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EPA Delays Deadline for SO2 NAAQS Designations; Uncertainty Persists Regarding Method of Designation and Areas Expected to be Designated as Nonattainment

11.02.2012

By Kelly D. Bartley, Attorney, Bingham Greenebaum Doll LLP

In a notice published July 27, 2012, EPA announced that it will delay for one year nonattainment designations for the new 1-hour sulfur dioxide (SO2) National Ambient Air Quality Standard (NAAQS).  EPA explained that it currently has insufficient information to make designations by the original deadline of June 2012 and further cited the persisting questions and uncertainty regarding the method or approach the agency should use in making its determinations as justifying the delay.  See also article in the second quarter issue of the Air Quality Letter.

Relatedly, on July 20, 2012 the U.S. Court of Appeals for the D.C. Circuit rejected industry and state challenges to SO2 NAAQS implementation requirements finding that the requirements were not final action and thus not reviewable.  National Environmental Development Associations Plan Air Project v. EPA, Case No. 10-1252.  The Petitioners argued that the final implementation rule improperly required the use of both air quality modeling and monitoring data to demonstrate attainment status.  However, EPA countered, and the court agreed, that the standard merely identifies that as a possibility for implementation and therefore does not constitute final agency action subject to review.  The court also upheld EPA’s decision to establish the primary 1-hour SO2 NAAQS at 75 parts per billion, rejecting industry challenges to the scientific basis for that standard.

As reported in the last issue of the Air Quality Letter, in late 2011 Indiana and Kentucky submitted updated and revised recommendations regarding nonattainment designations for the standard to EPA. Those recommendations of proposed nonattainment areas only included a portion of Jefferson County, Kentucky and certain townships in Indiana (New Albany Township in Floyd County; Harrison Township in Vigo County; Wayne Township in Wayne County; Center, Perry and Wayne Townships in Marion County; Clay and Washington Townships in Morgan County; Veale Township in Daviess County; and Washington Township in Pike County).  All other areas of the states were proposed as unclassifiable.  In October, DAQ reported that new air monitoring data now also shows violations of the SO2 NAAQS in Campbell County, Kentucky.


To view a complete PDF of the Third Quarter 2012 issue of the Air Quality Letter, click HERE.

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