Yesterday, EPA announced that it was granting the petition submitted by New Jersey under § 126 of the Clean Air Act, requiring the Portland Generating Station in Upper Mount Bethel Township, Pennsylvania, to reduce emissions of SO2, in order to avoid causing exceedances of the NAAQS for SO2 downwind in New Jersey. The requirements are fairly straightforward. Within three years, the plant must limit emissions as follows:

  • Unit 1 emissions may not exceed 1,105 lb/hr
  • Unit 2 emissions may not exceed 1,691 lb/hr.
  • The facility must attain a heat input limit of 0.67 lb/mmBtu, regardless of operating load

The facility will also be subject to a short-term limit, to be attained within 12 months, of 6,253 lb/hour. This limit is expressed as a total for both units to provide the owner with more flexibility. EPA states in its fact sheet that this interim limit can be attained by switching to low sulfur coal.

At a certain level, the rule granting the petition is not that big a deal. Section 110(a)(2)(D) of the CAA, the “good neighbor” provision, prohibits emissions in one state that interfere with attainment of NAAQS in another state. Petitions under § 126 to enforce this requirement are not new. Nonetheless, the rule is noteworthy.  As EPA stated, this is the first sole-source petition under § 126. EPA spokesman Lawrence Ragonese described the rule as “precedent-setting” and said that it opened the door for other such petitions. 

Second, I think that the rule has to be seen in the context of the current debate in Congress over EPA’s CAA authority. The fact sheet specifically notes that the rule requires the same type of controls as would the Cross-State Air Pollution Rule and the Mercury and Air Toxics Standard, both of which are under attack at the moment. By essentially inviting other § 126 petitions, EPA seems to be signaling to Congress that attacking the CSAPR and MATS rules won’t make the problem go away. Presumably, too, the message is that the comprehensive approach in the CSAPR, which permits as much trading as the CAA allows, might be a better option than forcing EPA to respond to – and generators to comply with – individual petitions under § 126.

Finally, and on a related note, issuance of the rule seems consistent with Administrator Jackson’s remarks late last week, described by E&E Daily as a “vow” to “crack down on coal.” If EPA’s recent retreat on the revised NAAQS for NOx and its delays in issuance of other rules might have led some observers to conclude that EPA was backing down, Jackson’s remarks seem explicitly designed to announce that EPA will not be backing down. In that context, the grant of the petition would seem to be a tangible demonstration that she really means it.

The battle is clearly not over, but the petition does illustrate one important factor – much of what EPA does is not really discretionary. Rather, it is mandated by some existing provision of the CAA. If Congress is not happy with EPA, it really has only itself to blame. If it wants less regulation; it is going to have to vote to amend the CAA in significant ways – and, presumably, survive a presidential veto.