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Northwest Indiana and Northeast Illinois Counties Designated as Nonattainment for Ozone Despite Conflicting Data

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.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume II, Number 183


About this Author

Joel Bowers Environmental Attorney

Environmental lawyer Joel Bowers is dedicated to finding creative solutions to even the most difficult enforcement proceedings and complex deals. Joel is experienced in transforming technical analysis into practical legal counsel that takes into account big-picture client objectives.

Joel focuses his practice on environmental compliance and enforcement, including air quality and chemical regulation. He advises on remediation, corrective action and voluntary cleanups, as well as cost recovery defense.

In addition, Joel advises on environmental diligence for commercial and real...

Charles Denton Environmental Attorney

Charlie Denton represents an array of clients in environmental and toxic tort litigation, enforcement defense, regulatory compliance solutions and pollution insurance coverage disputes. He also serves as an alternative dispute resolution (ADR) neutral mediator and arbitrator. Persistent and highly collaborative, Charlie can take complicated issues and challenges and then identify a strategic path to achieve the client’s objectives.

Charlie’s representation of industrial, municipal, institutional, educational and individual clients includes judicial and administrative environmental proceedings at the federal, state and local levels. He also represents policyholders involved in environmental coverage claim disputes and litigation with millions of dollars in the balance.

In addition, Charlie assists clients with managing environmental risks in commercial transactions, mergers, acquisitions and divestitures, as well as ISO 14000 environmental management systems. He advises on lender liability issues and environmental audits to assess potential facility contamination and regulatory compliance for the acquisition and financing of real estate, as well as waste management and remedial actions, environmental permits enforcement, and defense of citizens’ suits.

Charlie serves as a zealous advocate for his clients, focusing on their specific strategic goals and finding solutions that solve their immediate and long-term challenges. Charlie makes a point of understanding his clients’ core objectives from the onset of representation to keep their environmental matter in perspective.

Charlie serves as a federal court arbitrator/mediator/neutral evaluator, a state court facilitative mediator, and an arbitrator and mediator for private ADR proceedings. When serving as a neutral, Charlie remains personally dedicated to finding a balanced approach to dispute resolution that meets the needs and interests of the parties involved. Charlie is valued for his thoughtful understanding of the underlying business and legal issues that permeate every dispute, as well as for his calming approach to resolving the people challenges and emotional aspects that underlie most acrimony. An active listener, Charlie serves as a catalyst to working constructively with even the most disparate parties to achieve a reasonable outcome.

Charlie is actively involved with key industry, legal and environmental associations, often in leadership roles. He is the author and co-author of several publications highlighting environmental law topics, and gives frequent presentations for the American Bar Association, Michigan Chamber of Commerce, and State Bar Associations for Georgia, Michigan and Wisconsin

Timothy Haley, Barnes Thornburg Law Firm, Indianapolis, Environmental Law Attorney,

Timothy A. Haley is a partner in the Environmental Department in Barnes & Thornburg LLP’s Indianapolis, Indiana office.

Mr. Haley focuses his practice on regulatory issues arising from environmental laws. These issues include planning and diligence in business and real estate transactions, permitting, administrative rulemaking proceedings, administrative enforcement defense and other administrative or civil litigation. Mr. Haley also advises clients during acquisitions of potentially environmentally impaired properties, and on compliance...