Yesterday, the State of Maryland filed a complaint in the U.S. District Court for the District of Maryland seeking an order requiring EPA to perform its non-discretionary duty to either approve or deny a petition submitted by the state on November 16, 2016. That petition asked EPA to find that 36 coal-fired generating units in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia are violating the Good Neighbor Provision of the Clean Air Act, 42 U.S.C. § 7410(a)(2)(D)(i), by significantly contributing to Maryland’s nonattainment of the 2008 and 2015 revised ozone National Ambient Air Quality Standards (NAAQS). The Good Neighbor Provision prohibits any source of emissions within a state “from emitting any air pollutant in amounts which will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State with response to any such . . . ambient air quality standard.”
Despite Maryland’s local ozone controls regulating power plants, factories, and motor vehicles, EPA has designated three nonattainment areas in Maryland under the 2008 Ozone NAAQS. The state anticipates that it will remain in nonattainment once EPA completes its designations for the revised 2015 ozone NAAQS. Maryland argues that at least half of the state’s ozone pollution is caused by the transport of pollutants from upwind states, and that these transported pollutants significantly contribute to Maryland’s nonattainment. The November 2016 petition alleged that, for a variety of reasons, including state regulation, the identified 36 identified generators “have not needed to run their controls efficiently on many bad ozone days,” resulting in emissions that contribute to Maryland’s nonattainment. The petition also argued that ozone emissions from the 36 generating units can be reduced at reasonable cost by requiring them to run existing control equipment in a manner consistent with the manufacturer’s specifications on days when ozone reductions are needed.
Although the Clean Air Act required EPA to act on Maryland’s petition within 60 days, 42 U.S.C. § 7426(b), EPA issued a rule on January 3, 2017 extending the deadline for action on Maryland’s petition until July 15, 2017. When EPA failed to act by July 15, Maryland notified EPA and EPA Administrator Pruitt of its intention to commence a suit for the agency’s failure to timely act on Maryland’s petition. Yesterday’s complaint notes that EPA has yet to take action on the 2016 petition.