EPA’s 2012 Primary Annual Fine Particle Designation Identifies Attainment Status for All of West Virginia

EPA’s intends to designate all of West Virginia as being in attainment for the 2012 primary annual fine particle (PM2.5) National Ambient Air Quality Standards (NAAQS). (79 FR 51518). This is significant for industry and business development in West Virginia because, air permitting requirements applicable to the construction of new major sources and major modifications of existing major sources of criteria pollutants are tied to whether a region is in attainment or nonattainment with the NAAQS. Air permitting requirements in attainment areas are less stringent. 

EPA revised the primary annual PM2.5 NAAQS on December 14, 2012, from 15.0 ug/m3 to a more stringent 12.0 ug/m3, which is attained when the 3-year average of the annual arithmetic means does not exceed 12.0 ug/m3. (The primary standards are designed to be protective of public health.) Following the revision of the primary annual PM2.5 NAAQS, the states and tribal leaders had one year to submit area designations. Clean Air Act § 107(d) requires the states to “submit to the Administrator a list of all areas (or portions thereof) in the State, designating as – (i)nonattainment, any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant,(ii)attainment, any area (other than an area identified in clause (i)) that meets the national primary or secondary ambient air quality standard for the pollutant, or (iii) unclassifiable, any area that cannot be classified on the basis of available information as meeting or not meeting the national primary or secondary ambient air quality standard for the pollutant.”

On August 19, 2014, EPA notified states and tribes of its intended modifications to area designations for the 2012 primary annual PM2.5 NAAQS. These area designations were based on an evaluation of complete, certified and quality-assured monitored air quality data for 2011-2013, including an evaluation of exceptional event claims. EPA identified all of West Virginia as in attainment for the 2012 primary annual PM2.5 NAAQS. EPA identified 14 areas that do not meet the 2012 primary annual PM2.5 NAAQS and plans to designate these areas as nonattainment. See, www.epa.gov/airquality/particlepollution/designations/2012standards/docs/20140819nonattainment.pdf. These nonattainment areas are located in PA, KY, IN, OH, CA, and ID. EPA intends to make final designations for the 2012 primary annual PM2.5 NAAQS for most parts of the country in December 2012. EPA is postponing the designation period for up to a year for those areas where it says insufficient data exists to make a designation at this time.

Clean Air Act §107(d) provides States with an opportunity to demonstrate why any proposed modification is inappropriate.   EPA now seeks public comment “supported by relevant information, if you believe that a specific geographic area that the EPA is proposing to identify as a nonattainment area should not be categorized by the section 107(d) criteria as nonattainment, or if you believe that a specific nearby area not proposed by the EPA to be identified as contributing to a nonattainment area should in fact be categorized as contributing to nonattainment using the section 107(d) criteria.” Public comments are due September 29, 2014.

Laura Goldfarb helps clients resolve their environmental policy, regulation, and enforcement problems. Prior to joining Steptoe & Johnson, Ms. Goldfarb was Assistant Counsel at the West Virginia Department of Environmental Protection, where she represented the agency in a variety of matters relating to the state's environmental programs, and drafted regulatory and statutory environmental provisions for the State of West Virginia.
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