Northeastern States File Suit to Force EPA Action on Ozone Transport Region Expansion

Six northeastern states are suing the Environmental Protection Agency (EPA) to force it to act on controlling air pollution blowing in from coal-fired power plants located in nine Midwestern and southern states.

New York, Connecticut, Massachusetts, New Hampshire, Rhode Island, and Vermont on October 7 filed a lawsuit in the U.S. District Court for the Southern District of New York. The coalition asked the court to compel the EPA to add nine “upwind” states to its Ozone Transport Region. Those states include Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia, and West Virginia.

The measure stems from a December 2013 petition filed by the northeastern states asking the EPA to add the nine states to the Ozone Transport Region. The nine states have been shown, through modeling and analysis, to contribute to violations of the 2008 federal ozone standard within the Ozone Transport Region, they said. The upwind states responded in a February 2014 letter, urging the EPA to deny the petition.

In an April 2016 letter noting that the EPA had still not acted on the petition, the coalition gave the agency a notice of intent to file suit for its failure to act on the petition.

The nine states are the “most significant contributors to continued ozone standard violations in the [Ozone Transport Region] and that expansion of the region will result in more emission reductions, a fairer distribution of the burdens of controlling air pollution (ozone), and a level economic playing field,” the coalition reasserted.

The 11 states within the Ozone Transport Region established under Section 184 of the Clean Air Act—Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont—are required to submit state implementation plans and install a certain level of controls for pollutants that form ozone, even if they meet ozone standards. States outside the Ozone Transport Region aren’t required to install the same basic controls on a statewide basis, only in nonattainment areas—and even these are sometimes sidestepped using waivers, the coalition said.

On March 30, 2016, meanwhile, North Carolina filed a separate complaint for failing to act on the petition that blamed the state for contributing to air quality problems in the Northeast, and this July, the EPA and North Carolina filed a joint stipulation with the U.S. District Court for the Eastern District of North Carolina to hold the case in abeyance until September 12, 2016, “to allow EPA time to finalize an update to the Cross-State Air Pollution Rule.”

The EPA’s update issued in early September determines that ozone season nitrogen oxide emissions in 22 eastern states affect the ability of downwind states to meet and maintain the 2008 ozone National Ambient Air Quality Standards. The 22 states include: Alabama, Arkansas, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Virginia, West Virginia, and Wisconsin.

New York Attorney General Eric Schneiderman on October 7 said that the states are essentially seeking a court order requiring the EPA to provide for public notice and comment on the states’ petitions, and to approve or disapprove the petitions after considering public comment.

“Despite enacting stringent in-state controls on sources of these pollutants, many states within the [Ozone Transport Region]—including New York—are not able to meet federal health-based air quality standards for smog,” he said.

Modeling and analysis performed by the EPA, as well as states, has shown that interstate transport of air pollution from upwind states outside of the Ozone Region—including Illinois, Indiana, Kentucky, Michigan, Ohio, Tennessee, Virginia, and West Virginia—contribute significantly to violations of the 2008 federal smog standard within the Ozone Region, Schneiderman added.

“In addition, preliminary modeling demonstrates that emissions in these states, as well as North Carolina, are projected to contribute to violations of the recently updated, 2015 federal smog standard in the Region,” said Schneiderman.

 

Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)