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Northeastern States Challenge EPA’s Action on Kentucky’s 2008 8-hour Ozone Infrastructure State Implementation Plan Submission


By Kelly D. Bartley, Attorney, Bingham Greenebaum Doll LLP

On May 2, 2013, Connecticut, Delaware and Maryland filed suit in the U.S. Court of Appeals for the Sixth Circuit (Case No. 13-3556), challenging EPA’s March 2013 final action on Kentucky’s infrastructure state implementation plan submission relating to the 2008 8-hour ozone National Ambient Air Quality Standards (NAAQS).  A similar suit has been filed regarding Tennessee’s infrastructure SIP submission for ozone.  On June 19, 2013, an order was entered allowing the Commonwealth of Kentucky to intervene in the action. 

To implement pollution reduction programs required to ensure attainment of NAAQS, the Clean Air Act requires states to adopt and submit state implementation plans (SIPs) to EPA for approval.  As part of these requirements, states must make “infrastructure” SIP submissions that ensure that the state has authority to implement and enforce adequate programs necessary to attain the NAAQS.  One requirement often addressed through infrastructure SIP submissions mandates that SIPs contain adequate provisions to ensure that sources in the state will not emit pollutants in amounts that significantly contribute to non-attainment of NAAQS in other states or interfere with other states’ ability to maintain the NAAQS.  42 U.S.C. §7410(a)(2)(D)(i)(I).  This requirement reflects two prongs of what is commonly referred to as the Clean Air Act “good neighbor” obligation.  The Clean Air Act requires that if EPA finds that a state has failed to make a SIP submission or disapproves a SIP submission, EPA must issue a Federal Implementation Plan (FIP) for that state. 

On March 7, 2013 (see the last issue of the Air Quality Letter for more details), EPA disapproved the portion of Kentucky’s 2008 8-hour ozone NAAQS infrastructure SIP submission that addressed the above requirement of the good neighbor obligation but concluded that under a recent decision from the D.C. Circuit Court of Appeals in EPA v. EME Homer City (see below article for details), that aspect of Kentucky’s SIP submission was not required and therefore, disapproval did not trigger a FIP obligation.  78 Federal Register 46208 (August 8, 2011).  Specifically, EPA concluded that EME Homer City mandated that before imposing a FIP on a state for lack of or deficient provisions implementing these good neighbor obligations, EPA has an obligation to first identify the state’s “significant contribution” to another state’s air quality problems and then give the state two years to craft a SIP for reducing that specific contribution.

During the public comment period on Kentucky’s ozone infrastructure SIP, a number of commenters, including several northeastern states, disagreed with EPA’s position that a FIP was not required at this time for Kentucky, arguing that this aspect of EME Homer City was incorrectly decided and further that EPA should not voluntarily follow the decision in the context of an infrastructure action impacting sources in Kentucky, a state under the jurisdiction of the Sixth Circuit rather than the D.C. Circuit Court of Appeals.

On August 2, 2013, EPA filed a motion asking the Sixth Circuit Court of Appeals to hold the challenge to EPA’s action on Kentucky’s infrastructure SIP submission in abeyance pending the U.S. Supreme Court’s review of EPA v. EME Homer City.  The Commonwealth of Kentucky supported that motion.  As of the date of this publication, the court had not yet ruled on the motion.

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


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