States Sue EPA over Clean Air Act Enforcement

Claiming the Environmental Protection Agency is failing to enforce the Clean Air Act, the attorney generals of seven states notified EPA Administrator Christie Whitman they are planning to file a lawsuit against the agency.

The lawsuit, the third involving enforcement of the Clean Air Act to be announced in the past two months, includes New York, Connecticut, New Jersey, Massachusetts, Rhode Island, Maine and Washington. It seeks new regulations of carbon dioxide, which is not specifically listed under the Clean Air Act alongside other pollutants. Another lawsuit that has 10 state plaintiffs was filed on Dec. 31 in an effort to stop the weakening of regulations governing coal-burning power plants. A lawsuit announced on Feb. 12 by three states like the one filed yesterday seeks to have carbon dioxide characterized as a pollutant.

"Both Administrator Whitman and the president have been clear that carbon dioxide is not a pollutant under the Clean Air Act," said Joe Martyak, a spokesman for the agency. "We have in place all the federal air quality standards required by the Clean Air Act."

EPA, says New York Attorney General Eliot Spitzer, has been "negligent in setting standards." The states claim carbon dioxide fits the Clean Air Act's definition of a pollutant: something released into the air that endangers health or welfare. The administration disputes the characterization of carbon dioxide as a pollutant.

Meanwhile, Pennsylvania Department of Environmental Protection (DEP) Acting Secretary Kathleen A. McGinty yesterday wrote a letter to Whitman, asking her to delay the implementation of recently published New Source Review regulations.

"The course that the administration is currently pursuing will most certainly cause economic harm to Pennsylvanians while impairing the health of our citizens," said McGinty. "Given that EPA has now cancelled two planned training sessions just two weeks prior to the deadline for states to comply EPA must also recognize that these rules are not ready and should not be rushed."

According to McGinty, Pennsylvania has a number of immediate implementation issues that must be addressed before the recently adopted provisions can be implemented effectively. There are 11 prevention of significant deterioration (PSD) applications pending before DEP. If the applications must be reviewed according to the recent amendments, the owners/operators of the proposed or modified facilities "will likely suffer an economic hardship due to a delay in the issuance of the permits," McGinty noted.

On Jan. 28, DEP filed a petition in the U.S. Court of Appeals, Washington D.C. circuit, challenging changes by the EPA in New Source Review air pollution regulations that deal with the construction or modification of large industrial sources of pollution, including power plants.

Since the new regulations are scheduled to take effect on March 3, McGinty took the added step of appealing directly to the EPA Administrator to delay implementing the rules pending the outcome of the suit filed by Pennsylvania and a separate suit filed by nine other northeastern states.

McGinty feels there is a strong likelihood that emissions from sources in upwind states will increase significantly under the proposed rules changes and will not only impact the health of citizens, but will compromise the commonwealth's ability to achieve and maintain the ozone and fine particulate standards.

"DEP has supported EPA's efforts to streamline the NSR program. However, we are concerned that certain reform provisions adopted by EPA will result in increased emissions," said McGinty. "As a result of the significant implementation issues faced by Pennsylvania and other state and local air quality programs, I respectfully request that you grant the request for administrative stay of the final NSR rule pending the outcome of the litigation."

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