EPA Should Help States Required to Clean Up Foreign Pollution

Published March 1, 2007

The U.S. Chamber of Commerce on December 13 petitioned the Environmental Protection Agency (EPA) to implement a mechanism protecting states and local authorities and other stakeholders from suffering regulatory and economic burdens due to impacts on local air quality conditions arising from intrusive foreign emissions. These include ozone and particulate matter originating in Asia and other places that ultimately come across the U.S. border.

Georgia Example

Air emissions emanating from outside the United States can cause states and counties to violate Clean Air Act (CAA) air quality attainment standards. What’s more, the scientific literature clearly demonstrates that in many instances, states or counties would be able to comply with attainment standards but for emissions originating from outside the nation’s borders.

Walker County, Georgia Commissioner Bebe Heiskell recently testified to Congress, “Walker County’s non-attainment status is almost exclusively due to outside influences on our air quality–including up to 60 percent natural particulate matter, transported from Alaska, Canada, and amazingly Africa, which is completely out of our control.”

Heiskell also observed, “Many industries begin a site location search using EPA’s Internet list of counties in non-attainment. Those counties never make the list of prospective sites [for business development].”

Thus the impact of foreign emissions poses problems for business and industry stakeholders in localities affected by such emissions.

Burden on States

Recognizing the situation, Congress stated in Section 179B of the 1990 Clean Air Act Amendments that U.S. states and businesses should not be penalized if emissions emanating from outside the United States are the “but for” cause of non-attainment of air quality standards.

Unfortunately, notwithstanding that clear statutory language and the agency’s own understanding of congressional intent, EPA has failed to provide a reliable, feasible, and generally applicable mechanism for states to address and discount the impact of foreign emissions.

Instead, EPA guidance in this area is very limited, deficient, and complex.

As a result, in striving to meet EPA’s air quality attainment goals, state and local authorities are burdened with having to do something not only about emissions generated locally but also about intrusive foreign emissions emanating from distant sources around the globe over which they have no control.

Assumption of Guilt

Help from the federal agency has not been forthcoming. EPA has stated it has no position about how to address the problem.

Essentially, EPA has said to state and local air quality managers: Convince us that some of the emissions seen at air quality monitors in your area are in fact emissions emanating from outside the United States, or we won’t be sympathetic to your problems in the event of noncompliance issues.

Compounding the problem, EPA has failed to clearly advise state and local air quality managers how to go about determining which emissions are coming from around the world and which are not. Instead, EPA is leaving it up to the air quality managers to figure out what to do.

EPA won’t even tell state and local air quality managers which models or other tools to use or how to ensure the data and information they collect or produce is valid. All EPA is willing to do is look at what the state and local authorities have found out about the problem–after they have spent time, money, and labor collecting the data.

Need for Predictability, Consistency

Making the problem worse is that EPA determinations concerning “but for” exclusions are not only made after the fact, but are also made on a case-by-case basis. In addition, EPA advises air quality managers to deal with the regional EPA authorities instead of the central headquarters, although each EPA regional authority may have its own way of evaluating data and information.

The law, however, is clear. It requires EPA to make allowances for foreign emissions in determining air quality compliance. And in interpreting and implementing the law, EPA must be clear about what can be done to address the issue. To do otherwise would be arbitrary and capricious.

The world’s economy is growing–and with it, the amount of foreign emissions coming into the United States. Without action by EPA, states will be required increasingly to clean up other people’s messes.

The Chamber petition asks EPA simply to do what the law requires.

William L. Kovacs ([email protected]) is vice president of the U.S. Chamber of Commerce Environment, Technology, and Regulatory Affairs Division.

For more information …

“U.S. Chamber Calls on EPA to Enforce Clean Air Act and Stop Penalizing States for Foreign Air Emissions,” U.S. Chamber of Commerce Web site, December 13, 2006, http://www.uschamber.com/press/releases/2006/december/06-189.htm