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Courts tell EPA to issue plans curbing ozone drifting into 3 eastern states

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Courts tell EPA to issue plans curbing ozone drifting into 3 eastern states

Two federal appeals courts have set deadlines for the U.S. Environmental Protection Agency to finalize rules aimed at making several states curb ozone emissions drifting into New York, Connecticut and Maryland.

The court rulings, which could result in the EPA directing states to curb emissions from sources including coal-fired generation, came down even as the Trump administration is reportedly looking for ways to rescue financially ailing coal and nuclear generation, including through emergency orders in the name of national security that would effectively waive the environmental controls states now seek.

The EPA has also moved to roll back environmental regulations including the Clean Power Plan that aim to curb carbon dioxide emissions from existing power plants. The agency has faced multiple lawsuits by environmental groups and states frustrated by the agency's slow pace at enforcing its own regulations.

One of the two court cases involves a petition by Maryland for the EPA to require 19 coal-fired power plants to run on existing pollution controls during ozone season. Some of those power plants, such as FirstEnergy Corp.'s 1,300-MW Pleasants plant in West Virginia, are up for retirement.

The first of the two court decisions came down on June 12. The U.S. District Court for the Southern District of New York in an opinion and accompanying order gave the EPA until Dec. 6 to sign and publish federal implementation plans for Illinois, Michigan, Pennsylvania, Virginia and West Virginia to comply with the 2008 National Ambient Air Quality Standards for ozone, including provisions to address the "Good Neighbor Provision" of that rule.

That provision is meant to stop sources of pollution in one state from emitting pollutants that will drift and inhibit other states' ability to meet their air quality requirements.

The EPA found in August 2015 that 24 states, including the five listed above, had failed to submit their own plans. This triggered a series of deadlines under the Clean Air Act for the EPA to create federally enforceable plans for those states.

The attorneys general of New York and Connecticut in January sued the EPA for failing to issue those plans by its Aug. 12, 2017, legal deadline. The deadlines the court has now set for the EPA are the same ones the states requested.

EPA has until June 29 to sign and disseminate a notice of proposed action and until December 6 to finalize the states' obligations, the court said. Moreover, EPA "shall expeditiously deliver" notices of the proposed and final rulemakings to the Office of the Federal Register for publication, the court said, rejecting the EPA's request to only be required to sign the rules, but not publish them, by those deadlines.

"Even though the defendants may not be legally required to disseminate the proposed notice, they have sworn that it is feasible for them to do so (which is reasonable given that the dissemination is completed by web posting) and that it is their typical practice," the court said in the opinion. (State of New York and State of Connecticut v Scott Pruitt and the U.S. EPA, 18-406)

New York Attorney General Barbara Underwood hailed the decision.

"The court's decision is a major win for New Yorkers and our public health, forcing the Trump EPA to follow the law and act to address smog pollution blowing into New York from upwind states," said Underwood. The state Legislature appointed her in May as interim attorney general after Eric Schneiderman resigned.

EPA must act on coal plant ozone case

In a related decision filed June 13, the U.S. District Court for the District of Maryland gave the EPA until mid-September to act on Maryland's petition to find that 36 power plant units in Indiana, Kentucky, Ohio, Pennsylvania and West Virginia, are making it harder for Maryland to meet the 2008 and 2015 air quality requirements for ozone. The petition also sought to have the units at those 19 power plants run existing pollution controls during ozone season. The EPA had already made a determination that pollution from those states is contributing to Maryland's ozone problem.

The EPA in January 2017, during the final weeks of the Obama administration, announced it would take an additional 60 days to rule on Maryland's request, but has not moved on the case since, the court noted. (State of Maryland v Scott Pruitt, et al, 17-2873)

The Maryland federal court was persuaded by EPA officials' testimony that the agency is busy and ozone issues are complicated with one power plant unit, much less three dozen. As such, 60 days from the date of the court's decision may not give the EPA enough time to finalize a rule and receive public comment, the court said. It gave EPA until Sept. 15, or about 90 days, to sign a notice taking final action on Maryland's petition.

The court added, however, that "it does not grant the above extension lightly" given "EPA's apparent unwillingness or inability to comply with its mandatory statutory duties within the timeline set by Congress. If EPA and the administrator believe the timelines ... are unreasonable, they should seek an extension from Congress (in the form of an amendment), not through the courts," the court said, adding that no further delays will be granted.

The case was consolidated with a complaint brought by a number of environmental groups, including the Sierra Club, Chesapeake Climate Action Network and the Environmental Defense Fund.

"These two court decisions send a clear message — EPA can't just sit on the sidelines when states are suffering from air pollution coming across their borders, even if that's what Scott Pruitt's polluter cronies want," Mary Anne Hitt, senior director of Sierra Club's Beyond Coal campaign, said in a statement.

The plant units targeted in Indiana are the multiple company-owned Warrick unit 4; Clifty Creek units 1,2 and 3; Gibson units 3 and 5; and Petersburg units 2 and 3.

Units targeted in Kentucky are Duke Energy's East Bend unit 2, Owensboro City's Elmer Smith unit 1, and Tennessee Valley Authority's Paradise unit 3. Ohio units targeted are the multiple company-owned Kyger Creek units 1 through 5; multiple company-owned Killen Station unit 2; and Dynegy Inc.'s W.H. Zimmer unit 1.

In Pennsylvania, units on the list are FirstEnergy's Bruce Mansfield unit 1, Cambria Cogeneration units 1 and 2, NRG Energy Inc.'s Cheswick unit 1, Homer City units 1 through 3, multiple company-owned Keystone units 1 and 2, and Talen Generation LLC's Montour units 1 and 2.

And in West Virginia, the list includes the Pleasants plant, multiple company-owned Grant Town Cogen plant and FirstEnergy's Harrison units 1 through 3.