Northeastern States Petition US EPA to Add Nine Additional States to the Ozone Transport Region

As the United States Supreme Court hears arguments this week about US EPA’s Cross-State Air Pollution Rule, eight members of the Ozone Transport Region (“OTR”) are petitioning US EPA pursuant to Section 176A of the Clean Air Act to expand the OTR to include Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia and West Virginia.  The petitioning states – Connecticut, Delaware, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont (“Petitioners”) – allege that these states outside of the OTR do not require the installation of controls as stringent as required by the OTR and that air pollution from these states is transported into the OTR, thus contributing to violations of the 2008 National Ambient Air Quality Standard for ozone within the OTR states.  The Petitioners hope that the petition, if granted, will subject these additional states to more stringent requirements in the form of revised State Implementation Plans for VOC and NOx emissions, including additional requirements for Inspection and Maintenance, New Source Review and Reasonably Available Control Technology.   The Administrator of US EPA has 18 months to approve or disapprove of the petition. 

Section 176A of the Clean Air Act, a product of the 1990 Clean Air Act Amendments, allows EPA to establish, by rule, a transport region whenever the Administrator has reason to believe that the interstate transport of pollutants from one or more states contributes significantly to a violation of a NAAQS in another state or states.  Congress specifically established the current  OTR, which is comprised of the states of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont and the 1980 Consolidated Metropolitan Statistical Area (CMSA) that includes the District of Columbia.  Section 176A(a)(1) of the Clean Air Act allows the Governor of any state to petition the Administrator of EPA to add any state(s) to a transport region, “whenever the Administrator has reason to believe that interstate transport from such state significantly contributes to a violation of the standard in the transport region …”

US EPA’s Cross State Air Pollution Rule, which was struck down by the Court of Appeals for the District of Columbia in August of 2012, sought to address similar transport concerns by requiring coal fired power plants in the eastern half of the country to implement more stringent and costly pollution controls or to shut down.   The Court of Appeals held that US EPA didn’t give states enough time to devise their own emissions reduction plans and did not limit the fix to each state’s “significant contribution” to the overall problem.

Kathy Milenkovski is an energy and environmental lawyer. She helps clients comply with complex state and federal regulatory programs and represents clients in litigation, appearing in administrative, state and federal courts.
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