A PRIMER
The Clean Air Act’s
Many Accomplishments
and the Challenges Ahead
APPA is the national trade
association representing the
interests of more than 2,000
community- and state-owned
electric utilities that serve 45
million consumers across the
United States.
The federal Clean Air Act
(“CAA” or “Act”) is one of the
most comprehensive and
successful environmental
statutes in existence today at
over 500 pages long. This paper
summarizes and offers simple
explanations of one of the most
complex and costly statutes.
During the past 30 years, the Clean Air Act has
contributed to significant improvements in air quality.
According to EPA, from 1980 to 2009, national average
concentrations of key air pollutants have declined by
76 percent for sulfur dioxide, 80 percent for carbon
monoxide, 30 percent for ozone, 93 percent for lead,
and 48 percent for nitrogen oxides. EPA projects
direct costs at approximately $21 billion annually,
increasing to $28 billion annually by 2010. These are
significant reductions, given a growing population.
The CAA is divided into six titles that require the
Environmental Protection Agency (EPA) to issue
regulations to control air emissions.
Title I
requires the EPA to establish national air quality levels, called National Ambient Air
Quality Standards (NAAQS), for six conventional air pollutants: particulate matter
(soot), sulfur dioxide (SO2), carbon monoxide (CO), nitrogen oxides (NOx), ozone
(ground level smog) and lead. Each state must submit a State Implementation Plan
(SIP) to EPA demonstrating how it will meet the NAAQS by the statutory
deadlines. States with areas that exceed these standards are subject to additional
requirements and potential penalties. Title I also requires EPA to issue:
•
national emission standards for more than 100 different industrial source
categories of hazardous air pollutants (NESHAPs) – further called “HAPS” in this
paper.
•
new source performance standards (NSPS) for new and existing source categories
of air pollution
•
new source review (NSR) permitting requirements for larger new and existing
sources undergoing modifications
Title II
requires EPA to issue rules to reduce emissions from mobile sources, including
light- and heavy-duty vehicles, fuels, locomotives, airplanes and off-road vehicles
and engines.
Title III
contains general provisions, including provisions that authorize citizen lawsuits
against the agency or individual sources for failure to meet the law’s requirements.
Title IV
addresses utility and industrial emissions that contribute to acid rain.
Title V requires all stationary sources emitting more than 100 tons annually of an
air pollutant to obtain an operating permit. The operating permit programs are
generally implemented by the states under EPA supervision.
Title VI
regulates the production and use of chemicals that deplete the stratospheric ozone
layer, such as chlorofluorocarbons (CFCs).
Background
The Clean Air Act began in 1955 with the
passage of the Air Pollution Control Act. It
declared air pollution a national concern and
granted $5 million annually for research by the
Public Health Service. Eight years later,
Congress passed the Clean Air Act of 1963. The
1963 law and subsequent amendments in 1965,
1966, 1967 and 1969 granted increased funding
to state and local governments, divided the
nation into air quality control regions for air
quality monitoring and authorized the Secretary
of Health, Education, and Welfare to set
standards for power plants, steel mills and auto
emissions.
Increased public awareness of air pollution
problems and growing concern over lack of
progress in reducing emissions, however, led
President Richard Nixon to propose and Congress
to pass the Clean Air Act of 1970. The 1970 law
substantially changed the act. It responded to
significant air pollution concerns in industrial
cities—such as Pittsburgh, Pa.—due to the
pollution from the heavy concentration of steel
mills and other industry. The law also reflected
the increased public attention generally to the
impact of toxic chemicals due to the 1963
publication of Silent Spring, by Rachel Carson.
The 1970 law reflected this general enthusiasm
and support for action. It established National
Ambient Air Quality Standards, New Source
Performance Standards, and new motor vehicle
emission standards. The new law also allowed
citizens the right to take legal action against any
person, including the government, in violation of
the act’s requirements. In 1970, President Nixon
also created, by executive order, the EPA as a
single, independent agency, from a number of
smaller arms of different federal agencies.
Congress subsequently approved creation of EPA.
Seven years later, however, Congress recognized
that the 1970 act set deadlines for meeting air
quality standards and installing vehicle emission
controls that were overly stringent and posed
insurmountable technical challenges. As a
result, in 1977, Congress passed amendments to
the act to extend the compliance deadlines for
the auto industry and the attainment of National
Ambient Air Quality Standards.
The last major set of amendments to the Clean
Air Act occurred in 1990, when it became clear
that some major metropolitan areas would face
sanctions under the Clean Air Act for failing to
attain the National Ambient Air Quality
Standards. The amendments also respond to
growing concerns over acid rain and public
exposure to air toxics emissions. The 1990
amendments authorized programs for controlling
acid deposition and established an aggressive
schedule for imposing technology controls on
hazardous air pollutant emissions. The
amendments also established an operating
permits program to facilitate compliance and
expanded and modified provisions concerning
the attainment of National Ambient Air Quality
Standards. Finally, the 1990 amendments also
established a program to phase out the use of
chemicals that deplete the stratospheric (outer)
ozone layer.
Clean Air Act Today
Today, the Clean Air Act requires EPA to
promulgate and enforce an extensive network of
air pollution controls that affect large and small
industrial sources (factories), on-road and offroad mobile sources and consumer products.
Many, if not most, of these sources are required
to meet controls for conventional air pollutants
such as soot, ozone, sulfur dioxide and nitrogen
oxides as well as controls for more than 189
pollutants classified as air toxics. The resulting
rules affect not only large industrial and
manufacturing sources, such as utilities,
refineries, chemical plants and steel mills, but
also smaller operations, such as dry cleaners,
hospitals and medical waste incinerators.
• EPA cannot consider costs or the
attainability of the standards: In
setting the standards, EPA cannot consider
the costs of attaining the standard or even,
according to court rulings, the ability of states
to attain the standard. States can only
consider costs in developing their state plans
on how to meet the EPA standards but the
health based standards are set by the EPA
without regard to the cost. In some areas, the
cost of a NOx trading credit has exceeded
$150,000 per ton. Unfortunately, EPA
cannot consider the potential costs of
attaining the National Ambient Air Quality
Standards when setting the level.
Air Quality Standards Today: While
Congress has not substantially amended the act
since 1990, the act has become more stringent
as EPA has reviewed and promulgated
increasingly tighter NAAQS for ozone (smog),
particulate matter (soot and fine particles) and
other criteria pollutants. Each time EPA tightens
a NAAQ Standard, states must submit new state
plans showing how they will reach the tougher
standards. This in turn forces states to impose
increasingly stringent controls on local sources
by expanding the number of regulated sources to
include smaller sources and by lowering the
allowable emission levels. The lower national
ambient standards also provide EPA with the
authority to further tighten national standards
for categories of stationary and mobile sources to
help states comply.
• Increased population and
urbanization: Since the 1950s when the
first Clean Air Act was passed, the U.S.
population has more than doubled from 152
million to 309 million people, while the
percentage of the U.S. population living in
cities increased from 60 to more than 82.
Today, more than 70 million people live in the
10 largest U.S. cities, with most concentrated
in a handful of major cities along the eastern
and western coasts. Many of these highly
populated and sometimes urban areas also
present the greatest air pollution challenges in
meeting today’s lower standards.
In addition to tighter standards (at the national
and source category level), several other factors
have converged to make compliance more
challenging. These include:
• Importance of Mobile Sources: In
some major metropolitan areas of the country
with the highest ozone concentrations,
eliminating all stationary sources would still
not bring the area into attainment with the
standards. This is because a large portion of
the remaining air pollution in these areas is
due to mobile sources. State and local
governments, however, have very little direct
This U.S. Census map
shows population density
in the continental United
States. The lightest areas
have a population of less
than one person per
square mile; darkest
areas have density of
more than 3,000 people
per square mile.
control over mobile sources and federal
measures to reduce vehicle emissions often
take decades to be fully realized. In addition,
new monitoring techniques suggest that EPA
may not be underestimating the contribution
of mobile source emissions.
• New Standards Are Approaching
Natural Background Levels: As EPA
continues to tighten National Ambient Air
Quality Standards for ozone and fine
particulate matter, the standards become
increasingly closer to background levels of
pollution caused through natural emissions.
At the lower end of EPA’s most recent
standard for ozone, over 96 percent of
existing air quality monitors will violate the
standard. This includes air quality monitors
found in many of today’s national parks. In
some areas, forest fires have contributed to
PM2.5.
• Transport: A number of new studies show
that increasing levels of particulate matter and
ozone (smog) are transported across the
country and from other continents, including
Asia and Europe. While there are provisions
in the act that would allow states to account
for international transport in their state plans,
EPA so far has failed to provide guidance on
how states can make this demonstration.
• New Source Review Requirements:
Installing expensive pollution control
equipment may trigger yet additional
pollution controls due to the lack of an
explicit pollution control exclusion under the
New Source Review provisions.
• Heat Island Effect: Temperatures in cities
tend to be several degrees higher than
temperatures in rural areas due to the lack of
greenery to absorb heat and provide cooling
moisture. Because concentrations for certain
pollutants, such as ozone, increase with
temperature, urbanization has exacerbated air
pollution challenges.
• Placement of Air Quality Monitors:
As EPA tightens existing air quality
monitoring standards, the agency is also
expanding the number of monitors that will
record data. Expansion of the monitoring
data will likely result in more areas being in
nonattainment of the national standards.
EPA’s decision to place monitors closer to
stationary sources will likely lead to increased
violations.
Hazardous Air Pollutant
Controls Today:
The current Clean Air Act also requires
increasing controls on hazardous air pollutant
emissions from more than 100 different
industrial categories. The act requires all sources
within these industrial categories to meet
emission levels achieved by the maximum
achievable control technology (MACT). EPA
must also review these standards every eight
years for improvements in technology and
processes. In the last recently proposed risk and
technology review, EPA has proposed costly
controls on source categories that EPA agrees are
low risk, with all sources in the category posing
risks less than a lifetime risk of one in a million.
The resulting “technology ratchet” will likely
result in requirements to further reduce
emissions for years to come, despite the lack of
meaningful health benefits. In addition, EPA has
interpreted recent court decisions as requiring
the agency to establish separate standards for
each pollutant emitted from a source based on
the performance of the best available control
technologies for that pollutant. If a source emits
many hazardous air pollutants, the resulting
matrix of controls – dubbed in the trade press
and by some in Congress as “FrankenMACT” or
“FrankenPlant” -- may be conflicting and
infeasible.
Congressional Action:
The 112th Congress is poised to conduct
oversight hearings on many of EPA’s programs.
Lawmakers will focus on the workability of the
Act in light of the challenges presented by
today’s air pollution problems and the agency’s
use of discretion in light of the high costs and
difficulty of complying with existing standards.
In particular, Congress may evaluate whether we
have approached the outer limits of what is
doable under the Act for some pollutants, given
the compliance challenges and the inability to
consider costs. Some in Congress may probe
whether EPA is appropriately using its existing
discretion to reduce costs and use less
expensive, but effective, pollution controls.
Issues that may surface either during hearings or
in proposed legislation include:
• Whether EPA has appropriately evaluated the
difficulty of meeting current standards, given
their proximity to ambient background levelsespecially when background includes
naturally occurring dust.
• The prohibition on EPA’s ability to consider
cost in setting standards, and whether that
should be modified.
• Additional flexibility in allowing EPA to set
NAAQ Standards before the five-year review
cycle is up.
APPA Contact:
• Whether EPA should use generally available
control technology (GACT) instead of
maximum achievable control technology
(MACT) for lower risk pollutants and sources
to reduce costs.
• Given the current economic situation,
whether state regulatory agencies have
adequate time and staff to implement the
many new air pollution regulations.
Theresa Pugh, Director,
Environmental Services
[email protected]
202/467-2943
Joy Ditto, Vice President
Legislative Affairs
[email protected]
202/467-2954
Conclusion
The Clean Air Act has been and continues to be
an environmental and public health success. At
the same time, several factors have converged,
including the economic downturn, the
limitations and costs of technology to make
further incremental reductions in certain
pollutants, and the volume of pending new
regulations at EPA, that raise valid issues to be
considered by federal and state policymakers.
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