{
D0000414.
DOC
/
1}
July
18,
2005
Stephen
Johnson,
Administrator
USEPA
Headquarters
Ariel
Rios
Building
1200
Pennsylvania
Avenue,
N.
W.
Mail
Code:
1101A
Washington,
DC
20460
Re:
Standards
of
Performance
for
New
and
Existing
Stationary
Sources:
Electric
Utility
Steam
Generating
Units/
OAR­
2002­
0056
­
Request
for
Clarification
and/
or
Reconsideration
of
the
Jamestown
Board
of
Public
Utilities______________________

Dear
Administrator
Johnson:

The
Jamestown
Board
of
Public
Utilities
(
JBPU)
hereby
requests
clarification
and/
or
reconsideration
from
the
Administrator
of
the
United
States
Environmental
Protection
Agency
(
EPA)
regarding
the
applicability
definitions
of
the
rule
captioned
above
and
published
at
70
Fed.
Reg.
28,606
(
May
18,
2005)(
hereinafter
Final
Utility
Rule).
The
Final
Utility
Rule
inappropriately
extends
the
definition
of
covered
units
under
40
C.
F.
R.
§
60.4101
(
2005)
to
"
unit[
s]
serving
at
any
time,
since
the
start­
up
of
a
unit's
combustion
chamber,
a
generator
with
nameplate
capacity
of
more
than
25
MWe
producing
electricity
for
sale."
70
Fed.
Reg.
at
28,612.
The
applicability
definition
is
inconsistent
with
the
applicability
definition
of
Section
112(
n)(
1)(
A)
of
the
Clean
Air
Act
(
CAA),
the
applicability
definitions
used
throughout
the
information
gathering
stage
of
{
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DOC
/
1}
2
the
Utility
rulemaking,
the
Section
112(
n)(
1)(
A)
Report
to
Congress
and
the
first
phase
of
the
Utility
rulemaking.
Further,
in
violation
of
EPA
precedent
and
EPA's
statements
in
this
rulemaking,
EPA's
expanded
definition
of
covered
units
subjects
certain
small
municipal
generators,
such
as
the
JBPU,
to
both
the
Industrial,
Commercial
and
Institutional
Boiler
MACT
(
Boiler
MACT)
and
the
Final
Utility
Rule.

EPA's
extension
of
the
Final
Rule
to
cover
small
municipal
boilers
that
are
already
covered
by
the
Boiler
MACT
in
the
last
stages
of
the
Utility
rulemaking
also
violates
the
Unfunded
Mandates
Reform
Act
(
UMRA).
Throughout
the
Utility
Report
to
Congress
and
rulemaking
process,
utility
boilers
equal
to
or
less
than
25
MWE
(
such
as
the
JBPU's
units)
were
not
within
the
definition
of
a
covered
unit
and
instead
were
covered
by
the
Boiler
MACT.
These
units
were
not
involved
in
the
public
outreach
or
the
regulatory
impact
analysis
for
the
Utility
rulemaking.
Further,
at
the
supplemental
proposed
rule
stage
of
the
Utility
rulemaking,
when
it
first
appeared
that
a
small
number
of
municipal
units
already
subject
to
Boiler
MACT
could
also
be
subject
to
the
Final
Utility
Rule,
the
American
Public
Power
Association1
requested
additional
outreach
to
these
small
municipal
entities.
Despite
this,
the
JPBU
is
unaware
of
any
EPA
response
to
APPA's
request.
Instead,
EPA,
in
violation
of
Section
112(
n)(
1)(
A)
of
the
Clean
Air
Act
and
its
own
precedent
and
statements,
has
subjected
the
JBPU
to
not
only
the
Final
Utility
Rule
(
with
very
limited
notice
and
virtually
none
of
the
outreach
required
by
UMRA),
but
also
to
the
Boiler
MACT.

1
The
American
Public
Power
Association
(
APPA)
is
the
service
organization
for
the
nation's
more
than
2,000
community­
owned
electric
utilities
that
serve
more
than
43
million
Americans.
The
JBPU
is
a
member
of
the
APPA.
{
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DOC
/
1}
3
The
JBPU
requests
clarification
that
it
should
be
subject
to
only
one
rule
and
that
the
appropriate
rule,
consistent
with
the
requirements
of
CAA
Sections
112
and
112(
n)(
1)(
A),
and
EPA's
longstanding
position
in
the
Utility
rulemaking
and
the
Boiler
MACT
rulemaking,
is
the
Boiler
MACT
Rule.
To
the
extent
necessary,
the
JBPU
requests
reconsideration
pursuant
to
Section
307(
d)(
7)(
B)
of
the
Clean
Air
Act,
42
U.
S.
C.

§
7607(
d)(
7)(
B)
of
the
Final
Utility
Rule
captioned
above
and
published
at
70
Fed.
Reg.

28,606.
(
May
18,
2005).
As
discussed
below,
the
issues
presented
are
important
to
the
rulemaking
and
to
EPA's
stated
policy
that
units
only
be
subject
to
either
the
Final
Utility
Rule
or
Boiler
MACT,
and
so
legally
deficient
that
EPA
has
an
obligation
to
re­
examine
these
issues
as
part
of
its
affirmative
"
burden
of
promulgating
and
explaining
a
nonarbitrary
non­
capricious
rule,"
Small
Refiner
Lead
Phase­
Down
Task
Force
v.
EPA,
705
F.
2d
506,
534­
35
(
D.
C.
Cir.
1983)
(
quoting
National
Lime
Ass'n
v.
EPA,
627
F.
2d
416,

433
(
D.
C.
Cir.
1980),
and
therefore
EPA
must
grant
reconsideration
on
these
grounds.

See
also
Appalachian
Power
Co.
v.
EPA,
135
F.
3d
791,
818
(
D.
C.
Cir.
1998).
The
Administrator
must
therefore
either
provide
clarification
or
"
convene
a
proceeding
for
reconsideration
of
the
rule
and
provide
the
same
procedural
rights
as
would
have
been
afforded
had
the
information
been
available
at
the
time
the
rule
was
proposed."
42
U.
S.
C.

§
7607(
d)(
7)(
B)
(
2000).

Jamestown
Board
of
Public
Utilities
The
JBPU
is
a
small
municipally­
owned
generating
utility
in
western
New
York.

The
JBPU
owns
a
single
generating
facility,
the
Samuel
Carlson
Generating
Station.
The
Carlson
Generating
Station
consists
of
four
coal­
fired
boilers,
which
provide
power
to
a
{
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DOC
/
1}
4
variety
of
industries,
commercial
enterprises
and
residences
in
the
Jamestown
area.
2
Each
of
Jamestown's
coal­
fired
boilers
individually
generates
less
than
25
MWe.
All
of
the
boilers
feed
into
a
common
steam
header
which
feeds
generators
that
are
below
25
MWe.

In
the
past,
however,
the
JBPU's
boilers
have
fed
generators
that
were
at,
or
just
barely
above,
25
MWe.
In
the
past,
one
generator
was
rated
at
25
MWe,
and
the
other
was
rated
at
28.75
MWe.

Thus,
the
JBPU's
boilers
are
not
currently
and
have
never
been
rated
at
or
above
25
MWe.
The
JBPU's
generators
are
also
currently
not
rated
at
or
above
25MWe.

However,
in
the
past
the
JBPU's
boilers
have
served
generators
at,
or
just
above,
25
MWe
(
25
MWe
and
28.5
MWe).

Background
History
of
the
Mercury
Rulemaking
EPA's
authority
in
Utility
rulemaking
originates
from
CAA
Section
112(
n)(
1)(
A),

which
requires
EPA
to
study
and
determine
whether
MACT
regulation
is
appropriate
for
"
electric
utility
steam
generating
units."

CAA
Section
112(
a)(
8)
defines
an
electric
utility
steam
generating
unit
as
"
any
fossil
fuel
fired
combustion
unit
of
more
than
25
megawatts
that
serves
a
generator
that
produces
electricity
for
sale."
42
U.
S.
C.
§
7412(
a)(
8)
(
2000).
Because
the
JBPU's
2
The
JBPU
also
owns
a
single
gas
turbine.
{
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DOC
/
1}
5
boilers
are
not
more
25
MWe,
the
JBPU
was
not
included
in
the
definition
of
covered
units
for
the
CAA
§
112(
n)(
1)(
A)
Report
to
Congress
and
the
rulemaking
process
under
Section
112(
n)(
1)(
A).
The
Report
to
Congress
required
by
Section
112(
n)(
1)(
a)

addressed
only
"
fossil­
fuel­
fired
combustion
unit[
s]
of
more
than
25
megawatts
electric
(
MWe)
that
serves
a
generator
that
produce[]
electricity
for
sale."
Final
Report
to
Congress,
Executive
Summary
at
ES­
1.
Similarly,
in
the
1998
informational
survey
that
formed
the
basis
for
the
rulemaking,
only
units
covered
by
Section
112(
n)(
1)(
A)
were
included.
Jamestown
was
not
involved
in
the
survey.

When
the
Proposed
Utility
Rule
was
issued,
it
covered
only
CAA
Section
112(
n)(
1)(
A)
units.
69
Fed.
Reg.
4652
(
Jan.
30,
2004).
The
JBPU
was
not
covered
by
the
Proposed
Rule.
The
UMRA
and
Regulatory
Flexibility
Analysis
(
RFA)
associated
with
the
Proposed
Rule
similarly
did
not
include
the
JBPU.
Regulatory
Flexibility
Analysis,
Section
7.16.1
(
p.
7­
30),
Table
7­
35.

In
the
Supplemental
Proposed
Utility
Rule,
EPA,
for
the
first
time,
expanded
the
definition
of
covered
units
to
include
a
"
coal­
fired
combustion
unit
that
serves
a
generator
of
more
than
25
MW
that
produces
electricity
for
sale."
Proposed
Rule,
69
Fed.
Reg.
12,397,
12,441
(
Mar.
16,
2004).
EPA
stated
that
the
change
would
be
applicable
only
to
units
regulated
under
Section
112(
n)(
1)(
A),
despite
the
fact
that
Section
112(
n)(
1)(
A)
addressed
only
boilers
above
25
MWe,
not
generators
above
25
MWe.
Although
the
JBPU's
generators
are
not
rated
at
more
that
25
MWe,
EPA
nonetheless
appeared
to
include
the
JBPU
at
this
stage
of
the
rulemaking.
The
JBPU
assumes
that
it
was
included
because
the
JBPU
had,
in
the
past,
run
generators
at,
or
{
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/
1}
6
slightly
above,
25
MWe.
The
JBPU,
however,
was
unable
to
find
any
explicit
statements
in
the
Supplemental
Proposed
Rule
that
the
25MWe
cutoff
was
based
on
an
historic
rating
number.

In
the
Final
Utility
Rule,
EPA
further
expanded
the
reach
of
the
rule
to
include
"
unit[
s]
serving
at
any
time,
since
the
start­
up
of
the
unit's
combustion
chamber,
a
generator
with
nameplate
capacity
of
more
than
25
MWe
producing
electricity
for
sale."

70
Fed.
Reg.
at
28,612
(
to
be
codified
at
40
C.
F.
R.
§
60.4101).
Thus,
the
Final
Utility
Rule
included
not
only
units
that
served
generators
which,
at
the
time
of
the
rulemaking
were
more
than
25
MWe
(
which
did
not
include
the
JBPU),
but
also
units
that
had
at
any
time
served
a
generator
more
than
25
MWe.
The
applicability
provision
was
extended
under
both
CAA
Sections
112
and
111.
Because
the
JBPU's
boilers
in
the
past
served
generators
that
were
at,
or
slightly
above,
25
MWe,
the
JBPU
is
subject
to
the
Final
Utility
Rule.

Boiler
MACT
Consistent
with
CAA
Sections
112
and
112(
n)(
1)(
A),
the
Boiler
MACT
covers
industrial,
commercial
and
institutional
boilers
and
process
heaters
that
are
not
covered
by
CAA
Section
112(
n)(
1)(
A).
Specifically,
Boiler
MACT
covers
industrial,
commercial
and
institutional
boilers
and
process
heaters
at
major
facilities
except
for,
inter
alia:

An
electric
utility
steam
generating
unit
that
is
a
fossil
fuel­
fired
combustion
unit
of
more
than
25
megawatts
that
serves
a
generator
that
produces
electricity
for
sale.
A
fossil
fuel­
fired
unit
that
cogenerates
steam
and
electricity,
and
supplies
more
than
one­
{
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DOC
/
1}
7
third
of
its
potential
electric
output
capacity,
and
more
than
25
megawatts
electrical
output
to
any
utility
power
distribution
system
for
sale
is
considered
an
electric
utility
steam
generating
unit.

40
C.
F.
R.
§
63.7491(
c)
(
2005).
Because
the
JBPU's
boilers
are
not
greater
than
25Mwe,

it
is
not
subject
to
the
above
exemption.
Consequently,
the
JBPU
is
covered
by
the
Boiler
MACT
in
addition
to
the
Final
Utility
Rule.

Argument
Inclusion
of
the
JBPU
in
the
Boiler
MACT
and
the
Final
Utility
Rule
Violates
EPA
Precedent
and
EPA's
Statements
in
the
Utility
and
Boiler
MACT
Rulemakings
that
Electric
Utility
Steam
Generating
Units
under
CAA
§
112(
n)(
1)(
A)
Would
Not
Be
Subject
to
Both
the
Final
Utility
Rule
and
Boiler
MACT.

EPA's
inclusion
of
small
municipal
boilers,
such
as
the
JBPU,
in
both
the
Final
Utility
Rule
and
the
Boiler
MACT
violates
EPA
precedent
and
EPA's
statements
in
this
rulemaking
that
units
would
not
be
subject
to
both
the
Final
Rule
and
the
Boiler
MACT.

EPA
has
consistently
stated
that
units
should
not
be
subject
to
two
MACT
rules.

In
the
Boiler
MACT,
EPA
reiterated
that
units
would
not
be
subject
to
both
the
Boiler
MACT
and
the
utility
rulemaking.
In
the
Boiler
MACT,
EPA
stated
that:

The
final
rule
regulates
source
categories
covering
industrial
boilers,
institutional
and
commercial
boilers,
and
process
heaters.
These
source
categories
potentially
include
combustion
units
that
are
already
regulated
by
other
MACT
standards.
Therefore,
we
are
excluding
from
the
final
rule
any
combustion
units
that
are
already
or
will
be
subject
to
regulation
under
another
MACT
standard
.
.
.
Electric
utility
steam
generating
units
are
not
subject
to
the
final
rule.
{
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/
1}
8
69
Fed.
Reg.
55,218,
55,220
(
Sept.
13,
2004)
(
emphasis
supplied)
.
Throughout
the
Utility
rulemaking,
EPA
has
stated
that
units
would
not
be
subject
to
both
the
Final
Rule
and
the
Boiler
MACT.
Proposed
Rule,
69
Fed.
Reg.
4652,
4657
(
Jan.
30,
2004)
(
The
Boiler
MACT
regulations
do
not
apply
to
Utility
units,
which
are
regulated
"
under
CAA
Section
112(
n)(
1)(
A)
.
.
.
because
Section
112(
n)(
1)(
A)
is
uniquely
applicable
to
Utility
Units
as
defined
in
the
CAA.")

In
the
Final
Rule,
EPA
reiterated
that
it
thought
it
had
resolved
the
issue
of
units
potentially
covered
by
both
Boiler
MACT
and
the
Final
Utility
Rule.
The
Final
Utility
Rule
states
that:

Because
of
the
similarities
in
the
design
and
operational
characteristics
of
the
units
that
would
be
regulated
by
the
different
combustion
rules,
there
are
situations
where
coal­
fired
units
potentially
could
be
subject
to
multiple
rules.
An
example
of
this
situation
would
be
cogeneration
units
that
are
covered
under
the
proposed
IB
[
Boiler]
rule,
potentially
meeting
the
definition
of
a
Utility
Unit,
and
vice
versa.
This
might
occur
where
a
decision
is
made
to
increase/
decrease
the
proportion
of
production
output
being
supplied
to
the
electric
utility
grid,
thus
causing
the
unit
to
exceed
the
IB/
electric
utility
cogeneration
criteria
(
i.
e.
greater
than
one­
third
of
its
potential
output
capacity
and
greater
than
25
MWe).
As
discussed
below,
EPA
has
clarified
the
definitions
and
applicability
provisions
to
lessen
any
confusion
as
to
which
rule
a
unit
may
be
subject
to.

Final
Utility
Rule,
70
Fed.
Reg.
at
28,609
(
emphasis
supplied).
EPA
went
on
to
explain
that:

EPA
received
comment
requesting
clarification
of
the
applicability
definition
relating
to
whether
a
unit
would
be
classified
as
a
Utility
Unit
or
an
IB.
For
the
purposes
of
40
CFR
part
60,
subpart
Da,
EPA
believes
that
the
definition
being
finalized
today
in
40
CFR
part
60,
subpart
Da
clearly
defines
two
categories
of
new
sources
­
Utility
Units
and
non­
Utility
Units
(
which
could
include
IB
units,
etc.).
{
D0000414.
DOC
/
1}
9
Final
Utility
Rule,
70
Fed.
Reg.
at
28,611
(
emphasis
supplied).

Despite
EPA's
efforts
to
clarify
the
scope
of
the
Boiler
MACT
and
Final
Utility
Rule
so
that
units
would
be
subject
to
only
one
of
the
two
rulemakings,
a
very
limited
number
of
units,
including
the
JBPU,
continue
to
be
subject
to
both
rules.
The
JBPU
is
subject
to
both
rules
because
its
boilers
have
never
been
rated
over
25
MWe
(
and
thus
it
is
covered
by
the
Boiler
MACT
and
not
subject
to
the
exemption
from
Boiler
MACT
for
Utility
units)
but
its
generators
have,
in
the
past,
served
generators
equal
to
or
over
25
MWe,
thus
making
it
subject
to
the
Final
Utility
Rule.
The
JBPU
requests
clarification
and/
or
reconsideration
that
it
is
only
subject
to
either
the
Boiler
MACT
or
the
Final
Utility
Rules
and
not
both
rules.
As
discussed
in
more
detail
below,
consistent
with
EPA's
statements
in
the
Boiler
MACT
and
throughout
the
Utility
MACT
rulemaking
until
the
final
phase,
the
JPBU
should
be
subject
only
to
the
Boiler
MACT.

EPA's
Failure
To
Provide
Adequate
Notice
and
Outreach
to
the
Municipal
Utilities
Subject
to
Both
the
Final
Utility
Rule
and
Boiler
MACT
Violates
the
Unfunded
Mandates
Reform
Act
EPA's
actions
in
this
proceeding
further
violate
the
UMRA,
which
requires
that
agencies
provide
active
outreach
to
municipal
entities,
and
particularly
small
municipal
entities
potentially
subject
to
rules,
early
in
the
rulemaking
process.
UMRA
also
requires
that
EPA
to
minimize
the
record
keeping
and
regulatory
impacts
of
its
rules
on
small
government
entities.
UMRA
states
that
for
actions
that
have
significant
or
unique
impacts
on
small
government
entities,
EPA
must:
"(
1)
provide
notice
of
the
requirements
{
D0000414.
DOC
/
1}
10
to
potentially
affected
small
governments
.
.
.
;
(
2)
enable
officials
of
affected
small
governments
to
provide
meaningful
and
timely
input
in
the
development
of
regulatory
proposals
containing
significant
Federal
intergovernmental
mandates;
and
(
3)
inform,

educate,
and
advise
small
governments
on
compliance
with
the
requirements."
2
U.
S.
C.

§
1533
(
2000).
EPA
states
in
the
Final
Utility
Rule
that
it
has
complied
with
UMRA's
requirements.
70
Fed.
Reg.
at
28,645.3
Contrary
to
EPA's
statements,
for
the
small
municipal
utilities
that
are
subject
to
both
the
Final
Utility
Rule
and
Boiler
MACT,
EPA
has
failed
to
provide
outreach
adequate
to
comply
with
UMRA.
EPA
was
clear
in
the
Boiler
MACT
rulemaking
and
the
early
stages
of
the
Utility
rulemaking
that
units
such
as
the
JBPU
would
be
addressed
in
the
Boiler
MACT.
Further,
CAA
Section
112(
n)(
1)(
A)
made
clear
that
these
units
could
only
be
included
in
the
Boiler
MACT
and
not
in
the
Final
Utility
Rule.

Consequently,
the
JBPU
participated
in
the
Boiler
MACT
rulemaking
and
not
the
Utility
MACT
rulemaking.

When
there
were
first
indications
that
EPA
would
be
expanding
the
Final
Utility
Rule
beyond
the
CAA
Section
112(
n)(
1)(
A)
definition,
APPA4
specifically
requested
in
its
comments
that
EPA
meet
with
the
small
number
of
units
that
this
changed
affected
and
obtain
their
input.
APPA
stated:

3
EPA
states
that
it
does
not
believe
that
it
is
subject
to
the
Small
Government
outreach
requirements
because
the
rule
will
be
implemented
by
the
states.
Nonetheless,
by
making
small
government
entities
subject
to
both
Boiler
MACT
and
the
Final
Utility
Rule,
and
requiring
states
to
impose
requirements
at
least
as
stringent
as
the
federal
rules,
the
EPA
has
effectively
subjected
the
JBPU
to
two
duplicative
and
inconsistent
rules.

4
JBPU
participated
in
and
supported
APPA's
Comments
on
this
issue.
{
D0000414.
DOC
/
1}
11
APPA
also
requests
that
EPA
confer
with
APPA
and
its
members
regarding
the
appropriate
rule
for
the
small
number
of
governmentowned
units
that
appear
to
be
subject
to
both
rules.
.
.
.
APPA
requests
that
EPA
consider
the
appropriate
rulemaking
in
light
of
.
.
.
the
limited
number
of
utilities
potentially
subject
to
both
the
Boiler
MACT
and
the
Utility
rulemaking
.
.
.
APPA
requests
further
discussions
with
EPA
on
this
issue.

APPA
Comments
on
the
Supplemental
Proposed
Rule.
Despite
this
request,
to
the
best
of
JBPU's
knowledge,
EPA
did
not
follow
up
with
the
municipals
that
are
subject
to
both
the
Boiler
MACT
and
the
Final
Utility
Rule,
or
sought
their
input
on
these
requirements.

EPA's
actions
in
this
rulemaking
violate
the
letter
and
spirit
of
UMRA.
While
UMRA
requires
early
and
effective
outreach
by
EPA
to
local
governmental
entities
affected
by
a
rulemaking,
in
this
case
EPA
failed
to
provide
early
outreach
to
the
municipals
it
is
now
subjecting
to
duplicative
regulation.
Further,
when
the
municipalities
covered
by
both
the
Boiler
MACT
and
the
Final
Utility
Rule
raised
their
concerns
and
requested
a
meeting,
EPA
failed
to
meet
with
them
and
finalized
the
Utility
Rule
without
addressing
their
concerns.
The
JBPU
requests
that
EPA,
through
clarification
or
reconsideration
address
this
problem
by
determining
that
municipals
subject
to
duplicative
regulation,
such
as
the
JPBU,
are
subject
only
to
the
Boiler
MACT.

The
JBPU
Should,
Consistent
with
CAA
§
112(
n)(
1)(
A)
and
EPA's
Statements
in
this
Rulemaking,
Be
Subject
Only
to
Boiler
MACT
Consistent
with
CAA
Section
112
and
112(
n)(
1)(
A),
as
well
as
EPA's
statements
in
the
Boiler
MACT
and
throughout
the
Utility
MACT
rulemaking
until
the
final
phase,

the
JPBU
should
be
subject
to
the
Boiler
MACT
rather
than
the
Final
Utility
Rule.
{
D0000414.
DOC
/
1}
12
The
JBPU
requests
that
in
addition
to
clarifying
that
the
JBPU
is
only
subject
to
either
the
Final
Utility
Rule
or
the
Boiler
MACT
(
not
both),
that
EPA
also
determine
that
JBPU
is
subject
to
Boiler
MACT.
CAA
Section
112
requires
that
the
JBPU's
units
be
regulated
under
a
MACT
standard.
While
CAA
Section
112(
n)(
1)(
A)
gives
EPA
the
authority
to
exempt
electric
utility
steam
generating
units
(
defined
as
boilers
over
25
MWe),
it
does
not
give
EPA
the
authority
to
exempt
units
with
boilers
equal
to
or
less
than
25
MWe
from
MACT
regulation.
The
JBPU's
boilers
are
less
than
25
MWe
and
therefore
should
be
subject
to
MACT
regulation.
As
a
result,
these
boilers
cannot
be
included
in
the
Final
Utility
Rule.

Consistent
with
CAA
Section
112(
n)(
1)(
A),
EPA
in
the
Boiler
MACT
and
early
Utility
rulemakings
has
included
units
with
boilers
less
than
25
MWe
but
generators
greater
than
25
MWe
in
the
Boiler
MACT.
The
Boiler
MACT
rulemaking,

the
CAA
§
112(
n)(
1)(
A)
Report
to
Congress
for
Utilities,
the
information
gathering
efforts
in
the
Utility
rulemaking,
and
the
early
phase
of
the
proposed
Utility
rule
included
these
units
in
Boiler
MACT.
These
units
should
continue
to
be
subject
to
the
requirements
of
Boiler
MACT.

The
clarification
necessary
to
make
these
units
subject
to
only
Boiler
MACT
can
be
implemented
in
a
variety
of
ways,
including
cross­
referencing
the
Boiler
MACT
in
the
Final
Utility
Rule
to
explain
that
units
covered
in
the
Boiler
MACT
are
not
subject
to
the
Final
Utility
Rule.
The
JBPU
recommends
that
EPA
amend
Section
60.4101(
a)
to
add
an
{
D0000414.
DOC
/
1}
13
additional
exclusion
in
subsection
(
c).
Specifically,
the
JBPU
recommends
the
following
underlined
language
be
added
to
Section
60.4101:

The
following
units
in
a
State
shall
be
Hg
Budget
units,
and
any
source
that
includes
one
or
more
such
units
shall
be
a
Hg
Budget
source,
subject
to
the
requirements
of
this
subpart:
(
a)
Except
as
provided
in
paragraphs
(
b)
and
(
c)
of
this
section,
a
unit
serving
at
any
time,
since
the
start­
up
of
the
unit's
combustion
chamber,
a
generator
with
nameplate
capacity
of
more
than
25
MWe
producing
electricity
for
sale.

(
b)
For
a
unit
that
qualifies
as
a
cogeneration
unit
during
the
12­
month
period
starting
on
the
date
the
unit
first
produces
electricity
and
continues
to
qualify
as
a
cogeneration
unit,
a
cogeneration
unit
serving
at
any
time
a
generator
with
nameplate
capacity
of
more
than
25
MWe
and
supplying
in
any
calendar
year
more
than
onethird
of
the
unit's
potential
electric
output
capacity
or
219,000
MWh,
whichever
is
greater,
to
any
utility
power
distribution
system
for
sale.
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
paragraph
(
a)
of
this
section
starting
on
the
day
on
which
the
unit
first
no
longer
qualifies
as
a
cogeneration
unit.
(
c)
Units
regulated
under
40
C.
F.
R.
Part
63,
Subpart
DDDDD.

In
the
alternative,
the
JBPU
requests
that
EPA
provide
clarification
or
an
applicability
determination
for
the
limited
number
of
units,
including
the
JBPU,
that
are
subject
to
regulation
under
both
rules.
JBPU
request
that
EPA
determine
in
any
such
clarification
or
applicability
determination
that
the
JBPU
is
subject
to
only
to
the
Boiler
MACT.

Dated:
July
18,
2005
Respectfully
submitted,

_____________________________
Tanja
Shonkwiler
Duncan,
Weinberg,
Genzer
&
{
D0000414.
DOC
/
1}
14
Pembroke,
P.
C.
1615
M
Street,
N.
W.
Suite
800
Washington,
D.
C.
20036
(
202)
467­
6370
tms@
dwgp.
com
Attorney
for
the
Jamestown
Board
Of
Public
Utilities
