RESPONSE
TO
SIGNIFICANT
PUBLIC
COMMENTS
ON
THE
PROPOSED
CLEAN
AIR
MERCURY
RULE
Received
in
response
to:

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
(
69
FR
4652;
January
30,
2004)

Supplemental
Notice
for
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
(
69
FR
12398;
March
16,
2004)

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:
Notice
of
Data
Availability
(
69
FR
69864;
December
1,
2004)

Docket
Number
OAR­
2002­
0056
10.0
OTHER
US
Environmental
Protection
Agency
Emissions
Standards
Division
Office
of
Air
Quality
Planning
and
Standards
Research
Triangle
Park,
North
Carolina
27711
15
March
2005
i
General
Outline
1.0
INTRODUCTION
AND
BACKGROUND
2.0
APPLICABILITY
AND
SUBCATEGORIZATION
3.0
PERFORMANCE
STANDARDS
FOR
COAL­
FIRED
ELECTRIC
UTILITY
STEAM
GENERATING
UNITS
4.0
PERFORMANCE
STANDARDS
FOR
OIL­
FIRED
ELECTRIC
UTILITY
STEAM
GENERATING
UNITS
5.0
MERCURY
CAP­
AND­
TRADE
PROGRAM
6.0
MERCURY
EMISSIONS
MONITORING
7.0
IMPACT
ESTIMATES
8.0
COMPLIANCE
WITH
EXECUTIVE
ORDERS
AND
STATUTES
9.0
NODA
10.0
OTHER
Appendix
A
LIST
OF
COMMENTERS
10­
1
10.0
OTHER
10.1
OTHER
MERCURY
SOURCES
Comment:

One
commenter
(
OAR­
2002­
0056­
2695)
requested
that
the
final
rule
address
Hg
emissions
from
international
sources.
A
second
commenter
(
OAR­
2002­
0056­
3552)
noted
that
a
global
approach
will
be
needed
to
address
emissions
from
international
sources
because
areas
west
of
the
Mississippi
River
receive
less
total
Hg
deposition,
but
a
higher
total
Hg
deposition
from
sources
outside
the
U.
S.

Response:

Anthropogenic
Hg
emissions
from
the
U.
S.
are
estimated
to
account
for
roughly
three
percent
of
total
global
emissions,
and
emissions
from
the
U.
S.
power
sector
are
estimated
to
account
for
about
one
percent
of
global
emissions.
(
United
Nations
Environment
Programme.
Chemicals,
Global
Mercury
Assessment,
Geneva,
2002.).
Although
the
U.
S.
has
no
legal
authority
to
regulate
Hg
emission
sources
outside
its
boundaries,
the
U.
S.
is
a
leader
in
promoting
and
facilitating
global
reductions
in
Hg
use
and
releases.

The
U.
S.
engages
international
partners,
multilaterally
and
bilaterally,
to
address
key
Hg
issues
including
data
collection
and
inventory
development,
source
characterization,
and
best
practices
for
emissions
and
use
reduction.
Most
recently,
the
U.
S.
has
provided
leadership
in
the
United
Nations
Environment
Program
(
UNEP)
Governing
Council
(
GC).
In
2003,
the
UNEP
GC
adopted
a
U.
S.
proposal
establishing
the
UNEP
Mercury
Program
to
facilitate
and
conduct
technical
assistance
and
capacity
building
to
support
efforts
of
developing
countries
and
countries
with
economies
in
transition
to
take
action
regarding
Hg
pollution.
In
February
2005,
the
UNEP
GC
adopted
a
U.
S.
proposal
that
accelerates
the
work
of
the
UNEP
Mercury
program
by
engaging
countries
in
partnerships
and
collaborative
activities
to
produce
tangible
results
in
the
near
term
by
facilitating
global
reductions
in
Hg
exposure,
use,
and
release.
This
agreement
will
advance
specific
projects
in
key
source
countries
and
priority
sectors
by
engaging
a
diverse
array
of
stakeholders,
including
governments,
the
private
sector,
international
organizations,
and
nongovernmental
organizations,
to
leverage
resources,
technical
capacity
and
expertise.

Other
examples
of
U.
S.
international
efforts
in
this
area
include
our
work
with
the
Arctic
Council
Action
Plan
(
ACAP)
and
the
Arctic
Monitoring
and
Assessment
Program
(
AMAP)
to
strengthen
capacity
building
and
technical
cooperation
program;
and
our
support
for
the
development
of
Russia's
Hg
action
plan
and
inventory,
as
well
as
support
for
a
regional
Arctic
inventory
and
emissions
reductions
projects.
The
U.
S.
has
also
developed
bilateral
Hg
cooperation
programs
to
foster
assessment
and
sector
specific
improvements
in
China
and
India.

The
U.
S.
has
been
a
global
leader
in
taking
actions
to
address
our
domestic
Hg
emissions.
Now,
the
U.
S.
is
the
first
country
in
the
world
with
plans
to
regulate
Hg
emissions
10­
2
from
power
plants.
We
believe
that
this
section
111
regulation
will
further
the
leadership
of
the
U.
S.
in
this
area
as
well
as
encourage
development
of
Hg
control
technologies
that
may
be
utilized
worldwide.

Comment:

Eight
commenters
(
OAR­
2002­
0056­
1327,
­
1471,
­
1611,
­
1664,
­
2110,
­
2219,
­
2878,
­
3457)
stated
that
it
is
unclear
how
the
U.
S.
will
meet
its
obligations
under
the
Great
Lakes
Water
Quality
Agreement,
Great
Lakes
Binational
Toxics
Strategy,
New
England
Governors
and
Eastern
Canadian
Premiers
Mercury
Action
Plan,
and
the
1998
Protocol
to
the
Convention
on
Long­
Range
Transboundary
Air
Pollution
signed
by
the
U.
S.,
Canada
and
Europe,
and
other
international
agreements
because
the
proposal
would
allow
such
high
emissions
of
Hg.

Response:

EPA
believes
that
the
final
rule
will
significantly
reduce
Hg
emissions,
as
is
explained
more
fully
in
the
preamble
and
elsewhere
in
this
response
to
comments
document
and
the
rulemaking
record.
Thus
the
rule
will
advance
the
objectives
of
the
international
instruments
cited
by
the
commenters.

Comment:

One
commenter
(
OAR­
2002­
0056­
1436)
stated
that
EPA
should
be
more
concerned
about
Hg
as
a
preservative
in
vaccinations.

Response:

Approving
the
use
of
Hg
as
a
preservative
in
vaccines
is
not
within
EPA's
authority.
Such
authority
rests
with
the
U.
S.
Food
and
Drug
Administration
(
FDA).
Information
on
Hg
in
vaccines
(
thimerosol)
may
be
found
at
http://
www.
fda.
gov/
cber/
vaccine/
thimerosal.
htm
and
at
http://
www.
cdc.
gov/
nip/
vacsafe/
concerns/
thimerosal/
default.
htm.

Comment:

Numerous
commenters
(
OAR­
2002­
0056­
2695,
­
3552,
and
others
listed
in
this
paragraph)
pointed
out
the
need
to
address
other
sources
of
Hg
emissions.
Several
commenters
(
OAR­
2002­
0056­
1104,
­
1251,
­
1293,
­
1308,
­
1530,
­
1611,
­
2729,
­
2750,
­
2765,
­
2981,
­
3243,
­
3122,
­
3657,
­
4050,
­
4410,
­
4417,
­
4620,
­
4718,
­
5007)
stated
that
Hg
should
be
banned
from
all
products
(
e.
g.,
dental
amalgam,
vaccinations,
additives
in
paints
and
pesticides,
electronic
equipment),
and
that
emissions
from
all
other
industrial
sources
(
industrial
boilers,
hazardous
waste
incinerators,
Cl
production)
need
to
be
controlled.
Several
of
these
commenters
described
severe
health
effects
from
dental
amalgam.
One
commenter
(
OAR­
2002­
0056­
3199)
supported
control
of
Hg
emissions
from
coal­
fired
power
plants,
but
noted
that
power
plants
were
not
the
only
sources
of
Hg
and
stated
that
a
better
inventory
of
all
sources
(
e.
g.,
chlor­
alkali
plants,
automobile/
white
goods
scrap
yards,
and
shredders
[
including
furnaces
using
products
from
10­
3
shredders],
etc.)
was
needed.
The
commenter
stated
that
these
emissions
were
also
significant
and
merited
further
study.

Response:

A
number
of
the
sources
of
Hg
exposure
noted
by
the
commenters
(
e.
g.,
dental
amalgam,
vaccinations)
are
not
within
the
statutory
authority
of
the
EPA.
As
noted
earlier,
approving
Hg
use
in
vaccinations
is
under
the
authority
of
the
FDA.
Similarly,
dental
amalgams
fall
under
the
purview
of
the
FDA;
information
on
the
research
being
conducted
on
the
use
of
mercury
in
dental
amalgams
may
be
found
at
http://
www.
fda.
gov/
OHRMS/
DOCKETS/
98fr/
03­
11648.
html
and
consumer
information
on
the
use
of
Hg
in
dental
amalgams
may
be
found
at
http://
www.
fda.
gov/
cdrh/
consumer/
amalgams.
html.
Information
about
activities
on
many
of
the
other
sources
noted
by
the
commenters
may
be
found
through
www.
epa.
gov/
mercury.
EPA
agrees
that
coal­
fired
utility
units
are
not
the
only
source
of
Hg
in
the
U.
S.;
the
industrial
sources
of
Hg
noted
by
the
commenters
are
the
subject
of
other
regulatory
efforts
by
EPA
under
the
CAA.
In
1990,
more
than
two­
thirds
of
U.
S.
anthropogenic
Hg
emissions
came
from
just
three
industrial
source
categories:
coal
fired
power
plants,
municipal
waste
combustion,
and
medical
waste
incineration.
In
1990,
EPA
issued
final
regulations
for
large
municipal
waste
combustors
(
MWC),
a
sector
which
emitted
approximately
57
tons
of
Hg
emissions.
Implementation
of
large
MWC
regulations
has
reduced
Hg
emissions
by
88
percent
from
1990
emission
levels.
In
2005,
these
regulations
are
projected
to
reduce
MWC
emissions
by
91
percent
from
1990
emission
levels.
Medical
waste
incerators
are
also
subject
to
stringent
emissions
standards,
and
have
reduced
Hg
emissions
by
97
percent
from
1990
emissions.

Regulations
to
limit
Hg
emissions
from
chlorine
production
facilities
that
use
Hg
cells
and
regulation
of
industrial
boilers,
will
further
reduce
emissions
of
Hg
when
they
become
effective
in
the
next
few
years.
EPA
issued
final
standards
for
Hg
from
chlor­
alkali
production
on
December
19,
2003.
EPA
expects
that
these
standards,
when
fully
implemented
by
the
end
of
2006,
will
cut
Hg
emissions
from
point
sources
at
these
facilities
by
74
percent
and
will
cut
total
Hg
reductions
from
these
facilities
by
about
11
percent
from
1999
emission
levels.
EPA
has
also
issued
regulations
to
reduce
Hg
emissions
from
industrial
boilers.
EPA
estimates
that
this
regulation,
when
fully
implemented
in
2007,
will
reduce
emissions
by
17
percent
from
12
tons
to
10
tons
per
year.

In
addition,
actions
to
limit
the
use
of
Hg,
most
notably
Congressional
action
to
limit
the
use
of
Hg
in
batteries
and
EPA
regulatory
limits
on
the
use
of
Hg
in
paint,
reduced
the
Hg
content
of
waste
contributed
to
the
reduction
of
Hg
emissions
from
waste
combustion
during
the
1990s.

Comment:

One
commenter
(
OAR­
2002­
0056­
3426)
stated
that
policymakers
should
implement
regulations
to
obtain
maximum
control
of
Hg
from
all
sources
with
uniform
limits,
develop
scientifically­
based
fish
consumption
guidelines
that
ensure
that
98
percent
of
the
population
is
within
EPA's
safe
level
of
MeHg
exposure,
and
cooperate
internationally
to
reduce
the
global
10­
4
problem.

Response:

EPA
is
working
along
the
lines
that
the
commenter
suggests.
As
discussed
in
responses
to
comments
presented
elsewhere
in
this
document
above,
regulations
are
being
established
for
the
significant
Hg­
emitting
sources
based
on
the
requirements
of
the
CAA.
In
addition,
as
discussed
above,
EPA
is
working
with
the
international
community
to
address
emissions
of
Hg.
EPA
believes
that
the
final
utility
rule
will
serve
to
reduce
deposition
of
Hg
and,
thus,
lead
to
improvements
in
fish
tissue
Hg
concentrations.

Comment:

One
commenter
(
OAR­
2002­
0056­
3543)
recommended
that
the
final
rule
address
the
disposal
of
Hg
removed
from
the
air
emissions.
The
commenter
felt
that,
from
the
perspective
of
watershed
and
fish
contamination,
no
progress
would
be
made
if
only
the
route
of
contamination
(
but
not
the
extent)
were
changed.

Response:

This
is
an
area
of
research
that
EPA
continues
to
pursue
through
its
Offices
of
Research
and
Development
and
Solid
Waste,
in
coordination
with
other
Federal
agencies
and
industry
groups.
The
findings
to­
date
indicate
that,
for
most
management
practices,
leaching
of
Hg
does
not
appear
to
be
of
concern
for
land
disposal
of
coal
combustion
residues
(
CCR),
including
from
those
sources
where
carbon
sorbents
have
been
tested
for
Hg
control.
("
Potential
for
Cross­
Media
Transfers
from
Management
of
Mercury­
Enriched
Coal
Combustion
Residues,"
OAR­
2002­
0056­
6139)
Further
evaluation
is
warranted
to
understand
whether
the
extent
of
this
leaching
would
pose
a
potential
concern.

10.2
STAKEHOLDER
INFLUENCE
Comment:

Many
commenters
specifically
criticized
industry
influence
on
EPA's
rulemaking.
Many
commenters
stated
that
the
proposals
favor
the
industry
over
public
health.
Many
pointed
to
the
use
of
Latham
and
Watkins
language
in
the
preamble.
One
commenter
(
OAR­
2002­
0056­
2160)
specifically
stated
that
whole
sections
were
lifted
from
the
report
of
a
firm
representing
interests
of
western
coal
producers.
The
science
used
by
EPA
in
establishing
the
limits
for
bituminous
and
subbituminous
coal
was
questioned
because
of
the
undue
influence
of
certain
constituent
groups.
Two
Congressmen
requested
detailed
information
on
this
rulemaking
process.

Response:

EPA
is
aware
of
the
concern
expressed
by
the
commenters
and
has
responded
to
the
Congressional
inquiries.
The
material
in
question
was
provided
to
the
EPA
through
the
Clean
10­
5
Air
Act
Advisory
Committee
working
group
process
established
under
the
Federal
Advisory
Committee
Act
(
FACA)
and,
thus,
we
do
not
feel
that
its
use
was
inappropriate.

Comment:

One
commenter
(
OAR­
2002­
0056­
3517)
urged
EPA
to
balance
comments
received
from
the
various
stakeholders
to
make
sure
that
the
Hg
rules
do
not
become
a
driver
for
the
coal
market.

Response:

EPA
has
considered
all
comments
received
on
or
before
January
3,
2005,
in
developing
the
final
rule.

Comment:

One
commenter
(
OAR­
2002­
0056­
2248)
stated
that
the
involvement
of
a
senior
EPA
official
in
both
the
Hg
lawsuit
against
the
Agency
and
in
EPA's
settlement
of
the
matter
presented
the
appearance
of
a
conflict
of
interest
that
must
be
investigated
to
preserve
the
right
to
constitutional
due
process.
The
commenter
felt
that
a
potentially
serious
conflict
of
interest
overshadowed
the
current
rulemaking,
and
that
the
presence
of
David
Doniger
as
a
senior
member
of
EPA's
air
office
during
this
rulemaking,
as
well
as
his
participation
in
the
matter
at
EPA,
raised
serious
questions
about
the
rulemaking's
transparency
and
validity.
The
commenter
asserted
that
this
official's
participation
in
the
rulemaking
violated
the
fundamental
constitutional
right
of
due
process
and
necessitated
postponement
of
further
action
on
the
rule
until
this
apparent
conflict
has
been
fully
investigated.

Response:

The
issue
noted
by
the
commenter
is
the
subject
of
a
Freedom
of
Information
Act
(
FOIA)
by
the
commenter
and,
thus,
EPA
can
not
respond
at
this
time
to
the
comment.

10.3
LEGAL
ISSUES
10.3.1
Broad
Authority
Under
CAA
Section
111(
d)

Comment:

Four
commenters
(
OAR­
2002­
0056­
2224,
­
2835,
­
2867,
­
2922)
filed
comments
to
supplement
EPA's
discussion
of
its
statutory
authority
to
regulate
under
CAA
section
111
and
to
establish
a
cap­
and­
trade
program.
They
stated
that
CAA
section
111
confers
broad
legal
authority
for
the
regulation
of
existing
sources
under
a
Federal­
State
partnership.
The
legislative
history
and
the
relationship
between
the
plans
developed
for
the
State­
Federal
partnerships
under
CAA
section
110
and
section
111
further
supports
EPA's
determination
that
a
flexible
emissions
trading
program
can
be
implemented
under
section
111(
d).
10­
6
The
commenters
noted
that
this
partnership
contemplates
EPA
establishing
"
standards
of
performance"
at
the
national
level
and
each
state
developing
a
regulatory
program
for
implementing
and
enforcing
those
standards
at
the
state
level.
The
commenters
pointed
out
that
the
statute
explicitly
notes
that
the
Federal­
State
partnership
under
CAA
section
111(
d)
is
to
be
modeled
after
the
regulatory
process
used
under
CAA
section
110.
In
that
regulatory
context,
CAA
section
110
provides
States
with
wide
latitude
in
developing
emissions
control
strategies
for
achieving
Federal
air
quality
goals
 
National
Ambient
Air
Quality
Standards
(
NAAQS)
established
by
EPA
at
the
national
level.

Both
the
statute
and
legislative
history
confirm
that
Congress
delegated
broad
legal
authority
to
adopt
flexible
regulatory
mechanisms
for
controlling
existing
sources
under
section
111(
d)(
1).
This
broad
delegation
of
authority
provides
sufficient
authority
for
EPA
to
establish
flexible
"
standards
of
performance"
that
need
not
prescribe
when,
how,
and
the
degree
to
which
each
affected
unit
must
achieve
that
emissions
limitation
 
either
on
a
unit­
by­
unit
basis
or
facility­
by­
facility
basis.
In
addition,
the
CAA
authorizes
States
to
implement
and
enforce
those
standards
of
performance
through
cap­
and­
trade
program
or
other
such
flexible,
market­
based
mechanism
that
implements
the
reduction
requirement
imposed
under
the
standard
of
performance,
while
taking
into
consideration
"
the
remaining
useful
life"
of
the
source
as
well
as
"
other
factors."
EPA's
proposed
trading
scheme
is
one
effective
mechanism
for
States
to
address
concerns
regarding
existing
units
whose
remaining
useful
life
is
limited
such
that
the
purchase
of
allowances
may
be
appropriate
in
lieu
of
making
additional
major
pollution
control
investments
at
those
units.
Commenter
OAR­
2002­
0056­
2835
described
in
detail
how
this
interpretation
is
confirmed
in
the
legislative
history
to
CAA
section
111(
d).

Another
indication
of
the
broad
discretion
accorded
to
EPA
and
States
in
implementing
and
enforcing
standards
of
performance
under
section
111
(
d)(
1)
is
the
relationship
that
this
section
has
with
section
110.
Section
111
(
d)(
1)
requires
EPA
to
promulgate
regulations
that
establish
SIP­
like
procedures
similar
to
those
in
section
110
to
be
used
by
States
in
submitting
their
plans.
The
CAA
section
111(
d)
plans
and
SIP
programs
are
complementary
to
one
another
 
in
particular,
a
State's
plan
under
section
110
(
or
section
172,
for
non­
attainment
areas)
can
be
used
to
meet
the
standards
under
section
111(
d).
States
can
thus
use
the
SIP
regulatory
tools
in
CAA
sections
110(
a)(
2)(
A)
and
172(
c)(
6)
to
establish
"
enforceable
emissions
limitations
and
other
control
measures"
to
achieve
this
end.
One
such
regulatory
tool
available
to
States
explicitly
referenced
under
these
sections
is
the
adoption
of
"
economic
incentives
such
as
fees,
marketable
permits,
and
auctions
of
emissions
rights,"
when
developing
a
plan
to
comply
with
the
standards
under
section
111(
d)(
1).

This
complementary
relationship
was
confirmed
in
EPA's
guidance
for
implementing
the
Emission
Guidelines
for
Municipal
Waste
Combustors
established
under
CAA
sections
111(
d)
and
129.
EPA's
guidance
explained
that
where
the
SIP
requirements
are
adequate
to
meet
the
section
111(
d)/
129
standard
­
which
are
required
to
be
more
rigorous
than
emission
guidelines
under
only
section
111(
d)
­
the
State
has
the
authority
to
submit
a
section
111(
d)/
129
plan
that
relies
on
the
requirements
of
the
SIP
to
meet
the
section
111
(
d)/
129
standard.
The
commenter
adds
that
the
section
111(
d)/
129
rule
for
Municipal
Waste
Combustors
also
clearly
contemplated
that
States
would
use
trading
when
implementing
and
enforcing
the
standards­
the
rule
explicitly
provided
10­
7
that
a
state
plan
could
"
establish
a
program
to
allow
owners
or
operators
of
municipal
waste
combustor
plants
to
engage
in
trading
of
nitrogen
oxides
emission
credits."

Commenter
OAR­
2002­
0056­
2867
stated
that
EPA
has
correctly
harmonized
these
conflicting
statutory
provisions,
and
interpreted
them
in
a
way
that
effectuates
the
purposes
of
the
statute
as
whole.
The
commenter
agreed
that
the
key
provision
in
the
definition
of
a
"
standard
of
performance"
under
CAA
section
111
is
the
phrase
"
the
best
system
of
emissions
reduction."
Since
this
phrase
is
not
defined
by
statute,
EPA
has
broad
discretion
in
determining
what
is
the
"
best
system
of
emissions
reduction,"
so
long
as
the
system
ultimately
selected
"
has
been
adequately
demonstrated."
The
commenter
pointed
out
the
definition
places
no
other
explicit
statutory
constraints
on
EPA
in
making
this
determination,
except
that
it
must
consider
the
following
factors:
the
cost
of
achieving
the
Hg
reductions,
non­
air
quality
health
and
environmental
impacts,
and
energy
requirements.
The
commenter
concluded
that
the
statute
requires
the
standards
of
performance
be
based
on
"
the
degree
of
emission
limitation
achievable"
by
the
best
system
of
emissions
reduction
system
selected
by
EPA.
As
evidenced
by
the
success
of
other
cap­
and­
trade
programs
for
the
power
sector,
i.
e.,
the
NOx
SIP
Call
and
the
Title
IV
Acid
Rain
Program,
the
trading
program
approach
satisfies
the
statutory
requirement
for
setting
the
standard
of
performance
based
on
the
best
system
of
emission
reduction
for
the
electric
utility
source
category.

The
commenter
felt
it
is
important
to
note
that
the
statutory
definition
does
not
require
specific
units
or
facilities
to
install
emissions
control
technology.
In
addition,
the
definition
is
silent
on
whether
or
not
the
standard
of
performance
prescribing
specific
emissions
limits
should
directly
apply
on
a
unit­
by­
unit
or
facility­
by­
facility
basis.
The
commenter
also
noted
that
the
definition
is
silent
on
whether
each
unit
or
facility
must
achieve
specific
reduction
levels
continuously
or
averaged
over
a
specific
period
of
time.
(
Regarding
this
issue,
the
commenter
pointed
out
that
CAA
section
302(
1)
also
contains
a
definition
of
the
term
"
standard
of
performance,"
which
defines
the
term
to
mean
"
a
requirement
of
continuous
emission
reduction,
including
any
requirement
relating
to
the
operation
or
maintenance
of
a
source
to
assure
continuous
emissions
reduction."
It
appears
to
the
commenter
that
this
definition
would
not
be
controlling
for
purposes
of
setting
standards
of
performance
under
section
111,
given
that
Congress
chose
to
adopt
another
specific
definition
of
standard
of
performance
in
CAA
section
111.

Three
commenters
(
OAR­
2002­
0056­
2224,
­
2835,
­
2867)
emphasized
that
CAA
section
111(
d)(
1)
itself
does
not
independently
mandate
that
standards
of
performance
for
existing
sources
impose
a
source­
specific
requirement
for
continuous
emission
reduction.
Thus,
a
State
plan
incorporating
a
standard
of
performance
that
employs
a
cap­
and­
trade
mechanism
would
not
conflict
with
the
statutory
requirements
of
section
111(
d)(
1).
However,
a
strong
case
can
be
made
for
the
proposition
that
the
emissions
cap
and
allowance­
holding
requirement
in
EPA's
proposed
section
111(
d)
trading
program
impose
a
"
continuous
emissions
reduction"
requirement
on
affected
electric
utility
units.
The
proposed
cap­
and­
trade
program
establishes
a
permanent
cap
on
Hg
emissions
and
requires
affected
sources
to
hold
allowances
that
correspond
to
the
level
of
Hg
emissions
from
those
sources
at
all
times.
By
its
very
elements,
the
proposed
cap­
and­
trade
program
is
a
continuous
method
of
emission
reduction
given
that
there
is
no
point
in
time
when
an
10­
8
affected
source
can
emit
Hg
without
holding
allowances
that
correspond
to
those
emissions.
EPA's
proposal
also
requires
continuous
emissions
monitoring
to
assure
that
a
source
complies
with
the
requirements
of
the
cap­
and­
trade
program
at
all
times.
Thus,
if
a
court
were
ever
to
construe
section
111(
d)(
1)
to
require
a
"
continuous
emission
reduction,"
the
features
of
EPA's
proposed
trading
program
should
meet
that
requirement.

The
legislative
history
of
the
term
"
standard
of
performance,"
does
not
specifically
reference
an
allowance
trading
system
as
a
regulatory
mechanism
for
controlling
emissions
under
CAA
section111(
d),
but
generally
reflects
Congress'
intent
that
existing
sources
be
accorded
considerable
flexibility
in
meeting
the
section
111(
d)
standards.
Such
legislative
intent
for
compliance
flexibility
provides
general
support
for
EPA's
interpretation
that
the
term
"
standard
of
performance"
may
include
an
allowance
trading
program,
as
proposed
in
the
Hg
rule,
because
such
a
trading
program
accords
flexibility
to
sources.

According
to
the
commenter,
the
Senate
debate
on
the
1990
amendments
reinforces
this
statutory
interpretation,
in
light
of
Congress'
express
action
removing
any
specific
percent
reduction
requirement
from
the
concept
of
"
standards
of
performance."
As
an
example,
the
commenter
states
that
Senator
Baucus
explains
that
Congress
adopted
a
percentage
reduction
requirement
in
the
1977
CAA
Amendments
to
ensure
that
coal­
fired
electric
generating
units
did
not
rely
on
low­
sulfur
"
compliance"
coal
alone
to
meet
NSPS
for
SO2.
According
to
Senator
Baucus,
a
percentage
reduction
requirement
across
the
board
was
supposed
to
require
SO2
scrubbers
regardless
of
the
rank
of
coal
combusted;
however,
this
approach
accentuated
the
regional
split
over
coal
use
that
existed
prior
to
1977.
With
the
adoption
of
the
SO2
emissions
cap
under
the
Title
IV
acid
rain
program,
the
percentage
reduction
requirement
was
no
longer
necessary
and
could
in
fact
be
a
barrier
to
flexible
compliance
under
the
acid
rain
trading
program.
The
commenter
continues
that
accordingly,
Congress
elected
to
repeal
the
percent
reduction
requirement
during
the
1990
CAA
Amendments.

The
commenter
also
referenced
remarks
in
debate
by
Senator
Bond
during
the
1990
CAA
Amendments
that
also
pertain
to
the
removal
of
the
percentage
reduction
requirement
and,
indirectly,
the
continuous
emission
reduction
requirement.
Specifically,
Senator
Bond
explained
that
both
the
House
and
the
Senate
rejected
the
concept
of
the
percentage
reduction
and
"
directed
EPA
to
come
up
with
an
alternative
standard
that
would
allow
utilities
to
meet
it
in
the
most
flexible
manner
possible."
Senator
Bond
further
noted
that
the
new
standards
could
be
met
by
fuel
switching,
the
use
of
technology
and
fuel
switching,
by
technology
alone,
and
by
intermittent
controls
or
intermittent
operation.
Senator
Bond
continued
by
stating
that
"[
t]
he
way
the
language
is
constructed,
intermittent
controls
can
be
allowed
to
comply
with
this
section
of
the
act.
So
for
the
first
time
in
13
years
we
will
have
EPA
setting.
.
.
emission
levels
for
SO2
that
will
not
require
the
use
of
the
scrubbers
for
compliance."

The
commenter
stated
that
this
flexibility
was
not
intended
to
be
limited
to
utility
standards,
or
the
operation
of
the
Acid
Rain
Program,
but
was
to
be
afforded
to
all
sources
subject
to
"
standards
of
performance"
under
section
111.
The
commenter
felt
it
would
be
ironic
if
EPA
failed
to
take
advantage
of
the
flexibility
specifically
intended
by
Congress
to
benefit
the
utility
industry
in
the
context
of
developing
requirements
for
Hg
control,
since
EPA
itself
has
not
10­
9
identified
any
particular
control
technology
as
the
basis
for
its
standards.

Response:

EPA
concurs
with
the
comments.

10.3.2
EPA
Must
Regulate
Under
Section
112
Comment:

Several
commenters
(
OAR­
2002­
0056­
2108,
­
2173,
­
2330,
­
2332,
­
2359,
­
2575,
­
2823,
­
2836,
­
2871,
­
2878,
­
2880,
­
2889,
­
2920,
­
2924,
­
3393,
­
3394,­
3459,
­
4139)
argued
that
EPA
lacks
authority
to
regulate
HAP
under
section
111.

Response:

Those
comments
are
summarized
and
responded
to
in
the
Response
to
Comments
("
Response
to
Significant
Public
Comments
Concerning
the
Proposed
Revision
of
the
December
2000
Appropriate
and
Necessary
Finding
and
the
Removal
of
Utility
Units
from
the
Section
112(
c)
List").
We
incorporate
those
comments
and
responses
herein
by
reference.
EPA
also
believes
it
has
addressed
these
concerns
in
the
revision
of
EPA's
CAA
section
112(
n)
determination.

10.3.4
Clean
Water
Act
Comment:

Many
public
interest
groups
(
more
than
73)
contended
that
EPA
completely
ignored
its
statutory
obligations
to
control
non­
point
sources
of
pollution
under
Clean
Water
Act
(
CWA)
section
303(
d)(
4)(
B).
Although
the
CWA
does
not
give
EPA
direct
authority
to
impose
controls
on
individual
non­
point
sources,
EPA
is
responsible
for
ensuring
that
non­
point
source
pollution
does
not
undermine
state
water
quality
goals.
Atmospheric
deposition
of
Hg
from
power
plants
is
an
acknowledged
and
significant
source
of
non­
point
source
pollution.
The
relaxed
controls
under
the
proposed
rule
will
lead
to
decreasing
waster
quality
and
violations
of
state
water
quality
standards.
EPA
must
implement
Hg
non­
point
source
controls
that
meet
best
management
practices
of
the
CWA's
antidegradation
provisions.
Commenter
OAR­
2002­
0056­
2575
stated
that
EPA
utterly
failed
to
consider
the
CWA
compliance
implications
of
the
proposal
or
of
their
own
collaborative
effort
to
reduce
deposition
of
toxics
to
all
waterbodies
through
their
Air­
Water
Interface
Work
Plan
general
strategy.

Response:

Commenters
cite
to
section
303(
d)(
4)((
B)
of
the
Clean
Water
Act
(
CWA)
and
assert
that
EPA
has
ignored
its
statutory
obligations
under
the
CWA
to
control
nonpoint
sources
of
pollution.
Commenters
are
mistaken
regarding
EPA's
obligations
or
authorities
under
the
10­
10
CWA
to
control
nonpoint
sources
of
pollution.
Section
303(
d)(
4)(
B)
is
a
provision
that
addresses
when
a
permitting
authority
may
include
less
stringent
effluent
limitations
in
a
point
source
NPDES
permit.
The
section
does
not
address
nonpoint
sources
of
pollution.
There
is
a
reference
in
CWA
section
303(
d)(
4)(
B)
to
EPA's
antidegradation
policy.
EPA's
antidegradation
policy,
however,
does
not
authorize
EPA
to
regulate,
or
compel
States
to
regulate,
nonpoint
sources
of
pollution.
See
American
Wildlands,
et
al.
v.
Browner
et
al.,
260
F.
3d
1192,
1198
(
10th
Cir.
2001))
Commenters
appear
to
admit
as
much
when
they
say
that
"
the
CWA
does
not
give
EPA
direct
authority
to
impose
controls
on
individual
nonpoint
sources
.
.
."
To
the
extent
that
commenters
believe
that
the
CWA
or
EPA's
antidegradation
policy
obligates,
or
gives
authority
to,
EPA
to
regulate
or
compel
States
to
regulate
nonpoint
sources
of
pollution,
commenters
are
wrong
and
their
position
is
unsupported
by
relevant
case
law.
As
the
U.
S.
Court
of
Appeals
for
the
Fourth
Circuit
has
recognized:
"
Congress
consciously
distinguished
between
point
source
and
nonpoint
source
discharges,
giving
EPA
authority
under
the
Act
to
regulate
only
the
former."
Appalachian
Power
Co.
v.
Train,
545
F.
2d
at
1373.
See
also
American
Wildlands,
260
F.
3d
at
1197;
Kennecott
Copper
Corp.
v.
EPA,
612
F.
2d
1232,
1243
(
10th
Cir.
1979);
United
States
v.
Earth
Sciences,
Inc.,
599
F.
2d
368
at
371.
As
discussed
in
the
preamble,
EPA
believes
that
following
implementation
of
CAIR
and
today's
action,
utility­
attributable
Hg
emissions
are
not
reasonably
anticipated
to
result
in
hazards
to
public
health.

10.4
TRIBAL
TRUST
RESPONSIBILITIES
Comment:

Many
Indian
tribes
and
organizations
(
OAR­
2002­
0056­
1327,
­
1618,
­
2010,
­
2118,
­
2173,
­
2380,
­
2694,
­
2695,
­
2814,
­
2891,
­
3311,
­
3335,
­
3413,
­
3457,
­
3549,
­
3550,
­
3551,
­
5455)
stated
that
the
rule
does
not
comply
with
EPA's
federal
trust
responsibility,
and
is
inconsistent
with
EPA's
Indian
Policy
because
EPA
did
not
adequately
consult
with
tribes
in
developing
the
rule
and
because
the
rule
does
not
adequately
protect
the
health
of
Indians.
They
assert
that
tribes
have
treaty
rights
to
fish,
and
that
the
rule
does
not
adequately
protect
those
rights
because
it
does
not
reduce
mercury
emissions
to
a
level
that
protects
the
health
and
safety
of
tribal
members
who
consume
fish.
They
note
that
EPA's
assessment
of
the
risks
for
tribal
members
must
take
into
account
their
high
levels
of
fish
consumption,
and
the
unique
traditional,
cultural,
and
subsistence
importance
of
fish
for
many
tribes.
Finally,
some
commenters
object
to
EPA's
failure
to
provide
for
a
cap­
and­
trade
program
in
Indian
country.

Response:

EPA
recognizes
that
the
Federal
government
stands
in
a
government­
to­
government
relationship
with
Federally
recognized
Tribes
and
has
certain
trust
responsibilities
to
these
Tribes.
This
relationship
and
responsibility
should
guide
EPA
in
the
implementation
of
policies
and
actions
that
affect
Tribes.
Pursuant
to
the
government­
to­
government
relationship,
EPA
consults
with
Tribes
regarding
actions
that
affect
Tribes.
In
addition,
treaties,
statutes,
and
executive
orders
create
Federal
obligations
regarding
Tribal
resources.
EPA
believes
that
its
actions
in
developing
the
final
rule
have
been
consistent
with
the
government­
to­
government
relationship
and
that
the
final
rule
itself
is
consistent
with
the
trust
responsibility.
10­
11
EPA
does
not
agree
with
the
commenters
who
claim
that
it
did
not
consult
with
tribes
in
developing
the
rule.
As
explained
in
the
discussion
of
EPA
compliance
with
EO
in
the
preamble
for
the
final
rule,
EPA
took
the
following
steps
to
consult
with
Tribes.
EPA
gave
a
presentation
to
a
national
meeting
of
the
National
Tribal
Environmental
Council
(
NTEC)
in
April
2001,
and
encouraged
Tribal
input
at
an
early
stage.
EPA
then
worked
with
NTEC
to
find
a
Tribal
representative
to
participate
in
the
workgroup
developing
the
rule,
and
included
a
representative
from
the
Navajo
Nation
as
a
member
the
official
workgroup,
with
a
representative
from
the
Campo
Band
later
added
as
an
alternate.
In
March
2004,
EPA
provided
a
briefing
for
Tribal
representatives,
the
newly
formed
National
Tribal
Air
Association
(
NTAA),
and
NTEC.
EPA
received
comments
on
this
rule
from
a
number
of
Tribes,
and
has
taken
those
comments
and
other
input
from
Tribal
representatives
into
consideration
in
development
of
this
rule.

EPA
disagrees
that
the
rule
will
not
adequately
protect
Tribal
fishing
rights.
EPA
agrees
that
some
Tribes
have
unique
legal
rights
to
fish
arising
from
treaties,
statutes,
executive
orders,
and
agreements.
EPA
also
recognizes
that
Tribal
members
may
catch
and
consume
more
fish
than
the
general
public
as
a
result
of
Tribal
fishing
rights
as
well
as
Tribal
culture,
traditions,
and
subsistence
lifestyles.

EPA
believes
that
this
regulation
adequately
protects
Tribal
health
and
is
consistent
with
the
trust
responsibility
for
several
reasons.
First,
the
commenters
understate
the
significance
of
the
fact
that
Hg
emissions
from
Utility
Units
currently
are
not
subject
to
performance
standards.
This
regulation
will
for
the
first
time
establish
performance
standards
applicable
to
Hg
emissions,
and
those
standards
will
require
significant
reductions
in
the
levels
of
Hg
emissions.
Such
reductions
will
provide
greater
protection
to
Tribal
fish
resources
than
would
otherwise
be
available.
Acting
to
provide
such
heightened
protection
is
consistent
with
both
the
statute
and
the
Federal
trust
responsibility.

Moreover,
the
commenters
offer
no
specific
evidence
that
the
Hg
emissions
reductions
from
this
regulation
will
not
adequately
protect
Tribal
health.
Their
main
contention
is
that
the
regulatory
approach
set
forth
in
an
earlier
EPA
proposal
would
have
produced
a
90
percent
reduction
in
Hg
emissions
and
that
any
smaller
reduction
is,
therefore,
inadequate.
That
contention
rests
on
a
misconception
of
an
earlier
Federal
Register
Notice,
which
proposed
a
finding,
but
did
not
contain
any
specific
proposal
for
Hg
emissions
regulations,
and,
therefore,
did
not
provide
for
any
percentage
of
reduction.
EPA
has
never
proposed
any
such
rule.
EPA
believes
that
this
regulation
will
adequately
protect
Tribal
health.

The
commenters
also
argue
that
EPA
has
not
adequately
considered
the
significance
of
Tribal
fish
consumption
patterns,
specifically
the
fact
that
Tribal
fishers
consume
more
fish
than
the
general
population.
That
comment
is
misplaced.
As
described
in
more
detail
elsewhere
in
this
document,
EPA
carefully
analyzed
available
information
on
fish
consumption
by
Tribal
members
and
other
sub­
populations,
and
determined
how
to
use
the
available
data
most
appropriately.
One
basis
for
EPA's
analysis
was
a
study
of
tribal
fish
consumption
in
one
region
to
model
consumption
by
other
Tribes
as
well
as
other
subpopulations.
EPA's
approach
was
to
identify
areas
where
the
effects
of
Hg
deposition
from
utility
emissions
had
the
greatest
effects.
EPA
then
compared
those
high­
deposition
areas
with
locations
with
high
Tribal
10­
12
populations
to
assess
the
areas
of
greatest
potential
risk
to
Tribes.
That
analysis
found
that
very
few
areas
where
Native
Americans
live
corresponds
with
high
residual
Hg
deposition
caused
by
utilities.
It
found
further,
that
the
standards
established
in
the
regulation
will
significantly
reduce
risks
to
tribal
members.

Finally,
as
discussed
in
the
preamble
to
the
regulation,
this
regulation
establishes
a
cap­
and­
trade
program
for
Indian
country.

As
part
of
its
analysis
of
the
this
final
rule,
EPA
has
estimated
the
some
of
the
health
benefits
of
reducing
Hg
from
utilities.
At
this
time
EPA
is
only
able
to
provide
quantitative
estimates
of
the
benefits
of
reducing
neurological
impacts
of
exposure
to
MeHg
for
a
portion
of
the
U.
S.
population.
This
population
covers
people
who
recreationally
catch
and
consume
freshwater
fish.
The
RIA
for
this
rule
contains
this
analysis
in
Chapter
11.
As
part
of
its
assessment,
EPA
provides
estimates
for
the
benefits
of
this
rulemaking
to
subsistence
fishers,
including
case
study
examples
of
the
benefits
to
the
some
members
of
the
Chippewa
Tribe,
the
Hmong,
and
low
income
fishers.

10.6
PROCEDURAL
ISSUES
Comment:

One
commenter
(
OAR­
2002­
0056­
4132)
asserted
that
EPA
was
pursuing
an
inappropriate
administrative
process,
and
that
the
proposal
should
have
been
designated
an
advance
notice
of
proposed
rule
making
(
ANOPR).
The
commenter
stated
that
the
proposal
was
an
inappropriate
approach
to
regulatory
development
and
would
result
in
litigation.
The
commenter
stated
that
affected
parties
were
not
being
provided
an
opportunity
to
comment
on
the
specific
regulatory
language
that
might
drive
significant
investments
in
capital
equipment,
and
characterized
the
proposal
as
a
menu
of
possible
approaches.

Response:

We
disagree
with
the
commenter
that
the
proposed
rule
constituted
an
inappropriate
administrative
process.
EPA
properly
issued
a
proposed
rule
in
January
2004,
and
proposed
three
separate
regulatory
approaches
concerning
HAP
emissions
from
Utility
Units.
In
addition,
the
January
2004
proposed
rule
and
the
March
2004
supplemental
notice
contained
proposed
regulatory
language,
and
we
believe
that
those
proposed
regulations,
coupled
with
the
extensive
discussion
provided
in
the
preamble
to
the
proposed
rule
and
supplement
notice,
afforded
the
public
a
sufficient
opportunity
to
comment
on
the
proposed
regulatory
language.
Indeed,
EPA
received
over
500,000
comments
on
the
proposal,
about
5,000
of
which
were
unique,
and
several
of
which
addressed
the
regulatory
text
pertinent
to
the
section
111
standards
of
performance.

Comment:

One
commenter
(
OAR­
2002­
0056­
1138)
requested
that
EPA
provide
information
on
the
10­
13
background
and
training
of
enforcement
personnel.
The
commenter
also
requested
an
estimate
of
the
number
of
new
jobs
that
are
created
for
every
new
law
or
regulation,
as
well
as
an
estimate
of
total
job
growth
for
the
present
year.

Response:

This
comment
has
no
relevance
to
how
EPA
sets
standards
of
performance
under
CAA
section
111,
and
therefore
no
response
is
required.

10.7
GENERAL
COMMENTS
Comment:

A
large
number
of
commenters,
primarily
from
the
general
public
through
individual
letters
and
mass
mail
campaigns,
provided
general
comment
along
the
lines
of:

(
1)
The
proposed
rules
are
a
roll­
back
of
the
CAA;

(
2)
The
CAA
requires
90
percent
removal;
and
(
3)
The
time­
frame
proposed
for
the
emission
reductions
is
too
long.

Response:

EPA
believes
that
these
comments
stem,
in
part,
from
a
misunderstanding
of
the
CAA.
There
has
been
no
"
roll­
back"
of
the
CAA.
First,
EPA
does
not
have
the
authority
to
change
the
CAA
(
only
Congress
can
do
that).
Further,
there
are
no
current
Federal
regulations
requiring
the
reduction
of
Hg
or
Ni
emissions
from
Utility
Units
to
be
"
rolled­
back."
This
is
the
first
time
that
Federal
regulations
limiting
these
pollutants
have
been
proposed.
In
addition,
the
CAA
does
not
mandate
any
specific
emission
reduction.
Emission
standards
are
to
be
based
on
the
level
of
control
achieved
in
practice
and
on
the
level
of
emission
control
technologies
that
the
Administrator
has
been
adequately
demonstrated.
The
timing
of
the
emission
reductions
have
been
addressed
elsewhere
in
this
document.
