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Wyoming Sues to Control Its Own Ozone

CHEYENNE, Wyo. (CN) - The U.S. Environmental Protection Agency is now in charge of regulating new sources of pollution in Wyoming's Upper Green River Basin because it failed to respond to the states' air-pollution-control plan, the state claims in Federal Court.

Michael McGrady and Jeremiah Williamson with the Wyoming Attorney General's office say that Gina McCarthy is shirking her duties as administrator of the EPA by not reviewing the state's nonattainment new source review implementation plan.

Though Wyoming gave the EPA its pollution-control plan for new major sources of pollution for the oil-rich Upper Green River Basin a year before the agency deemed the area out of compliance with federal pollution standards, the EPA has still not reviewed the submission, according to the Feb. 25 complaint.

Without the plan in place, the federal government's regulations apply to permitting of construction or modification of major sources of pollution, by default, the complaint says.

Wyoming says a federal judge should order the EPA to review the plan and determine whether it is adequate, as statutes say it should have done a year ago, according to the complaint.

The EPA updated its national ambient air-quality standards for ozone to an eight-hour limit of 0.075 parts per million on March 27, 2008.

Under the Clean Air Act, states must design air-pollution-control plans that detail how they intend to reach and enforce the ozone standards, as well as those for other pollutants.

Any area that does not meet the standards is designated "nonattainment." If a state wants to start a project that will become a new source of air pollution in a nonattainment area, they must submit additional plans, called nonattainment new source review plans, to the EPA for approval.

About four years after it updated the ozone standard, the EPA designated parts of Wyoming's Upper Green River Basin in Sublette and Lincoln counties as a nonattainment area, in July 2012.

But, prior to the designation, Wyoming submitted a nonattainment new source review plan, in May 2011, about a year before the federal nonattainment designation took effect, according to the complaint.

Expecting this designation, Wyoming says it "undertook significant efforts to develop and adopt a nonattainment new source review plan, including soliciting public comments and holding a public hearing on the plan."

The state allegedly submitted the plan in May 2011, about a year before the nonattainment designation took effect.

Regulators have six months after a nonattainment new source review plan is submitted to determine if it is complete and meets federal air quality standards, according to the complain. If the EPA does not respond by that deadline, the plan "becomes complete by operation of law" and the EPA has twelve months to approve, disapprove, or partially approve or disprove the plan, according to the complaint.

Wyoming's attorneys claim the EPA did not determine whether the plan was complete by November 2011, or take final action approving or disapproving the plan by the 12-month statutory deadline.

"Because the state is more familiar than the EPA with both the air pollution sources it has historically regulated and the local conditions that influence air quality regulation, the state is better situated than the EPA to oversee new source review permitting in the ozone nonattainment area," the complaint states.

It continues: "By failing to take action on the state's nonattainment new source review plan, the administrator supplants the state as the primary regulator of major source air pollution in the Upper Green River Basin.

"The administrator's failure, therefore, denies the state its rights under the [Clean Air] Act to be the primary regulator of air pollution within its borders and to have its implementation plans acted upon in a timely fashion," the complaint states.

The state asks the court to declare EPA Administrator McCarthy in violation of the Clean Air Act, and issue a mandatory injunction compelling her to "perform her nondiscretionary duties."

The EPA's media liaison for air-quality inquires did not return emails seeking comment.

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