[Federal Register: October 28, 2005 (Volume 70, Number 208)]
[Proposed Rules]
[Page 62199-62213]
[DOCID:fr28oc05-12]

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Part III

Environmental Protection Agency

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40 CFR Parts 60 and 63

Revision of December 2000 Regulatory Finding on the Emissions of
Hazardous Air Pollutants From Electric Utility Steam Generating Units;
Standards of Performance; Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 63

[OAR-2002-0056; FRL-7989-3]
RIN 2060-AM96

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 Electric Utility Steam
Generating Units From the Section 112(c) List: Reconsideration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of reconsideration of final rule; request for public
comment; notice of public hearing.

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SUMMARY: On March 29, 2005, EPA published a final rule entitled
``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 Electric Utility Steam
Generating Units from the Section 112(c) List'' (Section 112(n)
Revision Rule). (See 70 FR 15994.) Following that final action, the
Administrator received two petitions for reconsideration. In response
to those petitions, EPA is announcing its reconsideration of certain
aspects of the Section 112(n) Revision Rule. We are requesting comment
on the particular issues identified below for which we are granting
reconsideration. Those issues are referenced briefly in the
SUPPLEMENTARY INFORMATION section of the preamble and described more
fully later in this preamble.
    We are seeking comment only on the aspects of the Section 112(n)
Revision Rule specifically identified in this notice. We will not
respond to any comments addressing other aspects of the Section 112(n)
Revision Rule or any related rulemakings.

DATES: Comments. Comments must be received on or before December 19,
2005. Because of the need to resolve the issues raised in this notice
in a timely manner, EPA will not grant requests for extensions beyond
this date.
    Public Hearing. A public hearing will be held on November 17, 2005.
For further information on the public hearing and requests to speak,
see the ADDRESSES section of this preamble.

ADDRESSES: Comments. Submit your comments, identified by Docket ID No.
OAR-2002-0056 (Legacy Docket ID No. A-92-55), by one of the following
methods:
     Federal eRulemaking Portal: http://www.regulations.gov.

Follow the on-line instructions for submitting comments.
     Agency Web site: http://www.epa.gov/edocket. EDOCKET,

EPA's electronic public docket and comment system, is EPA's preferred
method for receiving comments. Follow the on-line instructions for
submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Air and Radiation Docket and Information Center,
U.S. EPA, Mailcode: 6102T, 1200 Pennsylvania Avenue, NW., Washington,
DC 20460.
     Hand Delivery: Air and Radiation Docket and Information
Center, U.S. EPA, Room B102, 1301 Constitution Avenue, NW., Washington,
DC. Such deliveries are only accepted during the Docket's normal hours
of operation, and special arrangements should be made for deliveries of
boxed information.
    Instructions. Direct your comments to Docket ID No. OAR-2002-0056
(Legacy Docket ID No. A-92-55). EPA's policy is that all comments
received will be included in the public docket without change and may
be made available online at http://www.epa.gov/edocket, including any

personal information provided, unless the comment includes information
claimed to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI or otherwise protected through
EDOCKET, regulations.gov, or e-mail. The EPA EDOCKET and the Federal
regulations.gov Web sites are ``anonymous access'' systems, which means
EPA will not know your identity or contact information unless you
provide it in the body of your comment. If you send an e-mail comment
directly to EPA without going through EDOCKET or regulations.gov, your
e-mail address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.
    Public Hearing. The public hearing will run from 8 a.m. to 5 p.m.,
Eastern time, and will be held in Room 111C at the EPA facility,
Research Triangle Park, N.C. Persons interested in attending the
hearing or wishing to present oral testimony should notify Ms. Pamela
Garrett at least 2 days in advance of the public hearing (see FOR
FURTHER INFORMATION CONTACT section of this preamble). The public
hearing will provide interested parties the opportunity to present
data, views, or arguments concerning this notice. The public hearing
for this action will be held on the same date and at the same time and
location as the public hearing for the related reconsideration action
for the Clean Air Mercury Rule (CAMR), published elsewhere in today's
Federal Register.
    If no one contacts Ms. Garrett in advance of the hearing with a
request to present oral testimony at the hearing, we will cancel the
hearing. The record for this action will remain open for 30 days after
the date of the hearing to accommodate submittal of information related
to the public hearing.
    Docket. The EPA has established an official public docket for
today's notice, including both Docket ID No. OAR-2002-0056 and Legacy
Docket ID No. A-92-55. The official public docket consists of the
documents specifically referenced in today's notice, any public
comments received, and other information related to this notice. All
items may not be listed under both docket numbers, so interested
parties should inspect both docket numbers to ensure that they have
received all materials relevant to today's notice. Although listed in
the index, some information is not publicly available, i.e., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
in EDOCKET or in hard copy at the Air and Radiation Docket and
Information Center, U.S. EPA, Room B102, 1301 Constitution Avenue, NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is<PHONE_NUMBER>, and the telephone
number for the Air and Radiation Docket and Information Center is (202)
566-1742.

FOR FURTHER INFORMATION CONTACT: For general and technical information,
contact Mr. William Maxwell, Combustion Group, Emission Standards
Division, Mailcode: C439-01, U.S. EPA, Research Triangle Park, NC
27711; telephone number:<PHONE_NUMBER>; fax

number:<PHONE_NUMBER>; e-mail address<EMAIL_ADDRESS>For
questions about the public hearing, contact Ms. Pamela Garrett,
Combustion Group, Emission Standards Division, Mailcode: C439-01,
Environmental Protection Agency, Research Triangle Park, NC 27711;
telephone number:<PHONE_NUMBER>; fax number:<PHONE_NUMBER>; e-mail
address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    Outline. The information presented in this preamble is organized as
follows:

I. General Information
    A. Does this reconsideration notice apply to me?
    B. How do I submit CBI?
    C. How do I obtain a copy of this document and other related
information?
II. Background
III. Today's Action
IV. Discussion of Issues Subject to Reconsideration
    A. Legal Interpretations
    B. EPA's Methodology and Conclusions Concerning Why Utility Hg
Emissions Remaining After Imposition of the Requirements of the CAA
are not Reasonably Anticipated to Result in Hazards to Public Health
    C. Detailed Discussion of Certain Reconsideration Issues Related
to Coal-Fired Utility Units as Set Forth in Section VI of the Final
Section 112(n) Revision Rule
    D. EPA's Decision Related to Nickel (Ni) Emissions from Oil-
Fired Utility Units
    E. Documents Identified by Petitioners that are Dated After the
Close of the Public Comment Period
V. Clarification and Correction of Statements Made in Final Section
112(n) Revision Rule
VI. Statutory and Executive Order (EO) Reviews
    A. EO 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. EO 13132: Federalism
    F. EO 13175: Consultation and Coordination With Indian Tribal
Governments
    G. EO 13045: Protection of Children from Environmental Health
and Safety Risks
    H. EO 13211: Actions that Significantly Affect Energy Supply,
Distribution, or Use
    I. National Technology Transfer and Advancement Act (NTTAA)

I. General Information

A. Does This Reconsideration Notice Apply to Me?

    Categories and entities potentially affected by today's notice
include:

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                                                                  NAICS code   Examples of potentially regulated
                            Category                                  \1\                  entities
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Industry........................................................      221112  Fossil fuel-fired electric utility
                                                                               steam generating units.
Federal Government..............................................   \2\221122  Fossil fuel-fired electric utility
                                                                               steam generating units owned by
                                                                               the Federal government.
State/local/Tribal Government...................................   \2\221122  Fossil fuel-fired electric utility
                                                                               steam generating units owned by
                                                                               municipalities.
                                                                      921150  Fossil fuel-fired electric utility
                                                                               steam generating units in Indian
                                                                               country.
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\1\ North American Industry Classification System.
\2\ Federal, State, or local government-owned and operated establishments are classified according to the
  activity in which they are engaged.

    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by today's
notice. This table lists examples of the types of entities EPA is now
aware could potentially be affected by today's notice. Other types of
entities not listed could also be affected. If you have questions
regarding the applicability of today's notice to a particular entity,
consult Mr. William Maxwell listed in the preceding FOR FURTHER
INFORMATION CONTACT section.

B. How Do I Submit CBI?

    Do not submit this information to EPA through EDOCKET,
regulations.gov, or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI in a disk or CD ROM that
you mail to EPA, mark the outside of the disk or CD ROM as CBI and then
identify electronically within the disk or CD ROM the specific
information that is claimed as CBI. In addition to one complete version
of the comment that includes information claimed as CBI, a copy of the
comment that does not contain the information claimed as CBI must be
submitted for inclusion in the public docket. Information so marked
will not be disclosed except in accordance with procedures set forth in
40 CFR part 2.

C. How Do I Obtain a Copy of This Document and Other Related
Information?

    In addition to being available in the docket, an electronic copy of
today's notice also will be available on the World Wide Web (WWW)
through EPA's Technology Transfer Network (TTN). Following the
Administrator's signature, a copy of this notice will be posted on the
TTN's policy and guidance page for newly proposed rules at http://www.epa.gov/ttn/oarpg.
 The TTN provides information and technology

exchange in various areas of air pollution control.

II. Background

    On March 15, 2005, EPA signed a final action that revised the
Agency's December 2000 finding made pursuant to Clean Air Act (CAA)
section 112(n)(1)(A), and based on that revision, removed coal- and
oil-fired electric utility steam generating units (Utility Units or
power plants) from the CAA section 112(c) source category list. The
final Section 112(n) Revision Rule was published on March 29, 2005.
(See 70 FR 15994.) CAA section 112(n)(1)(A) is the threshold statutory
provision underlying the Section 112(n) Revision Rule. That provision
requires EPA to conduct a study to examine the possibility of hazards
to public health that are reasonably anticipated to occur as the result
of hazardous air pollutant (HAP) emissions from Utility Units after
imposition of the requirements of the CAA. The provision also provides
that EPA shall regulate Utility Units under CAA section 112, but only
if the Administrator determines that such regulation is both
``appropriate'' and ``necessary'' considering, among other things, the
results of the study. EPA completed the study in 1998 (the Utility
Study), and in December 2000 found that it was appropriate and
necessary to regulate coal- and oil-fired Utility Units under CAA
section 112. That December 2000 finding focused primarily on mercury
(Hg) emissions from coal-fired Utility Units. In light of the finding,
EPA in December 2000 listed coal- and oil-fired Utility Units on the
CAA section 112(c) list of regulated source categories. On January 30,
2004 (69 FR 4652), EPA proposed revising the December 2000 appropriate
and necessary finding and, based on that revision, removing coal- and
oil-fired Utility Units from the CAA section 112(c) list.
    In the final Section 112(n) Revision Rule, EPA revised the December
2000 appropriate and necessary finding, having concluded that it is
neither appropriate nor necessary to regulate coal- and oil-fired
Utility Units under

CAA section 112. EPA took this action because the December 2000 finding
lacked foundation and EPA received new information that confirmed that
it is not appropriate or necessary to regulate coal- and oil-fired
Utility Units under CAA section 112. Based solely on the revised
finding, EPA removed coal- and oil-fired Utility Units from the CAA
section 112(c) list.
    The final Section 112(n) Revision Rule discusses, among other
things, two other recent rulemakings. First, on March 10, 2005, EPA
finalized the Clean Air Interstate Rule (CAIR), which will reduce
nitrogen oxide (NOX) and sulfur dioxide (SO2)
emissions from coal-fired power plants by about 70 percent when fully
implemented. As explained in the final Section 112(n) Revision Rule,
EPA expects Hg co-benefit emissions reductions from CAIR. CAIR was
published on May 12, 2005. (See 70 FR 25162.)
    Second, on March 15, 2005, EPA signed the final CAMR and
established standards of performance for Hg for new and existing coal-
fired Utility Units, as defined in CAA section 111. CAMR was published
on May 18, 2005. (See 70 FR 28606.)
    Following promulgation of the Section 112(n) Revision Rule, the
Administrator received two petitions, filed pursuant to CAA section
307(d)(7)(B), requesting reconsideration of many aspects of the final
Section 112(n) Revision Rule.\1\ The purpose of today's notice is to
initiate reconsideration of certain issues raised in those
petitions.\2\
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    \1\ One petition was submitted by 14 States: New Jersey,
California, Connecticut, Delaware, Illinois, Maine, Massachusetts,
New Hampshire, New Mexico, New York, Pennsylvania, Rhode Island,
Vermont, and Wisconsin (State petitioners). The other petition was
submitted by five environmental groups and four Indian Tribes: The
Natural Resources Defense Council (NRDC), the Clean Air Task Force
(CATF), the Ohio Environmental Council, the U.S. Public Interest
Research Group (USPIRG), 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) (Environmental petitioners). In
this notice, the term ``petitioners'' refers only to those entities
that filed petitions for reconsideration of the Section 112(n)
Revision Rule with EPA.
    EPA also received four petitions to reconsider the CAMR. EPA's
response to those petitions is addressed in a separate Federal
Register notice published today.
    \2\ In a letter dated June 24, 2005, we informed the petitioners
that we intended to initiate a reconsideration process of the
Section 112(n) Revision Rule for at least one issue raised in the
petitions. We indicated that we would provide particulars in a
subsequent Federal Register notice. This is that notice. Also in
that June 24, 2005, letter, we denied petitioners' request that we
administratively stay the Section 112(n) Revision Rule under section
307(d)(7)(B). On August 4, 2005, the DC Circuit denied a similar
request to stay the Section 112(n) Revision Rule pending the outcome
of the litigation challenging the rule.
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III. Today's Action

    Today, we are granting reconsideration of, and requesting comment
on, many of the issues raised in the two petitions for reconsideration.
Generally, the petitioners claim the final Section 112(n) Revision Rule
contains legal interpretations and information that are of central
relevance to the final rule but that were not sufficiently reflected in
the proposed rule, and that they, therefore, did not have an adequate
opportunity to provide input on these matters during the designated
public comment period.
    Further, the petitioners contend that additional information has
become available since the close of the public comment period, and that
this new information is also of central relevance.
    The EPA recognizes that there is a high degree of public interest
in the final rule. The public had three opportunities to submit
comments on the rulemaking, following the January 30, 2004, Notice of
Proposed Rulemaking (NPR), the March 16, 2004, Supplemental Notice of
Proposed Rulemaking (SNPR), and the December 1, 2004, Notice of Data
Availability (NODA). EPA received, reviewed, and responded to thousands
of documents. Thus, a robust public discussion of the rule has already
occurred. Nonetheless, in the interest of ensuring ample opportunity to
comment on all meaningful aspects of this important rule, we are
granting reconsideration on certain issues and asking the public for
additional comment. The issues for which we are granting
reconsideration at this time, and for which we are soliciting comment,
are discussed below.
    Our final decision on reconsideration for all the issues for which
we are not granting reconsideration today will be issued no later than
the date by which we take final action on the issues discussed in
today's action.

IV. Discussion of Issues Subject to Reconsideration

A. Legal Interpretations

    In the final Section 112(n) Revision Rule, EPA explained, in
detail, its interpretation of CAA section 112(n)(1)(A). Petitioners
claim that many of the legal interpretations underlying the final
Section 112(n) Revision Rule were not part of the proposal and,
therefore, that they did not have an opportunity to comment on them
during the designated comment period. They also contend that they did
not have an opportunity to address EPA's application of its legal
interpretations. At this time, EPA is opening for public comment
several aspects of its legal interpretations and its application of
those interpretations as provided in the final Section 112(n) Revision
Rule.
    As explained in the final Section 112(n) Revision Rule, Congress
treated Utility Units differently from other major and area sources and
provided EPA considerable discretion in determining whether to regulate
such units under CAA section 112. CAA section 112(n)(1)(A) provides:

    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 Act. 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.

    At this time, EPA grants reconsideration of its interpretation of
the following terms and phrases in CAA section 112(n)(1)(A), and its
application of those terms and phrases.
1. Hazards to Public Health Reasonably Anticipated To Occur as a Result
of Emissions by Electric Utility Steam Generating Units
    We solicit comment on all aspects of EPA's interpretation of the
above phrase as set forth in the final Section 112(n) Revision Rule and
its application of that phrase. Although we seek comment on all aspects
of EPA's interpretation and application of the above phrase, we clarify
certain points below and identify certain threshold issues raised by
petitioners on which we seek additional comment.
    As EPA explained in the final Section 112(n) Revision Rule, CAA
section 112(n)(1)(A) does not define what constitutes ``hazards to
public health reasonably anticipated to occur'' and EPA has the
discretion to interpret those terms and, using its technical expertise,
determine whether Hg emissions from

Utility Units pose such hazards. (See 70 FR 15997-98, 16023-25.) EPA
also explained in the final Section 112(n) Revision Rule that CAA
section 112(n)(1)(A) does not incorporate the requirements of CAA
section 112(f), including, but not limited to, the two-part ample
margin of safety inquiry set forth at 54 FR 38044 (September 14, 1989)
(the benzene analysis), as referenced in CAA section 112(f)(2)(B).
Accordingly, in evaluating ``hazards to public health reasonably
anticipated to occur'' under CAA section 112(n)(1)(A), EPA is not
subject to the requirements of CAA section 112(f). We are reiterating
this point because the petitions exhibited some confusion in this
regard.
    EPA also noted in the final Section 112(n) Revision Rule that even
assuming, arguendo, that the health-based aspect of the two-part ample
margin of safety inquiry under CAA section 112(f) applied to CAA
section 112(n)(1)(A) (which EPA maintains it does not), EPA's
conclusions would not have differed from the conclusion it reached in
analyzing hazards to public health reasonably anticipated to occur
under CAA section 112(n)(1)(A). In this regard, EPA examined the two
steps in the ample margin of safety inquiry under CAA section 112(f)
from a public health perspective and concluded that even ``if we were
proceeding under section 112(f), we would likely conclude that CAIR,
and even more so CAMR, not only protects public health, but does so
with an ample margin of safety.'' (See 70 FR 16025.) EPA specifically
solicits comment on the above-noted conclusion and EPA's analyses in
this regard. (See also section IV.C of today's notice.)
    Finally, EPA specifically solicits comment on its interpretation
that the relevant inquiry for assessing ``hazards to public health
reasonably anticipated to occur'' under CAA section 112(n)(1)(A) is to
focus on HAP emissions resulting from Utility Units. (See generally 70
FR 15998.)
2. After Imposition of the Requirements of the Act
    We solicit comment on all aspects of EPA's interpretation of the
above phrase as set forth in the final Section 112(n) Revision Rule and
its application of that phrase. (See generally 70 FR 15998-99; section
IV of the preamble to the final Section 112(n) Revision Rule.) Among
other things, we solicit comment on EPA's reliance on CAIR in this
regard.
3. Appropriate and Necessary After Considering the Results of the Study
    We solicit comment on all aspects of EPA's interpretation of the
term ``appropriate.'' Among other things, we seek comment on EPA's
interpretation of CAA section 112(n)(1)(A) as allowing EPA to consider
environmental impacts of emissions from Utility Units in the
``appropriate'' analysis, but only when EPA has already determined that
hazards to public health are reasonably anticipated to occur as the
result of utility HAP emissions. (See 70 FR 15997-98; section IV of the
preamble to the final Section 112(n) Revision Rule.)
    We further solicit comment on EPA's application of its
interpretation of the term ``appropriate.'' We specifically solicit
comment on EPA's application of the term ``appropriate'' in the context
of utility-attributable emissions alone, which reflects EPA's
interpretation of CAA section 112(n)(1)(A).
    In their petitions, petitioners focus on EPA's alternative
``appropriate'' argument. Specifically, in the final Section 112(n)
Revision Rule, EPA explained that even examining the entire global pool
of Hg emissions, as opposed to utility-only attributable Hg (as EPA has
interpreted CAA section 112(n)(1)(A)), EPA would still conclude that it
is not appropriate to regulate coal-fired Utility Units on the basis of
the global Hg pool under CAA section 112. We seek comment on this
argument. (See 70 FR 16028.)
    Moreover, we solicit comment on EPA's interpretation of the term
``necessary,'' but only insofar as EPA has interpreted that term as
involving an analysis of whether the alternative legal authority
identified, if implemented, would result in effective regulation,
including, for example, its cost-effectiveness and administrative
effectiveness. (See 70 FR 16001.) We also solicit comment on EPA's
application of this aspect of the term ``necessary.'' We are not
soliciting comment today on EPA's interpretation of the term
``necessary'' as involving an analysis of whether there is alternative
authority under the CAA that, if implemented, would address hazards to
public health associated with remaining utility-attributable HAP
emissions.
    We further solicit comment on EPA's interpretation of the phrase
``considering the results of the study'' and, in particular, that EPA
is not foreclosed from examining relevant information that becomes
available after the study. (See 70 FR 15999.) We also solicit comment
on EPA's interpretation of CAA section 112(n)(1)(A) as authorizing EPA
to revise a prior appropriate and necessary determination, where, as
here, we believe that the December 2000 finding lacked foundation and
that new information confirms that it is neither appropriate nor
necessary to regulate HAP emissions from Utility Units under CAA
section 112. (See 70 FR 16001.)
    EPA's interpretation of the above identified terms and phrases in
CAA section 112(n)(1)(A) is set forth, in full, in the final Section
112(n) Revision Rule and commenters should refer to that discussion in
formulating any comments. In particular, commenters may want to review
sections III, IV, V, and VI of the final Section 112(n) Revision Rule.
    EPA also specifically solicits comment on EPA's interpretation of
CAA sections 112(n)(1)(A) and 112(c)(9), and its explanation as to why
the requirements of CAA section 112(c)(9) do not apply to EPA's removal
of Utility Units from the CAA section 112(c) source category list. (See
generally section VIII of the final Section 112(n) Revision Rule.)

B. EPA's Methodology and Conclusions Concerning Why Utility Hg
Emissions Remaining After Imposition of the Requirements of the CAA Are
Not Reasonably Anticipated To Result in Hazards to Public Health

    In section VI of the final Section 112(n) Revision Rule, EPA set
out a methodology for evaluating utility Hg emissions and deposition.
That methodology, among other things, assesses the amount of utility-
attributable methylmercury (MeHg) levels in fish tissue and the amount
of fish consumption and evaluates the resulting public health effects.
EPA also set forth in section VI its conclusions based on that
methodology. At this time, EPA is opening for public comment all
aspects of this methodology and the conclusions EPA reached, as
described and justified in section VI and the associated Section 112(n)
Revision Rule technical support documents (TSD).
    EPA is also granting reconsideration with respect to materials
included in the CAIR docket that EPA incorporated by reference into the
docket for the final Section 112(n) Revision Rule, as they pertain to
the methodology in section VI of the final Section 112(n) Revision
Rule. We ask that anyone who comments on materials in the CAIR docket
explain why their comments are pertinent to the issues on which we are
granting reconsideration today.
    Many of the analytical tools (e.g., Community Multiscale Air
Quality model (CMAQ), Mercury Maps (MMaps)) and data sources (e.g.,
emissions inventories, GEOS-CHEM global background, and fish tissue
concentrations) relevant to the methodology described in section VI of
the final Section 112(n) Revision Rule

were described in the NODA and the public, therefore, had an
opportunity to comment on them previously. Nevertheless, EPA today
grants the petitioners' request for an additional opportunity to
comment on those analytical tools and data sources, including how they
informed our final decision, as discussed in section VI of the final
Section 112(n) Revision Rule. Among other things in Section VI, we
solicit comment on EPA's treatment of the uncertainties in the analysis
that support its determination that utility-attributable Hg emissions
remaining after CAIR, and independently CAMR, are not ``reasonably
anticipated to result in hazards to public health.''
    Although we are granting reconsideration on the entire methodology
and our associated conclusions set forth in section VI of the final
Section 112(n) Revision Rule, the following section of this preamble
includes additional discussion concerning particular aspects of that
methodology.

C. Detailed Discussion of Certain Reconsideration Issues Related to
Coal-Fired Utility Units as Set Forth in Section VI of the Final
Section 112(n) Revision Rule

    As explained in the prior section, EPA grants reconsideration of
its methodology and conclusions contained in section VI of the final
Section 112(n) Revision Rule. In this section, we provide additional
information and discussion concerning specific aspects of the
methodology described in section VI of the final Section 112(n)
Revision Rule for which we are soliciting comment.
1. Modeling of Hg Deposition Changes That Result From Implementation of
CAIR and CAMR
    The petitioners claim that EPA did not provide adequate notice of
how EPA intended to use the CMAQ model or of the results from CMAQ
model runs. In addition, some petitioners claim that EPA's reliance on
the CMAQ model was flawed because (a) the model has not been used
before for Hg modeling, (b) the model has not been peer reviewed, and
(c) EPA conducted an inadequate performance evaluation. Other
petitioners assert that CMAQ is not precise enough to estimate
deposition for the purposes of the final Section 112(n) Revision Rule
because the grid size is too large to investigate the possibility of
utility hotspots. These petitioners add that CMAQ under-predicts wet
deposition and that its dry deposition rates are inaccurate because
there is no dry deposition monitoring against which to evaluate the
model predictions. Petitioners add that EPA's averaging of the model-
predicted grid-cell-wide average deposition across all grid cells in a
watershed obscures areas of higher deposition.
    Through the NODA, EPA solicited and received public comment on CMAQ
and how EPA intended to use it generally, and responded to those
comments in the final Section 112(n) Revision Rule. Even so, as noted
above, in the interests of ensuring full opportunity for the public to
comment, we grant reconsideration of EPA's use of CMAQ in its public
health analysis, and solicit comment on the documentation for CMAQ and
the substantive points raised by petitioners, in particular. In
addition, we have developed additional information, summarized below,
on some of the points raised by petitioners, and solicit comment on
that information.
    a. Prior Use, and Peer-Review, of the CMAQ Model. The CMAQ model
used in the Section 112(n) Revision Rule has been used for Hg modeling
previously in model evaluation studies, although not to support a
regulatory analysis. We solicit comment on the following information
concerning peer review, some of which was included in the docket at the
time of the final Section 112(n) Revision Rule, others of which we have
added more recently in support of today's notice.
    The CMAQ model has been peer reviewed, as noted in section III of
the ``Modeling TSD'' (Technical Support Document for the Final Clean
Air Mercury Rule: Air Quality Modeling; OAR-2002-0056-6130).\3\ The
CMAQ Hg module is primarily documented in the peer reviewed Atmospheric
Environment journal article documented in the Modeling TSD (Bullock and
Brehme, 2002). In addition the entire CMAQ model, including the Hg
updates documented in the Modeling TSD, underwent further peer review
in May 2005. A report containing the results of this peer review is
available in the docket (and is also publicly available at http://www.cmascenter.org
).

---------------------------------------------------------------------------

    \3\ CMAQ Review Panel, 2004: Final Report Summary: December 2003
Peer Review of the CMAQ Model. http://www.cmascenter.org/html/CMAQ%20peer%20review%20final_CMAS-web.pdf
, Carolina Environmental

Programs, Chapel Hill, NC.
    CMAQ Review Panel, 2005: Final Report: Second Peer Review of the
CMAQ Model. Carolina Environmental Programs, Chapel Hill, NC (http://www.cmascenter.org
).

    Byun, D., and K.L. Schere, 2005: Review of the Governing
Equations, Computational Algorithms, and Other Components of the
Models-3 Community Multiscale Air Quality (CMAQ) Modeling System.
Applied Mechanics Reviews (in press).
---------------------------------------------------------------------------

    Concerns have also been raised over the exclusion of the State of
Alaska (Healy Plant), the State of Hawaii (AES--Hawaii), and the U.S.
Territories from the modeling analyses supporting CAMR. The primary
reason for this exclusion is that the meteorological model (Mesoscale
Meteorological Model, Version V, which drives the atmospheric chemistry
simulation in CMAQ) does not include these remote areas in its current
modeling domain. Thus, there is no available meteorological information
to assess the transport, diffusion, and deposition from sources in
these regions in the CMAQ modeling analyses.
    Moreover, EPA assessed the magnitude of emissions from coal-fired
power plants in Alaska and Hawaii in the 1999 ICR data and determined
that these plants emitted 0.0155 percent and 0.0162 percent,
respectively, of the total 48 tons of Hg emissions in 1999. Given the
magnitude and density of power plant emissions in the lower 48 States,
and the conclusion stated in the final Section 112(n) Revision Rule
that emissions in the lower 48 States, after the implementation of CAIR
(and moreover CAMR), are not reasonably anticipated to result in
hazards to public health, EPA does not reasonably anticipate that Hg
emissions from units located in Alaska, Hawaii, and the U.S.
Territories pose hazards to public health.
    b. CMAQ Model Evaluation. We solicit comment on the evaluation of
the CMAQ model performance summarized in section VI of the Section
112(n) Revision Rule and discussed more fully in section IV of the
Modeling TSD. In particular, we seek comment concerning our conclusion
that the model performance for CMAQ Hg deposition falls within what has
been considered reasonable model performance for ozone and particulate
matter model applications.
    Currently, there is no continuous measurement network for Hg dry
deposition in part because there is no low-cost dry measurement method
available for use in such a network. Thus, we are not able to evaluate
model performance for Hg dry deposition by comparing model predictions
to monitored observations. Nonetheless, we believe our use of CMAQ
adequately accounts for Hg dry deposition.
    As discussed in the Modeling TSD, the best current scientific
understanding is that wet Hg deposition and dry Hg deposition are
roughly equal in magnitude. In a recent peer-reviewed journal article,
Miller et al. (2005)

discuss in detail the state-of-the-science regarding monitoring wet and
dry deposition in North America. In general, areas with high
precipitation amounts may have more wet Hg deposition and areas with
low precipitation amounts may have more dry Hg deposition. The total
national CMAQ Hg wet deposition is roughly equal in magnitude to the
total national dry deposition (see Modeling TSD) while CMAQ predicts
more dry deposition in dry areas of the country and more wet deposition
in wet areas of the country, as empirical evidence would support.
(Miller, et al., 2005).
    c. Changes in Deposition Predictions. Petitioners state that the
model predictions of higher Hg deposition rates in a 2001 scenario in
which Utility Unit emissions are zeroed-out, compared to a 2020
scenario in which Utility Unit emissions are reduced but not zeroed-
out, reveal the inaccuracies of the model.
    The 2001 utility emissions zero-out scenario results in lower Hg
deposition than the 2020 with CAIR scenario in the high utility-
attributable Hg emissions area of the Ohio River Valley and western
Pennsylvania. The CMAQ model predicts lower utility Hg deposition for
the 2001 utility Hg emissions zero-out scenario than for the 2020 with
CAIR scenario in the areas of highest utility Hg emissions.
    There are a few scattered small areas of the country where the 2001
Hg deposition with utility Hg emissions zeroed-out are higher than the
2020 with CAIR Hg deposition. However, these are in areas where local
non-utility sources of Hg emissions have decreased between 2001 and
2020. In the 2020 with CAIR scenario, not only are utility Hg emissions
reduced from the 2001 scenario, but local non-utility sources of Hg
emissions are also reduced from the 2001 scenario (see table 2 of the
Modeling TSD). Thus, the reason that the model predicts higher Hg
deposition in some scattered areas for the 2001 utility zero-out
scenario, compared to the 2020 with CAIR scenario, is due to decreased
Hg emissions from non-utility Hg emissions sources in the 2020 with
CAIR scenario.
    d. Grid Cell Size and Averaging Across Grid Cells in a Watershed.
Petitioners assert that averaging deposition within the 36 kilometer
(km) grid cell, and averaging deposition across all grid cells within a
watershed, results in imprecise estimates of the effects of Hg
emissions on fish tissue in waterbodies. As explained in the final
Section 112(n) Revision Rule and section 2.1 of the ``Effectiveness
TSD'' in support of the final Section 112(n) Revision Rule (Methodology
Used to Generate Deposition, Fish Tissue Methylmercury Concentrations,
and Exposure for Determining Effectiveness of Utility Emission
Controls, OAR-2002-0056-6301, OAR-2002-0056-6190), we believe that
averaging Hg deposition within a grid cell, and then across all grid
cells that comprise a watershed, is a reasonably accurate methodology
to indicate the impact of Hg deposition on fish tissue levels in
waterbodies within a given watershed.
    Processes operating at the watershed (8-digit hydrologic unit code
(HUC)) level likely influence MeHg concentrations in fish at any given
location within the ecosystem. As water moves through the watershed, Hg
that has been deposited from the atmosphere will also move through the
HUC. Fish living in the aquatic ecosystem can move as well. Some
species migrate, while others may travel significant distances in large
lakes and through river and stream networks while other species remain
within smaller geographic areas. Therefore, there is additional
geographic uncertainty associated with where the fish are exposed to Hg
deposition. Additionally, many fishers visit numerous waterbodies to
fish. Averaging to a larger geographic unit (U.S. Geological Survey
(USGS) 8-digit HUC) representative of an ecosystem unit (watershed)
helps us to avoid modeling false precision between the exposure of fish
and the source of the deposited Hg, and fishing activity.
    Given all of these factors, averaging enables us to produce an
accurate regional or watershed level picture of deposition. Thus, 36 km
resolution CMAQ output, which is generally somewhat smaller than the 8-
digit HUC resolution, is an appropriate geographic resolution from
which to analyze air deposition of Hg to the ecosystem, and averaging
deposition across grid cells within a given watershed enables a
watershed-level characterization of Hg.
2. EPA's Method for Determining How Changes in Utility-Attributable Hg
Deposition Would Result in Changes in Concentrations of MeHg in Fish
Tissue.
    Petitioners claim that the 1,633 sample sites for fish tissue MeHg
levels are too few to adequately represent the millions of lake acres
and river miles in the U.S. They also argue that the samples do not
adequately represent the places where people regularly fish, and in
particular that the geographic scope of sample sites is too limited.
Petitioners also contend that EPA's elimination of small-sized fish
samples resulted in too few sites for Virginia, Pennsylvania, Ohio, and
certain other States, even though most of the utility-attributable Hg
deposition occurs in these States.
    We solicit comment on the sufficiency of the sample site data set
for the analytic purposes described in the final Section 112(n)
Revision Rule, in particular the specific issues raised by the
petitioners. In addition, we solicit comment on the additional
information that we have developed, described below, which is pertinent
to the concerns expressed by the petitioners, as noted above.
    We have re-examined aspects of the sufficiency of the fish tissue
data set related to fish tissue concentrations and believes that
because it is not realistic to directly sample, on a yearly basis, over
40 million lake acres and 3 million miles of river, the issue is
whether the available samples comprise a representative sample of U.S.
waterbodies. As part of this evaluation, EPA examined the geographic
area that a single sample represents.
    We have examined the similarity of sample sites within a particular
geographic area. We define similarity in terms of variance, which is
the average squared deviation of all values from the mean. The values
are the levels of MeHg in fish tissue at the sample sites. We determine
variance on the basis of all the values within particular geographic
units.
    Our exploratory studies have found that samples taken from within
the same watershed are reasonably similar to each other. They are more
similar to each other than samples taken within larger geographic areas
like States or the entire nation. EPA has examined whether samples
continued to be more alike at the smaller geographic unit of a county.
The samples are not greatly more alike within counties than they are
within watersheds (which can contain several counties). Variance among
fish tissue concentrations from across the nation is 0.21 parts per
million (ppm). Average variance within States is 0.07 ppm. Average
variance within watersheds is 0.053 ppm, and average variance within
counties is 0.050 ppm.
    The difference between a geographic unit of analysis on the county
level, compared to a watershed level is, 0.003 ppm in variance. This
represents less than a 1 percent decrease in variance within the sample
data, an amount which is quite small. Note that in the Effectiveness
TSD, the average concentration is 0.43 ppm.
    The relatively small amount of variance within a watershed of 0.053
ppm, compared to the average concentration of 0.43 ppm, and the
comparability of the intra-watershed

variance with intra-county variance, supports EPA's use of the
available fish tissue samples to adequately represent MeHg levels over
a watershed.
    Applying this assumption of representativeness means that the fish
tissue sample data are representative of all the rivers and lakes found
within the watersheds in which they were taken. The set of fish tissue
concentration samples used for the Effectiveness TSD covers
approximately 24.5 percent of all the HUCs which, in turn, contain 50
percent of lakes and 25 percent of river miles in the U.S. While EPA
does recognize that there are HUCs from which no fish tissue samples
have been taken, our sample set provides an adequate regional,
watershed-level characterization.
    The adequate portrayal or characterization of concentrations in
areas that have not been sampled can lead to more uncertainty in the
analyses. The unavailability of predictive models to accurately
estimate values of Hg concentrations in fish where no samples have been
taken makes it difficult to quantitatively assess how representative of
unsampled geographic locations the existing sample data set is. Thus,
to assess the coverage of the available data set of fish tissue
samples, we can examine how similar the data set is to other data
resources that provide complete national coverage, and are believed to
be related to fish tissue concentrations. Total air mercury deposition
is one such data set.
    It is not unreasonable to assume that the fish tissue samples would
have similar statistical characteristics to Hg deposition
concentrations. In other words, if total Hg concentrations are
dependent upon total Hg deposition, we would expect the distributional
properties in each data set to be similar. The degree of similarity
between the distributional properties of the two data sets (deposition
and fish tissue concentrations) can be somewhat assessed by a visual
comparison of the patterns shown in figures 2.9 and 3.4 of the
Effectiveness TSD.
    Figures 2.9 and 3.4 graphically depict the cumulative distributions
for the two data sets--Hg deposition and fish tissue concentration. A
visual comparison of these two distributions reveals similar
distributional properties. Both data sets show that small numbers of
observations (samples/HUCs) have low values, while the majority of the
data are within a tightly defined middle range, with the highest
concentrations deviating further from the rest of the data, but small
in numbers compared with the overall data set.
    While examining these data sets in this manner does not
conclusively or quantitatively prove that new fish tissue samples would
never be outside the statistical range of the existing distributions
(minimum and maximum value), it does suggest that if air deposition and
fish tissue concentrations have similar distributions, the fish tissue
sample data set is representative of the total population of U.S. fish.
Thus, the sample of fish tissue concentrations available to EPA for the
Effectiveness TSD in support of the final Section 112(n) Rule analyses
is adequate to reasonably characterize the range of potential health
risks.
    In response to petitioners' argument that there are not enough
samples in the West, we note that in the Effectiveness TSD, which
focuses on examining the role coal-fired power plants play in Hg
deposition and fish tissue concentration, the lower density of samples
in the West is of comparatively little concern because of the low
utility-attributable Hg deposition there. Figure 2.2 of the
Effectiveness TSD shows that in the West, Hg deposition from power
plants is less than 1 microgram per square meter ([mu]g/m\2\), while in
the East, it can account for average HUC levels as high as 20 [mu]g/
m\2\. Although these data do not mean that the West is not of any
concern, they do show that utility-related impacts are significantly
lower in the West than in the East, and, therefore, they do not form a
significant portion of the foundation of EPA's decision.
3. EPA's Approach to Estimating Utility-Attributable Exposure
    Petitioners provide substantive comments on certain aspects of
EPA's decision regarding exposure pathways and health risks associated
with Hg exposure. We provide further information below on some of the
points they raise, and we solicit comment on this information.
    a. Exposure Pathways. The petitioners assert that EPA, by limiting
its focus to one fish consumption pathway of Hg exposure--freshwater
fish caught by recreational and subsistence fishers--failed to
adequately evaluate four other fish consumption pathways for human Hg
exposure: (a) Marine (saltwater) fish, (b) commercial freshwater fish,
(c) fish produced through aquaculture, and (d) estuarine fish.
Furthermore, the petitioners charge that EPA failed to explain the
rationale for assessing these pathways qualitatively.
    Petitioners are correct that considering the total concentrations
of MeHg in fish tissue resulting from all sources of Hg emissions
(including global sources), marine fish present the primary source of
Hg exposure to most persons living within the U.S. However, as
explained in the final Section 112(n) Revision Rule, EPA has
interpreted CAA section 112(n)(1)(A) as calling for an analysis of the
hazards to public health reasonably anticipated to occur as the result
of emissions by Utility Units. Thus, as explained in the final Section
112(n) Revision Rule, the proper inquiry for purposes of CAA section
112(n)(1)(A) is to examine the concentrations of MeHg in fish tissue
that result from U.S. coal-fired power plant Hg emissions. As discussed
in the final Section 112(n) Revision Rule, emissions of Hg from U.S.
coal-fired power plants most significantly impact concentrations of
MeHg in freshwater fish; thus, it was appropriate for EPA to focus on
this pathway in the CAA section 112 rulemaking. Nonetheless, we
recognize that other exposure pathways may still contribute to the
total exposure from U.S. coal-fired power plant Hg emissions, and,
thus, we explore them more fully below and in the ``Reconsideration
TSD'' in support of the final Section 112(n) Revision Rule (Technical
Support Document: 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 Electric
Utility Steam Generating Units from the Section 112(c) List:
Reconsideration). EPA solicits comment on all of these issues,
comments, and analyses.
    Marine Fish Pathway. The petitioners argue that because utility-
attributable Hg deposits in areas where marine fishing occurs, human
health impacts attributable to power plant Hg emissions should be
reasonably anticipated, noting that a number of commercially important
marine fish have relatively high Hg concentrations.
    In the Effectiveness TSD, EPA did acknowledge that marine systems
could be affected by U.S. power plant Hg emissions, but concluded that
based on the available science marine species do not appear to be
significantly affected by Hg emissions from U.S. power plants. The
actual quantification of this impact was not conducted because of the
scientific uncertainty in modeling marine systems. (See Reconsideration
TSD, section 2.) For today's action, EPA conducted an analysis using
upper-bound assumptions, including the assumption of a proportional
relationship between decreases in utility-attributable Hg deposition
and decreases in MeHg fish tissue concentration. (See Reconsideration

TSD, section 3.) The conclusion of this analysis reinforces our
conclusion to focus our previous quantitative analysis on self-caught
freshwater fish, not marine fish. This conclusion is based on the small
contribution of the U.S. power plant Hg emissions to open ocean
environments. High-end consumers eating over 200 grams per day of a
cross-section of marine fish would have an Index of Daily Intake (IDI)
value of about 0.05.\4\ (See Reconsideration TSD, table 3.2.) Even if
this high-end consumer exclusively ate marine fish with one of the
highest utility-attributable MeHg concentration levels, the consumer
would have an IDI value below one. (See Reconsideration TSD, table
3.3.) Given that the IDI values for the marine fish pathway are
significantly less than one for moderate consumption rates and less
than one even for the extreme combination of high consumption rate of
marine fish with high MeHg levels, EPA maintains that marine fish are a
pathway of small concern when evaluating the health impact of Hg
emissions from U.S. power plants.
---------------------------------------------------------------------------

    \4\ As described in the final Section 112(n) Revision Rule, the
IDI is an index of exposure to Hg due solely to power plants. An IDI
of 1 or greater indicates that an individual exposure to Hg from
power plants is equal to or exceeds the EPA reference dose (RfD) for
Hg due solely to utility-attributable Hg exposure. (See 70 FR
16021.)
---------------------------------------------------------------------------

    Aquaculture Fish Exposure Pathway. The petitioners assert that our
qualitative treatment of utility-attributable Hg exposure due to U.S.
aquaculture fish was not adequate. EPA acknowledged in the
Effectiveness TSD that we lacked ``sufficient information to
characterize the impact of utility emissions on aquaculture'' due to
the unique nature of the aquaculture pathway and gaps in the available
data. By this statement, we meant that we were not able to provide a
quantitative estimate then. Nor can we do so now. As explained in
section 5 of the Reconsideration TSD, the concentration of MeHg in
aquaculture fish is dependent on the MeHg content of the fish products
fed to aquaculture fish. Thus, it is the location and type of the fish
caught to make fish feed, as opposed to the location of aquaculture
farms, that is relevant to assessing the utility-attributable
concentration of MeHg in aquaculture fish. Furthermore, many of the
commonly consumed aquaculture fish species (e.g., catfish) tend to have
lower concentrations of MeHg than many of the commonly consumed marine
fish, and the total amount of aquaculture fish consumed in the U.S. is
substantially less than the total amount of marine fish consumed in the
U.S.
    Having already concluded that an upper-bound estimate of utility-
attributable Hg exposure due to marine fish is small and that the
utility-attributable Hg exposure due to aquaculture is smaller than for
marine fish, we reasonably conclude that the utility-attributable Hg
exposure due to aquaculture fish is minimal.
    Estuarine Fish Exposure. EPA believes that the state of the science
currently does not support a national-scale quantitative analysis for
this component of the exposure pathway. The studies cited as examples
by the petitioners assumed a proportional relationship between declines
in Hg deposition and declines in MeHg concentrations in estuarine fish.
However, while such an assumption is supported for freshwater systems,
it has not been endorsed by EPA or the scientific community as an
appropriate method for characterizing the effects of Hg emissions
reductions on MeHg estuarine fish concentrations. (See section 4.1 the
Reconsideration TSD.)
    EPA finds that the available data indicate that the utility-
attributable exposure to Hg from estuarine fish and shellfish will
likely be small relative to that from self-caught freshwater fish.
    We estimate that the total exposure from the entire global Hg pool
(i.e., all Hg sources, including, but, not limited to power plants,)
associated with consumption of estuarine and near-coastal fish is
roughly one third of the exposure from all marine species. This
fraction includes near-coastal fish caught on the Pacific Coast and
other areas not significantly affected by U.S. power plants. This
estimate of total Hg exposure from estuarine species is thought to be
an upper bound because it is based on total Hg concentrations in
shellfish rather than MeHg concentrations, the Hg species that is
toxicologically most significant. (See section 4 of the Reconsideration
TSD.)
    Of the Hg exposure associated with the consumption of estuarine and
near-coastal fish, we estimate that the utility-attributable fraction
is small. As described in section 4 of the Reconsideration TSD, utility
deposition after CAIR, and even more so after CAMR, is small in the
coastal areas, especially taking into account estuarine and near-
coastal fisheries on the West Coast. Finally, populated coastal regions
like the Chesapeake Bay and Baltimore Harbor (Mason and Lawrence, 1999)
will receive significant land-based (e.g., point source discharges) Hg
inputs from wastewater effluents, municipal waste discharges, and
historical Hg contamination that is slowly leaching from the watershed.
    Although we are not able to provide a national-scale quantitative
estimate of the utility-attributable Hg exposure from the consumption
of estuarine and near-coastal species of fish and shellfish, for all of
these reasons we conclude that this exposure pathway is small relative
to the self-caught freshwater pathway.
    Commercial Freshwater Fish Exposure Pathway. The petitioners raised
concerns over the contribution of commercial freshwater fish to human
Hg exposures. Specifically, the petitioners are concerned that the
annual Great Lakes commercial freshwater fish harvest is 17 million
pounds and EPA's air deposition modeling shows that relatively higher
levels of utility-attributable Hg deposition, after CAIR and CAMR,
occurs in the Great Lakes region.
    Freshwater commercial fish are not a significant exposure pathway
because a total consumption of 17 million pounds/year (lb/yr) is small
when compared to recreational freshwater fish consumption of 377
million lb/yr (see section 6, Reconsideration TSD), or 22 times the
Great Lakes' commercial haul.\5\ Further, even though utility-
attributable Hg deposition is comparatively higher around the Great
Lakes and the regional watershed surrounding the Great Lakes as defined
by the USGS, in comparison with the rest of the U.S., it is still only
a small percentage of Hg deposition from all sources. Within small HUC
cataloging units, the average percent of total Hg deposition that is
attributable to power plants in these areas is approximately 14 percent
in 2001. By 2020 after CAIR, this will decrease to approximately 8
percent. After CAMR, utility-attributable deposition decreases further
to approximately 7.5 percent. Thus, following the assumptions in MMaps,
approximately 10 percent of the Hg in the fish found in this area is
attributable to power plants.
---------------------------------------------------------------------------

    \5\ The Great Lakes commercial haul is 0.2 percent of the total
commercial haul. The marine haul represents the most significant
fraction of the total haul and is discussed elsewhere. (See
Reconsideration TSD, section 6.)
---------------------------------------------------------------------------

    As described above, the commercial freshwater harvest is small
compared to recreational freshwater consumption. Additionally, only a
portion of the commercial freshwater harvesting area is affected by
comparatively higher concentrations of utility-attributable Hg
deposition in [mu]g/m2 (Lakes Michigan, Erie, and Huron),
and the Great Lakes utility-attributable Hg deposition is not
disproportionately higher than the immediately surroundings areas for

recreational freshwater harvest. All of these factors lead us to
believe that the commercial freshwater fish exposure pathway is still
expected to be small relative to the national recreational freshwater
exposure pathway.
    Although we are not able to provide a national-scale quantitative
estimate of the utility-attributable Hg exposure from the consumption
of commercial freshwater species of fish, for all of the reasons
discussed above, we conclude that exposure from this pathway is small.
    b. Joint Consumption. In order to examine utility-attributable Hg
exposure from total fish consumption quantitatively, it would be
necessary to have information on the distribution of consumption of
each type of fish--recreational freshwater, commercial freshwater,
recreational saltwater, etc--as well as utility-attributable MeHg
concentrations (either sufficiently accurate or upper-bound) for each
type of fish. If we were able to identify the consumption of each type
of fish as well as utility-attributable MeHg concentrations for each
type of fish, then the IDI values from each type of fish could be
calculated and added together to arrive at a total IDI value. Currently
no such data exists. While we are not able to develop a quantitative
estimate, for the reasons described above and in the Reconsideration
TSD, EPA maintains that self-caught freshwater fish consumption
represents the most significant exposure pathway for the populations
with the highest utility-attributable exposure.
    At any given total fish consumption rate noted in our analyses,
introducing aquaculture, marine, or estuarine fish into the diet of a
self-caught freshwater fish consumer necessarily implies reducing
consumption of self-caught freshwater fish (e.g., in order to maintain
the same total fish consumption rate). As discussed in previous
sections, because power plants contribute more Hg to freshwater fish
species than to any other fish species, such substitution implies a
lower IDI than is associated with consumption of self-caught freshwater
fish alone, supporting the assertion that self-caught freshwater fish
consumption represents the primary source of utility-attributable Hg
exposure. Hence, for any given consumption rate, consumption of self-
caught freshwater fish alone leads to a higher IDI than that of any
other combination of fish, supporting our decision to focus our
analysis on consumption of self-caught freshwater fish.
    Table 6.4 of the Effectiveness TSD (US EPA 2005a) shows an array of
consumption values combined with percentiles of MeHg concentration in
freshwater fish. Results for 2020 with CAIR indicate that estimated
IDIs are all well below 1 for the first three consumption rates.
Estimated IDIs are over one for 99th percentile recreational fishers
and mean subsistence Native Americans only when all of the fish
consumed has MeHg concentrations at the 99th percent level, a
convergence of factors which is unlikely to occur. (See 70 FR 16024.)
Estimated IDIs for the 95th (170 g/day) and 99th percentile (295 (g/
day) subsistence Native American consumers are above one for lower
percentile MeHg concentration fish. It is unlikely that these consumers
would add significant amounts of non-self-caught freshwater fish to
their diets over the course of a year, but rather would substitute
fish, again supporting our focusing on the consumption of self-caught
freshwater fish.
    Further, we have no evidence that high-end consumers of self-caught
fish also consume other types of fish. It is highly unlikely that
subsistence individuals eating 170 g/day or 295 g/day of self caught
freshwater fish would also consume significant quantities of marine
fish. Even if we were to assume that these consumers do eat additional
fish, the additional MeHg ingested by these consumers is believed to be
small as described above. For scenarios in which the IDI value is below
one, it is unlikely that a consumer would add a sufficient amount of
other fish (with lower utility-attributable MeHg concentrations than
freshwater fish) to their freshwater fish diet to cause their IDI to
exceed one.
4. Utility Hotspots
    In the final Section 112(n) Revision Rule, we explained that we do
not believe that there will be any utility hotspots after
implementation of CAIR. In the final Section 112(n) Revision Rule, we
defined a ``utility hotspot'' as a waterbody with utility-attributable
MeHg levels in excess of the MeHg water quality criterion of 0.3 ppm
(milligram per kilogram (mg/kg)). The methodology for calculating an
exceedence of the MeHg water quality criterion is explained in the
Effectiveness TSD, including the approach of looking at the highest
MeHg concentration fish species and averaging across samples within
that species.
    The petitioners asserted that this definition of a ``utility
hotspot'' differs from the definition in the NPR. The petitioners also
asserted that EPA's definition of a utility hotspot differs from the
common understanding of that term and, therefore, obscures what the
petitioners consider to be waterbodies with problematically high levels
of MeHg. The petitioners further stated that the water quality
criterion that EPA uses as the basis of its definition of a utility
hotspot is defective in that it is based on assumptions about fish
consumption habits that, the petitioners assert, are incorrect. The
petitioners also stated that EPA's definition fails to consider that
even when utility-attributable Hg emissions may not be the sole cause
of problematically high MeHg levels in a waterbody, they may contribute
to existing background levels so that total MeHg levels are
problematic. In addition, the petitioners objected to EPA's position
that utility hotspots should not be considered a problem because even
if they do occur, EPA can address them in the future.
    Today, we grant the petitions to reconsider on the issue of how to
define a ``utility hotspot'' for purposes of the finding concerning
regulation of Utility Units under CAA section 112. We also solicit
comment on our analysis and conclusions concerning utility hotspots, in
section VI.J of the final Section 112(n) Revision Rule (70 FR
16025).\6\
---------------------------------------------------------------------------

    \6\ Petitioners note that EPA used different variations of the
term ``hotspot'' in the final Section 112(n) Revision Rule. As part
of this reconsideration process, we are clarifying that we mean
``utility hotspot.''
---------------------------------------------------------------------------

5. Cross-Cutting Issues
    a. Regulation of Power Plant Hg Emissions Under CAA Section 112
Beyond CAIR. In two separate sections of the final Section 112(n)
Revision Rule, EPA makes statements comparing the costs of further
controlling Hg emissions from coal-fired power plants to the benefits
that may accrue from those additional reductions. The statements appear
in the context of ``alternative arguments'' that EPA provided in
addition to its main argument that utility Hg emissions remaining after
implementation of CAIR, and even more so after CAMR, are not reasonably
anticipated to result in hazards to public health. (See 70 FR 16025
(discussing CAA section 112(f)), and 70 FR 16028 (discussing utility-
attributable Hg emissions in the context of the global pool).)
    The Reconsideration TSD contains additional information supporting
EPA's statements about the costs and benefits of further reductions of
Hg emissions from Utility Units. As explained in the Reconsideration
TSD, we evaluated the costs and benefits of regulating under section
112 beyond the level of CAIR using a screening analysis. In this
regard, we presumed that the costs of regulating under section 112 are

at least as great as the costs of regulating under CAMR. This
assumption is a lower bound estimate of the potential costs of
regulating under section 112. See Cost and Energy Impacts--Technical
Support Document (Cost TSD). We further estimate the neurological
benefits of the complete elimination of utility-attributable Hg after
CAIR, which is an upper-bound estimate of the health benefits of
regulating under section 112 beyond CAIR. As explained below, the lower
bound cost of regulating under section 112 beyond the level of CAIR far
exceeds the upper bound estimate of the benefits of such regulation.
Therefore, regulating under section 112 beyond the level of CAIR would
not be justified.
    In particular, in the Reconsideration TSD, EPA performed an
analysis of the upper bound of benefits of reduced intelligent quotient
(IQ) decrements that could be obtained from eliminating exposure to
U.S. power plant Hg emissions after CAIR. The analysis is a bounding
analysis in the sense that the resulting health benefit estimate is
almost certainly above the true health benefits of improved
neurological performance associated with reducing Hg emissions from
power plants.
    The benefit calculation follows directly from the IDI values
presented in table 6-4 of the Effectiveness TSD and the IDI values
calculated for the marine pathway in the Reconsideration TSD. Using a
dose-response relationship, we translate these IDI values into
neurological improvements, using IQ points as a surrogate, were power
plant Hg emissions to be eliminated. We then estimate the monetized
value of these IQ point increments and discount these future monetized
benefits to account for the ecosystem response time.
    The total annualized cost of CAMR exceeds the upper bound estimate
of the total health benefits from eliminating utility-attributable Hg
exposure in 2020 after the implementation of CAIR. It should be noted,
however, that CAMR does not eliminate all Hg emissions and that CAMR's
cost estimate is based on a market-based approach, generally considered
to be one of the lowest cost regulatory options.
    Given that the total monetized costs of CAMR (which only partially
eliminates remaining power plant Hg emissions after CAIR) exceed the
total monetized benefits of eliminating all remaining power plant Hg
emissions, it is reasonable to conclude that the cost of requiring
further reductions in U.S. power plant Hg emissions beyond CAIR would
significantly outweigh the benefits associated with reductions in IQ
decrements. We request comment on these analyses and calculations.
    Moreover, as noted below, even if EPA were to undertake a similar
analysis for non-Hg HAP emissions from coal-fired Utility Units, we
would likely conclude that the benefits from additional regulation of
the non-Hg HAP under section 112 were not justified by the costs. This
statement is supported by the Utility Study Report to Congress (see
http://www.epa.gov/ttn/atw/combust/utiltox/utoxpg.html#TEC) The health

benefits of eliminating non-Hg HAP would likely reduce cancer cases by
only a few per year. (See ES-5 high-end estimate of 1.3 cancer cases
per year from HAP from inhalation from coal-fired power plants). The
multi-pathway assessment increases this estimate somewhat (see, for
example, the estimate that radionuclides may increase risk by a small
amount. ``The estimated cancer incidence in the U.S., due to emissions
and dispersion of radionuclides within 50 km of each utility, is
estimated to be 0.3 cancer deaths/yr.'' ES22.) The non-cancer risks are
small. (``The highest estimated long-term ambient HAP concentration was
10 times below the RfC.'')
    Using economic valuation of these health endpoints would not lead
to significant monetized health benefits (see U.S. EPA, 2000,
Guidelines for Preparing Economic Analyses, EPA 240-R-00-003, for a
discussion of the Agency's methodology for valuing reduced premature
mortality and morbidity). The costs of controls to reduce non-Hg HAP
would be far greater. (See 70 FR 25201 for a discussion of the cost of
scrubbers.) We request comment on these analysis, calculations, and
conclusions.
    b. EPA's Selection of 2020 as the Date for Measuring the Remaining
Emissions. Some petitioners argue that EPA should not have based its
decisions regarding hazards to public health based on emissions as of
2020; rather, EPA should have looked at earlier dates that tracked
those that would apply if a CAA section 112(d) standard were
promulgated, followed by a residual risk review under CAA section
112(f).
    For the reasons stated in the final Section 112(n) Revision Rule,
EPA continues to believe that it must look at what emissions from
Utility Units will be after imposition of the requirements of the CAA,
here CAIR, and independently CAMR, when determining whether it would be
appropriate and necessary to regulate Utility Units under CAA section
112. Thus, it was reasonable for EPA to look at what Utility Unit Hg
emissions were predicted to be after imposition of CAIR, and,
independently, CAMR. Nonetheless, after the Section 112(n) Revision
Rule was finalized, EPA modeled scenarios for the years 2010, 2015, and
2020 that included the CAIR, CAMR, and Clean Air Visibility Rule (CAVR)
programs. For the reasons set forth below and in section 10 of the
Reconsideration TSD, we believe this modeling supports our position
that the expected Hg deposition with CAIR plus CAMR in 2015 is expected
to be similar to the Hg deposition with CAIR plus CAMR in 2020. (See
Modeling TSD, section V.B.) EPA takes comment on our tentative
conclusion that the modeling shows that most of the reductions from
CAIR will be achieved by 2010. Moreover, as we noted in the final
Section 112(n) Revision Rule, CAIR targets the form of Hg of the
greatest importance for local and regional deposition purposes (i.e.,
ionic or oxidized Hg, also know as reactive gaseous Hg (RGM)). (See 70
FR 16011, n.37). As noted in section II of the Modeling TSD, Hg
reductions associated with CAIR co-control result in a 62 percent
reduction in RGM by 2020. However, because of the 2010 Phase I CAIR
cap, most of these reductions in RGM are expected to occur by that
time. Reductions related to CAMR, on the other hand, lead to
proportionately more reductions in elemental Hg because of the reliance
on Hg-specific controls for the 2018 cap.
    First, CAVR indicates that States that opt into the CAIR trading
program can satisfy CAVR without imposing further requirements on
eligible utility sources. (See 70 FR 39137 and 40 CFR 51.308(e)(4).)
Therefore, in the CAIR States, it is reasonable to presume that there
would be no further reductions in utility Hg emissions from CAVR. Thus,
in these States, it is reasonable to presume that the modeled CAIR/
CAMR/CAVR reductions in Hg emissions are a fair representation of CAIR/
CAMR Hg reductions.
    Second, the most readily depositable Hg emissions are RGM
emissions. As discussed in the Reconsideration TSD, the CAIR/CAMR/CAVR
runs show a significant drop in modeled utility RGM emissions of almost
11 tons between 2001 (20.6 tons) and 2010 (9.7 tons) (primarily, as
noted above, as a result of the co-control effected by the CAIR Phase I
cap). Much smaller reductions occur between 2010 and 2015 (2.5 tons),
and even smaller reductions between 2015 and 2020 (1.1 tons) (because
of the large reductions in RGM emissions already effected and because
of the increased reliance on the CAMR Hg-specific controls for the 2018
Phase II cap). Additionally, there is a similarly

significant drop in the modeled utility-attributable Hg deposition from
2001 to 2010 (because of the large reductions in RGM), and very small
changes in the utility-attributable Hg deposition from 2010 to 2015 and
from 2015 to 2020 (because of the increased reliance on Hg-specific
controls to meet the 2018 Phase II CAMR cap, which results in increased
reductions in elemental Hg emissions--a form that does not readily
deposit). Finally, we would expect that, in accordance with our
assumptions in the MMaps model for purposes of this rulemaking,
reductions in utility-attributable MeHg levels in fish tissue by 2010
and 2015 would parallel the reductions in utility-attributable Hg
deposition by those years.
    We ask for comment on EPA's position that the above-noted modeling
results are a fair indicator or representation of the levels of
utility-attributable Hg emissions and deposition that one could
reasonably anticipate in the CAIR States in 2010 and 2015 for CAIR/
CAMR.

D. EPA's Decision Related to Nickel (Ni) Emissions From Oil-Fired
Utility Units

    In the final rule, EPA determined that it is neither appropriate
nor necessary to regulate oil-fired units on the basis of nickel (Ni)
emissions. In support of that finding, EPA explained that it was ``not
appropriate to regulate oil-fired Utility Units under CAA section 112
because we do not anticipate that the remaining level of utility Ni
emissions will result in hazards to public health'' (70 FR 16008).
    Petitioners contend that EPA did not quantify the cancer risk
resulting from the changed fuel mixes at oil-fired units, and did not
establish that the changes in fuel mix upon which EPA relied in making
its determination are permanent and enforceable.
    We are granting reconsideration of the Agency's conclusion that it
is not appropriate or necessary to regulate oil-fired units under CAA
section 112 on the basis of Ni emissions. (See section IV.B.1 of the
final Section 112(n) Revision Rule.) EPA is particularly interested in
information related to the primary factors supporting its decision not
to regulate Ni emissions from oil-fired Utility Units under CAA section
112, including those it identified in the final Section 112(n) Revision
Rule. Those factors are: (1) The low level of risk presented by Ni
emissions from oil-fired Utility Units as documented in the Report to
Congress; (2) uncertainty regarding the health impacts of Ni emissions
from oil-fired Utility Units; (3) the trend toward a reduction in the
utilization of oil for electric power generation; and, (4) the fact
that EPA is aware of no information regarding the health impacts of Ni
emissions from the plants located in Hawaii that would justify
regulating those units, much less the entire class of oil-fired Utility
Units, under CAA section 112.
    In summary, EPA is specifically seeking the following:
    (1) Information indicating that the trend away from the use of oil
in the generation of electricity will not be maintained.
    (2) Information indicating that there are oil-fired power plants
other than the 11 plants identified in the Report to Congress and
considered in the December 2000 finding with estimated risk values
greater than 1 x 10-6.
    (3) Specific information indicating that any of the 11 identified
plants pose a greater risk than EPA has considered to date.

E. Documents Identified by Petitioners That Are Dated After the Close
of the Public Comment Period

    Petitioners also identify certain documents that are dated after
the close of the public comment period, which they believe are of
central relevance to the final Section 112(n) Revision Rule. In
particular, petitioners argue that the documents are relevant to EPA's
determination that the levels of utility-attributable Hg remaining
after the implementation of CAIR, and independently after CAMR, are not
reasonably anticipated to result in hazards to public health. As
explained above, EPA is granting reconsideration on section VI of the
final Section 112(n) Revision Rule, which sets forth EPA's
methodologies and its conclusion that after implementation of CAIR, and
independently CAMR, utility-attributable Hg emissions are not
reasonably anticipated to result in hazards to public health. During
the public comment period for this notice, petitioners and any other
commenters may submit any documents that they believe are relevant to
section VI of the final Section 112(n) Revision Rule or to any other
issue on which we are granting reconsideration today, including the
documents cited by petitioners. We will consider any such documents and
any other new information at the same time we consider all significant
comments received during the comment period on the reconsideration
issues.
    We do note, however, that one of the documents cited by petitioners
is a study submitted by the Northeast States for Coordinated Air Use
Management (NESCAUM) entitled, ``Economic Valuation of Human Health
Benefits of Controlling Mercury Emissions from U.S. Coal-fired Power
Plants'' (February 22, 2005; OAR-2002-0056-5749, OAR-2002-0056-5752).
After issuance of the final Section 112(n) Revision Rule, EPA did
address this study publicly in response to an inquiry from Senators
Leahy, Jeffords, Boxer, and Kerry that we received. We set forth our
position on that study in an April 5, 2005 reply to them and have
included this response in the Reconsideration TSD (and in the docket).
Please refer to that discussion in the Reconsideration TSD in
formulating any comments on the issues relevant to this reconsideration
notice.

V. Clarification and Correction of Statements Made in Final Section
112(n) Revision Rule

    In addition to commencing a reconsideration proceeding on the above
issues, EPA by this notice is also clarifying or correcting some
statements made in the final Section 112(n) Revision Rule. The
clarifications and corrections can be categorized generally as follows:
(a) Clarification of confusing explanatory text and (b) correction of
incorrect factual statements. Below, we identify each clarification or
correction to the explanatory text at 70 FR 15994 and provide a brief
explanation for the revised language.
    (1) On page 16024, column 3, in the last full paragraph, after the
second sentence, change the first sentence to read as follows:
``Applying the risk factors identified above to utility Hg emissions in
the 112(n)(1)(A) context, EPA concludes that utility Hg emissions
remaining after implementation of CAIR, and even more so after CAMR,
are not reasonably anticipated to result in hazards to public health.''
    We are revising this sentence because the original sentence (`` * *
* unacceptable hazards to public health * * * '') in the preamble to
the final Section 112(n) Revision Rule is inconsistent with the wording
of CAA section 112(n)(1)(A), which is the standard that EPA applies
when making its final decision.
    (2) On page 16022 in column 1, last paragraph, and in column 3,
first paragraph, and on page 16024 in column 2, second full paragraph,
EPA indicates that data from a study by the Great Lakes Indian Fish and
Wildlife Commission (GLIFWC) on fish consumption rates by Ojibwa Great
Lakes tribes had not been peer reviewed. However, we have subsequently
learned that this is a peer-reviewed study. We, nevertheless, continue
to believe that there are reasons for not using the Ojibwa study.

    Two reasons for not using the Ojibwa study not related to the peer
review status of the study were cited in the final rule. Specifically,
commenters did not include information on annual average consumption
rates or the percentage of those fish consumers that are women of
childbearing age and, based on EPA's information, the Tribes do not
reside in an area that appears to be significantly impacted by utility
Hg emissions. Thus, despite having extremely high consumption rates,
there are no data in the record that suggest that members of the Tribe
would be exposed above the RfD (above an IDI value of 1) as a result of
utility-attributable emissions. (See 70 FR 16012 and 70 FR 16021 for a
discussion of the RfD and the IDI, respectively.) Moreover, EPA notes
that (a) the study does not clearly identify the population percentile
that the data represent (i.e., what fraction of fishers is represented
by the various consumption rates given), and without this information,
we can not know whether the information is relevant for a 90th
percentile, 95th percentile, 99th percentile, or max value; (b) the
study covers individuals not residing in the most impacted portions of
our study area, therefore, using a more generalized and broadly
representative estimate such as EPA's recommended subsistence fisher
rate, is a better approach; and (c) the data are seasonal, therefore,
one cannot necessarily translate the date into annual-averaged values
(i.e., what is consumption during periods other than the high-consuming
fishing seasons).
    In addition, EPA, in the Effectiveness TSD, did evaluate a 99th
percentile subsistence fisher consumption rate that was 295 grams per
day (g/day) (this value was based on the EPA mean and a 95th percentile
subsistence fisher consumption rate of 60 and 170 g/day, respectively;
we fitted a log-normal distribution and took the 99th percentile from
this). This 295 g/day value is at the high end of the values provided
in the Ojibwa study; therefore, EPA did use a consumption value that
was at the high end of the values presented in the GLIFWC study.

VI. Statutory and Executive Order (EO) Reviews

A. EO 12866: Regulatory Planning and Review

    Under EO 12866 (58 FR 51735; October 4, 1993), EPA must determine
whether the regulatory action is ``significant'' and, therefore,
subject to review by the Office of Management and Budget (OMB) and the
requirements of the EO. The EO defines a ``significant regulatory
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
    (2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the EO.
    Pursuant to the terms of EO 12866, OMB has notified us that it
considers this a ``significant regulatory action'' within the meaning
of the EO. We have submitted this reconsideration notice to OMB for
review. However, EPA determined that the final Section 112(n) Revision
Rule would not have a significant economic impact. Similarly, today's
notice of reconsideration does not have a significant economic impact.
Changes made in response to OMB suggestions or recommendations will be
documented in the public record. All written comments from OMB to EPA
and any written EPA response to any of those comments are included in
the docket listed at the beginning of this notice under ADDRESSES.

B. Paperwork Reduction Act

    The final Section 112(n) Revision Rule did not contain any
information collection requirements and therefore was not subject to
the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) (PRA). Similarly,
this action does not contain any information collection requirements
and, therefore, is not subject to the PRA.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions.
    For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district, or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
    We certify that this notice of reconsideration will not have a
significant economic impact on a substantial number of small entities
because it imposes no regulatory requirements. We continue to be
interested in the potential impacts of the Section 112(n) Revision Rule
on small entities and welcome comments on issues related to such
impacts.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) (UMRA), establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under UMRA section 202, 2 U.S.C.
1532, EPA generally must prepare a written statement, including a cost-
benefit analysis, for any proposed or final rule that ``includes any
Federal mandate that may result in the expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more * * * in any one year.'' A ``Federal mandate'' is
defined under section 421(6), 2 U.S.C. 658(6), to include a ``Federal
intergovernmental mandate'' and a ``Federal private sector mandate.'' A
``Federal intergovernmental mandate,'' in turn, is defined to include a
regulation that ``would impose an enforceable duty upon State, local,
or Tribal governments,'' section 421(5)(A)(i), 2 U.S.C. 658(5)(A)(i),
except for, among other things, a duty that is ``a condition of Federal
assistance,'' section 421(5)(A)(i)(I). A ``Federal private sector
mandate'' includes a regulation that ``would impose an enforceable duty
upon the private sector,'' with certain exceptions, section 421(7)(A),
2 U.S.C. 658(7)(A).
    We determined that the final Section 112(n) Revision Rule did not
contain a Federal mandate that may result in expenditures of $100
million or more for State, local, or Tribal governments, in the
aggregate, or the private sector in any 1 year. Thus, the final Section
112(n) Revision Rule was not subject to the requirements of UMRA
sections 202 and 205. In addition, we determined that the final Section
112(n) Revision Rule contained no regulatory

requirements that might significantly or uniquely affect small
governments because it contained no regulatory requirements that apply
to such governments or imposed obligations upon them. Therefore, the
final Section 112(n) Revision Rule was not subject to the requirements
of UMRA section 203. Today's notice of reconsideration changes none of
the regulatory requirements of the final Section 112(n) Revision Rule
and, thus, is also not subject to the requirements of UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132 (64 FR 43255; August 10, 1999) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications.'' ``Policies that have
federalism implications'' are defined in the Executive Order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.''
    The final Section 112(n) Revision Rule did not have federalism
implications. It will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132. In
addition, today's notice does not impose any additional requirements.
Thus, Executive Order 13132 did not apply to the final Section 112(n)
Revision Rule.
    For the same reasons, today's notice of reconsideration does not
have federalism implications. Thus, Executive Order 13132 does not
apply to today's notice of reconsideration.

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175 (65 FR 67249; November 6, 2000) requires EPA
to develop an accountable process to ensure ``meaningful and timely
input by tribal officials in the development of regulatory policies
that have tribal implications.'' ``Policies that have tribal
implications'' are defined in the EO to include regulations that have
``substantial direct effects on one or more Indian tribes, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes.''
    The final Section 112(n) Revision Rule did not have Tribal
implications as defined by Executive Order 13175. It did not have a
substantial direct effect on one or more Indian Tribes, in that it was
a determination not to regulate power plants under CAA section 112,
and, therefore, imposed no burden on tribes. Furthermore, the final
Section 112(n) Revision Rule did not affect the relationship or
distribution of power and responsibilities between the Federal
government and Indian Tribes. The CAA and the Tribal Authority Rule
establish the relationship of the Federal government and Tribes in
implementing the CAA. Because the final Section 112(n) Revision Rule
did not have Tribal implications, Executive Order 13175 did not apply.
Furthermore, this notice of reconsideration does not impose any
additional requirements and, thus, is also not subject to Executive
Order 13175.
    Although we have determined that the final Section 112(n) Revision
Rule and this notice are not subject to Executive Order 13175, we
recognize that Tribes have expressed concern about the rule's impact
upon human health and the environment in Indian Country and the scope
of EPA's consultation with Tribes on these issues. In recognition of
these concerns and EPA's trust responsibility to Tribes, and because
this reconsideration includes additional scientific and technical
analysis, such as on fish consumption levels by Tribes and the extent
of the impact of utility-attributable Hg on fish tissue, EPA is
considering outreach strategies to further explain our findings to
Tribes beyond this notification and the requirements of Executive Order
13175.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    Executive Order 13045 (62 FR 19885; April 23, 1997) applies to any
rule that: (1) Is determined to be ``economically significant,'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, EPA must evaluate the environmental health or safety
effects of the planned rule on children and explain why the planned
regulation is preferable to other potentially effective and reasonably
feasible alternatives considered by EPA.
    The final Section 112(n) Revision Rule was not subject to Executive
Order 13045 because it was not an economically significant regulatory
action as defined by EO 12866. In addition, EPA interprets Executive
Order 13045 as applying only to those regulatory actions that are based
on health and safety risks, such that the analysis required under
section 5-501 of the Executive Order has the potential to influence the
regulations. The final Section 112(n) Revision Rule was not subject to
Executive Order 13045 because it did not include regulatory
requirements based on health or safety risks. This notice of
reconsideration imposes no requirements and, thus, also is not subject
to Executive Order 13045.
    Nonetheless, in making its determination as to whether it is
``appropriate and necessary'' to regulate utility units under CAA
section 112, EPA considered the effects of utility HAP emissions on
both the general population and sensitive subpopulations, including
children.

H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    Executive Order 13211 (66 FR 28355; May 22, 2001) provides that
agencies shall prepare and submit to the Administrator of the Office of
Regulatory Affairs, OMB, a Statement of Energy Effects for certain
actions identified as ``significant energy actions.'' Section 4(b) of
Executive Order 13211 defines ``significant energy actions'' as ``any
action by an agency (normally published in the Federal Register) that
promulgates or is expected to lead to the promulgation of a final rule
or regulation, including notices of inquiry, advance notices of final
rulemaking, and notices of final rulemaking: (1)(i) That is a
significant regulatory action under EO 12866 or any successor order,
and (ii) is likely to have a significant adverse effect on the supply,
distribution, or use of energy; or (2) that is designated by the
Administrator of the Office of Information and Regulatory Affairs as a
``significant energy action.'' Although the final Section 112(n)
Revision Rule was determined to be a significant regulatory action
under Executive Order 12866, it will not have a significant adverse
effect on the supply, distribution, or use of energy. Further, we
conclude that today's notice of reconsideration is not likely to have
any adverse energy effects.

I. National Technology Transfer and Advancement Act (NTTAA)

    Section 12(d) of the NTTAA of 1995 (Pub. L. 104-113; 15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in their
regulatory and procurement activities unless to do so would be
inconsistent with applicable

law or otherwise impracticable. Voluntary consensus standards are
technical standards (e.g., material specifications, test methods,
sampling procedures, business practices) developed or adopted by one or
more voluntary consensus bodies. The NTTAA requires EPA to provide
Congress, through the OMB, with explanations when EPA decides not to
use available and applicable voluntary consensus standards.
    The final Section 112(n) Revision Rule did not involve technical
standards and, therefore, the NTTAA did not apply. Similarly, this
notice of reconsideration does not involve technical standards and,
therefore, the NTTAA does not apply.

    Dated: October 21, 2005.
Stephen L. Johnson,
Administrator.
[FR Doc. 05-21456 Filed 10-27-05; 8:45 am]

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