STATE OF MISSISSIPPI

PHIL BRYANT

GOVERNOR

MISSISSIPPI DEPARTMENT OF ENVIRONMENTAL QUALITY

TRUDY D. FISHER, EXECUTIVE DIRECTOR

July 17, 2012

Ms. Lisa Jackson

Administrator

U.S. Environmental Protection Agency

USEPA Headquarters

Ariel Rios Building

1200 Pennsylvania Ave., N.W.

Washington, D.C. 20460

Re: Mississippi Petition for Reconsideration of the 2008 8-Hour Ozone Non-attainment

Designation for the Northern Portion of DeSoto County, Mississippi

Dear Ms. Jackson:

Attached is the Mississippi Petition for Reconsideration regarding the EPA 2008 8-hour

ozone non-attainment designation for the northern portion of DeSoto County, Mississippi. This

petition addresses each of the factors listed in the EPA Technical Support Document for the

Memphis TN-MS-AR metropolitan area.

For the reasons set forth in the petition, Mississippi requests that EPA reconsider its

decision to include the northern portion of DeSoto County in the Memphis non-attainment area.

EPA can, within its discretion, recognize the errors made in its designation decision, and more

appropriately apply the best and recent scientific data to exclude DeSoto County. Exclusion

would be consistent with prior EPA decisions, and would be well supported by the scientific

evidence adduced by the Mississippi Department of Environmental Quality. Further, the case-bycase evaluation of the guidance factors supports the exclusion of DeSoto County and would not

be inconsistent with the treatment of any other entities within EPA's regulatory control.

Thank you for your consideration.

Trudy Fisl€r

Executive Director

Attachment

cc: Ms. Gwendolyn Keyes Fleming, Regional Administrator, U.S. EPA Region 4 (w/attachment)

POST OFFICE Box 2261 • JACKSON, MISSISSIPPI 39225-2261 • TEL: (601) 961-5000 • FAx: (601) 961-5794 • www.deq.state.ms.us

AN EQUAL OPPORTUNITY EMPLOYER
memorandum 

Area Designation for the 2008 Revised Ozone National Ambient Air

Quality Standards” as the nine factors are grouped by EPA in its designation Technical

Support Document. In addition, MDEQ provides additional, general objections and

comments.

I. GENERAL OBJECTIONS

A. Failure to rely on or to otherwise consider most recent certified data

Prior to making its final designations, EPA indicated that in order for it to consider air

quality data for the most recent time period of 2009-2011, it would need to receive thestates’ certified data by February 29, 2012. Mississippi certified its data for the 2009-

2011 time period on January 31, 2012. Tennessee also certified its data for the 2009-2011 time period. However, because Arkansas did not certif’ its data for 2009-2011,EPA only considered the 2008-20 10 data in making its designation for the MS-TN-AR

designations.

Mississippi asserts that EPA should have considered the most recent data, as it is the

best scientific evidence of air quality in Mississippi and Tennessee at the current time.

EPA stated unequivocally, indeed reiterated, in its Responses to Significant Comments2008 Ozone NAAQS, April 30, 2012: “As stated in the previous response, we are relying

on the most recent three years of certified data to designate areas for the 2008 NAAQS.”

Nonetheless, EPA ignored the most recent three years of certified data from Mississippi

and Tennessee in making its designations.

Even if EPA did not rely on the 2009-2011 data exclusively in making its

designation, it could and should have relied on the data as proof ofthe facts and dataasserted by Mississippi in its significant comments to the EPA preliminary designations.

The most recent data demonstrates conclusively that DeSoto County does not impact theair quality in Tennessee as all of the Tennessee monitors have been certified to be in

attainment during the 2009-2011 time period.

Mississippi is and has always been in attainment. The most recent certified data

demonstrates overwhelmingly that despite growth in population in DeSoto County, theTennessee monitors are not affected by Mississippi. Indeed, both Mississippi and

Tennessee demonstrated by certified data that both states are in attainment. It defies

logic for EPA to ignore this most recent data and draw conclusions based on old data

when those conclusions are proven unequivocally to be wrong by the most recent

certified data. The result is unnecessarily punitive to Mississippi and DeSoto County.

I
Since that time, DeSoto County has not only had those measures in place, but the data

indicate that DeSoto is making great strides in its control of emissions, as is evidenced by

the numbers provided in MDEQ’s TSD. Despite representations of EPA staff, and

despite the proof ofthe success ofthose voluntary initiatives, EPA failed to recognize thesignificance ofthe reduced emissions or to give DeSoto County any consideration

thereof.

The approach which EPA has taken in making its boundary determinations is only

specified in the CAA for serious areas. DeSoto County has complied with all EPA

requests to voluntarily reduce ozone emissions, and relied on s representations thatthe same would be favorably considered when designation boundaries were determined.

EPA should reconsider it designation of nonattainment for DeSoto County, and designateit as attainment. At a bare minimum, EPA should designate DeSoto County asattainment/unclassifiable.

C. EPA ‘s designation ofnonattainment in 2012 is evidence ofthe arbitrary

and capricious nature ofthe agency’s action after the designation of attainment in

2004.

EPA responded to Mississippi’s argument that DeSoto County was not included

within the boundary for the Memphis, TN-MS-AR nonattainment area for the 1997 ozone

NAAQS, and therefore should not be included in the 2012 boundary designations by

stating two things, both of which are in error.

First, EPA asserts that “EPA must analyze the situation anew for purposes of the

new, more stringent NAAQS promulgated in 2008, based on the most recent information

now available.” As set forth above, EPA did not rely on the most recent information

available for DeSoto County, instead relying on information that is three years old. The

most recent information available demonstrates conclusively that not only is DeSoto

County meeting the more stringent standard, its numbers continue to trend downward.

Second, EPA asserts that “[t]here has been growth throughout the entire Memphis

area since EPA last designated ozone areas and the technical information [EPA] is

relying on now, in 2012, is different than the information we relied on in 2004 for the

1997 NAAQS.” Mississippi maintains that the numbers presented refute the conclusion

that EPA has drawn — despite the population growth and increase in VMT’s — the

numbers for DeSoto County have gone down. Not only are the numbers at least as good

as those from the 2004 decision, they are better.

2
TSD.

II. OBJECTIONS TO SPECIFIC FACTOR ANALYSIS

Factor 1—Air Quality Data

In consideration ofthis factor, only air quality data should be used to provide a rationale for determining nonattainment boundaries. Meteorological conditions should

not be analyzed under this factor; however, because EPA did include it, these comments

will be addressed.

In EPA’s TSD, EPA cites comments from Arkansas concerning the ArkansasTennessee-Mississippi Ozone Study (ATMOS). EPA states that a key point ofthis

analysis indicates that the monitoring site with the maximum design value for the area

varies from year to year based on the frequency of meteorological conditions that are

conducive to high ozone concentrations at the specific monitoring sites. However, EPA

failed to acknowledge that DeSoto County has never had the highest ozone design value

in the Memphis area for any year, going back to at least the 1995-1997 period. Further,

the results ofthe ATMOS study also showed that DeSoto County had less than a 1 ppb contribution to the ozone levels in the Memphis area. MDEQ asserts this is not a

sufficient contribution, even when combined with the other nine factors, to warrant a

designation of nonattainment. Because EPA cites this study as part of their rationale to

include DeSoto County in the Memphis nonattainment area, all ofthe results ofthis study should be used - not just the parts that seem to justify their position. If it is so used, thestudy will plainly support Mississippi’s position that DeSoto County does not sufficiently contribute to the emissions in Shelby County, Tennessee.

The following table from the ATMOS study’ shows the projected 2010 ozone

design value at the Memphis-Frayser monitor would be 88.14 ppb including DeSoto

County emissions. The projected design value at the same site with no DeSoto County emissions would be 87.35 ppb. This means that DeSoto County’s contribution to the

ozone concentrations at the Memphis-Frayser monitoring site was 0.79 ppb. However,

the actual 2010 design value at the Frayser monitor was 76 ppb, meaning that the model

greatly over estimated ozone concentrations, thus DeSoto County’s actual contribution is

likely even lower. While the modeling was based on a 1999 episode, DeSoto County’s

1 The ATMOS information can be found at http://atrnos.saintl.com. The results are in an interactive

software format, where inquiries can be made by the user. It can also be found in the MDEQ TSD

submitted to EPA on January 27, 2004.

3
2010 Sensith.ity: Zero

Anthropogenic Emissions from

DeSoto County

Revised Baseline—201 0

(NONROAD 2002 Update)

Concentration (ppb)

The ATMOS results show a minimal contribution 0.79 ppb to the Memphis

Frayser monitor in 1999. Based on the latest available data, DeSoto County VOCemissions decreased and NOx emissions remained about the same. Thus, the DeSoto

County ozone contribution should be less than 0.79 ppb currently.

It is clear that the ATMOS projected design values were overestimated; however

the model overestimated the amount of ozone produced by the emissions because it

started with a higher baseline. In short, that means that ozone concentrations were much

higher at that time. This also demonstrates that more emission reductions have occurred

since that time than what the model accounted for, resulting in lower ozone

concentrations.

The ATMOS model demonstrates how negligible contributions from DeSoto

County were, even when ozone values were higher. The emissions have stayed the same

for NOx and are lower for VOCs since the model was run. Therefore, DeSoto County’sozone contribution is even lower now.Factor 2— Emissions and Emissions Related Data

0 10 20 30 40 50 60 70 80 90 100

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which showed the locations ofthe monitors in the area along with both the major

emissions sources the locations ofmajor interstates, railways, waterways, ports and truck

centers. The map and supporting narrative demonstrates conclusively that the areas and

activities — point sources, rail centers, river ports, major interstate intersections and truckcenters- that generate significant emissions are not only concentrated in Shelby and

Crittenden Counties, but also are in very close proximity to the monitors in Shelby andCrittenden Counties with the highest ozone readings.

In particular, the amount of commerce-related activities in the area that are primarily

in Shelby and Crittenden Counties rather that DeSoto County is shown. This information

was, in summary:

• Interstate 40 which is one ofthe largest trucking routes in the nation and 1-55

intersect in Shelby and Crittenden Counties.

• Crittenden County is the number one point of diesel sales in the country with nine

truck centers in relatively close proximity to the Crittenden county monitor.

• The Memphis International Airport with the FedEx “super hub” is located in

Shelby County.

• Memphis is the number three rail center in the United States with large intermodal

facilities in Shelby and Crittenden Counties.

• The International Port of Memphis is the fourth largest inland port in the United

States.

This puts the large majority of emissions generating activities in Shelby and

Crittenden Counties, and not in DeSoto County. In the final TSD, EPA stated it

“considered all the additional information provided by the states in the analysis”;

however, EPA did not specifically address or comment on these emissions sources and

their contribution to the ozone levels in the area.

EPA has recognized that raw numbers and percentages of commuters and VMT’s

“does not adequately take into account ... [a] large volume of diesel truck traffic[] on the

major highways running through th[e] area.” ATK Launch Systems, Inc. v. EPA, 669F 3d 330 (D.C. Cir., 2012). Because these factors are factors on which EPA substantiallyrelied in making its boundary determination, it is incumbent upon EPA to recognize and

properly assess the impact ofthis commerce- related traffic in Shelby and Crittenden

Counties.

5
DeSoto County has experienced 

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per year since 2000. However, the growth rate has slowed significantly since 2006. The

EPA-TSD cites a growth rate of 48% over the last decade, but using a percentage based

rate is misleading due to the county’s relatively low 2000 population. The actual

increase in numbers is 53,000 people over the last decade. Compared to the populationof Shelby County (927,000) or the entire Memphis MSA (1,316,000), the growth is not

significant. Consider ifthe population of DeSoto County were only 100 people, but that

100 doubled to 200 over the same ten (10) year period. Even though the growth rate

would be 100%, that 100% would still be so minimal that the overall impact would not

even register. Using growth rate percentages is not a reasonable measure of sufficientcontribution — raw numbers are by far the best scientific evidence.

EPA states that “Rapid population or vehicle miles traveled (VMT) growth in a

county on the urban perimeter signifies increasing integration with the core urban area,

and indicates that it may be appropriate to include the county/area associated with thearea source and mobile source emissions as contributing to the area violation, even ifthe

monitor in that county is attaining the ozone NAAQS.” However, EPA provided nodocumentation or reference in support of this statement. Further, while DeSoto County

has experienced growth, the ozone values in the County, as well as other monitors in the

area, have actually steadily decreased. The following chart (designated as Chart 7 of

MDEQ’s Response to EPA’s 120 Day Letter) shows the growth trend and the ozonevalues since 2000. Ifthe population growth in DeSoto County were a contributing factor,

then it would be evidenced by increased ozone readings by the DeSoto County monitor,

which obviously hasn’t occurred.

6
—---DeSoto - Shelby - Orgill —Shelby - Frayser —Crittenden — — DeSoto Population

Chart 7: DeSoto County Growth versus Ozone Design Values

Simple deductive reasoning therefore disproves EPA’s unsupported claim that the

increase in population contributes to increased ozone levels. Not only has the increased

population of DeSoto County not resulted in increased monitor readings, DeSoto Countyhas maintained the lowest averaged monitor reading within the area. EPA failed to

acknowledge this error of fact and reason, as supported by the best available science.

C. Traffic and Commuting Patterns

Again, EPA states that “Rapid population or vehicle miles traveled (VMT) growth in

a county on the urban perimeter signifies increasing integration with the core urban area,and indicates that it may be appropriate to include the county/area associated with the

area source and mobile source emissions as contributing to the area violation, even ifthe

monitor in that county is attaining the ozone NAAQS.” Again, EPA provided no

documentation or reference in support ofthis statement. Further, while DeSoto County

has experienced growth, the ozone values in the County, as well as other monitors in the

area, have actually steadily decreased. EPA’s conclusion is simply not supported by the

best scientific evidence.

EPA also failed to examine or address the much higher than average commercial

heavy duty diesel traffic in both Shelby County, TN and Crittenden County, AR. Heavy

duty diesel truck emissions are a significant source ofNOx emissions. The followingfigure (designated as Figure 3 of MDEQ’s Response to EPA’s 120 Day Letter) shows the

truck traffic along the interstates across the southeast portion ofthe country.

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2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Year

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Interstate

Non-Interstate

FAF Truck VolumelDay

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50000 2000 12500

Figure 3: Average Daily Heavy Duty Diesel Truck Traffic (2007

Interstate 40 is one ofthe busiest routes for heavy duty diesel truck traffic in the

nation, and passes directly through Shelby and Crittenden Counties. Along 1-40 over

50% ofthe traffic in Crittenden County and 35% in Shelby County is from heavy duty

diesel trucks. In DeSoto County, 18% ofthe rural interstate traffic along 1-55 is from

heavy duty diesel trucks, which is slightly below the national rural interstate average of

19%. It should be noted that, as seen in Figure 2 of MIJEQ’s Response to EPA’s 120

Day Letter, the Shelby County - Frayser monitor and the Crittenden County Monitor are

both in close proximity to Interstate 40.

In addition to 1-40, Shelby County and Crittenden County have significant

commerce related traffic. The Memphis International Airport is located approximately

three miles south ofthe central business district of Memphis and is home to the mainFedEx Express global “Super Hub”, which processes a significant portion of the freight

carrier’s packages. The airport also serves as a hub for Delta Airlines.

The International Port of Memphis is fourth largest inland Port in the United

States and covers the Tennessee and Arkansas sides of the Mississippi River. The

National Highway System Routes

8
EPA also relied on the 2008 National Emissions Inventory (NET) to supply the

emissions data. The 2008 NEI incorrectly lists DeSoto County as having higher heavyduty diesel truck emissions than Crittenden County. Since the amount of heavy dutydiesel truck traffic, and associated heavy duty diesel truck VMT is higher in CrittendenCounty, the 2008 NEI is incorrect in representing DeSoto County as having higheremissions associated with this sector. Thus, EPA relied in part on erroneous informationin making its boundary designation.

D. Growth Rates and Patterns

DeSoto County has experienced moderate growth, approximately 5% per year since

2000. However, the growth rate has slowed significantly since 2006. The EPA-TSDcites a growth rate of 48% over the last decade, but using a percentage based rate is

misleading because ofthe counties relatively low 2000 population. The real increase innumbers is 53,000 people over the last decade. Compared to the population of Shelby

County (927,000) or the entire Memphis MSA (1,316,000), the growth is not significant.

EPA states that “Rapid population or vehicle miles traveled (VMT) growth (see

below) in a county on the urban perimeter signifies increasing integration with the core

urban area, and indicates that it may be appropriate to include the county/area associatedwith the area source and mobile source emissions as contributing to the area violation,

even ifthe monitor in that county is attaining the ozone NAAQS.” However, EPA

provided no documentation or reference to prove this statement. While DeSoto County

has experienced growth, the ozone values in the County, as well as other monitors in the

area, have actually decreased steadily. The following chart (designated as Chart 7 of

MDEQ’s Response to EPA’s 120 Day Letter) shows the growth trend and the ozonevalues since 2000. Ifthe population growth in DeSoto County were a contributing factor,then it would be evidenced by increased ozone readings by the DeSoto County monitor,which obviously hasn’t occurred.

9
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———DeSoto Shelby -Orgill —Shelby - Frayser —Crittenden — — DeSoto Populationl

Chart 7: DeSoto County Growth versus Ozone Design Values

E. Level ofControl ofEmission Sources

EPA’s technical support document did not address this factor at all. As stated in

MDEQ’s factor analysis, there are few major sources in the county to control. The few

facilities located in Mississippi are well controlled. Southaven Power is a newer gas

cogeneration plant that meets BACT standards, Rexam Beverage Can has VOC capture

and control devices to control emissions beyond NSPS requirements, and Texas Gas has

voluntarily opted to include operational restrictions in its permit that reduces NOxemissions during Ozone Season. Thus, while there are only a few major sources to

control, those sources have worked with MDEQ through their permits to engage controls

that far exceed any state and/or federal requirements.

Mobile and area sources are the largest category of emissions in the area and MDEQ

and the governances in the area have put measures in place to reduce those emissions to

improve the air quality in DeSoto County. Mississippi has revised the Air Pollution

Regulations to prohibit all open burning on Ozone Action Days. Open Burning is banned

on all days in Hernando. Also, DeSoto County and the cities within the county have

enacted strict idle reduction policies to reduce mobile source emissions from the county.

A marginal non attainment designation will not require further controls from mobile

or area sources in DeSoto County, nor will local controls be necessary to reduce

emissions in the area. As previously stated, mobile source emissions will be drastically

reduced over the next several years due to national emission control standards effectingmobile sources.

2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

Year

10
• On most days, 24-hour back trajectories were less than 200 miles long for the

Memphis-Frayser site during the period of 2006-2010, indicating that the average

wind speeds were less than 8 mph.

• When there is a light wind regime, wind directions can vary significantly at the

surface.

• HYSPLIT uses surface and upper air wind conditions to calculate back

trajectories. In this case, surface winds from the Memphis NWS station were

used, but the closest upper-air wind data site is located in Little Rock, Arkansas -

—130 miles from Memphis.

• HYSPLIT is not accurate under light wind conditions because ofthe light wind

direction variability.

Because ofthese issues, a back trajectory analysis using HYSPLIT is patently unreliable in determining iftransport was occurring on most ozone exceedance days.

EPA also included surface wind roses for the Memphis area as additional

analyses. Even while EPA conceded in its Response to Significant Comments that the

use of wind roses as the sole indicator of atmospheric transport is not the preferable approach, EPA’s use of wind roses showed wind direction variability, which EPA then

wholly failed to factor into their analysis.

Finally, EPA cites comments from Arkansas concerning the ATMOS study

(discussed in under Factor 1 — Air Quality Data). EPA states that a key point ofthis

analysis indicates that the monitoring site with the maximum design value for the area

varies from year to year based on the frequency ofmeteorological conditions that are

conducive to high ozone concentrations at the specific monitoring sites. EPA further

states that their analyses indicated that the maximum ozone design value monitor moves

based on the predominant winds during a three-year period and all monitors should be

considered. Significantly, EPA failed to state that DeSoto County has never had the

highest ozone design value in the Memphis area for any year, going back to at least to the

1995-1997 period.

Thus, EPA failed to apply the best available scientific evidence in a sound

manner, as a sound application cannot prove by any reasonable deduction that DeSoto

11
TSD travel over areas of Memphis prior to arriving at the Frayser monitor with much

higher NOx and VOC emissions density than DeSoto County. This information was not

taken into consideration by EPA.

The TSD also states that “EPA’s analysis of meteorology and the conceptual

model for high ozone events in the Memphis area suggests that DeSoto County is

contributing to the violation in Shelby County...” Again, a “suggestion” is not a strong

basis for including DeSoto County in the non-attainment area based on sufficient

contribution.

In its Responses to Significant Comments, EPA states “In those cases where

timing constraints and the lack of additional information prevented a more detailed

assessment, EPA believes the default wind rose analyses, in conjunction with the

remainder ofthe multi-factor analysis, can provide an adequate assessment of appropriate

boundaries.” MDEQ believes this statement indicates that EPA rushed to judgment,

thereby failing to base its decision on the best available scientific knowledge. MDEQ

went to great lengths to provide EPA with detailed information in order that EPA could

adequately evaluate the significance the best available science has on its decision. While

MDEQ is aware of and understands time constraints, for EPA to ignore the best available

science when it is fairly presented results in a punitive decision for Mississippi and

DeSoto County, which decision should be reconsidered.

Factor 4- Geography /Topography

All parties agree that this factor is not a significant factor in the analysis.

Factor 5— Jurisdictional Boundaries

EPA’s Final TSD states “[o]nce EPA identified the general areas that the Agency

anticipated would be included in the non-attainment area, EPA then considered existing

jurisdictional boundaries for the purpose of providing a clearly defined legal boundary

and to help identify the areas appropriate for carrying out the air quality planning and

enforcement functions for non-attainment areas.” While state and county barriers do notstop the flow of air from one area to another, they should be given greater consideration

in the case of DeSoto County.

As previously noted, the monitor in DeSoto County has always attained the

Ozone standard. Section 181 ofthe Clean Air Act sets forth the requirements for areas

that are designated as non-attainment and the methods for coming back into attainment

12
Since DeSoto County is in a separate state from the counties with the violating monitor and the bulk ofthe emissions, ifit is designated as non-attainment, it would be

stuck with the designation without being afforded the provisions in the CAA to get back into attainment. The county’s monitor is attaining the standard and there is no indication

that even the most stringent controls put in place in the County would help Shelby County, Tennessee attain the standard. Accordingly, DeSoto County should only be included ifthere is viable strong evidence that it is significantly contributing to the

exceedences in Crittendon and Shelby — a non-attainment designation should not be

based on mere suggestion or speculation that DeSoto County may be contributing to exceedences in the other counties.. The information presented under the other factorsdemonstrates that DeSoto County is not sufficiently impacting or contributing to the violations in Shelby County. The boundary for the nonattainment area should be state

line and DeSoto County should not be included in the nonattainment area.

DeSoto County has no defined legal authority for the purpose of carrying out the air quality planning and enforcement functions for adjacent nonattainment areas.

Commercial traffic on 1-40 and other industrial sources near the offending monitor are all under control of Tennessee and Arkansas. The consideration of this factor points most strongly in excluding DeSoto County from the nonattainment designation.

CONCLUSION

For the reasons set forth above, Mississippi hereby petitions EPA to reconsider its

decision to include the northern portion of DeSoto County, Mississippi, in the boundary for its nonattainment designation. EPA can, within its discretion, recognize the errors it made in its designation decision, and more appropriately apply the best and most recent

scientific data to exclude DeSoto County. Exclusion would be consistent with prior EPA decisions, and would be well supported by the scientific evidence adduced by MDEQ. Further, the case-by-case evaluation of the guidance factors supports the exclusion of

DeSoto County and would not be inconsistent with the treatment of any other entities within EPA’s regulatory control.

13