1
"
Devine,
Jon"
<
jdevine@
nrdc.
org>
05/
31/
2005
06:
23
PM
To
Stephen
Johnson/
DC/
USEPA/
US@
EPA
cc
Jeff
Holmstead/
DC/
USEPA/
US@
EPA,
Bill
Wehrum/
DC/
USEPA/
US@
EPA,
Bill
Maxwell/
RTP/
USEPA/
US@
EPA,
Wendy
Blake/
DC/
USEPA/
US@
EPA,
Group
A­
AND­
R­
DOCKET@
EPA,
Jason
Burnett/
DC/
USEPA/
US@
EPA,
Stephanie
Daigle/
DC/
USEPA/
US@
EPA,
Ann
Klee/
DC/
USEPA/
US@
EPA,
Richard
Ossias/
DC/
USEPA/
US@
EPA
bcc
Subject
Petition
for
Reconsideration:
OAR­
2002­
0056
Dear
Administrator
Johnson:
Pursuant
to
Section
307(
d)(
7)(
B)
of
the
Clean
Air
Act,
42
U.
S.
C.
§
7607(
d)(
7)(
B),
the
Natural
Resources
Defense
Council,
the
Clean
Air
Task
Force,
the
Ohio
Environmental
Council,
the
United
States
Public
Interest
Research
Group,
the
Natural
Resources
Council
of
Maine,
the
Aroostook
Band
of
Micmacs,
the
Houlton
Band
of
Maliseet
Indians,
the
Penobscot
Indian
Nation,
and
the
Passamaquoddy
Tribe
of
Maine
(
Indian
Township
and
Pleasant
Point)
hereby
petition
you
to
reconsider
the
final
rule
titled
"
Revision
of
December
2000
Regulatory
Finding
on
the
Emissions
of
Hazardous
Air
Pollutants
from
Electric
Utility
Steam
Generating
Units
and
the
Removal
of
Coal­
and
Oil­
Fired
Units
From
the
Section
112(
c)
List,"
and
published
at
70
Fed.
Reg.
15,994­
16,035
(
Mar.
29,
2005).
Our
petition
is
attached.
Please
feel
free
to
contact
me
at
(
202)
289­
2361
with
any
questions
regarding
this
petition.
Thank
you.
Sincerely,
Jon
P.
Devine,
Jr.
Senior
Attorney
Natural
Resources
Defense
Council
jdevine@
nrdc.
org
<<
Final
Submitted
Petition
for
Reconsideration.
doc>>
2
BEFORE
THE
ADMINISTRATOR
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY
__________________________________________
)
In
the
Matter
of
the
Final
Rule:
)
)
Revision
of
December
2000
Regulatory
Finding
)
OAR­
2002­
0056
on
the
Emissions
of
Hazardous
Air
Pollutants
)
From
Electric
Utility
Steam
Generating
Units
and
)
the
Removal
of
Electric
Utility
Steam
Generating
)
Units
From
the
Section
112(
c)
List
)
__________________________________________)

PETITION
FOR
RECONSIDERATION
Pursuant
to
Section
307(
d)(
7)(
B)
of
the
Clean
Air
Act,
42
U.
S.
C.
§
7607(
d)(
7)(
B),

the
Natural
Resources
Defense
Council,
the
Clean
Air
Task
Force,
the
Ohio
Environmental
Council,
the
United
States
Public
Interest
Research
Group,
the
Natural
Resources
Council
of
Maine,
the
Aroostook
Band
of
Micmacs,
the
Houlton
Band
of
Maliseet
Indians,
the
Penobscot
Indian
Nation,
and
the
Passamaquoddy
Tribe
of
Maine
(
Indian
Township
and
Pleasant
Point)
hereby
petition
the
Administrator
of
the
Environmental
Protection
Agency
("
the
Administrator"
or
"
EPA")
to
reconsider
the
final
rule
captioned
above
and
published
at
70
Fed.
Reg.
15,994­
16,035
(
Mar.
29,
2005)

(
hereinafter
"
Final
Rule").
The
Final
Rule
unlawfully
removes
electric
utility
steam
generating
units
("
EGUs")
from
the
list
of
industries
for
which
EPA
must
develop
pollution
control
standards
that
limit
the
hazardous
air
pollutant
("
HAP")
emissions
from
sources
in
the
category
and
that
reflect
the
maximum
achievable
control
technology
("
MACT").
We
have
previously
sought
an
administrative
stay
of
this
rule,
see
Letter
from
Jon
Mueller,
Chesapeake
Bay
Foundation
et.
al,
to
Administrator
Johnson
(
Mar.
30,

2005),
and
we
reiterate
that
request
today.
3
As
discussed
in
detail
below,
EPA
has
included
in
the
Final
Rule
a
number
of
issues
on
which
it
was
impracticable
to
raise
objections
during
the
period
provided
for
public
comment.
These
issues
are
also
centrally
relevant
to
the
rulemaking
action
because
they
demonstrate
that
the
agency's
approaches
violate
the
Clean
Air
Act
("
CAA"

or
"
Act").
As
such,
EPA
must
"
convene
a
proceeding
for
reconsideration
of
the
rule
and
provide
the
same
procedural
rights
as
would
have
been
afforded
had
the
information
been
available
at
the
time
the
rule
was
proposed."
42
U.
S.
C.
§
7607(
d)(
7)(
B).

BACKGROUND
EPA's
final
rule
purports
to
do
two
things
 
"
revise"
the
determination
the
agency
made
in
December
2000
that
it
was
"
appropriate
and
necessary"
to
regulate
EGUs
under
the
requirements
of
section
112
of
the
CAA;
and
remove
EGUs
from
the
section
112(
c)

list
of
industries
for
which
MACT
standards
must
be
developed.
In
so
doing,
EPA
has
entirely
reversed
course
from
its
prior
detailed,
scientifically­
justified,
and
healthprotective
decision
to
subject
EGUs
to
the
same
control
regime
as
all
other
categories
of
major
sources
of
HAPs.

In
1990,
Congress
sought
to
hasten
EPA's
regulation
of
toxic
air
pollution,
as
the
agency
had
almost
completely
failed
to
address
HAP
emissions
under
the
pre­
1990
Act.

Specifically,
"[
o]
ver
18
years,
EPA
listed
only
8
pollutants
as
hazardous
and
regulated
only
some
sources
of
7
of
these
chemicals."
National
Mining
Ass'n
v.
U.
S.
EPA,
59
F.
3d
1351,
1353
n.
1
(
D.
C.
Cir.)
(
citations
omitted),
reh'g
denied
(
1995).
The
new
requirements
were
embodied
in
section
112
of
the
amended
Act.
Congress
included
in
section
112
a
list
of
nearly
200
HAPs,
and
EPA
could
add
or
delete
a
chemical
depending
on
whether
"
emissions,
ambient
concentrations,
bioaccumulation
or
deposition
of
the
4
substance
are
known
to
cause
or
may
reasonably
be
anticipated
to
cause
adverse
effects
to
human
health
or
adverse
environmental
effects."
42
U.
S.
C.
§
§
7412(
b)(
3)(
B)
&
(
C).

From
this
pollutant
list,
the
Act
required
EPA
to
develop
a
list
of
industries
to
include,

among
other
things,
"
all
categories
and
subcategories
of
major
sources"
of
the
listed
HAPs,
id.
§
7412(
c)(
1),
where
a
"
major
source"
is
"
any
stationary
source
or
group
of
stationary
sources
located
within
a
contiguous
area
and
under
common
control
that
emits
or
has
the
potential
to
emit
considering
controls,
in
the
aggregate,
10
tons
per
year
or
more
of
any
hazardous
air
pollutant
or
25
tons
per
year
or
more
of
any
combination
of
hazardous
air
pollutants."
Id.
§
7412(
a)(
1).
The
agency
may
delete
a
category
from
the
list
only
if
it
emits
no
other
HAP
except
one
that
has
been
deleted
from
the
statutory
list,

id.
§
7412(
c)(
9)(
A),
or
if
it
makes
certain
required
findings:

(
i)
In
the
case
of
hazardous
air
pollutants
emitted
by
sources
in
the
category
that
may
result
in
cancer
in
humans,
a
determination
that
no
source
in
the
category
(
or
group
of
sources
in
the
case
of
area
sources)
emits
such
hazardous
air
pollutants
in
quantities
which
may
cause
a
lifetime
risk
of
cancer
greater
than
one
in
one
million
to
the
individual
in
the
population
who
is
most
exposed
to
emissions
of
such
pollutants
from
the
source
(
or
group
of
sources
in
the
case
of
area
sources).

(
ii)
In
the
case
of
hazardous
air
pollutants
that
may
result
in
adverse
health
effects
in
humans
other
than
cancer
or
adverse
environmental
effects,
a
determination
that
emissions
from
no
source
in
the
category
or
subcategory
concerned
(
or
group
of
sources
in
the
case
of
area
sources)
exceed
a
level
which
is
adequate
to
protect
public
health
with
an
ample
margin
of
safety
and
no
adverse
environmental
effect
will
result
from
emissions
from
any
source
(
or
from
a
group
of
sources
in
the
case
of
area
sources).

Id.
§
7412(
c)(
9)(
B).

For
listed
categories
of
major
sources,
the
Act
specifies
that
EPA
must
issue
emission
standards
under
section
112(
d),
which
in
turn
demands
that
such
standards
be
at
least
as
stringent
as
the
pollution
controls
the
cleanest
sources
(
or,
in
the
case
of
new
source
standards,
the
single
cleanest
source)
in
the
industry
achieve.
Id.
§
7412(
d)(
3).
5
Emission
limitations
issued
under
this
section
are
commonly
called
maximum
achievable
control
technology,
or
"
MACT,"
standards.
Congress
directed
EPA
to
promulgate
MACT
standards
on
a
strict
timetable.
The
agency
must
issue
standards
for
all
source
categories
by
no
later
than
November
15,
2000.
Id.
§
7412
(
e)(
1)(
E).

Section
112
also
contains
a
provision
specific
to
EGUs
 
section
112(
n)(
1).

Among
other
things,
that
section
states:

The
Administrator
shall
perform
a
study
of
the
hazards
to
public
health
reasonably
anticipated
to
occur
as
a
result
of
emissions
by
electric
utility
steam
generating
units
of
pollutants
listed
under
subsection
(
b)
of
this
section
after
imposition
of
the
requirements
of
this
chapter.
The
Administrator
shall
report
the
results
of
this
study
to
the
Congress
within
3
years
after
November
15,
1990.
The
Administrator
shall
develop
and
describe
in
the
Administrator's
report
to
Congress
alternative
control
strategies
for
emissions
which
may
warrant
regulation
under
this
section.
The
Administrator
shall
regulate
electric
utility
steam
generating
units
under
this
section,
if
the
Administrator
finds
such
regulation
is
appropriate
and
necessary
after
considering
the
results
of
the
study
required
by
this
subparagraph.

Id.
§
7412(
n)(
1)(
A).

In
1992,
EPA
promulgated
the
initial
list
of
industries
containing
major
sources
of
HAPs.
EGUs
were
not
on
the
list,
leading
NRDC
to
sue
to
enforce
section
112(
c)(
1)'
s
requirement
that
EPA
list
"
all
categories
and
subcategories
of
major
sources".
For
its
part,
EPA
argued
that
it
did
not
need
to
list
EGUs
unless
and
until
it
conducted
the
study
and
report
to
Congress
required
by
section
112(
n)(
1)(
A),
and
found
regulation
under
section
112
to
be
"
appropriate
and
necessary."
In
1994,
NRDC
and
EPA
settled
the
lawsuit,
and
the
agency
agreed
to
perform
the
required
study
and
report
to
Congress
(
which
EPA
had
failed
to
do
by
the
statutory
deadline),
and
determine
whether
section
112
regulation
was
appropriate
and
necessary.
Over
time,
the
deadlines
in
this
settlement
were
extended,
such
that
EPA
agreed
to
make
the
appropriate
and
necessary
6
determination
by
December,
15,
2000,
and
 
if
that
determination
were
positive
 
propose
regulations
under
section
112
for
EGUs
by
December
15,
2003
and
take
final
action
by
December
15,
2004
(
later
extended
to
March
15,
2005).
1
EPA
submitted
its
Report
to
Congress
in
February
1998,2
and
then
determined,
in
December
2000,
that
the
utility
study
supported
the
conclusion
that
regulating
EGUs
under
section
112
was
both
appropriate
and
necessary.
In
particular,
the
agency
pointed
to
the
widespread
mercury
contamination
problem,
noted
that
U.
S.
anthropogenic
emissions
contribute
significantly
to
domestic
mercury
deposition,
and
estimated
that
EGUs
were
the
largest
U.
S.
source
of
industrial
mercury
emissions.
See
65
Fed.
Reg.

79,825,
79,827
(
Dec.
20,
2000).
EPA
concluded
that
"
the
available
information
indicates
that
mercury
emissions
from
[
EGUs]
comprise
a
substantial
portion
of
the
environmental
loadings
and
are
a
threat
to
public
health
and
the
environment."
Id.
The
agency
therefore
committed
to
regulation
under
section
112
and
 
to
effectuate
that
commitment
 
added
EGUs
to
the
section
112(
c)
source
category
list.
Id.
at
79,830.

After
the
regulatory
determination
and
listing
decision,
EPA
conducted
an
extensive
fact­
gathering
and
regulatory
development
process
aimed
at
establishing
MACT
standards
for
EGUs.
In
late
2003,
however,
the
agency
abruptly
reversed
course
1
Settlement
Agreement,
Natural
Resources
Defense
Council,
Inc.
v.
EPA,
No.
92­
1415
(
D.
C.
Cir.
Oct.
26,
1994);
Stipulation
for
Modification
of
Settlement
Agreement,
Natural
Resources
Defense
Council,
Inc.
v.
EPA,
No.
92­
1415
(
D.
C.
Cir.
Nov.
16,
1998);
Stipulation
for
Modification
of
Settlement
Agreement,
Natural
Resources
Defense
Council,
Inc.
v.
EPA,
No.
92­
1415
(
D.
C.
Cir.
Apr.
29,
2004).
2
EPA
previously
had
submitted
to
Congress
the
report
required
by
section
112(
n)(
1)(
B),
documenting
the
results
of
its
"
study
of
mercury
emissions
from
electric
utility
steam
generating
units
[
and
other
industries]."
42
U.
S.
C.
§
7412(
n)(
1)(
B).
That
study
considered,
among
other
things,
"
the
health
and
environmental
effects
of
such
[
HAP]
emissions,
technologies
which
are
available
to
control
such
emissions,
and
the
costs
of
such
technologies."
Id.
See
U.
S.
EPA,
Mercury
Study
Report
to
Congress,
EPA­
452/
R­
97­
003
(
December,
1997).
7
and
proposed
three
regulatory
options:
(
1)
a
terribly
weak
"
MACT"
standard,
3
which
EPA
made
clear
was
not
its
favored
approach;
(
2)
a
pollution
trading
scheme,
in
which
the
level
of
the
cap
would
be
equivalent
to
the
nationwide
emission
reductions
that
a
source­
by­
source
MACT
standard
would
achieve;
and
(
3)
retracting
its
December
2000
finding
that
controlling
EGUs
under
section
112
is
"
necessary,"
removing
EGUs
from
the
section
112(
c)
source
category
list,
and
creating
a
two­
phase
trading
program,
under
the
authority
of
section
111(
d)
of
the
Act.
See
69
Fed.
Reg.
4,652
et
seq.
(
Jan.
30,
2004).

Each
of
these
options
would
apply
only
to
mercury
from
coal­
fired
power
plants
and
nickel
from
oil­
fired
plants,
as
EPA
proposed
to
ignore
all
other
HAPs.
Id.
4
EPA's
final
rule
adopts
the
third
of
its
proposed
options,
although
it
varies
in
a
number
of
significant
respects
from
the
proposal.
As
discussed
below,
the
final
decision
contains
several
new
legal
theories
and
factual
analyses,
and
outright
policy
reversals,

each
of
which
is
centrally
relevant
to
the
rulemaking.
In
brief
summary,
EPA
bases
3
EPA
got
to
this
result
after
disbanding
a
stakeholder
workgroup
advising
the
agency
on
the
development
of
MACT
standards.
Tom
Hamburger
&
Alan
C.
Miller,
Mercury
Emissions
Rule
Geared
to
Benefit
Industry,
Staffers
Say;
Buffeted
by
complaints,
EPA
Administrator
Michael
Leavitt
calls
for
additional
analysis,
Los
Angeles
Times
at
A1
(
Mar.
16,
2004).
EPA
also
prohibited
its
professional
staff
from
doing
certain
technical
analyses.
Id.
("
EPA
staffers
say
they
were
told
not
to
undertake
the
normal
scientific
and
economic
studies
called
for
under
a
standing
executive
order.
At
the
same
time,
the
proposal
to
regulate
mercury
emissions
from
coal­
burning
power
plants
was
written
using
key
language
provided
by
utility
lobbyists.").
Finally,
the
agency
underestimated
the
pollution
reductions
that
MACT
could
achieve.
U.
S.
EPA,
Office
of
Inspector
General,
Additional
Analyses
of
Mercury
Emissions
Needed
Before
EPA
Finalizes
Rules
for
Coal­
Fired
Electric
Utilities,
at
16
(
Feb.
3,
2005)
(
finding
it
unlikely
that
"
an
unbiased
calculation"
would
allow
34
tons
of
mercury
emissions
per
year
nationwide,
as
EPA's
proposed
"
MACT"
standard
would
have).
The
result
was
a
weaker
MACT
standard
than
any
stakeholder
group
participating
in
the
MACT
advisory
committee
had
recommended.
See
Northeast
States
for
Coordinated
Air
Use
Management,
Mercury
Emissions
from
Coal
­
Fired
Power
Plants:
The
Case
for
Regulatory
Action,
at
p.
ES­
2
("
the
stakeholder
groups
that
participated
in
EPA's
Utility
MACT
Working
Group
have
recommended
a
range
of
standards
that
equate
to
annual
national
emissions
from
coal­
fired
utility
boilers
of
between
2
and
28
tons.").
4
After
the
proposed
rule
was
published,
and
the
deadline
for
promulgation
of
final
rules
for
the
utility
industry
was
again
extended
by
the
Agency,
certain
environmental
groups
filed
a
lawsuit
in
the
U.
S.
District
Court
for
the
District
of
Columbia,
seeking
a
declaratory
judgment
that
a
MACT
standard
is
required
for
a
listed
industry,
asserting
that
the
MACT
standard
for
the
utility
industry
was
two
years
overdue,
and
seeking
a
new
court­
ordered
deadline
for
its
promulgation.
See
Izaak
Walton
League
of
America
v.
EPA,
Civ.
No.
04­
694
(
D.
D.
C.)
(
complaint
filed
April
28,
2004).
That
case
has
been
fully
briefed
and
is
awaiting
a
decision
by
the
court.
8
much
of
its
final
decision
on
a
new
analysis
aimed
at
showing
that
regulating
EGUs
under
section
112
is
not
"
appropriate"
because
the
agency
predicts
that
the
"
utility
attributable"
mercury
pollution
and
contamination
(
i.
e.,
that
which
can
be
traced
to
EGUs)
remaining
after
the
implementation
of
two
separate
EPA
rules
(
the
so­
called
"
Clean
Air
Interstate
Rule,"
or
"
CAIR,"
and
"
Clean
Air
Mercury
Rule",
or
"
CAMR")

will
not
cause
public
health
problems.

ISSUES
FOR
RECONSIDERATION
1.
It
is
Unlawful
to
Ignore
All
Mercury
Pollution
Except
from
EGUs
in
Determining
Whether
Section
112
Regulation
is
Appropriate
and
Necessary.

For
the
first
time
in
the
final
rule,
EPA
claims
that
section
112(
n)(
1)(
A)'
s
use
of
the
phrase
"
occur
as
a
result
of
emissions
by
electric
utility
steam
generating
units"

permits
EPA
to
"
focus
solely
on
whether
the
utility
HAP
emissions
themselves
are
posing
a
hazard
to
public
health"
in
determining
whether
section
112
regulation
is
appropriate
and
necessary.
70
Fed.
Reg.
at
15,998.5
EPA
points
to
other
Clean
Air
Act
provisions
such
as
section
110(
a)(
2)(
D),
which
considers
whether
sources
"
contribute"
to
certain
conditions
as
evidence
that
section
112(
n)(
1)(
A)
 
which
lacks
that
term
 
means
that
EPA
should
look
to
utilities
exclusively.
In
addition,
EPA
now
reads
the
first
phrase
of
the
first
sentence
of
section
112(
n)(
1)(
A)
("
The
Administrator
shall
perform
a
study
of
the
hazards
to
public
health
reasonably
anticipated
to
occur
as
a
result
of
emissions
by
electric
utility
steam
generating
units"),
together
with
the
last
sentence
of
that
subsection
("
The
Administrator
shall
regulate
electric
utility
steam
generating
units
under
this
5
The
proposed
rule
references
the
concept
of
the
utility
industry
"
share"
of
the
global
pool
of
HAP
emissions,
in
passing
only,
as
part
of
the
legal
background
section
for
the
proposed
section
112
rule.
69
Fed.
Reg
at
4,658.
The
proposed
rule
does
not,
however,
describe
EPA's
new
interpretation
of
the
"
as
a
result
of
emissions"
language
of
section
112(
n)(
1)(
A),
either
as
limiting
EPA
authority
to
regulate
only
where
utility
emissions
are
the
sole
or
a
large
part
of
the
direct
cause
of
the
identified
"
hazards
to
public
health,"
or
as
authorizing
EPA
to
consider,
or
base
its
decision
to
regulate
on,
the
degree
to
which
utility
HAP
air
emissions
contribute
to
the
global
pool.
9
section,
if
the
Administrator
finds
such
regulation
is
appropriate
and
necessary
after
considering
the
results
of
the
study
required
by
this
subparagraph")
as
indicating
that
EPA
should
regulate
under
section
112
only
where
electric
utility
steam
generating
units
are
either
the
sole
cause
or
a
major
cause
of
"
hazards
to
public
health"
from
HAPs
in
the
U.
S.
environment.
70
Fed.
Reg.
at
16,028­
29.
EPA
also
asserts
that
it
can
consider
 
in
evaluating
whether
section
112
regulation
is
"
appropriate"
 
the
extent
to
which
utility
emissions
contribute
to
the
"
global
pool"
of
mercury,
and
to
base
the
Agency's
decision
to
regulate
on
that
information.

EPA
did
not
argue
in
the
proposed
rule
or
in
the
notice
of
data
availability
that
the
inquiry
under
subsection
112(
n)(
1)(
A)
should
look
at
the
effect
of
utility
emissions
by
themselves,
nor
did
the
proposal
provide
fair
notice
of
this
rationale.
Subsection
307(
d)(
3)(
C)
of
the
Act
requires
EPA
to
accompany
any
proposed
rule
with
"
the
major
legal
interpretations
and
policy
considerations
underlying
[
it],"
42
U.
S.
C.
§
7607(
d)(
3)(
C).
The
grounds
for
Petitioners'
objections
to
those
rationales
thus
"
arose
after
the
period
for
public
comment"
and
are
appropriately
raised
in
this
petition.
See
id.

§
7607(
d)(
7)(
B).
Each
of
the
objections
set
forth
below
is
"
of
central
relevance
to
the
outcome
of
the
rule,"
id.,
because
each
demonstrates
that
the
rule
contravenes
the
Clean
Air
Act
and
is
arbitrary
and
capricious.
Id.
§
7607(
d)(
9)(
A).

a.
The
new
interpretation
is
not
supported
by
the
statute.

First,
nothing
in
the
language
of
the
Act
suggests
that
the
degree
to
which
an
industrial
source
category
contributes
to
the
"
global
pool"
of
any
hazardous
air
pollutant
has
any
relevance
or
bearing
whatsoever
on
the
decision
to
list
the
industry
and
promulgate
regulations
under
section
112.
To
the
contrary,
section
112
takes
a
"
strict
10
liability"
approach
to
hazardous
air
pollutant
regulation:
if
an
industry
includes
major
sources
of
the
hazardous
air
pollutants
listed
by
Congress
in
section
112(
b),
then
EPA
"
shall"
include
it
in
the
list
of
industries
for
which
section
112
maximum
achievable
control
technology­
based
emissions
standards
are
required.
42
U.
S.
C.
§
7412(
c)(
1).

There
is
no
exception
in
the
text
for
industries
that
make
up
small
percentages
of
the
"
global
pool"
of
any
particular
hazardous
air
pollutant.
Nevertheless,
the
Agency
attempts
to
completely
circumvent
the
utility
industry
listing
decision
by
focusing
only
on
a
single
HAP
emitted
by
the
industry
 
mercury
 
and
by
declaring
that
because
the
industry
is
one
of
many
international
sources
of
that
pollutant,
regulation
under
section
112
is
not
appropriate.

Second,
EPA's
new
rationales
in
the
final
rule
preamble
arbitrarily
focus
on
utility
emissions
exclusively,
when
section
112(
n)(
1)(
B)
also
requires
the
agency
to
study
the
emissions
from
"
electric
utility
steam
generating
units,
municipal
waste
combustion
units,
and
other
sources,
including
area
sources."
EPA
claims
that
the
mention
of
this
study
in
subsection
112(
n)(
1)(
B)
indicates
that
the
scope
of
subsection
112(
n)(
1)(
A)
is
supposed
to
be
exclusive
to
utilities.
70
Fed.
Reg.
at
15,998.
But
this
interpretation
is
improper
in
light
of
EPA's
later
conclusion
that
the
scope
of
its
duties
under
subsection
112(
n)(
1)(
A)
ought
to
be
informed
by
the
separate
study
in
subsection
112(
n)(
1)(
C).
See
id.
at
16,023
("
Although
section
112(
n)(
1)(
A)
does
not
define
`
hazards
to
public
health,'

section
112(
n)(
1)(
C)
offers
guidance
with
respect
to
determining
whether
Hg
emissions
result
in
hazards
to
public
health.").
EPA's
rationale
artificially
and
arbitrarily
cabins
off
subsection
(
n)(
1)(
A)
from
subsection
(
n)(
1)(
B)
 
but
not
subsection
(
n)(
1)(
C)
 
in
support
11
of
the
unlawful
conclusion
that
subsection
(
n)(
1)(
A)
addresses
solely
whether
utility
HAP
emissions
themselves
are
posing
a
hazard
to
public
health.

Third,
EPA's
"
instructive
comparison"
to
subsection
110(
a)(
2)(
D)
also
fails
to
provide
support
for
EPA's
unlawfully
restrictive
reading
of
subsection
112(
n)(
1)(
A).
The
agency
does
so
by
committing
a
basic
logical
error.
Simply
because
Congress
employs
the
word
"
contribute"
in
section
110(
a)(
2)(
D)
does
not
mean
that
there
are
no
other
grammatical
formulations
to
require
EPA
to
consider
whether
utility
HAP
emissions
in
conjunction
with
other
HAP
emissions
pose
a
hazard
to
public
health.
Indeed,
the
language
selected
by
Congress
in
subsection
112(
n)(
1)(
A)
reflects
just
that
directive.

Subsection
112(
n)(
1)(
A)
speaks
of
the
"
hazards
to
public
health
reasonably
anticipated
to
occur
as
a
result
of
emissions
by
electric
utility
steam
generating
units.
.
.
."

The
formulation
"
hazards
to
public
health
reasonably
anticipated
to
occur"
reflects
an
awareness
that
predictable
public
health
hazards
would
exist,
would
"
occur,"
at
least
in
part
because
of
"
emissions
by
electric
utility
steam
generating
units."
It
is
this
real
and
present
hazardous
condition,
based
on
cumulative
impacts
from
all
sources
of
HAPs,
that
causes
the
public
health
impact.
This
condition
concerned
Congress,
not
some
artificial,

abstract
and
unreal
situation
in
which
only
public
health
impacts
particular
to
utility
units
are
considered,
and
other
public
health
risks
associated
with
other
sources
would
be
segregated
and
ignored.
The
hazardous
conditions
to
which
the
public
is
subject
following
the
addition
of
utility
emissions
includes
background
levels
of
HAPs,
which
must
be
considered
in
a
subsection
112(
n)(
1)(
A)
analysis.

Furthermore,
the
addition
of
the
phrase
"
as
a
result
of
emissions
by
electric
utility
steam
generating
units"
simply
specifies
the
industrial
sector
for
which
the
study
is
to
be
12
performed.
Put
differently,
Congress
did
not
intend
for
EPA's
study
to
look
at
the
effect
of
HAPs
that
EGUs
do
not
emit,
so
it
made
clear
that
the
study
should
be
limited
to
the
public
health
threats
that
are
a
result
of
the
pollutants
released
by
the
utility
sector.
This
becomes
clear
when
one
considers
another
part
of
section
112.
Section
112(
k)(
3)(
B)(
i)

contains
precisely
the
same
"
result
of
emissions"
phrase,
6
and
EPA
has
interpreted
the
phrase
in
section
112(
k)(
3)(
B)(
i)
as
simply
identifying
the
commercial
sector
to
which
the
provision
as
a
whole
is
applicable.
See
National
Air
Toxics
Program:
The
Integrated
Urban
Strategy,
64
Fed.
Reg.
38,706,
38,716­
18
(
July
19,
1999).
Section
112(
k)(
3)(
A)

requires
the
EPA
to
prepare
a
comprehensive
strategy
for
and
Report
to
Congress
on
control
of
HAP
emissions
from
areas
sources
in
urban
areas.
42
U.
S.
C.
§
7412(
k)(
3)(
A).

As
part
of
that
process,
the
Act
requires
the
Administrator
to
"
identify
not
less
than
30
hazardous
air
pollutants
which,
as
the
result
of
emissions
from
area
sources,
present
the
greatest
threat
to
public
health
in
the
largest
number
of
urban
areas
.
.
.
."
Id.
§
7412(
k)(
3)(
B)(
i)
(
emphasis
added).
In
implementing
this
program,
EPA
has
taken
an
entirely
comprehensive
approach
to
the
risk
assessment
underlying
the
decision
to
list
the
30
hazardous
air
pollutants
it
identified.
EPA
first
assessed
the
risk
to
public
health
from
all
urban
air
toxics,
identified
a
list
of
the
most
troublesome
HAPs
from
that
perspective,

and
then
narrowed
the
list
to
those
HAPs
emitted
in
significant
quantities
by
area
sources.

64
Fed.
Reg.
at
38,716­
18.
In
other
words,
EPA
has
interpreted
precisely
the
same
"
result
of
emissions
from"
language
as
is
found
in
§
112(
n)(
1)(
A),
as
identifying
the
category
of
sources
to
which
the
requirement
applies,
not
as
limiting
the
underlying
risk
6
Section
112(
k)(
3)(
B)(
i)
contains
not
only
parallel
language
to
§
112(
n)(
1)(
A),
but
also
§
112(
k)(
3)
has
a
parallel
structure
to
§
112(
n):
EPA
is
required
to
study
and
report
to
Congress
on
HAP
emissions
from
a
particular
sector
and
prepare
a
strategy
for
controlling
those
emissions,
including
listing
and
MACT
regulations.
13
analysis
to
considering
the
risks
to
public
health
resulting
only
from
emissions
from
that
source
category,
as
it
now
purports
to
interpret
the
same
language
from
section
112(
n)(
1)(
A).
There
is
no
rational
basis
for
this
abrupt
change
in
statutory
interpretation,

nor
was
there
any
public
notice
in
the
proposed
rule
that
EPA
would
so
radically
change
its
interpretation
of
this
language.

EPA's
new
reading
improperly
imports
a
sole
causation
element
into
the
first
sentence
of
subsection
112(
n)(
1)(
A),
in
order
to
unlawfully
limit
the
subsection's
focus
to
utility
emissions
alone.
See
70
Fed.
Reg.
15,998
("
Congress
knew
how
to
require
regulation
of
emissions
of
air
pollutants
even
where
the
pollutants
themselves
do
not
cause
a
problem,
but
rather
only
`
contribute
to
a
problem.'"
(
emphasis
added)).
In
effect,

EPA
reads
the
relevant
language
of
subsection
112(
n)(
1)(
A)
to
limit
their
study
responsibilities
to
public
health
hazards
"
exclusively
caused
by"
utility
HAP
emissions.

This
revision
does
not
follow;
an
effect
can
be
"
a
result
of"
an
action
even
if
that
action
is
not
fully
responsible
for
the
effect,
because
the
phrase
"
a
result
of"
says
nothing
quantitative
(
except
that
the
action
must
make
a
non­
zero
contribution
to
the
effect's
occurrence).
To
take
a
simple
example,
if
a
person
climbs
into
a
bathtub
filled
to
the
brim,
the
overflow
is
"
a
result
of"
both
the
too­
full
tub
and
the
person
getting
in
 
apparently,
EPA
would
say
it
is
a
result
of
neither.
Similarly,
although
there
are
different
sources
of
mercury
pollution,
the
threat
to
public
health
posed
by
unsafe
methylmercury
levels
in
fish
is
"
a
result
of"
those
sources'
emissions.
This
is
particularly
true
of
EGU
pollution,
as
EPA
calculates
the
industry
to
be
the
largest
domestic
source
of
mercury
air
emissions,
even
though
EGUs
by
themselves
may
not
cause
fish
in
individual
watersheds
to
exceed
established
benchmarks.
See
70
Fed.
Reg.
at
16,020,
table
VI­
7
(
at
99th
14
percentile
of
"
utility­
attributable"
fish
contamination
in
2001
base
case,
tissue
concentration
does
not
exceed
0.3
ppm
water
quality
criteria).
7
Fourth,
EPA
ignores
a
separate
grammatical
indication
that
Congress
did
not
intend
for
the
agency
to
ignore
non­
EGU
sources
in
making
its
determination
under
section
112(
n)(
1)(
A).
That
section
requires
EPA
to
study
the
"
hazards
to
public
health,"

and
the
term
"
hazard"
has
an
element
of
contribution
to
an
ultimate
harm.
Specifically,

the
dictionary
definition
of
"
hazard,"
specifies
that
a
hazard
is
"
a
source
of
danger."

Merriam­
Webster's
Online
Dictionary,
available
at
http://
www.
m­
w.
com/

cgibin
dictionary?
book=
Dictionary&
va=
hazard
(
visited
May
25,
2005).
Accordingly,

because
the
hundreds
of
thousands
of
children
born
annually
at
risk
of
mercury­
related
neurological
harm
is
a
clear
public
health
problem,
8
and
because
HAP
emissions
by
EGUs
are
a
source
of
that
danger
 
that
is,
they
pose
a
"
hazard"
 
the
agency's
refusal
to
recognize
this
fact
is
arbitrary
and
capricious.

7
We
do
not
cite
these
figures
for
their
accuracy;
indeed,
as
discussed
elsewhere
in
this
petition,
EPA
has
placed
undue
reliance
on
its
risk
calculations
in
light
of
substantial
uncertainty
in
its
approach.
Instead,
we
point
to
these
data
to
illustrate
that
EPA's
present
interpretation
of
the
Act
apparently
 
and
absurdly
 
means
that
it
would
be
virtually
impossible
for
EPA
to
conclude
it
is
appropriate
to
address
power
plant
mercury
pollution
under
the
HAP
requirements
of
section
112,
even
if
no
other
EGU
control
programs
were
adopted.
8
See
EPA,
Mercury:
Human
Exposure,
available
online
at
http://
www.
epa.
gov/
mercury/
exposure.
htm
(
visited
May
27,
2005)
("
Blood
mercury
analyses
in
the
1999­
2000
National
Health
and
Nutrition
Examination
Survey
.
.
.
for
16­
to­
49
year
old
women
showed
that
approximately
8%
of
women
in
the
survey
had
blood
mercury
concentrations
greater
than
5.8
ug/
L
(
which
is
a
blood
mercury
level
equivalent
to
the
current
RfD).
Based
on
this
prevalence
for
the
overall
U.
S.
population
of
women
of
reproductive
age
and
the
number
of
U.
S.
births
each
year,
it
is
estimated
that
more
than
300,000
newborns
each
year
may
have
increased
risk
of
learning
disabilities
associated
with
in
utero
exposure
to
methylmercury.").
Indeed,
according
to
a
recent
analysis,
these
figures
may
be
an
underestimate.
In
January,
2004,
an
EPA
researcher
estimated
that
if
one
were
to
combine
these
CDC
data
with
evidence
that
maternal
blood
levels
are
not
as
high
as
in
the
umbilical
cord
of
the
developing
fetus,
approximately
630,000
newborns
may
be
at
risk.
Kathryn
R.
Mahaffey,
Ph.
D.,
Methylmercury:
Epidemiology
Update
(
Jan.
26,
2004),
available
online
at
http://
www.
epa.
gov/
waterscience/
fish/
forum/
2004/
presentations/
monday/
mahaffey.
pdf
(
visited
May
27,
2005);
see
also
Mahaffey,
K.
R.,
Clickner,
R.
P.,
Bodurow,
C.
C.,
2004.
Blood
Organic
Mercury
and
Dietary
Mercury
Intake:
National
Health
and
Nutrition
Examination
Survey,
1999
and
2000.
Environ.
Health
Persp.
112(
5);
562­
570.
15
For
all
of
these
reasons,
EPA
is
interpreting
subsection
112(
n)(
1)(
A)
unlawfully
in
focusing
exclusively
on
whether
utility
HAP
emissions,
considered
alone,
pose
a
hazard
to
public
health.

b.
The
new
interpretation
is
not
consistent
with
congressional
intent.

EPA
states
that
its
new
interpretation
of
section
112(
n)(
1)(
A)
"
may
reflect
Congress'
recognition
of
the
unique
situation
posed
by
Hg,
which
is
that
Hg
emissions
from
domestic
utilities
represent
less
than
one
percent
of
the
global
pool."
70
Fed.
Reg.

at
16,028
(
emphasis
added).
This
suggestion
is
patently
false.

First,
of
course,
if
Congress
had
intended
EPA
to
be
guarded
about
regulating
mercury
from
EGUs
under
section
112,
it
certainly
could
have
made
that
clear.

However,
there
is
nothing
in
the
text
of
section
112(
n)
to
suggest
that
Congress
intended
that
domestic
mercury
emissions
should
be
considered
or
evaluated
in
the
context
of
the
global
mercury
"
pool."
Nor
is
there
any
reference
in
any
other
part
of
section
112
to
suggest
that
Congress
intended
mercury
emissions
to
be
evaluated
in
the
context
of
the
relationship
between
domestic
HAP
emissions
and
a
global
pool,
whether
emitted
by
the
utility
industry
or
any
other
listed
industry.

Second,
and
more
importantly,
the
Act
is
rife
with
congressional
commands
to
strictly
regulate
domestic
mercury
pollution,
irrespective
of
the
fact
that
there
are
other
global
sources
of
mercury.
Congress
included
mercury
on
the
list
of
hazardous
air
pollutants
in
section
112(
b),
without
reservation,
9
thereby
requiring
that
mercury
emissions
from
each
major
HAP
source
would
be
subject
to
MACT
standards.
42
U.
S.
C.

9
Indeed,
mercury
was
one
of
the
few
chemicals
under
the
pre­
1990
scheme
for
HAP
regulation
that
EPA
had
listed
for
control.
See
S.
Rep.
No.
101­
228
(
1989)
at
131
(
noting
that
mercury
was
listed
under
the
air
toxics
scheme
in
place
between
1970
and
1990,
and
that
during
that
period,
"
EPA
 
listed
only
8
pollutants:
mercury,
beryllium,
asbestos,
vinyl
chloride,
benezene
[
sic],
radionuclides,
inorganic
arsenic,
and
coke
oven
emissions.").
16
§
§
7412(
b)(
1);
(
c)(
2);
(
d)(
3).
Similarly,
mercury
is
one
of
the
pollutants
for
which
Congress
insisted
that
EPA
establish
"
numerical
emission
limitations"
when
regulating
solid
waste
incineration
units
pursuant
to
section
129
of
the
Act.
Id.
§
7429(
a)(
4).

Congress
also
specifically
required
EPA
to
ensure
that
sources
accounting
for
at
least
90
percent
of
the
aggregate
emissions
of
mercury
from
all
domestic
sources
would
be
subject
to
tough
section
112
standards.
Id.
§
7412(
c)(
6).
In
other
words,
if
Congress
was
concerned
about
not
over­
regulating
U.
S.
mercury
polluters
in
light
of
the
"
unique
situation
posed
by
mercury,"
it
had
an
extremely
odd
way
of
showing
it.

The
legislative
history
of
section
112(
n)
likewise
does
not
support
EPA's
novel
suggestion
that
Congress
intended
for
mercury
to
be
dealt
with
in
a
different
(
and
less
stringent)
fashion
than
other
HAPs.
In
fact,
the
statement
of
conferees
accompanying
the
Joint
House­
Senate
Conference
Report
suggests
exactly
the
opposite
 
that
Congress
understood
and
desired
the
"
strict
liability"
approach
it
included
in
the
text
of
the
Act.

That
report
states:
"[
t]
he
conference
agreement
lists
189
chemicals
for
regulation.
.
.
.
For
each
category
of
sources,
EPA
will
promulgate
a
standard
which
requires
the
installation
of
maximum
achievable
control
technology
(
MACT)
by
the
sources
in
the
category."

CAA
Amendments
of
1990,
H.
R.
Conf.
Report
No.
952,
101st
Congress,
2d
Sess.,
Joint
Explanatory
Statement
of
the
Committee
of
Conference,
338
(
Oct.
26,
1990)
(
emphasis
added).
Moreover,
to
the
very
limited
extent
that
specific
members
of
Congress
are
on
record
discussing
the
utility
air
toxics
study
provisions
at
all,
those
comments
are
relevant
only
insofar
as
they
are
not
in
conflict
with
the
plain
language
of
the
Act
enacted
by
the
full
Congress.
Senator
Durenberger's
remarks,
for
example,
about
the
relationship
between
domestic
mercury
emissions
from
power
plants
and
the
global
pool
of
mercury
17
emissions,
reference
the
industry
arguments
about
the
nature
of
the
problem,
not
the
meaning
of
the
text
as
passed
by
Congress.
Specifically,
Senator
Durenberger
states
that
"
it
became
clear
[
to
Congress
during
consideration
of
the
bills]
that
mercury
is
a
substantial
threat
to
the
health
of
our
lakes,
rivers
and
estuaries
and
that
powerplants
are
among
the
principal
culprits,"
and
that
industry's
tactics
changed
at
that
point
to
promoting
the
view
that
the
problem
is
a
global
one.
136
Cong.
Rec.
S
16895,
16930­

16931
(
Oct.
27,
1990)
(
Statement
of
Sen.
Durenberger).
Nor
do
the
statements
of
Representative
Oxley,
who
is
the
only
other
member
on
record
discussing
the
utility
study
provision,
provide
any
support
for
EPA's
new
"
global
pool"
construct.

Representative
Oxley
describes
his
vision
of
the
House­
Senate
compromise
reached
in
section
112(
n),
asserting
that
"
if
the
Administrator
regulated
fossil­
fuel
fired
electric
utility
steam
generating
units
by
adopting
any
major
source
standard
under
section
112
.
.

.
he
may
do
so
only
in
compliance
with
subsection
(
n)."
136
Cong.
Rec.
E
3670,
E
3671,

101st
Cong.
2d
Sess.
(
Nov.
2,
1990)(
statements
of
Rep.
Oxley).
Nor
do
Representative
Oxley's
further
statements
on
this
point
reference
in
any
way
the
relationship
between
utility
mercury
or
other
HAP
emissions
and
the
"
global
pool"
of
such
emissions.
10
10
Indeed,
Representative
Oxley's
further
statements,
found
at
136
Cong.
Rec.
E
3670
(
Nov.
2,
1990),
are
inconsistent
with
the
plain
text
of
the
Act
as
passed,
and
therefore
have
no
interpretive
value
whatsoever.
Specifically,
Rep.
Oxley
asserts
that
"
if
the
Administrator
regulates
any
of
these
units
he
may
regulate
only
those
units
that
he
determines
.
.
.
have
been
demonstrated
to
cause
a
significant
threat
of
serious
adverse
effects
on
the
public
health."
Id.
at
E
3671.
But
this
statement
has
no
bearing
on
Congressional
intent,
as
it
directly
conflicts
with
the
plain
text
of
section
112(
n)(
1)(
A),
which
states
that
the
"
Administrator
shall
perform
a
study
of
the
hazards
to
public
health
reasonably
anticipated
to
occur
as
a
result
of
emissions
by
electric
utility
steam
generating
units
of
pollutants
listed
under
[
§
112(
b)]
.
.
.
.
The
Administrator
shall
regulate
electric
utility
steam
generating
units
under
this
section,
if
the
Administrator
finds
such
regulation
is
appropriate
and
necessary
after
considering
the
results
of
the
study
required
by
this
subparagraph."
42
U.
S.
C.
§
7412(
n)(
1)(
A).
The
plain
text
of
the
Act
does
not
limit
the
Administrator's
discretion
to
regulate
only
certain
units
in
the
industry
as
Rep.
Oxley
suggests,
nor
does
it
reference
"
serious
adverse
effects
on
the
public
health"
as
the
unit­
specific
threshold
for
such
regulation.
They
are
therefore
completely
without
interpretive
value.
18
2.
EPA
May
Not
Rely
on
Uncertain,
Far­
Off
Reductions
to
Find
That
MACT
Regulation
is
not
Appropriate
or
Necessary.

EPA
must
also
revisit
its
conclusion
that
section
112(
n)(
1)(
A)
permits
the
agency
to
consider
hypothetical
future
control
requirements
for
utility
HAP
emissions
in
deciding
whether
promulgation
of
utility
MACT
standards
is
"
appropriate
and
necessary."
As
noted
above,
section
112(
n)(
1)(
A)
instructs
the
agency
to
determine
whether
MACT
standards
for
utilities
are
"
appropriate
and
necessary"
based
on
a
study
of
public
health
hazards
"
reasonably
anticipated
to
occur
as
a
result"
of
utility
HAP
emissions
"
after
imposition
of
the
requirements"
of
the
Act.
42
U.
S.
C.
§
7412(
n)(
1)(
A)

(
emphasis
added).
In
its
proposed
rule,
the
agency
read
this
language
"
as
indicating
Congress'
intent
that
Utility
Units
be
regulated
under
section
112
only
if
the
other
authorities
of
the
CAA,
once
implemented,
would
not
adequately
address
those
HAP
emissions
from
Utility
Units
that
warrant
regulation."
69
Fed.
Reg.
at
4,684.
The
proposed
rule
did
not
argue,
as
the
agency
has
in
the
final
rule,
that
the
phrase
"
after
imposition
of
the
requirements
of
this
Act"
essentially
authorizes
the
agency
to
revisit
its
"
appropriate
and
necessary"
finding
whenever
the
agency
devises
an
alternative
approach
to
controlling
such
HAPs.
See
70
Fed.
Reg.
at
15,999
("
the
phrase
`
imposition
of
the
requirements
of
th[
e]
Act'
 
include[
s]
not
only
those
requirements
already
imposed
and
in
effect
[
at
the
time
EPA
first
evaluated
the
appropriateness
and
necessity
of
MACT
controls],
but
also
those
requirements
that
EPA
[
now]
reasonably
anticipates
will
be
implemented
and
will
result
in
reductions
of
utility
HAP
emissions.").
Contra
69
Fed.

Reg.
at
4,686
("
we
believe
that
the
proper
inquiry
for
assessing
whether
to
revise
the
December
2000
`
necessary'
finding
is
whether
CAA
section
111(
d)
constituted
a
viable
statutory
authority
by
which
to
address
Hg
and
Ni
emissions
from
existing
coal­
and
oil­
19
fired
Utility
Units
as
of
1998,
the
date
on
which
EPA
completed
the
Utility
RTC."

(
emphasis
added)).

EPA's
novel
conclusion
is
central
to
the
outcome
of
the
final
rule,
as
it
contravenes
the
CAA
and
permits
EPA
to
rescind
its
December
2000
finding
on
the
basis
of
two
rules
 
a
recently
adopted
rule
that
requires
certain
states
to
cut
local
emissions
of
two
non­
hazardous
pollutants
(
the
so­
called
"
Clean
Air
Interstate
Rule,"
or
"
CAIR"
11),

and
a
separate,
even
newer
rule
that
imposes
weak,
delayed
mercury
restrictions
under
section
111
of
the
CAA,
and
encourages
states
to
opt
in
to
an
EPA­
administered
pollution
trading
scheme.
12
The
reductions
from
these
rules
could
not
possibly
have
been
foreseen
in
December
2000,
let
alone
years
earlier
when
the
agency
completed
its
mandated
Study
of
Hazardous
Air
Pollutant
Emissions
from
Electric
Utility
Steam
Generating
Units
("
Utility
HAP
Study").
13
EPA's
conclusion
about
section
112(
n)(
1)(
A)'
s
scope
 
and
the
delisting
rule's
consequent
reliance
on
CAIR
and
the
pollution
trading
rule
 
are
unlawful
and
logically
untenable.

a.
EPA's
reading
of
section
112(
n)(
1)(
A)
defeats
Congress's
timeline
for
deciding
whether
MACT
standards
are
appropriate
and
necessary.

A
serious
problem
with
the
final
delisting
rule's
interpretation
of
section
112(
n)(
1)(
A)
is
that
it
permits
EPA
to
revisit
the
"
appropriate
and
necessary"
finding
whenever
the
agency
devises
new
utility
regulations
under
"
other
authorities
of
the
CAA,"
thereby
entirely
defeating
Congress'
careful
timeline
for
the
evaluation
and
regulation
of
utility
HAPs.
That
timeline
has
four
key
components:
In
the
1990
11
Rule
To
Reduce
Interstate
Transport
of
Fine
Particulate
Matter
and
Ozone
(
Clean
Air
Interstate
Rule);
Revisions
to
Acid
Rain
Program;
Revisions
to
the
NOxSIP
Call,
70
Fed.
Reg.
25,162
(
May
12,
2005).
12
Standards
of
Performance
for
New
and
Existing
Stationary
Sources:
Electric
Utility
Steam
Generating
Units,
70
Fed.
Reg.
28,606
(
May
18,
2005).
13
EPA,
Study
of
Hazardous
Air
Pollutant
Emissions
from
Electric
Utility
Steam
Generating
Units
­­
Final
Report
to
Congress,
EPA
453/
R­
98­
004a
(
February
1998).
20
Amendments,
Congress
(
1)
"
called
for
the
[
Utility
HAP
Study]
to
be
completed
within
three
years,"
42
U.
S.
C.
§
7412(
n)(
1)(
A)
 
that
is,
by
November
15,
1993;
(
2)
required
the
agency
to
"
consider[]
the
results"
of
this
Study
in
determining
whether
utility
MACT
standards
are
"
appropriate
and
necessary,"
id.;
(
3)
ensured
that
EPA
would
make
the
determination
and
consequent
listing
decision
expeditiously;
14
and
finally,
(
4)
prohibited
the
agency
from
rescinding
a
positive
"
appropriate
and
necessary"
finding
without
determining,
among
other
things,
that
"
emissions
from
no
source
in
the
category
or
subcategory
concerned
 
exceed
a
level
which
is
adequate
to
protect
public
health
with
an
ample
margin
of
safety
and
no
adverse
environmental
effect
will
result
from
emissions
from
any
source,"
id.
§
7412(
c)(
9)(
B)(
ii).
In
short,
Congress
created
a
unidirectional
system
whereby
EPA
would
promptly
study
the
need
for
MACT
standards
and
then
quickly
promulgate
such
standards
as
needed.
EPA's
new
reading
of
section
112(
n)(
1)(
A)
undermines
that
system,
permitting
the
agency
to
revisit
the
results
of
its
Utility
HAP
Study
and
its
subsequent
"
appropriate
and
necessary"
finding
 
and
thus
to
delay
or
derail
promulgation
of
utility
MACT
standards
 
whenever
(
perhaps
in
response
to
shifting
political
winds)
it
concocts
a
new
plan
for
addressing
utility
HAPs.

Section
112(
n)(
1)(
A)
furthermore
contains
no
provision
by
which
EPA
is
authorized
or
directed
to
revisit
its
regulatory
determination
and
listing
decision
once
it
is
14
Although
the
CAA
does
not
impose
an
explicit
deadline
for
EPA
to
make
its
"
appropriate
and
necessary"
finding
once
the
Utility
HAP
Study
is
complete,
the
fact
that
Congress
intended
the
agency
to
act
expeditiously
can
be
deduced
from
(
1)
the
relatively
short,
three­
year
deadline
for
completion
of
the
Study
itself,
and
(
2)
the
overall,
section
112(
e)(
1)(
E)
deadline
of
ten
years
(
to
November
15,
2000)
for
promulgation
of
"
emission
standards
for
all
[
listed]
categories
and
subcategories.
.
.
."
42
U.
S.
C.
§
7412(
e)(
1)(
E).
The
net
effect
of
these
bookend
deadlines
is
that
Congress
intended
EPA
to
evaluate
the
Utility
HAP
Study
and
decide
whether
to
list
utilities
under
section
112
in
time
for
the
agency
then
to
promulgate
utility
MACT
standards
by
November
15,
2000,
if
"
appropriate"
and
"
necessary."
Thus,
EPA's
new
attempt
in
the
Final
Rule
to
argue
that
the
lack
of
an
express
deadline
for
the
regulatory
finding
permits
the
agency
to
revisit
(
apparently
at
any
future
juncture)
that
finding,
see
70
Fed.
Reg.
at
16,001­
02,
is
simply
incorrect.
21
made.
This
is
in
stark
contrast
to
other
sections
of
the
Act,
in
which
Congress
expressly
provided
for
such
review
and
revision
opportunities.
For
example,
section
108
of
the
Act
describes
the
process
by
which
EPA
is
required
to
establish
primary
and
secondary
national
ambient
air
quality
standards
("
NAAQS"),
and
specifies
that
EPA
must
"
publish,

and
shall
from
time
to
time
thereafter
revise"
the
list
of
such
standards.
42
U.
S.
C.
§
7408(
a)(
1).
Furthermore
section
109(
d)
requires
the
Administrator
"
not
later
than
December
31,
1980,
and
at
five­
year
intervals
thereafter,"
to
complete
a
review
of
the
criteria
that
support
establishment
of
the
NAAQS,
and
"
promulgate
such
new
standards
as
may
be
appropriate."
Id.
§
7409(
d)(
1).
These
sections,
and
others
like
them,
15
demonstrate
that
when
Congress
intended
that
a
decision
be
revisited,
or
a
standard
be
updated
and
repromulgated
based
on
new
information,
Congress
knew
how
to
include
such
a
requirement
into
the
text
of
the
Act.

Indeed,
the
delisting
rule
implicitly
recognizes
that
the
agency's
interpretation
of
section
112(
n)(
1)(
A)
is
flawed.
In
the
preamble
to
the
rule,
EPA
notes
that,
at
the
time
EPA
was
to
have
completed
the
Utility
HAP
Study,
the
agency
"
could
have
only
forecast,

to
the
extent
possible,
how
implementation
of
the
requirements
of
the
CAA
would
impact
utility
HAP
emissions,
based
on
the
science
and
the
state
of
technology
at
the
time."
70
Fed.
Reg.
at
15,999
(
emphasis
added).
Congress
was
undoubtedly
aware
of
this
obvious
limitation
when
it
directed
EPA
to
perform
the
Utility
HAP
Study
and
to
decide
the
appropriateness
and
necessity
of
utility
MACT
standards
based
on
the
results
of
that
Study
 
yet
the
1990
Amendments
nevertheless
direct
the
agency
to
complete
the
Study
within
a
relatively
short
period
of
years,
and
then
to
make
the
decision
based
on
the
15
See,
e.
g.,
42
U.
S.
C.
§
7411(
b)(
1)(
B)
(
requiring
updates
to
new
source
performance
standards
at
least
every
eight
years);
id.
§
7412
(
d)(
6)
(
requiring
section
112
emission
standards
to
be
updated
at
least
every
eight
years).
22
outcome
of
the
Study.
The
obvious
implication
is
that
Congress
intended
EPA
to
decide
whether
utility
MACT
standards
were
appropriate
and
necessary
"
based
on
the
science
and
the
state
of
technology
at
the
time"
of
the
Study.
The
delisting
rule
subverts
this
scheme,
reopening
the
"
appropriate
and
necessary"
determination
to
consider
CAIR
and
CAMR,
neither
of
which
could
have
been
anticipated
in
the
early
1990s.
16
b.
EPA
may
not
permissibly
rely
on
either
section
110(
a)(
2)(
D)
or
section
111(
d)
to
avoid
promulgating
stringent
controls
under
section
112.

The
delisting
rule's
interpretation
of
section
112(
n)(
1)(
A)
is
also
flawed
in
that
it
permits
EPA
to
rely
on
CAIR's
and
the
trading
scheme's
as­
yet­
nonexistent
reductions
in
utility
mercury
emissions
to
conclude
that
utility
MACT
standards
are
neither
appropriate
nor
necessary.
The
agency's
reliance
on
CAIR
and
CAMR
is
entirely
misplaced,
as
neither
of
the
CAA
provisions
on
which
the
Rules
are
based
 
section
110(
a)(
2)(
d)
and
section
111(
d)
 
is
legally
sufficient
to
ensure
HAP
reductions
from
existing
power
plants.

Section
110(
a)(
2)(
D):
The
final
delisting
rule
argues
that
utility
MACT
standards
are
neither
appropriate
nor
necessary
in
part
because
implementation
of
CAIR
could
fortuitously
lead
to
reductions
in
mercury
pollution
sufficient
to
address
the
public
health
threat
posed
by
utility
mercury
emissions.
17
Issued
under
section
110(
a)(
2)(
D)
of
the
CAA,
CAIR
directs
states
to
cut
emissions
to
help
address
interstate
soot
and
smog
16
For
example,
CAIR
aims
in
part
to
assist
states
in
achieving
the
National
Ambient
Air
Quality
Standards
("
NAAQS")
for
ozone
and
fine
particulate
matter,
but
EPA
did
not
issue
those
Standards
until
1997
 
more
than
three
years
after
the
agency
was
to
have
completed
its
Utility
HAP
Study.
See,
e.
g.,
62
Fed.
Reg.
38,652
(
July
18,
1997)
(
particulate
matter
standards).
Even
in
December
2000,
when
EPA
made
its
regulatory
determination,
EPA
could
not
have
reasonably
anticipated
CAIR,
as
the
1997
NAAQS
had
been
remanded
to
the
agency
by
the
U.
S.
Court
of
Appeals
for
the
D.
C.
Circuit,
and
the
court's
decision
was
awaiting
review
in
the
Supreme
Court.
See
American
Trucking
Associations,
Inc.
v.
U.
S.
E.
P.
A.,
195
F.
3d
4
(
D.
C.
Cir.
1999),
cert.
granted
sub
nom,
Browner
v.
American
Trucking
Associations,
Inc.,
529
U.
S.
1129
(
May
22,
2000),
rev'd,
Whitman
v.
American
Trucking
Associations,
531
U.
S.
457
(
2001).
17
See
70
Fed.
Reg.
at
16,004
(
summarizing
"
appropriate"
finding
for
mercury
based
on
CAIR);
id.
at
16,005
(
summarizing
"
necessary"
finding
for
mercury
based
on
CAIR).
23
transport.
The
rule
does
not,
however,
require
mercury
reductions
from
any
particular
source,
nor
does
it
expressly
target
utility
pollution.
Any
coincident
reductions
in
utilities'
mercury
emissions
as
a
result
of
CAIR
are
therefore
too
speculative
to
provide
the
basis
for
EPA's
decision
not
to
issue
strict
utility
MACT
standards
under
section
112.

In
a
nutshell,
CAIR
simply
requires
regulated
states
to
meet
EPA­
assigned
emissions
budgets
for
NOx
and
SO2.
Although
CAIR
also
includes
a
model
pollution
trading
program
for
electric
utilities
 
sources
that,
in
EPA's
view,
can
make
"
highly
cost
effective"
reductions18
 
the
rule
does
not
require
states
to
regulate
power
plants,
much
less
specify
the
pollution
control
devices
that
utility
units
must
install
to
comply
with
the
emissions
budgets.
The
CAIR
preamble
recognizes
this
fact
in
several
places.
For
example:

 
"
Except
for
the
revisions
to
the
Acid
Rain
Program
regulations,
this
action
does
not
directly
regulate
emissions
sources.
Instead,
it
requires
States
to
revise
their
SIPs
to
include
control
measures
to
reduce
emissions
of
NOx
and
SO2"
19
 
"
The
CAA
Section
110
permits
States
to
choose
the
sources
and
source
categories
that
will
be
controlled
in
order
to
meet
applicable
emission
and
air
quality
requirements.
This
means
that
some
States
may
choose
to
meet
their
CAIR
obligations
by
imposing
control
requirements
on
sources
other
than
EGUs."
20
 
"
Although
we
stated
that
we
believe
it
is
unlikely
States
may
choose
to
control
only
non­
EGUs,
we
proposed
in
the
CAIR
SNPR
provisions
for
determining
the
specified
emissions
reductions
that
must
be
obtained
if
States
pursue
this
alternative,
and
we
adopt
those
provisions
today."
21
18
See
70
Fed.
Reg.
at
25,165
("
The
EPA's
analysis
indicates
that
emissions
reductions
from
electric
generating
units
(
EGUs)
are
highly
cost
effective,
and
EPA
encourages
States
to
adopt
controls
for
EGUs.").
19
Id.
at
25,162­
63.
20
Id.
at
25,209;
see
also
id.
at
25,210
(
chart
presenting
potential
nitrogen
oxides
control
options
other
than
power
plant
controls).
21
Id.
at
25,262­
63.
24
In
summary,
then,
EPA
has
no
ability
to
dictate
the
sources
that
States
must
control,
nor
 
if
States
choose
to
focus
on
power
plants
 
can
EPA
ensure
that
utilities
will
install
controls
that
fortuitously
remove
mercury
in
addition
to
NOx
and
SO2.

Other
provisions
of
CAIR
further
undermine
EPA's
ability
to
rely
on
this
rule
in
revoking
its
December
2000
finding
that
separate,
MACT
standards
are
appropriate
and
necessary
to
control
utility
HAP
emissions.
For
instance,
CAIR
allows
non­
utility
units
to
"
opt
in"
to
its
pollution
control
scheme,
22
meaning
that
such
units
could
trade
pollution
credits
with
utilities,
thereby
permitting
utilities
to
emit
more
NOx
and
SO2
 
and
coincidentally
mercury
 
than
the
rule
would
otherwise
permit.
Moreover,
CAIR
is
of
limited
geographic
scope,
covering
only
28
States
and
the
District
of
Columbia.
23
EPA
is
in
the
very
initial
stages
of
adding
two
more
States
to
the
CAIR
regime,
24
yet
the
agency
is
already
assuming
that
those
two
States
and
a
third
will
actually
be
added,
will
control
utilities,
and
will
achieve
sufficient
CAIR­
related
mercury
reductions
to
support
its
delisting
decision.
CAIR
may
have
the
fringe
benefit
of
reducing
utility
mercury
emissions,
but
any
CAIR­
related
reductions
are
far
too
speculative
to
form
the
basis
for
a
conclusion
that
utility
MACT
standards
for
mercury
are
neither
appropriate
nor
necessary.

22
Id.
at
25,286.
23
Id.
at
25,162.
24
Id.
at
25,171
("
Arkansas,
Delaware,
Massachusetts,
and
New
Jersey
are
not
subject
to
the
CAIR
based
on
their
contribution
to
PM2.5
nonattainment
and
maintenance.
However,
they
remain
subject
to
NOx
emissions
reductions
requirements
on
the
basis
of
their
contribution
to
downwind
8­
hour
ozone
nonattainment.
This
requirement
is
for
the
ozone
season
rather
than
the
entire
year.
The
EPA
is
issuing
a
new
proposal
to
include
Delaware
and
New
Jersey
for
the
PM2.5
NAAQS
based
on
additional
considerations.");
see
also
U.
S.
EPA,
Technical
Support
Document:
Methodology
Used
to
Generate
Deposition,
Fish
Tissue
Methylmercury
Concentrations,
and
Exposure
for
Determining
Effectiveness
of
Utility
Emission
Controls,
docket
item
6186,
at
6
n.
4
(
hereinafter
"
Deposition/
Fish
TSD")
(
noting
that
modeling
assumes
New
Jersey,
Delaware,
and
Arkansas
are
included
in
CAIR
only
because
EPA
intends
to
add
them).
25
Finally,
EPA
assumes
that
a
large
number
of
coal­
fired
units
in
the
United
States
will
have
to
comply
with
CAIR
by
installing
state­
of­
the­
art
controls
for
SO2
and
NOx.

70
Fed.
Reg.
at
16,010­
11.
Typically,
those
controls
are
flue
gas
desulfurization
("
FGDs")
and
selective
catalytic
reduction
("
SCR").
These
predictions
should
be
viewed
cautiously.
For
one,
EPA
admits
that
"[
t]
here
may
.
.
.
be
technologies
available
for
SO2
and
NOx
control
that
are
not
accounted
for
in
the
IPM,"
EPA's
model
for
predicting
utility
responses
to
different
regulatory
scenarios.
70
Fed.
Reg.
at
16,017.
Consequently,

"
the
technologies
that
plants
may
use
to
comply
with
this
program
may
not
be
accurately
projected
by
IPM
in
all
cases."
Id.
Moreover,
EPA
made
similar
predictions
concerning
the
impact
of
the
NOx
SIP
call
rules
which
do
not
appear
to
have
materialized.
25
For
example,
EPA
predicts
that
CAIR
will
reap
a
77
percent
reduction
by
2010
from
the
six
plants
within
Pennsylvania
that
contribute
mercury
to
the
Chesapeake
Bay
watershed.
In
support
of
this
conclusion,
EPA
predicts
that
the
Sunbury
plant
will
shut
down
four
of
its
five
units
in
the
next
five
years.
U.
S.
EPA,
IPM
Analysis
for
the
Clean
Air
Mercury
Rule
(
CAMR),
IPM
Parsed
File
EPA
CAMR
Option
1
parsed
for
the
year
2010,
available
online
at
http://
www.
epa.
gov/
airmarkets/
epa­
ipm/
camr/
option12010.
xls
(
visited
May
31,

2005).
EPA
provides
no
support
for
such
an
assumption.

Section
111(
d):
In
addition
to
CAIR,
EPA's
delisting
rule
relies
on
anticipated
mercury
reductions
from
the
agency's
recently
promulgated
mercury
pollution
trading
25
Similarly,
EPA
mistakenly
argues
that
the
December
2000
regulatory
finding
was
deficient
because
it
did
not
adequately
take
account
of
the
mercury
reductions
that
would
result
from
utilities'
installation
of
selective
catalytic
reduction
to
comply
with
new
source
performance
standards
for
NOx
and
the
NOx
SIP
Call.
70
Fed.
Reg.
at
16,004.
With
regard
to
the
NSPS,
EPA
does
not
explain
why
it
should
have
considered
the
program
at
all;
the
agency
determined
in
2000
that
existing
EGU
pollution
posed
a
threat
to
public
health,
and
there
is
no
reason
to
expect
that
a
program
targeting
new
sources
would
have
made
any
significant
dent
in
such
sources'
emissions
at
all.
As
for
the
SIP
Call,
what
is
true
now
of
CAIR
was
true
in
2000
of
the
SIP
Call
 
EPA
could
not
predict
with
certainty
whether
and
how
utilities
would
be
controlled
and,
if
so,
whether
there
would
be
any
collateral
mercury
benefit.
26
program.
Unfortunately
for
the
agency,
the
legal
authority
for
the
trading
scheme
 
section
111(
d)(
1)
 
cannot
lawfully
form
the
basis
for
regulation
of
hazardous
air
pollutants
like
mercury.

Prior
to
the
1990
Amendments,
the
CAA
expressly
barred
EPA
from
regulating
mercury
under
section
111(
d).
Specifically,
section
111(
d)(
1)
provided
for
a
state­
based
regulatory
program
for
"
any
air
pollutant
.
.
.
which
is
not
included
on
a
list
published
under
section"
112(
b)(
1)(
A).
42
U.
S.
C.
§
7411(
d)(
1)
(
1990).
Because
EPA
listed
mercury
as
a
HAP
in
1971,26
therefore,
the
agency
was
obligated
to
regulate
sources'

mercury
emissions
under
section
112,
not
section
111.

In
the
1990
Amendments
to
the
Act,
"
the
House
and
Senate
each
enacted
a
different
amendment
to
section
111(
d),"
70
Fed.
Reg.
at
16,030,
although
each
apparently
was
a
housekeeping
amendment.
27
There
is
no
legislative
history
describing
the
intent
or
effect
of
either
amendment.
The
most
straightforward
reading
of
the
two
amendments,

however,
leaves
in
place
the
pre­
1990
ban
on
section
111­
regulation
of
utility
HAPs.
The
House
amendment
calls
for
a
SIP­
like
program
for
"
any
air
pollutant
.
.
.
which
is
not
.
.
.

emitted
from
a
source
category
which
is
regulated
under
section
112,"
while
the
Senate
amendment
provides
for
such
a
program
for
"
any
air
pollutant
.
.
.
which
is
not
included
on
a
list
published
under
section
 
112(
b)."
Id.
Under
a
straightforward
reading,
utility
HAPs
fall
within
the
scope
of
both
amendments,
because:
(
1)
such
HAPs
are
emitted
from
source
categories
(
like
mercury
cell
chlor­
alkali
plants28)
"
which
[
are]
regulated
26
36
Fed.
Reg.
5,931
(
Mar.
31,
1971)
(
codifying
mercury
listing
in
40
CFR
§
61.01(
a)).
27
The
House
amendment
is
contained
in
section
108(
g)
of
the
legislation
amending
the
Act,
and
section
108
is
titled
"
Miscellaneous
Guidance,"
whereas
the
Senate
amendment
appears
in
section
302(
a),
and
section
302
is
titled
"
Conforming
Amendments."
Pub.
L.
101­
549,
101st
Cong.,
2d.
Sess.
(
Nov.
15,
1990).
28
See
68
Fed.
Reg.
70,
904
(
Dec.
19,
2003)
(
section
112
regulation
for
mercury
cell
chlor­
alkali
plants;
acknowledging
mercury
emissions
from
such
sources).
27
under
section
112";
and
(
2)
such
HAPs
are
also
"
included
on
a
list
published
under
section
112(
b)."

EPA's
delisting
rule
ignores
the
straightforward
language
and
effect
of
the
two
amendments,
instead
interpreting
the
House
amendment
in
a
way
that
conflicts
with
the
Senate
amendment
and
then
adopting
an
untenable
and
self­
serving
compromise
position
that
fails
to
give
full
effect
to
either
amendment.
The
legal
footwork
necessary
to
achieve
this
result
is
impressive
indeed.
As
noted,
the
House
amendment
prohibits
the
regulation
of
"
any
air
pollutant
.
.
.
which
is
not
.
.
.
emitted
from
a
source
category
which
is
regulated
under
section
112."
EPA
first
argues
that
this
language
should
be
read
to
mean
that:

EPA
cannot
establish
a
standard
of
performance
under
CAA
section
111(
d)
for
any
"
air
pollutant"
 
including
both
HAP
and
non­
HAP
 
that
is
emitted
from
a
particular
source
category
regulated
under
section
112.
Thus,
 
if
source
category
X
is
"
a
source
category"
regulated
under
section
112,
EPA
[
cannot]
regulate
HAP
or
non­
HAP
from
that
source
category
under
section
111(
d).

Id.
at
16,031.
If
a
source
category
X
is
not
regulated
under
section
112,
however,
EPA
posits
that
it
can
regulate
the
category's
emissions
of
section
112­
listed
HAPs
under
section
111(
d)
 
an
outcome
directly
at
odds
with
the
Senate
amendment's
ban
on
section
111­
regulation
of
pollutants
"
included
on
a
list
published
under
section
 
112(
b)."

The
agency's
interpretation
of
the
House
amendment
absurdly
turns
on
the
House's
use
of
the
word
"
a":

This
interpretation
reflects
the
distinction
drawn
in
section
111(
d),
as
amended
by
the
House,
between
"
any
pollutant"
and
"
a
source
category."
The
phrase
"
any
pollutant"
existed
prior
to
the
1990
amendments
and
therefore
it
can
be
reasonably
assumed
that
when
the
House
amended
section
111(
d)
in
1990,
it
intentionally
chose
the
words
"
a
source
category,"
as
opposed
to
"
any
source
category."
Although
we
recognize
that
the
phrase
"
a
source
category"
is
susceptible
to
different
28
interpretations,
in
that
it
could
conceivably
mean
one
or
many
source
categories,
we
believe
that
our
interpretation
is
a
permissible
construction
given
the
juxtaposition
of
the
phrases
"
any
pollutant"
and
"
a
source
category"
in
section
111(
d),
as
amended
by
the
House.

70
Fed.
Reg.
at
16,031.
If
legislators
truly
intended
to
achieve
this
result,
however,
they
would
not
have
relied
on
EPA
to
extrapolate
(
wildly)
from
their
choice
of
indefinite
articles;
instead,
they
would
simply
have
barred
section
111­
regulation
of
any
air
pollutant
emitted
by
a
source
category
"
if
that
source
category
is
regulated
under
section
112."
29
Moreover,
EPA's
refusal
to
read
"
a"
to
mean
"
any"
­­
and
its
argument
that
the
phrase
"
any
pollutant"
in
the
same
sentence
as
"
a
source
category"
means
the
latter
does
not
mean
"
any
source
category"
 
is
contradicted
repeatedly
throughout
title
I,
where
"
a"

plainly
means
"
any"
(
that
is,
one
of
many,
rather
than
one
particular
thing),
including
numerous
instances
in
which
"
a"
and
"
any"
appear
in
the
same
sentence:

 
"
Each
State
shall,
after
reasonable
notice
and
public
hearings,
adopt
and
submit
to
the
Administrator,
within
3
years
(
or
such
shorter
period
as
the
Administrator
may
prescribe)
after
the
promulgation
of
a
national
primary
ambient
air
quality
standard
(
or
any
revision
thereof)
under
section
109
for
any
air
pollutant ."
42
U.
S.
C.
§
7410(
a)(
1)
(
emphases
added);
 
"
In
addition,
such
State
shall
adopt
and
submit
to
the
Administrator
(
either
as
a
part
of
a
plan
submitted
under
the
preceding
sentence
or
separately)
within
3
years
(
or
such
shorter
period
as
the
Administrator
may
prescribe)
after
the
promulgation
of
a
national
ambient
air
quality
secondary
standard
(
or
revision
thereof),
a
plan
which
provides
for
implementation,
maintenance,
and
enforcement
of
such
secondary
standard
in
each
air
quality
control
region
(
or
portion
thereof)
within
such
State."
Id.
(
emphases
added);
 
"
Each
implementation
plan
submitted
by
a
State
under
this
[
Act]
shall
be
adopted
by
the
State
after
reasonable
notice
and
public
hearing."
Id.
§
7410(
a)(
2)
(
emphasis
added);

29
See,
e.
g.,
Cuddy
v.
Carmen,
694
F.
2d
853,
857
n.
22
(
D.
C.
Cir.
1982)
(
noting
potential
importance
of
choice
of
articles
for
purposes
of
statutory
construction;
treating
"
a"
as
more
inclusive
than
"
the");
cf.
Georgetown
Univ.
Hosp.
v.
Sullivan,
934
F.
2d
1280,
1284
n.
4
(
D.
C.
Cir.
1991)
(
rejecting
"
overly
formalistic"
interpretation
premised
on
article).
29
 
".
.
.
the
performance
of
such
air
quality
modeling
as
the
Administrator
may
prescribe
for
the
purpose
of
predicting
the
effect
on
ambient
air
quality
of
any
emissions
of
any
air
pollutant
for
which
the
Administrator
has
established
a
national
ambient
air
quality
standard, ."
Id.
§
7410(
a)(
2)(
K)(
i)
(
emphases
added);
 
"
The
Administrator
shall
promulgate
a
Federal
implementation
plan
at
any
time
within
2
years
after
the
Administrator
­
(
A)
finds
that
a
State
has
failed
to
make
a
required
submission
or
finds
that
the
plan
or
plan
revision
submitted
by
the
State
does
not
satisfy
the
minimum
criteria
.
.
.,
or
(
B)
disapproves
a
State
implementation
plan
submission
in
whole
or
in
part,...."
Id.
§
7410(
c)(
1)
(
emphases
added).

These
examples
appear
throughout
title
I
and
other
parts
of
the
Act.
Indeed,
what
is
most
revealing,
is
that
EPA
cannot
point
to
an
instance
in
the
Act
 
or
EPA's
30+
year
history
of
interpreting
the
statute
 
that
supports
or
echoes
EPA's
interpretation
of
the
House
amendment
to
section
111(
d).
And
this
fact
has
nothing
to
do
with
a
House
amendment
being
added
to
the
Act
that
was
about
the
same
statutory
provision
as
a
different
Senate
amendment.
What
explains
this
consistently
contrary
history
of
statutory
interpretation,

rather,
is
EPA
previously
according
"
a"
the
plain
meaning
of
"
any,"
and
here,
in
its
rescission
rulemaking,
adopting
an
unlawfully
narrow
reading
that
carries
the
added
deficiency
of
contradicting
the
Senate
amendment.

To
resolve
its
imagined
conflict
between
the
House
and
Senate
amendments,
EPA
then
offers,
as
its
compromise
position,
30
an
interpretation
that
permits
the
agency
to
regulate
mercury
and
other
listed
utility
HAPs
under
section
111:

[
I]
n
an
effort
to
give
some
effect
to
both
amendments,
we
reasonably
interpret
the
amendments
as
follows:
Where
a
source
category
is
being
regulated
under
section
112,
a
section
111(
d)
standard
of
performance
30
EPA
newly
contends
in
the
final
rule
preamble
that
there
is
no
canon
of
statutory
construction
that
applies
"
where
two
amendments
to
the
same
statutory
provision
are
in
conflict,"
70
Fed.
Reg.
at
16031,
and
therefore
offers
up
its
new
way
of
viewing
the
House
amendment.
But
this
is
an
absurd
result,
for
two
reasons.
First,
EPA
offers
no
reason
why
the
well­
established
canon
that
conflicting
statutory
provisions
should
be
harmonized
to
the
extent
possible
should
not
equally
apply
where
the
alleged
conflict
is
with
the
same
provision.
Second,
and
perhaps
most
importantly,
because
there
is
in
fact
no
conflict
between
the
provisions
there
is
no
need
to
come
up
with
a
"
compromise
position"
at
all.
30
cannot
be
established
to
address
any
HAP
listed
under
section
112(
b)
that
may
be
emitted
from
that
particular
source
category.
Thus,
if
EPA
is
regulating
source
category
X
under
section
112,
section
111(
d)
could
not
be
used
to
regulate
any
HAP
emissions
from
that
particular
source
category.
This
is
a
reasonable
interpretation
of
the
amendments
to
section
111(
d)
because
it
gives
some
effect
to
both
amendments.
First,
it
gives
effect
to
the
Senate's
desire
to
focus
on
HAP
listed
under
section
112(
b),
rather
than
applying
the
section
111(
d)
exclusion
to
non­
HAP
emitted
from
a
source
category
regulated
under
section
112,
which
a
literal
reading
of
the
House
amendment
would
do.
Second,
it
gives
effect
to
the
House's
desire
to
increase
the
scope
of
EPA's
authority
under
section
111(
d)
and
to
avoid
duplicative
regulation
of
HAP
for
a
particular
source
category.

Id.
at
16,031­
32.31
In
short,
EPA
first
interprets
the
House
amendment
in
a
counterintuitive
way
(
thereby
creating
a
conflict
with
the
Senate
amendment)
and
then
asserts
the
authority
to
resolve
that
conflict
through
further
interpretation
 
all
the
while
ignoring
the
plain
meaning
of
the
Senate
amendment
and
the
entirely
consistent,
plausible
reading
of
the
House
amendment
(
identified
above).
But
statutory
provisions
should
be
read
to
avoid
internal
conflicts,
not
to
create
them.
32
EPA's
approach
to
the
House
and
Senate
amendments
violates
this
basic
principle,
as
one
can
reconcile
the
amendments
by
giving
"
a"
a
plain
meaning:
"
any."
33
The
plain
language
of
each
of
the
1990
amendments
thus
proscribes
section
111­
regulation
of
mercury
or
other
listed
HAPs
emitted
by
any
source
category
regulated
under
section
112.

31
The
agency
also
suggests
that
the
fact
that
the
House
amendment
would,
if
read
literally,
prohibit
regulation
of
non­
HAP
pollutants
as
well
is
relevant
to
this
interpretive
exercise.
It
is
not;
EPA
may
be
correct
that
the
House
amendment
contains
a
broader
preclusion
than
the
agency
would
prefer,
but
this
says
nothing
about
whether
either
the
House
or
Senate
amendment
allows
EPA
to
regulate
HAPs.
Ironically,
in
taking
pains
to
read
the
preclusion
of
non­
HAPs
out
of
the
House
amendment,
EPA
demonstrates
how
mistaken
the
rest
of
its
interpretation
is
 
if
EPA
is
willing
to
read
this
part
out
of
the
House
amendment,
then
the
House
and
Senate
amendments
are
perfectly
congruent:
neither
allows
regulation
of
HAPs,
but
both
permit
regulation
of
other
pollutants.
32
See
generally
Illinois
Nat.
Guard
v.
FLRA,
854
F.
2d
1396,
1400­
01
(
D.
C.
Cir.
1988)
("[
W]
hen
faced
with
two
statutes
that
are
in
apparent
conflict,
the
duty
of
the
court
is
to
harmonize
them
if
it
can."
(
internal
quotation
marks
and
citation
omitted)).
33
See
Black's
Law
Dictionary
at
1
(
6th
ed.
1990)
("
The
word
`
a'
has
varying
meanings
and
uses.
`
A'
means
`
one'
or
`
any,'
but
less
emphatically
than
either.
It
may
mean
one
where
only
one
is
intended,
or
it
may
mean
any
one
of
a
great
number.").
31
Other
attempts
by
the
agency
to
defend
its
plainly
incorrect
view
of
the
statute
do
not
save
its
novel
construction.
For
instance,
EPA
resorts
to
adding
key
words
to
support
its
position
that
quite
plainly
do
not
appear
in
the
statute:

 
"
Where
a
source
category
is
being
regulated
under
section
112,
a
section
111(
d)
standard
of
performance
cannot
be
established
to
address
any
HAP
listed
under
section
112(
b)
that
may
be
emitted
from
that
particular
source
category."
Id.
at
16,031
(
emphasis
added).
 
"[
W]
e
believe
that
the
House
sought
to
change
the
focus
of
section
111(
d)
by
seeking
to
preclude
regulation
of
those
pollutants
that
are
emitted
from
a
particular
source
category
that
is
actually
regulated
under
section
112."
Id.
at
16,031
(
emphasis
added).

Plainly
the
House
amendment
does
not
caveat
the
breadth
of
its
language
with
the
words
EPA
wished
it
had
used,
"
for
any
air
pollutant.
.
.
which
is
not
emitted
from
a
particular
source
category
which
is
actually
regulated
under
section
112."
Indeed,
even
this
language
would
not
accomplish
EPA's
unlawful
enterprise,
which
is
why
the
agency
must
actually
resort
to
using
an
entirely
rewritten
example
provision
to
twist
the
statute
to
its
design:
"
Thus,
if
EPA
is
regulating
source
category
X
under
section
112,
section
111(
d)
could
not
be
used
to
regulate
any
HAP
emissions
from
that
particular
source
category."
Id.
at
16,031­
32.
This
is
simply
arbitrary.
The
House
amendment
did
not
need
to
resort
to
these
linguistic
contortions,
specifying
source
categories
by
name
and
then
referring
back
to
them
with
the
phrase
"
that
particular
source
category,"
because
the
amendment
plainly
intends
"
a"
to
mean
"
any."

EPA
newly
asserts
further
that
its
interpretation
of
section
111(
d)
is
supported
by
the
legislative
history
of
section
112(
n).
70
Fed.
Reg.
at
16,030
(
the
House
and
Senate
"
bills
reflect
significantly
different
treatment
of
Utility
Units
under
section
112,
as
well
as
different
amendments
to
section
111(
d)").
The
agency
offers
no
evidence
that
the
drafters
of
the
1990
CAA
amendments
actually
considered
how,
if
at
all,
sections
112(
n)
32
and
111(
d)
were
supposed
to
intersect.
Why?
Because
there
is
no
such
legislative
history.
If
Congress
actually
intended
to
permit
section
111
to
be
available
to
regulate
HAPs
emitted
by
EGUs,
it
would
have
said
so
 
Congress
in
1990
knew
how
to
be
direct
in
making
section
111
authority
available
to
the
agency.
See,
e.
g.,
42
U.
S.
C.
§
7412(
n)(
5)
(
directing
EPA
to
study
the
risks
from
hydrogen
sulfide
emissions
and,
based
on
its
assessment,
"
implement
a
control
strategy
for
emissions
of
hydrogen
sulfide
to
protect
human
health
and
the
environment
.
.
.
using
authorities
.
.
.
including
section[

111]");
id.
§
7429(
a)(
1)
(
requiring
EPA
to
establish
standards
pursuant
to
section
111
for
pollutants
emitted
by
solid
waste
incineration
units).

Moreover,
EPA's
claim
that
its
new
interpretation
reconciles
the
House
and
Senate's
purpose
in
amending
section
111(
d)
is
completely
unsupported.
The
agency
argues
that
its
approach
"
gives
effect
to
the
Senate's
desire
to
focus
on
HAP
listed
under
section
112(
b),"
70
Fed.
Reg.
at
16,032,
but
in
fact
EPA's
interpretation
completely
ignores
the
Senate's
"
focus"
when
it
came
to
HAPs
 
it
wanted
to
(
and
did)
prohibit
air
toxics
regulation
under
section
111
because
section
112'
s
comprehensive
system
for
HAPs
was
preferable
for
such
pollutants.
Similarly,
EPA
does
not
provide
any
support
for
its
claim
that
the
House
had
a
"
desire
to
increase
the
scope
of
EPA's
authority
under
section
111(
d).
.
.
."
70
Fed.
Reg.
16,032.34
34
Because
EPA's
interpretation
of
section
111(
d)
and
its
twin
amendments
is
patently
unlawful,
so
too
is
its
decision
 
done
without
any
notice
in
the
proposed
rule
 
to
amend
40
C.
F.
R.
§
60.21
to
authorize
its
use
of
section
111(
d)
for
HAPs
emitted
by
a
source
category
when
that
particular
category
is
not
regulated
under
section
112.
Technically,
this
change
is
being
made
in
the
regulatory
text
of
the
mercury
pollution
trading
rule,
but
the
decision
helps
EPA
to
accomplish
its
rescission
(
as
EPA
relies
upon
the
trading
rule's
mercury
reductions
to
justify
its
reversal
of
its
"
appropriate"
finding),
so
we
demand
that
the
agency
reconsider
this
last­
minute
change
as
well.
In
so
doing,
all
EPA
needs
to
do
is
to
reaffirm
its
own
prior
interpretation
of
its
rules.
Compare
70
Fed.
Reg.
9,872,
9,873
(
Mar.
1,
2005)
("
Section
111(
d)
of
the
CAA
allows
EPA
to
approve
state
plans
to
regulate
emissions
from
existing
sources
of
`
designated
pollutants,'
i.
e.,
pollutants
not
listed
as
criteria
pollutants
under
CAA
section
108(
a)
nor
as
hazardous
air
pollutants
(`
HAPs')
under
section
112(
b)(
1),
but
to
which
a
standard
of
performance
for
new
sources
applies
under
33
In
summary,
EPA
has
interpreted
section
112(
n)(
1)(
A)
in
a
manner
that
permits
the
agency
to
rely
on
mercury
reductions
from
rules
like
CAIR
and
the
pollution
trading
rule
even
though:
(
1)
neither
rule
could
have
been
foreseen
at
the
time
the
agency
was
to
have
completed
its
Utility
HAP
Study;
(
2)
CAIR
does
not
guarantee
any
mercury
reductions
from
utilities,
let
alone
reductions
sufficient
to
eliminate
the
public
health
hazard
posed
by
utility
mercury
pollution;
and
(
3)
EPA
lacks
the
authority
to
adopt
the
section
111(
d)
trading
scheme
and,
in
turn,
the
agency
may
not
rely
on
that
program
to
justify
revoking
the
December
2000
determination
that
regulation
of
utility
HAP
emissions
is
appropriate
and
necessary.
Because
the
agency
did
not
adequately
explain
its
fluid
reading
of
section
112(
n)(
1)(
A)
in
its
proposed
rule,
it
was
impracticable
to
note
these
flaws
during
the
public
comment
period.
35
Accordingly,
EPA
must
reconsider
both
the
delisting
rule
and
the
unlawful
reading
of
section
112(
n)(
1)(
A)
on
which
that
rule
is
based.

3.
Additional
Elements
of
EPA's
"
Appropriate
and
Necessary"
Analysis
Are
Fundamentally
Flawed.

a.
EPA's
final
rule
contains
an
improper
interpretation
of
the
term
"
appropriate"
that
was
absent
from
the
proposed
rule.

In
its
proposal,
EPA
indicated
that
its
determination
of
whether
MACT
regulation
is
"
appropriate"
must
turn
on
the
dangers
posed
by
EGUs,
not
on
extrinsic
factors.
69
Fed.
Reg.
at
4,683.
In
that
respect,
the
proposal
echoed
EPA's
December
2000
section
111.")
and
Email
from
Jon
Devine,
NRDC,
to
Docket
OAR­
2002­
0056,
docket
item
5762
(
Mar.
2,
2005)
(
highlighting
inconsistency
between
EPA's
interpretation
in
the
March
1
notice
and
its
planned
use
of
section
111
for
EGU
mercury
pollution)
with
70
Fed.
Reg.
12,591,
12,592
(
Mar.
15,
2005)
(
purporting
to
"
correct"
the
March
1
notice,
because
the
"
summary
of
CAA
section
111(
d)(
1)
is
inaccurate
and
incomplete").
35
The
proposal
did
address,
and
commenters
did
raise,
the
issue
of
whether
the
section
111
trading
rule
was
lawful
under
the
CAA,
and
thus
could
permit
EPA
to
conclude
that
it
is
not
"
necessary"
to
regulate
EGU
mercury
pollution
in
light
of
the
section
111
program.
The
proposal
did
not,
however,
address
whether
EPA's
"
appropriate"
finding
could
be
based
on
assuming
the
future
existence
of
a
section
111
program.
34
regulatory
determination.
See
65
Fed.
Reg.
79,829­
30
("
It
is
appropriate
to
regulate
HAP
emissions
from
coal­
and
oil­
fired
electric
utility
steam
generating
units
under
section
112
of
the
CAA
because,
as
documented
in
the
utility
RTC
and
stated
above,
electric
utility
steam
generating
units
are
the
largest
domestic
source
of
mercury
emissions,
and
mercury
in
the
environment
presents
significant
hazards
to
public
health
and
the
environment.").

The
Final
Rule
retreats
from
this
position
and,
in
so
doing,
offers
a
new
legal
interpretation
of
the
term
"
appropriate"
that
looks
beyond
the
hazards
of
EGU
pollution.

EPA
argues
that
Congress's
use
of
the
term
"
appropriate"
in
section
112(
n)(
1)(
A)
means
that
the
agency
must
approach
its
inquiry
in
two
steps:
first,
EPA
must
determine
whether
EGUs,
by
themselves,
cause
discernable
public
health
problems;
and
second,
even
if
EGUs
alone
are
a
clear
threat
to
public
health,
EPA
may
still
refuse
to
regulate
utilities
under
section
112
based
upon
a
series
of
newly­
invented
factors.
See
70
Fed.
Reg.
at
16,000­
01.
As
we
explained
in
detail
above,
the
first
step
 
focusing
on
whether
EGUs
alone
cause
public
health
harms
 
is
unlawful.
In
this
section,
we
explain
that
EPA's
second
step
is
likewise
flawed.

EPA's
new
interpretation
 
which
allows
the
agency
to
reject
section
112
regulation
based
on
considerations
of
cost­
effectiveness
and
other
factors
 
is
inconsistent
with
the
statute.
EPA
relies
primarily
on
the
dictionary
definition
of
"
appropriate"
(
which
the
agency
says
means
"
especially
suitable
or
compatible"),
70
Fed.

Reg.
at
16,000,
and
contends
that
cost
and
other
considerations
could
render
MACT
regulation
unsuitable.
This
new
interpretation
undercuts
section
112(
n)(
1)(
A)'
s
obvious
purpose
because
injecting
notions
of
cost­
effectiveness,
administrative
ease,
and
35
compliance
flexibility
into
the
"
appropriate"
inquiry
will
inevitably
tilt
away
from
section
112
regulation.
As
described
elsewhere
in
this
petition,
because
Congress
obviously
considered
HAP
emissions
to
be
uniquely
dangerous,
section
112
is
by
design
rigid,

demanding,
and
at
times
potentially
cost­
ineffective.
36
Moreover,
EPA's
approach
finds
no
support
in
the
language
of
the
statute.
If
Congress
wanted
these
kinds
of
implementation
questions,
rather
than
the
ultimate
question
of
EGUs'
risk
to
public
health
and
the
environment,
to
drive
EPA's
assessment
of
"
appropriateness,"
it
would
have
said
so,
as
it
has
done
in
numerous
CAA
provisions.

See,
e.
g.,
42
U.
S.
C.
§
7547(
a)(
4)
("
the
Administrator
may
promulgate
.
.
.
such
regulations
as
the
Administrator
deems
appropriate
[
for
certain]
.
.
.
new
nonroad
engines
and
new
nonroad
vehicles
.
.
.
which
in
the
Administrator's
judgment
cause,
or
contribute
to,
such
air
pollution,
taking
into
account
costs,
noise,
safety,
and
energy
factors"

(
emphasis
added)).
Indeed,
the
Supreme
Court
has
noted,
"[
w]
e
have
.
.
.
refused
to
find
implicit
in
ambiguous
sections
of
the
CAA
an
authorization
to
consider
costs
that
has
elsewhere,
and
so
often,
been
expressly
granted."
Whitman
v.
American
Trucking
Assn's,

Inc.,
531
U.
S.
457,
467
(
2001).
37
Ironically,
in
attempting
to
expand
the
list
of
factors
that
could
prevent
EPA
from
finding
section
112
regulation
to
be
"
appropriate,"
EPA's
new
interpretation
arbitrarily
and
capriciously
ignores
the
ways
in
which
section
112
regulation
would
be
"
especially
36
Contra
40
C.
F.
R.
§
60.24(
f)
(
Existing
EPA
regulations
establish
a
loose,
flexible
regulatory
regime
under
which
states
may
grant
exceptions
from
applicable
emissions
guidelines
under
section
111(
d)
for
"[
u]
nreasonable
cost,"
"[
p]
hysical
impossibility,"
and
a
catch­
all
category
of
"
other
factors
specific
to
the
facility
(
or
class
of
facilities)
that
make
application
of
a
less
stringent
standard
or
final
compliance
time
significantly
more
reasonable.").
37
EPA
cites
a
D.
C.
Circuit
opinion,
Michigan
v.
EPA,
213
F.
3d
663,
678
(
D.
C.
Cir.
2000),
cert.
denied.,
532
U.
S.
903
(
2001),
for
the
proposition
that
considering
costs
is
ordinarily
appropriate
where
Congress
has
not
precluded
doing
so.
70
Fed.
Reg.
at
16,001
n.
19.
Although
EPA
acknowledges
the
Supreme
Court's
decision
in
Whitman,
it
does
not
mention
the
statement
quoted
above.
36
suitable"
for
HAPs
if
the
agency
were
permitted
to
look
beyond
the
risks
that
EGUs
pose.

The
same
dictionary
that
EPA
relies
on
for
defining
"
appropriate"
as
"
suitable"
also
defines
"
suitable"
as
"
adapted
to
a
use
or
purpose."
38
In
1990,
Congress
amended
 
or
adapted
 
the
CAA
because
of
EPA's
longstanding
and
miserable
failure
to
control
HAPs
such
as
mercury.
39
Specifically,
section
112
was
amended
or
adapted
to
a
particular
use
or
purpose
to
address
EPA's
past
failures;
that
is,
to
strictly
control
HAPs
like
mercury
from
major
sources
like
coal­
fired
power
plants.
For
instance,
Congress
required
MACT
standards
that
met
certain
minimum
stringency
levels,
irrespective
of
costs,
42
U.
S.
C.
§
7412(
d)(
3),
and
section
112(
f)
requires
EPA
to
revisit
the
source
categories
regulated
by
MACT
standards
and
reduce
any
residual
risk
to
public
health
to
ensure
an
adequate
margin
of
safety,
id.
§
7412(
f).

Similarly,
EPA
has
ignored
other
benefits
of
strict
MACT
regulation
that
 
if
it
were
permissible
to
look
at
factors
beyond
the
risk
caused
by
EGUs
in
making
the
"
appropriate"
determination
 
would
make
it
"
especially
suitable"
to
rely
on
section
112.

For
instance,
the
agency
failed
to
consider
the
impact
strict
versus
weak
regulation
would
have
on
the
Agency's
ability
to
meet
the
terms
of
the
Chesapeake
2000
Agreement,
an
agreement
signed
by
EPA
on
behalf
of
the
United
States
along
with
six
states.
That
agreement
provides,
among
other
things,
that
the
signatories
to
the
Agreement
will
meet
38
See
Merriam­
Webster's
Online
Dictionary,
available
at
http://
www.
m­
w.
com/
cgibin
dictionary?
book=
Dictionary&
va=
suitable
(
visited
May
28,
2005).
39
See
S.
Rep.
No.
101­
228,
at
3
(
1989)
(
Senate
Report)
("
Very
little
has
been
done
since
the
passage
of
the
1970
[
CAA]
to
identify
and
control
hazardous
air
pollutants.").
In
part
because
of
alleged
uncertainty
over
appropriate
levels
of
protection
under
a
risk­
based
system,
and
"
unrealistic"
time
frames
mandating
proposed
standards
180
days
after
listing
a
pollutant
as
hazardous,
little
progress
was
made.
Id.
at
132.
In
fact,
from
1970
to
1990,
EPA
listed
only
eight
HAPs,
establishing
emission
standards
for
seven
of
them.
Id.
at
131;
House
Report,
at
322.
Such
inactivity
led
the
House
Committee
on
Energy
and
Commerce
to
summarize
the
Agency's
progress
in
limiting
HAP
emissions
under
Section
112
as
follows:
"
Listing
decisions
have
been
few
and
far
between.
...
No
decision
­­
is
the
history
of
this
program."
House
Report,
at
151
(
quoting
a
November
7,
1983,
Committee
hearing).
37
a
1994
goal
of
insuring
that
fish
within
the
Chesapeake
Bay
are
safe
to
eat
by
all
Bay
area
residents
and
visitors.
That
goal
was
to
be
met
by
"
reducing
or
eliminating
the
input
of
chemical
contaminants
from
all
controllable
sources
to
levels
that
result
in
no
toxic
or
bioaccumulative
impact
on
the
living
resources
that
inhabit
the
Bay
or
on
human
health."

Chesapeake
2000
Agreement,
p.
7,
available
online
at
http://
www.
chesapeakebay.
net/
agreement.
htm
(
visited
May
28,
2005).
In
fact,
by
rescinding
its
"
appropriate"
finding,
EPA
appears
to
have
completely
ignored
the
Chesapeake
2000
Agreement,
the
findings
of
the
agency's
own
Chesapeake
Bay
Program,
and
its
Toxics
Subcommittee.

Thus,
EPA's
new
interpretation
of
the
term
"
appropriate"
both
contravenes
the
language
and
purpose
of
the
CAA
and
is
arbitrary
and
capricious.
The
idea
that
costs
or
other
considerations
could
inform
EPA's
"
appropriateness"
inquiry
is
not
supported
by
statutory
language,
and
the
agency's
apparent
willingness
to
only
look
at
factors
that
will
tend
to
make
it
inappropriate
to
regulate
under
section
112
is
arbitrary
and
capricious.

b.
EPA's
final
rule
contains
an
improper
interpretation
of
the
term
"
necessary"
that
is
different
from
the
proposed
rule.

In
January
30,
2004'
s
proposed
rule,
EPA
proposed
to
reverse
its
December
2000
regulatory
finding.
That
regulatory
finding,
made
pursuant
to
section
112(
n)(
1)(
A),

concluded
that
it
was:

necessary
to
regulate
HAP
emissions
from
coal­
and
oil­
fired
electric
steam
generating
units
under
section
112
of
the
CAA
because
the
implementation
of
other
requirements
under
the
CAA
will
not
adequately
address
the
serious
public
health
and
environmental
hazards
arising
from
such
emissions.
.
.
.

65
Fed.
Reg.
79,830.
Although
EPA's
proposed
rule
purported
to
adhere
to
this
interpretation
of
the
term
"
necessary,"
it
sought
to
overturn
the
2000
"
necessary"
38
determination
by
positing
that
other
provisions
of
the
CAA
would
indeed
adequately
address
utility
unit
emissions;
therefore,
it
was
not
necessary
to
regulate
such
emissions
under
section
112.
69
Fed.
Reg.
at
4,684.
In
the
Final
Rule,
EPA
offers
a
newly­
formed
interpretation
of
"
necessary"
which
the
agency
states
"
differs
slightly
from
the
interpretation
advanced
in
December
2000
and
January
2004."
70
Fed.
Reg.
at
16,001.

Specifically,
EPA
now
suggests
that
it
is
not
"
necessary"
to
regulate
utility
units
under
section
112
if
other
provisions
of
the
CAA
exist
that
would
adequately
address
HAP
emissions
that
would
remain
after
imposition
of
other
sections
of
the
CAA,
or
if
other
provisions
would
do
so
in
a
more
cost­
effective
or
administratively
effective
manner.

Such
a
circular
interpretation
of
the
term
"
necessary"
does
nothing
to
remedy
the
numerous
flaws
that
were
present
in
its
proposed
rule
analysis
of
the
term
"
necessary."
In
addition,
EPA's
latest
interpretation
raises
new
issues
that
make
the
current
rule
arbitrary
and
capricious.

As
an
initial
matter,
EPA's
current
interpretation
of
"
necessary"
(
as
with
its
improper
"
appropriate"
analysis)
largely
relies
on
the
Agency's
projected
reductions
of
mercury
that
will
result
from
implementation
of
CAIR
and
the
mercury
trading
scheme.

To
the
extent
that
EPA
is
importing
a
health
test
into
the
"
necessary"
prong
of
the
section
112(
n)(
1)(
A)
analysis,
doing
so
contradicts
the
agency's
own
interpretation
of
the
provision.
EPA,
in
addressing
commenters'
suggestions
that
both
prongs
of
the
"
appropriate
and
necessary"
finding
should
depend
exclusively
on
public
health,
argues
that,
although
it
must
evaluate
the
hazards
to
public
health
under
the
"
appropriate"
prong
of
the
analysis,
"
Congress
meant
something
different
by
the
term
`
necessary,'"
70
Fed.

Reg.
at
16,001.
Failure
to
connote
a
different
meaning
to
the
term
"
necessary"
would,
39
according
to
EPA,
conflate
the
two
terms.
Id.
EPA's
contradictory
stance
renders
its
current
position
arbitrary
and
capricious.

Moreover,
EPA
makes
much
of
the
fact
that
a
cap­
and­
trade
regulatory
scheme
would
provide
economic
benefits
to
the
electric
utility
industry,
and
suggests
that
the
"
necessary"
analysis
should
include
an
inquiry
into
whether
regulation
apart
from
section
112
"
would
result
in
effective
regulation,
including,
for
example,
its
cost­
effectiveness
and
its
administrative
effectiveness."
Id.
However,
there
are
no
provisions
under
the
CAA
that
would
allow
EPA's
final
rule's
interpretation
of
the
term
"
necessary"
to
include
a
cost­
benefit
analysis
in
deciding
whether
to
regulate
utility
units
under
the
strict
standards
of
section
112.
As
noted
above,
the
Supreme
Court
has
concluded
that
the
fact
that
Congress
so
often
explicitly
required
EPA
to
consider
costs
in
making
different
decisions
under
the
CAA
is
a
powerful
indication
that
costs
should
be
excluded
from
other
statutory
analyses.
Whitman,
531
U.
S.
at
467.
Because
the
Act
does
not
direct
EPA
to
assess
costs,
administrative
convenience,
or
other
factors
in
determining
what
is
"
necessary"
under
section
112(
n)(
1)(
A),
EPA
may
only
look
at
what
the
term
"
necessary"
obviously
means
 
whether
other
statutory
requirements
are
already
in
place
to
address
any
identified
public
health
threat.
Of
course,
that
is
precisely
what
EPA
did
in
its
December
2000
regulatory
determination.

Furthermore,
including
cost­
effectiveness
in
making
the
"
appropriate
and
necessary"
decision
under
section
112(
n)(
1)(
A)
would
subvert
legislative
intent.

Congress
was
unequivocal
in
1990
that
costs
should
play
no
role
in
much
of
the
section
112
HAP
regulatory
regime.
Section
112(
d)
is
clear
that
the
MACT
floor
should
be
a
technology­
based
approach,
with
requirements
no
less
stringent
than
what
well­
controlled
40
sources
are
accomplishing
(
i.
e.,
"
the
average
emission
limitation
achieved
by
the
best
performing
12
percent
of
the
existing
sources"
or
"
the
emission
control
that
is
achieved
in
practice
by
the
best
controlled
similar
source").
42
U.
S.
C.
§
7412(
d)(
3);
see
also
National
Lime
Ass'n
v.
EPA,
233
F.
3d
625,
640
(
D.
C.
Cir.
2000).
EPA
cannot
attempt
an
end­
run
around
Congress's
mandate
by
seeking
to
illegally
remove
section
112(
c)­
listed
major
sources
of
HAPs
based
on
a
cost­
benefit
analysis
and
thereby
avoid
strict
112(
d)

limitations
that
are
not
allowed
to
consider
costs
under
Congress's
mandate.

4.
EPA's
Modeling
Effort
Arbitrarily
and
Capriciously
Downplays
the
Significance
of
Power
Plant
Mercury
Pollution
and
Fish
Contamination.

As
noted
above,
EPA
only
proposed
to
withdraw
its
December
2000
finding
that
section
112
regulation
is
"
necessary,"
but
to
retain
its
finding
that
regulation
is
"
appropriate."
See
69
Fed.
Reg.
at
4,683
("
The
EPA
continues
to
believe
that
emissions
of
Hg
from
coal­
fired
Utility
Units
and
emissions
of
Ni
from
oil­
fired
units
pose
hazards
to
public
health,
that
coal­
fired
Utility
Units
are
the
largest
domestic
source
of
Hg
emissions,
and
that
oil­
fired
units
are
the
primary
source
of
Ni
emissions.
These
findings
support
a
determination
that
it
is
appropriate
to
regulate
emissions
of
Hg
and
Ni
from
Utility
Units.").

In
light
of
this
history,
the
most
obvious
and
egregious
example
of
EPA's
willingness
to
rely
on
information
that
was
not
available
during
the
public
comment
period,
but
which
is
centrally
relevant
to
the
rulemaking,
is
its
new
analysis
purporting
to
demonstrate
that
section
112
regulation
is
not
"
appropriate"
because
"
the
level
of
utility
attributable
Hg
emissions
remaining
after
imposition
of
CAIR,
and
independently,

CAMR,
will
not
result
in
hazards
to
public
health."
70
Fed.
Reg.
at
16,011.
This
conclusion
is
supported
by
an
elaborate,
if
opaque,
modeling
effort
which
the
agency
41
conducted
(
or
at
least
publicly
acknowledged)
after
the
close
of
the
comment
period.
See
id.
at
16,004
("
we
have
new
information
that
confirms
that
it
is
not
appropriate
to
regulate
coal­
fired
units
under
section
112
on
the
basis
of
Hg
emissions"
(
emphasis
added));
id.
(
summarizing
modeling).
Indeed,
although
an
EPA
official
mentioned
the
broad
outlines
of
this
modeling
effort
at
a
public
meeting
on
February
24,
2005
(
still
after
the
close
of
the
comment
period),
and
although
NRDC
and
CATF
requested
that
EPA
immediately
docket
the
material
to
allow
the
public
the
opportunity
to
review
it
in
the
brief
remaining
period
before
the
Final
Rule
was
signed,
see
Letter
from
Jon
Devine,

NRDC,
and
Ann
Weeks,
CATF,
to
Assistant
Administrator
Holmstead,
docket
item
5764
(
Mar.
2,
2005),
the
agency
apparently
did
not
include
these
materials
in
the
publiclyavailable
docket
for
the
rulemaking
until
the
day
the
rule
was
signed,
at
the
earliest.
40
In
general
terms,
we
understand
EPA
to
have
taken
the
following
steps
in
order
to
determine
whether
regulating
power
plant
mercury
is
"
appropriate"
under
the
Act.
First,

the
agency,
using
estimated
emissions
information
about
mercury
pollution
sources
around
the
globe,
41
ran
a
model
designed
to
predict
the
level
of
mercury
deposition
for
each
of
thousands
of
geographic
"
grid
cells"
covering
the
continental
United
States.
70
Fed.
Reg.
at
16,016.
Second,
EPA
repeated
this
modeling
for
a
variety
of
scenarios,

changing
the
amount
of
mercury
pollution
coming
from
EGUs
in
the
U.
S.;
the
scenarios
40
We
arrive
at
this
conclusion
because:
(
1)
the
report
titled
"
Technical
Support
Document
for
the
Final
Clean
Air
Mercury
Rule:
Air
Quality
Modeling"
is
dated
March
2005
and
bears
the
electronic
docket
number
6130,
while
the
Regulatory
Impact
Analysis
(
which
also
discusses
this
modeling
work)
is
likewise
dated
March
2005
and
bears
the
electronic
docket
numbers
6194­
96,
6198,
and
6200­
01;
and
(
2)
the
agency's
electronic
docket
on
the
morning
of
March
15,
2005
(
the
date
the
rule
was
signed)
only
contained
items
up
to
electronic
docket
number
5915.
A
third
technical
document,
titled,
"
Technical
Support
Document:
Methodology
Used
to
Generate
Deposition,
Fish
Tissue
Methylmercury
Concentrations,
and
Exposure
for
Determining
Effectiveness
of
Utility
Emission
Controls,"
is
undated
but
bears
the
electronic
docket
number
6186.
41
It
bears
noting
that
the
agency
itself
acknowledges
that
estimates
of
international
mercury
emissions
are
of
questionable
reliability.
See
70
Fed.
Reg.
at
16,012,
n.
42
("
Recent
Hg
estimates
(
which
are
highly
uncertain)
of
annual
total
global
emissions
from
all
sources
(
natural
and
anthropogenic)
are
about
5,000
to
5,500
tons
per
year
(
tpy).").
42
included
a
2001
baseline
(
no
EGU
regulation),
a
2001
baseline
with
utility
emissions
"
zeroed
out,"
a
2020
prediction
after
CAIR,
a
2020
prediction
after
CAIR
plus
different
mercury
trading
schemes,
and
a
2020
prediction
with
EGU
mercury
pollution
"
zeroed
out."
U.
S.
EPA,
Technical
Support
Document:
Methodology
Used
to
Generate
Deposition,
Fish
Tissue
Methylmercury
Concentrations,
and
Exposure
for
Determining
Effectiveness
of
Utility
Emission
Controls,
docket
item
6186,
at
5
(
undated).
Third,
EPA
compared
the
utility
"
zero
out"
scenarios
to
different
control
regimes
to
determine
the
amount
of
"
utility
attributable"
deposition
that
would
occur
in
the
baseline
year,
after
CAIR,
and
after
CAIR
plus
different
trading
plans.
Id.
Fourth,
having
estimated
the
degree
to
which
"
utility
attributable"
mercury
deposition
will
change
under
different
control
approaches,
EPA
assumed
that
the
concentration
of
methylmercury
in
fish
in
any
given
watershed
would
decrease
proportionally
with
the
decrease
in
deposition.
70
Fed.

Reg.
at
16,019.
To
take
a
simple
example,
if
EPA
modeled
that
deposition
to
a
watershed
would
decrease
by
50
percent
in
an
area
because
of
zeroing
out
utility
emissions,
"
utility
attributable"
fish
tissue
methylmercury
concentrations
in
that
area
were
presumed
to
fall
by
that
percentage
as
well.
Fifth,
EPA
examined
the
"
utility
attributable"
methylmercury
concentrations
with
and
without
various
control
measures
in
place
to
estimate
the
degree
to
which:
CAIR
reduces
such
concentrations
over
the
baseline
level;
different
mercury
trading
approaches
reduce
such
concentrations
over
CAIR;
and
eliminating
utility
emissions
reduces
such
concentrations
over
CAIR
plus
one
of
the
trading
program
options.
Id.
at
16,020,
table
VI­
7.
Finally,
EPA
compared
the
"
utility
attributable"

methylmercury
concentrations
under
these
various
control
programs
to
the
agency's
water
quality
criteria
guideline
of
0.3
ppm
methylmercury
in
fish
tissue,
as
a
way
of
43
gauging
whether
the
"
utility
attributable"
fish
contamination
remaining
after
different
control
regimes
were
implemented
would
be
a
public
health
concern.
Id.
at
16,020.

We
have
reviewed
the
supporting
documentation
for
EPA's
new
risk
assessment,

and
it
reveals
that,
even
if
EPA's
fundamental
and
underlying
assumption
that
it
is
authorized
to
consider
utility
HAPs
alone
were
correct,
this
estimation
effort
is
so
rife
with
uncertainty
that
it
is
arbitrary
and
capricious
to
rely
upon
it
as
the
sole
basis
for
concluding
that
section
112
regulation
is
inappropriate.
A
number
of
specific
ways
in
which
the
agency's
assessment
fails
to
capture
the
real
world
are
summarized
below.

a.
Relying
on
full
adoption
of
CAIR
and
the
mercury
trading
scheme
is
unjustified.

EPA's
analysis
assumes
that
states
will
adopt
both
CAIR
and
the
agency's
mercury
trading
scheme
without
alteration,
an
assumption
that
is
unjustified
by
the
record
or
the
law.
EPA
lacks
the
authority
under
the
Act
to
make
states
follow
either
CAIR
or
the
mercury
rule
in
their
particulars.
Instead,
as
noted
above,
states
subject
to
CAIR
need
not
even
adopt
controls
on
EGU
pollution
 
they
instead
simply
must
demonstrate
how
they
will
meet
the
rule's
sulfur
dioxide
and
nitrogen
oxides
targets.
70
Fed.
Reg.
at
25,208
(
CAIR
preamble
states
that
"
CAA
Section
110
permits
States
to
choose
the
sources
and
source
categories
that
will
be
controlled
in
order
to
meet
applicable
emission
and
air
quality
requirements.
This
means
that
some
States
may
choose
to
meet
their
CAIR
obligations
by
imposing
control
requirements
on
sources
other
than
EGUs.")
42
Similarly,
EPA
concedes
that
the
agency
cannot
require
states
to
implement
the
mercury
trading
scheme,
70
Fed.
Reg.
at
28,619
("
EPA
believes
it
reasonable
to
assume
that
States
will
adopt
the
program
even
though
they
are
not
required
to
do
so."),
and
it
is
42
See
also
id.
(
chart
presenting
potential
nitrogen
oxides
control
options
other
than
power
plant
controls).
44
reasonable
to
presume
that
several
states
will
not
follow
EPA's
lead,
as
a
number
of
them
have
sued
the
agency
over
the
delisting
rule
and
mercury
trading
program.
See
Press
Release,
"
Nine
States
File
Suit
Challenging
EPA
Mercury
Rule,"
(
Mar.
29,
2005),

available
online
at
http://
www.
oag.
state.
ny.
us/
press/
2005/
mar/
mar29c_
05.
html
(
visited
May
28,
2005);
Press
Release,
"
Eleven
States
Sue
EPA
to
Block
Second
Mercury
Rule"

(
May
18,
2005),
available
online
at
http://
www.
oag.
state.
ny.
us/
press/
2005/
may/
may18d_
05.
html
(
visited
May
28,
2005).

Nevertheless,
EPA
assumes
away
the
potential
complications
that
could
arise
for
its
modeling
effort
if
states
refuse
to
participate
in
either
of
its
pollution
trading
plans,
even
to
the
point
of
presuming
that
states
that
are
not
included
in
EPA's
CAIR
rule
will
participate.
See
Deposition/
Fish
TSD
at
6
n.
4
(
noting
that
modeling
assumes
New
Jersey,
Delaware,
and
Arkansas
are
included
in
CAIR
only
because
EPA
intends
to
add
them).

b.
EPA's
deposition
modeling
is
not
exact
enough
to
provide
the
basis
for
predicting
site­
specific
contamination
levels.

EPA's
analysis
depends
on
its
modeling
being
able
to
predict
deposition
rates
with
a
level
of
precision
that
it
is
not
capable
of
delivering.
The
agency
uses
the
Community
Multi­
Scale
Air
Quality
(
CMAQ)
model
to
predict
absolute
deposition
rates
in
different
watersheds
before
and
after
various
control
scenarios,
in
order
to
then
calculate
the
degree
to
which
fish
tissue
concentrations
will
be
predicted
to
fall
in
response
to
emission
control
regimes.
Although
CMAQ,
like
other
deposition
models
before
it,
are
useful
tools
to
estimate
national
deposition
rates
and
relative
deposition
intensity
between
regions,
the
model
is
not
up
to
the
task
of
delivering
the
precise
deposition
estimates
that
EPA
pretends
the
model
provides.
45
In
addition,
CMAQ's
grid
size,
while
appropriate
for
tracking
deposition
on
a
national
scale,
is
too
large
to
capture
within­
grid
plume
effects.
EPA
acknowledges
this
problem.
See
Deposition/
Fish
TSD,
at
4
n.
2
("
Eulerian
grid
models
such
as
CMAQ
immediately
dilute
simulated
emissions
into
the
entire
grid
volume
in
which
they
are
released.
This
causes
an
artificially
fast
dilution
and
under­
represents
direct
deposition
from
air
to
surfaces
near
emission
sources.").

EPA
also
recognizes
that
CMAQ
modeling
tends
to
underpredict
wet
deposition
rates,
and
the
dry
deposition
estimates
are
so
uncertain
that
the
agency
is
left
to
simply
assume
that
dry
deposition
is
approximately
equivalent
to
wet
deposition.
With
regard
to
wet
deposition,
EPA
compared
its
model
results
to
an
existing
network
of
deposition
monitors,
and
found
that
CMAQ
underestimated
wet
deposition
by
approximately
23
percent
across
the
entire
modeling
domain,
and
by
roughly
27
percent
in
the
East.
U.
S.

EPA,
Regulatory
Impact
Analysis
of
the
Clean
Air
Mercury
Rule:
Final
Report,
at
p.
8­
9
(
Mar.
2005)
(
hereinafter
"
RIA").
By
contrast,
based
on
the
few
western
wet
deposition
monitoring
sites,
it
appears
that
the
model
overpredicts
deposition
in
that
area,
id.,

suggesting
that
perhaps
the
estimate
of
global
transport
of
mercury
across
the
Pacific
Ocean
is
too
high.
On
dry
deposition,
EPA
says
that
"[
t]
here
currently
is
no
measurement
network
to
evaluate
the
performance
of
models
in
estimating
dry
deposition
of
mercury.
Thus,
we
are
not
able
to
evaluate
the
performance
of
air
quality
models
in
predicting
dry
deposition,
which
is
thought
to
be
roughly
half
of
total
mercury
deposition."
Id.
at
p.
8­
8.

Finally,
to
illustrate
the
degree
to
which
EPA's
model
appears
to
operate
at
too
gross
a
level
of
accuracy
to
perform
the
job
that
EPA
asks
of
it,
consider
table
3­
4
of
the
46
agency's
Regulatory
Impact
Analysis.
In
that
table,
EPA
presents
modeling
results
for
both
the
CMAQ
and
Regulatory
Modeling
System
for
Aerosols
and
Deposition
(
REMSAD)
for
five
case
study
watersheds,
and
in
four
out
of
the
five
areas,
both
models
predict
deposition
rates
which
are
higher
in
the
2001
EGU
"
zero
out"
scenario
than
they
are
in
2020
after
implementation
of
CAIR.
RIA
at
p.
3­
25.
In
other
words,
the
models
predict
that
these
watersheds
will
have
less
deposition
if
power
plants
are
only
partially
controlled,
rather
than
entirely
cleaned
up.
Of
course,
that
would
be
impossible,
if
all
things
were
equal.
EPA
assumes
that
the
difference
is
attributable
to
extrinsic
factors,
see
id.
at
p.
3­
24
("
Projected
differences
in
atmospheric
deposition
(
Table
3­
4)
with
the
zeroout
scenario
are
similar
to
2020
projected
deposition
rate
under
the
Clean
Air
Interstate
Rule
(
CAIR)
presumably
because
the
2020
scenario
includes
reductions
in
emissions
from
mercury
sources
other
than
coal­
fired
utilities."),
but
provides
no
support
for
this
presumption.
Indeed,
EPA
appears
to
be
wrong
 
according
to
the
agency,
total
emissions
are
lower
under
the
2001
"
zero
out"
scenario
(
66.32
tons)
than
under
the
2020
CAIR
scenario
(
87.19
tons).
70
Fed.
Reg.
at
16,018,
Table
VI­
2.
In
the
end,
the
agency
declares
that
"[
a]
review
of
the
strengths
and
weaknesses
of
atmospheric
mercury
fate
and
transport
modeling
is
beyond
the
scope
of
this
project."
Id.
at
p.
3­
17.

c.
EPA
cannot
definitively
translate
predicted
deposition
into
fish
tissue
concentrations
to
depict
mercury
levels
in
fish
under
different
pollution
control
scenarios.

As
noted
above,
EPA
used
the
estimates
its
model
generated
about
the
reduction
in
mercury
deposition
under
different
circumstances
in
specific
watersheds
and
assumed
that
fish
in
those
watersheds
would
become
proportionally
less
contaminated
with
mercury.
However,
the
CMAQ
only
provides
an
approximation
of
mercury
deposition
to
47
a
watershed
because
the
average
deposition
estimate
for
each
grid
cell
is
further
averaged
across
many
grid
cells
which
make
up
a
watershed.
The
result
is
a
singe
deposition
estimate
for
entire
watersheds.
This
area­
averaging
method
obscures
areas
of
higher
deposition
within
watersheds.
EPA
states
as
much:
"
Averaging
over
grid
cells
may
result
in
a
smoothing
out
of
areas
of
high
and
low
deposition,
because
the
CMAQ
grid
cells
are
smaller
than
many
[
hydrological
unit
codes]."
Deposition/
Fish
TSD
at
p.
4.
Although
using
area
averages
to
estimate
deposition
is
a
common
practice
in
regional
and
national
models
such
as
CMAQ,
this
again
illustrates
that
the
results
of
the
CAMQ
model
are
being
used
as
precise
estimates
when
clearly
they
are
not.

For
fish
tissue
data,
the
agency
relied
on
two
databases,
the
National
Listing
of
Fish
Advisories
("
NLFA")
and
the
National
Lake
Fish
Tissue
Survey
("
NLFTS").
EPA
describes
these
databases
as
follows:

The
NLFA
collects
data
from
state
sampling
of
fish.
According
to
the
EPA
NLFA
website
(
http://
www.
epa.
gov/
ost/
fish/
advisories),
states
monitor
their
waters
by
sampling
fish
tissue
for
long­
lasting
pollutants
that
bioaccumulate.
States
issue
their
advisories
and
guidelines
voluntarily
and
have
flexibility
in
what
criteria
they
use
and
how
the
data
are
collected.
As
a
result,
there
are
significant
variations
in
the
numbers
of
waters
tested,
the
pollutants
tested
for,
and
the
threshold
for
issuing
advisories.
*
*
*
The
NLFTS
is
an
ongoing
program
intended
to
provide
a
more
geographically
representative
set
of
fish
tissue
data
at
lakes
and
reservoirs
in
the
U.
S.
The
NLFTS
provides
samples
from
500
randomly
selected
lakes
and
reservoirs
in
the
U.
S.
during
the
period
2000­
2003.
The
NLFTS
excluded
the
great
lakes,
and
randomly
selected
lake
sites
from
over
270,000
possible
sites.

Deposition/
Fish
TSD
at
20
(
citations
and
footnote
omitted).
EPA's
methods
for
taking
the
modeled
deposition
estimates
and
turning
them
into
predicted
fish
tissue
concentrations
under
various
pollution
control
scenarios
are
highly
uncertain.
48
First,
the
number
of
data
points
that
EPA
has
does
not
instill
confidence
in
the
agency's
analysis.
As
noted
above,
the
NFTS
database
contains
samples
from
500
of
approximately
270,000
nationwide
lake
sites,
thus
covering
0.185
percent
of
the
total.

The
agency
likewise
notes
that
its
databases
contain
92,224
fish
tissue
samples,
but
that
it
found
only
42,756
of
these
sufficiently
robust
to
use
for
the
risk
analysis.
RIA
at
p.
5­
11.

Ultimately,
EPA
had
data
from
a
total
of
1,633
lake
and
river
sampling
sites.
70
Fed.

Reg.
at
16,015.
It
is
obvious
that
this
number
of
samples
from
this
few
locations
cannot
ensure
that
EPA
has
sufficient
data
to
adequately
cover
the
40,557,677
million
lake
acres
and
3,526,292
river
miles
in
the
nation.
43
Second,
the
geographic
scope
of
the
data
EPA
has
about
fish
concentrations
is
severely
limited
by
EPA's
manipulation
of
the
mercury
fish
concentration
data.
First,

according
to
the
agency,
"
there
is
relatively
little
fish
tissue
information
for
the
Westernhalf
of
the
U.
S."
RIA
at
p.
10­
1.
More
to
the
point,
there
is
no
indication
that
the
vast
majority
of
the
data
EPA
does
have
is
representative
of
waterbodies
generally
in
the
U.
S.,

much
less
the
universe
of
waterbodies
in
which
people
regularly
fish.
See
id.
p.
3­
8
("
It
is
unknown
to
which
degree
the
NLFA
and
NFTS
data
reflect
those
[
areas]
that
are
commonly
fished.").

Third,
EPA's
determination
that
fish
smaller
than
7
inches
in
length
(
or
of
indeterminate
length)
should
be
removed
from
the
data
set
had
significant
consequences,

because
samples
from
many
areas
were
judged
to
be
deficient.
EPA
acknowledges
that
"
almost
all
of
the
samples
from
the
states
of
IA,
NE,
OH,
TN,
VA,
and
PA,
were
43
See
U.
S.
EPA,
Fact
Sheet:
National
Listing
of
Fish
Advisories,
at
2
(
Aug.
2004)
("
Currently,
the
3,089
advisories
in
the
national
listing
represent
35%
of
the
nation's
total
lake
acreage
and
24%
of
the
nation's
total
river
miles.
Approximately
101,818
lakes
(
14,195,187
lake
acres)
and
846,310
river
miles
were
under
advisory
in
2003.")
49
removed
because
the
length
of
the
fish
was
not
recorded."
Id.
at
p.
5­
10,
n.
7.
The
effect
of
eliminating
these
data
are
particularly
important
as
EPA
states
that
"
most
of
the
current
utility
attributable
deposition
occurs
in
the
Eastern
U.
S.,
especially
in
the
Ohio
Valley
and
Pennsylvania"
 
the
very
locations
for
which
nearly
all
of
the
fish
samples
were
rejected.
Deposition/
Fish
TSD
at
6.

Fourth,
EPA's
winnowing
out
of
samples
collected
prior
to
1999
reduces
the
available
data
set
to
so
few
locations
that
the
analysis
can
only
grossly
estimate
fish
mercury
reductions
in
very
limited
areas.
EPA's
reasoning
for
this
is
to
account
for
"
significant
changes"
in
mercury
emissions
from
other
sources
between
1990
and
1999
and
changes
in
lake
acidity
due
to
the
Acid
Rain
Program
which
could
have
led
to
changes
in
fish
mercury
concentrations.
Id.
at
20.
This
reasoning
is
at
odds
with
EPA's
statements
that
the
most
likely
response
time
for
changes
in
fish
mercury
concentrations
due
to
reduced
deposition
is
between
5
and
30
years.
Id.
at
19.
Furthermore,
the
elimination
of
fish
tissue
data
prior
to
1999
ignores
the
legacy
of
mercury
contamination
by
coal­
fired
power
plants,
some
of
which
have
been
operating
and
spewing
mercury
and
other
hazardous
air
pollutants,
for
more
than
60
years.
The
mercury
emitted
by
coal­
fired
power
plants
sources
prior
to
1999
clearly
contributed
to
contamination
of
fish
during
that
time.

Lastly,
EPA's
attempt
at
a
sensitivity
analysis
where
all
pre­
1999
samples
are
included
in
the
deposition
analysis
does
not
reveal
how
the
most
impacted
areas
would
react
to
decreases
in
mercury
emissions.
EPA
recognizes
as
much
by
concluding
"
In
areas
with
residual
utility
attributable
deposition,
including
portions
of
the
Ohio
Valley,

the
Southern
Great
Lakes,
including
the
area
around
Chicago,
and
portions
of
Missouri
50
and
Southern
Illinois,
including
watersheds
surrounding
the
Missouri
and
Mississippi
Rivers,
there
are
many
gaps
in
the
fish
sampling
data.
As
such,
there
is
uncertainty
as
to
the
methylmercury
fish
tissue
concentrations
due
solely
to
power
plants
in
these
areas."

Id.
at
63.

d.
EPA
inappropriately
limited
the
scope
of
its
fish
concentration
analysis.

In
assessing
whether
controlling
power
plants'
emissions
is
appropriate,
EPA
has
only
relied
upon
its
analysis
of
a
single
category
of
fish
 
recreationally­
caught
freshwater
fish
 
to
determine
whether
the
public
is
exposed
to
an
unsafe
amount
of
"
utility­
attributable"
methylmercury.
In
particular,

the
analysis
supporting
today's
action
focuses
on
assessing
exposure
from
freshwater
fish
caught
and
consumed
by
recreational
and
subsistence
anglers
because
available
information
indicate
that
U.
S.
utility
Hg
emissions
may
affect
the
methylmercury
concentrations
in
these
fish.
EPA
also
considered
the
following
fish
consumption
pathways:
Consumption
from
commercial
sources
(
including
saltwater
and
freshwater
fish
from
domestic
and
foreign
producers);
consumption
of
recreationally
caught
marine
fish,
consumption
of
recreationally
caught
estuarine
fish;
and
consumption
of
commercial
fish
raised
at
fish
farms
(
aquaculture).
For
a
number
of
reasons,
as
explained
in
the
TSD,
current
information
does
not
suggest
that
these
latter
pathways
present
meaningful
risks
of
ingestion
of
utility­
attributable
methylmercury.

70
Fed.
Reg.
at
16,012.
A
simple
illustration
reveals
EPA's
narrow
focus;
the
graphic
below
shows
the
various
sources
of
consumer
fish
products,
and
EPA's
analysis
only
considers
the
box
in
the
lower
left.
See
RIA
at
p.
4­
2.44
44
Although
EPA
indicates
several
times
that
it
incorporated
subsistence
anglers
into
its
analysis,
the
fact
is
that
the
agency
ultimately
treats
the
issue
of
subsistence
fishing
as
immaterial
to
its
conclusion
that
section
112
regulation
is
inappropriate
by
reversing
its
finding
of
appropriateness
despite
recognized
risks
to
certain
high­
consuming
populations.
See,
e.
g.,
70
Fed.
Reg.
at
16,023
("
At
the
methylmercury
fish
tissue
concentrations
attributable
to
utilities
remaining
after
implementation
of
CAIR
and
CAMR,
it
is
possible
that
consumers
eating
at
the
subsistence­
level
fish
consumption
rates
of
60
g/
day
(
mean)
and
170
g/
day
(
95th
percentile),
see
Exposure
Factors
Handbook,
could
exceed
the
RfD
(
an
IDI
value
greater
than
1)
as
a
result
of
utility­
attributable
emissions
if
they
are
in
fact
consuming
fish
from
the
most
contaminated
locations.");
id.
at
16,024
(
discussing
high
rates
of
consumption
by
subsistence
fishers
and
acknowledging
that
an
angler
at
99th
percentile
consumption
rate
would
likely
exceed
the
reference
dose
(
exposure
level
that
EPA
presently
judges
to
be
safe)
if
s/
he
fished
in
a
waterbody
that
had
contamination
levels
at
or
above
51
For
a
number
of
reasons,
this
tunnel
vision
is
unjustified
and
renders
EPA's
analysis
arbitrary
and
capricious.
Our
objections
to
this
approach
are
summarized
below.

Ignoring
all
but
recreationally­
caught
fish
dramatically
shrinks
the
number
of
people
potentially
at
risk
from
utility
pollution.
According
to
EPA's
data,
there
is
a
freshwater
angler
population
of
28
million
people,
RIA
at
p.
4­
1,
and
"[
b]
ased
on
application
of
a
`
consuming'
factor
and
a
`
sharing'
factor
to
the
estimate
of
recreational
fishers,
.
.
.
[
EPA]
estimate[
s]
that
approximately
58.6
million
individuals
in
the
U.
S.

population
consume
recreationally­
caught
freshwater
fish."
70
Fed.
Reg.
at
16,012.

When
this
figure
is
compared
to
the
general
population
of
fish
consumers
in
U.
S.
 
a
total
of
184
million
people,
RIA
at
p.
4­
1
 
one
can
easily
see
how
limited
the
agency's
analysis
is.
Moreover,
it
is
unclear
from
EPA's
analysis
whether
the
figure
it
uses
includes
native
American
or
other
subsistence
anglers,
or
whether
this
figure
only
refers
to
sport
anglers.

the
72nd
percentile);
id.
(
ignoring
data
submitted
by
tribes
concerning
the
amount
of
fish
their
members
consume).
52
By
ignoring
saltwater
fish,
EPA
also
willfully
excludes
a
significant
source
of
mercury
exposure,
and
the
evidence
indicates
that
utility­
attributable
mercury
concentrations
in
marine
fish
could
be
a
serious
concern.
EPA
has
only
offered
the
sparest
explanation
for
this
major
decision,
saying
that
"[
t]
hese
species
were
excluded
due
to
concerns
about
the
methods
to
attribute
methylmercury
in
these
species
to
utility
mercury
emissions,"
Deposition/
Fish
TSD
at
21,
and
that
"
the
evidence
does
not
support
the
application
of
[
an
assumed]
linear
relationship
[
between
deposition
decreases
and
fish
tissue
concentration
decreases
in]
marine
environments."
Letter
from
Administrator
Johnson
to
Senator
Leahy,
at
2
(
Apr.
5,
2005).
While
EPA
may
have
identified
some
sources
of
uncertainty,
its
justifications
ring
hollow
in
light
of
the
uncertainty
it
is
willing
to
accept
elsewhere
in
its
modeling
analyses
and
the
enormity
of
the
omission
that
this
approach
represents.

More
to
the
point,
EPA's
claims
do
not
withstand
scrutiny
in
light
of
the
realworld
analyses
which
have
done
precisely
what
EPA
refuses
to
do
 
account
for
exposures
caused
by
eating
mercury­
contaminated
marine
fish.
Working
independently,

two
respected
teams
of
researchers
(
one
from
the
Mt.
Sinai
Center
for
Children's
Health
and
the
Environment
("
Mount
Sinai"),
and
one
from
the
Harvard
Center
for
Risk
Analysis
at
the
Harvard
School
of
Public
Health,
working
on
behalf
of
the
Northeast
States
for
Coordinated
Air
Use
Management
("
Harvard/
NESCAUM"))
each
recently
concluded
that
mercury
pollution
from
coal­
fired
power
plants
exacts
significant
productivity
costs
associated
with
IQ
impairment
and
loss
of
intelligence
in
children.
In
particular,
the
Mt.
Sinai
study
puts
a
dollar
value
on
the
economic
costs
of
impaired
brain
development
from
mercury
poisoning,
and
calculated
that
the
United
States
loses
$
8.7
53
billion
annually
in
productivity,
of
which
$
1.3
billion
is
directly
attributable
to
mercury
emissions
from
U.
S.
power
plants.
Leonardo
Trasande
et.
al,
Public
Health
and
Economic
Consequences
of
Methyl
Mercury
Toxicity
to
the
Developing
Brain,
113
Environ.
Health
Perspectives
590
(
May
2005).
The
Harvard/
NESCAUM
team
also
found
that
controlling
power
plant
mercury
pollution
would
save
up
to
$
4.9
billion
in
avoided
cardiovascular
effects.
Glenn
Rice
&
James
K.
Hammitt,
Harvard
Center
for
Risk
Analysis,
Economic
Valuation
of
Human
Health
Benefits
of
Controlling
Mercury
Emissions
from
U.
S.
Coal­
Fired
Power
Plants,
docket
item
5749,
at
xviii
(
Feb.
2005).

Likewise,
EPA's
Office
of
Water
"
estimated
in
an
internal
report
as
much
as
$
2
billion
in
yearly
benefits
[
could
result]
from
cutting
mercury
pollution
just
in
the
Southeast
 
40
times
the
value
the
agency
projected
publicly
for
the
entire
nation."
John
Heilprin,

Internal
EPA
study
finds
higher
benefits
from
curbing
mercury
pollution,
Associated
Press
(
Apr.
28,
2005);
Douglas
Rae
and
Laura
Graham,
U.
S.
EPA,
Benefits
of
Reducing
Mercury
in
Saltwater
Ecosystems:
A
Case
Study
(
Jan.
2004).
Each
of
these
studies
looked
at
the
contribution
to
risk
made
by
marine
fish
consumption.

EPA's
modeling
effort
is
especially
flawed
with
respect
to
coastal
fisheries.

EPA's
decision
to
ignore
impacts
to
coastal
fisheries
and
the
health
of
individuals
living
in
coast
areas
fails
to
consider
that
71
percent
of
all
coastal
waters
of
the
contiguous
48
states
have
mercury
fish
consumption
advisories.
When
considering
the
Atlantic
coast
alone,
the
percentage
of
waters
under
a
fish
health
advisory
is
92
percent.
According
to
EPA
statistics,
twelve
states
(
Alabama,
Florida,
Georgia,
Hawaii,
Maine,
Massachusetts,

Mississippi,
North
Carolina,
Rhode
Island,
South
Carolina
and
Texas)
have
statewide
advisories
for
mercury
in
their
coastal
waters.
There
is
also
a
tribal
statewide
advisory
54
issued
by
the
Micmac
tribe
of
Maine
in
effect
for
mercury
in
marine
fish
(
including
lobster).
45
These
advisories
cover
thousands
of
miles
of
coastal
waters
fished
by
both
commercial
and
recreational
anglers,
millions
of
dollars
spent
on
both
industries,
and
millions
of
United
States
citizens
exposed
to
high
levels
of
mercury
in
the
food
they
eat.
46
This
is
crucially
important;
approximately
36
percent
of
U.
S.
commercial
fish
landings
occur
within
3
miles
of
shore,
and
97
percent
occur
within
200
miles.
See
RIA
at
p.
4­
9.

Further,
many
of
the
commercial
and
recreational
saltwater
fish
rejected
by
EPA
in
its
analysis
are
coastal
or
estuarine
fish
which
spend
a
large
portion
of
their
lives
either
in
domestic
freshwater
rivers
or
within
several
miles
of
the
coast
(
e.
g.,
menhaden,
shad,

striped
bass,
and
sea
trout),
and
have
been
shown
to
have
significant
levels
of
mercury.

See
J.
Hardy,
Development
of
Fishes
of
the
Mid­
Atlantic
Bight,
an
Atlas
of
Egg,
Larval
and
Juvenile
Stages,
Fish
&
Wildlife
Service,
U.
S.
Dept.
of
Interior,
Vols
I.
&
III.

Moreover,
research
has
shown
that
domestic
pollution,
including
from
coal
fired
power
plants,
has
a
greater
impact
on
coastal
fisheries
than
foreign
sources
of
mercury.

Dr.
Mark
Cohen,
an
air
modeler
with
the
National
Oceanic
and
Atmospheric
Administration,
has
undertaken
air
modeling
research
to
determine
what
sources
contribute
the
most
mercury
to
the
Great
Lakes
and
the
Chesapeake
Bay.
In
his
Great
Lakes
study,
Dr.
Cohen
concluded
that
while
regional
and
long
range
sources
(
100
 
1500
km)
contributed
approximately
50%
of
the
mercury
deposition
to
the
Great
Lakes,

coal
fired
power
plants
within
the
United
States
are
the
primary
source
of
mercury.
M.

45
U.
S.
EPA.
National
Listing
of
Fish
Advisories.
Fact
Sheet.
EPA­
823­
F­
04­
016.
August
2004.
46
See
RIA
at
4­
42
("
while
the
benefits
analysis
has
captured
a
key
fish
consuming
population
in
modeling
recreational
freshwater
anglers,
a
potentially
large
group
of
individuals
(
general
consumers
and
recreational
saltwater
anglers)
are
not
included
in
the
primary
benefits
analysis")
55
Cohen,
et
al.,
Modeling
the
Atmospheric
Deposition
and
Transport
of
Mercury
to
the
Great
Lakes,
Environmental
Research
95,
2004
(
247­
265).

In
his
Chesapeake
Bay
study,
Dr.
Cohen
concluded
that
local
(
0
 
100
km)
coal
fired
power
plants
contribute
the
most
mercury
to
the
Chesapeake
Bay.
Mark
Cohen,

NOAA,
Modeling
the
Fate
and
Transport
of
Atmospheric
Mercury
in
the
Chesapeake
Bay
Region
(
May
17,
2004),
available
online
at
http://
www.
arl.
noaa.
gov/
data/
web/
reports/
cohen/
20_
Ches_
Bay_
talk.
pdf
(
visited
May
28,

2005);
Mark
Cohen,
NOAA,
Modeling
the
Deposition
and
Transport
of
Atmospheric
Mercury
to
the
Great
Lakes
(
and
the
Chesapeake
Bay)
(
Jun
27­
Jul.
2,
2004),
available
online
at
http://
www.
arl.
noaa.
gov/
data/
web/
reports/
cohen/
21_
ICMGP.
pdf
(
visited
May
28,
2005).
Similar
research
conducted
in
Florida
indicates
that
when
local
sources
of
mercury
were
controlled,
fish
taken
from
local
waters
exhibited
reduced
fish
tissue
mercury
levels.
Florida
Department
of
Environmental
Protection,
"
Integrating
Atmospheric
Mercury
Deposition
with
Aquatic
Cycling
in
South
Florida:
An
approach
for
conducting
a
Total
Maximum
Daily
Load
analysis
for
an
atmospherically
derived
pollutant"
(
Nov.
2003).
Thus,
there
is
valid
scientific
evidence
establishing
that
controlling
local
sources
will
reduce
mercury
loads
to
local
waters
despite
foreign
emissions.

Recent
sampling
events
indicate
that
several
species
of
fish
which
inhabit
the
Chesapeake
Bay
and
tributaries
to
the
Bay
are
contaminated
with
mercury.
See
R.

Mason,
"
Methylmercury
Concentrations
in
Fish
From
Tidal
Waters
of
the
Chesapeake
Bay",
Maryland
Department
of
Natural
Resources
(
Nov.
2004).
These
and
other
data
were
used
by
state
health
officials
to
support
issuance
of
health
advisories
warning
56
against
the
consumption
of
certain
species
of
fish
due
to
mercury
contamination.
For
example,
Maryland
has
issued
a
Bay­
wide
advisory
for
striped
bass
(
rockfish).
Children
and
women
of
child
bearing
age
are
warned
to
eat
no
more
than
six
ounces
of
striped
bass
a
month.
This
species
of
fish
is
highly
valued
both
by
commercial
and
recreational
fisherman.
A
study
conducted
for
the
state
of
Maryland
by
Resources
for
the
Future
in
2002
identified
the
costs
to
commercial
and
recreational
fishing
in
the
state,
including
the
Chesapeake
Bay,
associated
with
mercury­
related
fish
advisories.
P.
Jakus,
M.

McGuinness,
A.
Krupnick,
"
The
Benefits
and
Costs
of
Fish
Consumption
Advisories
for
Mercury",
October
2002.
Recreational
fishing
losses
in
just
the
Maryland
portion
of
the
Bay
were
estimated
at
almost
$
9
million
annually.
Id.
at
55.
Losses
associated
with
a
commercial
heath
advisory
(
recommending
restricted
consumption
to
children
and
women
of
childbearing
age)
were
estimated
at
$
520,300
annually.
Id.
at
69.

Similarly,
recent
fish
tissue
sampling
in
Virginia
waters
indicates
high
levels
of
mercury
in
striped
bass
and
other
species
that
are
known
to
travel
far
up
freshwater
rivers
and
throughout
the
Chesapeake
Bay.
Some
of
the
sampled
fish
contain
levels
of
mercury
in
excess
of
EPA
health
standards.
See
Virginia
Dept.
of
Envtl.
Quality,
Fish
Tissue
Results
Summary,
available
online
at
http://
www.
deq.
virginia.
gov/
fishtissue/
fishtissue.
html
(
visited
May
30,
2005).

e.
EPA's
final
conclusion
that
it
is
not
"
appropriate"
to
regulate
EGU
mercury
pollution
arbitrarily
assumes
that
time
does
not
matter.

Even
if
one
accepts
that
it
could
be
permissible
to
rely
on
the
future
implementation
of
CAIR
and
the
mercury
trading
scheme
to
find
that
it
is
not
"
appropriate"
to
regulate
power
plant
mercury
under
section
112,
EPA's
approach
is
fundamentally
flawed.
The
agency's
examination
of
how
effective
CAIR
and
the
trading
57
program
might
be
at
reducing
"
utility
attributable"
mercury
contamination
ignores
that
section
112
MACT
rules
would
deliver
those
reductions
and
more
on
a
timetable
that
is
vastly
accelerated.

A
MACT
standard,
by
statute,
must
take
effect
immediately
for
new
sources
and
"
as
expeditiously
as
practicable"
for
existing
sources.
42
U.
S.
C.
§
§
7412(
i)(
1)
&
(
3).

Under
the
Act,
existing
sources
generally
must
be
controlled
within
three
years
of
a
final
MACT
standard.
Id.
§
7412(
i)(
3).
By
contrast,
EPA's
CAIR
and
mercury
trading
programs
will
not
be
fully
implemented
until
the
2020
time
frame
and
beyond.
It
is
no
surprise,
then,
that
when
EPA
does
its
analysis
of
whether
these
programs
are
adequate
substitutes
for
MACT
regulation,
it
tries
to
predict
what
the
mercury
problem
will
look
like
15
years
from
now,
not
sooner.
See,
e.
g.,
70
Fed.
Reg.
at
16,019
("
By
2020,
after
implementation
of
CAIR,
significant
reductions
in
deposition
attributable
to
utilities
occurs.").

This
absurd,
time­
traveling
approach
to
assessing
different
programs'

effectiveness
is
arbitrary
and
capricious
and
will
have
significant
adverse
real­
world
consequences
to
the
public
health.
Under
EPA's
final
rule,
even
if
one
assumes
that
implementing
CAIR
fully
will
eventually
reduce
"
utility
attributable"
mercury
pollution
to
a
level
that
is
acceptable
for
public
health
purposes
(
and,
of
course,
if
one
accepts
that
this
ought
to
be
the
analysis
under
the
CAA,
which
it
should
not
be),
implementing
MACT
will
deliver
those
results
(
and
more)
over
a
decade
earlier.
As
a
consequence,

enormous
quantities
of
mercury
will
be
released
in
the
interim
that
could
be
avoided;
if
EPA
insisted
on
a
MACT
standard
that
reduced
nationwide
emissions
of
mercury
to
5
tons
annually
from
2008
to
2020,
it
would
avoid
380
tons
of
a
pollution
when
compared
58
to
a
program
that
allowed
48
tons
of
nationwide
mercury
emissions
per
year
from
2008
to
2009,
38
tons
annually
from
2010
to
2017,
and
15
tons
annually
from
2018
to
2020.47
As
far
as
we
can
tell,
EPA's
modeling
and
risk
assessment
work
takes
no
account
of
the
additional
mercury
loadings
that
the
agency's
rules
will
permit
over
time.

f.
It
is
improper
for
EPA
to
use
the
water
quality
criterion
as
the
lone
gauge
of
whether
EGU
pollution
creates
public
health
concerns.

EPA's
analysis
compares
predicted
fish
tissue
methylmercury
concentrations
after
different
control
regimes
are
implemented
to
the
agency's
water
quality
criteria
for
methylmercury
 
0.3
parts
per
million
methylmercury
in
fish
tissue.
70
Fed.
Reg.
at
16,014.
However,
this
guideline
does
not
provide
adequate
assurance
that
public
health
will
be
protected
so
long
as
fish
concentrations
remain
below
0.3
ppm.
First,
the
guideline
does
not
protect
a
significant
subset
of
the
population;
it
is
based
upon
assuming
a
consumption
rate
of
roughly
two
8­
ounce
fish
meals
per
month,
which
is
the
90th
percentile
of
adult
consumption.
Id.
By
definition,
then,
it
ignores
the
higher
consumption
rates
of
10
percent
of
the
populace.
Second,
this
consumption
rate
is
only
designed
to
be
protective
"
if
an
individual
is
consuming
typical
amounts
of
fish
from
other
sources
(
i.
e.,
marine
fish),"
id.
(
emphasis
added),
but
not
if
the
person's
diet
has
a
greater
proportion
of
non­
freshwater
fish.
Finally,
in
light
of
somewhat
confusing
government­
recommended
fish
consumption
rates,
it
is
possible
that
over
time
Americans'
eating
patterns
will
change
for
marine
fish.
See
U.
S.
Dept.
of
Agriculture,

Dietary
Guidelines,
Chapter
6
("
Evidence
suggests
that
consuming
approximately
two
servings
of
fish
per
week
(
approximately
8
ounces
total)
may
reduce
the
risk
of
mortality
47
These
figures
represent
a
gross
approximation
of
pollution
allowed
by
EPA's
trading
scheme,
as
present
levels
of
mercury
emissions
are
approximately
48
tons
per
year,
and
EPA's
rule
establishes
caps
of
38
tons/
year
in
2010
and
15
tons/
year
in
2018.
59
from
coronary
heart
disease
and
that
consuming
[
certain
fatty
acids
in
fish]
may
reduce
the
risk
of
mortality
from
cardiovascular
disease
in
people
who
have
already
experienced
a
cardiac
event."),
available
online
at
http://
www.
health.
gov/
dietaryguidelines/
dga2005/
document/
html/
chapter6.
htm
(
visited
May
30,
2005);
U.
S.
Dept.
of
Health
&
Human
Services
&
U.
S.
EPA,
What
You
Need
to
Know
About
Mercury
in
Fish
and
Shellfish
(
Mar.
2004),
available
online
at
http://
www.
cfsan.
fda.
gov/~
dms/
admehg3.
html
(
visited
May
30,
2005)
(
permitting
up
to
12
ounces
of
fish
"
lower
in
mercury"
per
week,
or
up
to
6
ounces
per
week
of
higher
mercury
fish
 
albacore
tuna).
Likewise,
consumers
following
national
guidelines
could
eat
well
in
excess
of
16
ounces
per
month
of
freshwater
fish.
See
id.
(
in
absence
of
local
advisory,
suggesting
that
consumers
"
eat
up
to
6
ounces
.
.
.
per
week
of
fish
you
catch
from
local
waters").

g.
EPA
arbitrarily
and
capriciously
ignores
numerous
facts
that
the
agency
admits
are
relevant
to
determining
whether
regulation
under
section
112
is
"
appropriate."

When
EPA
describes
the
kinds
of
considerations
that
the
agency
must
weigh
in
determining
whether
regulating
EGUs
under
section
112
is
appropriate,
EPA
is
fairly
expansive:
"
In
evaluating
hazards
to
public
health
under
section
112(
n)(
1)(
A)
we
look
at
various
factors,
including,
for
example,
the
affected
population,
the
characteristics
of
exposure
(
e.
g.,
level
and
duration),
the
nature
of
the
data,
including
the
uncertainties
associated
with
the
data,
and
the
nature
and
degree
of
health
effects."
70
Fed.
Reg.
at
15,998.
In
the
end,
however,
EPA
largely
ignores
these
factors
in
favor
of
focusing
on
one
issue
 
the
level
of
exposure
(
i.
e.,
the
amount
of
"
utility
attributable"
methylmercury
60
in
various
watersheds)
 
and
thus
acts
arbitrarily
and
capriciously
by
ignoring
essential
information.

First,
EPA
has
not
given
any
indication
that
it
took
into
account
the
duration
of
the
harm
that
methylmercury
exposure
can
cause.
A
child
exposed
as
a
fetus
to
unsafe
levels
of
methylmercury
is
at
risk
of
a
lifetime
of
lowered
IQ
and
other
neurological
harms.

Second,
the
agency's
analysis
does
not
seem
to
have
been
informed
by
the
size
of
the
affected
population,
even
though
EPA
itself
acknowledges
that
hundreds
of
thousands
of
children
are
born
each
year
at
risk
of
harm
from
methylmercury
exposure.
Moreover,

recent
research
suggests
that
because
methylmercury
levels
in
fetal
cord
blood
is
higher
than
that
of
the
mother,
"
a
[
blood
total
mercury
level
of]
3.5
µ
g/
L
may
be
associated
with
increased
risk
to
the
developing
fetal
nervous
system."
Approximately
15.7
percent
of
women
of
childbearing
age
have
blood
levels
equal
to
or
above
3.5
µ
g/
L.
48
Third,
EPA's
"
appropriateness"
finding
does
not
account
for
uncertainties
in
the
data.
To
the
contrary,
although
this
petition
demonstrates
the
degree
to
which
this
rulemaking
is
fraught
with
assumptions
and
uncertain
data,
the
agency
is
using
its
predicted
levels
of
"
utility
attributable"
methylmercury
concentrations
in
fish
tissue
as
a
regulatory
trigger.

Fourth,
EPA
has
soft­
pedaled
the
nature
of
the
health
effects
at
issue
in
this
case,

particularly
with
respect
to
populations
that
the
Agency
has
previously
asserted
are
of
most
concern
 
including
native
American
tribes.
Compare
69
Fed.
Reg.
4654,
4702,

4707,
4709
(
Jan.
30,
2004)
(
identifying
native
Americans
as
at
greater
risk
for
the
48
Mahaffey,
K.
R.,
Clickner,
R.
P.,
Bodurow,
C.
C.,
2004.
Blood
Organic
Mercury
and
Dietary
Mercury
Intake:
National
Health
and
Nutrition
Examination
Survey,
1999
and
2000.
Environ.
Health
Persp.
112(
5);
562­
570.
61
adverse
health
effects
from
mercury
due
to
increased
exposure)
with
70
Fed.
Reg.
at
16,024
&
16,034
(
dismissing
native
American
fish
consumption
data
as
"
of
limited
value"
and
failing
altogether
to
consider
comments
addressing
certain
tribes'
patterns
of
consumption
of
contaminated
mammalian
species).
Several
tribes
of
native
Americans
alerted
the
Agency
to
the
fact
that
not
only
has
their
traditional
subsistence
fish
consumption
been
adversely
affected
by
mercury
contamination,
but
that
they
are
impacted
as
well
by
significant
mercury
contamination
in
"
other
food
sources,
such
as
muskrat,
beaver,
small­
game
waterfowl,"
mink
and
river
otter.
Comments
of
the
Penobscot
Indian
Nation,
Docket
No.
A­
2002­
0056,
at
1­
2
(
May
5,
2004);
Comments
of
the
Aroostook
Band
of
Micmacs,
Docket
No.
A­
2002­
0056­
2483,
at
1­
2
(
April
30,

2004).
49
Their
submissions
demonstrate
that
impacts
on
species
other
than
fish
present
public
health
risks
to
populations
of
greatest
concern,
not
simply
environmental
effects,

and
yet
EPA
completely
ignored
these
potential
adverse
health
effects
in
its
final
rule.

This
complete
turnaround
in
the
Agency's
perspective
on
the
concerns
with
respect
to
native
American
subpopulations
(
not
to
mention
the
legal
rights
of
the
native
American
tribes)
is
not
only
unanticipated,
it
is
illegal.
50
Fifth,
although
the
agency
recognizes
the
potential
for
neurological
damage,
EPA
gives
short
shrift
to
a
significant
body
of
evidence
that
methylmercury
causes
cardiovascular
disease.
Although
some
fish
species
contain
beneficial
omega­
3
fatty
49
Despite
the
fact
that
the
Penobscot
Nation
submitted
their
comments
by
mail
well
within
the
deadline
for
receipt
of
such
comments,
they
do
not
appear
in
EPA's
docket
index
for
the
final
rule
as
of
May
31,
2005.
A
copy
is
attached.
50
The
Penobscot,
and
the
Micmacs,
for
example,
are
federally­
recognized
native
American
Indian
tribes
for
whom
the
United
States
government
and
its
agencies
have
a
trust
responsibility.
Comments
of
the
Penobscot
Indian
Nation
at
1;
Comments
of
the
Aroostook
Band
of
Micmacs
at
2;
see
also
Exec.
Order
13175:
Consultation
and
Coordination
with
Indian
Tribal
Governments,
65
Fed.
Reg.
67,249
(
Nov.
6,
2000)
(
requiring
EPA
to
develop
an
accountable
process
to
ensure
tribal
input
in
the
development
of
regulations
that
have
Tribal
implications).
62
acids,
and
fish
is
a
low­
fat
source
of
protein,
recent
studies
raise
the
possibility
that
moderate
mercury
content
in
fish
may
in
fact
diminish
the
protective
effect
of
fish
intake.

A
2000
study
of
1,014
Finnish
men
ranging
in
ages
from
42
to
60
years
old
reported
an
association
between
moderate
hair
mercury
content
and
accelerated
hardening
of
the
carotid
arteries
leading
to
the
brain.
51
Hair
mercury
levels
greater
than
2
ppm
(
well
within
the
range
of
the
U.
S.
adult
population)
showed
a
doubling
of
the
risk
of
cardiovascular
mortality.
52
This
study
was
recently
updated
and
reported
that
mercury
in
hair
above
2
ppm
may
be
a
risk
factor
for
acute
coronary
events
and
cardiovascular
disease,
coronary
heart
disease,
and
overall
mortality.
53
Similarly,
a
study
published
in
the
New
England
Journal
of
Medicine
reported
that
toenail
mercury
level
was
directly
associated
with
the
risk
of
heart
attack.
54
Researchers
studied
men
in
eight
European
countries
and
Israel
who
had
their
first
diagnosed
heart
attack.
The
authors
report
that
the
mercury
levels
in
the
patients
were
15
percent
higher
than
those
in
controls,
such
that
the
20
percent
of
people
with
the
highest
mercury
levels
had
a
more
than
twofold
increase
in
the
risk
of
heart
attack
than
those
with
mercury
levels
in
the
lowest
20
percent.
Although
a
third
study
on
cardiovascular
health
was
unable
to
replicate
these
findings,
the
study
population
consisted
largely
of
dentists
who
had
occupational
exposure
to
elemental
mercury,
and
the
elemental
mercury
exposure
could
have
confounded
detection
of
a
51
Salonen,
J.
T.,
Seppanen,
K.,
Lakka,
T.
A.,
Salonen,
R.,
Kaplan,
G.
A.
2000.
Mercury
accumulation
and
accelerated
progression
of
carotid
atherosclerosis:
a
population­
based
prospective
4­
year
follow­
up
study
in
men
in
eastern
Finland.
Atherosclerosis,
148(
2);
265­
273
52
Id.
53
Virtanen
JK,
Voutilainen
S,
Rissanen
TH,
Mursu
J,
Tuomainen
TP,
Korhonen
MJ,
Valkonen
VP,
Seppanen
K,
Laukkanen
JA,
Salonen
JT.
Mercury,
Fish
Oils,
and
Risk
of
Acute
Coronary
Events
and
Cardiovascular
Disease,
Coronary
Heart
Disease,
and
All­
Cause
Mortality
in
Men
in
Eastern
Finland.
Arterioscler
Thromb
Vasc
Biol.
2004
Nov
11;
[
Epub
ahead
of
print]
54
Guallar,
E.,
Sanz­
Gallardo,
M.
I.,
van't
Veer,
P.,
Bode,
P.,
Aro,
A.,
Gomez­
Aracena,
J.,
Kark,
J.
D.,
Riemersma,
R.
A.,
Martin­
Moreno,
J.
M.,
Kok,
F.
J.
2002.
Mercury,
fish
oils,
and
the
risk
of
myocardial
infarction.
N
Engl
J
Med,
347(
22);
1747­
1754
63
methylmercury
effect.
In
fact,
when
the
dentists
were
removed
from
the
study,
an
association
with
cardiovascular
outcomes
(
albeit
not
statistically
significant,
possibly
due
to
the
smaller
sample
size)
was
seen
with
mercury
exposure.
55
Although
the
agency
acknowledges
studies
linking
mercury
exposure
to
cardiovascular
harms,
and
recognizes
"
plausible
biological
mechanisms"
by
which
exposure
could
do
damage,
70
Fed.
Reg.
at
16,011,
its
"
appropriate"
finding
does
not
consider
this
evidence,
instead
concluding
that
the
issue
"
warrant[
s]
additional
research
in
this
area."
Id.
Nor
does
EPA
give
any
apparent
weight
to
the
calculations
that
significant
monetary
benefits
could
be
realized
from
controlling
mercury
pollution
and
avoiding
cardiovascular
harms.
See,
e.
g.,
Letter
from
Arthur
Marin,
Northeast
States
for
Coordinated
Air
Use
Management,
to
EPA
Air
Docket
OAR­
2002­
0056,
docket
item
5747,
at
4
(
Feb.
22,
2005)
(
summarizing
findings
of
study
titled
"
Economic
Valuation
of
Human
Health
Benefits
of
Controlling
Mercury
Emissions
from
U.
S.
Coal­
Fired
Power
Plants";
noting
that
the
benefits
of
a
70
percent
mercury
control
scenario
from
avoiding
cardiovascular
events
and
premature
mortality
could
range
from
$
86
million
per
year
to
$
4.9
billion,
depending
on
the
number
of
people
affected).

5.
EPA
May
Regulate
EGUs
Under
Section
112
of
the
Clean
Air
Act
Based
Upon
Environmental
Impacts
Alone.

In
the
final
rule,
EPA
asserts
that
environmental
impacts
from
EGUs,
no
matter
how
severe,
could
not
provide
the
legal
basis
for
requiring
regulation
under
section
112,

unless
coupled
with
a
finding
about
EGUs'
impact
on
public
health.
In
particular,
the
agency
now
argues
that
it
could
not
find
that
regulation
is
"
appropriate
and
necessary"

55
Yoshizawa,
K.,
Rimm,
E.
B.,
Morris,
J.
S.,
Spate,
V.
L.,
Hsieh,
C.
C.,
Spiegelman,
D.,
Stampfer,
M.
J.,
Willett,
W.
C.
2002.
Mercury
and
the
risk
of
coronary
heart
disease
in
men.
N
Engl
J
Med,
347(
22);
1755­
1760
64
under
section
112(
n)(
1)(
A)
if
EGUs
cause
important
environmental
effects
but
EPA
concludes
that
EGUs
do
not,
by
themselves,
cause
public
health
concerns
under
the
extremely
limited
approach
outlined
by
the
agency.
Specifically,
EPA
states:

EPA
must
reconcile
the
broad
discretion
to
determine
what
is
"
appropriate
and
necessary"
with
the
implicit
Congressional
decision
that
information
about
environmental
effects
unrelated
to
human
health
effects
was
not
needed
for
that
determination.
Rather
than
conclude
that
EPA
is
prohibited
from
considering
environmental
effects,
however,
EPA
interprets
section
112(
n)(
1)(
A)
to
permit
the
agency
to
consider
other
relevant
factors
as
part
of
its
"
appropriate
and
necessary"
determination,
as
refined
further
below,
but
these
factors
may
not
independently,
or
in
conjunction
with
one
another,
justify
regulation
under
section
112(
n)
when
EPA
has
concluded
that
hazards
to
U.
S.
public
health
are
not
reasonably
anticipated
to
occur.

70
Fed.
Reg.
at
15,998.
This
argument
is
both
new
and
unsupported.

In
the
proposed
rule,
EPA
did
not
take
the
position
that
its
authority
to
consider
environmental
effects
was
limited
for
purposes
of
determining
whether
regulation
is
"
appropriate
and
necessary."
The
agency
only
mentioned
environmental
effects
in
claiming
that
"
the
Utility
[
Report
to
Congress],
consistent
with
CAA
section
112(
n)(
1)(
A),
focused
solely
on
hazards
to
public
health,
not
the
environment,"
and
that
therefore
the
agency
lacked
the
facts
to
have
made
the
2000
finding
based
on
such
effects.
69
Fed.
Reg.
at
4,683.

The
agency's
new
interpretation
is
unreasonable.
EPA
draws
its
view
from
the
fact
that
section
112(
n)(
1)(
A)
of
the
Act
specifies
that
the
agency
should
study
public
health
concerns,
without
mentioning
environmental
effects.
70
Fed.
Reg.
at
16,002­
03.

However,
EPA
argues
elsewhere
in
the
Final
Rule
preamble
that
the
requirement
to
perform
the
study
does
not
constrain
the
agency
from
considering
facts
beyond
those
contained
in
the
study
when
assessing
whether
regulation
is
appropriate
and
necessary.

See
id.
at
15,999.
Specifically,
EPA
notes:
65
nothing
in
section
112(
n)(
1)(
A)
suggests
that
EPA
is
precluded
from
considering
new
relevant
information
obtained
after
completion
of
the
Utility
Study
in
determining
whether
regulation
of
Utility
Units
under
section
112
is
appropriate
and
necessary.
Indeed,
the
term
"
considering"
in
section
112(
n)(
1)(
A)
is
analogous
to
the
terms
"
based
on"
or
"
including,"
which
are
neither
limiting
nor
exclusive
terms.

Id.
By
saying
that
the
study
requirement
is
an
"
implicit
Congressional
decision"
to
limit
the
use
of
environmental
concerns,
however,
EPA
is
interpreting
the
same
provision
 
the
requirement
to
perform
a
study
 
to
be
limiting.
That
is,
in
a
single
rule,
EPA
gives
the
same
language
two
entirely
different
meanings
to
promote
two
different
aspects
of
the
agency's
agenda
 
a
classic
example
of
arbitrary
and
capricious
decisionmaking.

EPA's
argument
in
the
Final
Rule
is
also
contrary
to
other
requirements
of
the
CAA.
Section
112
contains
several
indications
that
environmental
considerations
alone
are
an
appropriate
basis
for
regulation
under
that
section.
For
instance,
section
112(
f)(
2)(
A)
demands
that
controls
under
that
subsection
be
imposed
to
prevent
an
"
adverse
environmental
effect,"
where
various
factors
support
regulation.
42
U.
S.
C.
§
7412(
f)(
2)(
A).
In
addition,
section
112(
c)(
9)(
B)(
ii)
provides
that
a
source
category
may
not
be
deleted
from
the
list
of
industries
for
which
MACT
must
be
implemented
if
any
plant
in
the
category
emits
non­
carcinogenic
HAPs
that
cause
an
"
adverse
environmental
effect."
Id.
§
7412(
c)(
9)(
B)(
ii).
Indeed,
with
respect
to
EGU
pollution,
section
112(
n)(
1)(
B)
directs
EPA
to
study
"
mercury
emissions
from
electric
utility
steam
generating
units,
municipal
waste
combustion
units,
and
other
sources,
including
area
sources,"
and
to
"
consider
the
rate
and
mass
of
such
emissions,
the
health
and
environmental
effects
of
such
emissions,
technologies
which
are
available
to
control
such
emissions,
and
the
costs
of
such
technologies."
Id.
§
7412(
n)(
1)(
B)
(
emphasis
added).

By
contrast,
where
Congress
wanted
to
preclude
EPA
from
relying
exclusively
on
66
environmental
considerations
to
regulate
under
section
112,
it
said
so
explicitly.
See
id.
§
7412(
b)(
2)
("
No
substance,
practice,
process
or
activity
regulated
under
title
VI
of
this
Act
shall
be
subject
to
regulation
under
this
section
solely
due
to
its
adverse
effects
on
the
environment.").
The
absence
of
an
equivalent
provision
in
section
112(
n)(
1)(
A)
reveals
that
Congress
did
not
intend
to
prohibit
EPA
from
relying
on
environmental
effects
(
even
exclusively)
in
deciding
to
subject
EGUs
to
section
112
standards.

The
issue
of
EPA's
authority
to
consider
environmental
effects
alone
as
the
basis
for
regulating
EGUs
under
section
112
is
centrally
relevant
to
the
Final
Rule.
Recent
evidence
indicates
that
there
are
numerous
strictly
environmental
reasons
to
aggressively
curb
utility
HAP
emissions.
The
journal
Ecotoxicology
recently
devoted
a
special
issue
to
publishing
21
academic
papers
about
mercury
in
the
environment
and
in
wild
animals,
56
including
several
remarkable
findings:

 
"
At
least
44%
of
waters
across
[
northeastern
U.
S.
and
eastern
Canada]
had
sediments
[
with
mercury
concentrations]
in
excess
of
U.
S.
guidelines."
Biodiversity
Research
Institute,
Mercury
Connections:
The
extent
and
effects
of
mercury
pollution
in
northeastern
North
America,
at
12­
13
(
2005)
(
summarizing
Ecotoxicology
papers).
 
"
92%
of
adult
loons
in
Kejimkujik
National
Park
in
Nova
Scotia
had
blood
mercury
levels
>
4.0
ppm,
levels
associated
with
lowered
reproduction."
Id.
 
Forest
songbirds
 
which
do
not
eat
fish
 
"
are
accumulating
mercury,"
suggesting
that
"
airborne
mercury
is
pervasive
and
its
impacts
are
no
longer
limited
to
surface
waters
and
the
wildlife
that
use
them."
Id.
at
16.
 
Mink
and
otter
are
adversely
affected
by
mercury
contaminations,
to
the
extent
that
36
%
of
the
animals
sampled
had
mercury­
in­
fur
levels
that
exceed
the
threshold
for
adverse
health
effects.
This
research
also
demonstrates
that
mercury
reductions
will
produce
improvements
in
mink
and
otter
contamination.
Id.
at
18,
20.

56
These
papers
were
submitted
to
the
docket
for
this
rulemaking,
but
there
is
no
indication
that
EPA
considered
them
in
any
way
in
its
final
rule.
See
U.
S.
EPA,
Electronic
Docket
Index
No.
OAR­
2002­
0056,
docket
items
5826­
30,
5832,
5834­
36,
5839,
5841,
5846­
57
(
Mar.
15,
2005)
(
submissions
by
Ann
Weeks,
CATF,
and
Felice
Stadler,
National
Wildlife
Federation).
67
Simply
said,
there
are
real
environmental
consequences
from
mercury
pollution,
which
is
why
EPA's
new
and
unlawful
interpretation
of
the
CAA
must
be
rejected.

Moreover,
as
we
describe
above,
EPA's
attempt
to
segregate
this
research
from
consideration
on
the
basis
that
it
is
purely
welfare­
related
 
that
is,
that
the
effects
it
describes
are
purely
environmental
and
not
public­
health
related
 
fly
directly
in
the
face
of
information
EPA
has
received
from
various
native
American
tribes.
These
tribes
regularly
consume
mammalian
and
bird
species
that
are
identified
in
the
research
as
adversely
affected
by
mercury
pollution.
This
has
a
direct
effect
on
the
tribes,
which
EPA
has
completely
failed
to
consider,
both
in
terms
of
the
public
health
of
tribal
members
who
consume
these
species,
and
in
terms
of
the
cultural
vitality
of
the
tribes,

insofar
as
they
use
the
species
in
ceremonial
activities.
See
Comments
of
Aroostook
Band
of
Micmacs,
Docket
No.
A­
2002­
0056­
2483
at
1;
Comments
of
the
Penobscot
Indian
Nation,
Docket
No.
A­
2002­
0056
at
1­
2.

6.
EPA
Unlawfully
Refuses
to
Regulate
Nickel
Pollution
from
Oil­
Fired
Plants.

We
also
petition
for
administrative
reconsideration
of
EPA's
final
action
reversing
its
December
20,
2000
Regulatory
Determination
that
it
is
"
appropriate"
to
regulate
nickel
from
oil­
fired
units,
see
65
Fed.
Reg.
at
79,830,
a
determination
that
was
reinforced
in
EPA's
2004
notice
of
proposed
rulemaking,
See
69
Fed.
Reg.
at
4,688
("
the
record
supports
a
distinction
between
the
treatment
of
Ni
emissions
from
oil­
fired
Utility
Units
and
the
emissions
of
other
non­
Hg
metallic
HAP.
Such
a
distinction
is
warranted
based
on
the
relative
magnitude
of
Ni
that
is
emitted
from
oil­
fired
utility
units
on
an
annual
basis
and
the
scope
and
number
of
adverse
health
effects
associated
with
such
emissions.").
EPA
based
its
sharp
reversal
on:
"(
1)
The
significant
reductions
in
the
68
total
nationwide
inventory
of
oil­
fired
Utility
Units;
and
(
2)
the
changing
fuel
mixtures
being
used
at
the
remaining
units."
70
Fed.
Reg.
at
16,007.

EPA
radically
reversed
its
prior
policy
to
regulate
nickel
from
oil­
fired
utility
units
without
serving
notice
to
the
public
that
it
was
considering
an
all­
out
abandonment
of
the
"
appropriate"
finding.
57
Because
the
Agency
never
suggested
it
was
re­
evaluating
its
position
on
the
appropriateness
of
regulating
nickel,
it
was
impracticable
for
the
public
to
address
or
object
to
the
Agency's
new
position.
Moreover,
the
opportunity
to
provide
such
objection
is
manifestly
of
central
relevance
to
the
outcome
of
the
rule
because
it
is
directly
related
to
the
pivotal,
determinative
question
whether
EPA
had
a
reasoned
basis
to
reverse
its
publicly­
enunciated
position
and
exclude
nickel
from
regulation.

EPA
asserts
that
of
the
42
oil­
fired
utility
units
with
cancer
risk
greater
than
one
in
a
million,
12
have
ceased
operation
and
five
have
switched
to
burning
natural
gas
exclusively.
70
Fed.
Reg.
at
16,007­
08.
EPA
also
claims
that
the
risk
from
other
units
is
lessened
because
they
either
are
burning
more
natural
gas,
burning
more
distillate
oil
or
have
accepted
permit
limits
on
their
residual
oil
use.
But
a
closer
look
at
EPA's
rationale
indicates
that
only
two
of
the
units
have
limited
use
of
residual
oil
through
permit
restrictions.
Id.
For
those
two
units
EPA
makes
no
attempt
to
quantify
the
remaining
nickel
emissions
or
the
associated
cancer
risk.

57
Although
EPA
requested
comment
on
"
all
aspects
of
our
proposed
revised
determination
that
it
is
necessary
and
appropriate
to
regulate
Ni
emissions
from
oil­
fired
Utility
Units
under
section
112,"
69
Fed.
Reg.
at
4,659,
that
request
is
far
too
open­
ended
to
provide
adequate
notice.
Moreover,
because
the
key
"
revision"
that
EPA
had
proposed
was
to
change
its
"
necessary"
finding,
but
leave
in
place
its
"
appropriate"
finding,
commenters
reasonably
would
have
focused
on
the
"
necessary"
prong
of
the
analysis.
Similarly,
although
EPA
requested
information
about
"
the
current
operating
status
and
anticipated
mode
of
operation
in
the
future
of
potentially
affected
oil­
fired
Utility
Units,
including
current
control
technology,"
and
about
"
whether
data
exists
as
to
whether
emissions
from
these
plants
no
longer
pose
[
a
greater
than
one­
in­
a­
million
cancer]
risk,"
it
did
not
do
so
in
the
context
of
proposing
to
change
the
"
appropriate"
finding.
Instead,
the
agency
indicated
that
its
request
was
simply
to
have
the
best
available
data:
"
we
would
like
to
have
up­
to­
date
information
on
fuel
use,
emissions,
stack
parameters
and
other
location­
specific
data
that
would
be
relevant
to
the
assessment
of
emissions,
dispersion,
and
ambient
air
quality."
Id.
69
Moreover,
EPA
has
utterly
failed
to
quantify
the
cancer
risk
due
to
the
fuel
mix
now
used
at
the
other
units
to
which
it
points
or,
critically,
to
determine
whether
the
fuel
mix
changes
will
in
fact
be
permanent
and
enforceable.
This
includes
six
units
now
reporting
some
component
of
natural
gas
in
their
fuel
mix,
and
another
five
units
using
distillate
oil
rather
than
residual
oil.
EPA
superficially
suggests
that
relying
to
some
degree
on
natural
gas
or
distillate
oil
in
the
fuel
mix
will
lead
to
less
emissions
of
nickel
than
the
status
quo
ante.
But
EPA
makes
no
attempt
to
quantify
the
likely
reduction
in
nickel
emissions
and
associated
cancer
risk
or
to
determine
whether
the
change
in
fuel
mix
is
likely
to
be
lasting.
In
other
words,
EPA
relies
on
mere
conjecture
about
the
current
and
prospective
operating
conditions
of
oil­
fired
units
to
reverse
its
determination
that
those
units
should
be
regulated.
EPA
even
concedes
that
some
plants
have
taken
no
action
whatsoever
to
mitigate
nickel
emissions.
59
Fed.
Reg.
16,008.

Further,
in
the
industry
comments
that
EPA
relies
on
as
the
basis
for
its
reversal,

the
underlying
documents
reveal
that
several
of
the
oil­
fired
plants
originally
determined
by
EPA
to
pose
a
maximum
individual
risk
of
greater
than
one
in
a
million
are
still
in
service
or
do
not
contain
any
known
legal
constraints
on
their
discretion
to
combust
residual
oil.
See
generally
Comments
of
the
Clean
Energy
Group,
docket
item
2046
(
April
27,
2004).
Table
1
on
pages
12
and
13
of
the
Clean
Energy
Group
comments
shows
that
several
high
risk
utility
units
discharging
significant
amounts
of
nickel
are
still
in
service
in
Hawaii,
New
York,
Massachusetts,
and
Florida.
The
same
table
also
shows
that
several
more
units
in
Texas,
Florida
and
California
have
an
unknown
status.

Further,
the
Clean
Energy
Group
comments
pointedly
describe
conditions
under
which
some
plants
in
New
York
City,
Long
Island
and
California
are
required
to
operate
on
oil
70
even
when
natural
gas
is
readily
available
and
even
when
it
is
not
economic
for
such
units
to
operate.
Id.
at
10.
Thus,
EPA
fundamentally
erred
in
reversing
its
determination
to
regulate
oil­
fired
utility
units
on
the
basis
of
information
from
industry
that,
if
anything,
suggests
continued
operation
of
several
significant
oil­
fired
utility
units.

EPA
also
pointed
to
a
long­
term
energy
forecast
by
DOE's
Energy
Information
Administration
predicting
waning
reliance
on
oil­
fired
generation.
70
Fed.
Reg.
at
16,008;
EIA,
"
Annual
Energy
Outlook
2005:
With
Projections
to
2025"
(
Feb.
2005).

But
a
speculative
forecast
about
aggregate
national
reliance
on
oil­
fired
generation
cannot
be
the
basis
for
a
determination
to
remove
oil­
fired
utility
units
from
regulation
under
section
112.

It
is
manifest
that
a
decision
to
remove
oil­
fired
utility
units
from
regulation
under
section
112
requires
a
technical
basis
and
legal
findings
EPA
never
adduced
in
the
final
rule.
Nickel
compounds
are
included
on
the
congressionally­
enunciated
list
of
hazardous
air
pollutants.
42
U.
S.
C.
§
7412(
b)(
1).
EPA
may
not
delete
oil­
fired
electric
generating
units
from
the
protections
of
section
112
based
on
some
generalized
information
or
aggregate
data.
Rather,
EPA
must
determine
that
no
single
individual
oil­
fired
electric
generating
unit
(
or
group
of
units)
emits
hazardous
air
pollutants
in
quantities
which
may
cause
a
lifetime
risk
of
cancer
greater
than
one
in
one
million
to
the
maximally
exposed
individual.
Id.
§
7412(
c)(
9)(
B).
The
record
relied
on
by
the
Agency
to
reverse
its
regulation
of
nickel
from
oil­
fired
units
shows
that
several
of
the
units
originally
the
basis
for
EPA's
decision
to
regulate
nickel
continue
in
operation
today
and
that
for
others
little
information
about
their
current
emissions
and
risk
is
known.
Congress
required
rigor
not
generalized
conjecture
in
removing
source
categories
from
section
112
protections.
71
Moreover,
Congress
required
that
the
public
be
given
an
opportunity
to
review
and
comment
on
the
basis
for
such
momentous
decisions.
But
the
public
was
impermissibly
deprived
of
the
right
to
comment
on
EPA's
pivotal
decision
and
the
underlying
technical
rationale
that
EPA
relied
on,
and
EPA
must
therefore
convene
a
proceeding
to
reconsider
its
final
decision.

7.
EPA
May
Not
Ignore
Statutory
Requirements
for
Removing
Industries
from
the
Section
112(
c)
MACT
Regulatory
List.

In
December
2000,
EPA
added
EGUs
to
the
section
112(
c)
list
of
industries
requiring
MACT
regulation.
When
the
agency
proposed
to
remove
EGUs
from
the
list
last
January,
it
attempted
to
explain
why
it
was
not
intending
to
follow
the
delisting
requirements
of
section
112(
c)(
9)
by
saying
that
"
that
the
de­
listing
criteria
in
section
112(
c)(
9)
apply
only
where
the
original
listing
of
a
source
category
was
consistent
with
the
statutory
listing
criteria,"
and
by
arguing
that
it
had
concluded
that
the
EGU
category
did
not
need
to
be
listed.
69
Fed.
Reg.
at
4,689.
In
the
Final
Rule,
EPA
added
a
new
argument
to
this
circular
logic;
the
agency
now
contends
that
it
need
not
meet
the
requirements
of
section
112(
c)(
9)
because
the
"
December
2000
appropriate
and
necessary
finding
and
associated
listing
are
not
final
agency
actions."
70
Fed.
Reg.
at
16,033
(
citing
the
court's
order
dismissing
Utility
Air
Regulatory
Group
(
UARG)
v.
EPA,
No.
01­
1074
(
D.
C.
Cir.
July
26,
2001).
Because
this
new
rationale
was
not
articulated
in
the
proposal,

it
was
impracticable
for
the
public
to
object
during
the
comment
period.
Moreover,

because
EPA's
new
views
depend
on
a
misconstruction
of
the
Clean
Air
Act
to
justify
the
de­
listing
decision,
this
objection
is
centrally
relevant
to
the
rulemaking.
58
58
In
fact,
EPA
makes
a
second
new
legal
argument
which
must
be
reconsidered,
but
which
is
so
weak
that
it
barely
warrants
mention.
The
agency
contends
that
the
EGU
source
category
is
unique
for
purposes
of
section
112(
c)(
9)
and
"
interprets
section
112(
n)(
1)(
A)
as
providing
[
EPA]
authority
to
remove
coal­
and
72
In
the
lawsuit
cited
by
EPA,
UARG
challenged
EPA's
2000
regulatory
determination
and
decision
to
list
coal­
and
oil­
fired
electric
utility
steam
generating
units
(
EGUs)
under
section
112(
c)
of
the
Clean
Air
Act.
However,
section
112(
e)(
4)
of
the
Act
provides
that
"[
n]
otwithstanding
[
CAA
section
307],
no
action
of
the
Administrator
.

.
.
listing
a
source
category
or
subcategory
under
[
section
112(
c)]
shall
be
a
final
agency
action
subject
to
judicial
review,
except
that
any
such
action
may
be
reviewed
under
[
section
307]
when
the
Administrator
issues
emission
standards
for
such
.
.
.
category."

42
U.
S.
C.
§
7412(
e)(
4).
Accordingly,
the
Court
of
Appeals'
order
dismissed
the
challenge
as
premature
because
section
112(
e)(
4)
of
the
Act
expressly
reserves
judicial
review
of
these
decisions
until
such
time
as
the
section
112
regulations
are
issued.
Order,

UARG
v.
EPA,
No.
01­
1074
at
1
(
D.
C.
Cir.
July
26,
2001).
The
Court
stated
succinctly
that
"[
s]
ection
112(
e)(
4)
of
the
Clean
Air
Act
provides
that
judicial
review
of
the
listing
of
a
source
category
under
section
112(
c)
of
the
Act
is
not
available
until
after
emission
standards
are
issued."
Id.

Neither
the
statutory
protection
in
section
112(
e)(
4)
nor
the
D.
C.
Circuit's
decision
in
UARG
mean
that
EPA
can
remove
EGUs
from
the
section
112(
c)
list
without
following
section
112(
c)(
9).
Indeed,
they
prove
the
opposite
 
they
illustrate
that
the
decision
to
list
EGUs
in
December
2000
triggered
all
of
the
requirements
in
section
112
that
flow
from
a
listing
decision,
including
section
112(
c)(
9).
EPA
has
repeatedly
oil­
fired
units
from
the
section
112(
c)
list
at
any
time
that
it
makes
a
negative
appropriate
and
necessary
finding
under
the
section."
As
such,
EPA
says,
"[
s]
ection
112(
n)(
1)(
A)
.
.
.
occupies
the
field
in
section
112
with
regard
to
Utility
Units."
70
Fed.
Reg.
at
16,032­
33.
EPA
knows
this
statement
is
false.
See
56
Fed.
Reg.
28,548,
28,550­
51
(
June
21,
1991)
(
proposing
initial
list
of
source
categories
to
be
regulated
and
noting
that
one
of
its
options
would
be
to
add
EGUs
to
the
list
"
until
such
time
as
the
conclusions
of
the
section
112(
n)
(
1)
study
indicate
that
these
categories
do
not
warrant
regulation
under
section
112,"
but
stating,
"[
w]
hile
this
alternative
would
appear
to
be
more
equitable,
it
would
require
an
action
to
delete
the
utility
categories
from
the
list
if
the
section
112(
n)(
1)
study
concludes
that
these
categories
do
not
warrant
regulation
under
section
112.
Such
a
deletion
action
would
be
subject
to
the
risk­
based
findings
required
under
section
112(
c)(
9)").
73
recognized
that
the
December
2000
EGU
listing
decision
had
numerous
statutory
ramifications.
First,
EPA
has
acknowledged
that
by
listing
the
utility
industry,
the
agency
incurred
an
obligation
to
promulgate
MACT
standards
for
utilities
under
section
112(
d).
See
December
2000
Listing
Decision,
65
Fed.
Reg.
at
79,830
(
discussing
section
112(
d)
obligation);
EPA
Memorandum
of
Points
and
Authorities
in
Opposition
to
Plaintiffs'
Motion
for
Summary
Judgment
and
in
Support
of
Defendants'
Cross­
Motion
for
Summary
Judgment
on
Remedy,
Izaak
Walton
League
v.
Leavitt,
Civ.
Action
No.
04­

694
(
RWR),
at
2
(
Nov.
18,
2004)
("
Because
Electric
Utility
Units
are
currently
a
listed
source
category
under
section
112(
c),
EPA
does
not
dispute
that
it
currently
has
a
nondiscretionary
duty
to
issue
112(
d)
standards
for
Electric
Utility
Units
by
December
20,
2002,
and
that
it
has
not
yet
issued
such
standards.").

Second,
the
agency
has
recognized
that,
as
a
consequence
of
the
listing
decision,

"
each
coal
or
oil­
fired
[
EGU]
which
is
constructed
or
reconstructed"
must
comply
with
section
112(
g)'
s
case­
by­
case
standards
"
until
the
EPA
promulgates
a
nationally
applicable
MACT
standard
to
address
hazardous
air
pollutants
for
this
source
category."

Memorandum
from
John
Seitz,
U.
S.
EPA,
"
Case­
by­
Case
MACT
for
New
Oil­
and
Coalfired
Electric
Utility
Steam
Generating
Units
(
Aug.
1,
2001).

Third,
of
course,
EPA
was
able
to
take
advantage
of
section
112(
e)(
4)'
s
shield
from
judicial
review.
In
light
of
these
repeated
 
and
proper
 
acknowledgments
of
the
effect
of
the
December
2000
decision,
it
is
disingenuous
and
arbitrary
for
EPA
to
argue
now
that
one
CAA
provision
 
section
112(
c)(
9)
 
was
not
triggered.

Moreover,
EPA's
new
argument
about
the
"
finality"
of
the
December
2000
determination
and
listing
decision
also
leads
to
the
incredible
conclusion
that
Congress
74
never
needed
to
draft
section
112(
e)(
4)
in
the
first
place.
For
if
a
listing
decision
simply
is
not
"
final,"
then
section
112(
e)(
4)'
s
limitation
of
judicial
review
under
section
307
is
entirely
unnecessary.
Congress
would
not
have
needed
to
clarify
that
judicial
review
of
a
listing
decision
is
not
available
until
after
the
emissions
standards
also
have
been
issued.

EPA's
argument,
taken
to
its
logical
conclusion,
impermissibly
renders
section
112(
e)(
4)

a
nullity.

On
a
related
point,
EPA
is
also
incorrect
to
suggest
that
it
must
follow
section
112(
c)(
9)
delisting
procedures
only
when
the
listing
was
a
final
action
subject
to
judicial
review.
For
one
thing,
such
an
argument
would
prove
far
too
much
 
section
112(
e)(
4)

immunizes
every
listing
decision
from
review
at
the
time
of
listing,
yet
section
112(
c)(
9)

still
exists
as
a
limitation
on
the
ability
to
remove
categories
from
the
list.
The
plain
text
of
section
112(
c)(
9)
nowhere
limits
the
applicability
of
its
provisions
to
"
final"
listings.

Instead,
section
112(
c)(
9)
broadly
states
that
"
the
Administrator
may
delete
any
source
category
from
the
list
.
.
.,
whenever
the
Administrator
makes
the
[
specified
finding
or
findings]."
42
U.
S.
C.
§
7412
(
c)(
9).
If
Congress
had
intended
for
section
112(
c)(
9)
to
apply
only
to
"
final"
listings,
it
certainly
knew
how
to
specify
that
requirement.

Therefore,
EPA
must
comply
with
the
requirements
of
section
112(
c)(
9)
of
the
Act
in
order
to
delist
the
EGU
industry.

CONCLUSION
For
the
foregoing
reasons,
EPA
must
promptly
grant
reconsideration
of
its
rescission
rule
and
take
action
to
restore
EGUs
to
the
section
112(
c)
regulatory
list.
In
the
meantime,
EPA
must
stay
the
rule.
75
Respectfully
submitted,

___________________
Jon
P.
Devine,
Jr.
John
D.
Walke
Amanda
Leiter
Natural
Resources
Defense
Council
1200
New
York
Avenue,
NW
Suite
400
Washington,
DC
20005
(
202)
289­
6868
Counsel
for
Petitioner
Natural
Resources
Defense
Council
_____________________
Ann
Brewster
Weeks
Clean
Air
Task
Force
18
Tremont
Street,
Suite
530
Boston,
MA
02108
(
617)
624­
0234
Counsel
for
Petitioners
Clean
Air
Task
Force,
Ohio
Environmental
Council,
United
States
Public
Interest
Research
Group,
and
Natural
Resources
Council
of
Maine
_____________________
Douglas
J.
Luckerman
Law
Office
of
Douglas
J.
Luckerman
20
Outlook
Drive
Lexington,
MA
02421
(
781)
861­
6535
Counsel
for
Aroostook
Band
of
Micmacs,
Houlton
Band
of
Maliseet
Indians,
Penobscot
Indian
Nation,
Passamaquoddy
Tribe
of
Maine
(
Indian
Township
and
Pleasant
Point)
76
Attachment
1
Comments
of
The
Penobscot
Indian
Nation
77
5/
05/
04
U.
S.
Environmental
Protection
Agency,
EPA
West
(
Air
Docket),
1200
Pennsylvania
Ave.,
NW,
Room:
B108,
Mail
code:
6102T,
Washington,
DC,
20460
Attention
Docket
ID
No.
A
 
2002
 
0056.

Re:
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
(
40
CFR
60
&
63).

Dear
Administrator,

The
Penobscot
Indian
Nation
(
Nation)
respectfully
offers
comments
on
the
U.
S.

Environmental
Protection
Agency's
(
EPA)
proposed
National
Emission
Standards
for
Hazardous
Air
Pollutants
(
NESHAP);
and,
in
the
Alternative,
Proposed
Standards
of
Performance
for
New
and
Existing
Stationary
Sources
(
NSPS):
Electric
Utility
Steam
Generating
Units
(
40
CFR
60
&
63)
&
(
40
CFR
Parts
60,
72,
and
75)
[
OAR
 
2002
 
0056;

FRL
 
7628
 
8.]

The
Nation
is
a
federally
recognized
tribe
for
whom
the
United
States
government
and
its
agencies
have
a
trust
responsibility.
The
Penobscot
Reservation
consists
of
all
islands
in
the
Penobscot
River
(
north
of
and
including
Indian
Island)
and
appurtenant
water
and
ambient
air
rights.
Tribal
members
use
the
Penobscot
River
and
its
islands
for
fishing,
hunting,
trapping,
spiritual
and
cultural
activities,
recreation,

gathering
fiddlehead
ferns,
and
other
gathering
activities.
Therefore,
any
potential
threats
to
the
natural
resources
of
the
Penobscot
River,
through
water
or
air
pathways,

are
of
the
utmost
concern
to
the
tribe.
78
The
negative
impact
of
mercury
(
Hg)
emissions
on
human
health
and
the
environment
is
staggering.
There
are
412
coal­
fired
power
plants
across
the
country
that
emitted
an
estimated
45
­
48
tons
of
Hg
from
1999
data
(
NESCAUM
2003
3.)
"
Mercury
pollution
has
contaminated
[
an
estimated]
12
million
acres
of
lakes,
estuaries
and
wetlands
 
30%
of
the
national
total
 
and
473,000
miles
of
streams,
rivers
and
coastlines
(
NRDC
2004.)"
"
Mercury
levels
in
Maine
fish,
loons,
and
eagles
are
among
the
highest
in
North
America."
Currently
44
states,
including
Maine,
have
fish
consumption
advisories
due
to
mercury
contamination
(
MAB
2004.)"
The
State
of
Maine
Bureau
of
Health
has
issued
a
statewide
advisory
recommending
that
pregnant
women,
women
of
childbearing
age,
and
young
children
limit
their
fish
consumption
based
on
the
type
of
fish
they
consume.
The
Maine
advisory
has
been
in
place
since
1994
and
remains
in
effect
today
because
mercury
levels
in
fish
have
not
decreased
 
but
are
actually
on
the
rise.
As
Mercury
emissions
have
continued
without
controls,
levels
of
this
neurotoxin
have
been
steadily
increasing,
and
all
Maine
residents
are
at
an
increasing
risk.
The
time
is
now
that
Mercury
is
controlled
to
the
maximum
possible
level
under
the
authority
of
the
Clean
Air
Act
(
CAA.)

Penobscot
tribal
members
have
used
the
Penobscot
River
watershed
and
its
abundant
natural
resources
for
physical
and
spiritual
sustenance
for
10,000­
12,000
years.

Mercury
is
such
a
concern
to
the
Penobscot,
that
many
do
not
include
fish
from
the
river
anymore
as
part
of
their
diet.
This
is
in
violation
of
sustenance
fishery
rights
guaranteed
by
the
1980
Maine
Indian
Land
Claims
Settlement
Act.
The
tribe
is
also
concerned
about
other
food
sources,
such
as
muskrat,
beaver,
small­
game
waterfowl,
being
further
79
contaminated
as
these
river
based
species
rely
on
a
food
chain
that
is
part
and
parcel
of
the
river
ecosystem.

The
Nation
strongly
opposes
the
three
offered
proposals
of
the
Utility
Mercury
Rule
and
Supplemental
Rule
[
FR
/
Vol.
69,
No.
51
/
March
16,
2004/
4652­
4752]
and
find
none
of
these
acceptable
under
the
terms
of
the
CAA.
We
recognize
that
mercury
emissions
from
power
plants
are
currently
unregulated,
and
the
EPA
proposal
would
impose
controls
for
the
first
time.
MACT
rules
though
direct
the
EPA
to
control
emissions
at
the
maximum
possible
level.
Coal­
fired
power
plants
emit
an
estimated
48
tons
of
mercury
every
year
(
EPA
1997.)
The
EPA
has
also
proposed
to
weaken
and
delay
efforts
to
clean
up
mercury
emissions
from
the
nation's
412
coal­
fired
power
plants,
the
largest
unregulated
individual
source
of
mercury
(
NRDC
2004.)
Current
research
has
shown
that
Mercury
(
Hg)
air
emission
deposition
is
a
significant
contributor
to
methylmercury
bioaccumulation
in
food
chains.
Medical
studies
have
also
shown
a
growing
number
of
negative
health
impacts
from
this
neurotoxin
on
humans.
1
For
these
reasons,

Hg
must
be
treated
as
a
Hazardous
Air
Pollutant
(
HAP)
under
the
most
stringent
terms
of
the
CAA
using
Maximum
Achievable
Control
Technology
(
MACT)
standards.
Our
comments
below
will
detail
our
opposition
to
the
various
proposed
rules
posited
by
the
EPA.

1.
Mercury
is
a
listed
Hazardous
Air
Pollutant
mandated
under
the
Clean
Air
Act
to
be
placed
under
a
MACT
Standard
for
Enforcement
and
Compliance
of
Emissions.

In
the
Utility
Mercury
Rule,
the
EPA
has
proposed
three
different
approaches
to
developing
a
Mercury
standard.
These
include
the
appropriate
CAA
§
112(
d)
as
a
Maximum
Achievable
Control
Technology
(
MACT)
standard,

and
two
questionable
"
cap­
and­
trade"
programs
under
§
111
and
§
112(
n).
80
Mercury
is
one
of
the
188
chemicals
designated,
under
§
112(
b)
in
the
1990
CAA
Amendments
that
are
to
be
regulated
by
source
categories
under
§
112(
c).
Section
112(
d)

directs
the
EPA
to
develop
and
implement
MACT
standards
for
both
existing
and
new
sources
(
See
§
112(
d)(
3))
of
listed
hazardous
air
pollutants
(
HAPs)
(
emphasis
added.)

There
are
67
HAPs
identified
as
toxic
emissions
from
coal­
fired
power
plants,
including
hg,
arsenic,
nickel,
hydrogen
chloride
and
dioxins,
et.
al.
(
Praveen
2002.)
These
HAPs
represent
some
of
the
worst
air
toxics
released
into
the
environment.
Mercury
was
determined
to
be
pose
the,
"
greatest
potential
concern,"
and
the
EPA
was
directed,

under
§
112(
n)
of
the
CAA,
to
study
the
reasonably
anticipated
public
health
hazards
caused
by
Mercury
emissions
from
electric
utility
steam
generating
units
and
to
promulgate
control
standards
for
utilities
under
the
MACT
process
(
40
U.
S.
C.
.
§
7412.)"

"
The
EPA
also
expressed
potential
concern
about
other
HAPs,
including
arsenic,

chromium
nickel,
and
cadmium,
which
are
of
potential
concern
for
carcinogenic
effects,

and
dioxins,
hydrogen
chloride,
and
hydrogen
flouride,
which
are
of
potential
public
health
concern
[
as
well]
(
see:
65
Fed.
Reg.
79,825,
79,827.)"
Thus
in
choosing
an
appropriate
MACT
standard,
the
current
EPA
should
not
push
aside
regulating
these
other
HAPs.
The
MACT
that
the
EPA
has
proposed
falls
far
short
of
being
effective
from
a
public
health
standpoint
and
should
be
discarded.
An
Hg
standard,
with
stringent
emission
limits
and
expeditious
deadlines
should
be
developed.
(
see
technical
discussion
on
MACTs
below.)

The
EPA
had
failed
to
promulgate
a
Mercury
MACT
on
schedule
for
Electric
Generating
Units
(
EGUs)
and
was
subsequently
forced
to
produce
a
rule
by
a
court
ordered
consent
decree.
The
CAA
§
112(
d)
proposal
calls
for
Hg
to
be
81
regulated
under
a
MACT
standard
that
would
be
implemented
by
a
court
ordered
deadline
of
December
2007
(
see:
Izaak
Walton
League
of
America,
Natural
Resources
Council
of
Maine,
et.
al.,
v.
USEPA
2004
926
(
litigation
pending.))
The
Nation
supports
a
stringent
MACT
standard
that
all
the
other
source
categories
that
standards
have
been
developed.
The
intent
of
Congress
will
only
be
met
through
the
CAA
§
112(
d)
option.
Based
on
a
multi­
group
stakeholder
assessment,
a
realistic
and
achievable
MACT
standard
was
upwards
of
85%
to
90%
reductions
of
Hg
coal
content
or
a
rate
based
0.6
lbs/
Trillion
British
Thermal
Unit
(
TBtu)
(
NESCAUM
2003
4.)
When
fully
implemented,
this
reduction/
control
rate
would
result
in
roughly
7
tons
of
Hg
emissions
annually
in
the
country
(
4.)

The
EPA
prefers
a
"
cap­
and­
trade"
alternative
rather
than
a
MACT
under
§
112(
d).
The
EPA
has
proposed
these
two
alternate
approaches
under
CAA
§
111
and
§
112(
n)(
1)(
a)
trading
programs.
"
Cap­
and­
Trade"
programs
have
been
previously
used
for
conventional
criteria
pollutants,
such
as
nitrates
(
NOx)
and
sulfates
(
SOx),
and
were
not
originally
intended
to
be
used
to
reduce
HAP
emissions
under
the
authority
of
the
CAA.
MACT
standards
are
promulgated
through
identified
source
categories.

Aggregated
source
categories
have
been
used
for
previous
cap­
and­
trades,
but
these
did
not
fall
under
the
authority
of
maximum
reductions
through
MACT
standards.
To
date,

no
other
HAP
source
category
has
been
controlled
under
a
trading
plan,
solely
to
reduce
an
air
toxic.
Researchers
believe
that
criteria
pollutants
are
better
suited
because
these
transport
over
longer
distances,
thus
dispersing
their
concentration,
albeit
only
82
spreading
the
same
volume
at
times
(
Jeantheau
2004.).
Mercury
though
is
a
bioaccumulative
neuro­
toxin
and
does
not
transport
over
as
long
of
distances.
Power
plants
that
buy
up
Hg
credits
without
installing
effective
controls
will
only
concentrate
Mercury
in
local
and
regionally
areas
(
Jeantheau
2004.)
The
EPA
posits
that
these
"
hot
spots"
will
not
result
in
a
cap­
and­
trade
program
for
Mercury,
and
if
there
is,
it
will
be
a
local
problem
that
would
need
to
be
addressed
by
the
States
(
60
FR
4702.)
The
SO2
Capand
Trade
is
a
good
example
of
criteria
pollutant
command
and
control
 
but
SOx
still
pose
a
serious
health
risk
 
even
though
the
EPA
promotes
it
as
a
success
to
be
used
for
Mercury.
The
overall
emissions
of
SO2
are
down,
but
the
dispersion
trend
has
lead
to
more
concentrated
areas
being
affected
by
acid
rain
(
Jeantheau
2004.)
The
EPA
wrongly
views
this
relationship
inversely
by
suggesting
that
large
Utility
Units
can
control
their
emissions
more
and
sell
allowances
to
smaller
Utility
Units
rather
than
the
reverse
scenario
of
larger
units
aggregating
large
allowances
to
meet
their
demand
(
60
FR
4702.)

This
approach
is
faulty
because
larger
units
will
need
large
allowances
and
retiring
them
without
adding
the
necessary
controls
will
be
almost
impossible
until
a
projected
2018
when
trading
allowances
are
fully
utilized
(
Chadwick
2004.)

Under
§
111,
the
"
Standards
of
Performance
for
New
Stationary
Permits"

amendment,
the
EPA
would
postpone
any
regulation
until
2010
as
well
as
delay
a
proposed
inadequate
69
percent
cap
until
between
2025
and
2030.
This
proposal
is
wrought
with
illegalities.
In
no
part
of
the
Section
does
it
retain
authority
of
regulating
a
HAP
under
the
CAA.
The
process
by
which
the
EPA
promulgates
this
proposal
is
also
faulty.
Under
§
111(
f)(
3),
the
EPA
Administrator,
"
shall
consult
with
appropriate
representatives
of
the
Governors
and
of
State
air
pollution
control
agencies."
The
Administrator
has
failed
to
convene
with
these
parties
because
a
majority
of
them
have
83
steadfastly
opposed
the
"
cap­
and­
trade"
proposals.
The
EGU
and
energy
industry
should
not
be
construed
as
legitimate
consultation
that
meets
the
requirements
of
§
111
(
f)(
3).
The
administrator
is
also
directed
by
this
process
to
incorporate
technologies
posited
by
the
States
as
being
viable
controls
for
the
New
Source
Performance
Standard.

Many
States
have
maintained
ACI
and
sorbents
work
§
111
(
g)(
4).
The
EPA
posits
the
"
cap­
and­
trade,"
relying
on,
again,
the
co­
benefit
reductions
from
the
NOx
and
SOx
rule
reductions.
Finally,
the
EPA
can
not
promulgate
a
rule
that
will
impact
the
health
of
the
public,
unless
it
demonstrates
that
these
impacts
will
not
occur
§
111
(
g)(
2).
The
EPA
fails
to
demonstrate
remotely
that
Hg
will
not
impact
the
public
because
of
the
§
111
proposal.
For
this,
the
Nation
adamantly
opposes
a
§
111
"
cap­
and­
trade"
program.

Under
§
112(
n)(
1)(
a),
the
EPA
was
to
evaluate
alternative
control
mechanisms
developed
and
described
in
their
control
strategies
report
to
Congress,
and
if
these
controls
were
"
appropriate
and
necessary,"
authority
for
regulating
EGUs
could
be
granted
from
this
sub­
section
(
1990
CAA
Amendments,
Title
1,
Part
A,
§
112
(
n)(
1)(
a)).

To
disregard
the
effectiveness
and
development
potential
of
the
technical
controls,
in
favor
of
a
control
mechanism,
such
ass
a
"
cap­
and­
trade"
program,
is
also
a
disregard
of
the
intent,
authority,
and
progressive
nature
of
the
Clean
Air
Act.
The
Nation
is
of
the
opinion
that
CAA
§
112(
n)(
1)(
a)
does
not
confer
the
EPA
the
authority
to
instill
a
"

capand
trade"
over
the
development
of
effective
control
strategies.

The
Nation
adamantly
maintains
that
treatment
of
Hg
as
a
non­
MACT
HAP,
through
a
"
cap­
and­
trade"
is
clearly
the
wrong
approach
in
reducing
mercury
emissions
and
protecting
human
health.
First,
the
proposed
emission
limits
for
mercury
are
extremely
weak.
EPA's
proposal
under
Section
111
of
the
84
Clean
Air
Act
calls
for
an
interim
emissions
cap
to
be
achieved
by
2010
that,
in
fact,
does
not
require
any
additional
control
of
mercury
beyond
the
co­
benefits
expected
from
other
programs
aimed
at
reducing
emissions
of
sulfur
dioxide
and
nitrogen
oxide.
EPA
has
indicated
it
expects
this
interim
mercury
cap
to
be
set
at
34
tons
per
year.
Moreover,
while
EPA
specifies
a
15­
ton
final
cap
to
be
achieved
in
2018,
the
agency
acknowledges
in
its
proposal
that
mercury
emissions
could
reach
22
tons
(
or
only
a
54­
percent
reduction)
in
2020,
when
banking
and
trading
are
utilized.
We
believe
this
does
not
adequately
reflect
what
is
technologically
feasible
and
falls
far
short
of
what
is
needed
to
provide
appropriate
public
health
and
environmental
protection.
Instead,
the
Nation
recommends
emission
limits
reductions
between
85­
90
percent
Hg
content,
a
standard
posited
by
many
other
entities
following
this
rule
development.

Due
to
the
long
delay
of
developing
a
control
strategy
for
Hg
emissions,
many
tons
of
Hg
has
needlessly
been
released.
To
the
extent
that
EPA
misses
the
deadlines
for
promulgation
of
an
Hg
standard,
source­
specific
MACT
requirements
can
be
set
through
State
permit
programs,
but
states
have
also
generally
delayed
their
own
implementation,
waiting
on
the
USEPA's
final
rule
making
for
guidance.
The
Nation
stresses
that
the
EPA
should
re­
evaluate
all
three
Hg
control
options,
incorporate
the
work
and
assessment
of
the
Mercury
Outcome
Stakeholder
Group's
recommendations,
and
proceed
to
develop
a
better
rule
with
more
stringent
outcomes.
Until
this
occurs,
many
more
tons
of
85
Hg
will
be
released,
while
the
rule
is
tied
up
by
almost
certain
litigation
by
States,
Tribes,
and
Environmental
groups.

2.
Maximum
Achievable
Control
Technology
Standards
for
Mercury.

EPA's
Hg
air
emissions
control
analysis
is
incomplete
at
best.
The
CAA
requires,
"
that
the
MACT
limit
be
at
least
as
stringent
as
the
average
emissions
limitation
achieved
by
the
best
performing
12
percent
of
the
existing
sources."
In
the
proposed
rule,
the
EPA's
incorrectly
claims
that
advanced
technologies
for
Hg
control
are
not
currently
available
and
will
take
almost
ten
years
to
develop
(
EPA
2004.)
A
MACT
standard
must
also
be
equal
to
at
least
the
level
of
control
achieved
by
the
best
performing
12
percent
of
regulated
sources
within
the
same
source
category.
When
a
category
has
fewer
than
30
sources.
MACT
is
defined
as
at
least
the
level
of
control
activity
achieved
by
the
best
five
sources.
New
source
standards
may
be
more
stringent
than
existing
source
standards,
and
existing
sources
are
subject
to
statutory
schedules
for
retrofitting
necessary
technology
(
Brownell
1998
124.)"

EPA
posits
that
a
"
brand
new"
control
for
Hg
will
need
to
be
developed
in
order
to
achieve
higher
efficiency
than
what
they
have
proposed
in
their
rule.

A
few
progressive
coal­
fired
power
plants
already
have
already
used
commercially
available
powdered
activated
carbons
in
retrofitted
bag­
houses
86
(
i.
e.
Activated
Carbon
Injection
processes)
(
ACI)
as
a
means
towards
better
combustion/
Hg
collection
frequency
(
Bustard
2002.)

The
EPA
also
asserts
that
ACI
processes
will
be
too
costly
to
install
at
this
time.

These
considerations
are
not
consistent
with
the
EPA's
Mercury
Study
Report
to
Congress
in
December
1997,
which
identified
carbon­
based
processes
as
one
of
the
lower­
cost
technologies
for
control
of
mercury
emissions
from
utility
flue
gas
among
the
available
controls
being
researched
(
Chen
1998.)
Recent
Power
Plant
Activated
Carbon
Injection
Demonstration
Projects,
including;

Alabama
Power
E.
C.
Gaston:
unit
3,
135­
MW
equivalent,
low­
sulfur
eastern
bituminous
coals
 
Longest
continuous
short­
term
test
run
 
9
days
 
equipped
with
both
a
fabric
filter
and
an
electrostatic
precipitator,
Long­
term
test
(~
1
year)
underway,

WEPCO
Pleasant
Prairie:
unit
2,
150­
MW
equivalent,
Powder
River
Basin,
subituminous
coal
Longest
continuous
short­
term
test
run
 
5
days,

PG&
E
Brayton
Point::
unit
1,
245­
MW,
low­
sulfur
bituminous
coal,

PGE
Salem
Harbor:
85­
MW,
low­
sulfur
bituminous
coal,

have
shown
upwards
of
90%
Hg
reductions
even
though
the
test
runs
have
been
relatively
short
term.
ACI
is
the
most
advanced
technology
to
control
exhaust
gas
Hg
and
is
capable
of
handling
the
"
incoming
variability"
by
adding
more
or
less
activated
carbon
(
or
by
using
more
advanced
forms
of
activated
carbon)
and
other
system
controls
(
NESCAUM
2004
5.)
The
positive
variable
is
that
municipal
waste
incinerators
were
faced
with
the
same
challenge
early
on
and
successful
retrofits
were
summarily
developed
and
made
commercially
available
well
within
the
ten
years
that
the
EPA's
proposed
rule
predicts
for
a
Utility
Mercury
Rule.
The
EPA
has
generally
adhered
to
the
87
principal
that
control
technologies
are
market
driven,
a
position
they
have
seemingly
abandoned
with
the
promulgation
of
the
mercury
cap
and
trade.

Cost
impacts
considering
selected
variables,
including
existing
controls
and
necessary
retrofitting,
coal
ranks,
and
removal
ratios
(
in
comparison
to
NOx
technologies)
were
researched
using
pilot
scale
projects
as
recently
as
2001
(
Srivastava
2001.)
While
the
EPA
surmises
that
these
pilot
studies
won't
result
in
commercial
production
of
ACI
technologies
for
almost
ten
years,
it
fails
to
consider
that
other
pollutant
controls
were
expedited
by
regulatory
drivers,
including
catalytic
converters
in
addressing
leaded
gasoline
pollutants,
and
NOx
controls
through
the
NOx
SIP
Call
rule.
These
pilot
projects
have
also
addressed
the
issue
of
what
is
the
best
control
for
individual
coal
types.
"
Moreover,
the
Agency's
decision
to
establish
subcategories
in
the
MACT
standard
by
type
of
coal
is
unwarranted
at
best.
Different
types
of
boilers
can
be
made
to
combust
more
than
one
type
of
coal.
EPA's
proposal
merely
guarantees
the
continued
use
of
particularly
mercury­
heavy
fuels
(
Minott
2004.)"

The
EPA
believes
that
"
co­
benefits"
of
Hg
reductions
will
be
realized
with
the
implementation
of
the
Interstate
Air
Quality
Rule
(
FR
4691.)
Instead
of
requiring
an
ACI
type
control,
the
EPA
looks
to
control
Hg
capture
by
ranking
by
coal
type,
and
seeking
the
highest
ratio
by
rank.
Control
technology
research
has
shown
that
Hg
doesn't
bind
well
to
particulate
matter,
and
the
controls
used
for
PM
captures
30­
40%
at
best
(
RTC
1997.)
No
matter
how
much
the
reduction
of
PM
pollutants,
there
will
be
unnecessary
Hg
emissions
released,
while
relying
on
a
wrongfully
considered
"
co­
benefit."
Control
research
as
validly
shown
that
facilities
using
ESPs
or
Fabric
filters
cannot
adequately
control
Hg
and
that
these
toxic
emissions
can
only
be
decreased
by
the
addition
of
a
carbon
sorbent
injection
system
somewhere
along
the
process.
Thus,
the
control
related
88
to
the
Interstate
Air
Quality
Rule
are
not
even
some
of
the
more
reliable
controls
for
mercury.

Conclusion:

The
Nation
respectfully
asks
that
the
EPA
reconsider
the
various
rules
it
has
proposed
for
Utility
Mercury
Rule,
i.
e.
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
(
40
CFR
60
&
63).

The
Penobscot
Nation
is
a
Native
American
Tribe
that
relies
heavily
on
our
surroundings
to
maintain
a
sustenance
culture.
Hazardous
air
pollutants,
such
as
Mercury,
bio­
accumulate
in
our
food
chains
and
pose
a
serious
risk
to
our
people.

Research
has
shown
that
Hg
levels
will
continue
to
increase
unless
stringent
standards
are
set
and
enforcement
and
compliance
is
successful.
As
it
stands
now,
the
EPA
will
be
failing
to
uphold
their
federal
trust
responsibility
to
tribes,
if
they
pursued
the
options
they
have
proposed.
We
ultimately
hope
that
the
EPA
will
implement
a
stringent
MACT
standard
for
coal­
fired
EGUs,
nothing
less
will
be
sufficient
to
the
Penobscot
Nation.
89
Sources:

Amar,
Praveen.
(
2002)
State
and
Local
Air
Pollution
Control
Officals
Recommendations
for
Utility
MACT
Standards:
Sept.
9,
2002
&
Oct.
17,
2002
Utility
MACT
Workgroup
Meetings
and
Amended
Oct.
22,
2002.

Brownell,
F.
William.
(
1998)
Clean
Air
Handbook.
Rockville,
Md.
3rd
Ed.

Bustard,
C.
Jean.
"
Full­
Scale
Evaluation
of
Mercury
Control
with
Sorbent
Injection
and
COHPAC
at
Alabama
Power
E.
C.
Gaston,"
Journal
of.
Air
&
Waste
Management
Association
52:
918­
926
(
2002)

Chadwick,
Cory.
(
2004)
Testimony
on
behalf
of
the
State
and
Territorial
Air
Pollution
Program
Administrators
and
the
Association
of
Local
Air
Pollution
Control
Officials
on
the
U.
S.
Environmental
Protection
Agency's
Proposed
Rule
to
Control
Emissions
of
Hazardous
Air
Pollutants
from
Utilities
(
January
30,
2004,
69
Federal
Register
4652):
Docket
ID
No.
OAR
2002­
0056
and
Proposed
Rule
to
Reduce
Interstate
Transport
of
Fine
Particulate
Matter
and
Ozone
(
Interstate
Air
Quality
Rule)
(
January
30,
2004,
69
Federal
Register
4566)
Docket
ID
No.
OAR
2003­
0053,
February
25,
2004
Chen,
Shiaoguo.
Preparation
and
Evaluation
of
Novel
Activated
Carbons
from
Illinois
Coal
for
Mercury
Removal.
Final
Technical
Report.
Illinois
State
Geological
Survey.
(
1998)

Gallagher,
Dawn
R.,
(
2004)
Oral
Testimony
on
behalf
of
the
Northeast
States
for
Coordinated
Air
Use
Management
on
the
U.
S.
Environmental
Protection
Agency's
Proposed
Rule
to
Reduce
Interstate
Transport
of
Fine
Particulate
and
Ozone
(
69
FR
4566­
4650)
and
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
4752)
February
26,
2004
Philadelphia,
Pennsylvania
Jeantheau,
Mark.
(
2004)
"
Why
Mercury
was
not
the
God
of
"
Cap
and
Trade"
The
Pros
and
Cons
of
Reducing
Pollution
Through
Allowance
Trading"
Grinning
Planet:
Issue
Number
42
Maine
Department
of
Environment
Protection
 
Air
Bureau.
(
2004)
Mercury:
A
Significant
Environmental
Problem.
<
http://
www.
maine.
gov/
dep/
mercury/>
Minott,
Joseph
Otis.
(
2004)
Testimony
of
Clean
Air
Council
Before
the
U.
S.
Environmental
Protection
Agency:
Public
Hearing
on
Proposed
Regulations
for
Mercury
&
Interstate
Air
Quality:
February
25,
2004
(
Philadelphia)

Natural
Resources
Defense
Council.
(
2004)
NRDC
Backgrounder:
Bush
Mercury
Policy
Threatens
the
Health
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[
OAR
 
2002
 
0056;
FRL
 
7606]
