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Midwest vs. Northeast? EPA's NOx Policy

Fortnightly Magazine - February 15 1999

with respect to the [previous] one-hour ozone standard because the one-hour standard no longer applies in that state."

Jonathan Peress, associate general counsel of the Vermont Agency of Natural Resources, questioned the EPA's analysis at the hearing. "Vermont is concerned that EPA's analysis for significant contribution [to nonattainment of ozone limits] with respect to the SIP call is simply not applicable to a review of Vermont's petition alleging interference with maintenance of the [ozone] standards," he said.

Peress added that the analysis method upon which the EPA relied in reviewing the petitions underestimates worst-case ozone concentrations in the state. Thus, he argued, the method "was simply not designed or intended to evaluate interference with maintenance in an attainment area like Vermont.

"It is for this very reason," said Peress, "that Vermont's petition relies primarily on real-world data in addition to model runs."

Another issue of concern for Vermont is the EPA's proposal to deny its petition because the state is in attainment of ozone limits and model runs do not predict future nonattainment. Peress called this reasoning "inconsistent with the requirements of Section 126." He added that Vermont disagrees with the EPA's contention that plans implemented under the SIP call will alleviate future ozone transport problems in the state, thereby satisfying the Section 126 petitions.

Further, he stated, "[T]he facts alleged in Vermont's petition are the basis of Vermont's interference-with-maintenance argument, and EPA has not provided any technical documentation demonstrating that this concern is unwarranted."

Peress concluded his comments by urging the agency to consider Vermont's technical support documentation before making any final ruling.

The Maine Petition. By contrast, the EPA proposes that portions of the Maine petition have merit, but would deny other claims by Maine. It notes that "some of the sources or source categories named in the petitions are not significantly contributing to nonattainment in [Maine]."

Maine's petition, according to the EPA's summary, named certain electric utilities and steam-generating units within 600 miles of its ozone nonattainment areas. All or parts of 14 states and the District of Columbia were included in the areas. The petition sought the establishment of a compliance schedule and emissions limitations for the sources, in a multi-state cap-and-trade NOx system.

Maine opposes several issues related to the EPA's handling of the SIP call and Section 126 petitions, according to Jeff Crawford of the Maine Department of Environmental Protection.

Noting how important it is for controls to be in place by May 2003 and the likelihood of implementation delays, Crawford said, "Maine opposes EPA's proposal to link denial of the 126 petitions with the submission of an approvable SIP revision." He expressed concern that a petition might be denied before a source actually implements controls, based on approval of the SIP for the state in which the source is located. Crawford suggested that such a result is "neither contemplated nor legally permitted under the Clean Air Act."

Another issue Crawford criticized is the agency's reliance on cost-effectiveness to define "significant contribution" to nonattainment of ozone limits, a practice he called "technically inappropriate and legally indefensible