Sierra Club to File Suit Against Homer City Facilty

February 17, 2012
MGKF News Flash

Sierra Club's claim is based upon its own modeling of reported sulfur dioxide emissions from the coal-fired EME Homer City electric generating plant.

Since EPA's promulgation of the stringent one-hour sulfur dioxide NAAQS, EPA has stated that attainment evaluations may be based solely upon modeling, rather than necessarily requiring direct monitoring evidence. Many have questioned the consistency of this approach with federal Clean Air Act standards, and have expressed concern that EPA's position could give rise to allegations of nonattainment in the face of competing and inconsistent modeling analyses. The Sierra Club suit represents one of the first formal legal actions to rely upon modeling as the sole basis for alleged noncompliance with the stringent one-hour sulfur dioxide NAAQS.

In addition, the structure of the Clean Air Act supports an argument that EPA's promulgation of an NAAQS provides the legal basis for requiring state regulation and state implementation plan ("SIP") development, rather than establishing legal standards separately-enforceable against individual source emissions. Sierra Club has attempted to avoid that issue by grounding its allegations of noncompliance in the EME Homer City Title V Permit. Consistent with standard Title V permit provisions issued in Pennsylvania, as well as Pennsylvania regulations for sources subject to acid rain requirements under Title IV of the Clean Air Act, the EME Homer City permit includes a provision prohibiting the source from causing exceedances of applicable ambient air quality standards. Sierra Club contends that EME Homer City plant has violated this permit condition by allowing emissions that cause modeled nonattainment with the one-hour sulfur dioxide NAAQS.

On another level, the Notice of Intent reflects continued efforts by national environmental organizations to contest coal-fired electricity generation. It is noteworthy that EME Homer City is the lead petitioner among many challengers to EPA's Cross-State Air Pollution Rule ("CSAPR"), which is intended to limit, among other things, sulfur dioxide emissions from coal-fired plants. EME Homer City, along with other electric generating facilities, have challenged the CSAPR regulations on numerous grounds, and secured a stay of the rule pending completion of the litigation. Many have speculated that Sierra Club and Earthjustice are pursuing alternative legal means to limit sulfur dioxide emissions from the EME Homer City facility, should the Court ultimately vacate EPA's CSAPR regulation.