administration aided the perception that Bush was anti-environment. But "the environmental gains in the long run are going to vastly outweigh the work of the Competitiveness Council and Dan Quayle," Goffman said. "And yet, people are going to go to their graves remembering Dan Quayle as the characteristic actor on environmental policy for the Bush administration."
Acid Rain
The acid rain program is one of the most significant parts of the 1990 amendments. Its proposed sulfur dioxide emission reductions of 10 million tons per year dwarf the reductions of any other program. The acid rain program is noted for its innovative emissions allowance marketing system, which is expected to save the utility industry billions of dollars.
In the first phase of the program, 110 larger, dirtier power plants will receive operating permits that require reduced emission levels starting in 1995. Each plant will be assigned a number of emission allowances (one allowance permits one ton of sulfur dioxide emissions in a year) equal to the permitted emissions level. Plants that reduce their emissions below their permitted levels can sell or trade the excess allowances. Plants that exceed permitted levels must obtain additional allowances or suffer a $2000 per ton excess emissions fine and other penalties. The allowance system gives utilities great flexibility in deciding how and when to reduce emissions as well as an economic incentive for making those reductions. In the year 2000, the second phase will bring an estimated 800 smaller, cleaner power plants into the emissions control program. The market-based allowances system is apparently working well. Private sales of allowances began last October, and in March EPA conducted its first auction of allowances from its reserves.
The acid rain program also requires utilities to install systems to continuously monitor sulfur dioxide, nitrogen oxide, and carbon monoxide as well as other emissions. A rule for the monitoring systems has been developed, but according to Driesen, the rule is inadequate. "That's a legacy of the Bush administration that didn't want to impose the cost of good monitoring on sources," Driesen said. The rule requiring enhanced monitoring had a November 1992 deadline. The National Resources Defense Council is negotiating with EPA about a new deadline, Driesen said, and the rule may come out this year.
Bumpers describes the utility industry as "befuddled" about the emissions monitoring program. "For a lot of units . . . it's going to cost more to monitor their emissions than it is to pay for the allowances for the emissions. That's obviously a disadvantage, a disincentive to use some units." He said about six parties have filed petitions for reconsideration of various elements of the final rules. He added that the cost of equipping a stack with devices to meet all the monitoring requirements can range from $150,000 to $250,000.
Urban Air Pollution
One major goal of the 1990 amendments is to reduce urban pollution from ozone, carbon monoxide, and particulate matter such as soot or dust. The amendments call for urban areas to reduce these pollutants by specific amounts within specific deadlines or face sanctions such as a loss of highway funds or a forced reduction of twice the unachieved amount. Areas in violation of the ozone standard, for example, have to submit a plan in November 1993 showing how they will reduce VOCs, which contribute to ozone, by 15% by 1996, compared with the 1990 base emissions.
The National Academy of Sciences ozone study cited by Rosenberg led EPA in 1992 to issue guidelines to states for implementing technologies to reduce nitrogen oxide emissions. That move gives states another tool for reducing ozone, but it has also raised concerns among people in industry.
Bumpers explained that there are about 60 urban areas in the country that are far enough from attaining safe ozone levels that requirements for what EPA has defined as "reasonably available control technology" could be imposed on major sources that emit nitrogen oxides, such as utilities. "For a lot of units for a lot of utilities, the costs of meeting the nitrogen oxide emission limitations . . . will far outstrip the costs of meeting the sulfur dioxide requirements under the acid rain program," he said. EPA estimates that by the year 2000, the new measure will reduce nitrogen oxide emissions by 2 billion pounds per year.
Motor Vehicles
The Clean Air Act authorizes about a dozen programs aimed at producing cleaner automotive fuels and less-polluting vehicles. The major programs include gasoline reformulated to reduce emissions, oxygenated fuels to reduce wintertime carbon monoxide, manufacture of cleaner cars and trucks in general, as well as new generations of low-emission vehicles for California and other areas with significant pollution problems.
The oxygenated fuels program, started last November, seemed to help reduce winter carbon monoxide emissions in 20 urban areas, which recorded only 2 days of carbon monoxide levels above the health standard. EPA reported that during the previous winter season, the standard was exceeded on 43 days. Skeptics, however, suggest that weather or other factors may have contributed significantly to the carbon monoxide reduction and are unwilling to give the oxygenated fuels program full credit.
Oxygenated fuel is usually formulated with methyl tertiary butyl ether (produced from natural gas) or with ethanol. These oxygenates are added to gasoline to improve fuel combustion, which is less efficient in the cold. During the past season, some motorists complained about headaches and dizziness from oxygenated fuels. EPA and others are conducting accelerated research into the possible health effects from MTBE exposure. The investigations should be completed before next winter.
The reformulated gasoline program promised to reduce ozone-forming VOCs and toxic emissions by 15% in 1995 and by more in 2000. However, EPA's rule for the program, due in November 1991, is still being negotiated among various parties, although the rule should be out in September, said David Deal, managing attorney at the American Petroleum Institute.
Negotiations over the rule have been difficult, in part because of the complexities of making reformulated gasoline. The fuel, which needs to have significantly reduced emissions of VOCs and air toxics, must be reformulated one way in the summer and another in winter and has to be produced from varying grades of crude oil. Refiners would like about 18 months for changeover before 1995, when reformulated gasoline will be required in the nine worst ozone areas, Deal said.
The 1990 amendments have also encouraged the development of alternative, nongasoline fuels. The amendments "started the movement toward the pure-alternative fuels: natural gas, methanol, ethanol, electricity," Rosenberg said.
Several programs in the amendments aim at developing cleaner cars, trucks, and buses. An amendment requirement that will be particularly important for reducing ozone is the motor vehicles inspection/maintenance program. This rule should reduce VOC emissions by 5.6 billion pounds a year, according to EPA estimates. Areas that don't meet certain ozone standards will have to implement such a program, which calls for centralized "test only" centers separate from maintenance centers. "The key improvement is the introduction of a centralized system so the same guy who repairs your car doesn't test it," said Driesen. "That's a conflict of interest which has made past systems fairly ineffective."
In addition, the 1994 model year will see the first cars and light trucks with reduced tailpipe emissions. Standards for the new vehicles require a 30% reduction in hydrocarbons and a 60% reduction in nitrogen oxide emissions below present standards. Another program, to begin in 22 cities in 1998, requires centrally fueled fleets of vehicles, such as taxis and delivery trucks, to have increasing numbers of low-emission vehicles.
The most controversial of the new clean vehicles is the so-called California low-emission vehicle. The amendments require annual sale of 150,000 of these cars beginning in the 1996 model year and 300,000 in the 1999 model year and beyond. New York, Maine, and Massachusetts have opted to adopt the California cars to help with urban air pollution reductions required by the amendment. All three states have been taken to court by the American Automobile Manufacturers Association and the Association of International Automobile Manufacturers.
The auto makers argue three points: emission reductions from the California cars are too small to justify their high cost; the cars are not practical in states that don't have California's specially formulated fuels; and manufacturers would have to modify California cars for use in other states, essentially developing a third vehicle. The 1990 amendments assure auto makers that they need build only two general types of low-emission vehicle, one for use in California and the other for use in the rest of the country.
In January, a federal district judge in New York ruled in favor of the auto makers on the "no third vehicle" issue. The state has filed for a rehearing of the case. "New York State is not asking Detroit to reinvent the wheel," said Thomas Jorling, New York Environmental Conservation Commissioner, after the decision. "We simply ask that Detroit send to New York the same production vehicle that it already delivers to California. . . . protests from the car makers about special fuels and minor design modifications obscure the real issue. Why won't Detroit give New York . . . a clean car?" The court has yet to announce whether it will rehear the New York case. The suits in Maine and Massachusetts have only recently been filed.
Air Toxics
Air toxics include all hazardous air pollutants listed by Congress in the Clean Air Act, except the six more common criteria pollutants covered elsewhere in the act. Before 1990 only seven air toxics had been regulated. The new amendments listed 189 air toxics and established a two-phase process for controlling their emission.
In the 10-year first phase, EPA is to set toxic emission standards of "maximum achievable control technology" (MACT) for major industrial sources and smaller "area sources" such as dry cleaners, based on the best-controlled 12% of sources in the industries. During this phase, all designated air toxics sources are to comply with the MACT requirements. In the second phase, EPA will examine residual risk levels at facilities that have installed control technology. If unacceptable risks remain, tighter standards will be required.
EPA took a major step forward with the air toxics program in October when it proposed an emission standard of the synthetic organic chemical manufacturing industry. The standard covers 149 of the 189 chemicals listed in the amendment. EPA estimates that when the standard is in place, it will reduce air toxics emissions in this industry by 80%.
The air toxics program should result in major health benefits in several areas. "In a lot of the literature the focus is on cancer deaths," said EPA's Brenner, "but there are also lots of noncancer effects, reproductive effects, effects on the respiratory systems and organs such as kidneys and liver which can be damaged from exposure to these toxic chemicals."
EPA has at least two health-effects studies under way to support the air toxics program. In one, scientists are gathering health-effects data from industrial and other sources on the 189 listed air toxics, said Dennis Pagano, an environmental scientist in EPA's Pollutant Assessment Branch. A section of the amendments allows EPA to require industry to perform some of the health effects testing, and the agency is exploring this approach. In the other study, EPA is investigating ways to decrease the uncertainties of methods used in analyzing health risks from these chemicals, Pagano said. The improved methodology will be used during the second phase of the air toxics program to assess the remaining air-toxics risk after control technology has been installed.
The 1990 amendments also mandated the formation of a Risk Assessment and Management Commission to examine the use of federal risk assessments and risk management in environmental decision making. The panel, made up of 10 scientific experts appointed by Congress, the National Academy of Sciences, and former President Bush, is expected to convene soon. (See related story p. 217 in Forum). The panel will make its report to Congress and the president in early 1995.
In spite of implementation delays, tight deadlines, lawsuits, and concerns about economic impacts, many observers still say the 1990 amendments to the Clean Air Act is one of the most far-reaching pieces of environmental legislation in the nation's history and that, indeed, it will accomplish many of its goals. That optimism is due in part to EPA's emphasis on flexible implementation approaches, market-based economic incentives, performance standards, and consultations with industry, environmentalists, and others in developing regulations, as well as the watchdog role of these groups in making sure implementation continues to move along. "For all these reasons, I'm confident that the act is going to be, if not fully implemented, virtually fully implemented," says Brenner. "All of the significant emission reductions will be attained."
Hugh McIntosh