EPA Agrees to Act on Implementation Plans For More Than 20 States to Settle Lawsuits

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The Environmental Protection Agency has agreed to set deadlines to approve or deny state air pollution control plans affecting more than 20 states as part of settlements in two separate lawsuits by environmental groups (WildEarth Guardians v. Jackson, N.D. Cal., No. 3:11-cv-00190, notice of proposed consent decree filed 8/25/11; Sierra Club v. Jackson, N.D. Cal., No. 3:10-cv-04060, proposed settlement filed 8/10/11).

A proposed consent decree and a proposed settlement agreement would resolve two lawsuits filed by WildEarth Guardians and the Sierra Club in the U.S. District Court for the Northern District of California, according to notices EPA is set to publish in the Federal Register Sept. 1.

The proposed consent decree, filed with the court Aug. 25, would establish deadlines for EPA to approve or deny 20 “infrastructure” state implementation plans (SIPs) to implement, maintain, and enforce the 2006 national ambient air quality standards for fine particulate matter (PM-2.5).

The infrastructure SIPs contain the basic program elements necessary for a state to achieve compliance with air quality standards. Additional, specific measures are often required to address areas in a state that are out of attainment with the standards.

Fine Particulate Matter Case

The proposed consent decree would resolve a lawsuit that WildEarth Guardians and the Sierra Club brought against EPA.

The states at issue in the case are Alabama, Arizona, Arkansas, Connecticut, Delaware, Florida, Georgia, Indiana, Kentucky, Maine, Massachusetts, Mississippi, Nevada, New Hampshire, New Mexico, North Carolina, Ohio, South Carolina, Tennessee, and West Virginia.

“Without Infrastructure plans, citizens are not afforded full protection against the harmful effects of PM2.5,” the environmental groups wrote July 6 in an amended complaint for declaratory and injunctive relief.

An infrastructure SIP needs to be in place before air quality standards are fully implemented, Robert Ukeiley, an attorney in private practice representing the Sierra Club, told BNA Aug. 31.

One element of an infrastructure SIP is public notification of air quality, he said, so if EPA has not approved a SIP, air quality notifications may not be based on the most recent standards.

Ozone Case

A separate proposed settlement agreement filed Aug. 10 would set deadlines to resolve another lawsuit brought by the two environmental groups.

The Sierra Club and WildEarth Guardians said EPA did not take action to approve or deny 10 SIPs for the 1997 eight-hour ozone standards submitted by Arizona, Arkansas, Florida, Georgia, Maryland, Nevada, North Carolina, Oklahoma, Tennessee, and Virginia.

The groups also said the agency did not promulgate federal implementation plans after finding 12 states failed to submit complete SIPs for the ozone standards. The states are Alaska, Arizona, Arkansas, Florida, Georgia, Hawaii, Idaho, Maryland, North Dakota, Oregon, Virginia, and Washington.

The proposed settlement agreement also would require EPA to grant or deny a June 30 Sierra Club petition for rulemaking regarding excess emissions during periods of startup, shutdown, or malfunction.

Ukeiley said some SIPs have compliance exemptions during those periods, which the Sierra Club opposes.

EPA is seeking public comment on the proposed consent decree and the proposed settlement agreement for 30 days.

Comments may be submitted at http://www.regulations.gov using Docket No. EPA-HQ-OGC-2011-0618 for the fine particulate matter case and Docket No. EPA-HQ-OGC-2011-0722 for the ozone case.

By Jessica Coomes

For additional information from EPA about the proposals, contact Geoffrey L. Wilcox of the Air and Radiation Law Office in the Office of General Counsel at 202-564-5601 or wilcox.geoffrey@epa.gov .

The proposed consent decree in WildEarth Guardians v. Jackson is available at http://op.bna.com/fcr.nsf/r?Open=jcos-8l9n4b .

The July 6 amended complaint for declaratory and injunctive relief is available at http://op.bna.com/fcr.nsf/r?Open=jcos-8l9n4f .

The Aug. 10 second amended complaint for injunctive and declaratory relief in Sierra Club v. Jackson is available at http://op.bna.com/fcr.nsf/r?Open=jcos-8l9n4r .