BOARD: 

Men Amsler 

Chairman 

Mark S. Lue 

Vice Chairman 

BOARD: 

R Kenyon Wells 

Catherine B. Templeton, Director 

Promoting andprotccting the heaLth of the public and the environment 

July 20,20 12 

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 1 101A 

Washington, DC 20460 

Re: SC Petition 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 include the current 

boundaries of the Rock Hill-Fort Mill Area Transportation Study (RFATS) Metropolitan Planning 

Organization (MPO), the municipal planning organization for the eastern side of York County, South 

Carolina, within the Charlotte, North Carolina nonattainment designation for the 2008 ozone National 

Ambient Air Quality Standards (NAAQS). 

Since states are charged with canying out the requirements of the Clean Air Act (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 

(with the closest air quality monitor indicating levels well below the standard at 64 ppb), a back trajectory 

analysis, and extensive local voluntary programs that have contributed to 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 of the rationale used in making the designation 

decision, and (3) the inconsistent application of scientific rationale. It is our hope that this request and 

subsequent conversations will ultimately lead to an improved consultation process and a better 

understanding of the scientific rationale for these and future designation decisions. 

Justification for Request for Reconsideration: 

Rushed Decision 

We believe EPA made 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 

2600 Bull Street Columbia, SC 29'201 Phone: (803) 898-3432 wwwscdhecgov 
SC Petition for Reconsideration: 2008 Ozone NAAQS Designations 

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 of the 

designations, as published. 

By its own admission EPA states, "In those cases where timing constraints and the lack of additional 

information prevented a more detailed assessment, EPA believes that the default wind rose analyses, in 

conjunction with the remainder of the 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 EPA had 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 EPA TSD). This, taken in conjunction with 

EPA's response to DHEC's kreiging analysis,2 wherein EPA objects based on the fact that DHEC did not 

provide any "uncertainty analysis" for its methodology, further supports this request for reconsideration. 

To date, EPA has 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 strong presumption that the DHEC analysis should stand. Furthermore, if EPA 

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 fact this did not happen, coupled with virtually no specific rebuttal of materials submitted by 

DHEC, strongly implies that EPA did not spend adequate time to undertake 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 staff met 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-day response letter to EPA, 

DHEC expressly requested "continued discussions regarding these matters, especially if EPA receives 

boundary recommendations for this area that may be different from our submittal." We contend that both 

during and after the required 120-day process 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 of the rationale used in its decision making, particularly the back 

trajectoryfkreiging analyses. 

We expected EPA to fulfill its obligation and continue its commitment to transparency3 by providing us 

(as well as the public) with the scientific analyses, supporting documentation, and data, should they not 

EPA's Re~ponses to Signif;cunt Comments 2008 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 18,201 1, 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 

concur with 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 of the 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 scientific data 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 EPA to 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 an unwillingness 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 of Factors 

The "EPA acknowledges that the ozone monitor in York County is attaining the 2008 8-hour ozone 

NAAQS with 2009-201 1 data at 0.064 parts per million (ppm). The presence of an attaining monitor in 

York County does not establish whether emissions activity in York County is contributing to violations in 

nearby co~nties."~ 

We do not agree with the notion, implied by this statement, that any area containing a source of emissions 

should forever be considered as contributing to 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.7 The EPA has never defined nor 

established a bright line test for what is considered to contribute to a nonattainment area and courts have 

shown great deference to EPA's judgment in this regard. It therefore stands to reason and is entirely 

conceivable that despite whatever scientific argument is presented, EPA (and any subsequent court ruling) 

could find that any single source of emission 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 local jurisdictions to take remedial actions. 

The EPA, as outlined in the TSD, designated the Catawba Indian Nation Reservation as a separate 

"unclassifiable/attainment" area. The EPA's decision regarding this designation was correct. However, the 

4 See Exemption 5 of the Department of Justice's Freedom of Infmation Act Guide, May 2004, last accessed June 22,2012: 

http://~~.justice.gov/oip/exemption5.htm. 

5 Responses to SignGcant Comments 2008 Oxone NAAQS, 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, ReJponses to S&n$cant Comments 2008 Oxone NAA2S, April 30,201 2. 

David Flannery, DC Circuit Upholds US EPA's PM 2.5 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; as there are no monitors within 

the Reservation. However, using the same data as that submitted by DHEC, EPA determined that "there is 

no indication that activities on the Catawba Indian Nation Reservation are contributing 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 of the RFATS 

MPO as it also lacks an internal monitor and, more to the point, "EPA acknowledges that the ozone 

monitor in York County [immediately to the west of the RFATS area] is attaining the 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 contributor to ozone violations at monitors in the CharlotteGastonia-Salisbury CSA." According to the EPA findings, this is because nothing provided by South 

Carolina conclusively excludes transport of emissions from York County. 

We contend these diametrically opposed findings, creating an attainment area inside a surrounding 

nonattainment zone, are both inconsistent and irreconcilable. The two rationales contradict one another 

and indicate that EPA did not consistently apply the 5 relevant factors in making its decision. We believe 

EPA should not have based decisions of this significance on such vague and conclusory assertions that 

there is either "no indication" of contribution or that 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 Step 4 of its Guidance to Regions for Working 

with Tribes during the National Ambient Air Quality Standards (NAAQS) Designations ~rocess;~ 

"Consultation is generally defined as a process of meaningful communication and coordination between 

an EPA representative who is considered a decision-maker for the Agency (the Associate Division 

Director or above) and tribal officials or their designees." The EPA further explains this as an opportunity 

"to engage in a technical dialogue [emphasis added.] regarding the recommendations." Step 10 of the 

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 at the 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 Carolina had 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 Comments 2008 Orone NXAQS, Apd 30,2012. 

Page 4, of the EIJA Memo, Guihnce to Regions for Working lvith Tribes during the NafionalAmbient AirQualio Standardr 

(NAAQS) Designations Process, December 20, 201 1. 

lo Id. Page 5. 
SC Petition 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 scientific basis for our disagreements, it is highly likely a better choice could have been 

made for a nonattainment area boundary. 

By way of example, changes embodied in the recently released 20 10 census require modifications to be 

made in the RFATS MPO boundaries. The process of MPO boundary 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 of months. Smaller jurisdictional 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 other jurisdictional 

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 of these 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 addressing the concerns as outlined today. We look forward to the 

opportunity to discuss the technical aspects of EPA's decision in hopes that we can examine potentially 

smaller boundaries that may be more appropriate based on the 5 factors. Designating uncertain boundaries 

due to impending changes or drawing the boundaries larger than they 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, and to give real credence to South Carolina 

and EPA's commitment to transparency in decision making. We understand that EPA Region 4 has been 

named the lead Air Agency for the next two years, starting in October 20 12. 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 to release a revised 

ozone NAAQS in 20 13. 

Conclusion 

South Carolina's commitment to ensuring 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, and technical 

limitations continue to hinder progress toward efficient and effective ways to reduce air pollution, 

improve air quality, protect public health and meet all of the NAAQS. Substantial progress has been made 

in improving air quality by implementation of the CAA, but significant changes are needed to meet the 

challenges that lie ahead. Since 1990, science related to air quality management has evolved and many 

requirements from 20 years ago are not appropriate today. 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 request EPA reconsider its designation decision. At 

a minimum, EPA should grant DHECb request to have additional conversations aimed at appropriately 
SC Petition for Reconsideration: 2008 Ozone NAAQS Designations 

July 20,20 12 

Page 6 of 6 

explaining its rationale and consider alternative recommendations. We believe it questionable that any 

portion of York County be included in the EPA 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 of this process, but also of a potential designation that makes sense for all the parties 

involved that is based on sound scientific rationale and a consistent approach. 

Sincerely, A 

Myra C. Reece, thief I 

Bureau of Air Quality 

ec: Ms. Gwendolyn Keyes Fleming, Esq., Regional Administrator, US EPA Region 4 

Ms. Beverly Banister, Deputy Regional Administrator, 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