Posted on December 1, 2010 by David Wagner

USEPA Identifies 17 Counties in 11 States Violating Lead Standards

This post was written by Mark Mustian.

In late November, the U.S. Environmental Protection Agency (USEPA) determined that 17 counties in 11 states across the country are not meeting the National Ambient Air Quality Standards (NAAQS) for lead. These areas were designated as “nonattainment” because their 2007 to 2009 air quality monitoring data showed that they did not meet USEPA’s health-based standards.

As a result of the designation, states with these nonattainment areas must develop a State Implementation Plan that meets the requirements of Sections 172(c) and 191 of the Clean Air Act and provides for attainment of the NAAQS as expeditiously as practicable, but no later than December 31, 2015. This designation, which covers such heavily populated areas as Los Angeles County, Tampa, FL and Cleveland, OH, will require the states to develop and implement monitoring programs, develop emission inventories, and adopt control strategies to limit lead emissions within the non-attainment areas.

Moreover, the November 22, 2010 rulemaking is just phase 1 of USEPA's evaluation, and more non-attainment determinations are expected next year. In order to collect and evaluate additional monitoring data, USEPA put off a final decision on many areas of the country until October 15, 2011. The second phase of the rulemaking may greatly increase the number of areas considered to be in non-attainment. For example, in USEPA Region 3 (Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, and West Virginia), USEPA only identified non-attainment regions for the Commonwealth of Pennsylvania. All other states within Region 3 were deferred until October 2011.


In 2008, USEPA revised the National Ambient Air Quality Standards for lead and lowered the standard from a level of 1.5 μg/m3 to a level of 0.15 μg/m3. In addition, the Administrator changed the averaging time and form of the standard to a rolling 3-month average evaluated over a 3-year period. The rule also established new requirements for lead monitoring networks, including the requirement that new lead monitors be located in close proximity to the largest lead emissions sources by January 1, 2010. The final rule revising the lead NAAQS was published in the Federal Register on November 12, 2008, and became effective January 12, 2009.
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Posted on March 16, 2009 by David Wagner

D.C. Circuit Remands the USEPA's Fine Particle Rule

This post was written by Larry Demase and Steve Nolan.

On Feb. 24, 2009, in American Farm Bureau v. Environmental Protection Agency, No. 06-1410, the District of Columbia Circuit Court of Appeals ruled that the most recent version of the National Ambient Air Quality Standards (NAAQS) for fine particulate matter promulgated by the Environmental Protection Agency (EPA) in 2006 were contrary to law and unsupported by reasoned decisionmaking. The court upheld the coarse particulate NAAQS that were promulgated as part of the same rulemaking. 

The 2006 NAAQS established a 24-hour primary standard for fine particulate matter based on short-term exposure studies, and an annual standard of 15 μg/m3 based exclusively on long-term exposure studies. However, the Clean Air Scientific Advisory Committee (CASAC), an independent scientific advisory committee established under the Clean Air Act, and EPA’s own staff, had recommended a more stringent annual standard because of short-term health effects of fine particulate matter. By statute, EPA was required to explain its rejection of CASAC’s recommendation, and the court found that it had failed to do so adequately.

The court also found that EPA had failed to adequately consider whether a lower limit was necessary to protect children the from adverse health effects of fine particulates, and that the secondary standard for fine particulates, which also went against CASAC’s recommendations, was inadequately justified. The distinction between primary and secondary standards is that the former addresses the health effects of a particular pollutant, while the latter addresses “welfare” effects. For particulate matter, the “welfare” aspect in question was visibility. Finally, the court upheld a separate challenge by farm industry groups to the coarse particulate matter standards. 

The immediate impact of the court’s decision will be negligible because the rule was remanded to EPA and the 2006 standards were left in place pending either the formulation of a new rule or an adequate justification by the agency of the original one. However, given the change in administration, a new rule likely will eventually emerge, and it will be more stringent than the 2006 version.
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