EPA's Fine Particulate Air Pollution Control Program

Date01 November 2014
Author
44 ELR 10996 ENVIRONMENTAL LAW REPORTER 11-2014
EPA’s Fine
Particulate Air
Pollution Control
Program
by Arnold W. Reitze Jr.
Arnold W. Reitze Jr. is Professor of Law at S.J.
Quinney College of Law, the University of Utah.

is Article discusses the U.S. Environmental Protec-
tion Agency’s program to control ne particulate emis-
sions 2.5 microns or smaller (PM2.5) in areas that fail to
meet the national a mbient air quality standards. e
Article covers the sources and health eects of both
direct emissions of particulate matter and second-
ary emissions that are transformed into PM2.5 in the
atmosphere. Also discussed is the control of ne par-
ticulates from mobile, area, and major point sources;
and the indirect control of PM2.5 through transporta-
tion planning and the program to reduce hazardous
air pollutants. e Article concludes that controlling
PM2.5 and its precursors from mobile sources by the
federal government has been successful, but that con-
trol of these pollutants from area and point sources
should be improved.
I. Particulate Matter Standard, Sources,
and Adverse Effects
A. The Particulate Matter (PM) Standard
e Air Quality Act of 19671 required the Secretary of
Health, Education, and Welfare to issue ambient air qua l-
ity criteria that in his judgment was necessary to protect
public health and welfare. e criteria were to reect the
latest scientic knowledge of the public health a nd wel-
fare eects of any pollutants that the Secretary identies.2
Simultaneously, an information document on air pollution
control techniques was to be announced in the -
ister.3 In February 1969, the rst A ir Quality Criteria for
Particulate Matter was released.4 Each state was then to
develop numerical air quality standards for each of its Air
Quality Control Regions (AQCRs).5 ere was no expecta-
tion of national uniformity.
In 1970, the Clean Air Act (CAA) Amendments6
authorized the U.S. Environmental Protection Agency
(EPA) Administrator to promulgate primary and second-
ary national ambient air quality standards (NAAQS).7
e requirements for criteria documents and control tech-
niques were continued in CAA §108, but the Adminis-
trator was to identify pollutants and promulgate primary
and secondary numerical ambient air quality standards
that would be uniformly applicable nationwide.8 Primary
NAAQS are to be standards “which in the judgment
of the Administrator, based on [the air quality criteria]
and a llowing an adequate margin of safety, are requisite
to protect the public hea lth.” Secondary NA AQS are to
specify a level of air quality “which in the judgment of
the Administrator, ba sed on such criteria, is requisite to
protect the  from a ny known or anticipated
adverse eects associated with the presence of the a ir pol-
lutant in the ambient air.”9
In sett ing both standards, EPA takes into account the
Criteria Document, t he Sta  Paper, and the recommen-
dations of the Clean Air Scientic Advisory Committee,
a seven-member, independent scientic review commit-
1. Pub. L. No. 90-148, §107(b)(1), 81 Stat. 491 (1967).
2. Id. at §107(b)(2).
3. Id. at §107(c).
4. U.S. Department of Health, Education, and Welfare, Public Health Service
(Feb. 1969).
5. Pub. L. No. 90-148, §108, 81 Stat. 492 (1967).
6. Pub. L. No. 91-604, 84 Stat. 1676 (1970). e current version of the CAA
is at 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618.
7. CAA §109, 42 U.S.C. §7409.
8. Id.
9. CAA §109(b)(1) & (2), 42 U.S.C. §7409(b)(1) & (2) (emphasis added).
Welfare is dened to include eects on soils, water, crops, vegetation, man-
made materials, animals, wildlife, weather, visibility, and climate. CAA
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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 scientic and techn i-
cal information a nd is intended to provide a reasonable
degree of protection against hazards not yet identied.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 dierent
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 justication for a secondary
standard that was identical to the primar y standard was
ruled inadequate.14
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 eect
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”
denes the parameter of the substance EPA will measure.
PM, for example, uses particle size to dene the subject of
the NA AQS. e “level” species the acceptable concen-
tration in the air. e “averaging time” species the time
span for which the pollution concentration in the a ir will
10. CAA §109(d)(2), 42 U.S.C. §7409(d)(2).
11. 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).
12. Bunker Hill Co. v. EPA, 572 F.2d 1286, 1290 n.1, 7 ELR 20681 (9th Cir.
1977).
14. Mississippi v. EPA, 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
Jr., 
Air Act (Symposium on Energy Law), 29 T L.J. 485-540 (1994).
19. , 40 C.F.R. §51.165(a)(iv)(A) & (B).
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 specied 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 eort 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).
22. American Trucking Ass’n v. EPA, 175 F.3d 1027, 29 ELR 21071 (D.C. Cir.
1999), reversed on other grounds sub nom. Whitman v. American Trucking
Ass’n, 531 U.S. 457, 31 ELR 20512 (2001).
23. Whitman v. American Trucking Ass’n, 531 U.S. 457, 31 ELR 20512
(2001).   Union Elec. Co. v. EPA, 427 U.S. 246, 257-58, 6 ELR
20570 (1976).
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
F.2d 892, 19 ELR 20660 (2d Cir. 1989).
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).
29. Natural Res. Def. Council v. EPA, 902 F.2d 962, 20 ELR 20891 (D.C. Cir.
1990).
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.

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