Feb 24: In the U.S. Court of Appeals, D.C. Circuit, Case No. 10-1004, consolidated with 10-1005, 10-1006, 11-1252, 11-1253, 11-1254. On Petitions for Review of a Final Action of U.S. EPA. The Appeals Court explains that in these consolidated petitions, ATK Launch Systems, Inc., two Utah counties, and three Utah cities seek partial vacation of a final rule designating certain areas as nonattainment for the 2006 24-hour fine particulate matter (PM2.5) standard. Air Quality Designations for the 2006 24-Hour Fine Particle (PM2.5) National Ambient Air Quality Standards, 74 Fed. Reg. 58,688 (Nov. 13, 2009) (Final Rule). In particular, petitioners challenge the inclusion of parts of Tooele and Box Elder Counties within the Salt Lake City nonattainment area. U.S. EPA concluded, upon applying its nine-factor test for designations, that emissions from eastern portions of both Box Elder County, including Brigham City and ATK's operations, and Tooele County, including Tooele City and Grantsville City, contributed to nearby violations of the 24-hour PM2.5 standard in and around Salt Lake City.
Petitioners' principal argument is that EPA was arbitrary and capricious in applying the nine-factor designation analysis, arguing dissimilar treatment as compared to EPA's analysis of the data for two east coast counties, Warren County, New Jersey
and Hartford County, Connecticut, which EPA designated attainment. Petitioners also object to EPA's use of a pollutant transport model generally and its analysis of wind data for Box Elder County specifically. Finally, they question EPA's decision to include ATK's operations in the nonattainment portion of Box Elder County.
The Appeals Court said, "Because EPA's nine-factor test is intended to be applied on a case-by-case basis to account for diverse considerations, including the varying effects of local topography and meteorology on PM2.5 dispersion, and EPA
reasonably explained its designations, we deny the petitions for review."
The Appeals Court ruled further, "The record supports the conclusion that, when PM2.5 levels are most severe in Salt Lake City, wind direction is sometimes from the northwest, indicating contribution from Box Elder County. EPA's analysis of the wind data and air basin conclusion about pollution transport was reasonably based upon 'the best available information' . . .and petitioners thus fail to demonstrate that EPA ignored new information or otherwise was arbitrary or capricious."
And, finally the Appeals Court said, "Petitioners do not dispute that ATK's operations occur below the inversion layer, which is at about 1,500 feet, and, as discussed, EPA reasonably concluded that meteorological data indicated that emissions from eastern Box Elder County, where ATK's operations occur, contribute to nearby violations of the PM2.5 standards. Petitioners fail to demonstrate that EPA was arbitrary or capricious by including ATK's operations within the nonattainment area. Accordingly, we deny the petitions for review."
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