Significant New Developments Related to the Regulation of Fine Particulate
In the January 7, 2013 Federal Register, EPA published its final determination that the Philadelphia Area air quality control region had attained the 2006 24-hour National Ambient Air Quality Standard (“NAAQS”) for fine particulate (PM2.5). The determination is based on monitoring data for the Philadelphia Area, comprising southeastern Pennsylvania, southern New Jersey and northern Delaware. Although the determination suspends certain regulatory and planning requirements for the affected states, it does not have the effect of re-designating the area as attainment for fine particulates, pending EPA approval of an appropriate maintenance plan for the region.
Only days earlier, the Federal Court of Appeals for the District of Columbia Circuit struck down two EPA regulations governing the implementation of the 1997 fine particulate NAAQS. Specifically, in response to challenges raised by national environmental organizations, the Court determined that EPA had ignored the plain text of the Clean Air Act in affording states too much discretion in implementing the fine particulate regulatory program. EPA must respond to the Court’s determination by addressing the remanded regulations, notwithstanding the subsequent promulgation of NAAQS for fine particulate matter in both 2006 and 2012. These revised regulations, coupled with the more stringent ambient standards established in 2012, are likely to result in increased regulatory stringency for major sources of fine particulate matter, both regionally and throughout the country.