New York Attains Fine Particulate Standard
New York Law Journal
Good news for New York state: Air quality continues to improve and, in fact, the New York City metropolitan area, including the lower Hudson Valley and Long Island, are now in compliance with National Ambient Air Quality Standards (NAAQS) for Particulate Matter 2.5. Fourteen years after the U.S. Environmental Protection Agency (EPA) adopted the first health-based standards for fine particulates, which are seen as having more harmful health effects, the EPA has now responded favorably to New York State's 2013 request for redesignation of the metropolitan area from non-attainment to attainment, i.e., having attained acceptable air quality levels.
In addition to the redesignation, EPA has approved New York's emissions maintenance plan as part of the New York State Implementation Plan (SIP). The economic benefits are substantial—existing businesses will now be able to expand or modify without needing to purchase PM2.5 emissions reduction credits (ERCs), a concern that was impeding economic growth since PM2.5 ERCs have not been readily available in the marketplace.
In 1997, EPA promulgated new air quality standards to distinguish fine particulates from the larger particulates based on scientific studies that showed it is generally the smaller particles that lodge into lungs and cause adverse health effects such as increased rates of heart attacks, aggravated asthma, and respiratory problems. The counties of Bronx, Kings, Nassau, New York, Orange, Queens, Richmond, Rockland, Suffolk, and Westchester (N.Y. non-attainment area) were found not to be attaining the PM2.5 NAAQS.
Any business or industrial facility located in the New York non-attainment area that proposed to expand or modify its facility in a manner that would increase PM2.5 emissions by 10 tons per year or more was subject to the Non-Attainment New Source Review permitting program, which requires the installation of Lowest Achievable Emissions Rate (LAER) pollution controls and the purchase of ERCs. While the installation of pollution controls that meet LAER was feasible for most facilities, there was no market in New York to purchase PM2.5 ERCs. Even projects that proposed to replace existing combustion units with newer state-of-the-art units, such as repowering an existing power plant, had to be put on hold given the lack of available PM2.5 ERCs in the marketplace.
As explained by the New York State Department of Environmental Conservation (DEC), "[m]onitoring of short- and long-term PM2.5 concentrations in ambient (outdoor) air in the New York metropolitan area over the last decade shows a steady decrease in concentrations. Measurements went from 5 percent above the annual standard in 2003 to 22 percent below in 2013. Similarly, measurements went from 14 percent above the 24-hour standard in 2003 to 26 percent below in 2013." The standards refer to concentrations of pollution in the air measured over an annual or a 24-hour period.
Based on the results of the ambient air monitoring, EPA determined that the New York metropolitan area had ambient air conditions that were meeting the PM2.5 NAAQS. However, in order for EPA to approve the redesignation, DEC had to develop a maintenance plan to ensure continued compliance with the NAAQS. DEC's program to reduce particulate matter concentrations relied on state and federal initiatives, including: (a) stricter controls on mobile sources, such as New York's Vehicle Inspection and Maintenance program, New York's Low Emissions Vehicle program, requirements for the use of ultra-low sulfur diesel and prohibitions on idling for heavy-duty vehicles; and (b) increased regulation of stationary sources, such as the Reasonably Available Control Technology (RACT) program that reduced nitrogen oxides and volatile organic compounds throughout New York State, implementation of the Clean Air Interstate Rule (CAIR) to reduce emissions of nitrogen oxide and sulfur dioxide emitted by power plants in New York and in up-wind states, and regulations that implement a 2010 law to require ultra-low sulfur heating fuels.
Proposal on Permitting Rules
While EPA has determined that New York is now in attainment of the annual and 24-hour PM2.5 NAAQS, DEC still needs to adopt new regulations to change its permitting program to reflect the new designation before facilities in the former N.Y. non-attainment area can modify or expand without a Non-Attainment New Source Review permit. To that end, DEC has proposed modifying 6 NYCRR Part 200 to remove the reference to PM2.5 non-attainment areas. The public comment period on the proposed rule change runs through July 9, 2014.
As DEC explains: The rulemaking "would benefit the industrial and power generation sectors in the former [N.Y. non-attainment area]" as new major sources and existing major sources would perform "a similar but less stringent review of emissions controls, referred to as Best Available Control Technology." And "a lack of available PM2.5 emission offsets has impeded new construction in the New York metropolitan area." It is expected that the proposed rule would be finalized later this summer.
As explained above, New York has seen reductions in PM2.5 emissions in part due to implementation of the CAIR program, which requires electric generating units to reduce their emissions of nitrogen oxides and sulfur dioxide through a market-based cap and trade program that reduces the formation of secondary PM2.5 emissions that can be transported across state lines. However, even greater reductions are expected if EPA's Cross-State Air Pollution Rule (CSAPR) were to take effect.
In our Oct. 25, 2012, article, "EPA Regulations to Reduce Cross State Air Pollution Vacated Again," we explained that the U.S. Court of Appeals for the D.C. Circuit had vacated CSAPR by finding that (a) the rule would require some upwind states to reduce emissions by more than the states' contribution to air quality exceedances in downwind states (the "good neighbor" provision) and (b) the rule denied states the first opportunity to develop regulations to be incorporated into State Implementation Plans to address precursors to ozone and fine particulate emissions in neighboring states prior to EPA's imposing Federal Implementation Plans (FIPs) on each state. See EME Homer City Generation v. EPA, 2012 WL 3570721 (D.C. Cir. Aug. 21, 2012).
On April 29, 2014, the U.S. Supreme Court reversed the decision of the D. C. Circuit and upheld EPA's allocation of the amount of emissions to be eliminated by an upwind state, finding EPA's approach of defining which emissions were to be eliminated based on the magnitude of upwind states' contributions and the cost associated with eliminating those emissions was reasonable and appropriate, even if the approach resulted in some over-regulation in certain states. The D.C. Circuit had held that EPA was not permitted to look at states' compliance costs.
Writing for the majority, Justice Ruth Bader Ginsburg emphasized the complexity in attempting to identify how much upwind pollution comes from particular states, and held that EPA's approach assigning responsibility partially based on which pollution could be reduced cost-effectively was a reasonable interpretation of the Clean Air Act.
The court also found that EPA could issue a FIP "at any time" after disapproving a state's proposed SIP and did not need to wait a full two years. There are still a number of questions that must be answered by the D.C. Circuit on remand, and there might be some state-specific challenges regarding the allocations. Thus, while the case is remanded back to the D.C. Circuit, CAIR continues to apply to the eastern portion of the United States, including New York. However, the Supreme Court decision is a good sign that even more stringent reductions from upwind power plants will be implemented in the future which will continue to improve the PM2.5 levels in New York State.
Finally, while not related directly to PM2.5, EPA has proposed its rule to regulate greenhouse gas emissions from existing power plants. The EPA Clean Power Plan (CPP), proposed on June 2, 2014, proposes state-specific rate-based goals for carbon dioxide emissions from the power sector and provides guidelines to aid states in attainment plan development. EPA seeks to achieve a 30 percent reduction in carbon dioxide emissions from 2005 levels by 2030. It is expected that states would choose a mix of cap-and-trade participation programs, energy conservation programs and demand-side management to promote efficiency to reduce greenhouse gas emissions.
Steps already taken by a state to reduce emissions will be credited upon approval of the rule. Additional programs that address demand-side management and energy conservation will, in addition to addressing climate change, also continue to result in reductions of PM2.5. The Obama administration is using the incidental public health benefits of pollution reductions to promote CPP to the public, as demonstrated by his weekly address discussing the plan, which was made from the Children's National Medical Center with children with asthma.
Christine A. Fazio is a partner and codirector of the environmental practice group at Carter Ledyard & Milburn. Ethan I. Strell is an associate director and Fellow at the Columbia Center for Climate Change Law.
Reprinted with permission from the June 26, 2014 edition of the New York Law Journal © 2014 ALM media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382, firstname.lastname@example.org or visit www.almreprints.com.
 Particulate matter sized 2.5 microns or less, also referred to as "fine particulates."
 Areas that have air quality levels above the NAAQS are referred to as "non-attainment" while areas that have air quality levels below the NAAQS are referred to as "attainment." Press Release, Dept. of Envtl. Conservation, N.Y. Statewide Air Quality Now Meets Fed. Standard (April 29, 2014); Approval and Promulgation of New York State Air Quality Implementation Plans and Redesignation of Areas for Fine Particulate Matter, 79 Fed. Reg. 21857 (April 18, 2014) (to be codified at 40 C.F.R. pt. 52 and 81).
 Press Release, Dept. of Envtl. Conservation, N.Y. Statewide Air Quality Now Meets Fed. Standard (April 29, 2014).
 DEC, Proposed Rulemaking Hearing(s) scheduled, NYS Register, May 28, 2014.
 Id. at 7.
 See EPA v. EME Homer City Generation, 134 S. Ct. 1584 (2014).
 "The Agency has chosen, sensibly in our view, to reduce the amount easier, i.e., less costly, to eradicate, and nothing in the text of the [Clean Air Act] Good Neighbor Provision precludes that choice." Id. at 1607.
 See 134 S. Ct. at 1588; §7410(a)(1)–(2), (c)(1).
 EPA, Overview of the Clean Power Plan available at
 Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 79 Fed. Reg. 34830 (June 18, 2014).
 Press Release, United States Envtl. Protection Agency, EPA Proposes First Guidelines to Cut Carbon Pollution from Existing Power Plants (June. 2, 2014)