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6 northeast states sue EPA over failure to act on petition to cut upwind ozone emissions

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6 northeast states sue EPA over failure to act on petition to cut upwind ozone emissions

New York and five other northeast states sued the U.S.Environmental Protection Agency over the agency's lack of response to a 2013petition that sought to expand the ozone transport region.

New York's Office of the Attorney General on Oct. 6 filedthe complaint on behalf of New York, Connecticut, Massachusetts, Vermont, NewHampshire and Rhode Island. The court ought to require that EPA AdministratorGina McCarthy respond, by a firm deadline, to a Section 176A petition thatthose six states, along with Pennsylvania, Maryland and Delaware, had filed in2013, according to the complaint. New York's Assistant Attorneys GeneralMichael Myers and Morgan Costello filed the complaint in the U.S. DistrictCourt for the Southern District of New York.

The Section 176A petition, which the states sent to the EPAin December 2013, tried to provoke upwind states to cut interstate ozoneemissions, which can mix with mobile, industrial and power plants emissions toform ground-level ozone. Ozone, or smog, contributes to respiratory illnesses,asthma attacks and premature death depending on the level of exposure.

The lawsuit comes as "[s]tates upwind of New York thatdon't take adequate responsibility for their pollution shift the cost andpublic health burdens of this pollution onto New Yorkers," AttorneyGeneral Eric Schneiderman said in a release.

"For too long, New York state's air quality hassuffered from pollution from coal-fired power plants located in upwindstates," New York State Department of Environmental ConservationCommissioner Basil Seggos added. "It is time for EPA to require thosestates to join our efforts to reduce the ozone pollution that contributes toasthma and other respiratory illness."

The court should find that the EPA violated the Clean AirAct because it failed to respond to the Section 176A petition by June 10, 2015,or within 18 months of receiving the petition, which the Clean Air Actrequires, petitioners said.

"The EPA is reviewing the lawsuit and will respondaccordingly," said an agency spokesperson.

Under the Clean Air Act's Section 176A, governors canpetition the EPA to add all or part of a state to an air quality region ifpollution blowing from sources in that state prevents the region from complyingwith federal air pollution standards. In the Section 176A petition, the statesasked the EPA to expand the Ozone Transport Region, which is limited to a dozeneastern states and the District of Columbia and has historically been used toaddress ozone problems in the northeast region. The petition mentioned addingnine states — including Illinois, Indiana, Kentucky, Michigan, North Carolina,Ohio, Tennessee, Virginia and West Virginia — to the region to push upwindstates to take additional steps to reduce ozone, according to a relatedfactsheet.

Reductions in interstate ozone emissions have become morepressing to meet tighter environmental regulations. The EPA in October 2015tightened the primaryand secondary ozone standards to 70 ppb, down from 75 ppb. Furthermore, theagency on Sept. 7 finalized an update to the Cross-State Air PollutionRule to cut ozone-forming pollutants from power plants across 22 eastern states.

The six states gave notice in April of their intent tosue. The EPA on June 3 motioned for a district court to dismiss a separatelawsuit that the North Carolina Department of Environmental Quality in March to compel the EPAto act on the Section 176A petition. The U.S. District Court for the EasternDistrict of North Carolina's Western Division will hold the case in abeyanceuntil Oct. 12 while the parties try to resolve the dispute outside the court,according to a Sept. 16 order.