176A Petition - The Latest Development In The Debate Over The Interstate Transport Of Air Pollutants

Posted on December 30, 2013 by David Flannery

On the eve of the December 10, 2013 oral argument before the U.S. Supreme Court in the litigation involving the Cross State Air Pollution Rule, nine Northeast states – Connecticut Delaware, Maryland, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode Island and Vermont (Petitioners) – filed with EPA a petition under Section 176A of the Clean Air Act.   Section 176A, 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.  

Petitioners’ Section 176A petition seeks to expand the Northeast Ozone Transport Region (OTR) to include the states of Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia and West Virginia. To review a copy of the petition click here.  It alleges that the targeted upwind states have failed to fulfill all Clean Air Act requirements because their air pollution control programs do not require the installation of controls as stringent as required by the OTR and because air pollution from the upwind 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 the targeted states to more stringent requirements in the form of revised State Implementation Plans for VOC and NOx emissions, including but not limited to additional requirements for enhanced Inspection and Maintenance of mobile sources, nonattainment New Source Review, and Reasonably Available Control Technology. Those opposed to Petitioners’ action question the technical basis for the petition, noting that it relies so heavily on data published no more recently than 2005.  The Administrator of USEPA has 18 months to approve or disapprove of the petition.  

The December 2013 Section 176A petition is the latest in a series of actions under the Clean Air Act to address interstate transport issues related to ozone in the Northeast. Many will recall that similar petitions were filed under Section 126 of the Clean Air Act in the late 1990’s even as USEPA was developing the NOx SIP Call.  That rulemaking was followed by the Clean Air Interstate Rule and then by the Cross State Air Pollution Rule.  

The 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 transport concerns by imposing additional pollution control requirements on coal fired power plants in the eastern half of the country.  The Court of Appeals held that USEPA 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.  It is that rule that is currently before the U.S. Supreme Court and is the subject of a recent article written by Andrea Field. To review a copy of that article click here.