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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Id. § 7412( c)( 9)( B).

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

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

Among other things, that section states:

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

Id. § 7412( n)( 1)( A).

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

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

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

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

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

will not cause public health problems.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

( emphasis added)).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

mercury emissions under section 112, not section 111.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

concluded that it was:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Id. at 63.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This absurd, time traveling approach to assessing different programs'

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

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

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

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

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

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