New Jersey Attorney General Announces Appeal of EPA Decision on PA Coal-Fired Plant

NJ Seeks 3rd Circuit Review of Order Rejecting State Petition Against Plant Permit

September 17, 2007 -- TRENTON -- New Jersey Attorney General Anne Milgram announced today that the State has filed an appeal in federal court seeking review of a decision by the U.S. Environmental Protection Agency (EPA) that rejected New Jersey’s opposition to an operating permit for a coal-fired power plant in Pennsylvania.

Filed today on behalf of the New Jersey Department of Environmental Protection (DEP), the state’s formal Petition for Review asks the U.S. Third Circuit Court of Appeals here to review a Final Order issued by the EPA on June 20, 2007. That order denied a formal petition by New Jersey asking that EPA object to a proposed operating permit for the Portland Generating Station, a coal-fired plant in Upper Bethel Township, Pa. Located directly across the Delaware River from Warren County. The Portland facility is owned by Reliant Energy Mid-Atlantic Power Holdings.

In a related development, Attorney General Milgram announced that the State has also filed with EPA a Petition for Reconsideration of EPA’s June 20 Final Order. Among other things, the petition asserts that increases in air emissions at the Portland Generating Station would violate the national air quality standards in the vicinity of the plant -- standards which are designed to protect public health – and presents to EPA information supporting the state’s contention.

“Our position is that New Jersey has raised significant concerns about the operating permit for a facility that emits air pollutants upwind and directly across the river from our citizens and natural resources, and those concerns have not been given due consideration, ” said Milgram. “As today’s action demonstrates, we remain committed to working with the New Jersey Department of Environmental Protection to pursue litigation, where necessary, that will protect the quality of air we breathe here in New Jersey."

DEP’s original petition raising concerns about the Portland Generating Station, and asking that EPA formally object to a permit for the plant, was filed in July 2006. The DEP petition objected to proposed approval of a permit for the Portland facility for two reasons:

* The Portland plant had made modifications allowing it to increase its emissions of air pollutants without installing the pollution controls required under the Clean Air Act. As a result, a “compliance schedule” – ensuring compliance with the Act -- that would eventually lead to elimination of all violations was needed in the permit.
* The permit lacked operational limits called heat input limits, and would allow the Portland plant to exceed air quality standards set by the Clean Air Act. Heat input is a measure of the amount of coal burned each hour and limits on heat input are necessary to avoid excessive hourly emissions for many air contaminants, for example particulate matter (which can include dust, dirt, soot and smoke) and nitrogen oxides, one of the main ingredients in the formation of ozone.

Following a period in which EPA failed to address the petition, the State filed a federal lawsuit in February of this year seeking to compel the EPA to respond.

In June of this year, the EPA issued its Final Order rejecting New Jersey’s arguments as either without merit or not in accordance with the procedural requirements of the Clean Air Act.

The Portland coal-fired plant is located upwind of New Jersey’s Highlands, and prevailing winds carry its air pollution directly into the state.

Deputy Attorneys General Kevin Auerbacher, Ruth Carter, Christopher Ball, and Lisa Morelli, assigned to the Division of Law, handled the matter on behalf of the state.

Source: New Jersey Attorney General

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