Docket Number EPA-HQ-OAR-2011-0081

Response to Petition From New Jersey Regarding SO2

Emissions From the Portland Generating Station 

(76 FR 19662; April 7, 2011)

Response to Comments 

Document

U.S. Environmental Protection Agency

Office of Air and Radiation

October 2011
Page 1 of 181

Table of Contents

I. Introduction.........................................................................................3

II. General Comments in Support of the Rule ....................................3

III. General Comments in Opposition of the Rule............................13

IV. EPA’s Authority for this Action...................................................13

V. Air Quality Modeling ......................................................................46

1. General Comments................................................................................................................ 46

2. Comments on the EPA’s Assessment of the CALPUFF Validation Study.......................... 66

2.a Comments on Other Issues Raised by the EPA on the Validation Study ........................... 98

3. Comments on the EPA’s Meteorological Data Adjustment ............................................... 103

VI. Economic Benefits of the Portland Facility...............................115

VII. Emission Limits and Compliance Schedules...........................119

1. EPA should require Portland to shut down......................................................................... 119

2. EPA should require Portland to control emissions or shut down ....................................... 119

3. Compliance period for emission reductions ....................................................................... 123

4. Control technologies........................................................................................................... 126

5. Emission limits should be based on available technologies ............................................... 127

6. EPA’s accelerated compliance schedule could result in shut down ................................... 129

7. Compliance time is insufficient .......................................................................................... 130

8. Monitoring; startup, shutdown, and malfunction................................................................ 131

9. Unit-by-unit vs. combined emissions limits....................................................................... 133

10. Electricity reliability ......................................................................................................... 134

11. Miscellaneous ................................................................................................................... 135

VIII. Increments of Progress and Interim Emission Limits..........136

1. The EPA should exercise discretion provided by the Act and not issue interim limits...... 136

2. Interim limits are inadequately stringent ............................................................................ 136

3. Concerns with achievability of interim limits; Need for test burns.................................... 139

4. Interim limits may be viewed as arbitrary and capricious.................................................. 140

5. Interim limits should be revised on test burns results......................................................... 142

6. Interim limits may be achievable........................................................................................ 143

7. Comments on the relationship to other EPA requirements................................................. 144

8. 90-day compliance plan is not needed................................................................................ 149
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9. Six month status reports are not justified............................................................................ 149

10. Interim limits should be combined limits......................................................................... 150

11. EPA should work with agencies to establish increments of progress post-promulgation 150

12. Comments on interim reporting milestones...................................................................... 151

13. Meaning of “expeditiously as practicable” requirement in the event of a shutdown ....... 152

14. Additional comments on criteria for implementing the “as expeditiously as practicable” 

requirement ............................................................................................................................. 153

IX. Technical Feasibility of Controls................................................154

X. Health Effects From Sulfur Dioxide............................................165

XI. Other Pollutants not Addressed by the Rule ............................172

XII. Executive Orders........................................................................175

XIII. Miscellaneous Comments.........................................................176
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I. Introduction

On April 7, 2011, the United States Environmental Protection Agency (the EPA or agency) 

published a Federal Register Notice 76 FR 19662 for the “Response to the Petition From New 

Jersey Regarding SO2 Emissions From the Portland Generating Station.” In this notice, the EPA 

requested comments from the public on the proposed rulemaking from April 7, 2011 to May 27, 

2011. On May 26, 2011, the EPA published a Federal Register Notice 76 FR 30602 extending 

the comment period from May 27, 2011 to June 13, 2011.

The purpose of this response to comment (RTC) document is to respond to public comments 

submitted to the docket (EPA-HQ-OAR-2011-0081: available online at www.regulations.gov)

from interested parties. 

II. General Comments in Support of the Rule

Commenter: Commissioner Bob Martin, NJDEP

Comment:

First, I would like to thank EPA for proposing to grant New Jersey's Section 126 petition to 

address air pollution from GenOn's Portland Generating Station and for holding this hearing to 

receive comments on EPA's proposed findings and remedy.

The Portland power plant ranks in the top five in the nation in highest sulfur dioxide emission 

rate per megawatt of electricity generated. The plant also emits more mercury than all New 

Jersey coal-fired power plants combined. New Jersey supports EPA's proposal to require this 

largely uncontrolled coal-fired power plant to minimize its harmful sulfur dioxide emissions in 

the short term, with a 50 percent reduction in the first year. New Jersey also supports EPA's 

proposal to require the plant to dramatically reduce its significant sulfur dioxide emissions within 

three years, as the Clean Air Act requires, but New Jersey wants a 95 percent reduction rather 

than the 81 percent proposed by EPA. These are reasonable measures to begin to address this 

public health problem that has existed for far too long.

Sitting here today, we are about halfway between the Portland plant and DEP's Chester air 

monitoring station in Morris County, which is about 22 miles from Portland. The Chester 

monitor historically has measured the highest short-term sulfur dioxide levels in all of New 

Jersey. Trajectory analysis indicates this occurred when the wind was blowing from the Portland 

plant, demonstrating the long-range adverse impacts of the plant.

Commenter: Christine Guhl, New Jersey Beyond Coal Associate Organizing 

Representative, Sierra Club 

Comment:

The GenOn coal plant has been polluting New Jersey and Pennsylvania for far too long. This 

facility is one of the oldest and dirtiest coal plants in the United States. It emits millions of tons 

of air pollution every year, destroying the environment and putting public health at risk. The 

Sierra Club supports the efforts by New Jersey and the EPA to address pollution from this plant. 

Plant exemplifies how critically important the EPA is for protecting our health. Because of the 
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GenOn facility in Portland, New Jersey is not able to protect its residents from dangerous air 

pollution. As a lifelong resident of New Jersey, I have been fortunate to live in a state with strong 

air quality regulations. Our DEP has consistently taken steps to protect New Jerseyans from 

dangerous and unhealthy air pollution. But the New Jersey DEP cannot prevent air pollution 

from blowing across the Delaware River into our state. It cannot prevent asthma attacks and 

respiratory illness caused by the Portland coal plant. The New Jersey DEP cannot protect the 

people of Warren, Sussex, Morris and Hunterdon counties from toxic emissions produced by 

GenOn. The EPA's proposal to require an 81 percent reduction in sulfur dioxide from the 

Portland plant would have direct benefits on the affected counties in New Jersey. Sulfur dioxide 

has significant adverse health impacts and leads to increased hospital visits and death. The 

impacts from sulfur dioxide can result event from five minutes of exposure to the pollutant. Just 

five minutes, that's all it takes to put children, asthmatics and the elderly at risk. The EPA exists 

to protect all of us, but especially those at risk populations, from harmful pollution. Congress 

enacted Section 126 of the Clean Air Act to provide a means by which downwind states could 

protect their residents from unhealthy air blowing from upwind power plants, in states such as 

New Jersey to petition the EPA to determine if upwind states are causing unhealthy air 

downwind. Pennsylvania has done nothing to prevent unhealthy air pollution from blowing into 

New Jersey. That is why the EPA needs to take the lead and address this serious public health 

issue. Coal-fired power plants in Pennsylvania have been making New Jerseyans sick for over 

50 years. It is not acceptable to put GenOn or any other coal company's profits above public 

health. We, the people of New Jersey, are looking to the EPA to ensure that this practice comes 

to a swift end. It is time to end the use of coal and dangerous, polluting fossil fuels, and move 

toward a clean, healthy energy future.

Commenter: Erin Phalon and Joshua R. Stebbins, The Sierra Club 

Comment:

The Sierra Club commends EPA for taking action to reduce harmful SO2 emissions from the 

Portland Generating Station, which negatively impact New Jersey’s public health and air quality.

As discussed below, the Portland facility emits SO2 in violation of the Clean Air Act’s (CAA) 

prohibition of emissions that significantly contribute to nonattainment or interfere with 

maintenance of the Nationwide Ambient Air Quality Standards (NAAQS).

Commenter: Herbert J. Yardley, Administrator, Sussex County Department of 

Environmental and Public Health Services 

Comment:

I am writing on behalf of the Sussex County Department of Environmental and Public Health 

Services to support the proposed petition submitted by the New Jersey Department of 

Environmental Protection (NJDEP) under section 126 of the Clean Air Act, Docket ID Number 

EPA–HQ–OAR–2011–0081. This petition is asking the EPA to determine that the coal-fired 

Portland Generating Station (Portland Plant) in Northampton County, Pennsylvania, is emitting 

air pollutants that are impacting air quality in Warren, Sussex, Morris and Hunterdon Counties in 

New Jersey in violation of the interstate transport provisions of the Clean Air Act (CAA).

According to a Fact Sheet from the NJDEP, “air quality modeling results have shown that the 

Portland Plant is contributing significantly to nonattainment of the 1-hour sulfur dioxide (SO2) 

national air quality standard in New Jersey based on NJDEP’s air quality modeling.” The 
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Portland Plant is located directly across the Delaware River from Sussex County and based on 

preliminary data from the site, ground level concentrations are exceeding the level of the 1-hour 

SO2 standard. 

Poor air quality and harmful levels of emissions has a direct correlation between adverse health 

effects, contributing to respiratory illnesses, such as asthma, and heart and lung diseases. 

Statistics available from the New Jersey Cancer Registry show that Sussex County has higher 

Invasive Cancer Incidence and Mortality Rates that the State average. 

Our department serves as the County Health Department, responsible for providing both health 

and environmental services to the residents of Sussex County. Therefore, the health and wellbeing of our community is our primary concern and we support the proposed actions by the EPA 

regarding SO2 emissions limits and compliance schedules at the Portland Plant.

Commenter: Jeff Tittel, Sierra Club, New Jersey Chapter 

Comment:

We call on the EPA to accept the petition and adopt the rule on this plant. Through monitoring of 

sulfur dioxide levels in Warren County it has been found that these levels are exceeding the EPA 

national air quality standard and the Portland plant is the main source of emissions. This is an 

important step forward in improving New Jersey's air quality.

“It is important for the EPA to force the clean up of these coal plants in Pennsylvania that pollute 

New Jersey's air. This is an important step forward in allowing the residents of New Jersey to 

breathe easier,” said Jeff Tittel, director, NJ Sierra Club.

This action underscores the EPA's commitment to reducing pollution from coal-fired power 

plants. In recent months the EPA has released a series of proposed rules to regulate coal ash, and 

reduce mercury, SoX and NoX emissions from these plants. Sulfur dioxide exposure can pose 

health risks especially to people with asthma, children, and the elderly. By forcing this plant to 

clean up we would not only reduce SoX, but NoX and mercury as well that threaten our public 

health and environment.

One-third of New Jersey's pollution comes from out-of-state and the Portland power plant is the 

largest source of air pollution in Northwest New Jersey. Coal fired power plants in Pennsylvania 

have been making people in New Jersey sick for far too long, and bringing Pennsylvania’s dirty 

plants under control is long overdue. Residents on New Jersey should not have to sacrifice our 

health for Pennsylvania's profits or for electricity. By cleaning up or building new plant with 

newer cleaner technology we will create jobs in this region not reduce them. We should also be 

encouraging wind, solar, and other renewable energy rather than continue with these dirty forms 

of energy.

New Jersey petitioned to reduce the pollution coming from the plant under the federal Clean Air 

Act. State action against the Portland Plant originally began under DEP Commissioner Lisa 

Jackson during the Corzine administration and is part of a long-standing commitment by New 

Jersey to clean up pollution from coal-fired power plants. Corzine also closed the Martins Creek 

Coal Plant in Pennsylvania through a lawsuit.
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Commenter: Rene Mathez, Knowlton Township Committee

Comment:

I am speaking to support the proposed regulation of the Portland Power Plant. All across 

northern NJ but especially in Warren County our children, our parents, our grandparents are 

being harmed by the toxic discharge from the Portland Plant.

Commenter: Robert Menedez, Senator, United States Senate

Comment:

I write in strong support of the proposed rule under the Clean Air Act to significantly limit 

pollution from the Portland Generating Station. Your action to significantly limit pollution from 

the Portland Generating Station demonstrates how the Clean Air Act directly improves their 

quality of life.

Commenter: Jean Public, Pewtrust.org 

Comment:

I support the EPA and NJ DEP in requiring this Portland plan to stop the harmful emissions. I 

support this fully. 

Commenter: Lyn Vanderheart 

Comment:

I know that this plant is producing literally tons of sulfur dioxide into the air. I live in Warren 

County where I know a ton of the pollution is blown and knowing that that's one of the dirtiest 

plants in the country, I would like to see this plant be cleaned up in any way possible, therefore, I 

support any decision to make this plant cleaner.

Commenter: Leona and George Fluck

Comment:

I am here to support the Clean Air Act section 126 petition submitted by the New Jersey DEP. I 

am in support of the EPA's proposal to grant NJ's petition that will require the GenOn Portland 

Plant to reduce the plant's toxic emissions.

Commenter: Anonymous citizen 1

Comment:

Thank you for the opportunity to comment on this proposed rule. I strongly support this rule and 

believe that the Portland Plant should be mandated to decrease their SO2 emissions. Not only 

does the high intensity of SO2 emissions from this Portland Plant have an impact on the health 

and well being of those living near it but this Plant alone has largely contributed to the overall 

increased levels of SO2 in the state of New Jersey. In our government’s continued effort to try to 

improve the environment and prevent global warming by decreasing pollution, this Plant has a 

clear obligation to decrease their SO2 emissions. Both New Jersey and the EPA found similar 

findings in their analysis of the SO2 emissions showing that the Plant is violating its 1 hour 

National Air Guideline Standard. I believe that this is an easily fixable problem that would have 

significant benefits. The EPA scientists explained how SO2 emissions are extremely harmful to 

children, those with asthma and the overall health of the general public. Not only is the SO2 

itself dangerous but it can react with other compounds and form even more harmful particles 
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that can cause respiratory diseases, worsen heart disease and lead to greater hospital admissions 

and deaths. It is clear that in a situation so easily solvable and with such significant benefits, 

something must be done immediately. While there are so many other forms of pollution that are 

harder to regulate, this is a prime example of something that can be fixed. The fact that other 

Plants in New Jersey are not causing the same drastic emissions of SO2 means that there are 

clearly other alternative forms of fuel and technology that could be used to reduce SO2 

emissions.

Commenter: Anonymous citizen 2

Comment:

Reducing toxic emissions from power plants is something that all power plants in the United 

States should do. Not only does it improve the state of the economy, but it also improves the 

health of citizens living in proximity to the power plant in question. The Clean Air Act of 1990 

gave the EPA the power to control toxic air pollutants, and the EPA has found that the Portland 

Generating Station, a coal generated plant in Pennsylvania, is emitting pollutants that are harmful 

and against the Clean Air Act. The proposed rule would reduce these emissions. According to 

the rule, the regulations would help decrease the amount of heavy metals released into the air, 

which are known to be toxic and cause health complications, such as cancer and asthma. There 

are already power plants in operation that do not have the same problems, so it is not impossible 

for the power plants in question to change their practices to be more environmentally friendly 

and responsible with people’s health. While this may be unrealistic with current technology and 

not economically feasible, the goal for power plants should be to have zero harmful emissions to 

either the environment or to people’s health. The plants should also be on a faster time line. 

Allowing dangerous emissions for prolonged periods of time know that we know the damage 

seems irresponsible on the part of the government. While the plants do need time to implement 

the changes, 4 years seems to allow the problem to go on longer than necessary. The bottom line 

is that coal powered plants should have been regulated long ago to reduce harmful emissions. 

This is a necessary step as it concerns both the health of the people and the environment. I am 

not an expert by any means on the environment and pollution, but I care about the future of this 

country and hope that we can reduce harmful emissions. 

Commenter: Commissioner Bob Martin, NJDEP

Comment:

The State of New Jersey supports the proposed approval of the Section 126 petition for the 

Portland Plant. The State recognizes the significant effort the USEPA invested in its review of 

New Jersey's 126 petition and appreciates the favorable proposal to eliminate the negative impact 

of the Portland Plant emissions on air quality and human health.

Commenter: Candice Nattland

Comment:

I have been a Knowlton Township resident since 1988. I am aware of the fact that the Portland 

PA power plant is sending harmful levels of sulfer dioxide into the air which directly affects me, 

my neighbors, friends and loved ones. Information published in reliable newspapers note that the 

Portland power plant, owned by GenOn emits some of the highest levels of sulfer dioxide in the 

nation! An EAP study conducted as a result of a NJ complaint states “extensive analysis shows a 

clear connection between emissions from the Portland plant alone and the elevated level of SO2 
Page 8 of 181

in New Jersey.” It is unacceptable to me that one power plant is responsible for so much harmful 

pollution. This company must be ordered to be in compliance with safe levels of emissions.

Commenter: Claire Sutherland

Comment:

I strongly urge you to go forward immediately with the proposed regulations for the GenOn 

owned Portland Generating Station (PGS) in Portland PA to take the necessary steps to reduce 

sulfur dioxide (SO2) emissions.

I live approximately 5 miles downriver from PGS and so have a strong vested interest in how 

they run and do maintenance on their plant, and have followed the local media on this subject 

avidly. I am most concerned with 2 things i have read in the media: 1) that PGS has not 

historically (ever????) abided by previous regulations as regards SO2 emissions and 2) that the 

SO2 emissions are extremely high, and may well be the cause of serious health problems for 

many in the area. As well, it would seem that as the PGS is positioned ON the Delaware River, 

which is part of the Wild and Scenic Act, that GenOn should be that much more careful about 

the surrounding environment.

I would also like to add that it became apparent to me recently that PGS and their parent 

company GenOn do not seem to feel, in general, that they should be a "good neighbor." In 

October 2010, our Northampton County PA elected officials flirted with the idea of enticing a 

private prison management into this area; the property in question was a parcel currently owned 

by PGS/GenOn. It became apparent in the ensuing months, from discussions i personally had 

with both local elected officials and at least one of our national representatives that PGS has 

never worked to be a part of our community - Upper Mt Bethel Township (UMBT). Further, they 

have sought to sell their property, which they have owned for several decades, without 

consulting with UMBT officials, as would seem normal. This is yet another example to me, of 

how they think they do not need to work within a local community. Again, I strongly urge you to 

mandate that PGS take the necessary steps to cut their SO2 emissions immediately.

Commenter: CREDO Action from Working Assets [7,926 identical comments]

Comment:

Thank you for proposing a plan to reduce Sulfur Dioxide emissions from the Portland Generating 

Station. As a New Jersey resident, I’m deeply troubled by the fact that my health and the health 

of my neighbors is threatened by pollution from a Pennsylvania coal plant. New Jersey has 

implemented strong reductions in Sulfur Dioxide, yet the EPA’s plan for the Portland Generating 

Station falls short of these targets. Please meet the emissions reductions targets requested by the 

State of New Jersey, and implement the strongest possible plan to make GenOn clean up its 

dangerous Sulfur Dioxide pollution that puts the health of both New Jersey and Pennsylvania 

residents at risk. 

Commenter: D. Arad-Neeman

Comment:

This is a very salient topic in today’s United States, especially the East Coast. The proposal to 

reduce fuel emissions from power plants seems to be in line with other EPA regulations and its 

mission. It is crucial to monitor the emissions from power plants, especially when there is 
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evidence of a clear connection between the power plant and the toxic emissions in the air. It is 

indeed important to preserve the air quality in the area near a power plant, specifically if the 

power plant is located in an altogether different state. The proposed rule reducing Pennsylvania’s 

Portland power plant’s emissions of SO2 will create a precedent for lowering emissions from 

these power plants in general. A reduction of 81% is a very steep decline in toxic fuel emissions, 

and will make a significant difference in the air quality. The allowance of three years to change 

this is adequate for a full transition, I believe. This rule is both fair and effective in protecting the 

environment. As a college student in Pennsylvania from the west coast, I’ve seen the change the 

EPA has created in the past, and I see what impacts it has had. For me, the environment is a huge 

part of my life, and it is of the utmost importance for me to see it protected from noxious fumes 

and emissions. Therefore, it is very important to me to see toxic fuel emissions reduced 

substantially here, and in addition, to see that the EPA takes a stand on these issues. Therefore 

this is a cause that I can very much relate to, and should become a rule.

Commenter: D.M. Lohman

Comment:

First I want to compliment the EPA on conducting a comprehensive and unbiased assessment of 

New Jersey's petition. The proposed finding that emissions of sulfur dioxide (SO2) from the 

Portland Plant significantly contribute to nonattainment and interfere with maintenance of the 1-

hour SO2 national ambient air quality standard (NAAQS) in New Jersey is based on valid 

reasoning and sound science.

Commenter: Diana Morales

Comment:

As a concerned citizen, I deeply encourage the passing of the EPA proposed rule that aims to 

reduce the emission of toxic air pollutants from power plants. It is in my opinion that these 

regulations will not only be of environmental and health benefit but that the passing of this rule 

will motivate power plants to seek innovative and safer energy sources. Now is the time to take 

action in pursuing these measures for limiting power plants emissions, which are hazardous to 

people and the environment. 

Revising standards in performance of the power plants will certainly aid in reducing hazardous 

air pollutants that can cause serious health effects. Not only can many health benefits arise but 

the proposal also states that there are long-term benefits to the reduced exposure of pollutants 

overcome the costs. In fact, the cost of maintaining the proposed regulations are many times 

lower than will be the cost of future repercussions. There will also be a wide array of technical 

and economically feasible practices available to all power plants in order for them to abide by the 

emission limits.

Overall, the proposal takes adequate actions to ensuring that the regulations are fair and provide 

an equal playing field to all power plants. No loopholes will be allowed where one power plant 

has a preferred status and could get away with disregarding the limits of toxic emission limits. 

If our environment is at risk, if the population is at exposure to developing serious health 

hazards, and if there is something that can be done to avert the dangers, prevention should take 
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place. How can prevention be manifested? Taking action and passing this EPA proposed rule 

that aims at reducing toxic air emission is the first step.

Commenter: Melanie Bowman

Comment:

I am writing to express my support for the proposed rule finding that the Portland Generating 

Station in Northampton County, PA is in violation of the Clean Air Act. I support this rule 

because it outlines a means for compliance with the CAA guidelines, allowing the plant to 

remain open at the same time as is reduces SO2 emissions. I encourage the EPA to continue 

enforcing its regulations, but think that it is important to provide industries with a means for 

complying to these regulations; shutting down plants that do not comply reduces jobs and energy 

production, increasing the demand for environmental travesties like natural gas production and 

hydrofracking in Pennsylvania. I urge the EPA to adopt this rule in order to demonstrate a 

commitment to clean air and water standards. It is important that the EPA be as strict as possible 

without shutting down plants and reducing jobs in already economically depressed communities. 

Enforcing rules like this one demonstrate that commitment. 

Commenter: Mike O’Malley 

Comment:

Thank you for the opportunity to comment on the proposed action to require the Portland 

Generating Station to meet its obligations under the interstate transport provisions of the Clean 

Air Act (CAA). My family and I reside in Warren County, New Jersey and are directly impacted 

by the poor air quality created by this power plant. As New Jersey Department of Environmental 

Protection Commissioner has testified, the Portland Power Plant ranks in the top five in the 

nation in highest sulfur dioxide emission rate per megawatt of electricity generated and also 

emits more mercury than all New Jersey coal-fired power plants combined.

Residents of Warren County should not be subjected to the continued, unnecessary and 

unwarranted exposure to the un-remediated emissions of this power plant. My son has asthma 

and the air quality of Warren County is in such a state that it may be a contributing factor to such 

medical conditions or exacerbate the symptoms. Furthermore, our home already sits on top of 

one of the geographically largest Superfund sites in the country -- the Pohatcong Valley Ground 

Water Contamination Site (EPA ID: NJD981179047). So, our area of New Jersey faces enough 

environmental challenges without suffering the indignity of poor air quality caused by a 

generating facility that is inadequately regulated by a neighboring state. While our water table 

will likely not reach safe drinking levels of certain contaminants in my lifetime (and I'm not even 

50 yet!), I sincerely hope that Warren County can achieve improved air quality much sooner.

We urge you to follow through, grant New Jersey's petition and force the Portland Generating 

Station to install modern pollution controls. Alternatively, the Portland Power Generating Station 

should be closed if its owners are unwilling to meet its obligations under the Clean Air Act.

Commenter: Richard Wilford-Hunt

Comment:

I am writing in support of the EPA to make the Portland Generating Plant take the necessary 

steps to reduce sulfur dioxide (SO2) emissions.
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Commenter: Suda Kantor

Comment:

So I really support and applaud the EPA and New Jersey DEP. I'm not against business. I'm not 

against generating business, this is a very important thing, but there has to be a balance. And the 

science has already determined what the level should be. And you are the only people that can 

hold these companies accountable for meeting those levels. And their excuses of, well, give us 

some time, we have to look at the economic impacts. The economic impact of the pollutants are 

also huge, and the time is now to recognize that. Not only because of the time I'll lose from 

work, not only because of my needs, but also my daughters needs. She can't go to school, I can't 

go to work. There is an economic impact on my work. There is an economic impact on my health 

insurance for what they have to pay for my asthma, what they have to pay for a nebulizer, what 

they have to pay for -- if I have a severe asthma attack, when I have to be in the emergency room 

and my visits to the doctor so I can get medication to monitor my lungs to make sure I can 

breath. I only ask that -- there are business interests at hand here, and I appreciate that you are 

listening to people. I work for a big business and I want big business to succeed, but, at the same 

time, I wouldn't be working for my employer if I thought my employer brought harm to me. 

There are people who need their lungs to keep our business going. I'm sure the Portland plant 

doesn't want the residents to die or suffer from lung issues or any other related health issues. So I 

applaud you and ask that you adopt these regulations and hold the plant accountable for its 

emissions. Hold them to the regulations to the level that the scientist determined already is 

healthy for us, and please protect Warren County residents and all the other people who travel to 

this area. 

Commenter: R. G. Herrmann 

Comment:

I wish to add my comments in support of the cleanup of the Portland generating station that the 

cleanup of the polluting emissions should be done as soon as possible.

Commenter: Derrick Loy, Energy Independence of America Corp. (EIAC)

Comment:

I am here today to speak in support of keeping the Portland Generating Station operating, with 

the understanding that upgrading which will eliminate existing emissions, is warranted.

Commenter: E. Murray

Comment:

I urge you to support the petition by the NJDEP to reduce the sulfur dioxide emissions from the 

Portland Generating Station. This reduction will help to protect the health and lungs of the 

people of New Jersey!

Commenter: V. Allen

Comment:

I urge the EPA to: Follow through with its proposed action calling for an 81 % reduction in 

Sulfur Dioxide (SO2) emissions from RRI 's Portland Power Generating Station over the next 

three years and consider revisions to the NAAQS for SO2.
Page 12 of 181

Commenter: Lorraine Gold

Comment:

I'm a resident here in Warren County, and I'm here to support the proposed reduction of the 

sulfur dioxide emissions of this plant. According to the NJ-DEP Sulfur Dioxide emissions from 

the Portland plant have been measured up to ten times above federal standards. The existing coal 

fired power plant is a major contributor to sulfur dioxide in this region. 

The Delaware River flows directly by the Portland power plant which emits tons of sulfur 

dioxide. I am demanding an end to the defilement of this river that nourishes life in so many 

ways. As citizens and agencies and yes, even as power companies, it is our responsibility to 

protect this river.

Commenter: Stephanie Clarke

Comment:

To whom it may concern, I am a student at Bryn Mawr College as well as a concerned resident. 

As I currently reside in Pennsylvania, I feel that I am impacted by decisions made concerning the 

state. Following my reading of the rule, I have come to agree with the proposal. Hazardous air 

pollution is a large problem in the United States. Many people’s health is affected by these air 

pollutants, especially people with asthma, children, and the elderly. Not only are humans 

impacted, but the environment and other organisms as well. I feel that it is important to advocate 

for human (and living organisms) health. Individuals are being affected by a company that is not 

following the rules that are in place. The plant should be capable of making the appropriate 

changes, especially with the current technology that has been discovered to reduce air pollutant 

emissions.

I understand that this might financially affect the plant. However, they have violated the CAA 

act, and thus should be required to conform to those rules, the same as other power plants have 

done. This financial burden might have been avoided, had the plant chosen to follow the 

regulation from the beginning. The amount of time given for them to decrease their emissions 

could possibly be extended if it was found that this would help with the financial impact. 

However, action must be taken as soon as possible, as the emissions are having adverse health 

effects on the residents in New Jersey.

I urge the EPA to follow through with your proposed action calling for an 81 percent reduction 

in sulfur dioxide emissions from RRI's Portland PA Power Generating Station over the next three 

years. 

Commenter: Steve Marvin, County Administrator (Warren Co), Board of Chosen 

Freeholders of the County of Warren

Comment:

Enclosed please find a resolution approved by the Warren County Board of Chosen Freeholders 

at their Regular Meeting held May 11, 2011. This resolution supports the petition to reduce 

emissions from GenOn Portland Generating Station in Portland, Pennsylvania. Resolution 282-

11 certified and adopted by the Board of Chosen Freeholders of the County of Warren. 

Response:
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The EPA thanks the commenters for their support of this rule. The EPA is working as 

expeditiously as possible and within the full extent of its authority, under section 126 of the 

Clean Air Act, to ensure improved human health for all citizens through reductions in interstate 

transport of sulfur dioxide emissions from the Portland power plant located in Northampton 

County, Pennsylvania.

III. General Comments in Opposition of the Rule

Commenter: J. W. Dobzyn 

Comment:

I live across the river in Northampton Pa where lLarfarge burns tires to make Cement, i live not 

far from Northampton Generating station where they burn tires, Keystone cement burns tires and 

Chemicals and then all the other cement plants around the allentown bethelehem and easton area, 

why did you single Portland out in the suite, and do you know for sure that the bad air you blame 

on Portland is from from Portland, How do we know the air is monitered correctly and not tilited 

to non compliance, who oversees this ,How do we know for sure portland station is causing this 

spike in sulfer dioxide, and why isnt Nj trying to make them come into compliance I think we 

could come to a amicable solution, Pennsylvania will tax every Garbage truck that come into 

pennsylvania 10 a ton and put that money to putting coal scrubbers at portland, just a thought Id 

appetiate answers on the monitering of equipment and why the pass on cement plants 

XXXXXXX@rcn.com any comments to me will be answered

Response:

In this action, the EPA is granting a section 126 petition from NJDEP. This action will ultimately 

lead to significant air quality improvements in the area. To address the commenter’s concerns 

regarding Portland’s impact to air quality, see the explanations are contained in sections IV and 

V of the preamble of the final rule and the final rule Air Quality Modeling TSD. To the extent 

the commenter is making statements broader than this section 126 action, the comments are 

beyond the scope of this rulemaking and the EPA is not responding here to such comments.

IV. EPA’s Authority for this Action

Commenter: Senator Pat Toomey, Senator Robert P. Casey and Congressman Charles 

Dent

Comment:

As required by EPA's implementation guidance for the June 2010 revised SO2 National Ambient 

Air Quality Standard, the Pennsylvania Department of Environmental Protection is developing 

plans that will result in compliance for all Pennsylvania sources. We are concerned that acting on 

the New Jersey petition prior to implementation of Pennsylvania's State Implementation Plan 

deviates from this process and rushes compliance with the new standard solely for the Portland 

facility.

Response:

The EPA’s discretion with respect to NJDEP’s section 126 petition is constrained by the terms of 

the statutory language which instructs the Administrator to grant or deny a section 126 petition 
Page 14 of 181

within 60 days. Moreover, the statute does not restrict the state’s right to file such a petition with 

respect to the progress of the section 110(a)(2)(D) SIP procedure. NJDEP’s petition 

demonstrated that emissions from Portland were significantly contributing to nonattainment in 

and interfering with maintenance of the 1-hour SO2 NAAQS in New Jersey. Accordingly, it 

would be inappropriate and contrary to the statutory language for the EPA to defer action on the 

petition pending the completion of the SIP procedure in Pennsylvania.

Congress intended the section 110 SIP procedure and the section 126 petition process to be two 

independent and alternate means of addressing interstate pollution problems; the former depends 

on state regulation and the latter depends on federal regulation. Congress expressed no 

preference for one means of address the problem over the other. See preamble Section III for 

further discussion.

Commenter: Commissioner Bob Martin, NJDEP

Comment:

The most expeditious procedural route to reducing the harmful impacts of the Portland Plant's 

emissions is through the Section 126 timeframes and not the State Implementation Plan (SIP) 

process. Delaying action on a 126 petition in order to wait for the SIP process is also unlawful 

under Section 126 of the Clean Air Act. The SIP process would not achieve reductions until 

potentially the attainment date in 2017, whereas the 126 petition can result in reductions by 

2012, five years earlier than the SIP timeframes. The citizens of New Jersey have suffered long 

enough, and the EPA has the power to provide them immediate relief. 

Response:

The EPA agrees that section 126 is an independent and alternate means of addressing interstate 

pollution problems from the section 110 SIP procedures. The EPA is granting the section 126 

petition consistent with the requirements of the CAA and implementing emission limits and a 

compliance schedule to eliminate Portland’s significant contribution to nonattainment and 

interference with maintenance of the 1-hour SO2 NAAQS in New Jersey.

Commenter: Commissioner Bob Martin, NJDEP

Comment:

VI. EPA Does Not Have Discretion Under The Act To Delay Action On a 126 Petition Even 

Though a State Implementation Plan Submission Deadline Has Not Passed

A. Section 126 of the Act Sets Forth Strict Deadlines For Compliance

In its proposed rule, EPA explains that remedies pursuant to a Section 126 petition in certain 

situations must be promulgated prior to the date a State Implementation Plan (“SIP”) is due after 

a NAAQS is promulgated or revised. See 76 Fed. 19,665. EPA’s promulgation of the 1-hour 

SO2 NAAQS, see 75 Fed. Reg. 35,520 (June 22, 2010), triggered States’ obligations to submit a 

SIP addressing how the state will attain the NAAQS. 42 U.S.C. § 7410. 

Pennsylvania, like other states, will be required to submit a 1-hour SO2 SIP in February 2014 

that provides for attainment of this new NAAQS by August 2017. See 42 U.S.C. § 7514a(a) 

(providing that the SIP must provide for the attainment of the applicable NAAQS, which must 

occur as expeditiously as practicable but in no case later than five years from the effective date 
Page 15 of 181

of the nonattainment designation). The August 2017 attainment deadline is well beyond the 

maximum statutory deadline applicable to New Jersey’s Section 126 petition (2014).

Pursuant to Section 126, once EPA finds that a source violates the Act, it must require abatement 

from that source within three months, or it may permit the continued operation of a violating 

source beyond three months if the source complies with “emission limitations and compliance 

schedules (containing increments of progress) as may be provided ... to bring about compliance 

... “as expeditiously as practicable, but in no case later than three years after the date of such 

finding.” 42 U.S.C. § 7426(c). See also 40 C.F.R. §§ 50.4, -.5 and -.7. The Administrator may

allow the source to operate beyond the three month time frame only if the source complies with 

emission limitations and compliance schedules (containing increments of progress) as the 

Administrator may direct to bring about compliance. 42 U.S.C. § 7426(c). Here, EPA is 

proposing to require Portland to meet certain SO2 emission limits for Units 1 and 2 by no later 

than three years after the effective date of the final rulemaking (i.e., by 2014) and interim 

emission limits within a year. Any compliance schedule, including one that waits for the SIP 

process, that allows for the continued operation beyond three years from the date of EPA’s 

finding without full compliance with Section 126 is unlawful. 42 U.S.C. § 7426(c).

Moreover, the SIP process is more complex and time-consuming than the Section 126 process. 

Pursuant to Section 110, action may be taken on a group of sources that are contributing to a 

violation and emission reductions are allocated to various sources only after planning and 

rulemaking. In addition, the Act’s SIP deadline for attainment is the maximum time allowed, and 

the deadline could be sooner (i.e., “as expeditiously as practicable”). See 42 U.S.C. § 7514a(a). 

Hence, it is appropriate and reasonable that a Section 126 petition remedy provide for attainment 

in advance of the maximum time frame for SIP attainment, especially against a single source 

where the evidence demonstrates that it alone violates the NAAQS. 

EPA’s recognition that it may not delay remedial action here is also consistent with its 1999 

Section 126 petition findings. 64 Fed. Reg. 28,250 (May 25, 1999) In that action, EPA found that 

Section 126(c) establishes a maximum three-year period for implementation of controls 

regardless of “the timing of attainment needs downwind.” 64 Fed. Reg. at 28,279. “Congress 

made it clear that it intended Section 126 to provide an additional means of attacking interstate 

pollution that would supplement, not replace, the SIP requirement.”

Similarly, in Appalachian Power Co. v. EPA, 249 F.3d 1032, 1046 (D.C. Cir. 2001), the Court 

explained that under Section 110, EPA determines the required level of air quality, but defers in 

the first instance to the states on how to achieve that level. Id. In contrast, Section 126 

contemplates direct EPA regulation of sources within a state. Id. The D.C. Circuit further 

explained that both sections are independent upon each other, agreeing with the Second Circuit 

that “an argument that one proceeding must be completed as a prerequisite to a final decision in 

the other makes no sense.” Id. at 1047. The Court ultimately deferred to EPA, finding EPA’s 

2000 126 findings reasonable that “Congress provided both [provisions] without indicating any 

preference for one over the other.” Id. at 1048 (citing 65 Fed. Reg. 2674, 2680 (January 18, 

2000)). For these reasons, Section 126 sets forth nondiscretionary deadlines within which EPA 

must act, even if a SIP submission deadline has not passed.
Page 16 of 181

Response:

The EPA is requiring, consistent with the requirements of section 126, that Portland comply with 

emissions limits and compliance scheduled designed to eliminate Portland’s significant 

contribution to nonattainment and interference with maintenance of the 1-hour SO2 NAAQS 

within three years of this finding. The EPA agrees that section 126 provides an independent and 

alternate means of achieving reductions of impermissible interstate emissions from the section 

110 SIP process. See preamble Section III for further discussion. 

Commenter: Commissioner Bob Martin, NJDEP

Comment:

B. Section 110 Calls for 126 Remedies to Be Included In a SIP That Is Submitted After a 

NAAQS Is Promulgated Or Revised

New Jersey also agrees with EPA, see 76 Fed. Reg. 19,665, that EPA may not delay action here 

because Section 110 requires Section 126 remedies to be included in a SIP submission that is due 

three years after a NAAQS is promulgated or revised. See 42 U.S.C. § 7410(a)(2)(D)(ii). The 

Section 110 “good neighbor” provision requires each state’s SIP to contain adequate provisions 

prohibiting any source from contributing significantly to nonattainment in, or interfering with 

maintenance by, any other State with respect to a NAAQS. Id. Accordingly, New Jersey agrees 

with EPA that this structure contemplates action on a 126 petition prior to a SIP submission 

pursuant to Section 110. See 76 Fed. Reg. 19,665 (“the statute requires the State SIP submittal to 

include any emission limits promulgated by EPA pursuant to Section 126. The fact that Congress 

required the SIP submittals due 3 years after promulgation or revision of a NAAQS to include 

any emission limits promulgated pursuant to section 126 is meaningful. If Congress had intended 

to limit EPA’s authority to act on Section 126 petitions until after the deadline for States to 

submit 110(a)(2)D)(i) SIPs, it could have done so”). In addition, although the compliance 

requirement of EPA’s action on a 126 petition must be incorporated into the Pennsylvania SIP 

and Title V major facility operating permit through a major modification of the permit by the 

Pennsylvania Department of Environmental Protection, these procedural requirements should not 

delay measures to comply with Section 126.

Response:

The EPA agrees with the commenter that section 110(a)(2)(D)(ii) of the CAA contemplates that 

a section 126 petition maybe be granted before the deadline to submit section 110(a)(2)(D) SIP 

for a particular NAAQS. See preamble Section III for further discussion.

Commenter: Commissioner Bob Martin, NJDEP

Comment:

C. There Are No Assurances That Portland’s Section 126 Violations Would Be Remedied Under 

Pennsylvania’s SO2 SIP

An additional reason that the EPA may not delay remedial action on New Jersey’s petition is 

because there are no assurances that Pennsylvania’s SIP for the 1-hour SO2 NAAQS would 

remedy the Section 126 violations at Portland. In North Carolina v. EPA, 531 F.3d 896, 907-08 

(D.C. Cir. 2008), the Court found that EPA has a duty under Section 110(a)(2)(D)(i)(I) to 

“achieve something measurable toward the goal of prohibiting sources” from contributing to 
Page 17 of 181

nonattainment or interfering with maintenance in order to meet the requirements of Section 

110(a)(2)(D)(i)(I), and that the cap and trade program at issue, with the purchasing of 

allowances, could lead to no reduction in a source’s significant contribution. Similarly here, only 

with the reduction of emissions at Portland (as opposed to a cap and trade program where 

sources other than Portland would be controlled) in the time frames required under Section 126 

can the 126 violations be remedied. 

Moreover, the Pennsylvania Department of Environmental Protection (PADEP) has publicly 

noticed its proposed designation recommendation for the 1-hour SO2 NAAQS of “Unclassified” 

for Northampton County where the Portland Power Plant is located. 41 Pa. Bull. 2283 (April 30, 

2011). This notice indicates that the PADEP does not yet recognize EPA’s finding that the 

Portland Power Plant is causing 1-hour SO2 impacts and provides no confidence that the 

Pennsylvania SIP will include the necessary controls to timely address the transport of emissions 

from the Portland Power Plant into New Jersey. 

Because EPA finds that New Jersey has demonstrated, and EPA has confirmed, that one source 

alone causes NAAQS violations in New Jersey, and because the background concentrations are 

relatively low, see 76 Fed. Reg. 19,667, it is appropriate for EPA to directly regulate this 

offending source and not delay action until after Pennsylvania submits its SIP.

Response:

EPA agrees it is appropriate to act on NJDEP’s section 126 petition at this time. See preamble 

Section III for further discussion.

Commenter: Donald C. Seigel, International Vice President, Third District of the 

International Brotherhood of Electrical Workers (IBEW)

Comment:

We believe that granting this extraordinary petition would generate a flood of similar petitions 

across the country, shifting responsibility for control strategies to attain the new one-hour SO2

standard from the states to U.S. EPA. Granting the petition would undermine the traditional 

Federal-State partnership in administering programs to comply with National Ambient Air 

Quality Standards under the Clean Air Act (“CAA”).

Response:

The EPA is granting the section 126 petition consistent with the requirements of the CAA. The 

EPA will address future petitions filed under section 126 on a case-by-case basis consistent with 

the CAA. The EPA does not have the discretion under the Act to deny a section 126 petition 

based solely on the prospect of additional petitions being filed at a future date.

Commenter: Donald C. Seigel, International Vice President, Third District of the 

International Brotherhood of Electrical Workers (IBEW)

Comment:

EPA's proposal to grant New Jersey's Section 126 petition includes revisions to the 

Commonwealth of Pennsylvania's State Implementation Plan, effectively substituting EPA's 

judgment for the appropriate control strategies to be applied at Portland to satisfy CAA 

requirements to attain the new one-hour SO2 standard. There is no clearer demonstration of the 
Page 18 of 181

usurpation of state discretion inherent in the 126 petition process than this proposed amendment 

to Pennsylvania's SIP: [commenter quotes Subpart NN- Pennsylvania Section 52.2039 from the 

proposed rule]. [See detailed comment document attached to in docket at EPA-HQ-OAR-2011-

0081-0127.]

Response:

The EPA disagrees with the commenter’s assertion that the agency is usurping state discretion by 

granting this section 126 petition. Congress intended the section 110 SIP procedure and the 

section 126 petition process to be two independent and alternate means of addressing interstate 

pollution problems; the former depends on state regulation and the latter depends on federal 

regulation. Congress expressed no preference for one means of addressing the problem over the 

other. See preamble Section III for further discussion.

Commenter: Donald C. Seigel, International Vice President, Third District of the 

International Brotherhood of Electrical Workers (IBEW)

Comment:

These comments are submitted on behalf of the Third District of the International Brotherhood of 

Electrical Workers (“IBEW”), representing approximately 120,000 IBEW members in Delaware, 

Pennsylvania, New Jersey and New York. We are writing to convey our strong opposition to 

U.S. EPA’s proposal to grant the Section 126 petition filed by New Jersey regarding sulfur 

dioxide (SO2) emissions from the Portland Generating Station (“Portland”) located in Upper 

Mount Bethel Township, Northampton County, Pennsylvania. Our principal position is that 

Section 126 is not the appropriate means for EPA or the states to use as a first resort to 

implement new National Ambient Air Quality Standards.

Response:

The EPA is not using the section 126 petition process as a means of implementing the NAAQS. 

Rather, as described in more detail in the preamble, Pennsylvania retains its discretion and 

obligation to develop a SIP and implement the NAAQS throughout the state. See preamble 

section III for further discussion.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

A. The Proposal Is Contrary to the Structure of the CAA, Undermines the NAAQS 

Implementation Process Designed by Congress and Infringes on States’ Rights 

EPA’s Proposal is inconsistent with the express language of Sections 110(a)(2)(D) and 126, 

conflicts with the intended interplay of Sections 110 and 126, violates the CAA’s structure of 

cooperative federalism, and tramples on the primacy of the states’ authority in the first instance 

to regulate their own sources.

Response:

The EPA disagrees with the commenter’s broad assertion that the EPA does not have the legal 

authority to grant this petition. See preamble Section III for further discussion.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 
Page 19 of 181

Comment:

EPA established the new 1-hour SO2 NAAQS less than one year ago. New Jersey filed a Section 

126 petition asking EPA to find that emissions from Portland contribute to nonattainment or 

maintenance of the new 1-hour NAAQS almost immediately after the standard became effective 

and long before EPA has even established nonattainment areas for the states or directed the states 

to take action to address such nonattainment areas. EPA proposes to make a finding granting 

New Jersey’s petition and imposing on Portland obligations that do not apply to any other power 

plant, notwithstanding that EPA knows there will be many areas that cannot meet the new 1-hour 

SO2 NAAQS absent emissions limitations on stationary sources in those areas, including power 

plants, and that EPA has yet to issue implementation guidance for the use of either modeling or 

monitoring to show future compliance with the 1-hour SO2 NAAQS.

EPA’s proposed action is based on an interpretation of Sections 110 and 126 of the CAA that is 

inconsistent with the clear structure and intent of those sections. It would depart from the logical 

and orderly process that Congress established for setting and complying with new NAAQS. 

Congress made clear that Section 110 is the primary, and in the first instance, exclusive means 

for achieving attainment of NAAQS under the CAA. Only if the source violates the SIP or the 

state fails to develop an adequate state implementation plan (“SIP”) that protects against 

excessive transport of pollution can EPA find a violation pursuant to a Section 126 petition and 

undertake a Section 126 rulemaking. EPA’s interpretation in the Proposal of Sections 110 and 

126 also would assign priority under the CAA to addressing nonattainment caused by interstate 

transport over nonattainment resulting from in-state emissions; in this case, giving priority to 

New Jersey’s nonattainment claims over all other areas that will be declared nonattainment as a 

result of the new NAAQS. 

EPA’s proposed action also would break with EPA’s own prior actions with respect to the 

interplay of Sections 110 and 126. EPA should defer any action until the states have had an 

opportunity to respond to the new NAAQS and develop their SIPs, and until the myriad other 

regulatory programs have been more fully developed. By doing so, EPA can avoid disrupting the 

established Section 110 SIP process, trampling on state prerogatives, and forcing GenOn to make 

premature investment decisions before knowing the impact of all of EPA’s regulatory initiatives 

on Portland and other power plants.

Response:

The EPA disagrees with the commenter’s interpretation of section 126. The statutory language 

does not restrict a state’s right to file a section 126 petition in relation to any step in the section 

110(a)(2)(D) SIP procedure. Nor does the statutory language imply a preference for the section 

110(a)(2)(D) SIP procedure over the section 126 petition process. Congress intended the section 

110 SIP procedure and the section 126 petition process to be two independent and alternate 

means of addressing interstate pollution problems; the former depends on state regulation and the 

latter depends on federal regulation. Congress expressed no preference for one means of 

addressing the problem over the other. Pennsylvania retains the discretion and obligation to 

develop a SIP and implement the NAAQS throughout the state. See preamble Section III for 

further discussion. 
Page 20 of 181

Moreover, as explained in further detail in the preamble, this final rule is being issued after the 

Transport Rule has been finalized and near in time to when the MATS rule is expected to be 

finalized. GenOn will have sufficient knowledge of the recent, relevant regulatory actions to 

make informed investment decisions to respond to this and other regulatory requirements. See

preamble Section V.E for further discussion.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

1. Section 126 cannot supplant the NAAQS implementation process

The CAA establishes a clear, orderly process for implementing new and revised NAAQS. After 

EPA promulgates a new or revised NAAQS, states must submit a list to EPA within one year to 

designate each air quality control region within the state as “nonattainment,” “attainment,” or 

“unclassifiable.” 42 U.S.C. § 7407(d)(1)(A). EPA must act on these recommendations and 

finalize NAAQS designations within two years of promulgating the NAAQS. Id. At § 

7407(d)(1)(B). To allow consideration of these designations and other factors, states have three 

years to submit SIP revisions implementing the new or revised NAAQS. 42 U.S.C. § 7410(a)(1).

Section 110(a)(2)(D)(i) obligates each state to develop a SIP that must “contain adequate 

provisions . . . prohibiting . . . any source . . . from emitting any air pollutant in amounts which 

will . . . contribute significantly to nonattainment, or interfere with maintenance” of the NAAQS 

in any other state. Id. at § 7410(a)(2)(D)(i). For areas designated as nonattainment, SIPs must 

provide for attainment within five years from the nonattainment designation. 42 U.S.C. § 7502. 

This structure - regional designations followed by SIP revisions and a statutory period in which 

to bring areas into attainment - assures the orderly implementation of new and revised NAAQS 

in a manner that prohibits significant contribution to, or interference with the maintenance of, 

NAAQS in another state. EPA’s recent promulgation of the 1-hour SO2 standard adheres to the 

implementation procedure and timeline laid out in Section 110 of the CAA. See supra Section 

III.A.

The Proposal ignores this statutory mechanism for assuring attainment of the new 1-hour SO2 

NAAQS and instead seeks to usurp Pennsylvania’s right to devise control solutions tailored to 

meet Pennsylvania’s CAA obligations in the time permitted by the process set forth in the statue 

and EPA regulations. Even though the CAA establishes a clear three-year schedule for 

submitting SIP revisions, New Jersey filed its Petition less than one month after EPA‘s new 1-

hour SO2 NAAQS became effective and long before implementation guidance for using 

dispersion modeling or monitoring to assure compliance with the NAAQS has even been issued. 

Despite the fact that Pennsylvania’s SIP was adequate to meet its Section 110(a)(2)(D) 

obligation before EPA revised the SO2 NAAQS, the Proposal would impose requirements on 

Portland before EPA will even complete attainment designations for the 1-hour SO2 NAAQS.

Id., 75 Fed. Reg. 35520. By responding to New Jersey’s Section 126 petition without first 

allowing for the orderly implementation of a new NAAQS, the Proposal’s approach encourages 

NAAQS implementation by petition and litigation rather than through the orderly process 

prescribed by Congress in Section 110. See 76 Fed. Reg. 19678-79. 
Page 21 of 181

Response:

The EPA disagrees with the commenter’s assertion that granting NJDEP’s section 126 petition at 

this time usurps Pennsylvania’s right to implement the NAAQS. As described in more detail in 

the preamble, Pennsylvania retains the discretion and obligation to develop a SIP and implement 

the NAAQS throughout the state. See preamble section III for further discussion. The fact that 

Pennsylvania’s SIP may have been adequate to meet the prior SO2 standards is irrelevant to 

whether emissions from Portland are currently contributing to nonattainment in or interfering 

with maintenance of the 2010 1-hour SO2 NAAQS in New Jersey.

Moreover, Congress intended the section 110 SIP procedure and the section 126 petition process 

to be two independent and alternate means of addressing interstate pollution problems; the 

former depends on state regulation and the latter depends on federal regulation. Congress 

expressed no preference for one means of addressing the problem over the other. See preamble 

section III for further discussion.

The EPA’s interpretation of section 126 is consistent with the structure of Title I of the CAA. 

Under the system of cooperative federalism in Title I, States are primarily responsible for 

determining the mix of control measures necessary to achieve the NAAQS, while the federal 

government sets the uniform national goals and ensures that States act to meet them. Train v. 

NRDC, 421 U.S. 60, 78-79 (1975). However, Congress directed the EPA to regulate sources 

directly under several provisions of Title I. In particular, Congress mandated Federal action 

under sections 110(c) (FIP provisions), 126, and 183 (Federal ozone measures). Where a SIP is 

adequate but a source is violating its provisions, it would be counter to the cooperative 

federalism structure of the Act and would serve no purpose to essentially replace those adequate 

SIP limits with redundant direct federal controls on a source. In contrast, where a state is not yet 

regulating an interstate pollution problem, it makes sense to provide an alternative mechanism to 

directly achieve the necessary emissions reductions from the sources. A state would always be 

free to regulate the sources itself in that instance by revising its SIP to include the necessary 

emission limits (and indeed, section 110(a)(2)(D)(ii) requires the state to ensure compliance with

such measures in its SIP). The EPA believes that this understanding of Congress’s overall design 

for air pollution control supports the EPA’s interpretation that the tools in section 126 may be 

used whenever sources in one state are emitting impermissible amounts of transported air 

pollutants. 

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

Section 126 was not intended to take precedence over the Section 110 NAAQS implementation 

process. New Jersey’s Petition and EPA’s Proposal are clearly premature. Section 

110(a)(2)(D)(i) imposes an obligation on each state to develop a SIP that contains adequate 

provisions “prohibiting...any source...from emitting any air pollutant that will contribute 

significantly to nonattainment in” a downwind state. Section 126 refers expressly to this 

“prohibition” and allows a downwind state to petition EPA to find that a source in another state 

emits an air pollutant “in violation of the prohibition of Section 110(a)(2)(D)[i].” The 

“prohibition” referred to in Section 126, however, is not the act of emitting, or even contributing 

to transboundary nonattainment. Rather, the prohibition is against emitting at levels that violate 

the limits imposed by the SIP regulations promulgated in response to EPA requirements. [FN3]
Page 22 of 181

[FN3]: EPA opposed this view in its 1999 rule regarding Section 126 petition on interstate 

ozone transport. 64 Fed. Reg. 28250,28272 (May 25, 1999). However, EPA’s position has not 

been addressed by a court, as recognized by the D.C. Circuit in Appalachian Power, 249 F.3d at 

1045, n. 4 (“No petitioner, however, argued [this]view in its opening brief, and we therefore need 

not decide it.”).

Response:

The EPA disagrees with the commenter’s assertion that the “prohibition” referred to in section 

126 only arises to the extent it is contained in a state’s SIP regulations. The EPA contends that 

the statutory language, the structure of the CAA, and the Act’s legislative history support the 

EPA’s conclusion that the “prohibition” on impermissible interstate transport exists irrespective 

of the content of a state’s SIP. See preamble section III for further discussion.

Moreover, the EPA disagrees with the commenter’s contention that the section 110 SIP 

procedure was intended to take precedence over section 126. Congress intended the section 110 

SIP procedure and the section 126 petition process to be two independent and alternate means of 

addressing interstate pollution problems; the former depends on state regulation and the latter 

depends on federal regulation. Congress expressed no preference for one means of addressing 

the problem over the other. See preamble section III for further discussion.

Finally, the EPA disagrees with the commenter’s interpretation of Appalachian Power v. EPA, 

249 F.3d 1032 (D.C. Cir. 2001). While the Court’s holding did not directly address whether the 

EPA’s interpretation of the “prohibition” in section 110 was reasonable it acknowledged 

ambiguity in the statutory language. Id. at 1045 n.4. The EPA maintains that the statute is 

unambiguous in that nothing in the statutory language links the section 126 petition process to 

the section 110 SIP procedure. However, to the extent a court were to find the language 

ambiguous, for the reasons stated above and consistent with its past precedent in addressing 

section 126 petitions, the EPA maintains that the better interpretation is that the “prohibition” in 

section 110 exists independent of its regulation in an approved SIP. The EPA is therefore entitled 

to deference under step two of Chevron. Furthermore, while the Court did not address the EPA’s 

interpretation of “prohibition,” it did hold that the EPA’s consistent interpretation of the 

relationship between sections 110 and 126 was reasonable. See preamble section III for further 

discussion.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

Even if EPA’s view of Section 126 in the Proposal is correct that the “prohibition” in Section 

126 does not refer to situations where a source is violating an adequate SIP, its own 

interpretation of how Section 126 should be construed dictates a finding that the Petition is 

premature and must be denied. According to EPA, “sources emit in violation of the prohibition 

of section 110(a)(2)(D)(i) only where the applicable SIP, SIP submission, or federal plan fails to 

bar the excessive emission of transported pollutants prohibited by section 110(a)(2)(D)(i).” 64 

Fed. Reg. 28276 (emphasis added). Section 126 is available only to the extent that a state fails to 

meet its SIP revision obligations under Section 110(a)(2)(D), and not to supplant the carefully
Page 23 of 181

Response:

The language quoted from the May 1999 rulemaking is not in conflict with the EPA’s 

interpretation of the statutory language in this case. Unlike the May 1999 rulemaking, where the 

EPA determined that elimination of the excessive transboundary emissions would be timely 

obtained via the pending SIP call, there is no assurance that an imminent SIP submission will 

address the transport problem originating at Portland within the three-year time period required 

by section 126. Thus, consistent with the EPA’s statement in the May 1999 rulemaking, no SIP, 

SIP submission or federal plan currently exists that bars the excessive emission of transported 

pollution from Portland to New Jersey.

Moreover, when the SIP call at issue in the May 1999 rulemaking was judicially stayed, the EPA 

moved forward in a January 2000 rulemaking to grant several of the pending section 126 

petitions because, like here, there was no longer any assurance that the SIP call would achieve 

the necessary reductions in a timely basis. Therefore, the EPA’s action on the present section 

126 petition is consistent with the actions that the EPA took in the prior petitions.

Finally, EPA retains the right, where reasonable, to alter its interpretation of statutory provisions 

through notice and comment rulemaking.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

If EPA allows a disgruntled state or political subdivision to circumvent the SIP process by filing 

Section 126 petitions immediately on the heels of a NAAQS revision, as New Jersey has done, 

the SIP process laid out in Section 110 effectively would become superfluous. This result would 

invite states to pursue attainment through petitions, disrupt the NAAQS implementation process 

established by Congress in Section 110, usurp state authority and prerogatives under Section 

110, and force actions not intended by Congress that are harmful to the orderly administration of 

the CAA. By allowing New Jersey to “leapfrog” the NAAQS implementation process in this 

manner, the Proposal is contrary to the CAA and detrimental to its purpose.

Response:

The EPA disagrees with the commenter’s contention that the section 110 SIP procedure will 

become superfluous under the EPA’s interpretation of section 126. Congress intended the section 

110 SIP procedure and the section 126 petition process to be two independent and alternate 

means of addressing interstate pollution problems; the former depends on state regulation and the 

latter depends on federal regulation. Congress expressed no preference for one means of 

addressing the problem over the other. Moreover, even though section 126 permits the EPA to 

impose emission limits on particular sources or groups of sources, states retain the discretion and 

obligation to develop a SIP and implement the NAAQS throughout the state. See preamble 

section III for further discussion.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

Since New Jersey filed its petition before the ink was dry on the 1-hour SO2 standard, and EPA 

issued the Proposal less than 10 months later, EPA has not given Pennsylvania any opportunity 

to develop a SIP that “prohibits” emissions from Portland that may contribute to downwind 
Page 24 of 181

nonattainment or maintenance. As EPA recognized when interpreting the requirements of 

Sections 110 and 126, “it would be difficult to conclude that an affected source in the upwind 

State ‘emits or would emit in violation’ of the prohibition that the [SIP] is not yet required to 

contain.” 64 Fed. Reg. 28256. Until Pennsylvania has had the opportunity to establish such a SIP 

and fails to adequately enforce such prohibition, EPA cannot take action on the Petition.

Response:

The EPA disagrees with the commenter’s interpretation of the “prohibition” referred to in section 

126. Even though section 126 permits the EPA to impose emission limits on particular sources or 

groups of sources, states retain the discretion and obligation to design a SIP and implement the 

NAAQS throughout the state. See preamble section III for further discussion.

Moreover, the commenter takes this quotation from the May 1999 rulemaking out of context, and 

ignores EPA’s explanation of the language in a subsequent rulemaking. When the language is 

considered in context, it is consistent with the interpretation adopted in this rulemaking. The full 

paragraph from which the comment is taken follows:

As discussed in the NPR, EPA believes that sources in an upwind State should not be 

considered to be emitting an air pollutant in violation of the section 110 prohibition, and 

hence EPA should not grant a petition naming such sources, if the State is adhering to the 

NOx SIP call rule's schedule for submission of an approvable SIP revision, and EPA is 

acting speedily to approve the SIP – or, failing that, if EPA has promulgated a SIP for the 

State. After all, if EPA's rule provides a particular path for the development of a plan 

calling on sources to reduce interstate pollution by May 1, 2003, and under that rule 

either the upwind State or EPA is moving forward to develop, take action on or 

promulgate a satisfactory plan meeting that rule and achieving attainment as 

expeditiously as practicable, it would be difficult to conclude that an affected source in 

the upwind State “emits or would emit in violation” of the prohibition that the plan is not 

yet required to contain.

64 Fed. Reg. 28250, 28256 (emphasis added).Thus, the EPA determined that the SIP call would 

be sufficient to address the transport issues raised by petitioners as “expeditiously as practicable” 

because the upwind States had already been placed on an expedited schedule for SIP 

submissions, such that the necessary emissions reductions would be obtained within three years –

the same schedule that a section 126 finding would require. There would have been no benefit 

gained if the EPA had granted the section 126 petitions at that time. 

Moreover, when the SIP call was later stayed under a court order from the D.C. Circuit, the EPA 

moved forward to grant several of the section 126 petitions at issue. 65 Fed. Reg. 2674. The EPA 

explained that the reason the Agency initially delayed granting the petitions was not because SIP 

requirements should take precedence over such petitions, but because the SIP call was 

particularly responsive to the issues raised in the section 126 petitions:

The EPA believes that the circumstances under which the linkage between action on the 

section 126 petitions and the NOx SIP call was appropriate are no longer present. 

Specifically, with no explicit and expeditious deadlines for compliance with the NOx SIP 
Page 25 of 181

call, it does not make sense for the section 126 findings to depend upon a State's failure 

to act under the NOx SIP call. It also would be contrary to the language and purposes of 

section 126 to delay the section 126 findings pending State action under the NOx SIP call, 

absent a schedule with explicit and expeditious deadlines for compliance with the NOx

SIP call. Nor is retention of the linkage between the two rules required by the language of 

section 110, the cooperative federalism structure of title I of the CAA, or the court's 

decision to stay the deadlines for States to submit SIP revisions under the NOx SIP call.

* * * * 

Promulgation of the NOx SIP call with explicit and expeditious deadlines for SIP 

submissions and emissions reductions afforded EPA a reasonable expectation that the 

needed emissions reductions would be expeditiously required through SIP revisions. In 

those circumstances it made sense for EPA to briefly defer findings under section 126, as 

long as the States stayed on track to control the emissions. Further, it made sense for EPA 

to approve findings under section 126 once a State fell off track (as indicated by a lack of 

EPA proposed or final approval of the required SIP submission by specified dates) 

because under those circumstances, EPA could no longer reasonably expect that the 

needed emissions reductions would be timely achieved through a SIP revision. Similarly, 

under the present circumstances with the stay of the SIP call submission deadlines, EPA 

is no longer assured that the emissions reductions will be achieved in accordance with the 

SIP call deadlines. Hence, EPA now must obtain the emissions reductions under section 

126 and has no basis for further deferring making the findings under section 126 pending 

State action under the NOx SIP call.

Id. at 2680. Similarly here, there is no assurance that any emissions reductions Pennsylvania 

might require under the standard SIP process would be obtained within the three years of this 

finding as required by section 126, and thus, there is no legal basis for deferring the section 126 

process pending Pennsylvania’s 110(a)(2)(D) SIP submission. 

Finally, EPA retains the right, where reasonable, to alter its interpretation of statutory provisions 

through notice and comment rulemaking.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

2. Congress did not place greater value on control of emissions affecting interstate attainment 

than on intrastate attainment

EPA’s interpretation of Section 126 would imply that Congress gave a greater priority to 

protecting interstate transport than on addressing NAAQS problems within each state. By 

proposing to find a violation under Section 126 before Pennsylvania possibly could react to 

EPA’s revised NAAQS, much less develop a new SIP, EPA suggests that Congress places a 

greater value on protecting New Jersey’s air quality than Pennsylvania’s air quality and that 

Pennsylvania has to address New Jersey’s air quality before New Jersey is obligated to do so. 

That is, in EPA’s view it is more important and urgent to address a single state’s complaint of 
Page 26 of 181

emissions transport than it is to improve overall air quality through the well-structured NAAQS 

attainment process under Section 110(a)(1). That interpretation of the CAA is clearly wrong.

Section 110 contains a set of complementary and coordinated requirements that assure an orderly 

NAAQS implementation process. See supra Section IV.A.1. There is nothing in the legislative 

history or the CAA itself to indicate that Congress intended to emphasize one provision of 

Section 110 over any other. Id. EPA’s proposed interpretation of Section 126 -which would 

prioritize interstate transport issues over intrastate NAAQS attainment - is contrary to the 

structure and plain language of the CAA in general and Section 110 in particular. Accordingly, 

before issuing any findings under Section 126, EPA must allow states to promulgate SIP 

revisions that address both intrastate and interstate emissions in the manner prescribed by 

Section 110.

Response:

The EPA disagrees with the commenter’s contention that granting NJDEP’s section 126 petition 

indicates that the EPA is placing greater priority on interstate transport than on a state’s right to 

implement the NAAQS. Congress intended the section 110 SIP procedure and the section 126 

petition process to be two independent and alternate means of addressing interstate pollution 

problems; the former depends on state regulation and the latter depends on federal regulation. 

Congress expressed no preference for one means of addressing the problem over the other, and 

the EPA’s interpretation gives no preference to either section. Contrary to the commenter’s 

assertion, the EPA’s interpretation of sections 110 and 126 is supported by the plain language 

and structure of the statute, as well as the legislative history of the Act. See preamble section III 

for further discussion.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

B. The Proposal is Inconsistent with EPA’s Prior Interpretation of Section 126 and Responses to 

Other Section 126 Petitions.

The Proposal deviates from EPA’s prior position regarding Section 126 petitions. For example, 

EPA received a Section 126 petition from Delaware on December 18, 2008, requesting a finding 

that EGUs in Maryland, Michigan, New Jersey, New York, North Carolina, Ohio, Pennsylvania, 

Virginia, and West Virginia are emitting air pollutants, including SO2, in violation of the 

provision of Section 110(a)(2)(D)(i) of the CAA. 74 Fed. Reg. 7820, 7821 (Feb. 20, 2009). 

EPA’s own modeling, conducted as part of the rulemaking process for the Clean Air Interstate 

Rule (“CAIR”), supports Delaware’s contentions. See 70 Fed. Reg. 25162, 25247-50, t. VI.8-9, 

(May 12, 2005) (describing downwind nonattainment linkages in certain states). Notwithstanding 

EPA’s analysis confirming Delaware’s assertions, EPA nonetheless deferred its response and has 

yet to take action. 74 Fed. Reg. 7821.

Response:

Whether or not EPA has taken action on other, unrelated section 126 petitions is not relevant to 

the agency’s interpretation of the statutory language in section 126 or its obligation under the 

statute to address NJDEP’s section 126 petition in this case.
Page 27 of 181

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

Similarly, in August 1997, eight northeastern states[FN4] submitted Section 126 petitions asking 

EPA to mitigate interstate transport of NOx to address their ozone nonattainment problems. 

Rather than issuing individual, source-specific mandates, EPA coordinated its response to these 

petitions by “linking” its determinations to the then-pending “NOx SIP Call.” As EPA explained, 

“Congress intended section 126 to apply where upwind states’ SIPs are inadequate.” 64 Fed. 

Reg. 28272. Accordingly, portions of Section 126 petitions that EPA found “technically 

meritorious” were “deemed granted or denied at certain later dates pending certain actions by the 

states and EPA regarding state submittals in response to the final NOx [SIP Call].” Id. at 28250. 

As EPA explained, linking its Section 126 response to the then-pending NOx SIP call was 

necessary because compliance with the NOx SIP call would eliminate the basis for a Section 126 

finding. See 64 Fed. Reg. 28271-74.5 

Although EPA subsequently de-linked the NOx SIP Call and its final action on the Section 126 

petitions, which was upheld in Appalachian Power, the circumstances were very different than 

those at issue here. There, EPA was in the process of developing its NOx SIP Call to address 

states’ long-term failures to promulgate SIPs to eliminate their contribution to downwind ozone 

nonattainment of the 1-hour ozone standard - a standard that had been established 18 years 

earlier, in 1979. EPA originally linked the compliance deadline of the NOx SIP Call with the 

compliance deadline for action in response to the Section 126 petitions. When EPA delayed the 

NOx SIP Call’s compliance deadline by one year, various petitioners argued in Appalachian 

Power that EPA also had to delay its final action on the Section 126 petitions. The court rejected 

the argument, holding that the Section 126 process could be pursued independent of the NOx SIP 

call. Appalachian Power, 249 F.3d at 1047. However, the court in Appalachian Power was 

confronted with long-standing SIPs that had failed for over 12 years to address the states’ 

obligations under Section 110(a)(2)(D) with respect to the 1-hour ozone standard and with a new 

EPA regulatory program to address ozone transport that was being delayed. In that situation, 

with states failing for many years to develop SIPs that complied with Section 110(a)(2)(D), the 

court concluded that action on the Section 126 petitions should proceed, notwithstanding EPA’s 

delay of the NOx SIP Call. 

[FN4] Connecticut, Maine, Massachusetts, New Hampshire, New York, Pennsylvania, Rhode 

Island, and Vermont.

Response:

As explained in detail above, the EPA’s action here is consistent with the interpretation of 

section 126 that the EPA applied in both the May 1999 and January 2000 rulemakings. The EPA 

originally linked action on the section 126 petitions and the NOx SIP call in the May 1999 

rulemakings because the upwind states had already been placed on an expedited schedule for SIP 

submissions by the SIP call, such that the necessary emissions reductions would be obtained 

within three years – the same schedule that a section 126 finding would require. There would 

have been no benefit gained if the EPA had granted the section 126 petitions at that time.

As the commenter correctly points out, when the SIP call was later stayed under a court order 

from the D.C. Circuit, the EPA moved forward to grant several of the section 126 petitions at 
Page 28 of 181

issue. The EPA explained that the reason the Agency initially delayed granting the petitions was 

not because SIP requirements should take precedence over such petitions, but because the SIP 

call was particularly responsive to the issues raised in the section 126 petitions. When there was 

no longer any assurance that the SIP call would achieve the necessary reductions within the three 

years required by section 126, the EPA implemented a separate remedy that would do so. 

Similarly here, there is no assurance that any emissions reductions Pennsylvania might require 

under the standard SIP process would be obtained within the three years of this finding as 

required by section 126, and thus, there is no legal basis for deferring the section 126 process 

pending Pennsylvania’s 110(a)(2)(D) SIP submission.

The EPA disagrees with the commenter’s interpretation of Appalachian Power, 249 F.3d 1032 

(D.C. Cir. 2001), which upheld both rulemakings. The court’s decision did not turn on how long 

the existing SIPs had been in place or how long they had been deficient. Rather, the court 

determined that the EPA’s interpretation of the relationship between sections 110 and 126, as 

independent provisions to address interstate transport, was reasonable. Id. at 1048.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

Here, by complete contrast, Pennsylvania’s current SIP clearly is adequate to address its Section 

110(a)(2)(D) obligations for the SO2 standards that applied prior to August 2010. The new 1-

hour SO2 NAAQS has been effective for only 10 months and EPA has not even designated 

nonattainment areas, much less given states an opportunity to propose such designations or 

develop SIPs in response. Nor has EPA proposed to delay any regulatory actions to address the 

1-hour SO2 standard. Until SIPs addressing the 1-hour SO2 NAAQS are in place, any action in 

response to the Petition is premature and inconsistent with EPA’s prior interpretation of and 

approach to implementing Section 126. As EPA has recognized when interpreting the 

requirements of Sections 110 and 126, “it would be difficult to conclude that an affected source 

in the upwind State ‘emits or would emit in violation’ of the prohibition that the [SIP] is not yet 

required to contain.” 64 Fed. Reg. 28256. There simply is no evidence in the legislative history, 

or support in the statutory structure, to indicate that Congress intended to give priority rights to 

downwind states through a 126 petition over the Section 110 process. 

Response:

Whether or not Pennsylvania’s SIP was adequate with respect to a different SO2 standard is 

irrelevant where the EPA has determined that emissions from Portland are significantly 

contributing to exceedances of 2010 1-hour SO2 NAAQS in New Jersey. Moreover, we have 

already thoroughly addressed in this section the commenter’s erroneous reliance on the quote 

from the May 1999 rulemaking, above.

Finally, The EPA disagrees with the commenter’s assertion that one state’s right to file a section 

126 petition is dependent on the section 110 SIP procedure. As explained in more detail in the 

preamble, the statutory language, the structure of the CAA, and the Act’s legislative history 

support the EPA’s conclusion that the “prohibition” on impermissible interstate transport exists 

irrespective of the content of a state’s SIP and that a state’s right to file a section 126 petition is 

not dependent on the section 110 SIP procedure. The EPA’s interpretation of section 126 does 

not give priority to downwind states’ right to petition under section 126 over the section 110 SIP 
Page 29 of 181

procedure. Rather, the EPA’s interpretation supports Congress’s intention to create two 

independent and alternate means of addressing interstate pollution problems. See preamble 

section III for further discussion. 

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

The Proposal represents a sharp and unjustified deviation from EPA’s prior approach to 

addressing Section 126 petitions. When addressing other Section 126 petitions, EPA has either 

not acted or has coordinated its response with broader rulemaking processes addressing interstate 

transport. The Proposal ignores EPA’s prior sound logic linking Section 126 requirements to the 

SIP revision process of Section 110. EPA has refrained from taking action on other Section 126 

petitions addressing sources that have had a significant impact on nonattainment of the NAAQS 

in other states, even after the SIP process has run its normal course; yet EPA now proposes to 

impose such requirements on Portland at the very onset of the SIP process. See generally 

DC01:613186.14 - 14 - 70 Fed. Reg. 25162 (promulgating the CAIR). EPA’s contention that 

very stringent deadlines apply and that “EPA is bound by the language of the CAA” [FN6] is an 

unqualified departure from past regulatory determinations. Specifically, EPA’s statement of how 

and when it must act on Section 126 Petitions is blatantly contradicted by the Agency’s present 

inaction on New Jersey’s May 13, 2010 petition. [FN7] Accordingly, the Proposal is 

inconsistent with EPA’s prior interpretation f Section 126, an abuse of discretion, and an 

arbitrary and capricious response to the Petition.

[FN6] 76 Fed. Reg. 19665.

[FN7] Although GenOn does not believe New Jersey’s May 13, 2010 Section 126 petition has 

any merit, as detailed in GenOn’s letter to EPA dated November 24, 2010 (attached), EPA has 

offered no justification for why it must act on New Jersey’s September 17, 2010 petition while 

simultaneously ignoring New Jersey’s first petition.

Response:

Whether or not EPA has taken action on other, unrelated section 126 petitions is not relevant to 

the agency’s interpretation of the statutory language in section 126 or its obligation under the 

statute to address NJDEP’s section 126 petition in this case.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

2. Pennsylvania’s implementation of the new 1-hour SO2 NAAQS and EPA’s response to New 

Jersey’s first Section 126 petition may impose additional requirements on Portland. 

Pennsylvania must submit a SIP revision addressing the new 1-hour SO2 NAAQS by June 2013. 

See supra Section III.A. Because the 1-hour standard represents a more stringent revision to prior 

SO2 emissions standards, Pennsylvania’s SIP revision will impose more stringent SO2emissions 

limits on sources in Pennsylvania. As mandated by the CAA, that SIP revision also must contain 

provisions addressing interstate transport requirements, according to the orderly implementation 

process prescribed by Congress. Id. But because SIP revisions are not due until June 2013, 

sources in Pennsylvania will not be able to evaluate their obligations under Pennsylvania’s new 

SIP for at least another two years. Even if Portland acts to comply with the emissions limits and 
Page 30 of 181

compliance schedule contained in the Proposal, Pennsylvania’s implementation of the 1-hour 

SO2 NAAQS may impose different requirements during the Proposal’s three-year compliance 

schedule. 

In addition to requirements imposed by the new 1-hour SO2 standard, Portland may face other 

obligations resulting from EPA’s response to the May 13, 2010 Section 126 petition submitted 

by New Jersey, which asked EPA to find that emissions from Portland were causing exceedances 

of or interfering with the maintenance of the 2006 24-hour PM2.5 NAAQS and the 1971 3-hour 

and 24-hour SO2 NAAQS in various areas in New Jersey. 76 Fed. Reg. 19665. While the 

Proposal does not address this first New Jersey petition, EPA stated that it plans to respond to the 

May 13 petition concurrently with its response to the Petition, “or as soon as possible thereafter.” 

Letter from EPA to New Jersey (Nov. 10, 2010), Docket No. EPA-HQ-OAR-2011-0081-0015. 

The first New Jersey petition also addresses SO2 emissions, along with particulate matter 

emissions (of which SO2 is a precursor), and response by EPA in a subsequent rulemaking may 

seek to impose additional emissions limits or other obligations on Portland. Not only do such 

obligations have the potential to conflict with those in the Proposal, they may impact GenOn’s 

analysis and planning with respect to the Proposal’s emissions limits, compliance schedule, and 

other requirements.

In short, the final requirements imposed by multiple pending regulations and requirements will 

make it impossible to make a rational investment decision regarding Portland while so many 

issues are in flux. Because these multiple requirements must be considered in concert to make 

such determinations, EPA’s Proposal is premature and should be linked with other pending rules 

to allow for proper, reasoned decision-making as to Portland’s ongoing and future operations.

Response:

Section 110(a)(2)(D)(ii) of the Act requires Pennsylvania to ensure compliance with the 

requirements of section 126, including the requirements imposed on Portland by this final rule, in

its section 110(a)(2)(D) SIP. It is within Pennsylvania’s discretion to determine the means of 

compliance with the requirements section 110(a)(2)(D) in its SIP. If Pennsylvania, knowing 

Portland’s obligations pursuant to this section 126 finding, determines that it is necessary to 

impose additional requirements on Portland in order to satisfy its section 110(a)(2)(D) 

obligations, that is within Pennsylvania’s discretion. However, the fact that Pennsylvania may 

impose additional requirements on Portland in its SIP development does not permit or require the 

EPA to defer consideration of NJDEP’s section 126 petition. 

Moreover, the EPA is not addressing the May 13, 2010 petition filed by NJDEP in this action. 

However, to the extent reductions in SO2 may address any concerns raised by NJDEP in the May 

13, 2010 petition, we note that Portland is already required to make an 81 percent reduction in 

allowable SO2 emissions in order to meet its obligations under this rule. It is probable that such 

a reduction would also significantly decrease Portland’s alleged contribution to downwind 

nonattainment problems with respect to the 2006 24-hour PM2.5 NAAQS and the 1971 3-hour 

and 24-hour SO2 NAAQS.

The EPA cannot refuse to act on a section 126 petition merely because we may not know all of 

the future obligations to which a source may subject. The statute provides a short timeframe 
Page 31 of 181

within which to act on a section 126 petition, and the EPA must make a rational decision based 

on the available information within the confines of the statute.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

I. The Proposal’s Request for Comments on the Definition of “Expeditiously as Practical” 

Is Inappropriate 

EPA’s request for comments on whether the definition of “expeditiously as practical” in the case 

of planned shutdown is inappropriate in this case. The 1-hour SO2 NAAQS and the CAA 

identify a clear timeline for implementing the 1-hour SO2 NAAQS and provide a five-year 

timeline for bringing any identified “nonattainment” areas into compliance after a SIP is 

established. Indeed, the legality of this standard is being challenged in the D.C. Circuit and a 

decision as drastic as the shutdown of an electric generating plant with several hundred related 

jobs at stake should not be made until the NAAQS challenge is fully resolved. See supra Section 

IV.A. Moreover, the continued operation provisions of Section 126 are expressly linked to the 

requirements of Section 110(a)(2)(D). As EPA has recognized in similar situations:

Moreover, there does appear to be tension between section 110(a)(2)(D), which does not 

establish the timing as to when the SIP prohibition needs to be effective against sources 

(i.e., when sources need to implement controls to reduce emissions) and the timing in 

section 126, which requires implementation no later than 3 years following a section 

126(b) determination. The EPA does not believe that Congress intended section 126 to be 

used to shorten timeframes for action that EPA has previously determined are

approvable for purposes of eliminating significant contribution to nonattainment areas in 

other States.” 

64 Fed. Reg. 28256, n. 1 (emphasis added). Because Section 126 is not intended to “shorten 

timeframes for action” with respect to the 1-hour SO2 NAAQS - for which EPA has already 

determined a clear implementation timeline, see supra Section III.A - and because no attainment 

designations or SIPs have been submitted for the 1-hour SO2 NAAQS under Section 110, any 

interpretation of “expeditiously as practicable” under Section 126 is inappropriate in this case, 

inconsistent with the structure of the CAA, and in conflict with EPA’s own implementation 

timeline for the 1-hour SO2 NAAQS.

Response:

Although the commenter is ostensibly concerned with the definition of “expeditiously as 

practicable,” the commenter’s argument really addresses the EPA’s legal authority to grant 

NJDEP’s section1 26 petition before the deadline for the states to submit their section 

110(a)(2)(D) SIPs with respect to the 1-hour SO2 NAAQS.

The ongoing legal challenges to the 1-hour SO2 NAAQS are not a basis for the EPA to defer 

consideration of NJDEP’s section 126 petition. In an order issued April 7, 2011, the U.S. Court 

of Appeals for the D.C. Circuit denied the petitioners' motion to stay the effectiveness and 

implementation of the revised primary SO2 NAAQS, having determined that the motion failed to 
Page 32 of 181

satisfy the stringent standards for a stay pending court review. Therefore, the Court clearly 

expects that the EPA and states will proceed to implement the now-effective revised NAAQS, 

unless and until the Court in the future directs otherwise. If the EPA were to adopt the 

commenters' reasoning, it would defy the result of the Court's April 7, 2011, order denying the 

motion for stay. Nothing in section 126 or elsewhere in the statute gives EPA the authority to 

defer action on a statutory duty whenever there is litigation over a NAAQS.

Moreover, the quote that the commenter relies upon from the May 1999 rulemaking does not 

contradict EPA’s interpretation of section 126. In that rulemaking, the EPA determined that the 

actions taken by the upwind states pursuant to the pending SIP call would be sufficient to 

eliminate each state’s significant contribution to nonattainment in the downwind states as 

expeditiously as possible. Thus, in the May 1999 rulemaking, the EPA had already determined in 

a prior rulemaking that the SIP call would eliminate the upwind states’ significant contribution to 

downwind nonattainment. The EPA was not evaluating the situation here where no imminent 

action from the upwind state could be relied upon to address the interstate transport problem at 

issue. Here, the EPA has made no previous finding that any particular action by Pennsylvania 

will eliminate its significant contribution to nonattainment in New Jersey.

Moreover, when the SIP call at issue in the May 1999 rulemaking was judicially stayed, the EPA 

moved forward in a January 2000 rulemaking to grant several of the pending section 126 

petitions because there was no longer any assurance that the SIP call would achieve the 

necessary reductions as expeditiously as practicable. Therefore, the EPA’s action on the present 

section 126 petition is consistent with the actions that the EPA took in the prior petitions. 

Nonetheless, the EPA retains the right, where reasonable, to alter its interpretation of statutory 

provisions through notice and comment rulemaking.

Finally, as described in more detail in the preamble, Pennsylvania retains the discretion and 

obligation to develop a SIP and implement the NAAQS throughout the state. See preamble 

section III for further discussion.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

EPA also should defer action on the Petition until regulated entities and states have more 

certainty regarding the level of the SO2 NAAQS. The 1-hour SO2 NAAQS is the subject of 

several lawsuits, which have been consolidated in National Environmental Development 

Association’s Clean Air Project v. EPA, No. 10-1252 (D.C. Cir.). Until this litigation is 

complete, and the D.C. Circuit has issued a decision on whether the new 1-hour SO2 standard is 

appropriate, it is premature to require sources to undertake SO2 reductions linked to the new 1-

hour SO2 NAAQS. For the same reason, any response to a Section 126 petition based on the new 

1-hour SO2 standard is premature. Any final rule promulgated in response to the Petition would 

necessarily fail if the D.C. Circuit were to invalidate the 1-hour SO2 standard. Accordingly, EPA 

should defer a final finding in response to the Petition until the D.C. Circuit has acted and either 

affirmed the validity of the new 1-hour SO2 NAAQS or invalidated it and obviated the need for 

EPA to act on the petition.

Response:
Page 33 of 181

The ongoing legal challenges to the 1-hour SO2 NAAQS are not a basis for the EPA to defer 

consideration of NJDEP’s section 126 petition. In an order issued April 7, 2011, the U.S. Court 

of Appeals for the D.C. Circuit denied the petitioners' motion to stay the effectiveness and 

implementation of the revised primary SO2 NAAQS, having determined that the motion failed to 

satisfy the stringent standards for a stay pending court review. Therefore, the Court clearly 

expects that the EPA and states will proceed to implement the now-effective revised NAAQS, 

unless and until the Court in the future directs otherwise. If the EPA were to adopt the 

commenters' reasoning, it would defy the result of the Court's April 7, 2011, order denying the 

motion for stay. Nothing in section 126 or elsewhere in the statute gives the EPA the authority to 

defer action on a statutory duty whenever there is litigation over a NAAQS.

Commenter: Scott J. Nally, Director, Ohio EPA

Comment:

Ohio EPA has serious concerns regarding the implications of this proposed action. Clearly the 

intent of Section 126 of the CAA was to provide an intervening mechanism for a State affected 

by emissions from another State that has not met its obligation under Section 110 of the CAA 

(specifically Section 110(a)(2)(D)) regarding the development and submittal of a State 

Implementation Plan (SIP) with adequate provisions to prevent emissions that significantly 

contribute to nonattainment and interfere with maintenance of the NAAQS in another State. 

Section 126 of the CAA should not be construed as a preemptive measure that entirely 

circumvents the CAA process for the achievement and maintenance of the NAAQS, including a 

States' obligation, and right, to develop SIPs.

Section 126(b) of the CAA provides a mechanism for a State to petition U.S. EPA when a source 

emits or would emit a pollutant in violation of the prohibition of Section 110(a)(2)(D)(ii) of the 

CAA. Section 110(a)(1) of the CAA requires each State to prepare a plan providing for 

"implementation, maintenance, and enforcement" of a newly established/revised NAAQS within 

three years after promulgation. Under Section 110(a)(2) of the CAA, this plan must include a 

myriad of requirements such as emission limitations and control measures, monitoring, programs 

for enforcement of those emission limitations and control measures, permitting and adequate 

provisions to prevent emissions that significantly contribute to nonattainment and interfere with 

maintenance of the NAAQS in another State. The purpose of a SIP is to ensure timely attainment 

and maintenance of the NAAQS within the state and to ensure that its sources do not interfere 

with downwind attainment in another state. If a State fails to adopt and implement an approved 

SIP by the time periods provided in the CAA, U.S. EPA has the responsibility under the CAA to 

adopt a Federal Implementation Plan (FIP) to ensure that all the CAA requirements are met.

However, this proposed action circumvents this entire process. The 2010 1-hour SO2 NAAQS 

was promulgated on June 3, 2010. Three months later New Jersey submits its petition and U.S. 

EPA is proposing to establish emission limitations and controls measures more than two years 

before Pennsylvania is afforded the opportunity, as required, to submit its SIP which is required 

to include such provisions.

Ohio EPA does not agree with U.S. EPA's analysis regarding the plain language of Section 126 

of the CAA (76 FR 19665) confirming that Section 126 remedies can, and in some cases must, 

be promulgated prior to the due date for a State's SIP. Section 126(b) of the CAA clearly states a 
Page 34 of 181

petition is appropriate when a source "emits or would emit any air pollutant in violation of the 

prohibition of Section 110(a)(2)(D)(ii)" of the CAA. Section 110 of the CAA is a section of 

requirements for inclusion in a SIP. Section 110(a)(2)(D)(ii) of the CAA is one such provision to 

be included in a SIP, specifically a provision in the SIP to prohibit such emissions. There can be 

no violation under Section 126(b) of the CAA until such time as the provision is included and the 

SIP is submitted and approved or a State fails to submit such a SIP. While U.S. EPA asserts that 

Congress did not intend to limit U.S. EPA's authority to act on a Section 126 petition prior to the 

SIP submission deadline because the CAA did not specifically state as such, Ohio EPA asserts 

that it is more plausible that Congress obviously did not intend for U.S. EPA to be able to 

circumvent the entire SIP process because the CAA did not specifically state a Section 126 

petition can be acted upon prior to the very prohibition existing in the SIP. In fact, there is no 

other way to read Sections 110(a)(2)(D)(ii) and 126(b) together than to uphold the integrity of 

the SIP development process and allow a State to take the first shot at constraining its own 

sources from interfering with downwind attainment in the context of an comprehensive SIP 

before allowing those sources to be potentially shut down by the Administrator under Section 

126(c), a rather draconian prospect. 

Clearly this is not the intent of the CAA. Ohio EPA urges you to not establish such precedence 

and to deny this petition. Pennsylvania should have the first opportunity to correct any potential 

violations of the ambient air quality standards, if the State fails to act, then the Section 126 

petition process is appropriate.

Response:

In the preamble, the EPA has extensively addressed the commenter’s argument that the EPA’s 

decision to grant NJDEP’s section 126 petition circumvents the section SIP process of section 

110. The EPA has also addressed the commenter’s contention that the “prohibition” only exists 

to the extent is has been included in an approved SIP or to the extent that a state has failed to 

submit such a SIP by the statutory deadline. Finally, the EPA addressed the commenter’s 

concern with respect to the state’s discretion to develop SIPS and implement new or revised 

NAAQS in the context of section 126. See preamble section III for further discussion of these 

topics.

Moreover, to the extent the commenter contends that a 126 petition may be filed either when a 

source violates a prohibition contained in a SIP or when a State fails to submit a section 

110(a)(2)(D) SIP by the statutory deadline, the commenter’s argument is internally inconsistent. 

First, the commenter has failed to identify any statutory language restricting a state’s right to file 

a section 126 petition until after a SIP submission. Second, the commenter asserts that the 

“prohibition” on interstate transport referred to in section 126 does not exist independent of an 

approved SIP. However, if no SIP has been submitted, under the commenters’ interpretation of 

section 126, there would be no prohibition which a source could violate once the deadline for 

SIP submission has passed, and thus no basis for the filing of a section 126 petition. Thus, the 

commenter cannot claim both that the “prohibition” only exists under state regulation, and argue 

that the EPA has authority to find a violation of such a prohibition where a state has failed to 

regulate interstate transport pursuant to section 110(a)(2)(D).
Page 35 of 181

The commenter also points out that if a state fails to submit a SIP with the time periods provided 

by the CAA, the EPA has an obligation to adopt a FIP. This argument, however, demonstrates 

the reasonableness of EPA’s interpretation of section 126. Since separate statutory provisions 

require EPA to promulgate FIPs when it finds states have failed to submit required SIPs, the 

commenter’s suggested interpretation would, in essence, read section 126 out of the statute. If 

EPA were to lack authority to respond to a section 126 petition until it also had an obligation to 

adopt a FIP, any relief provided by the section 126 petition process under such circumstances 

would be duplicative and unnecessary.

Accordingly, the commenter’s interpretation of the statutory text as restricting the right of a state 

to file a section 126 petition until after a section 110(a)(2)(D) SIP deadline has passed is 

unreasonable. 

Commenter: Stephanie Clarke

Comment:

One question I have is if other power plants in Pennsylvania, as well as New Jersey, are 

additionally contributing to the air quality in New Jersey. I am not sure if research has occurred 

yet concerning this question, but I believe that it is important to not only target the Portland 

Plant. It might be found that it is the largest contributor, but that should not mean that it should 

be the only plant that has to reduce their emissions.

Response:

Section 126 permits a state or political subdivision to petition the Administrator for a finding that 

any major source or group of stationary sources significantly contributes to nonattainment or 

interferes with maintenance of any NAAQS. In this case, NJDEP filed a petition for a finding 

that Portland significantly contributes to nonattainment in New Jersey. The EPA has determined 

that the petition is justified with respect to Portland and has implemented a remedy designed to 

eliminate Portland’s significant contribution to nonattainment in New Jersey. As the petition 

focuses exclusively on the Portland Plant, EPA’s response does also. 

Moreover, the modeling conducted by NJDEP and the EPA demonstrates that once Portland’s 

significant contribution is eliminated, the affected areas in New Jersey will no longer show 

exceedances of the NAAQS. See preamble section V for further discussion.

Commenter: UARG

Comment:

As described in greater detail below, UARG believes that, contrary to EPA’s reading of the 

CAA, no legal basis exists to grant New Jersey’s 126 petition.

Response:

See preamble section III for a thorough discussion of the EPA’s legal basis for granting NJDEP’s 

section 126 petition.

Commenter: UARG

Comment:
Page 36 of 181

In particular, UARG’s comments respond to EPA’s suggestions (in the April 7, 2011 notice) that 

CAA section 126 requires the Agency to grant the NJDEP section 126 petition. In fact, EPA has 

discretion to take a broad range of actions in response to the NJDEP petition.[FN14] 76 Fed. 

Reg. 19665/1. And under the circumstances at issue in this case, EPA should exercise that 

discretion by denying the NJDEP petition.

[FN14] That EPA believes it has discretion not to act precipitously on a pending section 126 

petition is demonstrated by the fact that EPA continues not to act on the section 126 petition that 

New Jersey filed in May 2010.

Response:

The EPA’s discretion with respect to NJDEP’s section 126 petition is constrained by the terms of 

the statutory language which instruct the Administrator to grant or deny a section 126 petition 

within 60 days. Section 307(d) permits up to a 6 month extension of this deadline, but there are 

no other extensions provided by the Act. Whether or not the EPA has taken action on other 

section 126 petitions is not relevant to the agency’s interpretation of the statutory language in 

section 126 or its obligation under the statute to address NJDEP’s section 126 petition in this 

case.

Commenter: UARG

Comment:

I. CONTRARY TO THE CAA, EPA’S PROPOSED ACTION WOULD UNDERMINE 

PENNSYLVANIA’S ABILITY TO PLAY A MEANINGFUL ROLE IN IMPLEMENTATION 

OF THE 1-HOUR SO2 AMBIENT STANDARD. 

Under the terms of the 1970 Act, the 1977 CAA Amendments, and the 1990 Amendments, states 

are to play the primary role in implementing NAAQS and addressing interstate pollution. 

Contrary to Congress’s intent in enacting the CAA, EPA’s proposed action in this case would 

undermine Pennsylvania’s role in implementing the 1-hour SO2 NAAQS.

A. Congress Intended the States to Have the Primary Role in Implementation of NAAQS. [See 

additional text in docket at EPA-HQ-OAR-2011-0081-0094]

B. EPA’s Approval of New Jersey’s Section 126 Petition Would Prevent Pennsylvania from 

Playing a Meaningful Role in Implementation of the 1- Hour SO2 NAAQS.

It is plain from the language of the CAA, from EPA’s own regulations, and from the legislative 

history of key CAA provisions (as summarized above) that states are to play the primary role in 

implementation of NAAQS. EPA’s failure to allow states to play that role will limit the range of 

options that can be considered for improving air quality and put unreasonable burdens on 

affected sources.

In particular, the CAA and EPA’s rules for implementing the 1-hour SO2 NAAQS expressly 

give Pennsylvania until at least June 2013 to develop a state plan for implementing and 

achieving compliance with the new NAAQS,[FN32] and they allow Pennsylvania to give 

affected source owners additional time (until August 2017) in which to design, apply for and 

obtain permits for, and install the control technologies required to achieve any emission 

reductions mandated under the revised Pennsylvania SIP. If Pennsylvania has available to it the 
Page 37 of 181

time provided under the CAA and implementing rules, then Pennsylvania would (and should) be 

able to consider – and source owners would (and should) be able to implement – a wide range of 

options for improving air quality in in-state areas that are not attaining the new standard and for 

reducing emissions from sources that are significantly contributing to in-state or to out-of-state 

nonattainment with the new standard. EPA acknowledges that the Agency could not undertake 

such an analysis in this case: “There are many different combinations of emissions limits for 

units 1 and 2 that would eliminate violations of the SO2 NAAQS in New Jersey, but we are not 

able to examine an unlimited number of combinations.” 76 Fed. Reg.19676/1. In short, if EPA 

approves New Jersey’s September 2010 section 126 petition, then that action would undermine 

Pennsylvania’s statutory right to develop its own program for addressing interstate pollution.

[FN32] As noted above, in implementing the 1-hour SO2 NAAQS promulgated in June 2010, 

each state – including Pennsylvania – has until at least June 2013 (and perhaps until February 

2014) to develop and submit to EPA a SIP that provides for attainment of the new NAAQS 

within the state and that satisfies the requirements of section 110(a)(2)(D). See 75 Fed. 

Reg.35553.

Response:

The EPA disagrees with the commenter’s assertion that granting this section 126 petition 

undermines the state’s right to implement the NAAQS and develop its own SIP. Congress 

intended the section 110 SIP procedure and the section 126 petition process to be two 

independent and alternate means of addressing interstate pollution problems; the former depends 

on state regulation and the latter depends on federal regulation. Congress expressed no 

preference for one means of addressing the problem over the other. Even though section 126 

permits the EPA to impose emission limits on particular sources or groups of sources, states 

retain the discretion and obligation to design a SIP and implement the NAAQS throughout the 

state. See preamble section III for further discussion.

The EPA’s interpretation of section 126 is consistent with the structure of Title I of the CAA. 

Under the system of cooperative federalism in Title I, States are primarily responsible for 

determining the mix of control measures necessary to achieve the NAAQS, while the federal 

government sets the uniform national goals and ensures that States act to meet them. Train v. 

NRDC, 421 U.S. 60, 78-79 (1975). However, Congress directed the EPA to regulate sources 

directly under several provisions of Title I. In particular, Congress mandated Federal action 

under sections 110(c) (FIP provisions), 126, and 183 (Federal ozone measures). Where a SIP is 

adequate but a source is violating its provisions, it would be counter to the cooperative 

federalism structure of the Act and would serve no purpose to essentially replace those adequate 

SIP limits with redundant direct federal controls on a source. In contrast, where a state is not yet 

regulating an interstate pollution problem, it makes sense to provide an alternative mechanism to 

directly achieve the necessary emissions reductions from the sources. A state would always be 

free to regulate the sources itself in that instance by revising its SIP to include the necessary 

emission limits (and indeed, section 110(a)(2)(D)(ii) requires the state to ensure compliance with

such measures in its SIP). The EPA believes that this understanding of Congress’s overall design 

for air pollution control supports the EPA’s interpretation that the tools in section 126 may be 

used whenever sources in one state are emitting impermissible amounts of transported air 

pollutants.
Page 38 of 181

Commenter: UARG

Comment:

Finally, it is worth noting that this is not the first time EPA has tried to limit the role of states in 

the NAAQS implementation process. Indeed, this is only the most recent in a series of EPA 

actions to reduce – or eliminate – the role that states are to play in that process. For example, 

when it promulgated the final 1-hour SO2 NAAQS in June 2010, EPA purported to remove most 

of the states’ discretion to determine what approaches to use in determining whether areas within 

their jurisdiction are attaining or not attaining that NAAQS. [FN35] Also, within the past year, 

EPA proposed a Transport Rule, which is designed to help implement the current ozone and fine 

particulate matter NAAQS but which contains a schedule that would make it nearly impossible 

for states to develop, submit, and receive EPA approval of SIPs in time to use them for 

implementation of the first phase of the program. [FN36] In its proposed Transport Rule, EPA 

noted that it is reconsidering the current ozone NAAQS [FN37] and is simultaneously 

developing another proposed transport rule under which EPA – rather than the states – would 

take the lead in determining what emission reductions are needed to address interstate 

contributions to nonattainment with whatever new ozone NAAQS emerges from EPA’s 

reconsideration proceeding. [FN38]

In summary, EPA’s proposal to grant New Jersey’s section 126 petition is a continuation of the 

Agency’s efforts to limit the role of states in the NAAQS implementation process. Such an 

approach, however, is contrary to Congress’s intent in enacting the CAA and should not be 

followed here. EPA should – indeed, it must – deny New Jersey’s petition and allow 

Pennsylvania to meet its CAA obligation to eliminate within-Pennsylvania SO2 emissions that 

contribute significantly to nonattainment of the 1-hour SO2 NAAQS in New Jersey.

[FN35] See, e.g., 75 Fed. Reg. 35520, 35570 (where EPA describes its decision not to adopt the 

more flexible implementation approach it had “originally proposed” and instead to require states 

to use a “hybrid analytic approach for assessing compliance with the new 1-hour SO2 NAAQS 

for initial designations . . . .”).

[FN36] See 75 Fed. Reg. 45210 (Aug. 2, 2010). The Transport Rule schedule described by EPA 

contemplates promulgation of a final rule by the end of June 2011 and imposition of a January 1, 

2012 compliance date for an initial set of emission reductions.

[FN37] The decision to reconsider the current ozone NAAQS was EPA’s alone; it was not 

undertaken in response to a request from stakeholders or the public.

[FN38] See, e.g. 75 Fed. Reg. 45301/3 (“EPA has already begun the technical background work 

necessary to allow it to move quickly, once the revised ozone standards are promulgated, with a 

proposal to address upwind emissions that significantly contribute to nonattainment of or 

interfere with maintenance of those standards.”).

Response:
Page 39 of 181

This action addresses the section 126 petition submitted by NJDEP in September 2010. To the 

extent the comment addresses other regulatory actions pursued by the agency, it is beyond the 

scope of this rulemaking.

Moreover, the EPA disagrees with the commenter’s assertion that granting this section 126 

petition undermines the state’s right to implement the NAAQS and develop its own SIP. 

Congress intended the section 110 SIP procedure and the section 126 petition process to be two 

independent and alternate means of addressing interstate pollution problems; the former depends 

on state regulation and the latter depends on federal regulation. Congress expressed no 

preference for one means of addressing the problem over the other. Even though section 126 

permits the EPA to impose emission limits on particular sources or groups of sources, states 

retain the discretion and obligation to design a SIP and implement the NAAQS throughout the 

state. See Preamble Section III for further discussion.

Commenter: UARG

Comment:

C. EPA’s Interpretation of the CAA as Requiring It To Grant New Jersey’s Section 126 Petition 

in These Circumstances Is Unfounded and Contrary to Congressional Intent. 

EPA’s proposed decision to approve New Jersey’s section 126 petition is apparently premised on 

EPA’s reading of the language of section 110(a)(2)(D)(ii), which, as noted above, requires each 

state to submit a SIP that contains “adequate provisions . . . insuring compliance with the 

applicable requirements of . . . [CAA section 126].” EPA says this means that in developing SIPs 

to implement new NAAQS, states must “include any emission limits promulgated by EPA 

pursuant to section 126,” which – in turn – means that Congress did not intend to “limit EPA’s 

authority to act on section 126 petitions until after the deadline for States to submit 

110(a)(2)(D)(i) SIPs.” 76 Fed. Reg. 19665/1. Rather, says EPA, section 110(a)(2)(D)(ii) provides 

“a mechanism for section 126 remedies promulgated prior to the SIP submission deadline to be 

incorporated into the State SIPs.” Id. In other words, EPA suggests that the Act may – and that 

perhaps the Act must – be read as cutting short Pennsylvania’s three-to fouryear window for addressing interstate pollution and as requiring EPA to step in now to impose its 

own program for addressing the alleged impact of SO2 emissions from Pennsylvania sources on 

air quality in New Jersey. See id.

EPA’s interpretation of these provisions is incorrect. On its face, all section 110(a)(2)(D)(ii) says 

is that each state’s implementation plan must contain adequate provisions to ensure compliance 

with “the requirements of [section 126].” Recall, though, what section 126 provides:

• Section 126(a) requires each state to include in its SIP a provision under which the state 

must notify other states of the possible construction of new or modified sources that 

might significantly affect air quality in those other states. [FN39]

• Section 126(b) directs EPA to respond to section 126 petitions.
Page 40 of 181

• And section 126(c) says that if EPA makes a section 126(b) finding, then affected 

existing sources must promptly cease operations or operate only in compliance with 

emissions limitations and compliance schedules set by the Administrator.

Thus, the only directive in section 126 concerning what SIPs must contain appears in section 

126(a), which provides that each SIP must contain certain notice provisions. There is nothing 

further that section 126 “require[s]” Pennsylvania to have in its implementation plan. In short, 

EPA is not “bound by the language of the CAA” (76 Fed. Reg. 19665/1) to impose emission 

limit on SO2 emissions from the Portland Plant before Pennsylvania has had a reasonable period 

of time in which to develop its own SO2 emission limits on sources in Pennsylvania, including –

if appropriate – the Portland Plant.

Moreover, by reading the statute as EPA proposes, EPA essentially deprives Pennsylvania (and 

other similarly situated states) from playing their statutorily assigned role in the implementation 

of new NAAQS. This contradicts Congress’s clear intention that states be active partners in the 

implementation of the CAA with respect to sources within their borders, and that they have the 

principal role in the NAAQS implementation process in particular. [FN40]

In summary, contrary to EPA’s statements in its proposed rule, EPA is not required by section 

110(a)(2)(D)(ii) or any other provision of the CAA to approve New Jersey’s section 126 petition.

[FN39] See CAA section 126(a)(1). In addition, section 126(a)(2) provides that by November 

1977, each state was supposed to have ensured that its SIP would identify existing sources 

significantly contributing to air pollutant concentrations in excess of the NAAQS in other states 

and provide notice of such sources to the other states.

[FN40] As noted in n.15, supra, and the accompanying test, section 107(a) of the Act specifically 

provides that “[e]ach State shall have the primary responsibility for assuring air quality within 

the entire geographic area comprising such State by submitting an implementation plan for such 

State which will specify the manner in which national primary and secondary ambient air quality 

standards will be achieved and maintained with each air quality control region in such State.”

Response:

The EPA does not agree with the commenter’s interpretation of section 110(a)(2)(D)(ii). Section 

110(a)(2)(D)(ii) requires states to include in their SIPs provisions necessary to ensure 

compliance with the “requirements” of sections 126 and 115 of the CAA. If Congress intended a 

state’s SIP to only include the specific requirements of section 126(a), it could have specified 

such in the text of section 110(a)(2)(D)(ii). Moreover, emissions limitations and compliance 

schedules are to be imposed pursuant to section 126(c) after a finding of a violation pursuant to 

section 126(b). These emissions limitations and compliance schedules are clearly “requirements” 

imposed upon the source or sources pursuant to section 126 and thus it is reasonable to interpret 

the language of 110(a)(2)(D)(ii) as requiring these provisions to be incorporated into the SIPs for 

the states in which the affected sources are located. Since Congress did not limit the language of 

section 110(a)(2)(D)(ii) only to the requirements contained in section 126(a), it is logical to 

conclude that Congress intended that a state’s SIP should also include any requirements imposed 

pursuant to section 126(c). Accordingly, the statute anticipates that the Administrator may 
Page 41 of 181

address a section 126 petition prior to the deadline for the initial submission of a section 

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

If the EPA adopted the commenter’s interpretation of section 110(a)(2)(D)(ii) as only referring to 

the explicit directives regarding what a SIP must contain outlined in section 126(a), the reference 

to section 115 would be rendered meaningless. Under section 115, the Administrator may issue a 

SIP call to a state, at the request of an international agency or the Secretary of State, based upon 

a finding that an air pollutant or pollutants emitted in the United States “cause or contribute to air 

pollution which may reasonably be anticipated to endanger public health or welfare in a foreign 

country.” Thus, like the section 126 petition process, any “requirements” under section 115 only 

arise upon a finding issued by the Administrator after a review process that is initiated at the 

request of a third party. There are no independent requirements contained in section 115 absent 

such a finding. If section 110(a)(2)(D)(ii) were interpreted consistent with the commenter’s 

explanation – such that obligations imposed by the Administrator after a finding of a violation 

are not “requirements” – then the obligation to insure compliance with section 115 would be 

rendered meaningless. 

Furthermore, the EPA disagrees with the commenter’s assertion that granting this section 126 

petition deprives the state of its role in implementing the NAAQS and developing its own SIP. 

Rather, as described in more detail in the preamble, Pennsylvania retains the discretion and 

obligation to develop a SIP and implement the NAAQS throughout the state. Congress intended 

the section 110 SIP procedure and the section 126 petition process to be two independent and 

alternate means of addressing interstate pollution problems, the former depends on state 

regulation and the latter depends on federal regulation. Congress expressed no preference for 

one means of addressing the problem over the other. See Preamble Section III for further 

discussion.

Commenter: UARG

Comment:

II. EPA SHOULD DENY NEW JERSEY’S PETITION BECAUse THE LEGAL AND 

FACTUAL FOUNDATIONS FOR THAT PETITION DO NOT EXIST

EPA should deny New Jersey’s section 126 petition because section 126 is properly interpreted 

as providing a mechanism for enforcement only of already-promulgated SIP provisions that 

address the interstate transport prohibition of section 110(a)(2)(D)(i) of the Act. As discussed 

below, section 126 should not be construed as providing “downwind” states an independent 

mechanism to implement the “functional prohibition” of section 110(a)(2)(D)(i) apart from 

existing implementation plan provisions.

Response:

The EPA disagrees with the commenter’s interpretation of section 126 as applying only to 

violations of existing SIP provisions. See preamble section III for further discussion.

Commenter: UARG

Comment:
Page 42 of 181

A. The Act Does Not Refer to Section 110(a)(2)(D); Rather, It Refers to a Subsection of Section 

110(a)(2)(D).

Section 126(b) authorizes petitions only for a finding that any major source or group of 

stationary sources emits or would emit any air pollutant “in violation of the prohibition” of 

section 110(a)(2)(D)(i).[FN41] Section 110(a)(2)(D)(i) in turn provides that a state’s 

implementation plan must “contain adequate provisions . . . prohibiting, consistent with the 

provisions of this title [CAA Title I],” sources from emitting any air pollutant in amounts that 

will contribute significantly to nonattainment in another state. Accordingly, the “prohibition” to 

which section 126(b) refers exists only to the extent an implementation plan contains 

“provisions” within the meaning of section 110(a)(2)(D)(i). A source or group of sources 

therefore cannot be in “violation” of the section 110(a)(2)(D)(i) “prohibition” within the meaning 

of section 126(b) until: (1) that section 110(a)(2)(D)(i) prohibition has come into existence 

through promulgation and approval of implementation plan “provisions,” in the form of emission 

limits to which those sources are subject; and (2) those sources have violated those 

implementation plan provisions. Thus, section 126(b) can be used only to seek EPA action to 

remedy a violation of any existing implementation plan provisions that address “significantly 

contributing” emissions. [FN42]

As examination of the statutory text demonstrates, the language of section 110(a)(2) does not 

establish a free-standing prohibition on emissions independent from the provisions of the 

implementation plan. The implementation plan “provisions prohibiting” sources from emitting 

significantly contributing emissions by definition do not exist unless they are contained in an 

“implementation plan” for a state. CAA § 110(a)(2) (first sentence). Consequently, section 

110(a)(2)(D)(i) is not a “functional prohibition” on emissions that exists independently of the 

“provisions,” CAA § 110(a)(2)(D) (introductory clause), that are “contain[ed],” id., in an 

“implementation plan,” CAA § 110(a)(2) (first sentence).

[FN41] As noted above, although section 126 on its face refers to section 110(a)(2)(D)(ii) rather 

than to section 110(a)(2)(D)(i), the D.C. Circuit accepted EPA’s argument that those references 

should be read as references to section 110(a)(2)(D)(i). Appalachian Power Co. v. EPA, 249 F.3d 

1032, 1040-44 (D.C. Cir. 2001).

[FN42] Although EPA took the opposite view on this issue in a section 126 rulemaking action in 

1999, the issue has not been resolved by the courts. In its 2001 decision addressing that 1999

rulemaking and construing section 126, the D.C. Circuit explicitly did not decide this question of 

statutory interpretation. To the contrary, because the court concluded that the parties challenging 

EPA’s section 126 action before the court had not addressed this question in their opening briefs, 

the court said that it “need not decide it.” Appalachian Power, 249 F.3d at 1045 n.4.

Response:

The EPA disagrees with the commenter’s assertion that the “prohibition” referred to in section 

126 only arises to the extent it is contained in a state’s SIP regulations. The EPA contends that 

the statutory language, the structure of the CAA, and the Act’s legislative history support the 

EPA’s conclusion that the “prohibition” on impermissible interstate transport exists irrespective 

of the content of a state’s SIP. See preamble section III for further discussion.
Page 43 of 181

Moreover, the EPA disagrees with the commenter’s interpretation of Appalachian Power v. EPA, 

249 F.3d 1032 (D.C. Cir. 2001). The court did not speak to whether the EPA’s interpretation of 

the “prohibition” in section 110 was reasonable since the petitioners did not raise the issue in 

court, but the court acknowledged ambiguity in the statutory language. Id. at 1045 n.4. The EPA 

maintains that the statute is unambiguous in that nothing in the statutory language links the 

section 126 petition process to the section 110 SIP procedure. However, to the extent a court 

were to find the language ambiguous, for the reasons stated above and consistent with its past 

precedent in addressing section 126 petitions, the EPA maintains that the better interpretation is 

that the “prohibition” in section 110 exists independent of its implementation through an 

approved SIP. The EPA is therefore entitled to deference under step two of Chevron. See

preamble section III for further discussion.

Commenter: UARG

Comment:

II.B There Is No Basis for EPA To Claim the Statute Is Ambiguous On This Point. 

In addressing earlier section 126 petitions in 1999, EPA concluded – incorrectly, in UARG’s 

view – that the statute’s relevant text is “ambiguous” in this regard. 64 Fed. Reg. 28272/1 (May 

25, 1999). To the contrary, the relevant statutory language is clear: section 126(b) must be read 

as referring narrowly to the section 110(a)(2)(D)(i) “prohibiti[ons]” – i.e., specific emission 

limits, contained in the implementation plan, prohibiting “significantly contributing” emissions 

as described in section 110(a)(2)(D)(i) – not to the section 110(a)(2)(D) requirement that 

implementation plans “contain adequate provisions” prohibiting significantly contributing 

emissions. EPA nonetheless effectively construed section 126(b) as referring to that section 

110(a)(2)(D) requirement rather than to implementation plans’ provisions described in section 

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

Response:

The EPA disagrees with the commenter’s assertion that the “prohibition” referred to in section 

126 only arises to the extent it is contained in a state’s SIP regulations. The EPA contends that 

the statutory language, the structure of the CAA, and the Act’s legislative history support the 

EPA’s conclusion that the “prohibition” on impermissible interstate transport exists irrespective 

of the content of a state’s SIP. See preamble section III for further discussion.

Commenter: UARG

Comment:

C. When Congress Wanted to Refer to the Requirement of Section 110(a)(2)(D) –Rather Than 

to Implementation Plans’ Provisions Described in Section 110(a)(2)(D)(i) – It Knew How To Do 

So.

In contrast, CAA interstate transport provisions other than section 126 do refer to the 

requirement of section 110(a)(2)(D) – rather than section 110(a)(2)(D)(i) – that SIPs “contain 

adequate provisions.” Specifically, sections 176A and 184 of the CAA refer to section 

110(a)(2)(D)’s requirements for the implementation plans themselves – separate and apart from 

“prohibitions” on sources’ emissions that are to be included in implementation plans’ 
Page 44 of 181

“provisions.” Section 176A directs interstate transport commissions to recommend to EPA “such 

measures as the Commission determines to be necessary to ensure that the plans for the relevant 

States meet the requirements of section 110(a)(2)(D).” CAA § 176A(b)(2) (emphasis added). 

That section also authorizes an interstate transport commission to request EPA “to issue a finding 

under section 110(k)(5) of this Act that the implementation plan for

one or more of the States in the transport region is substantially inadequate to meet the 

requirements of section 110(a)(2)(D . . . ..” CAA § 176A(c) (emphasis added). Using almost 

identical language, section 184 authorizes EPA to issue “a finding under section 110(k)(5) of this 

Act that the implementation plan for [a] State is inadequate to meet the requirements of section 

110(a)(2)(D).” CAA § 184(c)(5) (emphasis added).

Accordingly, Congress knew well how to use language to refer to the requirement of section 

110(a)(2)(D) that an implementation plan contain adequate provisions prohibiting “significantly 

contributing” emissions. Congress used no such language in section 126(b). Rather, Congress in 

section 126(b) referred to the “prohibition” of “significantly contributing” emissions that is to be 

included as emission limitation provisions within implementation plans, and Congress authorized 

affirmative EPA action under section 126(b) only if that “prohibition” – i.e., an emission 

limitation contained in a SIP – was being “violat[ed].” CAA § 126(b). 

Indeed, in light of the Act’s provisions, it would be highly anomalous to construe section 126(b) 

to force federal imposition of what amounts to SIP revisions to impose emission limitations 

within 60 days (extendible by up to six months under CAA section 307(d)(10)) after EPA 

receives a section 126 petition. As EPA acknowledged in promulgating the 1-hour SO2 NAAQS, 

states have until at least June 2013 to develop and submit SIP provisions to implement, maintain, 

and enforce the NAAQS within the state, and they have until August 2017 to show they have 

achieved attainment and maintenance of the 1-hour SO2 NAAQS. See 75 Fed. Reg. 35553. In 

light of these statutory deadlines, it is implausible to conclude that section 126(b) authorizes a 

state, merely by filing a petition, to force a wholesale rewriting of another state’s emission 

control plan within a few months – and with no input by the state whose sources are being 

controlled.

In sum, in light of the statutory text, EPA may make section 126 findings and grant a section 126 

petition only where a stationary source or group of stationary sources is in violation of a 

prohibition of “significantly contributing” emissions that is contained in an implementation plan. 

The power plant units targeted by New Jersey’s September 2010 section 126 petition are not –

and are not alleged to be – in violation of any existing section 110(a)(2)(D)(i) interstate transport 

provisions contained in an implementation plan. Those sources, therefore, are not in violation of 

any prohibition to which sections 126 and 110(a)(2)(D)(i) refer. As a result, no legal basis exists 

to grant the September 2010 petition.

Response:

The commenter’s argument is not supported by the statutory language. Both sections 176A and 

184 authorize a commission established under the Act to issue a finding that a SIP is deficient 

under 110(k)(5) because it fails to include the requirements of section 110(a)(2)(D) in either an 

interstate transport region or an ozone transport region, respectively. Thus, it is logical that these 

sections would address whether the section 110 requirements have been addressed in the SIPs 
Page 45 of 181

themselves. It is also logical that the sections would refer to section 110(a)(2)(D) rather than 

section 110(a)(2)(D)(i) because both subsections (i) and (ii) include “requirements” that must be 

included in the states’ SIPs. Thus, the fact that sections 176A and 184 do not solely refer to 

subsection (i) is an indication of nothing more than the fact that these commissions can also 

make a section 110(k)(5) finding where the requirements of subsection (ii) have not been 

properly included in the states’ plans. On the other hand, section 126 refers explicitly to the 

violation of the prohibition contained in section 110(a)(2)(D)(i), rather than the violation of a SIP 

provision that addresses the requirements of section 110(a)(2)(D)(i). As evidenced by sections 

176A and 184, Congress clearly knew how to specify when it wished to refer to the requirements 

of section 110 as they are contained in a state’s SIP. Accordingly, the EPA disagrees with the 

commenter’s assertion that the “prohibition” referred to in section 126 only arises to the extent it 

is contained in a state’s SIP regulations.

The EPA further disagrees with the commenter’s assertion that granting this section 126 petition 

undermines the state’s right to implement the NAAQS and develop its own SIP. Rather, as 

described in more detail in the preamble, Pennsylvania retains the discretion and obligation to 

design a SIP and implement the NAAQS throughout the state, and Pennsylvania had an 

opportunity to comment in this rulemaking. Moreover, Congress intended the section 110 SIP 

procedure and the section 126 petition process to be two independent and alternate means of 

addressing interstate pollution problems; the former depends on state regulation and the latter 

depends on federal regulation. Congress expressed no preference for one means of address the 

problem over the other. See preamble section III for further discussion.

Finally, despite the commenter’s claim that the state had “no input,” Pennsylvania was invited to 

provide comment both on the EPA’s proposal to grant the section 126 petition and on the 

proposed emissions limits that are being finalized in this rule.

Commenter: Hunton & Williams LLP

Comment:

Whether EPA has discretion to delay action on a section 126 petition “just because the 

State SIP submission deadline has not yet passed” (id. at 19665/1): For the reasons set out 

above, EPA does not now have discretion to grant New Jersey’s section 126 petition. Rather, 

EPA must deny the petition at this time. If New Jersey were to re-file its petition at a later date, 

after Pennsylvania has had the time allowed by the Act to address any nonattainment problems 

that its sources may be causing, EPA could revisit the question of the approvability of New 

Jersey’s request at that time.

Response:

The EPA disagrees with the with the commenter’s assertion that a state’s right to file a section 

126 petition is tied to an upwind’s states’ action on its section 110(a)(2)(D) SIP obligations. 

There is nothing in the statutory language which restricts the timing of a state’s right to file such 

a petition. See preamble section III for further discussion.
Page 46 of 181

V. Air Quality Modeling

1. General Comments

Commenter: Commissioner Bob Martin, NJDEP

Comment:

New Jersey strongly supports EPA’s proposal to grant New Jersey’s petition. The emission limits 

that EPA proposes to require, however, are not consistent with the results of NJDEP’s modeling, 

are inadequate to reach and maintain attainment of the 1-hour SO2 standard, and therefore are 

inadequate to fully protect the public health in New Jersey and Pennsylvania. New Jersey’s 

modeling demonstrates that between 89% (based on AERMOD predictions) and 95% (based on 

CALPUFF predictions) emissions reductions from allowable emissions are needed to reduce air 

quality concentrations to barely attain the air quality standard. The EPA should therefore ensure 

emissions reductions at Portland by at least 95% in order to provide certainty that public health 

will be protected. Application of New Jersey’s adopted sulfur dioxide emission limit of 0.150 

pounds per million BTU would result in a 95% reduction of sulfur dioxide at Portland. Based on 

New Jersey’s analysis, at least a 95% reduction is also required to maintain the NAAQS.

New Jersey is also providing comments on the independent modeling study performed by the 

USEPA. New Jersey's modeling correctly demonstrates that a reduction of 95% or better is 

needed to ensure our public's health is protected and to achieve and maintain attainment with the 

I-hour SO2 NAAQS.

New Jersey insists that EPA ensure that the sulfur dioxide emission limit it sets for this coal-fired 

power plant is fully protective of public health. The technical evaluations done by New Jersey 

(with two models) and by EPA (with one model) indicate that emission reductions between 81 

and 95 percent are required to ensure the health standard is not exceeded.

[See detailed comment document attached to available in the docket at EPA-HQ-OAR-0081-

0126]

EPA found that “due to the magnitude of the modeled violations in the NJDEP AERMOD 

modeling, the NJDEP modeling was sufficient to make a finding that the Portland Plant 

significantly contributes to nonattainment and interferes with maintenance in New Jersey.” 76 

Fed. Reg. 19,673. The results from New Jersey’s modeling analyses using both CALPUFF and 

AERMOD and the results from EPA’s modeling analysis all show violations of the 1-hour SO2 

standard in New Jersey and Pennsylvania due to Portland’s emissions. AERMOD confirms the 

findings of CALPUFF and similarly shows NAAQS violations, and the monitoring results 

corroborate the modeling analyses. EPA should accordingly issue a final rule granting NJDEP’s 

petition. But the level of emission reductions should be based on NJDEP’s CALPUFF analysis to 

ensure maintenance of the NAAQS and certainty of public health protection.

Response:

The EPA continues to agree that both the NJDEP and EPA modeling support a finding that SO2

emissions from Portland significantly contribute to nonattainment and interfere with maintenance 

in New Jersey. Based on a careful analysis of the numerous NJDEP modeling related comments, 
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the EPA does not agree that an emissions reduction of “95% or better” from allowable emissions 

is needed to eliminate the significant contribution to nonattainment and interference with 

maintenance from Portland to New Jersey. In the final rule analysis, the EPA has determined that 

a reduction of 81 percent from allowable emissions levels is needed. Appropriate emissions 

limits for Portland units 1 and 2 have been set in the final rule. 

The EPA has provided detailed responses to the NJDEP AERMOD and CALPUFF modeling 

analyses and comments in both the final rule preamble and later in this document. See preamble 

sections IV and V for more information on the modeling analysis and setting of the emissions 

limits. See preamble section IV.B.1. and appendix A of the final rule Modeling TSD for a more 

detailed discussion on the NJDEP CALPUFF model evaluation.

Commenter: D.M. Lohman

Comment:

In addition I have a comment about the stack parameters of temperature and exit velocity as they 

relate to the modeling to confirm the adequacy of the new emission limits to protect the standard. 

Although the stack parameters in reality do vary it is usually necessary for the purpose of 

modeling future conditions to specify some representative values. It should be recognized that 

some methods of complying with the required emissions reductions will result in substantially 

different, meaning lower, temperatures of the stack exhaust. This will reduce the plume rise and 

result in estimated concentration patterns which differ from simple emissions rollback 

calculations. In accordance with my understanding that the EPA does not want to specify a 

particular control strategy I suggest that the directive for a modeling protocol to be developed by 

the owner and operator of the Portland Plant specify analyses of the anticipated stack parameters. 

Response:

As discussed in section V.C. of the preamble, the EPA agrees that changes in stack parameters 

may occur due to compliance with the emissions limits and these changes may result in reduced 

plume rise and affect downwind concentrations. Therefore, along with compliance with 

emissions limits, the EPA is requiring as part of the rule for GenOn to submit a modeling 

protocol within 6 months of the final rule and a final modeling report within 1 year of the final 

rule. The modeling report must include dispersion modeling that shows compliance with the SO2

NAAQS using the final compliance strategy selected by GenOn, including revised stack 

parameters, as appropriate. 

Reduced plume rise also occurs when the Portland boilers are operating at less than full 

operating load. To address this, the final rule also includes a lbs/mmBtu emissions rate limit 

which will ensure that emissions (in lbs/hr) are reduced at lower operating loads. This will help 

ensure that the NAAQS are protected at reduced operating loads, regardless of the control device 

or compliance option chosen by GenOn.

Commenter: D.M. Lohman

Comment:

Finally I have a comment on the Validation of CALPUFF submitted by the New Jersey DEP 

which purports to demonstrate that CALPUFF is a better performing model than AERMOD and 

is therefore more appropriate to use to establish emission limits for the Portland Plant. The EPA 

has prudently rejected the analysis by New Jersey and reaffirmed the applicability of AERMOD. 
Page 48 of 181

EPA does seem to have overlooked a key criterion of Appendix W for selecting an alternative 

model. None of the validation monitoring cited by New Jersey is anywhere near the area of 

maximum concentrations due to the Portland Plant predicted by either CALPUFF or AERMOD. 

(With the exception of the background site, AMS08, the cited monitoring took place at areas of 

maximum concentration from the Martins Creek power plant as predicted by the MPTER model. 

The fact that MPTER is genetically closer to CALPUFF than to AERMOD might introduce a 

slight bias towards CALPUFF.) If the performance of CALPUFF relative to AERMOD for 

Martins Creek were to be considered as a reasonable demonstration of the applicability of 

CALPUFF anywhere else (such as the Portland Plant) it would by extension be a reasonable 

demonstration everywhere else. As EPA has declared the AERMOD model has been extensively 

tested and found to be appropriate for a wide variety of applications and it should not casually be 

discarded.

Response:

The EPA’s final position regarding the inadequacy of the NJDEP CALPUFF validation study to 

support the use of CALPUFF for this application has not changed. As part of our responses to 

NJDEP’s comments regarding the EPA assessment of their validation study, additional concerns 

have emerged that have strengthened the technical basis for that position, as described in more 

detail in our responses to NJDEP’s comments and in Appendix A of the final rule Modeling 

TSD.

The commenter appears to suggest that a model performance evaluation used in support of an 

alternative model demonstration under condition (2) of Section 3.2.2 of Appendix W must 

include ambient monitoring data focused on evaluating impacts from the facility for which the 

alternative model is being proposed. While we concur that alternative model performance 

evaluations conducted based on the facility for which the model is proposed would be more 

relevant and carry greater weight in judging the adequacy and appropriateness of the 

performance evaluation to support the use of the alternative model for that application, we do not 

agree that the language in Appendix W implies that to be a requirement. We note that such a 

narrow interpretation would effectively preclude the use of an alternative model for any 

application involving a new facility. As explained in more detail in our response to NJDEP 

comment #3.b, our assessment of NJDEP’s validation study acknowledges that the proximity of 

the Martin’s Creek field study to Portland and the fact that Portland was included as one of the 

sources impacting the ambient monitors sited on Scotts Mountain southeast of Martin’s Creek 

may add to the relevance of the study for this case. However, we also note that the main focus of 

the study, as reflected in where ambient monitors were located and meteorological data were 

collected, was clearly on the complex terrain impacts in the vicinity of Martin’s Creek emission 

units rather than Portland. A more detailed discussion of the issue is provided in our response to 

NJDEP comment #3.b.

The fact that the siting of the complex terrain ambient monitors included in the Martin’s Creek 

field study may have introduced a slight bias towards CALPUFF due to the similarities in the 

MPTER model used to identify areas of expected maximum concentrations is an interesting 

point that serves to further highlight the technical challenges associated with the design, 

implementation and analysis of field studies conducted for the purpose of evaluating model 

performance. However, we would not expect this potential issue to alter our conclusions in 
Page 49 of 181

relation to this validation study, and it would be difficult to demonstrate and quantify the 

existence of such a bias a posteriori. We also note that several AERMOD-like model options 

were used in the application of CALPUFF in NJDEP’s validation study, which could tend to 

undo any bias associated with monitor placement that might contribute to model performance 

statistics.

Commenter: D.M. Lohman

Comment:

The proposed new emission limits for the Portland Plant units 1 and 2 are based upon what is 

essentially a rollback from the maximum fourth highest 1-hour average concentration calculated 

from the single year of meteorological data available. Since the 1-hour standard is expressed as 

the 99th percentile averaged over three years the calculated emission limit is based upon the 

assumption that the fourth highest concentration in one particular year is not greater than the 

average fourth highest concentration for any three consecutive years in the future lifetime of the 

universe. While this may be true, it is equivalent to ensuring the protection and maintenance of 

the standard on the basis of a coin flip. It is true that the proposed emission limits will result in 

not exceeding the standard for the great majority of the time. Considering the uncertain nature of 

the protection of the 1-hour standard I suggest that, in an instance such as this, when there is only 

one year of meteorological data to model the source(s) in question that a more conservative 

estimate of the design concentration be used. It would be quite easy and reasonable to use the 

prosaic high-second-high concentration to establish the design concentration for the Portland 

Plant.

Response:

The final emissions limits must ensure that Portland’s significant contribution to nonattainment 

and interference with maintenance are eliminated. The EPA has determined that significant 

contribution to nonattainment and interference with maintenance will be eliminated if all 1-hour 

SO2 NAAQS violations in New Jersey (caused by Portland) are eliminated. To determine if 

modeled violations of the NAAQs exist and will be eliminated, modeling with one year of sitespecific data fulfills the requirements of Appendix W related to modeling demonstrations for 

compliance with the NAAQS. Therefore, the final rule AERMOD modeling was completed with 

one year of site-specific meteorology.

Another related issue is how variability in meteorology can be used to evaluate interference with 

maintenance. Modeling with additional years of meteorology could be evaluated to determine if 

higher concentrations could occur due to alternative meteorological conditions. However, in this 

case there is only a single year of site-specific meteorological data available. Therefore, the EPA 

evaluated the issue of meteorological variability by modeling five years of Allentown National 

Weather Service data. The EPA found the variability associated with the highest 3 year average 

period (from the 5 years) compared to the lowest one year period to be approximately 6 percent. 

When put into the emissions limit calculation, the 6 percent concentration variability translates 

into an additional approximate 1 percent emissions reduction (e.g., an 81 percent reduction in 

allowable emissions instead of an 80 percent reduction). However, the EPA is also using a 

relatively conservative estimate for background concentrations (which is also part of emissions 

limit calculation). In the final rule AERMOD modeling, the design value receptor had a modeled 

concentration from Portland units 1 and 2 of 855.4 ug/m3 with a background concentration of 
Page 50 of 181

39.3 ug/m3

. Reducing the background concentration to approximately 30 ug/m3 (which is still 

high compared to typical background concentrations measured at the nearby Columbia monitor 

in New Jersey) would have the effect of lowering the emissions control requirement by 

approximately 1 percent. Therefore, the EPA has concluded that use of a relatively conservative 

background concentrations is an appropriate way to account for variability in modeled 

concentrations that would otherwise be present of multiple years of meteorological data were 

available. See preamble sections IV.A.2, IV.B.2, and IV.C for further discussion on interference 

with maintenance. See the final rule Modeling TSD, Appendix C for more details on the 

meteorological variability analysis.

Commenter: UARG

Comment:

Limits on EPA’s authority to “develop a reasonable methodology for determining whether 

a section 126 finding should be made” (id. at 19666-19667): In those circumstances where 

EPA has the authority to entertain a section 126 petition (which it does not here), EPA should 

evaluate any data presented by the petitioner in support of its request for an EPA order. In 

considering any such data presented by the petitioner, EPA must seek input not only from the 

petitioning state, but also from other stakeholders, including the owners of targeted sources and 

the state(s) in which such sources are located.

Response:

The EPA evaluated the data presented by NJDEP and input from others, including the owner of 

the source and the state which was consider in draft the final rule. 

Commenter: E. Wade

Comment:

EPA’s model was more encompassing than NJDEP’s version. They used a fine receptor grid of 

100 m squares as well, showing concentrations of 811.8 ug/m3 that were directly attributable to 

the Portland Plant and slightly higher than that of the coarse grid. They also accounted for σw, 

which is standard deviation of vertical velocity fluctuation from actual weather data instead of 

AERMOD standard values. However, their data is older; if the actual σw is large, the plume 

could reach the ground earlier, creating higher concentrations close to the source and less overall 

dispersion. EPA could have improved their model by providing a range of concentrations based 

upon different conditions and their probable occurrence, such as wind speed, temperature, 

emissions that day, or atmospheric stability. In lieu of accounting for their more deterministic 

rather than probabilistic model, they could have made it more apparent that the singular measure 

used was the highest possible concentration and was chosen to be most conservative.

Response:

The EPA AERMOD modeling was very similar to the NJDEP AERMOD analysis, except for 

several adjustments to the meteorological data (including the use of SODAR sigma-w data). 

EPA used the same initial modeling domain with coarsely-spaced receptors as NJDEP to identify 

the potential areas of maximum modeled impacts. Due to differences in the spatial pattern of 

modeled impacts attributable to the EPA adjustments to the Portland meteorological data, there 

were some differences between the EPA and NJDEP finely-spaced (100 meter) receptor grids. 

The NJDEP 100 meter fine grid was limited to a 1 km by 1 km domain focused on the Delaware 
Page 51 of 181

Water Gap area where the peak impacts from the initial coarse grid were located. The EPA 100 

meter fine grid included two separate grids focused on the areas where peak impacts from the 

initial coarse grid were located, including a 1.5km by 1.5km grid focused on the Delaware Water 

Gap area and a 6k by 6km grid focused on the other area of peak impacts located northeast of 

Portland, with the Columbia monitor located near the center of the grid, Both the EPA and 

NJDEP AERMOD modeling used a single year of site-specific meteorology from the July 1993-

June 1994 time frame (which is the only available site-specific data). 

Both EPA and NJDEP ran AERMOD for a full year for each hour of the year with allowable 

emissions from Portland. This simulates the maximum impact from Portland emissions under all 

meteorological conditions that occurred during that particular year (which we assume is 

representative of other years). This accounts for thousands of different combinations of 

temperatures, wind speeds, wind directions, and atmospheric stability. In the modeling analysis, 

there is no variation in emissions because we ran the AERMOD with worst case emissions 

(allowable emissions) for every hour of the year. See the final rule Modeling TSD for more 

details on the EPA AERMOD modeling setup and results.

Commenter: E. Wade

Comment:

In proposing emission limits, they could have presented the requirements for each unit as a 

sliding scale, where emissions in Unit 1 are dependent on levels in Unit 2. This makes 

compliance easier for the plant. The EPA also failed to answer how additional uncertainty was 

accounted for. How do the SO2 concentrations relate to the PM2.5 concerns? Would changing 

the emission system at the Portland Plant create other problems for the nearby New Jersey 

community? What about specific pollution events that could increase concentrations downwind, 

such as the formation of an inversion layer?

Response:

See preamble section V.C for a discussion on combined emissions limits for units 1 and 2. This 

final rule only addresses NJDEP’s 126 petition for the 1-hour SO2 NAAQS and does not make 

any findings regarding the PM2.5 NAAQS. GenOn will be required to model the final 126 

compliance strategy to demonstrate that, after application of that compliance strategy, emissions 

from Portland will not significantly contribute to nonattainment or interfere with maintenance of 

the 1-hour SO2 NAAQS in New Jersey. Installation of control devices or modifications to the 

plant could cause an increase in other pollutants such as PM2.5 or NOX. If that occurred, GenOn 

would be required to address the other pollutants as part of a Prevention of Significant 

Deterioration (PSD) or New Source Review (NSR) requirement.

A full year of meteorology was modeled with allowable SO2 emissions for each hour. This 

accounts for all different combinations of meteorological conditions that may occur during the 

year, including inversions and other potentially worst case conditions. Also see Preamble section 

IV.A.2 for a discussion of how additional uncertainty related to meteorological variability was 

addressed in order to assess Portland’s potential interference with maintenance of the 1-hour SO2 

NAAQS in New Jersey.

Commenter: E. Wade
Page 52 of 181

Comment:

More than one year’s meteorological data should have been used to form the basis for their

modeling. More recent data would also have been more representative, and may also allow for 

the EPA to account for year-to-year variability. Their model could also have been calibrated to 

existing air monitoring data, or at least compared to measured levels to ensure their assumptions 

were relatively on track. In the same vein, the Columbia background monitor could have been 

used when not affected by Portland Plant emissions, as it is much closer to the area of concern 

and could give a better idea of true background levels of SO2. Other emission sources nearby 

could also have been explicitly modeled to better examine their contributions to the 

nonattainment of the NAAQS in New Jersey, as well as their input to background levels. 

Potentially, “what if” scenarios could have been run with the model, producing the worst case 

scenario should all sources of SO2 in the vicinity be exacerbated by certain weather conditions. 

The resulting information could be used to make more informed regulatory decisions. Finally, it 

is ambiguous why the EPA included Unit 5, a turbine at the Portland Plant, in their analysis. This 

unit contributes a fraction of a percent towards total emissions, and its effect on downwind 

concentrations of contaminants is almost negligible. Leaving out this portion of the analysis in 

the proposed rule would prevent the core issue of Units 1 and 2 from being clouded. 

Response:

There are several comments to address:

1) One year of site-specific meteorological data was used in the EPA and NJDEP AERMOD 

analyses because there is only one year of data available. Use of one year of site-specific data 

meets the requirements for modeling analyses in Appendix W, and Appendix W also 

expresses a clear preference for the use of site-specific meteorological data, when available, 

instead of National Weather Service (NWS) or other airport data. Therefore, the use of five 

years of more recent NWS data would not be considered as being more representative for this 

application than the one year of site-specific data for Portland.

2) The EPA used the recent measured ambient data at the Columbia monitoring station in New 

Jersey to compare against AERMOD modeled data. See preamble section IV.B.5 and 

Appendix B of the final rule Modeling TSD for more details on the Columbia data and 

analysis. 

3) In the final rule AERMOD modeling analysis, the EPA accounted for SO2 contributions from 

other sources by using a relatively conservative background concentration (derived from 

measured data at the Chester site in New Jersey). The Columbia monitoring site was not used 

in the development of background concentrations due to its short data record (less than one 

year).

4) The EPA modeled a full year of meteorology with allowable emissions and conservative 

background concentrations. We believe these conditions to represent worst case 

concentrations that may occur in any year. 

5) For completeness, the EPA included Portland unit 5 in the final analysis even though it does 

not impact the final remedy. The EPA did not include the smaller units 3 and 4 due to a lack

of emissions data.

Commenter: E. Wade

Comment:
Page 53 of 181

Another element that was lacking from the proposed rule was an explanation of why models 

were used to make remedial decisions instead of taking actual measurements of SO2 

concentrations. There was enough time between the petition submission by NJDEP and the 

proposed rule submission by the EPA to conduct actual measurements in the town in question. It 

was also ambiguous as to why NJDEP did not cite the measurements that put them in 

unattainment [sic]. However, in general the EPA’s modeling was done in a competent manner.

Response:

In the final rule, EPA does cite the recent SO2 measurements at the Columbia monitor in New 

Jersey. In its first year of operation there were 30 exceedances of the 1-hour SO2 NAAQS at the 

monitor located approximately 2 km from the Portland plant. NJDEP submitted a trajectory 

analysis which provides evidence that many of the exceedance days were caused primarily by 

emissions from Portland. The EPA also completed an analysis which compared AERMOD and 

CALPUFF modeling results to the measured data at the Columbia monitor. However, no amount 

of ambient data from a single monitor would be adequate to fully assess Portland’s significant 

contributions to nonattainment and interference with maintenance of the 1-hour SO2 NAAQS in 

New Jersey due to the significant spatial gradients of concentrations associated with impacts 

from the Portland emission units. Dispersion modeling is therefore the most appropriate 

approach for assessing ambient SO2 impacts from Portland emissions for this purpose. We also 

note that area designations have not been promulgated yet for the 1-hour SO2 NAAQS; therefore 

the areas in New Jersey being impacted by Portland SO2 emissions have not yet been designated 

as nonattainment. See preamble section IV.B.5 and Appendix B of the final rule Modeling TSD 

for more details on the Columbia data and modeling analysis.

Commenter: Keith Schmidt, Director, Environ-mental Policy, GenOn REMA LLC

Comment:

Ambient impacts are the product of source emissions and dispersion resulting from plume 

characteristics and meteorological conditions. Units 1 and 2 are not identical but exhibit 

relatively similar plume characteristics with their emissions released in proximity at nearly the 

same elevation. For example, GenOn could elect to operate only one of the two units (Unit 1 or 

Unit 2) during portions of this interim period to achieve progress toward compliance, while not 

exceeding the current emission limit for either unit (or the combined unit emission rate 

established, whichever is lower). To verify that this example results in approximately the same or 

a lower modeled design concentration (highest 99th percentile peak daily 1-hour maximum over 

all model receptors) than EPA’s proposed interim remedy, GenOn provides a modeling 

demonstration. See Appendix C. The results of the modeling prove the equivalency of full-load 

two unit and single unit operations at the proposed interim reduction or existing permit limits, as 

applicable. 

Response:

The EPA reviewed the GenOn modeling analysis and also completed a similar analysis. The 

GenOn analysis showed that unit 1 operating at its current allowable limit would lead to similar 

or better air quality than the proposed interim limit (which would have been imposed individual 

limits on both units 1 and 2). The analysis also showed that unit 2 operating at the combined 

limit would also lead to similar or better air quality in New Jersey. The EPA does not dispute the 

results of the GenOn analysis. However, the analysis is not relevant to the emissions limits set in 
Page 54 of 181

the final rule. The final rule interim limits are not based on specific improvements in air quality. 

They are based on emissions reductions that are equivalent to burning widely available Central

Appalachian coal, which will drive progress toward the final remedy. But since the interim 

limits are not based on specific air quality improvements, we agree that the interim limit can be 

in the form of a combined limit for units 1 and 2. See preamble sections VI.A.2 and VI.A.3. for 

more detailed discussion on availability of low sulfur coal and interim limits. 

The EPA conducted an additional analysis to examine a combined limit for the final emissions 

limits. Using the EPA final rule AERMOD setup, the EPA modeled the combined final rule 

emissions limit of 2,796 lbs/hr (1,105 lbs/hr for unit 1 plus 1,691 lbs/hr for unit 2) and found that 

the combined emissions emitted through unit 2 would not violate the NAAQS. But the same 

emissions emitted through unit 1 would violate the NAAQS. Therefore, the final emissions limit 

cannot be a combined limit because it would not be protective of the 1-hour SO2 NAAQS if all 

of the emissions were emitted through unit 1. See preamble section V.C. for a more detailed

response and see the final rule Modeling TSD for more information on the EPA modeling 

analysis.

Commenter: Keith Schmidt, Director, Environ-mental Policy, GenOn REMA LLC

Comment:

GenOn supports the use of AERMOD over CALPUFF to model the impact of Portland’s SO2 

emissions on New Jersey if the use of a dispersion modeling approach is ultimately selected. 

AERMOD is protective of air quality and more accurately identifies the projected impacts of 

Portland than CALPUFF, although AERMOD also overestimates actual concentrations. GenOn 

generally supports the modeling that EPA did in support of the Proposal but has some suggested 

revisions to the modeling procedures to more accurately evaluate Portland’s emissions impacts. 

On behalf of GenOn, AECOM reviewed both EPA’s and New Jersey's modeling and has 

provided specific comments on the modeling, which are attached as Appendix D. 

Response:

The EPA agrees that AERMOD is the appropriate model to use to set the emissions limits for the 

Portland plant in order to eliminate significant contribution to nonattainment and interference 

with maintenance in New Jersey. The EPA’s analyses indicate that AERMOD more accurately 

identifies projected impacts from Portland than CALPUFF. However, we do not agree that 

AERMOD overestimates actual concentrations. In order to identify modeled violations of the 1-

hr SO2 NAAQS and the requisite remedy, AERMOD was run with allowable emissions from 

Portland. It was necessary to run AERMOD with allowable emissions in order to calculate an 

enforceable emissions limit. Since Portland most often emits SO2 at rates well below allowable 

emissions, we would not expect the AERMOD results with allowable emissions to closely match 

observed concentrations at ambient monitors. 

The EPA performed an analysis to specifically compare AERMOD results to recent SO2 

measurements at the Columbia monitor in New Jersey and AERMOD performed quite well. See

preamble section IV.B.5. and Appendix B of the final rule modeling TSD for more details on the 

EPA Columbia monitor analysis. Additional responses to the comments in GenOn Appendix D 

are addressed below.
Page 55 of 181

Commenter: Michael L. Krancer, Secretary, PADEP

Comment:

The NJDEP submitted two different modeling analyses of the SO2 impacts from the Portland 

Plant on downwind areas in New Jersey. The first analysis used the AERMOD dispersion model 

and the second analysis used the CALPUFF dispersion model. EPA has determined that the 

AERMOD modeling analysis provides a more appropriate technical basis for the Section 126 

finding. 76 FR 19670. The DEP supports this conclusion and believes that AERMOD should be 

used for the modeling analysis. Additionally, CALPUFF is not the EPA-preferred model for 

near-field applications and NJDEP's petition fails to demonstrate that CALPUFF is the more 

appropriate model in this case. As a result, EPA's final Section 126 finding must be based on 

AERMOD, which is the superior application model.

Response:

The EPA agrees that AERMOD is the most appropriate model to be used for the technical basis 

for the section 126 finding. We also agree that NJDEP has failed to demonstrate that CALPUFF 

is the more appropriate model in this case. See preamble section IV.B.1. and Appendix A of the 

final rule Modeling TSD for more information on EPA’s evaluation of the use of AERMOD and 

CALPUFF for the section 126 petition.

Commenter: UARG

Comment:

Modeling done in support of New Jersey’s section 126 petition (id. at 19669-19672): The air 

quality models currently available for the assessment of compliance with the 1-hour SO2 

NAAQS – and the way in which EPA directs users to run those air quality models – can lead to 

predictions of air quality concentrations many times higher than those actually being measured in 

the ambient air. It is essential that EPA take steps to improve the models now recommended for 

use in assessing short-term SO2 concentrations and the inputs into those models.

Response:

The EPA is committed to continuing its efforts to improve the air quality dispersions models that 

are used to support assessment with compliance with the 1-hour SO2 and other NAAQS, and we 

regard the promulgation of the AERMOD in 2005 as a preferred model for near-field 

applications under Appendix W as a major accomplishment in the effort, significantly reducing 

the potential bias toward overestimating impacts in complex terrain settings as compared to 

previous models. The performance of the AERMOD model has been extensively validated, 

including a total of 17 field study datasets and has demonstrated very good agreement with 

observed concentrations of importance to compliance demonstrations across a wide range of 

terrain settings and source characteristics. As described in more detail in Appendix B of the EPA 

final rule Modeling TSD, we also have evidence directly supporting the ability of AERMOD to 

predict 1-hour SO2 impacts in New Jersey associated with emission from Portland.

We do acknowledge the fact that some aspects of the manner in which dispersion models are 

applied in support of NAAQS compliance demonstrations can lead to model predictions of 

ambient concentrations that may be much higher than measured concentrations at a specific

monitoring location and at specific times. In many such cases, the differences between modeled 

and observed concentrations can be directly attributable to the standard practice based on 
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guidance in Appendix W regarding the use of maximum allowable emissions in the modeling 

analysis, whereas the monitored concentrations will only reflect impacts associated with actual 

emissions. However, it is also important to recognize that other factors can affect the comparison 

of a modeled concentration with a monitored concentration, including the representativeness of 

the meteorological data input to the model. Another key factor that affects comparisons of 

modeled vs. monitored concentrations, paired in time and space, is the potential error or 

uncertainty in the wind direction input to the model for that specific hour since the wind 

direction will determine the transport direction of the plume. Slight errors in the transport wind 

direction may account for significant differences in modeled vs. monitored concentrations for a 

specific hour, especially for elevated plumes under stable atmospheric conditions where the 

lateral spread of the plume can be very limited for relatively long transport distances, and errors 

of a few degrees in wind direction can make the difference between the plume directly impacting 

the monitor for a particular hour or missing the monitor completely.

Commenter: Commissioner Bob Martin, NJDEP

Comment: 

EPA defines “significant contribution” in its proposal “as those emissions that must be 

eliminated to bring the downwind receptors in New Jersey affected by the Portland Plant into 

modeled attainment in the analysis year.” 76 Fed. Reg. 19,667. EPA also specifically seeks 

comment on its methodology with respect to the “interference with maintenance” prong of 

Section 126. Id. at 19,668. EPA is required to ensure sufficient emission reductions to ensure 

maintenance of NAAQS. See North Carolina v. EPA, per curiam, 531 F.3d 896, 910 (D.C. Cir. 

2008)(“[a]n outcome that fails to give independent effect to the ‘interfere with maintenance’ 

prong violates the plain language of section 110(a)(2)(D)(i)(I)”). EPA has an affirmative duty5 to 

regulate sources that contribute significantly to NAAQS exceedances in a nonattainment area or 

interfere with maintenance of NAAQS in an attainment area. See id. At 908.

Response: 

The final emissions limit was determined to be the emissions reduction needed to eliminate both 

significant contribution to nonattainment and interference with maintenance. In this case, EPA 

determined that a more stringent emissions limit was not needed to eliminate interference with 

maintenance due to the use of allowable emissions and relatively conservative background 

concentrations in the remedy modeling. See preamble sections IV.A.2, IV.B.2, and IV.B.4. for 

more detailed discussion on the elimination of interference with maintenance. 

Commenter: Commissioner Bob Martin, NJDEP

Comment: 

New Jersey agrees with EPA’s proposal that the emissions limit has to be assigned to each 

individual unit and cannot be a combined limit, see 76 Fed. Reg. 19,676, because NJDEP’s 

modeling predicted NAAQS violations from emissions at each coal unit. For the same reason, 

the emissions limit cannot be met by over controlling one unit, or by shutting down just one unit. 

Both units need to shut down or to operate with modern control measures that achieve at least 

95% control efficiency. However, shutting down one unit could be utilized as an interim 

measure.

Response: 
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The EPA agrees that final emissions limit cannot be a combined limit because it may not be 

protective of the NAAQS. EPA conducted an analysis to examine a combined limit for the final 

emissions limits. Using the EPA final rule AERMOD setup, the EPA modeled the combined 

final rule emissions limit of 2,796 lbs/hr (1,105 lbs/hr for unit 1 plus 1,691 lbs/hr for unit 2) and 

found that the combined emissions emitted through unit 2 would not violate the NAAQS. But 

the same emissions emitted through unit 1 would violate the NAAQS. Therefore, the final 

emissions limit cannot be a combined limit because it would not be protective of the 1-hour SO2

NAAQS if all of the emissions were emitted through unit 1. See preamble section V.C. for a 

more detailed response and see the final rule Modeling TSD for more information on the EPA 

modeling analysis.

As explained in other responses and in the preamble, the EPA does not agree that Portland needs 

to achieve a 95 percent reduction in allowable emissions. In the final rule, the EPA is setting the 

emissions limit to require an 81 percent reduction in allowable emissions.

The EPA agrees that the interim emissions limit can be a combined limit between units 1 and 2. 

The interim limit is not based on specific air quality reductions and can therefore be achieved by 

reducing emissions from one or both units. In the final rule we have set an interim SO2 limit of 

6,253 lbs/hr that is based on the combined emissions between units 1 and 2. 

Commenter: Commissioner Bob Martin, NJDEP

Comment: 

The modeling results are corroborated by recent monitoring. A SO2 air quality monitor located 

1.2 miles northeast of the coal-fired Portland Power Plant in Knowlton Township, Warren 

County, New Jersey at the Columbia Lake Wildlife Management Area began operation in 

September 2010. Between September 23, 2010 and June 6, 2011, the monitor measured 1-hour 

SO2 concentrations that exceeded the 1-hour SO2 NAAQS threshold on 18 days. These 

monitoring results are also consistent with the results of NJDEP’s and EPA’s modeling analyses, 

showing a good correlation between the modeling analyses and the monitoring data.

Response: 

The EPA agrees that the Columbia monitoring data corroborates the NJDEP and EPA’s 

AERMOD modeling for the section 126 rule. The EPA conducted an analysis which compared 

AERMOD and CALPUFF modeling results to the measured data at the Columbia monitor. The 

AERMOD modeling compared favorably to the Columbia measured data. However, the 

CALPUFF model results significantly over-predict the measured concentrations. See preamble 

section IV.B.5 and Appendix B of the final rule Modeling TSD for more details on the Columbia 

data and modeling analysis.

Commenter: Commissioner Bob Martin, NJDEP

Comment: 

NJDEP also performed a trajectory analysis to evaluate the cause of the high monitored 

concentrations that exceeded the 1-hour SO2 NAAQS during four episodes when concurrent 

hourly emissions data was available. See Analysis of the Sulfur Dioxide Measurements from the 

Columbia Lake NJ Monitor, March 4, 2011, Bureau of Technical Services, Division of Air 

Quality, NJDEP. The analysis found that Portland Power Plant Units 1 and 2 were the cause of 
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each high SO2 episode at the monitor. NJDEP submitted the results of the monitor and its 

trajectory analysis to EPA.

Response: 

The EPA agrees that the trajectory analysis supports the conclusion that SO2 emissions from 

Portland contribute to violations of the 1-hour SO2 NAAQS in New Jersey. See preamble section 

IV.B.5 and Appendix B of the final rule Modeling TSD for more details on the EPA’s analysis of 

Columbia data and modeling.

Commenter: Commissioner Bob Martin, NJDEP

Comment: 

NJDEP’s AERMOD modeling utilized a meteorological dataset that has been historically used in 

regulatory applications to model emission sources at Portland. However, EPA made several 

modifications to this meteorological data when it modeled Portland’s emissions. Some of EPA’s 

modifications are unsupported and may result in the impacts of emissions from the Portland plant 

being under-predicted.

Response: 

We believe that the adjustments made to the Portland site-specific meteorological data are 

technically justified and consistent with current EPA guidance regarding site-specific 

meteorological monitoring. We also believe that additional analyses conducted by the EPA based 

on compared AERMOD modeled concentrations with ambient concentrations from the Columbia 

monitor tend to corroborate those adjustments. See preamble section IV.B.2 and Appendix B of 

the final rule Modeling TSD for more details on comments related to EPA’s meteorological data 

adjustments.

Commenter: Commissioner Bob Martin, NJDEP

Comment: 

There is a natural variation in the meteorological conditions at a site from year to year. The 

predicted AERMOD concentrations used for the proposed remedy were based on meteorological 

conditions that occurred during one year (July 1, 1993 to June 30, 1994). However, there is a 

very high likelihood that use of another year’s meteorological conditions in the modeling would 

produce higher predicted SO2 concentrations. Given the uncertainty and the range of 

meteorological conditions from year to year, it is recommended that a margin be added to any 

remedy based on AERMOD to ensure maintenance of the NAAQS. Requiring 95% reduction 

provides such a margin to ensure protection of health. Without an adequate safety margin built 

into the required reduced emission rates, NAAQS violations could continue depending upon the 

meteorological conditions of different year(s).

Response: 

Modeling with additional years of meteorology could be evaluated to determine if higher 

concentrations could occur due to alternative meteorological conditions. However, in this case 

there is only a single year of site-specific meteorological data available. Therefore, the EPA 

evaluated the issue of meteorological variability by modeling five years of Allentown National 

Weather Service data. The EPA found the variability between the individual year with the 

lowest modeled design value and the 5-year average modeled design value was about 6 percent. 
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When put into the emissions limit calculation, the 6 percent concentration variability translates 

into an additional approximate 1 percent emissions reduction (e.g. an 82 percent reduction in 

allowable emissions instead of an 81 percent reduction). However, the EPA is also using a 

relatively conservative estimate for background concentrations (which is also part of the 

emissions limit calculation). In the final rule AERMOD modeling, the design value receptor had 

a modeled concentration from Portland units 1 and 2 of 855.4 ug/m3

, including a monitored 

background concentration of 39.3 ug/m3. Reducing the background concentration to 

approximately 30 ug/m3 (which is still high compared to typical background concentrations 

measured at the nearby Columbia monitor in New Jersey) would have the effect of lowering the 

emissions control requirement by approximately 1 percent, essentially cancelling out the effect 

of increased modeled contributions due to meteorological variability. Therefore, the EPA has 

concluded that use of relatively conservative background concentrations is an appropriate way to 

account for variability in modeled concentrations that would otherwise be present if multiple 

years of meteorological data were available. See preamble sections IV.A.2, IV.B.2, and IV.C for 

further discussion on interference with maintenance. See the final rule Modeling TSD, Appendix 

C for more details on the meteorological variability analysis.

Commenter: Keith Schmidt, Director, Environ-mental Policy, GenOn REMA LLC

Comment: 

GenOn supports the use of AERMOD over CALPUFF to model the impact of Portland’s SO2 

emissions on New Jersey if the use of a dispersion modeling approach is ultimately selected. 

AERMOD is protective of air quality and more accurately identifies the projected impacts of 

Portland than CALPUFF, although AERMOD also overestimates actual concentrations. GenOn 

generally supports the modeling that EPA did in support of the Proposal but has some suggested 

revisions to the modeling procedures to more accurately evaluate Portland’s emissions impacts. 

On behalf of GenOn, AECOM reviewed both EPA’s and New Jersey's modeling and has 

provided specific comments on the modeling, which are attached as Appendix D.

Response: 

The individual comments included in Attachment D of GenOn’s comments are addressed later.

Commenter: Keith Schmidt, Director, Environ-mental Policy, GenOn REMA LLC

Comment: 

For data taken through mid-May 2011, at the Columbia, NJ monitor, over 75% of the monitored 

values are reported as exactly zero (or below the minimum detection limit of the monitor), with 

the next highest values at 3 ppb. Given the lack of values between the zero and 3 ppm range, it 

would be reasonable to interpret the reported zero values as actually being at a value somewhere 

between 0 and 3 ppb. A south-southwest wind transports the plumes from Portland directly to the 

Columbia, NJ monitor, as shown in Figure 1. Wind roses of site-specific sodar data presented by 

New Jersey indicate that winds from Portland (within a 90-degree sector) blow toward the 

monitor nearly 30% of the time. Therefore, non-zero monitored values due to emissions from 

Portland could be expected for nearly 30% of the hours, but they actually occur less than 30% of 

the time, and the remainder of the monitored hours can be interpreted as background. This 

indicates that the true background concentration that should be used in modeling is between 0 

and 3 ppb, or virtually zero. The values obtained from the Chester, NJ monitor, even with the 

Portland impacted hours removed, represent a conservative component of the total modeled 
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impact, ranging from 4 to 19 ppb with an average of 8 ppb. This represents an overestimate of 

the background concentration ranging from 15 to 20 μg/m3.

Response: 

We disagree with the comment that the true background concentration that should be included in 

the modeling for Portland is between 0 and 3 ppb, based on the following factors. Given the 

relatively short transport distance of about 2 kilometers from Portland to the Columbia, NJ 

monitor, we believe that using the frequency of winds within a 90-degree sector is likely to 

overestimate the percentage of hours that Portland emissions would be expected to impact the 

Columbia monitor, although we also note that the correlation between the frequency of winds 

from the southwest and the number of hours with non-zero concentrations at the Columbia 

monitor is quite high. In addition to the width of the sector, this analysis overlooks the fact that 

elevated plumes emitted under stable atmospheric conditions are likely to be transported over the 

Columbia monitor before dispersing enough to impact the ground, and also neglects the 

possibility that background concentrations attributable to other sources could be associated with 

sources upwind of Portland relative to the Columbia monitor and may therefore be reflected in 

the non-zero monitored concentrations in addition to the impacts from Portland. Although 

contributions at the Columbia monitor from other sources are likely to be relatively small 

compared to impacts from Portland, due to the higher emissions and closer proximity of 

Portland, we are not aware of any evidence that clearly discounts any possible contributions from 

such sources. As shown in Figure 4 of the proposed rule Modeling TSD, nearly all of the other 

major emission sources (with SO2 emissions greater than 100 tons/year based on the 2005 NEI 

v2) within 50 kilometers of Portland are located southwest of Portland and would therefore have 

the potential to contribute to monitored concentrations at the Columbia monitor during the same 

periods that Portland is impacting the monitor. The fact that monitored concentrations are close 

to zero for those hours when the monitor is not impacted by Portland is consistent with the lack 

of any major SO2 sources upwind of the monitor for those periods.

Furthermore, as explained in more detail in the EPA final rule Modeling TSD, one aspect of our 

assessment of the appropriateness of the background monitored concentration included in the 

EPA cumulative modeling analysis for Portland is the potential contribution of Portland to 

interference with maintenance of the 1-hour SO2 NAAQS in New Jersey due to meteorological 

variability, which could not be accounted for explicitly in our modeling analysis due to only one 

year of site-specific meteorological data being available. We therefore agree in general with the 

comment that actual background concentrations in the areas of New Jersey that are impacted by 

Portland emissions is relatively low, but also believe that use of a somewhat conservative 

estimate of background concentrations based on a three-year period of record from the Chester, 

New Jersey monitor is appropriate for this analysis in order to account for meteorological 

variability in relation to Portland’s interference with maintenance of the 1-hour SO2 NAAQS.

Commenter: Keith Schmidt, Director, Environ-mental Policy, GenOn REMA LLC

Comment: 

As discussed below in Section II.D and F, GenOn suggests some changes to the approaches for 

the NAAQS compliance modeling for the proposed remedy, which results in an emission 

reduction of 80.5% from current allowable SO2 emission rates; equivalent to a lb/MMBtu 

emission rate of about 0.68 at full load operations. The remedy modeling indicates a 99th 
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percentile (4th highest) peak daily 1-hour maximum concentration of about 139.0 μg/m3 at the 

monitoring site,13 which is more than 70% of the peak value modeled anywhere (about 194.5 

μg/m3). Due to the near-zero SO2 background measured at the monitor, and assuming that 

virtually all of the measured SO2 at the monitor (especially for the highest concentrations) is due 

to emissions from Portland, it is possible to determine the monitored concentrations that would 

have been detected for various remedy emission rates. These can then be compared to the 

modeled results to determine whether AERMOD is providing a level of conservatism in its 

Exhibit 11 to the May 2010 NJDEP Section 126 Petition filing, available at 

http://www.state.nj.us/dep/baqp/petition/Exh%2011%20Portland_met_field.pdf; see Figures 3 

and 4. The nearest receptor is at location 494300 Easting and 4530400 Northing, NAD83, Zone 

18. We have already noted that the regional background concentration already provide an overprediction level of about 15-20 μg/m3. For a target SO2 emission rate (at full load conditions) 

equivalent to 0.68 lb/MMBtu, the linearly adjusted monitored values over a period of over six 

months result in a highest and second highest16 adjusted 1-hour concentrations of about 120.2 

and 103.5 μg/m3, respectfully [sic]. These values are well below the modeled result (including 

background) of 139.0 μg/m3, which represents the 4th highest daily peak 1-hour maximum. This 

comparison indicates that the AERMOD modeling approach results in an overestimate of the 

concentrations derived from “rolling back” the monitored values. In fact, a rollback using an 

SO2 emission rate equivalent to 0.9 lb/MMBtu results in a second highest peak daily 1-hour 

maximum adjusted monitor value of 136.9 μg/m3, which is still below the modeled result for the 

remedy case mentioned above.

The comparison of modeling to monitor noted here indicates that a modeling approach described 

by EPA with slight modifications recommended by GenOn would be protective of air quality. In 

fact, the comparisons suggest that seasonal variations in the SO2 emission rates as high as 0.9 

lb/MMBtu could be protective of air quality and the 1-hour SO2 NAAQS. 

http://www.njaqinow.net/Default.aspx

http://camddataandmaps.epa.gov/gdm/index.cfm?fuseaction=emissions.wizard. For a 6-month 

period, the 99th percentile day would be the second highest day. EPA’s implementation 

guidance is finalized, Portland will propose either a modeling or monitoring approach to 

demonstrate compliance with the 1-hour SO2 NAAQS. Compliance remedies for Portland will 

be addressed after the final rule is published through the submittal of a protocol.

Response: 

GenOn describes an analysis based on scaling of Columbia monitoring data which purportedly 

indicates that the AERMOD modeling approach used by the EPA as the basis for determining 

the remedy necessary to eliminate Portland’s significant contribution to nonattainment and 

interference with maintenance of the 1-hour SO2 NAAQS in New Jersey is overly conservative. 

This conclusion is based on inferences made about the monitored concentrations that would be 

expected under various remedy emission rates using the Columbia monitoring data. 

From the description provided in GenOn’s comments, it appears that the hourly monitored values 

at Columbia were scaled by the ratio of the final remedy emission rate of 0.68 lb/mmBtu divided 

by the actual lb/mmBtu emission rate from the hourly CEMS data in order to estimate what the 

monitored concentration would be based on the final remedy, i.e., 
Page 62 of 181

CHIremedy = CHIobs * (0.68 lb/mmBtu/CEMS lb/mmBtu)

where

CHIremedy = estimated hourly concentration at monitor after final remedy

CHIobs = observed hourly concentration at monitor

Since the lb/mmBtu emission level is generally independent of operating load, unlike the lb/hr 

emission rate, this is a reasonable approach for adjusting monitored values to reflect future 

emission reductions. 

Although the analysis presented in the comment is a reasonable approach to estimating what 

impact the final remedy would have on monitored concentrations, due to the fact that monitored 

concentrations reflect impacts from actual emissions, the adjusted concentrations will also be 

representative of actual concentrations after application of the final remedy, and therefore could 

be biased to underestimate the final remedy modeling which is based on allowable emissions. 

However, when the contribution from monitored background of about 26 μg/m3 is removed from 

the final remedy concentration modeled at the Columbia monitor, the modeled contribution from 

Portland units 1 and 2 is about 112 μg/m3, which is very consistent with the highest and second 

highest adjusted 1-hour concentrations of about 120.2 and 103.5 μg/m3

, respectively. Since the 

second highest daily maximum 1-hour value represents the 99th percentile for the 6 months of 

monitoring data analyzed by GenOn, the ratio of the modeled design value to the monitored 

design value (after adjusting for the final remedy) is about 1.08, which is very consistent with 

other analyses that the EPA has performed indicating very good agreement between AERMOD 

modeled and monitored concentrations at the Columbia monitor.

Commenter: Keith Schmidt, Director, Environ-mental Policy, GenOn REMA LLC

Comment: 

In support of the Proposal, EPA conducted its own modeling using AERMOD and corrected 

many of the deviant modeling procedures used by New Jersey in the modeling for the Petition. 

GenOn supports EPA’s selection of the AERMOD model if modeling the ground-level SO2 

concentrations due to Portland’s emissions is the selected approach for demonstrating 

compliance with the NAAQS. As noted in a review of New Jersey’s Section 126 petition that 

was provided by GenOn to EPA in December 2010, the selection of CALPUFF as the preferred 

dispersion model for this modeling application is not justified for the reasons summarized below. 

-The database used to justify New Jersey’s use of CALPUFF is not appropriate because

the monitors are over 10 km from Portland and they are not located in the areas nearby

Portland where CALPUFF predicts the peak impacts.

- The contention that “complex winds” necessitate the use of CALPUFF is not borne out 

by the finding that the peak impacts from both CALPUFF and AERMOD are within 2

km of PGS that occur with “line-of-sight” impacts featuring steady-state plume

trajectories over the short distances involved. EPA guidance clearly indicates that

AERMOD is the appropriate model for such impacts.
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-The meteorological database New Jersey used for CALPUFF has no observation stations 

within the computational domain. The lack of any observation stations in the CALPUFF 

computational domain calls into question whether the meteorological database is 

adequate for this modeling application.

- Even though the Martins Creek Evaluation Study is not designed or approvable for

evaluating model performance applicable to Portland, we find that reasonable statistical

assessments of the study data show that AERMOD’s performance is nearly unbiased, and 

that CALPUFF consistently over-predicts. Importantly, the peak predictions by the two 

models are within about 20% of each other, further illustrating the lack of need for

alternative modeling approaches.

Response: 

The EPA generally concurs with the commenter’s assessment of NJDEP’s justification for the 

use of CALPUFF for this application. However, as discussed above in response to a comment 

from D.M. Lohman and further explained in our response to NJDEP’s comment asserting that 

the EPA invoked a higher standard regarding approval of CALPUFF as an alternative model in 

this application than provided for in Appendix W, we do not agree that the provisions in Section 

3.2.2 of Appendix W require that a performance evaluation in support of an alternative model 

justification must be conducted specifically for the facility being considered in the regulatory 

modeling application. On the other hand, we certainly recognize that the relevance of a 

performance evaluation for such purposes would likely be much greater in that case, and that the 

relevance of the field study for the “given application” must be considered as part of the overall 

assessment of the adequacy of an alternative model demonstration.

Commenter: Keith Schmidt, Director, Environ-mental Policy, GenOn REMA LLC

Comment: 

We agree with and accept the EPA modifications to the assignment of the sodar measurement 

heights for purposes of AERMOD modeling.

Response: 

The EPA agrees with GenOn’s assessment that the height adjustments are appropriate in this 

application. See preamble section IV.B.2 for further discussion on the EPA meteorological data 

adjustments.

Commenter: Keith Schmidt, Director, Environ-mental Policy, GenOn REMA LLC

Comment: 

EPA decided to exercise a new (beta) version of AERSURFACE to determine the surface 

characteristics for input to AERMET. Due to the extensive availability of wind, temperature, and 

turbulence data from the tower and sodar data, it is unlikely that the parameterizations of these 

variables would be substantially altered by the change in surface characteristics. Therefore, we 

agree with EPA’s approach.

Response: 
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The EPA agrees with GenOn’s assessment that the use of the new version of AERSURFACE is 

appropriate in this application. See preamble section IV.B.2 for further discussion on the EPA 

meteorological data adjustments.

Commenter: Keith Schmidt, Director, Environ-mental Policy, GenOn REMA LLC

Comment: 

An ENSR technical paper that compares tower and sodar meteorological variables across several 

monitoring projects very similar to the one at Portland indicates good correlation between the 

sodar and tower data for wind direction, wind speed, and sigma-w, but not for sigma-theta.EPA 

revised its guidance in a later version of the same document, which is still in effect today.22 This 

version indicates that use of sodar sigma-w is now acceptable for regulatory modeling. 

Therefore, we agree with EPA’s recent review of the available guidance and use of the sodar 

sigma-w in the current modeling analysis.

Response: 

The EPA agrees with GenOn’s assessment that the use of the sigma-w data is appropriate in this 

application and the use of sigma-theta data is not. See preamble section IV.B.2 for further 

discussion on the EPA meteorological data adjustments.

Commenter: Keith Schmidt, Director, Environ-mental Policy, GenOn REMA LLC

Comment: 

EPA decided to omit the 30-m tower turbulence data due to the fact that they “may be influenced 

by local shear-induced turbulence that would not be representative of turbulence profiles at that 

measurement height within the valley.” We do not have the same concern that EPA has because 

both the tower and the plant sites are generally unobstructed by obstacles or trees. Although EPA 

noted that omission of these values would not materially affect the modeling results, there are 

some hours for which the turbulence data is missing from the tower 100-m level and the sodar is 

missing, so that EPA is omitting the only source of turbulence data available to AERMOD. We 

therefore request that EPA reinstate the use of the 30-m tower turbulence data in the modeling.

Response:

We disagree with GenOn’s recommendation to include the 30-meter turbulence data due to the 

concerns regarding the 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. Due to the narrowness and depth of the valley in the vicinity of Portland, there is a 

potential for terrain-induced turbulence at a level of 30-meter level above ground within the 

valley, especially for cross-valley flows in the direction of maximum modeled impacts from 

Portland in New Jersey. Measurements taken from the actual tower location at those heights 

would not reflect such terrain-induced turbulence, which is one of the main factors in our 

concern regarding representativeness of the 30-meter tower-based turbulence data. The fact that 

the tower site and valley locations are generally unobstructed by surface obstacles is not relevant 

to this concern regarding terrain-induced turbulence.
Page 65 of 181

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.

Commenter: Keith Schmidt, Director, Environ-mental Policy, GenOn REMA LLC

Comment: 

We concur with EPA’s approach for using a backup station (Dulles, VA) for upper air data input 

to AERMET.

Response: 

The EPA agrees with GenOn’s assessment that the use of the Dulles, VA meteorological data as 

a backup station in AERMET is appropriate in this application. See preamble section IV.B.2 for 

further discussion on the EPA meteorological data adjustments.

Commenter: Keith Schmidt, Director, Environ-mental Policy, GenOn REMA LLC

Comment: 

We note that with the use of the 99th percentile statistic, the added background concentration will 

be higher than the actual value most of the time, adding a considerable degree of conservatism to 

the background concentration EPA-454/R-99-005 (2000); available at 

http://www.epa.gov/ttn/scram/guidance/met/mmgrma.pdf. In fact, as discussed above, the 

monitoring data from the Columbia, NJ site installed in 2010 by New Jersey shows that the 

background concentrations are at or very near zero most of the time.

The important issue here is that the periods for which the monitor is impacted by the source in 

question (in a 90-degree upwind sector centered on Portland) should be removed from the 

determination of the background concentration look-up tables. Our review of the EPA 

procedures indicates that EPA did not remove these hours from consideration. We request that 

the background concentration look-up tables be redone after removing hours for which Portland 

is upwind, as noted above. The resulting background concentrations will still be higher than 

those indicated by the Columbia, NJ monitoring data.

Response:

We have addressed concerns regarding the conservatism of the monitored background 

component of the EPA modeling conducted to determine an appropriate remedy for Portland in 

our responses to other comments, indicating our acknowledgement of some degree of 

conservatism as well as our rationale that such conservatism is appropriate in this case to 

adequately account for meteorological variability in relation to Portland’s interference with 

maintenance of the 1-hour SO2 NAAQS in New Jersey. With those factors in mind, we do not 

take issue with the approach described in the comment of removing those periods from the 

selected background monitor for which the monitor may be impacted by emissions from Portland 

in other contexts, and further acknowledge that the approach described in the comment is 
Page 66 of 181

consistent with guidance in Section 8.2 of Appendix W for demonstrating compliance with 

NAAQS in support of PSD permit applications. 

We also note that 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 SO2 NAAQS in New Jersey.

Commenter: Keith Schmidt, Director, Environ-mental Policy, GenOn REMA LLC

Comment: 

The Portland Unit 1 and 2 stack parameters used by EPA and New Jersey were obtained for 

Units 1, 2, and 5 from data sets on a CD submitted by Reliant Energy Portland, L.L.C.entitled 

“Dispersion Modeling File Archive Revised NAAQS and PSD Increment for SO2 and 23 

“Summary of 1-Hour SO2 Monitoring Data from the Columbia Monitor in Warren County, New 

Jersey” (New Jersey, 2011). Available at http://www.regulations.gov/#!documentDetail;D=EPAHQ-OAR-2011-0081-0005. Available at 

http://www.epa.gov/ttn/scram/Additional_Clarifications_AppendixW_Hourly-NO2-

NAAQS_FINAL_03-01-2011.pdf. This information is approximately 10 years old and needs to 

be updated due to:

-Updated physical measurements of the stack height and diameter.

-Review of continuous emissions monitoring data for stack gas flow rate and temperature.

During 2001, stack inspections and maintenance work, as well as new stack measurements, 

resulted in minor changes to the physical stack dimensions, as noted below. These stack 

dimension changes were provided to PADEP in 2002 for a proposed 800-MW expansion of the 

Portland Generating Station for which the permit application was subsequently withdrawn.

The updated Portland stack parameters summarized in Table 1 feature the following updates.

-The Unit 1 stack height was reduced by 24 inches, and the Unit 2 stack height was reduced by 4 

inches (both reduced from the original 400-ft heights).

-The inside stack diameters at the top of the stack for Portland Units 1 and 2 were revised to 3.15 

and 3.84 m, respectively.

-Median flow rates and temperatures obtained from 2010 hourly emissions monitoring data26 for 

Portland Units 1 and 2 have been used to provide updates for the exit velocity and temperature.

Response: The EPA has updated the final rule modeling to include the stack parameters 

submitted by GenOn. The final rule emissions limits are based on modeling of these parameters.

2. Comments on the EPA’s Assessment of the CALPUFF Validation Study

Commenter: Commissioner Bob Martin, NJDEP provided a detailed response to EPA’s 

assessment of their CALPUFF Validation Study in Appendix A, “Response to EPA’s 

Comments on the CALPUFF and AERMOD Validation Study”, submitted with NJDEP’s 

June 13, 2011 comments on EPA’s proposed rule to grant New Jersey’s September 17, 2010 
Page 67 of 181

Section 126 petition regarding the Portland Generating Station (Portland). A summary of 

the comments and the EPA responses is provided in this section.

Comment: 

1. EPA’s Summary Points in Section II.F of the Technical Support Document

EPA rejected the New Jersey Department of Environmental Protection’s (NJDEP) proposed use 

of CALPUFF based on EPA’s review of NJDEP’s submitted validation study. EPA’s assessment 

of NJDEP’s model validation study is discussed in Section II.B (Model Selection) of the April 7, 

2011 Federal Register. Additional details of EPA’s review are given in the document Air Quality 

Modeling Technical Support Document: NJ 126 Petition of September 17, 2010 (referred to as 

the TSD through the remainder of this appendix). The reasons why EPA rejected NJDEP’s 

proposed use of CALPUFF are summarized in Section II.F on page 18 of the TSD (Summary of 

EPA’s Analysis of the NJEDP Modeling). NJDEP’s response to each of the alleged deficiencies 

is given below.

EPA Point #1 – ‘NJDEP’s use of the CALPUFF model instead of EPA’s preferred model for 

near-field applications, AERMOD, is based on a claim that CALPUFF was shown to have 

performed better and produced predictions of greater accuracy than AERMOD’ based on a 

single model validation study focused on the nearby Martins Creek plant.’

NJDEP Response #1.a - Better performance by a model in a single validation study meets the 

requirements in 40 CFR Part 51, Appendix W paragraph 3.2.2 regarding the use of an 

alternative model such as CALPUFF. NJDEP’s use of CALPUFF was based on paragraph 

3.2.2.b (condition 2) of the regulations. Paragraph 3.2.2.b (condition 2) states the alternative 

model such as CALPUFF may be approved for use when the following has been met; 

‘(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.’

This statement refers to a single statistical performance evaluation, not multiple evaluations. On 

page ten of the TSD, EPA accurately summarizes what needs to be done under condition 2.

“Condition (2) relies solely on a demonstration that the alternative model has been shown to 

perform better than a comparable Appendix A model, and does not entail a demonstration that 

the preferred model (AERMOD in this case) is inappropriate for the application.”

NJDEP’s model validation study is a demonstration that CALPUFF performs better than 

AERMOD for this given application.”

Response to #1.a:

The two key issues raised in NJDEP’s comment related to the EPA’s rejection of their proposed 

use of the CALPUFF model to support their petition are the number of performance evaluations 

that are necessary to satisfy the alternative model provisions of Appendix W and the 

interpretation of the criterion that an alternative model “performs better” than the preferred 

model. Appendix W establishes the following requirement for acceptance of an alternative model 

under condition (2) of Section 3.2.2: “if a statistical performance evaluation has been conducted 

using measured air quality data and the results of that evaluation indicate the alternative model 
Page 68 of 181

performs better for the given application than a comparable model in Appendix A.” Appendix 

W does not establish a minimum number of field study evaluations needed to meet this 

requirement, and EPA’s assessment of the CALPUFF validation study does not imply one. On 

the other hand, it would be inappropriate to interpret the phrase “a statistical performance 

evaluation” as implying that the statistical performance evaluation is necessarily limited to a 

single field study. A statistical performance evaluation for a proposed model may, and typically 

does, include multiple evaluation datasets, and it goes without saying that the confidence in an 

alternative model demonstration will depend in some measure on the amount of evidence 

provided, as well as the confidence that can be placed in the evidence.

The fact that the Portland was one of the emission sources included in the Martin’s Creek field 

study could suggest that evaluation results based on this particular field study are especially 

relevant to modeling applications for the Portland, and should therefore be given greater weight 

in judging the relative performance of models in this case. There is some merit in this argument, 

and we acknowledged in our assessment of the validation study that the proximity of the 

Martin’s Creek field study to the Portland Plant may add to its relevance in this case. However, 

the fact that AERMOD has been extensively validated, including a total of 17 field study datasets 

with at least 5 datasets involving elevated or complex terrain, also holds some weight in 

assessing the overall performance of AERMOD relative to an alternative model. 

In addition, Section 3.2 of Appendix W does not explicitly define the meaning of “performs 

better,” but states that:

For condition (2) in paragraph (b) of this subsection, established procedures and 

techniques 15 16 for determining the acceptability of a model for an individual case based 

on superior performance should be followed, as appropriate. Preparation and 

implementation of an evaluation protocol which is acceptable to both control agencies

and regulated industry is an important element in such an evaluation. 

Reference 15 is EPA’s protocol for determining the best performing model (EPA, 1992), often 

referred to as the Cox-Tikvart protocol based on the authors of the protocol, which was used as 

the basis for EPA’s evaluation of AERMOD prior to its promulgation.1

The Cox-Tikvart protocol establishes statistical methods and metrics that are appropriate for 

evaluating model performance, including a bootstrap resampling approach that can be used to 

objectively determine whether differences in performance between two models are statistically 

significant. The 1992 protocol provides the following explanation regarding the statistical 

comparison of model performances (page 13): 

 

For each pair of model comparisons, the significance of the model comparison measure 

depends upon whether or not the confidence interval overlaps zero (0). If the confidence 

interval overlaps zero, the two models are not performing at a level which is statistically 

different. If the confidence interval does not overlap zero (upper and lower limits are both 

 1 EPA, 1992. Protocol for Determining the Best Performing Model. EPA-454/R-92-025. U.S. 

Environmental Protection Agency, Research Triangle Park, NC, available at: 

http://www.epa.gov/ttn/scram/guidance/guide/modleval.zip
Page 69 of 181

negative or both positive), then there exists a statistically significant difference between 

the two models at the stated level of confidence.

The only interpretation of “performs better” that is logically consistent with the intent of this 

section in Appendix W and EPA’s own protocol for determining the best performing model is 

this test of statistically significant differences in model performance, and the key question at 

issue here is whether the validation study conducted by NJDEP adequately demonstrated that 

CALPUFF performs “significantly better” than AERMOD for this application in a statistical 

sense. Based on this interpretation, any reference to whether an alternative model “performs 

better” than the preferred model or “performs significantly better” should be read as “performs 

better in a statistically significant sense.”

NJDEP’s CALPUFF validation study indicates on page 17 that “the statistical measures from 

this document [EPA, 1992] have been included in the model validation.” One of the statistics 

recommended in the Cox-Tikvart protocol is the Composite Performance Measure (CPM). The 

CPM represents a composite “score” of model performance and is determined based on a 

combination of fractional bias statistics across several components of the model evaluation for a 

particular model. The NJDEP study reported CPMs of 0.405 and 0.521 for CALPUFF and 

AERMOD, respectively, where a smaller value of CPM indicates “better” model performance. 

However, NJDEP did not apply the bootstrap resampling approach to determine confidence 

intervals for the CPMs, or for the Model Comparison Measure (MCM) which is defined as the 

difference between CPMs for a pair of models. Although NJDEP did report confidence intervals 

on some individual aspects of the model performance based on bootstrap resampling of the 

predicted and observed concentrations, most of those comparisons were based on approaches 

that are not appropriate for evaluating model performance, as explained in more detail below. In 

summary, the NJDEP validation study did not provide the objective metrics described in the 

Cox-Tikvart protocol that could be used to determine whether the CALPUFF model performance 

is significantly better than AERMOD for this application in a statistical sense.

As discussed in the proposed rule modeling TSD, there are several aspects of the evaluation 

procedures used by NJDEP in their CALPUFF validation study that EPA has taken issue with, 

such as the varying choices of the number of samples (N) for calculating robust highest 

concentrations (RHCs), the use of residuals (ratios of predicted to observed concentrations) 

based on results paired by rank, and the inclusion of the AMS8 monitor in the model-to-monitor 

comparisons. However, even if those issues are set aside and NJDEP’s validation study is 

accepted at face value, their validation results do not support the contention that CALPUFF 

performs significantly better than AERMOD on this dataset in a statistical sense. We base this 

assessment on the only statistical model performance comparison included in the NJDEP 

validation study that would be appropriate to use to assess whether one model is performing 

significantly better (statistically) than the other model, namely the confidence limits on the 

fractional bias (FB) results based on the time series of network peak 1-hour values (paired in 

time), shown below (presented as Figure 10 in the NJDEP validation study):
Page 70 of 181

These statistical evaluation results based on the network peak 1-hour time series serve as part of 

the diagnostic component of the evaluation rather than the operational component because they 

examine hourly modeled vs. observed results paired in time instead of focusing on the peaks of 

the concentration distributions. Both models show little overall bias in this comparison, with 

FBs of -0.022 for CALPUFF and -0.083 for AERMOD (note that negative FB indicates 

overprediction based on the formula used by NJDEP). Although the FB for CALPUFF is closer 

to 0 (zero) than AERMOD, the 95% confidence intervals of FB for CALPUFF and AERMOD 

overlap, indicating that the difference in performance between the two models is not statistically 

significant. This is comparable to the confidence intervals for model comparison measure 

crossing zero in the explanation cited above from the Cox-Tikvart protocol. In fact, NJDEP 

acknowledges this interpretation of Figure 10 on page 30 of their validation report stating that 

“[t]he model output also shows that the two models’ network 1-hour time series FBs are not 

significantly different from each other.” These statistical results based on the network peak 1-

hour time series are also consistent with the general impression given by the Q-Q plots shown in 

Figure 8 of NJDEP’s validation report of similar overall performance between CALPUFF and 

AERMOD with both models showing generally good agreement with observations. Therefore, 

setting aside the technical issues associated with the evaluation methodology, these model 

evaluation results provided by NJDEP do not meet the threshold of demonstrating that 

CALPUFF performs “significantly better” than AERMOD in a statistical sense based on this 

particular field study evaluation. 

-0.15

-0.1

-0.05

0

0.05

0.1

0.15

CALPUFF AERMOD

Fractional Bias

Network 1-Hour Peak Time Series Fractional Bias with 95% Confidence Limits
Page 71 of 181

It should also be noted that the FB results included in this figure based on the network peak 1-

hour time series analysis were computed based on the average predicted vs. average observed 

concentrations across the full period of the field study, with a minimum value of 16 μg/m3 being 

assigned to all monitored or modeled concentrations that were less than 16 μg/m3, which is 

considered to be the detection limit for the SO2 monitors. Since the fractional bias is computed 

based on the average concentration rather than paired 1-hour values, the aspect of pairing results 

in time for this analysis is only relevant from the perspective of the bootstrap resampling 

conducted to determine confidence limits on the results, such that the temporal pairing of 

predicted vs. observed concentrations is preserved in the resampling of the results. The fact that 

the FB comparisons from the network peak 1-hour time series analysis are actually computed 

based on average concentrations also diminishes the relevance of these results in terms of 

assessing the performance of these models for predicting the peak of the distribution of hourly 

concentrations which is an important aspect of the operational evaluation.

The other statistical comparisons cited by NJDEP as indicating that CALPUFF performs better 

than AERMOD, including the network 1-hour ranked FBs that were also included in Figure 10 

and the 1-hour FBs by atmospheric stability in Figure 11 of the NJDEP study, were based on 

bootstrap resampling from distributions of predicted vs. observed concentrations paired by rank. 

Bootstrap resampling from a distribution of concentrations paired by rank is not meaningful and 

would likely lead to very small confidence intervals since data pairs from ranked distributions 

are likely to show much less scatter than data pairs from distributions paired in time. This is 

evident from a comparison of the network peak 1-hour ranked FB results shown below (also 

included in Figure 10 of NJDEP’s validation study) with the network peak 1-hour time series FB 

results shown above. The fact that the confidence intervals do not overlap for the ranked FB 

results is simply an artifact of an inappropriate use of bootstrap resampling from distributions of 

predicted/observed concentrations paired by rank, and provides no information relevant to 

determining the relative performance of these models.
Page 72 of 181

Since NJDEP’s CALPUFF validation study lacked several elements of the Cox-Tikvart protocol, 

EPA conducted an independent assessment of the performance of CALPUFF vs. AERMOD for 

the Martin’s Creek field study based on a full application of the Cox-Tikvart protocol for 

determining the best performing model using the modeled and observed evaluation data provided 

by NJDEP. This assessment was also based on inclusion of the AMS8 “stack top” monitor and 

the use of NJDEP’s meteorological categories, two aspects of the NJDEP evaluation protocol 

that EPA objected to in the proposed rule modeling TSD. Using a value of N=26 to determine 

the Robust Highest Concentrations (RHC), as recommended in the Cox-Tikvart protocol, the 

CPM for CALPUFF based on this independent assessment was 0.313, and the CPM for 

AERMOD was 0.277. These results show slightly “better” performance for AERMOD than for 

CALPUFF, but the difference between the CPMs is smaller than the difference reported by 

NJDEP. As mentioned above, the CPM combines model performance results from the 

operational component and the diagnostic component of the evaluation protocol into a single 

metric as an indicator of model performance, and a lower value of CPM indicates better 

performance. 

To examine the sensitivity of these model performance metrics to different values of N for the 

RHC calculation, EPA also applied the evaluation protocol based on values of N = 15 and N = 8 

for comparison. Note that the software used to generate these model performance metrics allows 

the user to specify the value of N for use in all of the RHC calculations for a particular study, but 

does not allow separate values of N to be specified for different components as was done by 

NJDEP (see further discussion below regarding NJDEP’s use of different values of N). The 

-0.25

-0.2

-0.15

-0.1

-0.05

0

0.05

0.1

0.15

0.2

0.25

CALPUFF AERMOD

Fractional Bias

Network 1-Hour Ranked Fractional Bias with 95% Confidence Limits
Page 73 of 181

model comparison measure (MCM) results for this independent assessment are presented in 

Figure 1. 

Figure 1. Model Comparison Measure for Martin’s Creek Evaluation without 

PRIME Downwash in CALPUFF (MCM < 0 means AERMOD performs better than 

CALPUFF)

A value of 0.0 for MCM indicates that the CPM is the same for each model, a value of MCM 

less than 0.0 in this case indicates that AERMOD performs “better” than CALPUFF and a value 

of MCM greater than 0.0 indicates that CALPUFF performs “better” than AERMOD. In either 

case, if the confidence interval crosses 0.0, the difference in performance between the two 

models is not statistically significant at the 90% confidence interval. Figure 1 shows that 

AERMOD performs slightly better than CALPUFF for N=26 and N=15, but CALPUFF 

performs slightly better for N=8. However, the confidence intervals on the MCMs cross 0.0 in 

all cases indicating that differences in model performance are not statistically significant at the 

90% confidence level. Similar to the fractional bias results for the network peak 1-hour time 

series reported by NJDEP, the results from EPA’s independent assessment based on the CoxTikvart protocol are consistent with the general impression given by the Q-Q plots included in 

NJDEP’s validation report. 
Page 74 of 181

As noted above, direct application of the Cox-Tikvart protocol using the evaluation data 

provided by NJDEP resulted in CPM values of 0.277 for AERMOD and 0.313 for CALPUFF, 

which are significantly different than the values reported in NJDEP’s CALPUFF Validation 

Study of 0.521 for AERMOD and 0.405 for CALPUFF. One of the key factors contributing to 

this difference in CPM values was the varying values of N that NJDEP used in calculating the 

RHC values for the various components of the model evaluation. However, another important 

difference in terms of the methodology employed by NJDEP became apparent as a result of these 

additional comparisons. As mentioned above, the CPM reflects a combination of the operational 

component of the evaluation, based on the highest individual monitor’s observed 3-hr and 24-hr 

RHCs vs. the highest individual monitor’s modeled 3-hr and 24-hr RHCs (unpaired in space), 

and the diagnostic (or scientific) component, based on the individual monitor’s observed 1-hr 

RHCs vs. the individual monitor’s modeled 1-hr RHCs (paired in space) for each of the 

meteorological categories used to group the results. Although the diagnostic component of the 

evaluation is intended to be applied for each individual monitor (paired in space) based on the 

Cox-Tikvart protocol, the NJDEP evaluation combined all “complex terrain” monitors together 

as one group and treated the AMS8 monitor separately as a “stack top” monitor (since it is 

located at approximately the same elevation as the Martin’s Creek stack tops). In this approach, 

NJDEP used the highest observed RHC across the seven complex terrain monitors vs. the highest 

modeled RHC across the complex terrain monitors, unpaired in space, as representing the 

diagnostic component of the evaluation for the complex terrain monitors. By weighting the 

seven complex terrain monitors as a group equally with the single stack-top monitor, the 

approach taken by NJDEP for the diagnostic component of the evaluation effectively gives much 

greater weight to the model comparison metrics for the AMS8 “stack top” monitor than for any 

of the seven individual complex terrain monitors. The AMS8 monitor had been used solely to 

account for background concentrations in the original evaluation of the AERMOD model, and 

was not the main focus of the field study. Therefore, placing much greater weight on this 

monitor is clearly an unwarranted and unacceptable deviation from the standard protocol for 

evaluating model performance for this field study.

Using NJDEP’s approach to the diagnostic component of the evaluation of treating the complex 

terrain monitors as a single group resulted in CPM values (based on N=26) of 0.558 for 

AERMOD and 0.352 for CALPUFF, as compared to CPM values of 0.277 for AERMOD and 

0.313 for CALPUFF using the approach recommended in the Cox-Tikvart protocol. While the 

CPM for CALPUFF improved by about 10 percent using each complex terrain monitor, the CPM 

for AERMOD improved by about 50 percent. This comparison serves to highlight the potential 

impact that subtle changes in model evaluation methodology can have on model evaluation 

metrics, and further undermines NJDEP’s claim that their validation study shows CALPUFF 

performance as superior to AERMOD’s for this field study.

As a result of a more detailed review of the modeling files used by NJDEP in their CALPUFF 

validation study, conducted as part of the EPA’s application of the Cox-Tikvart protocol using 

the evaluation data provided by NJDEP in order to respond to NJDEP’s comments on the EPA 

assessment of their validation study, the EPA identified another technical issue related to 

NJDEP’s CALPUFF validation study. Namely, NJDEP used the "ISC Type" downwash option 

in CALPUFF instead of the PRIME downwash option when applying CALPUFF for the Martin's 

Creek validation study, although the CALPUFF input file included the necessary building input 
Page 75 of 181

parameters to run the PRIME option. The AERMOD modeling results for Martin’s Creek used 

for comparison were based on the PRIME downwash algorithm. Although 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 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. Note that other “AERMOD-like” options in CALPUFF were 

appropriately selected in NJDEP’s evaluation, including MDISP=2, MCTURB=2, and MPDF=1. 

Although EPA had not explicitly addressed the status of the PRIME downwash option within 

CALPUFF prior to NJDEP’s validation study, in part because CALPUFF is not the preferred 

model for near-field applications, it is reasonable to expect that if EPA were to approve the use 

of CALPUFF in the near-field, we would require the use of the PRIME option if downwash were 

considered to be important. Based on analyses of the CALPUFF model performance based on 

the use of the PRIME downwash algorithm, CALPUFF exhibits a greater tendency to 

overestimate concentrations at Martin’s Creek with the PRIME downwash option as compared to 

the ISC-Type downwash option, with some deterioration in the model performance metrics. 

More details regarding these additional analyses related to the effect of the PRIME downwash 

option on CALPUFF model performance are provided in Appendix A of the EPA final rule 

Modeling TSD. 

Comment: 

“NJDEP Response #1.b - EPA also uses the EPA September 26, 2008 clarification memo as 

justification for rejecting the use of CALPUFF. However, the EPA September 26, 2008 memo 

‘Technical Issues Related to CALPUFF Near-field Applications’ has little or no applicability to 

the proposed use of CALPUFF under Appendix W, paragraph 3.2.2b (condition 2).

On page 11 of the TSD, EPA states the following: “These technical issues identified in the 

September 2008 clarification memo are generally applicable to the use of CALPUFF as an 

alternative model in near field applications under condition (2) or (3), and inform our 

assessment of the appropriateness of CALPUFF for this application.”

The issues discussed in this memo, which is Attachment I of this appendix, apply to the use of an 

alternative model following paragraph 3.2.2b (condition 3), not condition 2. Pages 4-12 of the 

memo discuss in detail the requirements of paragraph 3.2.2(e). As the beginning of paragraph 

3.2.2(e) notes, its requirements only apply to a model validation based on condition 3. It is not 

applicable to NJDEP’s proposed use of an alternative model based on condition 2.

The remainder of the September 26, 2008 memo discusses complex wind determinations, 

specifically Appendix W, paragraph 7.2.8 (Complex Winds). However, even here the discussion 

on the use of CALPUFF is tied to meeting the requirements of paragraph 3.2.2(e). The memo 

states that setup and application of CALPUFF in complex wind is a case-by-case situation and 

must be “consistent with the limitations of paragraph 3.2.2(e).” As stated earlier, paragraph 

3.2.2(e) clearly applies to model validations based on paragraph 3.2.2(b) (condition 3), not 

condition 2. Regardless, the existence of complex wind fields at this location is not in question. 

This fact was acknowledged by EPA in their proposed adjustment to measured winds above 100 

meters as discussed in Appendix B of the TSD.”
Page 76 of 181

Response:

As explained in the proposed rule Modeling TSD, EPA issued a memo on August 13, 2008 

providing “Clarification on Regulatory Status of CALPUFF for Near-field Applications,” such as 

the application under review here. The August 2008 memo specifically addressed the use of 

CALPUFF for near-field applications under Section 7.2.8 of Appendix W on “Complex Winds” 

subject to the limitations and requirements for use of alternative models under condition (3) that 

are addressed in paragraph 3.2.2(e). EPA later issued additional guidance related to the 

application of CALPUFF for near-field situations in a memo dated September 26, 2008 on 

“Technical Issues Related to CALPUFF Near-field Applications.” The September 26, 2008 

memo provides a detailed discussion on each of the main components involved in addressing the 

appropriateness of CALPUFF for use in near-field applications under Section 7.2.8 for complex 

winds, and also identified several specific technical issues and concerns regarding the limitations 

of the CALPUFF /CALMET modeling system to adequately simulate the 3-dimensional wind 

and temperature fields at a fine enough resolution to give confidence in the results, which are 

generally applicable to the use of CALPUFF as an alternative model in near field applications 

under condition (2) or condition (3). 

The September 26, 2008 memo referenced in NJDEP’s response was not a “clarification memo” 

as suggested by NJDEP. Although the use of CALPUFF as an alternative model to address 

“complex winds” under Section 7.2.8 of Appendix W was clearly the main focus of the August 

13, 2008 clarification memo regarding the regulatory status of CALPUFF for near-field 

applications, and the organization of the September 26, 2008 memo was also oriented toward the 

use of CALPUFF to address complex wind situations under condition 3 in paragraph 3.2.2(e) 

consistent with all past cases where CALPUFF had been considered for near-field applications, 

the technical issues discussed in Section 4.2, ‘Applicability to the Problem’, and Section 4.3, 

‘Availability of Necessary Data Bases’, of the September 26, 2008 memo are broadly applicable 

to the use of CALPUFF in near-field applications under any of the alternative model criteria in 

Section 3.2.

Contrary to NJDEP’s assertion, EPA has not acknowledged the existence of “complex winds” in 

this case, as defined in Section 7.2.8 of Appendix W. EPA’s and NJDEP’s own modeling 

analyses show that the controlling modeled impacts are associated with line-of-sight plume 

impacts for which a steady-state model is appropriate. The adjustments made to the Portland 

site-specific meteorological data were made to address concerns regarding the representativeness 

of the data for dispersion modeling of Portland emissions due to differences between the base 

elevation of the met tower and the base elevation of the stacks. The mere fact that wind 

directions vary with height is not evidence that non-steady-state complex winds are important to 

determining modeled design values, but may raise questions regarding the representativeness of 

the meteorological data for a particular application. The atmosphere is inherently complex in 

terms of the temporal and spatial patterns of wind, temperature and other properties, and in that 

sense one could easily make an argument for “complex winds,” interpreted broadly, in nearly 

every case. However, the issue of complex winds in terms of dispersion modeling in accordance 

with Appendix W guidance is associated with the relative importance of specific complex wind 

patterns, such as mountain/valley drainage flows and valley channeling of winds, lake/sea breeze 

circulations, and stagnation conditions, to the proper assessment of modeled concentrations for 
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purposes of comparison to the NAAQS that would not be adequately accounted for by a steadystate model.

Comment: 

“EPA Point #2 – “NJDEP’s validation of the CALPUFF model using the Martins Creek field 

study data showed very similar model performance of CALPUFF vs. AERMOD based on the 

QQ plots and other components of the evaluation. However, a close examination of key 

assumptions incorporated in their analysis, especially the deviation from standard practice on the 

number of data samples used in the calculation of RHCs and the use of predicted/observed ratios 

paired by rank, rather than paired in time, in the residual analysis, raises questions regarding 

some of the statistical model performance measures used to support their claim that CALPUFF 

performs better than AERMOD based on this particular field study database.

NJDEP Response 2.a - Although both CALPUFF and AERMOD’s performance appear similar 

in the Q-Q plots that include all data, NJDEP’s use of exploratory data analysis techniques 

(residual plots) and standard statistical measures (Boot program output) demonstrated that 

AERMOD was found to be biased towards under-prediction. As is discussed later in the 

appendix, Q-Q plots binned as a function of atmospheric stability are a more meaningful 

measure of model performance and can be used to further evaluate the models’ performance. 

In the peer review of the Model Validation Kit (MVK) and the ASTM (American Society Testing 

and Material) model validation protocol, Cooper2

In EPA’s document, AERMOD: Latest Features and Evaluation Results (EPA,2003), it is stated 

‘For the other nondownwash data sets (Kinkaid SO2, Lovett, Baldwin, Clifty Creek, Martins 

Creek, and Westvaco), where the sampler array was not sufficiently dense to arrange the data in 

arcs, residual plots by distance were not meaningful.’ Therefore, Cooper’s suggested change to 

separate data by distance is not possible with the Martins Creek data set. However, it was 

possible to arrange the 1-hour SO2 data by stability regimes as was done using the MoninObukov length (L) following the same methodology outlined in the NJDEP CALPUFF validation 

study (NJDEP, 2010). Figure 1 below illustrates the results of this analysis.

(1999) questions the statistical validity of Q-Q 

plots and suggested the following: ‘Two (related) changes are required so that the pooling of 

data used in Q-Q plots can be justified on a theoretical basis. These changes are to restrict the 

pooling to data from the same distance and stability regime as is done in the ASTM 

methodology. Once the observations and modeled results have been separated into 

distance/regime categories then the values within these categories could be reordered for Q-Q 

plots using the same justification as is used in ASTM. The resulting plots would obviously be 

expected to have a spread of data points somewhere between the existing scatter and Q-Q plots.’ 

From the Q-Q plots in the figure it becomes obvious that AERMOD’s predicted concentration 

distribution during measured unstable and neutral hours is biased towards under-prediction. 

This confirms what NJDEP’s exploratory data analysis techniques and standard statistical 

measures demonstrated in the submitted model validation. AERMOD’s distribution of 

concentration during neutral and unstable conditions never crosses the 1 to 1 line. For the 

unstable category, AERMOD’s distribution at the upper end drops below the factor of 2 from 

observed line. However, the opposite is true of AERMOD’s distribution for the stable category. 

During stable conditions, AERMOD is biased towards over-prediction with a large portion of 

 2 Cooper, N.,S, 2001. A review of evaluation procedures for atmospheric dispersion models. 

International Journal of Environment and Pollution, 16, pp116-128.
Page 78 of 181

the distribution exceeding the factor of 2 observations line. CALPUFF shows the same tendency 

to over-predict during all stability regimes.

EPA’s contention that AERMOD and CALPUFF show very similar concentration distributions 

focused solely on the comparison of each model’s overall concentration distribution Q-Q plots 

and discounted the other statistical results submitted by NJDEP in the model validation study. 

The newly generated Q-Q plots in Figure 1 indicate poor model performance for AERMOD in 

complex terrain around Martins-Creek when the concentration distributions are pooled by 

stability regime.”

Figure 5. Q-Q plots of 1-hour Network-wide SO2 for Martin’s Creek Based on 

Meteorological Category (based on Figure 1 (from Appendix A to NJDEP’s 

Comments).”

Response:

Figure 1 of NJDEP’s comments (shown above as Figure 5) provides Q-Q plots by stability 

category, which NJDEP asserts demonstrate that AERMOD is biased toward underprediction. 

Note that the axes in these Q-Q plots appear to be reversed; the vertical axis should be the

predicted concentrations and the horizontal axis should be the observed concentrations 

(otherwise the plots would suggest that CALPUFF significantly underpredicts). Pooling of data 
Page 79 of 181

in Q-Q plots by stability class is an appropriate method to diagnose potential biases in model 

performance, and EPA has routinely generated Q-Q plots by stability in past model performance 

evaluations. However, Cooper’s peer review cited in NJDEP’s comment appears to be focused 

primarily on model validation procedures appropriate for intensive field studies, such as Prairie 

Grass, and are less relevant for more limited field studies such as Martin’s Creek. This is 

suggested by Cooper’s earlier statement in the same peer review that “Whilst QQ plots show 

model performance there is no theoretical justification for independently ordering the model and 

observational data in this way. Normally even for the highest values the model and observations 

are taken from different experiments. (For instance, in Figure 2 of Carruthers et al, 1998, the 

highest 10 model concentrations are from a completely different 10 experiments than the highest 

10 observations.)” Cooper seems to have misunderstood the role of Q-Q plots as part of the 

operational component of model validation studies (i.e., those aspects of model performance that 

are most relevant to the operational application of the model), where the ability of a model to 

estimate the peak of the concentration distribution, unpaired in time and space, is clearly relevant 

and justified.

As noted above and described in more detail in Appendix A of the EPA final rule Modeling 

TSD, a technical flaw affecting all of the CALPUFF evaluation results for Martin’s Creek is the 

fact that NJDEP used the ISC-Type option within CALPUFF to account for building downwash, 

rather than the PRIME downwash option. Additional analysis of CALPUFF model performance 

indicates that CALPUFF exhibited a greater tendency to overestimate concentrations for 

Martin’s Creek under stable conditions when the PRIME downwash option was used. 

Comment: 

“NJDEP Response #2.b - NJDEP’s selection of the values of N used to define the Robust High 

Concentration (RHC) had a clear technical basis and represents an improvement in the 

accuracy of this statistical metric over past practices.

The RHC for modeling validation purposes is first defined in the paper A Statistical Procedure 

for Determining the Best Performing Air Quality Simulation Model3 (Cox and Tikvart, 1990). It 

is later defined in EPA’s guidance document, Protocol for Determining the Best Performing 

Model (USEPA, 1992). Both define the RHC as follows:

RHC = X(N) + [X – X(N)] [Ln((3N-1)/2)]

where:

X(N) = Nth highest value

X = average of the N-1 highest values

N = number of values exceeding a threshold value

On pages 12, 18, 36-38 of the TSD, EPA discusses the changes that were made by NJDEP to the 

validation procedures contained in EPA’s document, Protocol for Determining the Best 

Performing Model (EPA, 1992). EPA alleges that these changes were made with no clear 

technical basis or clear objective criteria for selecting a value for N. EPA indicates that setting 

 3 Cox, W. and J. Tikvart, 1990: A statistical procedure for determining the best performing air 

quality simulation model. Atmos. Environ., 24A, 2387-2395.
Page 80 of 181

N=26 is ‘standard practice’ that has been used in the past and therefore must be used here for 

consistency. NJDEP disagrees for the following reasons.

N Value of 26 is not Standardized

The Cox and Tikvart 1990 paper contains the statement, ‘[t]he value of N is arbitrarily chosen to 

be equal to 26 but may be lower when there are fewer concentrations exceeding the threshold 

value.’ In EPA’s guidance document Protocol for Determining the Best Performing Model 

(USEPA, 1992) the following is stated: ‘The value of N is nominally set equal to 26 so that the 

number of values averaged is arbitrarily 25.’ Webster’s Dictionary defines arbitrary as ‘based 

on or determined by individual preference or convenience rather than by necessity or the 

intrinsic nature of something.’ Nominal is defined as ‘of, being, or relating to a designated or 

theoretical size that may vary from the actual: approximate.’ It is obvious the authors of these 

documents were not recommending a universal or standardized use of N as 26.”

The 2003 validation study, AERMOD: Latest Features and Evaluation Results (EPA, 2003), also 

acknowledges that the selected value of N can vary and the use of 26 is not standardized. 

Footnote 1 on Table 2 is the following: “The Robust Highest Concentration (RHC) is a statistical 

estimator for the highest concentration. It is determined from a tail exponential fit to the high end 

of the frequency distribution of observed and predicted values. The number of points used for the 

fit is arbitrary, but usually ranges between 10 and 25” (emphasis added). NJDEP is aware of 

other peer reviewed studies that have used N values other than 264

In addition, EPA has never given guidance or specified that use of N=26 is “standardized” when 

calculating a RHC. The selection of N=26 is arbitrary and has been made as a matter of 

convenience. There is no statistical basis for believing that use of N=26 will produce accurate 

RHCs.

(Hurley, 2006).

“Technical Basis for Selection of N:

The technical basis and objective criteria used for the selection of N was to produce a RHC that 

best represented a smoothed estimate of the highest concentration based on an exponential fit to 

the upper tail-end of the concentrations. Therefore, N was selected so that it included all values 

that best represent this exponential upper-end distribution of concentrations. This selection 

criteria [stet] is based on the original definition of the RHC and later discussions of its use (Cox 

and Tikvart, 1990; EPA, 1992; Perry, et.al., 2005).

Visual review of the highest concentrations in a given data set will usually show a discernible 

pattern where the slope of concentration values rise rapidly in an exponential fashion. Inclusion 

of only these concentrations at the upper end of the concentration distribution will result in a 

RHC value that most closely represents the true RHC. The value where the concentrations 

begin their rapid rise represents the threshold value discussed in the RHC equation given 

earlier (emphasis added).

 4 Hurley, P., J., 2006. An evaluation and inter-comparison of AUSPLUME, AERMOD, and 

TAPM for seven field datasets of point source dispersion. Clean Air and Environmental Quality, 

40, 45-50.
Page 81 of 181

Contrary to what is stated on page 38 of the TSD, the overall number of samples in the large 

data sets used by NJDEP will not influence the selection of N. The value of N is determined by 

the number of samples defining the upper-end distribution of concentrations. By applying the 

objective criteria discussed, the value selected for N will more often result in the calculation of 

an accurate RHC (emphasis added). There is no technical basis for the recommendation in the 

TSD to standardize the use of N=26.”

Response:

NJDEP provides a lengthy discussion to support their position regarding the selection of varying 

values of N in calculating RHCs based on “objective criteria.” A key assumption in their 

discussion of this issue is that “the value where the concentrations begin their rapid rise 

represents the threshold value discussed in the RHC equation given earlier.” While we 

acknowledge that the definition of RHC provided by Cox-Tikvart indicates that the selection of 

N should generally represent the “upper end of the concentration distribution,” we find no 

technical basis for NJDEP’s interpretation of the “threshold value” referenced in the Cox-Tikvart 

definition of the RHC. In fact, the Cox-Tikvart definition of the RHC (EPA, 1992) states the 

following: “The value of N is arbitrarily chosen to be equal to 26 but may be lower in cases 

where there are fewer concentrations exceeding the threshold value. Whenever N < 3, the RHC 

statistic is set equal to the threshold value where the threshold is defined as a concentration 

near background which has no impact on the determination of the robust highest 

concentration” (emphasis added).

NJDEP’s interpretation of the threshold value as being “the value where the concentrations begin 

their rapid rise” is not consistent with the Cox-Tikvart explanation of the threshold value, and the 

approach used by NJDEP to adjust the value of N for individual elements of the evaluation 

represents a significant departure from the Cox-Tikvart protocol. It should be noted that all 

monitored values in the Martin’s Creek field study were adjusted to remove the background 

contribution, and none of the cases included concentrations among the top 26 values that were 

“near background.” Furthermore, it is unclear how this interpretation could be applied as an 

objective criterion. For example, how rapid does the rise in concentrations need to be to 

determine the threshold? Is there a specific slope in concentrations that can be used to 

objectively define “rapid rise”? If so, is the slope computed between adjacent points or is it 

averaged across several points? What if the distribution includes more than one point where the 

concentrations exhibit a rapid rise? NJDEP provided no discussion regarding any of these issues 

in relation to their interpretation of the threshold value, and also provided no explanations 

justifying the specific values of N chosen for any of the individual cases.

NJDEP also makes much of the term “arbitrary” regarding the value of N in the definition of the 

RHC. There is clearly no disputing the fact that N is in some respects “arbitrary” and that values 

of N other than 26 may sometimes be warranted and justified. However, we do not accept the 

notion that the value of N is entirely arbitrary. The clear purpose of the RHC metric is to 

mitigate “the undesirable influence of unusual events.” These “unusual events” are generally 

more likely to occur with long term field studies associated with operational plants, such as the 

Martin’s Creek study, due in part to the typically limited number of monitors. Such outliers 

clearly show up in the Q-Q plots from the Martin’s Creek study where differences of 50% or 

more occur between the first highest observed value and the rest of the distribution in some 
Page 82 of 181

cases. NJDEP’s comments also make reference to “the true RHC” and “an accurate RHC.” In 

our view there is no such thing as a “true RHC” or an “accurate RHC” based on a given 

distribution of monitored or modeled concentrations. As explained on page 8 of the Cox-Tikvart 

protocol , “because the highest concentration value is subject to extreme variations, the robust 

highest concentration is preferable in this analysis because of its stability,” where the RHC 

“represents a ’smoothed’ estimate of the highest concentration.” 

NJDEP’s use of varying values of N and the term “entirely arbitrary” in relation to the value of N 

is at odds with the motivation for the EPA developing a protocol for determining the best 

performing model, which, as described in Appendix W was “to assist in developing a consistent 

approach when justifying the use of other-than-preferred modeling techniques recommended in 

the Guideline. The procedures in this protocol provide a general framework for objective 

decision-making on the acceptability of an alternative model for a given regulatory application. 

These objective procedures may be used for conducting both the technical evaluation of the 

model and the field test or performance evaluation (emphasis added).” NJDEP’s use of the RHC 

metric based on various values for N could be considered as somewhat “arbitrary and contrary to 

the notion of a “consistent approach” cited in Appendix W. It replaces the use of “objective 

procedures” that are needed as the basis for “objective decision-making” with an approach that is 

dependent on somewhat subjective determinations of that portion of the concentration 

distributions that should be used in calculating RHCs. Despite our concerns regarding the 

approach taken by NJDEP in selecting different values of N to use in calculating RHCs for 

various distributions of observed and modeled concentrations, we do acknowledge that the 

selection of N=26 is at least somewhat arbitrary, which is consistent with our interpretation that 

there is no “true RHC.” NJDEP’s results based on varying values of N and EPA’s analysis of 

RHCs using different values of N summarized above serve to highlight a point that may deserve 

further consideration in terms of “robustness” of the RHC metric as a tool for use in making 

objective determinations of model performance. Perhaps the use of an average RHC across a 

range of values for N may provide a more “stable” and meaningful statistical metric, especially 

when used with more limited field studies such as the Martin’s Creek study where “unusual 

events” and “extreme variations” are more likely to occur than for more intensive field studies 

with controlled tracer releases and denser receptor grids. For example, based on the comparison 

of predicted vs. observed RHCs for Martin’s Creek across a range of values for N shown in 

Table A.1 of the EPA’s proposed rule modeling TSD, the following table shows 

predicted/observed ratios based on averaged RHCs for AERMOD of 0.99 and 0.97 for 3-hr and 

24-hr averages, respectively, compared with predicted/observed ratios based on averaged RHCs 

for CALPUFF of 1.23 and 1.17 (the shaded rows highlight the values of N used by NJDEP for 

these RHCs). Note that these RHCs are based on “network-wide” 3-hour and 24-hour results 

including the AMS8 monitor, but do not include PRIME downwash in CALPUFF.
Page 83 of 181

Comparison of Predicted vs. Observed RHCs averaged across range of N for Martin's 

Creek

Observed CALPUFF AERMOD

3-hr; N=8 659.0 720.2 570.0

3-hr; N=11 613.3 711.7 604.2

3-hr; N=15 587.5 757.7 605.5

3-hr; N=26 556.6 785.5 609.4

Average RHC 604.1 743.8 597.3

Pred/Obs Ave RHC 1.23 0.99

Observed CALPUFF AERMOD

24-hr; N=8 165.6 215.1 161.4

24-hr; N=11 162.5 202.4 169.5

24-hr; N=15 162.5 193.1 166.7

24-hr; N=26 187.0 183.7 158.1

Average RHC 169.4 198.6 163.9

Pred/Obs Ave RHC 1.17 0.97

As stated elsewhere, these results based on average RHCs show generally good agreement 

between modeled and observed concentrations for both AERMOD and CALPUFF, but with 

AERMOD showing somewhat better agreement with observations than CALPUFF.

Comment:

“Review by EPA: NJDEP discussed several times with William Cox of EPA’s Air Quality 

Analysis Group at Office of Air Quality Policy and Standards (now retired) the procedure used 

by NJDEP in the Section 126 Petition to define the value of N in the RHC equation. Mr. Cox is 

principal author of both documents that introduced the use of the RHC, ‘A Statistical Procedure 

for Determining the Best Performing Air Quality Simulation Model’ (Cox and Tikvart, 1990) and 

‘Protocol for Determining the Best Performing Model’ (USEPA, 1992). Contrary to statements 

on Page 12 of the TSD, Mr. Cox was given an opportunity to comment on the method of 

calculating RHC used in this model validation and agreed with NJDEP’s method of calculating 

the RHC and the procedures it used.”

Response:

NJDEP cited a personal communication with William Cox (co-author of the Cox-Tikvart 

protocol for determining the best performing model, retired from EPA) in their original 

CALPUFF validation study to support of their interpretation of the varying values of N used in 

the RHC calculations. NJDEP expanded on the role of Mr. Cox in their comment quoted above, 

stating that “NJDEP discussed several times with William Cox . . . the procedure used by NJDEP 

in the Section 126 Petition to define the value of N in the RHC equation.” NJDEP goes on to 

suggest that these personal communications with Mr. Cox invalidated EPA’s claim made on 

page 12 of the modeling TSD that “EPA did not have an opportunity to review or comment on 

these changes to the model evaluation protocol implemented in NJDEP’s validation study.” To 
Page 84 of 181

the best of our knowledge, no written documentation of Mr. Cox’s interaction with NJDEP 

regarding their model evaluation protocol exists in EPA records. Furthermore, no one from the 

Air Quality Modeling Group, the group within EPA/OAQPS responsible for reviewing and 

deciding upon the appropriateness of model evaluation protocols under Section 3.2 of Appendix 

W, was ever contacted by NJDEP regarding this model validation study. A formal process must 

exist in order to approve a model evaluation protocol under Appendix W Section 3.2. Personal 

communication with a single EPA statistician without any written record clearly cannot serve as 

EPA approval (tacit or otherwise) of the model evaluation methodologies used by NJDEP. 

Comment: 

“NJDEP Response 2.c - The previous demonstration using Q-Q plots to plot the concentration 

distributions as a function of stability [see Figure 1 of NJDEP’s comments] is very similar to the 

residual plots shown in Figure 11 of NJDEP’s model validation5 (NJDEP, 2010). However, EPA 

questioned the use of predicted/observed ratios paired by rank, rather than paired in time, in the 

residual analysis.” It should be pointed out that neither Q-Q plots nor residual plots are 

statistical metrics but rather exploratory data analysis tools.

The usefulness of these plots is dependant [sic] on the quality of the available data sets. Paine in 

his Comments on Evaluation Procedures for Air Quality and Meteorological Models presented 

at EPA’s 9th Modeling conference describes two types of evaluation databases: tracer studies 

and long-term monitoring networks (Paine, 2008). Tracer studies usually have monitors 

arranged in arcs at multiple distances around some release point. Tracer study databases can 

determine the plume centerline and plume sigma-y, and concentration trends with distance. Arc 

maximum concentrations are useful for time and space data comparisons. However, the longterm database collected at Martins-Creek and used in the CALPUFF model validation study is 

described by EPA as follows: “In contrast to the tracer studies (where a Co, Cp pair are 

available for each arc distance of each time period), the long-term databases have only a single 

Co, Cp pair selected (for each time period) as the maximum observed and predicted 

concentrations, respectively in the entire receptor array” (EPA, 2003).

The validation of AERMOD and CALPUFF using the Martins-Creek database involved a very 

limited number of elevated point sources and a sparse, network of monitors. As a result, the 

effect of discrepancies between the measured wind direction and the actual wind direction can 

be significant. Paine in his presentation at the 14th IUPPA World Congress, 2007 concluded 

“Both short-range and long-range models are not able to predict plume impacts paired in time 

and space. This is caused by random wind fluctuations near a source that will distort the 

average plume trajectory over the course of an hour and result in deviations from an ideal 

trajectory.” (Paine, 2007) Given the limitations of the Martins Creek evaluation database and 

the fact that EPA relied solely on Q-Q plots and RHC’s calculated on data unpaired in time and 

space in its AERMOD validations (EPA, 2003; Perry, et.al., 2005), the model performance 

should not be evaluated with the Martins-Creek evaluation database using exploratory data 

analysis techniques designed for tracer study databases.

 5 NJDEP, 2010. Validation of CALPUFF in the Near-Field, dated February 25, 2010.

http://www.state.nj.us/dep/baqp/petition/Exh%2012%20Validation_doc_050710_final.pdf
Page 85 of 181

NJDEP’s use of residual plots in its CALPUFF validation was to assess model performance 

based on the quality and limitations of the Martins-Creek database rather than just the Q-Q plot 

of the overall concentration. The NJDEP residual plots in the CALPUFF validation provided the 

same results as the Q-Q plots in Figure 1 [of their comments], just in a different form.”

Response:

NJDEP correctly points out that the residual plots in Figure 9 of their CALPUFF validation study 

provided the same results as the Q-Q plots shown in Figure 1 of their comments on EPA’s 

assessment of their validation study, but in a different form, a fact that was also pointed out on 

page 44 of the modeling TSD. This explanation also serves to clarify why EPA took issue with 

those residual plots in our assessment of the NJDEP validation study. Plotting modeled vs. 

monitored concentrations paired by rank in the form of Q-Q plots is an appropriate method to 

determine how well the modeled concentration distribution matches the observed concentration 

distribution, in a visual manner that is relatively clear and simple. The Q-Q plots should be 

considered as part of the operational evaluation of the model since they focus on how well the 

model captures the peak of the observed concentration distribution which is relevant for 

regulatory application of the model. Overall model bias in relation to the peak of the 

concentration distribution can be easily discerned from these Q-Q plots. That being said, we also 

recognize the potential limitation of Q-Q plots in that the modeled and monitored values are 

generally unpaired in time and perhaps unpaired in space, and may mask serious deficiencies in 

the model’s ability to accurately predict ambient concentrations. These factors would argue for 

combining Q-Q plots with other methods for evaluating model performance, but do not detract 

from the appropriate role of Q-Q plots as an operational component of model evaluations.

The EPA commented (on page 44 of the proposed rule modeling TSD) that the use of residual 

plots (which summarize the distribution of predicted/observed concentration ratios) based on 

distributions of modeled and monitored concentrations paired by rank is an inappropriate use of 

residual plots. As noted above by NJDEP, the residual plots presented in Figure 9 of their 

validation study provide the same results as the Q-Q plots shown in Figure 1 of their comments, 

but in a different form. We believe that the Q-Q plots are a much more appropriate and 

meaningful method than residual plots for presenting modeled vs. monitored results paired by 

rank. In terms of model performance, the ratios of predicted/observed concentrations paired by 

rank at the upper end of the concentration distribution (i.e., the upper portion of a Q-Q plot) are 

more meaningful and important than predicted/observed ratios paired by rank at the lower end of 

the distribution (i.e., the lower portion of a Q-Q plot). It is not uncommon for predicted 

concentrations to significantly underestimate observed concentrations at the lower end of the 

distribution, especially for field studies with a limited number of monitors associated with an 

operating facility, due to uncertainties and sensitivities associated with the accuracy of ambient 

monitoring data near the threshold of the instrument and uncertainties associated with adjusting 

the monitored data to account for background concentrations. However, a residual plot based on 

predicted/observed ratios paired by rank essentially gives equal “weight” to predicted/observed 

ratios across the full range of values. Therefore, we believe that residual plots should not be 

used for distributions paired by rank since they may be difficult to interpret and the information 

presented may be misleading in terms of relative model skill or performance. 
Page 86 of 181

Chang and Hanna (2004), developers of the BOOT program utilized by NJDEP in their 

validation study, offer the following explanation regarding residual plots as compared to Q-Q 

plots:

Residual plots employing box diagrams: The scatter and quantile–quantile [Q-Q] plots 

mentioned above clearly do not provide a complete understanding of the physical reasons 

why a model performed in a certain way. The issue can be addressed using residual 

analyses, and combined with box diagrams if necessary. In this plot, model residuals, 

defined as the ratio of predicted (Cp) to observed (Co) concentrations (or dosages or 

other outputs) are plotted, in the form of a scatter plot, versus independent variables 

such as hour of day, downwind distance, ambient wind speed, mixing height, atmospheric 

stability. If there are many points, it is not effective to plot all of them, and instead the 

residuals are binned according to different ranges of independent variables, and the 

distribution of all data points in each bin is represented by a box diagram. The significant 

points for each box diagram represent the 2nd, 16th, 50th, 84th, and 98th percentiles of 

the cumulative distribution of the n points considered in the box. A good performing 

model should not show any trend of the residuals when they are plotted versus 

independent variables (emphasis added).

This explanation of residual plots supports EPA’s concern, as stated in modeling TSD, that 

statistical comparisons based on residuals of predicted/observed concentrations paired by rank 

are not appropriate or meaningful as indicators of model performance. Such comparisons are 

also inconsistent with the Cox-Tikvart protocol. 

The following hypothetical example should serve to illustrate these concerns regarding the use of 

residual plots with predicted/observed ratios paired by rank. Figure 7 shows a Q-Q plot of 

predicted-vs.-observed concentrations paired by rank for two hypothetical cases. This figure 

clearly shows that Case 1 overpredicts the upper end of the observed distribution by more than a 

factor of 2 while Case 2 underpredicts the upper of end of the distribution by a similar amount. 

These biases are reversed for the lower end of the distributions. Figure 8 presents a comparison 

of residuals for these two hypothetical distributions, based on ratios of predicted/observed values 

paired by rank, using the same method of plotting residuals as used by NJDEP in Figure 9 of 

their validation study. The residual plots in Figure 8 for these two hypothetical distributions are 

exactly identical, i.e., the distribution of the predicted/observed ratios of concentrations paired by 

rank is identical between these two hypothetical cases. In this hypothetical case the residual 

plots paired by rank mask the important difference between these two distributions that is clearly 

highlighted in the Q-Q plots, which is that one distribution shows a significant bias to 

overestimate the peak concentrations and the other distribution is biased to underestimate the 

peak concentrations. In other words, the distribution of predicted/observed concentration ratios 

paired by rank has no meaning or relevance to the assessment of model performance and could 

mask significant differences between models.
Page 87 of 181

Figure 7. Q-Q Plot of Predicted vs. Observed Values Paired by Rank for 

Hypothetical Distributions. 

Figure 8. Residual Plot of Predicted vs. Observed Ratios Paired by Rank for 

Hypothetical Distributions Shown in Figure 7. 

Comment:

10

100

1,000

10,000

10 100 1,000 10,000

Predicted

Observed

Hypothetical Q-Q Plot of Predicted vs. Observed Values Paired by Rank

Case 1

Case 2

0.1

1

10

Case 1 Case 2

Pred/Obs

Case

Ranked Residuals for Hypothetical Data

98th Percentile

84th Percentile

50th Percentile

16th Percentile

Mean
Page 88 of 181

“NJDEP Response 2.c (cont.) - EPA provides residual plots in the TSD in Figures A.6 and A.7. 

These plots show CALPUFF and AERMOD results as a function of stability paired in time. It is 

suggested that these plots show relatively unbiased performance of both models based on the 

arithmetic mean and median values. EPA’s plots show both models ratios well beyond a factor 

of two above and below observed. EPA’s residual plots are analogous to a scatter plot where as 

NJDEP’s residual plots are analogous to a Q-Q plot. Figure A.7 is the same as Figure A.5 with 

a different vertical axis scale. The Figure A.7 provides no new information concerning model 

performance.”

Response:

As with the previous comment, we agree with NJDEP’s characterization that “EPA’s residual 

plots are analogous to a scatter plot whereas NJDEP’s residual plots are analogous to a Q-Q 

plot.” The hypothetical example described above should clarify EPA’s position that residual 

plots based on values paired by rank are not meaningful, and may actually be misleading. On the 

other hand, residual plots are an appropriate method to compare two different distributions paired 

in time and space in a manner that is more useful than simple scatter plots, as explained in the 

passage cited above from Chang and Hanna (2004). The fact pointed out by NJDEP that these 

residual plots show model-to-monitor ratios well beyond a factor of two above and below is not 

surprising, especially in comparison to the much smaller range of “residuals” shown by NJDEP 

for results paired by rank, since the distribution of predicted/observed concentration ratios is 

expected to be much larger for results paired in time and space, as compared to results paired by 

rank. The residual plots as presented by EPA provide a method to diagnose potential biases 

within a model that might otherwise be difficult to discern, and plotting residuals for subgroups 

of the data based on meteorological conditions or distance is also consistent with that intent. 

NJDEP is also correct that Figure A.7 of the EPA’s proposed rule Modeling TSD is the same as 

Figure A.5 but with a different scale and provides no new information regarding model 

performance. Our purpose for including Figure A.7 was to highlight the much larger range of 

residuals based on predicted/observed ratios paired in time and space as compared to NJDEP’s 

plots based on residuals of concentrations paired by rank. This point is addressed further in our 

response to the following comment.

Comment: 

“NJDEP Response 2.c (cont.) - Note that in EPA’s Figure A.6 the median value of each model 

for each stability regime is close to 1. This is due to the large number of hours of monitor 

concentrations near or below the SO2 detection threshold. The data provided to EPA used to 

generate figure A.6 had been adjusted by NJDEP as follows: all monitor and modeled values in 

the dataset were set equal to the detection limit of 16 μg/m3 [stet]. This results in a large number 

of data pairs whose ratio is close to one which biased the percentiles generated for the residuals 

in figure A.6. To properly create the residual plots using the methodology EPA claims should be 

done, the data must be quality assured and filtered using both the monitors SO2 detection limit 

(16 μg/m3) and SO2 drift rate of (26 μg/m3). Monitored values less than 42 μg/m3 should be 

removed prior to generating the residual plots. After filtered based on the detection limit and 

base-line drift, there are 2,448 hours of meaningful monitoring data out of a total of 9,215 total 

hours. NJDEP maintains that use of all 9,215 hours in this analysis is incorrect since this 

methodology of using residuals is inconsistent with the design of the Martin Creek evaluation 
Page 89 of 181

database. As a result, Figure A.6 and A.7, if relied upon, should be revised based on these 

comments.”

Response:

We assume that NJDEP intended to state that “all monitor and modeled values in the dataset less 

than 16 μg/m3 were set equal to the detection limit of 16 μg/m3,” otherwise that statement would 

imply that all values were set to16 μg/m3. Other than the concentrations being paired in time and 

space in EPA’s residual plots vs. paired by rank in NJDEP’s residual plots, the data points 

included in the residual plots presented in Figure A.6 of EPA’s modeling TSD are exactly the 

same data points used by NJDEP in the plots shown in Figure A.5 of EPA’s TSD (Figure 9 of 

NJDEP’s validation study), including the adjustments described above in relation to the detection 

limit. NJDEP’s assertion that the reason for the median values being close to 1 in EPA’s residual 

plots is due to a large number of monitored values at or below the detection threshold is 

unfounded. In fact, the effect of setting monitored and modeled values below the detection limit 

to a uniform value of 16 μg/m3 is much more likely to impact the distribution of residuals 

presented in NJDEP’s residual plots based on concentrations paired by rank since the low values 

in both the observed and predicted distributions were set to the same limit. This is one of the 

reasons why EPA’s plots show a much wider range of predicted/observed ratios than NJDEP’s 

residual plots, as discussed in the previous comment.

Comment: 

“EPA Point #3 – ‘NJDEP’s validation of CALPUFF based on the Martins Creek data represents 

the only near-field complex terrain evaluation that we are aware of involving the CALPUFF 

modeling system, including the use of CALMET-generated wind fields, whereas AERMOD has 

been evaluated on at least five tall-stack/complex-terrain field studies and has shown consistently 

good model performance. Therefore, even if we judge the NJDEP evaluation to be an adequate 

demonstration that CALPUFF performs better than AERMOD in this particular case, the weight 

of evidence would still favor the AERMOD model as the preferred model for this application, 

unless the NJDEP evaluation presented compelling evidence that CALPUFF is clearly superior 

to AERMOD for this application and that the proximity of the Martins Creek field study to the 

Portland Plant adds greater emphasis to that conclusion.’

NJDEP Response 3.a – NJDEP’s Evidence Demonstrates that CALPUFF Performs Better for 

This Application Than AERMOD 

In addition to point #3, the statement “...AERMOD has been evaluated on at least five tallstack/complex terrain field studies and has shown consistently good model performance” is 

made several other times in the TSD and on page 19670 of the April 7, 2011 Federal Register 

Notice. The references given for these five model evaluations are Perry, et. al., 20056 and EPA, 

20037

 6 Perry, S. G., A. J. Cimorelli, R. J. Paine, R. W. Brode, J. C. Weil, A. Venkatram, R. B. Wilson, 

R.F. Lee, and W. D. Peters, 2005. AERMOD: A dispersion model for industrial source 

applications. Part II: Model performance against seventeen field-study databases. J.Appl.Meteor., 

44, 694-708.

. 

7 EPA, 2003. AERMOD: Latest Features and Evaluation Results. EPA-454/R-03-003. U.S. 

Environmental Protection Agency, Research Triangle Park, NC.
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These field studies do not change that NJDEP’s Validation Study demonstrates that CALPUFF 

performs better for this application than AERMOD. NJDEP also notes that in none of the five 

studies referenced was CALPUFF one of the competing models. In addition, field studies such as 

Lovett were used in the “developmental evaluation” of AERMOD, see "AERMOD: Latest 

Features and Evaluation Results"(EPA, 2003), and were not part of the "independent 

evaluation" of AERMOD. See id.”

Response:

As explained in our responses to other NJDEP comments presented above, we do not agree that 

NJDEP has demonstrated that “CALPUFF performs better for this application than AERMOD.” 

The fact that CALPUFF was not included in the field study evaluations conducted for AERMOD 

is irrelevant and merely highlights the fact that the performance of the CALPUFF modeling 

system, including the CALMET meteorological processor, has not been well documented. The 

fact that the Lovett field study was part of the “developmental evaluation” of AERMOD does not 

detract from the validity or relevance of AERMOD’s performance based on that study, but 

merely highlights the fact that model validation is a complex process and that evaluations of a 

model conducted during the development of a model must at some stage be supplemented by 

independent evaluations conducted on data bases that were not part of the development of the 

model. The development and evaluation of the AERMOD model certainly conformed with this 

approach to a much greater degree than any other near-field dispersion model that EPA has ever 

promulgated. In contrast, the CALPUFF validation study conducted by NJDEP using the 

Martin’s Creek field study remains the only such evaluation of the CALPUFF modeling system 

for near-field applications that we are aware of.

Comment: 

“Response 3.b - EPA’s “Clearly Superior” Standard for Use of CALPUFF in this Application is 

not Supported by the Regulations

The higher standard invoked by EPA for approval of CALPUFF as an alternative model in 

EPA’s proposal on NJDEP’s 126 Petition is not included in EPA’s regulations at 40 Part 51, 

Appendix W.

In the TSD and the April 7, 2011 FR Notice, EPA states the following, ’we would not determine 

CALPUFF to be a more appropriate model in this case absent compelling evidence that

CALPUFF is clearly superior to AERMOD for this application’ (emphasis added). This 

obviously is demanding a higher level of performance than that required in paragraph 3.2.2(b) 

(condition 2). Paragraph 3.2.2(b)(condition 2) states that an alternative model may be approved 

for use “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” (emphasis added [in original]).

The NJDEP evaluation study demonstrates that CALPUFF performed better in predicting SO2 

concentrations than AERMOD in this application and, therefore, meets the standard set forth in 

the regulations.”

Response:

 
Page 91 of 181

We acknowledge that the terminology “clearly superior” is subject to varying interpretations and 

that we failed to provide a clear definition of our intent in this context. However, we do not 

believe that the statement quoted above from the modeling TSD demands a “higher level of 

performance than that required in paragraph 3.2.2(b) (condition 2)”, and it was not our intention 

to demand that a higher level than required in Appendix W be applied in this case. We have 

already addressed several elements related to this comment in our responses to previous 

comments, in particular our response to NJDEP comment #1.a. One of the key elements that is 

clarified in our response to #1.a is that applying the criterion under condition (2) in Section 3.2.2 

for a statistical performance evaluation to indicate that the alternative model “performs better” 

than the preferred model necessitates something more than a subjective assessment of how much 

better the alternative model needs to be in order to be accepted, when viewed in the context of 

the EPA protocol for determining the best performing model (EPA, 1992). Reiterating what was 

explained in the response for #1.a, the EPA protocol provides a “general framework for objective 

decision-making” based on a “consistent approach” that employs “objective procedures.” 

Viewed in that context, the demonstration that an alternative model “performs better” implies 

that the difference in performance between the alternative model and preferred model is 

statistically significant based on appropriate and objective procedures for establishing 

appropriate confidence intervals on the model performance statistics. With these clarifications in 

mind, one element of the term “clearly superior” is the demonstration of whether the “better 

performance” shown for the alternative model is statistically significant. 

In the section of the proposed rule Modeling TSD referenced in this comment we also cite the 

fact that the preferred model for this application, AERMOD, has undergone an extensive peer 

review process and an extensive model validation effort in support of its promulgation in 2005. 

Although we believe that it would be inappropriate to establish a minimum number field study 

datasets that would be needed in order to satisfy the provisions for condition (2) of Section 3.2.2 

of Appendix W, we still assert that the large number of field studies used in the AERMOD 

validation holds some weight in judging whether an alternative model has been demonstrated to 

perform better than AERMOD. Ideally, the proposed alternative model would be subjected to 

the same model evaluations as the preferred model, similar to the procedure used in support of 

promulgating AERMOD, where AERMOD performance was systematically compared to the 

existing preferred models, including ISCST3 and CTDMPLUS. Short of that, the field study or 

studies that most closely resemble the circumstances of the proposed application of the 

alternative model would be most relevant and carry the most weight in making a determination 

of the adequacy of the demonstration for that application. In this case, the source being 

considered was one of the sources included in the Martin’s Creek field study used by NJDEP, 

which we have acknowledged may add to the relevance of the study for this case. However, we 

also note that the main focus of the study, as reflected in where ambient monitors were located 

and meteorological data were collected, was clearly on the complex terrain impacts in the 

vicinity of Martin’s Creek emission units rather than Portland.

Another element of this issue worth further explanation is the question of whether “the 

alternative model performs better for the given application” than the preferred model (emphasis 

added). Although field studies conducted to assess model performance in relation to a specific 

facility, such as the Martin’s Creek and similar field studies that have been conducted for 

operating power plants, would have special relevance to modeling applications conducted in 
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relation to that facility, we do not believe that the term “given application” should be interpreted 

narrowly to imply that the evaluation study must be associated with the actual facility being 

modeled in a specific application. Of course, the more similar the circumstances of the field 

study to the intended application, including source characteristics, topographic and land use 

characteristics, and meteorological conditions, the more relevant the model evaluation results 

from such a field study would be for the given application. Another element of this consideration 

that we have noted in relation to NJDEP’s validation study in support of the Portland application 

is the difference in terms of the type of meteorological data available in the field study as 

compared to the meteorological data used for the intended application. This issue was raised in 

the proposed rule Modeling TSD and is further discussed below in response to NJDEP’s 

comment 4.a. 

A final point to mention in relation to this particular alternative model (CALPUFF) and 

validation study are the technical issues and concerns that the EPA has identified regarding the 

use of the CALPUFF modeling system, including the CALMET meteorological processor, for 

near-field applications. These issues and concerns were documented in the September 26, 2008 

memo issued by the EPA titled “Technical Issues Related to CALPUFF Near-field 

Applications,” which is also discussed above in NJDEP comment #1.b. In light of these 

concerns, which NJDEP has not adequately addressed, we believe that some caution is warranted 

in judging the adequacy of a single validation study as a basis for determining that CALPUFF 

“performs better” than AERMOD for this application. We also believe that additional analyses 

that the EPA has performed assessing model-to-monitor comparisons using the Columbia, New 

Jersey ambient monitor, discussed elsewhere in these responses to NJDEP’s comments and 

documented in more detail in Appendix B of the EPA final rule Modeling TSD, serve to justify 

these concerns regarding the use of CALPUFF in this near-field application. To put these 

technical concerns into context in relation to the issue of alternative model demonstrations, we 

point out that Section 3.2.2b of Appendix W states that “[a]n alternative model should be 

evaluated from both a theoretical and a performance perspective before it is selected for use 

(emphasis added).” 

Taking all of these factors into account, we believe that our statement in the proposed rule 

Modeling TSD that “the weight of evidence would still favor the AERMOD model as the

preferred model for this application, unless the NJDEP evaluation presents compelling evidence 

that CALPUFF is clearly superior to AERMOD for this application” is justified and appropriate. 

We also note that issues or questions regarding the adequacy of a statistical performance 

evaluation, in terms of the number and relevance of the field study datasets that are included in 

the performance evaluation, and in terms of the performance evaluation methods, metrics and 

benchmarks that will be used in judging the adequacy of the alternative model demonstration, 

should be addressed prior to conducting the evaluation as part of an “evaluation protocol which 

is acceptable to both control agencies and regulated industry” (Appendix W, Section 3.2.2d).

Comment: 

“NJDEP Response #3.c - EPA’s “Clearly Superior” Standard for Use of CALPUFF in this 

Application is not Supported by the Location of Portland Power Plant

The applicability of a model validation study using the Martins Creek dataset to the Portland 

Power Plant site has been established in past regulatory actions and in the TSD. AERMOD was 
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not designated a preferred model by EPA until 2005. However, AERMOD’s use in a regulatory 

framework for modeling the area around Portland had been approved multiple times before that 

date. Specifically, AERMOD as a non-guideline model was approved for use in the 1999 Warren 

County Sulfur Dioxide Modeling Study for modeling emissions from Portland Power Plant. This 

use of AERMOD was approved by the Technical Assessment Group (TAG) whose members 

included GPU (the former owner of Portland Power Plant), Pennsylvania Power and Light 

(PPL), EPA Region 2, EPA Region 3, Pennsylvania DEP, and New Jersey DEP. The document 

presenting the results of this modeling analysis (ENSR, 1999) contains the following quote: 

“Due to the recent availability of AERMOD (dated 98314) to be formally proposed by U.S. EPA 

for guideline status and its evaluation history for the Martins Creek area, the involved 

regulatory agencies requested that a compliance modeling protocol using AERMOD be 

submitted for considerations” (emphasize added). The owner of Portland Power Plant at that 

time (GPU) strongly favored the use of AERMOD over EPA’s preferred models. The receptor 

grid used in the Warren County Sulfur Dioxide Modeling Study was identical to the coarse 

receptor grid used by both NJEP and EPA in the 126 Petition AERMOD modeling.

The TAG approval was later used as justification for another use of AERMOD at the Portland 

site, the modeling of a proposed 560 MW combined-cycle natural gas facility (ENSR, 2000). 

AERMOD was still considered an alternative model at that time.

In addition to the historic precedence, there are other factors supporting the applicability of the 

submitted model validation using the Martins Creek data to the Portland Power Plant site. Both 

AERMOD and CALPUFF predict that emissions from Portland Power Plant cause a large 

impact on all validation monitors (especially AMS#8) and both the Portland Power Plant and 

the validation monitors are located in the same river valley. Use of the Martins Creek 

meteorological data by EPA to justify adjustments to the meteorological data collected near the 

Portland Power Plant as discussed in Appendix B of the TSD imply that the wind fields in this 

area are impacted by similar terrain effects..”

Response:

EPA does not take issue with the potential applicability of the Martin’s Creek field study to the 

Portland Power Plant, but this issue is moot considering our overall assessment of the 

inadequacy of the NJDEP CALPUFF validation study as documented in the TSD and further 

explained above.

Comment: 

“NJDEP Response 4.a - EPA’s comment that NJDEP’s application of CALPUFF to estimate 

ambient SO2 impacts associated with Portland Plant emissions only used MM-5 data and did not 

use any site-specific meteorological data is incorrect. The 2003 CALPUFF meteorological data 

did have site-specific meteorological data within the CALMET domain. The 2003 CALMET 

diagnostic model was run utilizing two on-site meteorological 10 meter towers located at 

Demeter Farm (approximately 10 km south southeast of PGS on Scotts Mountain) and at 

Belvidere High School (approximately 6 km south of PGS in the Delaware River valley). In 

addition, four NWS ASOS meteorological stations located within the CALMET domain were also 

used. The table below lists the site-specific data used to inform the CALMET diagnostic model.
Page 94 of 181

”

Response:

The reference to the lack of site specific meteorological data in the application of CALPUFF to 

estimate ambient SO2 impacts associated with the Portland Plant was in relation to the 

combination of a 10-meter tower with multi-level SODAR winds collected in the vicinity of the 

Martin’s Creek plant that were used as input to AERMOD and CALMET for the Martin’s Creek 

evaluation study. We do not believe that the single level 10-meter towers at Demeter Farm and 

Belvidere High School referenced in NJDEP’s comment are in any way comparable as site 

specific data for the Portland Plant as compared to the multi-level wind observations associated 

with the Martin’s Creek field study given that they are located about 10 to 15 km from Portland 

and that the main Portland emission units are tall stacks. Although the Demeter Farm met tower 

is located on Scotts Mountain, the same terrain feature that was the main focus of the Martin’s 

Creek field study, and due to its ground elevation in relation to the Martin’s Creek stacks may be 

informative of meteorological conditions associated with impacts from the Martin’s Creek plant 

on that terrain feature, it is clearly not site specific in relation to the elevated sources at the 

Portland Plant. The inclusion of other non-site-specific surface NWS and FAA ASOS 

meteorological stations within the domain as input to CALMET is also irrelevant to the issue 

raised in our comment.

Comment: 

“NJDEP Response 4.b - EPA has raised the concern that the Supplemental 126 Petition 

CALPUFF modeling did not include on-site meteorological data such as that used in NJDEP’s 

validation study. This concern can first be addressed by looking at the exhibits of NJDEP’s first 

126 petition that was submitted to EPA on May 12, 2010. Exhibit 10 of that submittal is entitled 

“Calpuff 1992-1993 Modeling Analysis of the Sulfur Dioxide Impacts due to Emissions from 

Portland Generating Station”, dated February 25, 2010. This document details CALPUFF 

modeling of the allowable SO2 emissions from Portland using the same meteorological data as 

used in NJDEP’s model validation study. The results of this modeling predicted the SO2 impacts 

caused by Portland would be 67 percent higher than 3-hour NAAQS and over twice the SO2 24-

hour NAAQS. Exhibit 6 of the May 12, 2010 126 Petition (Attachment II to this appendix) shows 

that when modeling the allowable emissions from Portland, use of the 1992-93 meteorological 

data results in predicted 3-hour and 24-hour impacts equal to or higher than those predicted 

with the 2002 and 2003 MM-5 meteorological dataset.
Page 95 of 181

EPA’s concern regarding NJDEP’s meteorological data was next addressed with additional 

CALPUFF modeling to determine compliance with the 1-hour SO2 NAAQS using the same 

1992-93 meteorological data used by CALPUFF in the model validation. The results of the 

modeling analysis are shown in Figures 2 and 3. The CALPUFF model results using the on-site 

model validation meteorology data set produce impacts that are consistent both in spatial 

distribution and magnitude with the previous CALPUFF results submitted by NJDEP in support 

of the Supplemental 126 Petitions. Out of 8,280 receptors covering an area of approximately 

30km by 40 km, 6739 receptors were found to have impacts above the National Ambient Air 

Quality Standard (see Figure 3). The maximum predicted violation of the 1-hour SO2 NAAQS 

due to emissions of Portland Power Plant was 2,785 ug/m3. At this receptor with the maximum 

impact (494.000 km E, 4,528.800 km N), 153 days were predicted to exceed the National 

Ambient Air Quality Standard. A 94 percent reduction in Portland Power Plant’s allowable SO2 

emission rate would be needed to bring this receptor into compliance with the 1-hour SO2 

NAAQS.”
Page 96 of 181
Page 97 of 181

Response:

The concern raised by the EPA in relation to this comment was that the CALPUFF validation 

study, which incorporated site-specific meteorological data from the Martin’s Creek field study, 

would not be relevant to this application of CALPUFF due to the fact that the CALPUFF 
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modeling submitted in support of the section 126 petition did not incorporate site-specific 

meteorological data, which was based on 2002 12-kilometer MM58 meteorological data and 

2003 4-kilometer MM5 meteorological data. The fact that the multi-level site specific 

meteorological data from the Martin’s Creek field study were used in the CALPUFF modeling 

conducted from 1992-93 that was submitted with NJDEP’s comment on the proposed rule is 

somewhat responsive to our comment, but we also note that the 1992-93 site specific data were 

collected in proximity to the Martin’s Creek plant, which is about 14 kilometers southwest of 

Portland, and the issue of whether the 1992-93 Martin’s Creek meteorological data could be 

considered as site specific for Portland has not be addressed. Furthermore, the issue raised in this 

comment is only relevant if the CALPUFF validation study had adequately demonstrated that 

CALPUFF is better than AERMOD for this application, and since our position on that 

fundamental question has not altered in response to these comments, this issue is moot. 

2.a Comments on Other Issues Raised by the EPA on the Validation Study

Comment: 

“2. The use of the AMS#8 Monitor in the Validation Study is Inappropriate (pages 40-42 of 

Air Quality Modeling TSD)

On page 40 of the TSD, EPA states that its evaluations based on the Martins Creek field study 

data did not include the AMS#8 monitor as part of the model-to-monitor comparisons since it 

was sited and used specifically to account for background concentrations, particularly when the 

emissions from Martins Creek would be impacting the complex terrain monitors on Scotts 

Mountain. On page 41, EPA questions the use of AMS#8 by NJDEP in the model-to-monitor 

comparisons of the validation study for two reasons:

• The highest 24-hour average monitored RHC was from AMS#8, and AERMOD predicted 

24-hour concentrations more accurately if AMS#8 data was not included.

• When northeast winds blow and the emissions from Portland Plant impact the monitor, 

the other ambient SO2 monitors on Scotts Mountain are not well-situated to account for 

background concentrations.

These reasons provide no bases for removing the AMS#8 monitoring data as recommended. 

First, the NJDEP validation study used data from all eight monitors. It would have been 

inappropriate for NJDEP to eliminate specific monitors from the validation study to improve 

CALPUFF’s accuracy in predicting monitored concentration. The same criteria apply to 

removing monitors from the validation to improve AERMOD’s performance.

Second, it is not true that when northeast winds blow and the emissions from Portland Plant 

impact AMS#8, the other ambient SO2 monitors on Scotts Mountain are not well-situated to 

account for background concentrations. As can be seen in Figure 4 of the TSD, the only SO2 

source within 50 km upwind of the Scotts Mountain monitors when winds are from the northeast 

quadrant is the Warren County District Landfill. The SO2 emissions from this source are 

minimal, only 25.9 tons in 2009. The concentrations measured at the Scotts Mountain monitors 

during northeast winds are representative of background air quality and are not being impacted 

by emissions from either Portland or Martins Creek Power Plants.

 8 MM5 refers to the “Fifth-Generation NCAR / Penn State Mesoscale Model”.
Page 99 of 181

There are many hours during both the EPA and NJDEP validation studies when the AMS#8 

monitor was not used as background. Table 1 below is taken from a 1994 modeling report (TRC, 

1994). This report summarizes the number of hours each of the eight monitors was used as 

background, the average background concentration at each monitor when used for background, 

and the highest 1-hour background value from each monitor. This table shows that the number of 

hours AMS#8 is used as background, its average background value, and the maximum 

background value are very similar to these other monitors.

Use of the SO2 measurement data from AMS#8 results in a more comprehensive model 

validation. The elevation of AMS#8 is near the stack-top elevation of both the Martins Creek and 

Portland Power Plant stacks. Because it is below the final height of the plumes emitted from 

these facilities, AMS#8 does not represent a complex terrain receptor as the other seven 

monitors do. Also, during the validation study the 99th percentile of the daily maximum1-hour 

SO2 concentration at AMS#8 of 406 ug/m3 represents a violation of the new 1-hour SO2 

NAAQS. Wind trajectory analysis indicates emissions from Portland Power Plant caused the 

violation. This fact adds to AMS#8’s relevancy in NJDEP’s model validation study.

In summary, EPA’s omission of the SO2 data collected at AMS#8 monitor is not justified. The 

use of the measurements from this uniquely located monitor enhances the Martins Creek model 

validation. 

Response:

NJDEP’s statement the “EPA questions the use of AMS#8 by NJDEP” because “the highest 24-

hour average monitored RHC was from AMS#8, and AERMOD predicted 24-hour 

concentrations more accurately if AMS#8 data was not included” is a misstatement of EPA’s 

proposed rule modeling TSD. In the TSD we point out that the inclusion of AMS#8 is an 

important issue due to the fact that one of the key metrics in the model evaluation, the highest 

24-hour monitored RHC, occurs at AMS#8 and will therefore have an effect on the modeling 

evaluation results. It should be emphasized that our objection to inclusion of the AMS#8 

monitor is based on the facts stated in the TSD, which are that the monitor was sited for the 

purpose of characterizing background concentrations in relation to the complex terrain monitors 

located on Scotts Mountain, and it was never intended for inclusion in the validation study. 
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Furthermore, given the location of the AMS#8 monitor in relation to the emission sources and 

topography of the domain, there will be additional uncertainty regarding the estimates of 

background concentrations relative to modeled impacts at the AMS#8 monitor. The focus of the 

field study was clearly related to assessing impacts from elevated plumes on the complex terrain 

southeast of the Martin’s Creek facility and not related to assessing impacts in the vicinity of 

AMS#8. The burden is therefore on NJDEP to justify including AMS#8 in their validation study 

given the clear intent and history of this field study. As discussed above in response to #1.a, a 

more significant issue in relation to NJDEP’s inclusion of the AMS#8 monitor in the model 

evaluation was their approach of combining all monitors except AMS#8 as a single “complex 

terrain” group, which was given equal weight as a group to the weight given the AMS#8 monitor 

by itself in the diagnostic component of the evaluation, effectively giving model performance at 

the AMS#8 monitor much more weight in the evaluation than performance at any of the 

individual complex terrain monitors. 

Nevertheless, as demonstrated in our response to NJDEP comment #1.a, the assessment of 

whether or not CALPUFF performs “statistically significantly better” than AERMOD is not 

dependent on whether AMS#8 is included or excluded from the study. Furthermore, NJDEP’s 

statements that “These reasons provide no bases for removing the AMS#8 monitoring data” and 

“It would have been inappropriate for NJDEP to eliminate specific monitors from the validation 

study to improve CALPUFF’s accuracy” ignore the fact that the AMS#8 monitor was never part 

of the evaluation data base in the first place, other than for the purpose stated above of 

accounting for background concentrations. 

Comment: 

“3. Modeling Results Contained in the TSD, Table A.3 of Appendix A

Page 46 of the TSD contains a table comparing CALPUFF and AERMOD 3-hour and 24-hour 

RHC with seven of the monitor’s RHC (AMS#8 was ignored). This table is similar to Table 3-5 in 

the document “Independent NAAQS Modeling Study and Review of NJDEP Modeling of SO2 

and PM2.5 Impacts from the Portland Generating Station” that was submitted by the current 

owner of Portland to the EPA 126 Petition Docket9 (AECOM, 2010). Though not specified, it 

appears that in the AECOM 2010 report and EPA’s table, the RHC were calculated with an N 

value equal to 26. Therefore, the values used by AECOM and EPA have the uncertainties and 

inaccuracies discussed earlier in NJDEP Response #2.a due to the arbitrary selection of N.”

Response:

The RHCs presented in Table A.3 of the modeling TSD were based on the same value of N as 

used by NJDEP, i.e., N=11 was used for the 3-hour RHCs and N=16 was used for the 24-hour 

RHCs. Other than reporting observed and modeled RHCs by receptor and using a geometric 

mean to represent the mean value for a set of ratios, neither of which is novel, there are no other 

similarities between the two tables mentioned in this comment and it is unclear what point 

NJDEP intends to make by this statement. As stated in our response to NJDEP comment #2.b 

 9 AECOM, 2010. Independent NAAQS Modeling Study and Review of NJDEP Modeling of 

SO2 and PM2.5 Impacts from the Portland Generating Station. Prepared for: RRI Energy, 

Canonsburg, PA. Prepared by: AECOM Environment, Canonsburg, PA Westford, MA 

60158681. November 2010.
Page 101 of 181

regarding the value of N for RHC calculations, we strongly disagree with NJDEP’s assessment 

that selecting different values of N based on “the value where the concentrations begin their 

rapid rise” in any way reduces uncertainties or inaccuracies in the model evaluation.

Comment: 

“4. The 2002 CALPUFF Results are Incorrectly Criticized as Physically Unrealistic And EPA 

Ignores the 2003 CALPUFF Results (pages 8, 12, and 47 of the TSD)

EPA’s comments incorrectly state that the results of the 2002 CALPUFF modeling analysis are 

unrealistic and also ignore the results of the 2003 CALPUFF modeling. The 2002 CALPUFF 

modeling used a course 12 km MM-5 grid with no nearby surface observations. EPA must also 

consider the submitted CALPUFF modeling that used 2003 meteorological data that was part of 

the NJDEP supplemental 126 Petition.

The 2003 CALPUFF modeling used a much more refined wind field from CALMET that utilized 

a 4 km MM-5 meteorological grid and the winds from two local 10 meter meteorological towers, 

and 10-meter DEM data. A receptor grid with 50 meter receptor spacing close in to the facility 

was used in CALPUFF. Figure 4 graphically depicts the spatial distribution of impacts 

surrounding the facility for the CALPUFF 2003 modeling run. Maximum impacts are located in 

elevated terrain approximately 1 km across the Delaware River in New Jersey. The spatial 

distribution of impacts is very similar to that predicted by EPA’s AERMOD modeling.”
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Response:

NJDEP’s comment does not offer any explanation as to why the 2002 CALPUFF results, which 

show peak 1-hour SO2 impacts occurring within about 100 meters of the Portland Plant at an 

elevation of 3 meters above stack base, are physically realistic given the release height and 

buoyancy of the plumes from units 1 and 2. The 2003 CALPUFF results are not as dramatic in 

this respect as the 2002 results, but still show peak impacts much closer to the plant than 
Page 103 of 181

AERMOD. Figure 4 included in Appendix A of NJDEP’s comments on our assessment of the 

CALPUFF validation study only shows contours for the 2003 CALPUFF results across a 3kmby-3km domain, but exhibits several localized peaks above 1,800 μg/m3 within about 1 km of the 

plant, with concentrations exceeding 1,200 μg/m3 within about 500 meters NW of the main 

stacks at elevations well below stack top, several times higher than AERMOD modeled impacts 

in that area. We disagree with NJDEP’s assertion that “the spatial distribution of impacts [based 

on 2003 CALPUFF results] is very similar to that predicted by EPA’s AERMOD modeling.” 

Although we do not have any ambient SO2 monitored data in the vicinity of the peak impacts 

from Portland predicted by the CALPUFF model, we believe that the EPA analysis of modeled 

vs. monitored concentrations using the Columbia, New Jersey ambient SO2 monitor located 

about 2 kilometers northeast of Portland support our assessment that the CALPUFF modeling 

results for Portland submitted by NJDEP show ambient SO2 impacts that are unrealistically high. 

Based on the EPA analysis, which is similar to the analysis included in NJDEP’s trajectory 

analysis for the Columbia monitor, the average of the predicted/observed ratios of the top 10 

daily maximum 1-hour values for CALPUFF were 3.26 for the 1992-93 meteorological data and 

3.87 for the 2002 meteorological data. For comparison, the average of the predicted/observed 

ratios of the top 10 daily maximum 1-hour values for AERMOD was 1.14. 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. Additional details 

regarding these analyses related to the Columbia monitoring data are provided in Appendix B of 

the EPA final rule Modeling TSD.

3. Comments on the EPA’s Meteorological Data Adjustment

Commenter: Commissioner Bob Martin, NJDEP provided detailed comments regarding 

EPA’s adjustments to the Portland site specific meteorological data in Appendix B, “EPA’s 

Meteorological Data Adjustment”, submitted with NJDEP’s June 13, 2011 comments on 

EPA’s proposed rule to grant New Jersey’s September 17, 2010 Section 126 petition 

regarding the Portland Generating Station (Portland). A summary of their comments and 

EPA responses is provided in this section.

Comment: 

METEOROLOGICAL DATA ADJUSTMENT BY EPA

EPA’s adjustments to the meteorological dataset input into AERMOD are discussed in the Air 

Quality Modeling Technical Support Document: NJ 126 Petition of September 17, 2010 Section 

II.E (Meteorological Data), Section II.F (Summary of EPA’s Analysis of the NJEDP Modeling) 

and Appendix B (EPA Assessment of Site Specific Meteorological Data). EPA made several 

significant changes to the meteorological data that have been historically used in the modeling 

of Portland with AERMOD (including NJDEP 126 Petition modeling). One was the addition of 

the sigma-w data (standard deviation of vertical wind velocity fluctuations) measured by 

SODAR. An additional concern is the recalculation of the land surface characteristics using a 

beta version AERSURFACE that has not been released to the public.
Page 104 of 181

As a result of these changes and other changes by the EPA to the meteorology and surface 

parameters, AERMOD’s prediction of Unit 1 and 2’s maximum 99th percentile daily maximum 

1-hour SO2 concentration decreased by over 40 percent from that predicted in the NJDEP 

modeling (1402 ug/m3 vs. 835.8 ug/m3).

In addition, NJDEP believes that some of the other modifications made by EPA to the 

meteorological data used to determine the remedy level should not have been made. NJDEP is 

concerned that relatively new, untested techniques have been used to adjust the meteorological 

data instead of more well established procedures.

1 - Historical Precedence

The meteorological data used by NJDEP is consistent with that which has historically been used 

when modeling Portland’s emissions with AERMOD. The meteorological data collected near 

Portland was first used in AERMOD in the 1999 Warren County Sulfur Dioxide Modeling Study 

(ENSR, 1999). Use of an AERMOD meteorological dataset similar to that used by NJDEP was 

approved by the Technical Assessment Group (TAG) that was assembled for this 1999 modeling 

effort. Members of the TAG included GPU (the former owner of Portland Power Plant), PPL, 

EPA Region 2, EPA Region 3, Pennsylvania DEP, and New Jersey DEP. All parties signed onto 

the February 26, 1999 “Agreement of Principal” regarding this modeling analysis. 

It is also important to note that a meteorological dataset similar to that used by NJDEP without 

EPA’s modifications was considered appropriate for use by the current and previous owners of 

Portland Power Plant. AERMOD modeling using this data has been submitted to PADEP, EPA 

Region 3, and NJDEP on numerous occasions by Portland’s owners’ consultants (ENSR, 

199910; ENSR, 200011; AECOM, 201012). Previous owners of the Portland Power Plant have 

made detailed technical arguments on why the tower and SODAR meteorological data collected 

is representative of meteorological conditions in the Delaware River Valley where Portland is 

located without adjustment (Reliant, 2001).13

The modeling results based on a meteorological dataset similar to that used by NJDEP without 

EPA’s modifications were the basis for Reliant (owner of Portland Power Plant at that time) 

 10 ENSR, 1999. SO2 NAAQS Compliance Modeling for GPU’s Portland Generating Station. 

ENSR Document 3142-003-301. May, 1999

11 ENSR, 2000. Amended Protocol for the Reliant Energy Portland Project. ENSR Document 

Number 6045-003-451. December, 2000.

12 AECOM, 2010. Independent NAAQS Modeling Study and Review of NJDEP Modeling of 

SO2 and PM2.5 Impacts from the Portland Generating Station. Prepared for: RRI Energy, 

Canonsburg, PA. Prepared by: AECOM Environment, Canonsburg, PA Westford, MA 

60158681. November 2010.

13 Reliant, 2001. Letter from Vincent J. Brisini (Reliant) to Jane Mahinske (PADEP), Subject: 

Responses to Items #1 and #2 of NJDEP Correspondence of March 27, 2001, dated May 4, 2001.
Page 105 of 181

September 11, 2001 application for a Minor Modification to Portland’s Title V Air Operating 

Permit. The permit modification placed a 3-hour SO2 emission limit of 8.73 tons on Units 1 and 

13.35 tons on Unit 2. These values effectively lowered the 3-hour full load allowable SO2 limit of 

these units by approximately 12 percent. A copy of the Reliant’s September 11, 2001 permit 

application is Attachment I to this appendix.

40 CFR Part 51, Appendix W paragraph 8.3.1.2 recommends that when an emission limit for a 

source is based on a specific year of meteorological data, this same meteorological data be used 

in any future modeling of the source. Though from the same year, the changes made by EPA to 

the previously used meteorological data are significant enough to consider it a new set of data. 

The fact that the maximum 99th percentile daily maximum 1-hour SO2 concentration predicted 

by AERMOD using the two meteorological datasets differ by 40 percent (1402 μg/m3 vs. 835.8 

μg/m3

) support this conclusion. The guidance in Appendix W implies that EPA should follow 

precedence and also model with a meteorological data similar to that used in previous 

evaluations.”

Response:

NJDEP raises several concerns regarding adjustments that the EPA made to the site specific 

meteorological data for use in the AERMOD modeling conducted to support the EPA assessment 

of NJDEP’s Section 126 petition for the Portland Plant, in light of historical precedence on the 

use of this data to support past assessments. Since the dispersion modeling conducted by the 

EPA using the Portland site specific meteorological data served as the basis for determining an 

appropriate remedy under Section 126 to eliminate Portland’s significant contribution to 

nonattainment and interference with maintenance of the 1-hour SO2 NAAQS in New Jersey, 

EPA is obligated to conduct as accurate an assessment as possible given the circumstances of 

this case, and it would be inappropriate for our actions to be bound by past precedents related to 

the use of this data in light of legitimate concerns regarding the representativeness of the data for 

that purpose documented in Appendix B of the EPA proposed rule Modeling TSD. The fact that 

these concerns regarding representativeness had not been raised nor addressed in past 

applications involving the use of this data is immaterial to the legitimacy of these concerns in 

relation to the technical basis for this action.

NJDEP cites Section 8.3.1.2(c) of Appendix W as justifying the use of historical versions of the 

site specific data in this case, irrespective of EPA’s concerns related to the representativeness of 

the data. The referenced section of Appendix W recommends that “for permitted sources whose 

emission limitations are based on a specific year of meteorological data, that year should be 

added to any longer period being used (e.g., 5 years of NWS data) when modeling the facility at 

a later time.” Section 8.3.1.2(c) addresses situations where additional years of data have been 

added to modeling for a particular facility at a later time, but does not address inclusion of 

different version of the same meteorological data period and is therefore not applicable to this 

situation. 

Comment: 

“2 - Use of SODAR Sigma-w Data
Page 106 of 181

EPA modified the meteorological data it used to include the SODAR sigma-w data collected near 

the site. NJDEP raises three concerns about inclusion of the SODAR sigma-w data.

2.a – AERMOD Validation Studies

Review of the validation studies as referenced in the Technical Support Document indicates 

SODAR sigma-w data were never included as part of an AERMOD validation study, including 

those field studies conducted in complex terrain study (EPA, 200314; Perry, et al., 200515). The 

AERMOD validation study at Martins Creek only included turbulence measurements taken from 

meteorological towers, not from the SODAR. Consistent with these studies, the AERMOD 

meteorological data set used by NJDEP only included turbulence data from the meteorological 

towers.

AERMOD averages the vertical turbulence values such as sigma-w throughout the atmospheric 

layer through which the plume travels from the source to the receptor. Therefore, the SODAR 

sigma-w measurements at Portland taken above 100 meters will have a significant impact on the 

vertical dispersion of the plume. As mentioned on page 38 of the TSD, one would expect the 

model would perform better if measured sigma-w data at all levels were available. However, this 

theory has never been tested. In the AERMOD validation studies (EPA, 2003; Perry, et al., 2005) 

and in the modeling analysis conducted by NJDEP, the sigma-w values above the height of the 

meteorological tower were calculated internally by AERMOD. The accuracy of the model in 

predicting ground-level impacts using SODAR measured sigma-w above the height of the 

meteorological towers has never been demonstrated. Any inference that the model will make 

more accurate predictions of ground-level concentrations with the SODAR sigma-w data is 

speculation and not supported by the existing validation studies.”

Response:

NJDEP’s review of the AERMOD validation studies is correct in that none of those studies 

included SODAR derived sigma-w data. However, several data bases did include sigma-w data 

collected from meteorological towers. One reason that the Martin’s Creek and original Portland 

site specific data sets did not include SODAR sigma-w data is that the meteorological monitoring 

guidance at the time those monitoring programs were conducted recommended against the use of 

SODAR-derived turbulence data, including sigma-w or sigma-theta (EPA, 1987)16

 14 EPA, 2003. AERMOD: Latest Features and Evaluation Results. EPA-454/R-03-003. U.S. 

Environmental Protection Agency, Research Triangle Park, NC.

, since it was 

still an emerging technology at the time. When EPA’s meteorological monitoring guidance was 

updated in 2000, many of the changes in the guidance were related to remote sensing, including 

15 Perry, S. G., A. J. Cimorelli, R. J. Paine, R. W. Brode, J. C. Weil, A. Venkatram, R. B. 

Wilson, R.F. Lee, and W. D. Peters, 2005. AERMOD: A dispersion model for industrial source 

applications. Part II: Model performance against seventeen field-study databases. J.Appl.Meteor., 

44, 694-708.

16 EPA, 1987. On-Site Meteorological Program Guidance for Regulatory Modeling 

Applications", EPA-450/4-87-013. U.S. Environmental Protection Agency, Research Triangle 

Park, NC, 27711. 
Page 107 of 181

the use of SODAR data. Citing numerous studies comparing SODAR-based turbulence statistics 

(sigma-theta and sigma-w) with tower-based data, where reasonably good agreement was found 

for sigma-w, but not for sigma-theta, the current guidance considers SODAR-based sigma-w to 

be acceptable for use in dispersion modeling (EPA, 2000).17

Although a systematic analysis of the relative contribution of measured sigma-w to AERMOD 

model performance has not been conducted, the overall good agreement between modeled and 

observed concentrations for AERMOD across 17 field study databases, of which 8 included 

sigma-w data, provides no indication that inclusion of sigma-w actually degrades model 

performance, and NJDEP provides no technical rationale to suspect that to be the case. On the 

contrary, based on an analysis of predicted/observed robust highest concentration (RHC) ratios 

across the 17 field studies (EPA, 2003), there is some indication that inclusion of sigma-w data 

improves model performance. The average RHC ratio for the 8 studies that included sigma-w 

data was 0.999, compared to an average RHC ratio of 1.105 for the 9 studies that did not include 

sigma-w data. The range of RHC ratios was also narrower for the studies that included sigma-w 

data, ranging from 0.77 to 1.11, compared to a range from 0.44 to 1.78 for the studies that did 

not include sigma-w data. 

NJDEP’s statement that “sigma-w values above the height of the meteorological tower were 

calculated internally by AERMOD “ appears to suggest that even when sigma-w data are 

available, the data will not be utilized within the model above the highest measurement level. 

While NJDEP is partially correct in stating that sigma-w values above the height of the 

meteorological tower are calculated internally by AERMOD, that statement overlooks the fact 

that the measured sigma-w values do affect the values used within AERMOD above the highest 

measurement level since the profile computed within AERMOD is fitted to all available 

measurements. See Section 7 of the AERMOD model formulation document (Cimorelli, et al., 

2004)18 for more details.

Comment: 

“2.b - Effect of SODAR Sigma-w Data on Model Predictions

To assess the impact of EPA’s inclusion of the SODAR sigma-w data, the meteorological dataset 

developed by the EPA for their 126 petition modeling was modified by NJDEP by removing all 

the SODAR sigma-w data. No other changes to the meteorological dataset used by EPA were 

made. The AERMOD was rerun with this modified meteorological dataset. Table 1 gives the 

model’s predictions of the five highest 99th percentile of the daily maximum1-hour 

concentrations for the two scenarios: meteorological data with the SODAR sigma-w data and 

meteorological data without the SODAR sigma-w data.

 17 EPA, 2000. Meteorological Monitoring Guidance for Regulatory Modeling Applications.EPA454/R-99-005. U.S. Environmental Protection Agency, Research Triangle Park, NC, 27711.

18 Cimorelli, A. J., S. G. Perry, A. Venkatram, J. C. Weil, R. J. Paine, R. B. Wilson, R. F. Lee, 

W. D. Peters, R. W. Brode, and J. O. Paumier, 2004. AERMOD: Description of Model 

Formulation, EPA-454/R-03-004. U.S. Environmental Protection Agency, Research Triangle 

Park, NC.
Page 108 of 181

Modeling the emissions from Units 1 and 2 not using the SODAR sigma-w data increases the 

predicted maximum 99th percentile daily maximum 1-hour SO2 concentration by 12 percent. The 

other receptors with the high predicted impacts show a similar increase. The location of the 

maximum impacts also changes to the elevated terrain on Kittatinny Ridge. These results bring 

into question whether AERMOD would have performed as well as in did in the previous 

validation studies (EPA, 2003; Perry, et al., 2005) if SODAR sigma-w data had been used.”

[EPA notes that the top five values with SODAR sigma-w data presented in Table 1 of NJDEP’s 

comments are not the top five 99th-percentile values based on impacts from Units 1 and 2, but 

represent the contribution from Units 1 and 2 to the top five 99th-percentile values for source 

group ALL including contributions from Units 1, 2, and 5 plus monitored background.]

Response:

We disagree with NJDEP’s assertion that the mere fact that the predicted maximum 99th 

percentile daily maximum 1-hour SO2 concentration for Portland increased by 12 percent and 

that the location of maximum impact changed based on exclusion of SODAR sigma-w data 

brings “into question whether AERMOD would have performed as well as it did in the previous 

validation studies if SODAR sigma-w data had been used.” As noted above in response to 

comment 2.a, an analysis by the EPA of predicted/observed RHC ratios across the 17 field 

studies provides some indication that inclusion of sigma-w data improves model performance. In 

addition, of the 17 field study databases on which AERMOD was validated, only two studies 

included SODAR data, Martin’s Creek and Tracy. As with the Portland SODAR data, both 

Tracy and Martin’s Creek field studies predated the 2000 update to EPA’s meteorological 

monitoring guidance regarding the use of SODAR-derived sigma-w data, and these applications 

were therefore consistent with the EPA meteorological monitoring guidance at the time. For 

these two field studies, the ratio of AERMOD predicted/observed 1-hour robust highest 

concentrations (RHCs) for Tracy was 1.04, and the ratio of AERMOD predicted/observed 3-hour 

RHCs for Martin’s Creek was 1.12 (EPA, 2003). The Tracy study was an intensive field study 
Page 109 of 181

with robust site-specific meteorological data, including five levels of sigma-w data up to 150 

meters from an instrumented tower and vertical temperature profiles up to 400 meters from a 

tethersonde. Given the extent of data available from the Tracy field study, it seems unlikely that 

inclusion of SODAR sigma-w data would have significantly altered the performance of 

AERMOD. The data available for the Martin’s Creek field study was more comparable to the 

site specific meteorological data available for Portland, and Martin’s Creek is located within 

about 15 kilometers of the Portland tower. Based on the AERMOD evaluation results for 

Martin’s Creek, a reduction in peak concentrations of about 10 percent, comparable to the 

reduction noted by NJDEP for Portland based on inclusion of SODAR sigma-w data, would 

actually improve the performance of AERMOD for that field study, contrary to NJDEP’s 

assertion. 

An additional assessment of the potential contribution to modeled concentrations associated with 

inclusion of SODAR sigma-w data was conducted by the EPA based on NJDEP’s analysis 

(NJDEP, 201119) of Portland’s impacts on the Columbia, NJ ambient SO2 monitor, located about 

2 kilometers northeast of the Portland plant. 

The EPA Table 1 below summarizes the results of the model-to-monitor comparisons for the 

Columbia monitor conducted by EPA to assess the potential effects on model performance 

associated with inclusion of SODAR sigma-w data and the adjustments to the measurement 

heights to account for the difference in base elevation of the meteorological tower and SODAR 

relative to the Portland stack base elevation, both separately and combined. The monitored and 

modeled concentrations in Table 1 are based on the top 10 daily maximum 1-hour values for 

consistency with the form of the 1-hour SO2 NAAQS, and the monitored values reflect observed 

concentrations for a complete year, from September 23, 2010 through September 22, 2011. The 

results presented in Table 1 show that the average ratio of modeled/predicted concentrations for 

the top 10 daily maximum 1-hour values for AERMOD based on the EPA adjustments to the 

meteorological data is 1.14, indicating very good agreement between modeled and monitored 

concentrations, with a slight bias toward overestimation consistent with the fact that the modeled 

emission scenario represents peak operating conditions during the period. The average 

predicted/observed ratio drops to 0.68 when the SODAR sigma-w data are removed. A less 

significant drop in the average predicted/observed ratio to 0.85 occurred when the SODAR 

sigma-w data were included but without EPA’s adjustments to the measurement heights. 

However, the average predicted/observed ratios were even lower at 0.61 when both the SODAR 

sigma-w and measurement height adjustments were excluded. For comparison, the average 

predicted/observed ratio for the 100%-load/70%-allowable emission scenario for AERMOD 

based on the meteorological data used by NJDEP was 0.77. Although these model-to-monitor 

comparisons are based on a single monitoring location and the use of 1993-1994 meteorological 

data for the modeled concentrations vs. 2010-2011 for the monitored concentrations, the results 

tend to corroborate the use of SODAR sigma-w data and other adjustments to the meteorological 

data incorporated in EPA’s AERMOD modeling. Additional details regarding these analyses 

 19 NJDEP, 2011. Analysis of the Sulfur Dioxide Measurements from the Columbia Lake NJ 

Monitor. Bureau of Technical Services, Division of Air Quality, New Jersey Dept. of 

Environmental Protection, March 4, 2011. Docket ID No. EPA-HQ-OAR-2011-0081-0019
Page 110 of 181

related to the Columbia monitoring data are provided in Appendix B of the EPA final rule 

Modeling TSD.

Table 1. Comparisons of daily maximum 1-hour SO2 AERMOD modeled concentrations 

(ug/m3) based on 100% load and 70% allowable emissions vs. Columbia monitored 

concentrations, with and without the EPA adjustments to Portland meteorological data

1-hr 

Ran

k

Colum

bia Obs 

Conc

AERM

OD All 

Adj

Pred/O

bs All 

Adj

AERM

OD No 

sigw

Pred/O

bs No 

sigw

AERM

OD No 

H Adj

Pred/O

bs No 

H Adj

AERM

OD No 

Adj

Pred/O

bs No 

Adj

1 479 782 1.633 384 0.802 401 0.839 310 0.648

2 426 531 1.245 337 0.791 379 0.890 263 0.617

3 413 433 1.047 224 0.542 357 0.863 216 0.523

4 356 416 1.169 218 0.614 313 0.881 212 0.595

5 348 356 1.023 212 0.609 296 0.851 210 0.602

6 327 351 1.073 210 0.643 265 0.811 204 0.625

7 306 309 1.010 206 0.673 248 0.810 186 0.609

8 290 301 1.038 205 0.704 248 0.852 182 0.625

9 283 299 1.059 201 0.713 232 0.823 179 0.634

10 277 296 1.068 190 0.684 230 0.830 176 0.635

Ave 350.5 407.4 1.136 238.8 0.678 297.1 0.845 213.8 0.611

Comment: 

“3. Rerunning of AERSURFACE for Land Surface Characteristics

Page 62 of the TSD discusses NJDEP’s modification of the surface roughness, Bowen ratio, and 

albedo used by NJDEP to characterize the land use around the Portland meteorological site. A 

beta version of AERSURFACE that has had very limited public review or availability was used 

by EPA to recalculate the surface roughness, Bowen ratio, and albedo.

3.a – Snow Cover

It appears EPA did not account for snow cover during the winter season in its beta 

AERSURFACE model run. The Allentown PA Airport is located approximately 25 miles 

southwest of the Portland meteorological tower. Review of the Climatological Data Monthly 

Summaries from the Allentown Airport indicates there was snow cover on the ground for 

approximately 67 percent of the time between December 1, 1993 to February 28, 1994. Similar 

to NJDEP, all previous uses of AERSURFACE to generate meteorological data for AERMOD 

assumed snow cover during the winter months (ENSR, 1999; ENSR, 2000).

3.b – Surface Roughness Radius of Influence

A value of 5 km was used for the surface roughness radius of influence used in EPA’s beta 

AERSURFACE run. This value is extremely large for wind data with a 10 meter reference 

height.

3.c - Beta Version of AERSURFACE

Very little information concerning the beta version of the AERSURFACE used by EPA is 

available to the public so it is difficult to comment on its use. It is assumed this version of 
Page 111 of 181

AERSCREEN uses the methodology briefly discussed in the AERSURFACE presentation at the 

2010 Regional/State/Local workshop in Portland, Oregon (use of the internal boundary layer to 

calculate an effective surface roughness). Since this method is experimental, a sensitivity 

analysis was conducted by NJDEP to compare AERMOD’s predictions using the surface 

roughness, Bowen ratio, and albedo generated using the beta version of AERSURFACE to 

AERMOD’s predictions using the current version of AERSURFACE (version 08009) on the EPA 

SCRAM website and a 1 km surface roughness radius of influence. Snow cover in the winter 

months was also assumed.

Other than the recalculated surface roughness, Bowen ratio, and albedo values and the removal 

of the SODAR sigma-w data as described in comment 1.c, NJDEP made no other changes to the 

EPA meteorological data set. Table 2 shows the model’s prediction of the five highest 99th

percentile of the daily maximum1-hour concentrations between the EPA 126 Petition modeling 

and the modeling with this revised meteorological dataset. 

The results in Table 2 suggest that if EPA had used the current AERSURFACE (version 08009) 

on the EPA SCRAM website and included snow cover for the winter months, AERMOD’s 

maximum predicted impacts would have been 16 percent higher. As with the results in Table 1, 

when the SODAR sigma-w was removed, the location of the maximum impacts using the 

AERSURFACE (version 08009) values is on the elevated terrain at Kittatinny Ridge.”

Response:

First, it is unclear what NJDEP’s statement that “AERMOD’s maximum predicted impacts 

would have been 16 percent higher” if “EPA had used the current AERSURFACE (version 

08009) on the EPA SCRAM website and included snow cover for the winter months” is based 

on. The differences in Table 2 of the NJDEP comments show an increase of about 28 percent 

between the EPA modeling with SODAR sigma-w and the Beta version of AERSURFACE vs. 
Page 112 of 181

without SODAR sigma-w and with AERSURFACE version 08009. On the other hand, 

comparing the highest result from Table 1 of NJDEP’s comments without SODAR sigma-w data 

to the highest value from Table 2 of NJDEP’s comments without SODAR sigma-w data with the 

use of AERSURFACE version 08009 represents an increase of only 13.7% attributable to 

surface characteristics. However, the latter results are without the use of SODAR sigma-w data 

and therefore would not apply directly to EPA’s modeling results.

Regarding the use of a Beta version of AERSURFACE, EPA has indicated that the 

AERSURFACE tool is not currently part of the AERMOD regulatory modeling system (EPA, 

200820), and therefore is not required for use in regulatory applications of AERMOD. EPA 

elected to utilize a Beta version of AERSURFACE based on an assessment of the most 

appropriate methodology currently available to determine surface characteristics for use in 

processing meteorological data with AERMET. The Beta version of AERSURFACE estimates 

the effective roughness based on an internal boundary layer (IBL) approach and the radius used 

in determining the effective roughness depends on the surface characteristics of each site and 

sector (EPA, 201121). NJDEP incorrectly interpreted the header record from the Beta version of 

AERSURFACE included in the AERMET Stage 3 input file as indicating that a 5 kilometer 

radius was used for the roughness estimates. The Beta version of AERSURFACE initially 

extracts land cover data based on a default radius of 5 kilometers, but the radius associated with 

effective roughness estimates varies depending on the land cover characteristics at the site and 

the height of the reference wind measurement associated with the effective roughness. For the 

10m level at the Portland meteorological tower site the effective radius varied between about 600 

and 800 meters depending on the sector. EPA regrets any confusion that may have been 

introduced by this information.

One of the adjustments that EPA made to the Portland site specific meteorological data was to 

include the 10-meter wind speed as the reference wind, rather than using the 30-meter wind 

speed as was done by NJDEP (see EPA proposed rule Modeling TSD). Since the effective 

roughness method incorporated in the Beta version of AERSURFACE utilizes the measurement 

height in determining the radius associated with the effective surface roughness, it would be 

inappropriate to utilize the surface roughness determined by NJDEP based on version 08009 of 

AERSURFACE, given the fact that NJDEP used a non-default radius of 2 kilometers for 

estimating surface roughness to account for the 30-meter reference wind measurement height. 

NJDEP’s use of the larger radius to account for the 30-meter measurement height resulted in 

somewhat higher surface roughness values than those determined by EPA for most sectors. 

Furthermore, as noted in Appendix B of the proposed rule Modeling TSD, the EPA applied the 

Beta version of AERSURFACE to determine effective roughness values at the Portland tower 

site based on a 30-meter wind measurement height in order to assess the appropriateness of the 

 20 EPA, 2008. AERSURFACE User’s Guide. EPA-454/B-08-001. U.S. Environmental 

Protection Agency, Research Triangle Park, NC.

21 EPA, 2011. AERSURFACE Update. Presentation at 2011 Regional/State/Local Modelers 

Workshop, Atlanta , GA, June 2011. Available at: 

http://www.cleanairinfo.com/regionalstatelocalmodelingworkshop/archive/2011/Presentations/4-

Wednesday_AM/4-2_Brode_RSL2011_AERSURFACE_Update.pdf
Page 113 of 181

non-default radius used by NJDEP. The results of this comparison are presented below in Figure 

1, which shows generally good agreement between the effective roughness values from the Beta 

version based on a 30m measurement height and the roughness values determined by NJDEP 

using a non-default radius of 2 kilometers, essentially confirming the appropriateness of the nondefault radius used by NJDEP.

Based on a further review of available climatological data for the Portland area for 1993-94, the 

EPA agrees that it may be reasonable to assume continuous snow cover for the winter months, as 

was done by NJDEP in their AERMOD modeling analysis. We note that the highest seasonal 

snowfall total reported between 1979 through 2011 at the Allentown airport, located about 40 

kilometers southwest of Portland, occurred during the 1993-94 winter season. We also note that 

climatological observations of snow cover for the Belvidere Bridge coop station, located about 

10 kilometers south of Portland, indicated relatively continuous snow cover from late December 

1993 through about mid-March 1994. However, this change in the meteorological data 

processing resulted in less than 0.1 percent change in the modeled design value, and therefore 

would have no effect on the final remedy emission limit of 81 percent reduction from allowable 

emissions. Furthermore, the inclusion of snow cover in the surface characteristics generally 

resulted in slightly lower ambient impacts from the Portland plant, contrary to NJDEP’s 

assertions. This review of climatological data related to snow cover for the area also indicates 

that the 1993-94 winter season was not typical for the area. Given the minimal influence that the 

snow cover assumption has on modeled impacts from Portland, the fact that assuming continuous 

snow cover introduces a very slight bias toward reducing ambient impacts, and the fact that an 

assumption of continuous snow cover for winter months would not be representative of typical 

conditions for the area, we believe that the AERMOD modeling results without the assumption 

of winter snow cover are a more appropriate basis for assessing the potential for Portland 

emissions to contribute significantly to nonattainment or interfere with maintenance of the 1-

hour SO2 NAAQS in New Jersey.
Page 114 of 181

NJDEP Comment: 

“4 - Conclusion

The AERMOD modeling submitted by NJDEP utilized the meteorological measurements 

collected near Portland as they have historically been used. The previous use of this 

meteorological data as approved by EPA Region 2, EPA Region 3, PADEP, NJDEP, and the 

owners of Portland Power Plant establishes a precedent that should be followed. There are also 

technical concerns with EPA’s adjustments as explained in this Appendix. As compared to the 

result obtained by EPA using their adjusted meteorological data, the maximum 99th percentile 

daily maximum 1-hour SO2 concentration increased by approximately 28 percent when NJDEP 

modeled Portland’s emissions not using the SODAR sigma-w data, surface data from the beta 

version of AERSURFACE, and winter snow cover. The modifications made by EPA result in 

lower predicted SO2 concentrations and increase the likelihood that actual SO2 concentrations 

will be under-predicted. The consequence of this would be an inadequate remedy for Portland 

Power Plant and the exposure of nearby residents to SO2 concentrations above the 1-hour 

NAAQS.”

Response:

There is no technical, policy or legal reason for EPA’s use of the Portland site specific 

meteorological data in support of this analysis to be constrained by past precedents on the use of 

the data by EPA Region 2, EPA Region 3, PADEP, NJDEP, or the owners of Portland Power 

Plant. In addition to a clear change in EPA’s meteorological monitoring guidance in 2000 

related to the use of SODAR-derived sigma-w data, as further shown in EPA’s response to 

NJDEP’s comment 2.b, the inclusion of SODAR sigma-w data and other adjustments to the 

meteorological data made by EPA appear to improve the performance of AERMOD as compared 

0

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Surface Roughness (m)

Winter Spring Summer Fall 

Figure 1. Comparison of z0 Values (m) for Portland for 4 Seasons and 12 Sectors

NJDEP Zo 2km

EPA Eff Zo 30m

EPA Eff Zo 10m
Page 115 of 181

to the unadjusted meteorological data based on model-to-monitor comparisons with the 

Columbia, NJ monitor, as shown in Table 1 included above in the EPA response to NJDEP 

comment #2.b, and these comparisons would therefore tend to corroborate EPA’s adjustments to 

the meteorological data. NJDEP offers no empirical evidence or any technical justification to 

support their assertion that the EPA modifications to the Portland site specific meteorological 

data “increase the likelihood that actual SO2 concentrations in will be under-predicted.” In fact, 

with the exception of a few isolated peaks on the complex terrain along the Kittatinny Ridge near 

the Delaware Water Gap about 7 kilometers northwest of Portland, the AERMOD modeled 

concentrations in New Jersey based on the EPA adjustments to the Portland site specific 

meteorological data are higher than the AERMOD modeled concentrations based on the 

unadjusted meteorological data used by NJDEP. About 96 percent of the 4th-highest 1-hour 

values based on the EPA 100-meter receptor grid show higher impacts based on the EPA 

adjusted meteorological data as compared to results based on the data used by NJDEP, with an 

average difference across the full 100-meter receptor grid of about 44 percent higher 

concentrations.

VI. Economic Benefits of the Portland Facility

Commenter: Alicia M. Karner, Economic Development Administrator, Department of 

Community and Economic Development, Northampton County, Pennsylvania

Comment:

Over the past several years, Northampton County has been working to bring additional industrial

development to the area around the Portland Station, investing more than $4 million dollars in 

infrastructure improvements. Additionally, the county is aggressively pursuing the planning and 

development of an industrial park on the 700+ acres adjacent to the Portland Power Plant. The 

recent relocation of two businesses across from the power station, investing in and occupying

more than 500,000 square feet is a positive development for the community. However, an out-ofwork, shut down power plant will deter businesses from investing in that property.

GenOn has been a great partner in this potential development and the impact of the loss of this 

company to the Northampton County community is greater than just the loss of the power plant. 

On behalf of the Northampton County Executive and Council, please consider the economic 

development opportunities that could occur with the Portland station as an anchor tenant and the 

very real impact that can have on the citizens of our community.

Commenter: Gene Barr, Vice President, Government and Public Affairs, Pennsylvania 

Chamber of Business and Industry 

Comment:

The economic impact of the proposed rule could be devastating. We strongly believe that good, 

family sustaining job; will be at risk if this proposed rule is adopted. The Portland Station 

economic benefits include over 70 full-time jobs, an annual payroll of $7.7 million, annual local 

O & M spend $10 - $25 million, $393,000 property taxes paid, annual PA coal spend is $50 

million, and is a significant multiplier of economic benefits across northeastern PA.

Commenter: John Stoffa, County Executive, Office of the County Executive, Northampton 

County Courthouse, County of Northampton, Easton Pennsylvania 
Page 116 of 181

Comment:

GenOn is a significant economic contributor to the local community, including Upper Mt. Bethel 

Township, Bangor Area School District and Northampton County. GenOn contributes nearly $30 

million to the regional economy in direct spending. This includes employee payroll, supplies, 

taxes, contracts, and contractors, all from within the local community. What this figure does not 

include is the ancillary benefits that are recognized by the local businesses in the area - whether 

it is additional purchases at the grocery store by the contractor working at the facility or the new 

car purchased by the GenOn employee – all spending is critical during this time. As you can 

imagine, the loss of this kind of spending could be devastating to the local economy. GenOn 

currently pays significant property taxes to the local taxing jurisdictions and the loss of this 

revenue would most certainly result in an increase in taxes for the residents of the county. An 

out-of-work, shut down power plant will deter businesses from investing (in the area).

Commenter: R. E. Gerwig

Comment:

Abandonment of this generating station would be a severe blow to the financial stability of our 

township. The station is our second largest property tax payer. Without the Portland Station, we 

would have to replace those tax revenues with significant additional tax burdens on our local 

residents.

Unfortunately, for our local community, abandonment of this generating station would be a

severe blow to the financial stability of our township. This station is our second largest property 

tax payer. It also employs over 70 people, most of which come from the immediate area. We are 

a rural community and we do not have very many industries that contribute to our tax base. 

Without the Portland Station, we would have to replace those tax revenues with significant 

additional tax burdens on our local residents, just to meet our annual budget. We also count on 

GenOn and other civic-minded companies to provide support for our township programs for the 

children and for the community.

Commenter: Richard Drey, International Brotherhood of Electrical Workers (IBEW) 

Local 777

Comment:

Represent operators of Portland Station – 60 workers. 

Difficult to understand why this plant is singled out by this ruling. Nonetheless, I am sure we 

will do what we can to meet the standards set forth under this ruling.

Portland provides family-sustaining pay and benefits. Not easy to find in today’s economy. If 

not operational not sure what my family would do. 

On behalf of EBEW local 777 and our members, hope you will consider our viewpoints during 

your review and promote a fair balance between protecting jobs and protecting the environment.

Commenter: T. Anthony Iannelli, President and Chief Executive Officer (CEO), Greater 

Lehigh Valley Chamber of Commerce (GLVCC)

Comment:
Page 117 of 181

The stations’ owner, GenOn Energy, is a significant economic contributor to the local 

community, school district and Northampton County. GenOn contributes nearly $30 million to 

the regional economy in direct spending. This does not include additional purchases that are 

recognized by the local area businesses which are extremely important during this delicate time 

in our economy.

As you can imagine, the economic impact of losing this revenue stream could be devastating to 

the local economy. It could lead to significant tax increases for the residents of the region – at a 

time when many businesses and families simply cannot afford additional expenses. Let me be 

clear, our members are advocates for clean air and care greatly about the environment. In fact, 

we have a specific Energy and Environmental Policy Committee that, along with our public 

officials, works to develop, coordinate, and advance long term business-sensitive strategies for 

sustainable energy efficiency initiatives, environmental protection and infrastructure 

development. However, we also believe that strong environmental stewardship and building and 

maintaining a strong business base are not mutually exclusive goals.

Along with our private and public sector partners, we continue efforts to bring additional 

industrial and commercial development -as well as small businesses- to the area surrounding 

Portland Station. An empty power plant resulting in 70 individuals losing their jobs, would be an 

extreme detriment to our progress

On behalf of all of our members, please consider the community and economic impact while 

determining the timing and enforcements of EPA regulations affecting the Portland Generating 

Station.

Response:

The EPA thanks the commenters for the background information on GenOn and considered it in 

drafting the final rule. The EPA is required by the CAA to act on the section 126 petition 

submitted by NJDEP. The final rule does not require Portland to shut down; it permits the 

continued operation of Portland. While economic issues are not a criteria for the EPA’s 

consideration under section 126, the EPA believes there are several reasonable options available 

for Portland to achieve these emission limits while continuing to operate. These are proper 

considerations for the Portland in developing a compliance plan to eliminate its significant 

contribution to nonattainment and interference with maintenance of the 1-hour SO2 NAAQS in 

New Jersey. Portland will have the flexibility to adapt to a compliance strategy at the lowest 

possible costs and is not required to pursue any particular control technology as a result of this 

rule.

Commenter: Tanya Dentith

Comment:

I am a tax payer in Northampton County and I don't want my tax base to go up because this plant 

is closed. I certainly don' want to see these people loose their jobs or Mt. Bethel loose their 

taxable income. However this is not about that. This decision is about doing what you are 

suppose to do. What Richard Nixon created this agency to do, PROTECT THE

ENVIRONMENT. That is your job.
Page 118 of 181

Commenter: Donald C. Seigel, International Vice President, Third District of the 

International Brotherhood of Electrical Workers (IBEW)

Comment:

New Jersey's Section 126 petition threatens the livelihoods and welfare not only of the IBEW 

members working at the Portland plant, but all of the related service, maintenance and supply 

jobs associated with the plant. If the plant were prematurely retired as a result of EPA's decision 

in this matter, thousands of jobs in the surrounding community would be suddenly lost. The local 

tax base, and school, police, fire and other essential support services would be adversely 

impacted. Opportunities for alternative employment, at comparable wages and benefits, are few. 

Northampton and its surrounding Pennsylvania counties have among the highest unemployment 

rates in the Commonwealth, currently 8.0% or more according to the Pennsylvania Department 

of Labor and Industry.

Response:

The EPA is required and constrained by the CAA to act on the section 126 petition submitted by 

NJDEP. The final rule does not require Portland to retire; it permits the continued operation of 

Portland. While economic issues are not a criteria for the EPA’s consideration under section 126, 

the EPA believes there are several reasonable options available for Portland to achieve these 

emission limits while continuing to operate.

Commenter: Rene Mathez, Knowlton Township Committee

Comment:

In addition to improving our health, construction of pollution control technology would, it seems 

to me, bring significant benefits to the local economy. Installation of pollution control 

technology will bring much needed jobs to the area.

Response:

In implementing the rule, the EPA believes that sulfur dioxide emission reductions will improve 

air quality. Additionally, the EPA agrees that the installation of control technology may bring 

about benefits to the local economy.

Commenter: Steve Davies, GenOn, Vice President of Asset Management

Comment:

GenOn Energy is one of the largest competitive generators of wholesale electricity in the United 

States. With power generation facilities located in key regions of the country and a generation

portfolio of approximately 24,600 megawatts, GenOn is helping meet the nation's electricity 

needs. GenOn's portfolio of power generation facilities includes baseload, intermediate and 

peaking units using coal, natural gas and oil to generate electricity. In Pennsylvania, we own all 

or part of 9 major coal-fired generating stations, including the Portland station, and 9 gas-fired 

generating stations, totaling 5200 MW. The electricity generated at these stations is equivalent to 

approximately 15% of the total annual electric power consumption in the state of Pennsylvania 

or enough to power over 5 million homes. We have over 1200 employees in Pennsylvania, with 

an annual payroll of approximately $115 million. GenOn pays approximately $15 million each 

year in Pennsylvania property taxes, and spends over 5650 million each year for O&M expenses 

and fuel. Almost all of this expense is paid to con tractors and businesses in Pennsylvania.
Page 119 of 181

Response:

The EPA thanks the commenter for the background information on GenOn and considered it in 

drafting the final rule. 

VII. Emission Limits and Compliance Schedules

1. EPA should require Portland to shut down.

Commenter: Rev. Mary Tiebout, Minister, Unitarian Universalist Fellowship of Sussex 

County (UUFDC)

Comment:

We have grave concerns as to whether this Portland Power Plant can actually be “cleaned up” 

and reduce its sulfur dioxide emissions. In our opinion, the EPA should not just regulate this 

plant, but should insist on it being closed down once and for all.

Commenter: Anna Maria Caldara, Save the Park in Blairstown, NJ

Comment:

Humanity and the earth are at a crossroads. Our ecosystems are so compromised that life itself 

hangs in the balance. The current mass extinction of species reflects this. Let us err on the side of 

caution.

For long overdue reasons of health and safety, GenOn must no longer be regulated, but closed. 

Commenter: Laura Dempsey, Save the Park Organizations

Comment:

In closing, we are urging the EPA to come to a quick and ethical decision to close down this coal 

plant so that the health and safety of the people of New Jersey and Pennsylvania are no longer 

threatened. In this period of our history where we are attempting to change to clean and 

renewable energy, companies like Gen-On should make every effort to stop polluting our 

environment. We have suffered the consequences of their actions far too long. Not only do we 

ask this, but we implore you to do this. 

Response:

The EPA believes that compliance with the emission limits in the final rulemaking is technically 

feasible and has therefore exercised its statutory authority to permit continued operation at 

Portland beyond three months. See preamble discussion in section V.E. for the EPA’s rationale. 

2. EPA should require Portland to control emissions or shut down

Commemnter: UARG

Comment:

“Alternative compliance options should the Portland Plant decide to cease operation at the 

units subject to the emission limits” in the April 7, 2011 proposed rule (see id. at 19884/1, 

19677/1): Because, for the reasons discussed above, EPA does not have authority under the CAA 

to set final or interim emission limits on the Portland Plant, the Agency also lacks authority to 
Page 120 of 181

direct the Portland Plant to shut down three years from now or any time within the next three 

years. If a case arises in which EPA is authorized to grant a section 126 petition, however, EPA 

should then seek comment on a wide range of factors before ordering a facility to shut down on 

any schedule. For example, EPA should take into account the direct and indirect job losses 

resulting from a shut-down order; the effects of such an order on the local tax base in 

communities where targeted sources are located; and, in the case of an electric generating 

facility, the effects of such an order on the cost, and the reliability of the supply, of electricity on 

a local and regional basis. 

Response:

The EPA disagrees with the commenter’s assertion that it does not have the authority to direct a 

source to shut down under section 126 if it is found by the Administrator to be in violation of 

section 110(a)(2)(D)(i). However, the EPA is not ordering Portland to shut down, and the EPA 

has not imposed a separate compliance schedule in the event that Portland does choose to shut 

down as a means of complying with the emission limits required by this rule. Accordingly, the 

EPA is not required to comment on what factors would be relevant to developing a separate 

compliance schedule for ordering a plant to shut down under section 126 as those factors are not 

relevant in this case.

Commenter: UARG

Comment:

EPA’s authority to determine not to set emission limitations on Portland Plant Units 3, 4, 

and 5 (id. at 19676-19677): In those circumstances where EPA has authority to grant a section 

126 petition (which it does not here), the Agency also has discretion to impose emission limits 

only on those units that are shown to have a significant impact on another state’s ability to attain 

and maintain the NAAQS. Where (as here), EPA has determined that certain units’ impacts on 

downwind air quality are “negligible” (id. at 19677/1), EPA has discretion under section 126 not 

to regulate emissions from those units.

Response:

The EPA agrees it has discretion to exclude units from regulation whose emissions are 

negligible. The EPA has not imposed emission limits on 3, 4, and 5.

Commenter: Erin Phalon and Joshua R. Stebbins, The Sierra Club

Comment:

For the same reason, if the Portland Plant elects to cease operations rather than comply with 

EPA’s proposed emissions limitations, it should be required to do so immediately. Under EPA’s 

proposed compliance schedule, the Portland Plant must notify EPA within three months of 

publication of the finding whether it will comply with the proposed emissions limits or cease 

operation. Response to Petition from New Jersey Regarding SO2 Emissions From the Portland 

Generating Station, 76 Fed. Reg. 67, 19678 (proposed April 7, 2011). The proposed compliance 

schedule does not set a schedule for closure of the facility should it elect not to comply, although 

it would require compliance as expeditiously as possible. Id. If the Portland Plant elects 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 interfere with maintenance of the 1-

hour SO2 NAAQS in New Jersey.
Page 121 of 181

Commenter: Commissioner Bob Martin, NJDEP

Comment:

Summary of comment in cover letter

New Jersey urges the USEPA to adopt the final rule as quickly as possible to provide relief to the 

affected citizens of New Jersey from the harm caused by the Portland Plant. We also note that 

the demonstrated area of health standard exceedances extends into 3 counties in Pennsylvania. 

Per Section 126(c)(2) of the Clean Air Act, the USEPA should require the shutdown of the coalfired units at the Portland Plant within 3 months of its final rule. Any delay in achieving 

reductions at this plant is another potential unhealthy day for the citizens of New Jersey and 

Pennsylvania. New Jersey continues to see exceedances of the 1-hour SO2 NAAQS at the 

Columbia Lake monitor 1.2 miles northeast of the Portland Plant. 

Given the long term pollution track record of this plant, if significant reductions cannot be made 

expeditiously, New Jersey strongly supports the closure of the GenOn Portland plant. Over the 

longer term, a conversion to natural gas should be considered by GenOn. The burden to justify 

any operation beyond 90 days should be on GenOn. New Jersey urges the USEPA to ensure 

interim reductions are no less than 80% within 90 days, and 95% reductions are phased in as 

soon as possible.

Detailed discussion of comment in attachment:

II. EPA Should Require Portland To Shut Down Within Three Months or Require Greater 

Emission Reductions in a Shorter Time Frame

Based on EPA’s proposed finding of Section 126 violations at Portland, EPA must 

require the coal units at this plant to shut down within three months of EPA’s final rule

in order to abate the adverse health and environmental effects from SO2 emissions and 

not allow the operation of the plant until it mitigates its unlawful impacts. See 42 U.S.C. 

§ 7426(c)(2)(it is a violation of Section 126 of the Act for any major existing source to 

operate more than three months after a finding by EPA).

EPA can only allow the continued operation beyond three months at Portland if Portland 

“complies with ... emission limitations and compliance schedules (containing increments 

of progress) as may be provided by the Administrator to bring about compliance with the

requirements in ... this section as expeditiously as practicable, but in no case later than 

three years after the date of such finding.” 42 U.S.C. § 7426(c)((2).

Further, EPA should require GenOn to achieve additional emission reductions and to 

achieve them sooner than proposed in order to satisfy the Act’s “as expeditiously as

practicable” requirement and for the protection of public health. In order to allow 

Portland to continue to operate and come into compliance with Section 126 of the Clean 

Air Act as expeditiously as practicable, New Jersey outlines in these comments the 

measures that EPA should require [FN #]. EPA’s proposed limits and time frames are 

not sufficient for the attainment of the 1-hour SO2 NAAQS or to remedy the Section 126 

violations here. In contrast, the following time line and emission reductions will bring the 
Page 122 of 181

Portland plant into compliance with Section 126 and are based upon New Jersey’s 

modeling and proven measures at other coal-fired power plants.

Specifically, within three months of EPA’s final rule, EPA should require Portland to 

reduce its emissions by between 80%-95%. Only if a 95% reduction is shown to be 

infeasible by GenOn should a lesser interim reduction rate be approved, and such lesser 

rate should be no less than 80%. Within one year, EPA should require Portland to reduce 

its SO2 emissions by, at a minimum, 95% to ensure sufficient protection of the public’s 

health. If 95% emission reductions are not achieved, Gen On must demonstrate they have 

taken all practicable measures to minimize SO2 emissions in this time frame. In addition, 

GenOn should be required to continue to implement measures to achieve 95% SO2 

reduction as expeditiously as practicable.

The following comments detail how Portland can achieve at least 95% emission 

reductions in less than three years, as well as 80-95% emission reductions in the short 

term. See Sections III and IV. If the coal units at Portland do not meet these reduced 

emission rates within these time frames, EPA should require that these units cease 

operation until they do meet these emission rates, but Portland in no circumstance has 

longer than three years from EPA’s final rule to come into compliance with Section 126 

and continue to operate. 42 U.S.C. § 7426(c)((2).

[FN 3] Summary of Recommended Interim and Longer Term Emission

Reduction Requirements:

(1) Within 90 days, 80% reduction in the maximum hourly SO2 emission rate or shut 

down the coal boilers.

(2) Within 90 days to one year, further minimize SO2 emissions and achieve 95% 

reductions if feasible. If such emission reductions are not achieved, GenOn must

demonstrate it has taken all practicable measures to minimize SO2 emissions in this 

timeframe. 

(3) Within one year to three years (if 95% SO2 reductions are not achieved in the first 

year), GenOn must continue to implement measures to achieve 95% SO2 reduction as 

soon as possible, but no longer than the maximum three year timeframe required by 

Section 126. 

(4) Within three years, Portland must cease operation of the coal units if 95% SO2 

reductions have not been achieved.

Commenter: Estella A. VanHorn

Comment:

I encourage you to enforce regulations, as strict as possible, concerning toxic pollutants being 

emitted from the Portland Pennsylvania Generating Station.

Commenter: J. and M. Kane

Comment:

We are fully in favor of having the plant meet your deadline for upgrading, or shutting down the 

plant.

Commenter: M. Cormican 
Page 123 of 181

Comment:

Your efforts to protect air and water quality will not achieve it's stated goal unless you shut the 

GenOn Portland Power Plant down or force them to re-fit their facility to accommodate the 

needs of the local communities.

Commenter: S. Harris

Comment:

The Portland plant in PA needs to stop polluting – convert (like other power plants) to a better 

filtering system or shut down.

Commenter: Katie Feeny, Clean Air Council 

Comment:

While the Council stands firmly behind the EPA's section 126 finding, we acknowledge that this 

finding will only have a positive impact if Portland is held accountable under the terms of the 

finding. The Council urges the EPA to ensure that Portland meets the proposed emissions 

requirements as expeditiously as possible. Progress should be visible within Portland's 3 month 

post-finding period. If there is no progress in this period, the Council recommends the EPA 

consider closing the facility as allowed by statute and move to renewable sources of energy such 

as wind and solar. This section 126 finding will be meaningless unless the Portland Plant makes 

progress in reducing its emissions sooner rather than later. Further, this finding should evidence 

the need for states such as New Jersey and Pennsylvania to accelerate their production of 

renewable sources of energy so that air and natural resources can be protected from harms both 

in state and from across state lines.

Response:

The EPA has implemented emissions limits and a compliance schedule which will eliminate 

Portland’s significant contribution to nonattainment and interference with maintenance of the 1-

hour SO2 NAAQS in New Jersey. Accordingly, the EPA has not required Portland to shut down 

so long as it complies with the emissions limits and compliance schedule. See preamble 

discussion in section V.E. for the EPA’s rationale in support of the compliance schedule and 

options for compliance for the Portland facility, as well as the EPA’s discussion of its statutory 

authority to set emissions limits in lieu of requiring Portland to shut down. See preamble 

discussion in section VII.A. regarding the EPA’s decision not to develop an alternate compliance 

schedule if the source shuts down.

3. Compliance period for emission reductions

Commenter: Anonymous citizen 1

Comment:

I think the EPA is being very generous with the Plant by allowing them to continue operation 

and that their strategy to monitor and decrease future emissions is too lenient. I think it’s that 

giving the company 3 years to meet the standards everyone else abides by, when they 

singlehandedly responsible for part of the increase in New Jersey’s SO2 emissions is too long. I 

think the compliance schedules are a good idea because it would be impossible for the Plant to 

change their technology and emissions over night but I think the EPA should come up with a 

faster timetable. The EPA has also claimed to have identified a number of existing and proven 

control technologies and operational changes that the Plant can use to reduce their emissions.
Page 124 of 181

This means the process shouldn’t be too strenuous or require much research and therefore can 

take full effect in a shorter period of time.

Commenter: Erin Phalon and Joshua R. Stebbins, The Sierra Club

Comment:

To comply with the Clean Air Act and reduce exposure to SO2, EPA should furthermore require 

that the Portland Plant implement its emissions limitations more quickly than is currently 

proposed. Under CAA § 126(c)(2), compliance must be achieved as expeditiously as practicable, 

but in no case later than three years after the date of such finding. 42 U.S.C. § 7426(c)(2). EPA 

has proposed that the Portland facility “achieve and maintain these emissions limitations within 

three years after the effective date of the final rule.” Response to Petition from New Jersey 

Regarding SO2 Emissions From the Portland Generating Station, 76 Fed. Reg. 67, 19664 

(proposed April 7, 2011). In this case, three years is not as expeditious as practicable, and the 

Portland Generating Facility should thus be required to meet the required SO2 limitations more 

quickly.

Although Sierra Club understands that EPA will not determine which control technology should 

be installed at the Portland Plant (Response to Petition from New Jersey Regarding SO2 

Emissions From the Portland Generating Station, 76 Fed. Reg. 67, 19672 (proposed April 7, 

2011), available controls can be implemented in approximately two years. Federal 

Implementation Plan to Reduce Interstate Transport of Fine Particulate Matter and Ozone, 74 FR 

147, 45273 (proposed August 2, 2010), citing Boilermaker Labor Analysis and Installation 

Timing, USEPA, March 2005. According to EPA, a flue gas desulfurization unit, or scrubber, 

which is the only reliable and effective long-term means to achieve the necessary emissions 

reductions, can be installed within 27 months. Id. Therefore, effective, reliable controls can be 

implemented in 25 percent less time than EPA has proposed. Even industry sources such as 

Exelon Company state that dry scrubbers can be installed in 24 months, or 66 percent of the time 

proposed by EPA. Charles River Associates for Exelon Company. A Reliability Assessment of 

EPA’s Proposed Transport Rule and Forthcoming Utility MACT, December 16, 2010. The same 

report, by Charles River Associates for Exelon Company, estimates that Direct Sorbent Injection 

(DSI) can be implemented in only twelve months, or 30 percent of the time proposed by EPA. Id. 

However, DSI is less effective than scrubbers and should therefore only be used on an interim 

basis to achieve SO2 emissions reductions at the Portland Plant. As faster installation of 

pollution controls is feasible, EPA should require the Portland Plant to implement such controls 

within 27 months.

Given the public health impacts of exposure to SO2, three years is far too much time. As stated 

above, SO2 exposure can cause health impacts including narrowing of the airways, increased 

asthma symptoms and hospitalization for respiratory illnesses. Id. at 19666. In addition, SO2 

emissions in the atmosphere form small particles that cause respiratory disease and aggravate 

heart disease. Id. SO2 exposure also contributes to low birth weight and increases infant death 

rates. NJ petition 3 (citing Clean Air Task Force, Dirty Air, Dirty Power Mortality and Health 

Damage Due to Pollution from Power Plants, at 10 (June 2004), available at http: 

www.catf.us/publications/reports/Dirty_Air_Dirty_Power.pdf. It is imperative to install available 

control technology, and thereby reduce the public’s exposure to harmful SO2, as quickly as 
Page 125 of 181

possible. This is practicable in less than the three year period that EPA proposed, and the final 

rule should impose a shorter time period.

Commenter: Richard Lewis 

Comment:

My name is Richard Lewis, I am a resident of warren county in New Jersey. The Portland 

Generating Station should be immediately mandated to cut sulfur dioxide emissions. You have 

residents of at least three separate counties that have been breathing Portlands harmful emissions 

for years. They want more time to consider, while they continue to pollute the air we breath. All 

in the name of 70 jobs and a large rateable. Enough, you have the health of thousands of children 

to consider.

Commenter: Christine and Christopher Roman

Comment:

PLEASE PLEASE PLEASE help us. We do not want to move out of Warren County, but we 

will - and so will countless others that we know are sick and need to get healthy. The economy in 

Warren County will suffer if something isn't done about the Portland Power Plant - and 3 years is 

just too long to wait - it needs to be STOPPED IMMEDIATELY - everyone is too sick to wait 

for 3 years - and we don't need another few hundred people to become ill before something is 

done about this. PLEASE HELP US NOW!!!

Commenter: Georgianna Carol Cook

Comment:

In 2001, while chairman of the Blairstown Environmental Commission, our commission 

sponsored a public meeting at our local library to which representatives of the PPL plant and the 

Reliant Energy plant (upper Mt. Bethel) were invited. During the course of the meeting the 

representatives were asked whether or not their companies would implement remediation to 

decrease emissions. The PPL representative stated his company was amenable to doing what 

could be done to reduce toxic emissions. The representative from Reliant Energy stated his 

company was not prepared to Instltu1e this process "at this time". In the ten years since that 

meeting areas downwind from these plants, and other plants further west, have been subjected to 

a tsunami of air tainted with sulfur dioxide and other toxic materials. WE SAY ENOUGH! To 

give this plant three years to effect cleanup Is a travesty to the health and wellbeing of the 

residents as well as the flora and fauna of the area. Cleanup should begin immediately.

Commenter: Jean Public, Pewtrust.org 

Comment:

I don’t believe they should be given 3 years to make these changes. I believe 1 year is sufficient 

time.

Response:

The EPA believes that the three-year period permitted for compliance with the final emissions 

limits will achieve the required emission reductions as expeditiously as practicable. See preamble 

section V for the EPA’s discussion of the amount of time that is reasonably necessary in order 

for Portland to achieve the necessary emissions reductions.
Page 126 of 181

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

Further, Section 112 requires that existing sources meet the MACT standards “as expeditiously 

as practicable, but in no event later than 3 years after the effective date of such standard.” 42 

U.S.C. § 7412(i)(3)(A). In the proposed EGU MACT, EPA proposes to grant sources the full 

three years to achieve compliance without requiring sources to demonstrate whether three years 

is as “expeditiously as practicable.” EPA has discretion on how to define as “expeditiously as 

practicable,” and there is no reason to define it differently here than it has proposed to do under 

Section 112.

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. See section V.E.2 for 

further discussion.

4. Control technologies

Commenter: S. Dorrell

Comment:

I hope we are successful in forcing GenOn Energy to install scrubbers to end these emissions.

Commenter: Donald C. Seigel, International Vice President, Third District of the 

International Brotherhood of Electrical Workers (IBEW)

Comment:

As an alternative to shutting down the two coal units (Units #1 and #2) at Portland within 90 

days of its finding, EPA is proposing a compliance plan including an interim 50% reduction of 

Portland's SO2 emissions from Units 1 and 2 within one year (by switching to low-sulfur coal, 

etc.), with an 81 % reduction from each unit within three years. 76 Fed. Reg. 19662, 19676-77. 

This reduction level effectively would require the retrofit of flue gas desulfurization ("FGD") 

technology on both units. This may be impossible to achieve in a 36-month timeframe due to the 

time required for design, engineering, permitting, constructing and testing such equipment.

Commenter: Gregory L. Gorman

Comment:

In 2005, Portland Power Plant and Keystone Generating Plant located in Shelocta, Pa. were 

among the top 10 SO2 polluters in the country. The operators of the Keystone plant (Reliant 

Energy) initiated a project in 2006 and completed it three years later to install state-of-the-art 

flue gas desulfurization systems, or scrubbers, at the facility. The primary benefit of the 

scrubbers is removal of approximately 98 percent of sulfur dioxide (SO2) from plant emissions. 

The limits the EPA is proposing for the Portland power plants units 1 and 2 would reduce SO2 

emissions within three years by approximately 81 %. It appears the three year standard is 

appropriate. The proposed emissions reduction goal appears light. 

[Note: The commenter attached a copyrighted article entitled "State-Of-The-Art Environmental 

Controls to Be Installed at Keystone Generating Station." See docket for information regarding 
Page 127 of 181

public access to the attachment at EPA-HQ-OAR-2011-0081-0055.] 

Commenter: R. E. Gerwig

Comment:

Having worked on the engineering and installation of ten scrubbers and nine SCRs at five 

different power stations, I am quite familiar with the high costs of such facilities. On my last 

project before retiring in 2002, the total cost of the scrubbers was approximately $200 million, 

and the SCRs added nearly another $200 million; and that was ten years ago. At the same time, 

the operation of these added facilities drains at least 4% from the output efficiency of the plant. 

The practicality of such expenditures is highly questionable on units of the size and age of the 

Portland Station. As a past power consultant, I would not have recommended this alternative.

Response:

In establishing emissions limits, the EPA is not advocating nor mandating that a particular 

control technology be installed at Portland. See discussion in Preamble in section V.E. regarding 

available options for compliance.

5. Emission limits should be based on available technologies

Commenter: Commissioner Bob Martin, NJDEP

Comment:

Summary of Comment in Cover letter

The coal fired power plants in New Jersey are proof that controlling emissions from power plants 

is reasonable and possible. If New Jersey's 0.15 lbs SO2 per million BTU emission limit were 

applied to the Portland Plant, over 95% reduction in SO2 would result. New Jersey urges EPA to 

consider such limitations at the Portland Plant based on New Jersey's successful approaches to 

controlling these unhealthy emissions.

What we are asking is not unreasonable. Modern scrubbers achieve 95-98 percent reduction of 

sulfur dioxide, so compliance with the health standard is readily achievable and far from an 

extraordinary demand. GenOn should install the best available control technology.

Detailed discussion of comment in attachment:

V. Modern Control Technology Can Achieve Over 95% Reduction of SO2 Emissions

Based on New Jersey regulations and emission reductions at other facilities, over 95% emission 

reductions at both Units 1 and 2 within three years or less are feasible and reasonable. If Portland 

does not achieve the necessary emission reductions, EPA should require Portland to shut down 

within three months of EPA’s final finding in accordance with the Act. 42 U.S.C. § 7426(c)(2). 

New Jersey regulations, N.J.A.C. 7:27-10.1 et seq., require its coal-fired power plants, after 

December 15, 2012, to achieve an emission rate of 0.150 pounds per million Btu based on a 30 

day average. Assuming a 2% sulfur coal is combusted, this limit amounts to 95% control 

efficiency at Portland.
Page 128 of 181

PSEG Fossill LLC’s Hudson Generating Station Unit 2 and Mercer Generating Station Units 1 

and 2 are achieving an SO2 emission rate of less than 0.150 lb/mmBtu 30-day average. EPA is 

party to the Consent Decree that specifies this emission limit. New Jersey has also incorporated 

this limit into its rules so it applies to all New Jersey coalfired power plants.

Another method available to achieve over 95% sulfur dioxide reductions includes converting to 

natural gas. New Jersey’s RC Cape May LLC’s Deepwater facility switched to natural gas and 

achieved 99% emission reductions.

Commenter: Upendra Chivukula, Chair, NJ Assembly Telecom and Utilities Committee

Comment:

More than one billion participate in 42nd Earth Day less than a week ago, more than one billion 

people around the world participated in the 42nd Earth Day on April 22, 2011; Meanwhile, the 

Earth Day Network called on world citizens to pledge to a 'Billion Acts of Green' as it launched 

the single largest global civic campaign; Individual and global Green Consciousness is at an all 

time high; In New Jersey, we have made significant strides in protecting the environment 

including improving our water and air quality with progressive policies and initiatives; These 

include the Regional Greenhouse Gas Initiative which has significantly reduced carbon 

emissions into the environment; It is breakthrough measure of which I am proud to be a sponsor; 

As a result of progressive initiatives like RGGI, the Global Warming Response Act, the Energy 

Master Plan (EMP), New Jersey has one of the toughest global warming and clean energy 

mandates in the nation; We have one of the strongest wind and solar programs in the nation and 

the development of clean energy has helped reduce air pollution in our state; The Energy Master 

Plan and the Global Warming Response Act call for a reduction of CO2 emissions to 1990 levels 

by 2020 and 80% below the 2006 levels by 2050; Reduction in overall energy use by 20% by 

2020; We have made a great deal of progress in protecting and preserving the environment; We 

are committed to continuing such progressive polices that move us forward towards a 

responsible energy future. We have the overwhelming mandate of the people of New Jersey to 

protect and preserve the environment; And that includes protection from cross border pollution; I 

call upon the EPA - as the custodians of the environment and public health to do the right thing 

by the people of New Jersey and by the environment; Please accept the DEP's petition for the 

coal-fired Portland Plant to reduce its sulfur dioxide emissions by 95 percent;

Pollution from power plants releases chemicals into the environment; High levels of such 

chemicals are a serious public health hazard and may result in respiratory diseases like Asthma 

while prolonged exposure can lead to Cancer; As lawmaker and in my capacity as Chair of the 

Telecom and Utilities Committee with oversight over utilities including power plants in New 

Jersey, it is my duty to condemn such a gross violation of federal laws that endanger public 

health and the environment in our state; Frankly I am surprised that lawmakers and 

environmental authorities in Pennsylvania have allowed such a violation of federal laws without 

protest or public comment; It took a law suit from New Jersey to call attention to this violation; 

As lawmakers and public officials, we serve as custodians of the public interest including public 

health and the environment. This includes preventing harm to residents of our own state and 

other states from such violations of the law; I commend the DEP for its initiative to protect 

public health and the environment from such a travesty from across the border; I call on the EPA 

to approve the DEP's petition of a 95 percent reduction in emissions of sulfur dioxide from the 

Portland Plant; Please put a stop to the export of pollution from Pennsylvania to New Jersey; It is 
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endangering the health and quality of life of New Jersey residents; It has gone on for too long 

and the people of New Jersey need your protection and strong action;

While I welcome the EPA's proposal requiring the plant to cut sulfur dioxide emissions by 80 

percent over three years, I urge you to consider the DEP's petition to implement a 95 percent 

reduction; For many years the GenOn Energy coal-fired plant has been violating the law at the 

cost of New Jersey residents; Last year this plant emitted 30,000 tons of sulfur dioxide which is 

three times the amount of seven of New Jersey's coal-fired plants combined; This blatant 

violation of the Clean Air Act is untenable; Such emissions pose a serious health hazard to New 

Jersey's densely populated communities that are downwind from these harmful emissions; These 

include the residents of the counties of Warren, Sussex, Morris and Huntington;

Commenter: S. Smith

Comment:

As a citizen living in the potential plume (as indicated in the modeling conducted by the 

NJDEP), I support the proposal, with minor exception as outlined below, that the EPA published. 

The EPA would require that the Portland Plant reduce SO2 emissions for both units 1 and 2, no 

later than 3 years after the final rulemaking. My exception is: The EPA should require a further 

reduction than the proposed amount, as recommended by the NJDEP at the public hearing on 

April 27, 2011.

Response:

As discussed in the Preamble in section V.C., 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 SO2 NAAQS in the four New Jersey counties. This is in contrast to other requirements, 

such as New Source Review (NSR), under which the emissions limits are technology-based, 

representing best available control technology (BACT) or lowest achievable emissions rate 

(LAER).

6. EPA’s accelerated compliance schedule could result in shut down

Commenter: Donald C. Seigel, International Vice President, Third District of the 

International Brotherhood of Electrical Workers (IBEW)

Comment:

Granting New Jersey's Section 126 petition effectively could accelerate the date for Portland's 

compliance with the one-hour standard by as much as six years. This drastically accelerated 

compliance date could result just three months after the petition is granted - if the plant owners 

elected to shut down the units associated with New Jersey and EPA's air dispersion modeling 

analyses, rather than comply with the alternative compliance options EPA proposes.

Response:

The EPA is obligated by section 126 to address NJDEP’s petition at this time, despite the fact 

that Pennsylvania may not be required to demonstrate compliance with the NAAQS for several 

years. See preamble section III. for further discussion of the EPA’s legal authority to address 

NJDEP’s section 126 petition. If Portland chooses to shut down one or both units as a means of 

compliance, the EPA is not requiring shut down to occur within three months. See preamble in 
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sections V.E. and VI.B. for discussion of compliance schedules, including discussion of 

available, reasonable alternatives to achieve compliance with the emissions limits.

7. Compliance time is insufficient

Commenter: E. Wade

Comment:

The time constraints to bring the plant into compliance may be too stringent.

Commenter: R. E. Gerwig

Comment:

Permits for new power plants, with all of the attendant water and air studies, public meetings, 

and the required advance engineering, take many years to obtain. If GenOn would decide to 

upgrade the existing plant with new scrubbers and SCRs, it would require one and a half to three 

years of advance planning and engineering, and another two to three years to install and put the 

systems into operation. If GenOn were to decide on a new plant; the construction of a new 

600Mw gas fired, combined cycle, power plant could take three to five years to obtain all the 

needed permits, another year to complete the design, and another two to three years to build and 

put into service. This adds up to six to nine years, certainly not the three years proposed by the 

EPA. Recent experience would place the total cost of such a plant at $500 to $600 million. 

Therefore, I am asking you to please allow GenOn enough time to conduct their feasibility 

studies and to come to a practical decision about how to move forward. Please do not simply shut 

them down without any consideration for the resulting impacts and hardships to the community, 

to the employees, and to the need for power in the northeast corridor. 

On a personal note, my wife and I chose to live and retire in Upper Mount Bethel Township, 

right next door to the Portland Generating Station. We further reinforced that commitment just 

last year, when we purchased additional acreage which also borders the power station property. 

We have no problem with having GenOn and the Portland Generating Station as our next door 

neighbor. I sincerely hope that they are allowed to remain there, and to continue to operate; albeit 

under the proper regulations and under a reasonable time constraint.

I am asking you to please allow GenOn enough time to conduct their (technical) feasibility 

studies and to come to a practical decision about how to move forward. Do not simply shut them 

down without any consideration for the impacts to the community, to the employees, or to the 

need for power in the northeast corridor.

Commenter: Donald C. Seigel, International Vice President, Third District of the 

International Brotherhood of Electrical Workers (IBEW)

Comment:

Overall, five years is needed to complete a retrofit project, including processes for permitting and 

other regulatory approvals. The attainment deadline of 2017 for the new one-hour SO2 standard 

provides time for a more orderly SIP implementation process by the Commonwealth of 

Pennsylvania. For this reason, we urge EPA to deny New Jersey's petition.
Page 131 of 181

Commenter: John Stoffa, County Executive, Office of the County Executive, Northampton 

County Courthouse, County of Northampton, Easton Pennsylvania 

Comment:

Please allow GenOn the time they need to make the necessary improvements to keep the facility 

operational.

Response:

The EPA is constrained by the requirements of section 126(c) to permit a source no more than 

three years to eliminate its significant contribution to nonattainment and interference with 

maintenance. Moreover, the EPA has determined that Portland has reasonable options for 

complying with the emissions limits within those three years. Finally, the EPA’s authority to 

grant NJDEP’s section 126 petition is not tied to the progress of the section 110(a)(2)(D) SIP 

procedures. See preamble, section III for discussion of the EPA’s legal authority to act on the 

section 126 petition, and section V.E. for the discussion on technical feasibility of meeting the 

emissions limits in the required time.

Commenter: UARG

Comment:

Limits on EPA’s authority “to balance the statutory requirement of compliance as 

‘expeditiously as practicable’ with the goal of ensuring that the regulation does not 

unnecessarily limit the options available to the source to achieve compliance within the 

statutorily mandated timeframe” (id. at 19676/2): In those circumstances where EPA has 

authority to grant a section 126 petition (which it does not here), EPA does have authority under 

the CAA to consider a range of factors in determining an appropriate emission limit and an 

appropriate schedule for feasibly and cost-effectively achieving any such limit.

Response:

The EPA strives for flexibility in this final rule within the confines of the statutory requirement 

that the emission limits be achieved “as expeditiously as possible.”

8. Monitoring; startup, shutdown, and malfunction

Commenter: Erin Phalon and Joshua R. Stebbins, The Sierra Club 

Comment:

EPA Must Require Implementation of Emissions Limits At All Times

To achieve meaningful reductions in SO2 emissions from the Portland Generating Station, the 

proposed emission limits must be implemented at all times. According to EPA, relevant NAAQS 

must always be protected, including during startup, shutdown and malfunction, and excess 

emissions during startup, shutdown and malfunction may constitute violations. Letter from 

Becky Weber, Director, EPA Air & Waste Management Division, to John Mitchell, Director, 

Kansas Department of Health and Environment, 2-3. (August 2010). In Michigan Department of 

Environmental Quality v. Browner, the Court affirmed the EPA’s interpretation of § 110 of the 

Clean Air Act, which prohibited source non-compliance with emission limitations imposed by 

SIPS during start-up, shut-down and malfunction periods. Mich. DEQ v. Browner, 230 F.3d 181 

at 185 (6th Cir. 2000). Here, the Portland Generating Station must limit its SO2 emissions at all 

times, including during startup, shutdown and malfunction.
Page 132 of 181

Under CAA § 126(c)(2), EPA may permit the continued operation of a source after three months 

only if such source complies with such emission limitations and compliance schedules set by 

EPA as expeditiously as practicable. 42 U.S.C. § 7426(c) (2). As a result of this provision, 

emissions monitoring is critical to ensuring that the Portland Plant is complying with the 

proposed emissions limits. Continuous Emissions Monitoring System (CEMS) is an important 

tool to monitor and demonstrate compliance. The Portland Generating Station currently uses 

CEMS at units 1 and 2. To effectively monitor compliance with the proposed emissions limits, 

EPA must require that CEMS operate at all times, including during startup, shutdown, and 

malfunction of the units. Data gathered from a CEMS pursuant to the New Source Performance 

Standard or even the Acid Rain program regulations is not sufficient, as these provisions allow 

for obtaining data less than all the time. However, in order to ensure compliance with a healthbased one-hour averaging time ambient standard, Portland’s emissions must comply with the 

emission limit every hour that it operates, including during periods of startup, shutdown and 

malfunction. This is essential because the SO2 NAAQS is designed to protect the public against 

adverse health effects from short-term SO2 exposure, including exposures as short as five 

minutes. Continuous operation of CEMS may require the installation of a second, redundant 

CEMS.

Commenter: E. Wade

Comment:

After controls are put into place, continued monitoring is recommended; only one Section 126 

finding has been promulgated in the past and the effectiveness of these rulings have yet to be 

evaluated. Ensuring compliance with their new emission limits may prevent the Portland Plant 

from relapsing. This responsibility may be delegated to NJDEP as their downwind location is of 

highest concern. The Pennsylvania version of a department of environmental protection could 

also be contacted and given the task of monitoring the Portland Plant’s progress after the initial 

three year compliance deadline has passed. 

Response:

The EPA acknowledges the importance of CEMS to ensure compliance with emissions limits. 

Indeed, EPA’s regulations for monitoring SO2 emissions from power plants with CEMS require 

the owner or operator to ensure that all continuous emissions and opacity monitoring systems are 

in operation and monitoring unit emissions at all times that the affected unit combusts any fuel. 

40 C.F.R. § 75.10(d). These regulations allow limited exceptions during the periods of 

calibration, quality assurance, or preventative maintenance, but do not provide an exception for 

startup, shutdown, or malfunction of the combustion unit.

The interim and final emissions limits established in this final rule apply at all times once they 

become effective. 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. 

See preamble section V.F for further discussion.
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9. Unit-by-unit vs. combined emissions limits

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

Unit-Specific Limits Are Unnecessary for the Interim and Final Limits

EPA is taking comment on possible interim emission reductions such as proposing that the 

Portland Plant reduce its SO2 emissions to a level no greater than 2,910 lbs/hr for unit 1, and 

4,450 lbs/hr for unit 2, one year after the effective date of the final rulemaking, and other 

compliance activities to demonstrate appropriate increments of progress toward compliance. 76 

Fed. Reg. 19664. Notwithstanding its stated objections to establishing interim limits, if EPA 

determines that interim limits are necessary, GenOn requests that the interim limit allow GenOn 

greater flexibility than the single example modeled by EPA and subsequently proposed. 

Specifically, GenOn believes that the same environmental benefit can be achieved through the 

use of a combined mass emission rate for Units 1 and 2 (e.g., an SO2 emission rate of 7,360 lb/hr 

if EPA insists that Portland meet an interim limit that achieves a 50 percent reduction in the 

units’ allowable emission rates).10 Indeed, this same flexibility should be provided in the final 

limits, as well. Since the objective is NAAQS-compliant modeled impact, there is no reason to 

impose unit-specific limits if a combined unit limit achieves the same result.

Id. at 19676. EPA admits and GenOn agrees that there are many possible combinations or forms 

of emissions standards that can assure compliance. We assert that a combined or alternate limit is 

possible and request that the final limit(s) be established in a form that is demonstrated to 

provide for attainment of the NAAQS based on procedures approved through the submittal and 

approval of a protocol. However, in the absence of EPA’s implementation guidance for the use 

of dispersion modeling and/or monitoring for demonstrating attainment with the 1-hour SO2 

NAAQS, this protocol must be deferred until the guidance is issued in final form by EPA later in 

2011.

Response: 

[See discussion below in section VIII of the Response to Comment document regarding 

combined interim limits.] 

The EPA has determined that is not technically feasible to develop a combined final emission 

limit that would be both protective of the NAAQS and provide flexibility to the source to apply 

different compliance options. See preamble section VI.A.h discussion for rationale for EPA’s 

decision to provide for a combined limit for the interim (1-year) limit, and the rationale for 

retention of unit-by-unit limits for the 3-year emissions limits; see also preamble section VII for 

a discussion of the EPA’s consideration of alternative emissions limits. 

The commenter asserts that, in the absence of EPA’s implementation guidance for the use of 

dispersion modeling and/or monitoring for demonstrating attainment with the 1-hour SO2

NAAQS, the submission of the modeling protocol must be deferred until the guidance is issued 

in final form by EPA later in 2011. 
Page 134 of 181

In response, the EPA notes that the agency issued the draft implementation guidance in 

September 2011, and expects to finalize the guidance in early 2012, which is well before the 6 

month deadline for the required submission of the modeling protocol, and the 12 month deadline

for the submission of the required modeling.

Furthermore, many of the application-specific elements of the guidance have already been 

addressed in relation to Portland through the EPA modeling that was used as the basis for 

developing the final remedy, such as the meteorological data inputs for AERMOD and the 

contribution from background concentrations. The other key inputs of emissions and stack 

parameters would not be affected by the implementation guidance.

Accordingly, EPA believes that GenOn has the information it needs to submit a modeling 

protocol for the remedy.

10. Electricity reliability

Commenter: Senator Pat Toomey, Senator Robert P. Casey and Congressman Charles 

Dent

Comment:

We are concerned that prematurely binding GenOn's decisions on how to comply with identified 

requirements will not result in the best solution and may come at a cost of lost jobs, reduced 

reliability and higher electric costs.

Commenter: R. E. Gerwig

Comment:

As the Northeast Corridor of this country continues to grow and to increase its demand for 

electrical power, the Portland Station is uniquely situated to supply power to the PJM power 

interconnection from a location close to the source of the demand. Power transmissions coming 

from the Midwest are hampered by long distance transmission line losses, and by transmission 

lines already approaching overload. Meanwhile, the population densities, irregular topography 

and wind currents of this area are not conducive to large wind or solar energy installations.

Commenter: Commissioner Bob Martin, NJDEP

Comment:

EPA asked specifically about how reliability and other similar factors should be considered with 

respect to the "as expeditiously as practicable" requirement. Reliability should not be an issue in 

this case because 400 MW is a relatively small amount of capacity compared to PJM's current 

total capacity of 163,500 MW. Also, perhaps more importantly, the timing of EPA's final 

decision in September is after the peak summer season for electric demand, and there will be 

eight months until June 2012, when peak summer demand conditions reoccur. (See 2010 PJM 

Peak Loads Chart below.) Hence, it is unlikely these small coal units would be needed to prevent 
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brownouts or blackouts in this timeframe.

In the unlikely event there is an electric demand situation during this time period where these 

units are needed to prevent blackouts or brownouts, 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. In no case should the units be run for the economic gain of GenOn while 

widespread public health exceedances are continuing.

Response:

While electric reliability is not one of the explicit factors to consider under section 126, the EPA 

would nonetheless be concerned if there were serious electric reliability issues that would lead to 

local hardships. The EPA generally agrees with the commenter who concluded that electric 

reliability issues are not expected. See preamble sections V.E, V.F, and VI.A. for further 

discussion. 

11. Miscellaneous

Commenter: D.M. Lohman

Comment:

On page 19664 of the Notice and subsequently the EPA has succeeded in anthropomorphizing 

the Portland Plant by "proposing to require that the Portland Plant reduce its SO2 emissions to a 

limit no greater than 1,105 lbs/hour for unit 1 and 1,691 lbs/hour for unit 2," then subsequently 

requiring the Portland Plant to make decisions or take actions. Being an inanimate object, the 

Portland Plant is not capable of making decisions or taking actions. The clear intent is to assign 

these obligations to the owner and operator of the Portland Plant and it should be stated as such.
Page 136 of 181

Response:

The EPA thanks you for your comment. The EPA considered this comment in drafting the final 

rule.

VIII. Increments of Progress and Interim Emission Limits

1. The EPA should exercise discretion provided by the Act and not issue 

interim limits

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

EPA is not obligated to impose interim limits under Section 126(c) and it is not justified here. 

Section 126 clearly states that increments of progress are a discretionary measure. 

Response:

See Section VI.A of the preamble for discussion of EPA’s legal and technical rationale and support 

for interim emissions limits as part of the increments of progress. 

2. Interim limits are inadequately stringent

Commenter: Commissioner Bob Martin, NJDEP

Comment:

Summary Comment from cover letter

The Clean Air Act does provide the possibility of up-to a three (3) year extension of the 3-month 

compliance deadline with interim measures. The USEPA proposed an interim 50% control level 

within a year, utilizing this provision of the Act. Neither an extension or a 50% reduction is 

acceptable to the state of New Jersey. New Jersey strongly believes that more reductions are 

possible and reasonable in a shorter timeframe. A power plant in New Jersey implemented short 

term measures (ultra-low sulfur coal), which provided over an 80% reduction in SO2 emissions, 

changing from less than 1% sulfur coal to less than 0.2% sulfur coal.

Detailed Comment from Attachment

IV. Interim Reductions Should Minimize SO2 Emissions As Soon As Possible

Within 90 days EPA should require Portland to achieve an 80% reduction in the maximum 

hourly SO2 emission rate or shut down the coal boilers. Within 90 days to one year - GenOn 

must further minimize SO2 emissions and achieve 95% reduction if feasible. If not achieved, 

GenOn must demonstrate they have taken all practicable measures to minimize SO2 emissions in 

this timeframe. 

EPA proposes to require Portland to meet interim emission limits within one year. 76 Fed. Reg. 

19,677. There are proven, short term emission reduction measures that can significantly reduce 

SO2 emissions at Portland in substantially less than one year. Given the extent of the 

exceedances of the NAAQS, emission reductions in the shortest possible timeframe are 

appropriate for the protection of public health. New Jersey agrees with EPA that dry reagent 
Page 137 of 181

injection (DRI) can be installed within less than a year and will likely achieve at a minimum 

50% emission reductions at Portland. However, based on experience at New Jersey facilities, 

even greater shorter term emission reductions between 80-95% are possible. The EPA should 

require the combination of an immediate reduction of maximum coal burned per hour, use of the 

lowest sulfur coal available as soon as possible, and a dry reagent injection system as soon as 

possible. 

A. Switching to Low Sulfur Coal Could Result In over 90% Reduction Within 90 Days

Switching to lower sulfur coal would dramatically cut SO2 emissions and could happen very 

quickly (e.g., within 90 days). At PSEG Fossil LLC’s Hudson Generating Station (Hudson) in 

New Jersey, the facility was required to use ultra low sulfur coal. Hudson switched to an ultra 

low sulfur coal with a reported sulfur content of approximately 0.1% sulfur. Hudson was 

required to burn 100% ultra low sulfur coal with an SO2 limit of 0.216 lb/mmBtu until the 

installation and commencement of operation of a scrubber. EPA was party to the Consent Decree 

that resulted in this requirement. Because Portland uses approximately 2% sulfur coal, which is 

about 3 pounds SO2 per million Btu, coal switching alone could result in over 90% SO2 

emission reductions. If this ultra low sulfur coal is not available for use at Portland, GenOn 

should obtain the next lowest sulfur coal available that can be burned at Portland. GenOn should 

be required to document to EPA and the public that it will use the lowest sulfur coal available.

According to the Energy Information Administration’s Monthly Utility and Nonutility Fuel 

Receipts and Fuel Quality Data (EIA-923), 

http://www.eia.gov/cneaf/electricity/page/eia423.html, in 2008 Portland imported 919,715 tons 

of coal from four western Pennsylvania and West Virginia mines with a

weighted average of 1.88% sulfur. Upon burning, this resulted in a release of 34,650 tons of SO2 

at a rate of approximately 3.1 lb/mmBTU.

In 2010, Portland imported 638,865 tons of coal from a single western Pennsylvania mine with a 

weighted average of 1.79% sulfur. The 2010 rate as reported to EPA’s CAMD

database was 2.82 lb/mmBTU. EIA-923 data indicates that lower sulfur coal is also available in 

West Virginia. In 2010, seven West Virginia mines produced 3,233,503 tons of bituminous coal 

with sulfur contents ranging from 0.14% to 0.37%. Such coals burned at Portland could lower 

SO2 emissions by 92% to 77%, respectively. Considering

Portland has obtained coal from West Virginia in the past, and West Virginia has the potential 

capacity to supply Portland’s demand, this option is reasonable and feasible.

We note this as an example of the availability of much lower sulfur coal but it is not the only 

possible source.

B. Dry Sorbent Injection In Combination With Low Sulfur Coal Could Achieve Even Greater 

Reductions 

In addition to using lower sulfur coal, Portland could also install dry sorbent injection (DSI) 

within much less than a year and achieve even greater SO2 reductions. This is useful if ultra low 

sulfur coal, such as used by the PSEG Hudson unit, is demonstrated to not be available for use at 

Portland.
Page 138 of 181

DSI temporary systems can be installed and operational in a matter of days. In addition, 

according to Jim Staudt of Andover Technology Partners, permanent systems can be installed 

and operational in a matter of months; much less than one year. GenOn should determine if DSI 

is feasible for SO2 reduction by installing a temporary system immediately and if determined 

effective at reducing SO2 emissions, it should operate either a temporary or permanent system as 

soon as possible. EPA should require that the DSI system be in place within 90 days, unless 

GenOn demonstrates this is infeasible and EPA grants a longer timeframe, but in no event no 

longer than one year. As part of the determination of DSI feasibility, GenOn should conduct 

particulate testing at different operating loads and ensure that the reductions in hourly heat inputs 

of coal for SO2 reduction is also sufficient to avoid any increases in maximum particulate

emissions.

Following are examples of SO2 emission reductions achieved with DSI.

1. A technical report by the Northeast States for Coordinated Air Use Management

(NESCAUM), “Control Technologies to Reduce Conventional and Hazardous Air Pollutants 

from Coal-Fired Power Plants” dated March 2011 indicates that DSI using Trona can achieve 

varying levels of controls - in the range of 30-60% SO2 emission reductions - when injected 

upstream of an Electrostatic Precipitator (ESP), which is the particulate matter control installed 

at Portland, or up to 90% reduction when injected upstream of a fabric filter.

2. The PHI Company Edge Moor Plant, Units 3 & 4, in Delaware utilizes DSI and achieves SO2 

emission reductions from 1.2 lbs/mmBtu to 0.37 lbs/mmBtu, which is a 69% control efficiency.

3. Performance tests at the Dunkirk and Huntley stations in New York indicate that the installed 

controls can reduce: SO2 emission by 55% within 12 months; mercury emissions by more than 

90%; and PM emissions to less than 0.010 lbs/mmBtu.

C. Reducing The Amount of Coal Burned Per Hour Should Be Required Immediately 

Reduced maximum hourly heat input at Portland would significantly reduce emissions 

immediately. A 20% reduction in hourly coal use would reduce hourly SO2 emissions by 20%. 

This would also reduce the maximum flue gas flow rate by 20%, resulting in particulate 

emissions reductions by greater amounts, probably by over 50%. This may be necessary to avoid 

particulate emission increases with dry reagent injection. Portland should reduce its hourly 

amount of coal burned (the maximum hourly heat input) in each unit by at least 20% 

immediately. Additionally, shutdown of one of the units can be considered as part of a required 

80% interim reduction of SO2.

Response: 

After consideration of all comments, the EPA has set a combined interim emission limit that 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. See discussion of interim emissions limits in 

section VI.A of the preamble. 

With respect to the comment that the EPA should require an immediate reduction in coal use, 

EPA notes that section 126(c) of the statute provides for setting compliance schedules. In the 

EPA’s engineering judgment, it is feasible and practicable for the Portland facility to achieve 

emissions reductions via several options including fuel switches and/or control technologies. 
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These options can eliminate Portland’s significant contribution to nonattainment in New Jersey 

without mandating reductions in hours of operations. Moreover, the final rule provides GenOn 

with flexibility to decide the most efficient way to eliminate their significant contribution. As 

noted above, the interim limits are designed to achieve interim progress towards the 3-year limit 

based on options we believe are readily achievable in one year. 

3. Concerns with achievability of interim limits; Need for test burns

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

If EPA insists that a change in position from its previous determinations is necessary and 

finalizes the Proposal, EPA should eliminate interim emission requirements or, at a minimum, 

defer them until GenOn can undertake necessary coal testing to determine what interim emission 

levels are reliably achievable. Using information from testing will allow a more practical 

increment of progress and avoid imposition of arbitrary milestones. In addition, while GenOn 

agrees with EPA that any interim and final SO2 limits should only apply to the two coal-fired 

units at Portland, the interim limits must be set as a combined limit for both units to maximize 

operational flexibility of Units 1 and 2, while reducing emissions. The final SO2 limits 

applicable to Units 1 and 2 should be based on whatever operating scenarios provide for modeled 

compliance.

GenOn proposes that it would meet the following schedule upon completion of the

Portland Plant Test Burn Trial Program:

 GenOn would submit a report on the test burn program to EPA no later than three months 

from the effective date of the Section 126 finding, including detailed recommendations on 

achievable interim emissions limits and a schedule for implementation.

 If EPA identified deficiencies in the test burn report, it would have 15 business days to submit 

a revision to GenOn to correct any deficiencies.

 No later than six months from the date of EPA’s approval of the recommendations and 

compliance schedule in the test burn report, Portland would comply with the emissions limits 

identified in the report. The proposal to allow for the test burn as part of the milestone schedule 

is critical to establishing an interim limit and schedule that allows the plant to continue to operate

GenOn may be able to meet interim emission limitations, if a reasonable time table and level is 

set. Similarly, the final emission limitation may be achievable through a combination of controls, 

fuels, temporary shutdown, and/or other operational measures that cannot reasonably be 

predicted at this stage. At most, EPA should set interim and final emission limitations needed to 

address the NAAQS and allow GenOn to meet those limits in the most cost-effective and 

efficient manner possible

3. EPA should not set interim limits until GenOn has had the opportunity to test alternative coal 

supplies. If interim limits are required, GenOn’s ability to achieve swift interim reductions must 

be verified by test burns of various, different coal supplies. Test burns are necessary to 

understand the impact that lower sulfur coals will have on operations, including fuel supply 
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logistics, material handling, loss of production, boiler parameters, emissions controls, whether 

the pulverizers have the ability to grind such coals, the effectiveness of the precipitator with 

changes in ash resistivity, as well as ash handling and composition. A preliminary schedule for 

test burns contemplates two and a half months from the beginning of the process until a decision 

on the practicable solution is evident. See Appendix B. EPA has encouraged GenOn to submit

comments on the practicality of interim emissions limits and the schedule for such. This is not 

possible by the close of the public comment period. GenOn is testing coals expediently and will 

provide information to EPA by September 15, 2011. Alternatively, we request that EPA consider 

a milestone in the compliance schedule that requires submittal of a report detailing the results of 

the Portland Plant Trial Burn Program with recommendations for interim emissions limits and a 

compliance schedule.

Commenter: Senator Pat Toomey, Senator Robert P. Casey and Congressman Charles 

Dent

Comment:

We have been informed that the timeline will set the interim emission requirements prior to the 

completion of GenOn's alternative test burn analysis, which should demonstrate an appropriate 

interim level. We understand that evaluating methods and alternatives for reducing emissions for 

generation facilities, such as the Portland plant, are not simple processes and require significant 

engineering, testing and analysis in order to develop a specific plan to most efficiently meet 

compliance goals. In addition, GenOn will need to make investments and operational decisions 

with subsequent emission standards that EPA is currently developing...We also encourage EPA 

to defer finalization of interim emission limits to allow the completion of GenOn's tests later this 

year.

Response:

As discussed in section VI.A of the preamble, GenOn submitted a September 15, 2011 test burn 

report and it is included as part of the docket in this rulemaking. The EPA considered the test 

burn report in the final rulemaking and, as discussed in detail in section VI.A. The EPA 

continues to believe that significant reductions in SO2 emissions can be achieved in one year. 

The EPA has also reviewed the information from GenOn regarding possible equipment changes. 

The EPA’s engineering judgment is that these changes can be accomplished in one year. 

As discussed in section VI.A of the preamble, the EPA includes a combined interim limit of 

6,253 lb/hr for the total SO2 emissions from units 1 and 2 rather than a unit-by-unit proposed 

limit. The combined interim limit in the final rule is achievable within one year based on EPA’s 

assessment that coal with a sulfur content of 1.5 lb/mmBtu is readily available. Because the limit 

is expressed as a combined limit, GenOn will have flexibility to pursue a number of approaches 

to the interim limit, which serves to reinforce the EPA’s conclusion that this limit will be 

achievable within 1 year.

4. Interim limits may be viewed as arbitrary and capricious

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:
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EPA’s proposal for a 50 percent reduction from allowable emissions for an interim limit is 

arbitrary and capricious EPA proposes that Portland Units 1 and 2 meet hourly interim SO2 

limits that represent a reduction of 50 percent of the units’ allowable emissions. To support this 

reduction level, EPA performed a cursory review of emission reduction options and determined 

that several are available to reduce Portland’s SO2 emissions, including “reagent injection, 

switching to lower sulfur coal and load shifting.” 76 Fed. Reg. 19677. EPA further notes that 

lower sulfur coal may be available in Pennsylvania and, in EPA’s experience, “reagent injection 

can achieve emission reductions at coal-fired electric generating units in excess of fifty percent 

and can be installed and operational on coal-fired electric generating units in less than 12 

months.” Id. 

Commenter: Michael L. Krancer, Secretary, PADEP 

Comment:

EPA is also proposing to require interim SO2 emission reductions by establishing emission 

limitations of 2910 lbs/hr for Unit 1 and 4450 lbs/hr for Unit 2-these limits represent a 50 percent 

reduction from allowable SO2 emissions within one year after the effective date of the finding. 

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 one year of a finding. Without 

fully explaining the rationale for EPA's proposed interim emission reductions and time lines, 

EPA's interim requirements could be viewed as arbitrary and capricious. 

According to the proposed finding, the interim requirements could be achieved within one year 

either by the use of low sulfur coal (e.g., one percent sulfur bituminous coal) or by installing and 

operating sorbent injection technology on the coal-fired units. However, the use of sorbent 

injection technology could result in collateral increases in other pollutants that may require a new 

source review analysis or plan approval (construction permit). Therefore, the increments of 

progress should include reasonable milestones for complying with the interim limits. If the 

proposed 50 percent reduction in the maximum allowable SO2 emissions can only be achieved 

by the installation of sorbent injection technology, the one-year deadline for complying with the 

interim limit does not provide sufficient time for permitting, purchasing, and installing the 

technology. Therefore, EPA should work with NJDEP, GenOn, and DEP, as the permitting 

agency, to establish emission limits and compliance schedules containing increments of progress 

consistent with Section 126(c) of the CAA (42 U.S.C. 7426(C)).

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC (late 

supplemental comments)

Comment:

In its June 13, 2011 comments on the Proposal, GenOn opposed establishing interim SO2 limits 

on Portland Units 1 and 2. GenOn continues to believe that interim limits are unnecessary and 

that the proposed 50 percent reduction requirement is arbitrary and capricious. 

Response:

The EPA disagrees that the interim limits could be viewed as arbitrary and capricious. As 

discussed in more detail in the preamble in section VI.A:

-- The EPA agrees that reagent injection is likely not achievable within one year because 

Portland may need to upgrade its particulate matter collection equipment. Accordingly, we no 
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longer believe that reagent injection serves as a technical basis for the interim emissions 

reduction requirements in the final rule.

-- After considering and analyzing the comments regarding the feasibility of switching to 

cleaner coal, the availability of cleaner coal, the ability of Portland to accommodate combusting 

cleaner coal, and the necessary time frame for doing so, the EPA does believe that it has 

provided an appropriate technical basis for the interim limit. 

5. Interim limits should be revised on test burns results

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC (late 

supplemental comments)

Comment:

The proposed 50 percent reduction is based on control options EPA reviewed that do not take 

into account site-specific factors applicable to Portland. In its comments, GenOn informed EPA 

that the only viable option for meeting interim SO2 emission limits at Units 1 and 2 might be 

through the use of lower sulfur coal and that it intended to conduct test burns of lower sulfur coal 

at Portland to determine what interim emission limits would be achievable. Attached is the 

Portland Station CAPP Coal Test Burn Report (September 15, 2011), which contains the results 

of the test burns conducted at Portland between June and August 2011 (“Report”).

As stated in the Report, Portland procured low sulfur Central Appalachia (“CAPP”) coal from 

the Millers Creek mine in West Virginia, which then was blended with Portland’s current coal 

supply, Northern Appalachia (“NAPP”) coal from the Bailey mine in southwestern 

Pennsylvania, to determine the effect that combustion of the CAPP coal would have on SO2 and 

particulate matter emissions and unit operations. The data reveal that Portland Units 1 and 2 

cannot burn 100 percent CAPP coal without experiencing significant de-rates. Lesser de-rates 

were experienced at different blend rates. Equipment changes at Portland also would be required 

to safely and reliably blend coals at a higher rate on a long-term basis.

Based on the results of the test burn and, as discussed in GenOn’s June 13, 2011 comments, 

GenOn continues to believe interim SO2 limits for Portland Units 1 and 2 are not warranted. 

Nonetheless, if EPA intends to finalize a rule for Portland that contains interim limits, EPA 

should consider the interim limits described below:

1. Within six months after the effective date of the final rule, Portland Units 1 and 2 would meet 

a combined SO2 emission rate of 11,040 lbs/hr (a 25 percent reduction from allowable limits).

2. Within 24 months after the effective date of the final rule, Portland Units 1 and 2 would meet 

a combined SO2 emission rate of 9,755 lbs/hr (a 35 percent reduction from allowable limits).

A more detailed discussion of these interim limits is presented below:

Initial Interim Limit – 11,040 lbs/hr

During the test burn process, GenOn observed that a 25 percent reduction in SO2 allowable 

emissions (corrected for maximum heat input and fuel sulfur specification) was possible with no 

unit de-rates. Sustaining this level of blending on a continuous basis would require procurement 

of additional coal yard equipment and adjustments to existing coal sizing, handling and 
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pulverizing equipment. However, GenOn believes this work could be completed within six 

months of the effective date of the final rule, and believes it would be possible to achieve these 

reductions in advance of the 12-month interim limit schedule that EPA identified in the Proposal.

Second Interim Limit – 9,755 lbs/hr

At higher low-sulfur fuel blend ratios, GenOn observed that a 35 percent reduction in allowable 

SO2 emissions (corrected for maximum heat input and fuel sulfur specification) was possible 

with an approximately 25 MW de-rate on Unit 2. Sustaining this level of blending would require 

extensive changes to station equipment. Specifically, engineering and installation time would be 

required for changes to the final hoppers to permit larger volumes of CAPP coal, changes to 

fugitive dust controls and changes to the ash handling system. It is also possible that New Source 

Review/New Source Performance Standard permitting would be required to perform some or all 

of this work. GenOn estimates that it would need 24 months from the date of the final rule to 

accomplish this work, assuming that NSR/NSPS permitting is not required.

If EPA finalizes this rule and determines that emissions limits are required, GenOn asserts that 

EPA should provide a combined SO2 emission rate limitation for Portland Units 1 and 2 for the 

interim limits and as well as for the final reduction requirement. As discussed in GenOn’s June 

13, 2011 comments, given the proximity of Unit 1 and 2’s stacks, unit-specific limits are not 

necessary to achieve compliance with the 1-hour SO2 NAAQS. GenOn verified this fact through 

a modeling demonstration provided in its comments to the Proposal. See Appendix C of 

GenOn’s June 13, 2011 comments. Permitting the units to meet a combined SO2 emission rate 

limitation rather than unit-specific limitations would provide important flexibility to Portland by 

allowing it to make the necessary SO2 reductions while continuing to meet its operational 

commitments.

Response:

As discussed in the response to comment above and in section VI.A the preamble to the final 

rule in further detail, the EPA has included a combined interim limit of 6,253 lb/hr for the total 

SO2 emissions from units 1 and 2 rather than a unit-by-unit SO2 emissions limit set forth in the 

proposed rule. The combined interim limit in the final rule is based on the EPA’s assessment as 

discussed in the preamble in detail that coal with a sulfur content of 1.5 lb/mmBtu is readily 

available for Portland to acquire within one year and that Portland can accommodate combusting 

such cleaner coal with adjustments to its plant which Portland could accomplish within one year. 

For the 3-year limit, the EPA retained the lb/ hour limits for units 1 and 2 and also concluded that 

it was necessary to include lb/mmBtu limits on a 30 boiler operating day rolling average basis to 

ensure that the NAAQS were protected at all loads. See preamble section VI.A.3.

6. Interim limits may be achievable

Commenter: Donald C. Seigel, International Vice President, Third District of the 

International Brotherhood of Electrical Workers (IBEW)

Comment:

IBEW recognizes that the alternative control options that EPA is proposing, such as the 50% 

interim emission reduction within one year, may well be achievable, and we stand ready to work 
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with GenOn to support control options that will avoid job losses at the plant and in the 

surrounding community.

Response:

EPA appreciates your comment and considered it in drafting the final rule. See the discussion in 

section VI.A of the preamble of available and achievable control options.

7. Comments on the relationship to other EPA requirements

Commenter: Commissioner Bob Martin, NJDEP

Comment:

EPA ... cannot rely on the timeframes of other regulations, such as the recently proposed 

National Emission Standards for Hazard Air Pollutants for coal-fired electric utility steam

generating units, to delay Section 126 compliance beyond the maximum three year time frame. 

Nothing in the statute suggests that EPA has discretion to allow continued operation for any 

reason beyond the three months to three years timeframe from the date of EPA’s finding.

Commenter: Michael L. Krancer, Secretary, PADEP 

Comment:

Based on the EPA's AERMOD modeling analysis, the Section 126 finding is appropriate for 

addressing the downwind impacts of SO2 emissions from the Portland Generating Station. A 

legally defensible finding will result in SO2 emission reductions expeditiously. However, EPA 

should harmonize the effective dates of the final rules for the Section 126 finding and the Utility 

MACT Rule to allow GenOn's compliance with both Rules to be coordinated. While we 

recognize that the Section 126 finding is independent of the Section 112 requirements, 

harmonization and coordination of the three-year compliance deadlines under the Section 126 

finding and the Utility MACT Rule would be logical and would at the same time achieve 

emission reductions greater than the 81 percent SO2 emission reduction proposed as the Section 

126 remedy.

We look forward to working with EPA to satisfy DEP's obligation to submit a SIP revision, 

which addresses the transport of SO2 emissions from the Portland Plant by June 2013.

In fashioning a compliance schedule for GenOn, EPA should harmonize and coordinate the 

deadlines for complying with the Section 126 finding and the Utility MACT Rule. 

Harmonization and coordination of the statutory compliance schedules would allow the owners 

of the facility sufficient time to make a prudent business decision 'regarding the long-term 

viability of the coal-fired units. Moreover, such a harmonization and coordination approach is 

not unprecedented for Section 126 petition actions. See "Findings of Significant Contribution 

and Rulemaking on Section 126 Petitions for Purposes of Reducing Interstate Ozone Transport," 

64 FR 28250, 28255, May 25,1999, (EPA developed the alternative approach to harmonize the 

Section 126 and NOx SIP call actions).

Control measures that reduce SO2 can generally be expected to reduce exposure to this air 

contaminant thereby reducing potential adverse health effects. The proposed 81 percent overall 

reduction in allowable SO2 emissions from Portland Plant units would reduce emissions. 
Page 145 of 181

Moreover, these SO2 emission reductions would assist Pennsylvania in making progress toward 

achieving and maintaining the NAAQS for SO2 and PM2.5.

Consequently, DEP is supportive of the overall reduction approach outlined in the proposal. 

However, and significantly, DEP believes, as more fully explained below, that it is important for 

EPA to harmonize the compliance dates for new regulatory requirements including the Utility 

MACT Rule expected in November 20 

As you know, the final emission limits to achieve an overall reduction of 81 percent of maximum 

allowable SO2 emissions from the coal-fired units at the Portland Generating Station can only be 

achieved by retrofitting the units with flue gas desulfurization (FGD) systems. It has been DEP's 

experience that facility owners and operators that choose to install dry or wet scrubbing 

technology are generally able to install this technology within a three-year window. A three-year 

timeframe for the completion of the FGD installations is consistent with Section 126 of the CAA, 

and it parallels the initial three-year compliance deadline for complying with the Utility MACT 

Rule. Since EPA is under a court order to sign the final Utility MACT Rule by November 16, 

2011, adoption of the same effective dates for both rules would ensure compliance by the 

statutorily prescribed three-year compliance deadlines in Sections 112 and 126 of the CAA. This 

harmonized and coordinated approach provides adequate time for GenOn to make a reasoned 

decision on the long-term viability of the plant.

Clearly, the residents of the Commonwealth of Pennsylvania would realize public health and 

environmental benefits from measures implemented to reduce maximum allowable SO2 

emissions at the Portland Generating Station, which is located in Mount Bethel Township, 

Northampton County, Pennsylvania. However, DEP believes that the compliance schedule 

containing increments of progress for the Section 126 finding should be harmonized and 

coordinated with the compliance schedule for the final rule pertaining to "National Emission 

Standards for Hazardous Air Pollutants From Coal and Oil-Fired Electric Utility Steam 

Generating Units" (hereinafter Utility MACT Rule), which is expected by November 16, 2011. 

See also 76 FR 24976, May 3, 2011, for proposed Utility MACT Rule. It only makes sense to do 

so. The suggested harmonized approach would allow GenOn adequate time under the existing 

framework of the CAA to make a reasoned decision on the long-term viability of the Portland 

Plant.

Commenter: Steve Davies, GenOn, Vice President of Asset Management

Comment:

As a result of a Section 126 petition by the NJDEP, EPA is proposing a rule that will require 

significant reductions in SO2 emissions from our Portland station. GenOn believes any final rule 

should carefully consider the schedule for and the magnitude of SO2 reductions mandated by 

other air quality regulations that EPA is promulgating. In addition, the final rule should consider 

the process that needs to be followed in determining the existence of any SO2 non-attainment 

areas around the Portland station and the role of the PaDEP in developing an appropriate SO2 

NAAQS compliance implementation plan for all Pa SO2 sources. Finally, the rule should 

provide for meaningful, interim reductions of SO2 emissions while allowing GenOn time to 

analyze and develop a comprehensive compliance strategy that addresses pending regulations 

and obtain permits for any changes in station operations or additions of control equipment. We 
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agree with comments made recently by the NJDEP that they don't want to shut the plant down, 

they just want us to improve what we do.

We're asking for an opportunity to make changes that will result in near-term reductions in SO2 

emissions and for time to study all pending rules and make long-term plans for compliance with 

those rules once they have been finalized.

GenOn supports environmental rules and regulations that are based on sound science and that 

balance environmental benefits, electric reliability and economic impacts. Therefore it is critical 

that compliance with current and proposed environmental rules proceed in a manner that avoids 

material impacts to electric power supply reliability and avoids major consumer electric power 

price shocks.

As you know, there have been several environmental rules and regulations, specifically 

addressing air emissions, that have recently been made effective. In addition there are numerous 

pending environmental rules and regulations that will impact electric generating facilities, 

specifically coal-fired electric power generating station operations, across the US. These pending 

regulations include HAPS MAG, CATR, coal combustion by-product disposal, 316(b) and the 

SO2 1-hr NAAQS. As these regulations become effective, GenOn will make operational changes 

and/or capital expenditures to meet these new regulatory standards.

Commenter: Joe Dulovich, General Manager, GenOn Portland Station 

Comment:

Environmental performance is a key business objective for all GenOn stations, and we are very 

proud of our environmental compliance record at Portland. We have several major 

environmental permits that we must comply with that govern air emissions, ash disposal and 

wastewater discharges from the station. We are currently in full compliance with all of these 

permits. With respect to air emissions, the station has electrostatic precipitators to remove 

particulate matter from the flue gas. We also have low-NOx burners in the boilers to control 

NOx emissions, and we bum low sulfur coal to control the amount of SO2 emissions from the 

station.

We know that this action by EPA will likely require us to make near-term operational changes at 

the station to further reduce SO2 emissions. We also know that there are several other pending 

environmental regulations that will impact station operations. We hope that EPA will recognize 

there are limits to what we can economically do over the next few years and give us time to 

evaluate what we need to do to comply with all pending environmental regulations. We are 

confident that we have the talent at the station do what it takes to continue to protect the 

environment while providing excellent employment opportunities for our employees and 

providing significant economic support to northeast Pennsylvania and western New Jersey.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

The Proposal Fails to Consider Other State and Federal Actions That Will Address Portland’s 

Emissions 
Page 147 of 181

1. Pending CAA rules will dramatically reduce SO2 emissions and interstate transport EPA is 

developing emissions standards for EGUs under Section 112 of the CAA to control HAPs 

through the EGU MACT. 76 Fed. Reg. 24976. These standards not only would regulate 

emissions of HAPs, but also would result in reductions in SO2 emissions because the 

technologies used to control acid gas HAPs “are also often effective at reducing significantly the 

emissions of other conventional pollutants such as SO2.” Id. at 24978. See also id. at 24991-92, 

25006 (discussing interaction of HAP and SO2 controls). Proposed emissions standards in the 

EGU MACT will require unit-specific or plant-specific compliance. Accordingly, to meet the 

HAP limits, Portland will need to install emissions controls on Units 1 and 2 that will result in 

significant SO2 emissions reductions or the units will be forced to shut down. There is no EGU 

MACT compliance scenario currently envisioned for Portland that would not also allow the units 

to comply with the 1-hour SO2 NAAQS.

Imposing emission reductions at this time, prior to promulgating the EGU MACT, as well as the 

planned Clean Air Transport Rule (“CATR”), imposes an unnecessary burden on Portland when 

emission reductions required by those rules likely will address the alleged impacts on New 

Jersey. As EPA has recognized, “forthcoming national and regional rules, such as the pending 

Industrial Boilers [MACT] standard under CAA section 112(d), are likely to result in significant 

SO2 emissions reductions in the next three to four years.” 75 Fed. Reg. 35570 (emphasis added). 

In fact, by 2014, EPA expects CATR and other regulatory actions, such as the EGU MACT, to 

reduce overall SO2 emissions by 71% from 2005 levels. See supra Section III.C. Nonetheless, 

the Proposal completely ignores these pending regulations and would impose additional 

requirements on Portland before other sources are required to comply with these rules. Because 

final requirements for these rules are not yet known, the Proposal also may impose inconsistent 

obligations on Portland, or force GenOn to select a remedy that does not fully address the 

expected MACT standards and results in inefficient implementation of requirements imposed by 

the EGU MACT, Section 110, Section 126 and CATR.

F. EPA Should Defer Action on the Petition Until Other Pending Actions Are Complete. 

Collectively, multiple regulatory actions will determine requirements applicable to Portland and 

how GenOn elects to comply with any final rule promulgated in response to the Petition. In 

particular, the EGU MACT and EPA’s response to the first, and still-pending, New Jersey 

Section 126 petition will have significant impacts on Portland. These impacts and requirements 

must be considered collectively in order to allow reasoned decision-making by GenOn with 

respect to compliance measures to be taken at Portland. It is simply unreasonable to ask GenOn 

to make major decisions about the future of Portland in the face of significant uncertainties about 

additional requirements imposed by these regulatory processes. 

EPA has stated that it intends to finalize the Proposal (or a revised version thereof) by the end of 

September. But this is well before EPA will finalize the EGU MACT and GenOn remains 

uncertain as to EPA’s timeline for a response to the first New Jersey petition. Accordingly, EPA 

should revise the timelines in the Proposal to align with the EGU MACT and any regulatory 

actions specifically directed at Portland. Not only will this timing allow the best and most 

informed decision-making, it is required under Executive Order 13563 and consistent with past 

EPA action on Section 126 petitions. See supra Sections IV.B, D.2.
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Accordingly, EPA should defer a final finding in response to the Petition until the D.C. Circuit 

has acted and either affirmed the validity of the new 1-hour SO2 NAAQS or invalidated it and 

obviated the need for EPA to act on the Petition. 

Further, EPA plans to issue proposed implementation guidance by the end of June 2011 for the 

use of either modeling or monitoring to show future compliance with the 1-hour SO2 NAAQS. 

This guidance was referenced in the final SO2 NAAQS rule (75 Fed. Reg. 35550), but has not 

yet been issued. EPA plans to take public comment on this proposal before finalizing the 

guidance. Until this guidance is finalized, which could allow the use of monitoring in lieu of 

modeling, EPA’s Proposal is premature and should be deferred.

The Proposal would impose requirements that may be inconsistent with those imposed by the 

pending EGU MACT and the CATR. See supra Section IV.D. 

Similarly, the Proposal’s interim solution is not achievable within the timeframe set forth, as 

discussed below, and actions needed to meet the interim limits for each coal-fired unit at 

Portland may be inconsistent with actions needed to satisfy the Proposal’s final limits. EPA 

should revise the Proposal to correct these defects. 

Although GenOn understands that EPA does not view Section 126’s three-year compliance 

timeline as a “grace period” during which a source can continue to operate without making any 

attempt to comply with the emissions limits imposed through the Section 126 process, EPA must 

understand that, in the circumstances present here, it is not imposing the Section 126 limits in a 

vacuum. The regulatory environment is very fluid and further changes are expected. GenOn will 

need to develop a compliance strategy over the next few years to address the various regulatory 

requirements being imposed on the electric generating industry. The compliance plan and status 

reports should not restrict GenOn’s ability to revise its strategy for compliance with Section 126 

as circumstances change. EPA’s insistence that GenOn specify the measures it will use to meet 

interim and final emission standards is inappropriate and unnecessary. 

Commenter: Gene Barr, Vice President, Government and Public Affairs, Pennsylvania 

Chamber of Business and Industry 

Comment:

It is important to note that there are numerous other pending federal environmental rules and 

regulations that will in-pact electric generating facilities, specifically coal-fired electric power 

generating utilities, across the United States. These pending regulations will likely have the 

impact of driving additional reductions of SO2 emissions. It is critical that all final SO2 

reduction requirements are known so that investment decisions can be made on a single set of 

criteria.

The PA Chamber believes that any final rule should carefully consider the schedule for and 

magnitude of SO2 reductions mandated by other air quality regulations that EPA is 

promulgating.

Portland Station can achieve meaningful interim reductions of SO2 emissions while allowing 

GenOn time to analyze and develop a comprehensive compliance strategy that addresses both the 
Page 149 of 181

requirements of a final ruling and pending regulations and allows for the time to complete 

required upgrades.

Response:

The EPA has considered these comments, and believes Portland has the information it needs to 

make an informed decision. 

We understand that Portland’s actions to address its significant contribution to nonattainment and 

interference with maintenance of the 1-hour SO2 NAAQS are occurring in relatively close 

proximity to actions it may take to address the requirements under the recently-finalized 

Transport Rule, as well under the forthcoming MATS rule. 

The EPA notes that the final requirements of the Transport Rule are now known. The EPA also 

notes that the initial requirements under the Transport Rule for 2012 precede the requirements 

for this section 126 rule, which requires the source to meet interim limits within 1 year (early 

2013) with 3-year requirements taking in effect in early 2015.

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. 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.

The EPA also notes that, 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. 

See the discussion in section V.E. of the preamble on harmonizing this Rule with other 

requirements under the Clean Air Act, and section VI.B. on reporting milestones.

8. 90-day compliance plan is not needed

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

Further, requiring that GenOn submit a compliance plan 90 days after the final rule is 

unnecessarily restrictive, particularly given that GenOn will not have fully evaluated its 

compliance options for the EGU MACT. 

Response:

EPA has considered this comment and has adjusted the due date for Portland to submit its plan 

for achieving compliance with the final emissions limit within three years. In the final rule, the 

EPA requires Portland to submit this compliance plant within one year. See the discussion in 

section VI.B of the preamble concerning EPA’s decision to extend the deadline for submittal of 

the compliance plan.

9. Six month status reports are not justified

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 
Page 150 of 181

Comment:

Similarly, 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. 

Response: 

See the discussion in section VI.B of the preamble on the EPA’s retention of the six-month status 

reports and the necessity for such reports for the EPA to monitor Portland’s progress towards 

achieving compliance with the emissions limits.

10. Interim limits should be combined limits

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

EPA is taking comment on possible interim emission reductions such as proposing that the 

Portland Plant reduce its SO2 emissions to a level no greater than 2,910 lbs/hr for un it 1, and 

4,450 lbs/hr for unit 2, one year after the effective date of the final rulemaking, and other 

compliance activities to demonstrate appropriate increments of progress toward compliance. 76 

Fed. Reg. 19664. Notwithstanding its stated objections to establishing interim limits, if EPA 

determines that interim limits are necessary, GenOn requests that the interim limit allow GenOn 

greater flexibility than the single example modeled by EPA and subsequently proposed. 

Specifically, GenOn believes that the same environmental benefit can be achieved through the 

use of a combined mass emission rate for Units 1 and 2 (e.g., an SO2 emission rate of 7,360 lb/hr 

if EPA insists that Portland meet an interim limit that achieves a 50 percent reduction in the 

units’ allowable emission rates).10 Indeed, this same flexibility should be provided in the final 

limits, as well. Since the objective is NAAQS-compliant modeled impact, there is no reason to 

impose unit-specific limits if a combined unit limit achieves the same result.

Response:

In the final rule, the EPA has provided for one combined SO2 emissions limit which Portland 

must comply with no later than one year after the effective date of this Rule. For the reasons 

discussed in detail in section VI of the preamble, the EPA decided to use the one combined limit 

instead of the unit limits EPA previously proposed.

11. EPA should work with agencies to establish increments of progress postpromulgation

Commenter: Michael L. Krancer, Secretary, PADEP 

Comment:

EPA should work with NJDEP, GenOn, and DEP, as the permitting agency, to establish emission 

limits and compliance schedules containing increments of progress consistent with Section 126( 

c) of the CAA (42 U.S.C. 7426(C)).

Response:

The EPA believes that the approach suggested by this comment 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 
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for the EPA to defer the compliance schedules to a future negotiation with the source owner and 

states. 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 finding. 

12. Comments on interim reporting milestones

Commenter: Senator Pat Toomey, Senator Robert P. Casey and Congressman Charles 

Dent

Comment:

The proposal requires GenOn to submit a compliance plan 90 days after the final rule. We 

understand that GenOn is actively evaluating alternatives to arrive at the most effective control 

solutions... Accordingly, we encourage EPA to provide GenOn with flexibility in the timing of 

the submission of the compliance plan to meet required emission limits.

Commenter: E. Wade

Comment:

It is reasonable that the EPA expects the Portland Plant to have reduced their emissions within 

the three year compliance period. However, some of the compliance deadlines may be overly 

ambitious for the plant to complete based on lack of expertise. For instance, the plant may need 

at least 6 months to submit a modeling protocol; they are most likely extremely unfamiliar with 

the process, its limitations, and what kind of information they need to obtain. 

They also may need additional time to evaluate the best type of changes for their system. This 

course of action will involve engineers evaluating their entire operation. At 53 years old, changes 

to their plant could be extensive and also difficult to model. 

In the light of these challenges EPA could potentially act as a consultant to assist in modeling, 

receiving compensation and ensuring that the Portland Plant’s efforts are adequate. 

The plant may also need additional time to implement any engineering changes to improve their 

emissions. 

Taking the plant offline may violate contractual obligations and affect the surrounding power 

grid. It may also dramatically decrease revenue and thus funds for enacting emissions changes. 

Overall, costs of changes should also be taken into account; costs of repair may exceed the fiscal 

capabilities of the plant, forcing the entity to cease operation and leaving a large unmet demand 

for electricity in the area.

Response:

The EPA agrees with the commenter that it is reasonable for Portland to reduce its emissions 

within the three year time period provided in the rule. In the final rule, as discussed in more 

detail in section VI.B of the preamble, the EPA has amended the time period for submission of 

the modeling protocols and modeling analysis which will provide Portland time to analyze its 

compliance options given other regulatory requirements and plant-specific conditions. However, 

as discussed in sections V.E and VI.A of the preamble, the EPA believes there are reasonably 
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available compliance options for Portland to reduce its SO2 emissions within the one year and 

three year timeframes. For the EPA’s assessment of impacts of electricity reliability and 

probability of closure, see EPA’s analysis in section VI.A of the preamble.

13. Meaning of “expeditiously as practicable” requirement in the event of a 

shutdown

Commenter: Commissioner Bob Martin, NJDEP

Comment:

In accordance with Section 126(c), it is a violation of a source for which EPA has made a finding 

under this section to operate more than three (3) months after EPA’s finding. 42 U.S.C. § 

7426(c)(2). EPA may allow the continued operation of a source after three months of an EPA 

finding only under certain conditions. Specifically, the source must comply with emissions 

limitations and compliance schedules (containing increments of progress) that EPA provides to 

bring about compliance “as expeditiously as practicable,” but under no circumstances later than 

three years after EPA’s finding. 42 U.S.C. § 7426(c). EPA has proposed to allow the continued 

operation of Portland as long as compliance with the established emission limits is satisfied 

within three years of EPA’s final rule. 76 Fed. Reg. 19,677. EPA’s three year compliance 

schedule is the maximum time frame allowed under Section 126(c), and a more expeditious 

schedule is necessary to address this serious public health issue. A more expedited time frame is 

warranted given that residents living in Pennsylvania and New Jersey close to the Portland plant 

are subjected to unhealthy air quality as a result of this plant. The significant health problems 

suffered by these citizens are also evident based on the testimony presented at EPA’s April 27, 

2011 hearing. EPA included such testimony in the rulemaking docket.

If Portland plans to cease operations of the coal burning units, rather than achieve 95% reduction 

in emissions, shutdown should occur within three months of EPA’s final rule. Also, EPA must 

require the readily available interim emission reductions as explained above that will minimize 

emissions in the shortest possible timeframes (i.e., as “expeditiously as practicable”). 

The plain language of section 126 presumes a shutdown in 90 days once EPA makes a finding of 

a Section 126 violation. The provision for longer than 90 days should only be implemented if 

most emission reductions have been achieved within the 90 days, and more time is needed to 

achieve additional reductions that are infeasible within the 90 days. If little or no emissions 

reductions are done within the 90 day timeframe, then a shutdown is appropriate given the 

serious public health consequences of these emissions.

Response:

The EPA disagrees with the commenter’s contention that section 126 requires a source to 

achieve substantial emissions reductions within 90 days or shut down. Section 126(c) of the 

CAA allows the EPA to permit continued operation of a source beyond 90 days if the source 

complies with emissions limitations and compliance schedules established by the Administrator. 

The statutory language requires that the necessary emissions reductions be achieved “as 

expeditiously as practicable, but in no case later than three years” after the date of the section 

126 finding. This language does not, however, mandate that any portion of the necessary 

emission reductions occur within a particular, earlier time period, nor does the statute require the 

EPA to accelerate the compliance period based on health concerns.
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For the final rule, the EPA determined that Portland could not reasonably achieve the aggressive 

emission reductions proposed by the commenter within such short time frames. Rather, the EPA 

concluded that it could reasonably require interim reductions within one year and that Portland 

could reasonably achieve the final emission reductions within 3 years. The EPA determined that 

shorter compliance periods were not justified by its analysis. See preamble sections V and VI 

for further discussion.

Moreover, the statutory language does not 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 and compliance schedules. The EPA disagrees with commenter’s suggestion that 

any decision to shutdown must occur immediately or within 90 days. See preamble section 

VII.A for further discussion.

14. Additional comments on criteria for implementing the “as expeditiously as 

practicable” requirement

Commenter: Commissioner Bob Martin, NJDEP

Comment:

EPA specifically asks for comments with respect to what criteria should be considered when 

implementing the "as expeditious as practicable" requirement of Section 126.

First, EPA should explicitly require that GenOn implement emission reduction measures "as 

expeditiously as practicable" and demonstrate that they are doing so. EPA's 90 day, one year, and 

three year deadlines should be maximum timeframes, and GenOn should also be required to 

implement measures sooner if possible and demonstrate to EPA that they are doing so. The 

following information demonstrates that greater emission reductions than proposed by EPA are 

possible in shorter time frames and thus, the following are emission reduction measures that 

should be required to meet the "expeditiously as practicable" requirement set forth in Section 

126. Section III of these comments explains in detail how such emission reductions can be 

achieved as "expeditiously as practicable." 

For example, reducing the hourly amount of coal burned can be done immediately. GenOn 

should be required to do so and to demonstrate that it is minimizing the amount of coal burned 

within the capacity of the units. Also, GenOn should be required to burn the lowest sulfur coal 

available as soon as possible.

Also, GenOn can implement DSI in much less than one year and should be required to do so. 

Use of DSI would correspond to EPA's 50% reduction proposal within one year. GenOn should 

be required to document what is the soonest timeframe they can implement DSI and be required 

to do so in that timeframe, provided it is less than one year.

To allow operation beyond 90 days, GenOn should have reduced the amount of coal burned and 

the sulfur content of that coal, and installed DSI within the 90 day period. If an 80% reduction is 

not achieved within 90 days, GenOn should shut down the coal units until at least 80% reduction 

can be achieved. For example, if it takes longer than 90 days to obtain the lowest sulfur coal 

available, GenOn should not operate the coal units until that coal is on site and used.
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80% minimum reduction within 90 days is recommended to roughly correspond with the lowest 

modeling prediction. While this is not low enough to prevent all exceedances, it is reasonable 

for allowing more time to achieve at least the 95% reduction level as soon as possible, but no 

longer than three years. In short, EPA cannot delay compliance with Section 126 beyond the 

maximum time frame set forth in the Act for any reason and must act to ensure that the 

“expeditiously as practicable” language is given meaning.

Response:

The EPA has reviewed available options for controlling emissions and, as discussed in sections 

V and VI of the preamble, has included a compliance schedule for achieving the necessary 

reductions. 

The statute does not permit the Administrator to mandate a particular compliance technology, 

and accordingly, the rule does not require GenOn to implement any particular compliance 

option, including those suggested by the commenter such as an immediate minimization of coal 

burned. Rather, the EPA established a compliance schedule for both the interim and final 

emissions limits that is consistent with the time that is reasonably necessary to apply the 

available compliance options and that provides GenOn with the flexibility to adopt the best 

approach. 

The EPA disagrees with commenter’s assessment that a DSI system can be installed in less than 

one year. The EPA shares other commenter’s concerns about the need to include an assessment 

of the effect of the DSI system on current particulate controls. See preamble discussion on DSI in 

section V.E. 

IX. Technical Feasibility of Controls

Commenter: Commissioner Bob Martin, NJDEP

Comment:

A. Switching to Low Sulfur Coal Could Result In over 90% Reduction Within 90 Days

Switching to lower sulfur coal would dramatically cut SO2 emissions and could happen very 

quickly (e.g., within 90 days). At PSEG Fossil LLC’s Hudson Generating Station (Hudson) in 

New Jersey, the facility was required to use ultra low sulfur coal. Hudson switched to an ultra 

low sulfur coal with a reported sulfur content of approximately 0.1% sulfur. Hudson was 

required to burn 100% ultra low sulfur coal with an SO2 limit of 0.216 lb/mmBtu until the 

installation and commencement of operation of a scrubber. EPA was party to the Consent Decree 

that resulted in this requirement. Because Portland uses approximately 2% sulfur coal, which is 

about 3 pounds SO2 per million Btu, coal switching alone could result in over 90% SO2 

emission reductions. If this ultra low sulfur coal is not available for use at Portland, GenOn 

should obtain the next lowest sulfur coal available that can be burned at Portland. GenOn should 

be required to document to EPA and the public that it will use the lowest sulfur

coal available.
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According to the Energy Information Administration’s Monthly Utility and Nonutility Fuel 

Receipts and Fuel Quality Data (EIA-923), 

http://www.eia.gov/cneaf/electricity/page/eia423.html, in 2008 Portland imported 919,715 tons 

of coal from four western Pennsylvania and West Virginia mines with a weighted average of 

1.88% sulfur. Upon burning, this resulted in a release of 34,650 tons of SO2 at a rate of 

approximately 3.1 lb/mmBTU.

In 2010, Portland imported 638,865 tons of coal from a single western Pennsylvania mine with a 

weighted average of 1.79% sulfur. The 2010 rate as reported to EPA’s CAMD database was 2.82 

lb/mmBTU. EIA-923 data indicates that lower sulfur coal is also available in West Virginia. In 

2010, seven West Virginia mines produced 3,233,503 tons of bituminous coal with sulfur 

contents ranging from 0.14% to 0.37%. Such coals burned at Portland could lower SO2 

emissions by 92% to 77%, respectively. Considering Portland has obtained coal from West 

Virginia in the past, and West Virginia has the potential capacity to supply Portland’s demand, 

this option is reasonable and feasible. We note this as an example of the availability of much 

lower sulfur coal but it is not the only possible source.

The Portland Plant can reduce the amount of coal burned, change the coal to a much lower sulfur 

coal, and inject a reagent that will absorb some of the SO2, to achieve 80 to 95 % reduction. 

Reducing the amount of coal burned could be done immediately; changing from 2% sulfur coal 

to 0.2% sulfur coal would achieve 90% reduction at the Portland Plant; and dry sorbent injection 

could increase the emission reductions to over 95%.

Response:

The EPA has reviewed recent Central Appalachian thermal coal quality and production data 

from Wood Mackenzie, published in April 2011. The Wood Mackenzie data does not indicate 

availability of Central Appalachian thermal coal in 2010 as low as 0.2 percent sulfur. While 

western sub-bituminous (such as Powder River Basin) coal may be available at 0.2 percent sulfur 

to some degree, EPA concludes that far more time than 90 days would be required make 

necessary changes to burn this coal. See further discussion in preamble in section V.E.2.a; 

preamble section VI.A.2.b for the EPA’s discussion of the technical feasibility of coal 

switching; and discussion above in sections VII and VIII related to interim and 3-year emissions 

limits. 

Commenter: Derrick Loy, Energy Independence of America Corp. (EIAC)

Comment:

I would like to make the concerned public, NJ Department of Environmental Protection officials, 

and Portland Generating Station officials aware that there are good alternatives to closing this 

polluting facility. The Calderon Repowering Technology has been studied in-depth by Bechtel, 

where they found that the technology is a unique and applicable method of co-producing clean 

electric power and useful by-products. I have assisted EIAC with the development of the 

Calderon Clean Energy Technologies. One of which is a technology that if utilized would enable 

Portland Generating Station to repower via this economical and environmentally friendly 

process, ultimately extending the useful life of Portland's Units 1 & 2 ensuring the facility 

remains competitive. This closed- system technology will not only eliminate SO2 emissions, but 
Page 156 of 181

it will also eliminate NOx, particulate matter, mercury, ash disposal and convert flue gas CO2 

into a useful product. This technology is just one of a few options for this facility.

Commenter: Samuel Burlum, Extreme Energy Solutions

Comment:

I'm the CEO and president of Extreme Energy Solutions out of Ogdensburg, New Jersey. I'm 

also a sworn-in fuel economy expert and emissions expert by U.S. Federal Court in the case of 

Dutchman versus FTC. One of the -- from all of our research that our company has compiled 

over the past three to four years, one of the factors that hasn't been looked at in the emissions 

arena is the fact of the actual fuel source. 

In a report that you guys established in 1999, the main component or reason why you have dirty 

emissions is simply unburnt and unused fuel. One of the things that we would ask EPA to 

consider is actually looking at how to better refine the fuel source. This is related to diesel, gas, 

coal, natural gas, propane. We actually had the opportunity to prove the factual concepts of 

combustion efficiency. And during that discovery with the court, what was able to be found is if 

you just better refine the material you are burning, you no longer have dirty emission. So that 

science and those reports we'll be submitting to your office in a formal report before May 27th. 

Another issue that we have found dealing with other coal fire plants and other sources of dirty 

emissions, companies and municipalities that we are doing business with, is the fact that there is 

not enough bridging between the compliance sector and the options that are able to be used. For 

instance, we understand that EPA and DEP, both New Jersey, New York and Pennsylvania are 

more of an enforcement agency. One of the things that we found that would help mitigate these 

issues is if you supplied the companies with a format of what could be used as an option. So put 

100 percent responsibility on their shoulders in order to get it done so you can properly enforce. 

And that's been one of the missing pieces to a lot of companies not taking any action, is that they 

understand that there are laws, but there is not enough affordable options for them to be able to 

mitigate these issues. 

In regards to a supplement product that our company has researched and developed, University 

of Pennsylvania has worked with that product and researched it, tested the product. It's basically 

a product we call Extreme Clean that can be used to mitigate dirty emissions as a wet scrubber 

system similar to a limestone slurry. But, however, we can mitigate above 80 percent of the dirty 

emissions and totally sequester all of your volatile compounds above the limestone slurry. It's a 

fully recyclable product, 100 percent, to make plastics. We ask that the EPA use that as an 

option to help mitigate this issue. That will be in the report that we'll submit to your office.

Response:

While EPA has not evaluated the technologies identified by these two commenters in particular, 

we note that the rule is structured in a way that provides GenOn with the flexibility to choose the 

most cost-effective way of meeting emissions limitations, and we do not prescribe any particular 

technology. 

Commenter: Erin Phalon and Joshua R. Stebbins, The Sierra Club

Comment:
Page 157 of 181

DSI is less effective than scrubbers and should therefore only be used on an interim basis to 

achieve SO2 emissions reductions at the Portland Plant.

Response:

The EPA has implemented emissions limits and a compliance schedule which will eliminate 

Portland’s significant contribution to nonattainment and interference with maintenance of the 1-

hour SO2 NAAQS in New Jersey. The final rule does not mandate nor prohibit the use of any 

specific technology.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC

Comment:

Reagent injection is not feasible to achieve an interim limit EPA specifically references the 

experience with Trona injection at one of GenOn’s affiliate’s plants, the Potomac River Station. 

However, EPA fails in the Proposal to evaluate what effect its suggested interim control 

strategies would have on Portland or even whether such controls could be utilized in the 

timeframe proposed. Reagent injection is not feasible at Portland without significant capital 

investment and equipment installation. Project engineering, permitting, procurement, installation 

and commissioning would be required to implement the controls with an estimated timeline as 

provided in Appendix A. All of these steps could not be accomplished within one year. 

Importantly, to GenOn’s knowledge, all dry sorbent injection system installations in the United 

States providing at least 50 percent SO2 removal have been installed in conjunction with a fabric 

filter baghouse or hot-side Electrostatic Precipitators (“ESPs”). All of these have been installed 

at plants burning lower sulfur coal (less than 2.0 lb SO2/MMBtu).

Response:

See preamble discussion in section VI.A.2.e for why reagent injection no longer serves as a basis 

for the interim limits. 

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC

Comment:

Portland hosted a Trona Injection Demonstration Program in 2006. The results of the testing 

illustrated that unacceptable increases of particulate matter occurred when sorbent was injected 

at quantities necessary to produce the SO2 reductions proposed by EPA. The cold-side ESPs’ 

performance deteriorated due to fly ash characteristic changes cause by Trona and the emissions 

controls could not adequately collect the additional particulate produced by the injection. 

Emissions reductions never achieved 50 percent SO2 removal during the test program due to low 

sorbent residence time and particulate collection problems. Additionally, sorbent injection during 

the test program caused the flyash produced by the units to be unacceptable for disposal in the 

plant’s permitted ash landfill. Alternative disposal options will exacerbate the costs and problems 

encountered in designing a dry sorbent application at Portland

Response:

Each of the described operational characteristics would normally be expected with trona DSI at a 

high SO2 removal rate. To accommodate these characteristics, a comprehensive approach would 

likely include the addition of a fabric filter (FF) downstream of the existing ESP, with the ESP 

remaining in service to capture fly ash upstream of the trona injection point.
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The EPA also notes that the cited 2006 demonstration program has been supplemented with the 

additional information submitted by GenOn in its September 2011 test burn report.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC

Comment:

Load shifting is not applicable to merchant plants

GenOn does not believe load shifting is a viable option to meet an interim limit. The term “load 

shifting” is a misnomer in a centrally dispatched Independent System Operator (“ISO”) market 

like the PJM market in which Portland operates. In the context of a traditional franchise utility 

with a discrete control area, “load shifting” refers 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.

In contrast to the traditionally franchise utility model, GenOn’s Portland plant is a merchant 

plant that operates in a competitive, centrally cleared and dispatched, ISO market. Each day, 

Portland competitively bids to sell its energy output into the PJM ISO market and any reduction 

in the output of Portland will not simply be “shifted” to another lower emitting GenOn facility. 

Reductions in the output at Portland will be replaced by more costly energy and that replacement 

energy will almost certainly come from one of GenOn’s competitors. Further, because the energy 

produced by the facility that replaces Portland’s output will be more expensive than Portland’s 

energy, it is possible that Portland’s production will be “shifted” to a less efficient unit that may 

have higher emissions rates than Portland Units 1 and 2. The proposed “load shift” does not 

guarantee any reduction in SO2 emissions and it may actually result in greater overall emissions. 

Additionally, because Portland participates in PJM’s reliability planning construct, it is a PJM 

capacity resource. As a capacity resource owner, GenOn is required under the 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:

See preamble section VI.A.d for a discussion of the load shifting issue.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC

Comment:

Further evaluation of lower sulfur coal is necessary GenOn’s initial evaluation of lower sulfur 

coal at Portland indicates that limited options exist for potentially suitable coal supplies. EPA 

provided a chart to illustrate the availability of lower sulfur coal (Appalachian Basin Bituminous 

Coal: Weight Percent Sulfur of Produced Coal by County, As Received at the Power Plant). 

EPA’s cursory review ignores the following facts: (1) that the chart is very old (average from 

1983 to 1995); (2) no other information is provided DC01:613186.14 - 27 (such as HHV, grind 

or ash content) that would qualify the fuel as usable; and (3) there is no real information that the 

fuels are truly available (mined and on the market). Importantly, based on initial evaluations of 

the coals economically available, the use of lower sulfur coal is projected to cause significant 

production derates at Portland Units 1 and 2. Nonetheless, the use of lower sulfur coal appears to 
Page 159 of 181

be the only viable option to meet interim limits at Portland. GenOn does not yet have sufficient 

data to determine what interim limit, if any, may be consistently achievable.

Response:

See preamble discussion in section VI.A.b regarding EPA’s conclusion that lower sulfur coals 

supplies are readily available, including information sources for this conclusion.

 

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC (late 

supplemental comments)

Comment:

Results (of test burns)

In general, the individual unit electrical output capabilities, the SO2 emission reduction and other

important parameters such as opacity were affected by the various blends. The information 

presented below represents the average results observed for the parameters measured during the 

test period. (Note: the duration of data collection period was adjusted to minimize the spread 

between the highest and lowest readings while providing statistically accurate and relevant 

information.)

Objective 1 - Quantify the reduction in SO2 emissions and determine the maximum blend of

CAPP coal at which each unit was able to maintain its respective rated generator output.

Unit 1 - Unit 1 has a rated capacity of 171 gross MW. The unit was able to maintain output at

rated capacity with CAPP coal blends as high as 40% and simultaneously deliver a significant 

reduction in SO2 lbs/MMBtu and SO2 lbs/hr. With a 40% blend, Unit 1 emitted 1.98 SO2 

lbs/MMBtu, or 3188 SO2 lbs/hr.

Unit 2 - Unit 2 has a rated capacity of 251 gross MW. The unit’s ability to reach rated capacity

was almost immediately affected by the blending of CAPP coal. At a blend of 20% CAPP coal, 

Unit 2 was only able to maintain output of 242 gross MW. With a 20% blend, Unit 2 emitted 2.4 

SO2 lbs/MMBtu, or 5325 SO2 lbs/hr.

Based on equipment performance observations during this test, GenOn believes that blending at 

the above levels can be maintained for a sustained period of time with a moderate investment in 

equipment modifications and a relatively modest implementation schedule. (See Lead Times

section, Part A below.)

Objective 2 - Quantify the reduction in SO2 emissions and determine the generator output of

each unit when burning 100% CAPP coal.

Unit 1 - With 100% CAPP coal as its fuel, Unit 1 was able to maintain output at 162 gross MW.

SO2 emissions decreased to 1.17 SO2 lbs/MMBtu, or 1737 SO2 lbs/hr.

Unit 2 - With 100% CAPP coal as its fuel, Unit 2 was able to maintain output at 193 gross MW.

(Note: due to anomalous conditions that were encountered during the testing of Unit 2 with 

100% CAPP coal, GenOn believes that under normal conditions gross output will be 202 MW.) 

SO2 emissions decreased to 1.22 SO2 lbs/MMBtu, or 2257 SO2 lbs/hr.
Page 160 of 181

Based on equipment performance observations during this test, GenOn believes that the use of

100% CAPP coal can only be maintained for a sustained period of time with much more

significant investment in equipment modifications and a longer implementation schedule. (See

Lead Times section, Part B below.)

Objective 3 - Identify preliminary impacts on production equipment or systems and any ancillary

constraints to burning lower sulfur CAPP coal or blends.

The following coal handling or unit sub-system performance issues were observed:

1. Mill performance and throughput limit unit loading capabilities were adversely impacted.

Specifically, the following areas of mill performance appear to be affecting overall throughput:

a. Mill motor amps are at or near their fully loaded limit for extended operation.

Because CAPP coal has a lower Btu content, more coal throughput is required on each mill.

b. The CAPP coal is harder and is therefore more difficult to grind to the required level of 

fineness for proper combustion. This exacerbates the motor amp limitation discussed above.

c. During the testing, coal fineness was observed to be sub-optimal for the sampled blend ratio 

with 40% CAPP coal. This indicates mill amperage would have more margin with fineness 

closer to optimum.

d. Unit 2 coal mill reject rate increased, which indicates increased wear rates on grinding 

components, which will, in turn, require more frequent maintenance and unit load de-rates.

2. Fly ash accumulation through the electrostatic precipitator (ESP) was significantly greater per 

pound of coal burned. The increase in ash volume has the following impacts:

a. Fly ash removal components require additional maintenance activities to ensure operation at 

design condition.

b. The increased volume of flyash will have an adverse impact on the wear of equipment.

c. The additional ash created must be hauled out, which requires additional ash transport 

equipment.

In addition, an initial analysis of fly ash chemical properties indicates certain constituent levels 

are high enough to prevent disposal of the ash in the existing GenOn permitted landfill. 

Additional testing is being conducted, but an alternative disposal plan may need to be developed.

3. Current coal handling, feeder and hopper systems are not designed for coal blending to be a 

routine part of day to day operations. In addition, these systems do not allow for different blends 

to be prepared and sent to respective units; consequently, the same blend must be delivered to 

both units at all times. Significant investments in equipment required for management of the coal 

pile and the coal feed system from the coal pile to the coal belts will be necessary to allow the 

station to safely and reliably be able to routinely blend coals. This will require the following 

equipment to be procured, upgraded or returned to service:

a. Additional heavier duty coal moving equipment will be required to ensure the proper 

configuration of the coal piles, particularly during periods of heavy rain or snow.

b. All reclaim feeders and hoppers must be over-hauled to support day to day blending volumes.

c. Several areas on the conveyor belt line will require additional maintenance work to support the 

coal transfer point (transfer from one belt line to the next) throughput.

d. Increasing coal blending accuracy beyond current capability will be necessary, which will 

require equipment changes, including changes to reclaim control systems and the addition of a 

real time coal analyzer.
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e. Repairing the Bradford breaker and placing it in service is required in order to reduce wear and 

tear on the crusher and ultimately improve mill performance.

4. Induced draft (ID) fan capacity is inadequate on Unit 1. This is limiting the ability of the unit 

to achieve rated load when ambient temperatures are elevated.

Lead Times and Other Limitations to Implement SO2 Reductions by Fuel Blending

Based on the results of the above CAPP/NAPP blending tests and observations of the operational 

impacts CAPP coal has on Portland Station’s operations, GenOn has made an initial evaluation 

of the upgrades and equipment changes necessary to begin switching to CAPP coal on a longterm basis.

In addition to making an initial evaluation of equipment upgrades and system changes and 

additions necessary to burn CAPP coal, GenOn has also developed an estimate of the time 

required to obtain, install and, in some cases, obtain permits for these equipment upgrades and 

system changes. It is important to note that GenOn’s evaluation concludes that both the number 

of upgrades and system changes, and the time necessary to implement these changes increases as 

the proportion of CAPP coal increases and NAPP coal decreases in Portland Station’s fuel mix.

To assess the specific impacts of CAPP/NAPP coal blending on station operations and to make

an initial determination of the feasibility and time required to transition to sustained blending 

operations, GenOn evaluated the changes required to support CAPP blending that yields two 

different levels of SO2 reductions:

 A 25% reduction in allowable SO2 emissions

 A 35% reduction in allowable SO2 emissions

A. To achieve a 25% reduction in SO2 emissions on a sustained basis, the primary operational 

impact observed is in the management of the coal pile and the coal feed system from the coal pile 

to the coal belts. In order to achieve sustained operations at this level, the following investments 

are required.

 Acquire additional bull dozers.

 Improvements to the reclaim hopper feeders and the associated controllers will be required.

 Maintenance work to several areas on the belt line to improve the coaltransfer point (from one 

belt line to the next) performance.

 Evaluate/upgrade amperage carrying capability of all 8 mill motors.

 Repair/restoration/upgrades to mill wear areas, the Bradford breaker, crusherwear areas, soot 

blowing system, ash handling system.

 Upgrades to the crusher assembly to provide finer particle output.

 Develop an alternative ash disposal plan.

It is expected this work can be completed within 6 months

B. To achieve a 35% reduction in SO2 emissions on a sustained basis, the following additional 

investments are necessary.

 Restore the function of the final hoppers to allow for a larger population ofCAPP coal 

hoppers.

 Evaluate and engineer improved dust controls at belt transfer points.

 Evaluate and enhance ash handling system capacity to support the larger flyash volume and 

greater wear that is expected. This includes improvements to the equipment condition in the 

currently installed system through improved higher wear materials as well as more effective and 

required higher capacity mixing equipment for the dry ash system.
Page 162 of 181

These investments will require 8 to 12 months to engineer and install following collection of 

operating data at 25% reduction blending operations. The timeline is approximately 18 to 24 

months to realize operations at 35% reduction, not including the time required to complete any 

air permitting which may be necessary.

Response:

The EPA concludes that there are greater interim reductions available than a 25 or 35 percent 

reduction in allowable emissions proposed by the commenter. See preamble discussion in 

section VI.A.c regarding the EPA’s response to the recent test burn, and for the EPA’s review of 

the suggested interim limits of 25 percent and 35 percent in light of recent emissions at the 

Portland facility. 

Commenter: Paul Miller, NESCAUM

Comment:

As EPA is seeking comment on whether the schedule is sufficient to achieve compliance as 

expeditiously as practicable, we would like to submit to the record our recently released report, 

entitled Control Technologies to Reduce Conventional and Hazardous Air Pollutants from CoalFired Power Plants. This report provides an overview of well-established, commercially 

available emission control technologies for coal-fired power plants, such as the Portland 

Generating Station.

NESCAUM recognizes that EPA’s authority under section 126 cannot require the use of a 

specific technology, but we do want to emphasize that there is available technology, such as dry 

sorbent injection (DSI), that can achieve moderate reductions in sulfur dioxide (SO2) emissions 

in a relatively short period of time. DSI reagents can typically reduce SO2 emissions by 30-60 

percent but can be extended up to 90 percent in combination with other controls. The DSI 

equipment is relatively inexpensive and can be installed within 12 months. Further details on 

DSI technology, including its co-benefits, and other well-established control technologies are 

provided in the attached report.

Response:

See preamble section V.E.2.a for a discussion of reagent injection systems. The EPA considered 

this report and other sources of information on this topic. For purposes of our conclusions that 

more than 1 year is need to install and operate a DSI system, we took into account both the 

installation of the DSI system and the need for likely upgrades to existing particulate controls.

Commenter: UARG

Comment:

Limits on EPA’s authority to set final or interim emission limits (see, e.g., 76 Fed. Reg. 19664/1)

In those circumstances where EPA has authority to grant a section 126 petition (which it does not 

here), the Agency should take into account a wide range of factors before setting interim or final 

emission limits. In particular, EPA must consider the time available for achievement of emission 

reductions under CAA section 126 (i.e., three years) and the feasibility of achieving such 

emission reductions within that timeframe. If it is not feasible for a source to install a particular 

technology within three years (as is virtually always the case with the retrofit of FGD 
Page 163 of 181

technology, for example), then EPA should not, in response to a section 126 petition, establish 

emission limits that would require installation of that technology. 

[Note: in support of its assertion that more than three years are needed to comply with the 

proposed emissions limits, UARG attaches as Exhibit I a report by J. Edward Cichanowicz

entitled Implementation Schedules for Selective Catalytic Reduction (SCR) and Flue Gas 

Desulfurization (FGD) Process Equipment (Oct. 1, 2010).]

Response:

The EPA is required to establish emissions limits under section 126 which will eliminate 

Portland’s significant contribution to nonattainment and interference with maintenance of the 1-

hour SO2 NAAQS in New Jersey. The EPA concluded that there are technically feasible options 

for meeting the emissions limits within 3 years. See discussion in the preamble section V.E.2.a of 

optional approaches to achieve the required emissions limits, including FGD, and the EPA’s 

assessment of the time needed to implement these approaches.

With respect to the time necessary for installing FGD, the EPA has addressed this issue in other 

rulemakings and has prepared Technical Support Documents (TSDs) that discuss our findings in 

detail. We have placed two TSDs in the docket for this rule: (1) An Assessment of the Feasibility 

of Retrofits for the Toxics Rule, and (2) Transport Rule Engineering Feasibility Response to 

Comments. In addition, EPA discusses these issues in the Federal Register notice for the 

proposed MATS rule (76 FR 25054 to 25058, May 3, 2011) and in the Federal Register notice 

for the final CSAPR (76 FR 48279 to 48284, April 8, 2011).

Commenter: R. E. Gerwig

Comment:

On my last project before retiring in 2002, the total cost of the scrubbers was nearly $200 

million, and the SCRs added another $200 million; and that was ten years ago. At the same time, 

the operation of these additions will drain at least 4% from the efficiency of the plant. The 

practicality of such expenditures is highly questionable on units of the size and age of the 

Portland Station. The total cost of a new plant would be about $600 million and take up to 9 

years to build.

Response:

Because this rule does not regulate NOX it would neither mandate nor result in the installation of 

SCR. See discussion in preamble section V.E.2.a for a detailed response on issues related to FGD 

scrubbing. While the EPA notes that FGD scrubbing likely provides for greater reductions than 

needed to comply with the limits in the final rule, we have provided GenOn with the flexibility to 

seek the most appropriate and cost-effective option for compliance.

Commenter: Amy Vanderheart 

Comment:

So I really do feel that scrubbers should be fixed to the smoke stacks. It would really just help 

make everything cleaner. The air would be fresher to breathe because you wouldn't have all of 

that pollution, and less trouble with acid rain. I don't know how much we have now, but we 

would still have that. 
Page 164 of 181

Commenter: S. Dorrell

Comment:

I hope we are successful in forcing GenOn Energy to install scrubbers to end these emissions.

Commenter: Donald C. Seigel, International Vice President, Third District of the 

International Brotherhood of Electrical Workers (IBEW)

Comment:

As an alternative to shutting down the two coal units (Units #1 and #2) at Portland within 90 

days of its finding, EPA is proposing a compliance plan including an interim 50% reduction of 

Portland's SO2 emissions from Units 1 and 2 within one year (by switching to low-sulfur coal, 

etc.), with an 81 % reduction from each unit within three years. 76 Fed. Reg. 19662, 19676-77. 

This reduction level effectively would require the retrofit of flue gas desulfurization ("FGD") 

technology on both units. This may be impossible to achieve in a 36-month timeframe due to the 

time required for design, engineering, permitting, constructing and testing such equipment.

Commenter: William Vanderheart 

Comment:

When I first heard about it, I was like wow, I can't even believe it. The reason not to implement 

this technology sooner would have to be profits. That's the one thing I can think of, whether it's 

for meeting shareholder demands or whatever. But to make the profits at the expense of human 

health and environmental impact, it just seems like the wrong thing to do. 

The right choice is to require scrubbing technology. It seems like an easy choice. My concern is 

that the company might threaten to close the plant and jobs could be lost and those sorts of 

things. And I don't think that those potential threats should enter the equation, even in today's 

economy. The profits exist. I mean the plant is running now. They've been turning the crank and 

milking the cow for a long time. And there are power plants in the area. For example, the girls 

and I, we recently visited the Merrill Creek Plant. Although that is a peak generated plant, they 

switched their coal technology to oil and natural gas. So, you know, the scrubbing technology 

isn't the only thing. It’s possible to switch fuels as well. We really shouldn't have to -- I don't 

think we should even need to have this hearing. I agree with my own children, it seems like it 

should have been done on their own. I think they should be doing the right thing on their own. 

Response:

In establishing emissions limits, the EPA is not advocating nor mandating that a particular 

control technology be installed at Portland. See discussion in preamble in section V.E.2.a.

Commenter: UARG

Comment:

EPA’s granting New Jersey’s September 2010 section 126 petition would also prevent the plant 

owner from having a reasonable period of time in which to develop and implement the optimum 

emission reduction control strategy. Specifically, this is a case in which EPA believes that 

Portland Plant Units 1 and 2 should reduce their SO2 emissions by 81%.[FN33] If this level of 

reduction is to be achieved by the installation of currently-available pollution control technology 

– rather than by forcing a shutdown of the units[FN34] – then the owners of the Portland Plant 
Page 165 of 181

would likely have to retrofit flue gas desulfurization (”FGD”) technology on both units. The 

attached report by J. Edward Cichanowicz, “Implementation Schedules for Selective Catalytic 

Reduction (SCR) and Flue Gas Desulfurization (FGD) Process Equipment,” was submitted to 

EPA in October 2010, as part of UARG’s comments on EPA’s Proposed Transport Rule (75 Fed. 

Reg. 45210 (Aug. 2, 2010)) (“Cichanowicz Report,” attached as Exhibit 1). It is a comprehensive 

review of the time that it has recently taken power plant owners to design, permit, and install 

FGD systems at their existing units and a full explanation of why it takes that amount of time. 

The data demonstrate that it would be virtually impossible, within the section 126 three-year 

timeframe, to retrofit FGD systems on units like Portland Units 1 and 2. Indeed, that retrofit 

process typically takes four or more years. Cichanowicz Report at 6-1. That is but one more 

reason why Congress did not intend to have the section 126 process short-circuit the authority of 

affected states and source owners to follow the CAA section 107-110 NAAQS implementation 

deadlines, which would give sufficient time for the owners of Portland Plant Units 1 and 2 to 

install FGD systems to reduce those units’ SO2 emissions by the amount deemed necessary.

[FN33] See 76 Fed. Reg. 19675/1.

[FN34] EPA does not propose to shut down Portland Plant Units 1 and 2 if they cannot reduce 

their emissions by 81% within three months, but the Agency seeks comments on a variety of 

issues related to whether and in what circumstances it should go so far as to order such a 

shutdown.

Response:

The EPA has determined that he likely means of achieveing the required reductions in this rule 

can reasonably be achieved within 3 years. See section V.E.2 in the preamble for further 

discussion.

X. Health Effects From Sulfur Dioxide

Commenter: Dr. Joseph Testa, Sierra Club of NJ 

Comment:

The sulfur dioxide being emitted from the Portland Generating Station in Pennsylvania is 

jeopardizing the health of the residents of New Jersey. By reducing the sulfur dioxide emissions 

from the Portland Plant this will help to protect our environment and the health of the people in 

Northwest New Jersey.

The Portland Generating Station is the largest cause of pollution in Northwest New Jersey. 

Exposure to sulfur dioxide threatens individual's health especially those with asthma, children, 

and the elderly. We teach our children "if you make a mess, clean it up". This utility is making 

money by polluting someone else's (i.e. New Jersey's) air. We have enough troubles without 

Pennsylvania's help!

I urge you to support the petition by the NJDEP to reduce the sulfur dioxide emissions from the 

Portland Generating Station. This reduction will help to protect the health and lungs of the 

people of New Jersey!
Page 166 of 181

Commenter: Katie Feeny, Clean Air Council

Comment:

The emissions from Portland are clearly a problem for both New Jersey and Pennsylvania. 

Portland emits up to triple the amount of SO2 that all seven coal-combined in New Jersey emit. 

According to a 2009 EIP study, Portland ranks fifth in the country for SO2 emissions, measured 

in lbs/MWh. The -advocacy group Clean Air Task Force says pollution from coal-burning power 

plants will cause over 500 deaths in New Jersey this year alone. 

The proposed reductions in sulfur dioxide from the Portland Plant will benefit the environment 

and benefit public health. Fossil fuel combustion at power plants just like Portland is responsible 

for the majority of SO2 emissions. SO2 is a major precursor of acid rain and fine particulate 

soot. SO2 emissions and their mixture with other pollutants to form fine particulates cause 

adverse respiratory health effects, including worsening emphysema, bronchitis, and asthma. High 

concentrations of sulfur dioxide can result in breathing problems with asthmatic children and 

adults who are active outdoors. Short-term exposure has been linked to wheezing, chest tightness 

and shortness of breath.

Commenter: Mary O’Malley 

Comment:

The sulfur dioxide being emitted from the Portland Generating Station in Pennsylvania is 

jeopardizing the health of the residents of New Jersey. By reducing the sulfur dioxide emissions 

from the Portland Plant this will help to protect our environment and the health of the people in 

Northwest New Jersey.

The Portland Generating Station is the largest cause of pollution in Northwest New Jersey. 

Exposure to sulfur dioxide threatens individual's health especially those with asthma, children, 

and the elderly. People of New Jersey should not have to be burdened with breathing polluted air 

at the expense of dirty coal plants in Pennsylvania.

Please protect the health of my family, our community and the workers of Portland Generating 

Station! I urge you to demand Portland Generating Station upgrade their facility to EPA 

standards or close their plant to protect the health of all involved.

I urge you to support the petition by the NJDEP to reduce the sulfur dioxide emissions from the 

Portland Generating Station. This reduction will help to protect the health and lungs of the 

people of New Jersey!

Commenter: N. Chambellan 

Comment:

Degraded air quality has dealt me the hand of a severe and chronic lung disability. This type of 

lung damage has been established as permanent and irreversible with elevated or prolonged 

exposure to toxic air pollution. Ironically, it also is a lung condition that has been deemed to be 

preventable simply by having clean air to breathe. In other words, although my medical and 

subsequent economic demise now has been set in stone, other people do not have to sustain such 

lung damage if effective steps are taken by industry and government in consideration of public 

health.
Page 167 of 181

Commenter: Paul Tarlowe

Comment:

The sulfur dioxide being emitted from the Portland Generating Station in Pennsylvania is 

jeopardizing the health of the residents of New Jersey. By reducing the sulfur dioxide emissions 

from the Portland Plant this will help to protect our environment and the health of the people in 

Northwest New Jersey.

The time is long overdue to put a halt to the excessive harmful emissions from the Portland 

Generating Station. The plant is the largest cause of pollution in Northwest New Jersey where I 

live with my wife and two children.

It is time for the EPA to enforce the Clean Air Act and bring about the 81% reduction in sulfur 

dioxide emissions over three years at the Portland plant.

I urge you to support the petition by the NJDEP to reduce the sulfur dioxide emissions from the 

Portland Generating Station. This reduction will help to protect the health and lungs of the 

people of New Jersey!

Commenter: Jerilyn Doherty, Unitarian Universalist Fellow of Sussex County’s, green 

Sanctuary Committee 

Comment:

We believe every human being has the right to breathe clean air, drink clean water and to know 

that future generations will be protected from any threats against our environment. The 

byproducts of Gen-On's coal plant are in direct contradiction to our goals for a cleaner and 

healthier environment. As you know, coal is one of the most polluting and most environmentally 

damaging energy sources that we use today. It destroys our land, and pollutes our water and air. 

The effects of such dangerous elements on our health and environment are in many cases 

irreversible. The Portland plant is the fifth highest emitter of sulfur dioxide per megawatt of 

power generated in the entire United States. Sulfur dioxide in the air causes asthma and other 

respiratory difficulties. It falls to the earth as acid rain. This is not acceptable to us. It is time 

for a change in the way we produce our energy. 

Commenter: R. G. Herrmann 

Comment:

The Portland generating station has contributed over the years to poor health to the children of 

warren county. So many children suffer from asthma. It’s about time this situation was corrected.

Commenter: S. Harris

Comment:

The pollution from this power plant is causing residents to have health issues and severe 

breathing problems. I am one of those residents.

Commenter: V. Allen 

Comment:
Page 168 of 181

I am greatly concerned with reports that SO2 emissions from the Port land coal fired plant have 

been measured up to ten times higher than acceptable federal levels, and the severe impact that 

pollution is having on the health and well being of the residents of Warren County.

Commenter: Dr. Stanley Weiss, New Jersey Medical School (public hearing presentation)

Comment:

I'm Stanley H. Weiss. I'm a professor at the New Jersey Medical School and at the School of 

Public Health, University Medicine and Dentistry in New Jersey. I'm going to rapidly 

summarize some information from the decades of work here in Warren County and New Jersey 

considering a disease in particular, asthma. Next slide. Many of these studies have been done 

jointly with my co-PI of the studies, Dr. Cliff Wyzell (ph), who is also at UMDNJ. Some of our 

information presented represent a fourth -- inaudible -- in particular responded by is the DSM, 

formally ROCHE, Community Advisory Panel. I'll be putting into your docket a copy of the 

power point and additional data. This is just to give you a rough overview of the sequence 

studies. Next slide. The journey began with the community in 2001 with health problems --

inaudible -- UMDNJ to study. Among the issues they looked at were asthma. They recorded a 

high rate of asthma. They later on shared with me the detailed data assessment. Go to the next 

slide. I can show you the results of that show that the reports of asthma were not in the asthma 

period, but ranging, as you can see, into older ages as well. So they seem to have a broad issue 

of health. Next slide. Citizens also, in the City of Belvidere, did a similar study of, again, the 

conditions. They found a slightly higher rate of asthma, emphazima, and chronic bronchitis 

which made them very concerned. Next slide. As you can see, also, there is a ranges of 

involved. When they suggested that it was hard to put things in perspective because he didn't 

know what -- inaudible -- but by going through tour knowing people and being introduced and 

proposed a series of studies. Next slide. Next slide after that -- was to try to examine what was 

giving to so -- is one systematic study. The Isaac question used internationally for decades. We 

got approval to the school districts in Belvidere, White Township -- in Harmony, the school 

board, some principals, the administration and school nurses very highly responded to the 

surveys and analyzed that data. Next slide. This was done in grades K through 12. Next slide. 

A total of 1,749 students were enrolled in those public schools. Next slide. To summarize, 

briefly, the fair amount of work, 59 percent that were diagnosed with asthma -- reported current 

symptoms where a whopping 41 percent were diagnosed with asthma. That 41 percent consisted 

of 13 percent physician diagnosis, 19 percent asymptomatic they've never been diagnosed with 

asthma. Nine percent had physician-diagnosed asthma or other past history of asthma but had 

not reported current symptoms. Next slide. To put some of that in perspective, here are some 

that were in the Isaac study, Jersey Gardens Study. On the very bottom is the data from Warren 

County -- inaudible -- you can see a spike in older groups. As you can see these rates, higher 

rates, compared to worldwide. For instance, increases in the last 12 months reported in that 

school by 23 percent in the 13 to 14 year olds and 23 percent in the six to seven year olds. That 

surprised us. We actually did not expect the citizens of the study to have issues concerning 

upper respiratory disease. That in particular we thought it was important. Next slide. So we 

decided to look okay at grades 5 through 12, only to children who had a diagnosed -- disease and 

to do a -- follow-up study under the guidelines monitoring stations we continued to measures 

SO2. That study being conducted on a daily basis. Next slide. And we found in that analysis 

that sulfur dioxide -- inaudible --and not only found that the sulfur dioxide flow rate -- and 

another analyses we found is that the SO2 was associated with an increased number of asthma 
Page 169 of 181

symptoms and decrease with the functions in these children with SO2. In other studies that have 

been done subsequently statewide, I'm seeing a primary of emergency room visits for asthma and 

also hospital visits for asthma. And so, in summary, what we found is evidence of health effects 

and direct association with relatively low levels of SO2, which indicates that EPA's concern with 

SO2 is well founded, and that Warren County in particular is heavily affected by it that the 

citizens are concerned. [Presentation available in the docket]

Commenter: Peter Summers, Health Officer and Director, Warren County Health 

Department, Oxford New Jersey 

Comment:

On behalf of the residents of Warren County, I would like to thank the EPA for its proposed 

ruling and for the efforts it is making to protect the health of the citizens of Warren County. I 

would also like to thank the NJ Department of Environmental Protection for its efforts in 

bringing this issue to your attention. I fully support the DEPs efforts and its recommendations 

that the Portland Generating Station meet the same high standards that protect residents living 

near New Jersey based power plants.

Despite being a rural community Warren County’s asthma rates rival those of more urban areas. 

The NJ Department of Health’s 2010‐11 “Asthma in New Jersey” report estimates the number of 

Warren County adults with current asthma at 9.4%. This is significantly higher than the 

estimated New Jersey rate of 7.7%. The Centers for Disease Control estimated US rate for 

asthma in adults is also at 7.7%.

Both the CDC and EPA have linked Sulfur dioxide and other air pollutants with increased 

asthma symptoms. Studies have also shown a connection between short‐term exposure to SO2 

and increased visits to emergency departments and hospital admissions for respiratory illnesses. 

A 2003 study by the University of Medicine and Dentistry of New Jersey found that children 

with physician diagnosed asthma in two Warren County communities suffered reduced peak 

expiratory flow rates as sulfur dioxide concentrations in the community increased. The peak 

expiratory flow rate is a person's maximum speed of expiration (breathing out), as measured with 

a peak flow meter, a small, hand‐held device used to monitor a person's ability to breathe out air. 

(It measures the airflow through the bronchi and thus the degree of obstruction in the airways.) 

It is essential to the health of Warren County residents that the Portland Generating Station 

upgrade its pollution controls to meet the same high standards as New Jersey’s plants. I would 

ask the EPA to consider the NJ Department of Environmental Protections recommendations and 

require this plant to reduce its emissions to levels that will protect our community. [comment 

attaches copy of asthma study]

Commenter: John A. Rutkowski, Director of Cardio-pulmonary Services, Bergen Regional 

Medical Center, American Lung Association 

Comment:

But perhaps the most important part of my role here today is to reflect for you my experience as 

a Registered Respiratory Therapist. I have been on the front lines dealing with lung disease and 

its aftermath in individuals who need to receive evaluation, counseling, and treatment. I have 

seen first-hand the adverse effects of lung disease and its causes, and that is why I am passionate 
Page 170 of 181

about reminding this panel of the toll exacted by air pollution on the most vulnerable in our 

society.

I emphasize that when the EPA is confronted with claims that complying with the

Proposed Rule will cost too much, the Agency must always remember that we are already 

paying- in lost work and productivity- in disease, disability, and death- and that the Rule at issue 

is necessary finally to come to grips with the pollution responsible for those outcomes and those 

costs.

And should the EPA need even more support for standing up to forces that would weaken the 

rule, let me call attention to the myriads of often invisible potential allies- people who stand to 

benefit from implementation of the rule. We recognize that in the area of Hunterdon, Morris, 

Sussex, and Warren Counties in New Jersey, the EPA has confirmed the finding of the New 

Jersey Department of Environmental Protection that sulfur dioxide emissions from the Portland 

facility contribute significantly to nonattainment and interfere with maintenance of the sulfur 

dioxide standard. 

In those four counties, the populations potentially at risk from exposure to sulfur dioxide include: 

209,000 infants, children and teens under 18; 114,000 persons aged 65 and above; 19,000 

children with asthma; 52,000 adults with asthma; 30,000 persons with chronic bronchitis; 15,000 

persons with emphysema; 258,000 persons with cardiovascular disease, and 39,000 persons 

living in poverty. 

Far from being a small minority, persons falling into one or more of these high risk groups 

together comprise on the order of half the population. And even more important to remember: 

Every one of these millions is a real person, not a nameless statistic. Every one of these people is 

a human being worthy of our attention, a neighbor, a coworker, a friend, a family member, 

maybe even oneself. 

Therefore, the American Lung Association of the Mid-Atlantic and the American Lung 

Association in New Jersey and indeed, many more are here today to testify strongly in favor of 

the proposed rule to underscore the need for this rule, to confirm the benefits to be gained from 

its implementation, and to call for a reasonable plan that protects the health of the public with the 

urgency they deserve. Thank you for your attention. 

Commenter: Mr. Eric White, Sierra Club of NJ

Comment:

The sulfur dioxide being emitted from the Portland Generating Station in Pennsylvania is 

jeopardizing the health of the residents of New Jersey. By reducing the sulfur dioxide emissions 

from the Portland Plant this will help to protect our environment and the health of the people in 

Northwest New Jersey.

It's important to note that the Portland Generating Station is the largest cause of pollution in 

Northwest New Jersey. Exposure to sulfur dioxide threatens individual's health especially those 

with asthma, children, and the elderly. People of New Jersey should not have to be burdened 

with breathing polluted air at the expense of dirty coal plants in Pennsylvania.
Page 171 of 181

Therefore, the EPA's proposal would require an 81% reduction in SO2 emissions from the 

Portland plant, located on Pennsylvania, with direct benefits to people living and working in 

New Jersey (especially in Warren, Sussex, Morris, and Hunterdon counties).

Please understand that coal-fired power plants in Pennsylvania have been making people in New 

Jersey sick for far too long, and bringing Pennsylvania's dirty plants under control is long 

overdue. Simply put, we do not need to sacrifice our health for Pennsylvania's profits or for 

electricity.

I urge you to support the petition by the NJDEP to reduce the sulfur dioxide emissions from the 

Portland Generating Station. This reduction will help to protect the health and lungs of the 

people of New Jersey!

Response:

These comments offer general support to the rule, providing examples of air quality benefits 

directly and indirectly related to the sulfur dioxide emission reductions required by the proposed 

rule. The EPA recognizes there are potential health effects from breathing sulfur dioxide 

particularly for people who have respiratory illnesses, heart, or lung disease, older adults and 

children. The EPA agrees with these statements of general support and agrees that the rule has 

significant health benefits.

Commenter: Jeanie Taylor

Comment:

My name is Jeanie Taylor. I've been a resident of Knowlton Township for 32 years. Prior to 

moving up here, I've never had any type of medical problems, never had to see a doctor. From 

the very beginning, I noticed waking up with headaches, not being able to breath properly. My 

husband, being a resident born and raised here, just informed me that it was because we were up 

on the mountain at the same level as the smoke stacks. And when they blow the stacks and the 

wind comes out of the south, we can tell it's out of the south before we open our eyes in the 

morning because of the headaches and because of the dizziness. Over the years, I have developed 

asthma. I have been told I have COPD. I have had surgery because my oxygen levels were 

going too low. So I've had to have all of my soft pallet, uvula and tonsils removed. Last year, I 

woke up coughing, which I always have. I have a chronic cough I have chronic sinusitis now, 

But I was coughing blood. That led me to lung surgery this past summer, because I have lesions 

on my lungs. They don't know where they come from, I don't know, but they're there. Can I 

prove that it's the power plant, no, but it seems that this discussion has been going on for years. I 

respect the gentleman's, prior to me, comment that it will take a long time, but they've known 

that this has been coming for years. So what are three years or seven years when you are talking 

about the health and welfare of all of the community. So I don't have the little statistics that 

everyone has. I don't know how much sulfur dioxide is in the air and what it does, I just know for 

me and my family, we're severely affected. And I believe a lot of it is because of the air quality 

up here. I thought I was moving to an area in New Jersey that was clean. I was better off in 

Mercer County. I just think that you know already what the effects are. You know what the 

statistics are with knowledge comes responsibility, and I think it's time to step up to the plate.
Page 172 of 181

Response:

The EPA thanks the commenter for the comment.

XI. Other Pollutants not Addressed by the Rule

Commenter: Carolyn Auwaeter, Greenpeace

Comment:

Greenpeace was invited by members of Bangor Pennsylvania to come and hear their stories and 

learn more about the Portland coal plant. It's been a concern of theirs for quite a while. A few 

years ago, community members successfully organized to prevent the plant from expanding, but 

that did not address any of their other concerns. I've talked with residents over the past few days 

and what they discussed with me goes beyond just sulfur dioxide, which is the subject of this 

hearing. 

EPA's recommendation does not address any of the other pollutants that are coming out of the 

smoke stacks, nor does it address the coal ash that is produced from burning the coal. I stood on 

people's porches as they pointed at the coal ash pond on the horizon where they've seen the wind 

swirl the ash into the air. I heard people worry over how the quarry was not lined when the coal 

ash first started being dumped there, and how many people in town fish in the creeks right near 

there. This plant has been operating since 1958, and it's one of the oldest and dirtiest in the 

nation. It's passed through many companies' hands and now in 2011, it's owned by GenOn. No 

doubt the Portland plant has large profit margins, because virtually no changes have been made 

in its operation. This plant has only been a good investment to the company so long as GenOn 

has not been required to actually invest money in the plant. With the projected 300 to $500 

million cost to install pollution control, that will likely be bore by rate payers. GenOn should 

instead look to the future and shut the plant down. Such an old plant with so many associated 

toxins being emitted from it doesn't justify any other solution. And the surrounding community's 

health doesn't justify any other solution. I would especially encourage GenOn to look to one of 

its new neighbors for inspiration and how it creates energy. Votex, a manufacture of materials 

that enhance the performance of solar cells is in the midst of constructing a new facility in 

Portland industrial part in Upper Mount Bethel Township. This will be completed later this year, 

and that's the kind of future that we need to look to. I just want to close with a short anecdote. 

Yesterday, Greenpeace, we took our solar truck to the Bangor Middle School and spoke to more 

than 500 students there. Their curiosity was very clear. We received a barrage of questions 

about the solar panels, everything from what happens when it's rains, and we have batteries that 

store the energy when the sun has been shinning, to whether the panels are hot to touch, which 

they aren't. It's really that generation that needs to be thought of when the EPA makes a decision 

on this rule. And it's that generation that needs to be thought of by GenOn. Not only are they 

here right now feeling its effects, but they will be here much, much longer after you all are. The 

Portland coal plant should be shutdown.

Commenter: Catherine Frackenberg, Michael Kelly, William H. Reesman, and Kathy 

Lawson

Comment:

I am concerned about toxic pollution coming from GenOn coal ash dump in the town of Bangor. 

Unsafe levels of cadmium, boron, and hexavalent chromium are appearing in our water. The 
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health effects of this chemical runoff are disastrous I support the efforts to limit SO2 emissions 

from this power plant, but that does not go far enough. I urge you to shut down the GenOn plant 

in Portland until EPA establishes stronger regulations for air pollution and the disposal of toxic 

fly ash.

Commenter: E. Wade

Comment:

This plant is also being considered for a Section 126 finding under PM2.5 NAAQS. It is unclear 

whether the controls for SO2 will address this issue. It may be beneficial for both the EPA and 

the Portland Plant to combine these issues with regards towards emission limits and compliance 

schedules.

Commenter: Leona and George Fluck

Comment:

I am here to support the Clean Air Act section 126 petition submitted by the New Jersey DEP. I 

am in support of the EPA's proposal to grant NJ's petition that will require the GenOn Portland 

Plant to reduce the plant's toxic emissions.

Operating for over 50 years, the Portland coal plant produces millions of tons of air pollution 

each year that cause illnesses in NJ and PA residents. I am very much concerned about the toxic 

coal ash dumped into a pit in Bangor, PA. With compliance to meet Clean Air Act standards this 

will increase the toxins that are dumped into the quarry site. Brushy Creek is a tributary of the 

Delaware River Watershed and the risks will increase the already existing pollution of ground 

and surface waters from the plant ash. The Delaware River has Special Waters Protection - it is 

a drinking source for over 15 million people in 4 states. In addition to the Clean Air Act 

standards I am requesting the EPA consider increased standards and enforcement related to the 

coal ash pit toxins and plant compliance.

Commenter: Lorraine Gold

Comment:

Other toxic pollutants are also being emitted from this plant. The health and welfare of the 

people and the ecosystem are damaged by the reckless behavior of this company. As you are 

aware, sulfur dioxide is a major cause of acid rain, which, among other impacts, has a 

devastating affect in agricultural areas.

It is also know to contribute to asthma and other respiratory diseases. The biggest increase in 

asthma is in children five to 15 years of age. Given the results of an asthma study I am greatly 

concerned with the impact the Portland facility is having on the health and well-being of the 

residents of Warren County. We know that those in close proximity to coal-fired power plants 

fare the worst. In addition to sulfur dioxide, this plant releases mercury and other dangerous 

particulates. Citizens, agricultural crops, animals, soils and waterways near the plant are 

suffering. Our senior citizens, those with chronic ailments, and pregnant women are especially 

at risk.

Commenter: M. Cormican 

Comment:
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Water quality data has shown that the coal ash generated by this facility has contaminated 

ground and surface water in and around Bangor, Pennsylvania through disposal in a quarry and 

spread on roads as a winter-time, de-icing material. Those contaminants end up in the Delaware 

River, to the Delaware Bay and into the Atlantic Ocean.

EPA's proposed regulations only address the reduction of sulfur dioxide in the stack emissions 

by requiring scrubbers and other air quality technology. The result will be a greater concentration 

of sulfur dioxide and other contaminants in the coal ash which will continue to be disposed of in 

a proven irresponsible and ecologically-damaging manner.

Commenter: Tanya Dentith

Comment:

Also the Nitrogen Oxide that is being emitted is extremely toxic. Not to even get into all the 

mercury, heavy metals and acid gases being emitted. My question to you is why hasn't 

something been done to make this company drastically reduct these emissions? There is 

definitely a double standard here.

Commenter: Ken Metcalf, Knowlton Township Environmental Commission 

Comment: 

The Knowlton Township Environmental Commission impresses upon the Christie

Administration to re-consider the recent decision to withdraw New Jersey from the landmark 

regional pollution pact that is aimed at reducing pollution from coal-fired power plants that are 

polluting the air in Knowlton Township.

Back in 2009, the NJDEP had determined that the level of the air pollutant know as PM2.5 

exceeded the USEPA standard of 35 micrograms per cubic meter and the NJDEP had determined 

that effluent coming from the Portland Generating Station causes Knowlton Township to be in 

non-compliance with the standard for PM2.5 and; whereas, PM2.5 levels that exceed the 

standard can cause serious illness to our residents and; whereas, the Knowlton Township 

elementary School is located in an area of Knowlton most seriously affected by the effluent from 

the Portland Generating Station and; whereas, Knowlton Township believes it is the duty of the 

USEPA to protect the health and well-being of the our citizens from environmental hazards, 

therefore, let it be resolved that: The Township Committee of the Township of Knowlton, 

Warren County New Jersey, supports the decision of the NJDEP to designate Knowlton as a nonattainment area and supports the NJDEP’s effort to work with USEPA and the State of 

Pennsylvania to control and treat the air pollution that emanates the Portland Generating Station.

Response:

The EPA thanks the commenters for the comments. The EPA is granting a section 126 petition 

from NJDEP that requested a finding that emissions from Portland are significantly contributing 

to nonattainment of and interference with the 1-hour SO2 NAAQS. This action will ultimately 

lead to further air quality improvements in the area. To the extent the commenters request that 

the EPA regulate emissions of other pollutants from Portland, the comments are beyond the 

scope of NJDEP’s section 126 petition and this rulemaking. 
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XII. Executive Orders

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

E. Compliance with Executive Orders Is Required

1. EPA must undertake analyses of the Proposal pursuant to Executive Orders 12866, 13563 and 

13211 EPA claims that the Proposal is not a “significant regulatory action” so that review under 

Executive Orders 12866, 13563 and 13211 is not required. 76 Fed. Reg. 19678, 19679. GenOn 

disagrees that this is not a “significant regulatory action” as defined in Executive Order 12866 

and EPA must conduct analyses under all three Executive Orders.

In 2008, Portland’s fuel costs were $100 million and Portland spends as much as $50 million per 

year on operating and maintenance costs and outage work. GenOn’s forecast for Portland over 

the next several years shows future values that are similar to these numbers. If Portland shuts 

down as a result of the final Section 126 finding, Pennsylvania will lose $150 million in 

economic activity. In addition, Portland typically generates between 1.8 and 2.5 billion kWh per 

year, so shutting the plant down clearly would exceed the 1 billion kWh per year impact 

threshold in Executive Order 13211. Accordingly, this is a significant regulatory action under 

Executive Orders 12866, 13563 and 13211 and EPA is obligated to meet the requirements of 

these Executive Orders prior to finalizing the Proposal.

Response:

“Significant regulatory actions” under EO 12866 must not only exceed the $100 million impact, 

but also qualify as actions pursuant to a “regulation.” Which is defined as follows:

“Regulation” means an agency statement of general applicability and future effect, which 

the agency intends to have the force and effect of law, that is designed to implement, 

interpret, or prescribe law or policy or to describe the procedure or practice requirements 

of an agency. 

The EPA's action on NJDEP’s section126 petition is not “of general applicability” since it 

applies only to the Portland facility. Therefore it does not meet the criteria for “significant 

regulatory action.” The definition also applies to Executive Orders 13563 and 13211.

Commenter: Keith Schmidt, Director, Environmental Policy, GenOn REMA LLC 

Comment:

2. Imposing multiple, conflicting obligations on Portland is inconsistent with

Executive Order 13563

In Executive Order 13563, President Obama affirmed the need to improve the regulatory 

process. 76 Fed. Reg. 3821 (Jan. 21, 2011). Among other things, Executive Order 13563 

mandates improved integration and coordination of rulemaking processes, requiring that: Some 

sectors and industries face a significant number of regulatory requirements, some of which may 

be redundant, inconsistent, or overlapping. Greater coordination across agencies could reduce 

these requirements, thus reducing costs and simplifying and harmonizing rules. In developing 

regulatory actions and identifying appropriate approaches, each agency shall attempt to promote 
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such coordination, simplification, and harmonization. Id. at § 3; 76 Fed. Reg. 3822 (emphasis 

added). As described above, the electric generating industry in general, and Portland in 

particular, are or will be subject to a wide array of regulations in the immediate future, all of 

which address the exact same issue: SO2 emissions. These regulations include the new 1-hour 

SO2 NAAQS (and related SIP requirements, once promulgated), the EGU MACT and CATR. In 

addition, Portland faces additional regulation of SO2 emissions through any EPA response to the 

first New Jersey petition. See supra Section IV.D.2. With at least five distinct rulemaking 

processes addressing the same pollutant, the potential for redundant, inconsistent, and 

overlapping requirements is very real - the exact problem Executive Order 13563 seeks to avoid. 

The Proposal ignores this problem by incorrectly claiming it is not a significant regulatory 

action. Instead, the Proposal further complicates the situation by seeking to impose yet another 

set of potentially redundant, inconsistent, and overlapping requirements on Portland. All of the 

regulations affecting Portland and other power plants will affect the investment decisions for 

Portland and, in particular, whether the plant can support major pollution control investments. 

GenOn cannot make a rational investment decision until these regulations are more fully 

developed and the company has a better idea of how they will affect Portland and its 

competitors. 

To comply with the mandate of Executive Order 13563, EPA must consider ways to improve 

“coordination, simplification, and harmonization” across these various regulatory actions and 

revise the Proposal accordingly. At the very least, EPA should align the requirements and timing 

of any Section 126 determination and related compliance schedules with the requirements of 

these other regulatory actions

Response:

The EPA is well aware of the multiple regulations affecting EGUs, and is developing them with 

a view to having consistent requirements for facility owners. 

The EPA has considered compliance harmonization to the greatest extent possible under the 

constraints of the statue. The action on the petition may require the installation of scrubbers on a 

faster timeline than other regulations will, but this is appropriate since NJDEP has demonstrated 

the disproportionate impact of the Portland plant's emission on New Jersey residents.

XIII. Miscellaneous Comments 

Commenter: B.M. College

Comment:

As a native New Yorker, and a student in Pennsylvania, this issue is of great concern to me, and 

my colleagues. I am very interested in the sections of this proposed rule concerning the 

consequences to health as a result of sulfur dioxide pollution of the air. One thing that I would 

also consider, is the effects of sulfur mining in certain parts of the world. While this rule does not 

pertain to the laws applicable to mining, the sulfur is procured in an unregulated manner, 

allowing sulfur dioxide and other harmful gases into the atmosphere. In addition the miners 

experience similar symptoms as those described in the rule, and that carries over to the residents 

of surrounding villages. The EPA in this rule is attempting to create a situation for optimal 

compliance to a respectable standard for health. However, in the Model V. A-1 on actual vs. 
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allowable emissions, at present the actual emissions are far out of range of what has been 

perceived as allowable. If such regulations have been so easily ignored in the past, how does the 

EPA suppose to insure that the new statutes proposed by this rule is enforced?

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 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.

Commenter: S. Dorrell

Comment:

In 2007 and 2008 I contacted the New Jersey DEP with documented complaints about a strong 

chemical odor in the air. This still happens regularly but does depend on wind currents and their 

direction. Strangely, the strong chemical odor occurs between 5:10 and 5:30 PM regardless of 

the weather. I strongly suspect the Upper Mt. Bethel GenOn Energy plant. Other township 

residents have complained of this problem. There is also a mill that sits in the Delaware Water 

Gap along route 80. Although it is a much smaller mill, it could also be a contributor to the 

pollution problem and should be investigated. I do not know the name of that company or what

they produce.

Response:

The EPA thanks the commenter for the comment. The EPA is granting a section 126 petition 

from NJDEP which addresses SO2 emissions from Portland. 

Commenter: Tanya Dentith

Comment:

I live in Harmony Township. I was formerly the chair of the Warren County Commission before 

it was dissolved by the Freeholders. And before that, I was chair of the Harmony Township 

Environmental Commission. My testimony is in the form of a letter to Edward R. Muller, 

chairman and CEO GenOn Corporate Headquarters 1000 Main Street, Houston, Texas. Dear Ed, 

in an effort to acquaint ourselves with your company, we checked your website and found good 

news in your code of ethics and business conduct. In a chapter called protecting the environment, 

you say, "We strive to meet or exceed applicable environmental laws and implement business 

practices that go beyond applicable law when necessary to protect health and the environment, 

and act honorably and ethically and as good corporate citizens. Compliance with applicable laws 

is the cornerstone of our environmental philosophy, we're delighted you raised the issue of ethics 

because coal pollution causes thousands of deaths, heart attacks and asthma attacks every year.

Children and the elderly are especially vulnerable. The medical costs exceed $100 billion a year. 

An ethical dilemma to be sure. But there are complications, "Further environmental investments 

will need two things, number one, clarity of rules and number two, economic justification. 
Page 178 of 181

Regarding clarity of rules, if your lobbyists stop their decades long effort to delay and block 

clean air regulations, we can all get on with the business of healing our badly damaged planet. 

And regarding economic justification, Americans spend a billion dollars a day on electricity 7 

days a week, 365 days a year. In the eight hours it takes for today's hearing revenue will be more 

than $322 million. There is plenty of money out there, we know, we sent it and you have it. So 

here is our ethical dilemma, we don't want our money to pay for air pollution that will sicken our 

children and elders. The solution, put your talented people to work dismantling those grimy 

obsolete coal burners in Portland. Expand your workforce and cover your 1,094-acre site with 

solar panels. This will generate more than 200 megawatts of electricity. We know you're 

currently producing 600 megawatts, but electric demand is down. There is plenty of excess 

generating capacity and we can easily make up the shortfall in energy conservation. 

Response:

The EPA thanks the commenter for the comment. 

Commenter: Joanne Pannone, Sierra Club 

Comment:

I’m a Sierra Club member, also, and I'm here and testify about my feelings to the EPA on the 

coal-fire Portland Generation Plant and talk particularly about it's effect on the oceans. I can 

remember going to the lakes and rivers and streams and seeing an abundance of wildlife and fish. 

Now, I'm a wildlife conservation volunteer for the New Jersey Department of Environmental 

Protection. The effects of burning fossil fuels goes farther than the surrounding community when 

it leaves the smoke stack. It causes acid rains, which ends up in the ocean. The oceans occupy 

two thirds of the earth and we have managed to pollute most of it and destroy the plankton and 

other marine life. More than 90 percent of the ocean sea life lives near the surface. We have now 

caused a zone of anoxic water, that is depleted oxygen in the water from the heavy metals and 

the acid rain, so that these sea creatures cannot breathe. It is important that we address these 

issues and fight the pollution of the coal industry by using renewable energy. Launched off too 

often in the pollution debate is the depreciation of the delicate balance between physical and -- of 

the atmosphere and the ocean. The ocean land system and the revolving biosphere, which 

controls the survival of many species includes us humans. I'm sure Edison and Tesla never 

thought about the release of sulfur dioxide and sulfur gases into the atmosphere while generating 

electricity, which will eventually cause so many health problems. To quote Dr. Silvia -- "The 

ocean is the lungs of the earth; with every wave brings a breathe." 

We need to stop -- the solution and get on to renewable energy. We also need to address the 

health of the miners, that is M-I-N-E-R-S, as well as the minors, M-I-N-O-R-S. We need to 

remember how -- that the coal plants in the nation not only dumb air emissions by the truckloads 

of toxic ash, too, we need to remember that the EPA has the science now and it has to assert its 

power and push for renewable energy so an ocean can heal and my grandchildren can have 

wonderful memories of a full and happy life with a lot of wildlife and not a world full of 

pollution. 

Commenter: Jennifer A. DiLorenzo, Director of Environmental Management, Ecologic 

Resources Group, LLC

Comment:
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Ecologic Resources Group is pleased to submit the following comments on the Proposed Action 

on the September 2010 Section 126 Petition from New Jersey Regarding SO2 Emissions from the 

Portland Generating Station:

1. The Portland Generating Station has significantly contributed pollutants (SO2) to New Jersey's 

environment for many years. As stated by New Jersey Department of Environmental Protection 

Commissioner Bob Martin in his April 27, 2011 testimony at the Section 126 Petition hearing, 

“Air quality computer modeling by the DEP indicates that the Portland power plant is causing 

exceedances of the health standards for sulfur dioxide in at least four New Jersey counties, 

including Warren, Morris, Sussex, and Hunterdon, and in three Pennsylvania counties.” While 

the EPA's proposal aims to minimize future pollution in New Jersey, it does not take into account 

compensation for past damages caused by emission generation by the Portland Station.

1. EPA's proposal should require Portland Generating station to pay for environmental damages 

under NRDA due to SO2 and acid rain deposition in New Jersey's forests, wetlands, and 

waterways.

2. EPA should require damages to be compensated for by purchasing wetland mitigation credits 

from the pending Oxford Wetland Mitigation Bank. This bank will restore a wetland and 

ecological functions in Watershed Management Area 1 in New Jersey, which has received much 

of the SO2 contamination from the Portland Generating Station.

Response:

The EPA thanks the commenters for the comments. The EPA is granting a section 126 petition 

from NJDEP regarding excessive SO2 emissions from the Portland plant. This action will 

ultimately lead to further air quality improvements in the area. To the extent the commenters are

making statements broader than this section 126 action the comments are beyond the scope of 

this rulemaking and the EPA is not responding here to such comments.

Commenter: Tanya Dentith

Comment:

I am appalled as to the quantity of sulfur dioxide being pumped into the atmosphere by just two 

units, over 30,400 tons. And upon further reading and some simple addition realized these two 

units are spewing more sulfur dioxide into the air than all the other units and cement plants in the 

area combined.

You are allowing one company with two power producing units to greatly impact the health of 

thousands of people in New Jersey.

And it is obvious in reading your proposal that the Clean Air Act is being violated. The people in 

New Jersey deserve clean air. The breathing problems these people are being subjected to is just 

unacceptable. If the shoe were on the other foot and the wind was blowing in the opposite 

direction the citizens of Mt. Bethel and the surrounding area would look at this a lot differently. 

There is absolutely nothing to be said in favor of continuing this sinful poisoning of our 

neighbors.
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At the rate we are destroying our environment our future generations will have a tough time 

surviving on this earth, and its not like they will be able to move.

Response:

The EPA thanks the commenter for the comment.