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Court Rejects EPA’s PM2.5 Implementation Rules
Added 01-16-13

A federal appeals court ruled Jan. 4, 2012 that U.S. EPA must re-do two final rules that specify how states implement EPA’s National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM 2.5).

The three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected EPA's argument that it is required under the Clean Air Act to use a less stringent implementation regime for fine particulates than it is for more coarse particulate matter (PM).

The ruling means EPA must look again at the implementation of the existing standards. Separately, the EPA announced Dec. 14, 2012 that it was finalizing an revision to its National Ambient Air Quality Standard (NAAQS) for fine particulate matter (PM2.5), setting the annual primary standard at 12 micrograms per cubic meter. EPA also announced that it was retaining the existing secondary standard for PM2.5.

The Natural Resources Defense Council, Sierra Club, American Lung Association and Medical Advocates for Healthy Air challenged two final rules, promulgated pursuant to the Clean Air Act (CAA, Act), which govern implementation of the national ambient air quality standard (NAAQS) for "fine" particulate matter -- particulate matter (PM) having a diameter equal to or less than 2.5 micrometers (PM2.5). The rules at issue are the PM2.5 Implemention Rule (72 Fed. Reg. 20,586, 2007) and the PM2.5 NSR Implementation Rule (73 Fed. Reg. 28,321, 2008).

The Natural Resources Defense Council and Sierra Club had said states have too much flexibility, which means that in some cases standards are not being met. They challenged two George W. Bush-era rules, one from 2007 and one from 2008, that laid out how fine particle standards last set in 1997 should be implemented.

The environmental groups argued that the rules gave states too much flexibility in determining how to meet the standards and that EPA ignored language in the Clean Air Act as amended in 1990, which addressed implementation of particulate matter standards in a more stringent manner then implementation for other pollutants.

In its ruling, the court held that the Clean Air Act required EPA to handle implementation of the PM 2.5 standards under the more stringent provision of the CAA. The court then sent the rules back to EPA with instructions to re-promulgate the rules pursuant to the particulate-matter-specific provisions of Subpart 4 of Part D of Title I rather than pursuant to general implementation provisions of Subpart 1 of Part D of Title I.

The complete opinion is online at: http://www.cadc.uscourts.gov/internet/opinions.nsf/5E67334CF6182C5E85257AE90054C0C1/$file/08-1250-1413399.pdf.

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