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69052 Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR PART 52

[EPA-HQ-OAR-2011-0081; FRL-9487-8]

RIN 2060-AQ69

Final Response to Petition From New

Jersey Regarding SO 2 Emissions From

the Portland Generating Station

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is making a finding

that the coal-fired Portland Generating

Station (Portland), owned and operated

by GenOn REMA LLC (GenOn), in

Upper Mount Bethel Township,

Northampton County, Pennsylvania, is

emitting air pollutants in violation of

the interstate transport provisions of the

Clean Air Act (CAA or Act).

Specifically, the EPA finds that

emissions of sulfur dioxide (SO2) from

Portland significantly contribute to

nonattainment and interfere with

maintenance of the 1-hour SO 2 national

ambient air quality standard (NAAQS)

in New Jersey. This finding is made in

response to a petition submitted by the

State of New Jersey Department of

Environmental Protection (NJDEP) on

September 17, 2010. In this action, the

EPA is establishing emission limitations

and compliance schedules to ensure

that Portland will eliminate its

significant contribution to

nonattainment and interference with

maintenance of the 1-hour SO 2 NAAQS

in New Jersey. Compliance with these

limits will permit the continued

operation of Portland beyond the 3-

month limit established by the CAA for

sources subject to a contribution

finding.

DATES: This final rule is effective on

January 6, 2012.

ADDRESSES: The EPA has established a

docket for this action under Docket ID

No. EPA-HQ-OAR-2011-0081. All

documents in the docket are listed on

the http://www.regulations.gov Web

site. Although listed in the index, some

information is not publicly available,

e.g., confidential business information

(CBI) or other information whose

disclosure is restricted by statute.

Certain other material, such as

copyrighted material, will be publicly

available only in hard copy form.

Publicly available docket materials are

available either electronically through

http://www.regulations.gov or in hard

copy at the Air and Radiation Docket

and Information Center, EPA/DC, EPA

West Building, Room 3334, 1301

Constitution Ave. NW., Washington,

DC. The Public Reading Room is open

from 8:30 a.m. to 4:30 p.m., Monday

through Friday, excluding legal

holidays. The telephone number for the

Public Reading Room is (202) 566-1744,

and the telephone number for the Air

Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: Mr.

Todd Hawes (919) 541-5591,

hawes.todd@epa.gov, or Ms. Gobeail

McKinley (919) 541-5246,

mckinley.gobeail@epa.gov, Office of Air

Quality Planning and Standards, Air

Quality Policy Division, Mail Code

C539-04, Research Triangle Park, NC

27711.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Summary of Changes From the April 7,

2011 Proposed Rule

III. The Basis for Making the Section 126

Finding for Portland

A. CAA Section 126(b) and Our Legal

Authority

B. Summary of Comments and Responses

Regarding Legal Authority

IV. Summary and Assessment of the

Modeling and Other Data Relevant to the

EPA's Proposed Finding

A. Summary of the Modeling for the

Proposed Rule

1. Modeling Analysis in NJDEP's Section

126 Petition a. Model Selection

b. Meteorological Data

2. The EPA's Modeling Analysis To

Quantify Significant Contribution

B. Public Comments Related to the

Modeling

1. Model Selection

2. Meteorological Data

3. Emissions and Source Characteristics

4. Identification of Background

Concentrations

5. Columbia Monitor Data and Analyses

C. Modeling and Other Analyses To

Determine Significant Contribution for

the Final Rule

V. Establishing the Emission Limits

Necessary for the Remedy

A. Quantification of Necessary Emission

Reductions

B. Summary of the EPA's Proposed

Remedy Analysis

C. Summary of Comments and Responses

Regarding the Remedy Modeling

D. The Final Remedy Limit

E. Compliance Schedule for the Final

Remedy Limit

1. Proposed Compliance Schedule

2. Public Comments and the EPA's

Responses

a. Technical Feasibility

b. Continued Operation of Facility in the

Interim Period c. Harmonization With Other Requirements

3. The Final Rule

F. Other Considerations for Establishing

the Final Remedy

1. Economic Feasibility

2. Requirement for Continuous Monitoring

3. Delegation of Enforcement

VI. Increments of Progress

A. Interim Emission Limits

1. What the EPA Proposed

2. Public Comments and the EPA's

Responses

a. Appropriateness of Including Interim

Emissions Limits

b. Technical Feasibility of Coal Switching

c. Interim Limits Suggested by the GenOn

Test Burn Report

d. Load Shifting

e. One-Year Time Period

I. Effect of Interim Limits on Reliability

g. Clear Rational for Limits

h. Combined Emission Limits

3. Final Rule Interim Emission Limits

B. Increments of Progress: Reporting

Milestones

1. What the EPA Proposed

2. Public Comments and the EPA's

Responses

3. Final Rule Reporting Milestones

VII. Alternate Compliance Schedule and

Consideration of Petition for Rulemaking

for Alternative Emission Limits

A. Alternate Compliance Schedule if the

Source Owner Opts To Cease Operations

1. What the EPA Proposed

2. Public Comments and the EPA's

Responses

3. The Final Rule

B. Consideration of Petition for

Rulemaking for Alternative Emission

Limits

VIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory

Planning and Review and Executive

Order 13563: Improving Regulation and

Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act of 1995

E. Executive Order 13132: Federalism

F. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

G. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

H. Executive Order 13211: Actions That

Significantly Affect Energy Supply,

Distribution, or Use

I. Executive Order 12898: Federal Actions

To Address Environmental Justice in

Minority Populations and Low-Income

Populations

J. National Technology Transfer and

Advancement Act

K. Congressional Review Act

L. Judicial Review

I. Executive Summary

Section 126(b) of the CAA provides,

among other things, that any state or

political subdivision may petition the

Administrator of the EPA to find that

any major source or group of stationary

sources in upwind states emits or would

emit any air pollutant in violation of the

prohibition of sectioni10(a)(2)(D)(i),' 42

1 The text of section 126 codified in the United

States Code cross references section 110(a)(2)(D)(ii)
Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

U.S.C. 7426(b). On September 17, 2010,

NJDEP filed a section 126 petition

requesting that the EPA find that

emissions from Portland, located in

Upper Mount Bethel Township,

Northampton County, Pennsylvania,

significantly contribute to

nonattainment or interfere with

maintenance of the 1-hour SO 2 NAAQS

in New Jersey. In this action, the EPA

is granting that petition, and basing its

finding on the review of NJDEP's air

quality modeling, the EPA's

independent assessment of the

AERMOD 2 dispersion modeling, and

other technical analyses. Based on this

assessment, the EPA finds that

Portland's emissions significantly

contribute to nonattainment and

interfere with maintenance of the 1-hour

SO 2 NAAQS in New Jersey. Pursuant to

section 126(c), the EPA is also

authorizing continued operation of the

plant consistent with emission

limitations and compliance schedules

(including increments of progress) set

forth in this rule to bring the plant into

compliance as expeditiously as

practicable with the CAA prohibition on

emissions that significantly contribute

to nonattainment and interfere with

maintenance of the 1-hour SO 2 NAAQS.

Specifically, the final rule requires

Portland to reduce its S02 emissions to

meet the following limits: 1,105 pounds

per hour (lb/hr) for unit 1; 1,691 lb/hr

for unit 2; and 0.67 pounds per million

metric British units (lb/mmBtu), based

on a 30 boiler operating day rolling

average, for units 1 and 2. Portland must

achieve and maintain these emission

limitations by no later than 3 years after

the effective date of this rule. The EPA

is establishing an interim SO2 emission

limit requirement to ensure that

Portland demonstrates appropriate

increments of progress toward final

compliance. Specifically, no later than 1

year after the effective date of this rule,

total SO 2 emissions from units 1 and 2

combined may not exceed 6,253 lb/hr.

The final rule also requires Portland to

submit to the EPA a dispersion

modeling protocol within six months of

the effective date of the rule, a modeling

analysis demonstrating the elimination

of significant contribution to

nonattainment and interference with

maintenance within 1 year of the

effective date of the rule, semi-annual

interim progress reports, and a final

instead of section 110(a)(2)(D)(i). The courts have

confirmed that this is a scrivener's error and the

correct cross reference is to section 110(a)(2)(D)(i),

See Appalachian Power Co. v. EPA, 249 F.3d 1032,

1040-44 (DC Cir. 2001).

2 AERMOD stands for the American

Meteorological Society/Environmental Protection

Agency Regulatory Model.

progress report to demonstrate

compliance with the interim and final

emission limits. Compliance with the

final emission limits established in this

rule is sufficient to remedy Portland's

significant contribution to

nonattainment and interference with

maintenance in the impacted areas in

New Jersey.

II. Summary of Changes From the

April 7, 2011 Proposed Rule

The following is a summary of the

significant changes made since

proposal. Each of these changes is

discussed later in this notice, and,

where noted, additional information is

provided in other supporting

documentation in the docket for this

rulemaking. The first change is that the

final compliance remedy now includes

a heat input-based SO 2 emission limit of

0.67 lb/mmBtu for units 1 and 2, in

addition to the proposed SO 2 emission

rate limits. The heat-input based SO 2

emission limit is based on a 30 boiler

operating day rolling average. This

additional requirement was made to

address concerns raised by commenters

that the proposed compliance remedy

was not adequate to ensure attainment

of the NAAQS in New Jersey. This issue

is discussed in more detail in section V.

Second, the interim emission rate

limits, proposed as 2,910 lb/hr for unit

1 and 4,450 lb/hr for unit 2, and having

a compliance date of no later than 1 year

from the effective date of this rule, are

now expressed as a single limit for units

1 and 2 combined, and may not exceed

6,253 lb/hr. The 1-year compliance

timeframe remains unchanged. This

change to the limit is partly in response

to comments (including those from

GenOn) in support of greater operational

flexibility, and acknowledges that the

interim limit need not be unit specific.

It is also based on the availability of

lower sulfur coal than the coal Portland

is currently using. Additional details are

provided in section VI.C.

Third, in response to comments that

the proposed deadlines for submitting a

modeling protocol and modeling

analysis were too short, the deadline for

submitting the modeling protocol is

changed to six months after the effective

date of this rule, and the requirement to

submit a modeling analysis is changed

to 12 months after the effective date of

this rule. This will allow Portland more

time for planning its modeling analysis

but does not change the compliance

time frames for meeting the emission

limits.

Additionally, in response to

comments suggesting the plant needed

more than 90 days to determine a

method of compliance, the final rule

gives Portland 12 months from the

effective date to indicate how it intends

to achieve full compliance. The EPA

agrees that the plant may need 12

months to identify the specific

engineering and technology decisions to

determine how to reach compliance

within 3 years. Accordingly, we are

eliminating the proposed requirement

for Portland to notify the EPA, within 90

days from the effective date of this rule,

whether the plant will continue to

operate and comply with the emission

limits and compliance schedules, or

cease operations. The modeling protocol

and the initial semi-annual progress

report, due 6 months after the effective

date of this rule, will appropriately

inform Portland's plans for continuing

operation. Finally, the EPA is not

requiring separate compliance

schedules and analyses should Portland

decide to permanently cease operation

of unit 1 and unit 2 as a means of

compliance. The final and interim

emission limits and compliance

schedules are appropriate regardless of

how Portland ultimately decides to meet

them. Thus, we decided it was not

necessary, as proposed, to include a

separate schedule specifically for a

compliance approach based on shutting

down.

III. The EPA's Basis for Making the

Section 126 Finding for Portland

A. CAA Section 126(h) and Our Legal

Authority

The statutory authority for this action

is provided by the CAA, as amended, 42

U.S.C. 7401 et seq. Section 126 of the

CAA provides that any state or political

subdivision may petition the

Administrator of the EPA to find that

any major source or group of stationary

sources in upwind states emits or would

emit any air pollutant in violation of the

prohibition of section 110(a)(2)(D)(i). 42

U.S.C. 7426(b). If the EPA makes such

a finding, in order to allow continued

operation of the source, the EPA may

also issue emission limits and

compliance schedules (including

increments of progress) to bring the

source into compliance as expeditiously

as practicable but no later than 3 years

from the date of the finding. Absent

such emission limits and a compliance

schedule, the source may not continue

operations beyond 90 days.

Section 110(a)(2)(D) of the CAA, often

referred to as the "good neighbor" or

"interstate transport" provision of the

Act, addresses interstate transport of air

pollution. Under section 110(a)(2)(D)(i),

emissions in one state that contribute

significantly to nonattainment in, or

interfere with maintenance of a NAAQS

69053
69054 Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

by, any other state, or interfere with

measures required to be included in the

applicable implementation plan for any

other state under part C to prevent

significant deterioration of air quality or

to protect visibility, are to be prohibited.

42 U.S.C. 7410(a)(2)(D)(i). Findings by

the Administrator, made pursuant to

section 126, that a source or group of

sources emits air pollutants in violation

of the section 110(a)(2)(D)(i) prohibition

are commonly referred to as section 126

findings. Similarly, petitions submitted

pursuant to this section are commonly

referred to as section 126 petitions. This

action responds to a section 126 petition

submitted by the NJDEP. In this action,

the EPA makes a section 126 finding

with respect to Portland and establishes

emission limits and compliance

schedules to permit continued operation

of the plant.

Several commenters asserted that the

EPA cannot, or should not, make such

a section 126 finding at this time, but

can only make such a finding after the

state has submitted what is usually

referred to as its "interstate transport"

or section 110(a)(2)(D) State

Implementation Plan (SIP). For the

recently promulgated 1-hour SO 2

standard, those SIPs are due on June 3,

2013. We disagree with this

interpretation of the Act. The plain

language of the statute confirms that

section 126 remedies can, and in some

cases must, be promulgated prior to the

deadline for states to make SIP

submissions under section 110(a)(2)(D).

The EPA has consistently interpreted

the language in section 126 as referring

to a functional prohibition on

emissions. This interpretation is

supported by the plain language of the

statute, the statutory structure, and the

legislative history. Further, the EPA

notes that the statute does not exempt,

for any period of time, violations of the

prohibition from scrutiny under section

126. For these reasons, the EPA believes

its interpretation is compelled by the

statutory language. Nonetheless, to the

extent that the statutory language is

ambiguous, the EPA's reasonable

interpretation of this language is to be

accorded deference.

The EPA interprets the language in

section 126 as referring to the actual

functional prohibition of section

110(a)(2)(D)(i) that bars impermissible

interstate transport. The EPA does not

agree with the position taken by some

commenters that the language refers

only to an emissions limitation

contained in a state's section

110(a)(2)(D) SIP. Further, there is

nothing in the statute to support the

argument that the prohibition on

emissions does not arise until after the

SIP submission deadline, or that a

violation of the functional prohibition

cannot occur before that deadline.

Where the EPA finds such a violation

exists, it must, under section 126, issue

emission limits and compliance

schedules to permit continued operation

of the source.

The EPA's interpretation of section

126 acknowledges that Congress created

two independent statutory toolssection 110(a)(2)(D)(i) and section 126-

to address the problem of interstate

pollution transport. The purpose of each

provision is to control upwind

emissions that contribute significantly

to downwind states' nonattainment or

maintenance problems. The two

provisions differ in that one relies on

state regulation and the other relies on

federal regulation. Congress provided

both provisions without indicating any

preference for one over the other,

suggesting it viewed either approach as

a legitimate means to produce the

desired result. Instead, the statutory

language creates two independent tools

to address the problem. Section

110(a)(2)(D)(i) establishes an obligation

for all states to address emissions within

the state significantly contributing to

downwind air quality problems or

interfering with certain regulatory

provisions in downwind states. Section

126 establishes a procedure for a state,

or political subdivision, to petition the

EPA to take federal action to address

transported emissions from an

identified source or group of sources in

another state. The two provisions are

independent, and nothing in the statute

suggests that one is intended to limit the

other.

In general, statutes are to be

interpreted in a way that gives meaning

to each section. The EPA's

interpretation of section 126 is

consistent with this general rule in that

it gives section 126 a purpose

independent of the other remedies

available under the CAA. In contrast, if

section 126 were interpreted as referring

only to a prohibition contained in a SIP,

the section would not have any practical

utility in the statutory scheme. The

EPA's interpretation of the relationship

between sections 126 and 110 is

supported by the legislative history of

the amendments to the CAA which

added section 126. In adopting the

section 126 remedies, Congress

explained that the petition process was

intended to provide an avenue for relief

separate from the 110(a)(2)(D) SIP

procedure and that it was intended to

expedite, not delay, resolution of

interstate pollution conflicts.

The EPA's interpretation of the

"prohibition" referred to in section 126

is also consistent with the language of

section 110(a)(2)(D)(ii), which requires

states to include in their SIPs provisions

necessary to ensure compliance with

sections 126 and 115 of the CAA, which

relate to interstate transport and

international transport of pollution,

respectively. States are required to

submit to the EPA such SIPs no later

than 3 years after promulgation of a new

or revised NAAQS. 42 U.S.C. 7410(a)(1).

Thus, pursuant to section

110(a)(2)(D)(ii), any emission limits and

compliance schedules issued by the

Administrator under section 126 prior

to that deadline must be incorporated

into the section 110(a)(2)(D) SIP

submission for the state in which a

source subject to such limits is located.

Accordingly, the statute anticipates that

the Administrator may address a section

126 petition prior to the deadline for the

initial submission of a section

110(a)(2)(D) SIP.

If Congress had intended to limit the

EPA's authority to act on section 126

petitions until after the deadline for

states to submit 110(a)(2)(D) SIPs, it

could have included such a restriction.

However, the plain language of the

statute does not clearly require this

interpretation. Rather, the statute

requires the EPA to address a section

126 petition within 60 days after

receipt. 3 Since the statute establishes

firm deadlines for action on section 126

petitions, it does not provide an

exception for petitions submitted prior

to the good neighbor SIP submission

deadline, and it provides a mechanism

for incorporating reductions required in

response to section 126 petitions into

the state SIPs; the EPA believes it does

not have discretion to delay action on a

section 126 petition just because the

state SIP submission deadline has not

yet passed.

The EPA's interpretation of sections

110 and 126 in this context is also

reasonable as it is consistent with the

EPA's interpretation of these sections in

two rulemakings issued in May 1999

and January 2000 which concluded that

each section of the Act provides an

alternative avenue for relief. Findings of

Significant Contribution and

Rulemaking on Section 126 Petitions for

Purposes of Reducing Interstate Ozone

Transport, 64 FR 28250 (May 25, 1999);

Findings of Significant Contribution and

Rulemaking on Section 126 Petitions for

Purposes of Reducing Interstate Ozone

Transport, 65 FR 2674 (Jan. 18, 2000).

NJDEP has, in this case, sought relief via

section 126 from the interstate transport

of pollution that is significantly

3This deadline can be extended by up to 6

months pursuant to section 307(d)(10).
Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

contributing to nonattainment within

the state, and the EPA is obligated to

address NJDEP's petition pursuant to

the requirements of the Act.

B. Summary of Comments and

Responses Regarding Legal Authority

Comment: Several commenters argue

that the statutory text is unambiguous in

requiring that states be permitted to

submit their infrastructure SIPs

addressing the transport requirements of

section 110(a)(2)(D) before a section 126

petition can be filed.

The commenters primarily argue that

this interpretation is compelled because

a section 126 petition may only be filed

to complain of a violation of a section

110(a)(2)(D) SIP where a state has failed

to adequately enforce its own plan.

Accordingly, the commenters argue that

there is no prohibition of transport

emissions absent an approved SIP. The

operative language in section 126 is that

a petition may be granted where there

is "a violation of the prohibition of"

section 110(a)(2)(D)(i). The commenters

argue that "prohibition" referred to in

section 126 is not on the act of emitting

or contributing to transboundary

nonattainment. Rather, the commenters

assert, the prohibition is against

emitting at levels that violate the limits

imposed by the SIP regulations

promulgated in response to the

requirements of the CAA.

Some of these commenters also

suggest that a section 126 petition

would be justified where a state fails to

meet its SIP revision obligations under

section 110(a)(2)(D). These commenters

therefore argue that a section 126

petition may not be filed until the state

fails to meet its deadline to file a SIP

addressing its transport obligations with

respect to the new or revised NAAQS.

Response: The EPA does not agree

that the interpretation posited by the

commenters is reasonable much less

compelled by the statutory text. Nothing

in the statutory language in section 126

prohibits a downwind state from filing

a section 126 petition until after the

upwind state, in which the source or

sources are located, has submitted, or is

required to submit, a section

110(a)(2)(D) SIP to the EPA for approval.

The commenters have not identified any

statutory provision that so limits a

downwind state's rights. Rather, the

right of a state to file a section 126

petition does not have any time

limitation, and the EPA is required to

act quickly whenever presented with

such a petition. The commenters'

arguments that a section 126 petition

cannot be filed, or a section 126 finding

cannot be made, before the 110(a)(2)(D)

SIP submission deadline passes are

policy arguments with no basis in the

statutory text. Instead, as discussed

below, the statutory text, the structure of

the CAA, and the legislative history all

support the EPA's interpretation of the

Act as creating, in sections 110 and 126,

two independent means of controlling

transboundary emissions and find no

support for the argument that one

should be prioritized over the other.

Moreover, the plain language of the

statute does not clearly define "prohibition" to mean a SIP provision

that sets emissions limits to address

transboundary air pollution. Rather, the

EPA believes that the better

interpretation, in light of the structure of

the CAA and its legislative history, is

that the "prohibition" referred to in

section 126 is the actual, functional

prohibition on transboundary air

pollution contained in section

110(a)(2)(D)(i).

The commenters' interpretation of the "prohibition" referred to in section 126

would render the relief provided by a

section 126 petition process essentially

meaningless. If a source is emitting in

violation of an emission limitation in a

SIP, there is no question that the source

is in violation of the SIP. The language

in section 126 stating that "it shall be a

violation of * * * the applicable

implementation plan" for a source to

emit in violation of the prohibition of

section 110(a)(2)(D) serves no legal

purpose where the source is already

directly violating a SIP requirement. By

contrast, under the EPA's interpretation,

section 126 deems a source's emissions

to be a violation of the applicable SIP

(as well as of section 126) whenever the

emissions significantly contribute to

nonattainment downwind or interferes

with maintenance of any NAAQS. This

interpretation gives legal effect to the

language in section 126 and is

consistent with Congress' purpose of

providing a tool for downwind states

and the EPA to use to impel upwind

sources to reduce transported emissions

even where a SIP may not yet directly

regulate such emissions.

Moreover, the EPA's interpretation of

section 126 gives it a purpose

independent of the other remedies

available under the CAA. Under section

113, upon finding that any person is in

violation of any requirement of an

approved SIP, the EPA has the authority

to enforce the requirement by issuing an

order to comply, issuing an

administrative penalty order, or

bringing a civil action. In addition, any

person (which includes states) may

bring a citizen suit against any person

in violation of any requirement of an

approved SIP, independent of the EPA

action. Section 304(a), (f); see also

section 302. These provisions provide

more direct and likely quicker recourse

against a source that is violating its SIPimposed emission limits than the

section 126 petition process would.

Thus, there is no need to have a

petition, public hearing, and EPA

determination pursuant to section 126

simply to enforce existing SIP limits. By

contrast, using the section 126 petition

process where transboundary emissions

are not yet being controlled by an

upwind state serves the unique role of

allowing a downwind state to force the

EPA's consideration of the problem and

potentially achieve emissions

reductions directly from sources,

without the need to depend on action by

the upwind state.

The EPA's interpretation of the

relationship between sections 126 and

110 is expressly supported by the

legislative history of the CAA. In

adopting the section 126 remedies,

Congress explained that the petition

process was intended to provide an

avenue for relief separate from the

section 110(a)(2)(D) SIP procedure:

This petition process is intended to

expedite, not delay, resolution of interstate

pollution conflicts. Thus, it should not be

viewed as an administrative remedy which

must be exhausted prior to bringing suit

under section 304 of the act. Rather, the

committee intends to create a second and

entirely alternative method and basis for

preventing and abating interstate pollution.

The existing provision prohibiting any

stationary source from causing or

contributing to air pollution which interferes

with timely attainment or maintenance or

[sic] a national ambient air standard (or a

prevention of significant deteriorating [sic] or

visibility protection plan) in another state is

retained. A new provision prohibiting any

source from emitting any pollutant after the

Administrator has made the requisite finding

and granted the petition is an independent

basis for controlling interstate air pollution.

H. Rep. 95-294 at 305, reprinted in 1977

Legislative History at 2798. Nothing in

the legislative history suggests, as the

commenters assert, that the section 126

remedy is dependent on the section 110

SIP procedure. Rather, this language

clearly indicates that Congress intended

sections 110 and 126 to operate as

independent means of controlling

transboundary emissions and that it did

not intend to prioritize one means of

control over the other. Accordingly,

there is no basis in the legislative

history to support the commenters'

argument that a state does not have the

right to submit a section 126 petition

until after the deadline to submit a

section 110(a)(2)(D) SIP has passed. To

the contrary, the legislative history

supports the conclusion that Congress

did not intend to impose any limitation

69055
69056 Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

tied to the section 110(a)(2)(D) SIP

procedure on when a state may submit

a section 126 petition after a new or

revised NAAQS is promulgated.

Moreover, Congress recognized in

adopting all of the interstate transport

provisions in the CAA that the interstate

pollution problem stems from

inadequate limits on transported

emissions, and not inadequate

compliance with adequate SIP

requirements. This characterization of

the problem is supported by the

numerous descriptions of the interstate

pollution problem in the 1977

legislative histories, all of which

explicitly or implicitly refer to the lack

of upwind limitations and none of

which mentions sources' violation of

upwind SIP limits. See, e.g,. S. Comm.

on Envt. and Public Works, Clean Air

Act Amendments of 1977, S. Rep. 95-

127, 95th Cong., 1st Sess. 41 (1977),

reprinted in 3 1977 Legislative History

at 1415 (noting that the 1970 Act failed

to specify any abatement procedure if a

source in one state emitted air

pollutants that adversely affected

another state, and "[a]s a result, no

interstate enforcement actions have

taken place, resulting in serious

inequities among several States, where

one State may have more stringent

implementation plan requirements than

another state"); H. Rep. 95-294, 95th

Cong., 1st Sess. at 304 (1977), reprinted

in 4 1977 Legislative History at 2798

(" [A]n effective program must not rely

on prevention or abatement action by

the State in which the source of the

pollution is located, but rather by the

state (or residents of the State) which

receives the pollution and the harm, and

thus which has the incentive and need

to act."). It is reasonable to assume that

Congress intended to create a tool that

would attack the problem Congress

recognized. This supports the

conclusion that Congress intended

section 126 to provide an alternate

means to compel compliance with the

prohibition in section 110(a)(2)(D)

where upwind states are not controlling

transboundary emissions, and not where

sources are violating adequate SIP

provisions.

The interpretation that the EPA

adopts here is also consistent with its

historical interpretation of section 126.

The EPA previously interpreted this

section in two rulemakings issued in

1999 and 2000, wherein commenters

challenged the EPA's authority, in light

of a pending SIP call, to grant a number

of section 126 petitions that sought to

mitigate the transport of nitrogen oxides

(NOx) from downwind states that were

significantly contributing to ozone

nonattainment problems in the

petitioning states. 64 FR 28250; 65 FR

2674. In both rulemakings, the EPA

interpreted the relationship between

sections 110 and 126 consistent with the

EPA's interpretation here, concluding

that the "prohibition" referred to in

section 126 is the functional prohibition

of section 110(a)(2)(D)(i), as opposed to

an emissions limitation contained in a

state's SIP, and that the section

110(a)(2)(D) SIP process and the section

126 petition process are independent

and alternative means of addressing

impermissible interstate transport.

Both rulemakings were challenged in

the DC Circuit in Appalachian Power

Co. v. EPA, 49 F.3d 1032 (2001), on the

theories that the agency was required to

refrain from making any section 126

findings while the SIP call was ongoing

and that the doctrine of "cooperative

federalism" embodied in the Act

imposed a constraint on the EPA's

ability to act before the section 110

process was complete. Id at 1045. The

court deferred to the EPA's

interpretation of the relationship

between sections 110 and 126, holding

that there is no inherent conflict in

acting on a section 126 petition during

the same period that a state has to

develop a SIP submission: "It is entirely

reasonable for the EPA to regard a state

that is under a legal obligation to revise

its plan as being, in the meantime, in

violation of a functional prohibition."

Id. at 1046. The court explained that the

petitioners' interpretation of section 126

would compromise three critical

provisions of section 126:

1. The requirement that source

operate no more than 3 years after

finding of contribution to downwind

nonattainment;

2. The fact that "relief does not

depend upon any action by the upwind

states, as is necessary for a SIP

revision"; and

3. The fact that relief under section

126 is independent of the discretionary

policy preferences of the EPA, as the

agency is required to act upon a petition

within 60 days.

Id. The court noted that the EPA's

interpretation retains all three aspects of

the statutory requirements.

Id. The court therefore concluded that

"[b]ecause it is reasonable, and because

the 'Congress provided both [§§ 110 and

126] without indicating any preference

for one over the other,' * * * the EPA's

conclusion that these two provisions

operate independently merits our

deference under Chevron step two." Id.

at 1048 (quoting 65 FR at 2680/1).

Thus, the EPA believes that the

commenters' interpretation of section

126 is unreasonable and inconsistent

with the legislative history, the EPA's

past interpretations, and court rulings

upholding those interpretations. In

particular, the commenters'

interpretation would render the relief

provided by the section 126 petition

process duplicative and unnecessary.

The EPA's interpretation, on the other

hand, gives legal effect to the language

in section 126 and is consistent with

Congress' purpose of providing an

independent tool for a downwind states

and the EPA to use to impel upwind

sources to reduce transported emissions.

The EPA believes this matter is clearly

resolved by reference to the terms of the

provision itself, so that under the first

step of the Chevron analysis, no further

inquiry is needed. If, however, it were

concluded that the provision is

ambiguous on this point, the EPA

believes that, under the second step in

the Chevron analysis, then the EPA

should be given deference for any

reasonable interpretation, as courts have

given with respect to prior

interpretations of section 126.

Interpreting section 126 to refer to a

functional prohibition on emissions and

to preserve a state's right to file a section

126 petition is reasonable for the

reasons described above.

Comment: Several commenters argue

that the EPA is turning to section 126 as

a "first resort" for implementing the

new NAAQS and that we are

substituting the EPA's judgment for

Pennsylvania's regarding the

appropriate control strategy for

Portland. The commenters contend that

revising Pennsylvania's SIP is a

usurpation of state discretion and that

the SIP process would be superfluous if

we allowed petitions to be filed so close

on the heels of new or revised NAAQS.

The commenters believe that Congress

intended states to have primary

responsibility for implementing a new

or revised NAAQS. They contend that

the EPA's interpretation of section 126

places priority on interstate transport

over intrastate control of NAAQS

attainment.

Response: We respond by noting that

the upwind state still retains its

obligation to develop a SIP and

implement the NAAQS. Applying

section 126 independent of an upwind

state's failure to act under section

110(a)(2)(D) does not impermissibly

pressure upwind states to select certain

control measures. The EPA

acknowledges that because the section

126 findings precede any required state

action, when states are eventually

required to submit SIPs to control

interstate transport, one of the largest

sources of emissions will already be

subject to emission control
Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

requirements, and, depending upon the

timing, may have already invested in

controls. Yet this is not a legal

constraint on states' choices-it is the

reality that, over time, conditions

change and different policy choices

become more or less attractive for a

variety of reasons. States would still be

able to choose to regulate other sources,

but depending upon the timing, the

option of obtaining emission reductions

from sources that have already invested

in emission controls or have already

reduced emissions may be more

attractive on policy and economic

grounds than regulating those sources

otherwise would have been. There is a

vast difference between, on one hand,

the EPA prescribing a particular

emissions control choice that states

must adopt, and on the other, taking

action required under the CAA to

regulate sources directly with the

possible effect of making certain future

emissions control choices by some

states more or less appealing.

Such a potential future effect on the

regulatory environment cannot override

the obligation that the EPA act on state

petitions under section 126. We do not

believe it would be reasonable to

conclude that the EPA can take no

action under an independent mandate

of the statute to respond to petitions

submitted by downwind states facing

their own time constraints and

pressures to meet air quality standards,

just to preserve the relative

attractiveness of a variety of options for

control of S02 in the upwind states

required under another provision of the

CAA. The cooperative federalism

principles of the CAA do not require the

EPA to withhold federal action under

section 126 until states have been

required to and failed to submit SIPs. It

is perfectly reasonable for Congress to

have established section 126 as an

alternative mechanism under the CAA

to address the interstate pollution

problem, just as it did again in adopting

sections 176A and 184. To provide

alternatives, the various interstate

transport provisions are necessarily

different from each other and from other

provisions of the Act, but that does not

make them inconsistent with other

provisions of the Act. Thus, simply

because the EPA will have imposed

certain requirements on Portland does

not mean that Pennsylvania no longer

has any discretion in crafting its SIP

submission with respect to NAAQS

compliance anywhere in the state.

Pennsylvania can take into

consideration the controls that Portland

chooses to implement when creating its

own attainment plan, just as it would

take into consideration controls

implemented at any other source.

The court in Appalachian Power Co.

v. EPA specifically addressed this

concern that action on the section 126

petition before the SIP submissions

were due would restrict the states'

discretion to fashion their own plan for

complying with the NAAQS: "SIP

development, like any environmental

planning process, commonly involves

decisionmaking subject to various legal

constraints. That § 126 imposes one

such limitation-and it is surely not the

only independent provision of federal

law to do so-does not affect a state's

discretion under § 110." 49 F.3d at

1047.

Finally, as explained in detail above,

Congress intended sections 110 and 126

to operate as independent and alternate

means to address transboundary

pollution, and indicated no preference

for one means of compelling compliance

over the other. Thus, the EPA's action

on this section 126 petition does not

prioritize the control of interstate

pollution over a state's control of

intrastate pollution. Rather, it gives legal

effect to section 126, consistent with the

structure of the CAA and the legislative

history, by providing a tool for

downwind states to use to impel

upwind sources to reduce transported

emissions.

IV. Summary and Assessment of the

Modeling and Other Data Relevant to

the EPA's Proposed Finding

A. Summary of the Modeling for the

Proposed Rule

NJDEP's section 126 petition

contained dispersion modeling results,

based on both the CALPUFF 4 and

AERMOD dispersion models, that

NJDEP relied upon to show that

emissions from Portland, alone, caused

downwind violations of the 1-hour S02

NAAQS in New Jersey. Given the

magnitude of the modeling violations,

which were nearly seven times the 1-

hour SO 2 NAAQS based on AERMOD

modeling of maximum allowable

emissions, and the fact that significant

exceedances of the NAAQS were also

shown based on modeling of estimated

actual emissions, the EPA concluded

that the NJDEP had clearly shown that

SO 2 emissions from Portland cause violations of the 1-hour S02 NAAQS in

New Jersey.

The EPA also modeled the emissions

from Portland using the AERMOD

dispersion model and determined that

the modeled concentrations from

4 CALPUFF is a non-steady-state puff dispersion

model that was originally developed for the

California Air Resources Board.

Portland, when combined with the

relatively low background

concentrations, cause violations of the

1-hour SO 2 NAAQS in Morris, Sussex,

Warren and Hunterdon Counties in New

Jersey. 5 This section discusses the key

modeling issues that arise in making

that determination, and how the EPA is

responding to comments we received on

those issues. We also note that this

modeling is used not only to

characterize the NAAQS violations, but,

as discussed in section V, it is also used

to determine the appropriate remedy to

address such violations.

1. Modeling Analysis in NJDEP's

Section 126 Petition

a. Model Selection

Model selection was one of the key

issues that the EPA addressed in

support of this rule given the critical

role played by dispersion modeling both

in relation to a finding under a section

126 petition that a source significantly

contributes to nonattainment and/or

interferes with maintenance of the 1-

hour SO 2 NAAQS in a neighboring state,

and in relation to the determination of

an appropriate remedy to address such

a finding. As summarized in the

proposed rule and documented in more

detail in the EPA's proposed rule Air

Quality Modeling Technical Support

Document, NJDEP included modeling

results based on both the CALPUFF and

AERMOD dispersion models with its

section 126 petition. The importance of

this issue is further highlighted by the

fact that the maximum 99th percentile

of the daily maximum 1-hour modeled

SO 2 concentrations based on CALPUFF

was about 2.5 times higher than the

maximum 99th percentile of the daily

maximum 1-hour modeled

concentrations based on AERMOD.

Consequently, a much more stringent

remedy would be required to address

such a finding based on CALPUFF

modeling than based on AERMOD

modeling.

The NJDEP acknowledged that

AERMOD is the preferred model under

the EPA's "Guideline on Air Quality

Models," published as Appendix W to

40 Code of Federal Regulations (CFR)

Part 51, for near-field applications such

as this, but suggested that the use of

CALPUFF may be appropriate under the

alternative model provisions in Section

3.2.2b of Appendix W. Section 3.2 of

Appendix W lists three separate

conditions under which an alternative

model may be approved for use:

5The EPA modeling analysis is detailed in the

proposed rule Air Quality Modeling Technical

Support Document, available in Docket ID EPAHQ-OAR-2011-0081-0026.

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(1) If a demonstration can be made

that the model produces concentration

estimates equivalent to the estimates

obtained using a preferred model;

(2) If a statistical performance

evaluation has been conducted using

measured air quality data and the

results of that evaluation indicate the

alternative model performs better for the

given application than a comparable

model in Appendix A of Appendix W;

or

(3) If the preferred model is less

appropriate for the specific application,

or there is no preferred model.

The NJDEP modeling documentation

suggested that NJDEP's use of the

CALPUFF model in support of this

petition was based on condition (2) of

Section 3.2.2b, claiming to have shown

that CALPUFF "performed better and

produced predictions of greater

accuracy than AERMOD" for this

application. NJDEP also claimed that the

use of CALPUFF is more appropriate for

this specific application due to the

complex winds addressed in Section

7.2.8 of Appendix W and is therefore

justified under condition (3) of Section

3.2.2b.

The section 126 petition referenced a

CALPUFF model validation study based

on the Martin's Creek field study

database, submitted by NJDEP with an

earlier section 126 petition, as

demonstrating that "CALPUFF

performed better and produced

predictions of greater accuracy than

AERMOD" for this application.6

At proposal, the EPA included a

detailed assessment of the NJDEP

CALPUFF validation study as Appendix

A of the proposed rule Air Quality

Modeling TSD, and concluded that

NJDEP had not adequately justified the

use of CALPUFF in this application

under either conditions (2) or (3) of

Section 3.2.2b of Appendix W. The EPA

further asserted that AERMOD is the

most appropriate model for this

application. Our assessment of the

CALPUFF validation study identified

several aspects of NJDEP's validation

methodology that deviated from the

EPA's Protocol for Determining the Best

Performing Model, 7 which undermined

the integrity of the evaluation results. In

addition, we cited the "weight of

evidence" regarding AERMOD model

6 See Letter from Bob Martin, Commissioner, New

Jersey Department of Environmental Protection

(NJDEP) to Lisa P. Jackson, Administrator, USEPA

(September 13, 2010), Section IV, page 5. Docket 1ID

No. EPA Docket, EPA-HQ-OAR-2011-0081-009.

7 Protocol for Determining the Best Performing

Model. EPA-454/R-92-025 (1992). U.S.

Environmental Protection Agency, Research

Triangle Park, NC, available at: http://www.epa.govl

ttn/scram/guidance/guide/modleval.zip.

performance which is based on

evaluations for a total of 17 field study

databases as compared to NJDEP's

CALPUFF validation study which is the

only near-field evaluation of CALPUFF

model performance that the EPA is

aware of that included CALMETgenerated 3-dimensional wind fields.

We also pointed to the fact that the 1-

hour, 3-hour and 24-hour quantilequantile (Q-Q) plots of modeled versus

observed concentrations for AERMOD

and CALPUFF included in the NJDEP

validation study suggested that the

performance of the CALPUFF and

AERMOD models was very similar for

this database, with both models

exhibiting generally good agreement

with observations, but with AERMOD

showing slightly better overall

agreement than CALPUFF. These clear

visual comparisons of model

performance are difficult to reconcile

with NJDEP's assertion that CALPUFF

performed better than AERMOD.

b. Meteorological Data

Another key component of the

dispersion modeling analysis is the

meteorological data. The EPA based the

AERMOD modeling in support of the

proposed rule on 1 year of Portland sitespecific meteorological data available

for July 1993 through June 1994. The

site-specific meteorological data were

collected from a 100-meter

instrumented tower and Sound

Detection and Ranging instrument

(SODAR), located about 2.2 kilometers

west of Portland. Based on a review of

the data, we determined that the

Portland meteorological data from

1993-94 meet the basic criteria for

representativeness under Section 8.3.3

of Appendix W, and therefore can be

considered as site-specific data for

purposes of modeling impacts from the

elevated stacks for Portland units 1 and

2. The 1993-94 data also meet the

minimum criterion for the length of

meteorological data record of at least 1

year of site-specific meteorological data

recommended in Section 8.3.1.2 of

Appendix W. However, the difference of

about 100 meters in the base elevation

for the meteorological tower versus the

stack base elevation raised concerns

regarding how the meteorological data

were input to the AERMOD model in

the NJDEP modeling analysis given that

the stack heights for units 1 and 2 are

about 122 meters and that plume

heights of concern for units 1 and 2 are

about 200 to 400 meters above stack

base.

The AERMOD modeling submitted by

NJDEP used the measurement heights

above local ground at the tower location

for the meteorological data input to the

model, effectively assuming that the

measured profiles of wind, temperature

and turbulence are "terrain-following."

Without adjusting for the difference in

base elevation of about 100 meters

between the meteorological data and the

stacks, wind speeds are likely to be

biased high and the wind directions

may not be representative of plume

heights relative to stack base. A review

of the raw meteorological data files for

Portland also revealed the fact that G_

(vertical turbulence) data were available

from the SODAR, but had not been used

in the AERMOD modeling submitted

with NJDEP's section 126 petition.

Based on the analyses that are described

in more detail in the EPA proposed rule

Air Quality Modeling TSD, the EPA

concluded that the representativeness of

the Portland meteorological data would

be improved by incorporating some

adjustments to the measurement heights

from the SODAR data and the inclusion

of the G_ data collected from the

SODAR.

2. The EPA's Modeling Analysis To

Quantify Significant Contribution

In the EPA AERMOD modeling

analysis, thousands of receptors were

placed in New Jersey to determine the

area of maximum concentration from

Portland's emissions in order to

quantify Portland's significant

contribution to nonattainment in New

Jersey. A design value concentration

was calculated for each receptor for

comparison to the NAAQS. The design

value concentration is equal to the 99th

percentile (4th-highest) of the annual

distribution of daily maximum 1-hour

SO 2 concentrations. All receptors with

modeled design value concentrations

that are greater than the NAAQS [196.2

micrograms per cubic meter (ug/m3)] 8

are determined to be nonattainment

receptors.

The EPA proposed to define

Portland's significant contribution to

nonattainment and interference with

maintenance as those emissions that

must be eliminated to bring the

downwind receptors in New Jersey

affected by Portland into modeled

attainment in the analysis year. While

this approach would not be appropriate

in every circumstance, the EPA believes

it is appropriate where, as here, the

source's emissions are sufficient on

their own to cause downwind NAAQS

violations and background levels of the

relevant pollutant are relatively low.

The EPA therefore developed a

8

The 1-hour SO 2 NAAQS is 75 ppb. For

comparison to dispersion modeling results in units

of ug/M 3

, the NAAQS can be expressed as 196.2 ug/

M 3, assuming reference temperature and pressure.
Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

methodology to identify the reductions

necessary to bring the downwind

receptors into attainment.

To quantify the emissions that

constitute Portland's significant

contribution, the EPA identified the

level of emissions that need to be

reduced to ensure that no modeled

concentration within the affected area

(in New Jersey) exceeds the level of the

NAAQS (i.e., the 99th percentile of the

daily maximum 1-hour average of 196.2

ug/m3).

The EPA also analyzed the modeling

results to determine the appropriate

emissions reductions that were needed

to eliminate "interfere with

maintenance." In addition to

nonattainment receptors, the EPA also

attempted to identify receptors that are

modeled to be attainment but due to

variability in meteorology or emissions

might be at risk for nonattainment. Due

to the high modeled concentrations

from Portland's emissions, all of the

downwind modeled receptors in the

final modeled receptor grid in New

Jersey are modeled to be nonattainment.

In this application, it was not necessary

to expand the modeling grid to identify

additional nonattainment or "maintenance only" receptors because

the modeling domain was focused on

the receptors with the maximum impact

from Portland. Therefore, the EPA did

not identify any "maintenance only"

receptors.

In the proposal, the EPA considered

whether Portland should be required to

make additional reductions, above and

beyond those required to eliminate its

significant contribution to

nonattainment, to ensure that it does not

interfere with maintenance of the 1-hour

SO 2 NAAQS in violation of the

prohibition in section 110(a)(2)(D). We

identified an approach that we believe

is appropriate for these specific

circumstances. Among other things, we

considered the nature of the modeling

used to determine the appropriate

remedy and the potential for actual SO 2

concentrations in New Jersey to be

higher than those modeled. In the

proposal, the EPA determined there is

no indication that concentrations higher

than those modeled from Portland

would be likely to occur at

nonattainment and/or maintenance

receptors or anywhere else in New

Jersey. This was based on the following

facts:

1. There is only 1 year of site-specific

meteorology available, such that we

were not able to explicitly examine the

impact of year-to-year variability of

meteorology on downwind modeled

concentrations.9

2. The remedy modeling used

maximum allowable emissions from

Portland. Since these are the highest

emissions that are allowed to be emitted

by the facility, higher concentrations

could not be expected to occur in New

Jersey due to the variability of emission

from Portland.

3. In the modeling analysis, we used

background concentrations that varied

by season and hour of day based on the

3-year average of the 99th percentile of

the distribution of hourly SO 2

concentrations in the area, which

represents the high end of the

distribution of monitored background

concentrations. The background

concentration accounts for contributions

from other SO 2 sources. As

demonstrated by NJDEP's trajectory

analysis,1 it is likely that SO 2 impacts

from Portland contributed to some of

the high monitored concentrations at

the Chester, New Jersey, monitor used to

represent the background

concentrations, which is located about

34 kilometers east-southeast of Portland.

Although use of the 99th percentile

values by season and hour of day from

the Chester, New Jersey, monitor

eliminated some of the peak hourly SO 2

concentrations, the background

concentrations are still likely to be

somewhat conservative (high) to

account for variability that otherwise

cannot be quantified.

It was therefore reasonable to

conclude, under the circumstances, that

any remedy that eliminates the

significant contribution to

nonattainment from Portland also

eliminates its interference with

maintenance with respect to year-toyear variability in emissions and

meteorology. The EPA therefore

proposed to find that compliance by

Portland with the proposed emission

limits will bring it into compliance with

the prohibition on emissions that

significantly contribute to

nonattainment of the 1-hour SO 2

NAAQS as well as with the prohibition

on emissions that interfere with

maintenance in a downwind area. The

9Due to constraints on data availability, our

analysis is appropriate in this instance; however,

nothing here is intended to suggest that, where

sufficient data are available to examine year-to-year

variability, this should not be a relevant factor.

10 See Trajectory Analysis of High Sulfur Dioxide

Episodes at the Chester, NJ Monitor. Bureau of

Technical Services, Division of Air Quality, New

Jersey Department of Environmental Protection.

July 30, 2010. Submitted to USEPA as Exhibit 4 of

the September 13, 2010 Supplement to New Jersey's

May 12, 2010 Petition Pursuant to Section 126 of

the Clean Air Act, 42 U.S.C. 7426. Docket ID No.

EPA Docket, EPA-HQ-OAR-2011-0081-008.

EPA requested comments on our

modeling methodology and

meteorological data adjustments.

B. Public Comments Related to the

Modeling

We received many public comments

related to the modeling that was used to

support the finding that SO 2 emissions

from Portland contribute significantly to

nonattainment and interfere with

maintenance of the 1-hour SO 2 NAAQS

in New Jersey. Some of the main

comments and the EPA's responses

related to model selection,

meteorological data, emissions and

source characteristics, and background

concentrations are summarized below,

with further details provided in the

Response to Comments document.

1. Model Selection

Comments: We received several

comments supporting the EPA's

conclusion that AERMOD is the

appropriate dispersion model for this

petition, and that also supported the

EPA's overall assessment that NJDEP's

CALPUFF validation study failed to

demonstrate that CALPUFF performs

better for this application than

AERMOD. One commenter (NJDEP)

believes that the modeling in support of

the section 126 petition should be based

on CALPUFF, and provided detailed

comments on the EPA assessment of the

CALPUFF validation study.

Response: As discussed in greater

detail in the final rule Air Quality

Modeling technical support document

(final rule Modeling TSD), the EPA

review of NJDEP's comments related to

our assessment of the CALPUFF

validation study has identified

additional deficiencies with the study

that further undermine NJDEP's

conclusion that "CALPUFF performed

better and produced predictions of

greater accuracy than AERMOD" for this

application. One of these deficiencies

that came to light upon closer

examination of the CALPUFF modeling

files for the validation study is that

NJDEP used the "ISC Type" option for

building downwash in CALPUFF

instead of the PRIME " downwash

option when applying CALPUFF for the

Martin's Creek validation study,

although the CALPUFF input file

11 The "ISC Type" building downwash option in

CALPUFF refers to the Huber-Snyder and

Schulman-Scire algorithms that are incorporated in

the Industrial Source Complex Short Term (ISCST3)

model. The PRIME downwash option refers to the

"Plume Rise Model Enhancements" algorithms that

were initially incorporated into a revised version of

ISCST3 called ISC-PRIME, and were later

incorporated into the AERMOD model prior to its

promulgation as the EPA-preferred model for nearfield applications, replacing ISCST3, in 2005.

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included the necessary building input

parameters to run the PRIME option.

The AERMOD modeling results for

Martin's Creek used for comparison

were based on the PRIME downwash

algorithm. While building downwash

associated with the cooling towers at

Martin's Creek exhibited only a modest

influence on results based on AERMOD

evaluations, it is important enough to be

treated properly in the model

evaluation, and the EPA concludes that

the PRIME downwash option should

have been used in the CALPUFF

modeling since AERMOD's

promulgation effectively established the

PRIME algorithm as the "preferred"

downwash algorithm for near-field

applications. NJDEP's CALPUFF

validation report identifies that the "ISC

type" downwash option was used in the

table of CALPUFF inputs (the MBDW

parameter in Table 8.2), but provides no

explanation or justification for not using

the PRIME downwash option. As

described in more detail in the final rule

Modeling TSD, the inclusion of the

PRIME downwash option in CALPUFF

resulted in a greater tendency for

CALPUFF to overestimate

concentrations at Martin's Creek as

compared to the "ISC-Type" downwash

option, with some deterioration in

model performance metrics.

Additional evidence supporting the

EPA's determination that AERMOD is a

more appropriate model for this

application than CALPUFF was

provided by an EPA analysis of high

modeled SO 2 concentrations versus high

observed SO 2 concentrations at the

Columbia Lake Wildlife Management

(Columbia) air quality monitor located

in New Jersey about 2 kilometers

northeast of Portland. The EPA

compared the observed SO 2 data from

September 2010 through September

2011 to modeled concentrations from

AERMOD and CALPUFF. Although the

monitored concentrations are based on

a different period than the modeled

concentrations (1993-94 in the case of

AERMOD, and 1992-93, and 2002 for

CALPUFF), it is reasonable to expect

some degree of comparability between

modeled and monitored concentrations

based on the upper end of the ranked

concentration distributions. These

comparisons, which were patterned

after comparisons presented in NJDEP's

trajectory analysis report for the

Columbia monitor 12 and are described

in more detail in the final rule Modeling

12 Analysis of the Sulfur Dioxide Measurements

from the Columbia Lake, NJ Monitor. Bureau of

Technical Services, Division of Air Quality, New

Jersey Department of Environmental Protection,

March 4, 2011. Docket ID No. EPA-HQ-OAR-2011-

0081-0019.

TSD, show generally good agreement

with observations based on AERMOD

modeling, utilizing the EPA's

adjustments 13 to the 1993-94 site

specific meteorological data for

Portland. The EPA analysis used an

emission scenario of 100 percent load

and 70 percent of allowable emissions

for Portland units 1 and 2, which is

representative of peak operating

conditions for Portland during the

period of monitoring data and reflects

the fact that the sulfur content of the

fuel being burned at Portland was

typically about 70 percent of the

allowable sulfur content. Since Portland

frequently operates well below these

levels, we would expect to see some

bias toward overestimation in the

modeled concentrations, and the

AERMOD predictions are consistent

with that expectation. The average ratio

of predicted to observed concentrations

for the top 10 daily maximum 1-hour

values was 1.14. By comparison, the

average predicted/observed ratio for

AERMOD for the same emission

scenario using NJDEP's meteorological

data for Portland without the EPA's

adjustments was 0.77. The modeled

concentrations are based on both units

1 and 2 operating at 100 percent load

and 70 percent of allowable emissions,

without any contribution from

background concentrations. The

relatively good model performance for

AERMOD is in contrast to a large overprediction when CALPUFF results are

compared to observed SO 2 at the

Columbia monitor. The average

predicted/observed ratios for CALPUFF

were about 3.26 for the 1992-93

meteorological data and 3.87 for the

2002 meteorological data. Additional

details regarding these analyses related

to the Columbia monitoring data are

provided in the EPA final rule Modeling

TSD.

2. Meteorological Data

Comments: GenOn submitted

comments indicating general agreement

with the EPA adjustments to the

Portland meteorological data, although

it recommended also including the

turbulence data from the 30-meter level

on the instrumented tower, including

both G_ and Go (lateral turbulence),

which had been excluded from the EPA

modeling in support of the proposal.

Response: We disagree with GenOn's

recommendation to include the 30-

meter turbulence data due to the

concerns regarding the

13 As documented in Appendix B of the EPA

proposed rule Air Quality Modeling TSD, the EPA

adjusted some of the measurement heights from the

SODAR data and also included the SODAR-derived

aw data.

representativeness of such data, which

are documented in the proposed rule

Air Quality Modeling TSD. The EPA

explained that it excluded the 30-meter

turbulence data due to concerns

regarding the representativeness of the

data at that level relative to stack base

elevation given that the measurement

heights from the 100-meter tower were

not adjusted and would therefore be

treated as being representative of

meteorological conditions within the

valley.

We also note that inclusion of the 30-

meter turbulence data would have a

negligible effect on the modeling results

since the elevated plumes from Portland

units 1 and 2 will be well above 30

meters such that transport and

dispersion of the plumes will be

determined by measurements at higher

levels from the tower and SODAR.

Therefore, the 30-meter turbulence data

is only expected to influence the plumes

in the rare cases where turbulence data

were missing from the 100-meter level

on the tower and from the SODAR. Due

to the representativeness issues, we

believe it would be inappropriate to rely

on the 30-meter turbulence data in those

cases.

Comment: NJDEP submitted detailed

comments opposing the EPA's

adjustments to the Portland

meteorological data, as well as other

aspects of the meteorological data

processing. NJDEP's opposition to the

EPA adjustments to Portland

meteorological data primarily concerned

past precedents regarding prior

modeling analyses based on the data,

the lack of field study evaluation results

validating the use of SODAR-derived G_

data in AERMOD, and the fact that the

net effect of the meteorological data

adjustments incorporated in the EPA

modeling reduced the overall modeled

design value by about 40 percent as

compared to the AERMOD modeling

results submitted by NJDEP with the

section 126 petition.

Response: Regarding the exclusion of

SODAR-derived G_ data in past

analyses, we noted that the EPA

meteorological monitoring guidance

prior to 2000 discouraged the use of

SODAR-derived turbulence data,

including Gw. However, we also note

that the updated guidance issued by the

EPA in 2000 14 supports the use of

SODAR-derived Gw based on additional

analyses of SODAR versus tower-based

cw data. Furthermore, as mentioned

14 Meteorological Monitoring Guidance for

Regulatory Modeling Applications, EPA-454/R-99-

005 (February 2000). U.S. Environmental Protection

Agency, Research Triangle Park, NC, available at:

http://www.epa.gov/ttn/scram/guidance/met/

mmgrma.pdf
Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

above in relation to the issue of model

selection and as documented in more

detailed in the final rule Modeling TSD,

additional analyses based on model-tomonitor comparisons against the

Columbia, New Jersey, ambient S0 2 data

show much better agreement between

modeled and monitored concentrations

based on the EPA-adjusted

meteorological data than for the

unadjusted data used by NJDEP in its

AERMOD modeling, which tends to

corroborate the EPA adjustments to the

meteorological data. As shown in

NJDEP's trajectory analysis for the

Columbia monitor (NJDEP, March 4,

2011) and further documented in the

final rule Modeling TSD, AERMOD

modeling based on the unadjusted data

used by NJDEP exhibits a tendency to

underestimate ambient concentrations

as compared to the Columbia monitored

data. Although these analyses lend some

credence to the appropriateness of the

EPA meteorological data adjustments,

we believe that the adjustments are fully

justified based on current EPA

meteorological monitoring guidance as

well as technical considerations, in

relation to the approximately 100 meter

difference between the base elevation of

the meteorological tower/SODAR and

the base elevation of the Portland stacks

as documented in more detail in the

EPA final rule Modeling TSD.

Regarding the fact that the maximum

99th percentile 1-hour S0 2 modeled

design value based on the EPA analysis

including adjustments to the

meteorological data was about 40

percent lower than the maximum 99th

percentile design value based on the

NJDEP AERMOD modeling (1,402 ug/m 3

versus 851 ug/m3), we also note that the

EPA-modeled results are in fact higher

than the NJDEP results across most of

the final modeled domain. More

specifically, the EPA modeled results

are higher than the NJDEP results for

about 96 percent of the modeled

receptors in the final 100-meter receptor

grid, and the average difference across

all receptors was about 44 percent

higher based on the EPA modeling.

Based on this review of comments

submitted regarding the EPA

adjustments to the Portland

meteorological data and in light of

additional evidence supporting the

appropriateness of the adjustments

based on model-to-monitor comparisons

for the Columbia, New Jersey, ambient

monitor, no changes relative to the

proposal have been made to the

meteorological data used in the EPA

AERMOD modeling in support of this

final action.

Comment: A few commenters raised

concerns regarding the fact that the EPA

AERMOD modeling relied upon a single

year of site-specific meteorological data.

One commenter suggested that a more

conservative estimate of the modeled

design value used compensated for this,

such as the highest second-highest

concentration rather than the 99th

percentile of the annual distribution of

the daily maximum 1-hour values.

Similarly, another commenter suggested

use of the highest possible

concentration as being the most

conservative value.

Response: These comments regarding

the limitations in the amount of

meteorological data used in support of

the proposed rule relate to the issue of

whether the Portland emissions may

interfere with maintenance of the

NAAQS due to variability of

meteorological conditions. 15 Although

we are not able to explicitly account for

the impact of year-to-year variability of

meteorology on downwind modeled

concentrations, the form of the 1-hour

S0 2 NAAQS based on the 99th

percentile of the annual distribution of

daily maximum 1-hour values, averaged

across 3 years for monitoring data, is

recognized as a more stable metric of

ambient air quality that is less sensitive

to meteorological variability than a

deterministic standard that would be

based on allowing one exceedance per

year. For a deterministic standard, the

inclusion of additional years of

meteorological data can only increase

the modeled design value or leave it

unchanged, since the design value is the

highest of the second-highest values

across each of the individual years

modeled. In contrast, the inclusion of

additional years of meteorological data

for a probabilistic standard such as the

1-hour S0 2 NAAQS may increase or

decrease the modeled design value since

it is averaged across the number of years

modeled at each modeled receptor.

To further illustrate this point, the

EPA performed an analysis of impacts

from Portland based on 5 years of

meteorological data from the Allentown

National Weather Service (NWS) station

for the period 2006 through 2010. This

analysis shows that the range of

variability between the individual year

with the lowest modeled design value

and the 5-year average modeled design

value is about 6 percent. For

comparison, using the same 5 years of

meteorology data, the range of

variability across the 5 years for a

deterministic 1-hour standard was about

35 percent for the first highest 1-hour

15 The use of 1 year of site-specific meteorological

data fulfills the requirements of Appendix W

related modeling demonstrations of compliance

with the NAAQS. The commenters are addressing

the issue of interference with maintenance.

values and about 17 percent for the

highest second-highest 1-hour values.

More details regarding these analyses

are provided in the final rule Modeling

TSD.

We also note that variability in

relation to interference with

maintenance also encompasses

variability in emissions. As noted above,

the modeling conducted to determine

the proposed remedy for Portland was

based on maximum allowable

emissions. Since these are the highest

emissions that are allowed to be emitted

by the facility, higher concentrations

could not be expected to occur in New

Jersey due to the variability of emissions

from Portland. Furthermore, analysis of

continuous emissions monitoring

systems (CEMS) data for Portland

indicates a much larger range of

potential variability associated with

emissions than was found for

meteorological variability based on the

analysis summarized above.

Regarding variability in relation to

emissions from other sources of S0 2 that

might overlap with impacts from

Portland, we believe that we have

adequately addressed this aspect of

variability associated with emissions

from existing sources through the

inclusion of a relatively conservative

monitored background concentration in

the cumulative modeling analysis, as

discussed in more below in section

IV.B.4. Furthermore, background

ambient concentrations of S02 due to

existing sources are likely to decline

from recent and current levels over the

next several years in association with

the development and promulgation of

SIPs for the 1-hour S0 2 NAAQS as well

as the recent finalization of the Cross

State Air Pollution Rule (CSAPR), also

known as the Transport Rule. We also

note that potential variability, more

specifically increases, in emissions from

new or modified sources would be

addressed through the new source

review (NSR) and prevention of

significant deterioration (PSD)

permitting process associated with

implementation of the 1-hour S02

NAAQS.

Based on these considerations and

supporting analyses using 5 years of

NWS meteorological data, the EPA

believes that the modeled design value

based on the form of the 1-hour S02

NAAQS is the appropriate metric for

use in this final rule and that the

proposed remedy will be adequate to

address Portland's significant

contribution to nonattainment and

interference with maintenance of the 1-

hour S02 NAAQS in New Jersey.

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69062 Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

3. Emissions and Source Characteristics

Comment: GenOn commented that

EPA's dispersion modeling used

outdated stack parameters for units 1, 2,

and 5 and submitted a list of revised

parameters that it states should be used

in the modeling.

Response: The EPA updated the stack

parameters used in the final rule

dispersion modeling, based on the

submitted parameters from GenOn. The

parameters include the stack heights,

exit temperatures, exit velocities, and

stack diameters. These updated stack

parameters had a negligible effect on the

modeled concentrations. See section

IV.A for a table of the stack parameters

used in the final rule modeling.

Comment: GenOn commented that

interim and final SO 2 emissions limits

should only be set for Portland units 1

and 2.

Response: The EPA agrees that

interim and final SO 2 emissions are only

needed for Portland units 1 and 2.

There were no comments supporting

emissions limits for the smaller sources

(units 3, 4, 5, and an auxiliary boiler) in

the final rule. In fact, in both the

original section 126 petition modeling

and additional modeling submitted as

comments on the proposal, NJDEP only

included emissions from Portland units

1 and 2. In the final rule, the EPA is

setting emissions limits for units 1 and

2 only.

4. Identification of Background

Concentrations

As noted above in the summary of the

EPA modeling for the proposed rule,

and explained in more detail in the

proposed rule Air Quality Modeling

TSD, the EPA used background

concentrations that varied by season

and hour-of-day based on the 3-year

average of the 99th percentile of the

distribution of hourly SO 2

concentrations from the Chester, New

Jersey, ambient monitor, located about

34 kilometers southeast of Portland,

which represents the high end of the

distribution of monitored background

concentrations in the area.

Comment: GenOn submitted

comments suggesting that the

background concentrations used in the

EPA modeling for the proposed rule

based on the Chester, New Jersey,

monitor were too high and likely

included impacts from Portland

emissions. GenOn also submitted

revised background concentrations that

were adjusted to remove hours for

which Portland was potentially

influencing the Chester, New Jersey,

monitor, although GenOn did not

provide any details regarding the

methodology used for adjusting the

monitored concentrations.

Response: As noted above in relation

to comments on the meteorological data,

incorporating background

concentrations based on 3 years of

monitoring data incorporates some

elements of meteorological variability

into the cumulative modeling

demonstration, which further mitigates

potential concerns regarding reliance on

a single year of meteorological data in

the dispersion modeling. Also, as

demonstrated by NJDEP's trajectory

analysis (NJDEP, July 30, 2010), we

agree that it is likely that SO 2 impacts

from Portland contributed to some of

the high monitored concentrations at

the Chester, New Jersey, monitor used to

represent the background

concentrations. Although use of the

99th percentile values by season and

hour-of-day from the Chester monitor

excluded some of the peak hourly SO 2

concentrations, the background

concentrations are still likely to be

somewhat conservative (high), but the

EPA believes that this conservatism is

appropriate in order to account for both

meteorological variability that otherwise

could not be explicitly accounted for,

and low background levels from other

sources that may contribute to ambient

SO 2 levels in New Jersey. Furthermore,

the differences between the background

concentrations used in the EPA

modeling analysis and the background

concentrations submitted by GenOn

were less than about 5 parts per billion

(ppb) in most cases, and would have a

negligible impact of about 0.5 percent

on the remedy necessary to eliminate

Portland's significant contribution to

nonattainment and interference with

maintenance of the 1-hour SO 2 NAAQS

in New Jersey.

5. Columbia Monitor Data and Analyses

As noted in the proposal, the

Columbia air quality monitor in Warren

County, New Jersey, is located

approximately 1.2 miles (about 2

kilometers) northeast of Portland. The

Columbia monitor has recorded

concentrations over the 75 ppb 1-hour

SO2 NAAQS. 16 See 76 FR 19662. Since

the monitor began operation on

September 23, 2010, it has recorded

numerous exceedances of the 1-hour

S02 NAAQS. We noted in the proposal

that exceedances of the NAAQS

occurred when prevailing winds in the

area came from the direction of

Portland, NJDEP submitted a document

16 See "Summary of 1-Hour S02 Monitoring Data

from the Columbia Monitor in Warren County, New

Jersey" TSD available in the docket, available in

Docket ID EPA-HQ-OAR-2011-0081-0005.

dated March 4, 2011 titled, "Analysis of

the Sulfur Dioxide Measurements from

the Columbia Lake NJ Monitor which

can be found in the docket, (See Docket

ID EPA-HQ-OAR-2011-0081-0019).

This document used wind trajectory

analyses to find that Portland's units 1

and 2 were the likely cause of each high

SO 2 episode at the monitor. We found

these analyses to be consistent with our

finding and modeling which predicts

exceedances of the 1-hour SO 2 NAAQS

in the vicinity of the Columbia monitor.

Comment: NJDEP submitted new SO 2

ambient data collected at the Columbia

monitoring station located in Warren

County, New Jersey. The monitor began

collecting data on September 23, 2010,

and measured exceedances of the 1-hour

SO 2 NAAQS on 9 days through

February 17, 2011. The NJDEP

submitted a trajectory analysis which

attempts to track the SO 2 emissions

from Portland on days when

exceedances were measured at the

Columbia monitor. The NJDEP also

submitted a new modeling analysis

which attempted to model the impact of

emissions from Portland at the

Columbia monitor, using recent SO 2

CEMS emissions data from Portland and

the Columbia ambient monitoring data.

The NJDEP concludes that the

monitoring data, trajectory analysis, and

the modeling analysis support the EPA's

proposed finding that Portland

significantly contributes to

nonattainment in New Jersey and is also

consistent with the results of NJDEP's

and the EPA's modeling analyses,

showing a good correlation between the

modeling analyses and monitoring data.

Response: The EPA agrees with many

aspects of the analysis submitted by

NJDEP. We agree that the trajectory

analysis of the recent Columbia

monitoring data supports the conclusion

that the exceedances are primarily

caused by emissions from Portland. The

analysis shows that on the days

examined, the winds are blowing from

Portland towards the Columbia monitor,

and the available CEMS data show large

SO 2 emissions from Portland.17

The EPA also agrees that the modeling

analysis submitted by NJDEP indicates

good performance for AERMOD in

representing the modeled

concentrations at the Columbia monitor

on the exceedance days in 2010.

However, interpretation of the analysis

is complicated by the fact that

concurrent site-specific meteorology is

not available during 2010 or 2011. The

17 The NJDEP analysis also includes CEMS data

from the nearby Martins Creek power plant which

shows little or no S02 emissions from Martins

Creek on the exceedance days examined.
Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

modeling analysis was therefore

conducted with the 1993-1994 sitespecific meteorology used for the

proposed rule modeling which as noted

above the EPA found to be a reasonable

assumption. NJDEP used three different

emissions assumptions in the modeling

analysis. It concluded that AERMOD

modeling based on allowable emissions

gives the best agreement with monitored

concentrations at Columbia. Since the

CEMS data show that Portland was

operating well below allowable

emissions during many of these

exceedances, NJDEP contends that this

implies that AERMOD is

underestimating the modeled

concentrations at the Columbia monitor.

The EPA disagrees with this conclusion.

As shown above in our response to

comments regarding the use of

CALPUFF versus AERMOD, we believe

that the manner in which NJDEP ran

AERMOD for this analysis contributed

to the model underestimating

concentrations in the vicinity of the

Columbia monitor. Specifically, the use

of the Portland site-specific

meteorological data without the

adjustments incorporated in the EPA

AERMOD modeling analysis contributes

to underestimating impacts in the

vicinity of the Columbia monitor.

Further details regarding the EPA

analysis of the Columbia monitor are

contained in the final rule Modeling

TSD.

C. Modeling and Other Analyses To

Determine Significant Contribution for

the Final Rule

The EPA continues to believe that the

AERMOD modeling analysis provides a

more appropriate technical basis for this

petition than the modeling submitted

based on the CALPUFF model, as

explained in this notice and in more

detail in the final rule Modeling TSD.

The EPA's review of the NJDEP

AERMOD analysis supports a finding

that SO 2 emissions contribute

significantly to nonattainment and

interfere with maintenance of the 1-hour

SO 2 NAAQS. However, we noted some

technical concerns with the NJDEP

modeling which may affect the degree to

which emissions need to be reduced to

be able to meet the 1-hour S02 NAAQS

in New Jersey. Therefore, the EPA

conducted an independent modeling

assessment to confirm the finding of

significant contribution and to help

determine the necessary and

appropriate emission limits for Portland

units 1 and 2 (the EPA modeling

analysis is described in more detail in

section V and the final rule Modeling

TSD).

As part of the original petition, NJDEP

also submitted a trajectory analysis of

two particular episodes showing that

elevated 1-hour SO 2 measurements at

the Chester monitor in Morris County,

New Jersey, were caused primarily by

Portland. As described earlier, NJDEP

also submitted an analysis (dated March

4, 2011) of recent SO 2 monitor data at

the Columbia monitor in New Jersey,

which includes a trajectory analysis for

exceedance days 18 at the Columbia

monitor and a modeling analysis of the

impact of Portland SO 2 emissions on the

Columbia monitor.

For the reasons discussed above, the

EPA believes that the AERMOD

analysis, submitted by NJDEP and

modeled by the EPA, provides a

reasonable basis for making a finding

that emissions from Portland

significantly contribute to

nonattainment and interfere with

maintenance in New Jersey and for

quantifying the SO 2 emissions

reductions needed to establish the final

remedy emission limits. In addition, the

trajectory analysis, monitoring data

analysis, and the air quality monitoring

data collected from the Columbia

monitor in New Jersey are consistent

with our finding of significant

contribution to nonattainment and

interference with maintenance of the 1-

hour SO 2 NAAQS in New Jersey. Our

analysis for determining the final

emission limits are presented in the

next section.

V. Establishing the Emission Limits

Necessary for the Remedy

In the proposed rule, the EPA

conducted analyses to determine the

emissions limits that would be

necessary to permit Portland's

continued operation under our section

126 finding. This section summarizes

these analyses and discusses the

comments and responses on the

analyses, and our use of the analyses to

establish the final remedy. It also

discusses the selection of the

appropriate time frame for the final

remedy, as well as other issues that

commenters raised concerning the final

remedy. Continued operation of a major

existing source subject to a section 126

finding is permitted only if the source

complies with emission limits and

compliance schedules established by

the EPA to bring about compliance with

18 When the report was submitted, there were 9

days that exceeded the 1-hour SO 2 NAAQS, as of

February 17, 2011. More recent data (downloaded

from the NJDEP Web site at http://

www.njaqinow.net/Default.aspx) show that there

have been 22 additional 1-hour S02 exceedance

days at the Columbia monitor between February 18

and August 20, 2011.

the requirements in sections

110(a)(2)(D)(i) and 126 as expeditiously

as practicable, but in no case later than

3 years after the effective date of the

finding. Thus, to determine the

appropriate remedy, the EPA must

quantify the reductions necessary to

eliminate Portland's significant

contribution to nonattainment and

interference with maintenance of the 1-

hour SO 2 NAAQS in New Jersey.

A. Quantification of Necessary

Emissions Reductions

To calculate emissions reductions

necessary to eliminate Portland's

significant contribution to

nonattainment and interference with

maintenance of the 1-hour S0 2 NAAQS

in New Jersey for the proposed rule

remedy, the EPA completed AERMOD

modeling of Portland units 1, 2, and 5

using the 1993-1994 Portland sitespecific meteorological data. 19 As

detailed in section IV, the EPA

continues to believe that AERMOD is

the appropriate model to make a finding

that emissions from Portland contribute

significantly to nonattainment or

interfere with maintenance, and to

calculate the appropriate emission

limits for Portland units 1 and 2. In

applying AERMOD to establish the

remedy for the proposed rule, the EPA

made several adjustments to the

meteorological inputs (compared to the

NJDEP modeling) which it determined

to be appropriate. As described in

Section IV above, the EPA continues to

believe the meteorological data and

model setup modifications are

appropriate and we are continuing to

use the same modifications for the final

rule AERMOD modeling. The EPA

remedy modeling also includes

background concentrations that vary by

season and hour of day based on the

99th percentile ambient data from the

Chester, New Jersey SO 2 monitor. The

EPA believes the background

concentration methodology to be

reasonable and appropriately

conservative, and is using this

methodology in the final rule modeling.

The EPA AERMOD analysis used

allowable SO 2 emissions rates for

Portland units 1, 2, and 5 long with

stack parameters submitted by GenOn

shown in Table V.A-1:

19 For completeness, the EPA included emissions

from Portland unit 5 in the final rule dispersion

modeling (but did not propose or finalize a revised

emissions limit for unit 5). The unit 5 emissions

were included in the analysis to verify that they did

not impact the calculation of the final emissions

limit. Due to our understanding that the other

emissions sources (units 3, 4, and an auxiliary

boiler) at Portland have negligible or zeroSO2

emissions, the EPA did not include those sources

in the final rule modeling.

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69064 Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

TABLE V.A-1

Permitted Stack height Stack Stack Stack velocity Source emission rate diameter temperature (mis) (g/s) (in) (K)

Portland C oal U nit 1 ...................................................................... 733.3 121.31 3.15 418.1 32.86

Portland C oal U nit 2 ...................................................................... 1,121.0 121.82 3.84 406.0 34.19

Portland T urbine 5 ......................................................................... 12.0 42.67 6.10 821.5 36.60

The location of maximum S02

concentration impacts from Portland

emissions were found to occur in a

similar location as in the proposal

modeling. Therefore, the same 100

meter receptor fine grid modeling

domains were used in the final rule

modeling. The controlling modeled

design value impact from Portland in

New Jersey based on the EPA's final rule

modeling was 855.4 ug/m 3 which is the

basis for quantifying the necessary

emission reductions. This included a

contribution from Portland units 1 and

2 of 815.0 ug/m 3, a monitored

background concentration of 39.3 ug/

M 3 , plus a contribution of 1.1 ug/m3

from Portland unit 5. See the final rule

Modeling TSD for more information on

the AERMOD setup and modeling

results.

B. Summary of the EPA's Proposed

Remedy Analysis

In the proposed rule, the EPA

calculated the emissions reduction

needed to eliminate Portland's

significant contribution to

nonattainment based on the maximum

modeled design value concentration in

New Jersey. If the modeled

concentration from Portland plus

background is reduced to a level that is

below the 1-hour S02 NAAQS, then all

modeled violations of the NAAQS in

New Jersey are eliminated. For the

proposed rule, the emissions reduction

needed to eliminate all modeled

violations in New Jersey was used to

define the elimination of significant

contribution to nonattainment and

interference with maintenance.

Based on the EPA modeling results,

the EPA proposed that an 81 percent

reduction in allowable S02 emissions

from Portland units 1 and 2 was needed

to reduce the Portland contribution plus

background to below the NAAQS.

The EPA also evaluated the modeling

results to determine if an emission limit

could be set that combined the total

emissions at units 1 and 2. In the

proposal, the EPA determined that there

are many different combinations of

emissions limits for units 1 and 2 that

could eliminate violations of the S02

NAAQS in New Jersey. However, the

stack parameters (exit velocity and stack

diameter) of units 1 and 2 are slightly

different, which causes the maximum

downwind impacts from each unit to

occur at slightly different locations and

at different times. In addition, the EPA

proposed that Portland can comply with

the emissions limits in several different

ways (e.g., low sulfur coal, reduced

operation of one or both units, and/or

installation of post-combustion

controls). Given all of the possible

compliance options and interactions

between the plumes from units 1 and 2,

we were not able to effectively examine

multiple compliance strategies for the

proposal. Therefore, we proposed

emissions limits based on an 81 percent

reduction in allowable emissions at both

units 1 and 2. This led to a proposed

S02 emissions limit for unit 1 of

1,105 lb/hr (allowable emission rate of

5,820 lb/hr*0.19 [an 81 percent

reduction]) and a proposed S02

emissions limit for unit 2 of 1,691 lb/hr

(allowable emission rate of 8,900 lb/

hr*0.19 [an 81 percent reduction]).

C. Summary of Comments and

Responses Regarding the Remedy

Modeling

Comment: One commenter noted that

various methods to comply with an

emissions limit (such as installation of

a control device) may affect stack

parameters such as exit temperature and

exit velocity, which may affect the

dispersion of emissions and downwind

concentrations. The emissions limit was

calculated using a simple "rollback"

calculation which assumes that

concentrations will be reduced in

proportion to emissions.

Response: We agree with commenters

that it is likely (though unknown at this

time) that the strategy to comply with

the final rule emissions limits will cause

changes in stack parameters for units 1

and 2. In addition, we agree that this

should be accounted for, but in the

proposed rule, the EPA did not take into

account the effect of operating load on

stack parameters. The exit velocity is

reduced when the plant is operating

below full load. Based on information

submitted by GenOn as part of its

comments, the exit velocity could be

reduced by as much as 50 percent when

operating at or below 50 percent

operating load (defined as percent of

maximum heat input for each unit). To

account for potential reduced plume

rise and dispersion due to reduced load

or control devices, the EPA ran several

AERMOD sensitivity runs. We

simulated the proposed remedy

emissions rate for units 1 and 2 (1,105

lb/hr unit 1 limit and 1,691 lb/hr unit

2 limit) at 100 percent load, which

resulted in a maximum design value

concentration of 193.7 ug/m3 (which is

below the 196.2 ug/m3 1-hour S02

NAAQS). We then ran AERMOD with

the same emissions rates, but at reduced

loads of 75 percent, 50 percent, and 25

percent. The exit velocity for the

reduced load runs was reduced based

on information submitted by GenOn.

The reduced exit velocity led to reduced

plume rise and dispersion and higher

downwind maximum concentration

impacts. The maximum concentrations

at 75 percent, 50 percent, and 25

percent load were 227.3 ug/m3 ,

264.3 ug/m 3, and 300.3 ug/m 3,

respectively. These impacts all exceed

the 1-hour S02 NAAQS. See the final

rule Modeling TSD for more details on

the sensitivity analysis.

In the final rule, the EPA will ensure

that the NAAQS is protected (and

therefore that significant contribution to

nonattainment and interference with

maintenance is eliminated) in two ways.

First, in addition to the lb/hr emissions

limit for each unit, we are finalizing a

lb/mmBtu emissions limit to address

modeled exceedances at reduced load.

The lb/mmBtu limit is determined

based on an equivalent lb/hr limit at 100

percent load for each unit. Meeting a

lb/mmBtu will therefore have the effect

of lowering the resulting lb/hr emissions

rates at reduced loads. For example,

emissions will be 25 percent lower than

the lb/hr limit when operating at 75

percent load. This in turn will ensure

that the NAAQS is protected at reduced

loads. Modeling of emissions rates that

are constrained by a lb/mmBtu limit

shows that concentration impacts at

reduced loads are always less than

maximum concentrations at 100 percent

load. See section VI for more details on

the calculation of lb/mmBtu limits.

The second way that we are ensuring

that the remedy will be protective of the
Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

NAAQS is by requiring GenOn, as part

of the increments of progress

requirements, to submit a modeling

protocol and dispersion modeling

analysis of its final compliance strategy.

GenOn will be required to show that the

final remedy, as actually implemented,

including any changes to stack

parameters that may have resulted from

steps taken to meet the limits, will be

protective of the NAAQS and therefore

eliminate significant contribution to

nonattainment and interference with

maintenance in New Jersey. See section

VI for more details on the increments of

progress requirements and schedules.

Comment: One commenter (GenOn)

urged the EPA to set a combined

emission limit for units 1 and 2 for both

the interim limits and the final limits.

GenOn submitted a modeling analysis

which examined the effects of various

permutations of the proposed interim

limit. The commenter ran an AERMOD

"reference run" with the proposed

interim limit of a 50 percent reduction

in allowable emissions at both units 1

and 2 (a total of 7,360 lb/hr). GenOn

then ran two additional "sensitivity"

runs; one with unit 1 running at its full

allowable limit (5,820 lb/hr) and unit 2

at zero emissions and a third model run

with unit 1 at zero emissions and unit

2 at 7,360 lb/hr (the combined limit at

a 50 percent reduction from allowables).

The results show that maximum design

value concentrations from the

sensitivity runs are less than the

reference run. Therefore, GenOn argues

that a combined limit will provide for

air quality impacts that are equivalent to

or better than the proposed individual

unit limits.

Response: The EPA agrees that the

operating scenarios that were modeled

show that a combined limit can lead to

air quality impacts that are equivalent to

or better than individual limits.

However, that is not true in all cases,

particularly for the final emissions

limits. For example, the EPA modeled

the combined proposed remedy

emission limits (2,796 lb/hr)

individually at unit 1 and unit 2.

Emitting 2,796 lb/hr from unit 2 (with

no emissions from unit 1) was

protective of the NAAQS (design value

of 189.1 ug/m 3 at 100 percent load).

However, emitting 2,796 lb/hr from unit

1 (with no emissions from unit 2) led to

modeled violations at 100 percent load

(225.2 ug/m3). Due to the slightly

different stack parameters of each unit,

more emissions can be emitted through

unit 2 without leading to a violation,

compared to unit 1. Therefore, a

combined emissions limit that is

emitted completely from unit 1 is not

protective of the NAAQS.

For this reason, based on the

modeling analysis conducted by the

EPA, we are not able to set a combined

limit for the final remedy. (We discuss

the separate question of a combined

limit for the interim limit in section

VII.) The final rule contains individual

final limits that are specific to units 1

and 2. It is also clear from this simple

analysis that any combined limit that

would still be protective of the NAAQS

across the full range of operating

scenarios for units 1 and 2 and would

necessarily be more restrictive than the

81 percent reduction on each of units 1

and 2. There are some combinations of

emissions from units 1 and 2 which will

be protective of the NAAQS and some

that will not. The EPA is not able to

model all possible combinations and

then set a combined limit which is

protective of the NAAQS in all cases.

Should GenOn wish to have a higher

limit at one of the units, in exchange for

a lower limit at the other, or seek a

combined limit that is protective of the

NAAQS in all cases, there is an

opportunity to petition the EPA for

additional rulemaking to adopt

alternative emissions limits, although

we note that such rulemaking would

require a notice and comment process.

Further details are contained in section

VII later.

Comment: NJDEP recommended that

the final rule should require a 95

percent reduction to be phased in as

soon as possible, in a time period

shorter than 3 years. In support of these

recommendations, NJDEP also noted

that power plants in New Jersey will be

required to achieve an emission rate of

0.150 lb/mmBtu by December 15, 2012,

and that two facilities in New Jersey are

already meeting this level.

Response: We note that section 126

does not give the Administrator

discretion to establish emission

limitations beyond the emission

reduction necessary to eliminate

Portland's significant contribution to

nonattainment and interference with

maintenance of the 1-hour SO 2 NAAQS

in New Jersey. Sections IV and V

discuss comments on the appropriate air

quality models, and modeling

assumptions, data and results, and their

effect on the choice of the specific limits

for Portland units 1 and 2.

Comment: The EPA received

numerous comments generally noting

the adverse health and environmental

effects of SO 2 emissions and urging

significant emission reductions of SO 2

from Portland, providing examples of

the beneficial effects that would occur

by reducing SO 2 emissions and, for

these reasons, urging significant

reductions.

Response: The EPA recognizes that

there are potentially adverse health

impacts from breathing SO 2 particularly

for people who have respiratory

illnesses, heart, or lung disease, older

adults and children, and that SO 2 is a

precursor to acid rain formation and

fine sulfate particle formation that can

also pose adverse health effects. These

effects are taken into account in

establishing the SO 2 NAAQS, and need

not be revisited in this action.

Therefore, this rule is directed at

eliminating Portland's significant

contribution to nonattainment and

interference with maintenance of the 1-

hour SO 2 NAAQS in the affected areas

of New Jersey. Elsewhere in this section,

we explain how we are using modeling

to assure that we are establishing a

remedy that eliminates significant

contribution and results in emissions

limits that are protective of the NAAQS.

D. The Final Remedy Limit

The EPA modeled a scenario using

allowable emissions from Portland with

1 year of site-specific meteorological

data. The maximum modeled 1-hour

SO 2 design value in New Jersey was

855.4 ug/m 3. This included a

contribution from Portland units 1 and

2 of 815.0 ug/m3, a monitored

background concentration of 39.3 ug/

M 3 , plus a contribution of 1.1 ug/m 3

from Portland unit 5. The final

compliance emission limits must be set

at a level that eliminates all violations

of the 1-hour SO 2 NAAQS in New

Jersey. Therefore, all modeled receptors

must be below the level of the NAAQS

(196.2 ug/m3). The contribution from

Portland can be reduced by reducing the

S02 emissions from the Portland stacks,

but the background concentrations

cannot be reduced (they are held

constant). Since the contribution from

unit 5 is only 0.1 percent of the total

contribution, a reduction in the unit 5

contribution would provide a negligible

reduction to the modeled design value.

Therefore, it can be assumed that unit

5 emissions do not need to be reduced,

and the unit 5 concentration is added to

the irreducible background value. The

final compliance emission limit for the

final rule is calculated as follows:

((Total modeled concentration)-

(NAAQS-background))/(total modeled

concentration).This formula will

produce the percentage by which

Portland must reduce its emissions from

allowables in order to achieve

compliance with the NAAQS in New

Jersey. Thus, the actual calculation of

Portland's contribution to

nonattainment in New Jersey is

((814.9) - (196.2-40.4))/814.9, where

40.4 represents the contributions from

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69066 Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

monitored background and unit 5. This

results in a reduction of 80.9 percent of

allowable emissions from Portland units

1 and 2, which we round to 81 percent.

In this calculation, only the contribution

from units 1 and 2 is included in the

total modeled contribution.

Therefore, we are finalizing an

emissions limit based on an 81 percent

reduction in allowable emissions at both

units 1 and 2. This leads to a final S02

emissions limit for unit 1 of 1,105 lb/hr

(allowable emissions rate of 5,820 lb/

hr*0.19 [an 81 percent reduction]) and

a final S02 emissions limit for unit 2 of

1,691 lb/hr (allowable emissions rate of

8900 lb/hr*0.19 [an 81 percent

reduction]), which are the same as the

proposed limits.

As discussed earlier in response to a

comment, to account for operation at

less than 100 percent load and/or

changes in stack parameters, the EPA is

also setting a lb/mmBtu emissions limit

for units 1 and 2 in the final remedy. To

determine the level, we calculated the

lb/mmBtu value as the emissions rate

that equates to the lb/hr limits for unit

1 and 2 when operating at full load.

That is, for unit 1 the lb/mmBtu limit is

calculated as the lb/hour limit of 1,105

lb/hour divided by the heat input

capacity of 1,657.2 mmBtu/hr, which

equates to 0.67 lb/mmBtu. For unit 2,

the lb/hour limit of 1,691 lb/hour is

divided by the heat input capacity 20 of

2511.6 mmBtu/hr also results in 0.67 lb/

mmBtu.

Compliance with the 0.67 lb/mmBtu

limitation is determined on a 30 boiler

operating day rolling average basis. A

"rolling" average means that a new 30-

day average can be determined on any

day of operation. Similar to the

proposed Mercury and Air Toxics

Standards (MATS) rule, the EPA

clarifies that only the hours on "boiler

operating days" are included in the

averaging, and the 30-day averaging "zero values" from non-operating days

are not included. We use the same

definition of "boiler operating day" as

for the proposed MATS; that is, a 24-

hour period between midnight and the

following midnight during which any

fuel is combusted in the units. The EPA

recognizes that a 30-day averaging

period for the lb/mmBtu limitation

incorporates some variability, and that

there will be hourly periods that exceed

the 30-day average.

The EPA does not believe that these

higher hourly values would lead to

exceedances of the NAAQS for a

number of reasons. First, at full or nearfull load, compliance with the lb/hour

20 Heat input capacities were from the Title V

Permit No. 48-0006.

limit will ensure emissions rates at or

near 0.67 lb/mmBtu. Second, at

significantly lower loads, Portland units

1 and 2 could emit at emissions rates

somewhat greater than 0.67 lb/mmBtu

and still meet the NAAQS. Accordingly,

some variability within the 30-day

averaging is accommodated, although

the EPA expects the variability will be

relatively small. For example, during

2010 the emission rate for Portland

varied by only about 15 percent.

As a final check on the remedy, EPA

ran AERMOD again with the above

emissions limits on the Portland Plant's

units 1 and 2 (and current allowable

emissions from unit 5). At these

emissions levels, all receptors in New

Jersey had concentrations below the 1-

hour SO 2 NAAQS. The maximum

modeled 99th percentile (4th-highest)

daily maximum 1-hour SO 2

concentration was 193.7 ug/m 3

(including a monitored background

concentration of 39.3 ug/m 3).

E. Compliance Schedule for the Final

Remedy Limit

Section 126(c) initially makes it

unlawful for any major existing source

to operate more than 3 months after a

section 126 finding has been made with

respect to it; yet also gives the

Administrator authority to permit

continued operation under certain

conditions. Specifically, the statute

provides that the Administrator "may

permit the continued operation" of such

a source beyond the end of the 3 month

period "if such source complies with

such emission limitations and

compliance schedules (including

increments of progress) as may be

provided by the Administrator to bring

about compliance with the requirements

contained in section 7410(a)(2)(D)(i) of

this title or this section as expeditiously

as practicable, but in no case later than

3 years after the date of such finding."

72 U.S.C. 7426(c).

Section 126, however, does not give

the Administrator unlimited discretion

when establishing emission limitations

and compliance schedules. Instead, the

statute provides that the emission

limitations and compliance schedules

must bring about compliance with the

requirements of section 110(a)(2)(D)(i) of

the Act "as expeditiously as

practicable" but in no case later than 3

years from the date of the finding. The

use of the phrase "as expeditiously as

practicable" allows for consideration of

the time needed to implement a

compliance option in setting a

compliance schedule. However, the

length of time needed to implement any

given compliance option depends on

the particular compliance option to be

implemented. Furthermore, the EPA

recognizes that in some instances a

source may choose to cease operation as

its method of compliance. In the

proposed rule, the EPA requested

comment on the meaning of as "expeditious as practicable" in this

context.

1. Proposed Compliance Schedule

The EPA proposed to allow continued

operation of Portland beyond 3 months

provided that the facility operates in

compliance with final emission limits

within 3 years and with interim

emission limits and procedural

increments of progress. In this section

we discuss our response to comments

on the appropriateness of a 3-year

deadline for the final limits (See section

VI.A. below for further discussion of

interim limits and other increments of

progress).

2. Public Comments and the EPA's

Responses

In the proposal, the EPA recognized

both that the statute requires that any

compliance schedule ensure compliance "as expeditiously as practicable" and

also that, while the statute directs the

EPA to establish emission limits and

compliance schedules, it does not

foreclose the EPA from allowing the

source to select a compliance option. In

the proposal, the EPA noted its desire to

seek a balance between the statutory

requirement of compliance "as

expeditiously as practicable" and the

goal of ensuring that the regulation does

not unnecessarily limit the options

available to the source to achieve

compliance within the statutorily

mandated time period. The EPA did not

receive any comments specifically

challenging the EPA's balanced

approach to interpreting the statutory

language. Accordingly, the EPA's final

remedy in this rulemaking has been

developed consistent with these goals.

Comment: The EPA received a general

comment comparing the "as

expeditiously as practicable" language

in section 126 to our interpretation of

that language in the MATS rule. The

commenter suggests that we should

always interpret "as expeditiously as

practicable" to mean 3 years.

Response: While the EPA is

permitting 3 years in this case, the

commenter's interpretation is

inconsistent with the language of

section 126 because, by saying "in no

case later than 3 years," the statute

contemplates that compliance might be

required sooner than 3 years.

The EPA also received a number of

specific comments on technical

feasibility issues and other issues
Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

related to the 3-year compliance period

for the final remedy. A number of

commenters believed that a 3-year

period was too generous and that

Portland units 1 and 2 should achieve

needed emissions reductions in a

shorter time period. Other commenters

questioned the feasibility of meeting the

limits within 3 years and recommended

that the EPA should harmonize the

requirements of this rule with those of

other rules regulating electric generating

units (EGUs). The following sections

discuss EPA's responses to the

comments in each of these issue

categories.

a. Technical Feasibility

Comment: Several commenters

objected to the 3-year compliance

period and recommend an abbreviated

compliance schedule or a schedule that

requires compliance with the final

limits in less than a year. Some

commenters believed that technologies

necessary to achieve the emission

reductions could be installed and

operating within 1 year (for example,

dry sorbent injection or DSI) or 2 years

(dry scrubbing). Others cited the

availability of very low sulfur coal, such

as sub-bituminous coal from the Powder

River Basin (PRB) in Wyoming,

asserting that emission reductions could

be achieved in a shorter time period

than 3 years. Another commenter noted

that the Keystone Generating Plant

located in Pennsylvania installed a

scrubber within 3 years, and reduced

SO 2 emissions by 98 percent. One

commenter cited the EPA estimates of a

24-27 month time period for dry and

wet scrubbing, and recommended that

we replace the 3-year requirement with

a time period consistent with those

estimates. Other commenters, including

GenOn, were concerned that the

proposed final limits could not be

achieved within 3 years.

Response: We believe that 3 years

represents an expeditious schedule for

GenOn to meet the emissions limits for

this rule. While we are not mandating

any particular control technology or

approach, the EPA believes that GenOn

would have a number of possible

options, which may need to be used in

combination, to evaluate for compliance

with the rule. These options could

include, among others: (1) Switching to

very low sulfur coal as a number of

facilities have undertaken as a result of

the acid rain program and the Clean Air

Interstate Rule, (2) switching to lower

sulfur coal in combination with lowercapital cost technologies such as reagent

injection of Trona or sodium

bicarbonate, and (3) continued use of

higher-sulfur coal in combination with

dry scrubbing or wet scrubbing.

While the first option, switching to

very lower sulfur coal such as Wyoming

Powder River Basin (PRB) coal, may be

a possibility for Portland, the EPA notes

that the type of sub-bituminous coal that

would be necessary to achieve the final

remedy would have markedly different

fuel and handling characteristics,

necessitating changes not only in the

coal handling and preparation

operations but also to the boilers.

Publications 21 discussing examples of

the design changes necessitated by

switching from bituminous to PRB coal

are included in the docket for this

rulemaking. The EPA believes that 3

years would be a reasonable time period

to evaluate and accomplish all of the

necessary operational changes.

The EPA believes the second option is

available; that is, switching to somewhat

lower-sulfur coal such as Central

Appalachia coal (CAAP) to achieve

some of the needed reductions, with the

remainder of the reductions achieved

through a reagent injection system

achieving reductions of 50-60 percent.

For the proposed rule, the EPA

requested comment on its view that

such a reagent injection system could be

built within 1 year. The EPA agrees with

comments that observed that, in

virtually all cases where such reagent

injection systems have been installed,

the facility has also included a fabric

filter for particulate controls.

Accordingly, the EPA agrees with

commenters that it would take longer

than 1 year to accomplish any

operational changes necessary to switch

to somewhat lower sulfur coal, to install

and operate the reagent injection

system, and to install a fabric filter to

replace or supplement the current

particulate controls. Development of a

system that adequately controls SO 2 and

maintains acceptable levels of PM

controls could likely not be achieved

within a 1-year period, and most likely

would take considerably longer. At the

same time, the EPA disagrees with

commenters who suggest that there are

feasibility concerns for compliance

within 3 years, the maximum amount of

time provided for compliance under

section 126. There are three steps to

21 See B. Exner, et a]., Successful NOx Reduction

and Conversion to Powder River Basin Fuel on Wall

Fired Boilers, Foster Wheeler (1996), available on

the web at: http://www.fwc.com/publications/

techpapers/files/TP FIRSYS 96 01.pdf, and

available at Docket 11) EPA-HQ-OAR-2011-0081;

R. Barnum, et al., Fuel-Handling Considerations

When Switching to PBR Coals, Power (November/

December 2001), available on the web at http://

www.prbcoals.com/pdf /PRBCoallnformation/PRBFuelHandling.pdf. and available at Docket 11) EPAHQ-OAR-2011-0081.

carrying out this control option: (1)

Operational changes related to changing

the coal supply, including blending, (2)

construction and operation of the

reagent injection system, and (3)

implementation of any changes

necessary to ensure continued

effectiveness of particulate controls.

However, as proposed, we believe the

first two steps are achievable in 1 year,

but construction and operation of a

fabric filter is also necessary, and this

step could take up to 2 additional years.

The third option, under which

Portland would install a dry or wet

scrubber, likely would achieve a greater

degree of control than necessary to meet

the lb/hr and lb/mmBtu limits in this

section 126 rule. The EPA recognizes

that given investment decisions for the

suite of regulations, including the

Transport Rule, the present section 126

rule, and the upcoming MATS rule,

Portland may choose to install these

controls. If this option were selected,

the EPA continues to conclude that

these scrubber controls could be

installed within 3 years. (Although such

controls have been installed in 24-27

months, the EPA believes that it is

reasonable to provide the full 3 years to

permit Portland the time needed to

evaluate its options.) We note, however,

that in the Integrated Planning Model

(IPM) which was used to evaluate the

impacts of the Transport Rule, we did

not forecast dry or wet scrubbing as the

least-cost option for compliance for the

Portland facility. Rather, the IPM

predicted a switch to lower-sulfur

bituminous coal in combination with

reagent injection. IPM model results are

available in the Transport Rule docket at

EPA-HQ-OAR-2009-0491-4440

(http://www.regulations.gov/

#!documentDetai;D=EPA-HQ-OAR2009-0491-4440), and on the EPA's

Web site at http://www.epa.gov/

airmarkets/progsregs/epa-ipm/

transpot .html.

b. Continued Operation of Facility in

the Interim Period

Comment: The NJDEP commented

that if significant reductions cannot be

made expeditiously, Portland should

not be allowed to operate, and that the

burden to justify any operation beyond

90 days should be on the Portland

facility owners and operators.

Response: The EPA disagrees with the

commenter's recommendation that

Portland be required to shut down

pending implementation of emissions

controls. Under section 126 of the CAA,

the statute permits the continued

operation if the source complies with

emission limitations and compliance

schedules established by the

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69068 Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

Administrator. The EPA is including

emissions limits and compliance

schedules in this rule sufficient to

expeditiously eliminate Portland's

signification contribution. The EPA

does not believe that the statute

mandates that the source cease

operation at the 90-day milestone under

these circumstances. The statute's

explicit recognition that the compliance

schedules must be "practicable"

suggests that it is reasonable for the

Administrator to permit continued

operation consistent with such

compliance schedules and emissions

limitations.

c. Harmonization With Other

Requirements

Comment: Some commenters urged

the EPA to defer action on the section

126 petition to enable the EPA to

harmonize the schedule and

requirements for this rule with

requirements of other pending and final

rules. Those commenters believed that

harmonization with these rules,

including the MATS rule and the

Transport Rule, would enable GenOn

greater opportunity for fully informed

investment decisions that take into

account all of the applicable regulations.

Response: The EPA is sensitive to the

desirability and advantages of

harmonized regulatory requirements.

We understand that Portland's actions

to address its significant contribution to

nonattainment and interference with

maintenance of the 1-hour SO 2 NAAQS

are occurring in relatively close

proximity to actions it may take to

address its contribution to

nonattainment and interference with

maintenance of the 1997 ozone NAAQS

and the 1997 and 2006 p.m.2.5 NAAQS

under the recently-finalized Transport

Rule, as well as actions it may need to

take to address its emissions of

Hazardous Air Pollutants under the

forthcoming MATS rule. We recognize

the value for GenOn in having the

ability to make informed investment

decisions that optimize strategies for

addressing these pollutants

concurrently.

The EPA notes that, in contrast to

when this rule was initially proposed,

the final requirements of the Transport

Rule are now known. Pennsylvania is

one of the states whose facilities are

subject to the Transport Rule which

establishes an emissions budget for

Pennsylvania, allocates allowances to

facilities in Pennsylvania, including

Portland, and allows Portland's owners

to trade those allowances with other

power plants through an allowance

trading market. Portland allowances for

2012 and 2014 are listed in a technical

support document to the final Transport

Rule located at http://epa.gov!

airtransport/pdfs/UnitLeveAlloc.pdf.

There are, however, a number of

differences between this rule addressing

section 126 of the CAA and the

requirements of the Transport Rule.

First, in addressing NJDEP's section 126

petition related to ambient 1-hour SO 2 ,

the EPA must ensure that the S02

emissions from Portland do not

significantly contribute to

nonattainment, or interfere with

maintenance of the 1-hour ambient SO 2

standard of 75 ppb, a relatively

localized pollutant source-oriented, in

New Jersey. In contrast, the Transport

Rule addresses SO 2 emissions in the

context of downwind PM2.5 problems, a

highly transported pollutant, in many

states. As a result, this section 126 rule

does not provide for emissions trading

with other facilities, while the Transport

Rule does allow for such trading.

Second, the schedule for the Transport

Rule is somewhat different from this

rule. Under the Transport Rule, Portland

must show for 2012 (that is the calendar

year January through December) and

subsequent years that it holds

allowances sufficient to cover its annual

emissions. These requirements for 2012

precede the requirements for this

section 126 rule, which requires the

source to meet interim emissions limits

within 1 year (early 2013) with 3-year

requirements taking effect in early 2015.

Notwithstanding these differences,

which stem from the different CAA

requirements being addressed, we

believe that with the finalization of this

rule, Portland has the information it

needs to make an informed decision on

how to comply with both rules.

At this time, the MATS rule is not

final. The EPA has proposed the MATS

rule and is under a consent decree

deadline to complete that rule by

December 16, 2011. The proposed

MATS rule contained proposed

requirements for hazardous air

pollutants, including existing sources of

acid gases (e.g., hydrogen chloride). The

MATS rule does not directly regulate

SO 2 but in the proposal the EPA

provided its assessment that the acid gas

requirements of the proposed MATS

would have substantial SO 2 co-benefits.

While the date of this section 126 rule

does not exactly coincide with the date

for the final MATS, these two rules are

expected to take effect within a short

time of each other. Accordingly, the

EPA believes that GenOn will have the

information it needs to make an

informed decision on how to meet both

this final rule and the MATS.

Even if the schedules did not coincide

so closely, the EPA does not believe it

would be appropriate to defer action on

NJDEP's section 126 petition to achieve

such harmonization. The EPA is

required by the CAA to take action on

NJDEP's petition within 60 days (plus a

6 month administrative extension

granted in this case), and this time

period has already passed. We could not

delay lawfully this rulemaking by any

significant time period to coincide with

the date for the final MATS rule. The

EPA also notes that full harmonization

is limited by statutory constraints.

While there is some flexibility within

section 112 of the CAA to provide for

a 4-year compliance period under

certain circumstances, this flexibility is

not afforded under section 126. Under

section 126, the EPA cannot alter the

statutory requirement that the source

eliminate its significant contribution to

nonattainment and interference with

maintenance within 3 years of the

section 126(b) finding. Notwithstanding

these constraints, as previously noted,

our expectation is that requirements for

MATS, like those of the Transport Rule,

will be known in time to allow for

consideration of integrated strategies for

compliance with MATS, the Transport

Rule, and the present section 126 action.

The Final Rule

Based on the above considerations,

we are retaining the 3-year compliance

date for the final limit. Adopting a

substantially shorter time frame than 3

years could not only restrict the options

for Portland to achieve the necessary

reductions, but could render each of

them impracticable within that time

frame. Because shorter time frames have

the effect of narrowing the available

options, we are retaining the 3-year

compliance date for the final limit.

F. Other Considerations for Establishing

the Final Remedy

1. Economic Feasibility

Comment: Several commenters stated

that the importance of the Portland

facility to the local economy should be

taken into account, and that we should

not take an action that causes operations

at Portland units 1 and 2 to be no longer

economically viable. These commenters

contend that there are limits to the costs

the facility can withstand and remain in

operation, and that the facility should

be allowed to meet interim and final

limits in the most cost-effective and

efficient manner possible. Commenters

expressed concerns regarding the

practicality of expending high costs on

scrubber installation considering the

size and age of the units at Portland, and

questioned the feasibility of replacing
Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

Portland units 1 and 2 with comparable

combined-cycle natural gas-fired units.

Response: The EPA stresses that in

carrying out the statutory obligation to

address the S02 exceedances caused by

the Portland facility, we are doing so in

a way that meets those obligations but

is not overly prescriptive. We allow the

facility owners to choose the most costeffective solution. While there are many

factors, some completely unrelated to

this rule, which may impact the longterm operation of the facility, the EPA

is striving to provide opportunities for

flexible solutions to address section 126

of the CAA. In particular, the rule does

not mandate, nor do we expect, the

Portland owners and operators to install

high capital-cost options suggested by

commenters, such as wet scrubbing or

replacement with combined-cycle

natural gas units (although the rule also

does not rule them out as options). The

source would more likely choose the

control technology best suited to

achieving the required emission limits,

including the most cost-effective

technology for the facility. It is also

useful to note that in the EPA's IPM

modeling of the effects of the Transport

Rule over a wide region, the model

predicted that less than 0.5 percent of

capacity would be lost as a result of the

rule. While these models are less

reliable in assessing plant-specific

conditions, the EPA believes that the

general indication of minimal capacity

loss, together with the availability of

less capital-intensive control options,

suggest that Portland can achieve the

needed reductions without substantially

affecting the economic viability of the

plant.

2. Requirement for Continuous

Monitoring

Comment: One commenter suggested

that the EPA should add a requirement

in the final rule to require Portland to

operate CEMS for SO 2 emissions at the

plant.

Response: The EPA acknowledges the

importance of CEMS to ensure

compliance with emissions limits.

However, GenOn is already required to

operate CEMS to monitor SO 2 emissions

at Portland in accordance with

requirements in 40 CFR part 75. Our

regulations for monitoring S02

emissions from power plants with

CEMS require the owner or operator to

ensure that all CEMS are in operation

and monitoring unit emissions at all

times the affected unit combusts any

fuel. Regulations in part 75 provide

limited exceptions during periods of

calibration, quality assurance, or

preventative maintenance, but do not

provide any exemptions for startup,

shutdown, or malfunction of the

combustion unit. The EPA concludes

that the CEMS already required for

Portland under part 75 provide

sufficient monitoring for compliance

determinations for S02 emissions at

Portland, and for the final rule we refer

to part 75 as the primary method for

determining compliance.

3. Delegation of Enforcement

Comment: One commenter suggested

enforcement of any emissions limits or

other restrictions on Portland related to

this section 126 action should be

delegated to the NJDEP as New Jersey is

the downwind receptor of emissions

from Portland.

Response: Ensuring that the Portland

facility complies with the requirements

of the CAA including the provisions of

this final rule is the responsibility of the

EPA. It will ultimately become the joint

responsibility of the EPA and of the

Pennsylvania Department of

Environmental Protection (PADEP),

because PADEP has primary

responsibility for implementing and

enforcing the Pennsylvania SIP. The

EPA notes that CAA section

110(a)(2)(D)(ii) requires Pennsylvania's

SIP to "ensure compliance with the

applicable requirements of section 7426

* * * of this title" (i.e., section 126 of

the CAA). Because these requirements

must become part of the SIP for

Pennsylvania, they will be subject to

enforcement in the same manner as any

other requirement of a SIP. This

includes the ability of third parties to

raise challenges under the citizen suit

provisions of section 304 of the CAA.

Thus, New Jersey and its citizens will

have ample opportunity for enforcement

under these provisions of the statute.

VI. Increments of Progress

This section discusses issues

concerning whether and how EPA

should establish appropriate increments

of progress toward the final remedy. The

statute does not define "increments of

progress." The EPA has discretion to

define appropriate increments of

progress on a case-by-case basis. The

increments of progress required in a

particular case may vary depending on

the facts of the petition but should

provide incremental progress towards

eventual compliance with the

requirements of section 110(a)(2)(D)(i).

Section VI.A discusses interim emission

limits, and section VI.B discusses

reporting milestones during the 3-year

period for the final remedy.

A. Interim Emission Limits

As noted previously, section 126

allows the EPA to allow continued

operation of a source beyond a 3-month

time period if the source complies with "emissions limitations and compliance

schedules (including increments of

progress). In this section we discuss

issues related to whether the increments

of progress should include interim

emissions limits and the final rule

requirements for progress milestones

and reports.

1. What the EPA Proposed

The EPA proposed interim emission

limits for Portland units 1 and 2.

Specifically, the EPA proposed to

require Portland to meet an SO 2

emissions limit of 2,910 lb/hr for unit 1

and 4,450 lb/hr for unit 2 within 1 year.

These unit-specific emission limits

represented 50 percent of the allowable

emissions rate for each unit that was

used for the EPA air quality modeling.

The EPA proposed these interim

reduction requirements because section

126 calls for "increments of progress,"

and because we believed that there were

readily achievable interim steps that

could be accomplished in this instance.

In the proposal, the EPA discussed its

evaluation of available SO 2 emission

reduction options for meeting the

interim emissions limits such as reagent

injection, switching to lower sulfur coal

and load shifting. The EPA requested

comment on the proposed interim

reduction requirements for units 1 and

2, on the achievability of the limits in

the 1-year time period proposed, and on

the impact of the reductions on the

reliability of the grid.

2. Public Comments and the EPA's

Responses

a. Appropriateness of Including Interim

Emissions Limits

Comment: One commenter, GenOn,

asserted that the EPA should not

establish interim limits because those

interim requirements may be

inconsistent with the requirements of

the Transport Rule or MATS

requirements. Moreover, the same

commenter believed that because the

EPA has discretion not to impose

interim emissions limits under section

126(c), and because of this need for

long-term harmonization with the

Transport Rule, MATS and other

requirements, the EPA is not justified in

imposing the interim emissions

limitations.

Response: The EPA disagrees with

comments that the EPA should exercise

discretion provided by section 126 and

remove the interim emissions limits

from the final rule. As noted later in this

section in our discussion of other

GenOn comments, we believe that there

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are readily available measures for

Portland to make significant progress in

the short term that in no way impede or

conflict with achievement of the 3-year

limits. Additionally, based on our

assessment of the steps necessary to

achieve these limits, implementation of

these interim measures would

complement, rather than conflict with,

the measures needed for meeting this

rule as well as the Transport Rule and

MATS.

b. Technical Feasibility of Coal

Switching

Comment: In its comments, GenOn

recommended that, should the EPA

retain the interim emissions limitations,

the EPA should defer them until GenOn

can undertake necessary coal test burns

to determine what limits are reliably

achievable. GenOn comments further

stated that it may be able to meet

interim emissions limits if a reasonable

time table and level is set based upon

coal test burn results, but that a full

evaluation of the practicality of interim

limits was not possible by the June 13,

2011, deadline for public comments.

GenOn indicated its intent to conduct

initial coal testing by September 15,

2011. Finally, to provide GenOn with

greater flexibility, GenOn requested that

the EPA revise the form of any interim

limits for Portland units 1 and 2; that is,

the EPA should establish the limits as

combined emissions limits for the total

emissions from units 1 and 2 rather than

establishing limits that would apply to

each unit.

Subsequent to the close of the

comment period, GenOn submitted a

report of the September 15, 2011, test

burn referred to in its comments. For the

final rule, the EPA took this test burn

report into consideration. In the test

burn, Portland blended its existing

Northern Appalachia coal supply with

varying amounts of low sulfur Central

Appalachia coal from West Virginia. For

each unit, the test burn assessed the

impacts of varying blending cases on the

unit's generator output, the reduction in

S02 emissions, and the effect on the

performance of the electrostatic

precipitators. The test burn report also

noted facility changes in coal handling,

feeder, and hopper systems that would

be needed to allow for routine use and

blending with lower sulfur coal in the

future.

In its comments, and in the later test

burn report, GenOn commented that,

based on initial evaluations of the coals

economically available to be used to

meet the proposed interim emission

limits, the use of lower sulfur coal is

projected to cause significant

production derates at Portland units 1

and 2. That is, GenOn asserted that the

total megawatts (MW) of electricity

output from the plant would decrease if

GenOn were to use a lower sulfur coal

blend sufficient to meet the interim

limits.

Response: The EPA considered the

test burn report along with other

information relevant to the

establishment of an interim limit. We

continue to strongly believe that

significant reductions in SO 2 emissions

can be achieved within 1 year. We do

not disagree that, aside from a reduction

in electrical output, the use of lower

sulfur coal may indeed be the only

viable option to meet interim limits at

Portland. The EPA, however, remains

convinced that lower sulfur

Appalachian coals are readily available

for use at Portland. This opinion is

supported by recent Central

Appalachian thermal coal quality and

production data from Wood Mackenzie,

published in April 2011. According to

Wood Mackenzie data, Central

Appalachian production of thermal coal

in 2010:

* Had a mean S02 content of about

1.5 lb/mmBtu, which could allow a

significant SO 2 emission reduction from

current coal usage, with ample margin

to accommodate typical coal quality

variations;

* Had a mean higher heating value of

nearly 12,600 Btu/lb, which is likely

well within 10 percent of the heating

value currently used at Portland; and

* Amounted to about 130 million

tons, including amounts that are about

50 times any possible maximum annual

demand for low sulfur coal from

Portland.

The EPA is aware that changes in the

characteristics of the coal (moisture

content, ash content, grindability, etc.)

used at Portland could change the

performance of the Portland units.

Although GenOn indicates that

equipment modifications would be

necessary to maintain the use of 100

percent CAAP coal for a sustained

period of time, the EPA notes that

during the test burn with 100 percent

CAAP coal, the generator output for unit

1 is relatively close to rated capacity

(162 versus 171 MW, approximately

5 percent). Also the EPA notes that it is

not unusual for installation of air

pollution controls to result in a modest

de-rate, and the EPA does not believe

that maintenance of 100 percent of

current output should be seen as a

constraint on the appropriateness of the

interim limits. In addition, the test burn

report, which evaluated one particular

coal supply, is silent on the availability

of a potentially more costly Central

Appalachia coal that would allow each

Portland unit to maintain closer to full

load, and what boiler upgrades are

necessary to improve generator output.

The EPA is also aware of proven

measures that the EPA believes can be

applied relatively quickly to enhance

PM control at Portland if needed due to

coal switching, so as to meet a new,

lower interim SO 2 emission limit while

continuing to meet all other existing

emissions limits. Two such measures

include various upgrades to Portland's

electrostatic precipitators (ESP) and/or

use of flue gas conditioning, both of

which have been routinely used by coal

plant operators to improve or maintain

ESP performance when switching to a

lower sulfur coal that might impact

performance.

The EPA has reviewed the

information from GenOn on the possible

equipment changes, and has also

reviewed our previous determinations

of the time needed to accomplish those

changes. The EPA's engineering

judgment is that these changes can be

accomplished within 1 year.

c. Interim Limits Suggested by the

GenOn Test Burn Report

Comment: Based on the results of the

test burn report, GenOn concluded that

(1) Sustained unit operations using a

blend of Northern and Central

Appalachia coals sufficient to achieve a

25 percent reduction in allowable SO 2

emissions is achievable with a modest

investment and an implementation

schedule of 6 months, and (2) sustained

unit operations using a blend of

Northern and Central Appalachia coals

to achieve a 35 percent reduction in

allowable SO 2 emissions should be

achievable with additional investments

and an implementation schedule of 8 to

12 months after GenOn has established

an operational record and completed

equipment performance evaluations at

the 25 percent reduction blend level,

and any necessary permits are acquired.

Response: The EPA evaluated the

suggested interim reductions in the

GenOn test burn report. The EPA

concluded that based upon this

evaluation, these targets are significant

underestimates of the readily available

interim emissions reductions, represent

very minimal reductions from current

operations, and are inconsistent with

the results of the test burn.

Figure VI.C-1 shows the hourly SO 2

emissions for all of 2010 at Portland,

shown as the sum of emissions from

units 1 and 2. For the EPA (and

GenOn's) air quality analysis, the

assumed allowable emissions rates for

units 1 and 2 were 5,820 lb/hr and 8,900

lb/hr, respectively, resulting in a total

allowable rate of 14,720 lb/hour. A 25
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percent reduction from this amount,

that is a 25 percent reduction from

current allowable, thus becomes 11,040

lb/hr. As shown in Figure VI.C-1,

during 2010, Portland's hourly

emissions exceeded 75 percent of

allowable emissions only rarely.

Accordingly, a 25 percent reduction in

allowable emissions effectively

represents status quo operations. A 35

percent reduction in allowable

emissions, or 9,568 lb/hr, would require

at most a roughly 15 percent reduction

in current emissions. EPA continues to

believe that the facility can make much

more significant reductions in line with

the final interim limits within a year.

Figure VI.C-1. Comparison of 2010 Emissions from Portland Units 1 and 2 with Allowable

Emissions and Different Levels of Reduction from Allowable Emissions.

Portland Unit 1 & 2 2010 Hourly S02 emissions

15,000 ---- ---

14,000

13,000

12.000

11,000 4&

113 010 2/1 9t2010 6V 2t2010 6127t2010 7115/2010 89f2010 826/2010 9i8t2010 9123t2010 10/252010 11t21fl010 121182010

-Hourly S02 emissions -WCURRENT ALLOWABLES -A-25% Reduction (GenOn)

-+-35% Reduction (Genn) -*-Proposed Interim Limit -Interim Limit in Final Rule

d. Load Shifting

Comment: GenOn commented on the

EPA's assessment that the proposed

interim limits could be met via "load

shifting." GenOn disagreed with the

EPA's assessment that load shifting is a

viable option to meet an interim limit.

In its comments, GenOn interpreted the

term "load shifting" as referring to the

ability of a utility to continue to serve

its customer load obligations by

reducing utilization or "load" from a

selected generator and increasing the

output at other facilities owned by the

same utility: The load is "shifted" to

other generators that the company

operates. Because GenOn's Portland

plant is a merchant plant that operates

in a competitive, centrally cleared and

dispatched, Independent System

Operator (ISO) market, GenOn noted

that replacement energy likely would

come from one of GenOn's competitors,

and it is possible that Portland's

production would be "shifted" to a less

efficient unit that might have higher

emissions than Portland units 1 and 2.

Additionally, as a "capacity resource

owner," GenOn is required under the

Pennsylvania-New Jersey-Maryland

Interconnection (PJM) tariff to bid the

Portland units into the PJM energy

market every day and make the units

available to generate unless specific

circumstances, such as a unit outage,

arise that precludes operation of the

plant.

Response: The EPA agrees that the

proposed rule could have used a clearer

term than "load shifting" in describing

the possible ways the interim emissions

limits could be met. The EPA

appreciates the distinction that GenOn

makes in regard to load shifting within

a utility's own assets versus load

shifting in a competitive market. The

EPA did not mean to imply in its brief

mention of load shifting that we reached

a conclusion that GenOn would merely

shift any load reduction at Portland to

another GenOn facility. Rather, our use

of the imprecise term "load shifting"

was referring to the ability of Portland

to reduce its operation as a way to meet

the interim lb/hr limits, or as a partial

solution to meet the limits in

combination with other approaches. The

EPA recognizes the open market aspects

of the PJM energy market including the

probability that the load can shift to

other operators. These market realities

are characterized in detail in the models

we use to forecast the effect of EGU

regulations on the utility industry. In

response to Portland's observation that

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the facility that replaces Portland's

output could be higher-emitting, the

EPA observes that while its output

would likely be more expensive than

Portland's energy, there is a good

possibility that the energy would be

replaced with a scrubber or a gas-fired

unit, either of which could have much

lower emission rates than Portland,

given the relatively high emission rate

from Portland. As an older relatively

uncontrolled plant, much of the

generation capacity would be expected

to emit less per unit of generation than

the Portland facility.

e. One-Year Time Period

Comment: One commenter, NJDEP,

believed that the 1-year period allowed

for too much time for the Portland

facility to meet interim emissions limits,

and that the interim limits were

insufficiently stringent. NJDEP in their

comments urged the EPA to ensure that

we require interim reductions no less

than 80 percent within 90 days.

Response: The EPA disagrees with

this comment. An 80 percent reduction

would represent nearly the 81 percent

reduction required by the 3-year limits

in the final rule. As discussed in section

VI.A above, we believe that the 3-year

period is an "expeditious" schedule for

emissions reductions of this magnitude,

and that this level of reduction would

not be achievable in a 90-day time

period.

Comment: Another commenter,

PADEP, noted that if the proposed 50

percent reduction in the maximum

allowable SO 2 emissions can only be

achieved by the installation of sorbent

injection technology, the 1-year

deadline for complying with the interim

limit does not provide sufficient time

for permitting, purchasing, and

installing the technology. Therefore, in

lieu of setting specific interim emission

limits and deadlines, PADEP

recommended that the EPA work with

NJDEP, GenOn, and PADEP, as the

permitting agency, to establish emission

interim emission limits and compliance

schedules containing increments of

progress consistent with CAA section

126(c).

Response: The EPA believes that this

approach would not be consistent with

the statute. Under section 126, the

Administrator is to set the emission

limits and compliance schedules, and

must accomplish these through a notice

and comment rulemaking. While we

have considered the comments of all the

parties noted by the commenter, it

would not be appropriate for the EPA to

defer the compliance schedules to a

future negotiation with the source

owner and states.

On the other hand, as discussed

previously in section V.E, the EPA does

agree with the commenter, and with

others who made similar observations,

that reagent injection may not be

achievable within 1 year because

Portland may need to upgrade its

particulate matter collection equipment.

Accordingly, we no longer believe that

reagent injection alone serves as a

technical basis for the interim emissions

reduction requirements in the final rule.

Nevertheless, after analyzing the

comments regarding the feasibility of

switching to cleaner coal and the

necessary time frame for doing so, we

do believe that this is an appropriate

basis for the interim limit. Thus, the

EPA has determined that it is feasible

for Portland to achieve interim

reductions within 1 year that would

achieve significant progress toward the

final remedy limits, would not interfere

with Portland's progress toward meeting

those final limits, and would result in

important public health benefits in the

interim.

f. Effect of Interim Limits on Reliability

Comment: In response to the EPA's

request for comments on the effects of

the interim limits on electric reliability,

one commenter noted that Portland is

uniquely situated to supply power to

the PJM power interconnection from a

location close to the source of demand,

that power transmissions coming from

the Midwest are hampered by long

distance transmission losses, and that

transmission lines are already

approaching overload. Another

commenter, NJDEP, indicated that the

400 MW generated by the plant is

relatively small compared to PJM's

current total capacity of 163,500 MW.

NJDEP also concluded that it is unlikely

that these units would be needed to

prevent brownouts or blackouts, but that

in the unlikely event that these units are

necessary, the EPA could include a

condition that the units may only be run

when called on by PJM to provide

power during a Maximum Emergency

Generation Event.

Response: The EPA agrees that given

large reserve margins, we do not expect

that the interim limit will cause adverse

effects on electricity reliability. The EPA

notes that the test burn reports cited

above show that at worst, in meeting the

interim limits the facility would be

projected to continue operating under a

small derate, and given the significant

reserve margin noted by the

commenters, continued operation of

Portland at an occasionally lower rate

would not be expected to have an

adverse effect on the PJM system's

ability to deliver needed power.

Consequently, the EPA does not believe

it is necessary to make any provision for

use of Portland to address potential

emergency events.

g. Clear Rationale for Limits

Comment: One commenter, PADEP,

noted its view that while section 126

expressly provides for increments of

progress, there is no provision in the

CAA to suggest that a 50-percent

reduction must be made within 1 year

of a finding. Without the EPA fully

explaining the rationale for these

proposed interim emission reductions

and timelines, this commenter believed

the EPA's interim requirements could be

viewed as arbitrary and capricious.

Response: EPA has discretion under

section 126 to establish reasonable

interim emissions controls. For reasons

discussed above, the EPA has a clear

rationale for the interim emissions

limits in the final rule. These limits are

based upon the ready availability of coal

with a sulfur content of 1.5 lb/mmBtu.

We have reviewed the data on existing

coal supplies, carefully reviewed

information on available technologies,

and established the interim limits based

upon that review.

h. Combined Emission Limits

Comment: GenOn requested in its

comments that any interim emissions

limits for Portland units 1 and 2 should

be expressed as a combined limit for the

two units, rather than on a unit-by-unit

basis.

Response: The EPA agrees with

GenOn that for the interim limits, a

substantial "increment of progress"

towards meeting the ultimate (in this

case, 3-year) limit is achievable

regardless of whether the emissions

limit is expressed as a combined limit

or on a unit-by-unit basis. Accordingly,

for the final rule, we are adopting an

interim limit that will be a single

combined limit, rather than separate

limits, for units 1 and 2. As with the

3-year limit, the EPA will evaluate

compliance based on available test data

including part 75 CEMS data. The EPA

believes that the combined limit will

provide GenOn with greater flexibility

to implement a variety of combinations

of options to satisfy the interim limit,

which should in turn serve to reinforce

the EPA's view that there are readily

available measures for Portland to

employ in meeting the interim

emissions reduction requirement.

The EPA notes that for the interim

emissions reduction, unlike the 3-year

limit, there is no explicit air quality goal

defined by the Act. For the 3-year limit,

it is essential that the limit ensure that

Portland fully eliminates its significant
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contribution to nonattainment and its

interference with maintenance of the

1-hour S02 NAAQS. For the interim

reductions, however, the goal is to

establish "increments of progress"

towards meeting emissions limits that

fully comply with section 126.

Accordingly, for the 3-year limit, the

EPA concluded it was essential for the

final rule to include lb/mmBtu limits to

ensure that the NAAQS were protected

at all loads. However the EPA

determined that it was not necessary to

include similar lb/mmBtu limits for the

interim limits. We also determined that

establishing lb/mmBtu limits in the

interim might unnecessarily restrict

Portland's flexibility in the interim,

since the 1-year compliance deadline

already constrains the available options

to meet such a limit.

3. Final Rule Interim Emission Limits

For the final rule, the EPA includes a

combined interim limit of 6,253 lb/hour

for the total S02 emissions from units 1

and 2.

The basis for the final limit differs

from the proposed rule. For the

proposal, the EPA calculated the unitby-unit proposed limits as 50 percent of

the allowable emissions rate used for

the EPA air quality modeling. We

believe that for the final rule it is

preferable to base these interim limits

on coal characteristics of readily

available coal supplies. For the final

rule, the combined interim limit is

based on the EPA's assessment that coal

with sulfur content of 1.5 lb/mmBtu is

readily available and its use at Portland

is achievable within 1 year. Using this

1.5 lb/mmBtu value as the basis for the

calculation of the combined interim

limit, we calculated 22 the limit as

follows:

For Unit 1: 1657.2 mmBtu/hr x 1.5 lb/mmBtu = 2486 lb/hr

For Unit 2: 2511.6 mmBtu/hr x 1.5 lb/mmBtu

= 3767 lb/hr

Total combined emission rate = 6253 lb/hr

We agree with the commenters who

feel strongly that this interim limit is

very important to include in the final

rule, not only because it drives progress

toward the final remedy, but also

because of the air quality and public

health benefits that will be realized in

the interim. While the limit is not

calculated based on specific air quality

criteria, these readily available interim

reductions will serve to markedly

reduce the number of days with S02

violations in New Jersey, and will serve

to greatly reduce S02 concentrations on

22 Heat input capacities of 1657.2 and 2511.6

mmBtu/hr are those listed in the title V permit for

Portland units 1 and 2.

days with remaining violations. We do

not know what specific approach

Portland will use to comply with the

interim limit, so we cannot quantify the

decrease in S02 concentrations at

specific locations, but we do note that

the interim limits will result in

significant S02 emissions reductions

within the first year and make important

progress toward the elimination of S02

violations within 3 years. These limits

represent a 46-percent decrease from

peak 2010 actual emissions. Moreover,

the most significant reductions will

occur during the hours when the

emissions are the highest. During 2010,

more than 40 percent of the hours that

Portland operated resulted in emissions

that exceeded 6253 lb/hr. The interim

limit will ensure that such high

emissions during those times are

eliminated.

B. Increments of Progress: Reporting

Milestones

1. What the EPA Proposed

In addition to the proposed 3-year and

1-year emissions limits, the EPA

proposed a schedule of milestones that

must be achieved to provide assurance

that the source is on track to achieve full

compliance as expeditiously as

practicable and no later than the 3-year

deadline.

Those proposed milestones were:

3-month notification: Within 3

months of the EPA's finding, the EPA

proposed that GenOn notify the EPA

whether it will cease to operate within

that period or whether it will continue

to operate subject to the emission

limitations and compliance schedules in

the final rulemaking. If Portland plans

to continue to operate subject to these

limits, the EPA proposed to require

Portland to indicate how it intends to

achieve full compliance with the

emission limits. Specifically, we

proposed that Portland must indicate

whether it intends to cease or reduce

operation at any emission unit subject to

emission limits as its method of

compliance with such limits. If this 3-

month notice indicated that Portland

intends to continue operation, the

proposed rule required the remaining

reporting requirements also be satisfied.

Modeling protocol and analysis: No

later than 3 months from the date of the

section 126 finding, we proposed that

GenOn submit to the EPA a modeling

protocol (including all units at Portland

in the protocol), consistent with our

Guideline on Air Quality Models. If the

EPA identified deficiencies in the

modeling protocol submitted by the

source, we proposed to require Portland

to submit a revision to correct any

deficiencies within 15 business days.

We proposed to require that Portland

submit a modeling analysis in

accordance with the approved protocol

within 6 months.

Status reports: We proposed to

require GenOn to submit, beginning 6

months after the section 126 finding and

continuing every 6 months until the

final compliance date, a progress report

on the implementation of the remedy,

including status of design, technology

selection, development of technical

specifications, awarding of contracts,

construction, shakedown, and

compliance demonstration.

Interim project report: We proposed to

require GenOn to submit within 1 year

an interim project report demonstrating

compliance with the 1-year limits.

Final project report: We proposed to

require GenOn to submit, within 3

years, a final project report which

demonstrates compliance with the

emission limits in the final rulemaking.

We proposed that this final report

include the date when full operation of

controls was achieved at Portland after

shakedown; as well as a minimum of 1

month of CEMS data demonstrating

compliance with the emission limits in

the final rulemaking.

2. Public Comments and the EPA's

Responses

One commenter, GenOn, objected to

both the 90-day compliance plan and

the periodic status reports. The

commenter believed that requiring a

detailed plan 90 days after the final rule

is unnecessarily restrictive, particularly

given that GenOn will not have fully

evaluated its compliance options under

MATS. Similarly, GenOn believed that

detailed status reports are not justified

and will limit GenOn's flexibility to

revise its compliance strategy in

response to other state and federal

regulations. Because the regulatory

environment is fluid with further

changes expected, GenOn expressed

concerns that the compliance plan and

status reports should not restrict

GenOn's ability to revise its strategy for

compliance with section 126 as

circumstances change.

One commenter believed that the

schedule for a required modeling

protocol within 3 months was overly

ambitious and suggested the owner and

operator of Portland should have at least

6 months to submit a modeling protocol

for Portland's SO 2 emissions.

3. Final Rule Reporting Milestones

For the final rule, the EPA has

amended the proposed requirement for

GenOn to develop a compliance plan

with an identified remedy with 90 days.

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69074 Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

The EPA agrees with GenOn that it is

very possible that complete information

to inform this remedy may not be

available within 90 days of the rule's

effective date. The EPA does, however,

believe that in order to implement

controls it is reasonable to assume that

information necessary for a decision

will be available within 12 months of

the effective date, and accordingly we

have retained the requirement but have

postponed the deadline until 12 months

after the effective date of the final rule.

The EPA acknowledges the commenters'

point that there are factors over time

that could lead to a revised decision

after the 12 month milestone. Even if

such factors lead to a different eventual

remedy, the EPA believes that it is

nonetheless reasonable to require a

status report on GenOn's intent at the 12

month point in order to ensure that

planned actions for compliance with the

requirements of section 126 are on track.

The EPA has also retained the

requirements for 6 month status reports.

We disagree with comments that these

reports are not justified. The status

reports required by this rule are

warranted not only because section 126

requires "increments of progress," but

in addition the EPA believes these are

necessary for the EPA and the states to

monitor Portland's efforts to achieve

compliance with the emission limits

established in this rule. The status

reports are not exhaustive, but will

provide important information to the

agency and to the public to monitor

Portland's progress towards the ultimate

goal of reducing its SO 2 emissions and

reducing its impact on New Jersey's

compliance with the 1-hour S02

NAAQS.

We have also retained the

requirement for the interim and final

progress reports. For the final rule, we

have extended the deadline for the final

project report by two months to provide

time for evaluation of CEMS data before

submitting the report.

In the final rule, we have retained the

requirement to submit a modeling

protocol and modeling, but, after

consideration of the timing concerns

raised by commenters, we have

amended the deadlines. For the final

rule, the modeling protocol is required

within 6 months of this rulemaking and

the final modeling within 12 months.

The revisions to the interim compliance

schedule outlined in this section are all

logical outgrowths of the compliance

schedule originally proposed as they

were made in response to consideration

of the comments received in response to

that proposal.

VII. Alternate Compliance Schedule

and Consideration of Petition for

Rulemaking for Alternative Emission

Limits

In this section, we discuss two

additional overarching issues on which

we sought comment in the proposal.

First we discuss our decision regarding

the proposed consideration of an

alternative schedule based upon

Portland's decision to meet its

compliance obligations by electing to

shut down unit 1 or unit 2, or both. We

then discuss the potential for additional

rulemaking to accommodate alternative

remedies from those established in this

rule.

A. Alternate Compliance Schedule if the

Source Owner Opts To Cease

Operations

1. What the EPA Proposed

In the preamble to the proposed rule,

the EPA discussed why different

remedies for meeting the requirements

of section 126 may suggest different

compliance schedules, 76 FR 19678. In

particular, the EPA noted that if GenOn

decided to cease operation of the

Portland facility, it is possible that

implementing such a remedy "as

expeditiously as practicable" may have

different considerations than if it

decided to undertake a schedule of

constructing and implementing control

technologies. Consistent with this

perceived possibility, the EPA requested

comment in the proposal on how to

interpret the phrase "as expeditiously as

practicable" when the source owner and

operator has elected to cease operation

as its method of compliance with the

emissions limit for a given unit and

cessation cannot occur within 3 months

of the EPA's finding. The EPA noted

that if appropriate based upon

comments, the EPA would consider

including in the final rule an alternate

compliance schedule for this possibility,

and the EPA requested comment on

relevant factors that should be

considered were we to include such an

alternate schedule.

2. Public Comments and the EPA's

Responses

Comment: One commenter stated that

if the facility elected to close, it must be

required to cease operation

immediately, as there is no basis to

allow the plant to continue to

significantly contribute to

nonattainment and interference with

maintenance of the 1-hour SO2 NAAQS

in New Jersey. Another commenter

suggested that if Portland plans to cease

operations of the coal burning units,

shutdown should occur within 3

months of the EPA's final rule.

Response: The EPA notes that section

126(c) of the CAA allows the EPA to

permit continued operation beyond 90

days if the source complies with

emissions limitations and compliance

schedules established by the

Administrator. This language does not,

however, mandate that any decision to

cease operation must occur in any

particular time period when the source

is otherwise complying with the

required emission limits compliance

schedules. The EPA disagrees with

commenters suggestion that any

decision to shutdown must occur

immediately or within 90 days. For the

final rule, the EPA concludes that the

final and interim emission limits and

reporting milestones are sufficient for

all selected remedies, including a

remedy under which GenOn would

choose to ultimately cease operation at

one or more units. The EPA has made

this conclusion because compliance

with the interim and final emission

limits, regardless of how the plant

chooses to comply, results in the

elimination of Portland's significant

contribution to the affected areas in

New Jersey and demonstrates

appropriate interim progress towards

such elimination.

3. The Final Rule

The EPA has retained the approach in

the proposed rule, and we have not

included an alternative compliance

schedule in the case that the selected

remedy is to cease operation of unit 1

and/or unit 2. The EPA did not receive

any information in comments that leads

the EPA to conclude that a different

schedule is necessary.

B. Consideration of Petition for

Rulemaking for Alternative Emission

Limits

The EPA received comment from

GenOn arguing that the unit-specific

SO2 limits for unit 1 and for unit 2 did

not provide GenOn with sufficient

flexibility. Accordingly, GenOn

recommended that the EPA change the

form of the final emissions limits to a

combined emissions limit for the total

emissions from units 1 and 2. In this

way, they asserted GenOn would be able

to evaluate a broader suite of remedies

which could possibly include remedies

with equivalent air quality impacts at

substantially reduced cost.

The EPA understands the source's

request for operational flexibility, and

we considered the option suggested by

GenOn. However, based on the

modeling analysis conducted by the

EPA, we are not able to set a combined
Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

limit for the final remedy. The final rule

contains individual final limits that are

specific to units 1 and 2. There are some

combinations of emissions from units 1

and 2 which will be protective of the

NAAQS and some that will not. Air

quality modeling results indicated that

there are many possible scenarios under

which a combined limit, of similar

stringency to the limits adopted, would

lead to exceedances of the 1-hour SO 2

NAAQS. In particular, given the

multiple possibilities of available

controls for the two units, there would

be a large number of possible stack

configurations with different dispersion

characteristics. While the EPA perhaps

could have developed a combined limit

with sufficient stringency to ensure that

all significant contribution and

interference with maintenance would be

eliminated under every possible

combination of control options and

stack configurations, the EPA does not

believe that this approach would

provide the flexibility that GenOn is

seeking because the combined limit

would likely need to be much more

stringent than the limits in the final

rule.

Nevertheless, we acknowledge the

greater operating flexibility that an

alternative set of emission limits might

offer, and we note that in some cases an

appropriately constrained combined

limit may be possible to construct in a

way that is protective of the NAAQS

(e.g., more stringent than the sum of the

individual limits). Should GenOn wish

to have a higher limit at one of the units,

in exchange for a lower limit at the

other, or seek a combined limit that is

protective of the NAAQS in all cases,

the source may petition the EPA for

additional rulemaking to adopt

alternative emissions limits if such

petition demonstrates that the proposed

alternative would eliminate all

emissions at Portland that significantly

contribute to nonattainment or interfere

with maintenance of the 1-hour SO 2

NAAQS in New Jersey by the 3-year

deadline established in this rule. As part

of the interim reporting requirements,

the rule requires GenOn to submit a

modeling analysis, pursuant to a

modeling protocol that it is consistent

with the data and methods the EPA

used to develop this rule, which shows

that the final compliance remedy is

protective of the NAAQS. If GenOn

chooses to submit such a petition, the

EPA expects GenOn to provide a

demonstration, in the course of

conducting the modeling analysis

required by the rule, that shows that a

specific alternative set of emissions

limits for unit 1 and unit 2 would also

be protective of the 1-hour SO 2 NAAQS

in New Jersey. In order for the EPA to

consider such a rulemaking petition,

GenOn would need to submit, no later

than the 1-year deadline for submitting

modeling results under the rule, any

proposed alternative limits along with

air quality modeling, consistent with the

approved modeling protocol,

demonstrating that the proposed

alternative limits would, at all operating

loads, eliminate Portland's significant

contribution to nonattainment and

interference with maintenance in New

Jersey. If the EPA determines it would

be appropriate to propose approval of

the alternative emission limits, the EPA

would conduct a notice and comment

rulemaking on the proposed alternative.

VIII. Statutory and Executive Order

Reviews

A. Executive Order 12866: Regulatory

Planning and Review and Executive

Order 13563: Improving Regulation and

Regulatory Review

This action will grant the NJDEP

petition and is making a CAA section

126 finding. This type of action is

exempt from review under Executive

Orders 12866 (58 FR 51735, October 4,

1993) and 13563 (76 FR 3821, January

21, 2011).

B. Paperwork Reduction Act

This action does not impose an

information collection burden under the

provisions of the Paperwork Reduction

Act, 44 U.S.C. 3501 et seq. Burden is

defined at 5 CFR 1320.3(b). Under the

Paperwork Reduction Act, a "collection

of information" is defined as a

requirement for "answers to * * *

identical reporting or recordkeeping

requirements imposed on ten or more

persons * * *." 44 U.S.C. 3502(3)(A).

Because the rule applies to a single

facility, Portland, the Paperwork

Reduction Act does not apply. See 5

CFR 1320(c).

C. Regulatory Flexibility Act (RFA)

The Regulatory Flexibility Act (RFA)

generally requires an agency to prepare

a regulatory flexibility analysis of any

rule subject to notice and comment

rulemaking requirements under the

Administrative Procedure Act or any

other statute unless the agency certifies

that the rule will not have a significant

economic impact on a substantial

number of small entities. Small entities

include small businesses, small

organizations, and small governmental

jurisdictions.

For purposes of assessing the impacts

of this rule on small entities, small

entity is defined as: (1) A small business

as defined by the Small Business

Administration's (SBA) regulations at 13

CFR 121.201; (2) a small governmental

jurisdiction that is a government of a

city, county, town, school district or

special district with a population of less

than 50,000; and (3) a small

organization that is any not-for-profit

enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impacts of this final rule on small

entities, I certify that this rule will not

have a significant economic impact on

a substantial number of small entities.

This final rule will not impose any

requirements on small entities because

small entities are not subject to the

requirements of this rule.

D. Unfunded Mandates Reform Act of

1995 (UMRA)

This rule does not contain a federal

mandate that may result in expenditures

of $100 million or more for state, local,

and tribal governments, in the aggregate,

or the private sector in any 1 year. The

cost necessary to comply with the limits

in this notice are not expected to exceed

$100 million. Thus, this rule is not

subject to the requirements of sections

202 or 205 of UMRA.

This rule is also not subject to the

requirements of section 203 of UMRA

because it contains no regulatory

requirements that might significantly or

uniquely affect small governments. The

requirements for compliance in this rule

will be borne by a single, privately

owned source.

E. Executive Order 13132: Federalism

This action does not have federalism

implications. It will not have substantial

direct effects on the states, on the

relationship between the national

government and the states, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. The rule

primarily affects the private industry,

and does not impose significant

economic cost on state or local

governments or preempt state or local

law. Thus, Executive Order 13132 does

not apply to this action.

In the spirit of Executive Order 13132,

and consistent with the EPA's policy to

promote communications between the

EPA and state and local governments,

the EPA specifically solicited comment

on the proposed action from state and

local officials.

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69076 Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

F. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

This action does not have tribal

implications, as specified in Executive

Order 13175 (65 FR 67249, November 9,

2000). It does not have a substantial

direct effect on one or more Indian

Tribes. Furthermore, this action does

not affect the relationship between

Indian Tribes and the federal

government, or distribution of power

and responsibilities between the federal

government and Indian Tribes. Thus,

Executive Order 13175 does not apply

to this action.

G. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

The EPA interprets Executive Order

13045 (62 FR 19885, April 23, 1997) as

applying only to those regulatory

actions that concern health or safety

risks, such that the analysis required

under section 5-501 of the Executive

Order has the potential to influence the

regulation. This action is not subject to

Executive Order 13045 because it does

not involve decisions on environmental

health or safety risks that may

disproportionately affect children. The

EPA believes that the emissions

reductions in this rule will further

improve air quality and will further

improve children's health.

H. Executive Order 13211: Actions That

Significantly Affect Energy Supply,

Distribution, or Use

This action is not subject to Executive

Order 13211 (66 FR 28355 (May 22,

2001)), because it is an exempted action

under Executive Order 12866.

L Executive Order 12898: Federal

Actions To Address Environmental

Justice in Minority Populations and

Low-Income Populations

Executive Order 12898 (59 FR 7629,

February 16, 1994) establishes Federal

executive policy on environmental

justice. Its main provision directs

federal agencies, to the greatest extent

practicable and permitted by law, to

make environmental justice part of their

mission by identifying and addressing,

as appropriate, disproportionately high

and adverse human health or

environmental effects of their programs,

policies, and activities on minority

populations and low-income

populations in the U.S.

The EPA has determined that this

final rule will not have

disproportionately high and adverse

human health or environmental effects

on minority or low-income populations

because it increases the level of

environmental protection for all affected

populations without having any

disproportionately high and adverse

human health or environmental effects

on any population, including any

minority or low-income population.

The agency has also reviewed this

rule to determine if there is existing

disproportionately high and adverse

human health or environmental effects

on minority or low-income populations

that could be mitigated by this

rulemaking. An analysis of demographic

data illustrates that the population

residing near the source is represented

by fewer minority and low-income

residents than either the surrounding

counties, the average demographic

composition of the states of New Jersey

and Pennsylvania, and national

averages. In addition, this rule increases

the level of environmental and public

health protection for all affected

populations since, when fully

implemented, it will result in

attainment of the health-based 1-hour

SO 2 NAAQS. The results of the

demographic analysis are presented in

the supporting document titled,

"Environmental Justice Assessment for

Section 126 Petition from New Jersey

Regarding SO 2 Emissions from the

Portland Generating Station"

(September 2011), a copy of which is

available in the docket EPA-HQ-OAR2011-0081.

J. National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer Advancement Act

of 1995 (NTTAA), Public Law No. 104-

113, section 12(d) (15 U.S.C. 272 note)

directs the EPA to use voluntary

consensus standards (VCS) in its

regulatory activities unless to do so

would be inconsistent with applicable

law or otherwise impracticable. VCS are

technical standards (e.g., materials

specifications, test methods, sampling

procedures, and business practices) that

are developed or adopted by VCS

bodies. The NTTAA directs the EPA to

provide Congress, through OMB,

explanations when the agency decides

not to use available and applicable VCS.

This action does not involve technical

standards. Therefore, the EPA did not

consider the use of any VCS.

K. Congressional Review Act

The Congressional Review Act, 5

U.S.C 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. Section 804

exempts from section 801 the following

types of rules (1) Rules of particular

applicability; (2) rules relating to agency

management or personnel; and (3) rules

of agency organization, procedure, or

practice that do not substantially affect

the rights or obligations of non-agency

parties. 5 U.S.C. 804(3). The EPA is not

required to submit a rule report

regarding today's action under section

801 because this is a rule of particular

applicability. Nonetheless, this action

will be effective January 6, 2012.

L. Judicial Review

Under section 307(b)(1) of the CAA,

petitions for judicial review of this

action must be filed in the United States

Court of Appeals for the District of

Columbia Circuit Court within 60 days

from the date the final action is

published in the Federal Register.

Filing a petition for review by the

Administrator of this final action does

not affect the finality of this action for

the purposes of judicial review nor does

it extend the time within which a

petition for judicial review must be

final, and shall not postpone the

effectiveness of such action.

Thus, any petitions for review of this

action related to the section 126 finding

must be filed in the Court of Appeals for

the District of Columbia Circuit within

60 days from the date final action is

published in the Federal Register.

List of Subjects in 40 CFR Part 52

Approval and promulgation of

implementation plans, Environmental

protection, Administrative practice and

procedures, Air pollution control,

Incorporation by reference,

Intergovernmental relations, and

Reporting and recordkeeping

requirements, Sulfur dioxide.

Dated: October 31, 2011.

Lisa P. Jackson,

Administrator.

For the reasons set forth in the

preamble part 52 of chapter I of title 40

of the Code of Federal regulations is

amended as follows:

PART 52-[AMENDED]

m 1. The authority citation for part 52

continues to read as follows:

Authority: 42 U.S.C. 7401 et seq.

Subpart NN-Pennsylvania

* 2. Section 52.2039 is added to read as

follows:
Federal Register/Vol. 76, No. 215/Monday, November 7, 2011/Rules and Regulations

§52.2039 Interstate transport.

The EPA has made a finding pursuant

to section 126 of the Clean Air Act (the

Act) that emissions of sulfur dioxide

(SO 2) from the Portland Generating

Station in Northampton County, Upper

Mount Bethel Township, Pennsylvania

(Portland) significantly contribute to

nonattainment and interfere with

maintenance of the 1-hour SO 2 national

ambient air quality standard (NAAQS)

in Morris, Sussex, Warren, and

Hunterdon Counties in New Jersey. The

owners and operators of Portland shall

comply with the requirements in

paragraphs (a) through (d) of this

section.

(a) The owners and operators of

Portland shall not, at any time later than

one year after the effective date of the

section 126 finding, emit S02 (as

determined in accordance with part 75

of this chapter) in excess of 6,253

pounds per hour (lb/hr) for unit 1

(identified with source ID 031 in Title

V Permit No. 48-0006) and unit 2

(identified with source ID 032 in Title

V Permit No. 48-0006) combined;

(b) The owners and operators of

Portland shall not, at any time later than

three years after the effective date of the

section 126 finding, emit S02 (as

determined in accordance with part 75

of this chapter) in excess of the

following limits:

(1) 1,105 lb/hr and 0.67 pounds per

million British Thermal Unit (lb/

mmBtu) for unit 1; and

(2) 1,691 lb/hr and 0.67 lb/mmBtu for

unit 2.

(c) The owners and operators of

Portland shall comply with the

following requirements:

(1) Perform air modeling to

demonstrate that, starting no later than

three years after the effective date of the

section 126 finding, emissions from

Portland will not significantly

contribute to nonattainment or interfere

with maintenance of the 1-hour S02

NAAQS in New Jersey, in accordance

with the following requirements:

(i) No later than six months after the

effective date of the section 126 finding,

submit to the EPA a modeling protocol

that is consistent with the EPA's

Guideline on Air Quality Models, as

codified at 40 CFR Part 51, Appendix

W, and that includes all units at the

Portland Generating Station in the

modeling.

(ii) Within 15 business days of receipt

of a notice from the EPA of any

deficiencies in the modeling protocol

under paragraph (d)(1)(i) of this section,

submit to the EPA a revised modeling

protocol to correct any deficiencies

identified in such notice.

(iii) No later than one year after the

effective date of the section 126 finding,

submit to the EPA a modeling analysis,

performed in accordance with the

modeling protocol under paragraphs

(c)(1)(i) and (c)(1)(ii) of this section, for

the compliance methods identified in

the notice required by paragraph (c)(2)

of this section.

(2) No later than one year after the

effective date of the section 126 finding,

submit to the EPA the compliance

method selected by the owners and

operators of Portland to achieve the

emissions limits in paragraph (b) of this

section.

(3) Starting six months after the

effective date of the section 126 finding

and continuing every six months until

three years after the effective date of the

section 126 finding, submit to the EPA

progress reports on the implementation

of the methods to achieve compliance

with emissions limits in paragraphs (a)

and (b) of this section, including status

of design, technology selection,

development of technical specifications,

awarding of contracts, construction,

shakedown, and compliance

demonstrations as applicable. These

reports shall include:

(i) An interim project report, no later

than one year after the effective date of

the section 126 finding, that

demonstrates compliance with the

emission limit in paragraph (a) of this

section.

(ii) A final project report, submitted

no later than 60 days after three years

after the effective date of the section 126

finding, that demonstrates compliance

with the emission limits in paragraph

(b) of this section and that includes at

least one month of S0 2 emission data

from Portland's continuous SO 2

emission monitor, and that includes the

date when full operation of controls was

achieved at Portland after shakedown.

(4) The requirements in paragraphs

(c)(1) and (c)(3) of this section shall not

apply if the notice required by

paragraph (c)(2) of this section indicates

that the owners and operators of

Portland have decided to completely

and permanently cease operation of unit

1 and unit 2 as the method of

compliance with paragraphs (a) and (b)

and with section 126 of the Act.

(d) Compliance with the lb/mmBtu

limitations in paragraph (b) of this

section is determined on a 30 boiler

operating day rolling average basis.

Boiler operating day for the purposes of

this paragraph means a 24-hour period

between midnight and the following

midnight during which any fuel is

combusted in the units identified in

paragraph (a) of this section.

[FR Doe. 2011-28816 Filed 11-4-11; 8:45 am]

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