Awaiting Vacatur Decision, EPA Faces Looming PM Attainment Designations

• By: AWMA
• On: 01/02/2026 08:17:20
• In: Press
• Comments: 0

(Reprinted with permission from Inside EPA)  

Speaking on the Air and Waste Management Association (A&WMA) virtual “Information Exchange” Dec. 10, Georgia air regulator James Boylan, a former EPA science adviser, noted that EPA must make final designations by Feb. 6 as spelled out in the agency's 2024 compliance schedule.

A nonattainment designation imposes tougher air permitting conditions on industry, with the need for new and modified facilities to find emissions offsets for any additional pollution they will emit. Also, states must craft state implementation plans (SIPs) containing measures to come into compliance with the limit. For particulate matter, areas are initially placed into “moderate” nonattainment.

States earlier this year submitted their recommendations to the agency for areas to be either considered “attainment” or “nonattainment.” If EPA disagrees with a state's recommendation, the agency sends a “120-day letter” to the state outlining its reasons for disagreement and then allows states 60 days to respond before the agency issues a final designation.  But EPA was due to issue such letters in October, and has not done so, said Boylan.

It is unclear if this is due to the federal government shutdown, or because EPA does not intend to fault any state's attainment recommendations.
An EPA spokesperson tells Inside EPA that, “In keeping with long standing practice, EPA does not comment on current or pending litigation. This includes commenting on area designations based on the 2024 PM2.5 NAAQS rule in litigation.”

However, because of the permitting and air planning implications, the Trump administration, industry and many states are anxious to avoid nonattainment designations, adding to pressure on the agency to quickly rescind the Biden EPA standard. While EPA had been planning to issue a proposed rule to withdraw the Biden NAAQS, likely on narrow legal grounds, and then finalize a rule, those plans are in doubt after EPA last month asked the U.S. Court of Appeals for the D.C. Circuit to vacate the Biden PM NAAQS.

The agency's Nov. 24 motion in Commonwealth of Kentucky, et al. v. EPA, et al. cites the Biden rule's failure to conduct the “thorough review” that the Clean Air Act requires. The agency now claims that the Biden rule, which was the first to reconsider a NAAQS, sidestepped full scientific review of the effects of PM air pollution that would be required for a regular five-year statutory review, though the D.C. Circuit panel appeared to doubt such arguments when offered by industry petitioners during 2024 oral arguments.

Further, the agency warned the court against finding the standard lawful on grounds not advanced by the Biden administration, after at least one judge at oral argument suggested an alternative basis for the reconsidered standard. GOP attorneys general also oppose any alternative justification for the rule, in their brief filed earlier this month.

If the court agrees with these arguments, EPA and states will avoid the nonattainment designation process. But if the court declines to vacate the rule, the case may result in a different outcome than what EPA favors, including a simple remand that would leave the Biden rule in place -- a possibility that EPA and GOP states oppose.

Georgia Waivers
In Georgia, Boylan says that the state will avoid nonattainment designations that would otherwise apply to metro areas that account for 80 percent of the state's population, because the state has filed over 100 requests to EPA to exclude air monitoring data during “exceptional events.”
Such events include chiefly wildfires, for which EPA normally grants waivers, but also intentionally set prescribed fires that are used to lower the risk of much larger, uncontrolled fires.

So far, EPA has not approved any of the exceptional events waiver requests for Georgia, but it has done so for other states, Boylan said.
Winning approval for waivers for prescribed fires has proven especially onerous for states, and there are regulatory efforts at EPA to streamline the process, along with a House bill now approved by the Energy and Commerce Committee, H.R. 6387, that would ensure that prescribed fire qualifies for waivers. The measure is one of several bills advanced by the committee that seek to ease permitting for industry. Absent a change to ease access to the exceptional events waivers, Boylan called the current situation “unsustainable.”

-- Stuart Parker (sparker@iwpnews.com)