On June 2, 2014, EPA finalized its implementation rule for submittal of State Implementation Plans (SIP) for the 1997 and 2006 PM2.5 NAAQS. The need for the new rule was triggered by the D.C. Circuit Court of Appeals decision on Jan. 4, 2013, in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013), wherein the court remanded to EPA its prior PM2.5 implementation rule, which was issued pursuant to Subpart 1 of Part D of Title I of the Clean Air Act. As discussed in the fourth quarter 2013 issue of the Air Quality Letter, the court found that EPA was required to issue its implementation rule pursuant to Subpart 4 of Part D.
The June 2, 2014, final rule utilizes the classifications under Subpart 4 for areas currently designated nonattainment for the 1997 and 2006 PM2.5standards and sets a Dec. 31, 2014, deadline for submittal of any remaining required SIP submissions for such areas pursuant to and considering the application of Subpart 4. The final rule became effective on July 2, 2014.
In the final rule, EPA rejected requests by environmental interests groups to apply the D.C. Circuit’s 2013 ruling retroactively. EPA noted that “prior to the court’s decision, the prevailing implementation rulemaking instructed states to submit plans solely under Subpart 1. The D.C. Circuit Court did not vacate this rule. Nor did the court compel the EPA to treat the deadlines for the obligations the court announced in its decision as already having lapsed, and the states as if they had already failed to meet these obligations.” EPA relied upon the D.C. Circuit Court of Appeals’ prior decision in Sierra Club v. Whitman, 2002 U.S. App. LEXIS 16600 (Aug. 6, 2002) as support for its determination not to retroactively apply the ruling. EPA also noted it would be unfair to retroactively apply the court’s ruling and effectively penalize states that followed EPA’s prior guidance in preparing and submitting SIPs in accordance with Subpart 1.
In accordance with Subpart 4, EPA has classified all areas currently designated as nonattainment for the 1997 and 2006 PM2.5 NAAQS as “moderate” nonattainment areas. Thus, the provisions of Subpart 4 that apply to moderate nonattainment area SIPs will apply. Even where an area designated as moderate currently meets the 1997 and 2006 PM2.5 NAAQS, EPA explains that states may still need to submit additional SIP planning requirements and nonattainment SIP elements for designated nonattainment areas to show that the areas meet all of the applicable requirements of Subpart 4. That will depend upon the circumstances of each individual nonattainment area.
In Kentucky, Bullitt and Jefferson Counties are designated as moderate nonattainment areas. Clark, Floyd, and part of Jefferson Counties are designated moderate nonattainment areas in Indiana. The Kentucky and Indiana moderate nonattainment areas reportedly are meeting the 1997 and 2006 PM2.5 standards based upon monitored air quality.