EPA Backs Off Stricter Air Standards for Coarse Particles; Turns Focus to Fine Particulate Emissions
October 27, 2011

The U.S. Environmental Protection Agency (EPA) has announced that it will not tighten its national limit on coarse dust particles in the air.  That change could have dealt a tough economic blow to businesses, notably construction and demolition workers and aggregate producers that kick up quantities of dirt in the ordinary course of operation.  Environmental groups now  have shifted their focus to securing stricter national limits on the smaller fine (soot) particles in the air, like those that come from diesel-powered vehicles and equipment.

EPA’s actions leading up to and following promulgation of National Ambient Air Quality Standards (NAAQS) have been the subject of considerable congressional oversight.  In her letters to several U.S. Senators dated Oct. 14, EPA Administrator Lisa Jackson said that she decided to keep the current federal NAAQS for coarse particulate matter (PM-10)—better known as airborne “dust”—in place after a review of the science, an analysis by agency scientists and recommendations from an outside advisory panel.

Industry Savings in the Billions

EPA retreats have been coming steadily in recent months. Last month, it scuttled costly new smog regulations. Right before that, AGC announced the administration dropped a proposal that would have required lead-dust lab testing as part of even relatively minor renovations to older homes.  In addition, AGC has been closely following EPA’s plans to slow-down and collect more information before issuing a nationwide limit on dirt in stormwater from active construction sites or first-time national requirements for stormwater runoff from already developed properties (called after- or post-construction rules).  And EPA remains under heavy pressure to rethink its proposal to regulate coal combustion waste (e.g., fly ash) as a hazardous substance.

On Capitol Hill

Congressional lawmakers recently proposed legislation (H.R. 1633) that would prevent EPA from tightening PM-10 rules in rural areas, unless the agency can prove it has a significant health effect or unless it passes a cost-to-benefit test.  Specifically, the bill would exemption from further federal regulation coarse particle pollution from farming, “earth moving, or other activities typically conducted in rural areas.”  Most mining operations and 70 percent of the nation’s electrical utilities are located in rural areas.  Both activities produce significant amounts of PM-10 emissions.

At the Regulatory Agencies

This past summer, EPA released its latest assessment of the agency’s particulate matter NAAQS, including a proposed NAAQS for PM-10 that would have been much lower than the existing standard.  This initiated widespread speculation and concern (from sources of PM-10 emissions) that the standard would be impossible to meet. In subsequent documents,  EPA staff had recommended tightening the PM-10 standard even though there was (and still is) considerable uncertainty associated with the science behind course PM risks.  But the agency also left the door open to retaining the existing PM-10 standard, which is the option EPA ultimately selected.

Inside the Courtroom; Tighter Fine Particulate Standards

U.S. EPA Administrator Lisa Jackson has made it clear she doesn’t plan to tighten the NAAQS for PM-10, but environmental groups are stepping up a campaign for stricter nationwide limits on the smaller fine particles (PM-2.5), like those that come from diesel-powered vehicles and equipment.

Staff scientists and outside advisers have suggested tougher limits on the fine particles.  EPA has not yet proposed a course of action. Under the Clean Air Act, the agency was required to reach a decision earlier this month, which marked five years after the George W. Bush administration wrapped up the last review. Several health and environmental groups, represented by the nonprofit law firm Earthjustice, sent Jackson a letter on Oct. 18 threatening to file a lawsuit if EPA has not finished reviewing air quality standards for both coarse and fine particles before the end of 2011.

When the Bush administration came out with stricter standards for fine particles in 2006, it said they were expected to cost industry $6 billion annually.  AGC of America’s CEO Stephen Sandherr met with then-EPA Administrator Steve Johnson to discuss the impact of tighter particulate matter standards on the construction industry.   In Feb. 2009, the U.S. Court of Appeals for the D.C. Circuit decided that the agency had not shown its rules would do enough to protect public health. The court told the agency to redo the standards, but because the review cycle had already started over again, advocacy groups agreed to let EPA reexamine the rules on the usual schedule.

Currently, EPA and states continue the implementation of the 2006 revised PM-2.5 standards, the next round of periodic review of the particulates NAAQS is under way, and EPA is expected to propose revised standards in the near future.  EPA’s final designations of areas as nonattainment and unclassifiable/attainment for the 2006 PM-2.5 NAAQS took effect Dec. 2009 – based monitoring data from 2006-2008.  On June 9, 2010, EPA published a finding that dozens of states and the District of Columbia failed to demonstrate (within three years of issuance of a NAAQS, as required by law) that they have the basic air quality management program components in place to implement the revised NAAQS (called an “infrastructure” state implementation plans).

Industry Impacts

As federal air standards become increasingly more stringent, the number of nonattainment counties will continue to increase. States with nonattainment areas have to craft state implementation plans (SIPs) — air quality blueprints that detail the emission controls they will impose on sources under their regulatory control in order to cut regulated emissions and attain the standard.  The NAAQS themselves do not specify what sectors must make pollution reductions. They set an overall standard, and leave the states to decide where the reductions should be made. However, state rulemaking agencies are finding it more and more difficult to secure the emission reductions they need to develop EPA “approvable” SIPs.

States that fail to develop suitable SIPs (or to meet EPA’s CAA deadlines) could be subject to numerous federal sanctions, including emissions caps limiting economic development and the loss of federal highway transportation dollars.

In addition, EPA’s “transportation conformity” provisions can bring federal funding for road and transit projects to a grinding halt. “Conformity” means transportation activities will not cause new air quality violations, worsen existing violations or delay timely attainment of air quality standards in polluted areas.

Construction and aggregate operations in rural areas tend to have high levels of PM-10 emissions and therefore likely would be targets for new controls in SIPs under a stricter NAAQS.  Construction companies in dry areas are already employing best management practices to reduce dust; finding additional ways to curb dust in inherently dusty regions would have been tough.

Diesel equipment used by the construction industry emits PM-2.5.  States may attempt to directly impose requirements through their SIPs on the users of diesel engines to reduce fine particle emissions from the existing fleet of construction equipment.  AGC has outright opposed  equipment use/operation restrictions, including the application of contract language (bid specifications) to require contractors to retrofit their equipment for a given project because it has the potential to threaten the integrity of the competitive bidding process and unfairly discriminate against contractors on the basis of their equipment.

Implications of the various issues discussed above with regard to implementation of the 2006 PM-2.5 NAAQS could vary significantly from area to area based on numerous factors.  Compliance with the 2006 revised particulates NAAQS is several years off; states are not required to submit nonattainment SIPs until December 2012 – identifying the emissions control requirements the state will rely upon to attain and/or maintain the PM-2.5 NAAQS – and do not have to meet the PM-2.5 standard until December 2014 (or 2019, if qualified for an extension).

To learn more about the impact that tighter NAAQS can have on AGC members, click here.

For more information, contact Leah Pilconis at pilconisl@agc.org.