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U.S. Court of Appeals Upholds Use of Ambient Air Quality Modeling to Grant a Petition Under Section 126(b) of the Clean Air Act

11.04.2013

In GenOn REMA, LLC v. EPA, 722 F.3d 513, the U.S. Court of Appeals for the Third Circuit heard a challenge to a final rule issued by EPA that granted New Jersey’s Section 126(b) petition for a finding that a coal-fired electric generating facility in Pennsylvania caused exceedances of the 1-hour SO2 National Ambient Air Quality Standards (NAAQS) in New Jersey.  The facility in question was located in North Hampton County, Pennsylvania, directly across the Delaware River from New Jersey.  The New Jersey Department of Environmental Protection filed the Section 126(b) petition in September 2010 based upon air quality dispersion modeling analyses that indicated the coal-fired power plant emissions caused exceedances of the 1-hour SO2 NAAQS in several counties in New Jersey.  EPA conducted additional air quality modeling and analyses and granted the petition in November 2011 and required the facility to reduce its SO2 emissions by approximately 81 percent within three years of the rule’s effective date and to adhere to interim SO2 emission limits.

GenOn, the owner of the facility, along with industry intervenors, challenged the final rule on the grounds that a Section 126(b) petition based upon a claim that an upwind state was violating the good neighbor provision of the Clean Air Act could not be granted until Pennsylvania was afforded an opportunity to establish a state implementation plan (SIP) for achieving the 1-hour SO2 NAAQS.  EPA, however, claimed that it could make a finding on a Section 126(b) petition without regard to whether the state had revised its SIP to address the NAAQS at issue.  In this case, Pennsylvania had yet to revise its state SIP to achieve the new 1-hour SO2 NAAQS.  Any such SIP revision would have likely focused on the universe of all major sources of SO2 in Pennsylvania, and not just a single plant.

The Third Circuit Court of Appeals found that the operative language of the Clean Air Act unambiguously allowed EPA to grant or deny a Section 126(b) petition within 60 days of receipt of such petition without regard to whether the state had fully adopted a SIP for the pollutant at issue.  The court also found that such an interpretation and statutory scheme was reasonable and that EPA’s final rule was not arbitrary and capricious because it required a reduction in SO2 emissions from a facility before requiring similar reductions from sources in New Jersey and prior to the time that SIPs addressing the new 1-hour SO2 standard are required.  Thus, the Third Circuit fully embraced use of Section 126(b) as an independent mechanism for enforcing interstate pollution control on a source-by-source basis without regard to implementation of SIPs.  The fact that EPA relied on ambient air modeling to grant the petition and to require reductions is also potentially problematic for major sources.  The ruling also opens the door to the possibility that EPA would require further reductions of pollutants at individual sources based upon Section 126(b) petitions even after SIPs are developed and implemented by states for the pollutant at issue.


To view a complete PDF of the Third Quarter 2013 issue of the Air Quality Letter, click HERE.

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