Court dismisses particulate rule lawsuit

OREANDA-NEWS. July 09, 2015. The DC Circuit Court of Appeals yesterday rejected North Carolina's lawsuit against a federal rule for meeting fine particulate air quality standards, saying the state waited too long to file its challenge.

North Carolina challenged an implementation rule that the US Environmental Protection Agency (EPA) issued in 2010 to help states meet the 2006 federal 24-hour fine particulate (PM2.5) standard. The state had argued EPA violated the Clean Air Act by setting different baselines for PM2.5 and larger dust particles known as PM10.

The state did not file its challenge until late December 2014, well outside the 60-day window for lawsuits against new Clean Air Act regulations. The state said its suit should be allowed in light of a January 2013 ruling by the court that PM10 and smaller dust particles should be regulated under the same section of the Clean Air Act. In addition, EPA suggested it might revise the implementation rule, North Carolina said. But this does not excuse the state from waiting as long as it did, as the rule was in effect at the time, the court said.

"The Clean Air Act does not toll filing deadlines for such niceties," the court said.

The 2010 rule set maximum increments, or the amount by which emissions could exceed the levels of a baseline year before an area violated the air quality standards. The rule replaced a 1975 baseline for PM10 that EPA said was obsolete and too lax for fine particulates. Under the rule, EPA regulated fine particulates as a "new pollutant" rather than a subset of PM10, allowing it to set a more stringent 2010 baseline for fine particulate matter.