EPA Proposes Approval and Promulgation of Redesignation Requests for West Virginia Portion of Steubenville-Weirton Nonattainment Area for 1997 and 2006 PM2.5 Standards

EPA announced that it is proposing on December 9 to approve the West Virginia’s Department of Environmental Protection’s April 13, 2012, and June 8, 2012 requests to redesignate the West Virginia portion of the Steubenville-Weirton, OH-WV nonattainment area as attainment for both the 1997 annual and the 2006 24-hour fine particulate matter (PM 2.5) National Ambient Air Quality Standards (NAAQS. In addition, EPA is proposing to approve maintenance plans as a revision to the West Virginia State Implementation Plan (SIP). The maintenance plans are developed to show maintenance of annual NAAQS and the 2006 24-hour standards through 2025 for the West Virginia portion of the Air Quality Control Area  (AQCR). The maintenance plans include insignificance findings for mobile source contributions of PM 2.5 and nitrogen oxides (NOX) emissions to the West Virginia portion of the AQCR for both standards. Because EPA agrees with the findings, it is proposing their approval for transportation conformity purposes.

In addition, EPA is proposing to approve the 2008 emissions inventory for the West Virginia portion of the AQCR for the 2006 24-hour PM 2.5 NAAQS. Significantly, EPA also EPA is taking into account two recent decisions of the D.C. Circuit. In the first of the two Court decisions, the D.C. Circuit, on August 21, 2012, issued EME Homer City Generation, L.P. v. EPA, 696 F.3d 7 (D.C. Cir. 2012), which vacated and remanded CSAPR and ordered EPA to continue administering the Clean Air Interstate Rule (CAIR) “pending . . . development of a valid replacement.” EME Homer City at 38. The D.C. Circuit denied all petitions for rehearing on January 24, 2013. In the second decision, on January 4, 2013, in Natural Resources Defense Council v. EPA, the D.C. Circuit remanded to EPA the “Final Clean Air Fine Particle Implementation Rule” (72 FR 20586, April 25, 2007) and the “Implementation of the New Source Review (NSR) Program for Particulate Matter Less than 2.5 Micrometers (PM 2.5)” final rule (73 FR 28321, May 16, 2008). 706 F.3d 428 (D.C. Cir. 2013). In separate actions in September of 2013, EPA approved the redesignation of the Ohio portion of the AQCR for both standards.

In response to the Homer City CSAPR decision, EPA is proposing a determination that, to the extent that attainment is due to emission reductions associated with CAIR, those reductions are sufficiently permanent and enforceable for purposes of CAA sections 107(d)(3)(E)(iii) and 175A. To the extent that the maintenance plan relies on CAIR reductions, EPA states  in its proposal that the recent directive from the D.C. Circuit in EME Homer City ensures that the reductions associated with CAIR will be permanent and enforceable for the necessary time period.

Responding to the PM2.5 implementation rule decision, EPA is proposing to determine that the Court’s January 4, 2013 decision does not prevent EPA from redesignating the West Virginia portion of the AQCR to attainment for either standard. EPA notes that “[e]ven in light of the Court’s decision, redesignation for this Area is appropriate under the CAA and EPA’s longstanding interpretations of the CAA’s provisions regarding redesignation.”

The EPA proposals for West Virginia can be found at 78 FR 73769, pages 73769 through 73786. EPA has initiated a 30 day public comment period on the proposals, and comments are due no later than January 8. 2014. The docket number is EPA-R03-OAR-2013-0498.

Edward L. "Skipp" Kropp focuses his practice in the area of environmental law and is resident in Indianapolis, Indiana. He is a former Chief of the West Virginia Division of Environmental Protection Office of Air Quality and former Deputy Director of the West Virginia Division of Environmental Protection.
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