EPA Tightens Air Quality Standards for Fine Particles

by Morgan Lewis
Contact

Revised ambient air quality standard could require more stringent control of fine particulate matter emissions.

On December 14, the U.S. Environmental Protection Agency (EPA) finalized its rule tightening the National Ambient Air Quality Standards (NAAQS) for fine particles emitted by a wide variety of sources, including power plants, industrial facilities, and gasoline and diesel engines. EPA is also making certain changes to its Prevention of Significant Deterioration permitting program with respect to the NAAQS revisions. The rule will become effective 60 days after its publication in the Federal Register, which is expected to occur early in 2013. The rule is one of several rules in recent years tightening the NAAQS for certain pollutants, resulting in additional compliance planning for states and potential clean air permitting complications for major new construction projects.

Background

The federal Clean Air Act (CAA) directs EPA to establish and periodically review and revise (as appropriate) NAAQS for the substances EPA identifies as "criteria pollutants," with the goal of protecting public health and welfare. The criteria pollutants include particulate matter, measured as both fine and coarse particulate matter (PM). Fine particulate matter consists of particles less than or equal to 2.5 micrometers in diameter (PM2.5), while coarse particulate matter consists of particles with diameters of less than or equal to 10 micrometers (PM10). For each criteria pollutant, EPA establishes primary standards to prevent any adverse impact on human health, and secondary standards to prevent adverse public welfare effects, such as on climate, vegetation, and visibility. Standards also take into consideration the duration of pollutant exposure and are expressed on a short-term basis (such as a 24-hour or shorter standard) and on a long-term basis (such as an annual standard).

Following issuance of new or revised standards, EPA (with state input) must designate areas as either meeting or not meeting the NAAQS (areas are designated "attainment" or "nonattainment" areas, respectively), and states must thereafter develop implementation plans to achieve the NAAQS, including, potentially, by adopting new rules limiting emissions. EPA last reviewed and tightened the PM NAAQS in 2006 and, among other changes, ratcheted down the primary 24-hour PM2.5 standard from 65 to 35 micrograms per cubic meter (µg/m3), while retaining the annual PM2.5 standard of 15 µg/m3.[1] EPA also revised the secondary PM standards to be identical in all respects to the primary standards. In subsequent litigation, the U.S. Court of Appeals for the District of Columbia remanded the primary annual and secondary PM2.5 standards because EPA failed to explain why they provided the requisite levels of public health and welfare protection.[2] The court subsequently set a December 14, 2012, deadline for EPA to sign a final rulemaking.

EPA's Revised NAAQS

EPA's December 14 rule[3] marks the culmination of its current review of the PM NAAQS and also responds to the D.C. Circuit Court remand. Based on what it describes as an assessment of an expanded body of scientific evidence, more extensive air quality data and analysis, and a more comprehensive quantitative risk assessment, among other information, EPA has tightened the primary NAAQS for PM2.5 by lowering the level of the annual primary PM2.5 standard from 15 µg/m3 to 12 µg/m3 (a 20% reduction). EPA states that that the current primary PM2.5 standards do not protect public health with an adequate margin of safety, as required by the CAA, and that the more stringent annual PM2.5 NAAQS will provide increased protection against health effects associated with long-term and short-term exposures, including for at-risk populations, such as children. However, EPA is retaining the current level of the 24-hour PM2.5 standard, the current level of the 24-hour PM10 standard, and the current suite of secondary standards for both PM2.5 and PM10 (except for certain technical revisions to the form of the secondary annual PM2.5 standard). Although EPA initially proposed a distinct secondary PM2.5 standard to address PM-related visibility impairment, it concluded, based on its analysis of monitoring data, that the current secondary 24-hour PM2.5 standard would provide sufficient protection of visibility, and the final rule does not establish a distinct secondary visibility-related standard.

The final rule also includes a grandfathering provision for sources that have submitted applications under EPA's major new source preconstruction permitting program applicable to areas that meet the NAAQS (or are unclassifiable with respect to the NAAQS), referred to as the Prevention of Significant Deterioration (PSD) program. Under the PSD program, owners and operators constructing new major sources or major modifications must obtain a PSD permit prior to beginning actual construction. EPA's requirements include that applicants conduct an air quality analysis to demonstrate that the proposed source or project will not cause or contribute to a violation of any NAAQS, including EPA's now revised PM2.5 NAAQS. To help in the transition process, EPA's December 14 final rule revises the PSD program to include a provision grandfathering pending permit applications from this requirement for the revised NAAQS, provided that the reviewing authority determined the application to be complete by December 14, 2012, or published notice of a preliminary determination for the application prior to the effective date of the revised PM2.5 standard. In such cases, the applicant would instead need to comply with requirements pertaining to the PM2.5 NAAQS in effect at the time of the reviewing authority's action.

Implications

EPA anticipates making initial PM2.5 attainment/nonattainment designations by December 2014, with these likely becoming effective in early 2015. Although EPA indicates that fewer than 10 counties nationwide will be out of compliance with the revised PM2.5 NAAQS by the end of the decade, it identifies approximately 66 counties as currently not meeting the standard, including counties in California, Pennsylvania, Ohio, Indiana, and Illinois. Implementation plans outlining how affected states will comply will be due in 2018, and compliance is required by 2020 (subject to a possible extension until 2025 depending on the severity of noncompliance). States not meeting the standard may need to include in their implementation plans additional measures requiring deeper particulate matter emission cuts. In addition, major construction projects in PM2.5 nonattainment areas will be subject to the stringent requirements of EPA's Nonattainment New Source Review program, including, potentially, emission offsets and stringent technology standards. Even in counties attaining the standard, applicants (unless grandfathered) will be required under the PSD program to demonstrate that proposed major projects do not cause or contribute to a violation of the revised fine particulate standard.

Questions remain regarding EPA's revisions. There will likely be further court challenges, and EPA intends to propose additional rules and guidance relating to state implementation of the revised PM standards and related air quality modeling. As with other recent NAAQS revisions, however, the revised PM2.5 standard may well result in more stringent emission controls, permitting challenges, and associated delays for major new sources and plant expansions. Companies planning such projects need to include consideration of the revised standards in their anticipated project timelines and air quality impacts analysis.


[1]. Regarding PM10, the 2006 rulemaking retained the 24-hour standard (150 µg/m3), while revoking the annual PM10 standard.

[2]. Am. Farm Bureau Fed'n v. Envtl. Prot. Agency, 559 F.3d 512 (D.C. Cir. 2009).

[3]. National Ambient Air Quality Standards for Particulate Matter, 77 Fed. Reg. 38,890 (initially proposed June 29, 2012) (to be codified at 40 C.F.R. pts. 50, 51, 52, 53, 58), available here.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morgan Lewis | Attorney Advertising

Written by:

Morgan Lewis
Contact
more
less

Morgan Lewis on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.