On March 20, 2015, EPA issued updated guidance for area designations for the 2010 one-hour primary SO2 NAAQS. The guidance was issued following EPA’s settlement of claims by environmental groups and certain states that EPA failed to timely designate all areas of the country. The consent decree resolving the litigation established a three stage process to complete the designations. Kentucky has joined North Dakota, Arizona, Nevada, Louisiana and Texas in appealing the settlement to U.S. Court of Appeals for the Ninth Circuit. The Notice of Appeal was filed on April 30, 2015. 

As explained in the guidance, EPA must complete designations in accordance with the following schedule. By July 2, 2016, EPA must designate: (1) areas with newly monitored violations of the NAAQS; and (2) areas that contain any stationary source that according to EPA’s Air Markets Database emitted more than 16,000 tons of SO2 in 2012 or emitted more than 2,600 tons of SO2 and had an annual average emission rate of at least 0.45 pounds/mmBtu in 2012 and for which retirement was not announced as of March 2, 2015. By December 31, 2017, EPA must complete designations for remaining undesignated areas for which states have not installed and begun operating SO2 monitoring networks by January 1, 2017. All remaining areas must be designated by December 31, 2020. 

On the same date the guidance was issued, EPA sent letters to 28 states advising them of areas which EPA believed fell within categories requiring action by July 2, 2016. In the March 20, 2015 letter to Commissioner Bruce Scott of the Kentucky Department of Environmental Protection, EPA identified two power plants in Kentucky that it believed met the SO2 emission criteria in the guidance for action by July 2016: the D.B. Wilson Generating Station and the John S. Cooper Power Station. EPA also notified Kentucky of the following sources in nearby states that met the criteria and might be impacting Kentucky: Joppa Steam Coal Power Plant in Illinois, AB Brown Generating Station and Clifty Creek Power Plant in Indiana, and W H Zimmer Generating Station in Ohio. 

States may submit updated recommendations on designations with supporting information to EPA for consideration. Those submittals are due by September 18, 2015. EPA expects to notify states of any intended modifications to the states’ recommendation on or about January 22, 2016 but not later than March 2, 2016. In the schedule provided to Kentucky, EPA intends to publish the state recommendations and any EPA modifications for a 30-day public comment period on or about February 3, 2016. States will have until April 8 to provide additional information as to why an EPA modification of the state’s recommendation is inappropriate. Final designations will be issued by July 2, 2016.