ILLINOIS POLLUTION CONTROL BOARD

December 21, 2006

IN THE MATTER OF:

PROPOSED NEW 35 ILL. ADM. CODE 225

CONTROL OF EMISSIONS FROM LARGE

COMBUSTION SOURCES (MERCURY)

)

)

)

)

)

R06-25

(Rulemaking - Air)

Adopted Rule. Final Order.

OPINION AND ORDER OF THE BOARD (by G.T. Girard, A.S. Moore):

The Board today proceeds to final notice with a proposal to reduce emissions of mercury

from coal-fired electrical generating units in the State. The Board will file the adopted rule with

the Secretary of State pursuant to the Administrative Procedures Act (APA) (5 ILCS 100/5

et

seq

. (2004)) for publication in the

Illinois Register

. The proposal the Board adopts today

includes a mercury emissions standard of 0.0080 lb/GWh or a 90% reduction from input

mercury, a temporary technology based standard (TTBS), and a multi-pollutant control system

(MPS). The following discussion describes the procedural background, summarizes the Board

second-notice opinion and order, summarizes the rule language adopted today, and addresses the

Board’s adoption of the rule.

PROCEDURAL BACKGROUND

On March 14, 2006, the Illinois Environmental Protection Agency (Agency) filed a

proposal for rulemaking to limit mercury emissions from large coal-fired electrical generating

units (EGU). The proposal was filed pursuant to Sections 9.10, 27, and 28.5 of the Act (415

ILCS 5/9.10, 27, and 28 (2004)). On March 16, 2006, the Board accepted the proposal for first

notice under the “fast-track” rulemaking provisions of Section 28.5 of the Act (415 ILCS 5/28.5

(2004)), without commenting on the merits of the proposal.

On April 20, 2006, the Board ruled, in response to various motions, that the Board has the

authority under Section 28.5 of the Act (415 ILCS 5/28.5 (2004)) to reject a proposal filed by the

Agency pursuant to Section 28.5, if the Board finds that the proposal does not meet the statutory

requirements. The Board further found that the proposal met the statutory requirements of

Section 28.5 of the Act because failure to adopt a mercury emissions standard could result in the

USEPA enforcing the federal CAMR. The Board reasoned that the USEPA enforcing CAMR

would constitute a “sanction” as that term is used in Section 28.5 of the Act (415 ILCS 5/28.5

(2004)).

While the Board was considering the motions to remove the proposal from the fast-track

procedures, Dynegy Midwest Generation, Inc. (Dynegy), Kincaid, and Midwest Generation,

L.L.C. (Midwest Generation) (collectively plaintiffs) filed a complaint in the Sangamon County

Circuit Court on April 3, 2006. That case is Dynegy Midwest Generation, Inc., Kincaid

Generation, L.L.C., and Midwest Generation, L.L.C. v. PCB and IEPA, No 2006-CH-213. In

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2

that complaint, plaintiffs sought declaratory relief from the court that the use of the fast-track

procedures was inappropriate for this rulemaking, that the schedule set by the Board and the

hearing officer could not proceed, and that Section 28.5 was unconstitutional. The plaintiffs also

asked for injunctive relief. On April 17, 2006, the plaintiffs filed a motion seeking a preliminary

injunction against the Board and the Agency. The Sangamon County Circuit Court heard

argument on the motion on April 27, 2006, and entered an order granting a preliminary

injunction on May 1, 2006. On May 8, 2006, after Dynegy and Ameren filed joint statements

with the Board in this rulemaking docket, the Board filed a motion to dismiss the circuit court

case, which is still pending.

On May 4, 2006, the Board decided to proceed with the Agency’s March 14, 2006

proposal pursuant to Section 27 of the Act (415 ILCS 5/27 (2004)). The Board acknowledged

the order of the court, and stated the Board’s intent to abide by the court’s decision. The Board

canceled the hearings scheduled to begin on May 8, 2006, and rescinded the schedules set forth

by both the Board and the hearing officer in their respective March 16, 2006 orders. The Board

also re-first noticed the proposed rule under the APA (5 ILCS 100/5

et seq

. (2004)). At the same

time, the Board filed a notice of withdrawal of the original first notice that appeared in the

Illinois Register

on March 31, 2006 (30

Ill. Reg.

5957). The Board cited only Section 27 of the

Act (415 ILCS 5/27 (2004)) as authority for the proposed rule in the new first notice. The new

first notice was published in the

Illinois Register

on May 19, 2006 (30

Ill. Reg.

9281).

On May 23, 2006, the Agency filed a motion to amend the proposal. On June 15, 2006,

the Board accepted the amendment, which was published in the

Illinois Register

on July 28,

2006 (30

Ill. Reg.

12706).

The Board began hearings in this proceeding on June 12, 2006, in Springfield before

Board Hearing Officer Marie Tipsord. The Springfield hearings continued day-to-day through

and including June 23, 2006. After the close of the Springfield hearings, Dynegy and Midwest

Generation filed a motion to strike Dr. Gerald Keeler’s testimony at the Springfield hearing. On

July 20, 2006, the Board denied that motion finding that the rules of evidence in rulemakings

before the Board differ from those in a contested case before the Board. In a rulemaking, “[a]ll

information that is relevant and not repetitious or privileged will be admitted by the hearing

officer.” 35 Ill. Adm. Code 102.426. Thus, the Board found that Dr. Keeler’s testimony was

admissible in this rulemaking proceeding.

The Board began a second set of hearings on August 14, 2006, in Chicago. The Chicago

hearings continued day-to-day through and including August 23, 2006.

1

During the hearing, a

request for additional hearings was made on the record. The hearing officer directed that the

request be filed with the Board and on August 24, 2006, Midwest Generation filed a motion to

schedule additional hearings. By hearing officer order, response time was shortened to allow

responses without undue delay in the proceeding. The Board received responses from Ameren

Energy Generation Company, Amerenenergy Resources Generating Company, and Electric

1

The transcript pages for the Springfield hearing are not consecutively numbered and therefore

will be cited with date and a.m. or p.m. The Chicago hearing transcripts will be cited as “CTr.

at”.

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3

Energy, Inc. (Ameren), the Agency, and Environmental Law and Policy Center, in opposition to

the motion. Kincaid responded in support of the motion. On September 7, 2006, the Board

denied the request for additional hearings.

In accordance with Section 27(b) of the Act, the Board requested, in letters dated

March 16, 2006 and May 10, 2006, that Department of Commerce and Economic Opportunity

(DCEO) conduct an economic impact study for this rulemaking. On June 26, 2006, DCEO

responded that DCEO does not have the resources to perform economic impact studies on this

rulemaking. The Board received a second response letter on June 29, 2006, which also indicated

that DCEO would not perform an economic impact study. During the Chicago hearings, the

Board specifically sought comment on the decision of DCEO (

see

CTr. at 6-7).

Pursuant to the hearing officer’s order, the deadline for filing comments to ensure that the

comments were considered by the Board before proceeding was September 20, 2006. Between

the close of hearing and September 20, 2006, the Board received 7286. Also on September 20,

2006, Midwest Generation filed a motion to correct transcript. The Board did not receive any

responses to the motion. The Board grants that motion.

On September 25, 2006, Ameren filed a motion for leave to file

instanter

supplemental

post-hearing comments. The Board did not receive any responses to the motion. The Board

grants that motion and accepts the comment.

On November 2, 2006, the Board adopted the proposal for second notice. On December

12, 2006, the Joint Committee on Administrative Rules voted a certificate of no objection.

SUMMARY OF THE BOARD’S SECOND NOTICE OPINION AN ORDER

The Board’s second-notice was a 90-page opinion and substantively discussed the issues

raised in this proceeding.

See

Proposed New 35 Ill. Adm. Code 225 Control of Emissions from

Large Combustion Sources (Mercury), R06-25 (Nov. 2, 2006). The Board will not repeat that

discussion here; rather the Board summarizes the opinion in the following paragraphs. The

Board received over 7,000 public comments, held 18 days of hearings, and entered over 100

exhibits into the record in this proceeding. After carefully reviewing the entirety of the record,

the Board found that the proposal as amended at second notice is technically feasible and

economically reasonable. Further, the Board found that the Board had authority to include the

MPS in the proposal for second notice. In making these determinations the Board examined

several issues that will be summarized in the following paragraphs.

Technical Feasibility

The Board considered arguments that the proposal’s preferred control technology will not

achieve the standard established in the rule. The Board disagreed and found that the use of

halogenated activated carbon injection (HCI) has been demonstrated to achieve the established

standards. Further, the Board found that the size of the specific collection area (SCA) does not

impact mercury reduction with the use of HCI. The Board found that the duration of the testing

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4

used to demonstrate the feasibility of HCI is sufficient and that an absolute emissions limit is

appropriate.

The Board considered arguments that the measurement of mercury removal cannot be

accomplished to the level required to prove compliance with the standards. The Board noted that

the measurement requirements in the proposal are substantially identical to the measurement

requirements for the Clean Air Mercury Rule (CAMR) developed by the United States

Environmental Protection Agency (USEPA). Many of the issues concerning the measurement

requirements relate to the underlying federal requirements, so the Board deferred to the

USEPA’s decision to adopt the requirements. In addition, the Board found that the testimony

offered in opposition to the measurement requirements is not persuasive. Therefore the Board

found that the measurement of mercury removal can be accomplished to the level required to

prove compliance with the standards.

The Board next considered the issue of flexibility in the proposal, including averaging,

the TTBS, and the MPS option. The Board found that averaging, both on a systemwide and a

12-month rolling basis, adds flexibility to the proposal that helps establish technical feasibility of

the proposal. The Board also found that the TTBS adds flexibility for compliance and the

addition of the TTBS does not lead to the conclusion that the underlying standard is not

technically feasible. Finally, the Board found that the MPS offers yet another alternative for

achieving compliance and will result in additional removal of pollutants not regulated in this

proceeding.

Economic Reasonableness

In reviewing the economic reasonableness of the proposal, the Board included arguments

on deposition, modeling, health effects, and fish advisories, because the parties attacked the

economics of the proposal using these areas. The first issue considered by the Board was

whether deposition of mercury and modeling of deposition supports the emissions standards in

the proposal. The Board found that they do. The Board found that relying on studies not

specific to Illinois is legitimate and something the Board has done in the past. Further, the Board

found that the modeling method relied upon by the Agency’s witnesses is an appropriate method

and supports the proposal. The Board found that the record indicates lowering mercury

emissions in Illinois will impact the amount of mercury deposited in Illinois waters. Therefore,

the Board found that the deposition and modeling evidence in the record support the adoption of

the proposed mercury emissions standards.

The Board next considered arguments concerning whether the reduction of mercury

emissions will result in health benefits to Illinois citizens. The Board found that the evidence in

the record indicates that health benefits can be expected. Therefore, the Board found that the

expected health benefits support the adoption of the proposed mercury emissions standards.

The Board considered arguments that reduction of mercury emissions will not impact fish

advisories in Illinois. The Board disagreed and found that reduction of mercury emissions may

lead to delistings from the Special Mercury Advisory. Therefore, the Board found that the

potential delistings support the adoption of the proposed mercury emissions standards.

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5

The Board considered arguments that the cost of compliance does not justify the adoption

of the mercury emissions standards. The Board found that the incremental cost differences

between compliance with CAMR and with the proposal, along with the significant reduction of

mercury emissions, cause this proposal to be economically reasonable. Therefore, the Board

found that the record supports a finding that the rule is economically reasonable.

Legal Issues

The Board considered arguments challenging the Board’s authority to add the MPS to the

rulemaking at second notice. The Board found that the MPS is a logical outgrowth of the

proposal and as such is not contrary to either Illinois or federal administrative law. The Board

has found the MPS to be economically reasonable and technically feasible; and therefore, the

addition of the MPS does not violate Section 27 of the Act (415 ILCS 5/27 (2004)). Further the

Board found that the MPS does not violate Section 10 of the Act (415 ILCS 5/10 (2004))

because of the voluntary nature of the MPS. The Board also found that adding the MPS to the

rule does not violate the Supremacy Clause or the Commerce Clause of the United States

Constitution. Finally, the Board found that the proposal does not violate the Due Process Clause

of the United States Constitution.

Kincaid

The Board addressed concerns from Kincaid that due to the utility’s unique nature in

Illinois, the proposal is not technically feasible or economically reasonable for Kincaid. The

Board agreed that Kincaid is uniquely situated and suggests that Kincaid pursue other regulatory

relief.

Federal Requirements

The Board considered arguments that the proposal, with the TTBS and the MPS, will not

be able to meet the requirements established by CAMR. The Board found that the proposal, with

the TTBS and the MPS, can meet the federal requirements.

SUMMARY OF RULE LANGUAGE

The following section summarizes the rule adopted by the Board in today’s order.

Subpart A

Section 225.100 is the standard severability clause in the rule. Sections 225.120 and

225.130 set forth abbreviations, acronyms, and definitions used in Part 225 and incorporates

definitions found in 35 Ill. Adm. Code 211. Section 225.140 is the incorporation by reference

section and incorporates several sections of the

Code of Federal Regulations

by reference.

Specifically, this section incorporates 40 C.F.R. 60.17, 60.45a, 60.49a(k)(l) and (p), 60.4170

through 60.4176. These sections of 40 C.F.R. Part 60 address Standards of Performance for New

Stationary Sources. Subsection (b) incorporates by reference 40 C.F.R. Part 75. Under CAMR,

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6

state plans must require that EGUs comply with the monitoring, recordkeeping, and reporting

provisions of 40 C.F.R. Part 75, which addresses continuous emission monitoring. Subsection

(c) incorporates by reference standard test methods that are to be utilized under Part 225.

Subpart B

Section 225.200 sets forth the purpose of Subpart B, which is to control mercury

emissions from coal-fired electric generating units in Illinois. Section 225.202 sets forth the

methods for mercury measurement to establish compliance with Part 225.

Section 225.205(a) provides that Subpart B applies to all stationary coal-fired boilers and

stationary coal-fired combustion turbines serving a generator with nameplate capacity of more

than 25 MWe and producing electricity for sale. Section 225.205(b) includes language that

determines when Subpart B applies to a cogeneration unit. Specifically, Subpart B applies to a

cogeneration unit serving a generator with nameplate capacity of more than 25 MWe and

supplying in any calendar year more than one-third of the unit’s potential electric output capacity

or 219,000 MWh, whichever is greater, to any utility power distribution system for sale. The

language provides that “if a unit qualifies as a cogeneration unit during the 12-month period

starting on the date the unit first produces electricity, but subsequently no longer qualifies as a

cogeneration unit, the unit shall be subject to subsection (a) of this Section starting on the day

which the unit first no longer qualifies as a cogeneration unit.”

Section 225.210 requires that to comply with Subpart B an owner or operator of a source

with one or more EGUs must apply for a Clean Air Act Permit Program (CAAPP) permit that

addresses the applicable requirements of Subpart B. Section 225.210(b) specifically requires the

owner or operator to comply with the monitoring requirements of Section 225.240 through

225.290 of Subpart B. Emissions measurements recorded and reported in accordance with

Section 225.240 through 225.290 of Subpart B will determine compliance with mercury

requirements under Section 225.230 or 225.237. Section 225.210(c) requires compliance with

the mercury emissions reduction requirements set forth in Sections 225.230 or 225.237. Section

225.210(d) sets forth the recordkeeping and reporting requirements for owners or operators of

EGUs under Subpart B. The owners or operators must keep the following records: emission

monitoring information, copies of all reports, compliance certifications, all documents necessary

to demonstrate compliance with Subpart B, copies of all documents from the permit application

and any other submission under Subpart B. The owner or operator must keep the records for five

years, unless the Agency extends this period for cause in writing prior to the end of five years.

Section 225.210(e) governs liability and sets forth that the owner or operator of each

source must meet the requirements of Subpart B and that any provision of Subpart B that applies

to a source will also apply to the owner and operator of the source and to the owner and operator

of each EGU at the source. Section 225.210(f) includes language that limits the effect of Subpart

B on other provisions of State and federal law. No provision of Subpart B can be construed to

exempt or exclude the owner and operator of a source or EGU from compliance with any

provision of an approved State Implementation Plan, a permit, the Act or the CAA.

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7

Section 225.220 addresses CAAPP permit requirements and provides in subsection (a)

that each source submit a CAAPP permit application that addresses all applicable requirements

of this Subpart. Subsection (a) also establishes a timeline for the submission of permit

applications. In subsections (b) and (c), the content and information required in the permit

application and permit are set forth. Section 225.220(c) requires that each permit issued by the

Agency and subject to Subpart B address all applicable requirements of this Subpart and contain

federally enforceable conditions.

Section 225.230 sets forth emissions standards for EGUs at existing sources. Section

225.230(a) provides that beginning July 1, 2009, the EGU must comply with one of the

following standards on a rolling 12-month basis: “(1) an emission standard of 0.0080 lb/GWh

gross electrical output; or (2) a minimum 90% reduction of input mercury.” Section 225.230(b)

provides that as an alternative to compliance with subsection (a) an EGU may demonstrate that

the actual emissions of mercury are less than the allowable emissions from the EGU on a rolling

12-month basis. Subsection (b) also includes the equations necessary for compliance and

provides that if an EGU does not comply with Section 225.265 of this Subpart to determine

mercury input, the allowable emissions will be calculated based on the electrical output of the

EGU.

Section 225.230(c) provides that for two EGUs that share a common stack, and where

mercury monitors are in the common stack, compliance with applicable emission standards must

be determined as if the two EGUs were a single EGU, as provided for by 40 C.F.R. Part 75,

Subpart I. Section 225.230(d) requires that a source with multiple EGUs may alternatively

comply with subsection (a) by demonstrating that the actual emissions of mercury are less than

the allowable emissions of mercury from all EGUs at the source on a rolling 12-month basis.

Subsection (d) further provides formulas for determining the maximum allowable emissions of

mercury from all the EGUs at a source. If a source that relies on subsection (d) fails to meet the

requirements of subsection (d) in a given 12-month period, all EGUs at the source in such

reliance will be considered out of compliance with the applicable standards of Subpart B for the

entire last month of that period.

Section 225.232(a) provides that through December 31, 2013, as an alternative to

compliance with Section 225.230(a), an EGU may comply with emissions standards through an

averaging demonstration. The EGU must show that actual mercury emissions from the EGU and

other EGUs covered by the demonstration are less than the allowable emissions from all such

EGUs on a rolling 12-month basis.

Section 225.232(b) proposes that each EGU covered by the demonstration must “comply

with one of the following emission standards on a source-wide basis for the period covered by

the demonstration: (1) An emission standard of 0.020 lb/GWh gross electrical output; or (2) A

minimum 75% reduction of input mercury.” Section 225.232(c) provides that the equations set

forth in Section 225.230(a)(2), (a)(3), or (d) (2) determine compliance with emissions standards

under this section. The owner or operator must apply the equations that address all EGUs at the

sources covered by the demonstration, rather than the equations that address only EGUs at one

source.

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8

Section 225.232(d) provides that owners or operators of multiple existing sources with

EGUs may only participate in averaging demonstrations with existing sources they own or

operate. However, the owners or operators of specifically enumerated single sources with EGUs

may participate in demonstrations with each other. The language requires that participants that

are single existing sources with EGUs be authorized through federally enforceable permit

conditions for each participating source. Under Section 225.232(e), “a source may be included

in only one [d]emonstration during each rolling 12-month period.” Section 225.232(f) requires

that EGUs using the demonstration to comply with “Subpart B must complete the determination

of compliance for each 12-month rolling period no later than 60 days following the end of the

period.”

Section 225.232(g) provides that if a source applies the demonstration to comply with

Subpart B and fails, the compliance status of such source will be determined under Section

225.230, as if the demonstration did not apply. Section 225.232(h) includes that if one source of

two participating in a demonstration does not maintain the required records, data, and reports for

the EGUs at the source or does not submit copies of such documents to the Agency upon request,

this will be deemed a failure to demonstrate compliance and both participating sources will be

subject to Section 225.230 to determine compliance.

Section 225.233 sets forth the Multi-Pollutant Standards (MPS) provisions of the rule.

Section 225.233(a) provides that an owner/operator may use this section as an alternative to

compliance with the emission standards at Section 225.230(a). In order to establish alternative

compliance under this section, the EGU must have commenced operation before December 31,

2004 and must submit a CAAPP permit modification to the Agency stating the owner/operator’s

intent to comply under this section. Section 732.233(b) requires the owner/operator to notify the

Agency of the intention to proceed under Section 732.233 by December 31, 2007. The notice

must identify the EGUs, who owns the EGUs, the base emission rates for the EGUs, a summary

of current control devices installed and operating on the EGUs, and the EGUs scheduled for

permanent shut down.

Section 225.233(c) delineates the control technology requirements for emissions of

mercury including the installation of halogenated activated carbon injection (HCI) system and

rates of injection. Subsection (d) specifies the mercury emission standards that must be

complied with under the MPS. Subsection (e) establishes the NO

x

and SO

2

emissions standards

that the EGUs must comply with for compliance with the MPS. Section 225.233(f) prohibits the

selling or trading of NO

x

and SO

2

allowances allocated to an EGU that are necessary to achieve

compliance with the MPS. Subsection (g) requires an owner/operator to obtain construction

permit for new or modified control equipment for control of mercury, NO

x

and SO

2

.

Section 225.234 sets forth the temporary technology-based standard (TTBS) that an

owner/operator may use as an alternative to compliance with the mercury emission standards at

Section 225.230. Section 225.234(a) provides that a source must have commenced commercial

operation before December 31, 2008 to use the TTBS provisions of Section 225.234. For an

EGU to be eligible, subsection (b) requires that the EGUs must be equipped and operated with

control systems which include HCI and either a cold side electrostatic precipitator (ESP) or a

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9

fabric filter. Subsection (b) further provides that the TTBS is limited to only 25% of the total

rated MW capacity of all EGUs for the owner or operators of more than one existing with EGUs.

Section 225.234(c) requires that the EGU must be maintained an operated to comply with

the criteria for eligibility of Section 225.234. The owner/operator must also comply with

monitoring, reporting and notification requirements delineated in subsection (c). Section

225.234(d) provides that the owner/operator who seeks to operate an EGU under Section

225.234 must submit an application to the Agency in a specified timeframe and include specific

information set forth in this subsection. Subsection (e) allows for the testing and evaluation of

alternative controls under Section 225.234.

Section 225.235(a) provides that the standards do not apply to an EGU that will be

permanently shut down. To comply with this section, an owner or operator who will not be

constructing a new EGU to replace the existing unit must notify the Agency no later than June

30, 2009, that it is planning to permanently shut down by December 31, 2010. Otherwise, if the

owner or operator plans to construct a new EGU to specifically replace the existing unit, the

existing unit must shut down by December 31, 2011, for this section to apply. The existing EGU

must be permanently shut down by the specified dates, unless the owner or operator

demonstrates to the Agency, prior to such date, that factors beyond the owner or operator’s

reasonable control have interfered with the shut down plan, in which case an extension may be

given. In these circumstances, an operator or owner that will not replace the existing EGU may

receive an extension requiring the permanent shut down of the unit by December 31, 2011. If

the owner or operator of an existing EGU is constructing a new EGU, the deadline for permanent

shut down of the existing EGU may be extended to June 30, 2013, so long as after December 31,

2012, the existing EGU only operates as a “back-up unit to address periods when the new

generating units are not in service.”

Along with the notification, the EGU must submit a description of actions that have been

taken to shut down the EGU and a description of actions that will be taken to complete the shut

down. To rely on this section, an owner or operator must have applied for a construction permit

or be pursuing a federally enforceable agreement that requires the permanent shut down of the

EGU, and by June 30, 2009, must have applied for revisions to the operating permit that

terminate the authorization to operate the unit. To rely on this section, an owner or operator

must have obtained a construction permit or have entered into a federally enforceable agreement

and obtained revised operating permits in accordance with this section, by June 30, 2010.

Section 225.235(b) provides that any EGU not required to comply with Section 225.230

pursuant to this section, “shall not be included when determining whether any other EGUs at the

source or other sources are in compliance with Section 225.230 of this Subpart.”

Section 225.235(c) provides that if an owner or operator relies on this section in lieu of

compliance with Section 225.230(a) and fails to permanently shut down by the required date, the

EGU will be considered a new EGU and therefore subject to the emissions standards in Section

225.237(a) of Subpart B.

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10

Section 225.237(a)(1) provides that a source that has not commenced commercial

operations before January 1, 2009, is a new source and must “comply with one of the following

emissions standards for each EGU on a rolling 12-month basis: (1) An emission standard of

0.0080 lbs/GWh gross electrical output; or (2) A minimum 90% reduction of input mercury.”

Subsection (a)(2) allows that the equations in Section 225.230(a)(2), (a)(3), or (b)(2) of Subpart

B may be used to demonstrate compliance.

Section 225.237(b) provides that the commencement date of the initial 12-month rolling

period for which a new EGU must comply with subsection (a)(1) of this Section is the same date

that the initial performance test for the mercury emissions standard under 40 C.F.R. 60.45

commences. The required continuous emissions monitoring system for mercury emissions must

be certified prior to this date. “Thereafter, compliance shall be demonstrated on a rolling-12-

month basis in terms of calendar months.”

Section 225.238 contains the criteria for a new source to use a TTBS for compliance with

the mercury emission standards.

Section 225.240 requires that an EGU must comply with monitoring, recordkeeping and

reporting requirements in this section and those of Sections 225.250 through 225.290 of Subpart

B and Subpart I of 40 C.F.R. Part 75. If an EGU shares a common stack with units that are not

EGUs and emissions are not monitored in the duct to the common stack from each EGU then

emissions monitoring must comply with 40 C.F.R. 75.82(b)(2) and this Section, “including

monitoring the duct to the common stack from each unit that is not an EGU.” However, if the

EGU counts the combined emissions measured at the common stack as the mass emissions of

mercury, for the EGU’s recordkeeping and compliance purposes, then the aforementioned

measures for EGUs that share a common stack with units that are not EGUs are not required.

Section 225.240(a) sets forth requirements for installation, certification and data

accounting. This subsection requires the owner or operator to install all required monitoring

systems and successfully complete all required certification tests, in accordance with this Section

and Sections 225.250 through 225.290 of Subpart B and 40 C.F.R. 75.21 and 75.82, and record,

report, and quality-assure the data from such monitoring systems.

Section 225.240(a)(4) provides that to qualify to use the low mass emissions excepted

monitoring methodology, the EGU must meet the requirements set forth in this subsection, and

demonstrate eligibility through initial emissions testing, which must be conducted before the

dates set forth in subsections 225.240(a)(4)(A) and (B). For an EGU to be eligible to use the

excepted emissions monitoring methodology, the EGU may not emit more than 464 ounces (29

pounds) of mercury per year pursuant to 40 C.F.R. 75.81(b), must demonstrate that the EGU is

eligible to use the methodology by performing emissions testing in accordance with 40 C.F.R.

75.81(c), must comply with other applicable requirements of 40 C.F.R. 75.81(b) through (f), and

must submit to the Agency a copy of any information that is required to be submitted to the

USEPA under these provisions.

Section 225.240(a)(4) further requires that if an EGU commenced commercial operations

before July 1, 2008, initial emissions testing must be conducted before “January 1, 2009, or 45

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11

days prior to relying on the low mass emissions excepted methodology, whichever date is later,”

to demonstrate eligibility of an EGU for the low mass emissions excepted methodology. If the

EGU commenced commercial operation on or after July 1, 2008, initial emissions testing shall be

conducted “at least 45 days prior to the applicable date specified under subsection (b)(2) of this

Section or 45 days prior to relying on the low mass emissions methodology, whichever date is

later.”

Section 225.240(b) requires EGU to meet the emissions monitoring system certification

and other emissions monitoring requirements of subsections (a)(1) and (a)(2) of this Section on

or before the dates specified in subsections (b)(1), (2), and (3). The owner or operator must

record, report, and quality-assure the emissions monitoring systems required under subsection

(a)(1) of this Section on and after the specified dates. Under subsection (b)(1) an EGU that

commences commercial operation before July 1, 2008, is required to comply with emissions

monitoring certification on or before January 1, 2009. Subsection (b)(2) provides that an EGU

that commences commercial operation after July 1, 2008, is required to comply with monitoring

system certification by 90 unit operating days or 180 calendar days after commercial operations

commence, whichever occurs first.

Section 225.240(b)(3) proposes that an EGU that completes construction of a “new stack

or flue or installation of add-on mercury emissions controls, a flue gas desulfurization system

(FGD), a selective catalytic reduction system, a fabric filter, or a compact hybrid particulate

collector system is complete after the applicable” deadline is required to recertify the continuous

emissions monitoring system within 90 unit operating days or 180 calendar days after the date on

which emissions first exit the new system, stack, flue, device or filter, whichever is first.

Section 225.240(c) requires that if an EGU does not meet the applicable deadline for

certification of any required emissions monitoring system, the owner or operator is required to

determine, record, and report maximum potential values and, where appropriate, minimum

potential values for mercury concentration, stack gas flow rate, stack gas moisture content, and

any other parameters required to determine mercury mass emissions in keeping with 40 C.F.R.

75.80(g) for each system. Under subsection (c)(2), if an EGU required to be recertified pursuant

to subsection (b)(3) of this Section fails to meet the deadline for recertification of any emissions

monitoring system, the owner or operator is required to “determine, record, and report substitute

data using the applicable missing data procedures in 40 C.F.R. 75.80(f), in lieu of the maximum

potential (or, as appropriate, minimum potential) values, for a parameter if the owner or operator

demonstrates that there is a continuity between the data streams for that parameter before and

after the construction or installation under subsection (b)(3) of this Section.”

Section 225.240(d) provides that an EGU may not use “any alternative emissions

monitoring system, alternative reference method for measuring emission, or any other alternative

to the emissions monitoring and measurement requirements of this Section and Sections 225.250

through 225.290 of this Subpart,” unless the USEPA promulgates the alternative and the Agency

approves it in writing or if such alternative is approved in writing by the Agency and the

USEPA.

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Section 225.240(d)(3) provides that an owner or operator may not disrupt “the continuous

emission monitoring system, any portion thereof, or any other approved emission monitoring

method, and thereby avoid monitoring and recording mercury mass emissions discharged into

the atmosphere, except for periods of recertification or periods when calibration, quality

assurance testing, or maintenance is performed in accordance with the applicable provisions of

this Section, Sections 225.250 through 225.290 of this Subpart, and Subpart I of 40 C.F.R. Part

75.” Under subsection (d)(4), an EGU must not discharge mercury emissions without

accounting for all such emissions pursuant to “applicable provisions of this Section, Section

225.250 through 225.290 and Subpart 1 of 40 C.F.R. Part 75.” An EGU must not retire or

permanently discontinue use of the continuous emissions monitoring system or a component

thereof, other than in the limited circumstances enumerated in this subsection.

Section 225.240(e) provides that an EGU in long-term cold storage must comply with

applicable provisions of 40 C.F.R. Part 75 for monitoring, recordkeeping, and reporting for such

units.

Section 225.250(a) includes provisions for initial certification and recertification

procedures for a continuous emissions monitoring system or excepted monitoring system

(sorbent trap monitoring system) under 40 C.F.R. 75.15.

Section 225.250(b) proposes that a monitoring system will be exempt from the initial

certification requirements of this Section if the following provisions are met: the monitoring

system has been previously certified pursuant to 40 C.F.R. Part 75, and “the applicable quality

assurance and quality control requirements of 40 C.F.R. 75.21 and Appendix B to 40 C.F.R. Part

75 are fully met.” However, a monitoring system required by section 225.240 that is exempt

from initial certification requirements must never-the-less comply with the recertification

provisions of this section.

Section 225.250(c) sets forth that the applicable certification and recertification

requirements in 40 C.F.R. 75.81(c) through (f) will apply to an EGU qualified to use the mercury

low mass emissions excepted methodology under 40 C.F.R. 75.81(b).

Section 225.250(d), within 45 days of completing all initial certification and

recertification tests required under this section, the owner or operator is required to submit an

application to the Agency including the information required by 40 C.F.R. 75.63.

Section 225.260(a) provides that the missing data procedures in Subparts D and I of 40

C.F.R. Part 75, where applicable, will be applied to substitute data whenever any emissions

monitoring system fails to meet quality assurance and quality control requirements or data

validation requirements of 40 C.F.R. Part 75.

Section 225.260(b) sets forth that the Agency will issue a notice of disapproval of the

certification status of a monitoring system if an audit and review of the initial certification or

recertification reveal that the monitoring system should not have been certified or recertified

because of the following reasons. The Agency will issue the notice of disapproval if the

monitoring system did not meet a particular performance specification or failed to meet other

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requirements under Section 225.250 of Subpart B or failed to meet applicable provisions of 40

C.F.R. Part 75, both at the time of initial certification or recertification application and

submission and at the time of the audit. Such notice of disapproval acts to revoke prospectively

the certification status of the monitoring system. The initial certification and recertification

procedures in Section 225.250 apply to each disapproved monitoring system.

Section 225.261 provides that an EGU that uses a mercury concentration monitoring

system and a flow monitoring system to monitor and report, will also monitor and report heat

input rate at the EGU level using the procedures set forth in 40 C.F.R. Part 75.

Under Section 225.263, if an EGU complies with this Subpart, by means of either Section

225.230(a)(1) or 225.230(b) or (d) or 225.232, the owner or operator “shall monitor gross

electrical output of the associated generator(s) in MWh on an hourly basis.”

Section 225.265 provides that if the EGU complies by means of Section 225.230(a)(2) or

uses input mercury levels and complies by means of Section 225.230(b) or (d) or Section

225.232, the owner or operator must “[p]erform daily sampling of the coal combusted in the

EGU for mercury content.” The owner or operator “shall collect a minimum of one 2-lb. grab

sample per day of operation from the belt feeders anywhere between the crusher house or

breaker building and the boiler.” The sample should be taken in a manner so that it will be

representative of the mercury content of coal burned that day. The owner or operator is required

to analyze the grab sample using the following tests: to determine heat content, “ASTM D5865-

04, Standard Test Method for Gross Calorific Value of Coal and Coke, or equivalent approved in

writing by the Agency”; to determine moisture content, “ASTM D3173-03, Standard Test

Method for Moisture in the Analysis Sample of Coal and Coke, or equivalent approved in

writing by the Agency”; and to measure the mercury content, “ASTM D6414-01, Standard Test

Method for Total Mercury in Coal and Coal Combustion Residues by Acid Extractor or Wet

Oxidation/Cold Vapor Atomic Absorption, ASTM D3684-01, Standard Test Method for Total

Mercury in Coal by the Oxygen Bomb Combustion/Atomic Absorption Method, or equivalent

approved in writing by the Agency”.

A source with multiple EGUs may take one sample per crusher house or breaker

building, rather than one sample per EGU, if the EGUs share the crusher house or breaker

building. For such a source the owner or operator must determine the mercury content in terms

of lbs/trillion Btu using the data analyzed.

If an EGU is required to comply with Section 225.265, the owner or operator must

conduct sampling and analysis pursuant to this Section at least 30 days before the start of the

month for which this requirement applies if the EGU is in daily service, and if the EGU is not in

daily service, on the day that the EGU resumes operation.

Section 225.270 requires that for a source with one or more EGUs, the owner or operator

must submit written notification to the Agency pursuant to 40 C.F.R. 75.61 for each EGU or

group of EGUs monitored at a common stack and each non-EGU monitored under 40 C.F.R.

75.82(b)(2)(ii).

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Under Section 225.290(a)(1), the owner or operator of an EGU and its designated

representative must comply with applicable recordkeeping and reporting requirements of 40

C.F.R. 75.84 and those of this section. In Section 225.290(a)(2), if the EGU is subject to

emissions standards, the owner or operator must keep records for each month identifying the

emissions standard with which the EGU is complying or from which the owner or operator is

calculating allowable emissions. Such an EGU must also maintain records of the daily mercury

content of coal used and the daily and monthly input mercury in the file required under 40 C.F.R.

75.84(a), if the EGU complies with this Subpart “by means of Section 225.230(a)(2) or

225.237(a)(1)(B) or us[es] input mercury levels to determine the allowable emissions of the

EGU.” An EGU must maintain records of the daily and monthly gross electrical output in the

file required under 40 C.F.R. 75.84(a), if such EGU complies “with this Subpart by means of

Section 225.230(a)(1) or 225.237(a)(1)(A) or using electrical output to determine the allowable

emissions of the EGU.”

In Section 225.290(a)(3), the owner or operator must maintain records of monthly

emissions of mercury from each EGU. For an EGU that complies by means of section

225.230(b) or (d) of this Subpart, the owner or operator must additionally maintain records of the

monthly allowable emissions of mercury from the EGU. In Section 225.290(a)(4), an EGU that

is participating in an averaging demonstration pursuant to Section 225.232 must keep records of

the other sources and other EGUs covered by the demonstration and within 60 days of the end of

each month, calculate and record the actual and allowable mercury emissions for the month and

the 12-month rolling period. Section 225.290(a)(5) specifies the quality assurance records that a

source must maintain. Section 225.290(a)(6) provides that an EGU must maintain an electronic

copy of all electronic submittals to the USEPA pursuant to 40 C.F.R. 75.84(f). Section

225.290(a)(7) provides that an EGU must retain all records required by this Section on site,

unless otherwise provided for in the CAAPP permit, and that the EGU will provide copies of any

record to the Agency upon request.

Section 225.290(b) proposes that the owner or operator will submit quarterly reports and

sets forth the information that must be included in such reports. Under Section 225.290(c) the

owner or operator will be required to submit a compliance certification in support of each

quarterly report and sets forth the contents of such certification. Section 225.290(d) requires that

the owner or operator submit an Annual Certification of Compliance to the Agency no later than

May 1 of each year. Subsection (d) also sets forth the contents of such Certification of

Compliance and provides that the Certification of Compliance shall address compliance for the

previous calendar year. Section 225.290(e) requires that the owner or operator promptly notify

the Agency of deviations of requirements of Subpart B, for each EGU. Section 225.290(f)

requires that within 45 days of completing a quality assurance relative accuracy test audit

(RATA) the EGU shall submit the RATA report to the Agency for affected EGUs.

In Section 225.295, the mercury emissions allocation to the state under CAMR must not

be allocated to any EGU or other source of mercury emissions. The Agency must hold all

allowances allocated to the state by USEPA and the Agency shall instruct USEPA to

permanently retire all such allowances at the end of each calendar year.

DISCUSSION

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