Regional Reports: Region 1

Kenneth Reich and Seth Handy
Edwards & Angell, LLP
Boston, Massachusetts and Providence, Rhode Island
Kreich@ealaw.com; Shandy@ealaw.com

Maine (ME DEP Div. of Air Quality - Mark Cone 207/287-2437)

Maine has had difficulty determining whether New Source Review requirements are triggered by proposals to rebuild boilers and recovery boilers and looks forward to the implementation of necessary program clarifications.

There is no current drive to introduce state legislation or regulations addressing power plant emissions in Maine and there are no NSR permit proceedings pending for those sources. Maine's attorney general signed a letter that 11 attorneys general sent to President Bush urging the administration to take more aggressive action to deal with climate change caused by carbon dioxide and other greenhouse gases. However, ME DEP offered no opinion on the Bush administration's proposed Clear Skies initiative.

Vermont (Agency of Environmental Conservation, Air Quality Division, Bart Stanzer 802/ 241-3848)

Vermont has few major sources subject to NSR requirements and is generally more stringent than federal standards in the establishment of technology-based standards for new sources. Vermont is concerned that the proposed changes to the NSR program will weaken the program and make it difficult for states to be more stringent than the federal standards.

Like other northeastern states, Vermont is principally concerned with the control of upwind sources of air pollution and believes it essential to have sufficiently stringent federal standards to compel adequate state control of those sources. Vermont is skeptical of the perceived premise of the Clear Skies proposal that more sources will implement necessary pollution control measures in a less demanding regulatory environment. The State acknowledges that market-based regulatory programs can be effective but believes that they must be supported by appropriate bottom-line caps. They are concerned that the proposed financial test for routine maintenance (5-8 percent of capital cost) sets a high threshold for the application of the NSR standards and will be very hard for the states to police, given accounting techniques. Furthermore, the proposal to determine baseline emissions for new sources by selecting any 24 month period over a 10-year span leaves industry too much flexibility to establish relaxed baselines based on the vicissitudes of the economy and production. Finally, Vermont is upset by the administration's proposal to strip the states' rights to sue under Section 126 of the Clean Air Act until 2011.

Rhode Island (Department of Environmental Management, Office of Air Resources, Doug McVay 401/222-7011)

Rhode Island does not have any pending NSR permits and is mostly interested in the assurance of adequate controls on upwind sources. Rhode Island's attorney general also signed the letter that 11 attorneys general sent to President Bush urging the administration to take more aggressive action to deal with climate change caused by carbon dioxide and other greenhouse gases. The state contact acknowledged that there is room for improvement with the existing NSR program but also voiced concern that the President's proposed Clear Skies initiative weakens the NSR trigger by changing the definition of "significant modification," threatens to stall the implementation of state of LAER/BACT modifications, delays the deadlines for achievement of air quality objectives and omits regulation of carbon dioxide emissions.

Rhode Island is still participating in lawsuits brought against Midwest power plants for failure to comply with NSR requirements upon the implementation of alleged "significant modifications."

On July 15, 2002, RIDEM issued a Rhode Island Greenhouse Gas Action Plan addressing ways in which to achieve the New England Governors' and eastern Canadian Premiers' regional greenhouse gas (GHG) reduction target of reducing GHG emissions to 1990 levels by 2010 and 10% below 1990 levels by 2020.

In other news, Rhode Island is about to propose changes in their air toxics regulations to broaden the list of regulated toxics. The proposed regulations will expand the list (currently 40) to include all of EPA's listed "hazardous air pollutants" along with some additional "toxics" regulated in California. Altogether, the list would be expanded to include 250 toxic air pollutants.

New Hampshire (Department of Environmental Services, Air Resources, Joe Fontaine, 603/271 6794)

As of May 2002, New Hampshire became the first state to pass legislation requiring power plants to reduce emissions of four pollutants: sulfur dioxide, nitrogen oxides, mercury and carbon dioxide. The new law also requires reductions within a five-year time period, a significantly more stringent timetable for compliance than is contemplated in the proposed Clear Skies initiative, and expects to accomplish these reductions through market-based strategies.

Two natural gas power plants have recently gone through NSR permitting in New Hampshire. As an incentive for the construction of new and cleaner natural gas plants, New Hampshire gave the plants higher nitrogen oxide allowances than they needed and the excess allowances were used as offsets for the achievement of NSR performance standards, so the plants did not have to obtain offsets on the open market.

New Hampshire's interest in the NSR program is based primarily in its concern for the sufficient control of upwind sources outside of New Hampshire. New Hampshire supports the principles set out by the State and Territorial Air Pollution Program Administrators (STAPPA) and Association of Local Air Pollution Control Officials (ALAPCO) in testimony presented to the Senate Environment and Public Works Committee on June 12, 2002, including the retention of the NSR Program and the introduction of additional controls for power plant emissions. New Hampshire's attorney general also signed the letter that 11 attorneys general sent to President Bush urging the administration to take more aggressive action to deal with climate change caused by carbon dioxide and other greenhouse gases. New Hampshire is also participating in lawsuits brought against Midwest power plants for failure to comply with NSR requirements upon the implementation of alleged "significant modifications."

Connecticut (Department of Environmental Protection, Bureau of Air Management, Ellen Morris 860/424-3027)

No report.

Massachusetts (Massachusetts Department of Environmental Protection, Donald Squires 617/292-5618)

As evidenced by the state's recent adoption of stringent regulations on air emissions from power plants, which included restrictions on CO2 emissions, Massachusetts has pursued its own course in the regulation of air pollution as it deemed necessary for the protection of public health. Massachusetts' attorney general also signed the letter that 11 attorneys general sent to President Bush urging the administration to take more aggressive action to deal with climate change caused by carbon dioxide and other greenhouse gases. The governor's administration is reviewing the proposed changes to the federal NSR program and did not have comments on them at this time. However, Massachusetts expects to continue steering its own course to the effective control of air pollution.

Recent USEPA Press Releases

On July 23, 2002, EPA announced that the University of Massachusetts has agreed to pay a $40,000 fine, implement an environmental management system at its garage and carry out two environmental projects to reduce energy use on its campus, as a result of violations from fueling, coating and degreasing operations that caused excessive emissions of volatile organic compounds (VOCs). UMASS was also cited for late and inadequate responses to information requests. The inspections are part of a region-wide effort by EPA, in partnership with MADEP and the city of Boston, to curb diesel air emission, particularly in inner-city neighborhoods.

On July 8, 2002, EPA announced the issuance of a notice of violation to the Massachusetts Bay Transportation Authority for buses that were idling in violation of the state's five-minute limit. The MBTA is working cooperatively with USEPA to address the violations.

On June 25, 2002, USEPA announced that it had settled a complaint with Cumberland Farms Inc. for violations of the Clean Air Act at 80 of its gas stations in Connecticut, Massachusetts and Rhode Island. The violations arose out of investigations beginning in 1995, revealing that the company did not comply with requirements for testing, record-keeping and reporting, employee training and maintenance of vapor recovery equipment. The company will pay a cash penalty of $90,000 and perform a supplemental environmental project of upgrading and increase testing of its vapor recovery systems at 42 stations throughout New England. EPA expects the SEP to cost $2 million and to reduce VOC emissions by as much as 70 tons per year and benzene emissions by 1,200 pounds per year.

On Aug. 7, 2002, EPA announced that it issued notices of violation to 10 companies and Massport for violating clean air regulations by idling buses for excessive periods of time at Logan Airport this summer. Violators face fines of up to $27,500 per violations.