RULES AND REGULATIONS
Title 25—ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[ 25 PA. CODE CH. 123 ]
Standards for Contaminants; Mercury Emissions
[40 Pa.B. 6517]
[Saturday, November 13, 2010]
The Environmental Quality Board (Board) amends Chapter 123 (relating to standards for contaminants) to read as set forth in Annex A. The purpose of this final-omitted rulemaking is to rescind the ''state-specific'' requirements to reduce mercury emissions from coal-fired electric generating units (EGUs) with a nameplate rated capacity of more than 25 megawatts that produce electricity for sale as set forth in §§ 123.201—123.215 (Pennsylvania Mercury Rule).
This final-omitted rulemaking rescinds §§ 123.201—123.215, which were approved as final rulemaking by the Board on October 16, 2006, and published at 37 Pa.B. 883 (February 17, 2007).
Notice of proposed rulemaking is omitted under section 204(3) of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. § 1204(3)), known as the Commonwealth Documents Law (CDL). Section 204(3) of the CDL provides that an agency may omit the notice of proposed rulemaking if the agency for good cause finds that the notice of proposed rulemaking procedure is in the circumstances impracticable, unnecessary or contrary to the public interest. Omission of notice of proposed rulemaking for the rescission of the Pennsylvania Mercury Rule is appropriate because the notice of proposed rulemaking procedure in sections 201 and 202 of the CDL (45 P. S. §§ 1201 and 1202) is, in this instance, impracticable, unnecessary and contrary to the public interest. As more fully explained as follows, on December 23, 2009, the Pennsylvania Supreme Court upheld an order which declared the Pennsylvania Mercury Rule invalid. See PPL Generation, LLC v. Department of Environmental Protection, 986 A.2d 48.
This rescission of the regulations was adopted by order of the Board at its meeting of August 30, 2010.
A. Effective Date
This final-omitted rulemaking is effective upon publication in the Pennsylvania Bulletin.
B. Contact Persons and Information
For further information, contact Krishnan Ramamurthy, Chief, Division of Permits, Bureau of Air Quality, 12th Floor, Rachel Carson State Office Building, P. O. Box 8468, Harrisburg, PA 17105-8468, (717) 783-9476; or Robert ''Bo'' Reiley, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the Pennsylvania AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-omitted rulemaking is available electronically through the Department of Environmental Protection's (Department) web site at www.depweb.state.pa.us (Keyword: Public Participation).
C. Statutory Authority
The final-omitted rulemaking is being made under the authority of section 5 of the Air Pollution Control Act (APCA) (35 P. S. § 4005). Section 5(a) of the APCA grants the Board the authority to adopt rules and regulations for the prevention, control, reduction and abatement of air pollution in this Commonwealth.
D. Background of the Amendments
Under section 112(n)(1)(A) of the Clean Air Act (CAA) (42 U.S.C.A. § 7412(n)(1)(A)), Congress directed the United States Environmental Protection Agency (EPA) to perform a study of the hazards to public health reasonably anticipated to occur as a result of emissions of hazardous air pollutants (HAPs) by EGUs. Under this same subparagraph, the EPA is further directed to regulate EGUs if the EPA finds that regulation is appropriate and necessary after considering the results of the study.
On February 28, 1998, the EPA fulfilled its statutory obligation, under section 112(n)(1)(A) of the CAA, when it released its ''Study of Hazardous Air Pollutant Emissions from Electric Steam Generating Units—Final Report to Congress.''
On December 20, 2000, the EPA concluded, based upon the findings of its 1998 report and on information subsequently obtained, that in accordance with section 112(n)(1)(A) of the CAA, the regulation of mercury emissions from electric utilities was ''appropriate and necessary.'' See 65 FR 79825. As a result of these findings, the EPA added these units to the list of source categories to be regulated under section 112(c) of the CAA. The EPA was then required to establish emission standards for this source category under section 112(d) of the CAA.
On August 9, 2004, Citizens for Pennsylvania's Future, PennEnvironment, Pennsylvania Federation of Sportsmen's Clubs, Pennsylvania NOW, Pennsylvania State Building and Construction Trades Council, Pennsylvania Trout, Planned Parenthood Pennsylvania Advocates, Sierra Club Pennsylvania Chapter, Women's Law Project and WomenVote PA filed a petition for rulemaking under Chapter 23 (relating to Environmental Quality Board policy for processing petitions—statement of policy) requesting that the Board adopt regulations to reduce mercury emissions from EGUs in this Commonwealth.
On March 29, 2005, the EPA published a final rule entitled ''Revision of December 2000 Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Utility Steam Generating Units and the Removal of Coal- and Oil-Fired Electric Utility Steam Generating Units From the Section 112(c) List.'' See 70 FR 15994. As a result of this conclusion, the EPA removed coal- and oil-fired EGUs from the section 112(c) list.
On March 15, 2005, the EPA finalized the Clean Air Mercury Rule (CAMR). The final rulemaking, published on May 18, 2005, established standards of performance for mercury for new and existing coal-fired EGUs, as defined in section 111 of the CAA (42 U.S.C.A. § 7411). See 70 FR 28606. The CAMR establishes a ''cap-and-trade'' program by which mercury emissions from new and existing coal-fired EGUs are capped at specified, Nationwide levels.
In response to CAMR and associated EPA actions, on May 18, 2005, petitions for review challenging these final EPA actions were filed with the United States Court of Appeals for the D.C. Circuit. In addition to the Commonwealth, state challengers included California, Connecticut, Delaware, Illinois, Maine, Massachusetts, New Hampshire, New Mexico, New Jersey, New York, Rhode Island, Vermont and Wisconsin. The petitions for review asserted that the Delisting Rule did not follow the procedures in section 112(c)(9) of the CAA for removing a pollution source from section 112 of the CAA (namely, oil- and coal-fired EGUs).
Section 111(c) and (d) of the CAA requires each state to develop and submit to the EPA Administrator a procedure for implementing and enforcing the new source performance standards for new sources and emission guidelines for existing sources.
The proposed Pennsylvania Mercury Rule was published at 36 Pa.B. 3185 (June 24, 2006) for a 60-day comment period. The final Pennsylvania Mercury Rule was approved by the Board on October 16, 2006, and adopted as final on February 16, 2007, effective February 17, 2007. See 37 Pa.B. 883. The Commonwealth chose to implement the CAMR through the Pennsylvania Mercury Rule.
On February 8, 2008, in New Jersey v. Environmental Protection Agency, 517 F.3d 574, 380 (D.C. Cir. 2008), the D.C. Circuit Court agreed with the Commonwealth's position, finding that the plain language of section 112 of the CAA required that the EPA satisfy the requirements of section 112(c)(9) of the CAA prior to removing a pollution source from section 112 of the CAA. The D.C. Circuit Court further observed that the EPA conceded that it had never made the findings that section 112(c)(9) of the CAA would require it to delist oil- and coal-fired EGUs. Thus, the D.C. Circuit Court determined that the Delisting Rule was unlawful and vacated it, the effect of which was that EGUs remain listed under section 112 of the CAA. The D.C. Circuit Court also found that once the Delisting Rule was declared invalid, CAMR no longer had a legal basis and the Court vacated CAMR as well.
On September 15, 2008, PPL Generation, LLC, PPL Montour, LLC and PPL Brunner Island, LLC filed a petition for review in the Commonwealth Court's original jurisdiction, challenging the validity of the Pennsylvania Mercury Rule.
On January 30, 2009, the Commonwealth Court issued an order that invalidated the Pennsylvania Mercury Rule. The Commonwealth Court reasoned that because the D.C. Circuit Court found that the Delisting Rule and CAMR were void ab initio (from the beginning, rather than from when the D.C. Circuit Court had declared them void), EGUs will be deemed to have been always listed.
On February 6, 2009, the Acting United States Solicitor General filed a motion on behalf of the EPA to dismiss a petition for certiorari pending before the United States Supreme Court, which appealed the D.C. Circuit Court decision in New Jersey. That motion to dismiss stated that after the certiorari petition was filed, the EPA decided to act in conformity with the D.C. Circuit Court's decision in New Jersey and to develop standards regulating power plant mercury emissions under section 112 of the CAA.
On appeal by the Commonwealth, on December 23, 2009, the Pennsylvania Supreme Court affirmed the Commonwealth Court order. The Pennsylvania Supreme Court noted that once the Delisting Rule was found to have no validity, the authorization and legal predicate for the Pennsylvania Mercury Rule ceased to exist.
On April 15, 2010, the United States District Court for the District of Columbia approved a consent decree that requires the EPA to propose technology-based standards to control emissions of mercury and other air toxics from fossil fuel-fired EGUs by March 2011 (American Nurses Ass'n v. Jackson, D.D.C., No. 08-02198, consent decree entered April 15, 2010). A final rule must be issued by November 16, 2011. This final rule will take the place of CAMR, which was vacated by the D.C. Circuit Court of Appeals. Additionally, the requirements under this final rule will be adopted in their entirety and incorporated by reference in Chapter 122 (relating to national standards of performance for new stationary sources). Therefore, at a minimum, fossil-fuel-fired EGUs operating in this Commonwealth will be subject to those standards.
E. Benefits, Costs and Compliance
This final-omitted rulemaking merely complies with the Pennsylvania Supreme Court decision in PPL Generation, LLC v. Department of Environmental Protection.
This final-omitted rulemaking will not require additional costs for compliance.
Compliance Assistance Plan
This final-omitted rulemaking will not require a compliance assistance plan.
Additional paperwork will not be required as a result of this final-omitted rulemaking.
F. Regulatory Review
Under section 5.1(c) of the Regulatory Review Act (71 P. S. § 745.5a(c)), on September 17, 2010, the Department submitted a copy of the final-omitted rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees. On the same date, the final-omitted rulemaking was submitted to the Office of Attorney General for review and approval under the Commonwealth Attorneys Act (71 P. S. §§ 732-101—732-506).
Under section 5.1(j.2) of the Regulatory Review Act, on October 20, 2010, the final-omitted rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on October 21, 2010, and approved the final-omitted rulemaking.
The Board finds that:
(1) The amendments as set forth in Annex A are appropriate to rescind the Pennsylvania Mercury Rule.
(2) Use of the omission of notice of proposed rulemaking procedure is appropriate because the notice of proposed rulemaking procedure in sections 201 and 202 of the CDL is, in this instance, impracticable, unnecessary and contrary to the public interest. The Pennsylvania Mercury Rule has been vacated by a State court order, necessitating prompt rescission.
(3) This final-omitted rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in section C of this preamble and in the public interest.
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 123, are amended by deleting §§ 123.201—123.215 to read as set forth in Annex A.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form as required by law.
(c) The Chairperson of the Board shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 6487 (November 6, 2010).)
Fiscal Note: 7-465. No fiscal impact; (8) recommends adoption.
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE III. AIR RESOURCES
CHAPTER 123. STANDARDS FOR CONTAMINANTS
STANDARDS FOR CONTAMINANTS
§§ 123.201—123.215. (Reserved).
[Pa.B. Doc. No. 10-2137. Filed for public inspection November 12, 2010, 9:00 a.m.]
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