[Federal Register Volume 70, Number 208 (Friday, October 28, 2005)]
[Proposed Rules]
[Pages 62213-62221]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-21457]


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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.

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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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
    <bullet> 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.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#76175b1718125b045b1219151d13023613061758111900"><span class="__cf_email__" data-cfemail="badb97dbd4de97c897ded5d9d1dfcefadfcadb94ddd5cc">[email protected]</span></a>.
    <bullet> Fax: (202) 566-1741.
    <bullet> Mail: Air and Radiation Docket and Information Center, 
U.S. EPA, Mailcode: 6102T, 1200 Pennsylvania Avenue, NW., Washington, 
DC 20460.
    <bullet> 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 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, 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.

[[Page 62214]]

EPA, Research Triangle Park, NC 27711; telephone number: (919) 541-
5430; fax number: (919) 541-5450; e-mail address: <a href="/cdn-cgi/l/email-protection#6f020e17180a0303410d0603032f0a1f0e41080019"><span class="__cf_email__" data-cfemail="dbb6baa3acbeb7b7f5b9b2b7b79bbeabbaf5bcb4ad">[email protected]</span></a>. 
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: <a href="/cdn-cgi/l/email-protection#adcaccdfdfc8d9d983ddccc0c8c1ccedc8ddcc83cac2db"><span class="__cf_email__" data-cfemail="25424457574051510b554448404944654055440b424a53">[email protected]</span></a>.

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:

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                                      NAICS     Examples of potentially
             Category                code \1\      regulated entities
------------------------------------------------------------------------
Industry..........................     221112  Fossil fuel-fired
                                                electric utility steam
                                                generating units.
Federal government................        \2\  Fossil fuel-fired
                                       221122   electric utility steam
                                                generating units owned
                                                by the Federal
                                                government.
State/local/Tribal government.....        \2\  Fossil fuel-fired
                                       221122   electric utility steam
                                                generating units owned
                                                by municipalities.
                                       921150  Fossil fuel-fired
                                                electric utility steam
                                                generating units in
                                                Indian country.
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\1\ North American Industry Classification System.
\2\ Federal, 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 coal- and oil-fired Utility Units from the CAA 
section 112(c) list. (See 70 FR 15994.)

[[Page 62215]]

    In CAMR, EPA established NSPS for Hg emissions from new affected 
coal-fired 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\
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    \1\ One 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).
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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.

[[Page 62216]]

    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 coal-fired units that appear to be 
based on the type of pollution control device used for sulfur dioxide 
(SO<INF>2</INF>) 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 coal-fired 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 coal-fired 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 x 10<SUP>-6</SUP> 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 x 10<SUP>-6</SUP> 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 SO<INF>2</INF>. 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 coal-

[[Page 62217]]

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-the-stack 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 x 10<SUP>-6</SUP> lb/MWh
Subbituminous coal (wet units): 66 x 10<SUP>-6</SUP> lb/MWh
Subbituminous coal (dry units): 97 x 10<SUP>-6</SUP> lb/MWh
Lignite coal: 175 x 10<SUP>-6</SUP> lb/MWh
Coal refuse: 1.0 x 10<SUP>-6</SUP> 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 MWC \3\ 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.
---------------------------------------------------------------------------

    \3\ An 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).
---------------------------------------------------------------------------

    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 EPA-approved 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

[[Page 62218]]

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, coal-fired 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-for-profit 
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

[[Page 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 cost-effective, 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 least-
costly, most cost-effective, or least-burdensome 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

[[Page 62220]]

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:


Sec.  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 start-up 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'',

[[Page 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 ``Sec.  60.48a(b)'' to 
read ``Sec.  60.50Da(b)'' to read as follows:


Sec.  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)<SUP> [epsi]</SUP>1 (incorporated by reference, see Sec.  60.17) 
and coal refuse. Synthetic fuels derived from coal for the purpose of 
creating useful heat, including but not limited to solvent-refined 
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:


Sec.  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 
x10<SUP>-6</SUP> 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 x10<SUP>-6</SUP> 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 x 10<SUP>-6</SUP> 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 x 
10<SUP>-6</SUP> 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 
x 10<SUP>-6</SUP> 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 ``Sec.  60.44a(a)'' to read ``Sec.  60.44Da(a)'';
    b. Revising the existing reference in paragraph (j)(2) from ``Sec.  
60.49a'' to read ``Sec.  60.49Da''; and
    c. Revising the second and third sentences in paragraph (l) to read 
as follows:


Sec.  60.48Da  Compliance provisions.

* * * * *
    (l) * * * The owner or operator of an affected facility subject to 
Sec.  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 Sec.  60.49Da(p) in conjunction 
with hourly stack gas volumetric flow rates measured according to the 
provisions of Sec.  60.49Da(l) or (m), and hourly gross electrical 
outputs, determined according to the provisions in Sec.  60.49Da(k). 
Compliance with the applicable standard under Sec.  60.45Da is 
determined on a 12-month rolling average basis.


Sec.  60.49Da  [Amended]

    6. Section 60.49Da is amended by revising the existing reference in 
paragraph (c)(2) from ``Sec.  60.51a'' to read ``Sec.  60.51Da''.


Sec.  60.50Da  [Amended]

    7. Section 60.50Da is amended by:
    a. Revising the existing reference in paragraph (e)(2) from ``Sec.  
60.48(d)(1)'' to read ``Sec.  60.46(d)(1)''; and
    b. In paragraph (g), by removing the words ``and 60.46Da''.

Subpart Db--[Amended]


Sec.  60.40b  [Amended]

    8. Section 60.40b is amended by revising the existing reference in 
paragraph (e) from ``Sec.  60.40a'' to read ``Sec.  60.40Da''.

Subpart HHHH--[Amended]

    9. Section 60.4141 is amended by revising paragraph (a) to read as 
follows:


Sec.  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 Sec.  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


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