Clean Air Act Issues

CONTENTS FOR THIS SECTION

Oversight
Legislation

Border Smog
Methyl Bromide

Oversight. Congress expressed its interest in the standards even before EPA formally proposed them. In report language accompanying EPA's fiscal 1997 appropriation, the conferees suggested that it was premature for EPA to promulgate new particulate standards. Numerous Senators and Representatives (about 100 in all) signed letters to the EPA Administrator concerning aspects of the proposal prior to its publication.

After EPA's proposal, more than 250 Representatives and Senators wrote to EPA, and congressional committees held 28 days of hearings regarding various aspects of the proposals. The principal fora for congressional review were the committees of jurisdiction: the Environment and Public Works Committee in the Senate, and the Commerce Committee in the House. Other committees weighed in, however, including the House Committees on Government Reform and Oversight, Agriculture, Science, Small Business, Judiciary, and Appropriations, and the Senate Agriculture, Appropriations, and Commerce Committees.

Among the questions considered during oversight were: whether there is sufficient scientific justification for the proposed changes; the potential impacts on regions and sectors of the economy; EPA's decision that the NAAQS revisions are not subject to the Regulatory Flexibility Act (which would require numerous steps to consider potential impacts on small business of the proposed rules); the legal authority for EPA's proposed implementation plan; and the broader question of how to set health-based standards in cases where science indicates a continuum of health effects at all levels of exposure.

Legislation. Congress had a number of legislative options for responding to EPA's promulgation, including review of the regulations under a new congressional review process, use of the appropriations process, amendments to the Clean Air Act, amendments to other moving legislation, or a free-standing bill focused on the NAAQS decision.

For a time, it appeared that Congress might act on a free-standing bill. Opponents of the new rules organized behind H.R. 1984, a bill introduced by Representatives Klink, Boucher, and Upton and cosponsored by both the Chairman and ranking minority member of the House Commerce Committee. The bill had 199 cosponsors as of April 1998. Companion legislation, S. 1084, was introduced by Senator Inhofe. Both bills would have provided a 4-year moratorium on the promulgation of new or revised ozone and particulate standards, and would have required EPA to complete another review of the old standards, deciding whether to retain them, revise them, or promulgate new standards within 4 - 5 years of enactment. The bills would have required EPA or other agencies to conduct research in areas related to the establishment of a particulate standard; allowed EPA to require states to monitor for fine particulates; and authorized $75 million during each of the next 5 fiscal years to accomplish these purposes. (The Senate bill also would have authorized $25 million annually for research on the health effects of allergens on asthmatics.)

Markup of these bills was not scheduled, however, in part because they appeared to lack sufficient support to overcome a likely Presidential veto. This apparent stalemate moved Senator Inhofe to offer compromise language in the form of an amendment (S.Amdt. 1687) to the transportation reauthorization bill (S. 1173). The amendment was approved by voice vote March 4, 1998, after it was agreed to by EPA and the bipartisan leadership of the Senate Environment and Public Works Committee. The transportation bill passed the Senate March 12.

The House version of the bill (H.R. 2400) passed April 1, without provisions addressing the air quality standards. After some discussion, the conferees adopted the Senate amendment, with one additional provision, as Title VI of the bill, and the conference report (H.Rept. 105-550) passed both the House and Senate May 22.

As enacted (P.L. 105-178, Title VI), the Inhofe amendment addressed four issues. First, in promulgating the standards, EPA and the President had announced an implementation schedule that was longer than that mandated under the Clean Air Act. Opponents of the standards expressed concern that court challenges might force EPA to disregard its intended schedule in favor of the speedier statutory requirements. The amendment prevents a court challenge on this point by codifying the announced implementation schedule, giving EPA until July 2000 to designate ozone nonattainment areas and December 2005 to designate PM_2.5 areas.

Second, the new PM standard requires the establishment of a monitoring network in all 50 states. EPA had promised to fund these monitors, but had been unclear as to whether it would take some of the money from other state grant funds to make this happen. The amendment puts Congress on record as supporting EPA's stated intention to provide federal funding for the "establishment, purchase, operation and maintenance" of a PM_2.5 monitoring network, and clarifies that the money will come entirely through new federal funding, not reprogramming of other state grant funds.

Third, in the debate over the new particulate standards, farm groups have expressed concern that agricultural activities such as ploughing and agricultural burning will be considered sources of PM_2.5 and will be targeted for regulation. EPA has denied this, arguing that the overwhelming majority of small particles do not come from agricultural activities. (For a further discussion of these issues, see CRS Report 97-670, Agriculture and EPA's New Air Quality Standards for Ozone and Particulates.) In response to the concerns of the agricultural community, the amendment requires EPA to conduct a field study of the ability of the PM_2.5 Federal Reference Method used in analyzing PM_2.5 samples to differentiate types of PM_2.5 particles, and requires a report to Congress within two years of enactment.

Fourth, since promulgation of the standards in July 1997, at least 38 groups have sued EPA to overturn them. The amendment makes clear that none of its provisions is intended to affect this pending litigation or to be interpreted as a ratification of the standards.

As modified by the conferees, Title VI also addresses EPA's proposed regional haze program. This provision is described in a later section of this Issue Brief.

While passage of this amendment ended debate on the air quality standards in this Congress, it left unresolved several issues raised by opponents of the standards. For example, it does not require that EPA complete another scientific review of the standards before implementing them. The Agency has said that it will conduct such a review, and it is required by the Clean Air Act to review the standards every 5 years; but, in the past, it has never met the 5-year schedule.

The TEA 21 provision also does not address the possibility that ozone nonattainment areas could be subject to two overlapping sets of requirements. Sections 181, 182, and 185 of the Clean Air Act establish a structure for compliance with the ozone standard that specifically references the old 1-hour standard and categorizes nonattainment areas based on the degree to which monitored pollution levels exceed it. This categorization will remain in place after the new standard (which establishes 8-hour averaging times, new measurement of what constitutes exceedance of the standards, and a greater emphasis on regional measures to counteract ozone formation) takes effect.

The Agency's implementation plan for "transitional" ozone nonattainment areas is also not addressed by the amendment. The plan calls for areas not meeting the new ozone standard to be designated as transitional nonattainment areas in most cases. Transitional areas would be exempt from most of the requirements for nonattainment areas specified in the Act, provided that they implement a regional strategy for controlling NOx emissions. Whether the Agency has legal authority to exempt these areas from other requirements is subject to dispute. EPA can exercise its discretion not to enforce the statutory requirements if they conflict with the Agency's stated implementation policy. But Clean Air Act standards and statutory requirements are subject to enforcement by citizen suits as well. This leaves the regulated community fearing it could be subject to both old and new requirements, whatever the Agency's intentions.

Border Smog

Another issue that was the subject of legislation in the 105^th Congress, but was substantially less controversial, was an amendment to the Clean Air Act designed to tighten controls on passenger cars entering southern California from Mexico.

Vehicles entering the San Diego area from Mexico are thought to emit significant amounts of air pollution. While most such vehicles are not subject to U.S. or California emission standards, California law requires that Mexican vehicles used for commuting be registered in California and meet California emission requirements. This law has not generally been enforced. As a result, California and particularly the border city of San Diego (classified as a Serious ozone nonattainment area) have experienced some amount of emissions from unregulated vehicles. Air pollution in the border area is not a one-way problem. Because the prevailing winds on the worst air quality days tend to blow from north to south, San Diego and other parts of California are thought to contribute more air pollution to Mexico than Mexico contributes to San Diego. Nevertheless, Mexican vehicles are a visible source of unregulated pollution in an area that maintains controls on most other pollution sources.

Roughly 7,000 commuter vehicles registered in Mexico cross the border into San Diego County each day. (Another 50,000 vehicles cross the border daily, but these include commercial vehicles, vehicles registered in the United States, and Mexican vehicles crossing the border for reasons other than commuting.) San Diego itself has 1.2 million registered vehicles, so the Mexican commuter vehicles account for only an estimated 0.2% of all vehicular trips in the area. They produce more pollution than their numbers would indicate, however: some estimates have ranged as high as 13% of the region's total vehicle air pollution, although the Air Pollution Control District now estimates the total at 1 - 3%.

To address this problem, H.R. 8 would prohibit foreign-registered commuter vehicles from entering California more than twice a month unless the operator can demonstrate compliance with California emissions testing requirements. Commuter vehicles are defined as vehicles operated by U.S. citizens or by aliens who are permanent residents of the United States or hold valid U.S. visas for work or study. The prohibition could be enforced at the border by Customs officials, with fines up to $200 for a second offense, and up to $400 for each subsequent offense.

As introduced, the bill would have applied to all border nonattainment areas, both on the Canadian and Mexican border. At the House Commerce Committee markup, the bill was amended to limit its requirements to California, with the possibility that other areas may opt in; in that form, the bill was approved by the Commerce Committee June 24, 1998 (H.Rept. 105-634), and passed the full House, July 20. The Senate Environment and Public Works Committee reported H.R. 8, as passed by the House, September 28 (S.Rept. 105-355). The Senate passed the bill with an amendment October 5. The House agreed to the Senate version October 7, and the President signed the measure (P.L. 105-286) October 27.

Methyl Bromide

The 105^th Congress also amended the Clean Air Act to change the requirements for phase-out of production and imports of methyl bromide, an ozone-depleting pesticide. The amendment was included as Section 764 of the Omnibus Appropriations bill (P.L. 105-277), signed by the President October 21, 1998.

Under the 1990 amendments to the Clean Air Act, phase-out had been scheduled for January 1, 2001 -- substantially ahead of an international deadline set by the parties to the Montreal Protocol on Substances that Deplete the Ozone Layer. The international deadline (originally 2010) was renegotiated at the ninth meeting of the parties to the Protocol, in September 1997. The renegotiated international deadline is 2005 for developed countries, with interim reductions for the years 1999, 2001, and 2003, and exemptions for methyl bromide used in quarantine and pre-shipment fumigation. Developing countries will be given until 2015 to achieve a phase-out, with an interim deadline in 2005.

Following the renegotiation, affected interests sought legislation to delay the U.S. deadline, citing the difficulty of finding adequate substitutes and the potential competitive disadvantages for American agriculture. At a House Agriculture subcommittee hearing, June 10, 1998, EPA testified in favor of retaining the original Clean Air Act deadline, but said the Agency might support a delay if alternatives were still unavailable as the deadline drew near. Despite this testimony, the Administration did not actively oppose a provision offered by Representative Fazio during the conference on H.R. 4101, the Department of Agriculture appropriation. This bill was vetoed by the President October 7, for unrelated reasons, but the methyl bromide provision along with other provisions from the bill were added to the Omnibus Appropriation bill (H.R. 4328), which the President signed, October 21. Section 764 of the measure ( P.L. 105-277) amends the Clean Air Act to conform its provisions to those of the renegotiated international Protocol. (For additional information, see CRS Report 96-959, Stratospheric Ozone Depletion: Methyl Bromide Control Measures, CRS Report 96-474, Methyl Bromide and Stratospheric Ozone Depletion: New Directions for Regulation?, and CRS Issue Brief 97003, Stratospheric Ozone Depletion: Implementation Issues).

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