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United States: Environmental Law Alert - 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.
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