Gasping for Breath: The Administrative Flaws of the Federal Hazardous Air Pollutant Program

Abstract

This article explains the continuing problems with protecting human health under the current Federal Clean Air Act's Hazardous Air Pollutant (HAP) program. In particular, the article focuses on the difficulties in protecting the public from residual health risks, when maximum technological controls have been put into place on all sources. The article then examines the causes of this problem, concluding that they can be traced to problems in the statutory implementation and enforcement regime concerning residual health risks. This problem is not unique to health protection with air toxics and is consistent with general theories of implementation of public health protection statutes. The article then surveys fourteen states that have stricter protections than the federal government for residual risk from air toxics, and analyzes these states' success in reducing air toxic concentrations. The article then explores the commonalities of the programs of the most successful states, and from that produces recommendations for improving the federal HAP program.