THE INDUSTRY CHALLENGE TO THE COARSE PARTICULATE MATTER NAAQS
| Jurisdiction | United States |
(Nov 2007)
THE INDUSTRY CHALLENGE TO THE COARSE PARTICULATE MATTER NAAQS
Holland & Hart LLP
Denver, Colorado
This case and the legal issues presented in the attached brief are a mere summary of a nearly 30-year debate among EPA, eminent public health scientists, and representatives of key western industries (agriculture and mining) regarding whether fugitive dust is harmful to public health at ambient levels and therefore subject to regulation without regard to any adverse economic impacts on the affected industries. The brief outlines this history, from the initial National Ambient Air Quality Standards for particulate matter set in 1977, which resulted in over-inclusion of fugitive dust and harmless particles, such that mining and agriculture operations could not meet the standard, to the most recent final rule published in 2006 which regulated coarse particulate matter despite EPA's finding that the evidence of health effects was "weak, uncertain and inconclusive," and merely used the former standard (that had been based on evidence of fine PM health effects) to set the level. Once again, there is ample evidence that key western industries may not be able to meet the challenged coarse PM NAAQS. While the industry petitioners have been mindful, here, of the DC Circuit court's determination in 1999 that there was sufficient evidence of adverse health effects to regulate coarse PM, the focus of this brief is on (1) the lack of any evidence to regulate rural coarse PM and EPA's own acknowledgement of this lack of evidence, (2) the failure of EPA to meet the test set out by the US Supreme Court in 2001 to ensure that the level of a standard is "no lower than necessary to protect public health," and (3) EPA's choice of the PM10 indicator to regulate coarse PM, a choice already rejected by the DC Circuit court in 1999.
RECORD NOS. 06-1410(L), 06-1411, 06-1415, 06-1416, 06-1417
ORAL ARGUMENT HAS NOT YET BEEN SCHEDULED
In The United States Court of Appeals For The District of Columbia Circuit
AMERICAN FARM BUREAU FEDERATION; NATIONAL PORK PRODUCERS COUNCIL; NATIONAL CATTLEMEN'S BEEF ASSOCIATION; and AGRICULTURAL RETAILERS ASSOCIATION,
Industry Petitioners,
v.
U.S. ENVIRONMENTAL PROTECTION AGENCY,
Respondent.
AMERICAN CHEMISTRY COUNCIL, et al.,
Intervenors.
COMMONWEALTH OF MASSACHUSETTS, et al.,
Amicus Curiae.
ON APPEAL FROM THE U.S. ENVIRONMENTAL PROTECTION AGENCY
PAGE PROOF JOINT BRIEF OF INDUSTRY PETITIONERS
| Richard E. Schwartz | Denise W. Kennedy | Gary H. Baise |
| Kirsten L. Nathanson | Robert T. Connery | Kilpatrick Stockton, LLP |
| Crowell & Moring LLP | John F. Shepherd | 607 14th Street, N.W., Suite 900 |
| 1001 Pennsylvania Avenue, N.W. | Holland & Hart LLP | Washington, D.C. 20005 |
| Washington, D.C. 20004 | Post Office Box 8749 | (202) 508-5800 |
| (202) 624-2500 | Denver, Colorado 80201 | |
| (303) 295-8000 | ||
| Counsel for Petitioners | Counsel for Petitioner | Counsel for Petitioner |
| American Farm Bureau Federation | National Cattlemen's Beef Association | Agricultural Retailers Association |
| and National Pork Producers Council |
(Additional Counsel Inside Cover)
THE LEX GROUPDC · 1750 K Street, NW · Suite 475 · Washington, DC 20006
(202) 955-0001 · (800) 815-3791 · Fax: (202) 955-0022 · www.thelexgroupdc.com
JURISDICTION
This Court's jurisdiction rests on Section 307(b)(1) of the Clean Air Act ("CAA"), 42 U.S.C. § 7607(b)(1), in that this case involves petitions for review of the promulgation of national ambient air quality standards ("NAAQS") for particulate matter ("PM"), published at 71 Fed. Reg. 61,144 (Oct. 17, 2006) by the United States Environmental Protection Agency ("EPA").
STATEMENT OF THE ISSUES
1. Whether EPA violated the Clean Air Act by issuing a NAAQS for non-urban coarse PM despite finding that there is no evidence of risk to public health.
2. Whether EPA violated the Clean Air Act and the Supreme Court's Whitman decision by setting a standard for non-urban coarse PM that is admittedly more stringent than is "requisite" to protect public health.
3. Whether EPA's PM10 indicator, which is the same one this Court vacated in 1999, is arbitrary and capricious because it remains confounded by PM fine and also fails to set a "requisite" level for PM coarse.
STATUTES AND REGULATIONS
Pertinent statutes and regulations are set forth in the Addendum.
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STATEMENT OF FACTS
EPA's regulation of PM is a story of continuing attempts to focus the NAAQS on those particles "which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. § 7408(a)(1)(A). What started in the 1960s as an effort to control urban smog (made up of smaller particles that were products of combustion) became an EPA NAAQS in 1971 that included much larger particles. Since that time, EPA has repeatedly refocused the standard on those particles that endanger public health. Most recently, based on the lack of evidence that non-urban coarse PM "endanger[s] public health," the Agency proposed to exclude non-urban coarse PM from a new coarse PM NAAQS. Ultimately, however, the Agency not only regulated non-urban coarse PM (out of "caution"), but did so via a limit that is more stringent than necessary to protect against non-urban PM coarse, using a flawed PM10 indicator that had previously been vacated by this Court.
The original impetus to regulate PM as an air pollutant arose from concerns with industrial smoke in the 1950s and 1960s, as described in a series of reports on highly publicized incidents of mortality events. E.g., London "killer smog" of 1952 (4,000+ deaths); New York, 1953 (170+ deaths); London "killer smog" of 1962 (340+ deaths); New York, 1963 (200 deaths). See Arnold W. Reitze Jr., The Legislative History of U.S. Air Pollution Control, 36 Hous. L. Rev. 679, 684
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(1999) ("Cities that burned bituminous coal developed the most serious air pollution problems, and their citizens became the original air pollution activists"). While broadly referred to as PM, the pollutant of concern was the PM resulting from combustion processes, especially coal and oil burning.
Original NAAQS For "TSP"
In 1971, EPA published the first NAAQS for PM. 36 Fed. Reg. 8,186 (Apr. 30, 1971). The impetus for the NAAQS was health concerns associated with combustion-derived particles in urban areas. The pollutant was defined, however, by the instrument used to measure it, namely the "high volume" sampler, which collects PM up to a nominal size of 25-45 micrometers, referred to as "total suspended particulates" ("TSP"). The TSP method of measurement resulted in regulation of rural fugitive dust from unpaved roads and agricultural operations in rural areas - particles many times larger and of a composition different from the combustion particles that drove the initial focus on PM as an air pollutant.
As a result of the over-inclusiveness of the TSP NAAQS and in response to Congress's directive that EPA should use "administrative good sense" in addressing "background particulates" and "particulates not generally of the
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substances and respirable size thought to affect public health,"1 EPA developed various administrative policies designed to ensure that common rural activities (e.g., agriculture and mining) with fugitive dust emissions that might contribute to exceedances of NAAQS were allowed to continue operating. These "rural fugitive dust" policies were premised on the recognition that rural fugitive dust was not a health concern.2 See Memo from Edward F. Tuerk, Acting Assistant Administrator for Air & Waste Management, EPA, "Guidance on SIP Development and New Source Review in Areas Impacted by Fugitive Dust" (Aug. 16, 1977), available at http://www.epa.gov/ttn/caaa/t1/memoranda/19770816_tuerk.pdf; Memo from David G. Hawkins, Assistant Administrator for Air and Waste Management, EPA, "Model Letter Regarding State Designation of Attainment Status" (Oct.7, 1977), available at http://www.epa.gov/ttn/caaa/t1/memoranda/19771007_hawkins.pdf; see also [EPA-HQ-OAR-2001-0017-1876.1 at 2, 26-27].3
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The 1987 PM NAAQS
In 1979, this Court recognized that "EPA has discretion to define the pollutant termed `particulate matter' to exclude particulates of a size or composition determined not to present substantial public health or welfare concerns." Alabama Power Co. v. Costle, 636 F.2d 323, 370 n.134 (D.C. Cir. 1979) (emphasis added). In the 1987 PM NAAQS, EPA replaced the overly broad TSP sampler with the more focused PM10 indicator, thereby excluding particles larger than 10 micrometers from the PM NAAQS. EPA found that the risks from the larger particles "are sufficiently low" that they "can safely be excluded from the indicator." 52 Fed. Reg. 24,634, 24,639 (July 1, 1987). The 1987 NAAQS was EPA's first attempt to develop a PM NAAQS focused primarily on the smaller combustion particles that caused health effects, consistent with the capability at the time for measuring smaller particles. At the same time, a pre-eminent expert on health effects of PM, Dr. Benjamin Ferris, sent a letter to EPA stating:
EPA's fugitive dust policy traditionally reflected the fact that standards for particulate matter were routinely exceeded by coarse particle fugitive dust from natural sources, agriculture, unpaved roads, mining, construction, and other sources, especially in the arid areas of the western U.S.A. This fugitive dust at the levels measured in ambient air in the western and other parts of the United States over the years has never been documented to have had adverse effects on human health. We began to realize this from research on particle deposition and clearance, showing that coarse insoluble particles deposited primarily in the upper airways while
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the fine soluble particles deposited...
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