BOARD: MenAmsler Chairman Mark S. Lue Vice Chairman BOARD: R Kenyon Wells

CatherineB. Templeton,Director Promoting andprotccting the heaLth of the public and the environment July 20,2012 L. Clarence Batts,Jr.
Ann B. Kirol, DDS
John 0.Hutto, Sr., MD

Lisa P. Jackson, Administrator United States Environmental Protection Agency Headquarters Ariel Rios Building 1200 Pennsylvania Avenue NW Mail Code 1101A Washington, DC 20460

Re: SCPetition for Reconsideration: 2008 Ozone NAAQS Designations

Dear Administrator Jackson:

The South Carolina Department of Health and Environmental Control (DHEC)respectfully requests that the Environmental Protection Agency (EPA) reconsider its designation decision to includethe current boundaries ofthe Rock Hill-Fort Mill Area Transportation Study (RFATS)Metropolitan Planning Organization (MPO), the municipal planning organization for the eastern side ofYork County, South Carolina, within the Charlotte, North Carolina nonattainment designation forthe 2008 ozone National Ambient Air Quality Standards (NAAQS).

Since states are charged with canying out the requirements ofthe CleanAirAct (CAA), EPA should give great deference to state recommendations for designating areas for the NAAQS. In a letter to EPA on February 29,2012, DHEC requested that York County, in its entirety, be designated attainment for the 2008 8-hour ozone NAAQS. DHEC cited many facts for its attainment recommendation including improved air quality in the area, significant reductions in emissions since the ozone designations in 2004 (withthe closest air quality monitor indicating levelswell below the standard at 64 ppb), a back trajectory analysis, and extensive local voluntary programs that have contributedto overall improvement of air quality in the region.

As such, we are writing to request that EPA reconsider this decision based on these major concerns: (1) the appearance that the determination was rushed and made without adequate time to fully consider DHEC's submissions, (2)EPA has provided insufficient consultation and detail in its Technical Support Documentation (TSD) to give us a clear understanding ofthe rationale used in making the designation decision, and 

### (3) the inconsistent application of scientific rationale. It is ourhope that this request and subsequent conversations will ultimately lead to an improved consultation process and a better understanding ofthe scientific rationale for these and future designation decisions. 

### Justification for Request for Reconsideration:

Rushed Decision

We believe EPAmade a final designation decision in a manner that did not adequately consider all the evidence
-primarily based on inadequate time to review South Carolina's recommendation. The EPA published its decision nearly a month before the deadline to issue the 2008 8-hour ozone NAAQS

SOU'I'El CAKOLINA IIEPAR'TMEN'L OF HEAL'I'H AND ENVIKONMEN'I'AI, (:ONrI'K0L 2600BullStreet Columbia,SC29'201 Phone: (803) 898-3432 wwwscdhecgovSCPetition for Reconsideration: 2008 Ozone NAAQSDesignations July 20,2012 Page 2 of 6 designations which resulted in very little time to consider critically important back trajectory and other scientific data submitted by DHEC. We feel that this fact alone provides a basis for reconsideration ofthe designations, aspublished.
By its own admission EPA states, "In those cases where timing constraints and the lack of additional information prevented a more detailed assessment, EPAbelieves that the default wind rose analyses, in conjunction with the remainder ofthe multi-factor analysis, can provide an adequate assessment of appropriate boundaries."' DHEC did provide wind rose and back trajectory analysis in its February 29, 2012, recommendation to EPA. However, during the February 9,2012, consultation meeting, EPA referred to and referenced a back trajectory analysis that EPAhad performed. Despite a request by DHEC during the February 9th meeting, this referenced back trajectory analysis was never shared with DHEC (either within the 120-day consultation period or later in the EPATSD). This, taken in conjunction with EPA's response to DHEC's kreiging analysis,2wherein EPA objects based on the fact that DHEC did not provide any "uncertainty analysis" for its methodology, further supportsthis request for reconsideration.

To date, EPAhas not disclosed any current data or evidence to DHEC that questions the South Carolina methodology or supports any EPA alternative analysis. Absent such analysis or data to the contrary, we believe there should be a strongpresumption that the DHEC analysis should stand. Furthermore, ifEPA applied its own alternative rationale as part of its consideration on designations, it should have been a part of the TSD andlor, at a minimum, have been presented and discussed during the comment response period. The factthis did not happen, coupled with virtually no specific rebuttal ofmaterials submitted by DHEC, strongly implies that EPA did not spend adequate time toundertake a thorough analysis of all the factors in developing their final boundary determinations.



### Insufficient Consultation and TSD

As previously mentioned, during the 120-day consultation period, DHEC and EPA Region 4 staffmet to discuss South Carolina's proposed attainment recommendation.This meeting was productive in that we were able to lay out DHEC's rationale and gather initial EPA feedback in crafting South Carolina's 120- day response to EPA's initial recommendation. However, based on the understanding that at least two other affected entities would also be submitting separate recommendations, we left this meeting expecting there to be additional opportunities for consultation after all the recommendations were received and prior to a final designation being made. Further, in its February 29,2012, 120-dayresponse letter to EPA, DHEC expressly requested "continued discussions regarding these matters, especially ifEPA receives boundary recommendations forthis area that may be different from our submittal." We contend that both during and after the required 120-dayprocess for consultation set out by CAA Section 107(d),EPA did not adequately address requests for meetings, conference calls with headquarters, and discussions aimed at a meaningful understanding ofthe rationale used in its decision making, particularly the back trajectoryfkreiging analyses.

We expected EPA to fulfill its obligation and continue its commitment to transparency3by providing us (as well asthe public) with the scientific analyses, supporting documentation, and data, should they not

EPA's Re~ponses to Signif;cuntComments2008 O~one NAAQS,~pril~0,'2012, 3.1.3 hfeteorology, page 13,Docket Number EPA-HQ-OAR-2008-0476.

Id at page 43.
3 See Section 2 on Public Participation of the President's January 18,2011,Executive Order 13563 -Improving Regulation and Regulatory Review, last accessed February 17,2012: httv://wurw.whitehouse.~v/the-pressoffice/2011 /01/18/im~ro~~1g.-replation-and-regulator.r7-rev1eu7-executive-order.SC Petition for Reconsideration: 2008 Ozone NAAQS Designations July 20,2012 Page 3 of 6

concurwith South Carolina's recommendation. While we and EPA were able to discuss some issues in conference calls, insufficient feedback on the rationale used in EPA's decision was sup lied to DHEC. In 

# l' fact, EPA stated that much ofthe decision regarding the designation was 'deliberative' and could not be shared. While we understand the purpose behind shielding some deliberative processes from public disclosure, this policy should not permit EPA to reject a state's submission of scientificdata and technical analysis without disclosing any countervailing 

### EPA data, information, or analysis relied upon to question the state's submitted facts and/or analysis.

We have yet to be made aware of any deficiencies in the DHEC recommendation. The 16-page TSD and 4-page commentlresponse document5 does not provide enough detail to give us a clear understanding of the rationale used in making the designation decision. We acknowledge the failure of EPAto undertake more thorough and detailed discussions aimed at reconciling their assessment with that of DHEC may simply be due to overwhelming demands on EPA staff and does not reflect anunwillingness to ultimately release the information requested. Nonetheless, this possibility only reinforces, rather than mitigates the need to complete a meaningful consultation between the two agencies and a reconsideration of EPA's decision. Inconsistent Application ofFactors

The "EPA acknowledges that the ozone monitor in York County is attaining the 2008 8-hour ozone NAAQS with 2009-201 1data at 0.064parts per million (ppm). The presence of an attaining monitor in York County does not establish whether emissions activity in York County is contributingto violations in nearby co~nties."~

We donot agreewith the notion, implied by this statement, that any area containing a source of emissions should forever be considered as contributingto far removed violations unless and until it can be conclusively proved otherwise. We strongly believe DHEC has adequately demonstrated, through scientific analysis that York County does not contribute (significantly or otherwise)to violations elsewhere. Still, we are keenly aware that we may be faced with a difficult burden of proof.

The word "contribute" in CAA Section 107(d)(l)(A)(i)is ambiguous.7The EPA has never defined nor established a bright linetest for what is consideredto contributeto a nonattainment area and courts have shown great deference to EPA's judgment in this regard. It therefore standstoreason and is entirely conceivable that despite whatever scientific argument is presented, EPA (and any subsequent court ruling) could find that any single source ofemission could contribute to remote violations and, thereby,justify virtually any nonattainment area. Yet, such a position would not seem prudent or productive for EPA. If a nonattainment area can never definitively demonstrate compliance and subsequently achieve attainment status,there is little incentive for states and localjurisdictions totake remedial actions.

The EPA, asoutlined in the TSD, designated the Catawba Indian Nation Reservation as a separate "unclassifiable/attainment" area. TheEPA's decision regarding this designation was correct. However, the

4 See Exemption 5 of the Department of Justice's Freedom 

### of InfmationAct Guide,May 2004, last accessedJune 22,2012: http://~~.justice.gov/oip/exemption5.htm. 5 Responses toSignGcant Comments2008 OxoneNAAQS,April 30, 2012, and Final Area Technical Support Documents, Charlotte-Rock W,NC-SC, last access July 16,2012: ht~://www.eua.eo~/ozonedesimations/2008standards/documents/R4 Charlotte TSD Final.pdf. 6 See Page 43, ReJponsestoS&n$cant Comments2008 OxoneNAA2S,April 30,201 2. David Flannery, DC Circuit Upholds US EPA's PM2.5 Nonattainment Designations,July 17,2009.SC Petition for Reconsideration: 2008 Ozone NAAQS Designations July 20,2012 Page 4 of 6

two tracts of land constituting the Catawba Indian Reservation are nearly in the middle of and wholly surrounded by the current RFATS MPO boundaries that were used to define a nonattainment area in York County. There is no actual air quality data pertaining to the Indian lands; asthere are no monitors within the Reservation. However, using the same data asthat submitted by DHEC, EPA determined that "there is
no indication that activities on the Catawba Indian Nation Reservation arecontributing to the violations at the monitors in the Charlotte-Gastonia-Salisbury CSA."

It would only seem logical that the same or similar reasoning would apply to most or all ofthe RFATS MPO as it also lacks an internal monitor and, more tothe point, "EPA acknowledges that the ozone monitor in York County [immediatelyto the west ofthe RFATS area] is attainingthe 2008 8-hour ozone NAAQS with 2009-201 1 data at 0.064 parts per million (ppm)."8 However, in stark contrast to its determination regarding the tracks of land in the Catawba Reservation, EPA notes in the TSD, "York County cannot be ruled out as a potential contributorto ozone violations at monitors in the CharlotteGastonia-Salisbury CSA." According to the EPA findings, this is because nothing provided by South Carolina 

### conclusivelyexcludes transport of emissions from York County.

We contend these diametrically opposed findings, creating 

### an attainment area inside a surrounding nonattainment zone, areboth inconsistent and irreconcilable. The two rationales contradict one another and indicate that EPA did not consistently applythe 5 relevant factors in making its decision. We believe EPA should not have based decisions ofthis significance on such vague and conclusory assertions that there is either "no indication" of contribution orthat a "potential" for contribution exists.

Alternative Jurisdiction Boundaries

Had the 120-day consultation period been more meaningful, the outcome in this decision might also have been materially different. The EPA defines consultation in Step4 of its 

### Guidance to Regions for Working with Tribesduring theNationalAmbientAir QualityStandards (NAAQS)Designations ~rocess;~ "Consultation is generally defined as a process ofmeaningful communication and coordination between
an EPArepresentative who is considered a decision-maker for theAgency (the Associate Division Director or above) and tribal officials ortheir designees." The EPA further explainsthis as an opportunity "to engage in a 

### technical dialogue [emphasis added.]regarding the recommendations." Step 10 ofthe
same memo goes on to state, "When requested, consultation should be conducted after the 120-day letter is sent. This is especially important where a tribe disagrees with EPA's intended designation.""

While we realize that this Guidance is directed atthe tribal designation process, we contend that South Carolina has yet to understand the scientific rationale used in this decision, despite its many requests. Ultimately we look forward to continued discussion aimed at understanding not only the true nature of air quality in this area, but also the designation process.

Because we have yet to be made aware of any specific claimed deficiencies in DHEC's back trajectory analysis or in other materials submitted by DHEC and because, we did not, anticipate different findings related to Indian lands and the area immediately surrounding them, South Carolinahad no real reason to offer alternatives for a more compact nonattainment zone. The findings and recommendations we submitted were focused on York County as a whole because the data and analysis supported such a focus.

- - - - 8 See Page 43, Reqonses to Significant Comments2008 OroneNXAQS,Apd30,2012.

Page 4, of the EIJA Memo, Guihnce to Regions for Workinglvith Tribesduring theNafionalAmbientAirQualioStandardr (NAAQS)DesignationsProcess, December 20, 2011.
loId. Page 5.SCPetition for Reconsideration: 2008 Ozone NAAQS Designations July 20,2012 Page 5 of 6

The EPA has clearly disagreed. However, had the consultation process afforded a greater opportunity for understanding the scientificbasis for our disagreements, it is highly likely a better choicecould have been made for a nonattainment area boundary.
By way of example, changes embodied in the recently released 20 10census require modifications to be made in the RFATS MPOboundaries. The process ofMPOboundary change is actually already underway and must be completed early next year. Consequently, the very boundary designated by EPA will be changing in a matter ofmonths. Smallerjurisdictional units, like townships, were used as nonattainment boundaries in neighboring North Carolina and the same and similar boundaries exist and could also be used in South Carolina. Alternative and more compact boundaries based on otherjurisdictional boundaries could totally eliminate the inconsistent treatment of the Catawba Indian Nation lands as compared to adjacent properties and other included areas even farther away from the monitors showing violations in North Carolina. None ofthese factors have yet been considered because they have yet to be discussed.

We welcome continued discussions with EPA Region 4 staff and headquarters and invite each to participate in follow up talks aimed at addressingthe concerns asoutlined today. We look forward tothe opportunity to discuss thetechnical aspects ofEPA's decision in hopes that we can examine potentially smaller boundaries that may be more appropriatebased on the 

### 5 factors. Designating uncertain boundaries due to impending changes or drawing the boundaries larger thanthey need to be, based on an incomplete examination of all available data would place York County and the rest of South Carolina at an unfair economic disadvantage. Instead we'd like to discuss potential boundaries that might rely on more appropriate jurisdictional boundaries.
Furthermore, we also look forward to the opportunity to understand the designation process, to inform the consultation process such that it becomes more meaningful, andto give real credence to South Carolina and EPA's commitment totransparency in decision making. We understand that EPA Region 4 has been named the leadAir Agency for the next two years, starting in October 2012.As such we are committed to supporting this opportunity in any way we can; with the ultimate goal of evaluating needed improvements in the current process and proposing meaningful and practical solutions that reinforces South Carolina and EPA as co-regulators. This is especially important given the fact that EPA is expected torelease a revised ozone NAAQS in 2013.

Conclusion

South Carolina's commitment toensuring clean air for our citizens has been clearly demonstrated by DHEC's achievement of compliance with all NAAQS before or within statutorily mandated timeframes, but meeting the new standards will be extremely difficult. Statutory, regulatory, scientific, andtechnical limitations continue to hinder progress toward efficient and effective ways toreduce airpollution, improve air quality, protect public health and meet all ofthe NAAQS. Substantial progress has been made in improving air quality by implementation ofthe CAA,but significant changes are needed to meet the challenges that lie ahead. Since 1990, sciencerelated to air quality management has evolved and many requirements from 20years ago are not appropriatetoday.A paradigm shift is needed, a shift away from a process that favors paperwork and procrastination toward a process that favors pollution reduction and public health.

It is for the reasons outlined in this document, that we requestEPA reconsider its designation decision. At a minimum, EPA should grant DHECb request tohave additional conversations aimed at appropriatelySC Petition for Reconsideration: 2008 Ozone NAAQS Designations July 20,2012 Page 6 of 6 

### explaining its rationale and consider alternative recommendations. We believe it questionable that any portion of York County be included in theEPA 

### designation; however ifsorne designation is necessary,we believe it should only include apotentially smaller nonattainment boundary that would be the result of consistent application of the 5 

### factors.

We look forward to the commitment of continued discussions aimed at establishing not only an understanding ofthis process, but also of a potential designation that makes sense for all the parties involved that isbased on sound scientific rationale and a consistent approach.

Sincerely, A

Myra C. Reece, thief 

### I Bureau ofAir Quality



### ec: 

### Ms. Gwendolyn Keyes Fleming, Esq., RegionalAdministrator, US EPA Region 4 Ms. Beverly Banister, Deputy RegionalAdministrator, US EPA Region 4 Chief Bill Harris, Catawba Indian Nation Mr. Randy Imler, Executive Director, Catawba Council of Governments Mr. James Baker, Manager, York County Mr. Funderburk, Mayor, Fort Mill, South Carolina Mr. Echols, Mayor, Rock Hill, South Carolina Ms. Catharine B. Templeton, Director, DHEC Mr. Robert W. King, Jr., P.E., Deputy Director, DHEC-EQC Mr. Harry Mathis, Director, DHEC-EQC Region 

### 3

cc: Governor Nikki Haley Congressman James E. Clyburn Congressman Mick Mulvaney Congressman Trey Gowdy Congressman Joe Wilson Congressman Jeff Duncan Congressman Tim Scott Senator Lindsey 

### 0.Graham Senator Jim W. DeMint