LAW REVMV Volume 25 Fall 1997 Number 1

NORTHERN KENTUCKY LAW REVMV Volume 25 Fall 1997 Number 1 Natural Resource and Environmental Law Issue ARTICLES Smog, Science & the EPA ............................................... Kevin D. Hill 1 Overview of Brownfield Redevelopment Initiatives: A Renaissance in the Traditional Command and Control Approach to Environmental Protection ................ Philip J. Schworer 29 American Mining Congress v. Army Corps of Engineers:Ignoring Chevron and the Clean Water Act's Broad Purposes ......................... BradfordC. Mank 51 SPECIAL ESSAY Comparative Risk Assessment and Environmental Priorities Projects: A Forum, Not a Formula ........................................ John S. Applegate 71 PRACTITIONER'S GUIDE The Use of Experts in Environmental Litigation: A Practitioner's Guide .................................. Kim K Burke 111 NOTE United States v. Ahmad: What You Don't Know Won't Hurt You. Or Will It? .................. MichaelE.M. Fielman 141 Special Feature Introduction to the Best Petitioner and Respondent Briefs from the Fifth Annual Salmon P. Chase College of Law Environmental Law Moot Court Competition ............................ M. PatiaR. Tabar 163 M oot Court Problem ....................................................................... 165 Best Brief, Petitioner ............................... University of Cincinnati 181 Best Brief, Respondent .............................. University of Wisconsin 209 ARTICLES SMOG, SCIENCE & THE EPA by Kevin D. Hill' The yellow fog that rubs its back upon the window-panes The yellow smoke that rubs its muzzle on the window-panes, Licked its tongue into corners of the evening, Lingered upon pools that stand in drains, Let fall upon its back the soot that falls from chimneys, Slipped by the terrace, made a sudden leap, And seeing that it was a soft October night, Curled about the house and fell asleep.2 I. INTRODUCTION On July 18, 1997, the Environmental Protection Agency (EPA) issued the new National Ambient Air Quality Standards ("NAAQS") for ground-level ozone.' The new standards, which amount to a tightening of previous regulations, have provoked a furious response from industrial trade groups, politicians and conservative think-tanks and have re-ignited the debate over the role of science in setting environmental policy.4 The new stan- 1. Associate Dean for Academic Affairs & Professor of Law, Ohio Northern University. 2. T.S. ELIOT, The Love Song of J. Alfred Prufrock, in THE COMPLETE POEMS AND PLAYS: 1909-1950, at 3-4 (1962). 3. 62 Fed. Reg. 38,856 (1997) (to be codified at 40 C.F.R. pt. 50). The EPA is phasing out and replacing the previous one hour primary ozone standard with a new eight hour standard designed to protect against longer exposure periods. Under the previous standard, an area was required to control certain pollutant emissions if the daily, maximum, one hour averaged ozone concentration exceeded 0.12 parts per million (ppm) more than three times in three years. The new standard requires that the third highest eight hour averaged ozone concentration, averaged over three years, not exceed 0.08 ppm. Id. Even though the new rule will allow four exceedances of the standard before an area is deemed out of compliance and includes an implemen- tation package that gives states time to gear up to meet the new standards, the new rule has been strongly criticized by industry groups and some politicians. See infra note 4. 4. See, e.g., Kenneth W. Chilton & Stephen B. Huebner, Editorial, Ozone 2 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 dard, like its predecessor, was based on an exhaustive review of the scientific literature concerning the effects of ozone on human health. In theory, this review should have determined a threshold concentration, above which there are genuine adverse health effects and below which there are none, to allow the standard to be set. The question of whether such a threshold has been found (or can be found) is the key to understanding the controversy swirling around the new standards. Ozone is the primary constituent of the photochemical smog that has plagued cities since the dawn of the automobile age.5 Produced indirectly by internal combustion engines, power plants and various industrial processes, ozone can be fatal at high levels and can cause significant health effects including asthma at- tacks, breathing and respiratory problems, loss of lung function and possible long-term lung damage, and lowered immunity to disease when even trace levels are inhaled.6 The new standard has radical implications for pollution control strategies in the United States. When implemented, it will add some two-hundred-thirty counties, mostly suburban or rural, to the list of 110 counties presently designated as having un- healthful ozone levels.7 In effect, the new standard shifts the focus of ozone control strategies from purely urban efforts to include rural and suburban areas. Because current ozone control efforts have concentrated on emission controls in urban areas, addressing rural non-attainment will necessitate a major shift in the nation's pollution control strategies. Because ozone levels at any given rural location are usually affected by emissions from multiple urban areas as well as from local and distant rural Health Risks Don't Justify EPA's Stricter Standards, SACRAMENTO BEE, Nov. 29, 1996, at B7; Editorial, Whiter than White, WALL ST. J., Feb. 14, 1997, at A14; Angela Antonelli, Can No One Stop the EPA?, BACKGROUNDER 1129 (July 8, 1997) <http://www.townhall.com:80/heritage/library/categories/enviro/bgll29.html>. 5. Ground-level (or tropospheric) ozone should not be confused with stratospheric ozone which provides the well-publicized shield which filters out much of the sun's harmful ultraviolet light and is threatened by chlorofluorocarbons ("CFCs'". 6. Rebecca Bascom et al., Health Effects of Outdoor Air Pollution Part 1, 153 AM. J. RESPIRATORY CRITICAL CARE MED. 3, 15-27 (1996). 7. OFFICE OF AIR QUALITY PLANNING AND STANDARDS, U.S. EPA, REvIEW OF NATIONAL AMBIENT AIR QUALITY STANDARDS FOR OZONE: ASSESSMENT OF SCIENTIFIC AND TECHNICAL INFORMATION (OAQPS Staff Paper) (June 1996) 13-18, microformed on Sup. Docs. No. EP 4.2:AM 1/4 (U.S. EPA) [hereinafter OAQPS Staff Paper]. 1997] SMOG, SCIENCE & THE EPA sources, enforcement of the new standards will require regional control strategies. The economic impact of this change, which could be significant, both in terms of total costs and costs to particular indus- tries, has rekindled the long-running debate about cost-effective- ness of air pollution control.8 Since the medical evidence of health problems related to ozone exposure clearly establishes the inadequacy of the previous standard, but fails to establish a threshold concentration below which there are no medically related problems, the entire health-based premise of the Clean Air Act has been called into question. This article begins with a brief discussion of episodes of acute urban pollution as the model for understanding pollution. It follows with a brief discussion of the ozone chemistry, a review of NAAQS reassessment process, and a discussion of the difficulties inherent in using science to resolve hard policy decisions. It is the thesis ofi this article that science can provide nothing more than the vaguest of guidance for new ozone NAAQS. The new standard is the result of a policy decision to enlarge the scope of air pollution regulation which is neither supported nor under- mined by the available scientific literature. However, the new standards amount to a major expansion and focus shift from regulating acute pollution episodes in urban areas to chronic low-level pollution problems in suburban and rural areas. Whether the economic cost of this shift is justified by the health effects of lower levels of ozone is neither a scientific nor a legal question, but one which must be answered in the realm of poli- tics and policy. By focusing on the scientific issues that allegedly underlie the new standards, the public debate is misdirected. II. URBAN POLLUTION Air pollution is not a recent phenomenon; nor is it solely a product of the industrial age. Historically, it is the product of urbanization and the need to burn fuel for heating and cooking. The thousands of homes in a pre-industrial city spewed forth an amazing amount of coal and wood smoke from thousands of cook- 8. The EPA has estimated that the cost of attainment will be between $600 million and $2.5 billion, but other estimates have gone as high as $83 billion. Antonelli, supra note 4, at nn.42-43. 4 NORTHERN KENTUCKY LAW REVIEW [Vol. 25:1 ing and heating fires.9 With pottery kilns, blacksmiths furnaces and tanneries making contributions, cities were noxious and smoke filled."° As the use of wood declined and coal use in- creased the air became less breathable and posed even more of a threat to health." By the nineteenth and early twentieth centuries, coal smoke poisoned the air in almost every city on any day. Occasionally, a climatological condition known as a temperature inversion would occur in the tightly packed cities of Europe or North America and the sulfur dioxide (SO2) and soot particles spewed forth from thousands of chimneys would hang over the cities in a dense, deadly cloud. It was a series of such episodes in the Meuse Valley of Belgium, 12 Donora, Pennsylvania,"2 and London, England 4 that resulted in thousands of deaths and focused attention on air pollution as a medical problem for the first time. The killer fogs of London in the nineteenth and twentieth centuries can be an instructive introduction to the complex inter- actions of climate and pollution that can combine to create a health hazard. Any child who has read Arthur Conan Doyle's tales of Sherlock Holmes or heard stories of Jack the Ripper is familiar with the image of the streets of London swirling with a dense yellow fog. However, this fog was to prove far more dan- gerous than Doyle's fictional villains or the famous "Ripper".

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