Ohio EPA's clean interstate air proposal

Chris Korleski, head of Ohio’s Environmental Protection Agency, testifying before the Senate subcommittee on Clean Air and Energy, last Tuesday, urged passage of a law which would allow the federal government to devise regional plans leading to reductions in air pollutants that cause a wide range of health problems. (See article )

The Senate committee’s hearing centered the Federal EPA’s Clean Air Interstate Rule (CAIR), and two recent decisions from the U.S. Court of Appeals in the District of Columbia which effectively stopped President Bush’s pollution initiatives.
A New York Times article summarizes.

There were two such cases, the first being back in February, when the District of Columbia Court of Appeals invalidated final rules promulgated by the federal environmental protection agency “regarding the emission of hazardous air pollutants from electric utility steam generating units.” (“CAMR”). A first rule removed coal & oil-fired electric generating plants from a list of sources whose emissions are regulated under Section 112 of the Clean Air Act, while a second set performance standards for new coal-fired plants, and established “total mercury emission limits for states & certain tribal areas, along with a voluntary cap-and-trade program for new & existing coal-fired generating units,” under Section 111.

In December 2000, the EPA concluded it was “appropriate & necessary” to regulate mercury emissions from coal- and oil-fired power plants and listed them as sources of hazardous air pollutants, regulated by the EPA under Section 112 of the Clean Air Act ( 42 U.S.C. § 7412 ). In 2005, after reconsidering its previous determination, it attempted to remove those sources from the Section 112 list, and thereafter drafted its Clean Air Mercury Rule under Section 111. “EPA’s removal of the electric generating units from the Section 112 list violates the Clean Air Act because that section requires the EPA to make specific findings before removing a source,” the Court said; the EPA conceded that it never made those findings. The Court went on to say that, “Because coal-fired EGUs are listed under section 112, regulation of existing coal-fired EGUs’ mercury emissions under section 111 is prohibited…”

On July 11th. that same Court invalidated “CAIR,” holding EPA’s approach—regionwide caps with no state-specific quantitative contribution determinations or emissions requirements—is fundamentally flawed… “No amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule” the Court said.

“EPA must redo its analysis from the ground up. It must consider anew which states are included in CAIR after giving some significance to the phrase ‘interfere with maintenance’ in 42 U.S.C §7410 (a)(2)(D) …It must decide what date, whether 2015 or earlier, is as expeditious as practical for states to eliminate their significant contributions to downwind nonattainment…The trading program is unlawful because it does not connect states’ emissions reductions to any measure of their own significant contributions…”

The Ohio EPA had an alternative idea….

“The heart of the Court’s decision,” Chris Korleski told the Senate committee, “lies in its interpretation of a single section of the Clean Air Act: Section 110(a)(2)(D)(i)(I). Boiled down to its essence , the decision concluded that the cost-effective ‘regionwide’ trading approach on which CAIR was based did not accord with the requirement in Section 110(a)(2)(D)(i)(I) that SIPs must prohibit sources “within a state” from contributing significantly to non-attainment in another state.

“We would respectfully suggest that Congress address the loss of the significant emission reductions guaranteed by CAIR by a surgical, laser-like, amendment to section 110. Such an amendment would essentially allow US EPA to successfully re-promulgate CAIR such that the certain and significant emission reductions would be re-established. Indeed, Ohio puts forward the following language as a starting point for consideration and discussion:

“We propose a new Section 110(a)(2)(E):

Nothing in section 110(a)(2)(D) shall be construed to prohibit the Administrator from requiring the development and implementation of a regional emission reduction approach (including but not limited to an emission reduction trading approach), which, in the Administrator’s judgment, will eliminate or minimize any significant contribution to nonattainment caused by the impacts of pollution from upwind states on downwind states. Inclusion in an implementation plan of the regional emission reduction approach may, in the judgment of the Administrator, satisfy a state’s obligations under 110(a)(2)(D).