Response to Comments 57 - 60: The EPA disagrees with the commenters' assertion that all Cr was considered to be hexavalent. As discussed in "Methods to Develop Inhalation Cancer Risk Estimates for Cr and Ni Compounds," existing test data for utility and industrial boilers indicate that hexavalent Cr is, on average, 12% of total Cr from coal-fired boilers. This document underwent peer review by three external reviewers, and all three reviewers considered the EPA's use of the values to be reasonable given the limited data available for Cr speciation profiling. The EPRI inhalation study for coal-fired boilers also used 12% value.
The EPA also disagrees that units were assumed to operate 100% of the time. The dispersion modeling performed for the case study facilities used hourly heat input as a temporalization factor for estimating hourly emissions, and in some cases hourly heat inputs (and emissions) were zero or very low. The commenter provided no data or information to support their claim that the dispersion modeling the EPA used is biased towards overestimating downwind impacts.
The EPA disagrees with the commenters' assertion that "real exposure concentrations for all people within a census block" must be considered because it runs counter to the long-standing approach that the EPA took to estimate the maximum individual risk, or MIR. The MIR is defined by the EPA's Benzene NESHAP regulation of 1989  and codified by CAA 112(f) as the lifetime risk for a person located at the site of maximum exposure 24 hours a day, 365 days a year for 70 years (e.g., census block centroids). The MIR is the metric associated with the determination of whether or not a source category may be delisted from regulatory consideration under CAA section 112 (112(c)(9)). The MIR is the risk metric used to characterize the inhalation cancer risks associated with the case study facilities. The EPA used the annual average ambient air concentration of each HAP at each census block centroid as a surrogate for the lifetime inhalation exposure concentration of all the people who reside in the census block. The EPA used this approach to estimate MIR values in all of its risk assessments to support risk-based rulemakings under CAA section 112 of the CAA to date.
5. Acid gas risk.
Commenters: 17870, 17621, 17775, 17627, 17702, 18014, 17723, 17383, 17772, 18023
Comment 61: Commenter 17870 states that the comparison of coal- and oil-fired EGU emissions from the EPA's Emissions Overview memorandum to the Toxics Rule docket ` compared 2005 EGU acid gas emissions to 2005 total non-EGU acid gas emissions, showing the percent of total national emissions attributed to EGUs for HCN, HCI, and HF to be 8%, 82%, and 62%, respectively. The commenter notes that Table 3 of reference 34 also shows that the percentages of total 2010 EGU emissions attributed to oil-fired EGUs for the same acid gases are only 1.4%, 0.3%, and 0.2%, respectively. Acid gas emissions from oil-fired EGUs are not of the magnitude that triggered the EPA's decision to regulate EGUs in general, raising the question of whether reduction (or even total elimination) of acid gas emissions from oil-fired EGUs could have any significant effect on the EPA's goals of reducing non-cancer health risk or acidification of sensitive ecosystems in the U.S.
Comment 62: Commenter 17870 states that requiring oil-fired units to install controls for acid gases would cost a substantial amount without a demonstrable environmental benefit. A comparison of HCl "actual" emissions between individual coal and oil EGUs was made based on data from Group 1 provided in the EPA's case study risk analysis. However, generation capacity of the various facilities in Group 1 ranged from a low of 28 MW to a high of 760 MW. To reduce this generation capacity bias, only facilities with generation capacity >300 MW were used for this comparison. Table 2 from the commenter lists all Group 1 facilities with >300 MW total generation capacity together with the HCl "actual" annual emissions copied from the EPA's case study risk analysis. From Table 2, the mean HCI emissions from 11 coal-fired units is 145 +-82 TPY while the mean from 7 oil-fired units is 0.25 +-0.5 TPY, or only 0.17% of the average coal-fired EGU. (It should be noted that, although one of the criteria for Group 1 facility selection was to be without installed emissions controls, SCE&G unit 3 (HCl emissions of 4.8 TPY) had a baghouse installed in 1999 and a test scrubber in 2002. Without that one data point, the percent of oil over coal HCI emissions would be even less.)
Comment 63: Commenter 17870 states that the EPA recognized that the acid gases emitted by EGUs have not been characterized as carcinogens and therefore the EPA correctly focuses on the non-cancer risk assessment guidelines.
Comment 64: Commenter 17870 states that the EPA concluded that HAP emission at any case study facility selected by the EPA exceeded its threshold of concern. In addition, the HQs for all HAP that affect a common target organ system were summed to obtain the target-organ-specific hazard index hazard index (TOSHI) for that Target Organ System, or TOSHI. All facilities examined had TOSHI values less than one. Additionally the commenter notes that the maximum chronic impacts of HCl emissions were all less than 10% of its chronic RfC. Despite using the EPA's risk assessment guidance and finding that the emissions of acid gases in general from U.S. do not exceed established threshold levels of concern, the EPA still concluded it was appropriate to regulate acid gas HAP.
Comment 65: Commenter 17627 states that the EPA lacks information on peak short-term emissions of HCl from U.S. EGUs. According to the commenter, the EPA states "chronic exposure to concentrations at or below the RfC is not expected to cause chronic respiratory effects and little research has been conducted on its carcinogenicity but the one occupational study of which EPA is aware found no evidence of carcinogenicity."
Comment 66: Commenter 18014 states that the EPA did not identify exceedances of any HCl, HF or HCN health-based standards as part of the health risk studies documented in the Utility HAP Report that the EPA prepared for Congress in 1998. At atmospheric concentrations, the acid gas HAP concentrations from U.S. EGUs do not pose meaningful health risks. While the mass of HCl may seem relatively large, the actual health impacts of these emissions are not significant.
Comment 67: Commenter 18014 states that long-term compliance averaging is consistent with the fact there is no short-term exposure concern. According to the commenter, if the emissions from a source are a little higher one month due to control upset but are then offset by lower emissions during the next month(s), the health impact would be essentially identical to a source with no "ups and downs" in the monthly emissions but with the same annual emissions.
Comment 68: Commenter 17723 states that the regulation of acid gases is not supported and must be withdrawn. The commenter explains that the EPA's RfDs are established at levels known to exhibit no toxic effect, with an adequate margin of safety. Yet the maximal exposures of HCl are 90% below the RfD, with HF and sulfuric acid being even lower. The commenter points out that this level of exposure satisfies neither the "necessary" nor "appropriate" stricture imposed by Congress to address Public Health concerns. The commenter questions the EPA suggestion that there may be an unknown synergistic effect between these three acid gases, since 10 years of study into such an effect has not documented these synergies or proposed a mechanism by which they might exist.
Commenter 69: Commenters 17383 and 17772 state that the EPA did not identify any study or rational basis to demonstrate health concerns associated with acid gases from U.S. EGUs. The scant data that does exist on non-Hg HAP metals has been extrapolated from a handful of tested facilities using clearly erroneous assumptions.
Comment 70: Commenter 18023 states that the preamble and the health studies referenced in it do not provide any compelling evidence of a health concern arising from acid gas emissions from oil-fired units. Rather, the EPA's entire discussion of the possible health concerns associated with the emissions from oil-fired units focuses solely on Ni emissions, and the EPA admits that significant uncertainty remains as to whether those emissions present a health concern as well. Ni emission from oil-fired EGUs contributed most to the potential cancer-related inhalation risks, but those risks were not high. According to the commenter, the non-cancer risk assessment due to inhalation exposure indicated exposures were well below the reference levels.
Comment 71: Commenter 17702 states that the EPA should not expand the proposed utility air toxics rule beyond Hg and Ni since in the preamble for the proposed rule, the EPA provided no data as to any health risks associated with non-Hg metal HAP and acid gases related to fossil fuel-fired EGUs. Regulating these emissions would serve no purpose and would add cost without commensurate health benefits. In addition, the EPA has not shown that the regulation of HCl and other air toxics is necessary and appropriate.
Response to Comments 61 - 71: We do not agree with commenters' implication that Congress intended EPA to regulate only those HAP emissions from U.S. EGUs for which an appropriate and necessary finding is made, and commenters have cited no provision of the statute that states a contrary position. The EPA concluded that we must find it "appropriate" to regulate EGUs under CAA section 112 if we determine that a single HAP emitted from EGUs poses a hazard to public health or the environment. If we also find that regulation is necessary, the agency is authorized to list EGUs pursuant to CAA section 112(c) because listing is the logical first step in regulating source categories that satisfy the statutory criteria for listing under the statutory framework of CAA section 112. See New Jersey, 517 F.3d at 582 (stating that "[s]ection 112(n)(1) governs how the Administrator decides whether to list EGUs..."). As we noted in the preamble to the proposed rule, D.C. Circuit precedent requires the Agency to regulate all HAP from major sources of HAP emissions once a source category is added to the list of categories under CAA section 112(c). National Lime Ass'n v. EPA, 233 F.3d 625, 633 (D.C. Cir. 2000). 76 FR 24989.  The EPA discusses its concerns with HCl and other acid gas HAP emissions from EGUs in the preamble to the proposed rule, and discusses its conclusions on establishing section 112(d) standards for acid gas HAP in section 1A of this RTC.
6. EPRI's Inhalation Risk Analysis.
Commenters: 17621, 17820, 17383, 17689, 17877, 17885, 17656, 17775, 17681, 17774, 17716, 17723
Comment 72: Commenters 17621 and 17820 state that a tiered inhalation risk assessment performed by EPRI did not identify significant health risks (cancer or non-cancer) among U.S. coal-fired power plants (as they existed in 2007). Because the EPA's results differ from the EPRI results, the commenters recommend that the EPA re-evaluate its assessment and undertake a Tier 3 risk assessment for any facility of concern.
Comment 73: Several commenters (17383, 17689, 17877, 17885) state that, for non-Hg HAP, the EPA produced one study on chronic inhalation risk assessment that identified three sites with cancer risks greater that one in one million for hexavalent Cr. According to the commenters, the study was authored by EPA staff and has not been peer reviewed.
Comment 74: Commenter 17621 provided a summary of a comprehensive evaluation of HAP emissions and potential inhalation risks attributable to those emissions from coal-fired electric utilities, based on updated sector-wide data for all units with capacity greater than 25 MW. The 2009 EPRI report used updated correlations, HAP-specific emission factors, plant configuration parameters, and fuel consumption data (including blended coal composition data) were used to estimate annual emissions (mass/year basis) for each power plant unit. These annual emissions estimates (e.g., lb/TBtu in 2007) served as specific input for the tiered inhalation health risk assessment conducted by EPRI and AECOM in 2008 - 2009. EPRI and AECOM followed guidance from the EPA's Office of Air Quality Planning and Standards (OAQPS) in designing the study's tiered approach, based primarily on guidelines published in the EPA's Air Toxics Risk Assessment Reference Library (EPA, 2004) with additional input from OAQPS staff. In summary, the tiered approach evaluated chronic non-cancer, acute non-cancer, and cancer risk for a comprehensive group of HAP in the following three scenarios:
Tier 1: Screening level inhalation risk assessment on all 470 coal-fired U.S. generating facilities with a total of 825 stacks (base year 2007) using EPA's SCREEN3 model which is based on ISCST3 dispersion algorithms and applies a generic set of meteorological conditions.
 Tier 2: Inhalation risk assessment using EPA Human Exposure Model (HEM3-AERMOD) for a subset of 198 power plants identified as highest risk in Tier 1.
According to the commenter, the summary results for the 470 individual coal-fired power plants included the following:
   *    Comparison of the overall Tier 1 modeling to the more-refined Tier 2 modeling indicated that Tier 2 risk was substantially lower -- 10% of corresponding Tier 1 risk. Even at the 95% percentile level, Tier 2 risk was only 24.1% of the corresponding Tier 1 risk.
   *    No individual power plant assessment resulted in a modeled health risk exceeding EPA recommended thresholds: non-cancer hazard quotient (HQ) > 1, or cancer risk greater than 1 x 10[-6] (1 in a million).
   *    The 10 facilities with the highest cancer risk had values ranging from 7.14 x 10[-7] to 9.78 x 10[-7], with all values below the 1 x 10[-6] threshold.
   *    The 10 facilities with the highest chronic non-cancer risk had values ranging from HQ 0.284 to 0.668, with all values below the HQ > 1 threshold.
   *    The 10 facilities with the highest acute non-cancer risk had values ranging from HQ 0.119 to 0.295, with all below the HQ > 1 threshold.
   *    The primary chemical drivers of cancer risk were arsenic (average of 76%) and hexavalent Cr (17%), with minor contributions from other trace metals (7%).
   *    The primary chemical drivers of the chronic non-cancer risk were chlorine (average of 97%) and hydrogen chloride (1%).
   *    The primary chemical drivers of the acute non-cancer risk were arsenic (average of 52%) and acrolein (9%), with additional contributions from hydrogen chloride, chlorine, and hydrogen fluoride.
Comment 75: Commenter 17777 states that EPRI's analysis shows cancer risks below the one in a million cancer risk threshold. Numerous conservative assumptions in EPRI's modeling compel the conclusion that actual risks are far lower than those calculated, including:
   *    The model plant was selected from the highest group of emitters in the U.S. fleet.
   *    Estimated emission rates are likely modeled high and actual measured HAP emissions would likely result in lower risks.
   *    Deposition modeling introduces numerous uncertainties that could result in over-prediction of risks.
   *    The site selected for EPRI's case study is likely as close to a worst case scenario as is possible given the numerous variables associated with ingestion pathway risks.
   *    Estimation of chemical intake from consumption is highly conservative, especially for fish consumption, which is the primary driver of risk for the Adult Angler receptor. A more representative ingestion rate would reduce angler risk by more than a factor of two.
   *    Lifetime exposure assumptions are conservative and generally represent the upper end of a wide range of potential exposure values that are not necessarily representative of exposures for people living in a real world location.
   *    The models relied upon contain conservative assumptions to account for uncertainties associated with extrapolating from high doses used in laboratory studies to anticipated human health effects from low doses experienced in the environment.
Comment 76: Commenter 17621, in addition to the Tier 1 and 2 study, also provided a risk evaluation for facilities having stacks located within 50 km of one another: Two-level analysis of 100 facility groups (consisting of two to 10 power plants) with the potential for overlapping plumes. Summary results for the two-level assessment of the 100 facility groups with potentially overlapping plumes included the following:
   *    The screening assessment, using simple addition of component facility maximum risk, identified 22 facility groups for refined analysis.
   *    Further analysis of these 22 facility groups -- based on refined HEM3-AERMOD modeling with risks summed across the group on a receptor-by-receptor basis -- identified two groups of facilities with potentially overlapping plume domains that could result in risks above the cancer threshold.
   *    The refined, combined cancer risk for the 22 facility groups ranged from 3.95 x 10[-7] to 1.21 x 10[-6].
   *    The two highest facility groups marginally approached the 1 x 10[-6] cancer risk threshold -- four facilities on the Illinois/Indiana border at 1.03 x 10[-6] and five facilities on the Ohio/Pennsylvania border at 1.21 x 10[-6].
In summary, a comprehensive tiered inhalation risk assessment using EPA-prescribed methods with improved emission factors, fuel data, and confirmed stack parameters did not identify significant health risks (cancer or non-cancer) among U.S. coal-fired power plants (as they existed in 2007). These results contrast with those presented by the EPA for its non-Hg case studies on 16 (15 coal-fired) power plants. As further described in EPRI Comments, CAA section 3.6, several issues appear to underlie these differences, indicating the need for the EPA to re-evaluate its assessment and to undertake a Tier 3 risk assessment for any facility of concern. The commenter states that in a Tier 3 multi-pathway risk assessment using EPA-prescribed methods along with improved data and analytical functionality, EPRI found no significant health or ecological risks for aquatic or terrestrial receptors from Hg and arsenic emissions at a modeled coal-fired generating facility. EPRI, 2011. --Multi-Pathway Human Health and Ecological Risk Assessment for a Model Coal-Fired Power Plant. AECOM Report to Electric Power Research Institute (EPRI), Palo Alto, CA. August. Appendix J presents a summary of this multi-pathway risk study.
Comment 77: Commenter 17621 states that EPRI's screening risk assessment finds lower risk numbers and recommends the EPA re-analyze its Tier 2 assessment. According to the commenter, EPRI conducted a Tier 2 screening risk assessment that included, among others, the case study facilities reported by the EPA as at or above one in a million risk (EPRI, 2009; Strum et al., 2011). EPRI found that found that all coal-fired facilities had maximum individual lifetime inhalation cancer risks below one in one million. The commenter notes that there are differences in the way modeling was applied that contribute to differences between the modeled risks in the EPA study and the EPRI study. For example, these differences relate to: 1) Meteorological data: EPRI 2009 and 2011 modeling use 1 year (mostly 1991) of data from EPA HEM3-AERMOD website, while the EPA 2011 modeling selected 5 years of data and, in some cases, used different sites. 2) For the Muskogee facility specifically, the EPA used Muskogee Davis Field for surface data while the HEM3 data are from Oklahoma City. However, both surface data and HEM3 data for the James River facility are from Springfield Regional Airport, and 3) Emissions variability: The EPRI 2009 study used a constant annualized emission rate, while the EPA 2011 study applied an hourly utilization factor for each EGU.
Comment 78: Commenter 17621 states that in EPRI's screening risk assessment there were differences in the way cancer risk was calculated. The EPA took the average risk over 5 years, rather than over 1 year. According to the commenter, experience with modeling indicates that year-to-year variations in maximum annual average concentrations at specific receptor can differ by a factor of about 1.5, and inter-site differences in meteorology can easily results in difference of more than a factor of 2.0. Thus, the differences between EPRI and EPA modeled risk results are within the expected range of variability given the differences in modeling methods and meteorological data. These differences underscore the cancer risk models' high sensitivity to input data selection.
Comment 79: Commenter 17656 states that for non-Hg metal emissions, and for gas and dioxin emissions, the EPA has not yet completed an in-depth study, complete with detailed risk analysis, to identify the mechanisms of human exposure. The EPA cannot assume the same results and risks that occur with non-Hg metals as the agency determined for Hg. According to the commenter, the EPA must complete a comparable and separate national-scale risk assessment for non-Hg metals in order to determine appropriateness of proposing emissions standards for non-Hg metals.
Comment 80: Commenter 17775 states that since the 1998 Utility Study, approximately 149 scrubbers and 222 SCRs were installed at EGUs. The commenter would have expected that the risk posed by EGUs would have decreased since 1998. However, the 16-Unit Study found three facilities with maximum cancer risks, driven primarily by Cr(VI), of greater than one in one million with the highest risk being 2.7 times higher than the highest risk in the 1998 Utility Study. The EPA also modeled the inhalation risks associated with non-carcinogen HAP emissions of the 15 coal-fired facilities and found that the highest target-organ-specific hazard index (TOSHI) for any coal-fired facility was 0.05, or 20 times below the RfC. According to the commenter, a comparison of these results to the Utility Study results should have made the EPA suspicious of the cancer risk calculated in the 16-Unit Study.
Comment 81: Commenter 17681 states that the EPA study is based on misinformation and overestimates assumptions. The commenter relies on the report by Dr. Willie Soon (June 2011) to conclude that the EPA has no data demonstrating health impacts from EGU emissions of non-Hg HAP, or the benefit from reducing such emissions.
Comment 82: Commenter 17774 states that new information on health risks does not add any new credible evidence that would support regulating non-Hg HAP. According to the commenter, the health information focuses on high does effects that are not consistent with exposure from coal-fired EGUs.
Response to Comments 72 - 82: The commenters are incorrect in their assertion that the EPA's case studies were performed with less rigor than the EPRI analysis. The EPRI analysis used a tiered approach to risk assessment, beginning with Tier 1 using EPA's SCREEN3 dispersion model on all 470 coal-fired power plants in the U.S., and following with Tier 2 with EPA's Human Exposure Model (which uses the AERMOD dispersion model) for plants with higher risks from the Tier 1 modeling. Although tiered risk assessment is an appropriate approach, the Tier 2 modeling could have been more refined. For example, more meteorological data could have been used and building downwash could have been considered. The EPRI analysis ostensibly concluded that the Tier 2 modeling with HEM was conservative, and that because the modeled risks did not exceed certain thresholds, no further refinement was necessary. However, such refinements could result in higher modeled risks than those from the commenter's Tier 2 modeling.
The EPA's dispersion modeling of the case study facilities was actually performed with a greater degree of refinement than the EPRI analysis, and was consistent with EPA's Guideline on Air Quality Models. In contrast to the approach used in the EPRI analysis, the EPA used:
   1)    5 years of recent meteorological data from the weather station nearest to each facility, rather than 1 year of meteorological data. This is more representative of long-term (i.e., lifetime) exposures and risks.
   2)    Temporally-varying emissions based on continuous emissions monitoring data, rather than assuming a constant emission rate for each facility throughout the entire simulation.
   3)    Building downwash, where appropriate.
   4)    The latest version of AERMOD [version 11103]
The EPA's assessment of the case study facilities for the proposed rule concluded that three coal-fired facilities and one oil-fired facility had estimated lifetime cancer risks greater than one in a million. For the final rule, revisions were made to the case studies based on comments received, and the results indicate that five coal-fired facilities and one oil-fired facility had estimated lifetime cancer risks greater than one in a million.
Regarding peer review, the risk assessment methodology for the case studies was consistent with the method that the EPA uses for assessments performed for Risk and Technology Review (RTR) rulemakings, which underwent peer review by the SAB in 2009. The SAB issued its peer review report in May 2010 (U.S. EPA-SAB, 2010). The report endorsed the risk assessment methodologies used in the program, and made a number of technical recommendations for the EPA to consider as the RTR program evolves. Also, in July 2011, the EPA completed a letter peer review of the methods used to develop inhalation cancer risk estimates for Cr and Ni compounds.
1H - Local-scale Hg Case Study
Commenters: 17777
Comment 1: Commenter 17777 states that the EPA's own analyses are consistent with the results of EPRI's analysis. The EPA's third risk assessment involved two site-specific case studies conducted to assess the potential near-field exposures and health risks associated with Hg emissions from individual EGUs as a result of consuming fish caught in nearby lakes. The EPA concluded that for these two facilities, risks associated with local Hg exposures may be relatively low.
Response to Comment 1: The EPA agrees that the two case studies provide some important information about the possible local impacts of Hg, but disagrees with the commenter's allegation that the EPA attempted to "downplay" the results. On the contrary, the EPA chose to interpret the results and describe the limitations of the assessment in an effort to be as transparent as possible about what the assessment might and might not mean. The EPA agrees that the two site-specific case studies conducted to assess the potential near-field exposures and health risks associated with Hg emissions from U.S. EGUs did not show particularly high local Hg exposures or risks. The EPA notes that these case studies are for a very limited subset of EGUs, and may therefore not represent the full range of possible results for all U.S. EGUs. Further, the commenter's claim that the EPA did not evaluate longer-range Hg impacts is misplaced. While it is true that the EPA did not evaluate long-range Hg impacts in the two case studies, the EPA did conduct an extensive evaluation of long-range cumulative impacts of Hg emissions from multiple EGUs in the national-scale Hg assessment, the ultimate result of which was the determination that Hg emissions from U.S. EGUs could indeed pose significant health risks.

1I - Ecosystem Impacts from HAP
Commenters: 17621, 17775, 17696, 17855, 19536/19537/19538
Comment 1: Commenters 17696 and 17855 state that the EPA has not justified regulating acid gases based on hazards to public health as required by the statute. Instead the EPA supported is decision to regulate EGU acid gas emissions based on concern about the potential of such emissions to aggravate ecosystem acidification, but the EPA expressly acknowledges that direct quantification of ecosystem acidification impacts is an uncertain process. Moreover, HCl's contribution to acidification of water bodies is de minimis, estimated to be only about one percent by the technical community.
Response to Comment 1: While the EPA agrees that quantification of acidification effects has remaining uncertainty, the science and methodology has progressed in recent years. Based on recent peer reviewed research including Evans et al. (2011), acid gases can significantly contribute to acidification. The EPA published a comprehensive risk assessment of acidification effects of nitrogen and sulfur deposition (U.S. EPA, 2009) and a Policy Assessment (U.S. EPA, 2011). Given the extent and importance of the sensitive ecosystems evaluated in the review of nitrogen and sulfur deposition any substance that contributes to further acidification must be considered to be affecting the public welfare.
Comment 2: Commenter 17855 states that in addition to looking beyond the statutory limitation to consider public health, the EPA's environmental impacts analysis includes relies on "recent research" which includes a paper published in the journal Environmental Science and Technology on February 2, 2011. The commenter notes that from the date of publication is such that it is hard to believe that the agency had sufficient time to obtain this paper, digest its results, and determine that it provides a sufficient basis to regulate HCl in advance of the date that the Utility MACT was submitted to OMB for regulatory review (February 19, 2011). The commenter also questions the relevancy potential impacts of HCl deposition on sensitive ecosystems (focusing on peat bogs) in the United Kingdom.
Response to Comment 2: The EPA disagrees that the peer reviewed study mentioned by commenter by Evans et al. (2011) is not relevant to U.S. ecosystems. The paper presents evidence that shows 1) that HCl is highly mobile in the environment, transferring acidity easily through soils and water, 2) that HCl can transport longer distances than previously thought (given its presence in remote ecosystems, and 3) that it can be a larger driver of acidification previously thought. The fact that this study took place in the U.K. is itself irrelevant. The chemical interactions of HCl in water are the same the world over and sensitive ecosystems exist in the U.S. as well as in Europe as illustrated in the ecological risk assessment for NOX and SOX (U.S. EPA, 2009). Furthermore, the commenter is factually incorrect that the EPA is justifying that it is appropriate and necessary to regulate HAP emissions from U.S. EGUs based on this one study.
Comment 3: Several commenters (19536, 19537, 19538) state that several new studies further support the EPA's 2000 Finding. According to the commenter, several of these newer studies are included in a special issue published by the journal Ecotoxicology in 2008 devoted to the effects of MeHg on wildlife. Although the EPA has not quantified the potential impacts of HAP from U.S. EGUs on the environment, a qualitative assessment conducted by the agency reviewed existing literature reporting effects of Hg on fish and wildlife and acid gas contribution to ecosystem acidification. The potential adverse environmental effects associated with HAP are well documented and reaffirm the EPA's determination that it is appropriate and necessary to regulate HAP emissions from U.S. EGUs.
Response to Comment 3: The EPA agrees that Hg exposure in wildlife is responsible for various adverse health effects in many species across the U.S. and recognizes that research is ongoing in this area. As discussed in the Appropriate and Necessary Finding, the EPA agrees that there are potential environmental risks from exposures of ecosystems through Hg and non-Hg HAP deposition. The benefits to ecological health remain unquantified in the assessments for this rule due to data and methodological limitations. The EPA cited relevant articles from the special edition of Ecotoxicology mentioned by the commenter in the ecosystem effects CAA section on Chapter 5 of the RIA for this rule, which is available in the docket.
The EPA agrees that acidification poses a significant risk of adverse effects to fish and wildlife in aquatic and terrestrial ecosystems (U.S. EPA, 2009). Based on recent peer reviewed research including Evans et al. (2011), acid gases can significantly contribute to acidification and the EPA agrees that those acid gases pose a risk for acidification of ecosystems. However, due to data and methodological limitations, the EPA was not able to quantify those risks and benefits for this rule.
Comment 4: Commenters 17621 and 17775 state that the EPA's use of the U.K. study results is inappropriate to apply in the U.S. because U.S. coals differ from U.K. coals in chloride content (U.S. coals have much lower chloride concentrations) and U.S. soils differ from U.K. soils (U.S. soils are limited in areas containing histosols). Further, the study claims that chloride is not taken up by plants and soils; however, other researchers are finding that there is some retention that would lessen chloride impacts even further. Lastly, HCl emissions are negligible compared to other primary emissions (such as SO2) that can lead to potential acidification of ecosystems. According to the commenters, anthropogenic emissions of HCl in the U.S. are negligible compared to emissions of SOX, NOX and NHX. Total HCl emissions have been consistently less than 0.7% of the sum of SOX, NOX and NHX emissions on a molar equivalent basis. (EPRI Comments § 3.16; using data from the NEI and the Toxics Release Inventory). In addition, NADP [National Atmospheric Deposition Program] monitors have showed a clear reduction in sulfate deposition but no comparable HCl reductions, even though power plant emissions of SOX and HCl have been reduced by similar amounts from 1998 to 2009 - 56%. According to the commenter, HCl is a negligible contributor to environmental acidification in the U.S.
Response to Comment 4: The EPA disagrees that the peer reviewed study mentioned by commenter by Evans et al. (2011) is not relevant to U.S. ecosystems. The paper presents evidence that shows 1) that HCl is highly mobile in the environment, transferring acidity easily through soils and water, 2) that HCl can transport longer distances than previously thought (given its presence in remote ecosystems, and 3) that it can be a larger driver of acidification previously thought. The fact that this study took place in the U.K. is itself irrelevant. The chemical interactions of HCl in water are the same the world over and sensitive ecosystems exist in the U.S. as well as in Europe as illustrated in the ecological risk assessment for NOX and SOX (U.S. EPA, 2009). Furthermore, the commenter is factually incorrect that the EPA is justifying that it is appropriate and necessary to regulate HAP emissions from U.S. EGUs based on this one study.

1J - Legal: Request for Extension of Comment Period
Commenters: 10167, 10569, 10750, 10821, 10942, 10943, 10987, 12996, 13178, 13529, 13827, 14017, 14069, 14070, 14368, 16402, 16403, 16404, 16405, 16626, 16627, 16822, 16857, 16861, 16872, 16873, 17003, 17123, 17174, 17254, 17627, 17682, 17689, 17702, 17712, 17743, 17747, 17761, 17774, 17775, 17776, 17777, 17790, 17807, 17817, 17856, 17871, 17885, 17904, 17912, 18018, 18428, 18484, 18489, 6543, 6584
1. Request for extension.
Comment 1: Several commenters (10167, 10569, 10942, 12996, 13529, 14017, 14069, 14070, 16402, 16403, 16405, 16626, 16627, 16822, 16857, 16861, 16872, 16873, 17123, 18489, 6584) request an extension of 60 days.
Comment 2: Commenter 10750 requests the comment period be extended for an additional 60 days if the proposed rule is not withdrawn.
Comment 3: Commenter 13178 requests an extension of the comment period.
Comment 4: Commenter 13827 requests an extension to and including September 5, 2011.
Comment 5: Commenters 14368 and 17003 request an extension of 90 days.
Comment 6: Commenters 12996 and 14017 request an extension because data supporting the rulemaking was late in being released.
Comment 7: Commenter 17254 requests that the agency extend the comment period to 90 or 120 days.
Comment 8: Commenters (17743, 17747, 17912) request an extension of 120 days from the date of publication.
2. Overlap with other regulatory activities.
Comment 9: Several commenters (10942, 12996, 10750, 17003, 6584) reference the proposed rule's overlap with other recent or imminent rulemaking activities as a reason to grant an extension.
Comment 10: Commenter 10750 cites the overlap between the proposed HAP Rule and the 316(b) proposal as causing a strain on resources.
Comment 11: Commenters 10942 and 17002 emphasize the need to evaluate the cumulative impact of the proposed rule in conjunction with other rules under consideration.
Comment 12: Commenter 17123 states the proposed rule must be considered in conjunction with the Clean Air Transport Rule (CATR) and the Coal Combustion Residuals (CCR) Rule.
Comment 13: Commenter 6584 states that limited resources are available as they are implementing rules recently promulgated in March 2011.
3. Calls to reconsider or re-propose rule.
Comment 14: Commenter 17123 suggests the agency reconsider the regulation.
Comment 15: Commenter 10821 requests that the agency withdraw and re-propose the rule or, as an alternative, extend the comment period for 90 days.
Comment 16: Several commenters (10943, 6543, 17871) request that the agency withdraw the proposed rule in order to correct errors in the rule. If this can be accomplished and all information made available within the next 60 days, these commenters request an additional 60-day extension.
Comment 17: Commenters 10943 and 6543 state that the errors in the proposal and lack of certain information cause it to fall short of the requirements set forth in section 307(d)(3) of the CAA with respect to what is required of the agency for issuing a proposed rule.
Comment 18: Commenter 10167 requests that the agency re-propose the rule to provide additional time to facilitate a final rule.
Comment 19: Commenter 17003 suggests re-proposing the rule as an alternative to an extension.
Comment 20: Commenter 10750 cites pervasive and critical errors in their request for an extension.
Comment 21: Commenters 17123 and 17776 mention significant technical errors as a factor in the current comment period being insufficiently long.
Comment 22: Multiple commenters (10167, 10569, 14368, 16626, 16857, 18428) cite an error in the EPA's analysis of Hg data as being potentially significant and warranting additional time.
Comment 23: Several commenters (10167, 10569, 10987, 16857) suggest that the error in data analysis may warrant revision of the proposal.
Comment 24: Commenter 14368 requests that the agency provide a scientifically sound final rule that corrects this error before moving forward.
Comment 25: Commenters 10943 and 6543 cite significant errors in their requests for an extension and/or a withdrawal of the proposal, including a widespread error the agency used to convert historical emissions data to common emission data which lead to measurements being incorrect by a factor of 1000. Commenters state that this error affects the new source MACT limit for Hg and the Hg MACT floor analysis for existing units, claiming that more than half the units identified as "best performing" have actual emissions 1000 times higher than the agency used in the MACT floor analysis. Commenters add that the conversion error draws into question the EPA's decision to base its Hg MACT floor calculations on the top 12% of all units for which the EPA has data instead of the top 12% of all units in the category. Commenters assert that parties commenting on the proposed MACT limits have no way of knowing what standards would have been proposed had the emissions information been used correctly.
Comment 26: Commenter 10987 suggests that the agency has underestimated the impacts of the potential errors including uncovered discrepancies in determination of the Hg limit which result in a 20-fold decrease in stringency of the MACT standard for a major subcategory of new units. Commenter asserts that these inconsistencies must first be corrected to allow meaningful comment.
Comment 27: Commenter 16626 suggests the public should have the opportunity to examine and comment on the revised Hg calculations.
Comment 28: Commenter 17003 references an error, cited by the Utility Air Regulatory Group (UARG), in which actual Hg emissions from units the EPA used to set new and existing unit floors are 1000 times higher than the emissions identified in the dataset for those units.
Comment 29: Commenter 17682 specifically references the conversion error in the agency's calculation of Hg emissions as warranting extending the schedule for developing and implementing the proposed rule.
Comment 30: Commenter 17871 requests that the agency withdraw the rule and re-propose it because critical parts of the proposed rule are based upon numerous and significant errors in the agency's technical analysis of HAP emissions data, including a widespread error involving the agency's proposed new and existing source MACT limits for Hg.
Comment 31: Commenter 18428 states that important errors in data interpretation and manipulation have been discovered in addition to the well-known error that occurred in the agency's calculation of the MACT floor for Hg from existing coal-fired EGUs.
Comment 32: Commenter 18484 states that the conversion error in the EPA's calculation of Hg emissions is proof that short cuts were taken as a result of the rushed schedule for developing and implementing the proposed rule.
Comment 33: Commenters 10943 and 6543 state that there are heat rate errors, transcription errors, data assignment errors and a lack of outlier quality control in spreadsheets used by the agency to calculate MACT floors.
Comment 34: Several commenters (14017, 14069, 16402) state that numerous potential errors that significantly affect the emissions floor calculations and standards have been uncovered which will warrant an extension in order to correct and translate into comments.
Comment 35: Several commenters (14017, 14069, 16402) state that the release of revised floor analysis spreadsheets has slowed the review process by requiring reevaluation in light of the corrections.
Comment 36: Commenter 14069 adds a footnote stating the EPA did release a `master' database of the Part III data; however, prior to the release of the ERT files, commenters would have been unable to assess whether the agency properly compiled the data and if the data was properly translated to the spreadsheets, and only those adept at manipulating databases would have been able to identify the data for a particular source and therefore be able to make inquiries about the data quality.
Comment 37: Commenter 16822 cites concerns that there may be significant errors in the agency's analysis of underlying data used to set standards in the rule.
Comment 38: Commenters 17702 and 18018 state that the serious questions as to the data relied upon by the EPA in formulating this rule justifies an extension of 30 days in addition to the 30-day extension already granted.
Comment 39: Commenter 17776 states that even after the correction issued on May 18, 2011, after the start of the comment period, apparent technical errors and uncertainties remain. As an example, the commenter adds that the proposed emissions standards for new liquid oil-fired-units appear to be less stringent than for existing units.
Comment 40: Commenter 17871 states that the proposed Hg standards are wrong and parties have no way of knowing what standards the EPA would have proposed if the emissions information was used correctly; and therefore, the proposal does not comply with the requirements of section 307(d)(3) of the CAA.
4. Magnitude and complexity of proposed rule.
Comment 41: Several commenters (10167, 10569, 10821, 10943, 10987, 13529, 13827, 14069, 14070, 14368, 16402, 16403, 16405, 16626, 16822, 16857, 16861, 16873, 17003, 17123, 17682, 17689, 17702, 17712, 17743, 17747, 17817, 17871, 17885, 17904, 18018, 18428, 6543, 6584) request an extension because the magnitude and complexity of the proposed rule warrants more time to evaluate the information and the proposed rule's potential impacts.
Comment 42: Commenter 10821 states that the effects of the proposed rule on existing facilities will almost certainly be greater than the EPA predicts.
Comment 43: Commenter 16403 states that the impact of the proposed rule will have significant economic and energy impacts on many states and the nation as a whole, and an extension is warranted to allow sufficient time to provide comments.
Comment 44: Several commenters (16403, 16626, 17003) raise the issue of the estimated compliance costs of over $10 billion that are projected to be a result of the proposed rule in their requests for an extension.
Comment 45: Commenter 16626 raises the issue of electricity rates increasing by 3.7% annually in their requests for an extension.
Comment 46: Commenter 16405 states that the issues to be considered in reviewing the proposed rules includes impact on reliability, impact on all classes of customers, and impact on a state's fuel mix and fuel costs.
Comment 47: Commenter 16626 mentions the impacts on the way our country generates and consumes electricity and the economic impacts the new regulation could have.
Comment 48: Commenter 16873 states that the proposed rule will have a disparate impact even within the same state	.
Comment 49: Commenter 17003 requests an extension due to the impact in terms of applicability and compliance costs which requires a comment period sufficient to ensure thorough consideration of the proposed rule's impacts, the EPA's conclusions, and facility compliance options as a basis for developing meaningful input for the EPA on the rules. Commenter further states that due to the economic impact the rules will have, affected parties need to have the opportunity to thoroughly review the proposal and fully raise issues before they must commit to a particular path to compliance and therefore need sufficient time to prepare comments that will fully preserve their ability to challenge the administrative decisions that underlie the rules.
Comment 50: Commenter 17123 mentions the economic impact of the proposed rule and the need to provide time for energy providers to understand the regulations, determine effects on the cost of energy production, rates, and develop mitigations plans.
Comment 51: Multiple commenters (10167, 10569, 10821, 10943, 13529, 16403, 16861, 17003, 17807, 17871, 18428, 6543) cite the proposed rule length of pages as well as a large amount of supporting documentation in their request for an extension.
Comment 52: Commenters 10750 and 18484 state that the time provided to comment is inadequate given the complexity of the proposed rule.
Comment 53: Several commenters (17689, 17712, 17817, 17885) state that the proposal requires analyzing many underlying documents directed at MACT standards, individual HAP health effects, monitoring and compliance obligations, and work practice standards. Commenters add that the comment period is inadequate in light of the complexity of the proposal and the confusion regarding how the agency arrived at many of the regulatory conclusions in the proposal.
Comment 54: Commenter 17871 mentions an extensive new interpretation and justification for the agency's regulatory finding under CAA section 112(n)(l)(A) as adding to the complexity of the proposed rule and being a factor in requiring more time to prepare comments.
Comment 55: Commenter 17856 compares the proposed rule to the Transport/Cross-State rulemaking in technical extent. Commenter adds that the technical extent of the document warrants more time and research to fully review in a meaningful manner.
5. Need for additional data and information.
Comment 56: Several commenters (10167, 10569, 13529, 16857, 17807) request an extension to collect additional information providing critical data to fill key information gaps. This information would help to better understand the proposal's impacts on operations when reviewing and developing comments.
Comment 57: Several commenters (10167, 10569, 13529, 16857, 17807) state that the ICR in 2010 for the purpose of developing the rule did not provide all the information necessary to fully understand the implications of the proposal. Additional information necessary includes data representing full span of operational periods including low loads, startups, and shutdowns.
Comment 58: Several commenters (10167, 10569, 10943, 6543) state in their request for an extension that the agency has not provided key supporting documentation.
Comment 59: Several commenters (10569, 13529, 16857) state that a number of units were not tested in the ICR; therefore, the utilities may not have sufficient information to determine the extent of needed comments.
Comment 60: Several commenters (10167, 10569, 13529) suggest this additional information may reveal the need for revisions to the proposal or further investigation.
Comment 61: Several commenters (10821, 10987, 17627, 17790) reference the continual release of supporting documents in their request for an extension.
Comment 62: Commenter 16857 requests an extension because they have scheduled additional emissions testing which may warrant further investigation.
Comment 63: Commenter 16861 mentions that several technical documents have not yet been released by the agency for public review.
Comment 64: Several commenters (14017, 14069, 16402) state that the agency did not provide details necessary to verify the agency's final emissions calculations until May 26, 2011 which has restricted the remaining time in the comment period for the review of data.
6. Additional time needed for coordination.
Comment 65: Several commenters (10942, 16627, 16861, 16872) request an extension because the impact of the rule will have a varied effect on individual utilities such that they will need more time to coordinate with their regulated community, assess member company comments, and use that information to develop comments on behalf of those they represent.
Comment 66: Several commenters (10942, 16627, 16872) cite NARUC informational sessions occurring in May, June, and July as being useful for their development of comments.
Comment 67: Commenter 6584 states that most coal-fired power plants in North Carolina are in the final stages of being equipped with control technologies in response to a 2002 statute resulting in emission reductions for criteria air pollutants (CAPs) and HAP. Commenter and utilities in the state are still learning what is achievable in optimizing CAP and HAP emission control performance.
7. Other arguments.
Comment 68: Commenter 16861 states that the spirit of the President's new Executive Order justifies a lengthy comment period for a proposal of this magnitude and complexity.
Comment 69: Commenter 16404 requests that the agency reject calls to extend the public comment period and delay the final rule and states that the ruling is a matter of life and death. Commenter states that the comment period of 111 days (from March 16, 2011 to July 5, 2011) and public hearings provide more than enough time to assess the proposal and provide comments.
Comment 70: Commenter 17003 states that the comment period of 2 months is insufficient in contrast to the time it has been in development since the DC Circuit vacatur in February 2009. Further, commenter 17003 requests that their request for a 90-day extension and the agency's response be included in the rulemaking docket for each of the two rules at issue (76 FR 25073 and 76 FR 24976).
Comment 71: Commenter 17790 states that while the 30-day extension was useful, an additional 30 days for public input would allow for better input to be provided by commenters.
Comment 72: Several commenters (17807, 17817, 17904, 18428) state that while an extension has been granted for comment, it is still inadequate.
Comment 73: Commenter 6543 states that it is a member of UARG and supports the UARG's request for re-proposal or extension.
Comment 74: Commenter 10987 cites an unreasonably abbreviated SBREFA process mandate as a reason for an extension.
Comment 75: Commenter 17003 states that sources are conducting the first QA/QC of the data. Commenter adds that the 2010 ICR information so closely preceded the proposal of the rule that the EPA has not had a chance to reconcile that information with proposed standards. Commenter states that the EPA has continued to accept data post proposal and continues to make data available. Commenter adds that the EPA has not yet compiled complete data under the ICR; therefore, it is not possible that the agency has undertaken a meaningful analysis of the 2010 emissions for coal- and oil-fired EGUs.
Comment 76: Commenter 17174 states that the agency should provide appropriate process and time to comment on any significant changes to the proposed rule.
Comment 77: Commenter 17774 agrees with the agency's extension of the comment period but states that the 90-day comment period is the bare minimum needed to review the material. Commenter adds the EPA still needs more time to re-evaluate the agency's flawed data-gathering approach and standard-setting methodology and re-propose rules that comply with the requirements of the CAA.
Comment 78: Commenter 17776 believes that 90 days was insufficient to allow a meaningful opportunity to review and comment on the proposed rule.
Comment 79: Commenter 17871 requires more time in order to conduct review of the ICR data.
Comment 80: Commenter 18428 states that the ambitious schedule for completion of the rulemaking is counter-productive and compares it to the Industrial Boiler MACT which is now being reconsidered.
Comment 81: Commenter 17003 references Environmental Integrity Project v. EPA, 425 F.3d at 992, 996 (D.C. Cir. 2005); Unemployment Compensation Comm'n v. Aragon, 329 U.S. 143, 155(1946); Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 552-54 (1978); Ohio v. EPA, 997 F.2d 1520, 1528-29 (D.C. Cir. 1993); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952); and 1000 Friends of Maryland v. Browner, 265 F,3d 216, 227 (4[th] Cir. 2001) in order to emphasize the importance of the comment period to the affected parties. Commenter adds that the deadline for the comment period does not allow sufficient time to comment on a proposed rule of such complexity and impact, and therefore violates the parties' fundamental constitutional statutory protections. Commenter states that protections are further deprived when comments are rejected as inadequate when the comment period does not allow for sufficient time to fully support the comment.
Comment 82: Commenter 17775 references Small Ref. Lead Phase-Down Task Force v. EPA, 705 F. 2d 506, 519 (D.C. Cir. 1983) and Kennecott Corp. v. EPA, 684 F. 2d 1007, 1118 (D.C. Cir. 1982) in emphasizing the importance of the agency providing documents that explain the agency's data and methodology. Commenter states that the agency has not made much of the factual data and methodology in analyzing the data available at the time the proposal was published. Commenter adds that much of the information made available was presented in such a cursory fashion that it deprives commenters from performing a meaningful evaluation.
Commenter 17775 states that the rushed proposal process has resulted in the agency truncating the assessment of the information supplied in response to the ICR. Commenter adds that errors in the proposal are evidence of this statement.
Commenter 17775 strongly disagrees with the EPA's proposed Hg limit. According to the commenter, the EPA has not resolved discrepancies in the MACT floor calculations or corrected certain errors in the underlying emissions data, and it is very difficult to comment on the substance of the EPA's ("adjusted") proposal, because the MACT floor may very well change once the identified errors are corrected. Commenter strongly asserts that the rule should not be finalized without resolving these discrepancies as it violates CAA section 307(d)(3), specifically the Assistant Administrator's letter addressed to their counsel. Commenter cited Sierra Club v. Costle, 657 F.2d 298, 398 (D.C. Cir. 1981). Congress "intended to provide thorough and careful procedural safeguards . . . [to] insure an effective opportunity for public participation in the rulemaking process."
Commenter 17775 states that the EPA placed the proposed rule documents into the rulemaking docket after May 3, which was too late to allow for meaningful public comment prior to promulgation of the final rule. The RIA and the Mercury TSD were not included in the rulemaking until June 7, 2011 (i.e., less than 30 days before the original comment deadline). Finally, it was only on June 3, 2011 (i.e., 30 days after the proposed rule was published) that the EPA placed in the docket a memorandum setting forth what purports to be "documentation of the ecosystem effects of mercury deposition."
Comment 83: Several Commenters (17681, 17881, 17919, 18831) state that even with a 30-day extension on the comment period, it was insufficient to examine the numerous additions that the EPA has added to the docket, many of which address and correct errors pointed out by EPRI and UARG, as well as additional errors found by the EPA.
Comment 84: Commenters 17638 and 18033 state that the EPA has given insufficient time for public comments on the proposed rule. This has resulted in at least one significant error in setting the MACT standards. Commenter sent a letter to the EPA on May 5, 2011 citing a calculation error in Hg emissions resulting in new and existing MACT floors that were 1000 times higher than the emissions identified in the dataset for those units. The EPA admitted the error and proposed to correct it, but has not done so until the comment period ended.
Comment 85: Commenters 17638 and 17681 disagree with the EPA's claim that the public had 140 days to review the proposal because many critical supporting documents were not available until well after the draft was released.
Response to Comments 1 - 85: On July 1, 2011, the EPA announced an extension to the public comment period (76 FR 38590). The comment period closed on August 4, 2011. Further, we reject the idea that the rule needs to be withdrawn and/or reconsidered before it is even final. The errors in the proposed rule noted by certain commenters are more fully addressed elsewhere in this document but, in any event, were addressed within one month of proposal and the revised limits were available for public comment for over 30 days, a period of time we believe sufficient for the public to review them and provide comment. In total, the public was provide more than 100 days in which to review the proposal and the vast majority of supporting materials. We maintain the time provided was sufficient and that it was consistent with the time required in CAA section 307(h).
8. Comparison to other rule comment periods.
Comment 86: Numerous commenters (10167, 10569, 10750, 10821, 10943, 13529, 13827, 14368, 16857, 16861, 17003, 17254, 17871, 17904, 6543) assert that an extension is warranted as rules of similar or less complexity and importance are routinely afforded longer comment periods.
Comment 87: Multiplel commenters (10167, 10569, 10750, 10943, 13529, 13827, 14368, 16857, 17871, 6543) reference the CCR Rule's comment period as being longer.
Comment 88: Several commenters (10167, 10569, 13529, 13827, 16857) reference the Reciprocating Internal Combustion Engines (RICE) NESHAP's comment period as being longer.
Comment 89: Several commenters (10750, 10943, 16857, 17871, 6543) reference the 316(b) Rule as being afforded a longer comment period.
Comment 90: Several commenters (10750, 10943, 17871, 6543) reference the Boiler MACT as being afforded a longer comment period.
Comment 91: Commenter 17003 references the Boiler MACT as an example of a rule with an inadequate comment period for the development of data and analysis, resulting in the agency dismissing several comments on the grounds that the commenters did not provide specific information or data to allow the agency to thoroughly consider the comments.
Commenter 17003 includes a table in docket entry EPA-HP-OAR-2009-0234-17003. The table compares recent MACT Rules, their impacts, original comment period, and extension, if applicable. Commenter references the table in stating that the hospital, medical, infectious waste incinerator (HMIWI) MACT received the same comment period length and the Portland Cement MACT, RICE MACT, and Boiler MACT received longer comment periods.
Comment 92: Commenter 17904 references the Cement MACT Rule as being afforded a longer comment period.
Comment 93: Commenters 16469 and 18912 reference the time periods for completing rulemaking for the Boiler MACT and the Portland Cement MACT and add that failure to consider the comments received will violate the APA and CAA.
Response to Comments 86 - 93: As noted elsewhere in this document, on July 1, 2011, the EPA announced an extension to the public comment period (76 FR 38590). The comment period closed on August 4, 2011. Given the period of time prior to proposal that the rule was posted on the agency's website and, thus, available for public review, over 100 days were provided during which time the public could review both the proposed rule and the vast majority of the supporting documents. We believe that this is sufficient time. Further, the fact that different rulemakings have comment periods of different lengths is immaterial in establishing the length of the comment period for this rulemaking.

1K - Legal: Other
Commenters: 10167, 10750, 10821, 13526, 14368, 15182, 16122, 16469, 16549, 16626, 16705, 17003, 17110, 17114, 17265, 17400, 17627, 17629, 17638, 17639, 17640, 17654, 17656, 17681, 17682, 17689, 17697, 17698, 17712, 17714, 17724, 17728, 17734, 17739, 17740, 17751, 17756, 17757, 17761, 17771, 17772, 17775, 17776, 17782, 17790, 17806, 17807, 17813, 17817, 17821, 17833, 17834, 17837, 17842, 17844, 17854, 17856, 17867, 17868, 17871, 17877, 17881, 17882, 17884, 17901, 17902, 17903, 17904, 17909, 17911, 17912, 17913, 17919, 17928, 17930, 18025, 18027, 18033, 18037, 18039, 18422, 18424, 18428, 18433, 18436, 18437, 18486, 18488, 18498, 18500, 18539, 18575, 18759, 18831, 19211, 19536/19537/19538, 18932
1. Comments that the November 16, 2011 deadline is not reasonable.
Comment 1: Multiple commenters (10167, 10569, 10942, 10943, 10987, 13529, 14069, 16402, 16626, 16822, 16872, 17003, 6543) acknowledge the deadline to finalize the rule by November 16, 2011.
Comment 2: Several commenters (10167, 10569, 13529, 14069, 16402, 17003) state that the regulated community was not a party to the Consent Decree agreement which set the deadline for the final rule.
Comment 3: Multiple commenters (10167, 10569, 10943, 10987, 16402, 16626, 16822, 17003, 6543) acknowledge that the deadline can be changed.
Comment 4: Several commenters (10167, 10569, 13529, 16822, 17003) request the agency extend the final rule deadline.
Comment 5: Commenter 6543 states that the schedule the agency agreed to under the Consent Decree is posing an undue restriction of the public comment period.
Comment 6: Commenters 10167 and 18424 state that the court-ordered deadline of November 16, 2011 for finalization of the rule is not reasonable or necessary in light of the complexity of the proposal and burden it would place on the electric utility industry and its rate payers.
Comment 7: Commenter 14368 states that it only recently been made aware that the EPA agreed to finalize the proposed EGU NESHAP rule by November 16, 2011. Commenter stated it was never party to such as agreement, despite the impacts that the rule will have on its members and constituents. The deadline is thus not reasonable, in light of the magnitude of the burden this rule will place upon the middle class and working poor of this country. The commenter requests that the EPA not allow an arbitrary deadline to cause the EGU NESHAP and NSPS to be finalized without careful consideration of the impacts it will have on our families. Commenter believes it is arbitrary and capricious to adhere to a November 16, 2011 promulgation of this rule.
Comment 8: Commenter 10821 also requests that the EPA petition for an extension. The commenter points out that it was recognized numerous times in the opinion recognizing the consent decree that the timeline can be extended, and that Provisions 6 and 7 of the Consent Decree clearly contemplate the ability of the Court to extend this time period "for good cause." The commenter argues that providing adequate time for an industry that provides roughly 45% of the country's energy supply to analyze and thoroughly comment on this proposed rule is just the type of "good cause" that the Consent Decree contemplates. And by granting a comment extension now and petitioning the Court for additional time, it would assist in satisfying the timeline requirements found in Provision 7 of the Consent Decree and also be in line with other previous actions where the EPA has extended Consent Decree timelines.
Commenter 10821 went on to say that stakeholders such as themselves should not be prejudiced by the EPA setting an artificially short timeline in its Consent Decree and the EPA waiting until the final day of the Consent Decree timeline to propose a rule, when it could have acted earlier.
Comment 9: Commenter 17930 notes that the EPA has the authority, both in the Court Order outlining the rulemaking timeline and in precedent, to extend the finalization date beyond November 16, 2011. There are many substantive issues in the current version of the rule that would require re-proposal in order to be addressed properly. To do otherwise would result in an incomplete and inaccurate rule.
Comment 10: Commenter 17265 urges the EPA to take the time necessary  -  beyond this November  -  to increase the credibility and defensibility of the rule. The commenter is concerned that additional errors will occur if the EPA adheres to the current deadline. The commenter notes that this is an important, complicated and potentially burdensome rule, and the EPA should take the necessary time to carefully consider the public comments and integrate necessary revisions.
Comment 11: Commenter 17629 asks that the EPA not proceed with this rulemaking until a full analysis has been made on the cumulative impacts to affected sources of this rule and all other rules and standards directed at the power generation sector currently being contemplated and/or implemented by the EPA. The commenter requests that the EPA, at a minimum, extend the rulemaking for one year in order to allow the various states and their respective affected sources time to evaluate not only the full impacts and benefits of these rules, but also the practicability of installing controls to meet this rule nearly simultaneously with installing controls to meet other existing and pending rules and standards. The commenter expresses concern that the combined effects of meeting all requirements at the same time may create unintended consequences, and in fact, be impossible to accomplish. The commenter is required to implement SO2 and NOX reductions to fulfill the objectives of the Regional Haze Rule and of the various controls will either compliment or confound each other places a large uncertainty on how best to proceed. In addition, the impact of the Tailoring Rule is not yet known, and could also lead to complications. The commenter went on to point out that final implementation of the new NO2 and PM standards and the pending ozone standard confound things even further. Therefore, the commenter asks that the EPA place the rulemaking on hold while reviewing the cumulative impacts, checking the assumptions made by the EPA in its analyses, and exploring ways to allow states more discretion in the implementation of these rules. The commenter strongly believes that the EPA should develop a "Multi-Pollutant" strategy.
Comment 12: Commenter 17640 urges the EPA to slow promulgation of the rule and extend the time frame for compliance. The commenter states that these actions will provide manufacturers with more certainty that electricity and natural gas prices will remain stable in the near future.
Comment 13: Several commenters (10821, 17654, 17739, 17740, 17904) cite the court ruling in American Nurses Association v. Lisa Jackson, Civ. No. 1:08-cv-02198 (April 15,2010) as a basis for allowing more time for proper analysis.
Commenter 17654 notes that the Court anticipated that "science and analysis require more time," and believes that for this reason the Court would likely support a motion by the EPA for additional time to promulgate the Utility MACT rule.
Commenter 17739 notes that the Court's opinion stated "The Court appreciates industry's concerns that this schedule may be too hasty for the critical and expensive regulatory decisions that will be made; however, the proposed Consent Decree allows for a change in schedule if need be." The judge further added, "if the science and analysis require more time, EPA can obtain it" and "if EPA needs more time to get it right, it can seek more time."
Commenter 17654 points out that Congressional efforts are underway to prevent the EPA from promulgating the final Utility MACT and other air regulations affecting the utility sector for two additional years (i.e., until 2013). The commenter believes the EPA could achieve the same result by petitioning the Court for additional time to promulgate the rule consistent with the terms of the Consent Decree.
Comment 14: Commenter 17656 notes that the EPA entered into the Consent Decree voluntarily, thereby voluntarily obligated itself to a truncated timeline. However, the EPA has the right to seek a judicial extension of the rule deadline, and should exercise that right immediately.
Comment 15: Commenter 17724 suggests that the EPA seek a 6- to 12-month delay in the promulgation of the final rule, in order to properly consider all comments and properly address the myriad of issues the proposed rule will raise.
Comment 16: Commenters 17757 and 18424 are concerned that the November 16, 2011 date for issuance of the final rule does not allow sufficient time for agency consideration of the comments.
Comment 17: Commenter 17771 believes that the EPA should take the time necessary to give ample opportunity for review and dialogue with affected industry, and provide for adequate quality assurance of the data including its development and use. While the 30-day extension of the comment period is a move in the right direction, the commenter believes it is not sufficient for the EPA to take into careful consideration all the public comments prior to issuing a final rule. Also, the November 16, 2011 rulemaking deadline should also be extended to allow for more discussion opportunities and for everyone to better understand the proposed standards and thoughtfully develop comments.
Comment 18: Commenter 17837 states that the EPA should apply the lesson from the recent Industrial Boiler MACT rule  -  where public comments revealed numerous deficiencies in the proposed rule  -  and request permission from the Court of Appeals to extend the date for final promulgation by at least 6 months. The commenter argues that the current deadline for promulgation does not allow sufficient time for the EPA to consider and respond to the thousands of substantive comments that will be submitted.
Comment 19: Commenter 17856 urges the EPA to not rush this rule process but to develop a well thought-out, understandable and workable approach based on accurate data obtained by working with the states and regulated entities. Commenter 17904 urges the EPA to seek an extension for its court-ordered deadline to finalize the rule, in order to satisfy its obligation to "ensure a reasonable period for public participation" as stated in the Consent Decree.
Comment 20: Commenter 17868 states that the EPA has rushed its own regulatory schedule and is under no court order. The commenter believes it is simply not true that the EPA must propose/finalize the MACT rule as quickly as suggested in the proposal, and that the judge who presided over the Consent Decree for proposal and timing made it clear that the EPA would be given more time if technical or scientific issues necessitated it.
Comment 21: Commenter 16469 suggests that the EPA seek a 6-12 month delay in the promulgation of the final rule due to the technical complexity.
Comment 22: Multiple commenters (17638, 17681, 17790, 17813, 17842, 17909, 17912, 18428, 18486, 18500, 18831, 18912) assert that the November 16, 2011 deadline does not allow the EPA adequate time to evaluate and respond to comments.
Comment 23: Commenter 17627 states that some technical support documents used by the EPA were developed under budgetary and time constraints and the agency should afford more time so that the claims in the technical support documents can be verified.
Comment 24: Several commenters (17689, 17712, 17817) request that the agency consider supplemental comments filed after the comment period expires in light of the short time period provided for comments, the complexity of the rulemaking, lack of complete and accurate information, and the agency's abuse of procedures for garnering small entity input.
Response to Comments 1 - 24: The EPA is subject to a Consent Decree in the matter of American Nurses Ass'n v. EPA, 08-2198 (D.D.C.). That decree requires the EPA to sign the final MATS rule by December 16, 2011. Commenters' non-participation in the litigation that lead to the Consent Decree deadline for signing this final rule does not undermine the legitimacy of that deadline.
CAA section 112(c)(5) requires the agency to establish CAA section 112(d) standards for sources not listed pursuant to CAA sections 112(c)(1) or (3) within "10 years after November 15, 1990, or within 2 years after the date on which such category or subcategory is listed, whichever is later." The EPA listed EGUs on December 20, 2000, therefore, pursuant to the statute, the EPA should have established CAA section 112(d) standards for EGUs no later than December 20, 2002.
On December 18, 2008, a number of public health and environmental organizations filed a complaint alleging that the EPA had failed to perform a mandatory duty because the agency had not issued air toxics standards for utilities. American Nurses Ass'n v. EPA, 08-2198 (D.D.C.). On February 24, 2010, the EPA and plaintiffs signed a Consent Decree that, at that time, required the agency to sign final standards by November 16, 2011. This date is almost 3 years after plaintiffs sought to require the EPA to comply with the statutory mandate to issue CAA section 112(d) standards, and almost 9 years after the time provided in CAA section 112(c)(5) for issuing CAA section 112(d) standards for EGUs.
Commenters' non-participation in the development of the Consent Decree does not create a flaw in the agreement or make our actions consistent with the decree invalid. In rejecting the rights of intervenors to prohibit settlement of claims, the Supreme Court has stated:
      A consent decree is primarily a means by which parties settle their disputes without having to bear the financial and other costs of litigating. It has never been supposed that one party  -  whether an original party, a party that joined later, or an intervenor  -  could preclude other parties from settling their own disputes and thereby withdrawing from litigation. Thus, while an intervenor is entitled to present evidence and have its objections heard at the hearing on whether to approve a consent decree, it does not have power to block the decree merely by withholding its consent.
Local No. 93 v. City of Cleveland, 478 U.S. 501, 529 (1986).
The EPA determined that it was appropriate to settle the litigation in the American Nurses Case given the statutory direction to establish CAA section 112(d) standards within 2 years of listing, and we determined that the proposed schedule was reasonable, as we had already issued the ICR to the industry. In addition, while this commenter was not a party to the litigation, the UARG intervened as a defendant in the litigation and opposed entry of the Consent Decree in part on the grounds raised by the commenter. The District Court signed the Consent Decree despite those objections.
The EPA must finalize the rule by December 16, 2011, unless the agency seeks to further extend the deadline. To do this, the agency must follow the requirements of the modification provisions of the Consent Decree. If Plaintiffs object, the agency must file a motion with the Court seeking an extension of the deadline. Consistent with governing case law, the agency must demonstrate in its motion for extension that it is impossible to finalize the rule by the deadline provided in the Consent Decree. See Sierra Club v. Jackson, Civil Action No. 01-1537 (D.D.C.) (Opinion of the Court denying the EPA's motion to extend a consent decree deadline). The EPA committed sufficient resources to review and respond to the comments on the proposed rule so that it can sign the rule by December 16, 2011. Nothing in the Court's opinion approving the Consent Decree alters the EPA's responsibility to seek an extension consistent with the Consent Decree terms and the governing case law. Accordingly, the EPA could not claim in response to these comments that it was impossible to comply with the Consent Decree.
In addition, the EPA disagrees that it can or should wait to finalize the rule until new NAAQS and other rules are implemented. The EPA listed EGUs over a decade ago and it would not be reasonable to wait based on the fact that other rules may impact EGUs in some undefined manner. NAAQS revisions occur on a periodic basis so there is always the potential that new standards will be in the offing and under commenter's theory the agency would always have to defer the CAA section 112 standards. Furthermore, the controls that are required for compliance with the MATS will in some cases be the same as the controls that may be required by states for NAAQS compliance. By promulgating this rule now, EGUs will be able to design modifications that account for all the various rules.
The EPA is also confused by the comments that state the EPA erred by waiting until March 16, 2011, to sign the proposed rule. The EPA did not act improperly.
2. Comments that the EPA should withdraw the proposed rule and re-propose.
Comment 25: Multiple commenters (17782, 17817, 17627, 17728, 17639, 17756, 17868, 17871, 18033, 18488) state that numerous errors in the proposed rule have denied the regulated community an adequate opportunity to comment and references the UARG re-proposal petition dated May 6, 2011. Commenters add that they reserve the right to revise any portions of the comment document based on EPA action to correct the errors. Failure to do so would be a disservice to the public and regulated community and would be a breach of due process.
Comment 26: Commenter 10750 requests that the EPA withdraw the proposed HAP rule and release a new proposal after errors are corrected and the data is re-evaluated. The commenter notes that the utilities have been advised that there are serious errors in the analysis underlying the proposed HAP Rule. One such error involves conversion of test data that understates the results (and thereby increases the stringency of the proposed standards) by a thousand fold. The commenter goes on to note that other errors occur in the assumed heat rates for all types of fossil fuel-fired units, and ongoing review suggests that additional errors may have occurred in the risk calculations that underlie the fundamental finding upon which the rule is based. This suggests that insufficient time was spent analyzing and properly evaluating the massive amounts of data collected by the EPA prior to developing this proposal. Because the errors directly impact the calculation of the HAP floor, commenters are faced with the impossible task of attempting to derive a legitimate floor based on data that contains known errors. The commenter states that the EPA has a responsibility to assure that the standards it proposes are based on the very best science, free of errors that compromise the validity of its conclusions.
Comment 27: Commenter 17739 expresses concerns about the lack of QA/QC of the ICR data due to the tight schedule that the EPA voluntarily committed to in the Consent Decree. The commenter states that the EPA should have sought additional time when it was warned about the obviousness of the erroneous data in the proposed Hg floor during interagency review, because that signaled a troubling lack of very basic QA/QC. It should have also sought more time so that it could reissue its corrected Hg MACT floor in the Federal Register, since as it stands, the EPA's actual proposed Hg MACT emissions limits for new and existing sources is not set forth in the Federal Register generally available to the public, but rather only in some revised memorandum placed in the docket. Finally, the EPA should now seek an extension from the Court to fulfill its fundamental duty to issue a rule based on data subject to basic QA/QC review.
Commenter 17739 also cites the ruling in Portland Cement Association vs Ruckelshaus [486 F.2d 375, 393-94 (DC Cir. 1973)]: "It has not It is not consonant with the purpose of a rule-making proceeding to promulgate rules on the basis of inadequate data, or on data that, to a critical degree, is known only to the agency. . ." and the National lime Association vs EPA [627 F.2d 416, 430-31 (DC Cir. 1980)]: "promulgation of standards based on inadequate proof [ [defies the APA's] mandate against action that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." The commenter states that this obligation to provide adequate data and an adequate factual basis for a rule includes an obligation of the agency to examine the data it intends to use. The EPA's actions can be found arbitrary and capricious if it has failed to "examine the relevant data and articulate a satisfactory explanation for its action." [State of NY v. EPA, 413 F.3d 3, 43 (DC Cir. 2005)] The commenter points out that the CAA specifically obligates the EPA to assess its data and explain this assessment in its proposal. Sections 307(d)(2)-(3) require the agency's proposal to include a summary of the factual data on which the proposal is based and the "methodology used in obtaining and analyzing the data."
Comment 28: Commenter 17740 states that the EPA should not promulgate the final EGU MACT until the agency is confident that the data underlying the rule is arithmetically sound and accurate. The commenter goes on to say that the EPA must closely examine its proposed standards and underlying data before issuing the final rule and, if necessary, obtain an extension from the district court to ensure that it corrects any errors in the data.
Comment 29: Several Commenters (17834, 17751, 17884, 17901, 18437) state that the proposed rule should be withdrawn as it exceeds the authority vested in the agency under the CAA, imposes substantial costs on private industry and the states, and constitutes unlawful interpretation of the CAA. Commenter adds that the proposed rule will not withstand the legal challenges. It represents a danger to public health and welfare.
Comment 30: Commenter 17911 recommends that the rule should be suspended and re-proposed for only Hg and Ni.
Comment 31: Commenter 17697 states that the proposed rule includes many additional controls beyond those to reduce Hg emissions. These controls are not required under the CAA or the EPA's own HAP study. Commenter requests that the EPA withdraw the rule and re-propose it to solely address Hg emissions. Guam Power Authority's Hg emissions are significantly lower than for a coal-fired power plant. They are 1/10,000 of the most stringent limit proposed for coal-fired power plants.
Comment 32: Commenter 17003 states that the EPA has introduced such fundamental error in its baseline calculations that the EPA should re-propose the rule.
Comment 33: Commenter 17775 states that the EPA's rush to issue the proposed rule has resulted in a rulemaking process that violates the procedural requirements of CAA section 307(d). The opportunity for public comment has been compromised by numerous calculation errors in MACT standard setting, by hastily assembled technical support documents that fail in their mission to describe the analyses and reasoning underlying the EPA's proposal, and by the EPA's late-filing of important documents in the rulemaking docket. The EPA has failed to provide a meaningful opportunity for public comment on the proposed rule. Therefore, the commenter states that the EPA should withdraw the proposed rule, correct and revise its analyses in the light of the comments submitted, and then re-propose the rule.
Commenter 17775 further states that the EPA has failed to provide a meaningful opportunity for the public to comment on the proposed rule, contrary to the requirements of CAA section 307(d). Given this, the EPA's only lawful option, should the agency persist in seeking to regulate EGUs under CAA section 112, is to withdraw the proposed rule and issue a new, corrected proposal for comment. The commenter cites paragraph (d)(3) of CAA section 307 that states that a "notice of proposed rulemaking . . . shall be accompanied by a statement of its basis and purpose," and that this statement "shall include a summary" of the "factual data on which the proposed rule is based" and the "methodology used in obtaining the data and in analyzing the data." Paragraph (d)(3) concludes by specifying that "[a]ll data, information, and documents referred to in this paragraph shall be included in the docket on the date of publication of the proposed rule."
Commenter 17775 states that under CAA section 307(d)(8), a court reviewing a final EPA rule may invalidate that rule where the agency's procedural errors during the rulemaking  -  including its failure to comply with the requirements of CAA section 307(d)(3)  -  are "so serious and related to matters of such central relevance to the rule" that there is a "substantial likelihood that the rule would have been significantly changed if such errors had not been made." Given the serious errors that the EPA itself has made in the developing the proposed rule  -  many of which the agency has already acknowledged  -  and the likelihood of other such errors that commenters have not been able to identify given the unduly truncated notice-and-comment period provided for such a far-reaching and expensive rule, one is hard pressed to imagine a more egregious example of a procedural default by the agency under CAA section 307(d). The commenter states that if the EPA does not withdraw the proposed rule, correct and revise its analyses, and then re-propose, it is due to be vacated on review.
Comment 34: Commenter 17757 suggests that the EPA should issue a Notice of Data Availability in order to allow for a more thorough analysis of the agency's basis for the MACT rule.
Comment 35: Commenters 17714 and 17775 state that the EPA is required to provide a formal public notice of the Hg limit calculation error and its correction of the error by re-proposing the Hg MACT limits in the Federal Register. The commenter notes that this would have afforded all parties fair notice of the change, explaining the error, how it was corrected, and how those changed standards affect the EPA's underlying rationale for the proposed rule. The course the EPA has pursued to date  -  i.e., sending an abbreviated letter responding to one party, addressing a single aspect of the agency's error (the Assistant Administrator's May 18 letter)  -  does not satisfy the EPA's obligations under CAA section 307(d)(3).
Comment 36: Commenter 17913 suggests that the EPA re-propose the MACT rule after making revisions partly based on comments and allow for an additional round of comments prior to issuing a final rule. The commenter notes that the financial implications of this rule on the country's electric generating capacity and reliability is too vital to issue a final rule without allowing for appropriate input from the public and stakeholders.
Comment 37: Commenter 17919 states that the EPA has voluntarily committed itself to a timeframe that is insufficient for the scope of the task. It is essential that the agency ensure sufficient time to analyze the input it receives the public and industry, prepare appropriate responses, and, where necessary, make changes to the proposed rule. The commenter notes that the schedule did not allow for sufficient time to adequately analyze the data collected in the ICR, and now does not allow enough time to adequately analyze comments, coordinate appropriate responses, make necessary changes to the proposed rule, submit the final rule to OMB for analysis and interagency comments, resolve interagency comments, and promulgate a final rule. The commenter goes on to state that as the U.S. Court of Appeals for the D.C. Circuit ruled in Sierra Club v. Thomas, 828 F.2d 873, 798 (D.C. Cir. 1987), a rulemaking schedule is indeed reasonable in which the agency had taken just less than 3 years from proposal without final action. In so finding, the Court explained that "[a] simple reading of the Clean Air Act reveals that whether to impose a certain type of regulation often involves complex scientific, technological, and policy questions. The EPA must be afforded the amount of time necessary to analyze such questions so that it can reach considered results in a final rulemaking that will not be arbitrary and capricious or an abuse of discretion." Id. at 799. The commenter recommends that the EPA utilize the procedure afforded it under the Consent Decree to seek an appropriate extension of the deadline for issuing the final rule and formulate a realistic compliance schedule that takes into account intense competition for resources and capital. Mere rote citation of alleged benefits to the proposed rule cannot substitute for the real work necessary to produce an adequate final rule. Indeed, such a rush to judgment, as noted by the Court in Sierra Club v. Thomas, can actually undermine protections by producing a result more susceptible to judicial intervention.
Comment 38: Commenter 17761 supports rules to impose reasonable reduction requirements for Hg emissions but believes the EPA has not fully assessed the risks and benefits of reducing the non-Hg HAP and should closely examine several aspects of the Hg rules prior to implementation of the final rule. Commenter encourages the EPA to modify the consent decree to allow for more time to develop a final rule.
Comment 39: Commenter 17821 believes that the EPA should quickly seek additional time for completing the final rule so the industry can better plan for it.
Comment 40: Commenter 19211 urges the EPA to slow promulgation and extend the timeframe for compliance to provide manufacturers with more certainty that electricity and natural gas prices will remain stable in the near future.
Comment 41: Commenter 17776 states that the agency should review the data underlying the proposed MACT standards, re-propose the standards, and allow the public the opportunity to review the proposed standards. Commenter adds that the EPA can be provided with more time to complete the rulemaking and the Consent Decree should not be used to restrict public evaluation and commenting on the proposed rule.
Comment 42: Commenter 17790 advocates for a delay in order to develop critical facts to provide to the EPA that would help to better evaluate the financial and reliability impact of using HCl as a surrogate for acid gas and the potential of alternative technologies to flue gas desulfurization. Commenter adds that the Consent Decree timing should not interfere with the need to use accurate data versus assumptions.
Response to Comments 25 - 42: The EPA disagrees with the commenters' assertions that the EPA failed to adequately consider the data, that the EPA used flawed data, that there were systemic flaws in the standards due to data errors, and that information relied on in the development was not available to the public. The EPA provided all documents and data that the EPA relied on in developing the proposed rule in the docket prior to publication of the proposed rule in the Federal Register. In fact, almost all of the relevant documents were available on the EPA's website within a few weeks of the proposed rule signature date of March 16, 2011. The ICR data were made available through the docket during February and March 2011. Other support materials were made available through the docket on May 3, 2011.
A number of the commenters point to a UARG letter identifying a conversion error in a subset of the Hg data used to establish the MACT floor. Commenters allege that this error is one of many but provide no specifics (these errors are addressed elsewhere in this document). Commenters also allege that the EPA failed to provide in the docket documents relied on in developing the rule. Southern Company made similar allegations in a letter submitted to the agency during the comment period. Commenters do not identify specific information that was not available in the comments on the proposed rule. These supposed errors according to commenters are clear violations of CAA section 307(d)(3). Commenters are incorrect. CAA section 307(d)(8) states, in part, that "[i]n reviewing alleged procedural errors, the court may invalidate the rule only if the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made." The D.C. Circuit Court has interpreted CAA section 307(d)(8) to place a high bar for procedural challenges to rulemakings under the CAA. See National Petrochemical & Refineries Assn. v. EPA, et. al., 287 F.3d 1130, 1148 (D.C. Cir. 2002). None of the commenters have provided any specific claims as to how the rule would be at all different if the alleged errors had not occurred, much less making a showing that the rule would have been significantly different.
The EPA does not agree with the commenters' assertions concerning information quality flaws in the proposed rule. The Action Development Process used by the EPA in the development of regulations and the Integrated Error Correction Process, for example, are two of the existing systems the EPA has to ensure that the information it disseminates is of high quality. The rule promulgation process provides an opportunity for the public to review the data on which the agency relies and, if errors occur, as they may at times, the EPA is able to correct those errors in response to comments and in the final rule and neither the regulated community nor the public are unduly harmed by changes to the standard based on corrected data. NRDC v. Thomas, 838 F.2d 1224, 1242 (D.C. Cir. 1988) (stating that "[t]he EPA can obviously promulgate a final regulation that differs in some respects from its proposed regulation. We recognized in International Harvester Co. v. Ruckelshaus, 155 U.S. App. D.C. 411, 478 F.2d 615, 632 n. 51 (D.C. Cir. 1973), that `a contrary rule would lead to the absurdity that . . . the agency can learn from the comments on its proposals only at the peril of starting a new procedural round of commentary.'"). That is particularly true for a technology-based standard that is based solely on actual performance of existing sources. In this case, the EPA used a consistent methodology for calculating MACT floors and incorporated the data provided by industry into the formula. Commenters were able to evaluate the Agency's formula for establishing MACT floors based on the emissions reports submitted in response to the ICR, and changes in the data that are entered into the formula do not make the rule flawed. We further note that while we did make a conversion error for a small subset of the Hg data, it was industry's legal responsibility to provide accurate quality assured and quality checked data consistent with the validly issued CAA section 114 ICR. The EPA readily provided extensions of time to comply with the ICR because we wanted data to be correct, but still industry made numerous mistakes in their initial filings and were making corrections to data long after the data were due. The EPA used the data it was provided by industry and reasonably assumed that industry would comply with their legal responsibility to provide accurate data in response to the CAA section 114 request. The EPA has not revised its methodology for establishing MACT floor limits based on emissions data submitted by individual EGUs in the final rule and changes in the standards are almost exclusively being made to incorporate new data or correct errors in data submissions that were legally required to be accurate when submitted.
Furthermore, the error that UARG identified was not the critical flaw that commenters allege. UARG identified a conversion error associated with a small subset of the Hg data. It is true that some units the EPA identified as best performing units were in fact not best performing units, but, once the data was corrected, the standards remained close to what the EPA established in the proposed rule. The EPA reasonably corrected the error soon after UARG identified the issue and the agency recalculated the proposed floor for Hg using the same methodology for determining the MACT floor as that used in the proposed rule. We then posted the revised MACT floor memo in the docket. Under the CAA, the EPA could have waited until the end of the comment period and properly revised the standard at that time based on the UARG's comments; however, we wanted to provide a prompt response to UARG's issue and give the public the most current information. It is clear from the comments that the regulated community was in fact aware of the corrected limit, which the EPA posted to the docket more than 60 days before the close of the comment period. Commenters allege that the Hg conversion error is one of many significant errors in the data used to establish the standards, but we have not identified and commenters have not noted any conversion or other errors similar to the Hg data issue identified by UARG and corrected by the EPA more than 60 days prior to the end of the comment period.
Commenters' allegations that the docket did not contain a number of documents necessary for review of the proposed rule until after the rule was published in the Federal Register in violation of section is also incorrect. Commenters do not identify the documents that were allegedly left out of the docket, but Southern Company made similar allegations in a letter to agency dated May 12, 2011. The EPA did add documents to the docket shortly after receiving Southern Company's letter; however, as explained in our July 12, 2011, response to Southern Company, the EPA did not rely on any of the documents added to the docket after the rule was published in the Federal Register. The EPA provides a response to all of Southern Company's claims in our response letter which is available in the docket (entry EPA-HQ-OAR-2009-0234-16581).
The EPA strongly disagrees that our actions in response to UARG and Southern Company in any way created or demonstrated a procedural flaw in our rulemaking. In any case, however, the fact that commenters were aware of the revised mercury limit and the non-essential documents before the close of the comment period makes any error on the EPA's part insignificant. See National Petrochemical & Refineries Assn. v. EPA, et. al., 287 F.3d 1130, 1148-49 (D.C. Cir. 2002) (finding that actual knowledge three weeks before the close of the comment period negated the alleged procedural flaw). Commenters' reference to the conversion error correction and the documents that the EPA added in response to Southern Company's letter demonstrate they had actual knowledge of the information. All the information was available in the public docket for more than 60 days before the end of the comment period, and 60 days far exceeds the 30-day comment period required pursuant to CAA section 307(h). Commenter's rights were in no way impaired by the EPA's actions.
The EPA provided 90 days of official public comment and that time period is reasonable and more than the 30 days required pursuant to CAA section 307(h). In addition, as stated above, the EPA made the proposed rule and the vast majority of the supporting materials available to the public approximately 45 days prior to the publication in the Federal Register. The EPA is not re-proposing the rule based on these comments.
3. The EPA should not delay implementation of the rule.
Comment 43: Several commenters (16626, 17844, 17854, 17903, 18039, 18759) support Hg and air toxics standards for power plants and urge the agency to make them final on schedule.
Comment 44: Commenter 17698 supports the agency's efforts to reduce harmful Hg emissions.
Comment 45: Commenter 17844 states that the rule has essentially been in development since December 2000 and is needed to improve the health of American citizens, reduce the impact on the environment, and provide utilities with certainty as they plan for a cleaner future.
Comment 46: Commenters 17110 and 17844 state that if the EPA were to delay implementation of the Utilities Toxics Rule or Transport Rule, it would undermine participants' business decisions and confidence in future market responses based on the EPA's regulations. The commenter notes that the markets are reflecting the capital investments companies anticipate making in order to comply by 2015.
Comment 47: Commenter 17882 states that for decades the coal industry has used influence to delay implementation of strong standards to cut toxic air pollution.
Comment 48: Commenter 18436 references Administrator Jackson in emphasizing the importance of the standards on the health of the American People as well as the effect the industry has had on the State of Alabama and citizens. Commenter then references a report [David Ludder, Toxic Air Pollution in Alabama: A Threat to Human Health, December 2008] that emphasizes that while a regulatory system in place has reduced emissions, it is not sufficient to reduce ambient concentrations of toxic air pollutants below appropriate maximum safe chronic exposure concentrations. Commenter further discusses the definition of HAP, their related health risks, and explains the meaning of unhealthy for sensitive groups and hazardous air quality alerts.
Comment 49: Commenter 18932 states that further delaying promulgation and implementation of stringent MACT standards for coal- and oil-fired EGUs would not only be unlawful, it would constitute a profound abdication of the EPA's responsibility to protect public health and welfare from harmful air pollution. Commenter further states that the EPA has determined that, once fully implemented, every year the proposed Utility Air Toxics Rule will avoid up to 17,000 premature deaths, 4,500 cases of chronic bronchitis, 11,000 nonfatal heart attacks, 120,000 cases of aggravated asthma, 4.9 million fewer days of restricted activity due to respiratory illness, and 850,000 missed work days. Commenter also states that the EPA has further found that, annually, the rule would spare children from serious illness and injury --in the form of 110,000 fewer asthma attacks, 6,700 fewer hospital admissions due to asthma, 10,000 fewer cases of acute bronchitis, and approximately 210,000 fewer cases of upper and lower respiratory illness. Commenter asserts that prompt implementation of this rule is particularly critical to the low-income and minority communities who are disproportionately burdened by pollution from coal-fired power plants. Thus, to protect people and the environment from dangerous power plant hazardous air pollution, the commenter states that it is imperative that the EPA resist industry efforts and political pressure to derail, delay, and weaken this vital and long-awaited rule.
Comment 50: Commenter 18027 states that the agency must establish a compliance schedule, per the requirements of CAA section 112, that ensures compliance as expeditiously as practicable for each category or subcategory, and no later than 3 years from the standard's promulgation. The commenter also states that where a specific source encounters particular issues in installing the necessary control technologies, the EPA is authorized under section 112(i)(3)(B) to grant such a source an extension of up to 1 additional year to comply.
Response to Comments 43 - 50: The EPA appreciates the comments in support of this final rule.
4. The EGU rule should be reviewed more frequently.
Comment 51: Commenters 16122 and 17846 state that the EPA should commit to reviewing the final rule more frequently than the maximum 8-year cycle allowed by the CAA. As Administrator Jackson has noted environmental regulations "spark innovation" and create markets that lead to lower compliance costs. Once this rule is promulgated, it will be the first time we have a national standard addressing EGU Hg emissions. Consequently, this rule will drive the creation of effective, low-cost compliance strategies. Thus, in complying with its obligations under the Trust Responsibility and Environmental Justice Doctrine, the EPA must ensure that MACT standards for EGU s keep pace with available technology. Therefore, the commenter believes that the EPA should review the rule's MACT standards at least every 4 years to make sure that the EGU MACT Rule's Hg standard reflects the latest available control technologies.
Response to Comment 51: The EPA appreciates the support of the commenters. The agency developed the final standards consistent with the requirements of CAA section 112(d). Consistent with CAA section 112(d)(6), the EPA will review the availability of new technologies for regulating mercury and other HAP no less often than every 8 years.
5. Failure to comply with regulations.
Comment 52: Commenter 17638 states that if the EPA does not change the schedule to provide sufficient time for the public to participate in the rulemaking and the EPA to meaningfully understand and respond to comment, it will be a violation of the Administrative Procedure Act.
Response to Comment 52: As noted elsewhere in this document, the EPA believes that sufficient time was provided for the public to review the proposed rule and supporting materials and that the provisions of the Administrative Procedure Act have been followed.
6. Miscellaneous comments.
Comment 53: Commenter 17640 states that the EGU rules are unachievable and place the affordability of power in the U.S. at risk.
Comment 54: Commenter 17682 believes that the rule will cause irreparable harm to the nation's economy and national security by increasing the cost of energy in the U.S., negatively impacting the nation's ability to compete in the international marketplace, and increasing unemployment; and requests the agency withdraw the current proposal and develop a new rule.
Response to Comments 53 and 54: The EPA does not agree with the commenters that the proposed standards are unachievable. The EPA based the standards on the actual emissions of existing sources and we believe that approximately 6% of EGUs are currently meeting all of the existing source standards issued today. Comments related to the impact of the final rule on the affordability of electricity, etc. are responded to elsewhere in this document.
Comment 55: Commenter 17681 notes that Hg emissions are a worldwide problem, and asks if the EPA is willing to petition Congress to develop specific legislation much in the same way the EPA did with greenhouse gases.
Response to Comment 55: The EPA acknowledges that global Hg emissions contribute to risk in the U.S. We would note that as a federal agency, the EPA is forbidden by statute from petitioning or lobbying Congress.
Comment 56: Commenter 17698 states that if the EPA does not provide relief for the commenter in the final rule, the commenter intends to request a territorial waiver.
Response to Comment 56: The territorial waiver mentioned by the commenter is outside the scope of this rulemaking. We would note, however, that a subcategory has been established in the final rule for non-continental liquid oil-fired EGUs.
Comment 57: Commenter 17884 maintains that given the number of retirements of coal plants that the EPA's power sector rules will cause combined with the effective ban on new coal plant construction under the new-unit MACT standards, the EPA is effectively asserting control of electric utility resource decisions reserved under the Constitution for states and under the Federal Power Act for the Federal Energy Regulatory Commission (FERC). See Federal Power Comm'n. v. Florida Power & Light Co., 404 U.S. 453 (1972); Jersey Cent. Power & Light v. Federal Power Comm'n., 319 U.S. 61 (1943); U.S. v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598, 619 (2000); Iroquois Gas Transmission Sys., L.P., 52 FERC 61,091 at 61,374 (1990); Arkansas Electric Coop. v. Arkansas Pub. Serv. Comm'n., 461 U.S. 375 (1983); Devon Power LLC, 109 FERC 61,154 at P 47 (2004). The CAA does not give the EPA the authority to regulate electric utility fuel choice, and the EPA may not do indirectly what it lacks the authority to do directly. See Office of Consumers' Counsel v. FERC, 655 F.2d 1132, 1142 (D.C. Cir. 1980); Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers, et al., 531 U.S. 159, 174 (2001).
Response to Comment 57: The EPA disagrees with the commenter's assertion. The EPA's final rule is consistent with the CAA. We do not agree with the commenter's assertion that this final rule constitutes an effective ban on new coal construction and the record does not support such a claim. Based on data available to the agency, at least one EGU is able to meet all of the new-source emission limits.
Comment 58: Commenter 15182 supports the passage of the proposed Air Toxics Rule but adds that the agency must further reduce Hg emissions beyond the current proposed regulation if it is to eliminate the environmental and human health effects associated with Hg. Commenter favors an aggressive schedule to eliminate Hg emissions.
Response to Comment 58: No U.S. regulation can eliminate environmental and health effects associated with Hg due to deposition from global emissions. However this regulation would substantially reduce emissions from the largest domestic source.
Comment 59: Several commenters (17627, 18037, 18539) state that the inclusion of an NSPS proposed rule within a proposed EGU MACT is inappropriate and circumvents the appropriate comment period. Commenters add that the release of both rules in the same proposal suggests that the EPA is short-circuiting the regulatory process, overwhelming the regulated community, and lessening the focus on NSPS provisions. Commenters assert that each rule should have been proposed separately with separate comment periods.
Response to Comment 59: Commenter asserts that the EPA acted improperly by combining in one Federal Register notice the proposed NESHAP and NSPS for EGUs. The commenter implies that the EPA's comment period was insufficient because the two rules were combined. The commenter is wrong. First, CAA section 307(h) requires only a 30-day comment period, and the EPA initially provided a 60-day comment period and extended it by 30 days for a total of 90 days of official comment period. In addition, the proposed rule was signed on March 16, 2011, and the EPA posted the rule along with the vast majority of supporting documents that day or within the following week. The rule was published on May 3, 2011, so commenters were provided approximately 48 days of informal review time to consider the proposed rule. Second, the EPA thinks it is appropriate to combine these rules so the regulated community can consider all the sector-wide requirements. The EPA could have issued separate rules but we believe that would have been inefficient and have unnecessarily increased the costs to the agency.
Comment 60: Commenter 17734 states that there are a large number of related rulemaking efforts coming out in the near term, including revisions to the NAAQS for PM2.5, O3, and 1-hour SO2; a new GHG NSPS; and the recently promulgated CSAPR, which will make it difficult for implementing agencies and affected facilities to determine the most efficient use of resources to allocate in order to cost-effectively achieve compliance. Commenter suggests that if the agency can coordinate, reconcile, and harmonize the overlapping regulatory requirements, it will help to lessen these difficulties.
Comment 61: Commenters 17806 and 17833 state that the proposed rule, in addition to the NSPS for GHGs, new regulations for handling coal ash, and new revisions to the ozone and PM National Air Quality Standards, will have a negative impact on the economies of many regions. Commenter adds that the EPA has not described how the regulations interrelate or whether they have a collective benefit. Commenter requests the agency to withdraw all the proposals mentioned and conduct a cumulative impact assessment.
Response to Comments 60 and 61: The EPA believes that it has coordinated the rules, to the extent permitted by the different underlying statutory mandates, as the commenters suggest. Further, contrary to the opinion of the commenter, we believe that by having basically all of the rules "active" at one time, industry and states are better able to see the full range of requirements and, thus, be better able to plan.
Comment 62: Commenter 17821 states that the EPA needs to consider the future impact of carbon capture on the ability of new EGUs to meet the proposed standards for HAP and criteria emissions. Commenter states that carbon capture is energy intensive and causes increases in parasitic loads, heat rates, and changes in output-based emissions rates. Commenter states that if this technology becomes required, it will result in inability of EGUs to meet net output standards. Commenter adds that the rule as proposed would be a disincentive for carbon capture and conflict with the EPA's goal of reducing GHG emissions. Commenter asserts that the EPA needs to provide clarity in the final rule as to how carbon capture will be accommodated and states that emissions standards should continue to be based on a gross output basis.
Response to Comment 62: Commenter is incorrect. The EPA complied with CAA section 112(d) in proposing and issuing the final standards set forth in this rule. Commenter has provided no legal support for its suggestion that the EPA needs to consider the possibility that carbon capture will be required at some point in the future.
Comment 63: Commenter 17824 states that, while the new ozone limit is aimed toward reducing asthma rates, from 1980-2009, asthma rates increased while two of the key emissions from coal-fired plants (SO2 and NOX) decreased. Commenter asserts that such evidence raises doubt as to the link between air quality and asthma.
Response to Comment 63: The final rule is mandated under CAA section 112 which addresses HAP emissions, not ozone. Thus, this comment is outside the scope of the present rulemaking.
Comment 64: Commenter 17867 states that the rulemaking could affect plans to retire a power plant on a schedule that ensures regional electric reliability on an economically rational basis, and instead either install expensive emission controls or retire the plant early and risk uneconomic electric supplies or reliability problems. Commenter believes the EPA can structure the rule in a way to avoid these results:
   a. The EPA could establish alternative emissions standards for coal-fired EGUs that are based upon health thresholds that would have an adequate margin of safety.
   b. The EPA could create subcategories within the universe of coal-fired EGUs and establish separate emissions standards for each subcategory which take into account the following:
      i. The rulemaking affects a wide range of facilities that are critical to the nation's infrastructure and productive capacity.
      ii. Many of the facilities already operate a variety of pollution control devices and are heavily regulated.
      iii. Geographic issues are present that affect feasibility of different control devices.
   c. The EPA could adopt a phased approach to issuing standards for HAP emitted from EGUs which have not yet been found to present a threat that builds upon the regulation of Hg.
Comment 65: Commenter 18498 states that the EPA should establish a health-based standard for acid gas HAP in the preamble. Commenter adds that the fact that the EPA is suggesting they do not have sufficient information at this time to establish the health-based emission standards for a chemical such as HCl suggests the EPA is not focused on whether acid gases pose any health risk, which would be appropriate under NESHAP rulemaking.
Response to Comments 64 and 65: The EPA does not agree with the commenters' suggested approaches.
First, as we stated in the proposed rule, the EPA does not have sufficient information to establish CAA section 112(d)(4) health-based emission standards and we did not receive such data during the comment period. In addition, we stated in the proposed rule that there were also policy reasons why we would decline to impose such standards even if we had sufficient data. Additional comments related to the health-based emission limits are responded to elsewhere in this document and in the preamble to the final rule.
Second, the EPA can create subcategories based on class, type, and size pursuant to CAA section 112(d)(1). The EPA maintains that it is not reasonable to establish a subcategory based on these various factors unless the differences in the sources also cause the sources to have different emissions profiles. We determined that for coal-fired EGUs the emissions were not different with the exception of Hg emissions from a specific type of unit. We have not identified any differences in emissions from existing units that intend to retire and units that intend to install controls and the commenter has not provided any such information. In any case, we question whether a subcategory for older minimally controlled units would be consistent with our authority to subcategorize under CAA section 112(d)(1). Even if it were, we could still exercise our option not to create such a subcategory as a category for older, lesser controlled EGUs would lead to less stringent standards for such EGUs that might incentivize and artificially extend their operation because it could be cheaper to do so.
Finally, even if we could subcategorize these units, the EPA does not have the authority to extend the compliance period beyond that set forth in CAA section 112(i)(3) for any subcategory of regulated sources.
Comment 66: Commenter 17881 states that in addition to material handling operations and possible changes in boiler flue gas characteristics, it is possible that air quality modeling will be required even when new source review (NSR) permitting is not triggered.
Response to Comment 66: The EPA is unclear as to the commenter's intent and, thus, cannot respond to this comment.
Comment 67: Commenter 17902 asserts that the agency must allow for appropriate external review of the volumes of technical supporting documentation posted for this rule.
Response to Comment 67: The EPA believes that it has followed agency practice and allowed appropriate external review. The public was provided with over 100 days to review the proposed rule and vast majority of the supporting materials. Further, the EPA conducted two external peer reviews; these reviews are discussed elsewhere in this document.
Comment 68: Commenter 17909 states that the rule is complex, convoluted, and appears to contradict itself and provides some explanation and examples of contradictions in the rule. Commenter has serious unanswered questions about the details of the proposed rule and how it will be applied.
Response to Comment 68: The EPA has reviewed the language in the preamble and regulation and made clarifying corrections where necessary.
Comment 69: Commenter 18033 requests that the EPA disclose records of all meetings between the EPA, CEQ and FERC, data, files and FERC's responses regarding the proposed rule. Commenter recommends that the EPA extend the comment period and provide an opportunity for public inspection and comment. Critical errors are directly at odds with the rulemaking requirements under section 307(d). Under paragraph (d)(3), a "notice of proposed rulemaking...shall be accompanied by a statement of its basis and purpose," and this statement "shall include a summary" of the "factual data on which the proposed rule is based," and the "methodology used in obtaining the data and in analyzing the data." In addition, "all data, information, and documents referred to in this paragraph on which the proposed rule relies shall be included in the docket on the date of publication of the proposed rule." This type of rulemaking does little to instill confidence that the agency is conducting an open and transparent process consistent with President Obama's EO 13563.
Response to Comment 69: As stated above, the EPA has complied with section 307(d) in establishing these final standards. The EPA has included in the docket all interagency communications that are required to be included in the rulemaking docket. The EPA is not seeking an extension of the comment period based on this comment,
In addition, the EPA has also complied with applicable Executive Orders in promulgating this final rule.
Comment 70: Commenter 13526 is analyzing the proposed regulations, RIA, and technical support documents and intends to provide formal detailed comments on the proposed regulations at a future date. The commenter requests that the EPA hold additional public hearings for the proposed rule with at least one public hearing at a location in Texas. The commenter notes that the EPA is only holding public hearings in Atlanta, Chicago, and Philadelphia, whereas the proposed regulations affect the entire country, and the EPA should not be limiting the opportunities for public input to just the eastern third of the continental U.S. The commenter believes that the proposed NESHAP regulations may have a disproportionate impact on Texas because Texas generates more electricity than any other state and a significant amount of the electric power generation in Texas is from coal-fired EGUs. Thus, the commenter considers a public hearing in Texas necessary for the EPA to adequately receive input from the public as well as the potentially impacted industries.
Response to Comment 70: The EPA does not believe that opportunities for public input were limited to the eastern third of the U.S. Although a public hearing was not held in Texas, the EPA provided an extension to the public comment period (comment period closed on August 4, 2011). Given the period of time prior to proposal that the rule was posted on the agency's website and, thus, available for public review, over 100 days were provided during which time the public could review both the proposed rule and the vast majority of supporting documents. We believe that this offered sufficient opportunity for the public and potentially impacted industries, including those in Texas, to provide input regarding the proposed rule.
CHAPTER 2: APPLICABILITY
2A - Applicability: Treatment of area sources
Commenters: 15678, 17608, 17620, 17621, 17648, 17756, 17772, 17775, 17817, 17818, 17821, 17846, 17868, 17871, 18031, 18487, 19114, 8443, 19536/19537/19538, 18932, 18023
1. Opposition to separate major and area source standards.
a. The Appropriate and Necessary Determination requires EPA to regulate all EGUs.
Comment 1: Commenter 17648 states that the EPA properly established emissions limitations based upon the performance of all EGUs, rather than distinguishing between major sources and area sources. Congress did not intend the EPA to distinguish between "major source" EGUs and "area source" EGUs in determining whether and how to regulate EGUs under CAA section 112. Commenter states that the EPA's decision not to distinguish between major source EGUs and area source EGUs is consistent with section 112's plain meaning and its underlying purposes. Nothing in section 112 requires the EPA to distinguish between "major source" EGUs and "area source" EGUs when it sets emissions limitations for EGUs. On the contrary, the definition of EGU in section 112 applies to "any" EGU without distinguishing between "major source" and "area source" EGUs. It defines EGU with respect to output capacity, without regard to the mass of HAP emitted, so that smaller units that might properly be regulated as area sources are excluded by definition. EGUs are the only source category specifically defined in section 112, suggesting that Congress did not view EGUs as subject to segregation initially by relative mass of HAP emissions apart from what is provided in the statutory definition. Congress also specified a prerequisite "appropriate and necessary" determination for EGUs before those units may be regulated under CAA section 112, which applies to no other source category. The provisions of section 112(n), which establish that requirement, do not distinguish between major source EGUs and area source EGUs. Instead, the statutory language calls for a determination regarding the threat from emissions of HAP from EGUs. Once the "appropriate and necessary" determination is made, then the EPA is required to regulate all EGUs.
Commenter 17648 continues, had Congress wanted the EPA to distinguish between "major sources" and "area sources" with respect to regulating EGUs, it would have made that direction clear in the statute. When Congress wanted the Agency to treat or consider "major sources" and "area sources" separately, it clearly specified. For example, in sections 112(c)(1) and 112(c)(3), Congress created separate criteria for listing major sources and area sources. By contrast, section 112(n)(1) makes no distinction between major and area source EGUs. Nothing in section 112(n) suggests the EPA should distinguish between EGUs based upon relative size of HAP emissions for purposes of regulating those emissions after making a finding that those emissions present threats to public health and the environment.
Commenter 17648 adds that section 112(c) deals with definitions of "categories" and "subcategories" of sources. EGUs clearly fall within a single category that applies to major sources and must be regulated as such under the statute. Thus, the EPA's treatment of "major source" and "area source" in the Toxics Rule accords with the plain meaning of the statute.