Smog under the radar

This year, mid-winter air quality issues have blossomed like early crocuses. In February, the United Nations Intergovernmental Panel on Climate Change stated unequivocally that it is “very likely” – in fact, 90% certain – that climate change is being driven by the burning of fossil fuels. It warned of rising temperatures and sea levels and extreme weather in the coming century. The Panel's findings were no big surprise to anyone, except maybe those at the US Environmental Protection Agency (EPA) who had argued before the Supreme Court that there wasn't enough data to reach the conclusion that CO2 emissions should be reduced. At the end of January, EPA scientists, as part of the periodic review required by the Clean Air Act (CAA), and perhaps in an attempt to awaken EPA administrators from their CO2 slumber, called for tougher smog rules in a Staff Paper entitled Review of national ambient air quality standards for ozone – policy assessment of scientific and technical information. Most Americans are confused about tropospheric, ground-level ozone as a pollutant versus the overwhelming benefits of the stratospheric ozone layer's shield against UV-B radiation. Ozone, of course, is somewhat schizoid, but we now know that the near-surface version is not a good thing. Tropospheric ozone is formed when volatile organic compounds and nitrogen oxides react in the presence of sunlight. Summers present the most conducive conditions for this process, as denizens of urban America can testify. Ozone smog is known to have toxic effects on human, animal, and plant life and smog/ozone episodes are common in urban and adjacent undeveloped areas. The Staff Report, thus, was aimed at the bad, low-altitude atmospheric ozone, and based on an expanding body of scientific evidence. The Report recommended to EPA Administrator Stephen Johnson that tougher national standards for ground-level ozone be adopted to protect public health as well as crops and vegetation. Present National Ambient Air Quality Standards (NAAQS) regulations from 1997 permit 0.08 parts per million of ozone, while the EPA proposal would set a level between 0.06 and “somewhat below” 0.08 parts per million. Final ozone NAAQS will be out in late 2007 or early 2008. So what about this unpronounceable acronym, NAAQS? The CAA requires the establishment and periodic revision of the NAAQS and creates the standards by directing the EPA to identify and list “air pollutants” that “may reasonably be anticipated to endanger public health and welfare” and whose “presence… in the ambient air results from numerous or diverse mobile or stationary sources” and, if listed, to issue air quality criteria for them. These air quality criteria are intended to “accurately reflect the latest scientific knowledge” (Section 108 [42 USC 7408]). The CAA goes on to require the EPA to propose and promulgate “primary” and “secondary” NAAQS for pollutants identified under Section 108. Primary standards are those “which… with an adequate margin of safety, are requisite to protect the public health”, while secondary standards are “requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of [the] pollutant in the ambient air”. “Welfare” is defined broadly in the CAA: “effects on soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being”. Section 109(d)(1) of the Act requires review and revision as appropriate at 5 year intervals. That is the impetus for the new Staff Paper, the fourth such review in the past 26 years. The Staff Paper wasn't concocted overnight; it was based on data gathering initiated by the Section 109 review that began in 2000. Regarding the primary NAAQS, the Report, among other things, found that “there is an expanded body of evidence about the mechanisms of respiratory effects, including important new evidence about increased susceptibility of people with asthma and limited new evidence about plausible mechanisms by which O3 exposure could induce effects on the cardiovascular system”. The Staff Report concluded by citing the definition of “welfare” noted above and stated that “the final decision on retaining or revising the current secondary O3 standard is largely a public welfare policy judgment” and cited substantial evidence of damage to plant life: “On the basis of the vegetation effects that have been observed to still occur under current ambient exposure conditions and those predicted to occur under the scenario of just meeting the current secondary NAAQS, staff conclude that the current secondary NAAQS is inadequate to protect the public welfare from known and anticipated adverse welfare effects.” Thus, my withering backyard aspen and my shortness of breath have common enemies: age and smog. If I may also speak for my tree, we are glad the Government might do something about one of them. Douglass F Rohrman Lord, Bissell & Brook LLP, Chicago

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