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

1The text of section 126 codified in the United 

States Code cross references section 110(a)(2)(D)(ii) 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR PART 52 

[EPA–HQ–OAR–2011–0081; FRL–9487–8] 

RIN 2060–AQ69 

Final Response to Petition From New 

Jersey Regarding SO2 Emissions From 

the Portland Generating Station 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The EPA is making a finding 

that the coal-fired Portland Generating 

Station (Portland), owned and operated 

by GenOn REMA LLC (GenOn), in 

Upper Mount Bethel Township, 

Northampton County, Pennsylvania, is 

emitting air pollutants in violation of 

the interstate transport provisions of the 

Clean Air Act (CAA or Act). 

Specifically, the EPA finds that 

emissions of sulfur dioxide (SO2) from 

Portland significantly contribute to 

nonattainment and interfere with 

maintenance of the 1-hour SO2 national 

ambient air quality standard (NAAQS) 

in New Jersey. This finding is made in 

response to a petition submitted by the 

State of New Jersey Department of 

Environmental Protection (NJDEP) on 

September 17, 2010. In this action, the 

EPA is establishing emission limitations 

and compliance schedules to ensure 

that Portland will eliminate its 

significant contribution to 

nonattainment and interference with 

maintenance of the 1-hour SO2 NAAQS 

in New Jersey. Compliance with these 

limits will permit the continued 

operation of Portland beyond the 3- 

month limit established by the CAA for 

sources subject to a contribution 

finding. 

DATES: This final rule is effective on 

January 6, 2012. 

ADDRESSES: The EPA has established a 

docket for this action under Docket ID 

No. EPA–HQ–OAR–2011–0081. All 

documents in the docket are listed on 

the http://www.regulations.gov Web 

site. Although listed in the index, some 

information is not publicly available, 

e.g., confidential business information 

(CBI) or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically through 

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

copy at the Air and Radiation Docket 

and Information Center, EPA/DC, EPA 

West Building, Room 3334, 1301 

Constitution Ave. NW., Washington, 

DC. The Public Reading Room is open 

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

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

Docket is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Todd Hawes (919) 541–5591, 

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

McKinley (919) 541–5246, 

mckinley.gobeail@epa.gov, Office of Air 

Quality Planning and Standards, Air 

Quality Policy Division, Mail Code 

C539–04, Research Triangle Park, NC 

27711. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Executive Summary 

II. Summary of Changes From the April 7, 

2011 Proposed Rule 

III. The Basis for Making the Section 126 

Finding for Portland 

A. CAA Section 126(b) and Our Legal 

Authority 

B. Summary of Comments and Responses 

Regarding Legal Authority 

IV. Summary and Assessment of the 

Modeling and Other Data Relevant to the 

EPA’s Proposed Finding 

A. Summary of the Modeling for the 

Proposed Rule 

1. Modeling Analysis in NJDEP’s Section 

126 Petition 

a. Model Selection 

b. Meteorological Data 

2. The EPA’s Modeling Analysis To 

Quantify Significant Contribution 

B. Public Comments Related to the 

Modeling 

1. Model Selection 

2. Meteorological Data 

3. Emissions and Source Characteristics 

4. Identification of Background 

Concentrations 

5. Columbia Monitor Data and Analyses 

C. Modeling and Other Analyses To 

Determine Significant Contribution for 

the Final Rule 

V. Establishing the Emission Limits 

Necessary for the Remedy 

A. Quantification of Necessary Emission 

Reductions 

B. Summary of the EPA’s Proposed 

Remedy Analysis 

C. Summary of Comments and Responses 

Regarding the Remedy Modeling 

D. The Final Remedy Limit 

E. Compliance Schedule for the Final 

Remedy Limit 

1. Proposed Compliance Schedule 

2. Public Comments and the EPA’s 

Responses 

a. Technical Feasibility 

b. Continued Operation of Facility in the 

Interim Period 

c. Harmonization With Other Requirements 

3. The Final Rule 

F. Other Considerations for Establishing 

the Final Remedy 

1. Economic Feasibility 

2. Requirement for Continuous Monitoring 

3. Delegation of Enforcement 

VI. Increments of Progress 

A. Interim Emission Limits 

1. What the EPA Proposed 

2. Public Comments and the EPA’s 

Responses 

a. Appropriateness of Including Interim 

Emissions Limits 

b. Technical Feasibility of Coal Switching 

c. Interim Limits Suggested by the GenOn 

Test Burn Report 

d. Load Shifting 

e. One-Year Time Period 

f. Effect of Interim Limits on Reliability 

g. Clear Rational for Limits 

h. Combined Emission Limits 

3. Final Rule Interim Emission Limits 

B. Increments of Progress: Reporting 

Milestones 

1. What the EPA Proposed 

2. Public Comments and the EPA’s 

Responses 

3. Final Rule Reporting Milestones 

VII. Alternate Compliance Schedule and 

Consideration of Petition for Rulemaking 

for Alternative Emission Limits 

A. Alternate Compliance Schedule if the 

Source Owner Opts To Cease Operations 

1. What the EPA Proposed 

2. Public Comments and the EPA’s 

Responses 

3. The Final Rule 

B. Consideration of Petition for 

Rulemaking for Alternative Emission 

Limits 

VIII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act of 1995 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

J. National Technology Transfer and 

Advancement Act 

K. Congressional Review Act 

L. Judicial Review 

I. Executive Summary 

Section 126(b) of the CAA provides, 

among other things, that any state or 

political subdivision may petition the 

Administrator of the EPA to find that 

any major source or group of stationary 

sources in upwind states emits or would 

emit any air pollutant in violation of the 

prohibition of section110(a)(2)(D)(i),1 42 


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

confirmed that this is a scrivener’s error and the 

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

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

1040–44 (DC Cir. 2001). 

2AERMOD stands for the American 

Meteorological Society/Environmental Protection 

Agency Regulatory Model. 

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

NJDEP filed a section 126 petition 

requesting that the EPA find that 

emissions from Portland, located in 

Upper Mount Bethel Township, 

Northampton County, Pennsylvania, 

significantly contribute to 

nonattainment or interfere with 

maintenance of the 1-hour SO2 NAAQS 

in New Jersey. In this action, the EPA 

is granting that petition, and basing its 

finding on the review of NJDEP’s air 

quality modeling, the EPA’s 

independent assessment of the 

AERMOD 2 dispersion modeling, and 

other technical analyses. Based on this 

assessment, the EPA finds that 

Portland’s emissions significantly 

contribute to nonattainment and 

interfere with maintenance of the 1-hour 

SO2 NAAQS in New Jersey. Pursuant to 

section 126(c), the EPA is also 

authorizing continued operation of the 

plant consistent with emission 

limitations and compliance schedules 

(including increments of progress) set 

forth in this rule to bring the plant into 

compliance as expeditiously as 

practicable with the CAA prohibition on 

emissions that significantly contribute 

to nonattainment and interfere with 

maintenance of the 1-hour SO2 NAAQS. 

Specifically, the final rule requires 

Portland to reduce its SO2 emissions to 

meet the following limits: 1,105 pounds 

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

for unit 2; and 0.67 pounds per million 

metric British units (lb/mmBtu), based 

on a 30 boiler operating day rolling 

average, for units 1 and 2. Portland must 

achieve and maintain these emission 

limitations by no later than 3 years after 

the effective date of this rule. The EPA 

is establishing an interim SO2 emission 

limit requirement to ensure that 

Portland demonstrates appropriate 

increments of progress toward final 

compliance. Specifically, no later than 1 

year after the effective date of this rule, 

total SO2 emissions from units 1 and 2 

combined may not exceed 6,253 lb/hr. 

The final rule also requires Portland to 

submit to the EPA a dispersion 

modeling protocol within six months of 

the effective date of the rule, a modeling 

analysis demonstrating the elimination 

of significant contribution to 

nonattainment and interference with 

maintenance within 1 year of the 

effective date of the rule, semi-annual 

interim progress reports, and a final 

progress report to demonstrate 

compliance with the interim and final 

emission limits. Compliance with the 

final emission limits established in this 

rule is sufficient to remedy Portland’s 

significant contribution to 

nonattainment and interference with 

maintenance in the impacted areas in 

New Jersey. 

II. Summary of Changes From the 

April 7, 2011 Proposed Rule 

The following is a summary of the 

significant changes made since 

proposal. Each of these changes is 

discussed later in this notice, and, 

where noted, additional information is 

provided in other supporting 

documentation in the docket for this 

rulemaking. The first change is that the 

final compliance remedy now includes 

a heat input-based SO2 emission limit of 

0.67 lb/mmBtu for units 1 and 2, in 

addition to the proposed SO2 emission 

rate limits. The heat-input based SO2

emission limit is based on a 30 boiler 

operating day rolling average. This 

additional requirement was made to 

address concerns raised by commenters 

that the proposed compliance remedy 

was not adequate to ensure attainment 

of the NAAQS in New Jersey. This issue 

is discussed in more detail in section V. 

Second, the interim emission rate 

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

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

a compliance date of no later than 1 year 

from the effective date of this rule, are 

now expressed as a single limit for units 

1 and 2 combined, and may not exceed 

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

timeframe remains unchanged. This 

change to the limit is partly in response 

to comments (including those from 

GenOn) in support of greater operational 

flexibility, and acknowledges that the 

interim limit need not be unit specific. 

It is also based on the availability of 

lower sulfur coal than the coal Portland 

is currently using. Additional details are 

provided in section VI.C. 

Third, in response to comments that 

the proposed deadlines for submitting a 

modeling protocol and modeling 

analysis were too short, the deadline for 

submitting the modeling protocol is 

changed to six months after the effective 

date of this rule, and the requirement to 

submit a modeling analysis is changed 

to 12 months after the effective date of 

this rule. This will allow Portland more 

time for planning its modeling analysis 

but does not change the compliance 

time frames for meeting the emission 

limits. 

Additionally, in response to 

comments suggesting the plant needed 

more than 90 days to determine a 

method of compliance, the final rule 

gives Portland 12 months from the 

effective date to indicate how it intends 

to achieve full compliance. The EPA 

agrees that the plant may need 12 

months to identify the specific 

engineering and technology decisions to 

determine how to reach compliance 

within 3 years. Accordingly, we are 

eliminating the proposed requirement 

for Portland to notify the EPA, within 90 

days from the effective date of this rule, 

whether the plant will continue to 

operate and comply with the emission 

limits and compliance schedules, or 

cease operations. The modeling protocol 

and the initial semi-annual progress 

report, due 6 months after the effective 

date of this rule, will appropriately 

inform Portland’s plans for continuing 

operation. Finally, the EPA is not 

requiring separate compliance 

schedules and analyses should Portland 

decide to permanently cease operation 

of unit 1 and unit 2 as a means of 

compliance. The final and interim 

emission limits and compliance 

schedules are appropriate regardless of 

how Portland ultimately decides to meet 

them. Thus, we decided it was not 

necessary, as proposed, to include a 

separate schedule specifically for a 

compliance approach based on shutting 

down. 

III. The EPA’s Basis for Making the 

Section 126 Finding for Portland 

A. CAA Section 126(b) and Our Legal 

Authority 

The statutory authority for this action 

is provided by the CAA, as amended, 42 

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

CAA provides that any state or political 

subdivision may petition the 

Administrator of the EPA to find that 

any major source or group of stationary 

sources in upwind states emits or would 

emit any air pollutant in violation of the 

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

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

a finding, in order to allow continued 

operation of the source, the EPA may 

also issue emission limits and 

compliance schedules (including 

increments of progress) to bring the 

source into compliance as expeditiously 

as practicable but no later than 3 years 

from the date of the finding. Absent 

such emission limits and a compliance 

schedule, the source may not continue 

operations beyond 90 days. 

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

referred to as the ‘‘good neighbor’’ or 

‘‘interstate transport’’ provision of the 

Act, addresses interstate transport of air 

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

emissions in one state that contribute 

significantly to nonattainment in, or 

interfere with maintenance of a NAAQS 


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3This deadline can be extended by up to 6 

months pursuant to section 307(d)(10). 

by, any other state, or interfere with 

measures required to be included in the 

applicable implementation plan for any 

other state under part C to prevent 

significant deterioration of air quality or 

to protect visibility, are to be prohibited. 

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

the Administrator, made pursuant to 

section 126, that a source or group of 

sources emits air pollutants in violation 

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

are commonly referred to as section 126 

findings. Similarly, petitions submitted 

pursuant to this section are commonly 

referred to as section 126 petitions. This 

action responds to a section 126 petition 

submitted by the NJDEP. In this action, 

the EPA makes a section 126 finding 

with respect to Portland and establishes 

emission limits and compliance 

schedules to permit continued operation 

of the plant. 

Several commenters asserted that the 

EPA cannot, or should not, make such 

a section 126 finding at this time, but 

can only make such a finding after the 

state has submitted what is usually 

referred to as its ‘‘interstate transport’’ 

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

Implementation Plan (SIP). For the 

recently promulgated 1-hour SO2

standard, those SIPs are due on June 3, 

2013. We disagree with this 

interpretation of the Act. The plain 

language of the statute confirms that 

section 126 remedies can, and in some 

cases must, be promulgated prior to the 

deadline for states to make SIP 

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

The EPA has consistently interpreted 

the language in section 126 as referring 

to a functional prohibition on 

emissions. This interpretation is 

supported by the plain language of the 

statute, the statutory structure, and the 

legislative history. Further, the EPA 

notes that the statute does not exempt, 

for any period of time, violations of the 

prohibition from scrutiny under section 

126. For these reasons, the EPA believes 

its interpretation is compelled by the 

statutory language. Nonetheless, to the 

extent that the statutory language is 

ambiguous, the EPA’s reasonable 

interpretation of this language is to be 

accorded deference. 

The EPA interprets the language in 

section 126 as referring to the actual 

functional prohibition of section 

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

interstate transport. The EPA does not 

agree with the position taken by some 

commenters that the language refers 

only to an emissions limitation 

contained in a state’s section 

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

nothing in the statute to support the 

argument that the prohibition on 

emissions does not arise until after the 

SIP submission deadline, or that a 

violation of the functional prohibition 

cannot occur before that deadline. 

Where the EPA finds such a violation 

exists, it must, under section 126, issue 

emission limits and compliance 

schedules to permit continued operation 

of the source. 

The EPA’s interpretation of section 

126 acknowledges that Congress created 

two independent statutory tools— 

section 110(a)(2)(D)(i) and section 126— 

to address the problem of interstate 

pollution transport. The purpose of each 

provision is to control upwind 

emissions that contribute significantly 

to downwind states’ nonattainment or 

maintenance problems. The two 

provisions differ in that one relies on 

state regulation and the other relies on 

federal regulation. Congress provided 

both provisions without indicating any 

preference for one over the other, 

suggesting it viewed either approach as 

a legitimate means to produce the 

desired result. Instead, the statutory 

language creates two independent tools 

to address the problem. Section 

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

for all states to address emissions within 

the state significantly contributing to 

downwind air quality problems or 

interfering with certain regulatory 

provisions in downwind states. Section 

126 establishes a procedure for a state, 

or political subdivision, to petition the 

EPA to take federal action to address 

transported emissions from an 

identified source or group of sources in 

another state. The two provisions are 

independent, and nothing in the statute 

suggests that one is intended to limit the 

other. 

In general, statutes are to be 

interpreted in a way that gives meaning 

to each section. The EPA’s 

interpretation of section 126 is 

consistent with this general rule in that 

it gives section 126 a purpose 

independent of the other remedies 

available under the CAA. In contrast, if 

section 126 were interpreted as referring 

only to a prohibition contained in a SIP, 

the section would not have any practical 

utility in the statutory scheme. The 

EPA’s interpretation of the relationship 

between sections 126 and 110 is 

supported by the legislative history of 

the amendments to the CAA which 

added section 126. In adopting the 

section 126 remedies, Congress 

explained that the petition process was 

intended to provide an avenue for relief 

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

procedure and that it was intended to 

expedite, not delay, resolution of 

interstate pollution conflicts. 

The EPA’s interpretation of the 

‘‘prohibition’’ referred to in section 126 

is also consistent with the language of 

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

states to include in their SIPs provisions 

necessary to ensure compliance with 

sections 126 and 115 of the CAA, which 

relate to interstate transport and 

international transport of pollution, 

respectively. States are required to 

submit to the EPA such SIPs no later 

than 3 years after promulgation of a new 

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

Thus, pursuant to section 

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

compliance schedules issued by the 

Administrator under section 126 prior 

to that deadline must be incorporated 

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

submission for the state in which a 

source subject to such limits is located. 

Accordingly, the statute anticipates that 

the Administrator may address a section 

126 petition prior to the deadline for the 

initial submission of a section 

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

If Congress had intended to limit the 

EPA’s authority to act on section 126 

petitions until after the deadline for 

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

could have included such a restriction. 

However, the plain language of the 

statute does not clearly require this 

interpretation. Rather, the statute 

requires the EPA to address a section 

126 petition within 60 days after 

receipt.3 Since the statute establishes 

firm deadlines for action on section 126 

petitions, it does not provide an 

exception for petitions submitted prior 

to the good neighbor SIP submission 

deadline, and it provides a mechanism 

for incorporating reductions required in 

response to section 126 petitions into 

the state SIPs; the EPA believes it does 

not have discretion to delay action on a 

section 126 petition just because the 

state SIP submission deadline has not 

yet passed. 

The EPA’s interpretation of sections 

110 and 126 in this context is also 

reasonable as it is consistent with the 

EPA’s interpretation of these sections in 

two rulemakings issued in May 1999 

and January 2000 which concluded that 

each section of the Act provides an 

alternative avenue for relief. Findings of 

Significant Contribution and 

Rulemaking on Section 126 Petitions for 

Purposes of Reducing Interstate Ozone 

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

Findings of Significant Contribution and 

Rulemaking on Section 126 Petitions for 

Purposes of Reducing Interstate Ozone 

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

NJDEP has, in this case, sought relief via 

section 126 from the interstate transport 

of pollution that is significantly 


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contributing to nonattainment within 

the state, and the EPA is obligated to 

address NJDEP’s petition pursuant to 

the requirements of the Act. 

B. Summary of Comments and 

Responses Regarding Legal Authority 

Comment: Several commenters argue 

that the statutory text is unambiguous in 

requiring that states be permitted to 

submit their infrastructure SIPs 

addressing the transport requirements of 

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

petition can be filed. 

The commenters primarily argue that 

this interpretation is compelled because 

a section 126 petition may only be filed 

to complain of a violation of a section 

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

to adequately enforce its own plan. 

Accordingly, the commenters argue that 

there is no prohibition of transport 

emissions absent an approved SIP. The 

operative language in section 126 is that 

a petition may be granted where there 

is ‘‘a violation of the prohibition of’’ 

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

argue that ‘‘prohibition’’ referred to in 

section 126 is not on the act of emitting 

or contributing to transboundary 

nonattainment. Rather, the commenters 

assert, the prohibition is against 

emitting at levels that violate the limits 

imposed by the SIP regulations 

promulgated in response to the 

requirements of the CAA. 

Some of these commenters also 

suggest that a section 126 petition 

would be justified where a state fails to 

meet its SIP revision obligations under 

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

therefore argue that a section 126 

petition may not be filed until the state 

fails to meet its deadline to file a SIP 

addressing its transport obligations with 

respect to the new or revised NAAQS. 

Response: The EPA does not agree 

that the interpretation posited by the 

commenters is reasonable much less 

compelled by the statutory text. Nothing 

in the statutory language in section 126 

prohibits a downwind state from filing 

a section 126 petition until after the 

upwind state, in which the source or 

sources are located, has submitted, or is 

required to submit, a section 

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

The commenters have not identified any 

statutory provision that so limits a 

downwind state’s rights. Rather, the 

right of a state to file a section 126 

petition does not have any time 

limitation, and the EPA is required to 

act quickly whenever presented with 

such a petition. The commenters’ 

arguments that a section 126 petition 

cannot be filed, or a section 126 finding 

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

SIP submission deadline passes are 

policy arguments with no basis in the 

statutory text. Instead, as discussed 

below, the statutory text, the structure of 

the CAA, and the legislative history all 

support the EPA’s interpretation of the 

Act as creating, in sections 110 and 126, 

two independent means of controlling 

transboundary emissions and find no 

support for the argument that one 

should be prioritized over the other. 

Moreover, the plain language of the 

statute does not clearly define 

‘‘prohibition’’ to mean a SIP provision 

that sets emissions limits to address 

transboundary air pollution. Rather, the 

EPA believes that the better 

interpretation, in light of the structure of 

the CAA and its legislative history, is 

that the ‘‘prohibition’’ referred to in 

section 126 is the actual, functional 

prohibition on transboundary air 

pollution contained in section 

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

The commenters’ interpretation of the 

‘‘prohibition’’ referred to in section 126 

would render the relief provided by a 

section 126 petition process essentially 

meaningless. If a source is emitting in 

violation of an emission limitation in a 

SIP, there is no question that the source 

is in violation of the SIP. The language 

in section 126 stating that ‘‘it shall be a 

violation of * * * the applicable 

implementation plan’’ for a source to 

emit in violation of the prohibition of 

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

purpose where the source is already 

directly violating a SIP requirement. By 

contrast, under the EPA’s interpretation, 

section 126 deems a source’s emissions 

to be a violation of the applicable SIP 

(as well as of section 126) whenever the 

emissions significantly contribute to 

nonattainment downwind or interferes 

with maintenance of any NAAQS. This 

interpretation gives legal effect to the 

language in section 126 and is 

consistent with Congress’ purpose of 

providing a tool for downwind states 

and the EPA to use to impel upwind 

sources to reduce transported emissions 

even where a SIP may not yet directly 

regulate such emissions. 

Moreover, the EPA’s interpretation of 

section 126 gives it a purpose 

independent of the other remedies 

available under the CAA. Under section 

113, upon finding that any person is in 

violation of any requirement of an 

approved SIP, the EPA has the authority 

to enforce the requirement by issuing an 

order to comply, issuing an 

administrative penalty order, or 

bringing a civil action. In addition, any 

person (which includes states) may 

bring a citizen suit against any person 

in violation of any requirement of an 

approved SIP, independent of the EPA 

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

section 302. These provisions provide 

more direct and likely quicker recourse 

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

section 126 petition process would. 

Thus, there is no need to have a 

petition, public hearing, and EPA 

determination pursuant to section 126 

simply to enforce existing SIP limits. By 

contrast, using the section 126 petition 

process where transboundary emissions 

are not yet being controlled by an 

upwind state serves the unique role of 

allowing a downwind state to force the 

EPA’s consideration of the problem and 

potentially achieve emissions 

reductions directly from sources, 

without the need to depend on action by 

the upwind state. 

The EPA’s interpretation of the 

relationship between sections 126 and 

110 is expressly supported by the 

legislative history of the CAA. In 

adopting the section 126 remedies, 

Congress explained that the petition 

process was intended to provide an 

avenue for relief separate from the 

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

This petition process is intended to 

expedite, not delay, resolution of interstate 

pollution conflicts. Thus, it should not be 

viewed as an administrative remedy which 

must be exhausted prior to bringing suit 

under section 304 of the act. Rather, the 

committee intends to create a second and 

entirely alternative method and basis for 

preventing and abating interstate pollution. 

The existing provision prohibiting any 

stationary source from causing or 

contributing to air pollution which interferes 

with timely attainment or maintenance or 

[sic] a national ambient air standard (or a 

prevention of significant deteriorating [sic] or 

visibility protection plan) in another state is 

retained. A new provision prohibiting any 

source from emitting any pollutant after the 

Administrator has made the requisite finding 

and granted the petition is an independent 

basis for controlling interstate air pollution. 

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

Legislative History at 2798. Nothing in 

the legislative history suggests, as the 

commenters assert, that the section 126 

remedy is dependent on the section 110 

SIP procedure. Rather, this language 

clearly indicates that Congress intended 

sections 110 and 126 to operate as 

independent means of controlling 

transboundary emissions and that it did 

not intend to prioritize one means of 

control over the other. Accordingly, 

there is no basis in the legislative 

history to support the commenters’ 

argument that a state does not have the 

right to submit a section 126 petition 

until after the deadline to submit a 

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

the contrary, the legislative history 

supports the conclusion that Congress 

did not intend to impose any limitation 


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

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

procedure on when a state may submit 

a section 126 petition after a new or 

revised NAAQS is promulgated. 

Moreover, Congress recognized in 

adopting all of the interstate transport 

provisions in the CAA that the interstate 

pollution problem stems from 

inadequate limits on transported 

emissions, and not inadequate 

compliance with adequate SIP 

requirements. This characterization of 

the problem is supported by the 

numerous descriptions of the interstate 

pollution problem in the 1977 

legislative histories, all of which 

explicitly or implicitly refer to the lack 

of upwind limitations and none of 

which mentions sources’ violation of 

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

on Envt. and Public Works, Clean Air 

Act Amendments of 1977, S. Rep. 95– 

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

reprinted in 3 1977 Legislative History 

at 1415 (noting that the 1970 Act failed 

to specify any abatement procedure if a 

source in one state emitted air 

pollutants that adversely affected 

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

interstate enforcement actions have 

taken place, resulting in serious 

inequities among several States, where 

one State may have more stringent 

implementation plan requirements than 

another state’’); H. Rep. 95–294, 95th 

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

in 4 1977 Legislative History at 2798 

(‘‘[A]n effective program must not rely 

on prevention or abatement action by 

the State in which the source of the 

pollution is located, but rather by the 

state (or residents of the State) which 

receives the pollution and the harm, and 

thus which has the incentive and need 

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

Congress intended to create a tool that 

would attack the problem Congress 

recognized. This supports the 

conclusion that Congress intended 

section 126 to provide an alternate 

means to compel compliance with the 

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

where upwind states are not controlling 

transboundary emissions, and not where 

sources are violating adequate SIP 

provisions. 

The interpretation that the EPA 

adopts here is also consistent with its 

historical interpretation of section 126. 

The EPA previously interpreted this 

section in two rulemakings issued in 

1999 and 2000, wherein commenters 

challenged the EPA’s authority, in light 

of a pending SIP call, to grant a number 

of section 126 petitions that sought to 

mitigate the transport of nitrogen oxides 

(NOX) from downwind states that were 

significantly contributing to ozone 

nonattainment problems in the 

petitioning states. 64 FR 28250; 65 FR 

2674. In both rulemakings, the EPA 

interpreted the relationship between 

sections 110 and 126 consistent with the 

EPA’s interpretation here, concluding 

that the ‘‘prohibition’’ referred to in 

section 126 is the functional prohibition 

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

an emissions limitation contained in a 

state’s SIP, and that the section 

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

126 petition process are independent 

and alternative means of addressing 

impermissible interstate transport. 

Both rulemakings were challenged in 

the DC Circuit in Appalachian Power 

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

theories that the agency was required to 

refrain from making any section 126 

findings while the SIP call was ongoing 

and that the doctrine of ‘‘cooperative 

federalism’’ embodied in the Act 

imposed a constraint on the EPA’s 

ability to act before the section 110 

process was complete. Id at 1045. The 

court deferred to the EPA’s 

interpretation of the relationship 

between sections 110 and 126, holding 

that there is no inherent conflict in 

acting on a section 126 petition during 

the same period that a state has to 

develop a SIP submission: ‘‘It is entirely 

reasonable for the EPA to regard a state 

that is under a legal obligation to revise 

its plan as being, in the meantime, in 

violation of a functional prohibition.’’ 

Id. at 1046. The court explained that the 

petitioners’ interpretation of section 126 

would compromise three critical 

provisions of section 126: 

1. The requirement that source 

operate no more than 3 years after 

finding of contribution to downwind 

nonattainment; 

2. The fact that ‘‘relief does not 

depend upon any action by the upwind 

states, as is necessary for a SIP 

revision’’; and 

3. The fact that relief under section 

126 is independent of the discretionary 

policy preferences of the EPA, as the 

agency is required to act upon a petition 

within 60 days. 

Id. The court noted that the EPA’s 

interpretation retains all three aspects of 

the statutory requirements. 

Id. The court therefore concluded that 

‘‘[b]ecause it is reasonable, and because 

the ‘Congress provided both [§§ 110 and 

126] without indicating any preference 

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

conclusion that these two provisions 

operate independently merits our 

deference under Chevron step two.’’ Id. 

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

Thus, the EPA believes that the 

commenters’ interpretation of section 

126 is unreasonable and inconsistent 

with the legislative history, the EPA’s 

past interpretations, and court rulings 

upholding those interpretations. In 

particular, the commenters’ 

interpretation would render the relief 

provided by the section 126 petition 

process duplicative and unnecessary. 

The EPA’s interpretation, on the other 

hand, gives legal effect to the language 

in section 126 and is consistent with 

Congress’ purpose of providing an 

independent tool for a downwind states 

and the EPA to use to impel upwind 

sources to reduce transported emissions. 

The EPA believes this matter is clearly 

resolved by reference to the terms of the 

provision itself, so that under the first 

step of the Chevron analysis, no further 

inquiry is needed. If, however, it were 

concluded that the provision is 

ambiguous on this point, the EPA 

believes that, under the second step in 

the Chevron analysis, then the EPA 

should be given deference for any 

reasonable interpretation, as courts have 

given with respect to prior 

interpretations of section 126. 

Interpreting section 126 to refer to a 

functional prohibition on emissions and 

to preserve a state’s right to file a section 

126 petition is reasonable for the 

reasons described above. 

Comment: Several commenters argue 

that the EPA is turning to section 126 as 

a ‘‘first resort’’ for implementing the 

new NAAQS and that we are 

substituting the EPA’s judgment for 

Pennsylvania’s regarding the 

appropriate control strategy for 

Portland. The commenters contend that 

revising Pennsylvania’s SIP is a 

usurpation of state discretion and that 

the SIP process would be superfluous if 

we allowed petitions to be filed so close 

on the heels of new or revised NAAQS. 

The commenters believe that Congress 

intended states to have primary 

responsibility for implementing a new 

or revised NAAQS. They contend that 

the EPA’s interpretation of section 126 

places priority on interstate transport 

over intrastate control of NAAQS 

attainment. 

Response: We respond by noting that 

the upwind state still retains its 

obligation to develop a SIP and 

implement the NAAQS. Applying 

section 126 independent of an upwind 

state’s failure to act under section 

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

pressure upwind states to select certain 

control measures. The EPA 

acknowledges that because the section 

126 findings precede any required state 

action, when states are eventually 

required to submit SIPs to control 

interstate transport, one of the largest 

sources of emissions will already be 

subject to emission control 


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4CALPUFF is a non-steady-state puff dispersion 

model that was originally developed for the 

California Air Resources Board. 

5The EPA modeling analysis is detailed in the 

proposed rule Air Quality Modeling Technical 

Support Document, available in Docket ID EPA– 

HQ–OAR–2011–0081–0026. 

requirements, and, depending upon the 

timing, may have already invested in 

controls. Yet this is not a legal 

constraint on states’ choices—it is the 

reality that, over time, conditions 

change and different policy choices 

become more or less attractive for a 

variety of reasons. States would still be 

able to choose to regulate other sources, 

but depending upon the timing, the 

option of obtaining emission reductions 

from sources that have already invested 

in emission controls or have already 

reduced emissions may be more 

attractive on policy and economic 

grounds than regulating those sources 

otherwise would have been. There is a 

vast difference between, on one hand, 

the EPA prescribing a particular 

emissions control choice that states 

must adopt, and on the other, taking 

action required under the CAA to 

regulate sources directly with the 

possible effect of making certain future 

emissions control choices by some 

states more or less appealing. 

Such a potential future effect on the 

regulatory environment cannot override 

the obligation that the EPA act on state 

petitions under section 126. We do not 

believe it would be reasonable to 

conclude that the EPA can take no 

action under an independent mandate 

of the statute to respond to petitions 

submitted by downwind states facing 

their own time constraints and 

pressures to meet air quality standards, 

just to preserve the relative 

attractiveness of a variety of options for 

control of SO2 in the upwind states 

required under another provision of the 

CAA. The cooperative federalism 

principles of the CAA do not require the 

EPA to withhold federal action under 

section 126 until states have been 

required to and failed to submit SIPs. It 

is perfectly reasonable for Congress to 

have established section 126 as an 

alternative mechanism under the CAA 

to address the interstate pollution 

problem, just as it did again in adopting 

sections 176A and 184. To provide 

alternatives, the various interstate 

transport provisions are necessarily 

different from each other and from other 

provisions of the Act, but that does not 

make them inconsistent with other 

provisions of the Act. Thus, simply 

because the EPA will have imposed 

certain requirements on Portland does 

not mean that Pennsylvania no longer 

has any discretion in crafting its SIP 

submission with respect to NAAQS 

compliance anywhere in the state. 

Pennsylvania can take into 

consideration the controls that Portland 

chooses to implement when creating its 

own attainment plan, just as it would 

take into consideration controls 

implemented at any other source. 

The court in Appalachian Power Co. 

v. EPA specifically addressed this 

concern that action on the section 126 

petition before the SIP submissions 

were due would restrict the states’ 

discretion to fashion their own plan for 

complying with the NAAQS: ‘‘SIP 

development, like any environmental 

planning process, commonly involves 

decisionmaking subject to various legal 

constraints. That § 126 imposes one 

such limitation—and it is surely not the 

only independent provision of federal 

law to do so—does not affect a state’s 

discretion under § 110.’’ 49 F.3d at 

1047. 

Finally, as explained in detail above, 

Congress intended sections 110 and 126 

to operate as independent and alternate 

means to address transboundary 

pollution, and indicated no preference 

for one means of compelling compliance 

over the other. Thus, the EPA’s action 

on this section 126 petition does not 

prioritize the control of interstate 

pollution over a state’s control of 

intrastate pollution. Rather, it gives legal 

effect to section 126, consistent with the 

structure of the CAA and the legislative 

history, by providing a tool for 

downwind states to use to impel 

upwind sources to reduce transported 

emissions. 

IV. Summary and Assessment of the 

Modeling and Other Data Relevant to 

the EPA’s Proposed Finding 

A. Summary of the Modeling for the 

Proposed Rule 

NJDEP’s section 126 petition 

contained dispersion modeling results, 

based on both the CALPUFF 4 and 

AERMOD dispersion models, that 

NJDEP relied upon to show that 

emissions from Portland, alone, caused 

downwind violations of the 1-hour SO2

NAAQS in New Jersey. Given the 

magnitude of the modeling violations, 

which were nearly seven times the 1- 

hour SO2 NAAQS based on AERMOD 

modeling of maximum allowable 

emissions, and the fact that significant 

exceedances of the NAAQS were also 

shown based on modeling of estimated 

actual emissions, the EPA concluded 

that the NJDEP had clearly shown that 

SO2 emissions from Portland cause 

violations of the 1-hour SO2 NAAQS in 

New Jersey. 

The EPA also modeled the emissions 

from Portland using the AERMOD 

dispersion model and determined that 

the modeled concentrations from 

Portland, when combined with the 

relatively low background 

concentrations, cause violations of the 

1-hour SO2 NAAQS in Morris, Sussex, 

Warren and Hunterdon Counties in New 

Jersey.5 This section discusses the key 

modeling issues that arise in making 

that determination, and how the EPA is 

responding to comments we received on 

those issues. We also note that this 

modeling is used not only to 

characterize the NAAQS violations, but, 

as discussed in section V, it is also used 

to determine the appropriate remedy to 

address such violations. 

1. Modeling Analysis in NJDEP’s 

Section 126 Petition 

a. Model Selection 

Model selection was one of the key 

issues that the EPA addressed in 

support of this rule given the critical 

role played by dispersion modeling both 

in relation to a finding under a section 

126 petition that a source significantly 

contributes to nonattainment and/or 

interferes with maintenance of the 1- 

hour SO2 NAAQS in a neighboring state, 

and in relation to the determination of 

an appropriate remedy to address such 

a finding. As summarized in the 

proposed rule and documented in more 

detail in the EPA’s proposed rule Air 

Quality Modeling Technical Support 

Document, NJDEP included modeling 

results based on both the CALPUFF and 

AERMOD dispersion models with its 

section 126 petition. The importance of 

this issue is further highlighted by the 

fact that the maximum 99th percentile 

of the daily maximum 1-hour modeled 

SO2 concentrations based on CALPUFF 

was about 2.5 times higher than the 

maximum 99th percentile of the daily 

maximum 1-hour modeled 

concentrations based on AERMOD. 

Consequently, a much more stringent 

remedy would be required to address 

such a finding based on CALPUFF 

modeling than based on AERMOD 

modeling. 

The NJDEP acknowledged that 

AERMOD is the preferred model under 

the EPA’s ‘‘Guideline on Air Quality 

Models,’’ published as Appendix W to 

40 Code of Federal Regulations (CFR) 

Part 51, for near-field applications such 

as this, but suggested that the use of 

CALPUFF may be appropriate under the 

alternative model provisions in Section 

3.2.2b of Appendix W. Section 3.2 of 

Appendix W lists three separate 

conditions under which an alternative 

model may be approved for use: 


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6See Letter from Bob Martin, Commissioner, New 

Jersey Department of Environmental Protection 

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

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

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

7Protocol for Determining the Best Performing 

Model. EPA–454/R–92–025 (1992). U.S. 

Environmental Protection Agency, Research 

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

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

8The 1-hour SO2 NAAQS is 75 ppb. For 

comparison to dispersion modeling results in units 

of ug/m3, the NAAQS can be expressed as 196.2 ug/ 

m3, assuming reference temperature and pressure. 

(1) If a demonstration can be made 

that the model produces concentration 

estimates equivalent to the estimates 

obtained using a preferred model; 

(2) If a statistical performance 

evaluation has been conducted using 

measured air quality data and the 

results of that evaluation indicate the 

alternative model performs better for the 

given application than a comparable 

model in Appendix A of Appendix W; 

or 

(3) If the preferred model is less 

appropriate for the specific application, 

or there is no preferred model. 

The NJDEP modeling documentation 

suggested that NJDEP’s use of the 

CALPUFF model in support of this 

petition was based on condition (2) of 

Section 3.2.2b, claiming to have shown 

that CALPUFF ‘‘performed better and 

produced predictions of greater 

accuracy than AERMOD’’ for this 

application. NJDEP also claimed that the 

use of CALPUFF is more appropriate for 

this specific application due to the 

complex winds addressed in Section 

7.2.8 of Appendix W and is therefore 

justified under condition (3) of Section 

3.2.2b. 

The section 126 petition referenced a 

CALPUFF model validation study based 

on the Martin’s Creek field study 

database, submitted by NJDEP with an 

earlier section 126 petition, as 

demonstrating that ‘‘CALPUFF 

performed better and produced 

predictions of greater accuracy than 

AERMOD’’ for this application.6

At proposal, the EPA included a 

detailed assessment of the NJDEP 

CALPUFF validation study as Appendix 

A of the proposed rule Air Quality 

Modeling TSD, and concluded that 

NJDEP had not adequately justified the 

use of CALPUFF in this application 

under either conditions (2) or (3) of 

Section 3.2.2b of Appendix W. The EPA 

further asserted that AERMOD is the 

most appropriate model for this 

application. Our assessment of the 

CALPUFF validation study identified 

several aspects of NJDEP’s validation 

methodology that deviated from the 

EPA’s Protocol for Determining the Best 

Performing Model,7 which undermined 

the integrity of the evaluation results. In 

addition, we cited the ‘‘weight of 

evidence’’ regarding AERMOD model 

performance which is based on 

evaluations for a total of 17 field study 

databases as compared to NJDEP’s 

CALPUFF validation study which is the 

only near-field evaluation of CALPUFF 

model performance that the EPA is 

aware of that included CALMETgenerated 3-dimensional wind fields. 

We also pointed to the fact that the 1- 

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

observed concentrations for AERMOD 

and CALPUFF included in the NJDEP 

validation study suggested that the 

performance of the CALPUFF and 

AERMOD models was very similar for 

this database, with both models 

exhibiting generally good agreement 

with observations, but with AERMOD 

showing slightly better overall 

agreement than CALPUFF. These clear 

visual comparisons of model 

performance are difficult to reconcile 

with NJDEP’s assertion that CALPUFF 

performed better than AERMOD. 

b. Meteorological Data 

Another key component of the 

dispersion modeling analysis is the 

meteorological data. The EPA based the 

AERMOD modeling in support of the 

proposed rule on 1 year of Portland sitespecific meteorological data available 

for July 1993 through June 1994. The 

site-specific meteorological data were 

collected from a 100-meter 

instrumented tower and Sound 

Detection and Ranging instrument 

(SODAR), located about 2.2 kilometers 

west of Portland. Based on a review of 

the data, we determined that the 

Portland meteorological data from 

1993–94 meet the basic criteria for 

representativeness under Section 8.3.3 

of Appendix W, and therefore can be 

considered as site-specific data for 

purposes of modeling impacts from the 

elevated stacks for Portland units 1 and 

2. The 1993–94 data also meet the 

minimum criterion for the length of 

meteorological data record of at least 1 

year of site-specific meteorological data 

recommended in Section 8.3.1.2 of 

Appendix W. However, the difference of 

about 100 meters in the base elevation 

for the meteorological tower versus the 

stack base elevation raised concerns 

regarding how the meteorological data 

were input to the AERMOD model in 

the NJDEP modeling analysis given that 

the stack heights for units 1 and 2 are 

about 122 meters and that plume 

heights of concern for units 1 and 2 are 

about 200 to 400 meters above stack 

base. 

The AERMOD modeling submitted by 

NJDEP used the measurement heights 

above local ground at the tower location 

for the meteorological data input to the 

model, effectively assuming that the 

measured profiles of wind, temperature 

and turbulence are ‘‘terrain-following.’’ 

Without adjusting for the difference in 

base elevation of about 100 meters 

between the meteorological data and the 

stacks, wind speeds are likely to be 

biased high and the wind directions 

may not be representative of plume 

heights relative to stack base. A review 

of the raw meteorological data files for 

Portland also revealed the fact that sw

(vertical turbulence) data were available 

from the SODAR, but had not been used 

in the AERMOD modeling submitted 

with NJDEP’s section 126 petition. 

Based on the analyses that are described 

in more detail in the EPA proposed rule 

Air Quality Modeling TSD, the EPA 

concluded that the representativeness of 

the Portland meteorological data would 

be improved by incorporating some 

adjustments to the measurement heights 

from the SODAR data and the inclusion 

of the sw data collected from the 

SODAR. 

2. The EPA’s Modeling Analysis To 

Quantify Significant Contribution 

In the EPA AERMOD modeling 

analysis, thousands of receptors were 

placed in New Jersey to determine the 

area of maximum concentration from 

Portland’s emissions in order to 

quantify Portland’s significant 

contribution to nonattainment in New 

Jersey. A design value concentration 

was calculated for each receptor for 

comparison to the NAAQS. The design 

value concentration is equal to the 99th 

percentile (4th-highest) of the annual 

distribution of daily maximum 1-hour 

SO2 concentrations. All receptors with 

modeled design value concentrations 

that are greater than the NAAQS [196.2 

micrograms per cubic meter (ug/m3)] 8

are determined to be nonattainment 

receptors. 

The EPA proposed to define 

Portland’s significant contribution to 

nonattainment and interference with 

maintenance as those emissions that 

must be eliminated to bring the 

downwind receptors in New Jersey 

affected by Portland into modeled 

attainment in the analysis year. While 

this approach would not be appropriate 

in every circumstance, the EPA believes 

it is appropriate where, as here, the 

source’s emissions are sufficient on 

their own to cause downwind NAAQS 

violations and background levels of the 

relevant pollutant are relatively low. 

The EPA therefore developed a 


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9 Due to constraints on data availability, our 

analysis is appropriate in this instance; however, 

nothing here is intended to suggest that, where 

sufficient data are available to examine year-to-year 

variability, this should not be a relevant factor. 

10See Trajectory Analysis of High Sulfur Dioxide 

Episodes at the Chester, NJ Monitor. Bureau of 

Technical Services, Division of Air Quality, New 

Jersey Department of Environmental Protection. 

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

the September 13, 2010 Supplement to New Jersey’s 

May 12, 2010 Petition Pursuant to Section 126 of 

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

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

11The ‘‘ISC Type’’ building downwash option in 

CALPUFF refers to the Huber-Snyder and 

Schulman-Scire algorithms that are incorporated in 

the Industrial Source Complex Short Term (ISCST3) 

model. The PRIME downwash option refers to the 

‘‘Plume Rise Model Enhancements’’ algorithms that 

were initially incorporated into a revised version of 

ISCST3 called ISC–PRIME, and were later 

incorporated into the AERMOD model prior to its 

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

methodology to identify the reductions 

necessary to bring the downwind 

receptors into attainment. 

To quantify the emissions that 

constitute Portland’s significant 

contribution, the EPA identified the 

level of emissions that need to be 

reduced to ensure that no modeled 

concentration within the affected area 

(in New Jersey) exceeds the level of the 

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

daily maximum 1-hour average of 196.2 

ug/m3). 

The EPA also analyzed the modeling 

results to determine the appropriate 

emissions reductions that were needed 

to eliminate ‘‘interfere with 

maintenance.’’ In addition to 

nonattainment receptors, the EPA also 

attempted to identify receptors that are 

modeled to be attainment but due to 

variability in meteorology or emissions 

might be at risk for nonattainment. Due 

to the high modeled concentrations 

from Portland’s emissions, all of the 

downwind modeled receptors in the 

final modeled receptor grid in New 

Jersey are modeled to be nonattainment. 

In this application, it was not necessary 

to expand the modeling grid to identify 

additional nonattainment or 

‘‘maintenance only’’ receptors because 

the modeling domain was focused on 

the receptors with the maximum impact 

from Portland. Therefore, the EPA did 

not identify any ‘‘maintenance only’’ 

receptors. 

In the proposal, the EPA considered 

whether Portland should be required to 

make additional reductions, above and 

beyond those required to eliminate its 

significant contribution to 

nonattainment, to ensure that it does not 

interfere with maintenance of the 1-hour 

SO2 NAAQS in violation of the 

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

identified an approach that we believe 

is appropriate for these specific 

circumstances. Among other things, we 

considered the nature of the modeling 

used to determine the appropriate 

remedy and the potential for actual SO2

concentrations in New Jersey to be 

higher than those modeled. In the 

proposal, the EPA determined there is 

no indication that concentrations higher 

than those modeled from Portland 

would be likely to occur at 

nonattainment and/or maintenance 

receptors or anywhere else in New 

Jersey. This was based on the following 

facts: 

1. There is only 1 year of site-specific 

meteorology available, such that we 

were not able to explicitly examine the 

impact of year-to-year variability of 

meteorology on downwind modeled 

concentrations.9

2. The remedy modeling used 

maximum allowable emissions from 

Portland. Since these are the highest 

emissions that are allowed to be emitted 

by the facility, higher concentrations 

could not be expected to occur in New 

Jersey due to the variability of emission 

from Portland. 

3. In the modeling analysis, we used 

background concentrations that varied 

by season and hour of day based on the 

3-year average of the 99th percentile of 

the distribution of hourly SO2

concentrations in the area, which 

represents the high end of the 

distribution of monitored background 

concentrations. The background 

concentration accounts for contributions 

from other SO2 sources. As 

demonstrated by NJDEP’s trajectory 

analysis,10 it is likely that SO2 impacts 

from Portland contributed to some of 

the high monitored concentrations at 

the Chester, New Jersey, monitor used to 

represent the background 

concentrations, which is located about 

34 kilometers east-southeast of Portland. 

Although use of the 99th percentile 

values by season and hour of day from 

the Chester, New Jersey, monitor 

eliminated some of the peak hourly SO2

concentrations, the background 

concentrations are still likely to be 

somewhat conservative (high) to 

account for variability that otherwise 

cannot be quantified. 

It was therefore reasonable to 

conclude, under the circumstances, that 

any remedy that eliminates the 

significant contribution to 

nonattainment from Portland also 

eliminates its interference with 

maintenance with respect to year-toyear variability in emissions and 

meteorology. The EPA therefore 

proposed to find that compliance by 

Portland with the proposed emission 

limits will bring it into compliance with 

the prohibition on emissions that 

significantly contribute to 

nonattainment of the 1-hour SO2

NAAQS as well as with the prohibition 

on emissions that interfere with 

maintenance in a downwind area. The 

EPA requested comments on our 

modeling methodology and 

meteorological data adjustments. 

B. Public Comments Related to the 

Modeling 

We received many public comments 

related to the modeling that was used to 

support the finding that SO2 emissions 

from Portland contribute significantly to 

nonattainment and interfere with 

maintenance of the 1-hour SO2 NAAQS 

in New Jersey. Some of the main 

comments and the EPA’s responses 

related to model selection, 

meteorological data, emissions and 

source characteristics, and background 

concentrations are summarized below, 

with further details provided in the 

Response to Comments document. 

1. Model Selection 

Comments: We received several 

comments supporting the EPA’s 

conclusion that AERMOD is the 

appropriate dispersion model for this 

petition, and that also supported the 

EPA’s overall assessment that NJDEP’s 

CALPUFF validation study failed to 

demonstrate that CALPUFF performs 

better for this application than 

AERMOD. One commenter (NJDEP) 

believes that the modeling in support of 

the section 126 petition should be based 

on CALPUFF, and provided detailed 

comments on the EPA assessment of the 

CALPUFF validation study. 

Response: As discussed in greater 

detail in the final rule Air Quality 

Modeling technical support document 

(final rule Modeling TSD), the EPA 

review of NJDEP’s comments related to 

our assessment of the CALPUFF 

validation study has identified 

additional deficiencies with the study 

that further undermine NJDEP’s 

conclusion that ‘‘CALPUFF performed 

better and produced predictions of 

greater accuracy than AERMOD’’ for this 

application. One of these deficiencies 

that came to light upon closer 

examination of the CALPUFF modeling 

files for the validation study is that 

NJDEP used the ‘‘ISC Type’’ option for 

building downwash in CALPUFF 

instead of the PRIME 11 downwash 

option when applying CALPUFF for the 

Martin’s Creek validation study, 

although the CALPUFF input file 


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69060 Federal Register / Vol. 76, No. 215 / Monday, November 7, 2011 / Rules and Regulations 

12Analysis of the Sulfur Dioxide Measurements 

from the Columbia Lake, NJ Monitor. Bureau of 

Technical Services, Division of Air Quality, New 

Jersey Department of Environmental Protection, 

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

0081–0019. 

13As documented in Appendix B of the EPA 

proposed rule Air Quality Modeling TSD, the EPA 

adjusted some of the measurement heights from the 

SODAR data and also included the SODAR-derived 

sw data. 

14Meteorological Monitoring Guidance for 

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

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

Agency, Research Triangle Park, NC, available at: 

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

mmgrma.pdf 

included the necessary building input 

parameters to run the PRIME option. 

The AERMOD modeling results for 

Martin’s Creek used for comparison 

were based on the PRIME downwash 

algorithm. While building downwash 

associated with the cooling towers at 

Martin’s Creek exhibited only a modest 

influence on results based on AERMOD 

evaluations, it is important enough to be 

treated properly in the model 

evaluation, and the EPA concludes that 

the PRIME downwash option should 

have been used in the CALPUFF 

modeling since AERMOD’s 

promulgation effectively established the 

PRIME algorithm as the ‘‘preferred’’ 

downwash algorithm for near-field 

applications. NJDEP’s CALPUFF 

validation report identifies that the ‘‘ISC 

type’’ downwash option was used in the 

table of CALPUFF inputs (the MBDW 

parameter in Table 8.2), but provides no 

explanation or justification for not using 

the PRIME downwash option. As 

described in more detail in the final rule 

Modeling TSD, the inclusion of the 

PRIME downwash option in CALPUFF 

resulted in a greater tendency for 

CALPUFF to overestimate 

concentrations at Martin’s Creek as 

compared to the ‘‘ISC–Type’’ downwash 

option, with some deterioration in 

model performance metrics. 

Additional evidence supporting the 

EPA’s determination that AERMOD is a 

more appropriate model for this 

application than CALPUFF was 

provided by an EPA analysis of high 

modeled SO2 concentrations versus high 

observed SO2 concentrations at the 

Columbia Lake Wildlife Management 

(Columbia) air quality monitor located 

in New Jersey about 2 kilometers 

northeast of Portland. The EPA 

compared the observed SO2 data from 

September 2010 through September 

2011 to modeled concentrations from 

AERMOD and CALPUFF. Although the 

monitored concentrations are based on 

a different period than the modeled 

concentrations (1993–94 in the case of 

AERMOD, and 1992–93, and 2002 for 

CALPUFF), it is reasonable to expect 

some degree of comparability between 

modeled and monitored concentrations 

based on the upper end of the ranked 

concentration distributions. These 

comparisons, which were patterned 

after comparisons presented in NJDEP’s 

trajectory analysis report for the 

Columbia monitor 12 and are described 

in more detail in the final rule Modeling 

TSD, show generally good agreement 

with observations based on AERMOD 

modeling, utilizing the EPA’s 

adjustments 13 to the 1993–94 site 

specific meteorological data for 

Portland. The EPA analysis used an 

emission scenario of 100 percent load 

and 70 percent of allowable emissions 

for Portland units 1 and 2, which is 

representative of peak operating 

conditions for Portland during the 

period of monitoring data and reflects 

the fact that the sulfur content of the 

fuel being burned at Portland was 

typically about 70 percent of the 

allowable sulfur content. Since Portland 

frequently operates well below these 

levels, we would expect to see some 

bias toward overestimation in the 

modeled concentrations, and the 

AERMOD predictions are consistent 

with that expectation. The average ratio 

of predicted to observed concentrations 

for the top 10 daily maximum 1-hour 

values was 1.14. By comparison, the 

average predicted/observed ratio for 

AERMOD for the same emission 

scenario using NJDEP’s meteorological 

data for Portland without the EPA’s 

adjustments was 0.77. The modeled 

concentrations are based on both units 

1 and 2 operating at 100 percent load 

and 70 percent of allowable emissions, 

without any contribution from 

background concentrations. The 

relatively good model performance for 

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

compared to observed SO2 at the 

Columbia monitor. The average 

predicted/observed ratios for CALPUFF 

were about 3.26 for the 1992–93 

meteorological data and 3.87 for the 

2002 meteorological data. Additional 

details regarding these analyses related 

to the Columbia monitoring data are 

provided in the EPA final rule Modeling 

TSD. 

2. Meteorological Data 

Comments: GenOn submitted 

comments indicating general agreement 

with the EPA adjustments to the 

Portland meteorological data, although 

it recommended also including the 

turbulence data from the 30-meter level 

on the instrumented tower, including 

both sw and sθ (lateral turbulence), 

which had been excluded from the EPA 

modeling in support of the proposal. 

Response: We disagree with GenOn’s 

recommendation to include the 30- 

meter turbulence data due to the 

concerns regarding the 

representativeness of such data, which 

are documented in the proposed rule 

Air Quality Modeling TSD. The EPA 

explained that it excluded the 30-meter 

turbulence data due to concerns 

regarding the representativeness of the 

data at that level relative to stack base 

elevation given that the measurement 

heights from the 100-meter tower were 

not adjusted and would therefore be 

treated as being representative of 

meteorological conditions within the 

valley. 

We also note that inclusion of the 30- 

meter turbulence data would have a 

negligible effect on the modeling results 

since the elevated plumes from Portland 

units 1 and 2 will be well above 30 

meters such that transport and 

dispersion of the plumes will be 

determined by measurements at higher 

levels from the tower and SODAR. 

Therefore, the 30-meter turbulence data 

is only expected to influence the plumes 

in the rare cases where turbulence data 

were missing from the 100-meter level 

on the tower and from the SODAR. Due 

to the representativeness issues, we 

believe it would be inappropriate to rely 

on the 30-meter turbulence data in those 

cases. 

Comment: NJDEP submitted detailed 

comments opposing the EPA’s 

adjustments to the Portland 

meteorological data, as well as other 

aspects of the meteorological data 

processing. NJDEP’s opposition to the 

EPA adjustments to Portland 

meteorological data primarily concerned 

past precedents regarding prior 

modeling analyses based on the data, 

the lack of field study evaluation results 

validating the use of SODAR-derived sw

data in AERMOD, and the fact that the 

net effect of the meteorological data 

adjustments incorporated in the EPA 

modeling reduced the overall modeled 

design value by about 40 percent as 

compared to the AERMOD modeling 

results submitted by NJDEP with the 

section 126 petition. 

Response: Regarding the exclusion of 

SODAR-derived sw data in past 

analyses, we noted that the EPA 

meteorological monitoring guidance 

prior to 2000 discouraged the use of 

SODAR-derived turbulence data, 

including sw. However, we also note 

that the updated guidance issued by the 

EPA in 2000 14 supports the use of 

SODAR-derived sw based on additional 

analyses of SODAR versus tower-based 

sw data. Furthermore, as mentioned 


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15The use of 1 year of site-specific meteorological 

data fulfills the requirements of Appendix W 

related modeling demonstrations of compliance 

with the NAAQS. The commenters are addressing 

the issue of interference with maintenance. 

above in relation to the issue of model 

selection and as documented in more 

detailed in the final rule Modeling TSD, 

additional analyses based on model-tomonitor comparisons against the 

Columbia, New Jersey, ambient SO2 data 

show much better agreement between 

modeled and monitored concentrations 

based on the EPA-adjusted 

meteorological data than for the 

unadjusted data used by NJDEP in its 

AERMOD modeling, which tends to 

corroborate the EPA adjustments to the 

meteorological data. As shown in 

NJDEP’s trajectory analysis for the 

Columbia monitor (NJDEP, March 4, 

2011) and further documented in the 

final rule Modeling TSD, AERMOD 

modeling based on the unadjusted data 

used by NJDEP exhibits a tendency to 

underestimate ambient concentrations 

as compared to the Columbia monitored 

data. Although these analyses lend some 

credence to the appropriateness of the 

EPA meteorological data adjustments, 

we believe that the adjustments are fully 

justified based on current EPA 

meteorological monitoring guidance as 

well as technical considerations, in 

relation to the approximately 100 meter 

difference between the base elevation of 

the meteorological tower/SODAR and 

the base elevation of the Portland stacks 

as documented in more detail in the 

EPA final rule Modeling TSD. 

Regarding the fact that the maximum 

99th percentile 1-hour SO2 modeled 

design value based on the EPA analysis 

including adjustments to the 

meteorological data was about 40 

percent lower than the maximum 99th 

percentile design value based on the 

NJDEP AERMOD modeling (1,402 ug/m3

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

EPA-modeled results are in fact higher 

than the NJDEP results across most of 

the final modeled domain. More 

specifically, the EPA modeled results 

are higher than the NJDEP results for 

about 96 percent of the modeled 

receptors in the final 100-meter receptor 

grid, and the average difference across 

all receptors was about 44 percent 

higher based on the EPA modeling. 

Based on this review of comments 

submitted regarding the EPA 

adjustments to the Portland 

meteorological data and in light of 

additional evidence supporting the 

appropriateness of the adjustments 

based on model-to-monitor comparisons 

for the Columbia, New Jersey, ambient 

monitor, no changes relative to the 

proposal have been made to the 

meteorological data used in the EPA 

AERMOD modeling in support of this 

final action. 

Comment: A few commenters raised 

concerns regarding the fact that the EPA 

AERMOD modeling relied upon a single 

year of site-specific meteorological data. 

One commenter suggested that a more 

conservative estimate of the modeled 

design value used compensated for this, 

such as the highest second-highest 

concentration rather than the 99th 

percentile of the annual distribution of 

the daily maximum 1-hour values. 

Similarly, another commenter suggested 

use of the highest possible 

concentration as being the most 

conservative value. 

Response: These comments regarding 

the limitations in the amount of 

meteorological data used in support of 

the proposed rule relate to the issue of 

whether the Portland emissions may 

interfere with maintenance of the 

NAAQS due to variability of 

meteorological conditions.15 Although 

we are not able to explicitly account for 

the impact of year-to-year variability of 

meteorology on downwind modeled 

concentrations, the form of the 1-hour 

SO2 NAAQS based on the 99th 

percentile of the annual distribution of 

daily maximum 1-hour values, averaged 

across 3 years for monitoring data, is 

recognized as a more stable metric of 

ambient air quality that is less sensitive 

to meteorological variability than a 

deterministic standard that would be 

based on allowing one exceedance per 

year. For a deterministic standard, the 

inclusion of additional years of 

meteorological data can only increase 

the modeled design value or leave it 

unchanged, since the design value is the 

highest of the second-highest values 

across each of the individual years 

modeled. In contrast, the inclusion of 

additional years of meteorological data 

for a probabilistic standard such as the 

1-hour SO2 NAAQS may increase or 

decrease the modeled design value since 

it is averaged across the number of years 

modeled at each modeled receptor. 

To further illustrate this point, the 

EPA performed an analysis of impacts 

from Portland based on 5 years of 

meteorological data from the Allentown 

National Weather Service (NWS) station 

for the period 2006 through 2010. This 

analysis shows that the range of 

variability between the individual year 

with the lowest modeled design value 

and the 5-year average modeled design 

value is about 6 percent. For 

comparison, using the same 5 years of 

meteorology data, the range of 

variability across the 5 years for a 

deterministic 1-hour standard was about 

35 percent for the first highest 1-hour 

values and about 17 percent for the 

highest second-highest 1-hour values. 

More details regarding these analyses 

are provided in the final rule Modeling 

TSD. 

We also note that variability in 

relation to interference with 

maintenance also encompasses 

variability in emissions. As noted above, 

the modeling conducted to determine 

the proposed remedy for Portland was 

based on maximum allowable 

emissions. Since these are the highest 

emissions that are allowed to be emitted 

by the facility, higher concentrations 

could not be expected to occur in New 

Jersey due to the variability of emissions 

from Portland. Furthermore, analysis of 

continuous emissions monitoring 

systems (CEMS) data for Portland 

indicates a much larger range of 

potential variability associated with 

emissions than was found for 

meteorological variability based on the 

analysis summarized above. 

Regarding variability in relation to 

emissions from other sources of SO2 that 

might overlap with impacts from 

Portland, we believe that we have 

adequately addressed this aspect of 

variability associated with emissions 

from existing sources through the 

inclusion of a relatively conservative 

monitored background concentration in 

the cumulative modeling analysis, as 

discussed in more below in section 

IV.B.4. Furthermore, background 

ambient concentrations of SO2 due to 

existing sources are likely to decline 

from recent and current levels over the 

next several years in association with 

the development and promulgation of 

SIPs for the 1-hour SO2 NAAQS as well 

as the recent finalization of the Cross 

State Air Pollution Rule (CSAPR), also 

known as the Transport Rule. We also 

note that potential variability, more 

specifically increases, in emissions from 

new or modified sources would be 

addressed through the new source 

review (NSR) and prevention of 

significant deterioration (PSD) 

permitting process associated with 

implementation of the 1-hour SO2

NAAQS. 

Based on these considerations and 

supporting analyses using 5 years of 

NWS meteorological data, the EPA 

believes that the modeled design value 

based on the form of the 1-hour SO2

NAAQS is the appropriate metric for 

use in this final rule and that the 

proposed remedy will be adequate to 

address Portland’s significant 

contribution to nonattainment and 

interference with maintenance of the 1- 

hour SO2 NAAQS in New Jersey. 


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16See ‘‘Summary of 1–Hour SO2 Monitoring Data 

from the Columbia Monitor in Warren County, New 

Jersey’’ TSD available in the docket, available in 

Docket ID EPA–HQ–OAR–2011–0081–0005. 

17The NJDEP analysis also includes CEMS data 

from the nearby Martins Creek power plant which 

shows little or no SO2 emissions from Martins 

Creek on the exceedance days examined. 

3. Emissions and Source Characteristics 

Comment: GenOn commented that 

EPA’s dispersion modeling used 

outdated stack parameters for units 1, 2, 

and 5 and submitted a list of revised 

parameters that it states should be used 

in the modeling. 

Response: The EPA updated the stack 

parameters used in the final rule 

dispersion modeling, based on the 

submitted parameters from GenOn. The 

parameters include the stack heights, 

exit temperatures, exit velocities, and 

stack diameters. These updated stack 

parameters had a negligible effect on the 

modeled concentrations. See section 

IV.A for a table of the stack parameters 

used in the final rule modeling. 

Comment: GenOn commented that 

interim and final SO2 emissions limits 

should only be set for Portland units 1 

and 2. 

Response: The EPA agrees that 

interim and final SO2 emissions are only 

needed for Portland units 1 and 2. 

There were no comments supporting 

emissions limits for the smaller sources 

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

the final rule. In fact, in both the 

original section 126 petition modeling 

and additional modeling submitted as 

comments on the proposal, NJDEP only 

included emissions from Portland units 

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

setting emissions limits for units 1 and 

2 only. 

4. Identification of Background 

Concentrations 

As noted above in the summary of the 

EPA modeling for the proposed rule, 

and explained in more detail in the 

proposed rule Air Quality Modeling 

TSD, the EPA used background 

concentrations that varied by season 

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

average of the 99th percentile of the 

distribution of hourly SO2

concentrations from the Chester, New 

Jersey, ambient monitor, located about 

34 kilometers southeast of Portland, 

which represents the high end of the 

distribution of monitored background 

concentrations in the area. 

Comment: GenOn submitted 

comments suggesting that the 

background concentrations used in the 

EPA modeling for the proposed rule 

based on the Chester, New Jersey, 

monitor were too high and likely 

included impacts from Portland 

emissions. GenOn also submitted 

revised background concentrations that 

were adjusted to remove hours for 

which Portland was potentially 

influencing the Chester, New Jersey, 

monitor, although GenOn did not 

provide any details regarding the 

methodology used for adjusting the 

monitored concentrations. 

Response: As noted above in relation 

to comments on the meteorological data, 

incorporating background 

concentrations based on 3 years of 

monitoring data incorporates some 

elements of meteorological variability 

into the cumulative modeling 

demonstration, which further mitigates 

potential concerns regarding reliance on 

a single year of meteorological data in 

the dispersion modeling. Also, as 

demonstrated by NJDEP’s trajectory 

analysis (NJDEP, July 30, 2010), we 

agree that it is likely that SO2 impacts 

from Portland contributed to some of 

the high monitored concentrations at 

the Chester, New Jersey, monitor used to 

represent the background 

concentrations. Although use of the 

99th percentile values by season and 

hour-of-day from the Chester monitor 

excluded some of the peak hourly SO2

concentrations, the background 

concentrations are still likely to be 

somewhat conservative (high), but the 

EPA believes that this conservatism is 

appropriate in order to account for both 

meteorological variability that otherwise 

could not be explicitly accounted for, 

and low background levels from other 

sources that may contribute to ambient 

SO2 levels in New Jersey. Furthermore, 

the differences between the background 

concentrations used in the EPA 

modeling analysis and the background 

concentrations submitted by GenOn 

were less than about 5 parts per billion 

(ppb) in most cases, and would have a 

negligible impact of about 0.5 percent 

on the remedy necessary to eliminate 

Portland’s significant contribution to 

nonattainment and interference with 

maintenance of the 1-hour SO2 NAAQS 

in New Jersey. 

5. Columbia Monitor Data and Analyses 

As noted in the proposal, the 

Columbia air quality monitor in Warren 

County, New Jersey, is located 

approximately 1.2 miles (about 2 

kilometers) northeast of Portland. The 

Columbia monitor has recorded 

concentrations over the 75 ppb 1-hour 

SO2 NAAQS.16 See 76 FR 19662. Since 

the monitor began operation on 

September 23, 2010, it has recorded 

numerous exceedances of the 1-hour 

SO2 NAAQS. We noted in the proposal 

that exceedances of the NAAQS 

occurred when prevailing winds in the 

area came from the direction of 

Portland, NJDEP submitted a document 

dated March 4, 2011 titled, ‘‘Analysis of 

the Sulfur Dioxide Measurements from 

the Columbia Lake NJ Monitor which 

can be found in the docket, (See Docket 

ID EPA–HQ–OAR–2011–0081–0019). 

This document used wind trajectory 

analyses to find that Portland’s units 1 

and 2 were the likely cause of each high 

SO2 episode at the monitor. We found 

these analyses to be consistent with our 

finding and modeling which predicts 

exceedances of the 1-hour SO2 NAAQS 

in the vicinity of the Columbia monitor. 

Comment: NJDEP submitted new SO2

ambient data collected at the Columbia 

monitoring station located in Warren 

County, New Jersey. The monitor began 

collecting data on September 23, 2010, 

and measured exceedances of the 1-hour 

SO2 NAAQS on 9 days through 

February 17, 2011. The NJDEP 

submitted a trajectory analysis which 

attempts to track the SO2 emissions 

from Portland on days when 

exceedances were measured at the 

Columbia monitor. The NJDEP also 

submitted a new modeling analysis 

which attempted to model the impact of 

emissions from Portland at the 

Columbia monitor, using recent SO2

CEMS emissions data from Portland and 

the Columbia ambient monitoring data. 

The NJDEP concludes that the 

monitoring data, trajectory analysis, and 

the modeling analysis support the EPA’s 

proposed finding that Portland 

significantly contributes to 

nonattainment in New Jersey and is also 

consistent with the results of NJDEP’s 

and the EPA’s modeling analyses, 

showing a good correlation between the 

modeling analyses and monitoring data. 

Response: The EPA agrees with many 

aspects of the analysis submitted by 

NJDEP. We agree that the trajectory 

analysis of the recent Columbia 

monitoring data supports the conclusion 

that the exceedances are primarily 

caused by emissions from Portland. The 

analysis shows that on the days 

examined, the winds are blowing from 

Portland towards the Columbia monitor, 

and the available CEMS data show large 

SO2 emissions from Portland.17

The EPA also agrees that the modeling 

analysis submitted by NJDEP indicates 

good performance for AERMOD in 

representing the modeled 

concentrations at the Columbia monitor 

on the exceedance days in 2010. 

However, interpretation of the analysis 

is complicated by the fact that 

concurrent site-specific meteorology is 

not available during 2010 or 2011. The 


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18When the report was submitted, there were 9 

days that exceeded the 1-hour SO2 NAAQS, as of 

February 17, 2011. More recent data (downloaded 

from the NJDEP Web site at http:// 

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

have been 22 additional 1-hour SO2 exceedance 

days at the Columbia monitor between February 18 

and August 20, 2011. 

19For completeness, the EPA included emissions 

from Portland unit 5 in the final rule dispersion 

modeling (but did not propose or finalize a revised 

emissions limit for unit 5). The unit 5 emissions 

were included in the analysis to verify that they did 

not impact the calculation of the final emissions 

limit. Due to our understanding that the other 

emissions sources (units 3, 4, and an auxiliary 

boiler) at Portland have negligible or zero SO2

emissions, the EPA did not include those sources 

in the final rule modeling. 

modeling analysis was therefore 

conducted with the 1993–1994 sitespecific meteorology used for the 

proposed rule modeling which as noted 

above the EPA found to be a reasonable 

assumption. NJDEP used three different 

emissions assumptions in the modeling 

analysis. It concluded that AERMOD 

modeling based on allowable emissions 

gives the best agreement with monitored 

concentrations at Columbia. Since the 

CEMS data show that Portland was 

operating well below allowable 

emissions during many of these 

exceedances, NJDEP contends that this 

implies that AERMOD is 

underestimating the modeled 

concentrations at the Columbia monitor. 

The EPA disagrees with this conclusion. 

As shown above in our response to 

comments regarding the use of 

CALPUFF versus AERMOD, we believe 

that the manner in which NJDEP ran 

AERMOD for this analysis contributed 

to the model underestimating 

concentrations in the vicinity of the 

Columbia monitor. Specifically, the use 

of the Portland site-specific 

meteorological data without the 

adjustments incorporated in the EPA 

AERMOD modeling analysis contributes 

to underestimating impacts in the 

vicinity of the Columbia monitor. 

Further details regarding the EPA 

analysis of the Columbia monitor are 

contained in the final rule Modeling 

TSD. 

C. Modeling and Other Analyses To 

Determine Significant Contribution for 

the Final Rule 

The EPA continues to believe that the 

AERMOD modeling analysis provides a 

more appropriate technical basis for this 

petition than the modeling submitted 

based on the CALPUFF model, as 

explained in this notice and in more 

detail in the final rule Modeling TSD. 

The EPA’s review of the NJDEP 

AERMOD analysis supports a finding 

that SO2 emissions contribute 

significantly to nonattainment and 

interfere with maintenance of the 1-hour 

SO2 NAAQS. However, we noted some 

technical concerns with the NJDEP 

modeling which may affect the degree to 

which emissions need to be reduced to 

be able to meet the 1-hour SO2 NAAQS 

in New Jersey. Therefore, the EPA 

conducted an independent modeling 

assessment to confirm the finding of 

significant contribution and to help 

determine the necessary and 

appropriate emission limits for Portland 

units 1 and 2 (the EPA modeling 

analysis is described in more detail in 

section V and the final rule Modeling 

TSD). 

As part of the original petition, NJDEP 

also submitted a trajectory analysis of 

two particular episodes showing that 

elevated 1-hour SO2 measurements at 

the Chester monitor in Morris County, 

New Jersey, were caused primarily by 

Portland. As described earlier, NJDEP 

also submitted an analysis (dated March 

4, 2011) of recent SO2 monitor data at 

the Columbia monitor in New Jersey, 

which includes a trajectory analysis for 

exceedance days 18 at the Columbia 

monitor and a modeling analysis of the 

impact of Portland SO2 emissions on the 

Columbia monitor. 

For the reasons discussed above, the 

EPA believes that the AERMOD 

analysis, submitted by NJDEP and 

modeled by the EPA, provides a 

reasonable basis for making a finding 

that emissions from Portland 

significantly contribute to 

nonattainment and interfere with 

maintenance in New Jersey and for 

quantifying the SO2 emissions 

reductions needed to establish the final 

remedy emission limits. In addition, the 

trajectory analysis, monitoring data 

analysis, and the air quality monitoring 

data collected from the Columbia 

monitor in New Jersey are consistent 

with our finding of significant 

contribution to nonattainment and 

interference with maintenance of the 1- 

hour SO2 NAAQS in New Jersey. Our 

analysis for determining the final 

emission limits are presented in the 

next section. 

V. Establishing the Emission Limits 

Necessary for the Remedy 

In the proposed rule, the EPA 

conducted analyses to determine the 

emissions limits that would be 

necessary to permit Portland’s 

continued operation under our section 

126 finding. This section summarizes 

these analyses and discusses the 

comments and responses on the 

analyses, and our use of the analyses to 

establish the final remedy. It also 

discusses the selection of the 

appropriate time frame for the final 

remedy, as well as other issues that 

commenters raised concerning the final 

remedy. Continued operation of a major 

existing source subject to a section 126 

finding is permitted only if the source 

complies with emission limits and 

compliance schedules established by 

the EPA to bring about compliance with 

the requirements in sections 

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

as practicable, but in no case later than 

3 years after the effective date of the 

finding. Thus, to determine the 

appropriate remedy, the EPA must 

quantify the reductions necessary to 

eliminate Portland’s significant 

contribution to nonattainment and 

interference with maintenance of the 1- 

hour SO2 NAAQS in New Jersey. 

A. Quantification of Necessary 

Emissions Reductions 

To calculate emissions reductions 

necessary to eliminate Portland’s 

significant contribution to 

nonattainment and interference with 

maintenance of the 1-hour SO2 NAAQS 

in New Jersey for the proposed rule 

remedy, the EPA completed AERMOD 

modeling of Portland units 1, 2, and 5 

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

detailed in section IV, the EPA 

continues to believe that AERMOD is 

the appropriate model to make a finding 

that emissions from Portland contribute 

significantly to nonattainment or 

interfere with maintenance, and to 

calculate the appropriate emission 

limits for Portland units 1 and 2. In 

applying AERMOD to establish the 

remedy for the proposed rule, the EPA 

made several adjustments to the 

meteorological inputs (compared to the 

NJDEP modeling) which it determined 

to be appropriate. As described in 

Section IV above, the EPA continues to 

believe the meteorological data and 

model setup modifications are 

appropriate and we are continuing to 

use the same modifications for the final 

rule AERMOD modeling. The EPA 

remedy modeling also includes 

background concentrations that vary by 

season and hour of day based on the 

99th percentile ambient data from the 

Chester, New Jersey SO2 monitor. The 

EPA believes the background 

concentration methodology to be 

reasonable and appropriately 

conservative, and is using this 

methodology in the final rule modeling. 

The EPA AERMOD analysis used 

allowable SO2 emissions rates for 

Portland units 1, 2, and 5 long with 

stack parameters submitted by GenOn 

shown in Table V.A–1: 


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TABLE V.A–1 

Source 

Permitted 

emission rate 

(g/s) 

Stack height 

(m) 

Stack 

diameter 

(m) 

Stack 

temperature 

(K) 

Stack velocity 

(m/s) 

Portland Coal Unit 1 ...................................................................... 733 .3 121 .31 3 .15 418 .1 32 .86 

Portland Coal Unit 2 ...................................................................... 1,121 .0 121 .82 3 .84 406 .0 34 .19 

Portland Turbine 5 ......................................................................... 12 .0 42 .67 6 .10 821 .5 36 .60 

The location of maximum SO2

concentration impacts from Portland 

emissions were found to occur in a 

similar location as in the proposal 

modeling. Therefore, the same 100 

meter receptor fine grid modeling 

domains were used in the final rule 

modeling. The controlling modeled 

design value impact from Portland in 

New Jersey based on the EPA’s final rule 

modeling was 855.4 ug/m3 which is the 

basis for quantifying the necessary 

emission reductions. This included a 

contribution from Portland units 1 and 

2 of 815.0 ug/m3, a monitored 

background concentration of 39.3 ug/ 

m3, plus a contribution of 1.1 ug/m3

from Portland unit 5. See the final rule 

Modeling TSD for more information on 

the AERMOD setup and modeling 

results. 

B. Summary of the EPA’s Proposed 

Remedy Analysis 

In the proposed rule, the EPA 

calculated the emissions reduction 

needed to eliminate Portland’s 

significant contribution to 

nonattainment based on the maximum 

modeled design value concentration in 

New Jersey. If the modeled 

concentration from Portland plus 

background is reduced to a level that is 

below the 1-hour SO2 NAAQS, then all 

modeled violations of the NAAQS in 

New Jersey are eliminated. For the 

proposed rule, the emissions reduction 

needed to eliminate all modeled 

violations in New Jersey was used to 

define the elimination of significant 

contribution to nonattainment and 

interference with maintenance. 

Based on the EPA modeling results, 

the EPA proposed that an 81 percent 

reduction in allowable SO2 emissions 

from Portland units 1 and 2 was needed 

to reduce the Portland contribution plus 

background to below the NAAQS. 

The EPA also evaluated the modeling 

results to determine if an emission limit 

could be set that combined the total 

emissions at units 1 and 2. In the 

proposal, the EPA determined that there 

are many different combinations of 

emissions limits for units 1 and 2 that 

could eliminate violations of the SO2

NAAQS in New Jersey. However, the 

stack parameters (exit velocity and stack 

diameter) of units 1 and 2 are slightly 

different, which causes the maximum 

downwind impacts from each unit to 

occur at slightly different locations and 

at different times. In addition, the EPA 

proposed that Portland can comply with 

the emissions limits in several different 

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

operation of one or both units, and/or 

installation of post-combustion 

controls). Given all of the possible 

compliance options and interactions 

between the plumes from units 1 and 2, 

we were not able to effectively examine 

multiple compliance strategies for the 

proposal. Therefore, we proposed 

emissions limits based on an 81 percent 

reduction in allowable emissions at both 

units 1 and 2. This led to a proposed 

SO2 emissions limit for unit 1 of 

1,105 lb/hr (allowable emission rate of 

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

reduction]) and a proposed SO2

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

(allowable emission rate of 8,900 lb/ 

hr*0.19 [an 81 percent reduction]). 

C. Summary of Comments and 

Responses Regarding the Remedy 

Modeling 

Comment: One commenter noted that 

various methods to comply with an 

emissions limit (such as installation of 

a control device) may affect stack 

parameters such as exit temperature and 

exit velocity, which may affect the 

dispersion of emissions and downwind 

concentrations. The emissions limit was 

calculated using a simple ‘‘rollback’’ 

calculation which assumes that 

concentrations will be reduced in 

proportion to emissions. 

Response: We agree with commenters 

that it is likely (though unknown at this 

time) that the strategy to comply with 

the final rule emissions limits will cause 

changes in stack parameters for units 1 

and 2. In addition, we agree that this 

should be accounted for, but in the 

proposed rule, the EPA did not take into 

account the effect of operating load on 

stack parameters. The exit velocity is 

reduced when the plant is operating 

below full load. Based on information 

submitted by GenOn as part of its 

comments, the exit velocity could be 

reduced by as much as 50 percent when 

operating at or below 50 percent 

operating load (defined as percent of 

maximum heat input for each unit). To 

account for potential reduced plume 

rise and dispersion due to reduced load 

or control devices, the EPA ran several 

AERMOD sensitivity runs. We 

simulated the proposed remedy 

emissions rate for units 1 and 2 (1,105 

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

2 limit) at 100 percent load, which 

resulted in a maximum design value 

concentration of 193.7 ug/m3 (which is 

below the 196.2 ug/m3 1-hour SO2

NAAQS). We then ran AERMOD with 

the same emissions rates, but at reduced 

loads of 75 percent, 50 percent, and 25 

percent. The exit velocity for the 

reduced load runs was reduced based 

on information submitted by GenOn. 

The reduced exit velocity led to reduced 

plume rise and dispersion and higher 

downwind maximum concentration 

impacts. The maximum concentrations 

at 75 percent, 50 percent, and 25 

percent load were 227.3 ug/m3, 

264.3 ug/m3, and 300.3 ug/m3, 

respectively. These impacts all exceed 

the 1-hour SO2 NAAQS. See the final 

rule Modeling TSD for more details on 

the sensitivity analysis. 

In the final rule, the EPA will ensure 

that the NAAQS is protected (and 

therefore that significant contribution to 

nonattainment and interference with 

maintenance is eliminated) in two ways. 

First, in addition to the lb/hr emissions 

limit for each unit, we are finalizing a 

lb/mmBtu emissions limit to address 

modeled exceedances at reduced load. 

The lb/mmBtu limit is determined 

based on an equivalent lb/hr limit at 100 

percent load for each unit. Meeting a 

lb/mmBtu will therefore have the effect 

of lowering the resulting lb/hr emissions 

rates at reduced loads. For example, 

emissions will be 25 percent lower than 

the lb/hr limit when operating at 75 

percent load. This in turn will ensure 

that the NAAQS is protected at reduced 

loads. Modeling of emissions rates that 

are constrained by a lb/mmBtu limit 

shows that concentration impacts at 

reduced loads are always less than 

maximum concentrations at 100 percent 

load. See section VI for more details on 

the calculation of lb/mmBtu limits. 

The second way that we are ensuring 

that the remedy will be protective of the 


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NAAQS is by requiring GenOn, as part 

of the increments of progress 

requirements, to submit a modeling 

protocol and dispersion modeling 

analysis of its final compliance strategy. 

GenOn will be required to show that the 

final remedy, as actually implemented, 

including any changes to stack 

parameters that may have resulted from 

steps taken to meet the limits, will be 

protective of the NAAQS and therefore 

eliminate significant contribution to 

nonattainment and interference with 

maintenance in New Jersey. See section 

VI for more details on the increments of 

progress requirements and schedules. 

Comment: One commenter (GenOn) 

urged the EPA to set a combined 

emission limit for units 1 and 2 for both 

the interim limits and the final limits. 

GenOn submitted a modeling analysis 

which examined the effects of various 

permutations of the proposed interim 

limit. The commenter ran an AERMOD 

‘‘reference run’’ with the proposed 

interim limit of a 50 percent reduction 

in allowable emissions at both units 1 

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

then ran two additional ‘‘sensitivity’’ 

runs; one with unit 1 running at its full 

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

at zero emissions and a third model run 

with unit 1 at zero emissions and unit 

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

a 50 percent reduction from allowables). 

The results show that maximum design 

value concentrations from the 

sensitivity runs are less than the 

reference run. Therefore, GenOn argues 

that a combined limit will provide for 

air quality impacts that are equivalent to 

or better than the proposed individual 

unit limits. 

Response: The EPA agrees that the 

operating scenarios that were modeled 

show that a combined limit can lead to 

air quality impacts that are equivalent to 

or better than individual limits. 

However, that is not true in all cases, 

particularly for the final emissions 

limits. For example, the EPA modeled 

the combined proposed remedy 

emission limits (2,796 lb/hr) 

individually at unit 1 and unit 2. 

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

no emissions from unit 1) was 

protective of the NAAQS (design value 

of 189.1 ug/m3 at 100 percent load). 

However, emitting 2,796 lb/hr from unit 

1 (with no emissions from unit 2) led to 

modeled violations at 100 percent load 

(225.2 ug/m3). Due to the slightly 

different stack parameters of each unit, 

more emissions can be emitted through 

unit 2 without leading to a violation, 

compared to unit 1. Therefore, a 

combined emissions limit that is 

emitted completely from unit 1 is not 

protective of the NAAQS. 

For this reason, based on the 

modeling analysis conducted by the 

EPA, we are not able to set a combined 

limit for the final remedy. (We discuss 

the separate question of a combined 

limit for the interim limit in section 

VII.) The final rule contains individual 

final limits that are specific to units 1 

and 2. It is also clear from this simple 

analysis that any combined limit that 

would still be protective of the NAAQS 

across the full range of operating 

scenarios for units 1 and 2 and would 

necessarily be more restrictive than the 

81 percent reduction on each of units 1 

and 2. There are some combinations of 

emissions from units 1 and 2 which will 

be protective of the NAAQS and some 

that will not. The EPA is not able to 

model all possible combinations and 

then set a combined limit which is 

protective of the NAAQS in all cases. 

Should GenOn wish to have a higher 

limit at one of the units, in exchange for 

a lower limit at the other, or seek a 

combined limit that is protective of the 

NAAQS in all cases, there is an 

opportunity to petition the EPA for 

additional rulemaking to adopt 

alternative emissions limits, although 

we note that such rulemaking would 

require a notice and comment process. 

Further details are contained in section 

VII later. 

Comment: NJDEP recommended that 

the final rule should require a 95 

percent reduction to be phased in as 

soon as possible, in a time period 

shorter than 3 years. In support of these 

recommendations, NJDEP also noted 

that power plants in New Jersey will be 

required to achieve an emission rate of 

0.150 lb/mmBtu by December 15, 2012, 

and that two facilities in New Jersey are 

already meeting this level. 

Response: We note that section 126 

does not give the Administrator 

discretion to establish emission 

limitations beyond the emission 

reduction necessary to eliminate 

Portland’s significant contribution to 

nonattainment and interference with 

maintenance of the 1-hour SO2 NAAQS 

in New Jersey. Sections IV and V 

discuss comments on the appropriate air 

quality models, and modeling 

assumptions, data and results, and their 

effect on the choice of the specific limits 

for Portland units 1 and 2. 

Comment: The EPA received 

numerous comments generally noting 

the adverse health and environmental 

effects of SO2 emissions and urging 

significant emission reductions of SO2

from Portland, providing examples of 

the beneficial effects that would occur 

by reducing SO2 emissions and, for 

these reasons, urging significant 

reductions. 

Response: The EPA recognizes that 

there are potentially adverse health 

impacts from breathing SO2 particularly 

for people who have respiratory 

illnesses, heart, or lung disease, older 

adults and children, and that SO2 is a 

precursor to acid rain formation and 

fine sulfate particle formation that can 

also pose adverse health effects. These 

effects are taken into account in 

establishing the SO2 NAAQS, and need 

not be revisited in this action. 

Therefore, this rule is directed at 

eliminating Portland’s significant 

contribution to nonattainment and 

interference with maintenance of the 1- 

hour SO2 NAAQS in the affected areas 

of New Jersey. Elsewhere in this section, 

we explain how we are using modeling 

to assure that we are establishing a 

remedy that eliminates significant 

contribution and results in emissions 

limits that are protective of the NAAQS. 

D. The Final Remedy Limit 

The EPA modeled a scenario using 

allowable emissions from Portland with 

1 year of site-specific meteorological 

data. The maximum modeled 1-hour 

SO2 design value in New Jersey was 

855.4 ug/m3. This included a 

contribution from Portland units 1 and 

2 of 815.0 ug/m3, a monitored 

background concentration of 39.3 ug/ 

m3, plus a contribution of 1.1 ug/m3

from Portland unit 5. The final 

compliance emission limits must be set 

at a level that eliminates all violations 

of the 1-hour SO2 NAAQS in New 

Jersey. Therefore, all modeled receptors 

must be below the level of the NAAQS 

(196.2 ug/m3). The contribution from 

Portland can be reduced by reducing the 

SO2 emissions from the Portland stacks, 

but the background concentrations 

cannot be reduced (they are held 

constant). Since the contribution from 

unit 5 is only 0.1 percent of the total 

contribution, a reduction in the unit 5 

contribution would provide a negligible 

reduction to the modeled design value. 

Therefore, it can be assumed that unit 

5 emissions do not need to be reduced, 

and the unit 5 concentration is added to 

the irreducible background value. The 

final compliance emission limit for the 

final rule is calculated as follows: 

((Total modeled concentration)— 

(NAAQS—background))/(total modeled 

concentration).This formula will 

produce the percentage by which 

Portland must reduce its emissions from 

allowables in order to achieve 

compliance with the NAAQS in New 

Jersey. Thus, the actual calculation of 

Portland’s contribution to 

nonattainment in New Jersey is 

((814.9)¥(196.2–40.4))/814.9, where 

40.4 represents the contributions from 


emcdonald on DSK5VPTVN1PROD with RULES3
69066 Federal Register / Vol. 76, No. 215 / Monday, November 7, 2011 / Rules and Regulations 

20Heat input capacities were from the Title V 

Permit No. 48–0006. 

monitored background and unit 5. This 

results in a reduction of 80.9 percent of 

allowable emissions from Portland units 

1 and 2, which we round to 81 percent. 

In this calculation, only the contribution 

from units 1 and 2 is included in the 

total modeled contribution. 

Therefore, we are finalizing an 

emissions limit based on an 81 percent 

reduction in allowable emissions at both 

units 1 and 2. This leads to a final SO2

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

(allowable emissions rate of 5,820 lb/ 

hr*0.19 [an 81 percent reduction]) and 

a final SO2 emissions limit for unit 2 of 

1,691 lb/hr (allowable emissions rate of 

8900 lb/hr*0.19 [an 81 percent 

reduction]), which are the same as the 

proposed limits. 

As discussed earlier in response to a 

comment, to account for operation at 

less than 100 percent load and/or 

changes in stack parameters, the EPA is 

also setting a lb/mmBtu emissions limit 

for units 1 and 2 in the final remedy. To 

determine the level, we calculated the 

lb/mmBtu value as the emissions rate 

that equates to the lb/hr limits for unit 

1 and 2 when operating at full load. 

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

calculated as the lb/hour limit of 1,105 

lb/hour divided by the heat input 

capacity of 1,657.2 mmBtu/hr, which 

equates to 0.67 lb/mmBtu. For unit 2, 

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

divided by the heat input capacity 20 of 

2511.6 mmBtu/hr also results in 0.67 lb/ 

mmBtu. 

Compliance with the 0.67 lb/mmBtu 

limitation is determined on a 30 boiler 

operating day rolling average basis. A 

‘‘rolling’’ average means that a new 30- 

day average can be determined on any 

day of operation. Similar to the 

proposed Mercury and Air Toxics 

Standards (MATS) rule, the EPA 

clarifies that only the hours on ‘‘boiler 

operating days’’ are included in the 

averaging, and the 30-day averaging 

‘‘zero values’’ from non-operating days 

are not included. We use the same 

definition of ‘‘boiler operating day’’ as 

for the proposed MATS; that is, a 24- 

hour period between midnight and the 

following midnight during which any 

fuel is combusted in the units. The EPA 

recognizes that a 30-day averaging 

period for the lb/mmBtu limitation 

incorporates some variability, and that 

there will be hourly periods that exceed 

the 30-day average. 

The EPA does not believe that these 

higher hourly values would lead to 

exceedances of the NAAQS for a 

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

limit will ensure emissions rates at or 

near 0.67 lb/mmBtu. Second, at 

significantly lower loads, Portland units 

1 and 2 could emit at emissions rates 

somewhat greater than 0.67 lb/mmBtu 

and still meet the NAAQS. Accordingly, 

some variability within the 30-day 

averaging is accommodated, although 

the EPA expects the variability will be 

relatively small. For example, during 

2010 the emission rate for Portland 

varied by only about 15 percent. 

As a final check on the remedy, EPA 

ran AERMOD again with the above 

emissions limits on the Portland Plant’s 

units 1 and 2 (and current allowable 

emissions from unit 5). At these 

emissions levels, all receptors in New 

Jersey had concentrations below the 1- 

hour SO2 NAAQS. The maximum 

modeled 99th percentile (4th-highest) 

daily maximum 1-hour SO2

concentration was 193.7 ug/m 3

(including a monitored background 

concentration of 39.3 ug/m 3). 

E. Compliance Schedule for the Final 

Remedy Limit 

Section 126(c) initially makes it 

unlawful for any major existing source 

to operate more than 3 months after a 

section 126 finding has been made with 

respect to it; yet also gives the 

Administrator authority to permit 

continued operation under certain 

conditions. Specifically, the statute 

provides that the Administrator ‘‘may 

permit the continued operation’’ of such 

a source beyond the end of the 3 month 

period ‘‘if such source complies with 

such emission limitations and 

compliance schedules (including 

increments of progress) as may be 

provided by the Administrator to bring 

about compliance with the requirements 

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

this title or this section as expeditiously 

as practicable, but in no case later than 

3 years after the date of such finding.’’ 

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

Section 126, however, does not give 

the Administrator unlimited discretion 

when establishing emission limitations 

and compliance schedules. Instead, the 

statute provides that the emission 

limitations and compliance schedules 

must bring about compliance with the 

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

the Act ‘‘as expeditiously as 

practicable’’ but in no case later than 3 

years from the date of the finding. The 

use of the phrase ‘‘as expeditiously as 

practicable’’ allows for consideration of 

the time needed to implement a 

compliance option in setting a 

compliance schedule. However, the 

length of time needed to implement any 

given compliance option depends on 

the particular compliance option to be 

implemented. Furthermore, the EPA 

recognizes that in some instances a 

source may choose to cease operation as 

its method of compliance. In the 

proposed rule, the EPA requested 

comment on the meaning of as 

‘‘expeditious as practicable’’ in this 

context. 

1. Proposed Compliance Schedule 

The EPA proposed to allow continued 

operation of Portland beyond 3 months 

provided that the facility operates in 

compliance with final emission limits 

within 3 years and with interim 

emission limits and procedural 

increments of progress. In this section 

we discuss our response to comments 

on the appropriateness of a 3-year 

deadline for the final limits (See section 

VI.A. below for further discussion of 

interim limits and other increments of 

progress). 

2. Public Comments and the EPA’s 

Responses 

In the proposal, the EPA recognized 

both that the statute requires that any 

compliance schedule ensure compliance 

‘‘as expeditiously as practicable’’ and 

also that, while the statute directs the 

EPA to establish emission limits and 

compliance schedules, it does not 

foreclose the EPA from allowing the 

source to select a compliance option. In 

the proposal, the EPA noted its desire to 

seek a balance between the statutory 

requirement of compliance ‘‘as 

expeditiously as practicable’’ and the 

goal of ensuring that the regulation does 

not unnecessarily limit the options 

available to the source to achieve 

compliance within the statutorily 

mandated time period. The EPA did not 

receive any comments specifically 

challenging the EPA’s balanced 

approach to interpreting the statutory 

language. Accordingly, the EPA’s final 

remedy in this rulemaking has been 

developed consistent with these goals. 

Comment: The EPA received a general 

comment comparing the ‘‘as 

expeditiously as practicable’’ language 

in section 126 to our interpretation of 

that language in the MATS rule. The 

commenter suggests that we should 

always interpret ‘‘as expeditiously as 

practicable’’ to mean 3 years. 

Response: While the EPA is 

permitting 3 years in this case, the 

commenter’s interpretation is 

inconsistent with the language of 

section 126 because, by saying ‘‘in no 

case later than 3 years,’’ the statute 

contemplates that compliance might be 

required sooner than 3 years. 

The EPA also received a number of 

specific comments on technical 

feasibility issues and other issues 


emcdonald on DSK5VPTVN1PROD with RULES3
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21See B. Exner, et al., Successful NOx Reduction 

and Conversion to Powder River Basin Fuel on Wall 

Fired Boilers, Foster Wheeler (1996), available on 

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

tech_papers/files/TP_FIRSYS_96_01.pdf, and 

available at Docket ID EPA–HQ–OAR–2011–0081; 

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

When Switching to PBR Coals, Power (November/ 

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

www.prbcoals.com/pdf/PRBCoalInformation/PRB– 

FuelHandling.pdf. and available at Docket ID EPA– 

HQ–OAR–2011–0081. 

related to the 3-year compliance period 

for the final remedy. A number of 

commenters believed that a 3-year 

period was too generous and that 

Portland units 1 and 2 should achieve 

needed emissions reductions in a 

shorter time period. Other commenters 

questioned the feasibility of meeting the 

limits within 3 years and recommended 

that the EPA should harmonize the 

requirements of this rule with those of 

other rules regulating electric generating 

units (EGUs). The following sections 

discuss EPA’s responses to the 

comments in each of these issue 

categories. 

a. Technical Feasibility 

Comment: Several commenters 

objected to the 3-year compliance 

period and recommend an abbreviated 

compliance schedule or a schedule that 

requires compliance with the final 

limits in less than a year. Some 

commenters believed that technologies 

necessary to achieve the emission 

reductions could be installed and 

operating within 1 year (for example, 

dry sorbent injection or DSI) or 2 years 

(dry scrubbing). Others cited the 

availability of very low sulfur coal, such 

as sub-bituminous coal from the Powder 

River Basin (PRB) in Wyoming, 

asserting that emission reductions could 

be achieved in a shorter time period 

than 3 years. Another commenter noted 

that the Keystone Generating Plant 

located in Pennsylvania installed a 

scrubber within 3 years, and reduced 

SO2 emissions by 98 percent. One 

commenter cited the EPA estimates of a 

24–27 month time period for dry and 

wet scrubbing, and recommended that 

we replace the 3-year requirement with 

a time period consistent with those 

estimates. Other commenters, including 

GenOn, were concerned that the 

proposed final limits could not be 

achieved within 3 years. 

Response: We believe that 3 years 

represents an expeditious schedule for 

GenOn to meet the emissions limits for 

this rule. While we are not mandating 

any particular control technology or 

approach, the EPA believes that GenOn 

would have a number of possible 

options, which may need to be used in 

combination, to evaluate for compliance 

with the rule. These options could 

include, among others: (1) Switching to 

very low sulfur coal as a number of 

facilities have undertaken as a result of 

the acid rain program and the Clean Air 

Interstate Rule, (2) switching to lower 

sulfur coal in combination with lowercapital cost technologies such as reagent 

injection of Trona or sodium 

bicarbonate, and (3) continued use of 

higher-sulfur coal in combination with 

dry scrubbing or wet scrubbing. 

While the first option, switching to 

very lower sulfur coal such as Wyoming 

Powder River Basin (PRB) coal, may be 

a possibility for Portland, the EPA notes 

that the type of sub-bituminous coal that 

would be necessary to achieve the final 

remedy would have markedly different 

fuel and handling characteristics, 

necessitating changes not only in the 

coal handling and preparation 

operations but also to the boilers. 

Publications 21 discussing examples of 

the design changes necessitated by 

switching from bituminous to PRB coal 

are included in the docket for this 

rulemaking. The EPA believes that 3 

years would be a reasonable time period 

to evaluate and accomplish all of the 

necessary operational changes. 

The EPA believes the second option is 

available; that is, switching to somewhat 

lower-sulfur coal such as Central 

Appalachia coal (CAAP) to achieve 

some of the needed reductions, with the 

remainder of the reductions achieved 

through a reagent injection system 

achieving reductions of 50–60 percent. 

For the proposed rule, the EPA 

requested comment on its view that 

such a reagent injection system could be 

built within 1 year. The EPA agrees with 

comments that observed that, in 

virtually all cases where such reagent 

injection systems have been installed, 

the facility has also included a fabric 

filter for particulate controls. 

Accordingly, the EPA agrees with 

commenters that it would take longer 

than 1 year to accomplish any 

operational changes necessary to switch 

to somewhat lower sulfur coal, to install 

and operate the reagent injection 

system, and to install a fabric filter to 

replace or supplement the current 

particulate controls. Development of a 

system that adequately controls SO2 and 

maintains acceptable levels of PM 

controls could likely not be achieved 

within a 1-year period, and most likely 

would take considerably longer. At the 

same time, the EPA disagrees with 

commenters who suggest that there are 

feasibility concerns for compliance 

within 3 years, the maximum amount of 

time provided for compliance under 

section 126. There are three steps to 

carrying out this control option: (1) 

Operational changes related to changing 

the coal supply, including blending, (2) 

construction and operation of the 

reagent injection system, and (3) 

implementation of any changes 

necessary to ensure continued 

effectiveness of particulate controls. 

However, as proposed, we believe the 

first two steps are achievable in 1 year, 

but construction and operation of a 

fabric filter is also necessary, and this 

step could take up to 2 additional years. 

The third option, under which 

Portland would install a dry or wet 

scrubber, likely would achieve a greater 

degree of control than necessary to meet 

the lb/hr and lb/mmBtu limits in this 

section 126 rule. The EPA recognizes 

that given investment decisions for the 

suite of regulations, including the 

Transport Rule, the present section 126 

rule, and the upcoming MATS rule, 

Portland may choose to install these 

controls. If this option were selected, 

the EPA continues to conclude that 

these scrubber controls could be 

installed within 3 years. (Although such 

controls have been installed in 24–27 

months, the EPA believes that it is 

reasonable to provide the full 3 years to 

permit Portland the time needed to 

evaluate its options.) We note, however, 

that in the Integrated Planning Model 

(IPM) which was used to evaluate the 

impacts of the Transport Rule, we did 

not forecast dry or wet scrubbing as the 

least-cost option for compliance for the 

Portland facility. Rather, the IPM 

predicted a switch to lower-sulfur 

bituminous coal in combination with 

reagent injection. IPM model results are 

available in the Transport Rule docket at 

EPA–HQ–OAR–2009–0491–4440 

(http://www.regulations.gov/ 

#!documentDetail;D=EPA–HQ–OAR– 

2009–0491–4440), and on the EPA’s 

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

airmarkets/progsregs/epa-ipm/ 

transport.html. 

b. Continued Operation of Facility in 

the Interim Period 

Comment: The NJDEP commented 

that if significant reductions cannot be 

made expeditiously, Portland should 

not be allowed to operate, and that the 

burden to justify any operation beyond 

90 days should be on the Portland 

facility owners and operators. 

Response: The EPA disagrees with the 

commenter’s recommendation that 

Portland be required to shut down 

pending implementation of emissions 

controls. Under section 126 of the CAA, 

the statute permits the continued 

operation if the source complies with 

emission limitations and compliance 

schedules established by the 


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

Administrator. The EPA is including 

emissions limits and compliance 

schedules in this rule sufficient to 

expeditiously eliminate Portland’s 

signification contribution. The EPA 

does not believe that the statute 

mandates that the source cease 

operation at the 90-day milestone under 

these circumstances. The statute’s 

explicit recognition that the compliance 

schedules must be ‘‘practicable’’ 

suggests that it is reasonable for the 

Administrator to permit continued 

operation consistent with such 

compliance schedules and emissions 

limitations. 

c. Harmonization With Other 

Requirements 

Comment: Some commenters urged 

the EPA to defer action on the section 

126 petition to enable the EPA to 

harmonize the schedule and 

requirements for this rule with 

requirements of other pending and final 

rules. Those commenters believed that 

harmonization with these rules, 

including the MATS rule and the 

Transport Rule, would enable GenOn 

greater opportunity for fully informed 

investment decisions that take into 

account all of the applicable regulations. 

Response: The EPA is sensitive to the 

desirability and advantages of 

harmonized regulatory requirements. 

We understand that Portland’s actions 

to address its significant contribution to 

nonattainment and interference with 

maintenance of the 1-hour SO2 NAAQS 

are occurring in relatively close 

proximity to actions it may take to 

address its contribution to 

nonattainment and interference with 

maintenance of the 1997 ozone NAAQS 

and the 1997 and 2006 p.m.2.5 NAAQS 

under the recently-finalized Transport 

Rule, as well as actions it may need to 

take to address its emissions of 

Hazardous Air Pollutants under the 

forthcoming MATS rule. We recognize 

the value for GenOn in having the 

ability to make informed investment 

decisions that optimize strategies for 

addressing these pollutants 

concurrently. 

The EPA notes that, in contrast to 

when this rule was initially proposed, 

the final requirements of the Transport 

Rule are now known. Pennsylvania is 

one of the states whose facilities are 

subject to the Transport Rule which 

establishes an emissions budget for 

Pennsylvania, allocates allowances to 

facilities in Pennsylvania, including 

Portland, and allows Portland’s owners 

to trade those allowances with other 

power plants through an allowance 

trading market. Portland allowances for 

2012 and 2014 are listed in a technical 

support document to the final Transport 

Rule located at http://epa.gov/ 

airtransport/pdfs/UnitLevelAlloc.pdf. 

There are, however, a number of 

differences between this rule addressing 

section 126 of the CAA and the 

requirements of the Transport Rule. 

First, in addressing NJDEP’s section 126 

petition related to ambient 1-hour SO2, 

the EPA must ensure that the SO2

emissions from Portland do not 

significantly contribute to 

nonattainment, or interfere with 

maintenance of the 1-hour ambient SO2

standard of 75 ppb, a relatively 

localized pollutant source-oriented, in 

New Jersey. In contrast, the Transport 

Rule addresses SO2 emissions in the 

context of downwind PM2.5 problems, a 

highly transported pollutant, in many 

states. As a result, this section 126 rule 

does not provide for emissions trading 

with other facilities, while the Transport 

Rule does allow for such trading. 

Second, the schedule for the Transport 

Rule is somewhat different from this 

rule. Under the Transport Rule, Portland 

must show for 2012 (that is the calendar 

year January through December) and 

subsequent years that it holds 

allowances sufficient to cover its annual 

emissions. These requirements for 2012 

precede the requirements for this 

section 126 rule, which requires the 

source to meet interim emissions limits 

within 1 year (early 2013) with 3-year 

requirements taking effect in early 2015. 

Notwithstanding these differences, 

which stem from the different CAA 

requirements being addressed, we 

believe that with the finalization of this 

rule, Portland has the information it 

needs to make an informed decision on 

how to comply with both rules. 

At this time, the MATS rule is not 

final. The EPA has proposed the MATS 

rule and is under a consent decree 

deadline to complete that rule by 

December 16, 2011. The proposed 

MATS rule contained proposed 

requirements for hazardous air 

pollutants, including existing sources of 

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

MATS rule does not directly regulate 

SO2 but in the proposal the EPA 

provided its assessment that the acid gas 

requirements of the proposed MATS 

would have substantial SO2 co-benefits. 

While the date of this section 126 rule 

does not exactly coincide with the date 

for the final MATS, these two rules are 

expected to take effect within a short 

time of each other. Accordingly, the 

EPA believes that GenOn will have the 

information it needs to make an 

informed decision on how to meet both 

this final rule and the MATS. 

Even if the schedules did not coincide 

so closely, the EPA does not believe it 

would be appropriate to defer action on 

NJDEP’s section 126 petition to achieve 

such harmonization. The EPA is 

required by the CAA to take action on 

NJDEP’s petition within 60 days (plus a 

6 month administrative extension 

granted in this case), and this time 

period has already passed. We could not 

delay lawfully this rulemaking by any 

significant time period to coincide with 

the date for the final MATS rule. The 

EPA also notes that full harmonization 

is limited by statutory constraints. 

While there is some flexibility within 

section 112 of the CAA to provide for 

a 4-year compliance period under 

certain circumstances, this flexibility is 

not afforded under section 126. Under 

section 126, the EPA cannot alter the 

statutory requirement that the source 

eliminate its significant contribution to 

nonattainment and interference with 

maintenance within 3 years of the 

section 126(b) finding. Notwithstanding 

these constraints, as previously noted, 

our expectation is that requirements for 

MATS, like those of the Transport Rule, 

will be known in time to allow for 

consideration of integrated strategies for 

compliance with MATS, the Transport 

Rule, and the present section 126 action. 

The Final Rule 

Based on the above considerations, 

we are retaining the 3-year compliance 

date for the final limit. Adopting a 

substantially shorter time frame than 3 

years could not only restrict the options 

for Portland to achieve the necessary 

reductions, but could render each of 

them impracticable within that time 

frame. Because shorter time frames have 

the effect of narrowing the available 

options, we are retaining the 3-year 

compliance date for the final limit. 

F. Other Considerations for Establishing 

the Final Remedy 

1. Economic Feasibility 

Comment: Several commenters stated 

that the importance of the Portland 

facility to the local economy should be 

taken into account, and that we should 

not take an action that causes operations 

at Portland units 1 and 2 to be no longer 

economically viable. These commenters 

contend that there are limits to the costs 

the facility can withstand and remain in 

operation, and that the facility should 

be allowed to meet interim and final 

limits in the most cost-effective and 

efficient manner possible. Commenters 

expressed concerns regarding the 

practicality of expending high costs on 

scrubber installation considering the 

size and age of the units at Portland, and 

questioned the feasibility of replacing 


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Portland units 1 and 2 with comparable 

combined-cycle natural gas-fired units. 

Response: The EPA stresses that in 

carrying out the statutory obligation to 

address the SO2 exceedances caused by 

the Portland facility, we are doing so in 

a way that meets those obligations but 

is not overly prescriptive. We allow the 

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

factors, some completely unrelated to 

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

is striving to provide opportunities for 

flexible solutions to address section 126 

of the CAA. In particular, the rule does 

not mandate, nor do we expect, the 

Portland owners and operators to install 

high capital-cost options suggested by 

commenters, such as wet scrubbing or 

replacement with combined-cycle 

natural gas units (although the rule also 

does not rule them out as options). The 

source would more likely choose the 

control technology best suited to 

achieving the required emission limits, 

including the most cost-effective 

technology for the facility. It is also 

useful to note that in the EPA’s IPM 

modeling of the effects of the Transport 

Rule over a wide region, the model 

predicted that less than 0.5 percent of 

capacity would be lost as a result of the 

rule. While these models are less 

reliable in assessing plant-specific 

conditions, the EPA believes that the 

general indication of minimal capacity 

loss, together with the availability of 

less capital-intensive control options, 

suggest that Portland can achieve the 

needed reductions without substantially 

affecting the economic viability of the 

plant. 

2. Requirement for Continuous 

Monitoring 

Comment: One commenter suggested 

that the EPA should add a requirement 

in the final rule to require Portland to 

operate CEMS for SO2 emissions at the 

plant. 

Response: The EPA acknowledges the 

importance of CEMS to ensure 

compliance with emissions limits. 

However, GenOn is already required to 

operate CEMS to monitor SO2 emissions 

at Portland in accordance with 

requirements in 40 CFR part 75. Our 

regulations for monitoring SO2

emissions from power plants with 

CEMS require the owner or operator to 

ensure that all CEMS are in operation 

and monitoring unit emissions at all 

times the affected unit combusts any 

fuel. Regulations in part 75 provide 

limited exceptions during periods of 

calibration, quality assurance, or 

preventative maintenance, but do not 

provide any exemptions for startup, 

shutdown, or malfunction of the 

combustion unit. The EPA concludes 

that the CEMS already required for 

Portland under part 75 provide 

sufficient monitoring for compliance 

determinations for SO2 emissions at 

Portland, and for the final rule we refer 

to part 75 as the primary method for 

determining compliance. 

3. Delegation of Enforcement 

Comment: One commenter suggested 

enforcement of any emissions limits or 

other restrictions on Portland related to 

this section 126 action should be 

delegated to the NJDEP as New Jersey is 

the downwind receptor of emissions 

from Portland. 

Response: Ensuring that the Portland 

facility complies with the requirements 

of the CAA including the provisions of 

this final rule is the responsibility of the 

EPA. It will ultimately become the joint 

responsibility of the EPA and of the 

Pennsylvania Department of 

Environmental Protection (PADEP), 

because PADEP has primary 

responsibility for implementing and 

enforcing the Pennsylvania SIP. The 

EPA notes that CAA section 

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

SIP to ‘‘ensure compliance with the 

applicable requirements of section 7426 

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

the CAA). Because these requirements 

must become part of the SIP for 

Pennsylvania, they will be subject to 

enforcement in the same manner as any 

other requirement of a SIP. This 

includes the ability of third parties to 

raise challenges under the citizen suit 

provisions of section 304 of the CAA. 

Thus, New Jersey and its citizens will 

have ample opportunity for enforcement 

under these provisions of the statute. 

VI. Increments of Progress 

This section discusses issues 

concerning whether and how EPA 

should establish appropriate increments 

of progress toward the final remedy. The 

statute does not define ‘‘increments of 

progress.’’ The EPA has discretion to 

define appropriate increments of 

progress on a case-by-case basis. The 

increments of progress required in a 

particular case may vary depending on 

the facts of the petition but should 

provide incremental progress towards 

eventual compliance with the 

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

Section VI.A discusses interim emission 

limits, and section VI.B discusses 

reporting milestones during the 3-year 

period for the final remedy. 

A. Interim Emission Limits 

As noted previously, section 126 

allows the EPA to allow continued 

operation of a source beyond a 3-month 

time period if the source complies with 

‘‘emissions limitations and compliance 

schedules (including increments of 

progress). In this section we discuss 

issues related to whether the increments 

of progress should include interim 

emissions limits and the final rule 

requirements for progress milestones 

and reports. 

1. What the EPA Proposed 

The EPA proposed interim emission 

limits for Portland units 1 and 2. 

Specifically, the EPA proposed to 

require Portland to meet an SO2

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

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

These unit-specific emission limits 

represented 50 percent of the allowable 

emissions rate for each unit that was 

used for the EPA air quality modeling. 

The EPA proposed these interim 

reduction requirements because section 

126 calls for ‘‘increments of progress,’’ 

and because we believed that there were 

readily achievable interim steps that 

could be accomplished in this instance. 

In the proposal, the EPA discussed its 

evaluation of available SO2 emission 

reduction options for meeting the 

interim emissions limits such as reagent 

injection, switching to lower sulfur coal 

and load shifting. The EPA requested 

comment on the proposed interim 

reduction requirements for units 1 and 

2, on the achievability of the limits in 

the 1-year time period proposed, and on 

the impact of the reductions on the 

reliability of the grid. 

2. Public Comments and the EPA’s 

Responses 

a. Appropriateness of Including Interim 

Emissions Limits 

Comment: One commenter, GenOn, 

asserted that the EPA should not 

establish interim limits because those 

interim requirements may be 

inconsistent with the requirements of 

the Transport Rule or MATS 

requirements. Moreover, the same 

commenter believed that because the 

EPA has discretion not to impose 

interim emissions limits under section 

126(c), and because of this need for 

long-term harmonization with the 

Transport Rule, MATS and other 

requirements, the EPA is not justified in 

imposing the interim emissions 

limitations. 

Response: The EPA disagrees with 

comments that the EPA should exercise 

discretion provided by section 126 and 

remove the interim emissions limits 

from the final rule. As noted later in this 

section in our discussion of other 

GenOn comments, we believe that there 


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are readily available measures for 

Portland to make significant progress in 

the short term that in no way impede or 

conflict with achievement of the 3-year 

limits. Additionally, based on our 

assessment of the steps necessary to 

achieve these limits, implementation of 

these interim measures would 

complement, rather than conflict with, 

the measures needed for meeting this 

rule as well as the Transport Rule and 

MATS. 

b. Technical Feasibility of Coal 

Switching 

Comment: In its comments, GenOn 

recommended that, should the EPA 

retain the interim emissions limitations, 

the EPA should defer them until GenOn 

can undertake necessary coal test burns 

to determine what limits are reliably 

achievable. GenOn comments further 

stated that it may be able to meet 

interim emissions limits if a reasonable 

time table and level is set based upon 

coal test burn results, but that a full 

evaluation of the practicality of interim 

limits was not possible by the June 13, 

2011, deadline for public comments. 

GenOn indicated its intent to conduct 

initial coal testing by September 15, 

2011. Finally, to provide GenOn with 

greater flexibility, GenOn requested that 

the EPA revise the form of any interim 

limits for Portland units 1 and 2; that is, 

the EPA should establish the limits as 

combined emissions limits for the total 

emissions from units 1 and 2 rather than 

establishing limits that would apply to 

each unit. 

Subsequent to the close of the 

comment period, GenOn submitted a 

report of the September 15, 2011, test 

burn referred to in its comments. For the 

final rule, the EPA took this test burn 

report into consideration. In the test 

burn, Portland blended its existing 

Northern Appalachia coal supply with 

varying amounts of low sulfur Central 

Appalachia coal from West Virginia. For 

each unit, the test burn assessed the 

impacts of varying blending cases on the 

unit’s generator output, the reduction in 

SO2 emissions, and the effect on the 

performance of the electrostatic 

precipitators. The test burn report also 

noted facility changes in coal handling, 

feeder, and hopper systems that would 

be needed to allow for routine use and 

blending with lower sulfur coal in the 

future. 

In its comments, and in the later test 

burn report, GenOn commented that, 

based on initial evaluations of the coals 

economically available to be used to 

meet the proposed interim emission 

limits, the use of lower sulfur coal is 

projected to cause significant 

production derates at Portland units 1 

and 2. That is, GenOn asserted that the 

total megawatts (MW) of electricity 

output from the plant would decrease if 

GenOn were to use a lower sulfur coal 

blend sufficient to meet the interim 

limits. 

Response: The EPA considered the 

test burn report along with other 

information relevant to the 

establishment of an interim limit. We 

continue to strongly believe that 

significant reductions in SO2 emissions 

can be achieved within 1 year. We do 

not disagree that, aside from a reduction 

in electrical output, the use of lower 

sulfur coal may indeed be the only 

viable option to meet interim limits at 

Portland. The EPA, however, remains 

convinced that lower sulfur 

Appalachian coals are readily available 

for use at Portland. This opinion is 

supported by recent Central 

Appalachian thermal coal quality and 

production data from Wood Mackenzie, 

published in April 2011. According to 

Wood Mackenzie data, Central 

Appalachian production of thermal coal 

in 2010: 

• Had a mean SO2 content of about 

1.5 lb/mmBtu, which could allow a 

significant SO2 emission reduction from 

current coal usage, with ample margin 

to accommodate typical coal quality 

variations; 

• Had a mean higher heating value of 

nearly 12,600 Btu/lb, which is likely 

well within 10 percent of the heating 

value currently used at Portland; and 

• Amounted to about 130 million 

tons, including amounts that are about 

50 times any possible maximum annual 

demand for low sulfur coal from 

Portland. 

The EPA is aware that changes in the 

characteristics of the coal (moisture 

content, ash content, grindability, etc.) 

used at Portland could change the 

performance of the Portland units. 

Although GenOn indicates that 

equipment modifications would be 

necessary to maintain the use of 100 

percent CAAP coal for a sustained 

period of time, the EPA notes that 

during the test burn with 100 percent 

CAAP coal, the generator output for unit 

1 is relatively close to rated capacity 

(162 versus 171 MW, approximately 

5 percent). Also the EPA notes that it is 

not unusual for installation of air 

pollution controls to result in a modest 

de-rate, and the EPA does not believe 

that maintenance of 100 percent of 

current output should be seen as a 

constraint on the appropriateness of the 

interim limits. In addition, the test burn 

report, which evaluated one particular 

coal supply, is silent on the availability 

of a potentially more costly Central 

Appalachia coal that would allow each 

Portland unit to maintain closer to full 

load, and what boiler upgrades are 

necessary to improve generator output. 

The EPA is also aware of proven 

measures that the EPA believes can be 

applied relatively quickly to enhance 

PM control at Portland if needed due to 

coal switching, so as to meet a new, 

lower interim SO2 emission limit while 

continuing to meet all other existing 

emissions limits. Two such measures 

include various upgrades to Portland’s 

electrostatic precipitators (ESP) and/or 

use of flue gas conditioning, both of 

which have been routinely used by coal 

plant operators to improve or maintain 

ESP performance when switching to a 

lower sulfur coal that might impact 

performance. 

The EPA has reviewed the 

information from GenOn on the possible 

equipment changes, and has also 

reviewed our previous determinations 

of the time needed to accomplish those 

changes. The EPA’s engineering 

judgment is that these changes can be 

accomplished within 1 year. 

c. Interim Limits Suggested by the 

GenOn Test Burn Report 

Comment: Based on the results of the 

test burn report, GenOn concluded that 

(1) Sustained unit operations using a 

blend of Northern and Central 

Appalachia coals sufficient to achieve a 

25 percent reduction in allowable SO2

emissions is achievable with a modest 

investment and an implementation 

schedule of 6 months, and (2) sustained 

unit operations using a blend of 

Northern and Central Appalachia coals 

to achieve a 35 percent reduction in 

allowable SO2 emissions should be 

achievable with additional investments 

and an implementation schedule of 8 to 

12 months after GenOn has established 

an operational record and completed 

equipment performance evaluations at 

the 25 percent reduction blend level, 

and any necessary permits are acquired. 

Response: The EPA evaluated the 

suggested interim reductions in the 

GenOn test burn report. The EPA 

concluded that based upon this 

evaluation, these targets are significant 

underestimates of the readily available 

interim emissions reductions, represent 

very minimal reductions from current 

operations, and are inconsistent with 

the results of the test burn. 

Figure VI.C–1 shows the hourly SO2

emissions for all of 2010 at Portland, 

shown as the sum of emissions from 

units 1 and 2. For the EPA (and 

GenOn’s) air quality analysis, the 

assumed allowable emissions rates for 

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

lb/hr, respectively, resulting in a total 

allowable rate of 14,720 lb/hour. A 25 


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percent reduction from this amount, 

that is a 25 percent reduction from 

current allowable, thus becomes 11,040 

lb/hr. As shown in Figure VI.C–1, 

during 2010, Portland’s hourly 

emissions exceeded 75 percent of 

allowable emissions only rarely. 

Accordingly, a 25 percent reduction in 

allowable emissions effectively 

represents status quo operations. A 35 

percent reduction in allowable 

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

at most a roughly 15 percent reduction 

in current emissions. EPA continues to 

believe that the facility can make much 

more significant reductions in line with 

the final interim limits within a year. 

d. Load Shifting 

Comment: GenOn commented on the 

EPA’s assessment that the proposed 

interim limits could be met via ‘‘load 

shifting.’’ GenOn disagreed with the 

EPA’s assessment that load shifting is a 

viable option to meet an interim limit. 

In its comments, GenOn interpreted the 

term ‘‘load shifting’’ as referring to the 

ability of a utility to continue to serve 

its customer load obligations by 

reducing utilization or ‘‘load’’ from a 

selected generator and increasing the 

output at other facilities owned by the 

same utility: The load is ‘‘shifted’’ to 

other generators that the company 

operates. Because GenOn’s Portland 

plant is a merchant plant that operates 

in a competitive, centrally cleared and 

dispatched, Independent System 

Operator (ISO) market, GenOn noted 

that replacement energy likely would 

come from one of GenOn’s competitors, 

and it is possible that Portland’s 

production would be ‘‘shifted’’ to a less 

efficient unit that might have higher 

emissions than Portland units 1 and 2. 

Additionally, as a ‘‘capacity resource 

owner,’’ GenOn is required under the 

Pennsylvania-New Jersey-Maryland 

Interconnection (PJM) tariff to bid the 

Portland units into the PJM energy 

market every day and make the units 

available to generate unless specific 

circumstances, such as a unit outage, 

arise that precludes operation of the 

plant. 

Response: The EPA agrees that the 

proposed rule could have used a clearer 

term than ‘‘load shifting’’ in describing 

the possible ways the interim emissions 

limits could be met. The EPA 

appreciates the distinction that GenOn 

makes in regard to load shifting within 

a utility’s own assets versus load 

shifting in a competitive market. The 

EPA did not mean to imply in its brief 

mention of load shifting that we reached 

a conclusion that GenOn would merely 

shift any load reduction at Portland to 

another GenOn facility. Rather, our use 

of the imprecise term ‘‘load shifting’’ 

was referring to the ability of Portland 

to reduce its operation as a way to meet 

the interim lb/hr limits, or as a partial 

solution to meet the limits in 

combination with other approaches. The 

EPA recognizes the open market aspects 

of the PJM energy market including the 

probability that the load can shift to 

other operators. These market realities 

are characterized in detail in the models 

we use to forecast the effect of EGU 

regulations on the utility industry. In 

response to Portland’s observation that 


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the facility that replaces Portland’s 

output could be higher-emitting, the 

EPA observes that while its output 

would likely be more expensive than 

Portland’s energy, there is a good 

possibility that the energy would be 

replaced with a scrubber or a gas-fired 

unit, either of which could have much 

lower emission rates than Portland, 

given the relatively high emission rate 

from Portland. As an older relatively 

uncontrolled plant, much of the 

generation capacity would be expected 

to emit less per unit of generation than 

the Portland facility. 

e. One-Year Time Period 

Comment: One commenter, NJDEP, 

believed that the 1-year period allowed 

for too much time for the Portland 

facility to meet interim emissions limits, 

and that the interim limits were 

insufficiently stringent. NJDEP in their 

comments urged the EPA to ensure that 

we require interim reductions no less 

than 80 percent within 90 days. 

Response: The EPA disagrees with 

this comment. An 80 percent reduction 

would represent nearly the 81 percent 

reduction required by the 3-year limits 

in the final rule. As discussed in section 

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

period is an ‘‘expeditious’’ schedule for 

emissions reductions of this magnitude, 

and that this level of reduction would 

not be achievable in a 90-day time 

period. 

Comment: Another commenter, 

PADEP, noted that if the proposed 50 

percent reduction in the maximum 

allowable SO2 emissions can only be 

achieved by the installation of sorbent 

injection technology, the 1-year 

deadline for complying with the interim 

limit does not provide sufficient time 

for permitting, purchasing, and 

installing the technology. Therefore, in 

lieu of setting specific interim emission 

limits and deadlines, PADEP 

recommended that the EPA work with 

NJDEP, GenOn, and PADEP, as the 

permitting agency, to establish emission 

interim emission limits and compliance 

schedules containing increments of 

progress consistent with CAA section 

126(c). 

Response: The EPA believes that this 

approach would not be consistent with 

the statute. Under section 126, the 

Administrator is to set the emission 

limits and compliance schedules, and 

must accomplish these through a notice 

and comment rulemaking. While we 

have considered the comments of all the 

parties noted by the commenter, it 

would not be appropriate for the EPA to 

defer the compliance schedules to a 

future negotiation with the source 

owner and states. 

On the other hand, as discussed 

previously in section V.E, the EPA does 

agree with the commenter, and with 

others who made similar observations, 

that reagent injection may not be 

achievable within 1 year because 

Portland may need to upgrade its 

particulate matter collection equipment. 

Accordingly, we no longer believe that 

reagent injection alone serves as a 

technical basis for the interim emissions 

reduction requirements in the final rule. 

Nevertheless, after analyzing the 

comments regarding the feasibility of 

switching to cleaner coal and the 

necessary time frame for doing so, we 

do believe that this is an appropriate 

basis for the interim limit. Thus, the 

EPA has determined that it is feasible 

for Portland to achieve interim 

reductions within 1 year that would 

achieve significant progress toward the 

final remedy limits, would not interfere 

with Portland’s progress toward meeting 

those final limits, and would result in 

important public health benefits in the 

interim. 

f. Effect of Interim Limits on Reliability 

Comment: In response to the EPA’s 

request for comments on the effects of 

the interim limits on electric reliability, 

one commenter noted that Portland is 

uniquely situated to supply power to 

the PJM power interconnection from a 

location close to the source of demand, 

that power transmissions coming from 

the Midwest are hampered by long 

distance transmission losses, and that 

transmission lines are already 

approaching overload. Another 

commenter, NJDEP, indicated that the 

400 MW generated by the plant is 

relatively small compared to PJM’s 

current total capacity of 163,500 MW. 

NJDEP also concluded that it is unlikely 

that these units would be needed to 

prevent brownouts or blackouts, but that 

in the unlikely event that these units are 

necessary, the EPA could include a 

condition that the units may only be run 

when called on by PJM to provide 

power during a Maximum Emergency 

Generation Event. 

Response: The EPA agrees that given 

large reserve margins, we do not expect 

that the interim limit will cause adverse 

effects on electricity reliability. The EPA 

notes that the test burn reports cited 

above show that at worst, in meeting the 

interim limits the facility would be 

projected to continue operating under a 

small derate, and given the significant 

reserve margin noted by the 

commenters, continued operation of 

Portland at an occasionally lower rate 

would not be expected to have an 

adverse effect on the PJM system’s 

ability to deliver needed power. 

Consequently, the EPA does not believe 

it is necessary to make any provision for 

use of Portland to address potential 

emergency events. 

g. Clear Rationale for Limits 

Comment: One commenter, PADEP, 

noted its view that while section 126 

expressly provides for increments of 

progress, there is no provision in the 

CAA to suggest that a 50-percent 

reduction must be made within 1 year 

of a finding. Without the EPA fully 

explaining the rationale for these 

proposed interim emission reductions 

and timelines, this commenter believed 

the EPA’s interim requirements could be 

viewed as arbitrary and capricious. 

Response: EPA has discretion under 

section 126 to establish reasonable 

interim emissions controls. For reasons 

discussed above, the EPA has a clear 

rationale for the interim emissions 

limits in the final rule. These limits are 

based upon the ready availability of coal 

with a sulfur content of 1.5 lb/mmBtu. 

We have reviewed the data on existing 

coal supplies, carefully reviewed 

information on available technologies, 

and established the interim limits based 

upon that review. 

h. Combined Emission Limits 

Comment: GenOn requested in its 

comments that any interim emissions 

limits for Portland units 1 and 2 should 

be expressed as a combined limit for the 

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

basis. 

Response: The EPA agrees with 

GenOn that for the interim limits, a 

substantial ‘‘increment of progress’’ 

towards meeting the ultimate (in this 

case, 3-year) limit is achievable 

regardless of whether the emissions 

limit is expressed as a combined limit 

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

for the final rule, we are adopting an 

interim limit that will be a single 

combined limit, rather than separate 

limits, for units 1 and 2. As with the 

3-year limit, the EPA will evaluate 

compliance based on available test data 

including part 75 CEMS data. The EPA 

believes that the combined limit will 

provide GenOn with greater flexibility 

to implement a variety of combinations 

of options to satisfy the interim limit, 

which should in turn serve to reinforce 

the EPA’s view that there are readily 

available measures for Portland to 

employ in meeting the interim 

emissions reduction requirement. 

The EPA notes that for the interim 

emissions reduction, unlike the 3-year 

limit, there is no explicit air quality goal 

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

it is essential that the limit ensure that 

Portland fully eliminates its significant 


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22Heat input capacities of 1657.2 and 2511.6 

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

Portland units 1 and 2. 

contribution to nonattainment and its 

interference with maintenance of the 

1-hour SO2 NAAQS. For the interim 

reductions, however, the goal is to 

establish ‘‘increments of progress’’ 

towards meeting emissions limits that 

fully comply with section 126. 

Accordingly, for the 3-year limit, the 

EPA concluded it was essential for the 

final rule to include lb/mmBtu limits to 

ensure that the NAAQS were protected 

at all loads. However the EPA 

determined that it was not necessary to 

include similar lb/mmBtu limits for the 

interim limits. We also determined that 

establishing lb/mmBtu limits in the 

interim might unnecessarily restrict 

Portland’s flexibility in the interim, 

since the 1-year compliance deadline 

already constrains the available options 

to meet such a limit. 

3. Final Rule Interim Emission Limits 

For the final rule, the EPA includes a 

combined interim limit of 6,253 lb/hour 

for the total SO2 emissions from units 1 

and 2. 

The basis for the final limit differs 

from the proposed rule. For the 

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

the allowable emissions rate used for 

the EPA air quality modeling. We 

believe that for the final rule it is 

preferable to base these interim limits 

on coal characteristics of readily 

available coal supplies. For the final 

rule, the combined interim limit is 

based on the EPA’s assessment that coal 

with sulfur content of 1.5 lb/mmBtu is 

readily available and its use at Portland 

is achievable within 1 year. Using this 

1.5 lb/mmBtu value as the basis for the 

calculation of the combined interim 

limit, we calculated 22 the limit as 

follows: 

For Unit 1: 1657.2 mmBtu/hr × 1.5 lb/mmBtu 

= 2486 lb/hr 

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

= 3767 lb/hr 

Total combined emission rate = 6253 lb/hr 

We agree with the commenters who 

feel strongly that this interim limit is 

very important to include in the final 

rule, not only because it drives progress 

toward the final remedy, but also 

because of the air quality and public 

health benefits that will be realized in 

the interim. While the limit is not 

calculated based on specific air quality 

criteria, these readily available interim 

reductions will serve to markedly 

reduce the number of days with SO2

violations in New Jersey, and will serve 

to greatly reduce SO2 concentrations on 

days with remaining violations. We do 

not know what specific approach 

Portland will use to comply with the 

interim limit, so we cannot quantify the 

decrease in SO2 concentrations at 

specific locations, but we do note that 

the interim limits will result in 

significant SO2 emissions reductions 

within the first year and make important 

progress toward the elimination of SO2

violations within 3 years. These limits 

represent a 46-percent decrease from 

peak 2010 actual emissions. Moreover, 

the most significant reductions will 

occur during the hours when the 

emissions are the highest. During 2010, 

more than 40 percent of the hours that 

Portland operated resulted in emissions 

that exceeded 6253 lb/hr. The interim 

limit will ensure that such high 

emissions during those times are 

eliminated. 

B. Increments of Progress: Reporting 

Milestones 

1. What the EPA Proposed 

In addition to the proposed 3-year and 

1-year emissions limits, the EPA 

proposed a schedule of milestones that 

must be achieved to provide assurance 

that the source is on track to achieve full 

compliance as expeditiously as 

practicable and no later than the 3-year 

deadline. 

Those proposed milestones were: 

3-month notification: Within 3 

months of the EPA’s finding, the EPA 

proposed that GenOn notify the EPA 

whether it will cease to operate within 

that period or whether it will continue 

to operate subject to the emission 

limitations and compliance schedules in 

the final rulemaking. If Portland plans 

to continue to operate subject to these 

limits, the EPA proposed to require 

Portland to indicate how it intends to 

achieve full compliance with the 

emission limits. Specifically, we 

proposed that Portland must indicate 

whether it intends to cease or reduce 

operation at any emission unit subject to 

emission limits as its method of 

compliance with such limits. If this 3- 

month notice indicated that Portland 

intends to continue operation, the 

proposed rule required the remaining 

reporting requirements also be satisfied. 

Modeling protocol and analysis: No 

later than 3 months from the date of the 

section 126 finding, we proposed that 

GenOn submit to the EPA a modeling 

protocol (including all units at Portland 

in the protocol), consistent with our 

Guideline on Air Quality Models. If the 

EPA identified deficiencies in the 

modeling protocol submitted by the 

source, we proposed to require Portland 

to submit a revision to correct any 

deficiencies within 15 business days. 

We proposed to require that Portland 

submit a modeling analysis in 

accordance with the approved protocol 

within 6 months. 

Status reports: We proposed to 

require GenOn to submit, beginning 6 

months after the section 126 finding and 

continuing every 6 months until the 

final compliance date, a progress report 

on the implementation of the remedy, 

including status of design, technology 

selection, development of technical 

specifications, awarding of contracts, 

construction, shakedown, and 

compliance demonstration. 

Interim project report: We proposed to 

require GenOn to submit within 1 year 

an interim project report demonstrating 

compliance with the 1-year limits. 

Final project report: We proposed to 

require GenOn to submit, within 3 

years, a final project report which 

demonstrates compliance with the 

emission limits in the final rulemaking. 

We proposed that this final report 

include the date when full operation of 

controls was achieved at Portland after 

shakedown; as well as a minimum of 1 

month of CEMS data demonstrating 

compliance with the emission limits in 

the final rulemaking. 

2. Public Comments and the EPA’s 

Responses 

One commenter, GenOn, objected to 

both the 90-day compliance plan and 

the periodic status reports. The 

commenter believed that requiring a 

detailed plan 90 days after the final rule 

is unnecessarily restrictive, particularly 

given that GenOn will not have fully 

evaluated its compliance options under 

MATS. Similarly, GenOn believed that 

detailed status reports are not justified 

and will limit GenOn’s flexibility to 

revise its compliance strategy in 

response to other state and federal 

regulations. Because the regulatory 

environment is fluid with further 

changes expected, GenOn expressed 

concerns that the compliance plan and 

status reports should not restrict 

GenOn’s ability to revise its strategy for 

compliance with section 126 as 

circumstances change. 

One commenter believed that the 

schedule for a required modeling 

protocol within 3 months was overly 

ambitious and suggested the owner and 

operator of Portland should have at least 

6 months to submit a modeling protocol 

for Portland’s SO2 emissions. 

3. Final Rule Reporting Milestones 

For the final rule, the EPA has 

amended the proposed requirement for 

GenOn to develop a compliance plan 

with an identified remedy with 90 days. 


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The EPA agrees with GenOn that it is 

very possible that complete information 

to inform this remedy may not be 

available within 90 days of the rule’s 

effective date. The EPA does, however, 

believe that in order to implement 

controls it is reasonable to assume that 

information necessary for a decision 

will be available within 12 months of 

the effective date, and accordingly we 

have retained the requirement but have 

postponed the deadline until 12 months 

after the effective date of the final rule. 

The EPA acknowledges the commenters’ 

point that there are factors over time 

that could lead to a revised decision 

after the 12 month milestone. Even if 

such factors lead to a different eventual 

remedy, the EPA believes that it is 

nonetheless reasonable to require a 

status report on GenOn’s intent at the 12 

month point in order to ensure that 

planned actions for compliance with the 

requirements of section 126 are on track. 

The EPA has also retained the 

requirements for 6 month status reports. 

We disagree with comments that these 

reports are not justified. The status 

reports required by this rule are 

warranted not only because section 126 

requires ‘‘increments of progress,’’ but 

in addition the EPA believes these are 

necessary for the EPA and the states to 

monitor Portland’s efforts to achieve 

compliance with the emission limits 

established in this rule. The status 

reports are not exhaustive, but will 

provide important information to the 

agency and to the public to monitor 

Portland’s progress towards the ultimate 

goal of reducing its SO2 emissions and 

reducing its impact on New Jersey’s 

compliance with the 1-hour SO2

NAAQS. 

We have also retained the 

requirement for the interim and final 

progress reports. For the final rule, we 

have extended the deadline for the final 

project report by two months to provide 

time for evaluation of CEMS data before 

submitting the report. 

In the final rule, we have retained the 

requirement to submit a modeling 

protocol and modeling, but, after 

consideration of the timing concerns 

raised by commenters, we have 

amended the deadlines. For the final 

rule, the modeling protocol is required 

within 6 months of this rulemaking and 

the final modeling within 12 months. 

The revisions to the interim compliance 

schedule outlined in this section are all 

logical outgrowths of the compliance 

schedule originally proposed as they 

were made in response to consideration 

of the comments received in response to 

that proposal. 

VII. Alternate Compliance Schedule 

and Consideration of Petition for 

Rulemaking for Alternative Emission 

Limits 

In this section, we discuss two 

additional overarching issues on which 

we sought comment in the proposal. 

First we discuss our decision regarding 

the proposed consideration of an 

alternative schedule based upon 

Portland’s decision to meet its 

compliance obligations by electing to 

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

then discuss the potential for additional 

rulemaking to accommodate alternative 

remedies from those established in this 

rule. 

A. Alternate Compliance Schedule if the 

Source Owner Opts To Cease 

Operations 

1. What the EPA Proposed 

In the preamble to the proposed rule, 

the EPA discussed why different 

remedies for meeting the requirements 

of section 126 may suggest different 

compliance schedules, 76 FR 19678. In 

particular, the EPA noted that if GenOn 

decided to cease operation of the 

Portland facility, it is possible that 

implementing such a remedy ‘‘as 

expeditiously as practicable’’ may have 

different considerations than if it 

decided to undertake a schedule of 

constructing and implementing control 

technologies. Consistent with this 

perceived possibility, the EPA requested 

comment in the proposal on how to 

interpret the phrase ‘‘as expeditiously as 

practicable’’ when the source owner and 

operator has elected to cease operation 

as its method of compliance with the 

emissions limit for a given unit and 

cessation cannot occur within 3 months 

of the EPA’s finding. The EPA noted 

that if appropriate based upon 

comments, the EPA would consider 

including in the final rule an alternate 

compliance schedule for this possibility, 

and the EPA requested comment on 

relevant factors that should be 

considered were we to include such an 

alternate schedule. 

2. Public Comments and the EPA’s 

Responses 

Comment: One commenter stated that 

if the facility elected to close, it must be 

required to cease operation 

immediately, as there is no basis to 

allow the plant to continue to 

significantly contribute to 

nonattainment and interference with 

maintenance of the 1-hour SO2 NAAQS 

in New Jersey. Another commenter 

suggested that if Portland plans to cease 

operations of the coal burning units, 

shutdown should occur within 3 

months of the EPA’s final rule. 

Response: The EPA notes that section 

126(c) of the CAA allows the EPA to 

permit continued operation beyond 90 

days if the source complies with 

emissions limitations and compliance 

schedules established by the 

Administrator. This language does not, 

however, mandate that any decision to 

cease operation must occur in any 

particular time period when the source 

is otherwise complying with the 

required emission limits compliance 

schedules. The EPA disagrees with 

commenters suggestion that any 

decision to shutdown must occur 

immediately or within 90 days. For the 

final rule, the EPA concludes that the 

final and interim emission limits and 

reporting milestones are sufficient for 

all selected remedies, including a 

remedy under which GenOn would 

choose to ultimately cease operation at 

one or more units. The EPA has made 

this conclusion because compliance 

with the interim and final emission 

limits, regardless of how the plant 

chooses to comply, results in the 

elimination of Portland’s significant 

contribution to the affected areas in 

New Jersey and demonstrates 

appropriate interim progress towards 

such elimination. 

3. The Final Rule 

The EPA has retained the approach in 

the proposed rule, and we have not 

included an alternative compliance 

schedule in the case that the selected 

remedy is to cease operation of unit 1 

and/or unit 2. The EPA did not receive 

any information in comments that leads 

the EPA to conclude that a different 

schedule is necessary. 

B. Consideration of Petition for 

Rulemaking for Alternative Emission 

Limits 

The EPA received comment from 

GenOn arguing that the unit-specific 

SO2 limits for unit 1 and for unit 2 did 

not provide GenOn with sufficient 

flexibility. Accordingly, GenOn 

recommended that the EPA change the 

form of the final emissions limits to a 

combined emissions limit for the total 

emissions from units 1 and 2. In this 

way, they asserted GenOn would be able 

to evaluate a broader suite of remedies 

which could possibly include remedies 

with equivalent air quality impacts at 

substantially reduced cost. 

The EPA understands the source’s 

request for operational flexibility, and 

we considered the option suggested by 

GenOn. However, based on the 

modeling analysis conducted by the 

EPA, we are not able to set a combined 


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limit for the final remedy. The final rule 

contains individual final limits that are 

specific to units 1 and 2. There are some 

combinations of emissions from units 1 

and 2 which will be protective of the 

NAAQS and some that will not. Air 

quality modeling results indicated that 

there are many possible scenarios under 

which a combined limit, of similar 

stringency to the limits adopted, would 

lead to exceedances of the 1-hour SO2

NAAQS. In particular, given the 

multiple possibilities of available 

controls for the two units, there would 

be a large number of possible stack 

configurations with different dispersion 

characteristics. While the EPA perhaps 

could have developed a combined limit 

with sufficient stringency to ensure that 

all significant contribution and 

interference with maintenance would be 

eliminated under every possible 

combination of control options and 

stack configurations, the EPA does not 

believe that this approach would 

provide the flexibility that GenOn is 

seeking because the combined limit 

would likely need to be much more 

stringent than the limits in the final 

rule. 

Nevertheless, we acknowledge the 

greater operating flexibility that an 

alternative set of emission limits might 

offer, and we note that in some cases an 

appropriately constrained combined 

limit may be possible to construct in a 

way that is protective of the NAAQS 

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

individual limits). Should GenOn wish 

to have a higher limit at one of the units, 

in exchange for a lower limit at the 

other, or seek a combined limit that is 

protective of the NAAQS in all cases, 

the source may petition the EPA for 

additional rulemaking to adopt 

alternative emissions limits if such 

petition demonstrates that the proposed 

alternative would eliminate all 

emissions at Portland that significantly 

contribute to nonattainment or interfere 

with maintenance of the 1-hour SO2

NAAQS in New Jersey by the 3-year 

deadline established in this rule. As part 

of the interim reporting requirements, 

the rule requires GenOn to submit a 

modeling analysis, pursuant to a 

modeling protocol that it is consistent 

with the data and methods the EPA 

used to develop this rule, which shows 

that the final compliance remedy is 

protective of the NAAQS. If GenOn 

chooses to submit such a petition, the 

EPA expects GenOn to provide a 

demonstration, in the course of 

conducting the modeling analysis 

required by the rule, that shows that a 

specific alternative set of emissions 

limits for unit 1 and unit 2 would also 

be protective of the 1-hour SO2 NAAQS 

in New Jersey. In order for the EPA to 

consider such a rulemaking petition, 

GenOn would need to submit, no later 

than the 1-year deadline for submitting 

modeling results under the rule, any 

proposed alternative limits along with 

air quality modeling, consistent with the 

approved modeling protocol, 

demonstrating that the proposed 

alternative limits would, at all operating 

loads, eliminate Portland’s significant 

contribution to nonattainment and 

interference with maintenance in New 

Jersey. If the EPA determines it would 

be appropriate to propose approval of 

the alternative emission limits, the EPA 

would conduct a notice and comment 

rulemaking on the proposed alternative. 

VIII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action will grant the NJDEP 

petition and is making a CAA section 

126 finding. This type of action is 

exempt from review under Executive 

Orders 12866 (58 FR 51735, October 4, 

1993) and 13563 (76 FR 3821, January 

21, 2011). 

B. Paperwork Reduction Act 

This action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

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

defined at 5 CFR 1320.3(b). Under the 

Paperwork Reduction Act, a ‘‘collection 

of information’’ is defined as a 

requirement for ‘‘answers to * * * 

identical reporting or recordkeeping 

requirements imposed on ten or more 

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

Because the rule applies to a single 

facility, Portland, the Paperwork 

Reduction Act does not apply. See 5 

CFR 1320(c). 

C. Regulatory Flexibility Act (RFA) 

The Regulatory Flexibility Act (RFA) 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small 

organizations, and small governmental 

jurisdictions. 

For purposes of assessing the impacts 

of this rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

After considering the economic 

impacts of this final rule on small 

entities, I certify that this rule will not 

have a significant economic impact on 

a substantial number of small entities. 

This final rule will not impose any 

requirements on small entities because 

small entities are not subject to the 

requirements of this rule. 

D. Unfunded Mandates Reform Act of 

1995 (UMRA) 

This rule does not contain a federal 

mandate that may result in expenditures 

of $100 million or more for state, local, 

and tribal governments, in the aggregate, 

or the private sector in any 1 year. The 

cost necessary to comply with the limits 

in this notice are not expected to exceed 

$100 million. Thus, this rule is not 

subject to the requirements of sections 

202 or 205 of UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. The 

requirements for compliance in this rule 

will be borne by a single, privately 

owned source. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. The rule 

primarily affects the private industry, 

and does not impose significant 

economic cost on state or local 

governments or preempt state or local 

law. Thus, Executive Order 13132 does 

not apply to this action. 

In the spirit of Executive Order 13132, 

and consistent with the EPA’s policy to 

promote communications between the 

EPA and state and local governments, 

the EPA specifically solicited comment 

on the proposed action from state and 

local officials. 


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F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). It does not have a substantial 

direct effect on one or more Indian 

Tribes. Furthermore, this action does 

not affect the relationship between 

Indian Tribes and the federal 

government, or distribution of power 

and responsibilities between the federal 

government and Indian Tribes. Thus, 

Executive Order 13175 does not apply 

to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

The EPA interprets Executive Order 

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

applying only to those regulatory 

actions that concern health or safety 

risks, such that the analysis required 

under section 5–501 of the Executive 

Order has the potential to influence the 

regulation. This action is not subject to 

Executive Order 13045 because it does 

not involve decisions on environmental 

health or safety risks that may 

disproportionately affect children. The 

EPA believes that the emissions 

reductions in this rule will further 

improve air quality and will further 

improve children’s health. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is an exempted action 

under Executive Order 12866. 

I. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) establishes Federal 

executive policy on environmental 

justice. Its main provision directs 

federal agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the U.S. 

The EPA has determined that this 

final rule will not have 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

because it increases the level of 

environmental protection for all affected 

populations without having any 

disproportionately high and adverse 

human health or environmental effects 

on any population, including any 

minority or low-income population. 

The agency has also reviewed this 

rule to determine if there is existing 

disproportionately high and adverse 

human health or environmental effects 

on minority or low-income populations 

that could be mitigated by this 

rulemaking. An analysis of demographic 

data illustrates that the population 

residing near the source is represented 

by fewer minority and low-income 

residents than either the surrounding 

counties, the average demographic 

composition of the states of New Jersey 

and Pennsylvania, and national 

averages. In addition, this rule increases 

the level of environmental and public 

health protection for all affected 

populations since, when fully 

implemented, it will result in 

attainment of the health-based 1-hour 

SO2 NAAQS. The results of the 

demographic analysis are presented in 

the supporting document titled, 

‘‘Environmental Justice Assessment for 

Section 126 Petition from New Jersey 

Regarding SO2 Emissions from the 

Portland Generating Station’’ 

(September 2011), a copy of which is 

available in the docket EPA–HQ–OAR– 

2011–0081. 

J. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer Advancement Act 

of 1995 (NTTAA), Public Law No. 104– 

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

directs the EPA to use voluntary 

consensus standards (VCS) in its 

regulatory activities unless to do so 

would be inconsistent with applicable 

law or otherwise impracticable. VCS are 

technical standards (e.g., materials 

specifications, test methods, sampling 

procedures, and business practices) that 

are developed or adopted by VCS 

bodies. The NTTAA directs the EPA to 

provide Congress, through OMB, 

explanations when the agency decides 

not to use available and applicable VCS. 

This action does not involve technical 

standards. Therefore, the EPA did not 

consider the use of any VCS. 

K. Congressional Review Act 

The Congressional Review Act, 5 

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

Business Regulatory Enforcement 

Fairness Act of 1996, generally provides 

that before a rule may take effect, the 

agency promulgating the rule must 

submit a rule report, which includes a 

copy of the rule, to each House of the 

Congress and to the Comptroller General 

of the United States. Section 804 

exempts from section 801 the following 

types of rules (1) Rules of particular 

applicability; (2) rules relating to agency 

management or personnel; and (3) rules 

of agency organization, procedure, or 

practice that do not substantially affect 

the rights or obligations of non-agency 

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

required to submit a rule report 

regarding today’s action under section 

801 because this is a rule of particular 

applicability. Nonetheless, this action 

will be effective January 6, 2012. 

L. Judicial Review 

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

petitions for judicial review of this 

action must be filed in the United States 

Court of Appeals for the District of 

Columbia Circuit Court within 60 days 

from the date the final action is 

published in the Federal Register. 

Filing a petition for review by the 

Administrator of this final action does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review must be 

final, and shall not postpone the 

effectiveness of such action. 

Thus, any petitions for review of this 

action related to the section 126 finding 

must be filed in the Court of Appeals for 

the District of Columbia Circuit within 

60 days from the date final action is 

published in the Federal Register. 

List of Subjects in 40 CFR Part 52 

Approval and promulgation of 

implementation plans, Environmental 

protection, Administrative practice and 

procedures, Air pollution control, 

Incorporation by reference, 

Intergovernmental relations, and 

Reporting and recordkeeping 

requirements, Sulfur dioxide. 

Dated: October 31, 2011. 

Lisa P. Jackson, 

Administrator. 

For the reasons set forth in the 

preamble part 52 of chapter I of title 40 

of the Code of Federal regulations is 

amended as follows: 

PART 52—[AMENDED] 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart NN—Pennsylvania 

■ 2. Section 52.2039 is added to read as 

follows: 


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§ 52.2039 Interstate transport. 

The EPA has made a finding pursuant 

to section 126 of the Clean Air Act (the 

Act) that emissions of sulfur dioxide 

(SO2) from the Portland Generating 

Station in Northampton County, Upper 

Mount Bethel Township, Pennsylvania 

(Portland) significantly contribute to 

nonattainment and interfere with 

maintenance of the 1-hour SO2 national 

ambient air quality standard (NAAQS) 

in Morris, Sussex, Warren, and 

Hunterdon Counties in New Jersey. The 

owners and operators of Portland shall 

comply with the requirements in 

paragraphs (a) through (d) of this 

section. 

(a) The owners and operators of 

Portland shall not, at any time later than 

one year after the effective date of the 

section 126 finding, emit SO2 (as 

determined in accordance with part 75 

of this chapter) in excess of 6,253 

pounds per hour (lb/hr) for unit 1 

(identified with source ID 031 in Title 

V Permit No. 48–0006) and unit 2 

(identified with source ID 032 in Title 

V Permit No. 48–0006) combined; 

(b) The owners and operators of 

Portland shall not, at any time later than 

three years after the effective date of the 

section 126 finding, emit SO2 (as 

determined in accordance with part 75 

of this chapter) in excess of the 

following limits: 

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

million British Thermal Unit (lb/ 

mmBtu) for unit 1; and 

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

unit 2. 

(c) The owners and operators of 

Portland shall comply with the 

following requirements: 

(1) Perform air modeling to 

demonstrate that, starting no later than 

three years after the effective date of the 

section 126 finding, emissions from 

Portland will not significantly 

contribute to nonattainment or interfere 

with maintenance of the 1-hour SO2

NAAQS in New Jersey, in accordance 

with the following requirements: 

(i) No later than six months after the 

effective date of the section 126 finding, 

submit to the EPA a modeling protocol 

that is consistent with the EPA’s 

Guideline on Air Quality Models, as 

codified at 40 CFR Part 51, Appendix 

W, and that includes all units at the 

Portland Generating Station in the 

modeling. 

(ii) Within 15 business days of receipt 

of a notice from the EPA of any 

deficiencies in the modeling protocol 

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

submit to the EPA a revised modeling 

protocol to correct any deficiencies 

identified in such notice. 

(iii) No later than one year after the 

effective date of the section 126 finding, 

submit to the EPA a modeling analysis, 

performed in accordance with the 

modeling protocol under paragraphs 

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

the compliance methods identified in 

the notice required by paragraph (c)(2) 

of this section. 

(2) No later than one year after the 

effective date of the section 126 finding, 

submit to the EPA the compliance 

method selected by the owners and 

operators of Portland to achieve the 

emissions limits in paragraph (b) of this 

section. 

(3) Starting six months after the 

effective date of the section 126 finding 

and continuing every six months until 

three years after the effective date of the 

section 126 finding, submit to the EPA 

progress reports on the implementation 

of the methods to achieve compliance 

with emissions limits in paragraphs (a) 

and (b) of this section, including status 

of design, technology selection, 

development of technical specifications, 

awarding of contracts, construction, 

shakedown, and compliance 

demonstrations as applicable. These 

reports shall include: 

(i) An interim project report, no later 

than one year after the effective date of 

the section 126 finding, that 

demonstrates compliance with the 

emission limit in paragraph (a) of this 

section. 

(ii) A final project report, submitted 

no later than 60 days after three years 

after the effective date of the section 126 

finding, that demonstrates compliance 

with the emission limits in paragraph 

(b) of this section and that includes at 

least one month of SO2 emission data 

from Portland’s continuous SO2

emission monitor, and that includes the 

date when full operation of controls was 

achieved at Portland after shakedown. 

(4) The requirements in paragraphs 

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

apply if the notice required by 

paragraph (c)(2) of this section indicates 

that the owners and operators of 

Portland have decided to completely 

and permanently cease operation of unit 

1 and unit 2 as the method of 

compliance with paragraphs (a) and (b) 

and with section 126 of the Act. 

(d) Compliance with the lb/mmBtu 

limitations in paragraph (b) of this 

section is determined on a 30 boiler 

operating day rolling average basis. 

Boiler operating day for the purposes of 

this paragraph means a 24-hour period 

between midnight and the following 

midnight during which any fuel is 

combusted in the units identified in 

paragraph (a) of this section. 

[FR Doc. 2011–28816 Filed 11–4–11; 8:45 am] 

BILLING CODE 6560–50–P 


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