Council Files Brief Before Third Circuit Supporting EPA's Portland Rule

 August 2, 2012 - Clean Air Council attorneys filed a brief Monday before the Third Circuit Court of Appeals, on behalf of the Council, Sierra Club and Greenpeace (Citizen Groups), in support of EPA's Portland Rule.

Under Clean Air Act (CAA) Section 126 any state can petition the EPA for a finding that a source emits or would emit any air pollution that would contribute significantly to nonattinment in, or interfere with maintenance of any national ambient air quality standard (NAAQS). On September 17, 2010, New Jersey petitioned EPA pursuant to section 126 asking EPA to issue an order restricting sulfur dioxide (SO2) emissions from the Portland Power Plant located in Pennsylvania. New Jersey was able to provide analysis demonstrating that the peak impact from Portland was over seven times the 1-hour SO2 NAAQS. EPA issued the Final Portland Rule on November 7, 2011. The Rule required Portland to reduce their SO2 emissions by 81% within three years and sets interim requirements. On January 6, 2012, GenOn REMA, owner of Portland, filed a petition before the Third Circuit challenging the Portland Rule. 

The CAA provides two means of reducing interstate air pollution. One is that whenever a new NAAQS is promulgated the states have three years to submit a state implementation plan (SIP) to meet the standard. Part of the SIP must include measures that will ensure that pollution from their state does not interfere with other states. The second option is for the state that is receiving the pollution to petition EPA under Section 126.

GenOn's central argument is that because the 1-hour SO2 standards were set in 2010, EPA must first wait for Pennsylvania to complete their SIP before they can issue any Section 126 findings. They argue that states have primacy in coming up with plans to meet the NAAQS and that EPA cannot overstep that by issuing limitations under Section 126.

EPA, Citizen Groups and New Jersey (also intervened on the side of EPA), all argue that Section 126 and the SIP process are two independent means of combating interstate air pollution. Section 126 requires EPA to respond to a petition within 60 days and does not allow delay if the SIP process is not complete. Citizen Groups argue that Section 126 protects the rights of people downwind from Portland and that they should not be made to suffer until Pennsylvania implements its SIP. The Portland Rule will ensure that people downwind will soon have safe, healthy air to breathe, just as the CAA intended.

Find the briefs attached below.