Comments Filed On U.S. EPA’s Responses To State Designations For The 2006 PM2.5 24-Hour NAAQS

More than 180 comments were filed on U.S. EPA’s responses to State and Tribal designations for the 2006 PM_2.5 24-hour NAAQS (73 Fed. Reg. 51,259; September 2, 2008) by the close of the public comment period of October 2, 2008.  The close of the comment period marks the first time that U.S. EPA has sought comments on designations for the PM_2.5 NAAQS.  Comments were filed by states, local governments, industry, and environmental groups.

Comments filed by the American Lung Association, EarthJustice, the Environmental Defense Fund, and the Natural Resources Defense Council generally asserted that U.S. EPA’s proposed designations were not sufficiently inclusive.  These environmental groups contend that EPA must designate all areas currently violating the annual standard as nonattainment because U.S. EPA’s revision of the PM_2.5 NAAQS in 2006 included revisions to the spatial averaging component of the annual standard that EPA promulgated as part of the 1997 PM_2.5 NAAQS.  These environmental groups also contend that U.S. EPA must include all counties contributing to or monitoring violations in the nonattainment areas and oppose nonattainment designations of partial counties.  They disagree with U.S. EPA’s previous designation of Allegheny County, PA into two separate nonattainment areas, namely the Liberty-Clairton and Pittsburgh-Beaver Valley nonattainment areas, and urge U.S. EPA to combine Pittsburgh-New Castle, PA into one nonattainment area.  They also challenge U.S. EPA’s proposed exclusion of the metropolitan Washington, DC area from any area designated nonattainment for the 2006 PM_2.5 standards.  Finally, they attach a list of counties that they contend U.S. EPA must designate as nonattainment.  The West Virginia counties on the list include:  Boone, Clay, Kanawha, Lincoln, and Putnam as part of the Charleston, WV MSA; Berkeley and Morgan as part of the Hagerstown-Martinsburg, MD-WV MSA; Cabell and Wayne as part of the Huntington-Ashland, WV-KY-OH MSA; Pleasants, Wirt, and Wood as part of the Parkersburg-Marietta-Vienna, WV-OH MSA; Brooke and Hancock as part of the Weirton-Steubenville, WV-OH MSA; Jefferson and Hampshire as part of the Washington-Baltimore-Northern Virginia, DC-MD-VA-WV combined SA; and Marshall and Ohio as part of the Wheeling-WV-OH MSA.  In contrast, U.S. EPA intends to designate as nonattainment only the following West Virginia counties:  Cabell, Wayne, part of Mason, Monongalia, Wood, and part of Pleasants. 

West Virginia did not submit comments that were posted as of October 3, 2008.  Connecticut was one of the few States to submit comments.  Connecticut used its comments as an opportunity to point out that the State’s PM_2.5 air quality problems “primarily originate from locations outside of Connecticut.”  Connecticut asked for U.S. EPA’s help to reduce PM_2.5 levels and comply with the 2006 NAAQS “especially in light of the recent vacatur of the CAIR rule,” explaining that the “CAIR vacatur places anticipated upwind reductions in sulfur dioxide and nitrogen oxides in jeopardy.”

Ohio’s congressional delegation submitted comments noting the “region’s current level of economic distress” and data concerning the region’s air quality improvement.  The Ohio congressional delegation urges U.S. EPA to allow Ohio additional time to provide the most recent data possible and delay the decision on redesignations until after that material has been thoroughly reviewed for the counties of Mahoning and Trumbull. 

Comments were also filed on behalf of power plants in Ohio requesting reconsideration of pollution control devices installed on power plants in anticipation of CAIR.  These comments point out that the power plants are in discussion with Ohio EPA regarding these controls and that a consent decree has been filed which, if approved, would be federally enforceable.

Comments filed by the Midwest Ozone Group (MOG) objected to U.S. EPA’s rationale for its PM_2.5 designations.  MOG urged U.S.EPA to defer to state designations and not to violate its own guidance for the 2006 PM_2.5 designations by applying a presumption in fact.  MOG urged U.S. EPA to make PM_2.5 designations based on air quality monitoring data and in the absence of air quality monitoring data to designate an area nonattainment based on contribution to a nearby area only if the contribution is a factor in causing nonattainment.  MOG further urged U.S EPA to abandon its nine-factor test for determining contribution and use modeling instead.  MOG also urged U.S. EPA to consider reasonable alternatives to nonattainment designations, such as consent orders, permit modifications, or special rules as part of state implementation plans.  MOG challenged U.S. EPA’s contributing emission score which is a later version of the weighted emission score that U.S. EPA used of the designations for the 1997 PM_2.5 NAQQS and that is the subject of litigation pending in the D.C. Circuit, Catawba, NC v. EPA, No. 05-1064 (D.C. Cir.).  Finally MOG pointed out U.S. EPA’s inconsistent and arbitrary application of its contributing emission score.  The Illinois Environmental Regulatory Group, an affiliate of the Illinois Chamber of Commerce, was also critical of U.S. EPA’s use of its contributing emission score. 

U.S. EPA will now review and respond to these comments and promulgate final designations for the 2006 24-hour PM_2.5 NAQQS by December 2008 or 2009.  U.S. EPA has said that it anticipates promulgating the final designations by the end of 2008; however, the Clean Air Act allows the U.S. EPA Administrator to extend the deadline for promulgation of designations up to one year in the event of “insufficient information to promulgate the designations”.  Assuming that U.S. EPA promulgates the final designations for the 2006 24-hour PM_2.5 NAQQS by December 2008 and publishes those designations as a final rule in 2009, then the state implementation plans will be due in 2012 and the outermost presumptive attainment date for states with nonattainment areas for the 2006 24-hour PM_2.5 NAAQS will be 2014. 

This article was authored by Gale Lea Rubrecht, Jackson Kelly PLLC. For more information on the author see here.