1
Mercury
Meeting
Denver,
CO
March
11,
2004
These
comments
summarize
the
unique
perspectives
and
views
of
tribal
environmental
professionals
elicited
during
a
public
meeting
held
by
representatives
of
the
U.
S.
Environmental
Protection
Agency
for
the
purpose
of
addressing
the
proposed
Utility
Mercury
Reductions
Rule.
These
perspectives
and
views,
however,
do
not
represent
the
official
policy
or
position
of
any
tribal
government
concerning
the
proposed
rule
as
must
not
be
misconstrued
otherwise.

Participants
Chris
Lee
­
Navajo
Nation
Flowers
Espanola
­
Taos
Pueblo
Brandy
Taft
­
Leech
Lake
Band
of
the
Minnesota
Chippewa
Tribe
Lyn
Hall
­
Bad
River
Band
of
Chippewa
Melinda
Hoskins
­
Sac
and
Fox
Nation
Randy
Ashley
­
Confederated
Salish
and
Kootneai
Tribes
Louis
McCloud
­
?
Gina
Kneib
­
Sac
and
Fox
Nation
of
Missouri
Julie
Simpson
­
Nez
Perce
Tribe
Melissa
Estes
­
Zuni
Jed
Peynetsa
­
Zuni
Jay
Littlewolf
­
Northern
Cheyenne
Lisa
Brennan
­
?
Robert
Shimek
­
?
Sandra
Miller
­
Intertribal
Council
of
Arizona
Ryan
Callison
­
Cherokee
Nation
Bob
Gruenig
­
National
Tribal
Environmental
Council
Stephen
Hartsfeild
­
National
Tribal
Air
Association
EPA
Monica
Morales
­
Region
VIII
Dan
Webster
­
Region
VIII
Laura
McKelvey
­
OAQPS
Bill
Maxwell
­
OAQPS
Bob
Gruenig
provided
some
introductory
comments
regarding
discussions
that
the
National
Tribal
Environmental
Council
had
with
Administrator
Leavitt
concerning
the
proposed
mercury
rule
and
how
the
public
meeting
came
about.

Presentation
Highlights
2
The
EPA
is
proposing
one
of
three
approaches:

°
Section
112
(
CAA)
command­
and­
control
°
Section
111
(
CAA)
cap­
and­
trade
°
States
could
opt
in
and
out
°
Section
111(
d)
is
used
to
legitimize
a
cap­
and­
trade
approach
°
Would
be
based
on
a
declining
cap
°
This
approach
would
be
limited
to
new
and
existing
sources
°
Section
112
(
CAA)
cap­
and­
trade
°
Would
be
federally
implemented
°
Would
be
based
on
a
declining
cap
Some
comments
that
the
EPA
are
seeking
°
Is
a
cap­
and­
trade
approach
technically
feasible
under
section
112
and
does
the
EPA
have
legal
authority
to
conduct
trading
under
section
112?
°
General
comments
about
the
cap­
and­
trade
approach
The
comment
period
for
the
proposed
Utility
Mercury
Reductions
Rule
has
been
extended
to
April
30,
2004.
Because
of
the
extension,
a
public
hearing
is
scheduled
to
occur
on
March
31st
in
Denver,
CO.
A
supplemental
notice
is
also
scheduled
to
be
out
by
Tuesday,
March
16,
2004.
Based
on
a
court
settlement,
the
final
rule
must
be
signed
on
or
before
Wednesday,
December
15,
2004
(
no
such
court­
ordered
deadline
exists
for
the
Interstate
Air
Quality
Rule).

Discussion,
Questions
and
Comments
1)
One
participant
asked
how
the
rule
was
protective
against
hot
spots.

The
EPA
used
an
Integrated
Planning
Model
(
IPM)
to
discern
if
any
hot
spots
would
occur
due
to
the
proposed
rule.
No
such
hot
spots
have
been
found.
Someone
asked
if
tribal
lands
were
sufficiently
modeled
for
the
proposed
rule.
No
one
present
at
the
meeting
knew
this
answer,
but
were
encouraged
to
contact
Mary
Jo
Krolewski
at
202­
343­
9847
as
she
was
involved
with
the
modeling
process.
Another
person
commented
that
the
model
must
look
at
geographic
features,
etc.
and
was
uncertain
if
just
one
model
is
appropriate
for
tribal
lands.
In
addition,
he
recommended
that
good
spatial
monitoring
needs
to
take
place
for
mercury,
more
data
become
available
for
tribal
lands
to
discern
if
hot
spots
would
occur,
and
that
there
needs
to
be
better
accountability
built
within
the
rule
if
hot
spots
are
later
found.

2)
One
participant
asked
if
other
groups
emitting
mercury
and
would
be
included
in
the
rule.

The
EPA
is
making
other
industries
meet
MACT
standards
and
has
developed
rules
to
address
mercury
emissions
such
as
from
industrial
boiler
sources.

3)
Another
participant
asked
if
EPA
had
enough
tribal
data
to
adequately
model
impacts
in
Indian
3
country.
Particularly
given
that
the
monitoring
data
aren't
adequate
to
verify
the
models.

Neither
EPA
participant
was
involved
in
the
modeling
and
suggested
folks
contact
Mary
Jo
Krolewski
(
202­
343­
9847).

4)
Someone
asked
about
nickel
emissions
which
are
addressed
under
the
rule.
EPA
staff
commented
that
nickel
was
included
because
it
is
emitted
from
oil
burning
electric
generating
units
(
EGU).
The
rule
only
proposed
emission
limits
for
nickel
because
it
is
the
major
pollutant
of
concern
from
burning
oil.
Nickel
is
not
included
under
a
cap­
and­
trade
approach.
Nickel
is
also
known
to
be
a
cancer­
causing
toxin.
Additional
health
effects
of
nickel
emissions
are
outlined
in
the
proposed
rule.

5)
One
participant
asked
why
EPA
was
proposing
to
use
111
(
as
it's
preferred
approach)
instead
of
what
the
statute
requires
in
112.

EPA
staff
point
out
that
2
of
the
proposed
alternatives
use
112,
one
alternative
is
a
more
traditional
command
and
control
approach,
the
other
is
a
trading
program
that
will
be
similar
to
the
proposal
under
111.
However,
EPA
believes
that
111
provides
more
flexibility
and
will
get
faster
reductions
particularly
from
bituminous
coal
burning
EGUs.

6)
In
a
follow
up
question
one
participant
asked
for
whom
was
there
increased
flexibility
and
lower
cost.

EPA
responded
that
the
flexibility
and
lower
cost
was
directed
toward
industry
and
the
States.

7)
A
participant
asked
what
was
the
precedent
that
would
be
set
for
moving
the
program
from
112?

EPA
responded
that
we
don't
believe
it
would
be
much
of
a
precedent
because
all
of
the
10
year
bin
of
MACT
standards
are
completed
and
we
are
moving
into
the
area
source
standards
and
residual
risk
arena
now.
So
there
aren't
many
opportunities
for
additional
MACT
standards.

8)
A
number
of
participants
expressed
concern
about
hot
spots
with
the
following
issues:


Modeling
doesn't
adequately
model
impacts
on
the
tribes
traditional
lifestyles,


Modeling
doesn't
get
data
from
Indian
country.


Modeling
from
potential
to
emit
verses
actual
emissions
results
in
the
modeling
not
legitimately
addressing
the
Mercury
concerns
of
tribes.
It
also
doesn't
take
into
account
local
factors
like
humidity,
geography,
and
cumulative
concentrations
from
multiple
sources.
This
suggests
we
need
a
good
spatial
definition
from
an
expanded
mercury
monitoring
network.
In
addition,
if
EPA
uses
a
cap­
and­
trade
program
then
monitoring
will
be
needed
to
establish
an
environmental
baseline
to
measure
the
performance
of
the
program
and
to
protect
against
hot
spots.
4
9)
One
participant
asked
how
tribes
can
be
involved
in
the
trading
program.


Will
there
be
a
set
aside
for
tribes
and
how
will
it
work?
Someone
asked
if
the
cap­
and­
trade
approach
inhibited
any
opportunities
for
tribes
to
obtain
set­
aside,
particularly
because
States
are
the
only
one
allegedly
receiving
allocations
under
the
rule.
Furthermore,
because
tribes
fall
under
the
tribal
authority
rule,
they
can
enter
a
proposed
cap­
and­
trade
program
at
any
time,
which
brings
up
the
question
on
when
budgets
should
be
awarded
tribes.
If
tribes
can
opt­
in
at
anytime,
under
the
section
111
approach,
there
may
no
be
allocations
available
for
tribes
when
they
enter
the
program.
Also,
if
tribes
opt­
in
later,
the
biggest
polluters
will
be
attracted
for
tribal
lands
due
to
the
lack
of
the
rule's
coverage
over
tribes.
Comments
concerning
tribal
set­
asides
are
encouraged.


Will
there
be
an
auction
that
the
tribes
can
buy
allowances
as
a
commodity.
EPA
staff
members
didn't
know
if
this
had
been
discussed.

10)
One
participant
commented
on
the
approach
for
establishing
the
allowance
budget.
He
raised
that
if
the
EPA
uses
the
111
approach
and
allocated
the
budget
through
the
States,
the
States
generally
don't
have
jurisdiction
in
Indian
country.
There
isn't
a
way
for
the
tribes
to
participate
but
it
also
means
that
new
sources
can
locate
in
Indian
country
without
allowances
and
thus
erode
the
environmental
benefit.

11)
In
a
follow
up
comment,
one
participant
stated
that
without
a
tribal
new
source
review
rule,
nothing
can
be
required
of
new
sources
on
tribal
lands.
Tribes
should
therefore
push
the
EPA
to
finalize
a
rule
for
Indian
Country.

12)
One
participant
expressed
concern
that
because
the
rule
is
national
in
scope
that
local
considerations
aren't
adequately
addressed.
They
discussed
the
example
of
mercury
levels
in
the
water
column
and
fish
tissues
in
Florida.
That
study
showed
as
the
mercury
emissions
from
nearby
Municipal
Waste
Incinerators
declined
so
did
the
mercury
levels
in
the
water
and
fish
tissues.

EPA
responded
to
state
that
we
recognize
the
concern
and
have
asked
for
comment
on
how
to
best
address
these
local/
hot
spot
issues.

13)
One
participant
discussed
that
not
all
hot
spots
are
caused
by
emissions
profiles
but
by
lifestyles.
For
example,
for
some
Great
Lakes
tribes
peak
fishing
seasons
are
in
the
spring
and
falls
and
in
these
times
there
is
an
increase
in
fish
consumption.
With
major
power
plants
90­
150
miles
away,
this
is
a
major
concern
for
the
tribes.

14)
In
a
follow
up
comment,
one
of
the
Minnesota
tribes
reminded
that
for
many
tribes
in
their
area
there
is
a
large
amount
of
fish
consumed
by
the
tribe
and
there
are
also
high
concentrations
of
mercury.
So
the
rule
raises
major
concern
for
them.
5
15)
One
participant
commented
that
there
is
a
lot
of
information
about
mercury
in
EPA's
water
program
and
suggested
that
the
air
and
water
people
share
information
with
each
other.

16)
A
participant
stated
that
the
rule
should
not
only
look
at
the
cost
to
industry
but
also
the
benefits
of
tighter
controls
including
the
benefits
of
tighter
rules
on
the
tribal
culture,
fish
populations
etc.

EPA
reminded
the
group
that
MACT
standards
are
set
without
regard
to
cost
of
control
but
that
we
have
to
look
at
the
top
12
percent
of
the
best
controls
available.
However,
we
are
doing
a
cost
and
benefits
analysis
that
will
look
at
benefits
as
best
we
can
given
that
many
of
these
issues
are
difficult
to
quantify.

17)
One
person
asked
EPA
to
comment
on
the
rule
of
industry
in
drafting
the
rule.

EPA
stated
there
was
a
Working
Group
under
the
Clean
Air
Act
Advisory
Committee
that
included
many
stakeholder
including
industry,
environmental
groups,
and
State
and
local
agencies.
This
Working
Group
drafted
white
papers
on
the
options
considered
in
the
rule.
However,
the
work
group
didn't
reach
consensus.
After
the
Agency
determined
the
appropriate
approach,
they
did
go
back
the
white
papers
to
help
provide
some
of
the
discussion.
However,
this
language
is
in
the
preamble
not
the
rule.

18)
One
Tribe
asked
why
wait
until
2018
for
the
15
ton
cap?
Given
that
mercury
is
persistent
in
the
environment,
shouldn't
we
reach
the
cap
sooner?
In
particular,
the
individual
is
concerned
if
the
date
and
cap
are
economic­
driven
numbers
in
an
attempt
to
protect
industry.

EPA
responded
that
we
expect
to
see
earlier
results
in
the
trading
programs
because
it
provides
the
market
incentive
to
provide
cost
effective
reductions.

19)
Someone
asked
what
consultation
was
conducted
regarding
the
tribes.

EPA
responded
that
they
tried
to
get
some
tribal
folks
to
participate
on
the
Working
Group
but
understood
that
tribes
have
limited
personnel
that
cover
many
areas
of
responsibility
and
so
didn't
push
when
the
tribes
declined
to
participate.
EPA
staff
members
acknowledged
that
tribes
weren't
really
consulted
on
the
proposed
mercury
rule,
at
least
not
like
the
consultation
that
occurred
for
the
Interstate
Air
Quality
Rule.

20)
One
tribe
asked
about
the
relationship
between
the
IAQR
and
mercury
rules.
He
asked
why
the
mercury
rule
covers
all
States
but
the
IAQR
only
addressees
the
eastern
States.
He
asked
if
limiting
the
IAQR
to
the
east
might
inadvertently
create
an
increase
in
power
generation
and,
thus,
mercury
emissions
in
the
west.

EPA
reminded
the
tribes
that
the
IAQR
is
designed
to
address
the
nonattainment
problems
associated
with
transport
across
State
lines.
Therefore
the
States
that
were
include
where
the
6
ones
that
modeling
indicated
significantly
contributed
to
the
nonattainment
problems
up­
wind.
However,
EPA
is
taking
comment
of
the
significance
level
used.
EPA
also
reminded
participants
that
the
Western
Regional
Air
Partnership
(
WRAP)
annex
from
the
Regional
Haze
rule
also
address
emissions
from
power
plants
so
that
might
mitigate
the
concern.

21)
On
a
follow
up
comment,
a
participant
reminded
folks
that
WRAP
will
be
discussing
this
issue
at
their
next
meeting.

22)
A
person
not
present
in
the
meeting
sent
an
e­
mail
stating
Arizona
was
quickly
becoming
the
power
supplier
for
the
State
of
California
and
there
was
a
huge
potential
for
hot
spots.

EPA
reminded
folks
that
allocations
are
given
in
the
baseline
year
so
new
sources
will
have
to
find
these
emissions
from
the
State
or
the
cap.
New
sources
will
also
have
to
meet
new
source
limits.

23)
In
a
follow
up
comment,
a
tribe
asked
how
modified
sources
would
be
affected.

EPA
stated
they
would
have
to
comply
with
the
appropriate
requirements
for
modifies
sources
either
under
NSR
or
other
programs.

24)
Someone
asked
if
the
proposed
rule
considered
the
differences
of
mercury
emissions
between
different
parts
of
the
country.
Without
considering
such
differences,
there
would
likely
be
inequity
in
the
trading
program.

EPA
representatives
where
unclear
about
this
issue
and
will
refer
it
to
the
appropriate
EPA
staff.
However,
EPA
staff
members
acknowledged
that
there
might
be
some
inequity
early
on,
but
this
would
work
itself
out
later
in
the
program
as
all
facilities
will
be
forced
to
install
controls
for
mercury
emissions.

25)
The
question
was
asked,
will
it
be
hard
to
track
emissions
and
to
separate
the
emissions
from
U.
S.
facilities
from
background?

26)
In
a
follow
up
statement,
some
of
the
Northwestern
tribes
are
impacted
by
emissions
from
Asia
and
elsewhere.
This
rule
doesn't
address
the
international
emissions
of
mercury.

EPA
stated
that
we
are
working
with
some
of
the
international
organizations
(
particularly
Canada)
on
mercury
issues.
However,
we
generally
don't
have
much
authority
to
affect
them.
That
being
said,
we
believe
that
we
will
have
more
leverage
to
pressure
other
countries
in
addressing
emissions
of
mercury
if
we
are
doing
our
part
in
addressing
our
own
emissions.
In
addition,
staff
members
in
the
Agency
are
involved
with
an
international
commission
currently
addressing
this
issue.

27)
One
participate
suggested
tribes
have
a
follow
up
call
with
the
EPA
staff
responsible
for
the
trading
program.
7
28)
One
participant
expressed
concern
that
the
trading
program
might
contribute
to
power
monopolies
since
the
bigger
companies
have
more
money
for
allowances.

29)
One
participant
stated
that
the
budgets
for
the
tribes
need
to
be
set
up
front
so
they
have
access
to
them.

30)
One
participant
asked
if
EPA
regulates
mercury
under
111
instead
of
112,
would
this
make
it
a
criteria
pollutant
and
would
it
change
the
emissions
factors
used
in
developing
emissions
inventories?

EPA
responded
moving
mercury
to
111
doesn't
make
it
a
criteria
pollutant
because
we
haven't
written
a
criteria
document
or
set
a
NAAQS.
What
it
does
is
change
the
way
we
can
approach
providing
flexibility
for
setting
the
technology
standard.
This
shouldn't
change
the
emissions
factors
calculations
but
will
follow
up
with
appropriate
technical
staff.

32)
Someone
asked
if
the
EPA
had
plans
to
mitigate
the
effects
of
mercury
currently
in
the
environment.
The
rule
doesn't
have
such
a
provision
but
folks
were
encouraged
to
comment.
One
participant
commented
EPA
needs
to
provide
resources
for
tribes
to
addressing
existing
mercury
from
past
deposition.

33)
Cost­
Benefit
Analysis
Someone
asked
what
type
of
cost­
benefit
analysis,
if
any,
was
conducted
for
the
proposed
rule.
The
individual
feels
that
this
is
important
when
considering
that
many
tribes
exercise
traditional
subsistence
lifestyles.

EPA
staff
members
commented
that
costs
aren't
consider
under
section
112.
With
respect
to
economics
in
general,
EPA
staff
noted
that
it
has
individuals
working
on
incorporating
economics
into
issues
concerning
mercury
and
food
consumption.

34)
Interstate
Air
Quality
Rule
Someone
asked
why
the
EPA
limited
the
Interstate
Air
Quality
Rule
to
the
east.

Two
answers
were
provided.
First,
the
rule
was
limited
to
the
east
based
on
a
significance
level
determined
by
the
EPA
based
on
the
impact
of
transport
on
non­
attainment
areas
(
see
also
CAA
section
110(
a)(
2)(
d)).
Second,
the
WRAP
has
a
rule
already
in
place.
Comments,
however,
are
encouraged
regarding
both
reasons.
Particularly,
EPA
asked
if
the
significance
level
need
to
be
lowered
and
should
the
rule
be
expanded
to
the
west?

35)
Someone
asked
how
the
EPA
was
fulfilling
its
trust
responsibility
to
tribes.

EPA
staff
members
commented
that
this
responsibility
is
being
met
by
decreasing
mercury
emissions.
8
36)
Someone
expressed
a
concern
that
mercury
trading
could
eventually
trigger
natural
resource
damage
claims.

37)
One
participant
commented
that
he
is
concerned
about
tribal
sovereignty.
The
issue
differs
from
the
comments
made
on
tribal
consultation
during
the
rule
making
process
and
it
differs
from
Trial
set­
asides
in
one
fundamental
way.
He
is
concerned
that
tribes
be
at
the
table
when
the
discussion
enters
allocation
distribution.
Tribes
should
be
given
a
voice
in
the
event
affect
them
and
they
do
not
want
allocations
going
to
a
nearby
source.

Mercury
Monitoring
Ryan
Callison
(
Cherokee
Nation)
provided
a
brief
overview
concerning
the
mercury
monitoring
that
he
is
currently
involved
with.

Ryan
has
been
conducting
wet
deposition
mercury
monitoring
for
about
a
year.
The
motivation
for
starting
this
monitoring
was
based
on
increased
power
plant
construction
in
Oklahoma
and
nearby
Arkansas
and
Missouri.
A
lot
of
power
plant
facilities
are
sited
along
navigable
waterways
and
directly
impact
resources
used
by
the
tribes
or
could
be
potentially
used
by
tribes.
To
get
started,
Ryan
contacted
individuals
from
Illinois
and
OAQPS
to
discern
the
best
siting
for
mercury
monitors.
He
found
that
co­
locating
mercury
monitors
with
CastNet
was
a
good
set­
up.
Ryan
also
encouraged
folks
to
find
the
Mercury
Deposition
Network
(
MDN)
on
the
Internet
which
contains
information
that
can
be
used
to
justify
building
a
mercury
monitoring
program
(
which
coal
is
burned,
elemental
mercury,
wet
deposition
across
the
country).
Through
the
MDN,
folks
can
acquire
an
updated
map
regarding
where
current
mercury
monitors
located
throughout
the
country.

The
tribe's
mercury
monitoring
program
is
fairly
inexpensive
and
requires
little
personnel
time.
The
greatest
cost
was
during
the
first
year
when
he
had
to
obtain
equipment,
organize
laboratory
analysis
for
the
mercury
monitoring
samples,
etc.
Tribes
may
be
able
to
acquire
funding
support
from
a
nearby
State
or
section
106
grant.
The
only
personnel
time
required
for
monitoring
consists
of
30­
40
minutes
where
the
individual
collects
the
monitor
sample
and
loads
up
a
new
one
(
for
the
Cherokee,
samples
are
taken
every
Tuesday).
Because
he
is
conducting
wet
deposition
mercury
monitoring,
the
aerochem
(
sp?)
collector
is
always
open
during
rain
events.
Mercury
sample
analyses
are
done
through
Frontier
Geosciences
based
in
Seattle,
WA.
So
far,
the
tribe
has
found
that
mercury
emissions
in
their
area
are
at
average
to
above
average
of
the
national
level.

Individuals
on
the
call
asked
how
find
out
about
power
plant
locations.
Such
information
may
be
downloaded
from
the
E­
GRID
program
which
is
part
of
the
larger
EPA
website.
Folks
just
need
to
go
to
the
EPA
website
and
type
in
"
E­
GRID"
in
the
search
box.
The
E­
GRID
program
will
provide
a
list
of
every
power
plant
in
the
country.

Brandy
Toft
interjected
that
if
you
want
to
hook
up
a
monitor
but
are
turned
down
by
the
MDN
network
or
EPA
is
not
entirely
supportive,
don't
give
up.
To
have
a
total
analysis
of
mercury
for
9
Leech
Lake
with
different
media
(
fish
tissue,
water,
vegetation,
etc.).
Leech
Lake
needed
to
add
deposition
from
air.
She
went
ahead
and
found
a
"
retired"
mercury
monitor
from
the
University
of
Minnesota
and
only
needs
maintain
the
monitor.
EPA
supports
the
cost
for
mercury
analysis.
Leech
Lake
is
not
a
part
of
any
mercury
network.

To
obtain
presentations,
please
go
to:
www.
epa.
gov/
mercury
www.
epa.
gov/
ttn/
atw/
hlthef/
mercury.
html
For
further
information,
please
contact
the
following
individuals:

Bill
Maxwell
919­
541­
5430
or
maxwell.
bill@
epa.
gov
Laura
McKelvey
919­
541
 
5497
or
mckelvey.
laura@
epa.
gov
