EPA issued what the Agency is calling “Round 1” of final area designations under the 2015 ozone standard on November 6, 2017. The designations, which will be published in the Federal Register tomorrow, November 16, and become effective 60 days later, include only those counties, tribal areas, and territories that EPA has designated “attainment/unclassifiable” — totaling 2,646 counties. EPA also designated 3 counties in the state of Washington as “unclassifiable.” EPA did not designate any nonattainment areas as part of the final rule, but simply noted that it is “not yet prepared to issue designations” for the remaining areas of the U.S.
EPA is currently facing litigation over its June 2017 announcement extending the deadline for designating areas under the 2015 ozone NAAQS by one year, to October 2018, even though the Agency later reversed that decision. On July 12, 2017, a dozen environmental and public health groups sued EPA in the D.C. Circuit Court of Appeals, claiming the Agency did not have authority to extend the deadline for designating areas under the Clean Air Act. Fifteen states followed in their footsteps, filing their own lawsuit challenging the delay on August 1. EPA responded the following day by publicly announcing its intent to withdraw the deadline extension and published official notification of the withdrawal in the Federal Register on August 10. (82 Fed. Reg. 37,218.)On August 3, EPA filed a motion asking the D.C. Circuit to dismiss the lawsuit challenging the delay. The court rejected EPA’s request for dismissal on October 6 and placed the case in abeyance, setting a November 8 deadline for the parties to submit motions governing the future handling of the case. EPA filed a motion on November 8 arguing that the suit over the withdrawn deadline extension was moot due to EPA’s issuance of attainment designations on November 6. The court has yet to rule on this motion.
Meanwhile, the original and reinstated October 1, 2017, deadline for area designations under the 2015 ozone standard has come and gone without EPA designating any nonattainment areas under the standard, and environmental groups and states are now threatening a new lawsuit against EPA for missing the statutory deadline. To date, EPA has not provided any information regarding its expected timeline for making these additional designations. However, under the Clean Air Act, EPA must issue a notification 120 days prior to issuing a final designation if it disagrees with or needs more information to confirm a state’s designation recommendation.
EPA did release a proposed rule related to area classifications under the 2015 standard to OMB for review on September 29, 2017. Nonattainment area classifications will need to be in place before EPA can designate nonattainment areas, so that rule will likely be issued in advance of or alongside any nonattainment designations ultimately issued.