Maryland officials press EPA to reconsider decision on upwind air pollution, threaten lawsuit

Maryland environmental officials say they are mounting a challenge — including a potential lawsuit — to fight the Environmental Protection Agency’s decision not to force power plants from Pennsylvania to Indiana to tighten pollution controls.

Maryland Environment Secretary Ben Grumbles said Thursday that state officials will counter the denial at a public hearing scheduled for June 22 in Washington.

But he’s not waiting until then to voice his frustration.

At a meeting in Baltimore of air quality regulators from the EPA and across the Northeast, Grumbles said Maryland will sue the federal government if necessary.

“We certainly will use all available tools, including litigation,” he told members of the Ozone Transport Commission, an organization of 12 states and the District of Columbia that is focused on reducing smog regionally.

In 2016, Maryland and Delaware filed a petition under the federal Clean Air Act calling on the EPA to force power plants in upwind states to reduce emissions on the hottest, smoggiest days. The two states argued that the plants pollute more than they should on those days because they are judged by average smog outputs, not on their day-to-day emissions.

But EPA officials last week rejected that petition, saying Maryland and Delaware did not prove the power plants pollute at levels that violate what is known as the “good neighbor” provision of the Clean Air Act.

Maryland officials blame upwind air pollution for more than two-thirds of the smog that forms over the Baltimore and Washington regions on hot summer days. On those days, sunlight and heat help trigger chemical reactions between pollutants and other compounds in the air, multiplying what is known as ground-level ozone.

Ozone is a form of oxygen found naturally in upper levels of the atmosphere, but that can cause or exacerbate breathing or heart problems when breathed in by humans.

Interstate air pollution is also a problem for the Chesapeake Bay. While most of the nitrogen pollution in the bay comes from farms and sewage treatment plants, nitrogen oxide pollution in the air is estimated to be responsible for about one-third of the contamination.

The Chesapeake Bay Foundation joined Maryland in its petition to the EPA, and said it would continue to fight what it sees as “a serious violation of the Clean Air Act.”

If Maryland were to sue over the denial, it would not be the first time the state has taken President Donald J. Trump’s administration to court over upwind air pollution.

The state sued the EPA in September, demanding that it require 19 power plants in upwind states to install the same scrubbers and other air-cleaning technology that Maryland requires its plans to use.

EPA’s more recent inaction relates to how often upwind power plants use such controls. Maryland and Delaware officials argued that by judging the power plants on their average pollution outputs, EPA allows them to release unhealthy amounts of pollutants on the days when smog risks are highest.

Tad Aburn, director of the air pollution division within the Maryland Department of the Environment, pressed federal regulators on that issue face-to-face at the meeting Thursday. The group held its spring meeting in Baltimore, hosted by Grumbles, the body’s chairman.

“We don’t see controls being used all the time, which is what we’d like to see,” Aburn said. “That seems like a very practical thing to ask for.”

Reid Harvey, an official within the EPA’s Office of Atmospheric Programs, told Aburn he couldn’t respond without legal advice.

Grumbles broke the tension with some sarcasm: “Welcome to Baltimore!” he told the EPA officials, before resuming the ozone commission’s regular business.

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