RESPONSE TO SIGNIFICANT PUBLIC COMMENTS ON THE PROPOSED CLEAN AIR MERCURY RULE Received in response to:

Proposed National Emission Standards for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units ( 69 FR 4652; January 30, 2004)

Supplemental Notice for the Proposed National Emission Standards for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources: Electric Utility Steam Generating Units ( 69 FR 12398; March 16, 2004)

Proposed National Emission Standards for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of Performance for New and Existing Stationary Sources, Electric Utility Steam Generating Units: Notice of Data Availability ( 69 FR 69864; December 1, 2004)

Docket Number OAR 2002 0056 10.0 OTHER US Environmental Protection Agency Emissions Standards Division Office of Air Quality Planning and Standards Research Triangle Park, North Carolina 27711 15 March 2005 i General Outline 1.0 INTRODUCTION AND BACKGROUND 2.0 APPLICABILITY AND SUBCATEGORIZATION 3.0 PERFORMANCE STANDARDS FOR COAL FIRED ELECTRIC UTILITY STEAM GENERATING UNITS 4.0 PERFORMANCE STANDARDS FOR OIL FIRED ELECTRIC UTILITY STEAM GENERATING UNITS 5.0 MERCURY CAP AND TRADE PROGRAM 6.0 MERCURY EMISSIONS MONITORING 7.0 IMPACT ESTIMATES 8.0 COMPLIANCE WITH EXECUTIVE ORDERS AND STATUTES 9.0 NODA 10.0 OTHER Appendix A LIST OF COMMENTERS 10 1 10.0 OTHER 10.1 OTHER MERCURY SOURCES Comment:

One commenter ( OAR 2002 0056 2695) requested that the final rule address Hg emissions from international sources. A second commenter ( OAR 2002 0056 3552) noted that a global approach will be needed to address emissions from international sources because areas west of the Mississippi River receive less total Hg deposition, but a higher total Hg deposition from sources outside the U. S.

Response:

Anthropogenic Hg emissions from the U. S. are estimated to account for roughly three percent of total global emissions, and emissions from the U. S. power sector are estimated to account for about one percent of global emissions. ( United Nations Environment Programme. Chemicals, Global Mercury Assessment, Geneva, 2002.). Although the U. S. has no legal authority to regulate Hg emission sources outside its boundaries, the U. S. is a leader in promoting and facilitating global reductions in Hg use and releases.

The U. S. engages international partners, multilaterally and bilaterally, to address key Hg issues including data collection and inventory development, source characterization, and best practices for emissions and use reduction. Most recently, the U. S. has provided leadership in the United Nations Environment Program ( UNEP) Governing Council ( GC). In 2003, the UNEP GC adopted a U. S. proposal establishing the UNEP Mercury Program to facilitate and conduct technical assistance and capacity building to support efforts of developing countries and countries with economies in transition to take action regarding Hg pollution. In February 2005, the UNEP GC adopted a U. S. proposal that accelerates the work of the UNEP Mercury program by engaging countries in partnerships and collaborative activities to produce tangible results in the near term by facilitating global reductions in Hg exposure, use, and release. This agreement will advance specific projects in key source countries and priority sectors by engaging a diverse array of stakeholders, including governments, the private sector, international organizations, and nongovernmental organizations, to leverage resources, technical capacity and expertise.

Other examples of U. S. international efforts in this area include our work with the Arctic Council Action Plan ( ACAP) and the Arctic Monitoring and Assessment Program ( AMAP) to strengthen capacity building and technical cooperation program; and our support for the development of Russia's Hg action plan and inventory, as well as support for a regional Arctic inventory and emissions reductions projects. The U. S. has also developed bilateral Hg cooperation programs to foster assessment and sector specific improvements in China and India.

The U. S. has been a global leader in taking actions to address our domestic Hg emissions. Now, the U. S. is the first country in the world with plans to regulate Hg emissions 10 2 from power plants. We believe that this section 111 regulation will further the leadership of the U. S. in this area as well as encourage development of Hg control technologies that may be utilized worldwide.

Comment:

Eight commenters ( OAR 2002 0056 1327,  1471,  1611,  1664,  2110,  2219,  2878,  3457) stated that it is unclear how the U. S. will meet its obligations under the Great Lakes Water Quality Agreement, Great Lakes Binational Toxics Strategy, New England Governors and Eastern Canadian Premiers Mercury Action Plan, and the 1998 Protocol to the Convention on Long Range Transboundary Air Pollution signed by the U. S., Canada and Europe, and other international agreements because the proposal would allow such high emissions of Hg.

Response:

EPA believes that the final rule will significantly reduce Hg emissions, as is explained more fully in the preamble and elsewhere in this response to comments document and the rulemaking record. Thus the rule will advance the objectives of the international instruments cited by the commenters.

Comment:

One commenter ( OAR 2002 0056 1436) stated that EPA should be more concerned about Hg as a preservative in vaccinations.

Response:

Approving the use of Hg as a preservative in vaccines is not within EPA's authority. Such authority rests with the U. S. Food and Drug Administration ( FDA). Information on Hg in vaccines ( thimerosol) may be found at http:// www. fda. gov/ cber/ vaccine/ thimerosal. htm and at http:// www. cdc. gov/ nip/ vacsafe/ concerns/ thimerosal/ default. htm.

Comment:

Numerous commenters ( OAR 2002 0056 2695,  3552, and others listed in this paragraph) pointed out the need to address other sources of Hg emissions. Several commenters ( OAR 2002 0056 1104,  1251,  1293,  1308,  1530,  1611,  2729,  2750,  2765,  2981,  3243,  3122,  3657,  4050,  4410,  4417,  4620,  4718,  5007) stated that Hg should be banned from all products ( e. g., dental amalgam, vaccinations, additives in paints and pesticides, electronic equipment), and that emissions from all other industrial sources ( industrial boilers, hazardous waste incinerators, Cl production) need to be controlled. Several of these commenters described severe health effects from dental amalgam. One commenter ( OAR 2002 0056 3199) supported control of Hg emissions from coal fired power plants, but noted that power plants were not the only sources of Hg and stated that a better inventory of all sources ( e. g., chlor alkali plants, automobile/ white goods scrap yards, and shredders [ including furnaces using products from 10 3 shredders], etc.) was needed. The commenter stated that these emissions were also significant and merited further study.

Response:

A number of the sources of Hg exposure noted by the commenters ( e. g., dental amalgam, vaccinations) are not within the statutory authority of the EPA. As noted earlier, approving Hg use in vaccinations is under the authority of the FDA. Similarly, dental amalgams fall under the purview of the FDA; information on the research being conducted on the use of mercury in dental amalgams may be found at http:// www. fda. gov/ OHRMS/ DOCKETS/ 98fr/ 03 11648. html and consumer information on the use of Hg in dental amalgams may be found at http:// www. fda. gov/ cdrh/ consumer/ amalgams. html. Information about activities on many of the other sources noted by the commenters may be found through www. epa. gov/ mercury. EPA agrees that coal fired utility units are not the only source of Hg in the U. S.; the industrial sources of Hg noted by the commenters are the subject of other regulatory efforts by EPA under the CAA. In 1990, more than two thirds of U. S. anthropogenic Hg emissions came from just three industrial source categories: coal fired power plants, municipal waste combustion, and medical waste incineration. In 1990, EPA issued final regulations for large municipal waste combustors ( MWC), a sector which emitted approximately 57 tons of Hg emissions. Implementation of large MWC regulations has reduced Hg emissions by 88 percent from 1990 emission levels. In 2005, these regulations are projected to reduce MWC emissions by 91 percent from 1990 emission levels. Medical waste incerators are also subject to stringent emissions standards, and have reduced Hg emissions by 97 percent from 1990 emissions.

Regulations to limit Hg emissions from chlorine production facilities that use Hg cells and regulation of industrial boilers, will further reduce emissions of Hg when they become effective in the next few years. EPA issued final standards for Hg from chlor alkali production on December 19, 2003. EPA expects that these standards, when fully implemented by the end of 2006, will cut Hg emissions from point sources at these facilities by 74 percent and will cut total Hg reductions from these facilities by about 11 percent from 1999 emission levels. EPA has also issued regulations to reduce Hg emissions from industrial boilers. EPA estimates that this regulation, when fully implemented in 2007, will reduce emissions by 17 percent from 12 tons to 10 tons per year.

In addition, actions to limit the use of Hg, most notably Congressional action to limit the use of Hg in batteries and EPA regulatory limits on the use of Hg in paint, reduced the Hg content of waste contributed to the reduction of Hg emissions from waste combustion during the 1990s.

Comment:

One commenter ( OAR 2002 0056 3426) stated that policymakers should implement regulations to obtain maximum control of Hg from all sources with uniform limits, develop scientifically based fish consumption guidelines that ensure that 98 percent of the population is within EPA's safe level of MeHg exposure, and cooperate internationally to reduce the global 10 4 problem.

Response:

EPA is working along the lines that the commenter suggests. As discussed in responses to comments presented elsewhere in this document above, regulations are being established for the significant Hg emitting sources based on the requirements of the CAA. In addition, as discussed above, EPA is working with the international community to address emissions of Hg. EPA believes that the final utility rule will serve to reduce deposition of Hg and, thus, lead to improvements in fish tissue Hg concentrations.

Comment:

One commenter ( OAR 2002 0056 3543) recommended that the final rule address the disposal of Hg removed from the air emissions. The commenter felt that, from the perspective of watershed and fish contamination, no progress would be made if only the route of contamination ( but not the extent) were changed.

Response:

This is an area of research that EPA continues to pursue through its Offices of Research and Development and Solid Waste, in coordination with other Federal agencies and industry groups. The findings to date indicate that, for most management practices, leaching of Hg does not appear to be of concern for land disposal of coal combustion residues ( CCR), including from those sources where carbon sorbents have been tested for Hg control. (" Potential for Cross Media Transfers from Management of Mercury Enriched Coal Combustion Residues," OAR 2002 0056 6139) Further evaluation is warranted to understand whether the extent of this leaching would pose a potential concern.

10.2 STAKEHOLDER INFLUENCE Comment:

Many commenters specifically criticized industry influence on EPA's rulemaking. Many commenters stated that the proposals favor the industry over public health. Many pointed to the use of Latham and Watkins language in the preamble. One commenter ( OAR 2002 0056 2160) specifically stated that whole sections were lifted from the report of a firm representing interests of western coal producers. The science used by EPA in establishing the limits for bituminous and subbituminous coal was questioned because of the undue influence of certain constituent groups. Two Congressmen requested detailed information on this rulemaking process.

Response:

EPA is aware of the concern expressed by the commenters and has responded to the Congressional inquiries. The material in question was provided to the EPA through the Clean 10 5 Air Act Advisory Committee working group process established under the Federal Advisory Committee Act ( FACA) and, thus, we do not feel that its use was inappropriate.

Comment:

One commenter ( OAR 2002 0056 3517) urged EPA to balance comments received from the various stakeholders to make sure that the Hg rules do not become a driver for the coal market.

Response:

EPA has considered all comments received on or before January 3, 2005, in developing the final rule.

Comment:

One commenter ( OAR 2002 0056 2248) stated that the involvement of a senior EPA official in both the Hg lawsuit against the Agency and in EPA's settlement of the matter presented the appearance of a conflict of interest that must be investigated to preserve the right to constitutional due process. The commenter felt that a potentially serious conflict of interest overshadowed the current rulemaking, and that the presence of David Doniger as a senior member of EPA's air office during this rulemaking, as well as his participation in the matter at EPA, raised serious questions about the rulemaking's transparency and validity. The commenter asserted that this official's participation in the rulemaking violated the fundamental constitutional right of due process and necessitated postponement of further action on the rule until this apparent conflict has been fully investigated.

Response:

The issue noted by the commenter is the subject of a Freedom of Information Act ( FOIA) by the commenter and, thus, EPA can not respond at this time to the comment.

10.3 LEGAL ISSUES 10.3.1 Broad Authority Under CAA Section 111( d)

Comment:

Four commenters ( OAR 2002 0056 2224,  2835,  2867,  2922) filed comments to supplement EPA's discussion of its statutory authority to regulate under CAA section 111 and to establish a cap and trade program. They stated that CAA section 111 confers broad legal authority for the regulation of existing sources under a Federal State partnership. The legislative history and the relationship between the plans developed for the State Federal partnerships under CAA section 110 and section 111 further supports EPA's determination that a flexible emissions trading program can be implemented under section 111( d). 10 6 The commenters noted that this partnership contemplates EPA establishing " standards of performance" at the national level and each state developing a regulatory program for implementing and enforcing those standards at the state level. The commenters pointed out that the statute explicitly notes that the Federal State partnership under CAA section 111( d) is to be modeled after the regulatory process used under CAA section 110. In that regulatory context, CAA section 110 provides States with wide latitude in developing emissions control strategies for achieving Federal air quality goals   National Ambient Air Quality Standards ( NAAQS) established by EPA at the national level.

Both the statute and legislative history confirm that Congress delegated broad legal authority to adopt flexible regulatory mechanisms for controlling existing sources under section 111( d)( 1). This broad delegation of authority provides sufficient authority for EPA to establish flexible " standards of performance" that need not prescribe when, how, and the degree to which each affected unit must achieve that emissions limitation   either on a unit by unit basis or facility by facility basis. In addition, the CAA authorizes States to implement and enforce those standards of performance through cap and trade program or other such flexible, market based mechanism that implements the reduction requirement imposed under the standard of performance, while taking into consideration " the remaining useful life" of the source as well as " other factors." EPA's proposed trading scheme is one effective mechanism for States to address concerns regarding existing units whose remaining useful life is limited such that the purchase of allowances may be appropriate in lieu of making additional major pollution control investments at those units. Commenter OAR 2002 0056 2835 described in detail how this interpretation is confirmed in the legislative history to CAA section 111( d).

Another indication of the broad discretion accorded to EPA and States in implementing and enforcing standards of performance under section 111 ( d)( 1) is the relationship that this section has with section 110. Section 111 ( d)( 1) requires EPA to promulgate regulations that establish SIP like procedures similar to those in section 110 to be used by States in submitting their plans. The CAA section 111( d) plans and SIP programs are complementary to one another   in particular, a State's plan under section 110 ( or section 172, for non attainment areas) can be used to meet the standards under section 111( d). States can thus use the SIP regulatory tools in CAA sections 110( a)( 2)( A) and 172( c)( 6) to establish " enforceable emissions limitations and other control measures" to achieve this end. One such regulatory tool available to States explicitly referenced under these sections is the adoption of " economic incentives such as fees, marketable permits, and auctions of emissions rights," when developing a plan to comply with the standards under section 111( d)( 1).

This complementary relationship was confirmed in EPA's guidance for implementing the Emission Guidelines for Municipal Waste Combustors established under CAA sections 111( d) and 129. EPA's guidance explained that where the SIP requirements are adequate to meet the section 111( d)/ 129 standard  which are required to be more rigorous than emission guidelines under only section 111( d)  the State has the authority to submit a section 111( d)/ 129 plan that relies on the requirements of the SIP to meet the section 111 ( d)/ 129 standard. The commenter adds that the section 111( d)/ 129 rule for Municipal Waste Combustors also clearly contemplated that States would use trading when implementing and enforcing the standards the rule explicitly provided 10 7 that a state plan could " establish a program to allow owners or operators of municipal waste combustor plants to engage in trading of nitrogen oxides emission credits."

Commenter OAR 2002 0056 2867 stated that EPA has correctly harmonized these conflicting statutory provisions, and interpreted them in a way that effectuates the purposes of the statute as whole. The commenter agreed that the key provision in the definition of a " standard of performance" under CAA section 111 is the phrase " the best system of emissions reduction." Since this phrase is not defined by statute, EPA has broad discretion in determining what is the " best system of emissions reduction," so long as the system ultimately selected " has been adequately demonstrated." The commenter pointed out the definition places no other explicit statutory constraints on EPA in making this determination, except that it must consider the following factors: the cost of achieving the Hg reductions, non air quality health and environmental impacts, and energy requirements. The commenter concluded that the statute requires the standards of performance be based on " the degree of emission limitation achievable" by the best system of emissions reduction system selected by EPA. As evidenced by the success of other cap and trade programs for the power sector, i. e., the NOx SIP Call and the Title IV Acid Rain Program, the trading program approach satisfies the statutory requirement for setting the standard of performance based on the best system of emission reduction for the electric utility source category.

The commenter felt it is important to note that the statutory definition does not require specific units or facilities to install emissions control technology. In addition, the definition is silent on whether or not the standard of performance prescribing specific emissions limits should directly apply on a unit by unit or facility by facility basis. The commenter also noted that the definition is silent on whether each unit or facility must achieve specific reduction levels continuously or averaged over a specific period of time. ( Regarding this issue, the commenter pointed out that CAA section 302( 1) also contains a definition of the term " standard of performance," which defines the term to mean " a requirement of continuous emission reduction, including any requirement relating to the operation or maintenance of a source to assure continuous emissions reduction." It appears to the commenter that this definition would not be controlling for purposes of setting standards of performance under section 111, given that Congress chose to adopt another specific definition of standard of performance in CAA section 111.

Three commenters ( OAR 2002 0056 2224,  2835,  2867) emphasized that CAA section 111( d)( 1) itself does not independently mandate that standards of performance for existing sources impose a source specific requirement for continuous emission reduction. Thus, a State plan incorporating a standard of performance that employs a cap and trade mechanism would not conflict with the statutory requirements of section 111( d)( 1). However, a strong case can be made for the proposition that the emissions cap and allowance holding requirement in EPA's proposed section 111( d) trading program impose a " continuous emissions reduction" requirement on affected electric utility units. The proposed cap and trade program establishes a permanent cap on Hg emissions and requires affected sources to hold allowances that correspond to the level of Hg emissions from those sources at all times. By its very elements, the proposed cap and trade program is a continuous method of emission reduction given that there is no point in time when an 10 8 affected source can emit Hg without holding allowances that correspond to those emissions. EPA's proposal also requires continuous emissions monitoring to assure that a source complies with the requirements of the cap and trade program at all times. Thus, if a court were ever to construe section 111( d)( 1) to require a " continuous emission reduction," the features of EPA's proposed trading program should meet that requirement.

The legislative history of the term " standard of performance," does not specifically reference an allowance trading system as a regulatory mechanism for controlling emissions under CAA section111( d), but generally reflects Congress' intent that existing sources be accorded considerable flexibility in meeting the section 111( d) standards. Such legislative intent for compliance flexibility provides general support for EPA's interpretation that the term " standard of performance" may include an allowance trading program, as proposed in the Hg rule, because such a trading program accords flexibility to sources.

According to the commenter, the Senate debate on the 1990 amendments reinforces this statutory interpretation, in light of Congress' express action removing any specific percent reduction requirement from the concept of " standards of performance." As an example, the commenter states that Senator Baucus explains that Congress adopted a percentage reduction requirement in the 1977 CAA Amendments to ensure that coal fired electric generating units did not rely on low sulfur " compliance" coal alone to meet NSPS for SO2. According to Senator Baucus, a percentage reduction requirement across the board was supposed to require SO2 scrubbers regardless of the rank of coal combusted; however, this approach accentuated the regional split over coal use that existed prior to 1977. With the adoption of the SO2 emissions cap under the Title IV acid rain program, the percentage reduction requirement was no longer necessary and could in fact be a barrier to flexible compliance under the acid rain trading program. The commenter continues that accordingly, Congress elected to repeal the percent reduction requirement during the 1990 CAA Amendments.

The commenter also referenced remarks in debate by Senator Bond during the 1990 CAA Amendments that also pertain to the removal of the percentage reduction requirement and, indirectly, the continuous emission reduction requirement. Specifically, Senator Bond explained that both the House and the Senate rejected the concept of the percentage reduction and " directed EPA to come up with an alternative standard that would allow utilities to meet it in the most flexible manner possible." Senator Bond further noted that the new standards could be met by fuel switching, the use of technology and fuel switching, by technology alone, and by intermittent controls or intermittent operation. Senator Bond continued by stating that "[ t] he way the language is constructed, intermittent controls can be allowed to comply with this section of the act. So for the first time in 13 years we will have EPA setting. . . emission levels for SO2 that will not require the use of the scrubbers for compliance."

The commenter stated that this flexibility was not intended to be limited to utility standards, or the operation of the Acid Rain Program, but was to be afforded to all sources subject to " standards of performance" under section 111. The commenter felt it would be ironic if EPA failed to take advantage of the flexibility specifically intended by Congress to benefit the utility industry in the context of developing requirements for Hg control, since EPA itself has not 10 9 identified any particular control technology as the basis for its standards.

Response:

EPA concurs with the comments.

10.3.2 EPA Must Regulate Under Section 112 Comment:

Several commenters ( OAR 2002 0056 2108,  2173,  2330,  2332,  2359,  2575,  2823,  2836,  2871,  2878,  2880,  2889,  2920,  2924,  3393,  3394, 3459,  4139) argued that EPA lacks authority to regulate HAP under section 111.

Response:

Those comments are summarized and responded to in the Response to Comments (" Response to Significant Public Comments Concerning the Proposed Revision of the December 2000 Appropriate and Necessary Finding and the Removal of Utility Units from the Section 112( c) List"). We incorporate those comments and responses herein by reference. EPA also believes it has addressed these concerns in the revision of EPA's CAA section 112( n) determination.

10.3.4 Clean Water Act Comment:

Many public interest groups ( more than 73) contended that EPA completely ignored its statutory obligations to control non point sources of pollution under Clean Water Act ( CWA) section 303( d)( 4)( B). Although the CWA does not give EPA direct authority to impose controls on individual non point sources, EPA is responsible for ensuring that non point source pollution does not undermine state water quality goals. Atmospheric deposition of Hg from power plants is an acknowledged and significant source of non point source pollution. The relaxed controls under the proposed rule will lead to decreasing waster quality and violations of state water quality standards. EPA must implement Hg non point source controls that meet best management practices of the CWA's antidegradation provisions. Commenter OAR 2002 0056 2575 stated that EPA utterly failed to consider the CWA compliance implications of the proposal or of their own collaborative effort to reduce deposition of toxics to all waterbodies through their Air Water Interface Work Plan general strategy.

Response:

Commenters cite to section 303( d)( 4)(( B) of the Clean Water Act ( CWA) and assert that EPA has ignored its statutory obligations under the CWA to control nonpoint sources of pollution. Commenters are mistaken regarding EPA's obligations or authorities under the 10 10 CWA to control nonpoint sources of pollution. Section 303( d)( 4)( B) is a provision that addresses when a permitting authority may include less stringent effluent limitations in a point source NPDES permit. The section does not address nonpoint sources of pollution. There is a reference in CWA section 303( d)( 4)( B) to EPA's antidegradation policy. EPA's antidegradation policy, however, does not authorize EPA to regulate, or compel States to regulate, nonpoint sources of pollution. See American Wildlands, et al. v. Browner et al., 260 F. 3d 1192, 1198 ( 10th Cir. 2001)) Commenters appear to admit as much when they say that " the CWA does not give EPA direct authority to impose controls on individual nonpoint sources . . ." To the extent that commenters believe that the CWA or EPA's antidegradation policy obligates, or gives authority to, EPA to regulate or compel States to regulate nonpoint sources of pollution, commenters are wrong and their position is unsupported by relevant case law. As the U. S. Court of Appeals for the Fourth Circuit has recognized: " Congress consciously distinguished between point source and nonpoint source discharges, giving EPA authority under the Act to regulate only the former." Appalachian Power Co. v. Train, 545 F. 2d at 1373. See also American Wildlands, 260 F. 3d at 1197; Kennecott Copper Corp. v. EPA, 612 F. 2d 1232, 1243 ( 10th Cir. 1979); United States v. Earth Sciences, Inc., 599 F. 2d 368 at 371. As discussed in the preamble, EPA believes that following implementation of CAIR and today's action, utility attributable Hg emissions are not reasonably anticipated to result in hazards to public health.

10.4 TRIBAL TRUST RESPONSIBILITIES Comment:

Many Indian tribes and organizations ( OAR 2002 0056 1327,  1618,  2010,  2118,  2173,  2380,  2694,  2695,  2814,  2891,  3311,  3335,  3413,  3457,  3549,  3550,  3551,  5455) stated that the rule does not comply with EPA's federal trust responsibility, and is inconsistent with EPA's Indian Policy because EPA did not adequately consult with tribes in developing the rule and because the rule does not adequately protect the health of Indians. They assert that tribes have treaty rights to fish, and that the rule does not adequately protect those rights because it does not reduce mercury emissions to a level that protects the health and safety of tribal members who consume fish. They note that EPA's assessment of the risks for tribal members must take into account their high levels of fish consumption, and the unique traditional, cultural, and subsistence importance of fish for many tribes. Finally, some commenters object to EPA's failure to provide for a cap and trade program in Indian country.

Response:

EPA recognizes that the Federal government stands in a government to government relationship with Federally recognized Tribes and has certain trust responsibilities to these Tribes. This relationship and responsibility should guide EPA in the implementation of policies and actions that affect Tribes. Pursuant to the government to government relationship, EPA consults with Tribes regarding actions that affect Tribes. In addition, treaties, statutes, and executive orders create Federal obligations regarding Tribal resources. EPA believes that its actions in developing the final rule have been consistent with the government to government relationship and that the final rule itself is consistent with the trust responsibility. 10 11 EPA does not agree with the commenters who claim that it did not consult with tribes in developing the rule. As explained in the discussion of EPA compliance with EO in the preamble for the final rule, EPA took the following steps to consult with Tribes. EPA gave a presentation to a national meeting of the National Tribal Environmental Council ( NTEC) in April 2001, and encouraged Tribal input at an early stage. EPA then worked with NTEC to find a Tribal representative to participate in the workgroup developing the rule, and included a representative from the Navajo Nation as a member the official workgroup, with a representative from the Campo Band later added as an alternate. In March 2004, EPA provided a briefing for Tribal representatives, the newly formed National Tribal Air Association ( NTAA), and NTEC. EPA received comments on this rule from a number of Tribes, and has taken those comments and other input from Tribal representatives into consideration in development of this rule.

EPA disagrees that the rule will not adequately protect Tribal fishing rights. EPA agrees that some Tribes have unique legal rights to fish arising from treaties, statutes, executive orders, and agreements. EPA also recognizes that Tribal members may catch and consume more fish than the general public as a result of Tribal fishing rights as well as Tribal culture, traditions, and subsistence lifestyles.

EPA believes that this regulation adequately protects Tribal health and is consistent with the trust responsibility for several reasons. First, the commenters understate the significance of the fact that Hg emissions from Utility Units currently are not subject to performance standards. This regulation will for the first time establish performance standards applicable to Hg emissions, and those standards will require significant reductions in the levels of Hg emissions. Such reductions will provide greater protection to Tribal fish resources than would otherwise be available. Acting to provide such heightened protection is consistent with both the statute and the Federal trust responsibility.

Moreover, the commenters offer no specific evidence that the Hg emissions reductions from this regulation will not adequately protect Tribal health. Their main contention is that the regulatory approach set forth in an earlier EPA proposal would have produced a 90 percent reduction in Hg emissions and that any smaller reduction is, therefore, inadequate. That contention rests on a misconception of an earlier Federal Register Notice, which proposed a finding, but did not contain any specific proposal for Hg emissions regulations, and, therefore, did not provide for any percentage of reduction. EPA has never proposed any such rule. EPA believes that this regulation will adequately protect Tribal health.

The commenters also argue that EPA has not adequately considered the significance of Tribal fish consumption patterns, specifically the fact that Tribal fishers consume more fish than the general population. That comment is misplaced. As described in more detail elsewhere in this document, EPA carefully analyzed available information on fish consumption by Tribal members and other sub populations, and determined how to use the available data most appropriately. One basis for EPA's analysis was a study of tribal fish consumption in one region to model consumption by other Tribes as well as other subpopulations. EPA's approach was to identify areas where the effects of Hg deposition from utility emissions had the greatest effects. EPA then compared those high deposition areas with locations with high Tribal 10 12 populations to assess the areas of greatest potential risk to Tribes. That analysis found that very few areas where Native Americans live corresponds with high residual Hg deposition caused by utilities. It found further, that the standards established in the regulation will significantly reduce risks to tribal members.

Finally, as discussed in the preamble to the regulation, this regulation establishes a cap and trade program for Indian country.

As part of its analysis of the this final rule, EPA has estimated the some of the health benefits of reducing Hg from utilities. At this time EPA is only able to provide quantitative estimates of the benefits of reducing neurological impacts of exposure to MeHg for a portion of the U. S. population. This population covers people who recreationally catch and consume freshwater fish. The RIA for this rule contains this analysis in Chapter 11. As part of its assessment, EPA provides estimates for the benefits of this rulemaking to subsistence fishers, including case study examples of the benefits to the some members of the Chippewa Tribe, the Hmong, and low income fishers.

10.6 PROCEDURAL ISSUES Comment:

One commenter ( OAR 2002 0056 4132) asserted that EPA was pursuing an inappropriate administrative process, and that the proposal should have been designated an advance notice of proposed rule making ( ANOPR). The commenter stated that the proposal was an inappropriate approach to regulatory development and would result in litigation. The commenter stated that affected parties were not being provided an opportunity to comment on the specific regulatory language that might drive significant investments in capital equipment, and characterized the proposal as a menu of possible approaches.

Response:

We disagree with the commenter that the proposed rule constituted an inappropriate administrative process. EPA properly issued a proposed rule in January 2004, and proposed three separate regulatory approaches concerning HAP emissions from Utility Units. In addition, the January 2004 proposed rule and the March 2004 supplemental notice contained proposed regulatory language, and we believe that those proposed regulations, coupled with the extensive discussion provided in the preamble to the proposed rule and supplement notice, afforded the public a sufficient opportunity to comment on the proposed regulatory language. Indeed, EPA received over 500,000 comments on the proposal, about 5,000 of which were unique, and several of which addressed the regulatory text pertinent to the section 111 standards of performance.

Comment:

One commenter ( OAR 2002 0056 1138) requested that EPA provide information on the 10 13 background and training of enforcement personnel. The commenter also requested an estimate of the number of new jobs that are created for every new law or regulation, as well as an estimate of total job growth for the present year.

Response:

This comment has no relevance to how EPA sets standards of performance under CAA section 111, and therefore no response is required.

10.7 GENERAL COMMENTS Comment:

A large number of commenters, primarily from the general public through individual letters and mass mail campaigns, provided general comment along the lines of:

( 1) The proposed rules are a roll back of the CAA;

( 2) The CAA requires 90 percent removal; and ( 3) The time frame proposed for the emission reductions is too long.

Response:

EPA believes that these comments stem, in part, from a misunderstanding of the CAA. There has been no " roll back" of the CAA. First, EPA does not have the authority to change the CAA ( only Congress can do that). Further, there are no current Federal regulations requiring the reduction of Hg or Ni emissions from Utility Units to be " rolled back." This is the first time that Federal regulations limiting these pollutants have been proposed. In addition, the CAA does not mandate any specific emission reduction. Emission standards are to be based on the level of control achieved in practice and on the level of emission control technologies that the Administrator has been adequately demonstrated. The timing of the emission reductions have been addressed elsewhere in this document.


PAPERWORK REDUCTION ACT SUBMISSION Please read the instructions before completing this form. For additional forms or assistance in completing this form, contact your agency's Paperwork Clearance Officer. Send two copies of this form, the collection instrument to be reviewed, the Supporting Statement and any additional documentation to: Office of Information and Regulatory Affairs, Office of Management and Budget, Docket Library, Room 10102, 725 17th Street NW Washington, DC 20503.

1. Agency/ Subagency originating request: USEPA/ Office of Enforcement and Compliance Assurance/ Office of Compliance 2. OMB control number b. G None a. 2060 0022 3. Type of information collection ( check one) a. G New collection b. G Revision of a currently approved collection c. XQ Extension of a currently approved collection d. G Reinstatement, without change, of a previously approved collection for which approval has expired e. G Reinstatement, with change, of a previously approved collection for which approval has expired f. G Existing collection in use without an OMB control number 4. Type of review requested ( check one) a. X Q Regular b. G Emergency  Approval requested by: / / c. G Delegated 5. Small entities Will this information collection have a significant economic impact on a substantial number of small entities? G Yes X Q No For b f, note item A2 of Supporting Statement Instructions 6. Requested expiration date a. X Q Three years from approval date b. G Other Specify: / /___

7. Title NSPS for Petroleum Refineries ( 40 CFR part 60, subpart J) ( Renewal)

8. Agency form number( s) ( If applicable) 1054.09 9. Keywords NSPS, Petroleum Refineries, Air Pollution Control, Clean Air Act 10. Abstract This rule applies to the following affected facilities in petroleum refineries: fluid catalytic cracking unit catalyst regenerators, fuel gas combustion devices, and Claus sulfur recovery plants of more than 20 long tons per day commencing construction, modification or reconstruction after the date of proposal. Respondents are required to submit notifications, including reports of start of construction, actual start up dates, and performance tests. In addition, respondents must submit semiannual reports of excess emissions and continuous monitoring system performance. All records must be maintained for at least 2 years. This information is being collected to assure compliance with 40 CFR part 60, subpart J.

11. Affected public ( Mark primary with " P" and all others that apply with " X") a. Individuals or households d. Farms b. P Business or other for profit e. Federal Government c. Not for profit institutions f. State, Local or Tribal Government 12. Obligation to respond ( Mark primary with " P" and all others that apply with " X") a. G Voluntary b. G Required to obtain or retain benefits c. PQ Mandatory 13. Annual reporting and recordkeeping hour burden a. Number of respondents 132 b. Total annual responses 285 1. Percentage of these responses collected electronically ___ _ 70_ % c. Total hours requested 14,134 d. Current OMB inventory 17,359 e. Difference  3,225 f. Explanation of difference 1. Program Change  5,408 2. Adjustment 2,183 14. Annual reporting and recordkeeping cost burden ( in thousands of dollars) a. Total annualized capital/ startup costs $ 0 b. Total annual costs ( O& M) $ 541 c. Total annualized cost requested $ 541 d. Current OMB inventory $ 91 e. Difference $ 450 f. Explanation of difference 1. Program change $ 0 2. Adjustment $ 450 15. Purpose of information collection ( Mark Primary With " P" and all others that apply with " X") a. Application for benefits e. Program planning or management b. Program evaluation f. Research c. General purpose statistics g. P Regulatory or compliance d. __ Audit 16. Frequency of recordkeeping or reporting ( check all that apply) a. X Q Recordkeeping b. Q Third party disclosure c. X Q Reporting 1. X Q On occasion 2. Q Weekly 3. Q Monthly 4. Q Quarterly 5. X Q Semi annually 6. Q Annually 7. Q Biannually 8. Q Other ( describe)

17. Statistical methods Does this information collection employ statistical methods?

Q Yes X Q No 18. Agency contact ( person who can best answer questions regarding the content of this submission) Name: Dan Chadwick Phone: ( 202) 564 7054 OMB 83 I 10/ 95 19. Certification for Paperwork Reduction Act Submissions On behalf of this Federal agency, I certify that the collection of information encompassed by this request complies with' 5 CFR 1320.9.

NOTE: The text of 5 CFR 1320.9, and the related provisions of 5 CFR 1320.8( b)( 3), appear at the end of the instructions. The certification is to be made with reference to those regulatory provisions as set forth in the instructions.

The following is a summary of the topics, regarding the proposed collection of information, that the certification covers:

( a) It is necessary for the proper performance of agency functions;

( b) It avoids unnecessary duplication;

( c) It reduces burden on small entities;

( d) It uses plain, coherent, and unambiguous terminology that is understandable to respondents;

( e) Its implementation will be consistent and compatible with current reporting and recordkeeping practices;

( f) It indicates the retention periods for recordkeeping requirements;

( g) It informs respondents of the information called for under 5 CFR 1320.8( b)( 3):

( i) Why the information is being collected; ( ii) Use of information; ( iii) Burden estimate; ( iv) Nature of response ( voluntary, required for a benefit, or mandatory); ( v) Nature and extent of confidentiality; and ( vi) Need to display currently valid OMB control number;

( h) It was developed by an office that has planned and allocated resources for the efficient and effective management and use of the information to be collected ( see note in Item 19 of the instructions);

( i) It uses effective and efficient statistical survey methodology; and ( j) It makes appropriate use of information technology.

If you are unable to certify compliance with any of these provisions, identify the item below and explain the reason in Item 18 of the Supporting Statement.

Signature of Program Official Michael S. Alushin, Director Compliance Assessment and Media Programs Division Office of Compliance Office of Enforcement and Compliance Assurance Date Signature of Senior Official or designee Oscar Morales, Director Collection Strategies Division Office of Environmental Information Date OMB 83 I 10/ 95


[Federal Register: October 16, 2007 (Volume 72, Number 199)]
[Notices]
[Page 58657-58658]
[DOCID:fr16oc07-69]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Project No. 2407-120]

Alabama Power Company; Notice of Application for Amendment of
License and Soliciting Comments, Motions To Intervene, and Protests

October 9, 2007.
    Take notice that the following hydroelectric application has been
filed with the Commission and is available for public inspection:
    a. Application Type: Temporary Variance of Drawdown Limits.
    b. Project No.: 2407-120.
    c. Date Filed: September 4, 2007.
    d. Applicant: Alabama Power Company.
    e. Name of Project: The Yates and Thurlow Project.
    f. Location of Project: The Yates and Thurlow Project is located on
the Tallapoosa River in Tallapoosa and Elmore Counties, Alabama.

    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.
    h. Applicant Contact: Alan L. Peeples, Alabama Power Company, 600
N. 18th Street, P.O. Box 2641, Birmingham, AL 35291,<PHONE_NUMBER>.
    i. FERC Contact: Henry Woo,<PHONE_NUMBER>.
    j. Deadline for filing comments, protests, or motions to intervene:
October 31, 2007. All documents (original and eight copies) should be
filed with: Secretary, Federal Energy Regulatory Commission, 888 First
Street, NE., Washington, DC 20426.
    The Commission's Rules of Practice and Procedure require all
intervenors filing documents with the Commission to serve a copy of
that document on each person in the official service list for the
project. Further, if an intervenor files comments or documents with the
Commission relating to the merits of an issue that may affect the
responsibilities of a particular resource agency, they must also serve
a copy of the document on that resource agency. A copy of any motion to
intervene must also be served upon each representative of the Applicant
specified in the particular application.
    k. Description of Request: The Alabama Power Company (APC) is
requesting a temporary variance of the reservoir drawdown limits of the
Yates and Thurlow Project license. APC requests that it be allowed to
draw down the Thurlow pool to 283.0-284.5 feet from September 4, 2007,
to January 11, 2008, for spillway board maintenance. Included in APC's
request was concurrence received from the Alabama Department of
Conservation and Natural Resources.
    l. Locations of the Application: A copy of the application is
available for inspection and reproduction at the Commission's Public
Reference Room, located at 888 First Street, NE., Room 2A, Washington,
DC 20426, or by calling<PHONE_NUMBER>. This filing may also be viewed
on the Commission's Web site at http://www.ferc.gov using the

``eLibrary'' link. Enter the docket number (P-2407) in the docket
number field to access the document. You may also register online at
http://www.ferc.gov/docs-filing/esubscription.asp to be notified via e-

mail of new filings and issuances related to this or other pending
projects. For assistance, call 1-866-208-3676 or e-mail
<EMAIL_ADDRESS>for TTY, call<PHONE_NUMBER>. A copy is

also available for inspection and reproduction at the address in item
(g) above.
    m. Individuals desiring to be included on the Commission's mailing
list should so indicate by writing to the Secretary of the Commission.
    n. Comments, Protests, or Motions to Intervene: Anyone may submit
comments, a protest, or a motion to intervene in accordance with the
requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211,
.214. In determining the appropriate action to take, the Commission
will consider all protests or other comments filed, but only those who
file a motion to intervene in accordance with the Commission's Rules
may become a party to the proceeding. Any comments, protests, or
motions to intervene must be received on or before the specified
comment date for the particular application.
    o. Filing and Service of Responsive Documents: Any filings must
bear in all capital letters the title ``COMMENTS'', ``PROTEST'', OR
``MOTION TO INTERVENE'', as applicable, and the Project Number of the
particular application to which the filing refers.
    p. Agency Comments: Federal, State, and local agencies are invited
to file comments on the described application. A copy of the
application may be obtained by agencies directly from the Applicant. If
an agency does not file comments within the time specified for filing
comments, it will be presumed to have no comments. One copy of an
agency's comments must also be sent to the Applicant's representatives.
    q. Comments, protests and interventions may be filed electronically
via the Internet in lieu of paper. See, 18 CFR 385.2001(a)(1)(iii) and
the instructions on the Commission's Web site at http://www.ferc.gov

under the ``e-Filing'' link. The Commission strongly encourages
electronic filings.

Kimberly D. Bose,
Secretary.
[FR Doc. E7-20317 Filed 10-15-07; 8:45 am]

BILLING CODE 6717-01-P