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EPA Designates Areas of Kentucky and Indiana as Nonattainment for the 2010 1-hour SO2 NAAQS


By Kelly D. Bartley, Attorney, and Jennifer Kahney Thompson, Attorney, Bingham Greenebaum Doll LLP

In the August 5, 2013 Federal Register, EPA published a final rule designating 29 areas in 16 states, including areas in both Kentucky and Indiana, as nonattainment for the 2010 1-hour sulfur dioxide (SO2) National Ambient Air Quality Standards (NAAQS).  (The determination was previously issued through EPA’s website on July 25, 2013).  Details regarding EPA’s proposed designations as well as both Kentucky and Indiana’s recommended designations are provided in the first quarter 2013 issue of the Air Quality Letter.

Kentucky and Indiana are required to develop and implement state implementation plans (SIPs) within the next 18 months with regard to the newly designated nonattainment areas.    In the present action, EPA only designated nonattainment areas in locations where existing monitoring data indicate violations of the NAAQS.  In separate future actions EPA intends to address designations for all other areas.  As reported in previous issues of the Air Quality Letter, EPA has developed a comprehensive implementation strategy for those future SO2 designations actions. 

Kentucky Areas Designated as Nonattainment

Parts of two Kentucky counties have been designated as nonattainment for the 1-hour SO2 NAAQS.  Consistent with Kentucky’s recommendation to EPA, EPA designated that portion of Jefferson County immediately surrounding the Louisville Gas & Electric Company Mill Creek Generating Station as nonattainment.  The boundary for the Jefferson County area is the same as recommended by Kentucky and is specified by UTM coordinates delineated in the rule.

EPA also designated a portion of Campbell County as nonattainment.  In a March 6, 2013 letter, the Commonwealth of Kentucky expressed strong opposition to the proposed designation of this area asserting that the source causing the violation at the Campbell County monitor is located outside the state, and thus outside Kentucky’s control.  In the final rule, EPA rejected Kentucky’s comments, designating portions of both Campbell County, Kentucky and Claremont County, Ohio (the location of the source causing the violation) as nonattainment for the standards.  EPA determined that Kentucky will be obligated to submit a SIP for the Campbell County area, although it expects that Ohio will address the source causing the violation as part of their state implementation planning.  With regard to this area, EPA did reevaluate its intended boundary determination.  Moving away from the census track approach used in the proposed designation, the final designation uses major and established highways as well as a portion of the Ohio River to define the Campbell County nonattainment area boundary.

Indiana Areas Designated as Nonattainment

EPA’s final rule has designated the following portions of the listed counties in Indiana as nonattainment for the 1-hour SO2 standard.

Nonattainment Area County
Indianapolis Marion County (Wayne, Center and Perry Townships)
Morgan County Morgan County (Clay and Washington Townships)
Southwest Indiana Daviess County (Veale Township) and Pike County (Washington Township)
Terre Haute Vigo County (Fayette and Harrison Townships)

Following publication of the proposed designations, IDEM submitted a March 11, 2013 comment letter stating that it disagreed with the rationale used by EPA in its proposed designation of Otter Creek Township in Vigo County.  IDEM pointed out that inclusion of Otter Creek Township would be contrary to EPA’s “Guidance for 1-Hour SO2 NAAQS SIP Submissions (2011)” which states that “areas with no SO2 monitors would be designated as ‘unclassifiable,’ as well, absent any other appropriate data to support a designation of ‘attainment’ or ‘nonattainment’ as there are no monitors or sources of SO2 emissions within Otter Creek Township.  The population density within Vigo County is mainly limited to Harrison Township, and the population density of Otter Creek Township does not differ significantly from the other townships surrounding Harrison Township.  Thus, IDEM argued EPA’s proposed inclusion of Otter Creek Township as a contiguous boundary was an insufficient justification.  IDEM asserted that limiting the nonattainment boundary to Fayette and Harrison Townships captures the monitors that exceed the 1-hour standards and all of the sources with the potential to influence measured concentrations, as well as the portion of the population likely to be affected by the concentrations near the monitors and emission sources.  Therefore, IDEM requested that EPA exclude Otter Creek Township from the Terre Haute Nonattainment Area.

In the final rule, EPA agreed with IDEM’s assessment of Otter Creek Township and did not include that township in the Terre Haute area designated as nonattainment.

Additionally, on March 28, 2013 IDEM submitted a Technical Addendum to Provide an Updated Response to Preliminary Designations Under the 2010 National Ambient Air Quality Standard for Sulfur Dioxide to EPA.  IDEM advised that certain data included from the Wayne County monitor should have been null and void because the monitor was either being calibrated or quarterly audits were being performed.  The revised data showed that the design value for Wayne County is 66 parts per billion, significantly below the standard of 75 ppb.  Therefore, IDEM argued Wayne County should not be designated as nonattainment.

In the final rule, EPA agreed with IDEM’s Technical Addendum and removed Wayne County from its nonattainment designation list for Indiana stating “because there are no monitored violations for the Richmond, Indiana area, no action is currently being taken on this area.”

To view a complete PDF of the Third Quarter 2013 issue of the Air Quality Letter, click HERE.

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