1

In the Matter of: 

National Ambient Air Quality Standards for 

Particulate Matter; Final Rule (78 Fed. Reg. 3086 (Jan. 15, 2013))

EPA Docket No. EPA-HQ-OAR-2007-0492

PETITION FOR RECONSIDERATION OF THE FINAL RULE

AND REQUEST FOR AN ADMINISTRATIVE STAY

On January 15, 2013, the United States Environmental Protection Agency (“EPA” or 

“Agency”) published in the Federal Register a final rule reflecting the results of its review of its 

national ambient air quality standards (“NAAQS” or “standards”) for particulate matter (“PM”).1 

The Final PM Rule, which has an effective date of March 18, 2013, inter alia, revised the level 

of the primary annual NAAQS for PM that is less than or equal to 2.5 microns in diameter 

(“PM2.5”) to 12.0 micrograms per cubic meter (“μg/m3”) and contained provisions for 

implementing the revised standard. 

For the reasons set forth herein, pursuant to section 307(d)(7)(B) of the Clean Air Act 

(“CAA” or “the Act”), the American Forest & Paper Association (“AF&PA”),2 American Iron 

and Steel Institute (“AISI”),3 American Petroleum Institute (“API”),4 American Wood Council 

 1 78 Fed. Reg. 3086 (Jan. 15, 2013) (“Final PM Rule” or “Final Rule”).

2 AF&PA is the national trade association of the forest products industry, representing 

pulp, paper, packaging and wood products manufacturers, and forest landowners. Its companies 

make products essential for everyday life from renewable and recyclable resources that sustain 

the environment. Industry companies produce about $175 billion in products annually and 

employ nearly 900,000 men and women. 

3 AISI serves as the voice of the North American steel industry and represents member 

companies accounting for over three-quarters of U.S. steelmaking capacity, with facilities 

located in more than forty states.

4 API is a national trade association that represents all segments of America’s 

technology-driven oil and natural gas industry. Its more than 550 members – including large 

integrated companies, exploration and production, refining, marketing, pipeline, and marine 

businesses, and service and supply firms – provide most of the nation’s energy. The industry 
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(“AWC”),5 Chamber of Commerce of the United States of America (“Chamber”),6 Corn 

Refiners Association (“CRA”),7 Council of Industrial Boiler Owners (“CIBO”),8 National 

Oilseed Processors Association (“NOPA”),9 and Utility Air Regulatory Group (“UARG”)10 –

 

also supports 9.2 million U.S. jobs and 7.7 percent of the U.S. economy, delivers $86 million a 

day in revenues to our government, and, since 2000, has invested over $2 trillion in U.S. capital 

projects to advance all forms of energy, including alternatives.

5 AWC is the voice of North American traditional and engineered wood products, 

representing over 60% of the industry. From a renewable resource that absorbs and sequesters 

carbon, the wood products industry makes products that are essential to everyday life and 

employs 360,000 men and women in well-paying jobs. AWC’s engineers, technologists, 

scientists and building code experts develop state-of-the-art engineering data, technology, and 

standards on structural wood products for use by design professionals, building officials, and 

wood products manufacturers to assure the safe and efficient design and use of wood structural 

components. AWC also provides technical, legal, and economic information on wood design, 

green building, and manufacturing environmental regulations, advocating for balanced 

government policies that sustain the wood products industry.

6 The Chamber is the world’s largest business federation. The Chamber represents the 

interests of 300,000 direct members and indirectly represents the interests of more than three 

million companies and professional organizations of every size, in every industry sector, and 

from every region of the country. The Chamber routinely represents the interests of its members 

in matters before Congress, the Executive Branch, and the courts.

7 CRA is the national trade association representing the corn refining (wet milling) 

industry of the United States. CRA and its predecessors have served this important segment of 

American agribusiness since 1913. Corn refiners manufacture starches, sweeteners, corn oil, 

bioproducts (including ethanol), and animal feed ingredients.

8 CIBO is a broad-based association of industrial boiler owners, architect-engineers, 

related equipment manufacturers, and University affiliates, with members representing 20 major 

industrial sectors. CIBO members have facilities in every region of the country and a 

representative distribution of almost every type of boiler and fuel combination currently in 

operation. CIBO was formed in 1978 to promote the exchange of information within the 

industry and between industry and government relating to energy and environmental equipment, 

technology, operations, policies, law, and regulations affecting industrial boilers. Since its 

formation, CIBO has been active in the development of technically sound, reasonable, costeffective energy and environmental regulations for industrial boilers.

9 NOPA is a national trade association that represents 12 companies engaged in the 

production of vegetable meals and oils from oilseeds, including soybeans. NOPA’s member 

companies process more than 1.6 billion bushels of oilseeds annually at 61 plants located 

throughout the country, including 56 plants that process soybeans.
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hereinafter collectively referred to as “Petitioners” – request, pursuant to CAA §§ 301(a) and 

307(d)(7)(B), that the EPA Administrator: (1) grant reconsideration of the Final PM Rule (a) to 

eliminate the requirement for near-road PM2.5 monitoring, and (b) to establish through 

rulemaking the requirements for implementation of the revised NAAQS in accordance with the 

CAA; and (2) to stay the Final Rule, pending completion of reconsideration, as specified above.

I. INTRODUCTION AND BACKGROUND

A. State-Led NAAQS Implementation 

Since 1970, the CAA’s NAAQS program has been carried out by the federal government 

and states through a cooperative federalism partnership. The EPA Administrator lists pollutants 

whose emissions “may reasonably be anticipated to endanger public health or welfare” and for 

which EPA intends to issue air quality criteria.11 The Administrator must issue such criteria for 

each air pollutant within 12 months of listing the pollutant.12 The Administrator then must 

publish regulations that provide primary (health-based) and secondary (welfare-based) NAAQS 

for each air pollutant for which the Administrator has issued air quality criteria.13

EPA’s promulgation of a new or revised NAAQS sets into motion a timetable for specific 

action by the states. First, states are required by section 107 of the Act within a year (or a shorter 

period of time if specified by the EPA Administrator) after the promulgation of the new or 

revised NAAQS to propose initial designations of each area under their jurisdiction as: 

 10 UARG is a not-for-profit association of individual electric generating companies and 

national trade associations that participates on behalf of its members collectively in 

administrative proceedings under the Clean Air Act, and in litigation arising from those 

proceedings, that affect electric generators. 

11 CAA § 108(a)(1).

12 Id. § 108(a)(2).

13 Id. § 109(a)-(b).
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(i) “nonattainment” (for areas not meeting the NAAQS); (ii) “attainment” (for areas meeting the 

NAAQS); or (iii) “unclassifiable” (for areas “that cannot be classified on the basis of available 

information”).14 In making their designations, states must analyze available air quality data and 

consider other factors to determine the boundaries for each area. Within two years after a new or 

revised NAAQS is promulgated, the EPA Administrator promulgates final federal designations 

of areas as attainment, nonattainment, or unclassifiable.15 The Administrator may modify a 

state’s proposed designations, but must first give the state an opportunity to demonstrate why the 

modification is inappropriate.16

Second, section 110(a)(1) of the Act requires that each state adopt and submit to the EPA 

Administrator within three years after the promulgation of a new or revised NAAQS (or a shorter 

period if the Administrator so specifies), a plan – called a state implementation plan (“SIP”) –

that provides for implementation, maintenance, and enforcement of the NAAQS in each air 

quality control region within the state.17 Among other requirements, each SIP must: (1) include 

enforceable emission limitations or other control measures, as well as schedules and timetables 

for compliance with such limitations, that are needed to meet applicable requirements of the Act; 

(2) “provide for establishment and operation of appropriate devices, methods, systems, and 

procedures” to monitor and analyze ambient air quality and such other measures as may be 

necessary to ensure attainment and maintenance of the NAAQS; (3) include a permit program for 

modification or construction of stationary sources to assure the NAAQS are achieved and to 

 14 Id. § 107(d)(1)(A).

15 Id. § 107(d)(1)(B)(i).

16 Id. § 107(d)(1)(B)(ii).

17 Id. § 110(a)(1). 
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prevent significant deterioration of air quality in the state; (4) provide for the installation, 

maintenance, and replacement of equipment to monitor emissions from major sources as 

required by the EPA Administrator; and (5) provide for air quality modeling as prescribed by the 

Administrator.18 These SIPs apply to all areas within a state, regardless of their designation, and 

are subject to review by EPA, which approves or disapproves the SIP.19 If EPA finds the SIP 

“substantially inadequate,” the Agency must notify the state of those inadequacies and establish a 

deadline for the submission of revisions to the plan.20

Third, states are required to bring any nonattainment areas within their borders into 

attainment by deadlines that are contained with the CAA and that are triggered from the date that 

EPA promulgates final designations.21 Section 172(c) of the Act enumerates requirements to be 

addressed by states in revisions to their SIPs to address nonattainment areas, including 

requirements for: (1) adoption of “reasonably available control technology”; (2) reasonable 

further progress annually; (3) a “comprehensive, accurate, current inventory of actual emissions 

from all sources of the relevant pollutant”; and (4) a revised permitting program for construction 

and operation of new or modified major sources in the nonattainment area.22 Subpart 4 of Part D 

of Title I of the Act also includes “Additional Provisions for Particulate Matter Nonattainment 

Areas” that are largely addressed initially by the states.23 The SIP revisions must also be 

 18 Id. § 110(a)(2).

19 Id. § 110(k). 

20 Id. § 110(k)(5).

21 Id. § 172(a)-(b).

22 Id. § 172(c).

23 Id. §§ 188-190.
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submitted to EPA for approval or disapproval. All of these requirements that states must meet –

and the deadlines by which they must meet them – are triggered by EPA’s promulgation of the 

Final PM Rule. If EPA determines that a state has failed to submit a SIP meeting these 

requirements, the Agency must adopt a federal implementation plan (“FIP”).24

B. Regulation of PM Under the NAAQS Program

EPA issued the first NAAQS for PM in 1971.25 Before the rulemaking that is the subject 

of this petition, EPA had revised the PM NAAQS three times: in 1987, 1997, and 2006.26 

Notably, the first NAAQS using a PM2.5 indicator were promulgated in 1997 and included 

standards with annual and 24-hour averaging times.27 EPA revised the 24-hour PM2.5 NAAQS in 

2006, but retained the annual standard.28 The U.S. Court of Appeals for the District of Columbia 

Circuit remanded parts of the 2006 NAAQS to the Agency for reconsideration.29 EPA published 

its most recent proposal concerning revisions to the PM NAAQS in June 2012, taking into 

account the D.C. Circuit’s remand as well as more recent scientific data.30 

Petitioners filed, or joined in, extensive comments on the Proposed Rule regarding the 

level of the standard, as well as on various aspects of the way in which EPA proposed to 

 24 Id. § 110(c)(1).

25 36 Fed. Reg. 8186 (Apr. 30, 1971).

26 71 Fed. Reg. 61144 (Oct. 17, 2006); 62 Fed. Reg. 38652 (July 18, 1997); 52 Fed. Reg. 

24634 (July 1, 1987). 

27 62 Fed. Reg. at 38652/1.

28 71 Fed. Reg. at 61144/1.

29 Am. Farm Bureau Fed’n v. EPA, 559 F.3d 512 (D.C. Cir. 2009).

30 77 Fed. Reg. 38890, 38893/1 (June 29, 2012) (“Proposed Rule”).
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implement its new standard.31 Those comments largely took the position that the science did not 

warrant revision of any of the PM NAAQS and that near-road monitoring for PM2.5 was not 

appropriate. The comments also stressed the need for timely rules and guidance for 

implementation of any revised PM NAAQS.

On January 15, 2013, EPA published the Final PM Rule. In the Final Rule, EPA lowered 

the primary annual NAAQS for PM2.5 from 15 μg/m3 to 12 μg/m3

.

32 The Agency also added 

requirements for near-road monitors.33 Other PM NAAQS were retained.34 Despite recognition 

of “states’ need for timely guidance on how to implement the revised NAAQS,”35 EPA failed to 

address many key aspects of implementation in the Final Rule. 

 31 See, e.g., AWC & AF&PA, Comments on EPA’s Proposed Rule on National Ambient

Air Quality Standards (NAAQS) for Particulate Matter (PM) (Aug. 31, 2012), Doc. ID No. EPAHQ-OAR-2007-0492-9526; API, Comments on the National Ambient Air Quality Standards for 

Particulate Matter (Aug. 31, 2012), Doc. ID No. EPA-HQ-OAR-2007-0492-9530; Chamber of 

Commerce, Comments on Proposed National Ambient Air Quality Standards for Particulate 

Matter (Aug. 31, 2012), Doc. ID No. EPA-HQ-OAR-2007-0492-9378; UARG, Comments on 

National Ambient Air Quality Standards for Particulate Matter (Aug. 31, 2012), Doc. Id No. 

EPA-HQ-OAR-2007-0492-9483; Nat’l Ass’n of Mfrs., Aluminum Ass’n, Am. Chemistry 

Council, Am. Coke & Coal Chems. Inst., AF&PA, Am. Foundry Soc., AISI, API, AWC, BCCA 

Appeal Group, Brick Industry Ass’n, CIBO, CRA, Hardwood Plywood and Veneer Ass’n,

Industrial Energy Consumers of Am., Motor & Equipment Mfrs. Ass’n, Nat’l Ass’n for Surface 

Finishing, Nat’l Fed’n of Independent Business, NOPA, Nat’l Mining Ass’n, North American 

Die Casting Ass’n, Rubber Mfrs. Ass’n, Chamber, and Wisconsin Mfrs. & Commerce, 

Comments of the Associations Regarding the National Ambient Air Quality Standards for 

Particulate Matter Proposed Rules (Aug. 31, 2012), Doc. ID No. EPA-HQ-OAR-2007-0492-

9425.

32 78 Fed. Reg. at 3088/3. 

33 Id. at 3088/3, 3089/3. 

34 Id. at 3086/1. 

35 Id. at 3251/2.
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C. Basis for Petition and Requested Relief

This petition focuses on two aspects of the Final Rule: (1) the provisions specifying 

near-road monitoring of PM2.5; and (2) implementation issues. EPA’s rationale for the 

requirement for near-road monitoring of PM2.5 changed between the Proposed Rule and Final 

Rule, depriving Petitioners of an opportunity to comment on the ultimate basis of such 

monitoring. Furthermore, EPA’s failure to provide timely regulations, guidance, and tools for 

implementation of the revised NAAQS places both Petitioners and states in the untenable 

position of facing short-term requirements under the Act without the means to meet them. The 

situation is worsened because D.C. Circuit decisions since the EPA Administrator signed the 

Final Rule have invalidated portions of EPA’s regulations governing implementation of existing 

PM2.5 NAAQS, and Petitioners have not had an opportunity to address the impact of these 

decisions on implementation of the revised annual PM2.5 NAAQS. 

1. Reconsideration

This petition for reconsideration is filed pursuant to CAA § 307(d)(7)(B), which provides 

in relevant part:

If the person raising an objection can demonstrate to the 

Administrator that it was impracticable to raise such objection 

within such time [period for public comment] or if the grounds for 

such objection arose after the period for public comment (but 

within the time specified for judicial review) and if such objection 

is of central relevance to the outcome of the rule, the Administrator 

shall convene a proceeding for reconsideration of the rule and 

provide the same procedural rights as would have been afforded 

had the information been available at the time the rule was 

proposed.36

This petition for reconsideration is appropriate because: (1) the objections raised in this 

petition are based on actions that EPA took for the first time in the Final Rule or developments 

 36 CAA § 307(d)(7)(B).
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(or lack thereof) since promulgation of the Final Rule, and thus Petitioners could not have raised 

them during the period for public comment on the Proposed Rule; (2) the objections arose during 

the period for seeking judicial review of the Final Rule;37 and (3) Petitioners’ objections are of 

central relevance to the outcome of the rulemaking. For the reasons presented below, EPA 

should immediately reconsider Final PM Rule both to address the near-road monitoring 

provisions of the Final Rule, as well as to provide through rulemaking the tools needed for its 

implementation.

2. Administrative Stay

EPA should also grant immediate administrative relief to alleviate the hardships imposed 

upon Petitioners and other affected parties. Specifically, Petitioners request that EPA 

immediately stay the effectiveness of the Final PM Rule, pursuant to CAA § 307(d)(7)(B) and 

EPA’s general rulemaking authority under CAA § 301(a). The stay should remain in place until 

EPA promulgates, pursuant to the CAA’s rulemaking provisions, the regulations, tools, and 

guidance required to implement the revised NAAQS, including under the Act’s prevention of 

significant deterioration (“PSD”) preconstruction permitting program.

II. EPA SHOULD RECONSIDER ITS REQUIREMENTS FOR NEAR-ROAD 

MONITORING OF PM2.5 AND STAY THE RULE PENDING 

RECONSIDERATION.

EPA changed the primary purpose for near-road monitoring between the Proposed and 

Final Rules. The Proposed Rule discussed a potential new requirement to place PM2.5 monitors 

near roads. At that time, however, the Agency emphasized the helpfulness of such monitors for 

research. Thus, although noting that the near-road network would support “collection of 

 37 The Final PM Rule was published on January 15, 2013. Any petition for judicial 

review of that decision must be filed within 60 days. Id. § 307(b)(1). Thus, the filing deadline, 

pursuant to the Federal Rules of Appellate Procedure, is Monday, March 18, 2013. See FED. R.

APP. P. 26(a)(1)(C).
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NAAQS comparable data in the near-road environment,” EPA emphasized that the network 

would “support ... long-term health studies investigating adverse effects on people, provid[e] a 

better understanding of pollutant gradients impacting neighborhoods that parallel major roads, 

[enhance] availability of data to validate performance of models simulating near-road dispersion, 

characteriz[e] ... areas with potentially elevated concentrations and/or poor air quality, [and] 

[enhance] implementation of a multi-pollutant paradigm.”38 The Agency emphasized the 

usefulness of the data for multi-pollutant research.39 In fact, “EPA recognize[d] that the location 

of maximum concentration of PM2.5 from roadway sources might differ from the maximum 

location of [nitrogen dioxide (“NO2”)] or other pollutants,” but the Agency nevertheless 

proposed to co-locate the PM2.5 monitors with NO2 monitors to “maximize the utility of the 

network.”40 In the Proposed Rule, the Agency referred only in passing to roadside monitors as 

reflecting significant population exposures.41 

In the Final Rule, EPA promulgated a requirement to relocate some PM2.5 monitors to 

near-road locations.42 Under the Final Rule, these monitors must be co-located with the roadside

 38 77 Fed. Reg. at 39009/2.

39 See, e.g., id. at 39009/3 (noting near-road monitoring would “provide a valuable 

platform for ... measuring other pollutants besides PM2.5 mass to enhance knowledge of 

exposure in the near road environment”); id. at 39010/3 (referencing “multi-pollutant monitoring 

objectives” of the near-road monitoring network). 

40 Id. at 39010/2. 

41 See id. at 39009/2 (“EPA believes that there are gradients in near-roadway PM2.5 that 

are most likely to be associated with heavily travelled roads ... with the largest numbers of 

impacted populations in the largest [core based statistical areas] in the country.”); 39010/1-2 

(indicating that these areas “are likely to have greater numbers of exposed populations, a higher 

likelihood of elevated near-road PM2.5 concentrations, and a wide range of diverse situations 

with regard to traffic volumes, traffic patterns, roadway designs, terrain/topography, 

meteorology, climate, surrounding land use and population characteristics”).

42 78 Fed. Reg. at 3241/1.
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monitors for NO2 that the Agency required when it adopted a 1-hour NAAQS for NO2 in 2010.43 

These monitors will be used in assessing compliance with the NAAQS,44 and likely for 

development of strategies to bring nonattainment areas into compliance.45 In adopting a 

requirement for near-road PM2.5 monitors in the Final Rule, EPA concluded that such monitors 

are necessary “as the near-road environment is an area where significant public exposure can 

occur....”46 This conclusion was not presented for public comment in the Proposed Rule.47 In 

reaching this conclusion, the Agency relies on a report by the Census Bureau (hereinafter 

“Housing Survey”),48 which was not cited in the Proposed Rule and thereby not subject to public 

 43 Id.; see also 75 Fed. Reg. 6474, 6505/3 (Feb. 9, 2010) (final NO2 NAAQS).

44 78 Fed. Reg. at 3238/2 (describing “a modest network of near-road compliance PM2.5

monitors”).

45 As discussed in more detail below, EPA has failed to provide states with information 

on SIPs for nonattainment areas. See infra Section III.A.

46 78 Fed. Reg. at 3241/1; see also EPA, Responses to Significant Comments on the 2012 

Proposed Rule on the National Ambient Air Quality Standards for Particulate Matter (June 29, 

2012; 77 FR 38890) at V-8 (Dec. 2012), Doc. ID No. EPA-HQ-OAR-2007-0492-10095 (“RTC”) 

at V-8 (“significant fraction of the population lives, works, plays and goes to school near major 

roads”); id. at V-17 (“people spend a substantial amount of time in these environments . . . nearroad monitoring is important to ensure that public health is protected”); id. at V-20 to V-21 

(“large numbers of people (in the tens of millions) ... live, work, play, and go to school in close 

in proximity to major roadways”).

47 Comments were solicited, instead, on the “approach” to near-road monitoring, 

“especially the proposed network design requirements; any alternative strategies that would 

provide comparable long-term characterization of PM2.5 in area-wide locations of maximum 

concentration in the absence of a specific near-road compliance requirement for monitoring of 

PM2.5; priorities for the collection of supplemental data at a small subset of near-road monitoring

sites to enhance knowledge of particle exposure (e.g., noncompliance [special purpose 

monitors]); and the interest of monitoring agencies (or other parties) in the collection of 

supplemental (e.g., non-compliance) measurements relevant for the near-road environment.” 77 

Fed. Reg. at 39011/1. 

48 78 Fed. Reg. at 3239-40 n.228 (citing U.S. Census Bureau, U.S. Dep’t of Commerce, 

H1 50/09, American Housing Survey for the United States: 2009, Current Housing Reports 

(2011), available at http://www.census.gov/prod/2011pubs/h150-09.pdf (“Housing Survey”)).
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comment. EPA relies on the Housing Survey for the proposition that “45 million Americans live 

within 300 feet of a major roadway or other source of mobile emissions.”49 

The Agency’s current rationale for near-road monitoring deviates sufficiently sharply 

from the rationale given in the Proposed Rule that affected parties, including Petitioners, did not 

have an opportunity to comment on it.50 The fact that EPA received comments in support of this 

new rationale is unavailing.51 EPA cannot “bootstrap notice [of its new rationale] from a 

comment” on the Proposed Rule.52 Accordingly, because this issue arose after publication of the 

Final Rule, but during the period for judicial review, and because the character of the monitoring 

network is of central relevance to determining attainment with and compliance strategies for the 

revised NAAQS,53 reconsideration of the near-road monitoring requirement is warranted.

Moreover, EPA’s new rationale does not justify near-road PM2.5 monitoring. As a 

preliminary matter, not all of the 45 million Americans considered in the Housing Survey live 

near highways; an unknown proportion of them live in the vicinity of other types of facilities or 

even water bodies.54 Additionally, the existence of residences near roadways does not, in and of 

 49 78 Fed. Reg. at 3239 n.228; see also RTC at V-8.

50 See Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547 (D.C. Cir. 

1983) (while an agency can make changes between issuance of the proposal and the final rule, 

“if the final rule deviates too sharply from the proposal, affected parties will be deprived of 

notice and an opportunity to respond to the proposal.”).

51 See, e.g., 78 Fed. Reg. at 3239/3.

52 Fertilizer Inst. v. EPA, 935 F.2d 1303, 1312 (D.C. Cir. 1991) (internal citation 

omitted). 

53 See supra nn.44-45, and accompanying text.

54 Housing Survey at 26. The Housing Survey actually uses the term “4-or-more lane 

highway, railroad, airport, bodies of water” and specifies that it “include[s] divided or undivided 

highways of at least four lanes, railroad or streetcar tracks, public, private, or military airfields.” 
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itself, provide justification for a roadside monitor requirement for several reasons. First, air 

inside residences is not ambient air, and, therefore, is not regulated by NAAQS. Ambient air is, 

by definition, “external to buildings.”55 Second, it is highly unlikely that people are outside in 

ambient air 24-hours at a time, let alone for a full year. Yet those are the averaging times for the 

PM2.5 NAAQS.56 Third, the “composite monitor distributions” that were used for the studies that 

underlie the PM2.5 NAAQS reflect the PM2.5 exposure of the population as a whole.57 By 

representing the exposure of the population in toto, these composite monitor values necessarily 

represent those members of the population who spend greater than average time near roads.

The Clean Air Scientific Advisory Committee (“CASAC”) cautioned EPA against 

emphasizing roadside monitoring for PM2.5 because it might not reflect the concentrations (and 

exposures) of greatest health concern:

The majority of panelists acknowledged that there is an increment 

to PM2.5 in the near road environment. They did not suggest that 

the near road environment will represent the areas of highest PM2.5

... including the combination of primary emissions and secondary 

formation processes. The committee was also generally in 

agreement that mass based measurements and specifically the 

 

Id. App. A at A-5. The population living in the vicinity of these facilities is not reported in the 

Housing Survey, and EPA has not explained its derivation. 

55 40 C.F.R. § 50.1(e). 

56 This is in contrast to the relevance of exposure to near-road short-term peaks for the 

NO2 NAAQS, which include a standard with a one-hour averaging time. Although there is also 

an annual NAAQS for NO2, the near-road NO2 monitors are to be sited based solely on 

consideration of the one-hour NO2 NAAQS. EPA, EPA-454/B-12-002, Near-road NO2

Monitoring Technical Assistance Document at ES-1 (June 2012) (“NO2 TAD”) (“[S]tate and 

local air monitoring agencies are required to install near-road NO2 monitoring stations at 

locations where peak hourly NO2 concentrations are expected to occur....”).

57 See 78 Fed. Reg. at 3102/1-2 & n.24; 77 Fed. Reg. at 38904/3 -05/1. 
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PM2.5 [Federal Reference Method] is not appropriate for use at the 

near road NO2 sites.58 

Indeed, CASAC indicated PM2.5 should be given relatively low priority as a candidate for 

near-road monitoring.59 Thus, EPA should reconsider its decision, based on the Housing Survey, 

to require relocations of some of the existing compliance monitors for PM2.5 to roadsides.

Had Petitioners known that EPA was concerned primarily with exposures of the 

population living near roadways (as opposed to research), they would have commented that colocating PM2.5 monitors at the sites of the NO2 monitors would not reflect exposures of the 45 

million people about whom EPA is concerned. Siting of the NO2 monitors is not based primarily 

on the population nearby,60 but on the road segments with the greatest traffic.61 These road 

segments are likely to be interstate highways,62 not the four-lane roads considered highways in 

the Housing Survey that are more likely to be lined with residential buildings.63 Moreover, NO2

 58 See Letter from Armistead (Ted) Russell, Chair, CASAC Ambient Air Monitoring & 

Methods Comm. & Jonathan M. Samet, Chair, CASAC, to Lisa P. Jackson, at xix (Nov. 24, 

2010), available at http://yosemite.epa.gov/sab/sabproduct.nsf/WebReportsbyTopicCASAC! 

OpenView&Start=1&Count=1000&Expand=2.1.1#2.1.1 (“CASAC Letter”).

59 Id. at xi-xii (CASAC placed PM2.5 seventh in terms of priority for near-road 

monitoring on a list of thirteen pollutant groups about which EPA had asked, after NO2, NO, and 

NOx; CO; ultrafine particles/particle number; particles size distribution; and PM10-2.5); NO2 TAD 

at 82 tbl. 16-1 (identifying PM2.5 as a “tertiary” priority for near-road monitoring).

60 Population is a consideration in identifying those core-based statistical areas required 

to operate at least one near-road NO2 monitor. 40 C.F.R. pt. 58, App. D, § 4.3.2 (2012).

61 See id. § 4.3.2(a)(1) (explaining that monitors are to be located by a road segment with 

a high annual average daily traffic count). 

62 See NO2 TAD at 24, tbl. 6-1.

63 Four-lane highways, as defined by the Housing Survey cited by EPA, include many 

roads that would not typically be “highways” in common parlance. The Housing Survey 

apparently considers any road with at least four lanes, even one that is not divided, to be a 

highway. See Housing Survey App. A at A-5. Many roads meet this definition. By contrast a 

“highway” is generally taken to be “a main road, especially one connecting major towns or 
15

monitors are to be located as close as possible to the outside nearest edge of traffic lanes of these 

interstate highways.64 Very few residential buildings would be as close as possible to any road, 

and certainly not that close to an interstate highway. PM2.5 levels drop rapidly moving away 

from the immediate side of a road,65 meaning that PM2.5 concentrations measured at the location 

of NO2 monitors will almost certainly be higher than those at the closest residence. 

In fact, research funded by EPA has identified traffic as a significant predictor of 

concentrations measured at existing compliance monitors for the PM2.5 NAAQS. Investigators 

reported that traffic was the best predictor of PM2.5 concentrations at monitors in the database on 

which EPA relies to determine compliance with the PM2.5 NAAQS.66 Thus, even if exposure to 

traffic-related PM2.5 is of concern to EPA, relocating PM2.5 monitors to the site of near-road NO2

monitors is not warranted. The current PM2.5 monitoring network adequately captures that 

source. Moreover, the current monitoring network consists of “monitoring stations or sites [that] 

... represent community wide air quality.”67 At least one of the monitors in the network “is to be 

sited in a population-oriented area of expected maximum concentration.”68 Changing the 

 

cities.” Oxford Dictionaries, http://oxforddictionaries.com/definition/english/highway?q= 

highway (last visited Mar. 18, 2013) (definition of “highway”). 

64 40 C.F.R. pt. 58, App. E, § 6.4(a). NO2 monitors may not be located further than fifty 

meters from the road, id., and EPA “strongly encourages” that the monitors be located no further 

than twenty meters from the edge of the closest traffic lane, NO2 TAD at 45.

65 See Leonard M. Zwack, et al., Characterizing Local Traffic Contributions to 

Particulate Air Pollution in Street Canyons Using Mobile Monitoring Techniques, 45 

Atmospheric Env’t 2507, 2512 & fig. 3 (2011).

66 See Zev Ross, et al., A Land Use Regression for Predicting Fine Particulate Matter 

Concentrations in the New York City Region, 41 Atmospheric Env’t 2255, 2260-61 (2007). 

67 40 C.F.R. pt. 58, App. D, § 4.7.1(b). 

68 Id. § 4.7.1(b)(1). 
16

network to mandate near-road monitors simply is not warranted to reflect either exposure to 

PM2.5 related to mobile sources or the maximum PM2.5 concentrations to which the population 

will be exposed.

In short, EPA’s new rationale does not support the requirement for near-road PM2.5

monitoring. The Agency should reconsider and rescind that requirement. 

III. EPA SHOULD RECONSIDER THE REVISED PM2.5 NAAQS TO PROVIDE 

THROUGH RULEMAKING THE REGULATIONS, GUIDANCE, AND TOOLS 

NECESSARY FOR IMPLEMENTATION AND SHOULD STAY THE RULE 

DURING RECONSIDERATION.

In the Final Rule, EPA acknowledges that rules, guidance, and tools still needed to be 

issued to assist with implementation of the revised NAAQS. To date, EPA has not issued any of 

the required materials in final form. Moreover, recent D.C. Circuit decisions have vacated, 

remanded, or both vacated and remanded portions of past implementation rules upon which EPA 

relied in setting the revised NAAQS. The lack of necessary implementation rules, guidance, and 

tools – and the recent court decisions invalidating key portions of existing PM2.5 implementation 

rules – are, as is discussed in greater detail below, of central relevance to the revised NAAQS. 

Without these tools, implementation of the revised NAAQS in the manner that Congress 

specified cannot be achieved. Both EPA’s failure to provide necessary rules, guidance and tools 

and the court’s decisions against EPA’s existing implementation rules for PM2.5 occurred 

followed the comment period on the Proposed Rule (but within the period to seek judicial review 

of the Final Rule). Accordingly, EPA should reconsider the Final Rule to address the 

requirements for implementation of the PM2.5 NAAQS and should stay the rule until this 

reconsideration has been completed.
17

A. Missing Rules and Guidance for States Implementing the Revised NAAQS

The D.C. Circuit recently underscored the cooperative federalism nature of the NAAQS 

program: 

EPA is the first mover in regulating ambient air pollution in Title I 

of the Clean Air Act. Section 109 requires EPA to promulgate 

NAAQS for common air pollutants. See Whitman v. American 

Trucking Ass’ns, 531 U.S. 457, 462, 121 S. Ct. 903, 149 L.Ed.2d 1 

(2001) (citing 42 U.S.C. § 7409(a)). But once EPA sets a 

NAAQS, “responsibility under the Act shifts from the federal 

government to the states.” Lead Industries Ass’n v. EPA, 647 F.2d 

1130, 1137 (D.C. Cir. 1980).69

As EPA recognizes in the Final Rule, implementation obligations are imposed on states 

as a matter of law once the Agency has promulgated a new or revised NAAQS. For example, 

section 107(d)(1)(A) of the Act requires each state governor to submit to EPA within a year after 

the NAAQS promulgation a list that designates areas within the state as attainment, 

nonattainment, or unclassifiable.70 Section 110(a)(2) of the Act requires each state to submit to 

EPA what the Agency refers to as an “Infrastructure SIP” within three years of the promulgation 

of the revised NAAQS.71 For areas that are designated nonattainment for the revised NAAQS, 

states must also subsequently adopt and implement control programs to bring those areas into 

attainment within statutorily-prescribed time periods.72 As EPA recognizes, “[i]f a state fails to 

 69 EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 30 (D.C. Cir. 2012).

70 See 78 Fed. Reg. at 3249/1-2. EPA characterizes each of these lists as a 

“recommendation to which the EPA must respond via a specified process if the EPA does not 

accept it.” Id. at 3249 n.242. Simply because EPA may modify a state’s action does not mean 

that action is merely a “recommendation.” Indeed, the D.C. Circuit has cited section 107(a) as 

one of the ways – along with SIPs – in which “[t]he Clean Air Act ordinarily gives States the 

initial opportunity to implement a new air quality standard on sources within their borders.” 

EME Homer City, 696 F.3d at 28.

71 See 78 Fed. Reg. at 3251/1.

72 CAA § 189. 
18

adopt and implement the required SIPs by the time periods provided in the CAA, the EPA has 

responsibility under the CAA to adopt a Federal Implementation Plan (FIP) to ensure that areas 

attain the NAAQS in an expeditious manner.”73

In light of these looming deadlines for state actions, EPA acknowledged in the Final Rule 

“states’ need for timely guidance on how to implement the revised NAAQS,” but said that the 

Agency “is not able to propose an implementation rule or finalize any aspect of the 

implementation program beyond [a] PSD grandfathering provision....”74 EPA made this 

assertion even though EPA solicited – and received – comments on numerous implementation 

topics beyond the limited PSD permit grandfathering provision.75 In the preamble to the Final 

Rule, EPA promised rules and guidance in the near future concerning implementation of the new 

NAAQS, but the Agency has not issued anything final to date.

For example, after acknowledging that “developing recommendations on appropriate 

nonattainment area boundaries is a significant effort for states, especially for states with little or 

no experience in PM2.5 air quality planning,”76 EPA repeatedly promised to provide “designation 

guidance and technical information shortly after the NAAQS are promulgated.”77 Although it is 

 73 78 Fed. Reg. at 3249/1.

74 Id. at 3251/2.

75 See 77 Fed. Reg. at 38890, 39016/3-39021/2, 39027/2-39030/2; RTC at VI-1 to VI-29, 

VII-6 to VII-8. 

76 78 Fed. Reg. at 3251/1.

77 RTC at VI-3; see also id. (“EPA intends to address the factor analysis and boundary 

setting process in the designation guidance to the states and tribes, expected to be available 

shortly after promulgation of the PM NAAQS.”); id. at VI-4 (“EPA intends to provide 

designation guidance and technical information shortly after the NAAQS are promulgated. The 

EPA expects this guidance to include the intended designation categories for area designations 

for the revised primary annual PM2.5 NAAQS.”); id. (“Shortly after the NAAQS are 
19

now more than three months since Administrator Lisa Jackson signed the Final Rule, and even 

though the CAA requires states to undertake the “significant effort” to submit their list of 

designations for the revised PM NAAQS in less than nine months from now,78 the Agency has 

posted nothing to date on the website on which it announced the planned guidance would be 

provided.79

EPA similarly indicated that it intended to “issue, in the very near future, a guidance 

document on section 110 infrastructure SIP requirements, which will aim to help states develop 

SIP submissions for all NAAQS, including the revised PM2.5 NAAQS.”80 In the Final Rule, the 

Agency also indicated that it “may issue supplemental infrastructure SIP guidance specific to the 

revised PM2.5 if needed.”81 EPA has yet to provide either general or PM2.5-specific guidance on 

infrastructure SIPs. Moreover, to the extent that this guidance specifies what states must include 

in their infrastructure SIPs,82 it should be issued as a rule,83 meaning that states and the public 

 

promulgated, the EPA intends to further clarify in designations guidance and technical 

information the use of monitoring data, factor analyses, and ‘contribution.’”). 

78 See 78 Fed. Reg. at 3251/1.

79 See id. (citing http://www.epa.gov/pmdesignations (last visited on March 18, 2013)).

80 RTC at VI-7; see also 78 Fed. Reg. at 3251/1-2 (discussing same guidance). 

81 78 Fed. Reg. at 3251/2. 

82 See RTC at VI-8 (“EPA agrees that for infrastructure SIPs to be approvable for the 

revised PM2.5 NAAQS, SIP submissions need to address all infrastructure-related requirements 

that have become applicable since the PM2.5 NAAQS were revised in 2006. The EPA’s 

forthcoming guidance ... will include discussion of these requirements.”).

83 Exemptions from the requirement for notice-and-comment rulemaking must be 

construed narrowly. Am. Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987) 

(discussing notice and comment requirement of Administrative Procedure Act § 553). A 

document, even if labeled as guidance, must be adopted using rulemaking procedures if it 

“denies the decisionmaker discretion in the area of its coverage, so that he, she or they will 

automatically decline to entertain challenges to the statement’s position.” McLouth Steel Prod. 
20

must be provided notice and a reasonable opportunity to comment on it, and EPA must take 

those comments into account in finalize the rule.84

In the Final Rule, EPA also indicated its plans to develop an implementation rule.85 That 

rule will address implementation requirements applicable to areas that are designated 

nonattainment for the revised PM2.5 NAAQS.86 EPA stated that it “intends to finalize” that rule 

“around the time the initial area designations process is finalized,” i.e., December 2014.87 This 

is an ambitious schedule given that EPA does not yet have a projected publication date for a draft 

of the rule,88 and given that it took between a year and a half and two years for EPA to finalize 

its implementation rules for the 1997 PM2.5 NAAQS.89 Moreover, even if EPA issues an 

implementation rule at the time of final designations, it is unclear whether that schedule would 

provide sufficient time for states to develop and adopt their SIPs for nonattainment areas, which 

must be submitted within eighteen months of the nonattainment designation.90

 

Corp. v. Thomas, 838 F.2d. 1317, 1320 (D.C. Cir. 1988). Agencies, including EPA, cannot 

immunize such documents from the requirement to conduct rulemaking by characterizing them 

as guidance or a policy statement. See Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020-21 

(D.C. Cir. 2000).

84 See CAA § 307(d); 5 U.S.C. §§ 551(4), 553(b). 

85 78 Fed. Reg. at 3251/2. 

86 RTC at VI-5. 

87 78 Fed. Reg. at 3251/2; see also RTC at VI-5. 

88 See EPA, Implementation Rule for 2012 PM2.5 NAAQS, available at 

http://yosemite.epa.gov/opei/rulegate.nsf/byRIN/2060-AQ48 (last visited Mar. 18, 2013).

89 See 73 Fed. Reg. 28321 (May 16, 2008) (Final PM2.5 New Source Review (“NSR”) 

Implementation Rule); 72 Fed. Reg. 20586 (Apr. 25, 2007) (Final PM2.5 SIP-Related 

Implementation Rule); 70 Fed. Reg. 65984 (Nov. 1, 2005) (Proposed PM2.5 Implementation 

Rule).

90 CAA § 189(a)(2)(B).
21

EPA must provide states with the necessary rules and guidance to complete designations, 

infrastructure SIPs, and control strategy SIPs so that the states have a reasonable opportunity to 

fulfill these implementation obligations for the revised PM2.5 NAAQS. The D.C. Circuit’s recent 

explanation that the NAAQS program is built on principles of cooperative federalism91 means 

EPA must respect states’ rights to have the first opportunity for implementation following 

promulgation of a new NAAQS.92 EPA must therefore provide states with the tools to 

implement NAAQS so states have a meaningful opportunity as the “first implementer.”93 

A fundamental problem with the Cross-State Air Pollution Rule (“CSAPR”) at issue in 

EME Homer City – and a fundamental reason the D.C. Circuit vacated CSAPR – was that EPA 

deprived states of their authority to implement a NAAQS within their borders by issuing FIPs 

without first telling states what their implementation responsibilities were and giving them a 

reasonable time to fulfill them.94 Similarly here, if states are not given the guidance they need to 

implement the PM2.5 revised NAAQS, they will be powerless to exercise their implementation 

authority because EPA has not provided them with guidance as to how to exercise their authority. 

As the Court recognized, “By the time EPA makes the target clear, it’s already too late for the 

States to comply.”95 

 91 See EME Homer City, 696 F.3d at 29.

92 Id. at 28. 

93 See id. at 32, 37 (explaining that when a state needs “more precise guidance” from 

EPA to define a SIP obligation, EPA “must give” that state “a reasonable first opportunity” to 

fulfill that obligation before stepping in and taking federal action).

94 Id. at 32-33. 

95 Id. at 32.
22

In light of the short statutory timeline for states to take action before EPA itself is obliged 

to make designations and impose FIPs, EPA must promulgate regulations governing, and provide 

guidance to the states concerning, implementation of a NAAQS at the time it is revised. The 

issuance of a new or revised NAAQS triggers timing deadlines for states under the CAA, and 

states cannot fulfill their obligations under the Act without such rules and guidance. Because 

EPA has not specified for states the necessary requirements for implementation of the revised 

NAAQS (in terms of rules and guidance), it must stay the Final Rule pursuant to CAA 

§ 307(d)(7)(B), and extend the stay as long as necessary pursuant to § 301(a), until it has 

provided states with the rules and guidance that they need to fulfill their CAA obligations with 

regard to the revised PM2.5 NAAQS.

B. Missing Regulations, Guidance, and Tools for Members of the Regulated 

Community Seeking PSD Permits

Members of the regulated community also immediately face requirements as a result of 

the revised PM2.5 NAAQS. As EPA stated, the “final rule revising the primary annual PM2.5

NAAQS will affect PSD permitting requirements as of the effective date of [the] final rule, 

March 18, 2013, which is also the effective date of the revised PM2.5 NAAQS.”96 As with the 

implementation issues affecting states discussed above, EPA has failed to provide timely 

guidance and tools necessary for this permit application process. EPA’s provision of a 

grandfathering provision for certain pending permit applications97 fails to resolve the problems 

 96 78 Fed. Reg. at 3252/1; see also id. at 3259/1 (“Upon the effective date of today’s final 

revisions to the PM NAAQS, proposed new major stationary sources and major modifications 

that are not grandfathered from the new requirements ... will be required to demonstrate 

compliance with the suite of PM NAAQS, including the revised primary annual PM2.5 

NAAQS.”). 

97 Id. at 3258/3-3259/1; see also id. at 3281/2-3 (to be codified at 40 C.F.R. § 

52.21(i)(11)).
23

of many applicants for PSD permits, however. Not all PSD permit applicants will qualify for 

such grandfathering. 

Apparently EPA recognizes that providing for grandfathering of a limited number of PSD 

permit applicants will not resolve the difficulties the revised PM2.5 NAAQS pose for future 

applicants who seek to expand existing operations or develop new ones (thereby creating new 

jobs in this difficult economy). In the Final Rule, EPA indicated that it intended “to issue final 

guidance by the end of calendar year 2012, prior to the effective date of today’s final PM 

NAAQS revisions,” addressing “appropriate technical approaches for conducting a PM2.5

NAAQS compliance demonstration.”98 The Agency did not issue such guidance by the end of 

2012, however. Instead, EPA released draft guidance for public comment on March 4, 2013.99 

Although EPA has indicated that it expects to release final guidance by July 31, 2013,100 the 

history of this document’s development does not inspire confidence that EPA will meet that 

deadline. The Agency had initially planned to release the draft in Fall 2011.101 And even if EPA 

meets its intended July 31, 2013 goal for releasing final guidance, that will still be more than 

 98 Id. at 3259/2. Elsewhere, EPA indicated that its plan was “to provide this draft 

guidance for public review and comment soon after final rule signature, no later than [the] end of 

calendar year [2012] with the intent of issuing final guidance in Spring 2013.” RTC at VI-17.

99 Memorandum from Stephen D. Page, Dir., Office of Air Quality Planning & Standards, 

EPA, to Air Division Dirs., EPA, EPA 454/D-13-001, Draft Guidance for PM2.5 Permit 

Modeling (Mar. 4, 2013), available at http://www.epa.gov/ttn/scram/guidance_permit.htm.

100 Id. at 4.

101 George M. Bridgers, Draft PM2.5 Permit Modeling Guidance, 10th Conference on Air 

Quality Modeling, RTP, NC (Mar. 14, 2012), available at http://www.epa.gov/ttn/scram/ 

10thmodconfpres.htm.
24

four months after applicants for PSD permits were first required to address the revised PM2.5 

NAAQS.102 

The problems for those in industry seeking a PSD permit extend, however, well beyond 

the question of what approach applicants must take when performing a compliance 

demonstration for the revised PM2.5 NAAQS. Industry commenters on the Proposed Rule 

identified many limitations in EPA’s current technical modeling tools.103 The Agency 

acknowledged that there are problems for those seeking permits,104 but did not commit to 

address them immediately. Indeed, in several cases, the Agency explicitly deferred any 

regulatory response to the comments until a future revision of its Guideline on Air Quality 

Models (published as Appendix W of 40 C.F.R. part 51),105 which is not planned for completion 

until 2015.106 

Similarly, commenters pointed out problems with EPA’s tools for measuring or 

estimating emissions.107 Indeed, technical information generated and compiled by the National 

Council for Air and Stream Improvement (NCASI) in late 2012 – after the close of the comment 

 102 See 78 Fed. Reg. at 3259/1. 

103 See, e.g., RTC at VI-16 to VI-20 (noting concerns expressed in comments about the 

existing AERMOD and CALPUFF regulatory models). 

104 See e.g., id. at VI-17 (“The EPA acknowledges the need to conduct a thorough review 

and evaluation of existing and developing models and modeling techniques to address the 

complexities of accounting for PM2.5 impacts for single sources.”).

105 See, e.g., id. at VI-18, VI-20.

106 Tyler J. Fox, Overview of EPA’s Process & Scope for Updating Appendix W, 10th 

Conference on Air Quality Modeling, RTP, NC (Mar. 13, 2012) available at

http://www.epa.gov/ttn/scram/10thmodconfpres.htm.

107 See RTC at VI-25 to VI-26 (noting comments concerning measurement of emissions 

from wet stacks and AP-42 emission factors).
25

period on the Proposed Rule – and subsequently shared with the Agency’s technical staff, 

indicates that currently promulgated versions of EPA measurement techniques for particulate 

matter emissions, Methods 201A and 202, can significantly overstate PM2.5 emissions from both 

process-area and combustion sources. For certain categories of low PM2.5 emitting sources (e.g., 

boilers firing natural gas, and sources with wet stacks), emissions may be overstated by up to 

four times the true level of emissions. This overstatement could mean the difference between 

compliance and non-compliance with the PM2.5 NAAQS, a problem that is more acute with the 

newly-promulgated, more stringent standard. As was the case with regard to industry comments 

on the inadequacy of the available air quality models, the Agency acknowledged the validity of 

the concerns about emission measurements.108 EPA indicated, however, that development and 

approval of an improved tool to measure PM2.5 emissions from wet stacks is “several years” 

away.109 

The lack of realistic tools to quantify emissions or to estimate them accurately, and the 

lack of modeling and modeling approaches that provide realistic predictions of the ambient 

impacts of those emissions, are effective bars to permitting many sources that will not, in fact, 

cause or contribute to NAAQS violations. The stricter revised PM2.5 NAAQS amplifies the 

problems created by this dearth of appropriate, realistic tools. It raises the specter of a de facto

moratorium on PSD permits for sources of PM2.5 or PM2.5 precursor emissions.

When establishing the grandfathering program for certain PSD permit application in the 

preamble to the Final Rule, EPA recognized that the PSD program “call[s] for a balancing of 

 108 Id. at VI-26 (“The EPA recognizes the need to develop a method which quantifies 

PM2.5 emissions in a wet stack environment.”).

109 Id.
26

economic growth and protection of air quality.”110 Indeed, EPA cites “[l]egislative history [that] 

illustrates Congressional intent to avoid a moratorium on construction and delays in permit 

processing.”111 Because the Final Rule will effectively create such a moratorium for any sources 

that have not already submitted what is deemed to be a complete permit application or a permit 

application on which notice of a preliminary determination has been published, EPA should 

reconsider the date by which PSD permit applications must address the revised PM2.5 NAAQS. 

The EPA should defer the requirement for any permit application to address the revised PM2.5

NAAQS until a reasonable time after the Agency has provided the necessary guidance and tools 

for permit applicants to use in addressing that standard, and, in the meantime, stay the Final 

Rule. 

C. New Information Limiting Reliance on Existing Regulations, Guidance, and 

Tools Used In Implementing Prior PM2.5 NAAQS

In the Final Rule, “EPA notes that fine particle standards have been implemented by 

States and regulated entities for a number of years already and there are a number of technical 

tools in place already to facilitate the implementation of a newly revised PM2.5 standard.”112 

First, as discussed above, such tools are lacking. Second, since the Final Rule was signed, 

aspects of three key implementation rules that go back to the first PM2.5 NAAQS, established in 

1997, have been remanded and, in some instances, vacated. The Final Rule, alludes to EPA’s 

identification of “certain PM2.5 precursors (SO2 and NOx) as regulated NSR pollutants” in a May 

2008 rule on NSR of PM2.5, suggesting that the same provisions apply to the revised PM2.5

 110 78 Fed. Reg. at 3255/2. 

111 Id. 

112 RTC at VI-11; see also id. at VI-23 (“Permitting procedures and tools should already 

be in place for the previously existing primary annual PM2.5 NAAQS, and these same procedures 

and tools are applicable to the revised standard.”).
27

NAAQS.113 After the signature of the Final Rule, however, the D.C. Circuit remanded that 2008 

rule to the Agency.114 Focusing on EPA’s decision to address areas that were designated 

nonattainment for previous PM2.5 NAAQS under Subpart 1 of Part D of Title I of the Act instead 

of Subpart 4, the D.C. Circuit specifically questioned EPA’s identification of PM2.5 precursors to 

be regulated.115 

In the Final Rule, EPA also indicates that “permitting decisions should continue to be 

based on ... the [significant impact levels (“SILs”)] and [significant monitoring concentrations 

(“SMC”)] for PM2.5 in existing regulations.”116 But in January 2013 the D.C. Circuit vacated 

and remanded “some portions of the EPA’s rule establishing [PM2.5] SILs” and vacated the parts 

of the rule that established the PM2.5 SMC “because these parts of the rule exceed the EPA’s 

statutory authority.”117 Although in the Final Rule EPA addressed the likely vacatur of the SILs 

provisions (which EPA had requested, so that it could “correct” them) saying the Agency does 

not “preclude appropriate use of the PM2.5 SILs in the interim,”118 EPA did not consider the 

implications of an SMC vacatur.

 113 78 Fed. Reg. at 3252/3 (citing 73 Fed. Reg. 28321 (May 16, 2008) (PM2.5 NSR 

Implementation Rule)). 

114 NRDC v. EPA, 706 F.3d 428 (D.C. Cir. 2013).

115 Id. at 429, 435 n.7. In the Final Rule, EPA does not indicate whether it intended the 

revised PM2.5 NAAQS to be implemented under Subpart 1 or under Subpart 4. EPA likely 

assumed that the new PM2.5 NAAQS would be implemented under Subpart 1, as was the case 

for the previously issued NAAQS. The D.C. Circuit’s decision that nonattainment of PM2.5

NAAQS must be addressed under Subpart 4 has implications for many aspects of 

implementation of the new revised NAAQS that extend beyond PSD permitting, including 

classifications, attainment dates, control requirements, and applicability of nonattainment NSR. 

116 78 Fed. Reg. at 3260/3; see also RTC at VI-21. 

117 Sierra Club v. EPA, 705 F.3d 458, 469 (D.C. Cir. 2013).

118 78 Fed. Reg. at 3260/1.

29

Of Counsel:

Rachel L. Brand

Sheldon Gilbert

Chamber of Commerce of the

 United States of America

1615 H Street, NW

Washington, D.C. 20062

(202) 659-6000

Counsel for the Chamber of Commerce

 of the United States of America