The state’s Department of Natural Resources and Environmental Control is asking a federal appeals court to review a decision by the EPA that could affect air quality in Delaware.
The petition filed last week in the DC Circuit Court of Appeals is DNREC’s latest effort to get several out-of-state power plants to reduce emissions. State officials claim the emissions contribute to Delaware’s nonattainment of ambient ozone standards.
DNREC sent several petitions to the EPA two years ago, asking it to find the power plants in violation of the Clean Air Act's "good neighbor" provision, and to further regulate them. The facilities are located in Pennsylvania and West Virginia.
“We don’t have the ability to regulate entities in other states,” said DNREC Secretary Shawn Garvin. “And so we have to rely on the federal government to address these cross-state issues. So the petition was asking them to do exactly that.”
The EPA denied DNREC's 2016 petitions— along with one from the state of Maryland— in September. Garvin disagrees with the federal agency’s reasoning.
“Our modelling shows that there is absolutely impact coming from those facilities,” said Garvin. “We feel that their information was flawed. They also are using dates for compliance that go beyond the actual compliance date in the Clean Air Act.”
He says the EPA may also roll back certain transportation and mileage regulations, which could compound Delaware’s difficulty in meeting ozone standards.
Garvin says the best case scenario would likely be the judge asking the EPA to reconsider its decision. He does not expect the judge to require the EPA to change it.
“I am always an optimist,” said Garvin. “I can’t say how the judge is going to decide ... And it’s very difficult to tell what the time table is.”
Sources of pollution targeted in the DNREC's 2016 petitions include the Harrison Power Plant in West Virginia and the Brunner Island Power Plant near York, Pennsylvania.
Maryland's 2016 petition concerned 36 electric generating units in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia.
The EPA's notice of final action on the petition published in the Federal Register on Oct. 5 reads, “The EPA is denying the petitions based on the best information available to the agency at this time, and particularly in light of an existing regulation already addressing emissions from these facilities … The EPA’s denial finds that Delaware has not demonstrated that the named sources emit or would emit in violation of the [Clean Air Act’s] “good neighbor” provision. Further, the agency’s independent analysis indicates that the identified sources in Delaware’s and Maryland’s petitions do not currently emit and are not expected to emit pollution in violation of the good neighbor provision…”
