Regional Reports: Region 4

Douglas E. Cloud and Scott E. Hitch
Alston & Bird LLP
Atlanta, Georgia
Dcloud@alston.com; Shitch@alston.com

Recent Developments Increase Likelihood of Atlanta Ozone Area Bump Up

The continued failure of Metro-Atlanta to achieve attainment with national ozone standards is threatening Metro-Atlanta with reclassification from a serious to severe nonattainment area. On May 7, 2002, the U.S. EPA approved the SIP for Metro-Atlanta, including an extended attainment date of 2004.

EPA approved this extended attainment date pursuant to the agency's July 16, 1998 guidance, Extension of Attainment Dates for Downwind Transport Areas published in a notice of interpretation (64 FR 12221 Mar. 25, 1999). EPA's guidance allows the extension of attainment dates for moderate or serious 1-hour ozone nonattainment areas that are downwind of areas that have interfered with attainment by the date prescribed. The original date for Metro-Atlanta to attain the 1-hour standard was Nov. 15, 1999.

For Metro-Atlanta, if attainment is not timely achieved by the 2004 extended deadline, then EPA would have little choice under the Act but to reclassify the area from serious to severe. An area of serious nonattainment that fails to reach attainment by the deadline is to be reclassified to severe status. 42 U.S.C. § 7511(b)(2)(i). A bump up of the Metro-Atlanta nonattainment area also could be forced by pending lawsuits.

EPA's approval of the extended attainment date for Metro-Atlanta was immediately challenged in Sierra Club v. EPA, No. 02-13705A (11th Cir. filed July 8, 2002). A similar challenge was made to EPA's extension of the attainment date for the District of Columbia. In that case, the United States Court of Appeals for the D.C. Circuit has ruled that the EPA was without authority to approve revised SIPs that extended the Washington, D.C. area's attainment deadline. Sierra Club v. EPA, Nos. 01-1070 & 01-1158 2002 WL 1407009 (D.C. Cir. July 2, 2002). The State of Georgia participated as amicus curiae in that case in support of EPA's failed position. Obviously, this recent decision of the D.C. Circuit is not binding in the 11th Circuit case concerning Metro-Atlanta, but it does not bode well for the survival of an extended attainment date for Metro-Atlanta.

The issue of a bump up of the Metro-Atlanta nonattainment area may also be reached in another case, Georgians for Transp. Alternatives v. U. S. EPA, No. 0012187 (11th Cir. July 24, 2000), scheduled for oral argument later in summer 2002.

Reclassification would probably extend Metro-Atlanta's attainment deadline until 2005, giving the area more time to demonstrate attainment. 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. 42 U.S.C. § 7511(a)(1). The state would be required again to revise its SIP to implement still more rigorous programs for monitoring and reducing emissions.

In addition, there would be stricter New Source Review regulatory requirements for major VOC and NOx sources located in the Metro-Atlanta nonattainment area. Major source thresholds would drop from 50 to 25 tons per year and the offsets requirements would increase from 1.2:1 to 1.3:1. Generally, business development can become more difficult, costly, and time-consuming in a severe nonattainment area.

11th Circuit Orders Mediation in TVA v. Whitman

On June 26, 2002, the 11th Circuit referred by Order all pending petitions for review in the TVA case to mediation before the Court's Stephen O. Kinnard Mediation Center. The Order applies to all petitioners in the case, including the Tennessee Valley Authority, Alabama Power Company, Tennessee Valley Public Power Association, and Duke Energy Corporation. The Order provides that the case will be "held in abeyance" during the sixty-day mediation period. The Court's Ordering mediation in the case presents a novel approach to dealing with cases of this nature.

As we have previously reported, the petitions seek review of EPA compliance orders issued to require the utilities to obtain pre-construction air permits to cover changes made to coal fired power plants over the last two decades as "modifications" under EPA's New Source Review (NSR) authority. The utilities have taken the position that changes made to their power plants were done as "routine maintenance," and therefore, not subject to NSR requirements.