OCTOBER 2006
On September, 21, 2006, the United States
Environmental Protection Agency (EPA) revised the primary and secondary national ambient air quality standards (NAAQS) for particulate matter (PM).
The final standards address two categories of particulate matter air emissions: PM
2.5
, i.e., fine particles with a diameter of 2.5 micrometers or smaller; and PM
10
, i.e., inhalable coarse particles with a diameter smaller than 10 micrometers. Once fully implemented, the new primary 24-hour standard for
PM
2.5
, in particular, will have substantial impact on the regulated community.
The final rule has not yet been published in the
Federal Register, but is currently available on EPA’s website at http://epa.gov/pm/actions.html. The rule will become effective sixty days after publication in the Federal Register.
BRIEF REGULATORY BACKGROUND
The Federal Clean Air Act (CAA) requires EPA to determine which air pollutants pose a risk to public health and welfare, to publish air quality criteria that reflect the latest scientific knowledge about the pollutants and their health and welfare effects, and to establish national ambient air quality standards
(NAAQS) for each such pollutant, the attainment and maintenance of which are needed to protect public health and welfare.
1 Each state is then required to adopt and submit for EPA review a state implementation plan (SIP) providing for implementation, maintenance and enforcement of the
NAAQS in each air quality control region within the state.
2
EPA last promulgated PM standards in July 1997.
3
Through that rulemaking, EPA determined that the
PM NAAQS would continue to focus on PM
10
, but also determined that the fine and coarse fractions of
PM
10 should be considered separately. EPA’s 1997 standards use PM
2.5
as the indicator for fine particles and PM
10 as the indicator for the coarse fraction of
PM
10
. The primary PM standards adopted in 1997 added two new PM
2.5
standards: an annual standard of 15 µg/m3, based on the 3-year average of annual arithmetic mean PM
2.5
concentrations from single or multiple community-oriented monitors; and a 24hour standard of 65 µg/m 3 , based on the 3-year average of the 98 th percentile of 24-hour PM
2.5
concentrations at each population-oriented monitor within an area. EPA also established a new reference method for the measurement of PM
2.5
in the ambient air and adopted rules for determining attainment of the new standards. To continue to address the coarse fraction of PM
10
, EPA retained the annual PM
10 standard, while revising the form, but not the level, of the 24-hour PM
10 standard to be based on the 99 th percentile of 24-hour PM
10 concentrations at each monitor in the area. The EPA revised the secondary standards by making them identical in all respects to the primary standards.
A number of states and industry groups, including the American Trucking Association, sued EPA over the agency’s 1997 standards. In May 1999, a panel of the U.S. Court of Appeals for the D.C. Circuit held that the CAA, as applied in setting the new public health air quality standards for PM, was
1 42 U.S.C. §§ 7408 & 7409.
2 42 U.S.C. § 7410.
3 62 Fed. Reg. 38652 (July 18, 1997).
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unconstitutional as an improper delegation of legislative authority to EPA. American Trucking
Association v. EPA, 175 F.3d 1027 (D.C. Cir. 1999).
The court left the PM concluding that PM
10
2.5
standards in place but ruled that EPA could not enforce them. However, the court vacated the revisions to the PM
10 standards, is not a good way to measure coarse particles because it includes fine particles.
EPA appealed the D.C. Circuit’s decision on the constitutional issues to the U.S. Supreme Court.
It did not appeal the D.C. Circuit’s decision on the coarse particle standards. In February 2001, the
Supreme Court upheld EPA’s authority to set
NAAQS. Whitman v. American Trucking
Associations, 531 U.S. 457 (2001). In March 2002, following the Supreme Court decision on the constitutional issues, the D.C. Circuit rejected the remaining challenges to the 1997 standards.
American Trucking Associations v. EPA, 283 F.3d
355 (D.C. Cir. 2002).
While the litigation involving the 1997 standards was ongoing, EPA, in 1998, renewed its review of
NAAQS for PM. The CAA requires EPA to complete a thorough review of all NAAQS at fiveyear intervals. When the agency failed to meet the
CAA’s five-year deadline, the American Lung
Association and a coalition of environmental organizations filed suit in March 2003 to compel the
EPA to complete its review in a timely manner.
Pursuant to a consent decree, the EPA issued new proposed standards for PM in December 2005 and was required to issue a final decision by September 27,
2006. See American Lung Association, et al. v. EPA
et al, No. 1:03CV00778 (D.D.C.) (initial consent decree was entered by the court in July 2003 and subsequently modified). The recently issued rule was intended to satisfy the consent decree.
With regard to primary standards for PM
2.5
, EPA has substantially lowered the primary 24-hour fine particle standard, from the current level of 65 µg/m 3 to 35 µg/m 3 . EPA reportedly based its decision on an assessment of an expanded body of scientific information and concluded that this new standard will provide increased protection against health effects associated with short-term exposure, including premature mortality and increased hospital admissions and emergency room visits. EPA has retained the annual PM
2.5
standard at 15 µg/m 3 on its conclusion that the standard continues to based provide protection against health effects associated with long-term fine particle exposures, including premature mortality and development of chronic respiratory disease.
With regard to primary standards for PM
10
, EPA has retained the existing national 24-hour PM
10 standard of 150 µg/m 3 . EPA concluded that the existing 24hour PM
10 standard protects against the health effects associated with short-term exposure to coarse particles, such as hospital admissions for cardiopulmonary diseases, increased respiratory symptoms and possibly premature mortality. EPA has revoked the annual PM
10 standard, concluding that available evidence does not suggest an association between long-term exposure to inhalable coarse particle pollution at current ambient levels and health effects.
With regard to secondary PM standards, EPA has made them identical in all respects to the primary standards, as revised. EPA believes the secondary
PM standards will provide protection against PMrelated public welfare effects, including visibility impairment, effects on vegetation and ecosystems, and materials damage and soiling.
THE NEW STANDARDS
As noted above, EPA sets two types of NAAQS – primary standards, to protect public health; and secondary standards, to protect public welfare from effects including visibility impairment, damage to buildings and national monuments, and damage to ecosystems. Based on its review of the air quality criteria and NAAQS for PM, EPA has revised both the primary and secondary NAAQS for PM.
THE FORM OF THE STANDARDS
When EPA sets air quality standards, it must also specify the form of the standard – i.e., the air quality statistics used to determine whether an area meets the standards. For both the 24-hour and the annual standards, the form of the standards remains relatively unchanged.
For PM
2.5
, an area will meet the 24-hour standard if the 98 th percentile of 24-hour PM
2.5
concentrations in a year, averaged over three years, is less than or equal to the level of the standard 35 ug/m 3 .
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An area will meet the annual PM
2.5
standard when the three-year average of the annual average PM
2.5
concentration is less than or equal to 15ug/m 3 . EPA has revised the form of the annual PM
2.5
standard with regard to the criteria for spatial averaging, such that averaging across monitoring sites is allowed if the annual mean concentration at each monitoring site is within 10 percent of the spatially averaged annual mean, and the daily values for each monitoring site pair yield a correlation coefficient of at least 0.9 for each calendar quarter.
Finally, an area will meet the 24-hour PM
10 standard when the 150ug/m 3 level is not exceeded more than once per year on average over a three year period.
IMPLEMENTING THE STANDARDS
Because it is retaining the current 24-hour PM
10 standards, EPA has concluded that new nonattainment designations for PM
10 will not be required – the only time EPA is obligated to designate areas as attainment or nonattainment is after it promulgates or revises a NAAQS.
Accordingly, EPA’s final decision does not affect existing PM
10 nonattainment designations.
With respect to PM
2.5
, EPA has set the following schedule for areas not meeting the 24-hour PM
2.5
standard (assuming publication of the final rule in the
Federal Register in or about November-December
2006):
■ November-December 2007 – States make recommendations to EPA for areas to be designated attainment and nonattainment;
■ November-December 2009 – EPA makes final designations;
■ April 2010 – Effective date of designations;
■ April 2013 – Deadline for state implementation plans (SIPs), which outline how states will reduce pollution to meet the standards; and
■ April 2015 – States must meet standards (based on 2012-2014 monitoring data, with a possible extension to April 2020.
The preamble to the new standards and an accompanying fact sheet state that EPA has already issued a number of rules to help states meet the new standards. These rules include:
■ The Clean Air Interstate Rule (CAIR), which requires several States and the District of
Columbia to adopt and submit revisions to their
SIPs that would eliminate specified amounts of sulfur dioxide (SO
2
) and/or nitrogen oxides
(NOx) emissions, both of which are precursors to
PM
2.5
formation; 4
■ The Clean Diesel Program, which requires the near-total removal of sulfur from all diesel fuel used in highway and nonroad diesel engines, thereby resulting in reductions of PM and NOx from these sources; 5 and
■ The Clean Air Visibility Rule, a set of final amendments to EPA’s July 1999 regional haze rule that require emission controls known as Best
Available Retrofit Technology, or BART, for industrial facilities emitting certain pollutants, including PM
2.5
and compounds which contribute to PM
2.5
formation.
6
IMPLICATIONS FOR STATIONARY SOURCES OF PM
A number of issues arise with the promulgation of the new standards. Among those issues is the number of nonattainment areas that will result from their implementation. Some industry analysts have questioned the reliability of EPA’s estimate of nonattainment areas under the new standards in maps accompanying the final rule (less than 150 counties) and have projected, instead, that two or three times that amount could result. Even EPA’s maps, based on limited available data, indicate that counties in the following states and the District of Columbia may be designated as nonattainment for PM
2.5
under the new standards: Alabama, Alaska, California,
Connecticut, Georgia, Idaho, Illinois, Indiana, Iowa,
Kentucky, Maryland, Massachusetts, Michigan,
Montana, New Jersey, New York, New Mexico,
North Carolina, Ohio, Oregon, Pennsylvania, South
Carolina, Tennessee, Utah, Virginia, Washington,
4 70 Fed. Reg. 25162 (May 12, 2005).
5 See, e.g., 66 Fed. Reg. 5002 (January 18, 2001) (Highway Diesel rule) and 69 Fed. Reg. 38958 (June 29, 2004) (Nonroad Diesel rule)
6 70 Fed. Reg. 39104 (July 6, 2005).
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West Virginia and Wisconsin. The true significance of the rule will not be known until final designations are made in 2009, although preliminary indications suggest that the rule will have significant impact.
A nonattainment designation for PM could materially increase the difficulty for new businesses to locate in a designated area, or for existing businesses to expand. Facilities seeking to build or modify sources in NAAQS nonattainment areas are subject to more stringent requirements, including a requirement to install emissions-control equipment that meets
“lowest achievable emissions rate” (LAER) standards and a requirement to offset any projected emissions increases from new or modified sources with emissions decreases in other areas of the same facility or from other facilities in the nonattainment area.
Many states have not yet completed the planning process for implementation of the 1997 PM standards, which requires submission of revised SIPs by April 2008 and, absent extension, attainment of the 1997 standards by 2010. This schedule may, in some respects, accelerate implementation of the new standards. For example, states may seek opportunities in this 2008 planning process to more tightly control sources in anticipation of another round of planning and reductions required under the new standards, so the effect of the 2006 standards may be felt sooner than 2013 or than would otherwise be the case.
Additionally, in the SIP revision process for the 1997 standards, many states have focused on PM
2.5
emissions from stationary, on-road and off-road diesel engines, among the largest contributors of
PM
2.5
that remain, in the states’ view, underregulated. Some proposals for SIP revisions in 2008 include the imposition of regulations on diesel engines that exceed those established by the EPA.
However, Section 209 of the CAA, 42 U.S.C. § 7543, sharply limits states’ authority to impose emission limits on motor vehicles and nonroad diesel engines.
The 2006 standards may heighten already existing tension over the precise scope and applicability of federal preemption in this area of regulation.
Finally, given the reduction in short term exposure sought by the 2006 standards, states may focus on reducing emissions from stationary sources on a pounds per hour or pounds per unit of product basis, rather than tons per year, potentially reducing source operating flexibility. This may limit the utility of some strategies, such as limiting hours of operation, and focus scrutiny instead on the employment of new control technologies or raw materials substitutions to achieve continual rather than cyclical emissions reductions.
Christopher R. Nestor cnester@klng.com
717.231.4812
John F. Spinello, Jr. jspinello@klng.com
973.848.4061
Craig P. Wilson cwilson@klng.com
717.231.4509
4 kp attrriicck & L occk Niicch ollsso ah am L P || OCTOBER 2006

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