EPA Denies Indiana’s Request for Reconsideration of Nonattainment Designation for Lake and Porter Counties
By Bingham Greenebaum Doll LLP
On January 31, 2012, EPA notified Indiana via a letter to then Governor Mitch Daniels that it planned to recommend that Jasper, Lake, and Porter counties be included in the Chicago nonattainment area under the 2008 Ozone NAAQS. This was an about face from a previous notice sent December 9, 2011 proposing to designate these areas as attainment. The abrupt change was based on ozone monitoring data submitted by Illinois on December 7, 2011, which showed a monitored violation at the Zion, Illinois monitor.
Indiana disagreed with the recommended designations, and submitted data rebutting the inclusion of these counties in the nonattainment area. After reviewing the data, EPA removed Jasper County from the list, but announced on May 31, 2012 that Lake and Porter Counties would be designated as nonattainment. “Air Quality Designations for the 2008 Ozone Standards for Several Counties in Illinois, Indiana, and Wisconsin; Corrections to Inadvertent Errors in Prior Designations” 77 Fed. Reg. 112 (June 11, 2012). On August 10, 2012, IDEM Commissioner, Thomas Easterly, sent a letter on behalf of the state of Indiana asking EPA to reconsider and stay its designation of Lake and Porter counties as nonattainment. The letter stated that Indiana believed EPA failed to consider data submitted by the state pertaining to the five-factor test EPA uses to determine nonattainment areas. The letter also claimed that EPA did not adequately respond to comments on Lake and Porter Counties submitted by Indiana during the process that designated these counties as nonattainment.
On December 14, 2012 EPA denied Indiana’s Petition for Reconsideration and Request for Stay concerning EPA’s final rule, which designated Lake and Porter Counties as nonattainment. Even though monitors in these counties showed attainment under the 2008 Ozone NAAQS, EPA reached the conclusion that the counties contributed to the violation at the Zion, Illinois monitor and therefore, were appropriately designated as nonattainment.
In its petition for reconsideration, Indiana claimed that Illinois caused the violations at the Zion monitor when it failed to maintain its vehicle emission testing program as required by its state implementation plan. EPA responded that it still believed that Lake and Porter Counties contributed to the violation, and thus were properly designated, even if the violation would have occurred without contribution from the Indiana counties. Indiana also challenged the meteorological data used by EPA in its designation as not being specific to the 2009-2011 period when violations were detected. Though EPA agreed that the data was not period specific, it believed that there was little variability in the data from year to year and the data was therefore accurate and relevant. Indiana raised several other issues including disparate treatment of Indiana counties, insufficient time allowed by EPA to consider newly submitted data, and lack of benefit that could be gained by additional pollution controls despite their high costs. EPA rejected all of these arguments stating that it had previously responded to the issues during the comment period for the rulemaking, Indiana failed to raise the issues during the comment period, or that EPA had correctly considered data submitted by Indiana and any difference of treatment was due to different sets of facts and data unique to each county.
Indiana is seeking review of the nonattainment designation in the U.S. Court of Appeals for the District of Columbia Circuit. The case has been consolidated with other challenges to nonattainment designations under the 2008 Ozone NAAQS and is known as Texas Pipeline Association v. EPA, Case No. 12-1312.
The “Designations for the 2008 Ozone NAAQS”, 77 Fed. Reg. 98 (May 21, 2012) p. 30088, are also being challenged in the U.S. Court of Appeals for the District of Columbia Circuit in State of Mississippi, et al. v. EPA, Case No. 08-1200. Initially EPA had proposed revisions to the 2008 standards, but later rescinded the proposal, choosing instead to review the standards during the five-year review period mandated by the Clean Air Act beginning in 2013. The court conducted oral argument on November 16, 2012, and the parties await its decision.
To view a complete PDF of the Fourth Quarter 2012 issue of the Air Quality Letter, click HERE.