The New York State Department of Environmental Conservation (DEC) filed a petition on March 12, 2018, stating that pollution from upwind sources significantly contributes to nonattainment of the ozone National Ambient Air Quality Standards (NAAQS) in New York State. Currently the Environmental Protection Agency (EPA) lists the NYC Metro area and a few counties in Western New York are listed as moderate nonattainment for the 2008 8-hour Ozone standard. DEC performed a modeling analysis that identified sources that were projected to emit at least 400 tons of nitrogen oxide (NOx) in 2017 from sources in the electric generating unit (EGU), non-EGU, and oil and gas sectors in each contributing state. All told, there are more than 350 sites listed.

DEC's modeling was based on states that were identified in EPA's modeling for the Cross-State Air Pollution Rule (CSAPR) as contributing ozone concentrations of at least one percent of the 2008 NAAQS (or 0.75 parts per billion (ppb) or more) to a monitor in a downwind state. The sources identified in the petition are from nine states, including: Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, Virginia, and West Virginia.

DEC has requested that the EPA make a finding against the sources listed in the petition that they are in violation of the "good neighbor" provision of the Clean Air Act (CAA) section 110(A)(2)(D)(i). Furthermore, DEC requests that EPA establish emission limits to eliminate the significant contribution from these sources that cause New York State to maintain its nonattainment status. DEC believes these sources should be operating with NOx emission controls (e.g. selective catalytic or non-catalytic reduction systems) and at emission rates equal with New York State's Reasonably Available Control Technology (RACT) standards, which are based on a control cost efficiency of $5,000 per ton of NOx removed.

This is not the first Section 126 petition to be filed. Such petitions led the EPA to act on CSPAR in 2005. More recently, since 2016 there have been at least six Section 126 petitions, four of which were filed by Delaware. By rule, the EPA has sixty days to respond to any Section 126 petition. In late 2016 the EPA proposed a six month extension to act on pending petitions from Delaware, Maryland, and Connecticut. Each state has since sued the EPA for failing to respond to their petitions.

Recently though, the EPA has begun to take action on these matters. They denied the December 2013 176A petition to add states to the Ozone Transport Region (OTR) in November 2017 and denied Connecticut's June 2016 126(b) petition in February 2018.

Please contact Brian Noel, Managing Consultant, of our Albany office at (518) 205-9000 or Chris Whitehead, BD Supervisor Northeast, at (609) 375-2665 for more information.