A bulletin produced by Nebraska Department of Environmental Quality's
Air Quality Division
Nebraska Department of Environmental Quality
April 2009
Courts Continue to Impact Implementation of Air Rules

On February 24, 2009, the U.S. Court of Appeals for the D.C. Circuit remanded the National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM2.5) to EPA for reconsideration of the annual level of the standard (which EPA left unchanged at 15 micrograms per cubic meter) and reconsideration of the secondary PM2.5 NAAQS. With respect to the annual PM2.5 NAAQS, the court held that the agency “failed to adequately explain why, in view of the risks posed by short-term exposures and the evidence of morbidity resulting from long-term exposures, its annual standard is sufficient ‘to protect the public health [with] an adequate margin of safety,’ 42 U.S.C. § 7409(b)(1).” The court did not vacate the standard because it said EPA’s failure to explain its decision was a “curable defect” and vacating a standard because it may be insufficiently protective “would sacrifice such protection as it now provides, making the best an enemy of the good.”

For the secondary standards, which EPA set identical to the primary standards, the court held that EPA “unreasonably concluded that the NAAQS are adequate to protect the public welfare from adverse effects on visibility.” The court denied petitions for review of the primary daily standard for coarse PM (PM10) and the petition for review of EPA’s revocation of the primary annual standard for PM10.

In a different case, the U.S. Supreme Court decided that it will not consider an appeal of the vacatur of the Clean Air Mercury Rule (CAMR), thereby ending, for the time being, the legal battles related to the controversial cap-and-trade rule that addressed emissions of mercury from electric utilities. The U.S. Court of Appeals of the DC Circuit had vacated the CAMR on February 8, 2008 in response to a legal challenge by a group of states and environmental organizations. Subsequently, EPA and the Utility Air Regulatory Group (UARG), an industry organization representing electric utilities, appealed to the Supreme Court for a review of the lower court’s decision.

On February 6, 2009, the U.S. Department of Justice asked the Supreme Court to dismiss the federal government’s appeal and stated that EPA had decided to “develop appropriate standards” that would regulate power plant emissions under Section 112 of the Clean Air Act. The Supreme Court’s decision not to reconsider the vacatur was in response to the UARG appeal, which had not been withdrawn.

On December 19, 2008, the U.S. Court of Appeals for the D.C. Circuit vacated the exemption allowed from MACT standard emission limitations during startup, shutdown, and malfunction (SSM) events. Prior to the Court's decision, SSM events were exempt from the numerical emission limitations provided in MACT standards. EPA has until April 4, 2009 to request a rehearing and the SSM exemption vacatur is not in effect until this date or later, depending on whether a rehearing is requested. If this rule becomes effective, MACT affected facilities will need to consider the implications.
EPA announced that they will forego issuing an Advance Notice of Proposed Rulemaking prior to revising the primary standard for nitrogen dioxide in order to meet a court deadline of June 26, 2009. They will instead focus on issuing a proposal. This marks a departure from the agency’s recently revised process for reviewing National Ambient Air Quality Standards, under which the agency’s policy is to issue an advanced notice prior to issuing a proposal.

For more information, contact

Nebraska Department of Environmental Quality
1200 "N" Street, Suite 400
P.O. Box 98922
Lincoln, Nebraska 68509
(402) 471-2186 FAX (402) 471-2909