[Federal Register Volume 72, Number 177 (Thursday, September 13, 2007)]
[Proposed Rules]
[Pages 52325-52332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18057]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 62
[EPA-R03-OAR-2007-0345; FRL-8467-8]
Approval of Plan of the Commonwealth of Pennsylvania; Clean Air
Mercury Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to approve a State Plan submitted by the
Commonwealth of Pennsylvania (Pennsylvania) which addresses the
requirements of EPA's Clean Air Mercury Rule (CAMR), which EPA
promulgated on May 18, 2005 and subsequently revised on June 9, 2006.
EPA is proposing to determine that the submitted State Plan fully
implements the CAMR requirements for Pennsylvania.
CAMR requires States to regulate emissions of mercury (Hg) from
large coal-fired electric generating units (EGUs). CAMR establishes
State budgets for annual EGU mercury emissions and requires States to
submit State Plans that ensure that annual EGU mercury emissions will
not exceed the applicable State budget. States have the flexibility to
choose which control measures to adopt to achieve the budgets,
including
[[Page 52326]]
participating in the EPA-administered CAMR cap-and-trade program.
Pennsylvania chose to adopt a State-specific plan for the control
of mercury emissions from EGUs within the State instead of
participating in the EPA-administered CAMR cap-and-trade program.
Pennsylvania's plan includes a Pennsylvania-specific mercury control
regulation for coal-fired EGUs and other elements which the State
intends to implement to ensure that Pennsylvania meets its mercury
budget.
Pennsylvania's state-specific mercury control regulation
establishes annual mercury emission limitations for EGUs as part of a
Statewide nontradable mercury allowance program; sets mercury emissions
standards for EGUs; and includes monitoring, recordkeeping, reporting
and other provisions.
DATES: Comments must be received on or before October 15, 2007.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R03-OAR-2007-0345, by one of the following methods:
1. http://www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. E-mail: [email protected].
3. Mail: EPA-R03-OAR-2007-0345, Dave Campbell, Chief, Permits and
Technical Assessment Branch, Mailcode 3AP11, U.S. Environmental
Protection Agency, Region III, 1650 Arch Street, Philadelphia,
Pennsylvania 19103.
4. Hand Delivery or Courier: At the previously-listed EPA Region
III address. Such deliveries are only accepted during the Regional
Office's normal hours of operation.
Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-
2007-0345. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov or e-
mail, information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters and any form of
encryption and should be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy during normal business hours at the Air Protection
Division, U.S. Environmental Protection Agency, Region III, 1650 Arch
Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal
are also available at the Pennsylvania Department of Environmental
Resources, Bureau of Air Quality Control, P.O. Box 8468, 400 Market
Street, Harrisburg, Pennsylvania 17105.
FOR FURTHER INFORMATION CONTACT: Mr. Ray Chalmers at 215-814-2061, or
by e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Action Is EPA Proposing To Take?
II. What Is the Regulatory History of CAMR?
III. What Are the General Requirements of CAMR?
IV. How Can States Comply With CAMR?
V. Analysis of Pennsylvania's CAMR State Plan Submittal
A. EPA Is Proposing To Find That Pennsylvania's State Plan Meets
All CAMR Budget Related and Other Requirements for Approval
B. Summary of State Plan
VI. Statutory and Executive Order Reviews
I. What Action Is EPA Proposing To Take?
EPA is proposing to approve Pennsylvania's State Plan for the
control of mercury emissions from coal-fired EGUs, as submitted by
Pennsylvania on November 6, 2006, and as subsequently revised by
Pennsylvania on March 16, 2007. EPA is proposing to determine that the
State Plan will meet the applicable requirements of CAMR. In its State
Plan, Pennsylvania would meet CAMR requirements by implementing a
Pennsylvania-specific mercury control regulation for coal-fired EGUs,
rather than through participation in the EPA-administered CAMR cap-and-
trade program. Pennsylvania's state-specific regulation establishes
annual emission limitations as part of a Statewide mercury nontradable
allowance program; sets mercury emissions standards; and includes other
requirements for the purpose of controlling mercury emissions from
coal-fired EGUs.
II. What Is the Regulatory History of CAMR?
CAMR was published by EPA on May 18, 2005 (70 FR 28606, ``Standards
of Performance for New and Existing Stationary Sources: Electric
Utility Steam Generating Units; Final Rule''). In this rule, acting
pursuant to its authority under section 111(d) of the Clean Air Act
(CAA), 42 U.S.C. 7411(d), EPA required that all States and the District
of Columbia (all of which are referred to herein as States) meet
Statewide annual budgets limiting mercury emissions from coal-fired
EGUs (as defined in 40 CFR 60.24(h)(8)) under Clean Air Act (CAA)
section 111(d). EPA required all States to submit State Plans with
control measures that ensure that total, annual mercury emissions from
the coal-fired EGUs located in the respective States do not exceed the
applicable Statewide annual EGU mercury budget. Under CAMR, States may
implement and enforce these reduction requirements by participating in
the EPA-administered cap-and-trade program or by adopting any other
effective and enforceable control measures.
CAA section 111(d) requires States, and, along with CAA section
301(d) and the Tribal Air Rule (40 CFR part 49), allows Tribes granted
treatment as States (TAS), to submit State Plans to EPA that implement
and enforce the standards of performance. CAMR explains what must be
included in State Plans to address the requirements of CAA section
111(d). The State Plans were due to EPA by November 17, 2006. Under 40
CFR 60.27(b), the Administrator will approve or disapprove the State
Plans.
III. What Are the General Requirements of CAMR State Plans?
CAMR establishes Statewide annual EGU mercury emission budgets and
is to
[[Page 52327]]
be implemented in two Phases. The first Phase of reductions starts in
2010 and continues through 2017. The second Phase of reductions starts
in 2018 and continues thereafter. CAMR requires States to implement the
budgets by either: (1) Requiring coal-fired EGUs to participate in the
EPA-administered cap-and-trade program; or (2) adopting other coal-
fired EGU control measures of the respective State's choosing and
demonstrating that such control measures will result in compliance with
the applicable State annual EGU mercury budget.
Each State Plan must require coal-fired EGUs to comply with the
monitoring, recordkeeping, and reporting provisions of 40 CFR part 75
concerning mercury mass emissions. Each State Plan must also show that
the State has the legal authority to adopt emission standards and
compliance schedules necessary for attainment and maintenance of the
State's annual EGU mercury budget and to require the owners and
operators of coal-fired EGUs in the State to meet the monitoring,
recordkeeping, and reporting requirements of 40 CFR part 75.
IV. How Can States Comply With CAMR?
Each State Plan must impose control requirements that the State
demonstrates will limit Statewide annual mercury emissions from new and
existing coal-fired EGUs to the amount of the State's applicable annual
EGU mercury budget. States have the flexibility to choose the type of
EGU control measures they will use to meet the requirements of CAMR.
EPA anticipates that many States will choose to meet the CAMR
requirements by selecting an option that requires EGUs to participate
in the EPA-administered CAMR cap-and-trade program. EPA also
anticipates that many States may choose to control Statewide annual
mercury emissions for new and existing coal-fired EGUs through an
alternative mechanism other than the EPA-administered CAMR cap-and-
trade program. Each State that chooses an alternative mechanism must
include with its plan a demonstration that the State Plan will ensure
that the State will meet its assigned State annual EGU mercury emission
budget.
A State submitting a State Plan that requires coal-fired EGUs to
participate in the EPA-administered CAMR cap-and-trade program may
either adopt regulations that are substantively identical to the EPA
model mercury trading rule (40 CFR part 60, subpart HHHH) or
incorporate by reference the model rule. CAMR provides that States may
only make limited changes to the model rule if the States want to
participate in the EPA-administered trading program. A State Plan may
change the model rule only by altering the allowance allocation
provisions to provide for State-specific allocation of mercury
allowances using a methodology chosen by the State. A State's
alternative allowance allocation provisions must meet certain
allocation timing requirements and must ensure that total allocations
for each calendar year will not exceed the State's annual EGU mercury
budget for that year.
V. Analysis of Pennsylvania's CAMR State Plan Submittal
A. EPA Is Proposing To Find That Pennsylvania's State Plan Meets All
CAMR Budget Related and Other Requirements for Approval
In today's action, EPA is proposing to approve Pennsylvania's State
Plan as assuring that mercury emissions from the State's EGUs will not
exceed the levels specified in the CAMR budget for Pennsylvania found
at 40 CFR 60.24(h)(3), i.e., 1.779 tons per year for EGU mercury
emissions in Phase 1 and 0.702 tons per year for EGU mercury emissions
in Phase 2.
The State Plan includes a State-specific regulation which requires
owners or operators of affected new or existing coal-fired EGUs \1\ to
comply with a Statewide mercury nontradable allowance program among
other provisions. Pennsylvania assured that the regulation would apply
to all of the EGUs which have emissions required to be accounted for
under the CAMR budget for Pennsylvania by using in the regulation a
definition of EGU consistent with the definition specified in CAMR at
40 CFR 60.24(h)(8). Pennsylvania's Statewide mercury nontradable
allowance program, limits total mercury emissions from EGUs in the
State to the same Phase 1 and Phase 2 amounts as are set forth in the
CAMR budget for Pennsylvania found at 40 CFR 60.24(h)(3).
Pennsylvania's mercury nontradeable allowance program requires its
Phase 1 reductions to be achieved starting January 1, 2010, the same
date as the Phase 1 reductions are required to be achieved under the
CAMR, but requires its Phase 2 reductions to be achieved starting
January 1, 2015, earlier than the required Phase 2 reductions under
CAMR.
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\1\ EPA notes that Pennsylvania's definitions of ``existing
EGU'' and ``new EGU'' overlap in that an EGU that ``commenced
construction, modification, or reconstruction'' on January 1, 2004
would be covered by both definitions. EPA believes that this
technical problem with the rule will likely have no practical
consequence since it is unlikely that there will be such a unit and
Pennsylvania can resolve this if and when a problem arises.
Therefore, EPA's proposed approval includes these definitions.
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Pennsylvania's State-specific regulation implements the annual
limits on total mercury emissions of EGUs in the State by setting aside
for each EGU an amount of nontradable allowances that comprises the
annual emission limitation (in ounces of mercury emissions) for that
EGU. The amount set aside may include allowances requested by the owner
or operator and provided from an annual emission limitation supplement
pool. Further, the regulation states, in Sec. 123.207(p), that an
owner or operator must demonstrate compliance with annual emission
limitation on a unit-by-unit, facility-wide, or system-wide basis and
explains, in Sec. 123.207(q) and (r), that, under facility-wide or
system-wide compliance, the total annual emissions from the EGUs
involved must be less than the total amount of allowable annual
emissions for such EGUs. However, the regulation also provides, in
Sec. Sec. 123.207(j)(5) and 123.209, that each ounce of emissions by
an EGU, facility, or system, as applicable, in excess of the amount of
allowances set aside for the EGU, facility, or system, including any
set aside under Sec. 123.209, constitutes a violation. EPA interprets
Sec. 123.207(j)(5) and (p) through (r) and Sec. 123.209 as requiring
that the total mercury emissions from an EGU, or from the appropriate
group of EGUs where compliance is on a facility-wide or system-wide
basis, determined in accordance with Sec. Sec. 123.210-123.215, must
not exceed the total amount of allowances set aside for the EGU or the
appropriate group of EGUs, including any allowances set aside from the
annual emission limitation supplement pool, for the year.
It should be noted that Pennsylvania's mercury reduction regulation
also restricts the emissions of mercury from existing and new coal-
fired EGUs through the imposition of emission standards. These
standards, established in Sec. 123.205, are to be achieved in addition
to the Statewide mercury nontradeable allowance program provisions
described above. The CAMR does not establish or require similar
emissions standards to be applied to individual emission units. As
discussed above, CAMR requires a demonstration that the State Plan will
ensure that the State will meet its assigned State annual EGU mercury
emission budget. Pennsylvania meets this requirement through the
establishment of its Statewide nontradeable mercury allowance program
and not through the
[[Page 52328]]
emission limitations required by Sec. 123.205.
In addition, EPA is proposing to approve Pennsylvania's Plan,
interpreted as discussed below, as meeting the CAMR provision that
State plans must require owners and operators of coal-fired EGUs to
meet the monitoring, recordkeeping, and reporting requirements of 40
CFR part 75. The provisions of the regulation included in the State's
plan concerning monitoring, recordkeeping, and reporting, found at
Sec. Sec. 123.210-123.215, are intended to be consistent with the
monitoring, reporting, and recordkeeping requirements for mercury mass
emissions in 40 CFR part 75, Subpart I and in EPA's CAMR model rule,
which is based on and references 40 CFR part 75, Subpart I. Section
123.210(a) and (b) states that, for purposes of compliance with 12-
month rolling average mercury emission requirements in Sec. 123.205
and annual mercury mass emission requirements in Sec. 123.207, the
monitoring, reporting, and recordkeeping requirements of Sec. Sec.
123.210-123.215 and 139.101, 40 CFR part 75, Subpart I, and
Pennsylvania's Continuous Source Monitoring Manual (DEP 274-0300-001)
apply. The manual (at 1), in turn, states that part 75 applies to
``monitoring systems required pursuant to only'' part 75 (e.g., mercury
mass monitoring systems) and that ``[a]pproval for compliance with
[part 75] must be obtained from'' EPA. In addition, Sec. 123.210(k)
states that an owner or operator may not use any alternative to a part
75 requirement unless the alternative is approved by the Administrator
in writing. EPA therefore interprets the monitoring, reporting, and
recordkeeping requirements in Pennsylvania's regulation as requiring
owners and operators to meet the requirements of 40 CFR part 75,
Subpart I and providing that, if there is any conflict between those
requirements and any other requirements set forth in Sec. Sec.
123.210-123.215, the part 75 provisions will take precedence for the
purpose of compliance with annual mercury mass emission requirements.
Specifically, Pennsylvania's regulation includes provisions, in
Sec. 123.210(n)(1), allowing discontinuation of use of an approved
monitoring system when the owner or operator is using another certified
monitoring system for the appropriate parameter that is approved by the
department in accordance with Sec. Sec. 123.210-123.215 and Chapter
139, Subchapter C. In light of the other provisions of Pennsylvania's
regulation discussed above, EPA interprets Sec. 123.210(n)(1) as
allowing discontinuation of an approved monitoring system used for
determining compliance with the annual mercury mass emission
requirements in Sec. 123.207 only if another monitoring system for the
appropriate parameter is approved in accordance with part 75, subpart
I.\2\
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\2\ EPA notes that Sec. 123.210(j) incorrectly references
``subsections (f)-(h)'' (rather than just subsection (h)) and that
the provision only makes sense where a certified monitoring system
already exists and a new stack or flue or new control device is
added, which is addressed only in subsection (h). In any event, that
Sec. 123.210(j) is based on a provision in Sec. 60.4170(c)(2) that
EPA has proposed to remove. See 71 FR 77100, 77117 (2006). EPA
interprets Sec. 123.210(j) to apply only with regard to subsection
(h), and, if EPA finalizes removal of Sec. 60.4170(c)(2), Sec.
123.210(j ) will no longer apply at all for the purpose of
compliance with the annual mercury mass emission limitation under
Sec. 123.207.
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Further, Pennsylvania's regulation includes provisions, in Sec.
123.211(a)(5)(iii), requiring the substitution of alternative data in
cases where the State ``issues a notice of disapproval of a
certification application or a notice of disapproval of certification
status'' and allowing the substitution of either data values as
specified in part 75 or ``an alternative emission value that is more
representative of actual emissions that occurred during the period.''
In light of the other provisions of Pennsylvania's regulation discussed
above, EPA interprets Sec. 123.211(a)(5)(iii) as giving Pennsylvania
the authority to approve substitute data values other than those
specified by part 75 only in cases where those data values would be
used solely for the purpose of showing compliance with the mercury
emission requirements in Sec. 123.205 and not for any data required
for the purpose of showing compliance with the annual mercury mass
emission limitation in Sec. 123.207.
Similarly, Sec. 123.212(a) of Pennsylvania's regulations requires
the use of substitute data based on the Continuous Source Monitoring
Manual if a monitoring system fails to meet certain quality-assurance,
quality-control, or data validation requirements. As discussed above,
the manual requires mercury mass emission monitoring systems to meet
the requirements of part 75. Further, Sec. 123.212(a) also states that
a mercury mass emission monitoring system failing to meet quality-
assurance or quality-control requirements must use substitute data
under part 75. EPA therefore interprets Sec. 123.212(a) to require the
use of substitute data as prescribed in part 75 for the purpose of
showing compliance with the annual mercury mass emission limitation in
Sec. 123.207.
EPA is also proposing to approve the Plan as meeting the
requirements of CAMR, and also of 40 CFR Subpart B, entitled,
``Adoption and Submittal of State Plans for Designated Facilities,''
for a demonstration of legal authority. The State's Plan includes an
opinion by the Chief Counsel of the Pennsylvania Department of
Environmental Protection which demonstrates that the State has the
required legal authority to adopt emission standards and compliance
schedules necessary for attainment and maintenance of the State's
annual EGU mercury budget and to require the owners and operators of
coal-fired EGUs in the State to meet the monitoring, recordkeeping, and
reporting requirements of 40 CFR part 75.
Finally, EPA is proposing to approve the State's Plan as meeting
the other applicable general requirements for approval under 40 CFR
part 60, subpart B. The State's Plan requires owners and operators of
affected coal-fired EGUs in Pennsylvania to comply with emission
limitations (expressed as nontradable mercury allowances) that ensure
that total emissions from the affected coal-fired EGUs in Pennsylvania
will not exceed the CAMR budget for Pennsylvania found at 40 CFR
60.24(h)(3). The State's Plan also requires owners or operators of
affected coal-fired EGUs to achieve mercury emission reductions on a
schedule that is equivalent to, or more rapid than, the schedule under
CAMR. The State's Plan includes evidence that three public hearings
were held, and also that public notice of these hearings was provided.
The State's Plan also includes an emissions inventory of the State's
EGUs.
EPA describes the State's Plan in more detail below.
B. Summary of State Plan
Pennsylvania's State Plan includes a State regulation at 25 Pa.
Code, Chapter 123, Standards for Contaminants; Mercury, Annex A.
Pennsylvania's state-specific mercury control regulation establishes
annual mercury emission limitations for EGUs as part of a Statewide
mercury nontradable allowance program, sets mercury emissions standards
for EGUs, and includes monitoring, recordkeeping, reporting and other
provisions.
Pennsylvania's State-specific regulation is applicable to all of
the EGUs which have emissions required to be accounted for under the
CAMR budget for Pennsylvania found at 40 CFR 60.24(h)(3). Pennsylvania
assured that the regulation would apply to all of the EGUs which have
emissions required to be accounted for under the CAMR budget for
Pennsylvania by using
[[Page 52329]]
in the regulation a definition of EGU consistent with the definition
specified in CAMR at 40 CFR 60.24(h)(8).
The Statewide mercury nontradable allowance program ensures that
the mercury emissions from new and existing EGUs in the State will not
exceed the CAMR budget for Pennsylvania found at 40 CFR 60.24(h)(3) by
limiting total mercury emissions from EGUs in the State to the same
Phase 1 and Phase 2 amounts as specified in the CAMR budget for the
State. Under the Statewide mercury nontradable mercury allowance
program the total amount of mercury emissions allowed to be emitted
from affected coal-fired EGUs is 56,928 ounces (3,558 lbs or 1.779
tons) per year during Phase 1 extending from January 1, 2010 through
December 31, 2014, and 22,464 ounces (1,404 pounds or 0.702 tons) per
year during Phase 2 starting January 1, 2015 (rather than January 1,
2018, as specified in the CAMR budget for Pennsylvania found at 40 CFR
60.24(h)(3)) and continuing in subsequent years.
The Statewide mercury nontradable allowance program provides that
of the total of 56,928 ounces per year of mercury emissions available
for emission limitation set-asides during Phase 1, 54,080 ounces will
be allocated to existing affected EGUs and the remaining five (5)
percent will be set-aside for use by new affected EGUs. The Statewide
mercury nontradable allowance program further provides that of the
22,464 ounces per year of mercury emissions available for emission
limitation set-asides during Phase 2, 21,790 ounces will be allocated
to existing affected coal-fired EGUs and the remaining three (3)
percent will be set aside for new affected coal-fired EGUs.
The Statewide mercury nontradable allowance program provides that
the annual nontradeable allowances set aside for owners and operators
of new affected coal-fired EGUs shall be placed in an annual emission
limitation supplement pool administered by the State. Upon petition by
owners or operators of new affected EGUs, Pennsylvania may grant annual
nontradeable allowances for the new affected coal-fired EGUs from this
annual emission limitation supplement pool.
Under the Statewide mercury nontradable allowance program owners or
operators of new affected coal-fired EGUs that do not yet have a
baseline heat input will be allocated allowances in accordance with the
requirements of an approved State permit. The Statewide mercury
nontradable allowance program specifies that after a new affected coal-
fired EGU has commenced operation and completed three control periods
of operation, the EGU will become an existing EGU. The Statewide
mercury nontradable allowance program provides that a new affected EGU
will continue to receive annual nontradeable mercury allowances from
the new unit set-aside until the new affected EGU is eligible for
annual nontradable mercury allowances allocated from the set-aside for
existing EGUs. Under the allowance program when a new affected EGU is
eligible to receive annual nontradable mercury allowances from the set-
aside for existing affected EGUs, new maximum allowance levels for all
existing affected EGUs will be established, and the State will publish
these new allocation levels in the Pennsylvania Bulletin for comment by
May 31 of the year that is two years prior to the affected control
period.
The Statewide mercury nontradable allowance program provides for
determining the maximum number of annual nontradeable allowances set
aside for the owners or operators of all existing affected coal-fired
EGUs, except for owners or operators of existing circulating fluidized
bed (CFB) units, by multiplying the EGU's baseline heat input fraction
of the State's total baseline annual heat input from all affected EGUs
by the State's annual mercury allowance set-aside for existing affected
EGUs for each Phase.
The Statewide mercury nontradable allowance program provides for
determining the maximum number of annual nontradable mercury allowances
set aside for owners or operators of existing affected CFB units by
multiplying the affected CFB's baseline heat input fraction of the
State's total baseline annual heat input for all EGUs by the State's
Phase 2 annual mercury allowance for existing EGUs.
The Statewide mercury nontradable allowance program provides that
the State will publish for comment in the Pennsylvania Bulletin, by May
31, 2008, the maximum number of annual nontradeable allowances set
aside for ``the owner or operator of each existing affected CFB and EGU
other than CFB for Phase 1 of the Statewide mercury allowance
program,'' and that it will publish for comment in the Pennsylvania
Bulletin, by May 31, 2013, the maximum number of annual nontradeable
allowances set aside for ``the owner or operator of each existing
affected CFB and EGU other than CFB for Phase 2 of the Statewide
mercury allowance program.''
The Statewide mercury nontradable allowance program specifies that
the actual number of annual nontradable mercury allowances awarded to
the owner or operator of the EGU, facility, or system shall be based on
the actual emissions reported to the State. The Statewide mercury
nontradable allowance program further specifies that the actual number
of annual nontradable mercury allowances awarded to the owner or
operator of the EGU, facility, or system may not exceed the maximum
number of annual nontradeable mercury allowances assigned to the owner
or operator of the EGU, facility, or system, except in cases where the
owner or operator has petitioned for and been granted supplemental
allowances. Under the Statewide mercury nontradable allowance program
the State could provide such allowances from its annual emission
limitation supplement pool.
The Statewide mercury nontradable allowance program provides that
by March 31 of the year following each reporting year, Pennsylvania
will notify the owner or operator of each affected EGU, facility, or
system, in writing, of the actual number of annual nontradable mercury
allowances awarded to the owner or operator of the affected EGU,
facility, or system for the control period.
The Statewide mercury nontradable allowance program provides that
the owner or operator of one or more affected mercury allowance program
EGUs shall demonstrate compliance either on: (1) A unit-by-unit basis,
(2) a facility-wide basis, or (3) a system-wide basis. Under the
Statewide mercury nontradable allowance program, each ounce of mercury
emitted in excess of the maximum number of annual nontradable mercury
allowances set aside for the owner or operator of an EGU, facility, or
system constitutes a violation of the program and of Pennsylvania's Air
Pollution Control Act, unless the owner or operator has petitioned for
and has been granted supplemental allowances.
Under the Statewide mercury nontradable allowance program if the
actual emissions of mercury reported to the State for an EGU, facility,
or system are less than the maximum number of annual nontradeable
mercury allowances set aside for the owner or operator of the EGU,
facility, or system, the State will place the unused portion of the
allowances in its annual emission limitation supplement pool.
The Statewide mercury nontradable allowance program specifies that
the unused portion of annual nontradeable mercury emission allowances
assigned
[[Page 52330]]
to the owner or operator of an affected EGU, facility, or system for
any year may not be added to the maximum number of annual nontradable
mercury allowances assigned to the owner or operator of the affected
EGU, facility, or system for use in future years. Under the Statewide
mercury nontradable allowance program annual nontradable mercury
allowances may not be banked for use in future years.
The Statewide mercury nontradable allowance program does not apply
to the owner or operator of an EGU that will be permanently shutdown no
later than December 31, 2009. The allowance program provides that
annual nontradable mercury allowances will not be set aside for the
owner or operator of an existing affected EGU that is already shut down
or scheduled for shutdown unless the owner or operator of the EGU
obtains a plan approval for the construction of a new EGU, or is on
``standby'' as of the effective date of each set-aside Phase. When a
standby unit is ready for normal operation, the owner or operator may
petition the State for annual nontradeable allowances. Under the
regulation's allowance program the State could provide such allowances
from its annual emission limitation supplement pool.
The Statewide mercury nontradable allowance program specifies that
an owner or operator of an existing affected EGU who enters into an
enforceable agreement with the State, by December 31, 2007, to shutdown
that existing EGU and to replace it, by December 31, 2012, with a new
Integrated Gasification Combined Cycle (IGCC) unit, is eligible to
request annual nontradable mercury allowances from the annual emission
limitation supplement pool.
The Statewide mercury nontradable allowance program provides that
the State may revise the percentage of set-aside used to determine the
number of ounces of mercury set-aside for future annual mercury
emission limitations to accommodate the emissions from new EGUs, or
changes in the calculation of baseline heat input, so that the total
number of ounces of mercury emissions in the Statewide mercury
nontradable allowance program is not exceeded.
Pennsylvania's regulation requires owners or operators of EGUs not
only to keep the emissions of their EGUs at or below levels consistent
with their allowances for their EGUs, but also to meet emission limits.
The emission limits for EGUS vary depending upon whether or not the EGU
qualifies as a new or existing unit and on the type of EGU.
The regulation defines a new EGU as ``[a]n EGU which commenced
construction modification, or reconstruction, as defined under 40 CFR
Part 60 (relating to standards of performance for new stationary
sources), on or after January 30, 2004, and has less than three
complete control periods of heat input data as of December 31 of the
preceding control period.'' The regulation defines an existing EGU as
``[a]n EGU which commenced construction, modification or reconstruction
on or before January 30, 2004, or which has three complete control
periods of heat input data as of December 31 or the preceding control
period.''
For new EGUs, Pennsylvania's regulation requires the owner or
operator to comply at the commencement of operation on a rolling 12
month basis with one of the following standards:
(1) Pulverized Coal Fired (PCF) EGU. The owner or operator of a PCF
EGU shall comply with either or the following:
(i) A mercury emission standard of 0.011 pound of mercury per
Gigawatt-hour (GWh).
(ii) A minimum 90% control of total mercury as measured from the
mercury content in the coal, either as fired or as approved in writing
by Pennsylvania.
(2) Circulating Fluidized Bed (CFB) EGU. The owner or operator of a
CFB EGU shall comply with the following applicable provisions:
(i) CFB EGUs burning 100% coal refuse as the only solid fossil fuel
shall comply with either of the following:
(A) A mercury emission standard of 0.0096 pound of mercury per GWh.
(B) A minimum 95% control of total mercury as measured from the
mercury content in the coal refuse, either as fired or as approved in
writing by the State.
(ii) CFB EGU's burning 100% coal as the only solid fossil fuel
shall comply with either of the following:
(A) A mercury emission standard of 0.011 pound of mercury per GWh.
(B) A minimum 90% control of total mercury as measured from the
mercury content in the coal refuse, either as fired or as approved in
writing by the State.
(iii) CFB EGUs burning multiple fuels shall comply with a prorated
emission standard based on the percentage of heat input from the coal
and the percentage of heat input from the coal refuse.
(3) Integrated Gasification Combined Cycle (IGCC) EGU. The owner or
operator of an IGCC EGU shall comply with one of the following:
(i) A mercury emission standard of 0.0048 pound of mercury per GWh.
(ii) A minimum 95% control of total mercury as measured from the
mercury content in the coal, either as processed or as approved in
writing by the State.
Pennsylvania's regulation notifies owners or operators of new EGUs
that they are also required to comply with the New Source Performance
Standards (NSPS) found at 40 CFR Part 60, Subpart Da. In addition, the
regulation indicates that the State's emission standards will serve as
the baseline the State uses for review and approval of case-by-case
best available technology determinations in accordance with the State's
requirements relating to construction, modification, reactivation and
operation of sources.
For existing EGUs, the regulation requires the owner or operator to
comply on a rolling 12-month basis with one of the following standards:
(1) Phase 1--Effective from January 1, 2010 through December 31,
2014:
(i) PCF EGU--The owner or operator of a PCF shall comply with one
of the following:
(A) A mercury emission standard of 0.024 pound of mercury per GWh.
(B) A minimum 80% control of total mercury as measured from the
mercury content in the coal, either as fired or as approved in writing
by the State.
(ii) CFB EGU--The owner or operator of a CFB burning coal refuse
shall comply with one of the following:
(A) A mercury emission standard of 0.0096 pound of mercury per GWh.
(B) A minimum 95% control of total mercury as measured from the
mercury content in the coal refuse, either as fired or as approved in
writing by the State.
(2) Phase 2--Effective beginning January 1, 2015, and each
subsequent year:
(i) PCF EGU--The owner or operator of a PCF shall comply with one
of the following:
(A) A mercury emission standard of 0.012 pound of mercury per GWh.
(B) A minimum 90% control of total mercury as measured from the
mercury content in the coal, either as fired or as approved in writing
by the State.
(ii) CFB EGU--The owner or operator of a CFB burning coal refuse
shall comply with one of the following:
(A) A mercury emission standard of 0.0096 pound of mercury per GWh.
(B) A minimum 95% control of total mercury as measured from the
mercury content in the coal refuse, either as fired or as approved in
writing by the State.
The regulation also provides that the owner or operator of an EGU
may request, in writing, credit for the mercury removal efficiency
resulting from the pretreatment of coal or coal refuse towards the
minimum specified percent control efficiency of the total mercury
requirements.
[[Page 52331]]
The regulation provides that the owner or operator of one or more
EGUs subject to the mercury emissions standards shall demonstrate
compliance on: (1) A unit-by-unit basis, or (2) a facility-wide basis.
Pennsylvania's regulation requires owners or operators of coal-
fired EGUs to comply with the monitoring, recordkeeping, and reporting
provisions of 40 CFR part 75 concerning mercury mass emissions. The
regulation provides that the monitoring, recordkeeping, and reporting
requirements of 40 CFR part 75 Subpart I (relating to mercury mass
emission provisions) apply, as well as other monitoring, recordkeeping
and reporting provisions which are Pennsylvania-specific, as discussed
in detail above. The regulation further indicates that Pennsylvania has
adopted by reference the provisions entitled ``Mercury Designated
Representative for Mercury Budget Sources,'' found in EPA's model rule,
40 CFR part 60, Subpart HHHH, at sections 60.4110 through 60.4114. In
addition, the regulation provides that, for purposes of complying with
its requirements, the definitions in 40 CFR 72.2 shall apply.
The regulation also includes provisions pertaining to initial
certification and recertification procedures for emissions reporting,
provisions for out-of-control periods for emissions monitors,
provisions pertaining to monitoring of gross electrical output,
provisions pertaining to coal sampling and analysis for input mercury
levels, and provisions pertaining to general recordkeeping and
reporting.
The regulation provides that owners or operators of new or existing
affected EGUs will be issued a State plan approval or operating permit
(including Title V permits) in which the applicable mercury control
requirements will be specified. The regulation specifies that these
plan approvals or permits will be issued before the later of January 1,
2010 or the date on which the affected EGU commences operation.
The regulation further provides, at Sec. 123.206, that the State's
Department of Environmental Protection (the Department) ``may approve
in a plan approval or operating permit, or both, an alternate mercury
emission standard or compliance schedule, or both, if the owner or
operator of an EGU subject to the emission standards of Sec. 123.205
demonstrates in writing to the Department's satisfaction that the
mercury reduction requirements are economically or technologically
infeasible. The Department's approval of such an alternative emission
standard or compliance schedule does not relieve the owner or operator
of the EGU from complying with the other requirements of Sec. Sec.
123.201-123.205 and 123.207-123.215.''
The State Plan also contains required non-regulatory elements. The
State Plan includes an inventory of the existing designated coal-fired
EGUs in the State, and provides data regarding the mercury emissions of
these EGUs. The Plan also provides documentation of the State's public
participation process, including copies of public notices announcing
public hearings and the opportunity to comment, a certification that
three public hearings were held, and a summary of comments received by
the State and of the State's responses. Further, the Plan includes a
legal opinion of the Chief Counsel of the Pennsylvania Department of
Environmental Protection which demonstrates that the State has the
legal authority to adopt emission standards and compliance schedules
necessary for attainment and maintenance of the State's annual EGU
mercury budget and to require the owners and operators of coal-fired
EGUs in the State to meet the monitoring, recordkeeping, and reporting
requirements of 40 CFR part 75.
VI. Statutory and Executive Order Reviews
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
proposed action is not a ``significant regulatory action'' and
therefore is not subject to review by the Office of Management and
Budget. For this reason, this action is also not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This
action merely proposes to approve State law as meeting Federal
requirements and would impose no additional requirements beyond those
imposed by State law. Accordingly, the Administrator certifies that
this proposed rule would not have a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act (5 U.S.C. 601 et seq.). Because this action proposes to approve
pre-existing requirements under State law and would not impose any
additional enforceable duty beyond that required by State law, it does
not contain any unfunded mandate or significantly or uniquely affect
small governments, as described in the Unfunded Mandates Reform Act of
1995 (Pub. L. 104-4).
This proposal also does not have Tribal implications because it
would not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes, as specified by Executive
Order 13175 (65 FR 67249, November 9, 2000).
This proposed action also does not have Federalism implications
because it would 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 (64 FR 43255,
August 10, 1999). This action merely proposes to approve a State rule
implementing a Federal standard. It does not alter the relationship or
the distribution of power and responsibilities established in the CAA.
This proposed rule also is not subject to Executive Order 13045
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997), because it approves a state rule
implementing a Federal standard.
Executive Order 12898, ``Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations,'' requires
Federal agencies to consider the impact of programs, policies, and
activities on minority populations and low-income populations. EPA
guidance \3\ states that EPA is to assess whether minority or low-
income populations face risk or a rate of exposure to hazards that is
significant and that ``appreciably exceed[s] or is likely to
appreciably exceed the risk or rate to the general population or to the
appropriate comparison group.'' (EPA, 1998) Because this rule merely
proposes to approve a state rule implementing the Federal standard
established by CAMR, EPA lacks the discretionary authority to modify
today's regulatory decision on the basis of environmental justice
considerations. However, EPA has already considered the impact of CAMR,
including this Federal standard, on minority and low-income
populations. In the context of EPA's CAMR published in the Federal
Register on May 18, 2005, in accordance with EO 12898, the Agency has
considered whether CAMR may have disproportionate negative impacts on
minority or low income populations and determined it would not.
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\3\ U.S. Environmental Protection Agency, 1998. Guidance for
Incorporating Environmental Justice Concerns in EPA's NEPA
Compliance Analyses. Office of Federal Activities, Washington, DC,
April, 1998.
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In reviewing State Plan submissions, EPA's role is to approve State
choices,
[[Page 52332]]
provided that they meet the criteria of the CAA. In this context, in
the absence of a prior existing requirement for the State to use
voluntary consensus standards (VCS), EPA has no authority to disapprove
a State Plan for failure to use VCS. It would thus be inconsistent with
applicable law for EPA, when it reviews a State Plan submission, to use
VCS in place of a State Plan submission that otherwise satisfies the
provisions of the CAA. Thus, the requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) do not apply. This rule proposing to approve Pennsylvania's State
Plan submittal for the CAMR requirements would not impose an
information collection burden under the provisions of the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
List of Subjects in 40 CFR Part 62
Environmental protection, Air pollution control, Electric
utilities, Intergovernmental relations, Mercury, Reporting and
recordkeeping requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: September 4, 2007.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E7-18057 Filed 9-12-07; 8:45 am]
BILLING CODE 6560-50-P