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April 10, 2002

Council seeks to join litigation over state rule on air-emission permits

The Business Council has asked a federal appeals court to let The Council join litigation between an environmental advocacy group and the U.S. Environmental Protection Agency (EPA) related to how New York regulates air emissions from large industrial and utility sources.

On April 9, The Council asked the U.S. Court of Appeals for the Second Circuit in New York City to grant The Council "intervenor" status in litigation initiated by the New York Public Interest Research Group (NYPIRG) against the EPA.

The litigation concerns how the state issues air-emission permits under Title V of the federal Clean Air Act amendments of 1990. Title V establishes federal requirements for major air-emission sources, but requires states to implement the permitting program, with federal oversight. All states' regulations must be approved by the EPA, which retains its own authority to approve or reject permits, and to bring enforcement actions.

In the lawsuit, NYPIRG is challenging the EPA's final approval to the Title V permit program, its response to a NYPIRG petition on alleged program deficiencies, and EPA's approval of three specific permits.

The Council wants to join the litigation because there would otherwise be no voice for the state's permit-holders in the process, said Ken Pokalsky, director of environmental and regulatory affairs. The Council strongly opposes changes to the permitting process advocated by NYPIRG, he added.

The state Department of Environmental Conservation (DEC), whose regulations are being challenged in the NYPIRG lawsuit, also has asked to intervene in the litigation.

"We believe we should be a part of this process," Pokalsky said. "We participated extensively in the state's rulemaking process for Title V, and we submitted comments to the EPA in response to NYPIRG petitions.

"And we have more than 80 members with more than 100 facilities subject to Title V permit requirements, and their business operations could be significantly affected by the outcome of this suit."

The state Department of Environmental Conservation (DEC) adopted its Title V regulations in July, 1996. Final federal approval of those regulations came last February.

Pre-existing permit conditions: New York State has issued its own air-emission permits for at least three decades, Pokalsky noted. Many older permits include emissions-related numbers that were clearly understood by both permit holders and the DEC to be descriptive, but not enforceable, he said.

NYPIRG believes that most provisions of pre-Title V permits should be considered federally enforceable conditions of Title V permits, Pokalsky said.

"This was never the state's intent in issuing these permits, and this change would radically affect the ability of many industrial facilities to operate or modify their operations," Pokalsky said.

Exemptions for startups, shutdowns, and malfunctions: New York State regulations say that, in certain circumstances, emissions that exceed permitted limits during startups, shutdowns, or malfunctions are deemed to be not in violation, Pokalsky noted.

"This is especially critical for power plants, in which these events inevitably create short-term spikes in emissions," Pokalsky noted.

NYPIRG is arguing that in cases where the state permit is implementing a federal requirement, the state's excuse provision should not apply.

There is no timetable for the court's decision on The Council's application for intervenor status. Rice and Justice, The Business Council's general and legislative counsel, is representing The Council in this action.