On May 31, 2012, and just formally published at 77 Fed. Reg. at 34221 (June 11, 2012), EPA designated the northwest Indiana counties Lake and Porter as marginal nonattainment for the 2008 ozone National Ambient Air Quality Standards (NAAQS). On April 30, 2012, EPA promulgated the initial ozone air quality designations for the country but at that time was still working on the designations for counties in the Chicago-Naperville area. In addition to Lake and Porter, the Illinois counties of Cook, DuPage, Grundy (partial), Kane, Kendall (partial), Lake, McHenry, and Will are also designated as nonattainment. Indiana’s Dearborn County was listed on April 30, as being partially in nonattainment.
EPA’s work on the 2008 ozone designations began with its issuance of a Dec. 4, 2008 guidance memorandum regarding air quality designations which also included a request for states to propose designations by March 12, 2009. IDEM responded with its recommendations on March 11, 2009, which, based on existing monitoring data at that time, proposed that only Lake County be considered nonattainment in northwest Indiana. On Dec. 9, 2011, EPA proposed an air quality designation that did not place any county in northwest Indiana in nonattainment. On Jan. 31, 2012, EPA provided a notice of revised air quality designations for the 2008 8-hour ozone NAAQS which, this time, included Lake, Porter, and Jasper Indiana counties. On April 13, 2012, IDEM Commissioner, Tom Easterly, submitted a forty-page document challenging EPA’s designation for Lake, Porter, and Jasper counties on the basis that the current data from ozone monitors located in those counties have shown compliance with the 2008 NAAQS for ozone. Only one of the 22 monitors in the area registered ozone levels above the applicable standard. That monitor was located in the northeast corner of Illinois and measured an ozone value of 0.4 of 1 ppb (parts per billion) above the standard of 75 ppb. An analysis performed by the Indiana Department of Environmental Management attributes that exceedence to a change in Illinois’s automotive inspection program.
In EPA’s response to Indiana’s April 13, 2012 comments, EPA maintained the nonattainment designations for Lake and Porter counties stating that “we believe that the Indiana counties contribute to violations at the violating monitor” and that “Section 107(d) of the Clean Air Act requires EPA to designate as nonattainment any area that does not meet the air quality standard or that contributes to a violation of the air quality standard in a nearby area.” Responses to Significant Comments 2008 Ozone NAAQS Addendum for Chicago-Naperville, IL-IN-WI area, May 31, 2012, pg 3 of 47.
As a result of this nonattainment designation, Indiana will have to formally submit an air quality data plan to show to EPA that Lake and Porter counties are meeting the NAAQS ozone standard, something which already exists. Although Indiana will not have to promulgate any additional air emission controls in order to reach compliance, nonattainment counties have more stringent air permitting requirements that will be an extra burden on economic expansion in northwest Indiana. Specifically, new sources of air emissions in a nonattainment area are required to implement the lowest achievable emission rate and will have to offset any emission increases.
The effective date of the rule is July 20, 2012.© 2013 BARNES & THORNBURG LLP
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