Part 246 General Provisions Assessment of Public Comments Summary
The Department has received thousands of comments concerning the regulatory schedule for implementing Part 246's emission limitations and standards for coal fired electric generating units (EGUs). Some commenters stated simply that the Department should finalize a regulation requiring power plants to reduce mercury emissions by 2010. Some commenters stated that the Department should reduce emissions 90 percent by 2010 to protect the general health and welfare of humans and the environment. Other commenters express the view that the Department should finalize a regulation requiring power plants to reduce their mercury emissions by 90 percent by 2010 due to the adverse impacts of mercury on public health and the contamination of fish and wildlife and water bodies. Some commenters have stated that the Department's docket letter submitted to the EPA for the proposed National Emission Standard for Hazardous Air Pollutant (NESHAP) expressed the view that the NESHAP emission limits must be implemented within three years to comply with the Clean Air Act's Section 112 provisions for establishing Maximum Achievable Control Technology Standards (MACT). Other commenters have noted that some States are requiring 90 percent reductions in a timeframe more consistent with the MACT standard and so should New York.
The Department is anxious to reduce mercury emissions from coal-fired EGUs and believes a strict emission limit that will achieve an overall 90 percent reduction in mercury emissions is both necessary and feasible. The Department does not, however, believe this level of reduction can be achieved by 2010 for New York facilities. While the Department disagrees with the United States Environmental Protection Agency's (EPA) interpretation of Section 112 of the Clean Air Act (CAA), and the State is challenging that interpretation in federal court, the intent of Section 112 of the CAA is irrelevant to this rulemaking. The responsibility to establish appropriate National Emission Standards for Hazardous Air Pollutants (NESHAP) and/or standards of performance for new sources rests squarely with EPA, not the Department, and EPA has determined that mercury from coal-fired EGUs should be regulated pursuant to Section 111 of the Act, not Section 112. The purpose of this rulemaking is to address the problem of mercury emissions in New York State, while at the same meeting the State's obligations under the federal Clean Air Mercury Rule (CAMR).
The Department is promulgating Part 246 pursuant to its statutory authority under the New York State Environmental Conservation Law (ECL). Part 246 will fulfill New York's obligation under CAMR but Part 246 will be significantly more protective of the public health and welfare of the people of the State than the federal rule. Neither CAMR, nor the ECL, imposes a three year deadline to implement the Phase II mercury emission limit in Part 246. This is important because the Phase II emission limits represent substantial reductions in mercury emissions over and above CAMR, and are more ambitious than any NESHAP or New Source Performance Standard (NSPS) EPA has proposed. The Department, taking into account all relevant statutory and regulatory considerations, reached a different determination with respect to the Part 246 Phase II emission limit.
The need to reduce mercury emissions into the atmosphere has never been in doubt. Nor is there any question that coal-fired EGUs throughout New York State continue to emit significant quantities of mercury (Hg), estimated to total 21.6 percent of the State's total anthropogenic mercury emissions from stationary sources. These emissions impact the State's natural resources, as well as the health and welfare of New Yorkers, and pose a significant public health hazard, especially for children and pregnant women. Although the Department believes that effective nationwide control of mercury emissions can only be achieved through strict federal standards, we recognize that EPA's rules fall far short of providing adequate protection and are now moving forward with State regulations to reduce mercury emissions.
In determining the optimal schedule for implementing Part 246 emission reductions, the Department, as required by the ECL and SAPA, had to consider, along with the environmental and public health benefits of the rule, the impact of the rule on regulated entities. Specifically, the Department considered a number of relevant technical, economic, and regulatory factors, including: the feasibility of the 0.6 lb of mercury per TBtu emission limit; the extensive retrofit and reconfiguration of existing facilities that will be needed to achieve compliance with the 0.6 lb of mercury per TBtu emission limit; other State and Federal regulations that will come into effect during the same timeframe as Part 246; and the need for reliable supplies of electricity in the State.
The Department's decision with respect to the implementation of the 0.6 lb of mercury per trillion Btu (0.6 lb Hg/1012 Btu) emission limit is driven in part by the stringency of the standard. For example, compared to the New Source Performance Standard promulgated by EPA of 2.0 lb of mercury per trillion Btu for electric generating units firing bituminous coal, Part 246's Phase II emission limit of 0.6 lb/1012 Btu is significantly more stringent. Under the former standard, total mercury emissions from coal-fired utilities would be 500 lbs per year based upon the average fuel firing from 2000 to 2004; under the Phase II emission limit, emissions would be 150 lbs per year. Unlike CAMR, which allows facilities to emit mercury in excess of applicable emission limits by purchasing allowances, Part 246 requires facilities to achieve strict compliance with applicable emission limits. DEC recognizes that none of the eleven existing coal-fired EGUs currently operating in the State, or the two units that are on "cold standby", can meet the Phase II emission limit with existing pollution control equipment or by switching from bituminous to sub-bituminous coal. These facilities will need to substantially reduce emissions of SO2, NOx and/or Particulate Matter, from current baseline levels and control these pollutants on an on-going basis in order to achieve compliance with the Phase II mercury emission limit.
The Department believes the 0.6 lb Hg/1012 Btu limit is feasible, however, at the present time it is only being achieved by select facilities that have installed state of the art pollution control equipment within the past several years. The Department of Energy has funded demonstration studies/pilot projects at numerous coal-fired EGUs utilizing a variety of coal types, boiler types, control equipment testing the efficacy of mercury control technology by utilizing activated carbon, oxidation catalysts, advanced baghouse configurations, and implementing new continuous emission monitoring technology for the measurement of mercury. Trial studies involving slipstream tests and some full scale testing on a relatively short term basis have demonstrated significant reductions in mercury, but one of the most important aspects of the testing to date is that each electric utility is unique and one technology will not fit all scenarios. The most promising reductions were found using brominated activated carbon injection and subbituminous coal in achieving 90 percent mercury removal with varying particle control devices. But this does not represent the technology currently employed in New York and New York's facilities will need to make changes to their particle control devices to achieve similar results. The excellent work done by the Department of Energy's National Energy Testing Laboratory (DOE/NETL) has shown that technology does exist and can be utilized at electric utilities but plant operators and owners need to begin testing and implementing control strategies to determine which technology will work at their plant.
Part 246 is one of several regulations affecting electric generating units that will be implemented in the 2009-2015 timeframe and overlap in terms of affected pollutants. The Clean Air Interstate Rule (CAIR), Regional Greenhouse Gas Initiative (RGGI), State Acid Deposition rules and the next generation particulate regulations, which are based upon the required State Implementation Plan for PM2.5, are being implemented on roughly the same schedule as Part 246. Each of these rules imposes significant and substantive requirements in terms of emission limitations and reduction targets, continuous emission monitoring and recordkeeping requirements. Since several rules target the same pollutants, most facilities will need to undertake construction projects to install state-of-the-art pollution control equipment and/or emission monitoring equipment. Most of the construction work will need to occur during non-peak operating periods (Spring and Fall) to avoid straining the electric generating system during peak operating periods (Summer cooling season and Winter heating season).
The Department believes it is essential for regulated entities to have a consistent timeframe for meeting these overlapping regulatory requirements to ensure compliance and reliability in the supply of electricity. Accordingly, in setting an effective date for the Phase II emission limits, the Department made a deliberate effort to ensure that the implementation of Part 246 requirements coordinated with other regulations. The second phase of Part 246 commences in 2015 in conjunction with both RGGI and the second phase of CAIR.
The significant reductions in emissions that will occur as a result of the implementation of Part 246 will produce significant environmental benefits for the State, including reducing mercury concentrations in fish. The consumption of sport fish is a significant exposure pathway.
Some commenters stated that most of the mercury emissions from electric generating facilities that remain after implementation of CAIR and CAMR are in the form of elemental mercury, which will not deposit in New York. The commenters state that CAIR will reduce reactive gas mercury (RGM) which can act more like a particle. As a result, deposition in New York is unlikely to change very much from increasing the reduction requirement from 70 percent to 90 percent because only elemental mercury remains after CAIR implementation. The Department finds this statement to be inaccurate. Part 246 is reducing the mass of mercury emissions and will require EGUs to capture more mercury than CAIR or CAMR would require, elemental mercury or RGM. The Department contends that the Northeast States are a hot-spot for the deposition of mercury based upon fish sampling the Department has conducted over the last thirty years.
Some commenters expressed the concern that a number of other states have finalized plant-specific mercury limits in a timeline more consistent with the MACT standard, and others are in the process of doing so. The Department does not believe it is appropriate to compare various States in terms of their mercury reduction programs. First, not all States are starting from the same baseline of mercury emissions per trillion Btu of heat input, (coal burned). Second, the number of affected facilities differs greatly in size, pollution control equipment and number of steam generating units per facility. Third, some affected facilities in other States have actively pursued Department of Energy grants and assistance.
Some commenters stated the Department was not clear on how mercury emissions were distributed to affected EGUs. The Department divided New York State's annual mercury budget of 786 pounds among the eleven currently operating coal-fired utilities, reserving a "set aside" of 40 pounds for new units and existing units on cold-standby, to establish an annual mercury emission limit. The Department created a mercury emission cap for each electric steam generating facility (Mercury Reduction Program Facility) according to the procedure used in the CAMR model rule. The Department opted to use the more conservative method in 40 CFR 60.4142 to establish the facility-specific emission caps.
Some commenters claimed that by not requiring 90 percent reduction by 2010, the Department will allow an additional 3000 pounds of mercury during the time period between 2010 and 2014. The Department does not believe that an additional 3000 pounds of mercury will be emitted. The Department estimates the annual emission rate from coal-fired EGUs to be approximately 600 pounds per year in 2000 to 2014. Affected facilities will need to start construction of any needed pollution control equipment some time prior to 2015 to allow ample time to build, test, and trouble shoot their pollution control systems. It is more likely that a facility would be at the 90 percent emission rate prior to 2015, in 2014 for example, rather than 2015. Therefore, while the potential excess mercury emissions from 2010 to 2014 could be 3000 pounds, the actual mercury emissions are expected to be closer to 1800 - 2000 pounds for the time period between 2010 to December 31, 2014. ((600 lb/yr -150)*4 years).
The Department determined the significance of this rulemaking action in accordance with SEQRA and the Department's implementing regulations at 6 NYCRR Part 617. The promulgation of Part 246 implicates none of the indicators of significant adverse impacts in 6 NYCRR 617.7(b), which include, a substantial adverse change in air or water quality or the creation of a hazard to human health. The adoption of Part 246 will have a significant positive impact on the environment by substantially reducing the amount of mercury emitted by coal-fired EGUs, one of the largest emitting source categories in the State.
The Department is revising the requirement for inlet testing in section 246.3(b)(2) to allow for fuel sampling. The second stack test requirement is intended to be satisfied with the stack testing requirements in the Relative Accuracy Test Audit (RATA) procedures in Part 75 or the low mass emission testing requirements of 40 CFR Subpart I.
Some commenters contend that the monitoring technology may be valid with respect to a cap-and-trade program but is not valid for Part 246, which establishes definite emission limitations. The Department disagrees. Control strategies employed in New York State will generate flue gas environments no different than any other state where a monitoring program and its associated monitoring systems are required. Part 246 will require the same level of sensitivity as those facilities participating in the federal cap-and-trade program under CAMR. EPA is confident that the CAMR monitor certification will be met, and the Department agrees. Part 246 and 40 CFR Part 75 also allow for alternate monitoring techniques such as sorbent trap monitoring, if CEMs do not appear appropriate for a particular facility. Also, the low emitter exemption is available for facilities using technology to reduce mercury. Existing EGUs have eight years until they will be required to meet the 0.6 lbs of mercury per trillion Btu limit (lbs Hg/1012 Btu) or a stack concentration of 0.6 µg/m3.
In response to comments in connection with emission reporting, the Department has revised Part 246 to state "12 month rolling total, rolled monthly, reported quarterly." The Department has revised the Phase II emission standard to reflect a facility-wide 30-day rolling average, rolled daily, reported quarterly.
The Department established the 0.6 lb/1012 Btu standard based in part on the Proposed National Emission Standards for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units; Proposed Rule, 69 FR 4652 - 4752 (January 30, 2004). In this proposal, EPA established a new source performance standard of 0.6 lb/1012 Btu for bituminous coal and 2.0 lb/1012 Btu for subbituminous coal. According to the ICR, New York State's average emission rate was 6.26 lb/1012 Btu. The Department determined that a 0.6 lb/1012 Btu emission limit was appropriate based upon the federal new source performance standard.
Commenters questioned the availability and reliability of continuous emission monitoring systems to meet the requirements of Part 246. Part 246 offers two mass emission monitoring options, continuous emission monitoring systems (CEMs) and sorbent trap monitoring systems. In addition, for those units that qualify for low mass emissions under 40 CFR 75 Subpart I, periodic emission testing to quantify mercury emissions will be required.
The Department believes that continuous emission monitor systems have been field tested and are currently available for field deployment and have sensitivities well below the future, Phase II Part 246 limit equivalent concentrations of 0.6 µg/scm (wet). In addition to CEMS, sorbent trap monitoring systems with ultimate analysis utilizing ambient air analyzers have the ability to monitor average mercury mass emissions over a time period of well below 0.1 µg/scm. Part 246 will require the same level of sensitivity as those facilities participating in the federal cap-and-trade program under CAMR. EPA is confident that the CAMR monitor certification deadline will be met, and the Department agrees.
Jamestown BPU commented that the Department's cost estimates were inaccurate. The Department used all appropriate and available cost and operational information regarding the Jamestown S. A. Carlson generating station to develop specific cost estimates for annual financial impact and incremental costs on generation. The Department believes the cost estimates for an activated carbon injection system under different carbon injection rates used in the RFA are most appropriate as a carbon injection system's capital cost is not scaled on electrical generation in the same fashion traditional air pollution control devices are.
The cost range provided in the Regulatory Flexibility Analysis estimates the additional cost of generation over the four boilers and two generators subject to Part 246. The incremental cost of generation is based on the purchase and operation of an ACI system in conjunction with the facility's existing pollution control equipment. To enable Jamestown and other facilities to target the most economically feasible units for mercury control, the Department is modifying Part 246 to allow the Phase II emission standard to be a facility-wide 30-day rolling average, rolled daily, reported quarterly.
The set-aside of 40 pounds would be in effect until December 31, 2014. At this time, the Department is aware of the installation of 43 MW of additional electric generating capacity by Jamestown and NRG announced the development of a 600 MW clean coal project in June of 2006 with an expected operational date of 2014. Two additional existing sources are on cold stand-by and equated to less than 1 pound of mercury emissions if they operated at their 2000 levels or 12 pounds if they operated at faceplate capacity for 8,760 hours a year, an unlikely scenario. Even with these two announced projects that could commence operation during Phase I, the Department is certain that neither the new source set aside nor the State's annual will be exceeded. After 2014, all existing facilities and new projects would need to meet the Phase II emission limit for mercury.
EPA sent a number of comments concerning Part 246 definitions and applicability criteria. The Department is revising Part 246 as a result of some comments submitted by EPA. None of these changes are substantial or significant and all are discussed in detail in the response to comments. The Department is complying with the minimal requirements of CAMR but is not adopting a cap-and-trade program.
