"
Walke,
John"
<
jwalke@
nrdc.
org>
07/
18/
2005
11:
08
PM
To
Stephen
Johnson/
DC/
USEPA/
US@
EPA,
Howard
Hoffman/
DC/
USEPA/
US@
EPA,
Bill
Maxwell/
RTP/
USEPA/
US@
EPA,
Group
A­
AND­
R­
DOCKET@
EPA,
Maryjo
Krolewski/
DC/
USEPA/
US@
EPA,
Carol
Holmes/
DC/
USEPA/
US@
EPA
Cc
"
Walke,
John"
<
jwalke@
nrdc.
org>,
"
Devine,
Jon"
<
jdevine@
nrdc.
org>,
aweeks@
catf.
us
Subject
NRDC
et
al
petition
for
reconsideration
Attention
Docket
ID
No.
OAR­
2002­
0056.

Attached
is
a
petition
for
reconsideration
of
EPA's
final
rule
entitled
"
Standards
of
Performance
for
New
and
Existing
Stationary
Sources:
Electric
Utility
Steam
Generating
Units,"
and
two
accompanying
spreadsheets
referenced
in
this
petition.

Please
feel
free
to
contact
me
with
any
questions.

John
Walke
NRDC
(
202)
289­
2406
BEFORE
THE
ADMINISTRATOR
UNITED
STATES
ENVIRONMENTAL
PROTECTION
AGENCY
____________________________________
)
In
the
Matter
of
the
Final
Rule:
)
)
Standards
of
Performance
for
New
and
)
OAR­
2002­
0056
Existing
Stationary
Sources:
Electric
)
Utility
Steam
Generating
Units
)
____________________________________)

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,
and
the
Natural
Resources
Council
of
Maine
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.
28606­
28700
(
May
18,
2005)

(
hereinafter
"
Final
Rule").
The
Final
Rule
adopts
unlawful
standards
of
performance
for
new
and
existing
electric
utility
steam
generating
units
under
Section
111
of
the
Clean
Air
Act
("
CAA"
or
"
Act").

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.
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).
3
ISSUES
FOR
RECONSIDERATION
1.
The
Final
Rule
Reflects
Unlawful
Standards
of
Performance
Under
Section
111
EPA's
Final
Rule
relies
upon
purported
authority
in
sections
111(
a)
and
111(
d)(
1)

to:

promulgate
a
``
standard
of
performance''
that
States
must,
through
a
SIP­
like
system,
apply
to
existing
sources.
A
``
standard
of
performance''
is
defined
as
a
rule
that
reflects
emission
limits
to
the
degree
achievable
through
``
the
best
system
of
emission
reduction''
that
EPA
``
determines
has
been
adequately
demonstrated,''
considering
costs
and
other
factors.

70
Fed.
Reg.
at
28616/
3.
Pointing
to
this
standard,
EPA
goes
on
to
note
that
it
has:

determined
that
a
cap­
and­
trade
program
based
on
control
technology
available
in
the
relevant
timeframe
is
the
best
system
for
reducing
Hg
emissions
from
existing
coal­
fired
Utility
Units.

Id.
at
28617/
2.

In
devising
the
geographic
scope
for
this
trading
program,
and
the
state
and
Indian
country
emissions
budgets,
EPA
developed
a
statewide
emissions
budget
for
mercury
for
each
state
 
and
each
coal­
fired
Utility
Unit
located
in
Indian
country
 
"
by
totaling
unitlevel
emissions
reductions
requirements
for
coal­
fired
electricity
generating
devices."
Id.

at
28621.
At
the
same
time,
EPA
noted
that
"
States
have
the
flexibility
to
meet
these
State
budgets
by
participating
in
a
trading
program
or
establishing
another
methodology
for
Hg
emissions
reductions
from
coal­
fired
electric
generating
units ."
Id.

We
are
attaching
to
these
reconsideration
comments
two
spreadsheets,
developed
from
data
in
EPA's
rulemaking
docket,
summarizing:
(
1)
unit­
level
emission
"
reduction"

requirements
for
coal­
fired
electric
generating
units
in
phase
I
and
phase
II
of
the
Final
Rule;
and
(
2)
the
statewide
emissions
budgets
for
mercury.
The
spreadsheets
present
information
about
the
mercury
emissions
levels
on
a
unit­
by­
unit
and
state­
by­
state
basis,
4
respectively,
under
the
phase
I
cap
of
38
tons
and
the
phase
II
cap
of
15
tons.
Each
spreadsheet
contains
comparable
emissions
data
on
a
unit­
and
state­
specific
basis
from
EPA's
1999
mercury
emissions
data.
The
spreadsheets
then
compare
the
emissions
reductions
 
or
in
many
cases
increases
 
that
would
occur
in
phase
I
and
phase
II
as
compared
to
1999
emissions
data
on
a
percentage
basis,
under
the
allocations
described
by
EPA
in
its
Final
Rule.
Finally,
the
spreadsheets
employ
yellow
highlighting
to
make
clear
where
the
phase
I
and
phase
II
allocations
in
the
Final
Rule
allow
emissions
increases
 
at
individual
units
or
even
on
a
statewide
basis
 
as
compared
to
mercury
emissions
levels
in
1999.1
The
information
presented
in
these
spreadsheets
makes
clear
that
the
Final
Rule
is
unlawful,
arbitrary
and
capricious,
and
otherwise
an
abuse
of
the
agency's
discretion
in
purporting
to
represent
"
the
best
system
of
emission
reduction"
determined
to
have
been
adequately
demonstrated
under
sections
111(
a)
and
111(
d).
As
demonstrated
in
the
attached
spreadsheets,
EPA
is
unlawfully
and
arbitrarily
contending
that
Congress
intended
this
"
best
system
of
emission
reduction"
to
be
satisfied
by
a
Final
Rule
in
which:

 
19
states
would
experience
mercury
pollution
increases
above
recent
actual
levels
in
phase
I,
between
now
and
2017;
 
5
states
would
still
be
allowed
mercury
pollution
increases
above
recent
actual
levels
in
phase
II,
in
2018
and
beyond
(
indeed,
forever,
as
far
as
one
can
tell
under
the
Final
Rule);
 
Of
the
19
states
experiencing
higher
mercury
budgets
in
phase
I,
the
percentage
increases
above
1999
levels
include
increases
of
73%
(
Nevada),
176.6%
(
Colorado),
208.7%
(
Hawaii),
240.9%
(
New
Hampshire),
and
840.9%
(
California);
 
Several
states
in
phase
II
are
still
allowed
substantial
increases
above
1999
levels:
e.
g.,
New
Hampshire
(
35.3%)
and
California
(
267.2%).

1
The
state­
by­
state
chart
does
not
account
for
the
fact
that
some
units
are
located
in
Indian
Country.
For
example,
although
there
are
units
physically
located
in
Arizona,
Utah,
and
New
Mexico
that
receive
separate
allocations
apart
from
those
states,
the
1999
emission
data
we
have
reviewed
does
not
appear
to
distinguish
between
emissions
from
sources
in
a
state
and
from
sources
in
Indian
Country
within
that
state.
5
 
425
units
can
increase
mercury
emissions
above
recent
actual
levels
in
phase
I,
between
now
and
2017;
 
129
units
still
would
be
allowed
mercury
pollution
increases
above
recent
actual
levels
in
phase
II,
in
2018
and
beyond
(
indeed,
forever,
as
far
as
one
can
tell
under
the
Final
Rule);
 
Of
the
425
unit
allowed
higher
mercury
levels
in
phase
I,
the
percentage
increases
above
1999
levels
include
increases
of
100%,
1,000%,
5,000%
and
even
in
excess
of
10,000%;
and
 
Of
the
129
units
allowed
higher
mercury
levels
in
phase
II,
most
of
these
units
are
still
allowed
increases
of
more
than
100%,
with
some
ranging
in
excess
of
5,000%
increases.

The
Phase
I
budgets
and
allocations
appeared
for
the
first
time
in
the
Final
Rule,
making
it
impracticable
to
raise
objections
during
the
period
provided
for
public
comment.

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
the
Final
Rule
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
herein
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).

The
Final
Rule
does
not,
and
indeed
cannot,
explain
or
justify
why
these
sweeping
statewide
and
unit­
specific
emissions
increases
represent
the
"
best
system
of
emission
reduction"
as
required
by
section
111.
Nor
does
the
Final
Rule
explain
why
states
or
units
experiencing
paltry
decreases
in
phase
I
or
phase
II
are
being
required
to
meet
the
"
best
system
of
emission
reduction"
either.
Indeed,
EPA's
description
of
the
statewide
mercury
emissions
budgets
and
the
unit­
by­
unit
allocations
amounts
to
a
basic,

gross
misrepresentation
of
these
things,
since
the
agency
characterizes
the
former
as
"
budget[
s]
for
reductions
from
coal­
fired
Utility
Units"
and
the
latter
as
"
unit­
level
6
emissions
reduction
requirements
for
coal­
fired
electricity
generating
devices."
70
Fed.

Reg.
28621
(
emphases
added).
As
shown
in
the
attached
spreadsheets
and
discussed
above,
these
things
are
the
very
opposite
of
"
reductions"
in
many
instances.
Indeed,
in
reading
the
entire
preamble
to
the
Final
Rule,
there
is
no
acknowledgment
by
EPA
that
many
statewide
emissions
budgets
reflect
increases
in
phase
I
and
phase
II,
or
that
hundreds
of
units
are
assumed
to
have
emissions
increases
in
arriving
at
these
budgets.

Accordingly,
EPA
skirts
entirely
the
question
of
how
this
situation
reflects
the
"
best
system
of
emission
reduction"
under
section
111.2
EPA
identifies
no
instance
in
which
a
previous
section
111
rule
and
its
"
best
system
of
emission
reduction"
standard
were
satisfied
by
standards
allowing
emissions
increases
from
any
source,
much
less
increases
from
many
sources
or
across
many
states.

Indeed,
inter­
source
and
inter­
state
trading
are
prohibited
under
section
111,
as
detailed
further
in
comments
submitted
to
the
agency
on
its
proposal,
and
EPA
is
flatly
incorrect
in
claiming
that
the
Final
Rule
is
"
wholly
consistent
with"
a
single
earlier
instance
of
trading
in
an
emissions
guideline
under
section
111
(
an
authorization
of
trading,
we
note,

that
was
not
subjected
to
judicial
review).
See
70
Fed.
Reg.
at
28617/
1.
EPA's
own
description
of
that
NOx
trading
program
indicates
that
it
was
implemented
"
by
individual
States,"
id.,
which
is
to
say
within
a
single
state
pursuant
to
individual
state
plans,
and
did
not
involve
inter­
state
trading
as
the
Final
Rule
purports
to
allow.
Even
so,
EPA
may
not
authorize
that
which
is
contrary
to
the
statute.

2
Indeed,
the
most
that
EPA
manages
is
to
argue
that
these
emissions
budgets
provide
"
an
efficient
method
for
achieving
necessary
reductions
in
Hg
emissions
(
as
described
in
earlier
sections
of
this
preamble),
while
providing
substantial
flexibility
in
implementing
the
program."
70
Fed.
Reg.
at
28621/
2
(
emphasis
added).
7
The
unlawfulness
and
arbitrariness
of
EPA's
trading
scheme
­­
and
its
allowance
for
unit­
specific
and
state­
specific
mercury
emissions
increases
 
is
further
revealed
by
the
State
plan­
specific
nature
of
section
111(
d)'
s
standards
of
performance
for
existing
sources.
Under
section
111(
d)(
1),
each
State
is
to
submit
to
the
Administrator
a
plan
establishing
standards
of
performance
for
existing
sources
that
meet
section
111(
a)(
1)'
s
definition.
The
Final
Rule
notes
that
while
states
are
not
required
to
adopt
and
implement
the
proposed
emissions
trading
rule,
states
are
required
to
be
in
compliance
with
their
statewide
mercury
emission
budget.
And
equally
important,
EPA
will
approve
plans
that
are
in
compliance
with
those
budgets.
Accordingly,
any
individual
State
plan
that
is
submitted
in
compliance
with
budgets
allowing
mercury
increases,
or
paltry
decreases,
in
phases
I
and
II
will
be
deemed
to
be
the
State
plan­
specific
"
best
system
of
emission
reduction"
required
by
sections
111(
a)(
1)
and
111(
d).

Yet
there
is
nothing
in
section
111
allowing
the
overall
emissions
reductions
achieved
by
states
collectively
under
phases
I
and
II
to
meet
the
standard
for
the
"
best
system
of
emission
reduction"
required
of
each
individual
State
plan,
especially
where
multiple
state
plans
may
be
submitted
to
conform
to
statewide
budgets
that
are
substantially
higher
than
current
in­
state
emissions
from
the
utility
sector.
In
other
words,

the
Final
Rule
allows
the
legal
obligation
for
each
individual
State
plan
to
meet
section
111(
a)(
1)
and
111(
d)'
s
standard
of
performance
obligation
to
be
achieved
by
the
unlawful
totaling
of
state
plans
collectively,
whereby
the
reductions
required
from
some
state
plan
submissions
will
counterbalance
the
increases
allowed
in
other
state
plans.
This
is
flatly
contrary
to
the
plain
language
of
section
111.
8
This
unlawfulness
is
compounded
by
the
fact,
which
EPA
is
forced
to
acknowledge,
that
not
all
states
will
participate
in
the
trading
program
and,
indeed,
that
EPA
cannot
require
that
states
do
so.
These
basic
facts
underscore
the
fundamental
unlawfulness
and
arbitrariness
of
the
standards
of
performance
for
existing
sources
in
the
Final
Rule.
By
refusing
to
require
mercury
reductions
from
many
units
and
statewide
reductions
from
many
states,
in
favor
of
the
hope
that
universal
trading
participation
might
yield
emissions
reductions
even
in
those
states
with
phase
I
and
phase
II
emissions
budgets
that
are
higher
than
recent
actual
emissions
levels,
the
Final
Rule
makes
a
mockery
of
the
statutory
command
that
each
State
submit
plans
meeting
section
111'
s
"
best
system
of
emission
reduction"
standard,
the
Final
Rule
fails
to
protect
the
public
in
those
states
(
and
in
downwind
states),
and
the
Final
Rule
entirely
subverts
the
Congressional
intent
behind
section
111(
d).

Moreover,
even
if
there
were
universal
trading
participation
by
the
states
in
submitting
state
plans,
the
Final
Rule
fails
to
explain
to
the
citizens
of
Colorado,
for
example,
that
the
"
best
system
of
emission
reduction"
for
their
own
good
is
to
suffer
from
176%
higher
levels
of
mercury
emissions
from
now
through
2017
and
9%
higher
mercury
levels
from
2018
and
beyond.
3
Or
that
New
Hampshire
residents
should
be
satisfied
with
241%
higher
mercury
pollution
levels
between
now
and
2017,
and
35%

higher
levels
in
2018
and
later.
There
is
nothing
in
the
statute
or
legislative
history
3
It
is
not
material
to
these
objections
to
the
Final
Rule
whether
each
of
the
numbers
in
the
attached
spreadsheets
is
precise.
While
EPA's
own
1999
mercury
emissions
data
are
the
best
and
most
comprehensive
data
available
(
to
us
and
the
agency)
reflecting
today's
mercury
emissions
from
electric
generation
units,
the
unit­
specific
and
state­
specific
numbers
reflected
in
the
two
spreadsheets
could
be
higher
or
lower
than
actual
emissions
today
 
due,
for
example,
to
new
unit
construction,
fuel
switching,
or
pollution
control
device
installations
that
have
occurred
since
1999.
Our
objections
to
the
Final
Rule
catalogued
in
these
reconsideration
comments
are
rooted
in
the
sheer
number
and
magnitude
of
emissions
increases
reflected
in
the
Final
Rule's
budgets,
and
possible
marginal
errors
in
the
spreadsheets
do
not
materially
affect
those
considerations.
9
indicating
Congressional
intent
that
section
111'
s
"
best
system
of
emission
reduction"

should
yield
those
outcomes
for
the
residents
of
those
states.
EPA
has
never
before
subjected
citizens
of
different
states
to
such
disparate
and
unlawful
levels
of
protection
under
section
111,
in
part
because
EPA
has
never
before
interpreted
section
111
to
authorize
the
Final
Rule's
form
of
trading
(
due
to
its
unlawfulness),
in
part
because
such
an
approach
is
an
inequitable
and
indefensible
policy
choice.

Finally,
EPA's
rule
unintentionally
reveals
an
internally
arbitrary
and
unlawful
consequence
of
this
approach
to
section
111'
s
"
best
system
of
emission
reduction."
The
Final
Rule
notes
that:

As
required
by
CAA
section
111(
a)(
1),
EPA
has
considered
the
cost
of
achieving
the
reductions
in
Hg
emissions
mandated
by
the
section
111(
d)
requirements
for
existing
Utility
Units,
the
non­
air
quality
health
and
environmental
impacts
arising
from
the
implementation
of
those
requirements
and
the
energy
requirements
associated
with
those
requirements
and
determined
that
they
are
all
reasonable.

70
Fed.
Reg.
at
28624/
1.
Thus,
the
Final
Rule
is
simultaneously
claiming
that
state
mercury
emissions
budgets
that
allow
statewide
emissions
to
triple
(
California,
Hawaii,

New
Hampshire,
Utah)
reasonably
satisfy
the
statutory
criteria
in
section
111,
as
do
state
mercury
emissions
budgets
that
require
64%
lower
mercury
emissions
in
phase
I
(
Pennsylvania)
or
89%
lower
mercury
emissions
under
the
phase
II
cap
(
New
Mexico).

In
EPA's
view,
any
of
those
outcomes
represents
a
reasonable
satisfaction
of
the
obligation
for
each
state
to
submit
plans
meeting
the
"
best
system
of
emission
reduction"

for
each
state.
This
is
unlawful,
arbitrary
and
capricious,
and
otherwise
an
abuse
of
EPA's
discretion.
The
statutory
criteria
in
section
111(
a)(
1)
lose
all
meaning
if
the
state
mercury
budgets
adopted
by
EPA,
and
the
outcomes
detailed
in
the
attached
spreadsheets,

reasonably
satisfy
those
criteria.
Finally,
EPA's
acknowledgment
that
the
more
stringent
10
and
protective
state
budgets
satisfy
the
statutory
criteria
(
e.
g.,
as
with
Pennsylvania
and
New
Mexico,
noted
above)
renders
unlawful
and
arbitrary
the
Final
Rule's
failure
to
require
greater
and
timelier
mercury
emissions
reductions
in
other
states
with
weaker
(
or
no)
control
obligations.

For
all
the
foregoing
reasons,
EPA
must
reconsider
its
Final
Rule.

2.
It
is
Unlawful
to
Apply
Section
111(
d)
to
Hazardous
Air
Pollutants
Listed
Pursuant
to
Section
112
of
the
Act,
and
EPA
Improperly
Amended
Existing
Regulations
to
Accomplish
this
Unlawful
Application
Without
Prior
Notice
and
Opportunity
for
Comment.

EPA
must
also
reconsider
its
decision
to
amend
its
regulations
implementing
section
111(
d)
of
the
Act
without
notice
and
opportunity
for
comment.
Before
the
final
rule,
EPA
explained
that
section
111(
d)
only
applied
to
"
designated
pollutants,"
and
that
HAPs
listed
pursuant
to
section
112
could
not
be
considered
"
designated
pollutants."
In
particular,
40
C.
F.
R.
§
60.21(
a)
previously
defined
"
designated
pollutant"
to
mean
"
any
air
pollutant,
emissions
of
which
are
subject
to
a
standard
of
performance
for
new
stationary
sources
but
for
which
air
quality
criteria
have
not
been
issued,
and
which
is
not
included
on
a
list
published
under
section
108(
a)
or
section
112(
b)(
1)(
A)
of
the
Act."
In
turn,
section
112(
b)(
1)(
A)
of
the
Act
was,
before
the
1990
Amendments,
the
provision
under
which
hazardous
air
pollutants
were
listed
for
regulation;
4
today,
the
list
of
pollutants
to
be
regulated
is
contained
in
section
112(
b)(
1).
Based
on
this
statutory
and
regulatory
structure,
EPA
has
explained
that
section
111(
d)
is
unavailable
for
listed
HAPs:

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
4
42
U.
S.
C.
§
7412(
b)(
1)(
A)
(
1990)
("
The
Administrator
shall,
within
90
days
after
December
31,
1970,
publish
(
and
shall
from
time
to
time
thereafter
revise)
a
list
which
includes
each
hazardous
air
pollutant
for
which
he
intends
to
establish
an
emission
standard
under
this
section.").
11
pollutants
("
HAPs")
under
section
112(
b)(
1),
but
to
which
a
standard
of
performance
for
new
sources
applies
under
section
111.5
EPA
has
explained
the
scope
of
section
111(
d)
similarly
on
numerous
occasions.
6
In
comments
submitted
to
the
rulemaking
docket,
NRDC
pointed
out
that
EPA's
prior
understanding
of
the
CAA
and
the
agency's
regulations
conflicted
with
its
desire
 
in
the
present
rulemaking
 
to
regulate
power
plants'
mercury
emissions
under
the
authority
of
section
111(
d).
7
EPA's
response
was
to
change
its
regulations
in
the
final
rule
without
proposing
such
amendments.
Specifically,
EPA
stated:

We
recognize
that
we
may
have
made
statements
concerning
section
111(
d),
since
the
1990
Amendments,
but
those
statements
did
not
recognize
or
account
for
the
two
different
amendments
to
section
111(
d),
as
enacted
in
1990.
We
are
also
amending
40
CFR
60.21,
as
part
of
the
final
CAMR.
That
regulation,
which
was
promulgated
in
1975,
interprets
the
1970
CAA
and
defines
a
"
designated
pollutant"
for
purposes
of
section
111(
d),
as
excluding
any
pollutant
that
is
listed
on
the
section
112(
b)(
1)(
A)
list.
There
is
no
section
112(
b)(
1)(
A)
in
the
current
act,
as
amended
in
1990.
We
are
therefore
revising
40
CFR
60.21
because
it
does
not
reflect
the
current
language
of
section
111(
d),
as
amended
in
1990.8
EPA's
final
cap
and
trade
rule
codifies
this
decision
by
changing
the
definition
of
"
designated
pollutant"
to
include
any
pollutant
"
that
is
on
the
section
112(
b)(
1)
list
and
is
emitted
from
a
facility
that
is
not
part
of
a
source
category
regulated
under
section
112."
9
Because
EPA
finalized
this
change
to
its
governing
regulations
without
notice
and
opportunity
to
comment,
and
because
making
the
change
allows
EPA
to
accomplish
its
pollution
trading
scheme,
this
change
is
one
upon
which
it
was
impracticable
to
raise
an
objection
during
the
public
comment
period,
and
is
of
central
relevance
to
the
rulemaking.

5
70
Fed.
Reg.
9872,
9873
(
Mar.
1,
2005)
6
See,
e.
g.,
66
Fed.
Reg.
67,096
(
Dec.
28,
2001);
66
Fed.
Reg.
48,355
(
Sept.
20,
2001);
65
Fed.
Reg.
16,323­
24
(
Mar.
28,
2000).
7
Email
from
Jon
Devine,
NRDC,
to
EPA
Air
Docket
et
al.,
Docket
OAR­
2002­
0056,
Item
5762
(
Mar.
2,
2005).
8
70
Fed.
Reg.
15,994,
16,032
n.
63
(
Mar.
29,
2005);
see
also
70
Fed.
Reg.
12,591,
12,592
(
Mar.
15,
2005)
("
correcting"
March
1,
2005
notice
and
stating
that
"[
t]
his
summary
of
CAA
section
111(
d)(
1)
is
inaccurate
and
incomplete.").
9
70
Fed.
Reg.
at
28,649
(
to
be
codified
at
40
C.
F.
R.
§
60.21(
a)).
12
Accordingly,
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."
10
Moreover,
because
it
is
unlawful
to
regulate
listed
HAPs
under
section
111(
d),
as
we
have
explained
in
our
petition
for
reconsideration
of
EPA's
action
reversing
its
December
2000
regulatory
determination,
11
EPA
must
revoke
these
regulatory
changes
upon
reconsideration.

3.
The
Actual
Language
of
the
Final
Rule
Unlawfully
Fails
to
Require
Mercury
Emissions
Reductions
From
Electrical
Generating
Units.

Despite
EPA's
claims
in
the
preamble
to
the
Final
Rule
that
states
may
achieve
the
required
mercury
emissions
reductions
from
coal­
fired
electric
generating
units
through
means
other
than
the
agency's
model
trading
rule,
and
that
states
must
meet
the
specified
budgets
for
reductions
from
coal­
fired
utility
units,
70
Fed.
Reg.
at
28621,
the
actual
rule
language
for
the
Final
Rule
shockingly
fails
to
impose
a
legal
obligation
upon
states
to
meet
their
annual
mercury
budgets
through
mercury
reductions
from
existing
electrical
generating
units.
While
this
may
be
due
to
poor
drafting
on
the
agency's
part,
it
nonetheless
undermines
altogether
the
basis
for
EPA's
Final
Rule
 
and
the
agency's
separate
claim
that
it
need
not
develop
a
section
112(
d)
standard
for
power
plants.

Moreover,
since
EPA
never
provided
notice
and
opportunity
for
comment
concerning
this
basic
omission
in
the
rule
language
itself,
EPA
must
grant
reconsideration
of
the
Final
Rule.

40
CFR
§
60.24(
h)
contains
provisions
governing
emissions
standards
and
compliance
schedules
in
state
plans
required
to
be
submitted
to
the
Administrator.
70
Fed.
Reg.
at
28649­
52.
While
section
60.24(
h)(
3)
mentions
annual
electrical
generating
10
42
U.
S.
C.
§
7607(
d)(
7)(
B).
11
NRDC
et
al.,
Petition
for
Reconsideration,
OAR­
2002­
0056,
at
24­
32
(
May
31,
2005).
13
unit
(
EGU)
mercury
budgets,
and
contains
a
table
indicating
the
two
phase
amounts
in
tons
for
each
state
under
those
budgets,
there
is
no
clear,
specific
and
enforceable
legal
obligation
that
states
achieve
those
mercury
budgets
solely
as
a
result
of
emissions
reductions
from
EGUs.
The
title
to
the
table
in
section
60.24(
h)(
3)
is
not
sufficient
to
accomplish
that
result
­­
presumably
intended
by
EPA
­­
as
a
legal
matter.
Indeed,
it
is
noteworthy
that
in
all
the
provisions
of
section
60.24(
h)
there
is
no
direct
legal
requirement
for
existing
EGUs
to
achieve
any
mercury
reductions.
By
contrast,
all
EGUs
must
comply
with
the
monitoring,
recordkeeping
and
reporting
requirements
of
part
75
with
regard
to
mercury
mass
emissions.
See
40
CFR
§
60.24(
h)(
4).
And
new
EGUs
are
mentioned
in
the
context
of
notification
requirements
to
the
Administrator
concerning
mercury
allocations.
Id.
§
60.24(
h)(
6)(
ii)(
C)
&
(
D).
These
provisions,
however,
make
it
all
the
more
remarkable
that
the
Final
Rule
is
so
poorly
drafted
in
failing
to
impose
obligations
upon
existing
EGUs
in
each
state
to
contribute
any
mercury
reductions
to
each
state's
annual
mercury
budget.
EPA
must
reconsider
the
Final
Rule
in
order
to
correct
this
deficiency.

CONCLUSION
For
the
foregoing
reasons,
EPA
must
promptly
grant
reconsideration
of
its
final
standards
of
performance
for
new
and
existing
electric
utility
steam
generating
units.

Respectfully
submitted,

___________________
Jon
P.
Devine,
Jr.
14
John
D.
Walke
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
July
18,
2005
