March 3, 2009
On February 24, 2009, the United States Court of Appeals for the District of
Columbia issued its long-awaited ruling on the U.S. EPA’s Final Rule on National
Ambient Air Quality Standards for Particulate Matter, 71 Fed. Reg. 61143
(October 17, 2006), remanding the standards for fine particulates (PM2.5) and
rejecting all other challenges. The Court criticized the EPA for disregarding
the recommendations of its staff and its own Clean Air Scientific Advisory
Committee on fine particulates and found that the EPA failed to justify its
departure from those recommendations. The Court chose not to vacate the remanded
rules so that some protection for fine particulates would remain in place.
In granting in part the petitions for review of the primary PM2.5 standard
brought by several states and environmental groups, the Court concluded that EPA
failed to adequately explain why the annual standard of 15 μg/m3 of fine
particulates would be sufficient to protect the public health within an adequate
margin of safety. The Court delved deeply into the scientific studies in the
record to find that the EPA inappropriately rejected its internal findings and
needed a better response to the technical arguments raised against the standard.
Yet, the Court denied the same petitions insofar as they sought review of the
Agency’s analysis of the long-term mortality studies and the Agency’s decision
not to rely on the risk assessment. The Court specifically allowed the current
annual standard to remain in place during the Agency’s reconsideration so as to
not “sacrifice such protection as it now provides.”
The Court also remanded for further review EPA’s secondary standard for PM2.5,
finding the Agency’s decision to set secondary PM standard identical to the
primary NAAQS was contrary to § 7409(b)(2) of the Clean Air Act. Again, the
Court thoroughly evaluated various scientific studies in the record to determine
that the EPA improperly concluded that the primary NAAQS would prevent adverse
effects on visibility and therefore be sufficient for a secondary NAAQS as well.
The Court denied the petitions for review of the primary daily standards for
coarse PM, (PM10), brought by the industry groups. The Court also denied the
environmental groups’ petition for review of the Agency’s revocation of the
primary annual standard for coarse PM because the Court determined that the EPA
reasonably decided that an annual coarse PM standard was not necessary because
of the controls on fine particulates.
The Court’s ruling is another resounding regulatory defeat for the Bush EPA and
another example of the DC Circuit’s willingness to second guess EPA on highly
technical issues. Although ostensibly operating under an arbitrary and
capricious standard of review, the Court conducted a thorough review of the
technical record and placed great weight on the fact that the EPA rejected its
own internal technical reports. Environmental groups and states that support
lower PM standards believe that EPA’s reconsideration of the rule could result
in lower standards rather than the EPA seeking to find better justifications for
its earlier decision.
The PM rule reconsideration will be of great interest to all potential
stakeholders. More than 120,000 comments were received by EPA from members of
the public and various interested groups on the current revisions to the PM
NAAQS. But, with no timeframe for Agency reconsideration set, the current rule
could remain in place for months if not years to come. Since the rule was not
vacated, state SIPs adopting the PM2.5 rule will remain in effect, leaving
significant uncertainty for operators of facilities subject to the rule.
Regardless of the timing of its reconsideration, the EPA will be required to
publish another notice of proposed rulemaking or similar notice which will
provide industry and other members of the public an opportunity for further
input into the revisited PM standards. In the meantime, many state SIP
demonstrations based on the remanded PM2.5 standard are still pending approval
at EPA and may be left in regulatory limbo.
McGuireWoods LLP Climate Change and Clean Air Act Practice
McGuireWoods LLP is a full service law firm with a specialty practices in
Clean Air Act matters.