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News Digest

Fortnightly Magazine - February 1 2000

Agency moves ahead despite ruling that Clean Air Act is unconstitutional.

By granting petitions filed by four Northeastern states seeking to reduce ozone pollution in their geographic areas through reductions in nitrogen oxide emission (NOx) from out-of-state sources, along with other initiatives, the Environmental Protection Agency on Dec. 17 began to clean the regulatory air that has grown murky as of late.

Last May a federal court had struck down the agency's move, in its call for state implementation plans (SIP) on NOx, to tighten the national ambient air quality standard for ozone from a one-hour standard to an eight-hour standard. The court said that Congress had exceeded constitutional authority by delegating too much power to the EPA.

But the issue was still in a tangle, as several states had taken advantage of the uncertainty to file their own lawsuits against out-of-state polluters.

Pointing Upwind:

The Section 126 Complaints

In the EPA's action of Dec. 17, the states of Connecticut, Massachusetts, New York and Pennsylvania each won approval on their petitions under Section 126 of the Clean Air Act, which allows states to ask the EPA to set emissions limits for specific pollution sources in other states that contribute significantly to their air quality problems and hinder their ability to meet the one-hour ozone standard. (Last April petitions in the remaining New England states were denied because they no longer had areas that failed the one-hour standard.) Meanwhile, at press time, petitions were still pending for Maryland, New Jersey, Delaware and the District of Columbia.

The granting of the petitions means that EPA has found that various electric utilities and large industrial generators located upwind are contributing significantly to pollution in the complaining states. The action means that 392 facilities in 12 states (Delaware, Indiana, Kentucky, Maryland, Michigan, North Carolina, New Jersey, New York, Ohio, Pennsylvania, Virginia and West Virginia) and the District of Columbia must reduce annual emissions by a total of nearly 510,000 tons from 2007 levels. The EPA says that the Section 126 action along will mean cleaner air for over 100 million people, over one-third of the country's population.

The identified facilities can meet emissions "caps" by participating in a federal NOx cap-and- trade program, which will allow them to buy and sell emissions allowances. The program, which had been on hold, now begins to move forward toward the deadline of May 1, 2003 four sources to achieve their respective required NOx reductions. For more information on the petitions, including a list of companies with cited facilities, go to "Recent Actions" ( http://www.epa.gov/ttn/oarpg/ramain.html) on the EPA's webside and see "Section 126 Petitions."

Doubling Efforts: the Federal Lawsuits

Earlier, on Nov. 3, the EPA had filed lawsuits against seven electric utilities operating plants in the Midwest and South, alleging the companies violated the Clean Air Act by abusing a loophole that exempted older, coal-fired plants from the law. The EPA had alleged that, for all intents and purposes, the companies had converted those facilities into "new" plants by increasing capacity and replacing and updating equipment, thus nullifying any

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