Maryland Takes EPA to Court Over Interstate Air Pollution

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By Leslie A. Pappas and Adrianne Appel

Maryland is suing the EPA for failing to limit air pollution blowing in from other states, the state announced Sept. 27.

Maryland Gov. Larry Hogan (R) directed state Attorney General Brian Frosh to file a lawsuit against the Environmental Protection Agency for failing to act on a November 2016 petition that seeks new pollution controls on 19 coal-fired power plants in five upwind states ( Maryland v. Pruitt, D. Md., No. 1:17-cv-02865, 9/27/17 ).

“The EPA has acknowledged that Maryland’s ozone attainment problems are due in large part to transported pollution from other states,” says the complaint, filed Sept. 27 in U.S. District Court for the District of Maryland.

Pollution from Indiana, Kentucky, Pennsylvania, Ohio and West Virginia impedes Maryland’s ability to meet federal air quality standards, the state said. About 70 percent of Maryland’s pollution problems come from emissions from those states, it said.

Approval of the petition would ease the burden on Maryland’s business community, which has had to find ways to cut emissions to make up for smog from other states, the state said. Another benefit, it said, would be helping with the cleanup of Chesapeake Bay, because up to one-third of the bay’s nitrogen pollution comes from air pollution.

“Maryland has made significant progress in improving our air quality in recent years, and that progress is in jeopardy due to a lack of action by the EPA that dates back to the previous administration,” Hogan said in a statement. “We strongly urge the EPA to approve the petition and enforce the air pollution controls.”

The EPA failed to hold a public hearing on Maryland’s Clean Air Act Section 126 petition and instead gave itself six months to consider it, the complaint says. More than 280 days have passed since the EPA received Maryland’s petition, the complaint says. Maryland urged the court to order the EPA to hold a public hearing within 30 days and to make a finding or deny the petition within 60 days of the hearing.

Delaware and Connecticut

Delaware and Connecticut also filed petitions with the EPA in 2016, targeting plants such as NRG Energy’s Cheswick plant outside of Pittsburgh and Duke Energy’s East Bend Generating Station in Kentucky.

Delaware is “evaluating the situation” and “evaluating our options,” Michael Globetti, spokesman for Delaware’s Department of Natural Resources and Environmental Control, told Bloomberg BNA Sept. 27 in response to a question about whether the state also planned to sue. He did not elaborate.

Connecticut Attorney General George Jepsen sued the EPA in May in U.S. District Court for the District of Connecticut to require the federal agency to act on a Section 126 petition that the state filed with the EPA June 1, 2016.

Connecticut asked the EPA to take action to stop pollution from Pennsylvania’s Brunner Island Steam Electric Station, a coal-fired plant, from blowing into the state, which Jepsen said caused Connecticut’s ozone levels to increase. The emissions from the plant “contribute significantly” to Connecticut’s inability to keep its ozone levels below required federal levels, Jepsen said in a news release announcing the lawsuit. Connecticut had warned the EPA on March 9, 2017, that it would sue in 60 days if the EPA didn’t respond to its 2016 petition, Jepsen said.

“We filed this suit because EPA’s lack of action to control emissions from this facility continues to expose our citizens to unhealthy air—even though it is clear that this plant significantly contributes to our pollution in our state and needs to be controlled,” Dennis Schain, Connecticut Department of Energy and Environmental Protection spokesman, told Bloomberg BNA Sept. 27 in an email.

Chesapeake Bay

Maryland’s petition is more extensive, covering 36 electric generating units at 19 power plants.

The Chesapeake Bay Foundation, an environmental group that focuses on the health of the bay, supported the lawsuit.

“For years, Maryland has taken steps to reduce air pollution from power plants and vehicles operating within the state. But about 70 percent of the Baltimore area ozone problem comes from upwind sources of air pollution,” Jon Mueller, vice president for litigation at the Chesapeake Bay Foundation, said in a statement.

To contact the reporters on this story: Leslie A. Pappas in Philadelphia at lpappas@bna.com and Adrianne Appel in Boston at aappel@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

For More Information

The complaint is at http://src.bna.com/sUG.

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