11-2014 NEWS & ANALYSIS 44 ELR 10997
tee appointed by the Administrator.10 e U.S. Court of
Appeals for the District of Columbia (D.C.) Circuit has
held that CAA §109 requires consideration of the uncer-
tainties associated with inconclusive scientic and techn i-
cal information a nd is intended to provide a reasonable
degree of protection against hazards not yet identied.11
Most primary standards were to be met by May 31, 1975,
while secondary standards were to be achieved within a
reasonable time.12 However, the regulations establishing
national air quality standards, except for sulfur dioxide
(SO2), do not have secondary standards with dierent
numerical values.13 EPA’s approach to secondary standards
is suspect after the D.C. Circu it, in its 2013 decision in
Mississippi v. EPA, remanded the secondary standard for
ozone (O3) because EPA’s justication for a secondary
standard that was identical to the primar y standard was
EPA promulgated NAAQS at 40 C.F.R. §§50.4-.12 for
six ambient air pollutants pursuant to §109, called criteria
pollutants.15 e original NAAQS were PM, SO2, nitrogen
dioxide (NO2), carbon monoxide (CO), photochemical
oxidants (now O3), a nd hydroca rbons (HCs).16 A signi-
cant change in the NAAQS since the regulations were rst
promulgated in 1971 concerns HCs. e HC standard was
revoked in 1983 because it was technically inadequate,
meaning that EPA could not show an adverse health eect
at the level set in the regulation.17 Although HCs were del-
isted, lead was added in 1978, so there still are six crite-
ria pollutants.18 Emissions of volatile organic compounds
(VOCs) (a subset of HCs) continue to be regulated because
they are precursors of O3 air pollution.19 VOCs, after being
released to the atmosphere, can also convert to particulates
and be regulated pursuant to particulate regu lations.
Each NAAQS has four components. e “indicator”
denes the parameter of the substance EPA will measure.
PM, for example, uses particle size to dene the subject of
the NA AQS. e “level” species the acceptable concen-
tration in the air. e “averaging time” species the time
span for which the pollution concentration in the a ir will
American Petroleum Inst. v. Costle, 665 F.2d 1176
, 11 ELR 20916 (D.C.
Cir. 1981); Lead Indus. Ass’n, Inc. v. EPA, 647 F.2d 1130
, 1154, 10 ELR
20643 (D.C. Cir. 1980).
Bunker Hill Co. v. EP
A, 572 F.2d 1286
, 1290 n.1, 7 ELR 20681 (9th Cir.
Mississippi v. EP
A, 723 F.3d 246
, 43 ELR 20158 (D.C. Cir. 2013).
16. U.S. EPA, National Primary and Secondary Ambient Air Quality Stan-
dards, 36 Fed. Reg. 8186 (Apr. 30, 1971).
17. 48 Fed. Reg. 628 (Jan. 5, 1983).
18. U.S. EPA, National Primary and Secondary Ambient Air Quality Standards
for Lead, 43 Fed. Reg. 46258 (Oct. 5, 1978). Arnold W. Reitze
Air Act (Symposium on Energy Law), 29 T L.J. 485-540 (1994).
be averaged. Annual or daily levels are commonly used.
e “form” of the NAAQS describes how compliance over
the averaging time will be determined.20
e extent to which costs are to be considered has been
controversial. Section 109(b)(1) does not address costs, but
it provides for an adequate “margin of safety” “requisite to
protect the public health.”21 However, in American Truck-
ing Ass’n v. EPA, the D.C. Circuit held that costs were not
to be considered in setting NAAQS.22 e U.S. Supreme
Court upheld that part of the decision.23
Section 109(d), added in the 1977 Amendments,
requires the Administrator to review the NAAQS stan-
dards at ve-year intervals, but does not require the
Agency to revise the standards.24 e Administrator can
review and revise more frequently than e very ve years. If
EPA decides to revise a standard, the §307(d) rulemaking
procedures apply.25 EPA’s next ve-year review of the PM2.5
NAAQS is due in 2017.26
e origina l prima ry and secondary NAAQS for PM,
expressed in terms of total suspended particulates (TSP),
was promulgated in 1971. It regulated particles 25-45
micrometers in diameter, depending on the capabilities
of the high-volume sampler specied for collecting TSP.27
In 1987, EPA changed the particulate standard to regu-
late only PM with a diameter of 10 micrometers or smaller
(PM10).28 e D.C. Circuit in
Council v. EPA upheld the revision.29
After EPA revised the PM standard in 1987, it made no
further eort to revise the standard until its notice on April
2, 1994, announcing that the Criteria Document would be
reviewed.30 In response to litigation brought by the Ameri-
20. National Ass’n of Mfrs. v. EPA, 2014 WL 1851919, 44 ELR 20111 (D.C.
Cir. May 9, 2014); American Farm Bureau Fed’n v. EPA, 559 F.3d 512
(D.C. Cir. 2009).
’n v. EP
A, 175 F.3d 1027
, 29 ELR 21071 (D.C. Cir
1999), reversed on other grounds sub nom. Whitman v. American Trucking
Whitman v. American Trucking Ass’n, 531 U.S. 457
, 31 ELR 20512
Union Elec. Co. v. EPA, 427 U.S. 246
, 257-58, 6 ELR
24. Environmental Def. Fund v. EPA, 27 ERC 2008, 18 ELR 21394 (S.D.N.Y.
Apr. 19, 1988), a’d sub nom
. Environmental Def. Fund v. omas, 870
26. Chris Knight,
, 25 C A R. (Inside EPA) 7:38 (Mar. 27, 2014).
27. U.S. EPA, National Primary and Secondary Ambient Air Quality Stan-
dards, 36 Fed. Reg. 8186 (Apr. 30, 1971). e collection requirements are
found in 40 C.F.R. pt. 50, app. B. Particle size is discussed in U.S. EPA,
Proposed Revisions to the National Ambient Air Quality Standards for Par-
ticulate Matter, 49 Fed. Reg. 10408, 10410 (Mar. 20, 1984).
28. U.S. EPA, Revisions to the National Ambient Air Quality Standards for
Particulate Matter, 52 Fed. Reg. at 24634 (July 1, 1987).
Natural Res. Def
. Council v. EP
A, 902 F.2d 962
, 20 ELR 20891 (D.C. Cir
30. U.S. EPA, National Ambient Air Quality Standards for Ozone and Particu-
late Matter, 59 Fed. Reg. 17375 (proposed Apr. 12, 1994).
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.