Clean Air Act

Environmental & Public Health Groups Challenge US EPA’s Decision to Exclude Areas from Ozone Non-attainment List that Would Trigger Clean-up


Environmental and Public Health Groups Challenge US EPA’s Decision to Exclude Areas from Ozone Non-attainment List that Would Trigger Clean-up


Washington, D.C. — On August 2, the Environmental Law & Policy Center (ELPC) and Respiratory Health Association (RHA) sued the U.S. Environmental Protection Agency in the U.S. Court of Appeals for the D.C. Circuit, challenging the EPA’s final rule, published in June 2018, that identified areas that meet and fail to meet the 2015 ozone air quality health standard.

ELPC and RHA are challenging the exclusion of certain areas in Wisconsin, Illinois and Indiana from the Chicago, Milwaukee and St. Louis “non-attainment” areas that have smog levels above the 2015 standard.

“EPA has sadly disregarded the plain facts and sound science in making these designations,” said Howard Learner, ELPC’s Executive Director. “EPA has not followed the letter or the spirit of the Clean Air Act and has excluded areas involving unhealthy air quality for millions of Midwesterners. Cleaner air is essential to public health and a strong economy in our region.”

The Clean Air Act requires EPA to designate non-attainment areas in counties where air quality fails to meet federal health standards for ozone and where local emissions contribute to unhealthy air quality. The states must then take steps to reduce emissions of the air pollution that cause smog.

In 2015, EPA issued a more protective ozone air health standard, which triggered a process to identify violating areas so that clean air planning could begin. In the Chicago, Milwaukee and St. Louis areas, EPA originally proposed more comprehensive non-attainment areas, but excluded certain areas in its final decision in June in response to requests from the states.

“We are very concerned that EPA would dial back these decisions,” said Brian Urbaszewski, Director of Environmental Health Programs at Respiratory Health Association in Chicago. “Everyone deserves to breathe clean air, and EPA’s decision puts area residents at risk of more lung infections, asthma attacks, and hospitalizations for respiratory problems.”

Ozone is formed when pollution emitted by power plants, industrial facilities, motor vehicles and other activities reacts with sunlight to form ozone. Ozone, also known as “smog,” is a lung irritant and harms people with asthma or other respiratory diseases, older adults, children and other vulnerable people. It can drive kids and sensitive adults inside on hot sunny summer days  and put outdoor workers at risk.


Politico: ELPC Hires Janet McCabe, Obama-era Acting EPA Air Chief



Janet McCabe, the Obama-era acting EPA air chief who helped mastermind the Clean Power Plan and oversaw various other key regulations, will join the Chicago-based Environmental Law & Policy Center as a senior law fellow, she confirmed to ME. In an email to the ELPC staff yesterday, executive director Howard Learner notes McCabe will work part-time from her native Indianapolis starting May 15. Learner added: “These are extraordinary times, and we are adding top-rate talent to keep building ELPC’s ‘top of our game’ team to play both winning offense and defense. The best defense is a good offense. I am excited to be working together with Janet McCabe to play to win in the changed political circumstances.”


E&E News: ELPC Hires Former US EPA Air Chief Janet McCabe

Obama-era Air Chief Lands at Green Group
By Kevin Bogardus

Janet McCabe, who helped craft President Obama’s Clean Power Plan at U.S. EPA, has landed at a prominent environmental group.

McCabe is joining the Environmental Law & Policy Center as a senior law fellow. She starts at the Midwestern green law and policy group May 15 and will be based in Indianapolis.

In an interview with E&E News, McCabe said she was looking forward to working with ELPC.

People: Comings and Goings
“I’m really excited about this opportunity and want to remain active in these discussions about public health and the environment,” McCabe said.

Howard Learner, executive director of ELPC, said the group was thrilled to bring someone with McCabe’s clout on board, considering the challenging political times for the environmental movement.

“Janet is terrific, and she is one of the nation’s leading clean air attorneys,” Learner said.

“Certainly her knowledge, experience and savvy in developing the Clean Air Act standards during the last administration will give us strong insights into what strategic actions we should take going forward in protecting public health and the environment.”


From Peoria Journal Star: ELPC, Allies Win Federal Clean Air Case Against Coal Plant


August 24, 2016

Federal Judge Rules Against Edwards Coal-Fired Energy Plant
By Andy Kravetz

PEORIA — A federal judge on Tuesday ruled against the owner of a coal-fired energy plant in Edwards, saying its owners allowed too much soot to be emitted from the smoke stacks there.
A 50-page order, issued Tuesday by Senior U.S. District Judge Joe B. McDade, states Illinois Power Resources Generating LLC, which owns and operates the E.D. Edwards power plant, must work to clean emissions from the facility.

The Sierra Club, along with the Environmental Law and Policy Center, Natural Resources Defense Council and Respiratory Health Association, filed a lawsuit in 2013 alleging violations of the Clean Air Act. The suit was initially filed against Ameren Illinois, but the plant was acquired later in 2013 by IPRG, which is a subsidiary of Dynegy, an energy company based in Houston.

“We’re thrilled that Judge McDade is holding Dynegy accountable for the many years that it has spewed out harmful soot, failing residents of Peoria County,” said Jennifer Cassel, an attorney for the Environmental Law & Policy Center which represented the Respiratory Health Association. “It’s time for Dynegy to recognize that if it is going to continue to operate the Edwards plant, it must respect the community and the law by installing functional pollution controls.”

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Daily Herald: ELPC’s Learner Warns of Impact of Budget Impasse on Clean Air and Public Health

Could the state’s budget chaos increase air pollution?

It’s not a stretch, environmental experts say, given that drivers aren’t receiving reminders in the mail about vehicle emissions tests and won’t be penalized for skipping checkups starting Tuesday.

And without a stick to force everyone to get their cars tested, lungs breathing air tainted by thousands of vehicles emitting smog could be the next collateral damage from feuding between Republican Gov. Bruce Rauner and Democratic lawmakers.

“There’s a reason for inspections and maintenance requirements — they’re a fundamental building block of the Clean Air Act,” Environmental Law and Policy Center Executive Director Howard Learner said. “Illinois should and must comply with the Clean Air Act because it’s important to protect public health.”

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From Midwest Energy News: Q&A with Howard Learner on Recent EPA Clean Air Cases

Reposted from Midwest Energy News. Original available at

Q&A: Reading the tea leaves as EPA rules go to court

Posted on  by 

Howard Learner is the executive director of the Environmental Law & Policy Center in Chicago.

Howard Learner is the executive director of the Environmental Law & Policy Center in Chicago.

This week the U.S. Supreme Court heardoral arguments regarding the Cross-State Air Pollution Rule (CSAPR), which was struck down by a 2-1 decision by a panel of the U.S. Court of Appeals for the District of Columbia Circuit last year.

Two judges had ruled that the U.S. Environmental Protection Agency overstepped its bounds in ordering states to significantly reduce their air pollution because of the impact on neighboring states – namely the impact of Midwestern coal plant emissions on Eastern states. An evenly split 4-4 Supreme Court ruling on CSAPR – since Justice Samuel Alito recused himself – would mean the appeals court’s decision is upheld.

The CSAPR arguments are pegged to two joined cases filed against a Homer City, Pennsylvania coal plant owned by EME, the same parent company of Chicago’s now-closed coal plants. (See the Supreme Court blog’s coverage of the cases here.)

On the same day, the EPA defended its Mercury and Air Toxics Standards (MATS) in front of a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit. The court is expected to look more favorably on the MATS rule than it did upon CSAPR last year, and a decision is expected within several months.

We talked with Howard Learner, executive director of the Environmental Law and Policy Center, about the significance of the arguments and his predictions about the outcome (the ELPC is a member of RE-AMP, which also publishes Midwest Energy News).

Midwest Energy News: How did you feel about the oral arguments on CSAPR, and how do you think the Supreme Court will ultimately rule?

Learner: Forecasting Supreme Court decisions based on oral arguments can be hazardous to one’s health, but there are some directional indications here in light of precedents and the overall case before the court. I think the Supreme Court Justices seemed to be impressed with the analogies that the deputy solicitor general was presenting on behalf of the EPA.

When we’re dealing with ozone problems in the eastern states and the physical reality that pollution moves across state lines, it is difficult to determine exactly how much of the pollution, for example, affecting New Jersey’s airshed came from New Jersey sources versus Ohio sources versus Missouri sources. The EPA came up with its reasoned judgment about how to allocate responsibility among the states. Supreme Court precedent has accorded the EPA considerable respect for and deference to its scientific and technical expertise and judgment.

Look for a potential 6-2 decision in which the Justices would uphold the EPA’s CSAPR standards, based on leanings from the Justices’ questions and case law precedents.

What do you think of the industry argument that under CSAPR an upwind state could be forced to reduce its emissions more than the amount it is contributing to downwind states?

The difficulty here is that we’re dealing with a physicality problem – pollution moves in the atmosphere and doesn’t stay strictly within state lines. Air over New Jersey is being affected by pollution from upwind states.

There’s no way to perfectly allocate responsibility for pollution among the states, and there are different reasonable approaches. The question isn’t whether the agency’s approach is perfect, it’s whether among competing approaches, the agency is within the zone of reasonableness.

Some of the Justices seemed to recognize that in order to protect public health, the EPA has to have some room to reasonably interpret broad statutory terms such as “substantial contribution.” There was an indication that at least a majority of the Justices seem to be viewing the agency’s approach to be within the zone of reasonableness.

Do you think cost should be considered in demanding emissions reductions from different states?

There’s no one-size-fits-all approach. Some parts of the Clean Air Act consider cost and some don’t. The section dealing with non-attainment for ozone transport and “substantial contribution” does include a benefit-cost element. By contrast, sections dealing with mercury and air toxics don’t really require consideration of costs.

The pre-eminent goal of the Clean Air Act is to protect public health and remove endangerments. In the parts of the Act dealing with toxic air emissions that have very serious impacts on public health, cost is not a pre-eminent consideration.

What the EPA is attempting to do is look to those places, such as ozone transport, where it’s most cost-effective to reduce emissions. So for those who are concerned with economics and cost, the EPA’s approach is very effective. Some of the states challenging the ozone transport rules are essentially arguing that cost should not be a pre-eminent part of the decision.

What do you think of the MATS hearing before the appeals court, and do you think the court will uphold that rule?

The MATS case is different than CSAPR. First of all it’s before the DC Circuit Court of Appeals, not the Supreme Court, and it has a cluttered history. The EPA went through an extensive notice and comment rule-making period, issuing a draft rule, getting comments from many groups and, indeed, after moving to finalize the rule, then took it back and tweaked it in early 2013 to adjust for some particular concerns raised by some industry groups.

Keep in mind that industry is divided on this one. Some companies that own coal plants are strongly opposing these standards. There are other energy companies that own coal plants that have already installed mercury pollution reduction equipment and they’d like to see a level playing field of everyone complying so they don’t face a competitive disadvantage. The natural gas and nuclear industry have generally been supportive of the MATS as they see a competitive advantage to be gained.

There comes a time for finality, predictability and consistency for how mercury and other air toxic pollution are to be reduced by coal plants and others by installing modern pollution control technologies. The mercury standards have been battered about for a number of years. The EPA has devoted considerable scientific and technical analysis to these public health rules.

The challenges brought by industry are somewhat arcane. The fact is some of the critics don’t want the rules altogether, while some others want them tweaked or skewed in their favor.

The Supreme Court’s opinion in American Electric Power vs. Connecticut (2009) recognizes the EPA’s scientific and technical expertise to which courts should defer in reasonable cases. Reading the tea leaves here and reading what was said in oral arguments, there seems to be at least some inclination among the judges on the D.C. Circuit that they recognize that this mercury pollution standards case is appropriate for deferring to the agency’s expertise.

If MATS and CSAPR are upheld, what will that mean for coal plants in the Midwest?

If the CSAPR and MATS standards are upheld by the courts, that will clearly force many Midwestern coal plant owners to invest in more modern pollution control equipment and further retrofit their plants in order to achieve cleaner air. That will affect the ongoing economic viability of some of the coal plants in the highly competitive power markets in the Midwest. Some of the owners will choose to invest in modern pollution control equipment and be part of the solution, and some will choose to shut down the plants because of the market economics — they’ll conclude it’s not worth throwing good money after bad.

For many years, these older coal plants have been shifting costs onto the public in terms of their pollution and resulting harmful public health and environmental impacts. The coal plant owners have been externalizing their costs onto the public. The Clean Air Act implementation standards will force polluters to internalize their costs and reduce the shifting of pollution costs to the public.

What does the situation with MATS and CSAPR say about the regulatory and political climate now compared to the Bush years when the predecessor to CSAPR was struck down by the D.C. Circuit federal appeals court because it was too lenient?

There have been attempts in Congress by some to improve the Clean Air Act standards and others to weaken its standards. Since 1990, however, the Act has not been amended in any serious way.

We live in a divided country when it comes to overheated partisan politics. President Obama was elected by a significant margin in 2012, and elections have consequences. During the campaign, some industry opponents blasted President Obama for his so-called “war on coal” – a misnomer – but they lost.

The EPA is now moving forward with long-delayed Clean Air Act standards that were called for by legislation passed by Congress in 1977 and 1990. The courts will, hopefully, now confirm the EPA’s authority to issue these standards.

How would CSAPR and MATS play out in Illinois, given that Illinois has its own rules and agreements with the major power companies mandating stricter reductions in mercury and other pollutants?

While Illinois’ mercury pollution reduction standards have been implemented, in some cases the federal standards might cover specific additional toxics emissions beyond mercury. Illinois was a leader in adopting mercury pollution reductions in 2006 and 2007, these are helping achieve significant public health benefits and cleaner rivers and Great Lakes.

However, Midwest Generation and Ameren (now Dynegy) have been given waivers of part of Illinois clean air interstate standards for sulfur dioxide and nitrogen oxide. The implementation of CSAPR is thus very important.

What will happen if the Supreme Court does not reinstate CSAPR?

Until CSAPR is reinstated in some form, then the Clean Air Interstate Rule (the Bush-era standards) will continue to apply. Presumably if the Supreme Court were to uphold the (appeals court decision shooting down CSAPR), it would do it in a way that provides guidance to the EPA. The Court would say what’s wrong here and needs to be fixed.

How would you feel if that happened?

There really does come a time for predictability and finality.

The Clean Air Act was passed by Congress many years ago, and its implementation has been long delayed while public health harms continue. Sooner or later these public health protections should be moved forward.

This transcript was lightly edited for clarity and brevity.

ELPC Joins Federal Lawsuit Against Ameren for Illinois Coal Plant Pollution

More than 1,000 Clean Air Violations at E.D. Edwards Plant in Bartonville, Ill.

Community Groups Demand Clean Air and Water in Central Illinois after Decades of Pollution from Outdated Coal Plant

Read the complaint

PEORIA, IL – Today, the Sierra Club, Environmental Law and Policy Center, Natural Resources Defense Council and Respiratory Health Association filed a lawsuit in the U.S. District Court in Peoria against Ameren Energy Resources Company LLC and its subsidiary. The complaint cites more than 1,000 violations of the federal Clean Air Act from emissions at Ameren’s E.D. Edwards coal-fired power plant in Bartonville, Ill.

“Particle pollution can get deep down into lungs and cause respiratory and pulmonary problems,” said Andrew Armstrong, Attorney at Environmental Law and Policy Center. “Opacity is one way of measuring particle pollution. Ameren has more than 1,000 opacity violations, indicating that they have poured too much of this dangerous pollution into Central Illinois communities.”

The basis for the Clean Air Act violations is data collected by Ameren at its own facilities using electronic continuous opacity monitoring systems. Ameren reports data from its monitoring systems quarterly to the Illinois Environmental Protection Agency (IEPA). In an effort to investigate and protect Illinois’ air, the Sierra Club, Environmental Law and Policy Center, Natural Resources Defense Council and Respiratory Health Association requested the data from IEPA, which revealed egregious violations of the Clean Air Act by exceeding opacity limits allowed in Ameren’s permit on numerous occasions between 2008 and 2013.

“It should not be a surprise to anyone that the Edwards plant is a pollution problem and Ameren is on the hook to fix it,” said Ann Alexander, senior attorney for the Natural Resources Defense Council. . “Ameren has dragged their feet on making the necessary improvements for far too long. If they can afford to upgrade their equipment, then they should. If not, they shouldn’t be operating this plant. And nor should anyone else.”

Research by the Clean Air Task Force has shown that Ameren’s Edwards coal plant, mostly constructed in the 1960s, contributes to seven premature deaths, ten heart attacks and more than 100 asthma attacks each year. According to the Respiratory Health Association, hospitalization rates for asthma are highest for those under four years of age and over 65 years of age.

“People with lung disease are among those hardest hit by air pollution and the incidence of those diseases, including asthma and COPD, is still increasing.” said Brian Urbaszewski, Director of Environmental Health Programs for Respiratory Health Association. “Generating electricity shouldn’t be sickening and killing the most vulnerable among us. Illinois’ constitution states that it is the duty of each person to provide and maintain a healthful environment for the benefit of this and future generations. Coal power is not fulfilling that goal; nonpolluting energy efficiency and clean renewable power sources like wind and solar do and that’s what we as a state should prioritize.”

The lawsuit was announced in a press conference today in Peoria by the Central Illinois Healthy Community Alliance, a community group recently formed in the Peoria metro area due to concerns over local air and water pollution caused by the Edwards coal plant. The Central Illinois Healthy Community Alliance is comprised of Peoria Families Against Toxic Waste, Central Illinois Global Warming Solutions, Prairie Rivers Network and the Sierra Club Beyond Coal campaign in Illinois.

“Our community has endured decades of pollution from Ameren’s Edwards coal plant, and we are ready to leave toxic air and water in the past,” said Joyce Blumenshine, Sierra Club Heart of Illinois Group Chair and member of Central Illinois Healthy Community Alliance. “We want a healthy place for our families to grow and thrive. It is time to phase out burning coal at the Edwards coal-fired power plant. We’re ready for clean energy and efficiency to replace dependence on fossil fuels.”

“Our community deserves better than polluted air and toxic waste in our water,” said Tracy Fox, representative of Peoria Families Against Toxic Waste and member of Central Illinois Healthy Community Alliance. “After years of pollution, it is time to either clean up or phase out burning coal in our community. We are calling on all stakeholders – elected officials and regulators, Ameren, Dynegy, the plant’s workers and their unions, health care providers and their patients, environmentalists, neighborhood and community groups, churches and schools – to collaborate on a plan that ensures justice for all.”

— End —

Reuters: EPA sets new emission limits on industrial boilers

EPA sets new emission limits on industrial boilers
WASHINGTON | Fri Dec 21, 2012 2:03pm EST

(Reuters) – The U.S. Environmental Protection Agency has finalized rules to curb pollution from industrial boilers and large incinerators, revising earlier versions to target only the largest polluters and give them more time to comply.

The agency on Friday formalized standards it initially released in March 2011 for reducing toxic air pollution, including mercury and particle pollution, known as soot, from boilers and solid waste incinerators.
Boilers, which are typically fired by coal, oil, natural gas and biomass, are used to power heavy machinery and provide heat for industrial processes.

The new rules target roughly 2,300 boilers, or less than one percent of the 1.5 million units now operating in the United States, requiring them to meet numerical limits on their release of air toxins.

These large-source boilers, found mainly at refineries, chemical plants, and other industrial facilities, will have three years to comply and can be granted a fourth year if needed to install controls, according to the EPA.

The rule also targets 106 industrial solid waste incinerators, which have five years to comply with the EPA standards.

“The adjusted standards require only the largest and highest-emitting units to add pollution controls or take steps to reduce air pollution, making the standards affordable, protective and practical,” according to an EPA factsheet.

Some environmental groups said the EPA’s handling of the long-delayed boiler rules signals that the agency’s upcoming regulation will be more flexible to industry concerns.

“These watered-down rules suggest the Obama administration will collaborate more with industry in the second term,” said Frank O’Donnell of Clean Air Watch.

The EPA first introduced the rule in 2005, but the U.S. Circuit Court of Appeals for the D.C. Circuit vacated it in 2007.

The rule was re-proposed in June 2010 but industry groups slammed that version, calling its set limits unachievable, prompting the EPA to relax and reintroduce the rule.

“After years of delays, the finalized Boiler MACT standard ends uncertainty and allows businesses to move forward with one standard that applies across the nation, leveling the playing field,” said Howard Learner, executive director of the Environmental Law & Policy Center.

“MACT” is an acronym for Maximum Achievable Control Technology.

Despite relaxing the rules, the EPA said the standards will prevent up to 8,100 premature deaths, 5,100 heart attacks, and 52,000 asthma attacks. The agency estimated that Americans will receive $13 to $29 in health benefits for every dollar spent to meet the final standards and create a small net increase in jobs.

Some industry groups were still wary.

“Several billions of dollars in capital spending will be necessary to comply. This is a significant investment for an industry still recovering from the economic downturn, especially in light of the growing cumulative regulatory burden we face,” the American Forest & Paper Association, the national lobby group of the forest products industry, said on Friday.

The National Association of Manufacturers (NAM), an opponent of EPA regulations, said in November that compliance costs for the agency’s six air pollution rules, including the boiler rule, could total $111.2 billion by EPA estimates and up to $138.2 billion by industry estimates.

The lobby group said the boiler rule would cost covered sources $2.7 billion in annualized costs in 2013 and $14.3 billion in upfront capital spending – higher than EPA estimates of $1.9 billion in annualized costs in 2013 and $5.1 billion in capital spending.

Other groups that have opposed the rules include the Industrial Energy Consumers of America – representing the chemicals, cement, aluminum and other industries.

Bob Bessette, the President of the Council of Industrial Boiler Owners (CIBO), cautiously welcomed the revised rule but said it is still studying its economic impact.

“Hopefully, the changes EPA has made will decrease the economic and jobs impact on the still-struggling manufacturing, commercial, and institutional sectors and national economy,” he said.

(Reporting By Valerie Volcovici; Editing by Nick Zieminski and David Gregorio)

Iowa Environmental, Health Advocates Commend Soot Standards

Iowa Environmental, Health Advocates Commend Soot Standards

Cutting Soot Good for People, Good for Planet

DES MOINES – Environmental and public health leaders from across Iowa joined Friday in commending new national standards to improve air quality and cut soot pollution.

“Soot is clogging people’s lungs and harming our health,” said Howard Learner, Executive Director of the Environmental Law & Policy Center.  “These reasonable new clean air standards will accelerate deployment of better technologies that reduce pollution, improve public health and make the air safer to breathe.”

The standards target tiny pollutants from the burning of fuels like coal and diesel that have been connected to a wide range of harmful health impacts. Public health leaders see an opportunity to improve the lives of people in Iowa.

“The Iowa Public Health Association supports soot standards which safeguard the health of our children, the elderly, and people with asthma and other lung diseases, cardiovascular diseases and diabetes,” said Jeneane Moody, Executive Director, Iowa Public Health Association.

“Breathing particle pollution can damage the lungs and heart, trigger asthma attacks and heart attacks, and potentially even cause cancer and developmental and reproductive harm.  Assuring safe air quality is key to assuring the health of Iowans,” said Moody.

Jessica Brackett, Executive Director of Clean Air Muscatine, noted that her city is not in compliance with Clean Air Act standards, which should serve as a call to action.

“For the sake of our public health, and our local economy, we must improve our air quality,” she said. “Ultimately, these safety standards will help Muscatine become a healthier community, build a more vibrant local economy, and become a destination city for those who appreciate the magnificence of nature at its finest.”

“Muscatine is much like other river cities. Our economy is fueled by industry with aging equipment, powered by coal, and dependent on heavy industrial and commuter traffic on a poorly designed transportation system, while our breathtaking bluffs exacerbate our air quality issues because of inversion,” added Brackett.

National clean air advocates added their support for the new standards and urged people to fight any challenges the new standards face going forward.

“People everywhere have a sacred right to clean air. Let’s make sure we protect that right here at home and our children will breathe easier,” said Dominique Browning, co-founder of the Environmental Defense Fund’s Moms Clean Air Force. “We cannot allow pro-polluters to weaken the Clean Air Act.


BP Agrees to More Than $400 Million in Pollution Controls at Whiting Refinery

BP agreed to a wide range of pollution controls at its Whiting, IN refinery in a consent decree filed in federal court Wednesday. The agreement stems from lawsuits filed by citizen groups and from findings by the US EPA over the plant’s tar sands expansion permits.

The pollution controls in the agreement include precedent-setting standards for the refinery’s flares, as well as monitoring of air pollution which which will be published online weekly and made accessible to the public. BP also will invest significantly in energy efficiency projects at the plant. Additionally, the negotiations resulted in BP agreeing to establish a $500,000 fund to be used by local municipalities to retrofit diesel vehicles, further cutting air pollution in Northwest Indiana and assisting local governments.

For more read this story from the Post-Tribune of Northwest Indiana.


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