Special Topics in Environmental Management

EPA Will Deny Good Neighbor Petitions from Delaware and Maryland

In a proposal, the EPA indicated that it intends to deny five petitions from the states of Delaware and Maryland, which asked the Agency to find that emissions from power plants in upwind states are significantly contributing to exceedances of the National Ambient Air Quality Standards (NAAQS) for ozone in the two petitioning states.
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According to the Agency, neither Delaware nor Maryland provided analyses that were sufficient to support their conclusions. Apart from that finding, the Agency said its own independent analysis found that there are no “additional highly-cost effective” reductions at the sources, which, according to the EPA, means none of these sources currently emits or would emit in violation of the Clean Air Act.

Claims By the States

According to the Agency’s proposal, the five petitions were submitted between July and November 2016. Each of Delaware’s four petitions requested that the EPA make a finding that emissions from individual sources in Pennsylvania and West Virginia are significantly contributing to Delaware’s nonattainment of the 2008 and 2015 8-hour ozone NAAQS.

Maryland’s petition requested that the EPA make a finding that emissions from 36 electric generating units in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia are significantly contributing to ozone levels that exceed the 2008 8-hour ozone NAAQS in Maryland and, therefore, are interfering with attainment and maintenance of the 2008 ozone NAAQS.

Maryland asserted that “at times, up to 70 percent of Maryland’s air pollution is due to out-of-state sources.” The situation is worse in Delaware; the state says that emissions from other states account for up to 90 percent of air pollution in Delaware.

Additional Air Pollution Controls

Under Clean Air Act Section 110(a)(2)(D)(i)(I), known as the good neighbor provision, should the EPA find that upwind states significantly contribute to NAAQS nonattainment in downwind states, the Agency may order the state government to impose new requirements on sources of interstate emissions—in these cases, nitrogen oxides and volatile organic compounds that combine to form ground-level ozone.

Types of controls states would be required to promulgate include reasonably available control technology (a control for which cost must be considered), broadened application of preconstruction permit application reviews under the New Source Review program, and inspection and maintenance programs to reduce vehicle emissions by ensuring vehicles are in good repair.

Burden Not Met

In its proposal, the EPA asserts that neither Delaware nor Maryland met their burden to demonstrate that the named sources emit or would emit in violation of the good neighbor provision with respect to the 2008 ozone NAAQS (in the case of both Delaware and Maryland) or the 2015 ozone NAAQS (with respect to Delaware’s petitions).

The Agency also discusses its own use of a four-step analytic framework to address regional interstate ozone transport problems. The findings of two of those steps are relevant to the petitions. First, the EPA says it determined that there are no air quality problems in Delaware in the relevant years for both the 2008 and 2015 ozone NAAQS.

Second, the EPA said it further evaluated the sources in the upwind states named by Delaware and found that they have already implemented the control strategy identified in the petitions as cost-effective for three facilities under the Cross State Air Pollution Rule (CSAPR) Update and that one plant named by Delaware is already operating and is expected to continue operating with natural gas such that the facility has no additional cost-effective and feasible controls available.

Regarding Maryland’s petition, the EPA says that for those facilities with selective catalytic reduction, the EPA has already implemented the control strategy identified in the petitions as cost-effective. Also, for the facilities with selective noncatalytic reduction (SNCR), the Agency says it has already determined that operation of SNCR is not cost-effective with respect to addressing transport obligations for the 2008 ozone NAAQS; therefore, SNCR is not required by the good neighbor provision with respect to the ozone NAAQS.

In response to the proposal, Ben Grumbles, Maryland’s environment secretary, said the state will use all available tools, including litigation, to uphold aggressive air quality standards.