Regional Reports: Region 4

Scott Hitch
Doug Cloud
Alston & Bird
Atlanta, Georgia

I. Title V Permitting in Region 4

Region 4 has issued approximately 92 percent of the total expected Title V permits in the Region. Currently, there are over 100 proposed Title V permits under consideration in Region 4. In Florida, there are 29 pending permits with petition deadlines within the next three months. There are 22 proposed permits outstanding in each of North Carolina and Georgia. There are 16 proposed permits under consideration for sources in South Carolina. Sources in Tennessee (9), Mississippi (7) and Kentucky (2) also have Title V permits in the permitting process.EPA Region 4 tracks the list of Title V permit applications it has received on its Web site (http://www.epa.gov/region4/air/permits/Proposed_Index.htm). The Web site contains title V permit-related dates for use by anyone considering filing a petition within 60 days from the close of the EPA 45-day comment period. Proposed Title V permits are catalogued by state.

II. City of Atlanta to Bump Up to Severe Nonattainment Status

EPA Region 4 has asked the Eleventh Circuit Court of Appeals to rescind its approval of the Atlanta SIP in order for the area to bump up from serious to severe nonattainment status. On March 6, 2003, the agency said it could no longer defend its attainment extension policy after losing three federal cases involving the deadlines for St. Louis, Washington, D.C., and Beaumont, Texas. A similar extension policy challenge was made by environmental advocacy groups regarding the Atlanta SIP. The Clean Air Act provides that the attainment date for severe nonattainment areas “shall be as expeditiously as practicable” but not later than Nov. 15, 2005. Reclassification to severe status probably will extend Atlanta’s attainment date until 2005, giving Atlanta more time to demonstrate attainment. However, a 2005 attainment date is not necessarily certain. If it is determined that 2005 does not satisfy the “as expeditiously as practicable” standard under the Clean Air Act, then an earlier attainment date may be prescribed.

If a severe nonattainment area fails to achieve attainment, then each major source in the area is penalized annually in an amount equal to $5,000 per ton (CPI adjusted) in excess of 80 percent of that source’s baseline emissions. This requirement could impose huge penalties on affected companies in the event that Atlanta is reclassified as severe and then fails to timely achieve attainment. Also, reclassification of Atlanta to severe would lower the applicable NSR major source threshold from 50 to 25 tons per year of VOCs and NOx. The Georgia EPD has indicated that about 40 to 50 companies in the Atlanta area would, for the first time, become major sources under a severe reclassification.

Although not required, reclassification of Atlanta may be viewed as an opportunity to revisit expansion of the 13-county nonattainment area into surrounding counties. In this regard, recent Georgia Air Quality Rules have designated certain counties as contributing to Atlanta’s nonattainment problem, including a surrounding 32-county area with a 6-county subset.

Reclassification of Atlanta to severe nonattainment will tend to increase the costs of business growth and may, in some instances, force newly affected industry to expand elsewhere. As a general matter, business development in Atlanta will become more difficult, costly and time-consuming for certain companies once Atlanta is reclassified. EPA is expected to release a Federal Register notice with details about this nonattainment bump up decision.

III. Plaintiffs Withdraw from Challenge to Georgia’s Title V Program

On March 3, 2003 plaintiffs challenging Georgia’s Title V program withdrew their petition for review of EPA’s decision not to find the state’s program deficient. The plaintiffs’ voluntary dismissal effectively ends the challenge to Georgia’s Title V program.

The plaintiffs, Georgia Forest Watch, Georgia Public Interest Research Group, and the Sierra Club, originally challenged Georgia’s Title V program by petition to EPA. The plaintiffs took their challenge to the Eleventh Circuit Court of Appeals after EPA determined that Georgia’s program was not deficient.