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EPA Proposes to Designate Areas of Kentucky and Indiana as Nonattainment for the 2010 SO2 NAAQS


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

In the February 15, 2013 Federal Register, EPA proposed the designation of 30 areas in 16 states, including areas in both Kentucky and Indiana, as non-attainment for the 2010 Sulfur Dioxide (SO2) National Ambient Air Quality Standards (NAAQS).  On June 2, 2010, EPA revised the primary SO2 NAAQS to establish a new one-hour standard of 75 parts per billion (ppb). In the same rulemaking, EPA revoked the two prior, significantly less stringent, primary standards of 140 ppb evaluated over 24-hours and 30 ppb evaluated annually, on the basis that those standards would not add additional public health protection given the new one-hour standard.  EPA announced that all areas proposed for designation as nonattainment in the February notice are located in areas where existing 2009-2011 monitoring data indicate violations of the standard.

The Clean Air Act requires EPA to complete initial designations within two years of promulgating a new or revised NAAQS.  In July 2012, pursuant to authority granted under the Clean Air Act, EPA announced that it had insufficient information to complete designations within the two year time frame and extended the deadline to June 3, 2013.   Pursuant to an extension, comments on the proposed designations were due April 8, 2013.

Kentucky Areas Proposed for Designation as Nonattainment

Consistent with Kentucky’s recommendation to EPA, EPA announced that it intends to designate that portion of Jefferson County immediately surrounding the Louisville Gas & Electric Company Mill Creek Generating Station as nonattainment for the SO2 NAAQS.  Contrary to Kentucky’s recommendation however, EPA has also proposed to designate the following census tracts in Campbell County, Kentucky (all located in the central portion of the county) as nonattainment for the standard: 519.01; 519.03; 529.00; 531.00; and 533.01.  EPA also proposed designation of a contiguous portion of Clermont County, Ohio as nonattainment.

By letter dated March 6, 2013, the Kentucky Energy and Environment Cabinet responded, stating that it “strongly opposes” the proposed partial nonattainment designation for Campbell County and pointing out that violations of the SO2 standard in Campbell County are due almost entirely to emissions from the W.C. Beckjord Generating Station located approximately 10 miles east of the Campbell County monitor in Clermont County, Ohio.  According to Cabinet information, 2012 SO2 emissions from the Beckjord station were 67,068.84 tons as compared to 88.8 tons in all of Campbell County.  As a result, the Cabinet argued to EPA that partial designation of the county as proposed will require Kentucky to “needlessly” follow statutory steps to bring the area back into attainment when there are no programs that Kentucky could implement that would result in attainment.  The Cabinet states that even if Kentucky eliminated all SO2 emissions in Campbell County, current emissions as measured at the violating monitor would be reduced by only 0.2 percent.  Kentucky further objected to the designation of the Kentucky census tracts located between the violating monitor and the Beckjord Station, stating that such proposal is “only by virtue of EPA’s apparent need to geographically connect the monitor to the source of the NAAQS violation.”

Indiana Areas Proposed for Designation as Nonattainment

EPA has proposed the following portions of the listed counties in Indiana as nonattainment for the 2010 SO2 standard. 

Nonattainment Area                        County

Indianapolis                            Marion County, IN (Wayne, Center and
Perry Townships)

Morgan County                        Morgan County, IN (Clay and Washington

Richmond                                Wayne County, IN (Wayne Township)

Southwest Indiana                   Daviess County, IN (Veale Township)

Pike County, IN (Washington Township)

Terre Haute                              Vigo County, IN (Fayette, Harrison, and
Otter Creek Townships)

Indiana submitted its initial designation recommendations for the 2010 revised one hour SO2 NAAQS to EPA on May 11, 2011.  Technical Addendums with updated recommendations followed on January 6, 2012; April, 6, 2012; and January 24, 2013.  EPA adopted Indiana’s recommendation to utilize smaller township areas as the boundary for the nonattainment areas, and almost all of its township recommendations.  However, EPA and Indiana disagree on whether Otter Creek Township in Vigo should be included in the Terre Haute Nonattainment Area.

IDEM’s March 11, 2013 response letter agrees with the proposed designation of Fayette Township in Vigo County despite the fact that IDEM’s above-referenced recommendations did not include that township.  But IDEM disagrees with the rationale used by EPA in its proposed designation of Otter Creek Township in Vigo County.  IDEM points out that inclusion of Otter Creek Township is 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.’”  IDEM argues that there are no monitors or sources of SO2 emissions within Otter Creek Township.  The population density within Vigo County is mainly limited to Harrrison Township, and the population density of Otter Creek Township does not differ significantly from the other townships surrounding Harrison Township.  Thus, EPA’s inclusion of Otter Creek Township as a contiguous boundary is an insufficient justification.  Rather IDEM asserts that limiting the nonattainment boundary to Fayette and Harrison Townships captures the monitors that exceed the one hour standard 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 has requested that EPA exclude Otter Creek Township from the Terre Haute Nonattainment Area. 

February 2013 Updated Strategy for Future Designations

On February 6, 2013, EPA released an “updated strategy” calling for further rulemaking and guidance for completing initial area designations for all other areas of the United States (i.e., areas without a monitor measuring a violation of the standard).  Moving away from the controversial approach previously put forth by EPA that required states to use both monitoring and modeling to determine an area’s attainment of the standard, the updated strategy calls for a dual monitoring / modeling approach that would allow states the flexibility to use either monitoring or modeling (or a mix of both) for characterization of current SO2 concentrations.  To facilitate EPA’s updated approach, EPA announced that it plans to issue updated rules and guidance for both an acceptable SO2 monitoring network for a source or source region and acceptable SO2 modeling for designation purposes.  

With regard to source thresholds, EPA continues to state that, given the resource constraints on characterizing air quality through monitoring or modeling, focusing on the largest sources of emissions for purposes of determining NAAQS attainment is appropriate.  EPA announced that it expects to propose a range of threshold options based on population size and source size for a minimum level of coverage between 66 and 90 percent of national SO2 emissions.  EPA plans to issue technical assistance documents this summer followed by a final data requirement rulemaking in late 2014 requiring air agencies to characterize air quality for areas with sources covered by the relevant thresholds in support of new designation recommendations.  Air agencies will then in 2015 identify those sources and areas meeting the thresholds that will use monitoring and those that will use modeling to characterize air quality.  The strategy calls for new monitors to ultimately be operational by January 2017 with final designations for newly monitored areas by December 2020.  The strategy calls for final attainment and nonattainment designations for modeled areas to be made by December 2017.

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

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