Northeastern States Seek Power Over North Carolina’s Air Quality Programs
Earlier this week, the governors of ten states in the Mid-Atlantic and Northeast took the first step towards asserting control over portions of North Carolina’s authority to regulate air pollution. The petitioning states, all of which are members of the 13-state Ozone Transport Region (the “OTR”), asked EPA to require North Carolina (and eight others) to join the OTR. If EPA grants the request, OTR would gain the ability, subject to approval by EPA, to impose additional restrictions on air emissions throughout North Carolina to abate excess ground-level ozone in other states.
EPA must accept public comments on the petition and make a final decision within the next eighteen months, but it is unclear whether the agency will ask for comments on the petition in the near term or issue a proposed decision first.
Background
Section 184 of the Clean Air Act created the OTR to address the problem of interstate transportation of the precursors to ground-level ozone from Washington, DC to Maine. That provision authorizes OTR, through a commission, to develop “additional control measures [to] be applied within all or part [of the OTR] if the commission determines such measures are necessary” to bring any area within the OTR into compliance with a National Ambient Air Quality Standard (“NAAQS”). In theory, adding North Carolina to the OTR gives the commission the ability to develop additional emission controls for this state, in order to alleviate exceedences of the NAAQS throughout the entire region. EPA then reviews the proposed controls and approves them. In reality, forcing North Carolina to join OTR gives the commission authority to force emission reductions here rather than imposing those reductions in the existing OTR states.
Questionable Basis for Including North Carolina
Both the technical support document for the petition and officials throughout the Department of Environment and Natural Resources (“DENR”) suggest that adding North Carolina to the OTR may be unwarranted and have little real effect in the Mid-Atlantic and Northeast. The OTR states argue that any state contributing greater than 1% of the NAAQS for ozone to a non-attainment area is a “significant” contributor to that non-attainment area. In other words, any state that contributes 0.75 parts per billion of ozone to an area that exceeds the 75 parts per billion NAAQS is a significant contributor to that exceedence. The appropriateness of such a low threshold is unclear in light of the consequences of forcing a state to join OTR.
Of the nine states named in the petition, North Carolina’s alleged contribution to ground-level ozone exceedences in the OTR is – by far – the lowest, and DENR believes even those estimates may be too high. The state’s maximum modeled contribution to any non-attainment area within the OTR is two times less than any other state and only slightly above the group’s threshold for a “significant” contributor. In addition, many at DENR question the validity of the group’s modeling data in light of recent changes in North Carolina’s emissions. For example, approximately 2,700 megawatts of coal-fired electrical generation have been shuttered in this state since 2010, and these changes are likely not reflected in OTR’s technical analysis. DENR also believes OTR’s modeling does not fully account for emission reductions required by North Carolina’s Clean Smokestacks Act.
Certain policy considerations also counsel against granting OTR’s request. OTR sent its petition to EPA on the day before the U.S. Supreme Court heard oral arguments regarding the Cross-State Air Pollution Rule (“CSAPR”)
– EPA’s latest program for dealing with interstate air pollution. CSAPR, if approved by the Court, will result in significant reductions of the same pollutants that are at issue in OTR’s petition. Without knowing
whether EPA will have a chance to implement CSAPR or what its ultimate effect will be, asking EPA to force more states into OTR is premature. This is particularly true regarding a state like North Carolina, whose “significant”
contribution to ground-level ozone exceedences within OTR is already tenuous. Finally, some at DENR have asked whether the OTR states have appropriately and fully implemented Clean Air Act programs in their own jurisdictions. They
suggest more rigorous implementation of existing programs in the current OTR states should occur before considering expansion.
Consequences of Forcing North Carolina into OTR
If North Carolina were forced into the OTR, DENR would be obligated to implement a number of statutorily required programs to reduce emissions of volatile organic compounds (“VOCs”). These would include requiring the installation of Reasonably Available Control Technology (“RACT”) for VOC emissions throughout the state and instituting enhanced vehicle inspection and maintenance programs in urban areas. DENR would also have to regulate any facility whose potential to emit VOCs is greater than 50 tons per year as a major source. And, because VOC emissions from stationary sources are not the cause of interstate ozone transport issues, none of these mandatory programs would have any effect on non-attainment areas in the OTR.
The OTR commission would also gain the ability to develop regulations requiring facilities in North Carolina to make additional reductions in their emissions of oxides of Nitrogen (“NOx”). The commission would submit these proposed regulations to EPA for approval, and EPA would have nine months to act on them. If approved, EPA would then issue a state implementation plan call (“SIP Call”) requiring North Carolina to implement the commission’s requirements. It is worth noting that – even if all nine of the states named in the petition are forced to join OTR – the downwind states, i.e., those claiming adverse effects from upwind NOx emissions, will still outnumber the upwind states on the OTR commission.
Conclusion
North Carolina’s connection to ozone non-attainment in the Mid-Atlantic and the Northeast is limited – and may be overstated by the OTR petition. Forcing the state into OTR will obligate DENR to implement additional VOC-related emission controls that will not help to improve air quality in the OTR, and it will subject North Carolina to a new regulatory body whose controlling majority is incentivized to force NOx emission reductions from locations outside of OTR’s current footprint. Indeed, the very purpose of the petition is to give OTR that ability. Business interests in North Carolina can, and should, make a strong case to EPA that including our state in OTR is legally and technically unwarranted.
The petition is available on this website: http://www.ct.gov/deep/cwp/view.asp?a=2684&Q=536370&deepNav_GID=1619
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