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EPA, Advocates Defend SO2 NAAQS Designations Consent Decree
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EPA, Advocates Defend SO2 NAAQS Designations Consent Decree

In briefs submitted October 13 to the U.S. Court of Appeals for the 9th Circuit, EPA and environmentalists are defending attacks on their consent decree to establish an extended schedule for the agency to designate all areas of the country as either attaining or in nonattainment with its 2010 sulfur dioxide (SO2) NAAQS (national ambient air quality standard), a pact some states oppose as they want to force immediate designations. The agency reached agreement with environmentalists on March 2 in the U.S. District Court for the Northern District of California to complete designation of areas for the SO2 NAAQS by the end of 2020, years after EPA should have done so under the schedule established by the Clean Air Act.

EPA's designation process was slowed by the need to establish a new monitoring network to assess compliance with the 2010 NAAQS, set at 75 parts per billion (ppb), which uses a novel one-hour averaging time compared to the prior SO2 standard set in 1971 which was 140 ppb over a day or 30 ppb annually. The settlement agreement establishing the deadline for EPA to complete designations resolved a deadline suit filed by advocates to force the designations.

But states that intervened in the litigation also seeking faster designations now say the deal does not go far enough. The six intervenor states, supported by another 16 states as amici, say that the timeline is still unlawfully long and that the settlement agreement effectively shut them out of the deadline agreement process. The intervenor states -- Arizona, Kentucky, Louisiana, Nevada, North Dakota and Texas -- are therefore appealing the case to the U.S. Court of Appeals for the 9th Circuit in the present round of litigation. They seek immediate designation of all areas, with areas unable to produce monitoring data designated as “unclassifiable,” a status that avoids the regulatory burden of a nonattainment designation.
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