Appendix — Nat'l Mining Ass'n v. Envtl. Prot. Agency, 135 S. Ct. 703 (2014) (No. 14-49)

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14- 49

No. 14-___

IN THE

Supreme Court of the Anited States

NATIONAL MINING ASSOCIATION, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, RESPONDENT

Se ee

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE DISTRICT

OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

VOLUME 2 of 4

CARROLL W. MCGUFFEY III PETER S. GLASER

JUSTIN WONG (Counsel of Record)

TROUTMAN SANDERS LLP TROUTMAN SANDERS LLP

600 PEACHTREE STREET, NE 401 NINTH STREET N.W.

SUITE 5200 SUITE 1000

ATLAN14, GA 30308-2216 WASHINGTON, D.C. 20004

202-274-2998

Peter.glaser

@troutmansanders.com

duly 14, 2014 Counsel of Petitioner

Gauson- Eres Pravina CO, Inc. — (202) 789-0096 — WaSHinGTON,D C 20002

New-—Liquid oil—

continental

New-—Liquid oil—

non-

continental

We are also finalizing alternate equivalent emission

standards (for certain subcategories) to the final

surrogate standards in three areas: SO: (for HCl),

483a

Table 4--Emission Limitations for

Filterable

particulate

matter

3.0E-2

lb/MMBtu

(3.0E-1

Ib/MWh)

3.0E-2

Ib/MMBtu

(3.0E-1

Ib/MWh)

7.0E-2

lb/MWh

2.0E-1

lb/MWh

Liquid Oil-Fired EGUs

Hydrogen

chloride

2.0E-3

Ib/MMBtu

(1.0E-2

lb/MWh)

2.0E-4

lb/MMBtu

(2.0E-3

Ib/MWh)

4.0E-4

lb/MWh

2.0E-3

IhyMWh

Hydrogen

fluoride

4.0E-4

lb/MMBtu.

(4.0E-3

lb/MWh).

6.0E-5

Ib/MMBtu.

(5.0E-4

Ib/MWh).

4.0E-4

lb/MWh.

5.0E-4

Ib/MWh.

individual non-mercury metals and total non-mercury

metals (for filterable PM) from coal- and solid oil-

derived fuel-fired EGUs, and individual and total

metals (for filterable PM) from oil-fired EGUs. The

final alternate emission limitations are provided in

Tables 5 and 6 of this preamble.

Subcatego Coal-

ry/

Pollutant

SO[2)}

Cadmium,

fired

EGUs

484a

Table 5—Alternate Emission Limitations for

IGCC

NA

Liquid

oil,

continent

al

NA

Existing Coal- and Oil-Fired EGUs

Liquid

oil,

non-

continent

al

NA

Solid oil-

derived

Existing Coal- and Oil-Fired EGUs

Subcatego

ry/

Pollutant

Chromium

Cr

Cobalt, Co

Lead, Pb

Nickel, Ni

Coal-

fired

EGUs

2.8E0

Ib/TBtu

(3.0E-2

lb/GWh)

8.0E-1

lb/TBtu

(8.0E-3

lb/GWh)

1.2E0

lb/TBtu

(2.0E-2

Ib/GWh)

4.0E0

lb/TBtu

(5.0E-2

Ib/GWh

NA

3.5E0

Ib/TBtu

(4.0E-2

Ib/GWh)

5.0E0

lb/TBtu

(6.0E-2

485a

Table 5—-Alternate Emission Limitations for

IGCC

2.9E0

lb/TBtu

(3.0E-2

lb/GWh)

1.2E0

lb/TBtu

(2.0E-2

Ib/GWh)

1.9E+2

lb/MMB

tu

(1.8E0

Ib/MWh)

2.5E0

lb/TBtu

(3.0E-2

Ib/GWh)

NA

6.5E0

lb/TBtu

(7.0E-2

lb/GWh)

2.2E+1

Ib/TBtu

(3.0E-1

Liquid

oil,

continent

al

5.5E0

Ib/TBtu

(6.0E-2

lb/GWh)

2.1E+1

lb/TBtu

(3.0E-1

lb/GWh)

8.1E0

Ib/TBtu

(8.0E-2

Ib/GWh)

2.2E+1

Ib/TBtu

(3.0E-1

Ib/GWh)

2.0E-1

Ib/TBtu

(2.0E-3

Ib/GWh)

1.1E+2

ib/TBtu

(1.1E0

Ib/GWh)

3.3E0

lb/TBtu

(4.0E-2

Liquid

oil,

non-

continent

al

3.1E+1

lb/TBtu

(3.0E-1

lb/GWh)

1.1E+2

lb/TBtu

(1.4E0

lbyYGWh)

4.9E0

IbvTBtu

(8.0E-2

Ib/GWh)

2.0E+1

ib/TBtu

(3.0E-1

Ib/GWh)

4.0E-2

Ib/TBtu

(4.0E-4

Ib/GWh)

4.7E+2

lb/TBtu

(4.1E0

IWGWh)

9.8E0

Ib/TBtu

(2.0E-1

Solid oil-

derived

8.0E-1

ib/TBtu.

(2.0E-2

lb/GWh).

1.1E0

Ib/TBtu.

(2.0E-2

Ib/GWh).

8.0E-1

ib/TBtu.

(2.0E-2

Ib/GWh).

2.3E0

Ib/TBtu.

(4.0E-2

Ib/GWh).

NA.

9.0E0

lb/TBtu.

(2.0E-1

Ib/GWh).

1.2E0

Ib/TBtu.

(2.0E-2

486a

Table 5--Alternate Emission Limitations for

Existing Coal- and Oil-Fired EGUs

Subcatego Coal- IGCC Liquid Liquid Solid oil-

ry/ fired oil, oil,

Pollutant EGUs continent non- ésrived

al

continent

al

Ib/GWh) ib/GWh) Ib/GWh) Ib/GWh) Ilb/GWh).

NA = Not applicable.

fna Includes Hg.

Table 6--Alternate Emission Limitations for

New Coal- and Oil-Fired EGUs

Subcategory/ Coal- IGCC Liquid Liquid Solid

fired fna oil, oil,

Pollutant EGUs continen- non- oil-

tal, continen- derived

Iv¥GWh

tal,

lb/GWh

SO[2] 4.0E-1 4.0E-1 NA NA 4.0E-1

lbyYMWh lb/MWh Ib/MWh

Total non- 6.0E-2 4.0E-1 2.0E-4 7.0E-3 6.0E-1

mercury

metals IbyYGWh Ib/GWh Ib/MWh ib/MWh Ib/GWh

fnb

Antimony, 8.0E-3 2.0E-2 1.0E-2 8.0E-3

Sb

lb/GWh lb/GWh lb/GWh

Arsenic, As 3.0E-3 2.0E-2 3.0E-3 6.0E-2 3.0E-3

lb/GWh Ib/GWh lb/GWh

Beryllium, 6.0E-4 1.0E-3 5.0E-4 2.0E-3 6.0E-4

Be

lb/GWh _ Iib/GWh Ib/GWh

Cadmium, 4.0E-4 2.0E-3 2.0E-4 2.0E-3 7.0E-4

Cd

lb/GWh lb/GWh lb/GWh

487a

Table 6—Alternate Emission Limitations for

New Coal- and Oil-Fired EGUs

Subcategory/ Coal- IGCC Liquid Liquid Solid

fired fna oil, oil,

Pollutant EGUs continen- non- oil-

tal, continen- derived

IbvYGWh

tal,

lb/GWh

Chromium, 7.0E-3 4.0E-2 2.0E-2 2.0E-2 6.0E-3

Cr

lb/GWh_ \ib/GWh lb/GWh

Cobalt, Co 2.0E-3 4.0E-3 3.0E-2 3.0E-1 2.0E-3

lb/GWh _ ib/GWh Ib/GWh

Lead, Pb 2.0E-3 9.0E-3 8.0E-3 3.0E-2 2.0E-2

Ib/GWh lb/GWh lb/GWh

Mercury, Hg NA NA 1.0E-4 4.0E-4 2.0E-3

Ib/GWh

Manganese, 4.0E-3 2.0E-2 2.0E-2 1.0E-1 7.0E-3

Mn

lb/YGWh_ ib/GWh lb/GWh

Nickel, Ni 4.0E-2 7.0E-2 9.0E-2 4.1E0 4.0E-2

Ib/GWh_ 1lb/GWh Ib/GWh

Selenium,Se 6.0E-3 3.0E-1 2.0E-2 2.0E-2 6.0E-3

Ib/GWh itb/GWh Ib/GWh

NA = Not applicable.

fna Based on best-performing similar source.

fnb Includes Hg.

As noted elsewhere in this preamble, we are

finalizing a requirement to use filterable PM as a

surrogate for the non-mercury metallic HAP and HCl

as a surrogate for the acid gas HAP for all

subcategories of coal-fired EGUs and for the solid oil

derived fuel-fired EGUs. For all liquid oil-fired EGUs,

we are finalizing a requirement to use filterable PM as

a surrogate for the total metallic HAP, and we are

finalizing HCl and HF limits.

488a

In addition, we are finalizing alternative standards

for certain HAP for some subcategories. The

alternative pollutants and subcategories are as

follows: (1) SO2 as a surrogate to HC) for all

subcategories with add-on FGD systems (except liquid

oil-fired subcategories as there were no existing units

from which to base an alternate SO[2] limit); (2)

individual non-mercury metallic HAP as an alternate

to filterable PM for all subcategories (except that it

includes Hg for liquid oil-fired subcategories); and (3)

total non-mercury metallic HAP as an alternate to

filterable PM for all subcategories (except that it

includes Hg for liquid oil-fired subcategories). These

alternative standards are discussed elsewhere in this

preamble.

We are finalizing a beyond-the-floor standard for Hg

only for all existing coal-fired units designed for low

rank virgin coal based on the use of activated carbon

injection (ACI) for Hg control, as described elsewhere

in this preamble. The EPA has determined that this

beyond-the-floor level is achievable after considering

the relevant CAA section 112(d)(2) provisions.

As noted elsewhere in this preamble, we are also

finalizing a compliance assurance option that would

allow you to monitor liquid oil fuel moisture to

demonstrate that fuel moisture content is no greater

than 1.0 percent. Provided that demonstration is

made, you will not have to conduct additional testing

and monitoring to demonstrate compliance with the

HC] and HF emission limits for units in both liquid oil

subcategories (i.e., continental and non-continental).

Pursuant to CAA section 112(h), we are finalizing a

work practice standard for organic HAP, including

emissions of dioxins and furans, for all subcategories

of EGUs. The work practice standard being finalized

489a

requires the implementation of periodic burner tune-

up procedures described elsewhere in this preamble.

We are finalizing work practice standards because the

significant majority of data for measured organic HAP

emissions from EGUs are below the detection levels of

the EPA test methods, even when long duration

(around 8 hour) test runs are considered. As such, we

consider it impracticable to measure emissions from

these units. As discussed at proposal, we believe the

inaccuracy of a majority of measurements, coupled

with the extended sampling times used, allow a work

practice standard under CAA section 112(h) to apply

to these HAP.** We believe that a work practice

standard will lead to a better environmental outcome

than would be obtained through a requirement to

measure a pollutant for which results may or may not

be obtained. We believe that the work practice

standard will result in actions being taken that will

reduce emissions of these HAP.

In addition, as discussed below, we are creating a

subcategory for limited use liquid oil-fired electric

utility steam generating unit with an annual capacity

factor of less than 8 percent of its maximum or

nameplate heat input and we are establishing work

practice standards applicable to such units pursuant

to CAA section 112(h).

We are finalizing that new or existing EGUs are

“coal-fired” if they combust coal more than 10 percent

of the average annual heat input during any 3

consecutive calendar years or for more than 15 percent

of the annual heat input during any one calendar year

%#® We would also note that the EPA, as a part of the Industrial

Boiler MACT reconsideration proposal that was signed on

December 2, 2011, is proposing to establish work practice stand-

ards for control of dioxins and furans from industrial boilers.

490a

and meet the final definition of “fossil fuel-fired.” We

are finalizing that an EGU is considered to be in the

coal-fired “unit designed for coal greater than or equal

to 8,300 Btu/Ib” subcategory if the EGU: (1) meets the

final definitions of “fossil fuel-fired” and “coal-fired

electric utility steam generating unit;” and (2) is not a

coal-fired EGU in the “unit designed for low rank

virgin coal” subcategory.

We are finalizing that the EGU is considered to be

in the “unit designed for low rank virgin coal”

subcategory if the EGU: (1) meets the final definitions

of “fossil fuel-fired” and “coal-fired electric utility

steam generating unit;” and (2) is designed to burn

and is burning nonagglomerating virgin coal having a

calorific value (moist, mineral matter-free basis) of

less than 19,305 kJ/kg (8,300 Btu/Ilb) and that is

constructed and operates at or near the mine that

produces such coal.*””

We are finalizing that the EGU is considered to be

an IGCC unit if the EGU: (1) Combusts a synthetic gas

derived from gasified coal or solid oil-derived fuel (e.g.,

petroleum coke, pet coke), (2) meets tle final definition

of “fossil fuel-fired,” and (3) is classified as an IGCC

unit. We are not subcategorizing IGCC EGUs based on

the source of the syngas used (e.g., coal, petroleum

coke). Based on information available to the Agency,

although the fuel characteristics of coal and petcoke

are quite different, the syngas products from both

feedstocks have similar HAP content and similar HAP

*” ASTM Method D388-05, “Standard Classification of Coals

by Rank” (incorporated by reference, see § 63.14).

49la

emissions characteristics that can be controlled in a

similar manner.“

We are finalizing that the EGU is considered to be

in the “Continental liquid oil-fired” subcategory if (1)

meets the final definitions of “oil-fired electric utility

steam generating unit” and “fossil fuel-fired;” and (2)

is located in the continental United States (U.S.).

We are finalizing that the EGU is considered to be

“Non-continental liquid oil-fired” subcategory if (1)

meets the final definitions of “oil-fired electric utility

steam generating unit” and “fossil fuel-fired;” and (2)

is located outside continental U.S.

We are finalizing that the EGU is considered to be

“solid oil-derived fuel-fired” if (1) the EGU is not a coal-

fired EGU and burns solid oil-derived fuel (e.g.,

petroleum coke, pet coke); and (2) meets the final

definitions of “oil-fired electric utility steam

generating unit” and “fossil fuel-fired.”

We are finalizing that the EGU is considered to be a

“limited-use liquid oil-fired” if (1) the EGU meets the

final definitions of “oil-fired electric utility steam

generating unit” and “fossil fuel-fired;” and (2) has an

annual capacity factor of less than 8 percent of its

maximum or nameplate heat input, whichever is

greater, averaged over a 24-month block contiguous

period commencing.

E. What are the requirements during periods of

startup, shutdown, and malfunction?

*¢ U.S. Department of Energy, Wabash River Coal Gaification

Repowering Project. Project Performance Summary; Clean Coal

Technology Demonstration Program. DOE/FE-0448. July 2002.

EPA-HQ-OAR-2009-0234-2933.

492a

As discussed below in section VI1.E., for startup and

shutdown, the requirements have changed since

proposal. For periods of startup and shutdown, the

EPA is finalizing work practice standards in lieu of

numeric emission limits. Numeric emission limits

apply for all other periods for all pollutants, except

organic HAP. For malfunctions, the EPA is finalizing

an affirmative defense for exceedances of the

numerics! emission limits that are caused by malfunc-

tions.

F. What are the testing and initial compliance

requirements?

We are requiring that you, as an owner or operator

of a new or existing coal- or oil-fired EGU, must

conduct performance tests to demonstrate compliance

with all applicable emission limits. For units using

certified continuous emissions monitoring systems

(CEMS) that directly measure the regulated pollutant

under final 40 CFR part 63, subpart UUUUU (e.zg., Hg

CEMS, HCl CEMS, HF CEMS, SO, CEMS (where an

SO[2] limit applies as the alternative equivalent

standard)), or sorbent trap monitoring systems, the

initial performance test consists of all valid data

recorded with the certified monitoring system in the

first 30 boiler operating days of data collected with the

certified monitoring system prior to the initial compli-

ance demonstration date specified in § 63.10005. A

source may also elect to use a PM CEMS to

demonstrate compliance with the filterable PM

emission limit. If this option is selected, then the same

provisions as noted above for other CEMS will apply.

(Note that EPA anticipates that the PM monitoring

device that may most often will be used is a PM

continuous parameter monitoring system (CPMS) in

conjunction with an operating limit, as more fully

493a

described below.) For units and pollutants not being

monitored via CEMS, the owner or operator of an

affected unit must perform the initial performance

testing in accordance with established EPA reference

test methods or the voluntary consensus standard

methods incorporated by reference. You, as the owner

or operator of an affected unit, must conduct the

following compliance tests where applicable:

(1) For coal-fired units, IGCC units, and solid oil-

derived fuel-fired units, if you elect to comply with the

filterable PM emission limit, you must conduct

filterable PM emissions testing using EPA Method 5

from Appendix A to part 60 of chapter 40 to determine

initial compliance. Alternatively, if you elect to comply

with the total non-mercury HAP metals emission limit

or the individual non-mercury HAP metals emissions

limits, you must conduct HAP metals testing using

40. Note for this rule that the filter temperature for

each Method 5 or 29 emissions test must be

maintained at 160 [degrees] +/- 14 [degrees] C (320

[degrees] +/- 25 [degrees] F), and the material in

Method 29 impingers must be analyzed for metals

content. Whenever metals testing is performed with

Method 29, you must report the front half and back

half analytical fractions separately.

(2) For coal-fired, IGCC, and solid oil-derived fuel-

fired units, you must use a Hg CEMS or a sorbent trap

monitoring system for both initial compliance and

monitoring provisions of Appendix A to 40 CFR part

63, subpart UUUUU, except where the low emitting

EGU (LEE) requirements apply (see below). The

initial performance test consists of all valid data

recorded with the certified Hg monitoring system in

494a

the 30 boiler operating days of data collected with the

certified monitoring system by the initial compliance

demonstration date specified in § 63.10005.

(3) For coal-fired and solid oil-derived fuel-fired

units and new or reconstructed IGCC units that

employ FGD technology and elect to meet the alterna-

tive SOzlimit in place of the HCl limit, you need not

conduct an initial stack test for HC] or. Instead, the 30

boiler operating days of data collected with the certi-

fied SO. CEMS by the initial compliance demonstra-

tion date specified in § 63.10005 are used to determine

initial compliance, and the SO[2] CEMS is used there-

after to demonstrate continuous compliance. If you

instead opt to meet the HCl limit and use an HCl

CEMS for compliance, you need not conduct an initial

stack test for HCl. Instead, the 30 boiler operating

days of data collected with the certified HC] CEMS by

the initial compliance demonstration date specified in

§ 63.10005 are used to determine initial compliance.

For units not using the SO[2] or HC] CEMS options,

you must conduct an initial stack test for HCl using

EPA Method 26, 26A, or 320 from Appendix A to part

60 of chapter 40. You may use EPA Method 26 or 320

or ASTM Method D6348-03 (Reapproved 2010) with

additional quality assurance if no entrained water

droplets exist in the exhaust gas, but you must use

Method 26A if entrained water droplets exist in the

exhaust gas.

(4) For liquid oil-fired units, you must conduct initial

performance testing as follows. If you elect to meet the

filterable PM limit instead of the non-mercury metals

limit (total or individual), then use Method 5 with the

filter material maintained at 160 [degrees] +/- 14

[degrees] C (320 [degrees) +/- 25 [degrees] F). Alterna-

tively, you may use a PM CEMS as discussed

495a

elsewhere in this preamble. If you elect to meet either

the total or individual HAP metals limit, you will use

Method 29 for all non-mercury HAP metals. For Hg,

conduct emissions testing using EPA Method 29 or

30B from Appendix A to part 60 of chapter 40, or

ASTM Method D6784-02 (Reapproved 2008). For acid

gases, conduct HC] and HF testing using EPA Method

26A, 320, or 26; or you may elect to comply by using an

HCl CEMS and/or an HF CEMS; or under certain

conditions you may choose to demonstrate compliance

by measuring fuel moisture to demonstrate that

moisture content is no greater than 1.0 percent. You

must measure daily if fuel is delivered continuously or

per shipment if fuel is delivered on a batch basis, or

you may use a fuel moisture content certification

provided by your fuel supplier. If you use a CEMS,

then use the 30 boiler operating days of data collected

with the certified monitoring system by the initial

compliance demonstration date specified in § 63.10005

to determine initial compliance.

(5) For the required performance stack tests, if you

are demonstrating compliance with a heat-input based

standard, you must conduct concurrent O[2] or carbon

dioxide (SO2) emission testing using EPA Method 3A

or 3B from appendix A to part 60 of chapter 40 or

ANSVASME PTC 19.10-1981 and then use an

appropriate equation, selected from among Equations

19-1 through 19-9 in EPA Method 19 from appendix A

to part 60 of chapter 40, to convert measured pollutant

concentrations to Ib/MMBtu values. Multiply the

lb/MMBtu value by one million to get the lb/TBtu

value (where applicable). If you choose to meet an

electrical output-based emissions limit, you must also

collect concurrent stack gas flow rate and electrical

production data.

496a

(6) For an existing unit that you believe will qualify

as LEE for Hg, you must condvct an initial Method

30B test over 30 days and follu.. the calculation

procedures in the final rule to document a potential to

emit less than 10 percent of the applicable Hg

emissions limit or less than 29 pounds of Hg per year.

If your unit qualifies as a LEE for Hg, you must

conduct subsequent performance tests on an annual

basis to demonstrate that the unit continues to

qualify. For all other pollutants, you must conduct the

initial compliance test, and then all other required

tests over a 3-year period, and in all such tests, your

emission results must be less than 50 percent of the

applicable emission limit. If you qualify as a LEE on

that basis, you must conduct subsequent performance

tests every 3 years to demonstrate that the unit

continues to qualify.

(7) You may use results from tests conducted no

earlier than 12 months before the compliance date of

this rule as the initial performance test for an

applicable pollutant, provided that:

a. You certify and keep records demonstrating

that no significant changes have occurred,

b. Tests were conducted using methods allowed in

this rule in accordance with § 63.10007 and Table 5,

c. You have records of all parameters needed to

convert results to units of the standard for the entire

period, and

d. For a CEMS-based performance test, you have

all the required data for the entire 30-boiler operating

day rolling average period.

Operating Limit for PM CEMS

497a

Under the final rule, you may elect to comply con-

tinuously with an operating limit, established during

the initial performance test, to demonstrate continu-

ous compliance with the filterable PM, total non-

mercury HAP metals, or individual non-mercury HAP

metals limit. You will use a PM CPMS to monitor

compliance with the operating limit. The PM CPMS

operating principle must be based on in-stack or

extractive light scatter, light scintillation, beta atten-

uation, or mass accumulation detection of the exhaust

gas or representative exhaust gas sample. The report-

able measurement output from the PM CPMS may be

expressed as milliamps, stack concentration, or other

raw data signal. Meeting the operating limit serves as

your demonstration of continuous compliance with the

filterable PM, total non-mercury HAP metals, or indi-

vidual non-mercury HAP metals limit. As mentioned

earlier, if you use this method to demonstrate contin-

uous compliance, you must install a PM CPMS and

establish the operating limit during the initia] compli-

ance test for filterable PM, total non-merecury HAP

metals, or individual non-mercury HAP metals. As

noted below, when you use this operating limit, you

can reduce stack testing frequency to demonstrate

ongoing compliance. You may also opt to install and

operate a PM CEMS certified in accordance with Per-

formance Specification 11 and Procedure 2 of 40 CFR

part 60, Appendices B and F, respectively. If you elect

to use this option, then the requirements for quarterly

testing with Method 5, or annual testing and use of a

PM CPMS, are no longer applicable.

Dioxins/Furans and Non-Dioxin/Furan Organic HAP

For dioxins and furans and non-dioxin/furan organic

HAP, you must submit documentation that you have

conducted a combustion process tune-up, a thorough

498a

equipment inspection, and an optimization to

minimize generation of CO and NO[X], all meeting the

requirements of this final rule. The work practice

standard involves maintaining and inspecting the

burners and associated combustion controls, tuning

the specific burner type to optimize combustion,

obtaining and recording CO and NO[X] values before

and after burner adjustments, keeping records of

activity and measurements, and submitting a report

for each tune-up conducted. You must collect CO and

NO[X] data and may use portable analyzers (which

include handheld or similar devices) to monitor and

verify the results. The specific details are addressed in

40 CFR 63.10021 of the final rule.

This same work practice standard also applies in

place of any emission limits for Hg, non-mercury

metals HAP, acid gas HAP, dioxins and furans, and

non-dioxin/furan organic HAP from a limited-use,

liquid oil-fired EGU (i.e., a unit that has an annual

capacity factor on oil of less than 8 percent of its

maximum or nameplate heat input, whichever is

greater). The EPA established this subcategory in

response to comments and a further analysis of the

units within this subcategory in the ICR database. For

these units, EPA believes that the required work

practice standards are appropriate and consistent

with the requirement of CAA section 112(h).

G. What are the continuous compliance requirements?

To demonstrate continuous compliance with the

emission limitations, the final rule includes the

following requirements:

(1) Use of CEMS. Where a CEMS or a sorbent trap

monitoring system is used for demonstrating initial

compliance, you also must use the CEMS or sorbent

499a

trap monitoring system on a continuous basis to

demonstrate ongoing compliance with the numerical

emission limits. CEMS or sorbent trap monitoring

system data are not used to determine compliance

with the work practice standards applicable during

periods of startup and shutdown, but sources that

install a CEMS or a sorbent trap monitoring system to

demonstrate compliance with the numerical emission

limits must operate the system at ail times, as EPA

intends to evaluate the continuous monitoring data

from start-up and shutdown periods as discussed

below. You must calculate a rolling average for each

successive 30-boiler operating day rolling average

period. All valid data collected during each successive

period will be used to demonstrate compliancr . except

for data collected during periods of startup and

shutdown; during those periods, the owner or operator

must meet work practice requirements instead of the

numerical emission limits. There is no numerical

minimum data availability required to constitute a

valid 30-boiler operating day rolling average; however,

you must monitor at all times that the process is in

operation (including during startups and shutdowns,

although emissions during these periods are not

included in the 30-boiler operating day average). You

must operate, maintain, and quality-assure the CEMS

or sorbent trap monitoring systems in accordance with

the provisions in 40 CFR 63.10010 and Appendix A

and B of the final rule (for Hg, HCl, and HF CEMS),

in accordance with Performance Specification 11 in

Appendix B to 40 CFR part 60 and Procedure 2 in

Appendix F to part 60 (for PM CEMS used for direct

compliance), or in accordance with 40 CFR part 75 (for

SO2z CEMS, and certain ancillary monitors such as a

diluent or moisture monitor).

500a

For each unit using HCl, HF, SO:, PM, or Hg CEMS

or a sorbent trap monitoring system for continuous

compliance, you must install, certify, maintain,

operate and quality-assure the additional CEMS (e.z.,

CEMS that measure O, or CO: concentration, stack

gas flow rate, and, if default moisture values are not

used, moisture content) needed to convert pollutant

concentrations to units of the emission standards or

operating limits. Where appropriate, you must certify

and quality-assure these additional CEMS according

to 40 CFR part 75.

For HC] and HF CEMS, the EPA is adding

monitoring provisions as Appendix B to 40 CFR part

63, subpart UUUUU. Appendix A references perfor-

mance specification (PS) 15 of Appendix B to 40 CFR

part 60 for Fourier Transform Infrared (FTIR) CEMS

for procedures to certify and conduct ongoing quality

assurance on these FTIR CEMS. In addition, we

expect to publish a PS specific to HC] CEMS in the

near future (prior to the compliance date of this rule).

In the meantime, you may petition the Administrator

under the procedure given in 40 CFR 63.7(f) for an

alternative approach to compliance monitoring or

testing for HCl or any other regulated pollutant.

When using a sorbent trap monitoring system, you

may use each pair of sorbent traps to collect Hg

samples for no more than 15 boiler operating days.

Under the general duty to monitor at all times, you

must replace traps in a timely manner to ensure that

Hg emissions are sampled continuously.

For Hg monitoring, the EPA is adding Hg monitor-

ing provisions as Appendix A to 40 CFR part 63,

subpart UUUUU, and requiring use of these provi-

sions to document continuous compliance with the rule

for coal-fired, IGCC, and solid oil derived-fired units

501la

that cannot qualify as LEEs. Appendix A consolidates

all Hg monitoring provisions.

Today’s rule provides two basic Hg continuous

monitoring options: Hg CEMS and sorbent trap

monitoring systems. Appendix A requires initial cer-

tification and periodic quality assurance (QA) testing

of the Hg CEMS and sorbent trap monitoring systems.

The certification tests required for the Hg CEMS are

a 7-day calibration error test; a linearity check, using

NIST-traceable elemental Hg standards; a 3-level

system integrity check (similar to a linearity check),

using NIST-traceable oxidized Hg standards; a cycle

time test; and a relative accuracy test audit (RATA).

Table A-1 of Appendix A summarizes the performance

specifications for the required certification tests. For

ongoing QA of the Hg CEMS, Appendix A requires

daily calibrations, weekly single-point system integ-

rity checks, quarterly linearity checks (or 3-level

system integrity checks), and annual RATAs. Table A-

2 in Appendix A summarizes these ongoing QA test

requirements and the applicable performance criteria

for Hg CEMS, which are consistent with those

published in support of CAMR and are, thus, familiar

to the industry.

For sorbent trap monitoring systems, a RATA is

required for initial certification, and annual RATAs

are required for ongoing QA. The performance

specification for these RATAs is the same as for the

RATAs of the Hg CEMS. Bias adjustment of the

measured Hg concentration data is not required. For

day-to-day operation of the sorbent trap system,

Appendix A requires you to follow the procedures and

QA/QC criteria in PS 12B in Appendix B to 40 CFR

part 60. PS 12B is nearly identical to the Appendix K

to 40 CFR part 75, published in support of CAMR and

502a

with which the industry is familiar. The 40 CFR part

75 concepts of:

a. Determining the due dates for certain QA tests

on the basis of “QA operating quarters” and

b. Grace periods for certain QA tests apply to both

Hg CEMS and sorbent trap monitoring systems.

Mercury concentrations measured by Hg CEMS or

sorbent trap systems are used together with hourly

flow rate, diluent gas, moisture, and electrical load

data, to express the Hg emissions in units of the rule,

on an hourly basis (i.e., |b/TBtu or lb/GWh). Section 6

of Appendix A provides the necessary equations for

these unit conversions.

For HCl and HF CEMS, the EPA is adding monitor-

ing provisions as Appendix B to 40 CFR part 63,

Subpart UUUUU. Appendix A references performance

specification (PS) 15 of Appendix B to 40 CFR part 60

for Fourier Transform Infrared (FTIR) CEMS for

procedures to certify and conduct ongoing quality

assurance on these FTIR CEMS. In addition, we

expect to promulgate a generic PS specific to HCl

CEMS prior to the compliance date of this rule. In the

meantime, you may petition the Administrator under

the procedure given in 40 CFR 63.7(f) for an

alternative approach to compliance monitoring or

testing for HC] or any other regulated pollutant.

(2) Use of stack tests. If you demonstrate initial com-

pliance on the basis of a stack test, you must demon-

strate continuous compliance by conducting periodic

stack tests on a quarterly basis. This includes filtera-

ble PM (or non-mercury HAP metals) and HC) from

coal-fired and solid oil-derived fuel-fired EGUs, and

filterable PM (or HAP metals) and HCl and HF from

liquid oil-fired EGUs with the following exceptions:

503a

a. If you use a PM CPMS and associated operating

limit, you may conduct the applicable Method 5 or

Method 29 test once annually rather than quarterly,

in which case you must re-establish the operating

limit during each performance test. A PM CPMS does

not need to meet the requirements for a PM CEMS

under PS 11. The final rule includes basic quality

checks that the PM CPMS must meet and a require-

ment for you to develop and follow a site-specific mon-

itoring plan to be approved by the delegated authority.

You must demonstrate compliance with the operating

limit by using all valid hourly data collected during

each successive 30-boiler operating day period rolled

daily. The 30-boiler operating day rolling average is

calculated by all of the valid hourly average PM CPMS

output values collected for the 30 boiler operating days

(excluding hours of startup and shutdown; See section

V.E. of this preamble).

b. If you combust liquid fuels and if your fuel

moisture content is no greater than 1.0 percent, you

may demonstrate ongoing compliance with HCl and

HF emissions limits by:

i. Measuring fuel moisture content of each

shipment of fuel if your fuel arrives on a batch basis;

ii. Measuring fuel moisture content daily if your

fuel arrives on a continuous basis; or

iii. Obtaining and maintaining a fuel moisture

certification from your fuel supplier.

Should the moisture in your liquid fuel be more than

1.0 percent, you must

i. Conduct HCl and HF emissions testing quar-

terly and establish site-specific monitoring to

504a

demonstrate continued acid gas control performance

between periodic tests, or

ii. Use an HC] CEMS and/or HF CEMS.

c. If your existing unit qualifies as an LEE for Hg,

you must conduct another 30-day Method 30B

performance test on your unit once per year to

reestablish that the unit continues to qualify as a LEE

for Hg. If the results of the LEE test show that the unit

exceeds 10 percent of the emissions limit or exceeds

the potential to emit 29 pounds of Hg per year, you will

lose LEE status for the unit. You can regain LEE

status for that unit if every required performance test

for a 3-year period shows that emissions from the unit

did not exceed the LEE limit. If LEE status is lost for

a solid fuel unit, you must commence quarterly

performance testing until you install, certify, and

operate a Hg CEMS or a sorbent trap monitoring

system, and you must complete the installation and

certification within 6 months of losing LEE status; for

a liquid fuel unit, you must commence quarterly

performance testing.

d. If a liquid oil-fired EGU has an annual capacity

factor on oil of less than 8 percent of its maximum or

nameplate heat input, whichever is greater, you must

demonstrate continuous compliance with the applica-

ble work practice standard by conducting at least once

every 36 calendar months (48 calendar months if a

neural network is employed) a combustion process

tune-up, a thorough equipment inspection, and an

optimization to minimize generation of CO and NOx,

all meeting the requirements of this final rule. You

must maintain and inspect the burners and associated

combustion controls, tuning the specific burner type to

optimize combustion, obtaining and recording CO and

NOx values before and after burner adjustments,

505a

keeping records of activity and measurements, and

submitting a report for each tune-up conducted. You

must collect CO and NOx data using portable analyz-

ers (which typically include handheld or similar

devices). Specific details are addressed in 40 CFR

63.10021 of the final rule. In addition, you must record

boiler operating hours, by fuel type, in each calendar

quarter.

e. The rule allows a grant of LEE status to

existing units with test results that show a history of

low, non-mercury emissions. As mentioned earlier,

LEE status reduces testing frequency for units. After

a 3-year period during which every emissions test for

a specific pollutant shows emissions no greater than

50 percent of the emissions limit, you may reduce the

emissions testing frequency for that specific non-

mercury pollutant to once every 36 months. If any

subsequent emissions test for that pollutant exhibits

emissions greater than 50 percent of the emissions

limit, you must revert to the original emissions testing

frequency until you re-establish a 3-year period of very

low emissions no greater than 50 percent of the

standard.

f. For liquid oil-fired units that demonstrate con-

tinuous compliance with quarterly performance tests

for HC] and HF emission limits rather than through

use of HC] and HF CEMS, the final rule requires a

site-specific monitoring plan in addition to the quar-

terly tests. For these pollutants, there is unlikely to be

any existing underlying monitoring (such as compli-

ance assurance monitoring) that serves as an addi-

tional tool to ensure the source’s operations remain

consistent with operating conditions during a recent

successful performance test. The requirement for a

site-specific monitoring plan fills this gap and ensures

506a

that in between tests, the source continues to operate

in a manner designed to maintain HC] and HF emis-

sions in compliance with the emission limits under

this rule. The appropriate parameters to monitor will

depend on the compliance strategy employed by a spe-

cific source, and thus EPA is enabling the monitori

approach to be established on a case-by-case basis.

Given the relatively small number of these units and

the other compliance options available, we anticipate

that this approach will apply to a small set of units.

The monitoring plan will identify the parameters mon-

itored, the monitoring methods, the QA/QC elements

that apply, and the data reduction elements (including

appropriate averaging periods, as applicable). See 40

CFR 63.10000(cX2 ii).

keeping records of activity and measurements, and

submitting a report for each tune-up conducted. A

combustion tune-up will involve optimizing combus-

tion of the unit consistent with manufacturer's

instruction as applicable, or in accordance with best

combustion engineering practice for that burner type.

H. What are the notification, recordkeeping and

reporting requirements?

All new and existing sources in al] subcategories

must comply with certain requirements of the General

507a

Provisions (40 CFR part 63, subpart A), which are

identified in Table 9 of this final rule. The General

Provisions include specific requirements for notifica-

tions, recordkeeping, and reporting. You must submit

a notification of compliance status report for each unit,

according to the schedule required by 40 CFR 63.9(h)

of the General Provisions, including a certification of

compliance.

Except for units that use CEMS for continuous

compliance, under this rule you must provide semian-

nual compliance reports, as required by 40 CFR

63.10(e)(3) of subpart A, that indicate whether a

deviation from any of the requirements in the rule

occurred and whether or not any process changes

occurred and compliance certifications were reevalu-

ated. As discussed below, we are finalizing a

requirement to use the 40 CFR part 75-based

Emissions Collection and Monitoring Plan System

(ECMPS) for reporting emissions and related data for

units using CEMS for most pollutants. Also, as

discussed below, for the PM CPMS, PM CEMS, and

performance test results, we require you to use EPA’s

WebFIRE*™ database for reporting.

This rule requires you to keep certain records to

demonstrate compliance with each emission limit and

work practice standard. The General Provisions to 40

CFR part 63 specify these recordkeeping requirements

(see Table 9 to this subpart). Among other specific

records, you must keep the following:

38 WebFIRE is the Internet version of FIRE. The Factor

Information Retrieval (FIRE) Data System is a database

management system containing EPA’s recommended emission

estimation factors for criteria and HAP. It includes information

about industries and their emitting processes, the chemicals

emitted, and the emission factors themselves.

508a

(1) All reports and notifications submitted to comply

with this rule.

(2) Continuous monitoring data as required in this

rule.

(3) Each instance in which you did not meet an

emission limit, work practice requirement, operating

limit, or other compliance obligation (i.e., deviations

from this rule).

(4) Daily hours of operation by each unit.

(5) As part of the general duty to keep all monitoring

data, fuel moisture content of liquid fuel, if you elect

to demonstrate compliance using that information.

(6) A copy of the results of all performance tests,

monitor certifications, performance evaluations, or

other compliance demonstrations conducted to demon-

strate initial or continuous compliance with this rule.

(7) A copy of your site-specific performance evalua-

tion test plans developed for this rule as specified in

40 CFR 63.8(e), if applicable.

(8) A copy of your acid gas control system parameter

monitoring plan under 40 CFR 63.10000(c2 ii).

You also must submit the following additional

notifications:

(1) Notifications required by the General Provisions.

(2) Initial Notification no later than 120 calendar

days after you become subject to this subpart.

(3) Notification of Intent to conduct performance

tests and/or compliance demonstration at least 60

calendar days before the performance test and/or

compliance demonstration is scheduled.

509a

(4) Notification of Compliance Status 60 calendar

days following completion of the performance test

and/or compliance demonstration.

Electronic reporting is becoming a common element

of modern life (as evidenced by electronic banking and

income tax filing), and the EPA is beginning to require

electronic submittal of environmental data. Electronic

reporting is already common in environmental data

collection and many media offices at EPA are reducing

reporting burden for the regulated community by

embracing electronic reporting systems as an alterna-

tive to paper-based reporting.

One of the major benefits of reporting electronically

is standardization, to the extent possible, of the data

reporting formats that provides more certainty to

users of what data are required in specific reports. For

example, electronic reporting software allows for more

efficient data submittal and the software’s validation

mechanism helps industry users submit fewer

incomplete reports. This alone saves industry report

processing resources and reduces transaction times.

Standardization also allows for development of

efficient methods to compile and store much of the

documentation required to be reported by this rule.

Use of Electronic Reporting System

We are requiring that you submit certain reports

electronically. In addition to supporting regulation

development, control strategy development, and other

air pollution control activities, having an electronic

database populated with these reports will save

industry, state, local, tribal agencies, the public, and

the EPA significant time, money, and effort while also

improving the transparency and quality of emission

inventories and, as a result, air quality regulations.

510a

The reports to be submitted electronically include

all performance test reports, notification of compliance

status reports, compliance, and continuous monitoring

data summaries specified in 40 CFR 63.10031 of this

rule. Performance tests are required to be conducted

as described in 40 CFR 63.7 of the General Provisions.

The data that must be submitted as the performance

test report are also described in 40 CFR 63.7. These

data must be submitted (except in limited cases) to

EPA’s WebFIRE database by using the electronic

reporting tool (ERT) and the Compliance and Emissions

Data Reporting Interface (CEDRI) that is accessed

through EPA’s Central Data Exchange (CDX), as

described below. The data requirements for the

notification of compliance status and compliance

reports are described in detail in the regulatory text

(40 CFR 63.10031) of this rule, but they essentially

mirror the requirements in 40 CFR 63.6 of the General

Provisions. These reports will also be submitted to

WebFIRE using an electronic form found in CEDRI

and through the CDX as described below. As required

in 40 CFR 63.10031(f)(2) of the final rule, the

continuous monitoring summaries are required to be

submitted quarterly. The quarterly reports must

include all of the calculated 30-boiler operating day

rolling average values derived from the PM CPMS.

These reports will also be submitted to WebFIRE

using an electronic form found in CEDRI and through

the CDX, as described below. This same approach will

apply if a source elects to use a PM CEMS or receives

approval to use a HAP metals CEMS as an alternative

monitoring method.

The availability of electronic reporting for sources

subject to the Subpart UUUUU will provide efficiency,

improved services, better accessibility of information,

5lia

and more transparency and accountability. Addition-

ally, submittal of these required reports electronically

provides significant benefits for regulatory agencies,

industry, and the public. The compliance data

electronic reporting system (CEDRI and CDX) is being

developed such that once a facility’s initial data entry

into the system is established and a report is gener-

ated, subsequent data submittal will only consist of

electronic updates to existing information in the

system. Such a system will effectively reduce the bur-

den associated with submittal of data and reports by

reducing the time, costs, and effort required to submit

and update hard copies of documentation. State, local,

and tribal air pollution control agencies will also ben-

efit from having access to the more streamlined and

accurate electronic data submitted to the EPA.

Electronic reporting will allow for an electronic review

process rather than a manual data assessment, mak-

ing review and evaluation of the source-provided data

and calculations easier and more efficient. Electronic

reporting will also benefit the public by generating a

more transparent review process and increasing the

ease and efficiency of data accessibility. Furthermore,

electronic reporting will reduce the burden on the reg-

ulated community by reducing the effort involved in

data collection and reporting activities. In the future,

we anticipate there will be fewer and less substantial

data collection requests in conjunction with prospec-

tive required residual risk assessments or technology

reviews. Electronic reporting will substantially reduce

this burden, because the EPA will already have these

data available and consolidated in an electronic data-

base named WebFTIRE. We anticipate that using elec-

tronic reporting for the required reports will result in

an overall reduction in reporting costs; for a discussion

512a

of the economic and cost impacts of electronic report-

ing, see section XII.D. of this preamble.

Another benefit of electronic data submittal is that

these data will greatly i improve the overall quality of

existing and new emissions factors by supplementing

the pool of emissions test data for establishing

emissions factors and by ensuring that the factors are

more representative of current industry operational

procedures. A common complaint heard from industry

and regulators is that emission factors are outdated or

not representative of a particular source category.

With timely receipt and incorporation of data from

most performance tests, the EPA will be able to ensure

that emission factors, when updated, represent the

most current range of operational practices.

Data entry of these electronic reports will be

through the CEDRI that is accessed through EPA’s

CDX (www.epa.govu/cdx). Data submitted electronically

through CEDRI will be stored in CDX as an official

copy of record.

Once you have accessed CEDRI, you will select the

applicable subpart for the report that you are

submitting. You will then select the report being

submitted, enter the data into the form, and click on

the submit button. In some cases, such as with

submittal of a notification of compliance status report,

you will select the report icon, enter basic facility

information, and then upload the report in a specified

file format.

In addition, we believe that there will be value in

allowing other reporting forms to be developed and

used in cases where the other reporting forms can

provide an alternate electronic file consistent with

EPA’s form output format. This approach has been

513a

used successfully to provide alternatives for other

electronic forms (e.g., income tax submittal).

In cases where performance test data are to be

submitted to the EPA, you must enter the performance

test data and information into the electronic reporting

tool (ERT) which can be accessed at http://www.

epa.gou/ttn/chief/ert /index.html. In CEDRI, the user

must then upload the ERT file. CEDRI submits a copy

of the ERT project data file directly to WebFIRE where

the data are made available. Where performance test

reports are submitted, WebFIRE notifies the

appropriate state, local, or tribal agency contact that

an ERT project data file was received from the source.

Submitting performance test data electronically to

the EPA will apply only to those performance tests

conducted using test methods that will be supported

by the ERT. The ERT contains a specific electronic

data entry form for most of the commonly used EPA

reference methods. A listing of the pollutants and test

methods supported by the ERT is available at the ERT -

Web site listed above.

I. Submission of Emissions Test Results to the EPA

The EPA has determined that harmonization of the

monitoring and reporting requirements of this final

rule with 40 CFR part 75 is appropriate, where the

affected industry already has a well-defined system for

continuous monitoring and reporting of emissions

under that part. Therefore, the Agency is finalizing

monitoring and reporting requirements for most

CEMS that are consistent with 40 CFR part 75. You

must report CEMS data (other than PM CEMS data

or data from alternative monitoring subject to site-

specific approval such as a HAP metals CEMS) to the

5l4a

EPA electronically, on a quarterly basis, using the

ECMPS.

The ECMPS process divides electronic data into

three categories, the first of which is monitoring plan

data. You must maintain the electronic monitoring

plan separately and can update it at any time if

necessary. The monitoring plan documents the

characteristics of the affected units (e.g., unit type,

rated heat input capacity, etc.) and the monitoring

methodology used for each parameter (e.g., CEMS).

The monitoring plan also describes the type of

monitoring equipment used (hardware and software

components), includes analyzer span and range

settings, and provides other useful information.

Nearly all coal-fired EGUs are subject to the ARP and

thus have established electronic monitoring plans that

describe their required SO2, flow rate, CO2 or Oz, and,

in some cases, moisture monitoring systems. The EPA

will adjust the ECMPS monitoring plan format to

accommodate this same type of information for Hg,

HCl, and HF CEMS, with the addition of a few codes

for the new parameters.

The second type of data collected through ECMPS is

certification and QA test data. These data include data

from linearity checks, RATAs, cycle time tests, 7-day

calibration error tests, and a number of other QA tests

that are required to validate the emissions data. You

may submit the results of these tests to the EPA as

soon as you obtain the results, with one notable

exception. Daily calibration error tests are not treated

as individual QA tests, due to the large number of

records generated each quarter. Rather, these tests

must be included in the quarterly electronic reports,

along with the hourly emissions data. The ECMPS

system is set up to receive and process certification

515a

and QA data from SO2, COs, Ox, flow rate, and

moisture monitoring systems that are installed,

certified, maintained, operated, and quality-assured

according to 40 CFR part 75. EGUs routinely submit

these data to the EPA under the ARP and other

emissions trading programs.

To accommodate the certification and QA tests for

Hg CEMS, other CEMS, and sorbent trap monitoring

systems, the structure and functionality of ECMPS

needs relatively few changes, because most of the tests

are the same as those required for other gas monitors.

For reporting Hg, HCl, SO2, and HF CEMS data under

this rule, we are disabling ECMPS’ 40 CFR part 75

bias test (which is required for certain types of

monitors under the EPA’s SO, and NOx emissions

trading programs). The bias adjustment of the data

from these monitors is unnecessary for compliance

with the rule.

The third type of data collected through ECMPS is

the hourly emissions data, which, as previously noted,

is reported on a quarterly schedule. You must submit

reports within 30 days after the end of each calendar

quarter. The emissions data format requires hourly

reporting of all measured and calculated emissions

values, in a standardized electronic format. You must

report direct measurements made with CEMS, such as

gas concentrations, in a Monitor Hourly Value (MHV)

record. A typical MHV record for gas concentration

includes data fields for:

(1) The parameter monitored (e.g., SO2);

(2) The unadjusted and bias-adjusted hourly

concentration values (note that if bias adjustment is

not required, only the unadjusted hourly value is

reported);

516a

(3) The source of the data, i.e., a code indicating

either that each reported hourly concentration is a

quality assured value from a primary or backup

monitor, or that quality-assured data were not

obtained for the hour; and

(4) The percent monitor availability (PMA), which is

updated hour-by-hour. This generic record structure

could easily accommodate hourly average measure-

ments from CEMS used under this rule.

The ECMPS reporting structure is quite flexible,

which makes it useful for assessing compliance with

various emission limits. The Derived Hourly Value

(DHV) record allows calculations of a wide variety of

quantities from the reported hourly emissions data.

For instance, if an emission limit is expressed in units

of Ib/MMBtu, the DHV record can be used to report

hourly pollutant concentration values in these units of

measure, since the Ib/MMBtu values can be derived

from the hourly pollutant and diluent gas (CO, or O2)

concentrations reported in the MHV records. The

ECMPS can also accommodate multiple DHV records

for a given hour in which more than one derived value

is required to be reported. The system will support

reporting hourly data in the units of the emission

standards (e.g., Ib/MMBtu, lb/TBtu, Ib/GWh, etc.)

when hourly Hg concentration data are reported

through ECMPS using the DHV record, in conjunction

with the appropriste equations and auxiliary

information such as heat input and electrical load (all

of which are reported hourly in the emissions reports).

One change in this rule from standard 40 CFR part

75 emissions data reporting is elimination of the

requirement to provide substitute data calculations

within ECMPS. The ARP and other emissions trading

programs that report emissions data to the EPA using

517a

40 CFR part 75 require provision of a complete data

record. Emissions data are required to be reported for

every unit operating hour. When CEMS are out of

service, substitute data must be reported to fill in the

gaps. However, for the purposes of compliance with a

NESHAP, reporting substitute data during monitor

outages is not necessary, as quantification of total

mass emissions is not the focus of the rule. Hours

when a monitoring system is out of service would be

counted as hours of monitor down-time and may be a

deviation from the monitoring requirements of this

rule unless the rule provides an exception, as it does

for routine quality control and maintenance activities.

In contrast to the CEMS-related data that would be

submitted through ECMPS, you must submit reports

of performance tests and PM CPMS data to EPA’s

WebFTRE database by using CEDRI that is accessed

through EPA’s CDX (www.epa.gouv/cdx). You must

submit performance test data in the file format

generated through use of EPA’s ERT (see http://www.

epa.gou/ttn/chief/ert /index.html) within 60 days

of performance test completion. Electronic data

submittal requirements are described in section V.H.

of this preamble.

Other notifications and reports not currently

accepted by the electronic reporting system will be

submitted in hardcopy form at this time.

VI. Summary of Significant Changes Since

Proposal

The previous section described the requirements

that EPA is finalizing in this rule. This section will

discuss in greater detail the key changes EPA is

making from the proposed. These changes result from

EPA’s review of the additional data and information

518a

provided to us and our consideration of the man’

substantive and thoughtful comments submitted on

the proposal. While our approach and methodology to

establishing the standards remain the same, the

changes make the final rule more flexible and cost-

effective, reduce reliability concerns and improve

clarity, while fully preserving, or improving, the public

health and environmental protection required by the

CAA.

A. Applicability

Since proposal, the EPA has made certain changes

to the applicability provisions of the final rule to

provide clarity. These changes do not change the

universe of sources subject to the rule.

The EPA is revising a number of the proposed

definitions and adding a definition for “natural gas-

fired electric utility steam generating unit” in the final

rule to provide clarity to the regulated community

concerning the standards applicable to coal and oil-

fired EGUs.

In the proposed rule, the EPA defined “(ellectric

utility steam generating unit” consistent with the CAA

section 112(aX8) definition:

A fossil fuel-fired combustion unit of more than 25

megawatts electric (MWe) that serves a generator that

produces electricity for sale. A fossil fuel-fired unit

that cogenerates steam and electricity and supplies

more than one-third of its potential electric output

capacity and more than 25 MWe output to any utility

power distribution system for sale is considered an

electric utility steam generating unit.

40 CFR 63.10042.

519a

We also indicated how we would determine whether

units were coal-fired or oil-fired fired EGUs: “If an

EGU burns coal (either as a primary fuel or as a

supplementary fuel), or any combination of coal with

another fuel (except solid waste as noted below), the

unit is considered to be coal fired under this proposed

rule. If a unit is not a coal-fired unit and burns only

oil, or oil in combination with another fuel other than

coal (except as noted below), the unit is considered to

be oil fired under this proposed rule.” 76 FR 25020.

We proposed a definition for the term “fossil fuel-

fired” because that term was not defined in the statute

and we wanted to clarify the level of fossil fuel

combustion necessary to satisfy the CAA section

112(a\8) definition of EGU. The definition focused on

coal and oil combustion because the EPA was only

regulating coal- and oil-fired EGUs in this final rule.

The proposed definition contained two primary

elements: (1) the unit must be capable of combusting

sufficient amounts of coal or oil to generate the

equivalent of 25 megawatts electrical output; and (2)

the unit must have fired coal or oil for more than 10.0

percent of the average annual heat input during the

previous 3 calendar years or for more than 15.0

percent of the annual heat input during any one of

those calendar years. 76 FR 25025. We further stated

that for a unit to be “capable of combusting” coal or oil

the unit must have a permit that authorized the

combustion of coal or oil and also have the appropriate

fuel handling facilities on-site. Id.

As explained in the proposed rule, natural gas-fired

EGuUs were not included in the December 2000 listing

so such units that otherwise met the CAA section

112(aX8) definition of EGU because of natural gas

combustion are not subject to the final rule. In the

520a

proposed rule, we stated that an EGU that “combusts

natural gas exclusively or natural gas in combination

with another fuel where the natural gas constitutes 90

percent or more of the average annual heat input

during the previous 3 calendar years or 85.0 percent

or more of the annual heat input during any one of

those calendar years” was not subject to the rule. Jd.

The references to 90 percent natura! gas combustion

over 3 years and 85 percent natural gas combustion in

any one year were included to align with the

definitions of “fossil fuel-fired” so that it would be clear

that units combusting primarily natural gas would not

be considered coal-fired, oil-fired, or IGCC EGUs if

they burned 10 percent or less of coal, oil, or synthetic

gas derived from coal or solid oil over 3 years or 15

percent or less of such fuels in any one year. We did

not intend to suggest that to be considered a fossil fuel-

fired EGU a natural gas-fired unit that is not a coal-

fired or oil-fired EGU would have to combust natural

gas that exceeded the 10 percent/15 percent thresholds

set forth in the proposed rule. In fact, in 40 CFR

63.9983 of the proposed rule, we stated that “lajny

EGU that is not a coal- or oil-fired EGU and combusts

natural gas more than 10.0 percent of the average

annual heat input during the previous 3 calendar

years or for more than 15.0 percent of the annual heat

input during any one of those calendar years” is not

subject to this subpart.

We further explained that the percentages included

in the definition of “fossil fuel-fired” would prevent

units that primarily combusted fuels other than fossil

fuels from being subjected to the final rule:

Units that do not meet the definition of fossil-fuel

fired would, in most cases, be considered IB units

subject to one of the Boiler NESHAP. Thus, for

521la

example, a biomass-fired EGU, regardless of size, that

utilizes fossil fuels for startup and flame stabilization

purposes only (i.e., less than or equal to 250 MMBtu/hr

and used less than 10.0 percent of the average annual

heat input during the previous 3 calendar years or less

than 15.0 percent of the annual heat input during any

one of those calendar years) is not considered to be a

fossil fuel-fired EGU under this proposed rule. The

EPA has based its threshold value on the definition of

“oil-fired” in the ARP found at 40 CFR 72.2. As EPA

has no data on such use for (e.g.) biomass co-fired

EGUs because their use has not yet become common-

place, we believe this definition also accounts for the

use of fossil fuels for flame stabilization use without

inappropriately subjecting such units to this proposed

rule. Id.

Thus, in the proposed rule, we intended to create

thresholds to determine when a unit is fossil fuel-fired

and for which fossil fuel the unit is fossil fuel-fired. We

intended to include a unit combusting more than the

defined amount of coal in one of the coal-fired EGU

subcategories. If a unit is not coal-fired and it is

combusting more than the defined amount of oil, we

intended to include the unit in one of the oil-fired EGU

subcategories. We also intended to make clear that

EGUs that are neither coal-fired nor oil-fired but

combust more than the defined amount of natural gas

are natural gas-fired EGUs not subject to the final

standards. However, the definitions, as proposed, were

not sufficiently descriptive.

For example, we included a definition for “coal-fired

electric utility steam generating unit” that did not

include the requirement that the unit must combust

coal for at least 10 percent of the heat input over 3

years or 15 percent of the heat input in any one year.

522a

Instead, in the proposed rule we indicated that a unit

was coal-fired if it burned coal in any amount. We did

not intend to define a unit as coal-fired if it burned coal

that accounted for 10 percent or less over 3 years or 15

percent of less in any one year, as that would be

inconsistent with the definition of fossil fuel-fired and

the definitions for the oil-fired EGU subcategories.

Under the proposed rule construct, a unit that

combusts mostly biomass and less than 10 percent coal

over 3 years would not be a coal-fired EGU because it

would not meet the “fossil fuel-fired” definition. But a

unit burning mostly petroleum coke and less than 10

percent coal over 3 years might be considered a coal-

fired EGU because it would meet the definition of

“fossil fuel-fired” and be burning some coal, even

though that level of coal combustion alone would not

be sufficient to make the unit “fossil fuel-fired” for coal.

That result is at odds with our intent. The same would

hold true for an EGU that combusts mostly natural

gas and less than 10 percent synthetic gas derived

from coal] over a 3-year period. Our proposal preamble

makes clear that we did not intend this result because

we specifically stated that units burning 90 percent or

more natural gas over a 3-year period would be

considered natural-gas fired EGUs. 76 FR 25025.

In addition, we proposed to define “[u]nit designed

to burn solid oil fuel subcategory” to include any EGU

that burned a solid fuel derived from oil for more than

10.0 percent of the average annual heat input during

the previous 3 calendar years or for more than 15.0

percent of the annual heat input during any one of

those calendar years, either alone or in combination

with other fuels. We also included the 10 percent/15

percent thresholds in the definition for the liquid oil

subcategory, but, as stated above, we did not include

the thresholds in the definition of “coal-fired” EGU.

523a

Therefore, there would be some confusion for a source

that blended coal with solid oil derived fuel (e.g.,

petroleum coke). For example, the owner or operator

of an EGU that burned sufficient solid oil-derived fuel

that accounted for 80 percent of the heat input in a

given year and the remainder of the fuel was coal

would not be sure which standard applied because the

definitions in the proposed rule were internally

inconsistent.

For these reasons, we are revising the definitions for

“coal-fired electric utility steam generating unit,”

“integrated gasification combined cycle electric utility

steam generating unit,” and “oil-fired electric utility

steam generating unit,” and we are adding a definition

of “natural-gas fired electric utility steam generating

unit” as set out in 40 CFR 63.10042.

In addition to these changes, we are revising the

definition of “fossil fuel-fired” based on comments. We

are revising the definition to remove the heat input

equivalent of 25 MW because commenters noted that

the equivalency used (taken from 40 CFR part 60,

subpart Da) could not be applied consistently because

of differing boiler efficiencies. Commenters noted that

owners/operators were familiar with the use of the

“MW” term for the boilers and boilers include

nameplate capacities that are readily identifiable.

We are also including a revision to the definition so

that the fossil fuel combustion thresholds of 10 percent

over 3 consecutive years and 15 percent in one year are

evaluated after the applicable compliance date of the

final rule on a rolling basis. Commenters correctly

noted that some existing coal- and oil-fired EGUs will

convert their units to alternative fuels (e.g., natural

gas or biomass) and if the definition were finalized as

524a

proposed such units could be improperly subjected to

the final standards.

The new definition is set out in 40 CFR 63.10042.

For clarity, we are also removing the definition of

“[ujnit designed to burn liquid oil fuel subcategory,”

revising the definition of “[u]nit designed to burn solid

oil fuel subcategory,” adding definitions for the

continental and non-continental liquid oil-fired EGU

subcategories, and adding a definition of a limited-use

liquid oil-fired EGU as set out in 40 CFR 63.10042.

In the proposed rule, we stated that we believed

EGUs may at times not meet the definition of an EGU

subject to this subpart. For example, we explained

that there may be some cogeneration units that are

determined to be covered under the Boiler NESHAP.

Such unit(s) may make a decision to increase the

proportion of production output being supplied to the

electric utility grid, thus causing the unit(s) to meet

the EGU cogeneration criteria (i.e., greater than one-

third of its potential output capacity and greater than

25 MW). In the preamble to the proposed rule, we

indicated that a unit subject to one of the Boiler

NESHAP that increases its electricity output and

meets the definition of an EGU would be subject to the

EGU NESHAP for the 6-month period after the unit

meets the EGU definition. n310 76 FR 25026.

Assuming the EGU did not meet the definition of an

EGU following that initial occurrence, at the end of the

6-month period it would revert back to being subject to

the Boiler NESHAP, or other applicable standard. We

solicited comment on the extent to which situations

like this might occur, how the EPA should address

situations where units change applicability, and

whether we should include provisions similar to those

525a

included in the final CISWI (40 CFR 60.2145) to

address such situations. Jd.

n310 Although we clearly stated the intent to

require sources to comply for 6 months after meeting

the definition of an EGU, we inadvertently failed to

include the provision in the proposed rule.

Several commenters asked the Agency to include

provisions in the final rule that would address

situations like the ones described in the preamble to

the proposed rule. Because appiicability to the final

rule is based in part on the statutory definition of an

EGU is CAA section 112(aX8), similar to the situation

with units combusting solid waste under CAA section

129(g)(1) (e.g., CISWI Rule), we are adopting provi-

sions in the final rule that are based on the fuel

switching provisions of the final CISWI Rule (See

Final CISWI Rule, 40 CFR 60.2145). For example, a

cogeneration unit that did not historically provide

more than one third of its potential electrical output

capacity to a power distribution system could change

its output and provide more than 25 megawatts

electrical output to any power distribution system for

sale. Such units would be subject to MATS. If the

cogeneration unit later reduced its output such that it

no longer met the definition of an EGU, that source

would nevertheless remain subject to MATS for at

least 6 months from the date that the unit first

qualified as an EGU.

In addition, we are finalizing a provision whereby

you may opt to remain subject to the provisions of this

final rule, unless you combust solid waste, in which

case you are a solid waste incineration unit subject to

standards under CAA section 129 (e.g., 40 CFR part

60, subpart CCCC (New Source Performance Standards

(NSPS) for Commercial and Industrial Solid Waste

526a

Incineration Units), or subpart DDDD (Emissions

Guidelines (EG) for Existing Commercial and

Industrial Solid Waste Incineration Units)). We

believe the provision to opt to remain subject to this

final rule will ameliorate conditions where EGUs may

potentially move between NESHAP on a relatively

frequent basis. Notwithstanding the provisions of this

final rule, an EGU that starts combusting solid waste

is subject to standards under CAA section 129, and the

unit remains subject to those standards until the unit

no longer meets the definition of a solid waste

incineration unit consistent with the provisions of the

applicable CAA section 129 standards.

The changes to the definitions described above

provide clarity to sources, permitting agencies, and

the public about the applicability of the rule and help

ensure that sources are appropriately covered by the

regulation.

B. Subcategories

In this final rule, the EPA is adding subcategories

for limited-use oil-fired units and non-continental oil-

fired units and revising the definitions for the coal-

fired EGU subcategories.

The proposed rule subcategorized EGUs burning

coal into two subcategories: EGUs designed for coal

>/=8,300 Btu/lb and EGUs designed for virgin coal <

8,300 Btu/lb (low rank virgin coal). We received a

number of comments indicating that the definition of

the low rank virgin coal subcategory was technically

deficient.

Under CAA section 112(d\1), the Administrator has

the discretion to “* * * distinguish among classes,

types, and sizes of sources within a category or

subcategory in establishing * * *” standards. The EPA

o27a

maintains that, normally, any basis for subcategoriza-

tion (i.e., class, type, or size) must be related to an

effect on HAP emissions that is due to the difference

in class, type, or size of the units. See 76 FR 25036-

25037. The EPA believes it is not reasonable to

exercise our discretion without such a difference

because if sources can achieve the same level of

emissions reductions notwithstanding a difference in

class, type, or size, the purposes of CAA section 112

are better served by requiring a similar level of control

for all such units in the category or subcategory. See

Lignite Energy Council v. EPA, 198 F. 3d 930, 933

(D.C. Cir. 1999) (“EPA is not required by law to

subcategorize—section 111[b][2] merely states that the

Administrator may distinguish among classes, types,

and sizes within categories of new sources” (emphasis

original)); See also CAA section 112(d)(1) (containing

almost identical language to CAA section 111, CAA

section 112(dX1) provides that “the Administrator

may distinguish among classes, types, and sizes of

sources within a category or subcategory in establish-

ing {] standards * * *”). Even if we determine that

emissions characteristics are different for units that

differ in class, type, or size, the Agency may still

decline to subcategorize if there are compelling policy

justifications that suggest subcategorization is not

appropriate. Jd.

When developing the proposed rule, we examined

the EGUs in the top performing 12 percent of sources

for Hg emissions. We determined that:

There were no EGUs designed to burn a non-

agglomerating virgin coal having a calorific value

(moist, mineral matter-free basis) of 19,305 kJ/kg

(8,300 Btu/lb) or less in an EGU with a height-to-depth

ratio of 3.82 or greater among the top performing 12

528a

percent of sources for Hg emissions, indicating a

difference in the emissions for this HAP from these

types of units. The boiler of a coal-fired EGU designed

to burn coal with that heat value is bigger than a boiler

designed to burn coals with higher heat values to

account for the larger volume of coal that must be

combusted to generate the desired level of electricity.

Because the emissions of Hg are different between

these two subcategories, we are proposing to establish

different Hg emission limits for the two coal-fired

subcategories. For all other HAP from these two

subcategories of coal-fired units, the data did not show

any difference in the level of the HAP emissions and,

therefore, we have determined that it is not reasonable

to establish separate emissions limits for the other

HAP. 76 FR 25036-67.

Based on this determination, we proposed to

establish two subcategories with separate Hg limits.

Comments on the proposed rule indicate that we

correctly identified the EGUs that should be included

in each subcategory, but the comments also demon-

strated that we made certain incorrect conclusions

that require us to revise the definitions of our coal-

fired EGU subcategories. The revised definitions

ensure that the EGUs we identified at proposal as

having different Hg emissions remain in one

subcategory.

As stated above, we believed at proposal that the

boiler size was the cause of the different Hg emissions

characteristics that led us to propose subcategorization,

but many commenters indicated that it was not the

boiler size but the fact that the EGUs burned a

nonagglomerating virgin coal having a calorific value

(moist, mineral matier-free basis) of less than 19,305

kJ/kg (8,300 Btu/Ib) (low rank virgin coal) that causes

529a

the disparity in Hg emissions. Several commenters

indicated that their EGUs were designed to burn and

burned low rank virgin coal but the units did not meet

the height-to-depth ratio that EPA proposed. For

example, the height-to-depth ratio of certain EGUs in

this subcategory is in fact 3.5, not 3.82. Further, there

are other EGUs in this subcategory that are

circulating fluidized bed (CFB) combustion units

which do not meet the height-to-depth ratio parame-

ters in the proposed rule, nor are they anything like

the pulverized coal (PC) EGUs we initially identified

as having the 3.82 height-to-depth ratio.

In addition to the comments concerning EGUs firing

this coal, we received comments from at least two

commenters indicating that the EPA should clarify in

which subcategory a unit belongs when it does not

burn low rank virgin coal but is designed to combust

low rank virgin coal and has a height-to-depth ratio of

greater than 3.82. Commenters also indicated that

CFB units that are burning coal-refuse*™ or other

nonagglomerating virgin coal having a calorific value

(moist, mineral matter-free basis) of 19,305 kJ/kg

(8,300 Btu/lb) or greater are “designed to burn” any

type of coal. Owners of CFB units that are not firing

low rank virgin coal asked which subcategory they

belong to based on their ability to burn any type of coal

(including low rank virgin coal) without modification.

These commenters also indicated that some coal

refuse that is combusted has a heating value less than

8,300 Btu/lb but is not “virgin coal.” It was unclear to

which subcategory they belonged since the proposed

511 Tt is our understanding that no unit combusts coal-refuse

from nonagglomerating virgin coal having a calorific value

(moist, mineral matter-free basis) of less than 19,305 kJ/kg (8,300

Btw/Ib).

530a

rule did not in fact require the unit to burn any specific

coal, instead only requiring the unit be “designed” to

burn lower Btu coal.

Based on the comments received, we reevaluated the

subcategory definitions because we were concerned that

the definitions we proposed would improperly

categorize a number of the EGUs in both subcatego-

ries. We concluded that we should not maintain the

proposed definition for “[uJnits designed for coal <

8,300 Btu/lb” and exclude the CFB units and PC EGUs

with a height-to-depth ratio less than 3.82 that

combusted low rank virgin coal.

We were equally concerned that the subcategory

definitions not be revised in a manner that would

move EGUs that we believed the data show could

comply with a more stringent standard into a

subcategory with a less stringent standard because,

aside from the type of EGUs we identified, all other

classes, types, and sizes of EGUs were represented

among the top performing 12 percent for Hg in the

>/=8,300 Btu/lb subcategory. We were particularly

concerned about the CFB units because other CFB

units are well represented among the best performing

EGUs for Hg in the >/=8,300 Btu/lb subcategory, but

the CFB units burning low rank virgin coal are not

achieving the same levels of Hg emissions control.

Including the best performing CFB units from the

other subcategory in the low rank virgin coal

subcategory would likely lead to a Hg standard as

stringent as the standard for EGUs in the >/=8,300

Btu/lb subcategory because the CFB units from the

other subcategory would be used to establish the floor.

We believe that result would be inconsistent with the

intent of the proposed rule. We were also concerned

about the information that some EGUs that fired low

53la

rank virgin coal had a height-to-depth ratio of 3.5, not

3.82, and that some EGUs that fired other ranks of

coal had a height-to-depth ratio greater than 3.82. For

these reasons, we did not revise the definition to

include CFB units and PC EGUs with a height-to-

depth ratio greater than 3.5.

After fully considering the available information,

including the comments received, we have concluded

that it is appropriate to continue to base the

subcategory definitions, at least in part, on whether

the EGUs were designed to burn and, in fact, did burn

low rank-virgin coal, but that it is not appropriate to

continue to use the height-to-depth ratio criteria

because that approach would potentially exclude

EGUs we identified as having different Hg emission

characteristics and include EGUs that did not have

different emissions characteristics. We recognize that

some commenters have taken the position that it is

unlawful to subcategorize based on factors such as fuel

type but nothing in the statute prohibits such an

approach and the case law supports this approach to

the extent courts have considered subcategorization

based on such factors. See Sierra Club v. Costle, 657 F

2d 298, 318-19 (D.C. Cir. 1981) (differing pollutant

content of input material can justify a different

standard based on subcategorization authority to

“distinguish among classes, types and sizes within

categories of new sources”). Furthermore, we believe

had Congress intended to prohibit the EPA from

subcategorizing based on an EGU being designed to

use and using a certain material input (e.g., fuel) it

would have clearly stated such intent in the CAA.

However, we believe the Agency could decline to

exercise its discretion to subcategorize even if the

potential result would be the prohibition of the use of

some materials if the circumstances warranted. We

532a

note that even if we did not subcategorize on the final

basis selected, the Hg emissions standard of 1.2E0

Ib/Tbtu for the “unit designed for coal >/=8,300 Btu/1b”

would remain the same.

We considered basing the subcategory solely on an

EGU being designed to burn and burning low rank

virgin coal. We decided not to do so because we were

concerned that such a definition would allow sources

to potentially meet the definition by combusting very

small amounts of low rank virgin coal. For example,

an EGU on the east coast (or any other region) that

was not designed to burn and did not routinely burn

low rank virgin coal could import one truck full of low

rank virgin coal and burn a very small quantity of it

periodically to meet the subcategory definition. To

avoid creating this potential loophole, we considered

other characteristics that would distinguish EGUs

combusting low rank virgin coal.

We determined that these EGUs are universally

constructed “at or near” a mine containing low rank

virgin coal because it is not cost-effective to transport

large quantities of such fuel long distances. Further-

more, we believe that this subcategory of EGUs are

almost always built at a mine and limited

transportation of the coal is only required as the mine

face moves over the course of time. Many such EGUs

construct dedicated rail lines, private roads, or

conveyor systems to transport the coal to the EGU as

the mine face moves. We obtained information from

data acquired to develop the CSAPR indicating that

the longest distance any EGU firing low rank virgin

coal transports that coal is 40 miles. We believe that

this distance is near the outer limits for the transport

of such coal, but, even for those EGUs, the EGUs were

constructed closer to a now idle mine or closer to the

533a

working face of a mine that has now expanded away

from the EGU site. For these reasons, we are including

a requirement that the unit be constructed and

operated at or near a mine containing the low rank

virgin coal it burns.

We are revising the coal-fired EGU subcategory

definitions as set out in 40 CFR 63.10042.

We believe the revised subcategory definitions are

reasonable for all the reasons set forth above. The

revised definitions maintain the EGUs we identified

as having different Hg emissions characteristics in one

subcategory and the definitions prevent other EGUs

that are not firing low rank virgin coal from being

required to comply only with the less stringent Hg

emission standard.

As discussed in response to comments, we do not

believe that additional subcategorization of other coal-

fred EGUs is reasonable or appropriate. All other

coal-fired EGUs that are not designed to burn and are

burning low rank virgin coal are represented among

the best performing sources for Hg, such that no

ent exists to support that the Hg emissions from

those EGUs are different. In any case, even if

emissions are somewhat different as some comment-

ers suggest, we would decline to exercise our discretion

because the data demonstrate that the best

performing EGUs designed to burn and burning all

other ranks of coal are able to achieve the MACT level

of control using currently available controls and other

HAP emission reduction mechanisms (e.Z., coal

washing) for the >/=8,300 Btu/lb subcategory.

A second issue related to subcategorization concerns

non-continental liquid oil-fired EGUs. At proposal, the

EPA did not have sufficient emissions data from non-

534a

continental liquid oil-fired EGUs upon which to base a

subcategory and took comment on the issue. The data

have since been provided in response to the ICR and

we received comments suggesting that a non-

continental subcategory is appropriate based on the

location of such units, the limited availability of

alternative fuel sources, and the fact that the

emissions characteristics of such units are distinct

from continental liquid oil-fired EGUs. The EPA has

evaluated the data and comments and we agree that a

subcategory is warranted based for the reasons

suggested by the commenters. Therefore, the Agency

is finalizing the liquid oil-fired EGU subcategories of

“continental” and “non-continental.”

Lastly, the EPA did not have sufficient information

on limited-use liquid oil-fired EGUs upon which to

base a subcategory at proposal because some sources

required to test under the ICR did not submit the data

until after proposal. We took comment on whether a

limited-use subcategory was warranted. Commenters

indicated that their units were a different class and

type of units because many of them were only called to

service to address reliability issues associated with, for

example, natural gas curtailments. The commenters

further indicated that their units are different because

of the generally infrequent use and the sporadic, and

at times frequent, start-up and shutdown periods (e.z.,

they are often only required to run for a couple of

hours). These factors would lead to differences in the

emissions characteristics for these units such that a

numeric standard based on base load units would not

likely be achievable during the very limited times that

these limited use oil-fired units operate. Based on

comments received and our own analysis, we are

finalizing a subcategory for limited-use liquid oil-fired

535a

EGUs as discussed further elsewhere in this

preamble.

C. Emission Limits

The proposed rule included numerical emission

limits for PM, Hg, HCl, HF, SO:2, total HAP metals,

and individual HAP metals, depending on the

subcategory and specific situation. These proposed

limits resulted from calculations of MACT floors using

information and data available to the Agency prior to

proposal, as required by CAA section 112. Based on

information and data received during the comment

period, we have made data and calculation corrections

where necessary and then re-ranked the best

performing units in the MACT floor pools. Based on

the new ranking, a limited number of the emission

limits in the final rule have changed from those

proposed.

In addition to adjustments to the emission limits

themselves, we are finalizing several] other changes to

the emission standards that will simplify and improve

compliance for sources without compromising the

toxics reductions achieved. One key change, as

discussed elsewhere in this notice, is that we have

changed the surrogate for non-mercury metallic HAP

from total particulate matter (PM) to filterable PM for

coal-fired and solid oil-derived EGUs. This change is

based on information provided in comments and our

own conclusion that measurement of filterable PM

provided assurance of equivalent HAP emissions

control. Most of the non-mercury metal HAP, for which

PM is a surrogate, are filterable PM and the one that

is not (Se) is well controlled by the limit on acid gases.

Using filterable PM as the surrogate will allow us to

use continuous PM monitoring systems, which

536a

measure filterable (but not total) PM, thereby

providing a more continuous measure of compliance.

For liquid oil-fired EGUs, based on comments

received and corrections made to the data submitted,

we have added a filterable PM limit in the final rule

as an alternative equivalent standard for the total

metal-HAP limit in the proposed rule. In addition, as

discussed elsewhere in this notice, we have added

measurement of the moisture content of the oil (with a

1 percent limit) as an alternate compliance assurance

measure for liquid oil-fired EGUs for determining

compliance with the HCl and HF limits. Direct

measurement of HCl] and HF remains a compliance

demonstration method in the final rule. Finally, as

discussed in section VI.D of this notice, the final work

practice standard consisting of burner tune-ups, much

like those required for organic HAP control, for those

limited-use liquid oil-fired EGUs whose annual

capacity factor is less than 8 percent.

D. Work Practice Standards for Organic HAP

Emissions

As noted earlier in section V.D., the final rule

includes a work practice standard for organic HAP,

including dioxins and furans, applicable to all EGUs.

As noted in section V.D. above, the majority of

emissions of these pollutants are below the detection

levels of EPA test methods and, therefore, are

impractical to measure. The work practice standard,

described below, is a practical approach to ensuring

that equipment is maintained and run so as to

minimize emissions of dioxins and furans, and we

expect it to be more effective than establishing a

numeric standard that cannot reliably be measured or

monitored. The work practice also applies to the

537a

limited-use liquid oil-fired subcategory included in the

final rule.

The work practice involves maintaining and

inspecting the burners and associated combustion

controls (as applicable), tuning the specific burner

type to optimize combustion, obtaining and recording

CO and NOx values before and after the burner

adjustments, keeping records of activity and

measurements, and submitting a report for each tune-

up conducted. In Table 3 of the final regulation, we

have clarified that this refers to performance tune-

ups, not tests, and have addressed the frequency

requirement as discussed in response to comments

about the appropriateness of the 18-month frequency.

The provisions of 40 CFR 63.10006(h\i) refer to 40

CFR 63.10021(e) for the specific steps required to be

part of the periodic tune-up. We have also adjusted the

language in the final rule to recognize the value of

automated boiler optimization tools such as neural

network systems.

Under the final rule, the tune-up must be conducted

at each planned major outage and in no event less

frequently than every 36 calendar months, with an

exception that if the unit employs a neural-network

system for combustion optimization during hours of

normal unit operation, the required frequency is a

minimum of once every 4 years (48 calendar months).

Initial compliance with the work practice standard of

maintaining burners must occur within 180 days of

the compliance date of the rule. The initial compliance

demonstration for the work practice standard of

conducting a tune-up may occur prior to the

compliance date of the rule, but must occur no later

than 42 months (36 months plus 180 days) from the

compliance date of the rule or, in the case of units

538a

employing neural network combustion controls, 54

months (48 months plus 180 days). If the tune-up

occurs prior to the compliance date of the rule, you

must maintain adequate records to show that the

tune-up met the requirements of this standard.

We have made a number of specific changes to

address what to do for repairs that may require longer

term corrective actions, additional methods for

evaluating combustion effectiveness, and clarification

on procedures for recording CO and NOx information.

There were specific comments that opposed the

reference to manufacturer specifications, if available.

We retained this language in the final rule, but note

that these specifications apply only to the extent

applicable. Specifically, if manufacturer specifications

only address equipment or conditions that are no

longer present given current boiler operations, then

those specifications are not applicable and other

combustion engineering best practice procedures for

that burner type would apply. We have also clarified

that portable emission monitoring equipment may be

used to collect the required emissions optimization

data regarding pre- and post-tune-up CO and NOx

emission levels.

E. Requirements During Startup, Shutdown, and

Malfunction

We proposed numerical emission standards that

would apply at all times, including during periods of

startup, shutdown, and malfunction. Although at

proposal we stated that we were not setting a different

standard for startup and shutdown, we did propose

different standards for startup and shutdown by our

inclusion of the default values described below, which

applied only during startup and shutdown. Specifi-

cally, we stated:

539a

To appropriately determine emissions during

startup and shutdown and account for those emissions

in assessing compliance with the proposed emission

standards, we propose use of a default diluent value of

10.0 percent O[2] or the corresponding fuel specific

CO[2] concentration for calculating emissions in units

of Ib/MMBtu or lb/TBtu during startup or shutdown

periods. For calculating emissions in units of Jb/MWh

or lb/GWh, we propose source owners use an electrical

production rate of 5 percent of rated capacity during

periods of startup or shutdown. We recognize that

there are other approaches for determining emissions

during periods of startup and shutdown, and we

request comment on those approaches. We “urther

solicit comment on the proposed approach described

above and whether the values we are proposing are

appropriate.

We proposed application of the respective emission

limits during periods of startup and shutdown and use

of default values to calculate the emission limits. The

standards that apply at all times other than startup

and shutdown are production-based limits, which is

why we proposed the default values. The default

values were meant to account for the fact that during

startup and shutdown events, production (in this case

the generation of electricity) is by definition nonexist-

ent. Thus, in effect, we proposed a separate standard

to apply during startup and shutdown.

We received a variety of comments on the proposed

standards that would apply during startup and

shutdown. Many commenters pointed to the lack of

data in the record concerning emissions that occur

during periods of startup and shutdown. They further

asserted that emissions during these periods can be

highly variable in light of the sequence of events that

540a

occurs during the startup and shutdown of an EGU.

Although a number of commenters supported the use

of the diluent factor approach, including the default 5

percent of rated capacity, during startup/shutdown

periods, other commenters questioned the feasibility

of collecting additional data during such periods and

had concerns regarding the reliability of measure-

ments obtained from EGUs during such periods.

In reaponse to the Agency's ICR to the utility

industry, seven owners or operators indicated that

they provided startup and shutdown data for their

EGUs. These data were submitted in response to the

requirement in the ICR to provide all available data

from the 5 years prior to the date the ICR was issued.

Of these data, there were almost no HAP data for

startup and shutdown periods and almost all of the

data failed to meet our data quality requirements.*”

312 In response to the ICR, we also received SO, CEMS data

and the Agency had additional SO, CEMS data available through

the CAMD ARP database. We are not able to identify specific

periods of start-up and shutdown in either the ICR CEMS data

or the CAMD ARP data, and the ICR respondents do not indicate

that the ICR data includes periods of startup and shutdown. We

set the emission limits for SO,and HC) using the data provided

to the EPA from the 2010 ICR, not the CAMD data, since those

data were taken concurrently under the same specified operating

conditions using the same fuel. We used the SO,CEMS data that

was submitted in response to the ICR by converting it to single

point data to correlate to the data from units that did not provide

CEMS data from the relevant testing period. The emissions limits

for the NESHAP incorporated variability by applying the 99

percent UPL to the average emissions developed from the stack

test data and SO, CEMS data that was converted to stack test

data. Thus, we did not have data on which to establish an SO,

standard during periods of startup and shutdown and the

numeric standards do not apply to those periods in the final rule.

In contrast, the NSPS for SO, is applicable during periods of

startup and shutdown since the long term CAMD ARP CEMS

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Thus, we do not have sufficient data on emissions that

occur during startup and shutdown on which to set

emission standards. We are therefore establishing

work practice standards rather than numeric

emissions standards for periods of startup and

shutdown in the final rule. Before we describe those

work practices, we first address what constitutes

startup and shutdown.

Several commenters had an expansive view of what

constitutes startup and shutdown. We disagree with

these commenters that asserted that periods of “load

swings” should be considered “startup” or “shutdown,”

as they are generally routine, normal operations with

production (i.e., generation of electricity) taking place.

We maintain that the standards as promulgated

account for any variability in emissions that may occur

during these periods over a 30-day averaging period,

and commenters have provided no data that cause us

to doubt that determination. We have included

definitions of startup and shutdown in the final rule

that are consistent with the definitions in the proposed

rule. At proposal, we defined startup as the setting in

operation of an affected source or portion of an affected

source for any purpose, and shutdown as the cessation

of operation of an affected source or portion of an

affected source for any purpose.

Commenters sought more clarity regarding the

meaning of these terms as applied to EGUs, so we are

data were used to determine the average performance of the best

demonstrated technology. Those long term data were assumed to

incorporate process variability including that associated with fuel

and process/operational changes and periods of startup and

shutdown.

542a

revising the definitions in the final rule as set out in

40 CFR 63.10042.

These interpretations are tailored for EGUs and are

consistent with the definitions of “startup” and “shut-

down” contained in the 40 CFR part 63, subpart A

General Provisions. We believe these revised defini-

tions address the comments and are rational based on

the fact that EGUs function to provide electricity

primarily for sale to the grid but also at times for use

on-site; therefore, EGUs should be considered to be

operating normally at all times electricity is gener-

ated. We further believe these revised definitions

address what some commenters describe as “warm”

and “hot” startups as long as the EGU is shutdown

(i.e., no fuel fired and no electricity generation) prior

to the “warm” or “hot” startup period.

As for the work practices, in this final rule, the EPA

is requiring sources to operate using either natural gas

or distillate oil for ignition during startup. The EPA

also is requiring sources to vent emissions to the main

stack(s) and operate all control devices necessary to

meet the normal operating standards under this final

rule (with the exception of dry scrubbers and SCRs)

when coal, solid oil-derived fuel, or residual oil is fired

in the boiler during startup or shutdown. It is the

responsibility of the operators of EGUs to start their

dry scrubber and SCR systems appropriately to

comply with relevant standards applicable during

normal operation.

The EPA carefully considered fuels and potential

operational constraints of air pollution control devices

(APCDs) when designing its work practices for periods

of startup and shutdown. The EPA notes that there is

no technical barrier to burning natural gas or

distillate oil for longer portions of startup or shutdown

543a

periods, if needed, at a boiler, and the HAP emission

reduction benefits warrant additional utilization of

such fuels until the temperature and stack emissions

pressure is sufficient to engage the APCDs. The EPA

is aware that SCR systems with ammonia injection

need to be operated within a prescribed and relatively

narrow temperature window to provide NOx reduc-

tions. Further, the EPA is aware that dry scrubbers

also need to be operated close to flue gas saturation

temperature. Because these devices have specific

temperature requirements for proper operation, the

EPA notes in its work practices that it is the

responsibility of the operators of EGUs to start their

SCR and dry scrubber systems appropriately to

comply with relevant standards applicable during

normat operation.

Some commenters have asserted that firing of fuel

oil during periods of startup and shutdown constrains

operation of PM controls (ESPs and baghouses)

because under cooler conditions, acids and tars can

condense on surfaces in these controls. The comment-

ers assert that such condensation can cause

detrimental impacts on hardware and operation of

these controls, and could cause safety concerns. The

EPA understands that concerns with acidic and tarry

deposits are related to firing of heavy (residual) oil and

hot distillate oil. Accordingly, with residual fuel oil

firing, site-specific flue gas temperature and oxygen

(O2) concentration thresholds may be applicable to

minimize condensation of acids and tars and thereby

minimize any potential for detrimental impacts on

hardware and any safety concerns. However, the EPA

fotes that its work practice requirements provide

flexibility to the operator to take appropriate site-

specific remedial measures, if needed. The EPA

further notes that boilers have several options to

544a

prevent detrimental impacts by: (1) Using startup

fuels, natural gas or distillate oil, until appropriate

flue gas conditions have been reached and then fire

residual oil; (2) pre-coating the PM control surfaces*®

with an alkaline powder (e.g., limestone); (3) installing

chemically resistant bags*™ in baghouses if applicable;

and (4) using low-sulfur oils. The EPA also notes that

currently the industry has many operational residual

oil-fired boilers that are started up with either natural

gas or distillate fuel oil. At these boilers, the transition

from the startup fuel, distillate oil or natural gas, to

residual oil is already being practiced without unac-

ceptable impacts on APCDs including PM controls,

which are operated to meet applicable opacity limits.

Based on this experience and the options described

above, those boilers where residual oil is used for

either a part of the startup period, or as the main fuel,

will also be able to operate their PM controls to meet

the work practice requirements of the rule. Note that

coal firing is done at high enough temperatures that

concerns with condensation are not relevant. None of

the commenters have specifically commented on this

aspect of coal firing.

The EPA is not aware of any operational constraints

applicable to operation of wet scrubbers during

startup that could cause detrimental impacts on wet

scrubber hardware and safety concerns and none of

the commenters have commented on this aspect of wet

scrubber operation.

313 Coal Power, May 1, 2007: Attp:/ /www.coal powermag.com /

plant_design / Coal-Plant-O-and-M-River-Locks-and-Barges-Are-

an-Aging-Workforce-Too 36.html.

344 Neundorfer: Lesson #r, p.4-7, Table 4-1: Attp://www.

neundorfer.com / FileUploads/CMSFiles/Fabric%20Filter%#20M

aterial [0].pdf.

545a

Finally, the EPA notes that dry sorbent injection

(DSI) can be applied across a very broad temperature

range and will be engaged when residual oil or coal is

fired in a boiler to comply with HC] requirements.

Again, no comments have been received on this aspect

of DSI operation.

This final rule requires work practice standards for

emissions during startup and shutdown, and the rule

requires sources to measure and report their

emissions at al] times, including periods of startup and

shutdown, when continuous monitoring is used to

demonstrate compliance. Data collected under this

final rule will provide the EPA with information to

more fully analyze this issue and address it during the

8-year review established under CAA section 112.

We now address malfunctions. In contrast to the

exclusion of startup and shutdown period emissions

from 30-boiler operating day rolling average emis-

sions, the final rule requires inclusion of emissions

during periods of source or APCD malfunction. We

have concluded that when combined with the availa-

bility of an affirmative defense as described below, this

is an appropriate and practical approach.

As mentioned earlier, periods of startup, normal

operations, and shutdown are all predictable and

routine aspects of a source’s operations. However, by

contrast, malfunction is defined as a “sudden,

infrequent, and not reasonably preventable failure of

air pollution control and monitoring equipment,

process equipment or a process to operate in a normal

or usual manner * * *” (40 CFR 63.2). The EPA has

determined that CAA section 112 does not require that

emissions that occur during periods of malfunction be

factored into development of CAA section 112

standards. Under CAA section 112, emissions standards

546a

for new sources must be no less stringent than the

level “achieved” by the best controlled similar source

and for existing sources generally must be no less

stringent than the average emission limitation

“achieved” by the best performing 12 percent of

sources in the category. There is nothing in CAA

section 112 that directs the Agency to consider

malfunctions in determining the level “achieved” by

the best performing or best controlled sources when

setting emission standards. Moreover, while the EPA

accounts for variability in setting emissions standards

consistent with the CAA section 112 case law, nothing

in that case law requires the Agency to consider

malfunctions as part of that analysis. Clean Air Act

section 112 uses the concept of “best controlled” and

“best performing” unit in defining the level of

stringency that CAA section 112 performance

standards must meet. Applying the concept of “best

controlled” or “best performing” to a unit that is

malfunctioning presents significant difficulties, as

malfunctions are sudden and unexpected events.

Further, accounting for malfunctions would be

difficult, if not impossible, given the myriad different

types of malfunctions that can occur across all sources

in the category and given the difficulties associated

with predicting or accounting for the frequency,

degree, and duration of various malfunctions that

might occur. As such, the performance of units that are

malfunctioning is not “reasonably” foreseeable. See,

e.g., Sierra Club v. EPA, 167 F. 3d 658, 662 (D.C. Cir.

1999) (The EPA typically has wide latitude in

determining the extent of data-gathering necessary to

solve a problem. We generally defer to an agency's

decision to proceed on the basis of imperfect scientific

information, rather than to “invest the resources to

conduct the perfect study.”). See also, Weyerhaeuser v.

547a

Costle, 590 F.2d 1011, 1058 (D.C. Cir. 1978) (“In the

nature of things, no general limit, individual permit,

or even any upset provision can anticipate all upset

situations. After a certain point, the transgression of

regulatory limits caused by uncontrollable acts of

third parties, such as strikes, sabotage, operator

intoxication or insanity, and a variety of other

eventualities, must be a matter for the administrative

exercise of case-by-case enforcement discretion, not for

specification in advance by regulation.”). In addition,

the goal of a best controlled or best performing source

is to operate in such a way as to avoid malfunctions of

the source and accounting for malfunctions could lead

to standards that are significantly !ess stringent than

levels that are achieved by a well-performing non-

malfunctioning source. The EPA’s approach to

malfunctions is consistent with CAA section 112, and

we believe it is a reasonable interpretation of the

statute. This approach to malfunctions has been used

consistently in CAA section 112 and CAA section 129

rulemaking actions since the D.C. Circuit’s decision in

Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008)

vacated the SSM exemption contained in CFR

63.6(f)(1) and 40 CFR 63.6(h)(1). (See, e.g., National

Emission Standards for Hazardous Air Pollutants

From the Portland Cement Manufacturing Industry

and Standards of Performance for Portland Cement

Plants, 75 FR 54970 (September 9, 2010); Standards

of Performance for New Stationary Sources and

Emission Guidelines for Existing Sources: Sewage

Sludge Incineration Units; Final Rule, 76 FR 15372

(March 21, 2011).

In the event that a source fails to comply with the

applicable CAA section 112(d) standards as a result of

a malfunction event, the EPA would determine an

appropriate response based on, among other things,

548a

the good faith efforts of the source to minimize emis-

sions during malfunction periods, including preventa-

tive and corrective actions, as well as root cause

analyses to ascertain and rectify excess emissions. The

EPA would also consider whether the source’s failure

to comply with the CAA section 112(d) standard was,

in fact, “sudden, infrequent, not reasonably preventa-

ble” and was not instead “caused in part by poor

maintenance or careless operation.” 40 CFR 63.2 (def-

inition of malfunction).

Finally, the EPA recognizes that even equipment

that is properly designed and maintained can

sometimes fail and that such failure can sometimes

cause an exceedance of the relevant emission standard.

(See, e.g., State Implementation Plans: Policy

Regarding Excessive Emissions During Malfunctions,

Startup, and Shutdown (Sept. 20, 1999); Policy on

Excess Emissions During Startup, Shutdown,

Maintenance, and Malfunctions (Feb. 15, 1983)). The

EPA is therefore adding to the final rule an affirmative

defense to civil penalties for exceedances of emission

limits that are caused by malfunctions. See 40 CFR

63.10042 (defining “affirmative defense” to mean, in

the context of an enforcement proceeding, a response

or defense put forward by a defendant, regarding

which the defendant has the burden of proof, and the

merits of which are independently and objectively

evaluated in a judicial or administrative proceeding).

We also have added other regulatory provisions to

specify the elements that are necessary to establish

this affirmative defense; the source must prove by a

preponderance of the evidence that it has met all of the

elements set forth in 63.10001. (See 40 CFR 22.24).

The criteria ensure that the affirmative defense is

available only where the event that causes an

exceedance of the emission limit meets the narrow

549a

definition of malfunction in 40 CFR 63.2 (i.e., sudden,

infrequent, not reasonable preventable and not caused

by poor maintenance and or careless operation). For

example, to assert the affirmative defense success-

fully, the source must prove by a preponderance of the

evidence that excess emissions “[w]jere caused by a

sudden, infrequent, and unavoidable failure of air

pollution control and monitoring equipment, process

equipment, or a process to operate in a normal or usual

manner * * *” The criteria also are designed to ensure

that steps are taken to correct the malfunction, to

minimize emissions in accordance with section

63.10001 and to prevent future malfunctions. For

example, the source must prove by a preponderance of

the evidence that “[rjepairs were made as

expeditiously as possible when the applicable emission

limitations were being exceeded * * *” and that “[a]Jll

possible steps were taken to minimize the impact of

the excess emissions on ambient air quality, the

environment and human health * * *” In any judicial

or administrative proceeding, the Administrator may

challenge the assertion of the affirmative defense and,

if the respondent has not met its burden of proving all

of the requirements in the affirmative defense,

appropriate penalties may be assessed in accordance

with CAA section 113 (See also 40 CFR 22.27).

The EPA is including an affirmative defense in the

final rule as we have in other recent MACT rules so as

to balance the tension, inherent in many types of air

regulation, to ensure adequate compliance while

simultaneously recognizing that despite the most

diligent of efforts, emission limits may be exceeded

under circumstances beyond the control of the source.

The EPA must establish emission standards that

“limit the quantity, rate, or concentration of emissions

of air pollutants on a continuous basis.” 42 U.S.C.

550a

7602(k) (defining “emission limitation and emission

standard”). See generally Sierra Club v. EPA, 551 F.3d

1019, 1021 (D.C. Cir. 2008). Thus, the EPA is required

to ensure that section 112 emissions limitations are

continuous. The affirmative defense for malfunction

events meets this requirement by ensuring that even

where there is a malfunction, the emission limitation

is still enforceable through injunctive relief. While

“continuous” limitations, on the one hand, are

required, there is also case law indicating that in some

situations it is appropriate for the EPA to account for

the practical realities of technology. For example, in

Essex Chemical v. Ruckelshaus, 486 F.2d 427, 433

(D.C. Cir. 1973), the D.C. Circuit acknowledged that

in setting standards under CAA section 111 “variant

provisions” such as provisions allowing for upsets

during startup, shutdown and equipment malfunction

“appear necessary to preserve the reasonableness of

the standards as a whole and that the record does not

support the never to be exceeded’ standard currently

in force.” See also, Portland Cement Association v.

Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973). Though

intervening case law such as Sierra Club v. EPA and

the CAA 1977 amendments calls into question the

relevance of these cases today, they support the EPA’s

view that a system that incorporates some level of

flexibility is reasonable. The affirmative defense

simply provides for a defense to civil penalties for

excess emissions that are proven to be beyond the

control of the source. By incorporating an affirmative

defense, the EPA has formalized its approach to upset

events. In a Clean Water Act setting, the Ninth Circuit

required this type of formalized approach when

regulating “upsets beyond the control of the permit

holder.” Marathon Oil Co. v. EPA, 564 F.2d 1253,

1272-73 (9th Cir. 1977). But see, Weyerhaeuser Co. v.

55la

Costle, 590 F.2d 1011, 1057-58 (D.C. Cir. 1978)

(holding that an informal approach is adequate). The

affirmative defense provisions give the EPA the

flexibility to ensure both that its emission limitations

are “continuous” as required by 42 U.S.C. 7602(k), and

account for unplanned upsets and thus support the

reasonableness of the standard as a whole.

F. Testing and Initial Compliance

We have carefully evaluated the wide-ranging

comments on testing, continuous monitoring, and

other provisions regarding initial compliance demon-

strations, and we have made adjustments intended to

help streamline implementation while still ensuring

adequate demonstration of compliance with the

emission limits and other standards established under

this final rule. The significant changes include:

1. No Fuel Analysis Requirements

Apart from an alternative that allows you to analyze

fuel moisture for liquid oil-fired EGUs rather than

measuring HC! and HF, the final rule does not include

any of the fuel analysis requirements that were in the

proposed rule, either as part of initial compliance

demonstrations or ongoing compliance demonstra-

tions. In reviewing the results of the fuel analyses and

the expected range of results that would be received

from laboratories conducting the proposed analyses,

we determined that too many results would be

returned as “below detection level” and, thus, provide

little information to assist with rule implementation

and compliance oversight. Given the costs and efforts

involved, we determined that the proposed fuel

analysis requirements would not be an effective

compliance monitoring tool for this final rule.

552a

2. Clarification of Testing

We have clarified that where options for emission

limits apply (such as filterable PM versus non-

mercury HAP metals, or SO2 versus HCl), you need

only perform stack testing to demonstrate compliance

with the selected emission limit. For example, if you

elect to meet the individual non- mercury HAP metals

standards, you must conduct the Method 29 test for

the metals, and you do not have to conduct a Method

5 test for PM.

3. Low Emitting EGU Qualification

We have significantly modified the proposed

requirements to qualify as a LEE unit for a pollutant

other than Hg based on an initial performance test.

Under the proposed rule, the operating limit monitor-

ing provided additiona) assurance of compliance for a

source qualified for non-mercury LEE status based on

an initial compliance demonstration. Under the final

rule, to qualify for LEE status for pollutants other

than Hg, a unit must meet the LEE criteria for a series

of performance tests over a 3-year period to

demonstrate that the unit continues to perform well

below the standard for which the source has obtained

LEE status.

G. Continuous Compliance

The most significant changes to the testing and

monitoring requirements involve the procedures for

demonstrating continuous compliance. The proposed

rule contained different options involving CEMS,

periodic stack tests, fuel analysis, and various PM and

control device operating limits. The final rule greatly

simplifies the requirements and provides two basic

approaches for most situations: use of continuous

553a

monitoring (either CEMS or PM continuous paramet-

ric monitoring system, CPMS) or periodic quarterly

testing. The final rule does not contain the proposed

fuel analysis requirements. For periodic testing, the

proposed rule required testing every month or every 2

months. For those EGU owners or operators who

choose to use emissions testing to demonstrate

compliance, the final rule requires quarterly filterable

PM or non-mercury metals HAP, whether individual

or total metals, testing for coal- and liquid oil-fired

units. The rule requires quarterly HC] testing for coal-

fired units and quarterly HC) and HF testing, along

with site-specific monitoring for liquid oil-fired units

to ensure compliance with the HCl and HF standards.

The final rule also has a separate compliance

demonstration for those liquid oil-fired EGUs that

have an annual capacity factor of less than 8 percent

(emission limits do not apply, just the tune-up work

practice standard). For those EGU owners or

operators who choose to use emissions testing to

demonstrate compliance, the final rule requires

quarterly filterable PM or non-mercury metals HAP,

whether individual or total metals, testing for coal-

and liquid oil- fired units; quarterly HC] testing for

coal-fired units and quarterly HCl and HF testing,

along with site-specific parameter monitoring for

liquid oil-fired units to ensure compliance with the

HCl and HF standards.

The continuous monitoring options remain gener-

ally intact from the proposed rule, with relatively

minor clarifications concerning calculation of 30-boiler

operating day averages and QA requirements.

The final rule eliminates all operating limits for PM

except for the use of a PM CPMS. For the PM CPMS,

the final rule clarifies procedures for setting this

554a

operating limit and how it is distinct from the PM

emission limit. The PM CPMS will not be correlated

as a PM CEMS under PS 11 and will produce data in

terms of a signal you define. That signal could be

milliamps, stack concentration, or other output signal

instead of PM emissions in units of the standard. The

operating limit will be set using the highest hourly

average obtained from the PM CPMS during the

performance test. Compliance with the limit is based

on a 30-boiler operating day rolling average basis.

However, the final rule also does provide for the use of

a PM CEMS to determine compliance with the

filterable PM emission limit if the source elects to use

this approach. The EPA believes that some sources

may be interested in adopting this direct approach,

and so has included that option in the final rule. If this

approach is selected, the PM CEMS is used as the

direct method of compliance and no additional testing

is required other than tests that are required as part

of the QA requirements in PS 11 and Procedure 2. To

use this option, the source must elect to meet the

filterable PM standard, and not one of the HAP metals

standards.

Apart from the operating limit for site-specific

monitoring associated with liquid oil-fired EGUs, we

removed the other operating limits for control devices

based on a review of the comments, after considering

other programs in place to ensure proper operations of

controls at EGUs. Those other programs include

compliance assurance monitoring under part 64, part

70, and New Source Review permit conditions, and

other SIP and NSPS requirements for operating and

maintaining equipment in accordance with good air

pollution control practices. Those requirements, in

combination with the CEMS, PM CPMS, and frequent

periodic testing provisions under the final rule, will

555a

enhance the monitoring of continuous compliance with

the requirements of this rule.

Because the EPA is concerned that there will be

little or no monitoring in these underlying applicable

requirements for acid gases at liquid oil-fired EGUs,

the final rule requires a site-specific monitoring plan

for those units in this subcategory that demonstrate

compliance with the HCl and HF standards through

quarterly performance tests. With the exception for

limited-use liquid oil-fired EGUs and other monitoring

options available (such as fuel moisture monitoring or

HCVHF CEMS), the EPA believes this provision will

apply to few units. The owner or operator will submit

the site-specific plan to identify appropriate

parameters that ensure that the operations of the unit

critical to meeting the HCI/HF emission limits remain

consistent with conditions during performance

testing. This will be approved similarly to an alterna-

tive monitoring request. The plan should include the

parameters, monitoring approach, QA/QC elements,

and data reduction (including averaging period)

elements. Like the PM CPMS operating limit, the

operating limit for acid gas control devices on liquid

oil-fired EGUs will be set using the highest hourly

average obtained during the HC! and HF performance

teats. Compliance with the limit is based on a 30-boiler

operating day rolling average basis.

Finally, we have changed the continuous compliance

requirements for the performance tune-up work

practice standard since the proposal. Our intent was

that this work practice standard could be performed in

conjunction with routine maintenance operations at a

facility and be a logical extension of routine best

practices for boiler inspection and optimization. Based

on the comments received, we have reduced the

556a

required frequency for this inspection to every 3 years

and provided incentives for neural network combus-

tion management and optimization practices by

providing a longer interval of 4 years between

inspections when such systems are in use at a given

EGU.

H. Emissions Averaging

We are finalizing that owners and operators of

existing affected sources may demonstrate compliance

by emissions averaging for existing EGUs that are

located at the same facility that are within a single

subcategory and that rely on emissions testing as the

compliance demonstration method. In response to our

request for comments on the suitability of emissions

averaging and need for a discount factor, we received

a range of suggestions, including requests for

clarification regarding eligibility, points for and

against the need for a discount factor, and suggestions

to ease implementation.

As we noted at proposal, part of the EPA’s general

policy of encouraging the use of flexible compliance

approaches where they can be properly monitored and

enforced is to include emissions averaging. Emissions

averaging can provide sources the flexibility to comply

in the least costly manner while still maintaining a

regulation that is workable and _ enforceable.

Emissions averaging would not be applicable to new

affected sources and could only be used between EGUs

in the same subcategory at a particular facility. Also,

owners or operators of existing sources subject to the

EGU NSPS (40 CFR part 60, subparts D and Da)

would be required to continue to meet the PM emission

standard of that NSPS regardless of whether or not

they are using emissions averaging (i.e, an EGU

subject to 40 CFR part 60, subpart D or Da must meet

557a

its applicable NSPS filterable PM emission limit even

if it is included in a 40 CFR part 63, subpart UUUUU,

emissions averaging group for filterable PM).

Emissions averaging allows owners and operators of

a facility that includes existing EGUs within a

subcategory to demonstrate that the source complies

with the proposed emission limits by averaging the

emissions from an individual affected EGU that is

emitting above the proposed emission limits with

other affected EGUs at the same facility that are

emitting below the proposed emission limits and that

are within the same subcategory. Although some

commenters note that the MACT limits are low, based

on the data available to the Agency, we believe that

dozens of existing EGUs are achieving all of the limits

and, thus, emissions averaging is a possible approach.

The fina) rule includes an emissions averaging

compliance alternative because emissions averaging®*®

represents an equivalent, more flexible, and less costly

alternative to controlling certain emission points to

MACT levels. We have concluded that averaging in the

proposed rule could be implemented and that it would

not lessen the stringency of the MACT floor limits and

would provide flexibility in compliance, cost and

energy savings to owners and operators. We also

recognize that we must ensure that any emissions

averaging option can be implemented and enforced,

will be clear to sources, and most importantly, will be

no less stringent than unit-by-unit implementation of

the MACT floor limits.

In the final rule, the EPA is providing that sources

may average emissions from existing EGUs at the

318 As long as required emission rates are designed to account

for factors such as changes in averaging times.

558a

same facility and within the same subcategory.

Further, for Hg emissions only from existing EGUs

within the same subcategory, such EGUs in an

emissions averaging plan may use an alternate

compliance approach consisting of a 90-boiler

operating day rolling average emission limit of 1.0

Ib/TBtu or 1.1E-2 lb/GWh.

In the memo entitled “The Impact of Emission

Averaging Time on the Stringency of an Emission

Standard” in the docket, we have illustrated why a

longer-term average results in a lower limit. In

essence, longer-term averages allow particularly high

(or low) measurements to be averaged with many more

measurements closer to the mean. This results in the

highest averages from a longer-term averaging period

(e.g., 90 days) being lower than the highest averages

in a shorter term averaging period (e.g., 30 days).

We have illustrated this concept by taking Hg

CEMS data and calculating rolling 30-day averages

and rolling 90-day averages. The 30-day averages

have greater variability and, thus, higher peaks and

valleys. The 90-day average has less variability;

therefore, the same unit is able to meet a tighter 90-

day limit.

The EPA is providing this alternate 90-day rolling

average compliance approach for Hg only. A 90-day

rolling average is appropriate for Hg, and only for Hg,

because the health and environmental impacts

associated with Hg are related to environmental

loading rather than shorter term inhalation or other

acute exposure, as is the case with HC) and PM. We

believe that this alternative compliance approach will

provide at least the same level of environmental

protection while allowing companies greater flexibility

to use emissions averaging. For example, such an

959a

approach would allow for the averaging of an

infrequently operated unit that is operating slightly

above the standard with a more frequently operated

unit that is operating below the standard in the

instances when the more frequently operated unit is

in a multi-day or multi-week maintenance outage.

The EPA has concluded that it is permissible to

establish within a NESHAP a unified compliance reg-

imen that permits averaging within the same facility

across individual existing EGUs subject to the same

standards under certain conditions. As mentioned ear-

lier, individual EGUs within an emissions averaging

group would be allowed to have emissions greater

than, less than, or equivalent with the emissions limit

for their subcategory, provided that the average emis-

sions comprised from individual EGU emissions do not

exceed the emissions limit for their subcategory.

Averaging across affected units is permitted only if it

can be demonstrated that the total quantity of any

particular HAP that may be emitted by that portion of

a contiguous major source that is subject to the same

standards in the NESHAP will not be greater under

the averaging mechanism than it could be if each indi-

vidual affected EGU in the subcategory complied

separately with the applicable standard. Under this

test, the practical outcome of averaging is equivalent

to compliance with the MACT floor limits by each dis-

crete EGU, and the statutory requirement that the

MACT standard reflect the maximum achievable

emissions reductions is, therefore, fully effectuated.

As noted in the proposal preamble, in past

rulemakings, the EPA has generally imposed certain

limits on the scope and nature of emissions averaging

programs. These limits include: (1) No averaging

between different types of pollutants; (2) No averaging

560a

between sources that are not part of the same affected

source; (3) No averaging between individual sources

within a single major source if the individual sources

are not subject to the same NESHAP; and (4) No

averaging between existing sources and new sources.

The final rule fully satisfies each of these criteria.

First, emissions averaging would only be permitted

between individual existing sources at a single

stationary source (i.e., the facility), and would only be

permitted between individual sources in the same

subcategory in the final EGU NESHAP. Further,

emissions averaging would not be permitted between

two or more different affected sources. Finally, new

affected sources could not use emissions averaging.

Accordingly, we have concluded that the averaging of

emissions across affected units in the same existing

source subcategory is consistent with the CAA. In

addition, the final rule requires each facility that

intends to utilize emissions averaging to develop an

emissions averaging plan, which provides additional

assurance that the necessary criteria will be followed.

In this emissions averaging plan, the facility must

include the identification of: (1) All units in the

averaging group; (2) the control technology installed;

(3) the process parameter that will be monitored; (4)

the specific control technology or pollution prevention

measure to be used; (5) the test plan for the

measurement of the HAP being averaged; and (6) the

operating parameters to be monitored for each control

device. A state, local, or tribal regulatory agency that

is delegated authority for this rule could require the

emissions averaging plan to be submitted or even

approved before emissions averaging could be used.

Upon receipt, the regulatory authority would not be

able to approve an emissions averaging plan differing

from the eligibility criteria contained in the rule.

561la

The final rule excludes new affected sources from

the emissions averaging provision. The EPA does not

believe the statute authorizes emissions averaging for

new affected sources. One reason we allow emissions

averaging is to give existing sources flexibility to

achieve compliance at diverse points with varying

degrees of add-on control already in place in the most

cost-effective and technically reasonable fashion.

With the monitoring and compliance provisions that

are being finalized, there is additional assurance that

the environmental benefit will be realized. Further,

the emissions averaging provision would not apply to

individual EGUs if the EGU shares a common stack

with units in other subcategories, because in that

circumstance it is not possible to distinguish the

emissions from each individual unit.**®

The rule allows EGUs that rely on CEMS for

compliance demonstrations to be able to participate in

emissions averaging and the emissions limits are not

subject to a discount. The EPA believes that the data

certainty provided by units that use CEMS would be

ideal for emissions averaging and the flexibility and

cost-effectiveness it offers. Given the homogeneity of

fuels within the rules subcategories, along with other

emissions averaging criteria, the Agency believes use

of a discount factor to be unwarranted for this rule.

The emissions averaging provisions in this final rule

are based in part on the emissions averaging

provisions in the Hazardous Organic NESHAP (HON).

The legal basis and rationale for the HON emissions

6 The EPA has reviewed monitoring data submitted to the

Agency under the Title [TV Acid Rain Program. Based on that

review, the EPA is unaware of any coal- and oil-fired units that

share a common stack.

562a

averaging provisions were provided in the preamble to

the final HON.*"’ We do not believe that we have the

authority to provide for emissions averaging among

EGUs in different subcategories or among EGUs not

physically located at the same affected facility.

I. Notification, Recordkeeping, and Reporting

Compared to the proposed rule, the reduced

continuous compliance requirements in the final rule-

-primarily reduced testing frequencies and removal of

fuel analyses and control device or fuel operating

parameter monitoring-considerably reduces the

overall burden associated with recordkeeping and

reporting. Based on evaluation of the comments

received, we have established a provision in the final

rule for submission of most CEMS data (including

monitoring plan, emissions data, and QA data)

through ECMPS, so that the affected industry uses a

common reporting tool for submitting CEMS data.

For data other than most CEMS data, the final rule

requires electronic reporting of certain data, including

performance test reports, PM CPMS data, PM CEMS

data, and, if approved as part of an alternative

monitoring request, HAP metals CEMS data. Other

reports, such as notifications, must be submitted in

hard copy format or in accordance with the procedures

established by state and local agencies that receive

delegation for implementing this rule. In the proposed

rule, we took comment on these approaches and stated

our anticipation of adopting these approaches. In the

final rule, we have extended the ECMPS reporting to

most CEMS data to promote harmonization for CEMS

*\” Hazardous Organic NESHAP (59 FR 19,425; April 22, 1994).

563a

data from the industry, while leaving reporting of non-

CEMS data in a separate reporting system.

J. Technical / Editorial Corrections

In this final action, we are making a number of

technical corrections and clarifications to 40 CFR part

63, subpart UUUUU. These changes clarify proce-

dures for implementing the emission limitations for

affected sources. We are also clarifying several

definitions to help affected sources determine

applicability of this rule. We have modified some

proposed regulatory language based on public com-

ments. In addition, in response to comments received

(including the May 2010 notice from the Utility Air

Regulatory Group (UARG) of calculation errors in the

proposed Hg MACT floor limits), we have checked al]

calculations and made corrections where necessary.

In several places throughout the subpart, including

the associated tables, we have corrected the cross-

references to other sections and paragraphs of the

subpart.

Vil. Public Comments and Responses to the

Proposed NESHAP

A. MACT Floor Analysis

1. New Data/Technical Corrections to Old Data

Comment: Many commenters identified errors in the

emissions database compiled through information

provided by industry in response to the 2010

information collection request (ICR) that supported

development of this rule. Commenters submitted

corrections to the EPA during the public comment

period.

564a

Response: The EPA has incorporated technical

corrections and new data submitted prior to the end of

the comment period. The corrections and new data are

described in detail in a memorandum in the docket.

The EPA re-ranked the sources in the MACT floor

pools to the extent necessary based on the new or

corrected data, and we recalculated the MACT floors

as necessary based on the re-ranking of sources. The

revised MACT floors were established using the same

methodology set forth in the proposed rule.

2. Pollutant-by-Pollutant Approach

Comment: Many commenters raised concerns about

the way the EPA determined the MACT floors using a

pollutant-by-pollutant approach. Commenters con-

tended that such a methodology produced limits that

are not achievable in combination, and as such, the

limits do not comport with the intent of the statute or

the recent court decision (NRDC v. EPA, 2007).

Commenters further added that the CAA directs the

EPA to set standards based on the overall performance

of “sources” and CAA sections 112(d\1), (2), and (3)

specify that emissions standards be established on the

“in practice” performance of a “source” in the category

or subcategory. Commenters stated that if Congress

had intended for the EPA to establish MACT floor

levels considering the achievable emission limits of

individual HAP, it could have worded CAA section

112(d\(3) to refer to the best-performing sources “for

each pollutant.” Many commenters added that the

EPA’s discretion in setting standards is limited to

distinguishing among classes, types, and sizes of

sources. Commenters contend that although Congress

limited the EPA’s authority to parse units and sources

with similar design and types, it does not allow the

EPA to “distinguish” units and sources by individual

565a

pollutant as proposed in this rule (Sterra Club v. EPA,

551 F.3d 1019, 1028 (D.C. Cir. 2008)). By calculating

each MACT floor independently of the other

pollutants, commenters contend that the combination

of HAP limits results in a set of standards that only a

hypothetical “best performing” unit could achieve.

Response: We disagree with the commenters who

believe MACT floors cannot be set on a pollutant-by

pollutant basis. Contrary to the commenters’ sugges-

tion, CAA section 112(d)(3) does not mandate a total

facility approach. A reasonable interpretation of CAA

section 112(dX3) is that MACT floors may be

established on a HAP-by-HAP basis, so that there can

be different pools of best performers for each HAP.

Indeed, as illustrated below, the total facility approach

not only is not compelled by the statutory language but

can lead to results so arbitrary that the approach may

simply not be legally permissible.

Clean Air Act section 112(d)(3) is not explicit as to

whether the MACT floor is to be based on the perfor-

mance of an entire source or on the performance

achieved in controlling particular HAP. Congress spec-

ified in CAA section 112(d)(3) the minimum level of

emission reduction that could satisfy the requirement

to adopt MACT. For new sources, this floor level is to

be “the emission control that is achieved in practice by

the best controlled similar source.” For existing

sources, the floor level is to be “the average emission

limitation achieved by the best performing 12 percent

of the existing sources” for categories and subcatego-

ries with 30 or more sources, or “the average emission

limitation achieved by the best performing 5 sources”

for categories and subcategories with fewer than 30

sources. Commenters point to the statute’s reference

566a

to the best performing “sources,” and claim that Con-

gress would have specifically referred to the best

performing sources “for each pollutant” if it intended

for the EPA to establish MACT floors separately for

each HAP.

The EPA disagrees. The language of the Act does not

address whether floor levels can be established HAP-

by-HAP or by any other means. The reference to

“sources” does not lead to the assumption the com-

menters make that the best performing sources can

only be the best-performing sources for the entire suite

of regulated HAP Instead, the language can be

reasonably interpreted as referring to the source as a

whole or to performance as to a particular HAP.

Similarly, the reference in the new source MACT floor

provision to “emission control achieved by the best

controlled similar source” can mean emission control

as to a particular HAP or emission control achieved by

a source as a whole.

Commenters also stressed that CAA section 112(d)

requires that floors be based on actual performance

from real facilities. The EPA agrees that this language

refers to sources’ actual operation, but again the

language says nothing about whether it is referring to

performance as to individual HAP or to single facility’s

performance for all HAP. Industry commenters also

said that Congress could have mandated a HAP-by-

HAP result by using the phrase “for each HAP” at

appropriate points in CAA section 112(d). The fact that

Congress did not do so does not compel any inference

that Congress was sub-silentio mandating a different

result when it left the provision ambiguous on this

issue. The argument that MACT floors set HAP-by-

HAP are based on the performance of a hypothetical

facility, so that the limitations are not based on those

567a

achieved in practice, just reiterates the question of

whether CAA section 112(d)(3) refers to whole

facilities or individual HAP. All of the limitations in

the floors in this rule reflect sources’ actual perfor-

mance and were achieved in practice. As to

commenters’ claims that standards set in this manner

cannct be met by any actual sources, we have

determined that there are approximately 69 existing

coal-fired EGUs that meet all of the final existing

source MACT emission limits (out of 252 EGUs that

reported data for Hg, PM, and HC! in the 2010 ICR)

and at least one EGU that meets all of the final new

source MACT emission limits.

Commenters also point to the EPA’s subcategoriza-

tion authority, and claim that because Congress

authorized the EPA to distinguish among classes,

types, and sizes of units, the EPA cannot distinguish

units by individual pollutant, as they allege the EPA

did in the proposed rule. However, that statutory

language addresses the EPA’s authority to subcatego-

rize sources within a source category prior to setting

standards, which the EPA has done for certain EGUs.

The EPA is not distinguishing within each

subcategory based on HAP emitted. Rather, it is

establishing emissions standards based on the

emissions limits achieved by units in each sub-

category. Therefore, the EPA’s subcategorization

authority is irrelevant to the question of how the EPA

establishes MACT floor standards once it has made

the decision to distinguish among sources and create

subcategories.

The EPA’s long-standing interpretation of the Act is

that the existing and new source MACT floors are to

be established on a HAP-by-HAP basis. One reason for

this interpretation is that a whole plant approach

568a

could yield least common denominator floors--that is,

floors reflecting limited or no control, rather than

performance which is the average of what best

performers have achieved. See 61 FR 173687 (April 19,

1996); 62 FR 48363-64 (September 15, 1997) (same

approach adopted under the very similar language of

CAA section 129(aX2)). Such an approach would allow

the performance of sources that are outside of the best-

performing 12 percent for certain pollutants to be

included in the floor calculations for those same

pollutants, and it is even conceivable that the worst

performing source for a pollutant could be considered

a best performer overall, a result Congress could not

have intended. Inclusion of units that are outside of

the best performing 12 percent for particular

pollutants would lead to emission limits that do not

meet the requirements of the statute.

For example, if the best performing 12 percent of

facilities for HAP metals were also the worst perform-

ing units for acid gas HAP and the best performers for

acid gas HAP were the worst performers for HAP

metals, the floor for acid gases or metals would end up

not reflecting best performance. In such a situation,

the EPA would have to make a value judgment as to

which pollutant reductions were most critical to decide

which sources are best controlled.*** Such value

judgments are antithetical to the direction of the

statute at the MACT floor-setting stage.

Commenters suggested that a multi-pollutant

approach could be implemented by weighting

318 See Petitioners Brief in Me ical Waste Institute et al. v.

EPA, No. 09-1297 (D.C. Cir.) pointing out, in this context, that

“the best performers for some pollutants are the worst performers

for others” (p. 34) and “[slome of the best performers for certain

pollutants are among the worst performers for others.”

569a

pollutants according to relative toxicity and calculat-

ing weighted emissions totals to use as a basis for

identifying and ranking best performers. This

Suggested approach would require the EPA to

essentially prioritize the regulated HAP based on

relative risk to human health of each pollutant, where

risk is a criterion that has no place in the

establishment of MACT floors, which are required by

statute to be based on technology.

The central purpose of the amended air toxics

provisions was to apply strict technology-based

emission controls on HAP. See, e.g., H. Rep. No. 952,

10ist Cong. 2d sess. 338. An interpretation that the

floor level of control must be limited by the

performance of devices that only control some of these

pollutants effectively guts the standards by including

worse performers in the averaging process, whereas

the EPA’s interpretation promotes the evident

Congressional objective of having the floor reflect the

average performance of best performing sources.

Because Congress has not spoken to the precise

question at issue, and the Agency’s interpretation

effectuates statutory goals and policies in a reasonable

manner, its interpretation must be upheld. See

Chevron v. NRDC, 467 U.S. 837 (1984). n319

n319 Because industry commenters argued that the

statute can only be read to allow floors to be

determined on a single source basis, commenters

offered no view of why their reading could be viewed

as reasonable in light of the statute’s goals and

objectives. It is not evident how any statutory goal is

promoted by an interpretation that allows floors to be

determined in a manner likely to result in floors

reflecting emissions from worst or mediocre performers.

570a

The EPA notes, however, that if optimized perfor-

mance for different HAP is not technologically possible

due to mutually inconsistent control technologies (for

example, if metals performance decreased as organics

reduction is optimized), then this would have to be

taken into account by the EPA in establishing a floor

(or floors). The Senate Report indicates that if certain

types of otherwise needed controls are mutually exclu-

sive, the EPA is to optimize the part of the standard

providing the most environmental protection. S. Rep.

No. 228, 101st Cong. 1st sess. 168 (although, as noted,

the bill accompanying this Report contained no floor

provisions). It should be emphasized, however, that

the D.C. Circuit has stated that “the fact that no plant

has been shown to be able to meet all of the limitations

does not demonstrate that all the limitations are not

achievable.” Chemical Manufacturers Association v.

EPA, 885 F. 2d at 264 (upholding technology-based

standards based on best performance for each pollu-

tant by different plants, where at least one plant met

each of the limitations but no single plant met all of

them).

All available data for EGUs indicate that there is no

technical problem achieving the floor levels contained

in this final rule for each HAP simultaneously, using

the MACT floor technology. Data demonstrating a

technical conflict in meeting all of the limits have not

been provided, and, as stated above, based on the

available data, there are approximately 64 EGUs that

meet all of the final existing source emission limits

and at least one EGU that meets all of the final new

source emission limits.

3. Minimum Number of EGUs To Set Floors

Comment: Many commenters indicated that CAA

section 112 requires that data from a minimum of 5

571la

units are required to set MACT floors for existing

sources. Commenters noted that the EPA’s use of less

than 5 units for subcategories with greater than 30

units is a legalistic reading of CAA section 112 that

could result in such absurd results as using 5 units to

set MACT floors for a subcategory with 29 units and

data for only 10 units, but using a single unit to set

MACT floors for a subcategory with 31 units and data

for only 10 units.

Response: The EPA does not agree that CAA section

112(d)(3) mandates a minimum of 5 sources in all

instances, notwithstanding the incongruity of having

less data to establish floors for larger source categories

than is mandated for smaller ones. The literal

language of the provision appears to compel this

result. CAA section 112(d\3) states that for categories

and subcategories with at least 30 sources, the MACT

floor for existing sources shall be no less stringent

than the average emission limitation achieved by the

best-performing 12 percent of the sources for which

the Administrator has emissions information. The

plain language of this provision requires the use of

fewer data points for large source categories than for

small source categories where the Administrator only

has emissions information on a small number of units

for categories and subcategories with 30 or more

sources. Furthermore, commenters contend that

Congress could not have intended the floors for a

subcategory with 29 sources to be based on 5 sources

and a subcategory with 31 sources to be based on less

than that number; but we maintain this contention is

without merit because 12 percent of 31 is 3.72

(rounded to 4) so the EPA would not base standards

for a subcategory with 31 sources on 5 sources even if

‘we had data on all 31 sources in the subcategory. For

these reasons, we decline to adopt commenters’

572a

position and continue to adhere to the clear statutory

directive.

4. Treatment of Detection Levels

Comment: Commenters stated that when setting the

MACT floors, non-detect values are present in many of

the datasets from best performing units. Commenters

provided input on how these non-detect values should

be treated in the MACT floor analysis. Some

commenters agreed that it is appropriate to keep the

detection levels as reported, while certain commenters

suggested that the detection levels should be replaced

using a value of half the method detection limit (MDL).

Many other commenters stated that data that are

below the detection limit should not be used in setting

the floors, and these data should be replaced with a

higher value -including either the MDL, limit of

quantitation (LOQ), practical quantitation limit

(PQL), or reporting limit (RL) for the purposes of the

MACT floor calculations. Other commenters stated all

non-detect values should be excluded from the floor

analysis, or all values should be treated as zero.

Some commenters stated it is necessary to keep the

data as reported because changing values would lead

to an upward bias. Additional commenters agreed

with this basic premise, but suggested that replacing

non-detect data with a value of half the MDL is

appropriate while still minimizing the bias. They

noted that treating measurements below the MDL as

occurring at the MDL is statistically incorrect and

violates the statute’s “shall not be less stringent than”

requirement for MACT floors. One commenter also

provided a reference for a statistical method based on

a log-normal distribution of the data which estimated

the “maximum likelihood” of data values; this result is

slightly higher than half the MDL.

573a

Some commenters stated that it is necessary to

substitute the MDL value when performing the MACT

floor calculations. With MDL defined as the lowest

concentration that can be distinguished from the

blank at a defined level of statistical significance, this

is an appropriate value. If MDL values are not

reported, one commenter suggested an approach for

estimating an MDL equivalent value, but recognized

that the background laboratory and test report files

may not be available to the EPA in order to derive

these estimates.

Most commenters representing industry and

industry trade groups argued that either LOQ or PQL

values should replace non-detects. The LOQ is defined

as the smallest concentration of the analyte which can

be measured. These commenters contended that the

LOQ leads to a quantifiable amount of the substance

with an acceptable level of uncertainty. A few

commenters provided calculations showing some of

the proposed MACT floors were below the LOQ.

Additionally, some of these commenters stated that

using LOQ or PQL values also incorporates additional

sources of random and inherent sampling error

throughout the testing process, which is necessary.

These errors occur during sample collection, sample

recovery, and sample analysis; MDL values only

account for method specific (e.g., instrument) errors.

These commenters contended that the three times the

MDL approach discussed in the proposal accounts for

some measurement errors but does not account for

these unavoidable sampling errors. The commenters

also noted that an LOQ is calculated as 3.18 times the

MDL, and PQL is calculated as 5 to 10 times the MDL.

Many of the commenters in support of using either an

LOQ or PQL value ultimately believed a work practice

is more appropriate where a MACT floor limit is below

574a

either of these two values. They cited CAA section

112(hX1) which allows work practices under CAA

section 112(h)(2) if “the application of measurement

methodology to a particular class of sources is not

practicable due to technological and economic limita-

tions”. These commenters stated that the inability of

sources to accurately measure a pollutant at the level

of the MACT floor qualifies as such a technological

limitation that warrants a work practice standard.

Commenters stated that where the proposed MACT

floor is below the LOQ or PQL then that source

category has a technological measurement limitation.

A few commenters suggested RL values should be used

when developing the floor limits. They stated that the

RL is the lowest level at which the entire analytical

system gives reliable signals and includes an

acceptable calibration point. They added that use of an

acceptable calibration point is critical in showing that

numbers are real versus multiplying the MDL by

various factors.

Several commenters stated that all non-detect val-

ues should be excluded from MACT floor calculations.

They believed that excluding all non-detect values

would eliminate any potential errors or accuracy

issues related to testing for compliance. Due to incon-

sistencies of the MDL value reported for non-detect

data, one comwenter suggested treating all such val-

ues as zero. This would provide a consistent approach

for setting the floor as well! as determining compliance.

Several commenters provided input on the EPA’s

proposed method of three times the MDL as an option

for setting limits. A few commenters in support noted

that this approach provided a reasonable method to

account for data variability as it took into account

more than just analytical instrument precision. Many

575a

other commenters argued that this method results in

limits which are too low, namely that it is still lower

than the LOQ value which they are in favor of as a

su

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Appendix — Nat'l Mining Ass'n v. Envtl. Prot. Agency, 135 S. Ct. 703 (2014) (No. 14-49) | Frix