Louis Zeller

June 7, 2001

Thank you for the opportunity to appear before the committee today.

The Blue Ridge Environmental Defense League advocates a multifaceted approach for cleaning up western North Carolina’s air. A significant portion of the air pollution in western NC is caused by coal-fired power plants and other pollution sources in upwind states. Yes, North Carolina must assume its responsibility in reducing emissions within its borders. Legislation now under consideration in the General Assembly may move us in a positive direction to reduce in-state emissions. The NC Environmental Management Commission is now receiving comments on the EPA required state nitrogen oxide implementation plan (NOx-SIP). And the Western North Carolina Air Pollution Control Board has acted decisively to reduce air pollution within its borders. The filing of a Section 126 petition is the next logical step.

Air pollution does not respect political boundaries. As you know, some types of pollution, including ground level ozone, acid rain, and fine particles, have their greatest impact far from the point of generation. The federal Clean Air Act gives states and local governments the right to petition EPA to reduce pollution from other states and offers specific remedies to communities that suffer from pollution created upwind. If a state does not take adequate steps to control the pollution generated within its borders, those who live downwind can force pollution reductions across state lines.

The Clean Air Act contains two sections that prescribe how such remedies may be achieved. Section 115 outlines measures foreign governments may take to prevent or eliminate negative effects from pollution sources within the United States. Section 126 gives similar rights to states and local governments.

Section 126 gives any state or local government the authority to ask EPA to set limits on pollution sources in other states. It contains three provisions: a) New or modified pollution sources which may contribute to excess pollution levels in other states must provide notification to them, b) Local and state governments may petition the EPA for an assessment of interstate pollution effects, and c) States may not permit construction or operation of a pollution sources which endanger public health or welfare in other states.

In 1999 the EPA granted four 126 petitions for violation of the 1-hour ozone standard in Connecticut, Massachusetts, New York, and Pennsylvania. As a result, 392 facilities in upwind states must reduce their emissions by a half million tons.

In a similar way, North Carolina’s air quality is affected by pollution sources in other eastern states. The provisions of Section 126 (b) offer the most rapid means for air quality improvements in western NC. The Clean Air Act states, “Any state or political subdivision may petition the Administrator for a finding that any major source or group of stationary sources emits or would emit any air pollutant in violation of the prohibition of section 110 ... or this section” [emphasis added]. Section 110 requires states to develop plans for regional pollution abatement to meet NAAQS.

On behalf of the Blue Ridge Environmental Defense League, I recommend that the Western North Carolina Air Pollution Control Board take action under Clean Air Act section 126 for the following reasons:

1) Action by the Western North Carolina Air Pollution Control Board would provide a model for interstate pollution reduction for other local programs and municipal governments. It would help clarify the issue and frame the debate. As the local program responsible for air quality in western NC’s largest metropolitan area and the agency in closest proximity to the nation’s premier national park, the Western North Carolina Air Pollution Control Board would be the driving force for protecting its people and pristine areas.

2) Action by Western North Carolina Air Pollution Control Board would strengthen other air pollution reduction efforts underway at state and federal levels. A Section 126 petition would help to keep other EPA initiatives on track. Regardless of the specific outcome of the Board’s petition, it would help ensure that the changes necessary to meet NAAQS are implemented sooner.

3) Ongoing efforts by the Southern Appalachian Mountain Initiative and others may simply be too late to bring about reductions in pollution that will have a real impact on public health. With all due respect to the regional deliberative process, the people of western North Carolina need help now.

Section 126 Petitions--Findings and Rulemakings
(The following information compiled from EPA webpages) 

In accordance with section 126 of the Clean Air Act, eight Northeastern States filed petitions requesting EPA to make findings and require decreases in nitrogen oxides (NOx) emissions from certain stationary sources in upwind States that may significantly contribute to ozone nonattainment problems in the petitioning State. In a related action, certain States were required to revise their State implementation plan (SIP) measures under EPA’s NOx SIP call to ensure that emissions reductions are achieved to mitigate the regional transport of ozone across State boundaries in the eastern half of the United States. Further, Federal implementation plans (FIPs) may be required if any State fails to revise its SIP to comply with the final NOx SIP call. The Ozone Transport Assessment Group (OTAG) was a partnership between the EPA, the Environmental Council of the States and various industry and environmental groups which assessed the long-range transport of ozone and ozone precursors.

The States that petitioned EPA under section 126 were Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, Pennsylvania, and Vermont. Each petition requests that EPA make a finding that certain major stationary sources or groups of sources in upwind States emit NOx emissions in violation of the CAA’s prohibition on amounts of emissions that contribute significantly to ozone nonattainment or maintenance problems in the petitioning State. All of the eight petitioning States requested section 126 findings under the 1-hour ozone standard. Five of the petitioning States (Maine, Massachusetts, New Hampshire, Pennsylvania, and Vermont) also requested section 126 findings under the 8-hour ozone standard. Section 126 provides that if EPA finds that identified stationary sources emit in violation of the section 110(a)(2)(D) prohibition on emissions that significantly contribute to ozone nonattainment ormaintenance problems in a petitioning State, EPA is authorized to establish Federal emissions limits for the sources.

In a notice of federal rulemaking published May 25, 1999 (NFR), EPA made final determinations that six of the eight petitions had technical merit. The EPA made affirmative determinations that existing and new large electric generating units (EGUs) and large industrial boilers and turbines (non-EGUs) located in certain States identified in the section 126 petitions are significantly contributing to nonattainment in, or interfering with maintenance by, one or more of the petitioning States with respect to the 1-hour and/or 8-hour ozone standards. Under the 1-hour standard, EPA made affirmative technical determinations of significant contribution for sources located in the District of Columbia and 12 States. Under the 8-hour standard, EPA made affirmative technical determinations of significant contribution for sources located in the same States and the District of Columbia as under the 1-hour standard plus seven additional States.

In the May 25 NFR, EPA also rejected the suggestion that the Agency has no discretionary authority to grant petitions under section 126 until after it has promulgated a SIP call under section 110(k)(5) to require States to comply with section 110(a)(2)(D)(i) and States have failed to comply with that SIP call. First, such an interpretation would have made section 126 redundant with section 110(c), which already allows EPA to control sources directly through FIPs when a State has been required to submit an adequate SIP and fails to do so. Second, such an interpretation negates the purpose of section 126, “which is designed to provide recourse to downwind states” (64 FR 28274).

The EPA also stated that no progress had been made on interstate transport problems at the time of enactment of both the 1977 and 1990 Amendments. Section 126 provides a tool for downwind states, the entities with most at stake, to force EPA to confront the issue directly. It also sets up an abbreviated, and hence potentially faster, process to achieve emission reductions. Under the state implementation plan (SIP) process, EPA must direct a state to revise its SIP to comply with 110(a)(2)(D), and then perhaps find that the state has failed to comply, impose sanctions, and finally promulgate a Federal implementation plan, all of which could potentially stretch out for many years. In contrast Congress required very expeditious EPA action on a petition and from 3 months up to three years for sources to comply. It is perfectly reasonable for Congress to have established section 126 as an alternative mechanism under the Clean Air Act to address the interstate pollution problem.

The EPA’s final section 126 findings on the eight petitions under the 1-hour standard are based on the affirmative technical determinations made in the May 25 NFR. EPA evaluated the petitions independently under the 1-hour and 8-hour standards where a state requested a finding under both standards. The EPA stayed the affirmative technical determinations with respect to the 8-hour standard in light of the court decisions on that standard. Sources subject to findings under the 1-hour standard will be required to implement controls beginning in May 2003.