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Court upholds EPA order on cross-state pollution


From the July 25, 2013 issue of Public Power Daily

Originally published July 25, 2013

By Robert Varela
Editorial Director
A federal appeals court has upheld an Environmental Protection Agency rule limiting emissions from a specific power plant in Pennsylvania that contributed to New Jersey’s failure to meet EPA sulfur dioxide standards. The U.S. Court of Appeals for the Third Circuit rejected arguments by GenOn RAMA and the Utility Air Regulatory Group that Pennsylvania should have been given an opportunity to establish its state implementation plan (SIP) for meeting the sulfur dioxide standard before EPA granted New Jersey’s petition under Section 126(b) of the Clean Air Act. EPA's rule required GenOn to reduce the plant's SO2 emissions by 81 percent within three years.

Section 126(b) requires EPA to act on a petition within 60 days "and not wait the potential several years that it would take for states to fully adopt SIPs," the court said in its July 12 decision in GenOn RAMA v. EPA. The court agreed with the agency "that there is no indication anywhere in the text of Section 126 that a Section 126(b) petition is conditional upon the initiation or completion of the SIP process."

"The plain language of the relevant portions of the statute and the context in which such language is used convey that Congress intended Section 126(b) as a means for the EPA to take immediate action when downwind states are affected by air pollution from upwind sources," the court said. "Any other interpretation would defeat the underlying objective of the Section 126(b) petition process."

The case involved a 2011 EPA rule granting a petition by the New Jersey Department of Environmental Protection asking the agency to find that emissions from GenOn’s 571-MW coal-fired Portland Generating Station contributed significantly to New Jersey’s failure to meet the sulfur dioxide standard. GenOn last year sold the plant to NRG Energy, which in May agreed to stop burning coal at two units at the plant and spend $1 million to settle a separate suit by New Jersey and Connecticut.

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