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Indiana and Kentucky are Targeted by Petition from Northeastern States to be Added to an Expanded Ozone Transport Region


By Larry J. Kane, Attorney, Bingham Greenebaum Doll LLP

Eight northeastern states within the Ozone Transport Region (OTR) filed a petition with EPA on Dec. 9, 2013, to include nine additional, upwind states, including Indiana and Kentucky, within the OTR. The petition, filed with EPA pursuant to Section 176A of the Clean Air Act (42 U.S.C. § 7506a), alleges that EPA air quality modeling shows that interstate transport of ozone and ozone precursor pollutants from the nine upwind states contributes significantly to violations of the 2008 National Ambient Air Quality Standards (NAAQS) for ozone within the OTR. The OTR was established by Section 184 of the Clean Air Act, as added by the 1990 Amendments to the Clean Air Act.

Under Section 176A, EPA has eighteen months from the filing of the petition in which to approve or disapprove the petition. If EPA were to approve the petition as submitted, the nine states, Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia and West Virginia, would become subject to more stringent ozone control requirements. Specifically, under Section 184, each state added to the OTR would have nine months to submit a state implementation plan (SIP) that would require: (1) each area within such state that is a metropolitan statistical area or part thereof with a population of 100,000 or more to institute enhanced vehicle inspection and maintenance programs; and (2) implementation of reasonably available control technology for control of volatile organic compounds (VOC) from all sources addressed by a control techniques guideline. In addition, the SIP would be required to include either: (i) those control measures identified by EPA under Section 184(b)(2) of the Clean Air Act as capable of achieving emission reductions comparable to those achievable through vehicle refilling controls specified in Section 182(b)(3) of the Clean Air Act, or (ii) vehicle refilling controls.

A more serious impact on the states petitioned for inclusion in the OTR relates to new source review (NSR) permitting for the construction of proposed new major sources of VOC. Section 184(b)(2) requires that any stationary source located within the OTR that has potential emissions of at least 50 tons per year of VOC will be considered a major stationary source for NSR purposes and will be subject to requirements applicable as if such source were located in an area classified as a moderate ozone nonattainment area as described in Section 182(b) of the Clean Air Act. Thus, even if a state to be added to the OTR did not otherwise contain areas classified as nonattainment for ozone, inclusion of the state in the OTR would transform the entire state for NSR purposes to a status by which it would be deemed, in effect, to be a moderate ozone nonattainment area. Such an action would be likely to have significant adverse consequences on future economic development within the state.

Whatever the ultimate decision by EPA concerning the petition, that decision is expected to be highly controversial. Although the petitioning states’ use of EPA-sanctioned air quality modeling methodologies make approval of the petition more likely, it is anticipated that the modeling results will come under intense scrutiny by the states sought to be included in the OTR.

To view a complete PDF of the Fourth Quarter 2013 issue of the Air Quality Letter, click HERE.


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