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Gasping for Breath: The Administrative Flaws of Federal Hazardous Air Pollution...

Gasping for Breath: The Administrative Flaws of Federal Hazardous Air Pollution...

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Author: Minnie Fisher
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Gasping for Breath: The Administrative Flaws of Federal Hazardous Air Pollution Regulation and What We Can Learn

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Gasping for Breath:The Administrative Flaws of FederalHazardous Air Pollution Regulation andWhat We Can LearnIfrom the StatesVictor B. FlatfThis Article explains the continuing problems with protectitig humanhealth under the Clean Air Act's hazardous air pollutant program, inparticular, the difficulty of protecting the public from residual health riskswhen al! sources have put maximum technological controls into place.The Article traces the causes of these problems to flaws in the statutoryimplementation and the enforcement regime concerning residual healthrisks. In seeking to resolve these lingering flaws in the federal program,this Article surveys twelve states that have stricter protections than thefederal government for residual risk from air toxics, and analyzes thesestates' success in reducing air toxic concentrations. Commonalitiesbet ween ihe most successful states programs re veal potential solutions forimproving regulation of hazardous air pollutants at the federal level.Copyright © 2007 by the Regents of the University of California.• A.L. O'Quinn Chair in Environmental Law and co-director of the University ofHouston Law Center's Program in Environment, Energy, and Natural Resources. University ofHouston Law Center; member. Ihe Center for Progressive Reform. I would like to thank theHouston Endowment for its financial support of the research that forms part of this Article. Iwould also like to thank other members of the Houston Endowment research team includingWinnie Hamilton. Jim Blackburn, and Matt Fraser. as well as the University of Houstonscholarship research program, and the support of the A.L. O'Quinn Chair, funded hy JohnO'Quinn. This work was made clearer by the comments of Bradford Mank. and the prior workand review of Tom McGarity and Wendy Wagner and researchers at the University of TexasLaw School and the Center for Progressive Reform. Thanks also to my dedicated researchassistants over several years: Charles Irvine. Vanessa Luna. Dustin Rynders. Jere Overdyke. andEmily Buckles. Last, a special thank you to the excellent editors at the Ecology Law Quarterly,especially Lee Awbrey. Casey Roberts, and Keely Rankin, whose efforts beyond the call of dutyhave helped make this Article a better one.II107 108ECOLOGY LAW QUARTERLY[Vol. 34:107IntroductionI. The Federal Program for Controlling Hazardous AirPollution and Its ShortcomingsA. An Overview of the Federal Program's Two-PhaseStrategy: The Control of Emissions through TechnologyBased Standards and Risk-Based AnalysisB. Houston, Do We Have a Problem (With EnforcementStrategies)? The Shortcomings of the Federal Program1. Problems of Delay2. Uncertainty of Risk Assessment and Measurement3. How These Statutory Problems Undercut theSupposed Health Protections in the ActII. Can the Solution Be Found in Other Ways of RegulatingHazardous Air Pollutants? Examples from the StatesA. California1. Overview2. Identification of Pollutants and Sources3. Settings of Standards and Emissions Levels4. Monitoring, Compliance and Enforcement5. ConclusionB. Connecticut1. Overview2. Identification of Pollutants and Sources and Setting ofEmissions Standards3. Monitoring, Compliance, and Enforcement4. ConclusionC. Louisiana1. Overview2. Identification of Pollutants and Sources3. Setting of Standards and Emissions Levels4. Monitoring, Compliance, and Enforcement5. ConclusionD. Maryland1. Overview2. Identification of Pollutants and Sources3. Standards and Emissions Levels4. Monitoring, Compliance, and Enforcement5. ConclusionE. MassachusettsL Overview2. Identification of Pollutants and Sources3. Setting of Standards and Emissions Levels4. Monitoring, Comp

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