iThe District of Columbia Circuit Court of Appeals’ January 4, 2013 decision in Natural Resources Defense Council vs. EPA, Case No. 08-1250 created significant uncertainty regarding regulatory requirements governing the implementation of National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM-2.5). Despite this uncertainty, EPA has concluded that it can proceed to redesignate a number of PM-2.5 nonattainment areas that have otherwise attained the standards. Redesignation will avoid leaving these areas, and in particular emissions sources subject to NAAQS for PM-2.5, in regulatory limbo.
Background on NRDC v. EPA
In April 2007, EPA promulgated an implementation rule for states to follow in developing their state implementation plans (SIPs) for attaining the annual and 24-hour PM-2.5 NAAQS. See 72 Fed. Reg. 20,586 (April 25, 2007). Then, in May 2008, EPA issued regulations to implement the New Source Review program for PM-2.5. See 73 Fed. Reg. 28,321 (May 16, 2008). The Natural Resources Defense Council (NRDC) and fellow petitioners Sierra Club, the American Lung Association and Medical Advocates for Healthy Air sought review of both rules, challenging EPA’s decision to promulgate these rules solely under the general provisions of Subpart 1 of Part D of the Clean Air Act, and not under the more stringent particulate matter specific provisions of Subpart 4. Subpart 4 imposes a number of additional requirements. For example, it requires that “reasonably available control measures” be implemented within four years after designation, while Subpart 1 requires such measures be implemented “as expeditiously as practicable.” Similarly, Subpart 4 requires that best available control measures be implemented no later than four years after an area is classified or reclassified as “serious,” while Subpart 1 has no best available control measures requirement. Subpart 4 also requires a nonattainment area to be classified as “moderate” and reclassified as “serious” upon failure to attain, while under Subpart 1 EPA is not required to classify a nonattainment area.
The Court of Appeals found for the petitioners, remanding the rules and requiring EPA to repromulgate them in accordance with Subpart 4. However, the court did not establish any deadline for doing so. This decision created a potential dilemma for areas that have attained the PM-2.5 standards but have not yet been formally redesignated to attainment status.
EPA Redesignates the Indianapolis Nonattainment Area
Despite the mandate to implement Subpart 4’s more stringent requirements for the PM-2.5 standards, EPA issued a notice on April 8, 2013 proposing to redesignate the Indianapolis, Indiana nonattainment area to attainment status for the 1997 PM-2.5 annual standard. 78 Fed. Reg. 20856 (April 8, 2013). In the notice, EPA concluded that the Circuit Court’s decision in NRDC v. EPA does not prevent it from redesignating the Indianapolis area to attainment status.[i] On July 11, 2013, finalized the redesignation. 78 Fed. Reg. 41698 (July 11, 2013).
In its notice proposing redesignation, EPA noted that it would be unreasonable to retroactively apply Subpart 4’s requirements and reject Indiana’s redesignation request “for an area that is already attaining the 1997 PM [2.5] standard and that met all applicable requirements known to be in effect at the time of the request.” 78 Fed. Reg. at 20860. This is, in part, because requiring states to adopt new requirements arising after the state submitted its redesignation request would make it nearly impossible for EPA to act on requests within the 18-month deadline set in section 107(d)(3)(D) of the Clean Air Act.
EPA further explained that even if it were to retroactively apply Subpart 4, Indianapolis still would qualify for redesignation to attainment. EPA noted that the permit requirements of Subpart 4 refer to and apply the Subpart 1 permit provision requirements, and therefore do not impose any additional requirements for redesignation purposes. Additionally, EPA concluded that the specific attainment planning requirements imposed by Subpart 4 are met in Indianapolis because the area is already attaining the 1997 PM-2.5 standard. Subpart 4’s attainment planning requirements are viewed as satisfied in any area that is attaining the PM-2.5 standard. Id. at 20861. “For redesignations, EPA has for many years interpreted attainment-linked requirements as not applicable for areas attaining the standard.” Id. Additionally, EPA noted that Subpart 4’s permit requirements do not impose “any additional requirements for moderate areas beyond those contained in subpart 1.” Id.
Implications of the Indianapolis Redesignation
The Indianapolis redesignation serves as a guide for other PM-2.5 nonattainment areas seeking redesignation. However, environmental advocacy groups appear to be keeping a close eye on the process. The Sierra Club offered comments on EPA’s Notice of Intent to Redesignate Indianapolis, urging the Agency to reconsider its reliance on emissions reductions from the Clean Air Interstate Rule (CAIR) in redesignating the Indianapolis area to attainment. The Sierra Club argued that CAIR regulations are not sufficiently permanent and enforceable to support redesignation since CAIR was successfully challenged in court. However, as EPA responded in supporting the redesignation, the court allowed CAIR to remain in place while the agency develops a replacement rule.
It is unclear whether the Sierra Club’s comments constitute a signal of its intent to pursue litigation on the issue, but EPA remains undeterred. As noted above, EPA has finalized the Indianapolis redesignation, and has noticed its intent to redesignate several other PM-2.5 nonattainment areas around the country. See 78 Fed. Reg. 39654 (July 2, 2013) (Ann Arbor, Michigan); 78 Fed. Reg. 38648 (June 27, 2013) (New Jersey portions of New York City and Philadelphia-Wilmington metro areas); 78 Fed. Reg. 38247 (June 26, 2013) (Ohio portion of the Wheeling nonattainment area); 78 Fed. Reg. 38256 (June 26, 2013) (Ohio portion of the Parkersburg-Marietta nonattainment area). In each notice, EPA has closely followed the reasoning set forth in the initial Indianapolis notice. On the issue of CAIR regulations, EPA concluded in the final Indianapolis redesignation notice that “[t]o the extent that attainment is due to emission reductions associated with CAIR, . . . EPA is determining that those reductions are sufficiently permanent and enforceable for purposes of CAA sections 107(d)(3)(E)(iii) and 175A,” and noted that “any rule promulgated to replace CAIR with respect to PM2.5 will need to ensure that the ‘good neighbor’ provisions have been satisfied” with regard to the PM-2.5 standards. 78 Fed. Reg. at 41700, 41701-2. Thus, EPA did accept the reasoning behind the Sierra Club’s comments regarding CAIR.
[i] EPA noticed final redesignation of the Birmingham Alabama nonattainment area for the 2006 24-hour PM-2.5 standard shortly after the January 4th decision, but this redesignation is understood to have been signed before the court’s decision. See 78 Fed. Reg. 5306 (January 25, 2013).
