Ian Howard

May 5, 2003

_______________________________________________

"The purpose of the [Act]...is to speed up, expand, and intensify the war against air pollution in the United States with a view to assuring the air we breath throughout the Nation is wholesome once again."[1]

_______________________________________________

"The level of carbon monoxide attained in experiments using rooms filled with tobacco smoke has been shown to equal, and at times to exceed, the legal limits for maximum air pollution permitted for ambient air quality...."[2];

____________________________________________________

I. INTRODUCTION

A health problem to be livid about

Many smokers, as well as nonsmokers, are unaware of the severe health problems caused by secondhand smoke, which is officially known as Environmental Tobacco Smoke (ETS). Secondhand smoke is the third leading cause of preventable death in the United States with a death toll of more than 50,000 nonsmokers a year.[3] It exacerbates many pre existing health conditions such as allergies, asthma, bronchitis, and heart disease.[4] Many of these are elevated to life threatening status as a result.[5]

Of the more than 4,700 chemicals contained in secondhand smoke, over fifty are classified as Class A carcinogens.[6] This classification is reserved only for chemicals that are known to cause cancer.[7] According to The Journal of the American Medical Association, nonsmokers are harmed by even brief exposure to secondhand smoke.[8] Consequently, the harms caused by secondhand smoke are not mitigated by smoking outdoors if the place where smokers go to smoke is an area of frequent and unavoidable use by nonsmokers such as the entranceways at school facilities. The deadly harm from outdoor exposure, at least by aggregation, becomes analogous to that of indoor exposure as a result.

This harm experienced by nonsmokers is unacceptable. Nonsmokers should not and must not bear the risk of others' addictions. This deleterious secondhand smoke is not confined to the lungs and bloodstream of those that choose to voluntarily place a cigarette between their lips. Both ends of a cigarette are extremely deadly. The only way to allow smokers that utilize facilities with entranceways to continue with their addiction and avoid the egregious health burden placed on nonsmokers is to move these smokers away from the entranceways. This remedial action has already been implemented by many of this Nation's academic institutions by way of their respective individual school smoking policies,[9] but it needs the force of federal law to make it mandatory throughout all fifty states to reach schools that lag behind.[10] The Clean Air Act provides the necessary statutory relief.

II. THE CLEAN AIR ACT'S UNTAPPED CONTROL MECHANISM

Traditionally, the Clean Air Act[11] has been used to affect its declaration of purpose of protecting and enhancing the quality of the Nation's air[12] through six control mechanisms. These encompass setting ambient air quality standards[13] for national ambient air quality (NAAQS) criteria pollutants[14] to be achieved through state implementation plans (SIP),[15] regulating hazardous air pollutants from a variety of stationary sources,[16] setting emission limitations for stationary sources emitting air pollutants not listed as NAAQS pollutants or hazardous air pollutants,[17] regulating mobile sources of air pollution through emission standards[18] and fuel standards,[19] setting emission limitations for sulfur dioxide control to reduce acid deposition,[20] and phasing out chlorofluorocarbons[21] and hydrochlorofluorocarbons[22] to protect against stratospheric ozone depletion. Fortunately, as the scope of the Clean Air Act has expanded, Congress has begun to use it as a tool for addressing social policy.[23] There is a provision in the Clean Air Act that could mandate the simple act of smokers and their secondhand smoke moving away from entranceways to designated outdoor smoking areas.

Currently, the Clean Air Act lists 189 hazardous air pollutants[24] that are to be regulated by setting emission standards[25] for a variety of stationary sources[26] that have the potential to emit them. Major sources are defined, in part, as those that emit "10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants."[27] Understanding that these major sources, such as industrial smoke stacks, account for such a large proportion of the air pollution problem, they typically receive a corresponding proportion of the remedial power that the Clean Air Act has to give. Hazardous air pollutants, however, can be addressed through other sources.

Section 7412 (a)(2) gives the EPA the power to regulate hazardous air pollutants that are emitted from area sources.[28] Excluding motorized vehicles,[29] these area sources include "any building, structure, facility, or installation which emits or may emit any air pollutant."[30] Section 7412 (c)(3) states that, "[t]he Administrator shall listÖeachÖarea source[] which the Administrator finds presents a threat of adverse effects to human healthÖ."[31] Consequently, § 7412(d)(1) states that, "[t]he Administrator shall promulgate regulations establishing emission standardsÖfor eachÖarea source[] of hazardous air pollutants listed for regulation pursuant to subsection (c)Ö."[32] Facilities, such as schools, that offer outdoor smoking should be included as a regulated area source under § 7412(d)(1).

Secondhand smoke "contains every toxic air polluting substance defined and regulated by the Environmental Protection Agency under the Clean Air Act."[33] The apparent logistical difficulties for establishing emission standards pursuant to § 7412(d)(1) is abrogated by § 7412(d)(5) which states that, "the Administrator may [with respect only to area sources] promulgate standards [utilizing] available control technologies or management practices to reduce emissions of hazardous air pollutants."[34] Additionally, the Clean Air Act encourages "measures which may be employed to reduce the impact on public health or protect the health of sensitive or susceptible individuals or groupsÖ."[35] The § 7412(d)(1) mandatory regulations for area sources should utilize the management practice standards of § 7412(d)(5) to establish national smoking policies at all school facilities that move smokers away from entranceways to designated outdoor smoking areas to protect the health of nonsmokers as sensitive and susceptible individuals.

III. THE PROBLEMS WITH APPLYING THE § 7412(c)(3)

AREA SOURCES LISTING REQUIREMENTS, THE § 7412(d)(1) MANDATORY REGULATIONS, AND THE § 7412(d)(5) BEST MANAGEMENT PRACTICES TO SCHOOL FACILITIES

The problems with using the Clean Air Act to address the very serious problem of secondhand smoke spewing forth from smokers smoking at entranceways near school facilities are threefold. First, § 7412(c)(3) requires that the Administrator list area sources that represent "90 percent of the area source emissions of the 30 hazardous air pollutants that present the greatest threat to public health in the largest number of urban areas."[36] Does this mean that area sources are only concerned with reducing emissions and, then, only from ones that represent a certain percentage of those emissions. Second, the regulation of area sources is void of any history of being utilized to remedy hazardous air pollutants that cascade from any activity analogous to that of cigarette usage. Does that render § 7412(c)(3) inapplicable? Third, the remedial action sought by applying the Clean Air Act to smoking at the entranceways of school facilities does not seek to reduce air pollution; it simply moves the pollution. Does this mean moving smokers away from entranceways at school facilities is a misuse of the Clean Air Act all together?

The Clean Air Act's § 7412(k) area source program fills in the interstices left by reading § 7412(c)(3) in its individual capacity. Consequently, the application of the Clean Air Act to the cigarette smoking at school entranceways is a logical and reasonable extension of the scope of remedial power that the Clean Air Act has to give in an effort to protect the public health from secondhand smoke.

IV. THE CLEAN AIR ACT'S §7412(k) AREA SOURCE PROGRAM

While § 7412(k) is similar to § 7412(c)(3) in that it seeks a reduction in emissions of hazardous air pollutants, it differs in that it places a primacy on "an equivalent reduction in the public health risks associated with such [area] sources."[37] Section 7412(k)(2) specifically requires "carcinogenicity, mutagenicity, teratogenicity, neurotoxicityÖand other acute and chronic effectsÖ" to be considered when evaluating risks of area sources on health.[38]

To this date, there have been over 50,000 studies published detailing the hazards of smoking.[39] The health risks associated with exposure to secondhand smoke has mounted in much the same way as the evidence linking direct smoke inhalation did nearly four decades ago.[40] Most recently, Phillip Morris Inc. announced that it will not appeal the 4^th Circuit ruling of Flue-Cured Tobacco Cooperative v. EPA in which the EPA called secondhand smoke a Class A carcinogen.[41] With this evidentiary backdrop, a school facility that allows smokers to smoke at the entranceways is an area source because it produces the type of health risks § 7412(k) is designed to remedy regardless of the percentage expressed in § 7412(c)(3) nor does it require an actual net reduction in the pollution given the aforementioned use of the Clean Air Act as a tool to affect social policyóa policy that is steadily restricting where smokers can light up as seen with the recent enactments in New York and Florida that have made smoking indoors illegal. Moving smokers away from entranceways is the logical extension of this policy.

Once an area source is listed, § 7412(k)(3) then requires a national strategy to be developed by the Administrator which "Öshall include specific actions to substantially reduce the public health risksÖ"[42] These specific actions "will be implemented by the Administrator under the authority of [the Clean Air Act] or other lawsÖ"[43] These "specific actions" required by the § 7412(k) area source program give the Clean Air Act the authority to apply the concern for § 7412(c)(3) area sources to reducing health risks as well as emissions and applying the § 7412(d)(5) management practices in the form of the specific action of moving smokers away from the entranceways at school facilities. In other words, § 7412(c)(3) without § 7412(k) might leave out the § 7412(k) explicit concern for reducing health risks to which to apply the § 7412(d)(5) management practices and § 7412(k) without § 7412(c)(3) might not include the § 7412(d)(5) management practices as § 7412(k) specific actions.

V. FUGITIVE EMISSIONS AND THE DEMAND FOR LEGISLATIVE CHANGES AS OPPOSED TO LITIGATION ENFORCEMENT

There is some built-in flexibility to the Clean Air Act in the form of explicit recognition of potential needs for recommendations for legislative changes. Section 7412(f)(1)(D) and § 7412(k)(3)(D) contemplate shortcomings in the Clean Air Act that could be remedied by legislative changes.

Aside from the explicit authority to move smokers away from entranceways at school facilities created by yoking together sections 7412(c)(3) and 7412(k), the Clean Air Act's awareness for problems that could arise but are not specifically addressed augment its ability to be used as a tool that could move smokers and secondhand smoke away from entranceways of school facilities as a means to remedy the health risks from hazardous air pollutants. These legislative changes should focus on a more expansive recognition of fugitive emissions and a commingling of the Federal Cigarette Labeling and Advertising Act[44] with the Clean Air Act.

Currently, fugitive emissions are to be included when promulgating emission standards for hazardous air pollutants.[45] They are, however, to be used only when determining whether something accumulates enough tonnage of hazardous air pollutants to be considered a major source.[46] Implicit in the Clean Air Acts recognition of fugitive emissions is the awareness that hazardous pollutants can come from "stationary source[s] [even though the pollutants do not] pass through a stack, chimney, vent, or other functionally equivalent opening."[47] School facilities that allow smoking are such sources that release these fugitive emissions at entranceways in the form of secondhand smoke.

Consequently, if the area source program could not be used to move smokers away from the entranceways at school facilities in an effort to protect the public from the health risks from secondhand smoke, the Clean Air Act's recognition for the potential for legislative change and the existence of hazardous air pollutants in the form of fugitive emissions demand lobbying efforts that concentrate on adding additional provisions to the Clean Air Act reflecting a need to address secondhand smoke.

One possibility would be an addition to the § 7412(n) list of other provisions that specifically would include a federal mandate moving smokers away from school facilities in much the same way that § 7412(n)(3) generates concern for residential discharges from publicly owned treatment works. Another possibility would be listing schools as a separate subcategory under § 7412(c) as is boat manufacturing under § 7412(c)(8). Given the undeniable harm of secondhand smoke, such additions would be warranted in order to protect the health and the environment.

VI. CONCLUSION

There is an explicit recognition that the Clean Air Act can be utilized to address individual health problems as opposed to the broad concern for reducing and controlling the Nation's air pollution. Given the aforementioned health risks caused by secondhand smoke, the totality of regulated hazardous air pollutants contained in it, and the susceptibility of nonsmokers, the Clean Air Act's area source regulations should be implemented to regulate smoking and secondhand smoke near entranceways of buildings such as school facilities.

______________

[1] Act of Dec. 31, 1970, Pub. L. No. 91-604, 1970 U.S.C.C.A.N. (84 Stat.) 5356 (emphasis added)(indicating the unanimous support H.R. 17255 received in its assigned House subcommittee when being considered as an amendment to provide for a more effective program to carry out the Act's original goal in improving the quality of the Nation's air. In other words, there has been a historical progression of expanding the reach of the Act to achieve improved air quality.)

[2] Alvan Brody & Betty Brody, The Legal Rights of Non Smokers 26 (Avon Publishers 1977)(quoting the 1972 Surgeon General's Report).

[3] Citizens for Clean Air in Apartments, The Facts About Second-Hand Smoke, (1999), at http://www.cleanlungs.com/education/features/facts.html (indicating the work done by Dr. Stanton Glantz, a frequent contributor to the research published in The Journal of the American Medical Association)(last visited Nov. 9, 2002).

⁴ See id.

[5] See id.

[6] See id.

[7] USEPA, CERCLA Baseline Risk Assessment Issues: A Reference Manual at 2-11, (March 1995), available at http://tis.ch.doe.gov/opepa/guidance/cercla/risk-ch2.pdf (emphasis added)(last visited Nov. 6, 2002).

[8] The Center for Safe Communities & Schools, Second-hand Smoke May Hamper Circulation, (Nov. 9, 2002), at http://www.tdi.swt.edu/cscs/Articles/second-hand%smoke20smoke%20may%hamper%circulation.htm (last visited Nov. 9, 2002)

[9] See, e.g., University of Buffalo Reporter Vol. 33, (March 21, 2002), available at http://www.buffalo.edu/reporter/vol33/vol33n28/n8.html (last visited Nov. 6, 2002). See also University of Florida, Student Tobacco Reform Initiative, Knowledge for Eternity, (Sept. 23, 2002), at http://www.health.ufl.edu/shcc/strike.htm (last visited Nov. 6, 2002).

[10] See generally Vermont Law School, Student Handbook 64-65 (2002/2003)(containing no smoking policy implementing restrictions on smoking near entranceways on school grounds).

[11] 42 U.S.C. §§ 7401 et seq. (2000).

[12] See id. at § 7401(b).

[13] See id. at § 7409.

[14] See id. at § 7408.

[15] See id. at § 7410.

¹⁶ See id. at § 7412.

[17] See id. at § 7411.

[18] See id. at § 7521.

[19] See id. at § 7545.

[20] See id. at § 7651.

[21] See id. at § 7671c.

[22] See id. at § 7671d.

[23] Hunton & Williams, Clean Air Act Handbook 5 (F. William Brownell ed., Government Institutes 3^rd ed. 1998)(referring to the Act being used to protect the jobs of sulfer coal miners by requiring of new fossil fuel-fired boilers the installation of flue gas desulfurization sytems or SO₂ scrubbers to protect not only air quality but the jobs at the old boilers as well).

[24] See supra note 11at § 7412(d)(1).

[25] See id. at § 7412(a)(1).

[26] See id. at §§ 7412(a)(1), 7412(a)(2).

[27] See id. at § 7412(a)(1).

[28] See id. at § 7412(a)(2).

[29] See id.

[30] Id. at § 7411(a)(3).

[31] Id. at § 7412(c)(3)(emphasis added).

[32] Id. at § 7412(d)(1)(emphasis added).

[33] Alan B. Horowitz, Comment, Terminating the "Passive" Paradox: A Proposal for the Federal Regulation of Environmental Tobacco Smoke, 41 Am. U. L. Rev. 183, 195 (1991).

[34] § 7412(d) supra note 18, at § 7412(d)(5)(emphasis added).

[35] See supra note 11, at § 7408(1)(C).

[36] Supra note 31.

[37] 42 U.S.C § 7412(k)(1) (2000).

[38] Id. at § 7412(k)(2).

[39] Francis J. Nolan, Commentaries: Passive Smoking Litigation In Australia and America: How an Employee's Health Hazard May Become an Employer's Wealth Hazard, 9 J. Contemp. Health L. & Pol'y 563, 565 (1993).

[40] See id. at 568.

[41] Andrews Publications, Philip Morris Won't Appeal Ruling on Secondhand Smoke, 25 ANTCLR 11 (2003)(WESTLAW through 2003).

[42] See supra note 37 at § 7412(k)(3)(C).

[43] Id. (emphasis added).

[44] 15 U.S.C. §§ 1331 et seq. (2000).

[45] See supra note 37 at § 7412(d)(2)(C).

[46] 40 C.F.R. 63.2 (2002).

[47] Id.