EPA's Fuzzy Bright Line Approach to Residual Risk

Jackson, Alex
May 2009
Ecology Law Quarterly;2009, Vol. 36 Issue 2, p439
Academic Journal
Since its passage in 1970, section 112 of the Clean Air Act (CAA) has regulated the health risks associated with exposure to hazardous air pollutants (HAPs). Risk managers at the Environmental Protection Agency (EPA) entrusted with implementing section 112, however, often know little about the relationship between exposure to HAPs and the incidence of disease. Partly because of this uncertainty, EPA struggled to implement section 112, prompting Congress to revamp the regulatory approach in 1990. Technology-based controls now provide the first line of defense, but health-based controls similar to those in the 1970 CAA continue to govern any leftover, or residual, risk The "residual risk" provision is found in section 112(f)(2)(A), which affords EPA discretion to set standards so long as they leave "an ample margin of safety to protect public health." But that section also directs EPA to promulgate standards whenever lifetime excess cancer risks from exposure to a HAP exceed one-in-one million ("the trigger'). The issue of EPA's obligations under section 112(f) recently came before the D.C. Circuit in Natural Resources Defense Council v. EPA-the agency contended the trigger only required that it evaluate risk in a rule-making, while environmental groups argued the trigger required EPA to eliminate all risks above the one-in-one- million mark. The court sided with EPA, holding that the agency had reasonably interpreted its obligations under the statute. This Note explores the impact of the court's decision on future EPA residual risk rule-making. It contends that EPA's reading of section 112(f)(2)(A), while not confidence-inspiring, does provide a workable framework for addressing the core concerns posed by the scientific uncertainty underscoring HAP regulation. However, to safeguard against EPA defaulting to a risk-management approach that ignores source-specific variation, this Note concludes that courts must take a particularly hard look at EPA residual risk standards.


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