EPA Proposes To Strengthen and Add New National Standards for Fine Particulates, Plus Roadway Monitoring

The U.S. Environmental Protection Agency (EPA) has proposed stricter National Ambient Air Quality Standards (NAAQS) under the Clean Air Act for fine particulate matter (PM2.5) to resolve a lawsuit over EPA’s delay in updating the standards. The proposal is available here. Comments are due August 31, 2012. The Clean Air Act (CAA) requires EPA to review and revise, as appropriate, air quality standards every five years.  EPA last revised the PM2.5 NAAQS back in 2006.  A lawsuit was filed by 11 states and environmental groups in the U.S. District Court for the District of Columbia in February of 2012, alleging that EPA failed to perform its mandatory duty to revise the NAAQS for PM2.5.  Per the district court’s order, EPA published proposed revisions on June 29 that would tighten the annual primary (health) standard for fine particles from 15 micrograms per cubic meter (ug/m3) (the 2006 standard) to between 12 and 13 ug/m3, calculated as a three-year average.  EPA is also taking comment on lowering the primary annual standard to 11 µg/m3.  In addition, EPA’s proposal would eliminate “spatial averaging” and, instead, require areas with multiple monitors to look to the monitor with the highest design value when reporting the attainment status for that area.  EPA is proposing to retain the existing daily (24-hour) primary standard for PM2.5 and the existing daily (24-hour) primary standard for coarse particles (PM10); that latter course standard has been in place since 1987. EPA’s proposal also would add a brand-new, separate 24-hour secondary (environmental effects-based) standard for fine particles to improve visibility in urban areas. This standard would be measured in “deciviews” (dv), similar to what is used in the Agency’s Regional Haze Program. EPA is proposing two alternative levels for the visibility standard: 30 deciviews and 28 deciviews.  To show compliance with the visibility standard, EPA would calculate a “visibility index” value – an area would meet the visibility standard if the 90th percentile of 24-hour visibility index values in one year, averaged over three years, is less than or equal to the level of the standard.  EPA has asked for comment alternative levels for a visibility index to address haze, down to 25 deciviews, along with comment on alternative averaging times (such as four hours). In addition, EPA’s proposal would change the monitoring requirements for PM2.5 by mandating the addition of fine particulate ambient air monitors, especially along urban highways.  EPA’s proposal would require near‐roadway PM2.5 monitoring at one location in each urban area (a core‐based statistical area, or CBSA) with a population of 1 million or more.  States would relocate existing monitors to measure fine particles near heavily traveled roads; EPA’s proposal does not require additional monitors.  Finally, the proposal would update the Air Quality Index (AQI) for particle pollution. “Grandfathering” Approach for New, Modified Facilities EPA’s Prevention of Significant Deterioration (PSD) construction permit program requires proposed new facilities or facilities undertaking modifications to demonstrate through an air quality analysis that their proposed emissions will not cause or contribute to a violation of any NAAQS that is in effect as of the date the construction permit is issued.  EPA is proposing to add a “grandfathering” provision that would apply to pending PSD permit applications that have been posted for public comment before the effective date of the revised NAAQS.  EPA plans to amend the PSD regulations to allow states to grandfather proposed PSD permits in the same manner under these same circumstances.  EPA is not proposing a sunset clause (which would add a time limit beyond which an otherwise eligible pending permit application would no longer be grandfathered from PSD permitting requirements associated with a revised PM NAAQS), but requests comment on such a mechanism. Implications for Construction EPA anticipates making attainment/nonattainment designations by December 2014, with those designations to take effect in early 2015. States would have until 2020 (five years after designations are effective) to meet the proposed PM2.5 standards. It is unclear how many counties would be in violation (designated “nonattainment”) of the proposed PM2.5 standards.  However, EPA is predicting that all but six counties in the United States should be able to meet the new standards by the 2020 deadline without imposing new state-specific requirements.  (EPA predicts that the projected emission reductions associated with new federal regulations for power plants, heavy-duty diesel engines, and the sulfur content of gasoline will provide the necessary emission reductions for attainment of the revised standards.)  The six areas that will need to enact further PM2.5 reductions to attain the new standards include two in California -San Bernardino and Riverside counties; the others are Wayne County in Michigan; Jefferson County, Alabama; Lincoln County, Montana; and Santa Cruz County, Arizona.  This estimate may be conservative depending on the ultimate level of the standard and the potential removal of spatial averaging for compliance measurements.  It is also unclear the extent to which the visibility standard will affect facilities located near urban areas or the highway/transportation sector. This type of aesthetic visibility standard has never before been included in a NAAQS. Experience with EPA’s Regional Haze Program has shown that visibility standards can result in the need for very costly add-on controls for affected sources. States with nonattainment areas will be required to write “clean up” plans – state implementation plans or SIPs – that identify enforceable measures to curb particulate matter pollution to meet the proposed new standards.  This could mean additional controls and requirements for power plants, manufacturing industries, and the transportation sector, depending on the level ultimately finalized. The NAAQS revisions also would have an impact on the applicable air permitting requirements for new and modified facilities (see above). A more stringent rule would likely discourage economic investment in counties that fail to meet new federal standards. EPA plans to issue nonattainment designations by December 2014, with states having until 2020 to comply with the standards. According to EPA estimates, the new standard will cost between $2.9 million and $69 million annually, depending upon a final standard of 12 or 13 ug/m3.   While EPA cannot consider costs in selecting a standard under the Clean Air Act, those costs are estimated as part of the analysis undertaken for all significant regulations, as required by Executive Order 13563 issued by President Obama in January 2011. The states that filed the lawsuit forcing an EPA PM2.5 revision were California, Connecticut, Delaware, Maryland, Massachusetts, New York, New Mexico, Oregon, Rhode Island, Vermont and Washington. EPA will accept public comment until Aug. 31, 2012.  Go to www.regulations.gov and follow the on-line instructions for submitting comments (reference Docket ID No. EPA–HQ–OAR–2007–0492).  The Agency will hold two public hearings; one in Sacramento, CA. and one in Philadelphia, PA. Details on the hearings are here - http://epa.gov/pm/2012/20120629hearingfr.pdf.  EPA will issue the final standards by December 14, 2012. A map showing counties in attainment in 2020: http://epa.gov/pm/2012/mapa.pdf. More information is on EPA’s website at http://www.epa.gov/pm/actions.html#jun12.