The principal function of the Clean Air Act is to protect and enhance the quality of air resources within the United States for the purpose of promoting the public health and welfare and the productive capacity of the population. As such, the Act requires the Environmental Protection Agency to promulgate regulations establishing primary and secondary national ambient air quality standards (“NAAQS”) with respect to air pollutants (“criteria pollutants”) for which air quality criteria have been issued. The primary NAAQS must protect the public health with an adequate margin of safety, while the secondary NAAQS must protect the public welfare from any known or anticipated adverse effects associated with the presence of the air pollutant in the ambient air.
The Act requires each state to adopt and submit to the EPA a State Implementation Plan (“SIP”) that provides for the attainment and maintenance of the NAAQS. Under the Act, each state must designate those areas within its boundaries where the air quality meets the NAAQS for a particular pollutant as an “attainment” area. Similarly, an area that does not meet the NAAQS must be designated as a “nonattainment” area and an area that cannot be classified due to insufficient data must be designated as “unclassifiable.”
On October 20, 2009, the Indiana Department of Environmental Management (“IDEM”) requested the EPA to change the legal designation of the Indianapolis area from nonattainment to attainment with respect to the 1997 annual NAAQS for fine particulate matter (PM 2.5). The Act sets forth the requirements for redesignating a nonattainment area to attainment. Specifically, the Act allows redesignation in the event that the EPA (1) determines that the area has attained the applicable NAAQS, (2) has fully approved the applicable SIP for the area, (3) determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from the implementation of the applicable SIP, federal emission control regulations, and other permanent and enforceable reductions, (4) has fully approved a maintenance plan for the area, and (5) has determined that the state containing the area has met all requirements applicable to the area for the purpose of redesignation.
On September 27, 2011, the EPA approved IDEM’s request to change the legal designation of the Indianapolis area (including portions of Hamilton, Hendricks, Johnson, Marion, and Morgan Counties) from nonattainment to attainment with respect to the 1997 annual NAAQS for fine particulate matter. In addition, the EPA approved Indiana’s maintenance plan pertaining to fine particulate matter for the Indianapolis area as a revision to Indiana’s SIP. The maintenance plan is designed to keep the Indianapolis area in attainment with respect to the 1997 annual NAAQS for fine particulate matter through 2025.
While the EPA approved IDEM’s request, it reserved the right to withdraw the approval upon receipt of any adverse public comments. The EPA received only three adverse public comments. One-page comments were received from the Midwest Environmental Defense Center, Inc., Valley Watch, and Elizabeth and Hannah Crowe. The comments are identical and urge the EPA to disapprove IDEM’s request. Each claim, with minimal explanation, that Indiana’s proposed program would be inadequate to ensure that air quality does not degrade. Accordingly, on November 14, 2011, the EPA withdrew its approval. The EPA will address the adverse comments in a subsequent final action and will not institute a second round of public comment. Once EPA addresses the comments, it is likely that EPA will reissue the redesignation.
For more information, please contact David Guevara or any member of Taft's Environmental Practice Group.