EPA To Take Action on National Air Standards, Construction Will Bear Consequences

The U.S. Environmental Protection Agency (EPA) is set to take action in the near term to tighten national ambient air quality standards (NAAQS) for several pollutants, including nitrogen oxides, sulfur oxides, ozone and particulate matter.  A nonattainment status under the Clean Air Act carries serious repercussions for construction in the area(s) so designated – including potential restriction on the use and operation of equipment, the loss of federal highway funding and the loss of economic development opportunities. On the positive side, EPA recently designated the entire nation as “unclassifiable/attainment” for the new 2010 nitrogen dioxide (NO₂) air quality standards, based on the most recent air monitoring data (2008-2010). See 77 Fed. Reg. 9532, Feb. 17, 2012.  However, EPA expects to re-designate areas after it has received three years of data from a new roadside air quality monitoring network, to be in place by 2013. At the beginning of March, the White House still was reviewing a final rule to set secondary NAAQS for nitrogen oxides and sulfur oxides. EPA Feb. 27 sent the rule to the Office of Management and Budget for interagency review, typically the last step in the process before a rule is released. Ozone (Smog) Standards EPA recently took steps to implement the ozone NAAQS of 0.075 part per million that the agency set back in 2008. EPA designated 46 areas as being in nonattainment of the 2008 ozone standard.  The final designations were published in the Federal Register on May 21.  See 77 Fed. Reg. 30,088 .  The process had been delayed while the Obama administration considered setting a more stringent standard, but that effort was dropped.  Instead, Obama said, EPA will wait until the next scheduled five-year review to reassess the ozone NAAQS. EPA expects to propose the standards in October 2013 and finalize the rule in July 2014. EPA is encouraging state and local governments to take early action to reduce ground-level ozone concentrations, allowing them to bank credits against future violations of the air quality standards.  The Ozone Advance program was announced April 4 in guidance. Particulate Matter (Dust) Standards In addition, EPA expects to propose new particulate matter NAAQS in 2012, although a specific schedule has not been set.  The Agency recently told a federal court it needs until Aug. 15, 2013, to finalize revised air pollution standards for fine particulate matter, pushing back slightly a timetable it set earlier this year (American Lung Ass'n v. EPA, D.D.C., No. 1:12-cv-00243, declaration filed 5/4/12).  A coalition of 11 states sued EPA earlier this year to force the agency to revise NAAQS for fine particulate matter, like those that come from diesel-powered vehicles and equipment, after having failed to meet an October 2011 deadline under the Clean Air Act for completing a five-year rule review. In 2006, EPA decided against revising the “annual” PM-2.5 standard – contrary to the recommendations of EPA's independent scientific advisory committee and EPA staff.  Opponents went to court and won a remand of the EPA “no rule” decision and the agency committed to address the PM-2.5 revision in the course of the five-year statutory review. On a related note, EPA announced in late 2011 that it will not tighten its national limit on coarse particulate matter in the air. Consequences for Construction A nonattainment designation may trigger restrictions on the use/operation of construction equipment as well as federal sanctions, including emissions caps limiting economic development and the loss of federal highway transportation dollars. For more information on how tighter NAAQS and resultant nonattainment designations impact the business of construction, click here. Background The Clean Air Act (CAA) requires that EPA review the national air quality standards at least every five years; and when setting the standard, the CAA restricts EPA from considering economic costs to achieving the standard. Within two years of setting a new NAAQS or revising an existing standard, the CAA directs EPA to formally identify or “designate” areas as “unclassifiable/attainment” (meeting the standard or no evidence indicating a violation), “nonattainment” (not meeting the standard), or “unclassifiable” (insufficient information to designate as attainment or nonattainment, but likely to be violating).  When an area is designated not in compliance with the standard (nonattainment), the CAA requires state and local governments to take steps to reduce pollution and regain compliance with the standard.  The steps must be detailed in technically supported and legally enforceable plans known as State Implementation Plans (SIPs), and must be submitted and approved by EPA within three years of the date of nonattainment designation as published in the Federal Register. To find out more, contact Leah Pilconis at pilconisl@agc.org.