EPA Establishes Alternative for Regional Haze Compliance and Sets Schedule for PM NAAQS

Two recent EPA actions will have a substantial impact on air quality and alternatives for satisfying air regulations. On May 30, 2012, the EPA took final action to allow states to comply with the Regional Haze Rule by making emissions reductions under the Cross-State Air Pollution Rule (“CSAPR”) rather than the potentially more costly best available retrofit technology (“BART”) approach. On June 5, 2012, the EPA reached a settlement with environmental groups which requires the agency to issue new final national ambient air quality standards (“NAAQS”) for particulate matter (“PM”) by December 14 of this year.

EPA’s Regional Haze Program is intended to reverse degradation of air quality in national parks and wilderness areas caused in part by emissions from industrial sources. In its action on May 30, the EPA finalized its determination of CSAPR as an alternative to BART under the Regional Haze Program, concluding that CSAPR results in greater visibility improvement than source-specific BART. One potential complication in this determination is that CSAPR is currently stayed, pending a decision by the D.C. Circuit Court of Appeals which may ultimately vacate or remand the rule. If the D.C. Circuit overturns CSAPR, it is unclear whether states would have to revert to BART under the Regional Haze Program.

In a legal settlement reached between EPA and environmental groups on June 5, the agency agreed to issue a proposal for PM NAAQS by June 14 and to issue final standards by December 14, 2012. EPA’s previous PM NAAQS were overturned by a federal court in 2009 for not doing enough to protect public health.