BEFORE THE BOARD OF ENVIRONMENTAL REVIEW

TO: All Concerned Persons

1. Petitioners’ names and addresses are: Montana Environmental Information Center, P.O. Box 1184, Helena, MT 59624; Montana Public Health Association, 1818 Marketplace, Great Falls, MT 59404; Montana Nurses’ Association, 104 Broadway, Suite G2, Helena, MT 59601 Suite; Healthy Mothers, Healthy Babies, The Montana Coalition, 1235 Birch Ave, Suite 1, Helena, MT 59604; Northern Cheyenne Tribe, P.O. Box 128, Lame Deer, MT 59043; Fort Belknap Community Council, R.R. 1, Box 66, Fort Belknap Agency, Harlem, MT 59526; The Progressive Labor Caucus, P.O. Box 191, Helena, MT 59624; The Montana Association of Churches, 25 South Ewing Street, Suite #408, Helena, MT 59601; Caring for Creation Network, 520 Dearborn, Missoula, MT 59801; Montana Wildlife Federation, 5530 North Montana Ave., Helena, Montana; Montana Audubon, P.O. Box 595, Helena, MT 59624; National Wildlife Federation, 240 N. Higgins, Missoula, MT 59802; Montana Public Interest Research Group, 360 Corbin Hall, Missoula, MT 59812; Montana Chapter of the Sierra Club, PO Box 1290, Bozeman, MT 59771 and the address for the headquarters of the corporation nationally is 85 Second Street, 2nd Floor, San Francisco, CA 94105; Community Awareness Network, 7 Riverview Drive, Thompson Falls, MT 59873; William and Margaret Eggers, P.O. Box 1000, Crow Agency, Montana 59022; Greg Lind, M.D., 7383 Highline Court, Missoula, 59808; Colette Kirchhoff, M.D., 516 S. 6th Ave Bozeman, MT 59715; Lori Byron, M.D., Rt. 1, Box 1079, Hardin, Montana 59034; Robert Byron, M.D., Rt. 1, Box 1079, Hardin, Montana 59034; Cheryl Reichert, M.D., Ph.D., 500 15^th Avenue South, Great Falls, MT 59405.

2. The Montana Environmental Information Center (MEIC) is a Montana non-profit corporation. MEIC is an environmental organization whose mission is to protect and restore Montana’s natural environment. MEIC has over 3000 members in Montana, many of whom live adjacent to or near electric utility steam generating units (EGU) and use and enjoy these areas because of their aesthetic qualities, relatively clean environment, and lifestyle opportunities and have an interest in protecting them. MEIC and its members are thus directly and adversely affected by the impact of mercury emissions from EGUs. Over its 30-year history, MEIC has been extensively involved in air quality related legislation and rulemaking, review of EGU air quality permit applications, and related litigation.

The Montana Public Health Association (MPHA) is a non-profit corporation founded in 1914. MPHA is an organization of public heath professionals advocating for health and wellness policy in our state through education, mentoring, and collaboration with all public health partners. Its 215 members are local health professionals, state health and environmental professionals, local health practitioners and prevention specialists. MPHA advocates for public health best practice standards for all Montanans, and the passage and implementation of mercury emission requirements will accomplish this goal. Groups at high risk for health complications, including young children and women of childbearing age, embryos, and men, will directly benefit from the passage of the mercury emission standard.

The Montana Nurses' Association (MNA) is incorporated as a nonprofit organization 501 (c) 6 whose mission is to promote professional nursing practice, standards and education; represents professional nurses in collective bargaining activities; and provides nursing leadership in promoting high quality health care. MNA is a membership driven organization that exercises members’ perspectives through an elected Board of Directors. MNA has a long history of involvement in public policy issues that affect health care delivery in the state and in the nation. MNA does this in collaboration with the American Nurses Association and its 50 state organization partners. Ultimately, MNA’s statewide activities are a direct result of the Montana based membership. MNA’s advocacy roles include action around particular health issues; social policies that it identifies as affecting community health; as well as legislative actions designed to impact the direction of health related legislation and policy. The American Nurses Association has had an active discourse on the issue of persistent bioaccumulates in the environment. The literature available on mercury emissions suggests a strong correlation with childhood neurological impairments. As an organization that focuses on prevention as a cornerstone of its health care agenda, MNA recognize the financial and human benefit of identifying and limiting the persistent bioacccumulates that are linked with costly health care problems.

Healthy Mothers, Healthy Babies, The Montana Coalition, is a statewide coalition of concerned citizens, community organizations, health educators, health professionals and public policy makers working together to improve the health of mothers and children in Montana. It was established in 1984 to fill gaps in services for Montana families and to draw attention to underlying issues contributing to the “gaps.” Health Mothers, Healthy Babies is dedicated to maximizing the potential of every child, promoting primary prevention efforts, and educating policy makers at the local, state, and federal levels regarding maternal and child health needs, among other things. The impact of mercury pollution on mothers and their infants is of great concern to the organization.

The Northern Cheyenne Tribe is located in southeastern Montana. The population is 6,000 on the reservation, which consists of 450,000 acres. The Northern Cheyenne Tribe has jurisdiction over the Northern Cheyenne Reservation. Colstrip, which is located 13 miles north of the reservation, has the Northwest’s second largest coal fired power plant system at 2,300 megawatts, is directly upwind of the reservation. The reservation is being affected by methyl mercury. This is a major concern to the Tribe since mercury can affect unborn children and young children, not to mention the rest of the population. These affects include developmental and learning abilities in these young children that will stay with them for the rest of their lives. Mercury also affects the animals, which includes fish that are eaten by the local population. The Northern Cheyenne Tribe is actively backing the proposed Montana Mercury Rule.

The Fort Belknap Indian Community Council represents the Gros Ventre and Assiniboine Tribes of the Fort Belknap Indian Community. The Fort Belknap Indian Reservation is located in northcentral Montana and consists of over 675,000 acres, of which the Tribe has jurisdiction. The Gros Ventre and Assiniboine Tribes have over 5,000 members who live on or near the Fort Belknap Indian Reservation. The inadequate reclamation of the Zortman/Landusky Mines have had direct, detrimental, and long-lasting impact on the environment, health, and welfare of Tribal members. It is in the best interest of the people of the Fort Belknap Indian Community to support this mercury rule. The Council believes it is its duty, as it is for the State of Montana, to protect the health, security, and general welfare of all people who reside in this great state.

The Progressive Labor Caucus (PLC) was formed in Butte, Montana, on June 15, 2001. The PLC is incorporated as a nonprofit organization under the laws of Montana and as a PAC registered with the Commissioner of Political Practices. It is a progressive caucus made up of a number of local trade unions, affiliated organizations and individuals who involve themselves in the body politic of the State of Montana. Members of the Montana Progressive Labor Caucus believe that Montana workers have a long and proud history of working cooperatively to achieve goals that serve the common good. The PLC is an organization that welcomes working families, retirees, family agriculture producers, people of faith, human rights activists, consumers, advocates for those with low-incomes, conservationists, and others concerned with Montana’s future. One of the organizations guiding principles is a quality, clean, and healthy environment is compatible with the generation of good paying jobs and necessary for the economic and environmental survival of our state.

The Montana Association of Churches (MAC) is an organization representing churches united by the power of God's Word for Witness, Worship, Justice and Service. As such, MAC seeks to bring the voice of the Gospel and various initiatives of advocacy into those places where peace, justice and safety may be absent. To this end, MAC works with member congregations and judicatories to create safe places and opportunities for dialogue through which community needs and problems may be addressed through models of civility and mutual respect for the dignity of all persons. MAC’s concerns regarding the harmful effects of mercury emissions underscore the need for appropriate and effective controls on mercury, and are consistent with long-held positions articulated by the Montana Association of Churches in at least two of its official Position Statements: (1) "Caring in Creation," which calls for the protection of land, air and water; and (2) "Children & Society," which affirms that children are entitled to healthy growth and development.

Caring for Creation Network of Missoula is a diverse group of people of faith who are concerned about the state of the environment. Its mission is to raise ecological awareness among faith communities, through education and action. It works for responsible public policies that embody the principles of stewardship of creation. The contamination of Montana lakes and streams by mercury exposes women, children and men to neurological, autoimmune and cardiovascular disorders. The Network is at risk if its members eat Montana's fish because of mercury levels. The Network urges the Board to honor God's creation by requiring coal-fired power plants to control mercury emissions.

The Montana Wildlife Federation (MWF) is Montana's oldest and largest non-partisan, non-profit, tax-exempt wildlife conservation organization. Founded in 1936, MWF is an organization of conservation minded people who share a mission to protect and enhance Montana's public wildlife, lands, waters, and fair chase hunting and fishing heritage. MWF conservationists, landowners, hunters and anglers (MWF' largest number of members) are united in a common appreciation for wildlife and for all that wildlife contributes to our lives and culture including our premier hunting and fishing opportunities. MWF is deeply concerned with the impacts from mercury emissions to our fish and wildlife and the habitats that sustain them as well as people that consume fish and game. Especially alarming is the recent research that documents mercury contamination is not limited to aquatic species but is also found in birds. Fish, wildlife and hunting and fishing is a significant component of Montana' culture. The nearly 7,000 members of MWF request the highest priority in reducing mercury emissions and the tremendous impacts that they have on our air, water and fish and wildlife.

Montana Audubon was founded in 1976. Its mission is to enable Audubon's members across the state to work together so that Montana ecosystems will continue to nourish birds, other wildlife, and the human spirit for future generations. It is the umbrella organization for Montana's ten Audubon Society Chapters, which are centered in Billings, the Bitterroot Valley, Bozeman, the Butte-Dillon area, Great Falls, Helena, Kalispell, Miles City, Missoula, and the Mission Valley. Montana Audubon routinely works on issues that protect birds and other wildlife from environmental hazards. Mercury has a clear, measurable impact on many wildlife species. Montana Audubon is especially concerned about scientific studies that have documented the accumulation of mercury in both water-dwelling and forest birds to a level that interferes with reproductive rates. Reducing an air pollutant that is known to have a measurable impact on wildlife is an important issue for the organization.

The National Wildlife Federation (NWF) is the nation’s largest conservation advocacy and education organization. Founded in 1936, NWF is a non-profit, tax-exempt corporation with its headquarters in Reston, Virginia. NWF has nine regional offices, including its Northern Rockies Natural Resource Center in Missoula, Montana. NWF‚s mission is to educate, inspire, and assist individuals and organizations of diverse cultures to conserve wildlife and other natural resources and to protect the earth’s environment in order to achieve a peaceful, equitable, and sustainable future. NWF and its members and supporters have long worked to reduce air pollution. Over the last five years, NWF has placed a high priority on reducing and eliminating mercury pollution because of its severe impacts to both people and wildlife.

The Montana Public Interest Research Group (MontPIRG) is a student-run non-profit corporation. It was founded at the University of Montana in 1982. MontPIRG’s mission is to act as an advocate for the public interest in support of a clean and healthful environment, strong consumer protections, and an open and accountable government. MontPIRG and its over 4000 members are concerned with the impacts mercury pollution has on human health, fish and wildlife, and Montanans’ way of life. MontPIRG has been working on the issue of mercury emissions from power plants since its involvement in the EPA rulemaking process in 2004. MontPIRG continues to advocate for strong mercury reductions on the federal as well as the state level.

The Montana Chapter of the Sierra Club is part of the Sierra Club, a national non-profit conservation organization with members, groups, and chapters in every state. The mission of the Sierra Club is to explore, enjoy and protect the planet. The Montana Chapter of the Sierra Club has over 2,400 members in Montana, many of whom live adjacent to or nearby EGU, use and enjoy these areas because of their aesthetic qualities, relatively clean environment and lifestyle opportunities. They have an interest in protecting the land, water and wildlife for their families and their future. They hunt, fish, swim, hike and raise families in these areas and thus are directly and adversely affected by the impact of mercury emissions from EGUs. The Sierra Club has long worked to reduce air and water pollution, and has been involved in efforts to reduce mercury pollution in Montana and across the country.

Community Awareness Network (CAN) is a Montana non-profit organization formed by volunteers and concerned citizens of Sanders County, Montana in April, 2004. CAN was formed when a local facility that had told the community it would use biomass to produce fuel, instead announced its intent to use coal for fuel. CAN provided information to the community and helped sponsor public meetings. The plant is expected to produce 8.8 pounds per year of mercury. Fishing and hunting, combined with individual orchards and gardens are subsistence activities in the community. Many people in the community do not have health insurance and mercury is known to cause severe and terminal illnesses. CAN believes mercury management in Montana is a necessity needed to maintain a healthy environment, now and into the future.

William and Margaret Eggers are residents of Big Horn County, Montana. William and Margaret's residence and work place is within eleven miles of the Hardin power plant (Hardin, Montana). Their daughter, Jessica Eggers, attends Hardin Intermediate School (Hardin, Montana 59034), which is located five miles from the Hardin power plant. William, Margaret and Jessica use and enjoy the areas in and around Crow Agency, Hardin, and throughout the state because of their aesthetic qualities, relatively clean environment, and lifestyle opportunities and have an interest in protecting them, including, but not limited to the Big Horn and Little Big Horn Rivers. As mercury is not only deposited locally, but also disperses long distances, William, Margaret and Jessica are directly and adversely affected by the impact of mercury emissions from EGUs not only in Hardin but also in other parts of the state. In addition, recent research has shown that mercury not only accumulates through the aquatic food chain, but also through terrestrial food chains. They both fish and hunt, and therefore mercury pollution impacts their recreational and subsistence activities. William and Margaret appealed the Hardin power plant permit, demonstrating their concern, interest, and dedication to preserving a healthy environment in this area. There are currently six (6) coal fired power plants being proposed throughout the state, which will have an enormous impact on the air, water, fisheries and plants throughout the state for decades to come. Mercury pollution rules are a necessity for the preservation of the qualities of this state that they treasure, and for protection of human health.

Greg Lind, M.D., is a State Senator representing Senate District 50, which includes parts of Missoula County. He currently practices medicine in Missoula. Dr. Lind has been involved in state health care policy for many years. He is a current member of the State of Montana’s Task Force on Cardiovascular Health & Obesity. He is concerned about the apparent association between cardiovascular disease and mercury contamination. Dr. Lind taught at University of Utah School of Medicine for 6 years. He is currently a Trustee of the Montana Medical Association.

Colette G. Kirchhoff, M.D., is an attending Family Physician affiliated with the Bozeman Deaconess Hospital. She is Board Certified with both the American Board of Family Medicine and the American Board of Holistic Medicine. In addition, she is a Clinical Instructor for the University of Washington Medical School. Dr. Kirchhoff is the former Chief of the Family Medicine Department for Bozeman Deaconess Hospital; former director of the Evergreen Health and Rehab Center, and former Chief Resident of the Northwestern University Family Medicine Program. In her role as a family physician, providing prenatal care, delivering babies, and caring for families, she is deeply concerned about the documented negative effects of mercury contamination on public health, particularly women and children’s health. Dr. Kirchhoff and her patients are directly and adversely impacted by mercury emissions and the resulting environmental contamination.

Lori Byron, M.D., is a pediatrician who has been practicing in south central Montana for 17 years. She received her Medical Doctor degree from the University of Louisville, and completed an internship and residency in Pediatrics at the University of Alabama – Birmingham. She is a Fellow of the American Academy of Pediatrics. As a pediatrician caring for babies and children, invested in their well-being and healthy development, she is concerned about the impact of mercury pollution and its effect on her patients.

Robert Byron, M.D., is an Internal Medicine Physician who has been practicing medicine in south Central Montana for 17 years. He received a Medical Degree from the University of Louisville, and completed an internship and residency in Internal Medicine at the University of Alabama-Birmingham. He is a Fellow of the American College of Physicians and the current Governor of the Montana Chapter of the American College of Physicians. In his role as an internal medicine physician, he is concerned about the impact of mercury contamination and believes that a reduction in mercury emissions will be beneficial for the health of his patients.

Cheryl M. Reichert, M.D., Ph.D., received her M.S. and Ph.D. in Biochemistry from the University of Michigan, where she later received her M.D. She is Board Certified in Anatomic and Clinical Pathology. She was the Laboratory Medical Director at Columbus Hospital in Great Falls before it merged to Benefis Healthcare. She has taught at: USUHS, Bethesda, Maryland; University of Michigan; National Institute of Health; Columbus Hospital (Benefis Healthcare) School of Medical Technology; and is the Medical Director of Clinical Laboratory Sciences Training Program, at Benefis Healthcare. She has published 44 original research articles in peer reviewed scientific journals. In her pathology practice she sees far too much preventable disease, and is especially concerned about those infirmities inflicted on unsuspecting children and trusting citizenry. As the daughter of one of the Montana constitutional convention delegates, she is well aware of the 1972 state constitutional right to a "clean and healthful" environment. She is concerned about the impacts of eating fish that have been poisoned by mercury in Montana waters.

3. Statement of Reasonable Necessity

LEGAL BASIS

Montana’s Constitution, Article IX, Section 1, says: “The State and each person shall maintain and improve a clean and healthful environment in Montana for present and future generations.” Article II, Section 3 of the Montana Constitution says, “All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment….” The Montana Supreme Court addressed this provision of the constitution when it said:

“We conclude, based on the eloquent record of the Montana Constitutional Convention that to give effect to the rights guaranteed by Article II, Section 3, and Article IX, Section 1 of the Montana Constitution they must be read together and consideration given to all of the provisions of Article II, Section 1 as well as the preamble of the Montana Constitution. In doing so, we conclude that the delegates’ intention was to provide language and protections which are both anticipatory and preventative.”

Montana Environmental Information Center v. Department of Environmental Quality, 1999 MT 248, ¶77.

The goals and policies of the constitution are carried over into the Clean Air Act of Montana, “The legislature, mindful of its constitutional obligations under Article II, section 3, and Article IX of the Montana Constitution has enacted the Clean Air Act of Montana.” §75-2-102 (1) MCA. That section further goes on to say, “It is the public policy of this state and the purpose of this chapter to achieve and maintain levels of air quality that will protect human heath and safety and, to the greatest degree practicable, prevent injury to plant and animal life and property….” §75-2-102 (2) MCA.

The Board has broad authority to establish rules to protect human health, safety and the environment. §75-2-111 MCA. Specifically, the Board has broad power to control pollutants: “The board may establish the limitations of the levels, concentrations, or quantities of emissions of various pollutants from any source necessary to prevent, abate, or control air pollution.” §75-2-203 (1) MCA. As this statement of reasonable necessity demonstrates, mercury is a threat to human health, safety and the environment, and the Board, therefore, has authority under the Clean Air Act of Montana to implement these rules.

Electric Utility Steam Generating Units (EGUs), or what are often referred to as coal-fired power plants, reported emitting 982 pounds of mercury into the air in Montana in 2001 or 92% of all mercury air emissions. In 2002, EGUs emitted 875 pounds. Nationally, EGUs cause over 40% of all anthropogenic mercury emissions. According to the U.S. Department of Energy, six new plants are proposed for Montana. Only three states – Illinois, Florida and Kentucky – have more proposed plants (http://www.netl.doe.gov/coal/refshelf/New%20Coal%20Plants%20(7-25-05).pdf). If the Department of Environmental Quality permits all of these plants at the same mercury emission rate as the Roundup Power Project, permitted by DEQ in 2003, mercury emissions in Montana could double.

Currently EGUs are the only major industrial source of mercury emissions for which mercury is not regulated as a hazardous air pollutant under the Montana or Federal Clean Air Act. In 2005 the U.S. Environmental Protection Agency (EPA) adopted rules in which it treats mercury from EGUs as a nonhazardous air pollutant subject to a cap and trade regulatory system [(70 Fed. Reg. 15994; March 29, 2005), (70 Fed. Reg. 28606; May 18, 2005)]. Currently litigation challenging the mercury rule is pending against EPA by 14 states – California, Connecticut, Delaware, Illinois, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, New York, Pennsylvania, Vermont, and Wisconsin – and numerous public health groups, Indian tribes and environmental organizations. The U.S. EPA’s Office of Inspector General found the rule to be flawed because it could result in toxic hotspots and did not fully analyze the impacts to children’s health (http://www.epa.gov/oig/reports/2005/20050203-2005-P-00003.pdf). However, the rule allows states to adopt alternative regulatory programs for mercury emissions from EGUs. "States also have the flexibility to not participate in the trading program or require more stringent Hg emissions reductions. States that do not participate in the trading program can establish their own methodology for meeting State Hg budgets by obtaining reductions from affected Utility Units." [70 Fed. Reg. 28,622 (May 18, 2005)]

HUMAN HEALTH IMPACTS

Mercury is a potent neurotoxin at very low doses. Mercury readily crosses the placenta and accumulates in human fetal tissues. Studies show that infants are born with higher blood mercury levels than their mothers. Doctors have concluded that the neurotoxic effects of exposure to mercury in the womb are irreversible. [Foster, G.F., et al. "An overview of some reproductive toxicology studies conducted at Health Canada." Toxicology and Industrial Health 12:447-457(1996). Galster, W.A., “Mercury in Alaskan Eskimo Mothers and Infants.” Environmental Health Perspective, 15:135-140(1976)]

Peer-reviewed scientific journals have found links between mercury contamination and learning disabilities, autism, decreased IQs, cardiac abnormalities, heart disease, heart attacks, immune system disorders, visual impairments, hearing deficits, motor and mental disturbances and more. [Some of the more recent studies include: Palmer, R.F., et al., “Environmental mercury release, special education rates, and autism disorder; an ecological study of Texas.” Health and Place, doi:10.1016/j.healthplace.2004.11.005. Murata, K., et al., “Delayed brainstem auditory evoked potential latencies in 14-year-old children exposed to methylmercury.” Journal of Pediatrics, 144 (2):177-183 (2004). Grandjean et al. “Cardiac Autonomic Activity in Methylmercury Neurotoxicity: 14-year follow-up of a Faroese Birth Cohort.” Journal of Pediatrics, 144:169-176 (2004)]

A peer-reviewed study by the Mount Sinai School of Medicine's Center for Children's Health and the Environment found that the U.S. loses $8.7 billion annually due to the impact of mercury on children's brain development. The study estimates that between 317,000 and 637,000 of the 4 million children born each year in the United States are exposed in the womb to mercury levels above the EPA’s safety level.

WILDLIFE IMPACTS

Montana has statewide fish advisories for northern pike, lake trout, and walleye. (National Listing of Fish and Wildlife Advisories: http://map1.epa.gov) These advisories warn anglers against eating these fish due to mercury contamination. There are also numerous other advisories around the state that warn children and women of childbearing age not to eat other types of fish due to high levels of mercury.

In Montana, there are 418,836.80 acres of lakes and 1,280 miles of streams that are impaired due to mercury contamination. (Montana Department of Environmental Quality. EnviroNet. Watershed Information) When mercury falls on waterways it forms methylmercury. Methylmercury is a highly toxic form of mercury for humans.

It has been known for years that mercury threatens wildlife in aquatic ecosystems (from fish and waterbirds, to fish-eating mammals such as mink and otter). However, a recent study in the Journal of Ecotoxicology found that forest songbirds in northeastern North America have high levels of methylmercury [Rimmer, C.C., et al., “Mercury Concentrations in Bicknell’s Thrush and Other Insectivorous Passerines in Montane Forests of Northeastern North America.” Ecotoxicology, 14, 223–240, (2005)]. The levels found were high enough to interfere with reproductive rates. The scientists theorize that the emissions from up-wind coal-fired power plants deposit mercury on leaves, which in turn are consumed by the food source for the songbirds.

TECHNOLOGICAL ACHIEVABILITY

Technology is currently commercially available to control mercury emissions from EGUs. Activated Carbon Injection (ACI) can be purchased and used for mercury removal for all coal types. ACI has been used commercially to reduce mercury emissions from municipal solid waste incinerators for over twenty years. Already, full-scale ACI systems have been installed on over 40 U.S. coal-fired boilers in temporary ACI trials. These temporary trials have lasted between 1 week and 12 months. The results have demonstrated the success at capturing over 90% of the mercury from plants using subbituminous coals.

Brominated sorbents have proven to be extremely successful at capturing mercury from subbituminous coals commonly found in Montana. Although brominated sorbents cost more per pound than nonbrominated sorbents used for bituminous coal, less of the brominated sorbent is necessary to capture more mercury. The net operating costs are substantially lower because of this increased capture.

At least four plants in the western U.S. have agreed to install ACI. One plant in Montana that will burn subbituminous western coal has already agreed to install ACI in the near future.

It is estimated that it costs less than $1.5 million to install ACI on a 500 megawatt plant. Annual operating costs vary but have been estimated to be $1 million to $2 million for the sorbent materials for a similar sized plant if a fabric filter is present for particulate control. This cost could be $2-3 million if only an electrostatic precipitator is present.

For reference it is useful to compare this cost to the costs of other pollution control devices recently required in the permit issued by the Department for the Roundup Power Project (RPP). The RPP is a 780 megawatt proposal. The estimated capital costs of the required pollution controls for the RPP were: PM10 control by a fabric filter $32-36 million; SO2 control by a Spray Dry Absorber $150-200 million, and; NOx control by Selective Catalytic Reduction $48-64 million. The Department’s Permit Analysis for the RPP said that the annual cost of the required pollution controls were: PM10 control by a fabric filter $8,126,000 per year; SO2 control by a Spray Dry Absorber $22,658,000 per year, and; NOx control by Selective Catalytic Reduction $11,044,000 per year.

The technical feasibility of achieving a 1.5 pounds per trillion btu (l.5 lb Hg/TBtu) standard of mercury control is also demonstrated in EPA’s Information Collection Request database for EGUs. This database shows that plants across the country, both those using bituminous and subbituminous coals reported emissions lower than 1.5 lb Hg/TBtu using various pollution control configurations. Some of the facilities that reported emissions lower than 1.5 lb Hg/Tbtu, where subbituminous coals were used in the tests, were AES Hawaii, Inc., Cholla and Craig, where emissions were 1.1256 lb Hg/Tbtu, 0.7940 lb Hg/Tbtu, and 1.0437 lb Hg/Tbtu respectively.

4. The rules proposed to be amended and adopted provide as follows, new matter underlined, deleted matter interlined:

17.8.740 DEFINITIONS For the purposes of this subchapter:

(1) "Alternative mercury emission limit" means a mercury emission limit for a mercury-emitting generating unit, established by the department in a permit issued or modified pursuant to 75-2-211 in lieu of compliance with [NEW RULE I] (1)(a) or (d).

~~(1)~~(2) "Best available control technology (BACT)" means an emission limitation (including a visible emission standard), based on the maximum degree of reduction for each pollutant subject to regulation under 42 U.S.C. 7410, et seq. or 75-2-101, et seq., MCA, that would be emitted from any proposed emitting unit or modification which the department, on a case-by-case basis, taking into account energy, environmental, and economic impacts and other costs, determines is achievable for such emitting unit or modification through application of production processes or available methods, systems, and techniques, including fuel cleaning or treatment or innovative fuel combustion techniques for control of such contaminant. In no event may application of BACT result in emission of any regulated air pollutant that would exceed the emissions allowed by any applicable standard under ARM Title 17, chapter 8, subchapter 3, and this subchapter. If the department determines that technological or economic limitations on the application of measurement methodology to a particular class of emitting units would make the imposition of an emission standard infeasible, it may instead prescribe a design, equipment, work practice, or operational standard or combination thereof, to require the application of BACT. Such standard must, to the degree possible, set forth the emission reduction achievable by implementation of such design, equipment, work practice or operation and must provide for compliance by means that achieve equivalent results.

(3)“Commercial operation has begun” means the time when the owner or operator begins to supply electricity for sale.

~~(2)~~(4) "Construct" or "construction" includes a reasonable period of time for startup and shakedown and means:

(a) initiation of on-site fabrication, erection, or installation of an emitting unit or control equipment including, but not limited to:

(i) installation of building supports or foundations;

(ii) laying of underground pipework; or

(iii) construction of storage structures; or

(b) the installation of any portable or temporary equipment or facilities.

~~(3)~~(5) "Day" means calendar day unless otherwise stated.

~~(4)~~(6) "Emitting unit" means:

(a) any equipment that emits or has the potential to emit any regulated air pollutant under the Clean Air Act of Montana through a stack(s) or vent(s); or

(b) any equipment from which emissions consist solely of fugitive emissions of a regulated air pollutant under the Clean Air Act of Montana.

~~(5)~~(7) "Existing emitting unit" means an emitting unit that was in existence and operating or was capable of being operated on March 16, 1979, or for which the department had issued a permit by that date.

~~(6)~~(8) "Facility" means any real or personal property that is either stationary or portable and is located on one or more contiguous or adjacent properties under the control of the same owner or operator and that emits or has the potential to emit any air pollutant subject to regulation under the Clean Air Act of Montana or the Federal Clean Air Act, including associated control equipment that affects or would affect the nature, character, composition, amount, or environmental impacts of air pollution and that has the same two-digit standard industrial classification code. A facility may consist of one or more emitting units.

~~(7)~~(9) "Install" or "installation" means to set into position and connect or adjust for use.

(10) "Mercury" means mercury or mercury compounds in either a gaseous or particulate form.

(11) "Mercury-emitting generating unit" means any emitting unit at a facility for which an air quality permit is required pursuant to 75-2-211 or 75-2-217 that generates electricity and combusts coal in an amount greater than 10% of its total heat input, calculated on a rolling 12-month time period.

LEGAL BASIS

HUMAN HEALTH IMPACTS

WILDLIFE IMPACTS

TECHNOLOGICAL ACHIEVABILITY

AUTH: 75-2-203, 75-2-204, 75-2-211, MCA

AUTH: 75-2-203, 75-2-204, 75-2-211, MCA