Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 62213 

law or otherwise impracticable. 

Voluntary consensus standards are 

technical standards (e.g., material 

specifications, test methods, sampling 

procedures, business practices) 

developed or adopted by one or more 

voluntary consensus bodies. The 

NTTAA requires EPA to provide 

Congress, through the OMB, with 

explanations when EPA decides not to 

use available and applicable voluntary 

consensus standards. 

The final Section 112(n) Revision 

Rule did not involve technical standards 

and, therefore, the NTTAA did not 

apply. Similarly, this notice of 

reconsideration does not involve 

technical standards and, therefore, the 

NTTAA does not apply. 

Dated: October 21, 2005. 

Stephen L. Johnson, 

Administrator. 

[FR Doc. 05–21456 Filed 10–27–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[OAR–2002–0056; FRL–7989–2] 

RIN 2060–AN50 

Standards of Performance for New and 

Existing Stationary Sources: Electric 

Utility Steam Generating Units: 

Reconsideration 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of reconsideration of 

final rule; request for public comment; 

notice of public hearing. 

SUMMARY: On May 18, 2005, pursuant to 

section 111 of the Clean Air Act (CAA), 

EPA published a final rule, entitled 

‘‘Standards of Performance for New and 

Existing Stationary Sources: Electric 

Steam Generating Units’’ (the Clean Air 

Mercury Rule or CAMR; see 70 FR 

28606). The final rule establishes 

standards of performance for emissions 

of mercury (Hg) from new and existing 

coal-fired electric utility steam 

generating units (Utility Units or EGU). 

After the notice of final rule appeared 

in the Federal Register, the 

Administrator received four petitions 

for reconsideration of certain aspects of 

CAMR. In this notice, EPA is 

announcing reconsideration of specific 

issues in CAMR, and we are requesting 

comment on those issues. 

We are seeking comment only on the 

aspects of CAMR specifically identified 

in this notice. We will not respond to 

any comments addressing other 

provisions of CAMR or any related 

rulemakings. 

DATES: Comments. Comments must be 

received on or before December 19, 

2005. Because of the need to resolve the 

issues raised in this notice in a timely 

manner, EPA will not grant requests for 

extensions beyond this date. 

Public Hearing. A public hearing will 

be held on November 17, 2005. For 

further information on the public 

hearing and requests to speak, see the 

ADDRESSES section of this preamble. 

ADDRESSES: Comments. Submit your 

comments, identified by ‘‘Docket ID No. 

OAR–2002–0056 (Legacy Docket ID No. 

A–92–55),’’ by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Web site: http:// 

docket.epa.gov/edkpub/index.jsp. 

EDOCKET, EPA’s electronic public 

docket and comment system, is EPA’s 

preferred method for receiving 

comments. Follow the on-line 

instructions for submitting comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: (202) 566–1741. 

• Mail: Air and Radiation Docket and 

Information Center, U.S. EPA, Mailcode: 

6102T, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460. 

• Hand Delivery: Air and Radiation 

Docket and Information Center, U.S. 

EPA, Room B102, 1301 Constitution 

Avenue, NW., Washington, DC. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions. Direct your comments to 

Docket ID No. OAR–2002–0056 (Legacy 

Docket ID No. A–92–55). EPA’s policy is 

that all comments received will be 

included in the public docket without 

change and may be made available 

online at http://www.epa.gov/edkpub/ 

index.jsp, 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 information that you 

consider to be CBI or otherwise 

protected through EDOCKET, 

regulations.gov, or e-mail. The EPA 

EDOCKET and the Federal 

regulations.gov Web sites are 

‘‘anonymous access’’ systems, 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 

EDOCKET or regulations.gov, your email 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, any form 

of encryption, and be free of any defects 

or viruses. 

Public Hearing. The public hearing 

will run from 8 a.m. to 5 p.m., Eastern 

time, and will be held in Room 111C at 

the EPA facility, Research Triangle Park, 

NC. Persons interested in attending the 

hearing or wishing to present oral 

testimony should notify Ms. Pamela 

Garrett at least 2 days in advance of the 

public hearing (see FOR FURTHER

INFORMATION CONTACT section of this 

preamble). The public hearing will 

provide interested parties the 

opportunity to present data, views, or 

arguments concerning this notice. If no 

one contacts Ms. Garrett in advance of 

the hearing with a request to present 

oral testimony at the hearing, we will 

cancel the hearing. The record for this 

action will remain open for 30 days after 

the date of the hearing to accommodate 

submittal of information related to the 

public hearing. 

Docket. All documents in the docket 

are listed in the EDOCKET index at 

http://www.epa.gov/edkpub/index.jsp. 

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 copy 

righted 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 EDOCKET or in 

hard copy at the Air and Radiation 

Docket and Information Center, U.S. 

EPA, Room B102, 1301 Constitution 

Avenue, 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 and 

Radiation Docket and Information 

Center is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Contact Mr. William Maxwell, 

Combustion Group, Emission Standards 

Division, Mail Code: C439–01, U.S. 

62214 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 

EPA, Research Triangle Park, NC 27711; 

telephone number: (919) 541–5430; fax 

number: (919) 541–5450; e-mail address: 

maxwell.bill@epa.gov. For questions 

about the public hearing, contact Ms. 

Pamela Garrett, Combustion Group, 

Emission Standards Division, Mail 

Code: C439–01, Environmental 

Protection Agency, Research Triangle 

Park, NC 27711; telephone number: 

(919) 541–7966; fax number: (919) 541–

5450; e-mail address: 

garrett.pamela@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Outline. The information presented in 

this preamble is organized as follows: 

I. General Information 

A. Does this reconsideration notice apply 

to me? 

B. How do I submit CBI? 

C. How do I obtain a copy of this document 

and other related information? 

II. Background 

III. Today’s Action 

IV. Discussion of Issues Subject to 

Reconsideration 

A. 2010 Phase I Statewide Hg Emission 

Budgets and the Unit-level Hg Emission 

Allocations on Which Those Budgets are 

Based 

B. Definition of ‘‘Designated Pollutant’’

Under 40 CFR 60.21 

C. EPA’s Subcategorization for 

Subbituminous Coal-Fired Units in the 

Context of the New Source Performance 

Standards (NSPS) 

D. Statistical Analysis Used for the NSPS 

E. Hg Content in Coal Used To Derive the 

NSPS 

F. Definition of Covered Units as Including 

Municipal Waste Combustors (MWC) 

G. Definition of Covered Units as Including 

Some Industrial Boilers 

V. Issues Not Corrected in the CAMR 

Technical Corrections Federal Register 

Notice 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

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. National Technology Transfer and 

Advancement Act 

I. General Information 

A. Does this reconsideration notice 

apply to me? 

Categories and entities potentially 

affected by today’s notice include: 

Category NAICS 

code 1 Examples of potentially regulated entities 

Industry ........................................................ 221112 Fossil fuel-fired electric utility steam generating units. 

Federal government .................................... 2 221122 Fossil fuel-fired electric utility steam generating units owned by the Federal government. 

State/local/Tribal government ...................... 2 221122 Fossil fuel-fired electric utility steam generating units owned by municipalities. 

921150 Fossil fuel-fired electric utility steam generating units in Indian country. 

1 North American Industry Classification System. 

2Federal, State, or local government-owned and operated establishments are classified according to the activity in which they are engaged. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by today’s notice. This table 

lists examples of the types of entities 

EPA is now aware could potentially be 

regulated by today’s notice. Other types 

of entities not listed could also be 

affected. To determine whether your 

facility, company, business, 

organization, etc., is regulated by 

today’s notice, you should examine the 

applicability criteria in 40 CFR 60.45Da 

of the final new source performance 

standards (NSPS) amendments. If you 

have questions regarding the 

applicability of today’s notice to a 

particular entity, consult Mr. William 

Maxwell listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

B. How do I submit CBI? 

Do not submit this information to EPA 

through EDOCKET, regulations.gov, or 

e-mail. Clearly mark the part or all of 

the information that you claim to be 

CBI. For CBI in a disk or CD ROM that 

you mail to EPA, mark the outside of the 

disk or CD ROM as CBI and then 

identify electronically within the disk or 

CD ROM the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

C. How do I obtain a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of today’s 

notice also will be available on the 

World Wide Web (WWW) through 

EPA’s Technology Transfer Network 

(TTN). Following the Administrator’s 

signature, a copy of this notice will be 

posted on the TTN’s policy and 

guidance page for newly proposed rules 

at http://www.epa.gov/ttn/oarpg. The 

TTN provides information and 

technology exchange in various areas of 

air pollution control. 

II. Background 

The Administrator signed CAMR on 

March 15, 2005, and the final rule was 

published in the Federal Register on 

May 18, 2005. (See 70 FR 28606.) CAMR 

is based on a notice of proposed 

rulemaking (NPR) dated January 30, 

2004 (69 FR 4652), wherein EPA 

proposed two alternative regulatory 

approaches. Under the first approach, 

EPA would retain its December 2000 

‘‘appropriate and necessary’’ finding 

and the associated CAA section 112(c) 

listing of Utility Units and issue final 

emission standards under CAA section 

112(d). Under the second approach, 

EPA would revise its December 2000 

‘‘appropriate and necessary’’ finding, 

remove Utility Units from the CAA 

section 112(c) list, and issue final 

standards of performance under CAA 

section 111. 

On March 15, 2005, EPA finalized the 

second regulatory approach. 

Specifically, the EPA Administrator 

signed a final action that revised the 

December 2000 appropriate and 

necessary finding and concluded that it 

is not appropriate or necessary to 

regulate coal- and oil-fired Utility Units 

under CAA section 112. (See 70 FR 

15994; March 29, 2005.) EPA took this 

final action because it believed that the 

December 2000 finding lacked 

foundation and because recent 

information demonstrated that it is 

neither appropriate nor necessary to 

regulate coal- and oil-fired Utility Units 

under CAA section 112. Based solely on 

the revised finding, EPA removed coaland oil-fired Utility Units from the CAA 

section 112(c) list. (See 70 FR 15994.) 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 62215 

1One petition was submitted by 14 States: New 

Jersey, California, Connecticut, Delaware, Illinois, 

Maine, Massachusetts, New Hampshire, New 

Mexico, New York, Pennsylvania, Rhode Island, 

Vermont, and Wisconsin (State petitioners). The 

second petition was submitted by five 

environmental groups: The Natural Resources 

Defense Council (NRDC), the Clean Air Task Force 

(CATF), the Ohio Environmental Council, the U.S. 

Public Interest Research Group (USPIRG), and the 

Natural Resources Council of Maine. The third 

petition was submitted by the Jamestown Board of 

Public Utilities. The fourth petition was submitted 

by the Integrated Waste Service Association 

(IWSA). 

2 In a letter dated August 19, 2005, we informed 

the petitioners that we intended to initiate a 

reconsideration process for at least one issue raised 

in the petitions. We indicated that we would 

provide particulars in a subsequent Federal 

Register notice. This is that notice. Also in that 

August 19, 2005 letter, we denied the petitioners 

request that we administratively stay the CAMR 

under CAA section 307(d)(7)(B). 

In CAMR, EPA established NSPS for 

Hg emissions from new affected coalfired Utility Units pursuant to CAA 

section 111(b). EPA also created a 

market-based cap-and-trade program 

pursuant to CAA section 111(d) that 

will reduce nationwide utility emissions 

of Hg from existing units in two distinct 

phases. Under this provision of CAMR, 

States undergo a process similar to that 

outlined in State Implementation Plans 

(SIP), whereby they detail in a plan 

submitted to EPA how they will meet 

their EPA-established State electric 

generating unit Hg budgets under both 

Phase I and Phase II. 

Following promulgation of the final 

rule, the Administrator received four 

petitions for reconsideration pursuant to 

CAA section 307(d)(7)(B).1 The purpose 

of today’s notice is to initiate a process 

for responding to certain issues raised in 

these petitions.2

III. Today’s Action 

Today, we are granting 

reconsideration of, and requesting 

comment on, certain issues raised in the 

four petitions for reconsideration. 

Generally, the petitioners claim that 

CAMR contains information that is of 

central relevance to the final rule but 

that was not sufficiently reflected in the 

proposed rule. The petitioners, 

therefore, contend that they did not 

have an adequate opportunity to 

provide input on these matters during 

the designated public comment period. 

There is a high degree of public 

interest in CAMR and the public had 

three separate opportunities to submit 

comments on whatever matters they 

deemed relevant to the rulemaking, 

following the January 30, 2004 NPR, the 

March 16, 2004 Supplemental Notice of 

Proposed Rulemaking (SNPR), and the 

December 1, 2004 Notice of Data 

Availability (NODA). EPA received, 

reviewed, and responded to tens of 

thousands of comments. Thus, a robust 

public discussion of CAMR has already 

occurred. Nonetheless, in the interest of 

ensuring that interested persons have an 

ample opportunity to comment on all 

meaningful aspects of this important 

rule, we are granting reconsideration on 

certain issues and asking the public for 

additional comment on those issues. 

The issues for which we are granting 

reconsideration at this time, and for 

which we are soliciting comment are 

discussed below. 

Our final decision on reconsideration 

of all the issues for which we are not 

granting reconsideration today will be 

issued no later than the date by which 

we take final action on the issues 

discussed in today’s action. 

IV. Discussion of Issues Subject to 

Reconsideration 

A. 2010 Phase I Statewide Hg Emission 

Budgets and the Unit-Level Hg Emission 

Allocations on Which Those Budgets 

Are Based 

Petitioners state that the Phase I Hg 

budgets and allocations appeared for the 

first time in the final CAMR, making it 

impracticable to raise objections during 

the period provided for public 

comment. Although, as noted below, 

EPA believes that it adequately noticed 

both its general intent with regard to the 

Hg budget and allocation approach and 

the specifics of the calculation 

procedure, we are at this time opening 

for public comment the methodology for 

determining the Phase I State Hg 

budgets and the unit-specific allocations 

on which those budgets are based. 

In the NPR, EPA provided notice of 

the formula for determining State EGU 

Hg budgets. Although this formula was 

only applied in deriving the 2018 

budgets at that time, the intent to make 

this formula applicable to the first-phase 

State EGU Hg budgets was expressed 

specifically in the March 16, 2004 SNPR 

(69 FR 12398), where EPA stated (69 FR 

12406) ‘‘The January 30, 2004 NPR 

proposed a formula for determining the 

total amount of emissions for the Budget 

Trading Program within a specific State 

for 2010, and, using that same 

mechanism, proposed the amount of 

emissions for the Program within each 

State for 2018. That formula is, in 

essence, the sum of the hypothetical 

allocations to each affected Utility Unit 

in the State * * *’’ EPA then proceeded 

to outline the process for developing the 

hypothetical unit allocations using 

baseline heat input and the 

development of the baseline heat input 

adjustment factors used in those 

calculations. Hypothetical unit Hg 

allocations for 2018 using the same 

methodology that EPA indicated it 

would apply for 2010, are included in 

Appendix B to the preamble to the 

SNPR (69 FR 12421). 

Nevertheless, as stated above, at this 

time, EPA is soliciting comments on 

both the individual State EGU Hg 

budgets and the unit-specific allocations 

on which those budgets are based. 

B. Definition of ‘‘Designated Pollutant’’

Under 40 CFR 60.21 

Petitioners claim that they did not 

have an opportunity to comment on 

EPA’s proposed revision of the term 

‘‘designated pollutant’’ in 40 CFR 60.21. 

As explained in the NPR, both the 

House of Representatives and Senate 

amended CAA section 111(d) in 1990 

and both amendments were enacted into 

law. In the NPR, EPA interpreted the 

two different amendments to section 

111(d) and solicited comment on its 

interpretation. EPA then finalized its 

interpretation of the conflicting House 

of Representatives and Senate 

amendments to CAA section 111(d) on 

March 15, 2005. EPA’s interpretation is 

set forth, in full, in the final action 

revising EPA’s December 2000 

appropriate and necessary finding and 

removing Utility Units from the CAA 

section 112(c) list (see 70 FR 15994; the 

Section 112(n) Revision Rule). EPA 

incorporated its interpretation of section 

111(d) into CAMR by reference to the 

final Section 112(n) Revision Rule. 

EPA also explained in CAMR that it 

was revising the term ‘‘designated 

pollutant’’ at 40 CFR 60.21 because that 

definition was promulgated in 1975 and 

interpreted the 1970 CAA, not the 1990 

Act. The revisions to the term 

‘‘designated pollutant’’ in the final 

CAMR reflect EPA’s interpretation of 

the conflicting amendments to CAA 

section 111(d) enacted in 1990, which 

EPA both proposed and finalized. 

However, because EPA did not seek 

specific comment on the regulatory 

change and whether that change is 

consistent with its interpretation of 

CAA section 111(d), as described in the 

final Section 112(n) Revision Rule, EPA 

is requesting comment on the regulatory 

definition of ‘‘designated pollutant’’

contained in the final CAMR. 

C. EPA’s Subcategorization for 

Subbituminous Coal-fired Units in the 

Context of the New Source Performance 

Standards (NSPS) 

Petitioners assert that the use of the 

type of control device as a basis for 

subcategorization is arbitrary and 

capricious and relies on factors not 

intended by Congress. 

62216 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 

In the NPR (January 30, 2004; 69 FR 

4652), EPA proposed to subcategorize 

on the basis of the four coal types. (EPA 

also proposed to establish a fifth 

subcategory for integrated gasification 

combined cycle (IGCC) units.) We did 

not propose any subcategorization based 

on the type of control device employed. 

In the final CAMR, we established 

subcategories for subbituminous coalfired units that appear to be based on 

the type of pollution control device 

used for sulfur dioxide (SO2) control 

(i.e., wet or dry flue gas desulfurization 

(FGD) system). It was not our intent, 

however, to subcategorize on the basis 

of control technology. Rather, our intent 

was to recognize that new units located 

in some areas will have access to an 

adequate supply of water while units in 

other areas will not have such access. 

Where adequate water is available, we 

believe, as stated in the preamble to 

CAMR, that wet FGD represents best 

demonstrated technology (BDT). We 

also believe, however, that where 

adequate water is not available, dry FGD 

represents BDT. The two subcategories 

of subbituminous units thus reflect our 

recognition of the impact of not having 

adequate water available, not our intent 

to subcategorize on the basis of control 

technology. In order to make this fact 

clear, we are proposing in today’s notice 

to specify that where an adequate water 

supply is available (i.e., in areas 

receiving greater than 25 inches per year 

(in/yr) mean annual precipitation, based 

on U.S. Department of Agriculture 30- 

year data), new subbituminous coalfired units must meet an emission limit 

based on the use of a wet FGD. Only in 

situations where an adequate water 

supply is not available (i.e., in areas 

receiving less than or equal to 25 in/yr 

mean annual precipitation, based on 

U.S. Department of Agriculture 30-year 

data) may new subbituminous coal-fired 

units meet an emission limit based on 

the use of dry FGD. 

As noted in the preamble for CAMR, 

we took the position that BDT could be 

different for new subbituminous coalfired units located in certain areas 

because of concerns about the 

availability of water for Utility Units 

located in areas of limited mean annual 

precipitation. Such units could face 

potential water restrictions, a nonair 

quality environmental impact 

consideration. Such units are generally 

located in the Western part of the U.S. 

and, thus, generally burn subbituminous 

coal. A review of the permits available 

at promulgation of CAMR (OAR–2002–

0056–6192) indicates that all 

subbituminous coal-fired units located 

in the Western portion of the U.S. are 

planning on utilizing dry FGD systems. 

We recognize that some existing 

subbituminous coal-fired units located 

in the Western portion of the U.S. 

currently utilize wet FGD systems. 

However, with the growth in population 

in this region, EPA believes that the 

possibility exists that such units would 

have their water availability curtailed 

through local or State water 

conservation actions (e.g., to make more 

water available for agricultural or 

residential uses during periods of 

drought), and, thus, limit their 

operational status. 

EPA does not think it appropriate 

public policy to preclude use of this 

coal type on a regional basis strictly 

because a new unit may not be able to 

acquire the water necessary to operate a 

wet FGD system (which requires more 

water than does a dry FGD system). 

Because CAA section 111(b)(2) 

authorizes EPA to distinguish between 

classes, types and sizes within 

categories of new sources for purposes 

of establishing standards, we believe 

that the above proposed 

subcategorization is appropriate. We 

further believe that the availability of 

water is a nonair quality environmental 

impact within the provisions of CAA 

section 111 and, thus, is an appropriate 

consideration in this case. 

EPA is proposing to revise its basis for 

the subcategorization of subbituminous 

coal-fired units. We are proposing that 

any new unit locating in an area with a 

mean annual precipitation of less than 

or equal to 25 in/yr, based on U.S. 

Department of Agriculture 30-year data, 

have an emission limit of 97 × 10¥6

pounds per megawatt-hour (lb/MWh) 

while any new unit locating in an area 

with a mean annual precipitation 

greater than 25 in/yr have an emission 

limit of 66 × 10¥6 lb/MWh. EPA is 

soliciting comment on this expanded 

definition of its basis for the 

subcategorization of subbituminous 

coal-fired units. 

D. Statistical Analysis Used for the 

NSPS 

Petitioners contend that EPA’s 

reanalysis and revision of the NSPS 

limits was not subject to public review 

or comment. The petitioners further 

contend that EPA applied an 

inappropriate statistical analysis in 

establishing the level of the NSPS and 

that the statistical analysis contains 

numerical inconsistencies and 

arithmetic errors. 

As with any NSPS analysis, EPA 

evaluated the controls that effect the 

best emission reduction of the pollutant 

in question (in this case, Hg). NSPS are 

based on the ‘‘best system of emission 

reduction’’ (CAA section 111) rather 

than on only the ‘‘most efficient units’’

as put forward by the petitioners or on 

the best-performing units as required 

under CAA section 112. EPA 

determined the ‘‘best system’’ for each 

subcategory and then developed the 

NSPS. Similarly, EPA used data from all 

units utilizing the ‘‘best system’’ in its 

evaluation of the NSPS absent any 

information that a particular unit was 

not operating their emission controls 

appropriately. 

Consistent with the development of 

other NSPS, EPA used statistical 

analysis of the data to account for the 

natural variability in Hg content in coals 

and as one measure to account for cost 

in the NSPS (i.e., many coal-fired Utility 

Units may switch coal sources, within 

the same coal rank, based on cost; 

therefore, the analysis included the 

highest average content of Hg 

potentially available). 

Although, EPA believes that analysis 

by subcategory is appropriate for Hg at 

this time, it has reviewed its analysis 

and agrees that the analysis used for 

CAMR contains certain inconsistencies 

and errors. Therefore, EPA has 

reanalyzed the data and revised its 

NSPS analysis. This revised analysis is 

provided in the docket and is 

summarized below. 

For each coal type, information 

collection request (ICR) emission test 

data (ICR–3) were reviewed to identify 

the units that were using technologies 

which were most effective at capturing 

Hg from coal-fired power plants (i.e., 

BDT). The technologies that appeared 

most effective in reducing Hg emissions 

were those that were installed, or likely 

would be installed, to comply with the 

current NSPS standards for particulate 

matter and SO2. This combination of 

controls was most effective in reducing 

Hg emissions and, thus, is considered 

BDT. For bituminous coal-fired boilers, 

BDT is considered to be the 

combination of a fabric filter (FF) and an 

FGD system. The FGD may be either a 

wet scrubber system (wet FGD) or a 

spray dryer absorber (SDA; dry FGD). Of 

the 27 bituminous coal-fired units listed 

in ICR–3, 6 units had a combination of 

a FF and a FGD. For subbituminous 

coal-fired units, BDT was determined to 

be dependent on water availability as 

noted above. For new subbituminous 

coal-fired units that are located where 

an adequate water supply is not 

available, BDT is considered to be a dry 

FGD system (i.e., a combination of a FF 

with a SDA). For new subbituminous 

coal-fired units that are located where 

an adequate water supply is available, 

BDT is considered to be a wet FGD 

system. Of the 27 subbituminous coalVerDate Aug<31>2005 16:14 Oct 27, 2005 Jkt 208001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\28OCP2.SGM 28OCP2
Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 62217 

3An MWC is a ‘‘solid waste incineration unit’’ as 

defined in CAA section 129(g)(1) combusting 

‘‘municipal waste’’ as defined in CAA section 

129(g)(5). 

fired units listed in ICR–3, 2 units have 

controls representing BDT for the ‘‘wet’’

subbituminous subcategory and 4 units 

have controls representing BDT for the 

‘‘dry’’ subbituminous subcategory. For 

lignite coal-fired units, BDT is 

considered to be either an FF/SDA 

system, a fluidized bed combustor (FBC) 

with an electrostatic precipitator (ESP), 

or an ESP with a wet FGD system. Of 

the 12 lignite coal-fired units listed in 

ICR–3, 7 units have controls 

representing BDT. The ICR–3 contains 

data on only two units firing coal refuse. 

Both were FBC units equipped with FF. 

Both have reported Hg control efficiency 

of greater than 99 percent. Therefore, 

BDT for coal refuse-fired units is 

considered to be a FBC with FF. One 

unit fired waste anthracite, the other 

fired waste bituminous. 

To determine the appropriate 

achievable Hg emission level for each 

coal type that reflects BDT, a statistical 

analysis was conducted to determine 

the appropriate control efficiency 

achieved by BDT. That is, we 

determined the 90th percentile Hg 

reduction efficiency achievable for a 

source using BDT (i.e., the control 

efficiency which BDT is estimated to 

achieve 90 percent of the time) using the 

one-sided t-statistics test. The control 

efficiency used was the greater of that 

achieved either from the coal-to-thestack or across the control device as 

shown through the ICR–3 3-run 

averages. This approach was used to 

minimize the impact of ‘‘negative’’

control removals indicated by some of 

the test results. It is recognized that Hg 

cannot be generated within a utility 

boiler/control system and that any 

negative removals merely indicate that 

no control is being shown. However, it 

is also believed that most of the Hg 

control achieved is being achieved by 

the last control device (the one tested 

during the ICR program) and that little 

Hg is removed in the boiler. Therefore, 

it is believed that use of the highest 

control adequately reflects performance 

of the entire system. Further, as negative 

reductions are not realistic, any negative 

reductions found were equated to zero. 

Based on this reanalysis of the 

appropriate NSPS emission limits, EPA 

is today proposing the following revised 

Hg limits: 

Bituminous coal: 20 × 10¥6 lb/MWh 

Subbituminous coal (wet units): 66 × 

10¥6 lb/MWh 

Subbituminous coal (dry units): 97 × 

10¥6 lb/MWh 

Lignite coal: 175 × 10¥6 lb/MWh 

Coal refuse: 1.0 × 10¥6 lb/MWh 

Although EPA has reanalyzed the 

available data and revised the NSPS Hg 

emission limits, as noted in the final 

CAMR, we continue to believe that 

these limits are of short-term value only. 

That is, the CAMR Hg cap will be a 

greater long-term factor in constraining 

Hg emissions from new coal-fired 

Utility Units than will the NSPS 

emission limits. In addition, the new 

source review (NSR) provisions provide 

an additional constraint on new-source 

emissions, further diminishing the 

importance of the revised NSPS Hg 

emission limits. Essentially, the NSPS 

limits become a ‘‘backstop’’ for the 

trading program and other NSR 

requirements. 

EPA seeks comment on this statistical 

approach. 

E. Hg Content in Coal Used To Derive 

the NSPS 

Petitioners contend that EPA 

arbitrarily applied its statistical analysis 

to coal containing the highest annual 

average content of Hg, an approach 

which does not encourage the use of the 

cleanest fuels. Further, they contend 

that insufficient notice of this approach 

was afforded the public. 

Many coal-fired Utility Units may 

switch coal sources, within the same 

coal rank, based on spot-market 

availability and cost. Therefore, the 

analysis was based on a reasonable 

maximum Hg content in coal 

(represented by the 90th percentile of 

measured Hg concentrations in coal) as 

a means of complying with previous 

Court decisions that mandate that an 

NSPS must be achievable by all new 

units to which it will apply over the full 

range of operating conditions which can 

reasonably be anticipated to occur. 

EPA is taking comment on this 

approach. 

F. Definition of Covered Units as 

Including Municipal Waste Combustors 

(MWC) 

Petitioners claim that CAMR 

inappropriately extends the definition 

of covered units to include MWC3 and 

that EPA gave no notice that it intended 

to include MWC units under CAMR, 

thereby depriving interested parties of 

the opportunity to provide comment. 

Further, petitioners contend that EPA 

should conclude that as a source 

category, MWC units are already well 

regulated under CAA sections 129 and 

111 and, therefore, should not be 

included under CAMR. 

EPA did not intend for MWC units 

subject to NSPS and emission 

guidelines, as implemented through 

approved State plans or an applicable 

Federal plan, to be subject to CAMR, 

either directly or through a State or 

Federal plan implementing the CAA 

section 111(d) guidelines for existing 

units, even if such units combust certain 

amounts of coal and, thus, fall under the 

current definition of ‘‘coal-fired.’’ EPA 

is, therefore, granting reconsideration on 

the issue of the definition of an ‘‘Electric 

generating unit or EGU’’ in 40 CFR 

60.24(h) as it relates to MWC units and 

is taking comment on that issue. EPA is 

taking this action because it did not 

specifically indicate that it intended 

such units to be excluded from the 

model trading program, approved State 

plans, and any subsequently adopted 

Federal plan under CAMR. 

In this proposed rulemaking, EPA is 

proposing to clarify the definition of 

‘‘Electric generating unit or EGU’’ to 

specifically exclude MWC units subject 

to an applicable NSPS, an EPAapproved State plan, or an applicable 

Federal plan. The proposed revised 

definition would establish a specific 

exemption for MWC. EPA has only 

included specific changes to the 

definition of ‘‘Electric generating unit or 

EGU’’ as it appears in 40 CFR 60.24(h) 

necessary to establish the exemption in 

this proposed rule. EPA is, however, 

also proposing to make conforming 

changes to the applicability provisions 

in the model trading rule (subpart 

HHHH, 40 CFR 60.4104) based on the 

final action EPA takes on the proposed 

rule as those provisions are intended to 

be consistent with the definition in 40 

CFR 60.24(h). 

G. Definition of Covered Units as 

Including Some Industrial Boilers 

Petitioners contend that CAMR, as 

written, would subject certain units to 

regulation under both CAMR and the 

CAA section 112 Industrial Commercial 

Institutional Steam Generating Unit 

Maximum Achievable Control 

Technology (MACT) standards (the 

Boiler MACT). Petitioners also claim 

that EPA changed the applicability 

definition in the final CAMR to include 

units that had ever been connected to a 

generator having a capacity greater than 

25 megawatts electric (MWe) and, thus, 

provided no opportunity for public 

comment on this definition. 

EPA did not intend for any units 

subject to the Boiler MACT to also be 

subject to CAMR. EPA proposes to 

address this problem in two ways. First, 

EPA is in the process of preparing 

proposed revisions to the Boiler MACT 

in response to a petition for 

reconsideration of that rule. One of the 

proposed revisions will be to 

specifically exclude units subject to 

62218 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 

CAMR from regulation under the Boiler 

MACT. Second, EPA is today proposing 

to revise the definition of ‘‘Electric 

generating unit or EGU’’ in 40 CFR 

60.24(h) to include only stationary, coalfired boilers or stationary, coal-fired 

combustion turbines serving, at any 

time after November 15, 1990, a 

generator with nameplate capacity of 

more than 25 MWe producing electricity 

for sale. This date would be consistent 

with the dates used in the Acid Rain 

Program and the Clean Air Interstate 

Rule (CAIR). 

In evaluating the changes necessary to 

respond to the petition, EPA determined 

that certain other clarifying changes to 

the definition need to be made with 

regard to cogeneration units and when 

they are to be considered ‘‘electric 

generating units’’ under this rule to 

ensure that the regulatory text 

unambiguously reflects EPA’s intent, as 

expressed in the CAMR preamble (see 

70 FR 28612, 28625), regarding 

cogeneration units. EPA is today 

proposing to make those changes in 40 

CFR 60.24(h). 

EPA is also proposing to make 

conforming changes to the applicability 

provisions in the model trading rule 

(subpart HHHH, 40 CFR 60.4104) based 

on the final action EPA takes on the 

proposed rule as those provisions are 

intended to be consistent with the 

definition in 40 CFR 60.24(h). 

V. Issues Not Corrected in the CAMR 

Technical Corrections Federal Register 

Notice 

On August 30, 2005 (70 FR 51266), 

EPA issued a technical corrections 

notice addressing certain corrections to 

the May 18, 2005 (70 FR 28606) CAMR. 

We have subsequently found certain 

other errors in CAMR that need 

correction. We believe that all of these 

corrections are non-controversial. 

This notice corrects the following 

errors. First, it has been brought to our 

attention that we were inconsistent in 

the use of ‘‘new, modified, and 

reconstructed’’ in the applicability 

provisions of the NSPS portion of 

CAMR. We propose to correct this 

inconsistency by revising the language 

to indicate that the NSPS applies to 

units which are constructed, modified, 

or reconstructed after January 30, 2004. 

Second, an inconsistency between the 

definitions of ‘‘coal’’ and ‘‘coal-fired 

electric utility steam generating unit’’

has been brought to our attention. In 

defining ‘‘coal’’ we indicate that ‘‘coal’’

includes ‘‘petroleum coke’’ while in 

defining ‘‘coal-fired electric utility 

steam generating unit’’ we identify 

‘‘petroleum coke’’ as an example of a 

supplemental fuel (i.e., a fuel that is 

burned with coal). We propose to 

correct this inconsistency by removing 

‘‘petroleum coke’’ from the definition of 

‘‘coal’’ as we do not think ‘‘petroleum 

coke’’ is properly classified as ‘‘coal.’’

Third, because of the delay between 

signature and publication of CAMR, the 

submittal dates for the individual State 

Hg allocation plans and the full State 

plans are not consistent. We propose to 

resolve this problem by changing the 

October 31, 2006 date for submitting Hg 

allowance allocations to the 

Administrator specified in 40 CFR 

60.24(h)(6)(ii)(C) and 40 CFR 60.4141(a) 

of the model trading rule to November 

17, 2006, consistent with the date for 

submitting State plans specified in 40 

CFR 60.24(h)(2). Finally, we have 

identified additional instances where 

the section renumbering, noted in the 

August 30, 2005 notice, was not 

corrected, and we are proposing to 

correct these. 

VI. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

Under Executive Order 12866 (58 FR 

51735, October 4, 1993), EPA must 

determine whether the regulatory action 

is ‘‘significant’’ and, therefore, subject to 

review by the Office of Management and 

Budget (OMB) and the requirements of 

the Executive Order. The Executive 

Order defines a ‘‘significant regulatory 

action’’ as one that is likely to result in 

a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlement, grants, user fees, 

or loan programs, or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the Executive Order. 

Pursuant to the terms of Executive 

Order 12866, it has been determined 

that today’s notice of reconsideration is 

a ‘‘significant regulatory action’’ because 

it raises novel legal or policy issues. As 

such, the action was submitted to OMB 

for review under Executive Order 

12866. Changes made in response to 

OMB suggestions or recommendations 

are documented in the public record 

(see ADDRESSES section of this 

preamble). 

B. Paperwork Reduction Act 

The information collection 

requirements in the final rule were 

submitted for approval to OMB under 

the provisions of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq. 

(Information Collection Request No. 

2137.02; OMB Number 2060–0567). The 

information collection requirements are 

not enforceable until OMB approves 

them. 

Today’s notice of reconsideration 

imposes no new information collection 

requirements on the industry. Because 

there is no additional burden on the 

industry as a result of the notice of 

reconsideration, the information 

collection request (ICR) has not been 

revised. 

Burden means the total time, effort, or 

financial resources expended by persons 

to generate, maintain, retain, or disclose 

or provide information to or for a 

Federal agency. This includes the time 

needed to review instructions; develop, 

acquire, install, and utilize technology 

and systems for the purposes of 

collecting, validating, and verifying 

information, processing and 

maintaining information, and disclosing 

and providing information; adjust the 

existing ways to comply with any 

previously applicable instructions and 

requirements; train personnel to be able 

to respond to a collection of 

information; search data sources; 

complete and review the collection of 

information; and transmit or otherwise 

disclose the information. 

An agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. The OMB control 

numbers for EPA’s regulations are listed 

in 40 CFR part 9 and 48 CFR chapter 15. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

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 not-forprofit enterprises, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of today’s notice of reconsideration on 

small entities, a small entity is defined 

as: (1) A small business that is identified 

by the NAICS Code, as defined by the 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 62219 

Small Business Administration (SBA); 

(2) a small governmental jurisdiction 

that is a government of a city, county, 

town, school district, or special district 

with a population of less that 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. Categories 

and entities potentially regulated by the 

final rule with applicable NAICS codes 

are provided in the Supplementary 

Information section of this action. 

According to the SBA size standards 

for NAICS code 221122 Utilities-Fossil 

Fuel Electric Power Generation, a firm 

is small if, including its affiliates, it is 

primarily engaged in the generation, 

transmission, and or distribution of 

electric energy for sale and its total 

electric output for the preceding fiscal 

year did not exceed 4 million MWh. 

After considering the economic 

impacts of today’s notice of 

reconsideration on small entities, we 

certify that the notice will not have a 

significant economic impact on a 

substantial number of small entities. 

EPA has determined that none of the 

small entities will experience a 

significant impact because the notice of 

reconsideration imposes no additional 

regulatory requirements on owners or 

operators of affected sources. We 

continue to be interested in the 

potential impacts of the rule on small 

entities and welcome comments on 

issues related to such impacts. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

EPA generally must prepare a written 

statement, including a cost-benefit 

analysis, for proposed and final rules 

with ‘‘Federal mandates’’ that may 

result in expenditures by State, local, 

and tribal governments, in the aggregate, 

or by the private sector, of $100 million 

or more in any 1 year. Before 

promulgating an EPA rule for which a 

written statement is needed, UMRA 

section 205 generally requires EPA to 

identify and consider a reasonable 

number of regulatory alternatives and 

adopt the least costly, most costeffective, or least-burdensome 

alternative that achieves the objectives 

of the rule. The provisions of section 

205 do not apply when they are 

inconsistent with applicable law. 

Moreover, section 205 allows EPA to 

adopt an alternative other than the leastcostly, most cost-effective, or leastburdensome alternative if the 

Administrator publishes with the final 

rule an explanation why that alternative 

was not adopted. Before EPA establishes 

any regulatory requirements that may 

significantly or uniquely affect small 

governments, including tribal 

governments, it must have developed, 

under section 203 of the UMRA, a small 

government agency plan. The plan must 

provide for notifying potentially 

affected small governments, enabling 

officials of affected small governments 

to have meaningful and timely input in 

the development of EPA’s regulatory 

proposals with significant Federal 

intergovernmental mandates, and 

informing, educating, and advising 

small governments on compliance with 

the regulatory requirements. 

EPA has determined that today’s 

notice of reconsideration 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. Although 

the final rule projected that in 2020, 2 

years into the start of the second phase 

of the cap-and-trade program, 

compliance costs to government-owned 

entities would be approximately $48 

million, today’s notice of 

reconsideration does not add new 

requirements that would increase this 

cost. Thus, today’s notice of 

reconsideration is not subject to the 

requirements of sections 202 and 205 of 

the UMRA. In addition, EPA has 

determined that today’s notice of 

reconsideration does not significantly or 

uniquely affect small governments 

because it contains no requirements that 

apply to such governments or impose 

obligations upon them. Therefore, 

today’s notice of reconsideration is not 

subject to UMRA section 203. 

E. Executive Order 13132: Federalism 

Executive Order 13132 (64 FR 43255, 

August 10, 1999) requires EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that 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.’’

Today’s notice of reconsideration 

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. 

None of the affected facilities are owned 

or operated by State governments, and 

the requirements discussed in today’s 

notice will not supersede State 

regulations that are more stringent. 

Thus, Executive Order 13132 does not 

apply to today’s notice of 

reconsideration. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175 (65 FR 67249, 

November 6, 2000) requires EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ are defined in the 

Executive Order to include regulations 

that have ‘‘substantial direct effects 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.’’

Today’s notice of reconsideration 

does not have tribal implications. It will 

not have substantial direct effects on 

tribal governments, 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 in Executive Order 13175. 

No affected facilities are owned or 

operated by Indian tribal governments. 

Thus, Executive Order 13175 does not 

apply to today’s notice of 

reconsideration. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045 (62 FR 19885, 

April 23, 1997) applies to any rule that: 

(1) is determined to be ‘‘economically 

significant,’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

EPA must evaluate the environmental 

health or safety effects of the planned 

rule on children and explain why the 

planned regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives considered by EPA. 

Today’s notice is a notice of 

reconsideration of the final CAMR, 

which is subject to the Executive Order 

62220 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 

because it is economically significant as 

defined by Executive Order 12866, and 

we believe that the environmental 

health or safety risk addressed by that 

action may have a disproportionate 

effect on children. Accordingly, we have 

evaluated the environmental health or 

safety effects of that final rule on 

children. The results of the evaluation 

are discussed in that final rule (70 FR 

28606; May 18, 2005) and are contained 

in the docket (OAR–2002–0056). 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Today’s notice of reconsideration is 

not a ‘‘significant energy action’’ as 

defined in Executive Order 13211 (66 

FR 28355; May 22, 2001) because it is 

not likely to have a significant adverse 

effect on the supply, distribution, or use 

of energy. Further, we conclude that 

today’s notice of reconsideration is not 

likely to have any adverse energy 

effects. 

I. National Technology Transfer and 

Advancement Act 

As noted in the final rule, section 

12(d) of the National Technology 

Transfer and Advancement Act 

(NTTAA) of 1995 (Pub. L. 104–113; 15 

U.S.C. 272 note) directs EPA to use 

voluntary consensus standards in their 

regulatory and procurement activities 

unless to do so would be inconsistent 

with applicable law or otherwise 

impracticable. Voluntary consensus 

standards are technical standards (e.g., 

material specifications, test methods, 

sampling procedures, business 

practices) developed or adopted by one 

or more voluntary consensus bodies. 

The NTTAA requires EPA to provide 

Congress, through the OMB, with 

explanations when EPA decides not to 

use available and applicable voluntary 

consensus standards. 

During the development of the final 

rule, EPA searched for voluntary 

consensus standards that might be 

applicable. The search identified three 

voluntary consensus standards that 

were considered practical alternatives to 

the specified EPA test methods. An 

assessment of these and other voluntary 

consensus standards is presented in the 

preamble to the final rule (70 FR 16034; 

March 29, 2005). Today’s notice of 

reconsideration does not propose the 

use of any additional technical 

standards beyond those cited in the 

final rule. Therefore, EPA is not 

considering the use of any additional 

voluntary consensus standards for this 

notice. 

List of Subjects 

40 CFR Part 60 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Coal, Electric 

power plants, Incorporation by 

reference, Intergovernmental relations, 

Metals, Natural gas, Nitrogen dioxide, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

oxides. 

40 CFR Part 72 

Acid rain, Administrative practice 

and procedure, Air pollution control, 

Electric utilities, Intergovernmental 

relations, Nitrogen oxides, Reporting 

and recordkeeping requirements, Sulfur 

oxides. 

40 CFR Part 75 

Acid rain, Air pollution control, 

Carbon dioxide, Electric utilities, 

Incorporation by reference, Nitrogen 

oxides, Reporting and recordkeeping 

requirements, Sulfur oxides. 

Dated: October 21, 2005. 

Stephen L. Johnson, 

Administrator. 

For the reasons stated in the 

preamble, title 40, chapter I of the Code 

of the Federal Regulations is proposed 

to be amended as follows: 

PART 60—[AMENDED] 

1. The authority citation for part 60 

continues to read as follows: 

Authority: 42 U.S.C. 7401, 7403, 7426, and 

7601. 

Subpart B—[Amended] 

2. Section 60.24 is amended by: 

a. In paragraph (h)(6)(ii)(C), revising 

the words ‘‘October 31, 2006’’ to read 

‘‘November 17, 2006’’; and 

b. In paragraph (h)(8), revising the 

definition of ‘‘Electric generating unit or 

EGU’’ to read as follows: 

§ 60.24 Emission standards and 

compliance schedules. 

* * * * * 

(h) * * * 

(8) * * * 

Electric generating unit or EGU 

means: 

(1)(i) Except as provided in 

paragraphs (2) and (3) of this definition, 

a stationary, coal-fired boiler or 

stationary, coal-fired combustion 

turbine in the State serving at any time, 

since the later of November 15, 1990 or 

the start-up of the unit’s combustion 

chamber, a generator with nameplate 

capacity of more than 25 megawatts 

electric (MWe) producing electricity for 

sale. 

(ii) If a stationary boiler or stationary 

combustion turbine that, under 

paragraph (1)(i) of this definition, is not 

an electric generating unit begins to 

combust coal or coal-derived fuel or to 

serve a generator with nameplate 

capacity of more than 25 MWe 

producing electricity for sale, the unit 

shall become an electric generating unit 

on the first date on which it both 

combusts coal or coal-derived fuel and 

serves such generator. 

(2) A unit that meets the requirements 

set forth in paragraph (2)(i)(A) of this 

definition shall not be an electric 

generating unit: 

(i)(A) A unit: 

(1) Qualifying as a cogeneration unit 

during the 12-month period starting on 

the date the unit first produces 

electricity and continuing to qualify as 

a cogeneration unit; and 

(2) Not serving at any time, since the 

later of November 15, 1990 or the startup of the unit’s combustion chamber, a 

generator with nameplate capacity of 

more than 25 MWe supplying in any 

calendar year more than one-third of the 

unit’s potential electric output capacity 

or 219,000 megawatt-hours (MWh), 

whichever is greater, to any utility 

power distribution system for sale. 

(B) If a unit qualifies as a cogeneration 

unit during the 12-month period starting 

on the date the unit first produces 

electricity and meets the requirements 

of paragraph (2)(i)(A) of this definition 

for at least one calendar year, but 

subsequently no longer meets all such 

requirements, the unit shall become an 

electric generating unit starting on the 

earlier of January 1 after the first 

calendar year during which the unit first 

no longer qualifies as a cogeneration 

unit or January 1 after the first calendar 

year during which the unit no longer 

meets the requirements of paragraph 

(2)(i)(A)(2) of this definition. 

(3) A ‘‘solid waste incineration unit’’

as defined in Clean Air Act section 

129(g)(1) combusting ‘‘municipal waste’’

as defined in Clean Air Act section 

129(g)(5) shall not be an electric 

generating unit if it is subject to one of 

the following rules: 

(i) Subpart Eb of part 60 of this 

chapter, ‘‘Standards of Performance for 

Large Municipal Waste Combustors for 

Which Construction is Commenced 

After September 20, 1994 or for Which 

Modification or Reconstruction is 

Commenced After June 19, 1996’’, 

(ii) Subpart AAAA of part 60 of this 

chapter, ‘‘Standards of Performance for 

Small Municipal Waste Combustors for 

Which Construction is Commenced 

After August 30, 1999 or for Which 

Modification or Reconstruction is 

Commenced After June 6, 2001’’, 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 62221 

(iii) An EPA-approved State plan for 

implementing subpart Cb of part 60 of 

this chapter, ‘‘Emissions Guidelines and 

Compliance Times for Large Municipal 

Waste Combustors That Are Constructed 

On or Before September 20, 1994’’; 

(iv) Subpart FFF of part 62 of this 

chapter, ‘‘Federal Plan Requirements for 

Large Municipal Waste Combustors 

Constructed On or Before September 20, 

1994’’; 

(v) An EPA-approved State Plan for 

implementing subpart BBBB of part 60 

of this chapter, ‘‘Emission Guidelines 

and Compliance Times for Small 

Municipal Waste Combustion Units 

Constructed On or Before August 30, 

1999’’; or, 

(vi) Subpart JJJ of 40 CFR part 62, 

‘‘Federal Plan Requirements for Small 

Municipal Waste Combustion Units 

Constructed On or Before August 30, 

1999’’. 

Subpart Da—[Amended] 

3. Section 60.41Da is amended by 

revising the definitions of ‘‘Coal’’ and 

‘‘Coal-fired electric utility steam 

generating unit’’ and by revising the 

existing reference in paragraph (b) of the 

definition of ‘‘Potential combustion 

concentration’’ from ‘‘§ 60.48a(b)’’ to 

read ‘‘§ 60.50Da(b)’’ to read as follows: 

§ 60.41Da Definitions. 

* * * * * 

Coal means all solid fuels classified as 

anthracite, bituminous, subbituminous, 

or lignite by the American Society of 

Testing and Materials (ASTM) Standard 

Specification for Classification of Coals 

by Rank D388–77, 90, 91, 95, 98a, or 99 

(Reapproved 2004) e1 (incorporated by 

reference, see § 60.17) and coal refuse. 

Synthetic fuels derived from coal for the 

purpose of creating useful heat, 

including but not limited to solventrefined coal, gasified coal, coal-oil 

mixtures, and coal-water mixtures are 

included in this definition for the 

purposes of this subpart. 

Coal-fired electric utility steam 

generating unit means an electric utility 

steam generating unit that burns coal, 

coal refuse, or a synthetic gas derived 

from coal either exclusively, in any 

combination together, or in any 

combination with other fuels in any 

amount. 

* * * * * 

4. Section 60.45Da is amended by: 

a. Revising paragraph (a)(1); 

b. Revising paragraph (a)(2)(i); 

c. Revising paragraph (a)(2)(ii); 

d. Revising paragraph (a)(3); and 

e. Revising paragraph (a)(4) to read as 

follows: 

§ 60.45Da Standard for mercury. 

(a) * * * 

(1) For each coal-fired electric utility 

steam generating unit that burns only 

bituminous coal, you must not 

discharge into the atmosphere any gases 

from a new affected source which 

contain Hg in excess of 20 ×10¥6 pound 

per megawatt hour (lb/MWh) or 0.020 

lb/gigawatt-hour (GWh) on an output 

basis. The International System of Units 

(SI) equivalent is 0.0025 nanograms per 

joule (ng/J). 

(2) * * * 

(i) If your unit is located in a 

geographical area receiving greater than 

25 inches per year (in/yr) mean annual 

precipitation, based on U.S. Department 

of Agriculture 30-year data, you must 

not discharge into the atmosphere any 

gases from a new affected source which 

contain Hg in excess of 66 ×10¥6 lb/ 

MWh or 0.066 lb/GWh on an output 

basis. The SI equivalent is 0.0083 ng/J. 

(ii) If your unit is located in a 

geographical area receiving less than or 

equal to 25 in/yr mean annual 

precipitation, based on U.S. Department 

of Agriculture 30-year data, you must 

not discharge into the atmosphere any 

gases from a new affected source which 

contain Hg in excess of 97 × 10¥6 lb/ 

MWh or 0.097 lb/GWh on an output 

basis. The SI equivalent is 0.0122 ng/J. 

(3) For each coal-fired electric utility 

steam generating unit that burns only 

lignite, you must not discharge into the 

atmosphere any gases from a new 

affected source which contain Hg in 

excess of 175 × 10¥6 lb/MWh or 0.175 

lb/GWh on an output basis. The SI 

equivalent is 0.0221 ng/J. 

(4) For each coal-burning electric 

utility steam generating unit that burns 

only coal refuse, you must not discharge 

into the atmosphere any gases from a 

new affected source which contain Hg 

in excess of 1.0 × 10¥6 lb/MWh or 

0.0010 lb/GWh on an output basis. The 

SI equivalent is 0.00013 ng/J. 

* * * * * 

5. Section 60.48Da is amended by: 

a. Revising the existing reference in 

paragraph (j) introductory text from 

‘‘§ 60.44a(a)’’ to read ‘‘§ 60.44Da(a)’’; 

b. Revising the existing reference in 

paragraph (j)(2) from ‘‘§ 60.49a’’ to read 

‘‘§ 60.49Da’’; and 

c. Revising the second and third 

sentences in paragraph (l) to read as 

follows: 

§ 60.48Da Compliance provisions. 

* * * * * 

(l) * * * The owner or operator of an 

affected facility subject to § 60.45Da 

(new sources constructed, modified, or 

reconstructed after January 30, 2004) 

shall calculate the Hg emission rate (lb/ 

MWh) for each calendar month of the 

year, using hourly Hg concentrations 

measured according to the provisions of 

§ 60.49Da(p) in conjunction with hourly 

stack gas volumetric flow rates 

measured according to the provisions of 

§ 60.49Da(l) or (m), and hourly gross 

electrical outputs, determined according 

to the provisions in § 60.49Da(k). 

Compliance with the applicable 

standard under § 60.45Da is determined 

on a 12-month rolling average basis. 

§ 60.49Da [Amended] 

6. Section 60.49Da is amended by 

revising the existing reference in 

paragraph (c)(2) from ‘‘§ 60.51a’’ to read 

‘‘§ 60.51Da’’. 

§ 60.50Da [Amended] 

7. Section 60.50Da is amended by: 

a. Revising the existing reference in 

paragraph (e)(2) from ‘‘§ 60.48(d)(1)’’ to 

read ‘‘§ 60.46(d)(1)’’; and 

b. In paragraph (g), by removing the 

words ‘‘and 60.46Da’’. 

Subpart Db—[Amended] 

§ 60.40b [Amended] 

8. Section 60.40b is amended by 

revising the existing reference in 

paragraph (e) from ‘‘§ 60.40a’’ to read 

‘‘§ 60.40Da’’. 

Subpart HHHH—[Amended] 

9. Section 60.4141 is amended by 

revising paragraph (a) to read as follows: 

§ 60.4141 Timing requirements for Hg 

allowance allocations. 

(a) By November 17, 2006, the 

permitting authority will submit to the 

Administrator the Hg allowance 

allocations, in a format prescribed by 

the Administrator and in accordance 

with § 60.4142(a) and (b), for the control 

periods in 2010, 2011, 2012, 2013, and 

2014. 

* * * * * 

[FR Doc. 05–21457 Filed 10–27–05; 8:45 am] 

BILLING CODE 6560–50–P