Attorneys General of New York, Connecticut, Delaware, Maryland, Massachusetts, New Mexico, Rhode Island, Vermont, and Washington
December 6, 2012 By electronic mail and first class mail
Boris Bershteyn Acting Administrator
Office oflnformation and Regulatory Affairs
The White House Office of Management and Budget 725 17th Street, NW
Washington, D.C. 20503
Re: National Ambient Air Quality Standards for Particulate Matter
Dear Acting Administrator Bershteyn:
We understand that the Environmental Protection Agency has recently submitted for interagency review a final rulemaking package on the National Ambient Air Quality Standards for Particulate Matter to the Office of Information and Regulatory Affairs. Under a consent decree that EPA entered into with our States and several public health organizations, the agency is required to sign the final rule by December 14, 2012. We urge you to support EPA's adoption of annual and daily standards for fine particulate matter that are fully protective of public health, including the health of over 100 million Americans who are most vulnerable to particulate matter pollution. An annual standard
necessary to protect public health with an adequate margin of safety. In addition, the scientific evidence supports a daily standard of 30 ug/m3 to protect the public against short-term exposures.
Because of the public health imperative for sufficiently protective standards, our States have been advocating for years -- in agency rulemakings and in court -- for EPA to fulfill its duty under the Clean Air Act to issue standards that protect public health with
an adequate margin of safety. After EPA rejected the advice of its independent science advisors, the Clean Air Scientific Advisory Committee, in 2006 to strengthen the existing 15 Jlg/m3 annual standard for fine particulate matter, we successfully challenged that standard in American Farm Bureau Fed'n v. EPA, and in early 2009, the D.C. Circuit remanded the standard -- which it termed "contrary to law" -- to EPA for reconsideration.
After EPA missed several self-imposed deadlines to issue standards consistent with the D.C. Circuit's decision and then also failed to meet its obligation under the
Clean Air Act to timely complete its five-year review, our States filed suit in district court in February 2012 seeking to compel EPA to expeditiously issue particulate matter standards. The case, State ofNew York, et al. v. Lisa P. Jackson (S.D.N.Y. No. 12- 1064), which was subsequently transferred to federal district court in the District of
Columbia, resulted in a court order requiring EPA to sign the proposed rule by June 14, 2012. The parties subsequently negotiated a settlement resolving the case, memorialized in a consent decree that requires EPA to sign the final rule by December 14, 2012.
It is a central goal of the Clean Air Act "to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population." 42 U.S.C. § 7401(b)(l). A core element of achieving this goal is the Act's requirement that EPA adopt "primary'' standards for certain pollutants, such as particulate matter. Critically, the Act requires the standard to be set at a level that protects public health with an "adequate margin of safety."
Fine particulate matter, or particulate matter less than two and a half micrometers in diameter ("PM2 .5"), forms predominantly as a result of the combustion of fossil fuel by power plants, motor vehicles, industrial facilities, and residential heating. Because of its microscopic size, fine particulate matter can penetrate deep into the lungs and trigger a wide range of adverse health effects. EPA has linked exposure to fine particulate matter pollution with increased respiratory symptoms (asthma attacks) and disease (acute and chronic bronchitis), decreased lung function, and premature deaths in people with heart or lung disease.
EPA estimates that more than 100 million Americans_:. one-third of the nation's population -- have special susceptibility to harm from particulate matter, including children, seniors and people with lung diseases such as asthma. EPA calculated in 2010 that exposure to fine particulate matter pollution at the levels allowed under the
15 jlg/m 3annual standard could result in roughly 10,000 premature deaths per year in just
15 urban areas in the country. The agency also found that up to half of these premature deaths could be averted if an annual standard of 12 jlg/m 3 were adopted.
Although fine particulate matter pollution in the U.S. has decreased since EPA performed these calculations, areas of the country continue to experience fine particulate matter concentrations below the level of the current standards but above the levels that EPA staff and Clean Air Scientific Advisory Committee concluded pose a risk to human health. As set forth in affidavits filed in the New York v. Jackson case, there are a number of areas in our States in which fine particulate matter levels are at or below the current annual standard of 15 jlg/m 3 and above annual levels in the range of 11-13 jlg/m 3•
EPA has proposed to strengthen the annual primary standard for PM2.5 from 15 jlg/m 3 to within a range of 12 jlg/m 3 -13 jlg/m, 3 and proposed to leave the 24-hour primary standard unchanged at 35 jlg/m 3 . The agency also solicited comments on
alternative annual standards down to 11 jlg/m 3, and on the combination of annual and 24- hour standards. ·
As explained in detail in the comments of some of our States on the proposed rule (attached for your reference), the adoption of an annual standard of no higher than
12 jlg/m 3 is necessary to protect public health with an adequate margin of safety as required under the Clean Air Act. A primary standard set at no higher than this level is
compelled both by the extensive and overwhelming public health evidence contained in the record and by EPA's own 2010 quantitative health risk assessment for particulate matter. In the rulemaking, EPA staff concluded that there is now a "stronger and broader body of evidence" than in 2006 that exposure to fine particulate matter causes premature death, breathing problems, and heart disease. The Clean Air Scientific Advisory Committee concurred with EPA staffs finding that the strongest evidence supports a
standard in the range of 11-12 J..tg/m3. In addition, as explained in our attached comments
on the proposed rule, the record also supports EPA setting the 24-hour standard for fine particulate matter at 30 J..tg/m 3 given that adverse public health impacts can occur as a result of exposure at the current level of 35 J..tg/m 3.
Although EPA did alternatively propose to set the annual standard at 13 J..tglm 3 , adopting a standard at this level would not satisfy the agency's obligation under the statute to protect public health with an adequate margin of safety. As explained in the attached comments, EPA staff and the Clean Air Scientific Advisory Committee both cited evidence ofharm associated with exposures to concentrations below this level. Therefore, we believe it would be both contrary to the Clean Air Act and to the D.C.
Circuit's decision in American Farm Bureau to set the annual standard at 13 J..tg/m3 .
Finally, EPA's decision should not be delayed on the grounds that more cost benefit analysis on the particulate matter standards is warranted in light of the D.C. Circuit's decision vacating the Cross-State Air Pollution Rule, one of the tools EPA cited for attaining the new particulate matter standards. EPA, our States, and several other parties have petitioned the D.C. Circuit for rehearing of that decision. But more importantly, the Supreme Court has unanimously held that "EPA may not consider implementation costs in setting primary and secondary [standards]." Whitman v. Am. Trucking Ass'ns, 531 U.S. 457,486 (2001). Instead, EPA must make decisions on the standards solely based on the scientific evidence. 42 U.S.C. § 7409(b)(1).
* * *
Every day, particulate matter pollution threatens the health of more than one-third of our nation's population-- particularly our most vulnerable: children, the elderly and the sick. For this reason, we urge you to support EPA's timely adoption of particulate matter standards that fully meet the requirements of the Clean Air Act. Thank you for your attention to this critical matter.
ERIC T. SCHNEIDERMAN
Attorney General ofNew York LEMUEL SROLOVIC
Chief, Environmental Protection Bureau
Michael J Myers, Assistant Attorney General
Environmental Protection Bureau The Capitol
Albany, NY 12224
Attorney General of Connecticut SCOTT N. KOSCHWITZ
Assistant Attorney General
Office of the Attorney General 55 Elm Street
Hartford, CT 06106
JOSEPH R. BIDEN, III
Attorney General of Delaware VALERIE M. SATTERFIELD
Deputy Attorney General Attorney General's Office
Third Floor, 102 W. Water Street Dover, Delaware 19904
Attorney General ofMaryland MARY E. RAIVEL
Assistant Attorney General Office of the Attorney General
Maryland Department of the Environment
1800 Washington Blvd., S. 6048
Baltimore, MD 21230
Attorney General of Massachusetts
I. ANDREW GOLDBERG
Assistant Attorney General Environmental Protection Division 1 Ashburton Place, Room 1813
Boston, MA 02108
Attorney General ofNew Mexico STEPHEN R. FARRIS
TANNIS L. FOX
Assistant Attorneys General
Water, Environment, and Util. Divis.
P.O. Box Drawer 1508 Sante Fe, NM 87504
PETER F. KILMARTIN
Attorney General ofRhode Island MICHAEL RUBIN
GREGORY S. SCHULTZ
Assistant Attorneys General Department of Attorney General 150 South Main
Providence, RI 02903
WILLIAM H. SORRELL
Attorney General of Vermont THEA SCHWARTZ
Assistant Attorney General
Office ofthe Attorney General 109 State Street
Montpelier, VT 05609-1001
Attorney General of Washington LESLIE R. SEFFERN
Assistant Attorney General
Office ofthe Attorney General
P.O. Box 40117
Olympia, WA 98504
cc: Lisa P. Jackson, EPA Administrator
Nancy Sutley;Chair of Council on Environmental Quality