In response to a unanimous January 4, 2013 court ruling, EPA has scrapped guidance to the states on how to follow fine particulate (PM 2.5) rules in the Clean Air Act, leaving states and the public uncertain of the new timelines. Earlier guidance, in a March 2, 2012 memo from EPA, was officially withdrawn on June 6. Review EPA’s summary of the NRDC v. EPA decision.
Under the previous timeline, Alaska was required to prepare a State Implementation Plan (SIP) by December 14, 2012. This plan must demonstrate exactly what the state would do to fix the Fairbanks PM 2.5 nonattainment area. The state did not meet that deadline. Now, it is unclear what deadlines are in effect. A lawsuit filed May 2013 by WildEarth Guardians against EPA may help resolve questions about the schedule. See previous post WildEarth Guardians Challenges EPA to Restore Clean Air in Utah.
The case that caused the tangle was filed against EPA by the Natural Resources Defense Council, Sierra Club, American Lung Association, and Medical Advocates for Healthy Air, NRDC v. EPA, Order, Slip op., No. 08-1250 (D.C. Cir. Jan. 4, 2013).
How did the “good guys” demolish the schedule? They challenged EPA’s decision to apply the less stringent requirements of the Clean Air Act Part D, Subpart 1 of Title I (Subpart 1) rather than the more stringent requirements in Part D, Subpart 4 of Title I (Subpart 4). The United States Court of Appeals for the DC Circuit agreed with NRDC, upsetting EPA’s apple cart of instructions for states to use in crafting SIPs to meet the 24-hour average National Ambient Air Quality Standard (NAAQS) of 35 micrograms per cubic meter for PM 2.5.
But before pollution defenders–yes, that’s exactly what they are–crow joyously over the apparent evaporation of the timeline for meeting PM 2.5 attainment, they should look ahead at the cascade of costs to come.
What consequences will be put into effect? Based on the court’s order, EPA must repromulgate the implementation rules in compliance with Subpart 4, meaning stricter requirements in the future for sources that emit PM 2.5 and operate under a permit. However, since between 62.7% and 81.2% of Fairbanks’ winter PM 2.5 is from burning wood, the eventual arrival of more stringent requirements for sources that require permits (e.g. power plants) will not significantly improve local air quality. Local permitted sources, the coal and oil-fired power plants and the Flint Hills refinery, will be caught in the regulatory squeeze, raising operating costs and jacking up already sky-high electric rates.
Could the higher cost of point source emissions have been avoided? Yes. State and local leaders knew PM 2.5 levels were dangerously high before 2009, but pretended they could dodge the bullet. Now, the consequences of that irresponsibility are on the way, backed by the unanimous court order. The longer state and local governments drag their heels doing nothing to control unhealthy PM 2.5 emissions, the more catastrophic harm they cause to the local economy and public health.
Knows and unknowns. The science of tracing sources of PM 2.5 and its harm to public health are established matters of fact. Fairbanks’ extreme levels of winter smoke pollution from wood and coal stoves and boilers is well documented with large numbers of injuries and permanent damage in sworn court affidavits. The big unknown is now what schedule will be required to meet federal standards.
Fairbanks winter air pollution regularly violates the 24-hour standard of 35 µg/m3. In 2013, EPA conducted a required review–after being sued (are you seeing the pattern here?) — and lowered the annual standard from 15 µg/m3 to 12, citing health studies. Currently, Fairbanks is Alaska’s only PM nonattainment area. The lower annual standard may sweep up other air polluted Alaskan communities, putting them into nonattainment too.
What was EPA’s defense in the NRDC v. EPA case?
First, EPA argued the petitions for review were untimely. EPA contended the petitioners should have challenged EPA’s decision to proceed under Subpart 1 when EPA published the Final PM NAAQS Rule in 1997. The court disagreed.
Second, EPA argued that Subpart 4 only applied to larger particulate matter known as PM 10, and therefore it need not apply the stricter approach to PM 2.5. The court disagreed here as well, determining that PM 2.5 is a subset of PM 10 and therefore Subpart 4 applies.
What did the ruling determine? Prepare for tough love: “serious”, “stringent”, and “best available” controls. The court compared the less stringent and highly discretionary provisions in Subpart 1 to the bright-line requirements in Subpart 4. Under Subpart 4, EPA must classify a nonattainment area as “moderate,” and then reclassify the area as “serious” upon failure to attain.
Further, Subpart 4 sets a faster schedule for states to submit various types of SIPs than subpart 1, requiring that states meet the 24-hour standard by 2015, rather than up to 2024 under subpart 1. If areas classified “moderate” nonattainment for the standard miss their attainment deadline of 2015, under subpart 4 they are automatically reclassified as “serious” nonattainment zones which are subject to more stringent air pollution controls.
In addition, for particulate matter nonattainment areas classified as “serious” under Subpart 4, the attainment date may only be extended once, up to five years, and only if the SIP includes the “most stringent measures that are included in the [SIP] of any State or are achieved in practice in any State, and can feasibly be implemented in the area.” Subpart 4 requires the implementation of “reasonably available control measures” within four years of designation of a nonattainment area as “moderate.” Subpart 4 requires the implementation of “best available control measures” within four years of classification or reclassification of a nonattainment area as “serious.” Subpart 1 only requires the implementation of “reasonably available control measures as expeditiously as practicable,” a far weaker and more subjective standard.
Despite the NRDC v. EPA petitioners’ request, the court did not set a definitive deadline for EPA to issue new rules consistent with its opinion.
From an air quality advocate prospective, forcing EPA to apply Subpart 4 instead of Subpart 1 is trading up. The price the seriously tough love to come is the current uncertainty in the attainment schedule.
Meanwhile, the WildEarth Guardians filed a suit against EPA on May 15 in the US District Court for the District of Colorado, claiming that EPA should by now have issued findings that Utah and Idaho failed to submit nonattainment SIPs under Subpart 4. Alaska is in the same boat, under the same schedule, but has done the least of any state to draft a SIP.
These findings of “failure to submit” pave the way for EPA to step in to directly regulate sources in those states under a Federal Implementation Plan (FIP) if the states do not supply legally adequate SIPs within two years. A FIP is when EPA takes over to do what a state would not.
An EPA representative would not say whether EPA intends to replace the withdrawn guidance with a similar document, saying only that, “EPA will continue to work with states to address any questions that may come up as they continue to implement the 2006 PM2.5 standards according to Clean Air Act requirements.” From: EPA Scraps ‘Untenable’ Guide For States To Implement PM2.5 Air Standard, InsideEPA 6/11/2013
In the meantime, with the timeline up in the air, it is not clear when or if the state of Alaska will submit its SIP. No draft has been released for public review. The state only recently closed an RFP seeking a contractor to write the SIP. See previous post: State of Alaska Gives up on Meeting 2014 Deadline.
Waiting for healthy air to breathe is the same as not having it.
EPA has invited those with questions about the SIP timeline and implementation to “submit questions and raise issues through their EPA Regional Office contacts,” see EPA’s summary of the NRDC v. EPA decision. The Region 10 contact for the Fairbanks SIP is Lucy Edmondson <firstname.lastname@example.org> (360)753-9082.