EPA Regulates Individual Air Emission Source due to Interstate Impacts
For the first time, EPA has established facility-specific emission requirements in response to a petition claiming that the source's emissions caused air pollution in a "downwind" state. Pursuant to Section 126 of the Federal Clean Air Act, any party, including a state, can petition EPA to determine that emissions from an out-of-state source or sources is causing or significantly contributing to nonattainment with a national ambient air quality standard ("NAAQS") in the petitioning state. Because the petitioning state has no authority to impose requirements directly on the out-of-state source, Section 126 creates a vehicle for EPA to exert its authority to impose such controls.
In the past, EPA typically resolved Section 126 petitions in the context of broader rulemaking efforts, notably including the so-called NOx Budget Rule and the Clean Air Interstate Rule ("CAIR"). These broader regulatory promulgations avoided the need for EPA to confront source-specific issues.
The State of New Jersey has contended for many years that sulfur dioxide ("SO2") emissions from the Portland electric generating facility in Upper Mount Bethel Township, Pennsylvania are causing or significantly contributing to nonattainment with the SO2 NAAQS within New Jersey. New Jersey determined to seek relief from EPA by filing a petition under Section 126, requesting EPA to both determine that the Portland plant significantly contributes to nonattainment in New Jersey, and to impose emission restrictions on the plant to prevent such continued impact. In April 2011, EPA proposed to grant New Jersey’s petition and impose facility-specific emission limitations on the Portland facility. On November 7, 2011, EPA published in the Federal Register its final determination. The final rule imposes requirements upon the Portland plant to achieve significant reductions in emissions within three years.
EPA's determination is not only significant with respect to the obligations imposed upon the individual facility but more so because it establishes the precedent for EPA to impose site-specific emission limitations upon a source – not otherwise required by any federal or state regulatory standard – in response to a source-specific petition under Section 126. The significance of this precedent-setting determination may be somewhat undercut, however, by the specific facts. First, the EPA Administrator, Lisa Jackson, previously served as the Commissioner of the New Jersey Department of Environmental Protection, and had firsthand involvement with New Jersey's efforts to seek emission reductions from the Portland plant. Second, the emission control standards imposed through EPA's final rule in response to the Section 126 petition are not inconsistent with requirements that the facility might otherwise face through compliance with the recently promulgated Cross States Air Pollution Rule and/or the anticipated National Emission Standards for Hazardous Air Pollutants ("NESHAP") for Electric Generating Units. In addition, the three year compliance schedule aligns closely with the proposed NESHAP.