AIR STEWARDSHIP COALITION INITIAL COMMENTS IN RESPONSE TO NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION SECTION 126 PETITION

Letters
September 25, 2018
On March 12, 2018, the New York State Department of Environmental Conservation filed a petition with the U.S. Environmental Protection Agency (“EPA” or the “Agency”) under Section 126 of the Clean Air Act (the “Act” or “CAA”) (the “Petition” or “NY Petition”).  New York claims it cannot or will not achieve and maintain compliance with the 2008 and the 2015 National Ambient Air Quality Standards (“NAAQS”) for ozone. 

It contends more than 350 sources (“named sources”)—which span nearly all industry sectors across nine Midwest states— are the cause of New York’s ozone attainment issues, and petitions EPA to issue rules requiring new controls and emission limits on the named sources.   New York’s petition is without merit and should be rejected.  The Petition is an unprecedented attempt by one state to set emission standards in nine other states for more than 350 arbitrarily selected facilities, spanning nearly every major industry sector in the United States.  In fact, New York faces no ozone attainment issues outside of the New York Metropolitan Area (“NYMA”), and the Petition presents grossly misleading and deeply flawed modeling in an effort to try to link the named sources in other states to the problems alleged in the NYMA.   In addition, although New York did not share its modeling with EPA, ASC obtained and reviewed New York’s modeling. 

ASC’s close review demonstrates that New York used a nonstandard approach that is not found in EPA’s regulations or guidance.  Moreover, New York fails to meet its burden of showing that there are highly cost-effective emission control technologies available that the named sources are not already implementing.  Instead, New York insists that EPA impose New York’s preferred control strategies wholesale on hundreds of out-of-state sources without providing any specific data with regard to cost, feasibility, or effectiveness, and without considering in any way the extensive restrictions on emissions already imposed by the individual states.   As such, the NY Petition fails to satisfy the requirements of Section 126.  Not only does New York fail to meet its burden, independent assessment of the existing regulations and available emissions control technologies already in place demonstrates that Section 126 relief is not merited.  EPA should deny the NY Petition...