" Leiter, Amanda" < aleiter@ nrdc. org> 11/ 11/ 2004 10: 54 AM To Michael Leavitt/ DC/ USEPA/ US@ EPA, Jeff Holmstead/ DC/ USEPA/ US@ EPA, Bill Wehrum/ DC/ USEPA/ US@ EPA, Mary Kissell/ RTP/ USEPA/ US@ EPA, Patricia Embrey/ DC/ USEPA/ US@ EPA, Jim Eddinger/ RTP/ USEPA/ US@ EPA, Group A AND R DOCKET@ EPA, a r docket@ epamail. epa. gov Cc " Leiter, Amanda" < aleiter@ nrdc. org>

Subject OAR 2002 0058 ( A 96 47) Reconsideration Petition Amanda Leiter Natural Resources Defense Council tel: 202 289 2398 fax: 202 289 1060 2 November 11, 2004 Michael O. Leavitt Administrator, Environmental Protection Agency 1101A EPA Headquarters Ariel Rios Building 1200 Pennsylvania Ave., NW Washington, DC 20460 BY ELECTRONIC MAIL Dear Administrator Leavitt:

This is a petition under Clean Air Act § 307( d)( 7)( B), 42 U. S. C. § 7607( d)( 7)( B), submitted by the Natural Resources Defense Council, 1200 New York Avenue, NW, Ste. 400, Washington, DC 20005, and the Environmental Integrity Project, 919 18th Street, NW, Ste. 975, Washington, DC 20006. By this petition, we request that you reconsider certain aspects of the final action taken at 69 Fed. Reg. 55,218 et seq. ( September 13, 2004) and entitled National Emission Standards for Hazardous Air Pollutants for Industrial, Commercial, and Institutional Boilers and Process Heaters.

Sincerely,

Amanda Leiter Eric Schaeffer Natural Resources Defense Council Environmental Integrity Project 3 BEFORE THE ADMINISTRATOR UNITED STATES ENVIRONMENTAL PROTECTION AGENCY __________________________________________ ) In the Matter of the Final Rule: ) ) OAR 2002 0058 National Emission Standards for Hazardous Air ) A 96 47 Pollutants for Industrial, Commercial, and ) Institutional Boilers and Process Heaters ) __________________________________________)

PETITION FOR RECONSIDERATION Pursuant to Section 307( d)( 7)( B) of the Clean Air Act, 1 the Natural Resources Defense Council and the Environmental Integrity Project hereby petition the Administrator of the Environmental Protection Agency ( the Administrator, EPA, or the Agency) to reconsider the National Emission Standards for Hazardous Air Pollutants ( NESHAP) captioned above and published at 69 Fed. Reg. 55,218 ( September 13, 2004).

The Clean Air Act ( CAA) directs EPA to establish emissions standards for each category of major sources of hazardous air pollutants ( HAPs). These standards, which must reflect the maximum achievable control technology ( MACT), are designed to obligate each source in a category to limit its emissions to a level commensurate with the best performers in the industry. In this rule, however, EPA sets only 25 of the 72 MACT standards that the Agency itself identifies as necessary to control emissions from industrial, commercial, and institutional ( ICI) boilers and process heaters. 2 That is, the 1 42 U. S. C. § 7607( d)( 7)( B). 2 These 72 standards correspond to emissions of ( 1) non mercury metallic HAP, mercury, inorganic HAP, or organic HAP from ( 2) existing or new or reconstructed units ( 3) that are large, small, or limited use, and ( 4) that burn solid, liquid, or gaseous fuels. 4 agency entirely fails to adopt 47 of the 72 necessary control standards. 3 Moreover, EPA further attempts to evade the MACT requirement by creating " health based compliance alternatives" for two significant HAPs, hydrogen chloride ( HCl) and manganese ( Mn),

and allowing individual large, solid fuel sources to choose whether to meet the categorywide MACT standard for these HAPs or instead to submit data demonstrating compliance with the more lenient health based alternatives. By declining to set most of the necessary standards, and by creating individualized, risk based MACT exemptions4 for large,

solidfuel sources of HCl and Mn, EPA fundamentally subverts the CAA's MACT program,

which depends for its success on the promulgation of a comprehensive set of easilyenforced category wide, technology based HAP standards.

We seek reconsideration of the rule on seven principal grounds: ( 1) EPA has no legal justification for its refusal to adopt almost two thirds of the standards necessary to regulate HAP emissions from ICI boilers and process heaters; ( 2) the CAA does not authorize plant by plant, risk based exemptions from otherwise applicable,

categorywide emissions standards; ( 3) even if such exemptions were otherwise lawful, EPA may not adopt them for pollutants like HCl and Mn, for which the necessary health thresholds are not established; ( 4) even if such thresholds were established, they would likely be exceeded under this rule, because the risk based exemptions fail to account for alternative sources and background levels of HCl and Mn; ( 5) compounding the two preceding problems, EPA uses HCl as a surrogate for other ( unidentified) non metallic, inorganic pollutants, for which health thresholds may or may not be established; ( 6) the Agency has 3 We do not concede that EPA is correct to identify only 72 standards as necessary to control emissions from ICI boilers and process heaters. Rather, we argue that once the Agency has identified those 72 standards, it cannot evade its statutory responsibility to set numerical emissions limits for each one. 4 EPA itself calls the health based alternatives " exemptions" in various places in the rule. See, e. g., 69 Fed. Reg. at 55,240 41. 5 structured the Mn exemption in such a way that it effectively permits plants with low Mn emissions to avoid controlling emissions of other non mercury metals; and finally, ( 7) the described procedures for demonstrating compliance with the § 112( d)( 4) risk based exemptions are significantly flawed.

Reconsideration of these seven issues is appropriate because they are of central relevance to the outcome of the rule, and most could not practicably have been raised during the public comment period. The Administrator must therefore " convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed." 5 In addition, we ask that EPA stay the effectiveness of the rule's risk based exemptions. A stay is warranted because under the final rule, existing sources of HCl and Mn that wish to take advantage of the exemptions must submit the relevant data to EPA " one year prior" 6 to the rule's fixed compliance date for such sources ( September 13, 20077), and new or reconstructed sources that begin operation after their compliance date ( November 12, 20048) must take similar action " within 180 days" of startup. 9 EPA should not encourage members of the regulated community to waste time and resources demonstrating that they meet unlawful risk based exemptions when those exemptions are legally unjustified. Nor should the Agency permit sources to delay compliance with the binding MACT standards for HCl and Mn based on a false hope that the exemptions will 5 42 U. S. C. § 7607( d)( 7)( B). Simultaneously with this petition, we are filing a petition for review of this rule in the U. S. Court of Appeals for the D. C. Circuit. 6 69 Fed. Reg. at 55,284. 7 Id. at 55,254. 8 Id. 9 Id. at 55,284. 6 withstand legal challenge. Thus, EPA should exercise its authority under section 307( d)( 7)( B) of the CAA10 to stay the effectiveness of the exemptions during the course of the reconsideration proceedings.

Indeed, given the likely success of this petition for reconsideration, EPA should not only grant a limited stay under section 307( d)( 7)( B) but also take the necessary administrative steps to stay the risk based exemptions indefinitely pending judicial review. Such exemptions are completely at odds with the basic purpose and structure of the MACT requirements. EPA should not ask sources to embark on a fool's errand of demonstrating compliance with these unlawful alternative standards, nor should the Agency waste limited federal resources reviewing and approving sources' compliance data.

1. EPA Must Reconsider Its Adoption of Numerous " No Control" Standards.

a. EPA has a clear statutory obligation to adopt MACT standards for each HAP emitted by a major source in a listed category or subcategory.

The language of the CAA is unequivocal: Under subsections 112( c)( 2) and ( d)( 1),

EPA " shall promulgate regulations establishing emission standards for each category or subcategory of major sources and area sources of hazardous air pollutants listed for regulation." 11 As the D. C. Circuit has observed, this amounts to a " clear statutory obligation to set emission standards for each listed HAP." 12 Moreover, the CAA strictly cabins the Agency's discretion in setting these standards. For new HAP sources, EPA must adopt a standard no " less stringent than the emission control that is achieved in 10 42 U. S. C. § 7607( d)( 7)( B) (" The effectiveness of the rule may be stayed during   reconsideration   by the Administrator   for a period not to exceed three months."). 11 Id. § 7412( d)( 1) ( emphasis added). 12 National Lime Assn. v. EPA, 233 F. 3d 625, 634 ( D. C. Cir. 2000) ( National Lime). 7 practice by the best controlled similar source," 13 and for existing sources, it must adopt a standard no " less stringent   than   the average emission limitation achieved by the best performing 12 percent of the existing sources   in the category or subcategory." 14 b. The final rule falls far short of meeting that obligation.

Despite the clarity of these statutory obligations, the ICI boiler and process heater rule fails to establish numerical standards for almost two thirds of the boiler size/

fueltype HAP groupings listed in the rule. EPA first indicates that it plans to regulate ( 1)

existing and new or reconstructed units, ( 2) that are large, small, or limited use, ( 3) that burn solid, liquid, or gaseous fuel, and ( 4) that emit non mercury metallic HAPs ( arsenic,

beryllium, cadmium, chromium, lead, manganese, nickel, and selenium15), mercury,

inorganic HAPs ( predominantly HCl16), or organic HAPs ( predominantly formaldehyde,

benzene, and acetaldehyde17). To regulate each of these groupings, EPA would need to adopt 72 MACT standards, ranging from a standard for non mercury metallic HAP emissions from existing, large, solid fuel units to a standard for organic HAP emissions from new, limited use, gaseous units. Yet EPA sets numerical standards for only 25 of these groupings, adopting a " no control" standard for the remaining 47.18 Thus, the rule violates the Act.

c. Reconsideration is warranted because the proposed rule failed to identify or explain the supposed legal basis for adoption of " no control" standards.

13 42 U. S. C. § 7412( d)( 3). 14 Id. § 7412( d)( 3)( A). For subcategories with fewer than 30 sources, the Agency must instead adopt a standard " no less stringent   than   the average emission limitation achieved by the best performing 5 sources." Id. § 7412( d)( 3)( B). 15 69 Fed. Reg. at 55,220. 16 Id. 17 Id. 18 See 69 Fed. Reg. at 55269 270, Table 1 to Subpart DDDD of Part 63; Memorandum from Roy Oommen, Eastern Research Group, to Jim Eddinger, U. S. EPA, " MACT Floor Analysis for the Industrial, Commercial, and Institutional Boilers and Process Heaters National Emission Standards for Hazardous Air Pollutants" ( October 2002), OAR 2002 0058 0028, at table 8 1 ( summarizing MACT floor emission limits for boiler size/ fuel type/ HAP groupings). 8 In the proposed ICI boiler and process heater rule, 19 the Agency signaled its intention to set " no control" standards for many of the identified boiler size/

fueltype HAP groupings. The proposed rule proffered various justifications for this dereliction of duty. For example, for new, small, solid fuel fired units, EPA indicated that " no control technology being used in the existing population of boilers and process heaters   consistently achieved lower emission rates than uncontrolled levels, such that a best controlled similar source for organic HAP could be identified," so " the MACT floor for new sources in this subcategory is no emissions reductions for organic HAP." 20 For similar reasons, EPA proposed adopting a " no control" standard for mercury emissions from new, liquid fired units, 21 and for all emissions except organic HAPs from new, gas fired units. 22 For existing units, the Agency proposed adopting " no control"

standards for all but 4 of the 36 boiler size/ fuel type/ HAP groupings. For some groupings, the Agency justified this omission by noting that " fewer than 6 percent of units in [ the] grouping used controls or limited emissions, [ so] the median unit for [ the]

grouping reflect[ ed] no emissions reduction." 23 For other groupings, EPA observed that " uncontrolled units ( or units with low efficiency add on controls) were   identified as being among the best performing 12 percent of sources" due solely to " characteristics of the fuel that they burn" rather than the efficacy of their control technologies. 24 Anticipating the obvious rejoinder to this observation   the Agency should require fuel switching as part of the MACT standard   EPA stated only that while such switching 19 68 Fed. Reg. 1660 ( Jan. 13, 2003). 20 Id. at 1682. 21 Id. at 1683 84. 22 Id. at 1684. 23 E. g., id. at 1676. 24 68 Fed. Reg. at 1672. 9 would decrease some HAP emissions, it might increase others, and " assess[ ing] the relative risk associated with each HAP emitted, and determin[ ing] whether requiring [ fuel switching] would result in overall lower risk," would require " analysis   not appropriate at this stage in the regulatory process." 25 Various commenters to the proposed rule identified the central flaw in these justifications: As the D. C. Circuit has repeatedly recognized, 26 the CAA requires promulgation of a numerical standard for HAP emissions from each identified major source category or subcategory, even if existing plants in the category or subcategory do not provide a ready example of a control technology adequate to achieve that standard.

That is, EPA's sole legal obligation in this respect is to adopt numerical HAP standards that reflect the emissions levels achieved by the best performing plants in the category or subcategory; 27 the Agency need not consider how individual plants will achieve that standard ( i. e., by adopting control technologies, switching fuels, implementing process changes, or some combination of the above), and it certainly may not absolve itself of the obligation to set MACT standards simply because those standards will pose a greater challenge for some plants than for others.

Making this point in its comments to the proposed rule, Earthjustice observed:

EPA argues that it could not set floors at the emission levels achieved by the best performing sources because these sources did not necessarily have the best add on control equipment. 68 Fed. Reg. at 1672. The agency goes on to claim that the best performing units are not necessarily the " best controlled" because they may have lower efficiency end of stack control equipment. Id. EPA completely misreads the mandate of § 112' s 25 Id. 26 See, e. g., Cement Kiln Recycling Coalition v. EPA, 255 F. 3d 855, 861, 865 ( D. C. Cir. 2001) ( CKRC); National Lime, 233 F. 3d at 633 34. 27 See CKRC, 255 F. 3d at 865 (" Section 7412( d)( 3) requires only that EPA set floors at the emission level achieved by the best performing sources. If EPA cannot meet this requirement using the MACT methodology, it must devise a different approach capable of producing floors that satisfy the [ CAA]."). 10 floor requirement   a remarkable achievement given that the D. C. Circuit has now explained that requirement three times. Floors under § 112 must reflect the emission levels actually achieved by the " best performing" sources   i. e., those with the lowest emission levels   not the ones that EPA deems to be the " best controlled." [ Cement Kiln Recycling Coalition v. EPA, 255 F. 3d 855, 861, 865 ( D. C. Cir. 2001) ( CKRC)]. It does not matter how these sources achieve their superior emission levels; they may do so by burning a cleaner fuel, by being better designed or newer, by being better maintained or operated, by using better end of stack control technologies, or by using more than one control technology. EPA's simple but mandatory task is to identify the relevant best performing sources   regardless of how they are achieving their superior emission levels   and set standards reflecting the average emission level these sources are achieving. Thus, EPA's contention that floors reflecting the emission levels achieved by the best performers may not reflect what is achievable for all sources through using a chosen control technology is irrelevant. Further, EPA's contention that floors must reflect what is achievable through using a chosen control technology is flatly unlawful; indeed, that contention has already been rejected twice by the D. C. Circuit. CKRC, 255 F. 3d at 861, 865; National Lime Assn. [ v. EPA, 233 F. 3d 625, 633 ( D. C. Cir. 2000) ( National Lime).] 28 Nowhere in the proposed rule did EPA address this central legal defect in its chosen approach. Indeed, in direct contravention of CAA § 307( d)( 3)( C), which requires that any proposed rule " include a summary" of " major   underlying   legal interpretations," 29 the proposed rule does not mention the two key D. C. Circuit decisions,

CKRC and National Lime, even though the Agency's proposed course of action departs from the holdings in those cases in a manner that demands explanation.

In the final rule, the Agency tries to remedy this glaring omission by offering a novel   and insupportable   interpretation of National Lime ( though the Agency again fails to grapple with CKRC). In National Lime, the court considered challenges to EPA regulations setting emissions standards for cement manufacturing facilities. The regulations " established emission floors of ` no control' for HCl, mercury, and total 28 Comments of Earthjustice to the Proposed NESHAP for ICI Boilers and Process Heaters, OAR 2002 0058 0451, 7 8. 29 42 U. S. C. § 7607( d)( 3)( C). 11 hydrocarbons   because the Agency found no cement plants using control technologies for these pollutants." 30 Observing that "[ n] othing in the [ CAA] even suggests that EPA may set emission levels only for those listed HAPs controlled with technology," the court found the " no control" standards " contrary to the [ CAA's] plain language" and remanded the regulations " for EPA to   set[] emission standards for those pollutants." 31 EPA attempts to distinguish the " no control" standards repudiated in National Lime from those adopted in the final ICI boiler and process heater rule as follows:

In the National Lime case, the court threw out EPA's determination of a no control floor because it was based only on a control technology approach. The court stated that EPA must look at what the best performers [ in the category or subcategory] achieve, regardless of how they achieve it. Therefore, our determination that the MACT floor for certain subcategories or HAP is ` no emissions reduction' is lawful because we determined that the best performing sources were not achieving emissions reductions through the use of an emission control system and there were no other appropriate methods by which boilers and process heaters could reduce HAP emissions. 32 That is, apparently, EPA feels it is justified in ignoring § 112' s mandate in the ICI boiler and process heater context because the Agency's determination of " no control" floors in this instance is not " based only on a control technology" but also on an assessment   however arbitrary, self serving, and lacking in record support   that other methods of achieving emissions reductions are not " appropriate" ( a term the Agency never defines).

This cramped reading of the D. C. Circuit's broad language is untenable. The court states unequivocally that EPA has a " clear statutory obligation to set emission standards for each listed HAP." 33 The court does observe that EPA must set standards 30 233 F. 3d at 632. 31 Id. at 628, 633 34. 32 69 Fed. Reg. at 55,233. 33 233 F. 3d at 634. 12 even " for HAPs not controlled with technology," 34 but to read this requirement ( set standards even if no technology is readily available to achieve that standard) to permit EPA not to set standards when achieving the standards might require a combination of several approaches ( such as fuel switching, and/ or process changes, and/ or installation of technological controls) is patently absurd.

EPA does not and cannot claim that the best performing ICI boilers and process heaters in each subcategory perform no better than worse performing units. The Agency says only ( 1) that the best performing plants do not consistently use control technologies different from worse performing plants, ( 2) that process changes or work practices " would be ineffective in reducing [ some] fuel related HAP emissions," 35 and ( 3) that EPA cannot be bothered to do the analysis necessary to determine whether fuel switching would produce net reductions in overall HAP emissions. 36 National Lime unequivocally holds that such excuses do not absolve the Agency of its statutory obligation to set MACT standards for HAP emissions from each and every identified category or subcategory of major source. 37 Moreover, CKRC resolves any remaining doubt on the subject. In that case, the court held that in setting MACT standards, EPA must " set floors at the emission level achieved by the best performing sources," whether the Agency does so using " MACT methodology" or by " consider[ ing]

factors such as ` process changes, substitution of materials or other modifications

34 Id. 35 69 Fed. Reg. at 55,233. 36 See 68 Fed. Reg. at 1672 ( claiming, with no justification, that analysis of the HAP related consequences of fuel switching is " not appropriate at this stage in the regulatory process"). 37 See generally 233 F. 3d at 633 34. 13 design, equipment, work practice, or operational standards   [ or] a combination of the above.'" 38 In short, EPA's legal justification for its adoption of 47 " no control" standards is tortured and wholly inadequate. Because   contrary to § 307( d)( 3)( C) 39   the Agency first stated that justification in the final rule, we were unable to identify the specific flaws in the legal analysis until after the comment period closed. The flaws exposed by our objections go to the heart of the final rule, casting significant legal doubt on the " standards" adopted for 47 of the 72 boiler size/ fuel type/ HAP groupings identified in the rule. Accordingly, the Agency must " convene a proceeding for reconsideration of [ those 47 standards] and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed." 40 2. EPA Must Reconsider the Final Rule's Risk Based Exemptions for HCl and Mn Emissions.

a. The proposed rule's description of the risk based exemptions was inadequate to provide public notice of the likely contours of the program.

The final ICI boiler and process heater rule creates risk based exemptions for large, solid fuel sources of two important HAPs, HCl and Mn. The rule lays out the methodology and criteria individual plants may use to demonstrate eligibility for these exemptions in a detailed, five page appendix, Appendix A. 41 The following examples serve to illustrate the level of specificity in Appendix A:

  It includes two tables ( one for HCl and one for Mn), each of which lists 132 " allowable toxicity weighted emission rate[ s]," corresponding to 132 stack

38 255 F. 3d at 863 65 ( quoting 42 U. S. C. § 7412( d0( 2)( A)( E)). 39 42 U. S. C. § 7607( d)( 3)( C). 40 Id. § 7607( d)( 7)( B). 41 69 Fed. Reg. at 55,282. 14 height/ distance to property boundary pairings, for use in determining that a particular facility's HCl or Mn equivalent emissions rates qualify for the riskbased exemptions; 42   It identifies a specific EPA technical resource document, " Air toxics Risk Assessment Reference Library, Volume 2, Site Specific Risk Assessment," as "[ a] n example of one approach for performing a site specific compliance demonstration for air toxics"; 43   It contains detailed instructions on how monitoring data that do not detect HCl or Mn ( so called " nondetect data") should be handled in determining emissions rates from a source facility; 44 and   It lists certain elements that a facility's " site specific compliance demonstration" must contain, including an estimate of " long term inhalation exposures" from the facility, and an estimate of " inhalation exposure for the individual most exposed to the facility's emissions." 45 In contrast to Appendix A, the proposal's discussion of risk based exemptions was both muddy and absurdly scant. For example, the proposal identified " three mechanisms that   could be used" 46 to implement the exemptions, the first and third of which (" an applicability cutoff for threshold pollutants   under   section 112( d)( 4)" 47 and " a concentration based applicability threshold," 48 respectively) are not in fact two mechanisms but one   a fact the final rule, which adopts this mechanism, apparently recognizes. 49 Even more concerning, the proposal only identified HCl as a possible subject of a risk based exemption, never mentioning an exemption for Mn. Finally,

although the proposed rule indicated both ( 1) that EPA had " chose[ n] to use HCl as a 42 Id. at 55,286, Tables 2 and 3 to Appendix A of Subpart DDDDD. 43 Id. at 55,283 § 7. 44 Id. at 55,283 § 4( f). 45 Id. at 55,283 84 § 7( c). 46 68 Fed. Reg. at 1688 ( emphasis added). 47 Id. 48 Id. 49 Both involve exemptions for individual facilities that " can demonstrate that their emissions of threshold pollutants would not result in air concentrations above the threshold levels." Id. at 1689. See also id. at 1692 ( defining the third approach as " an applicability cutoff for the threshold pollutant hydrogen chloride" for " individual facilities that can demonstrate that their emissions of hydrogen chloride will not result in air concentrations above the inhalation reference concentration for hydrogen chloride"). 15 surrogate   [ for] inorganic HAP," 50 and ( 2) that the Agency was considering adopting a risk based " applicability cutoff" for HCl, 51 the proposal never acknowledged the deleterious implications of the latter policy choice for the former.

With respect to the technical details of the risk based exemption mechanism, the proposed rule stated only that EPA was considering a "[ t] iered analytical approach." 52 The entirety of the Agency's description of this approach was as follows:

Establishing that a facility meets the cutoffs established under CAA section 112( d)( 4) will necessarily involve combining estimates of pollutant emissions with air dispersion modeling to predict exposures. The EPA envisions that we would promote a tiered analytical approach for these determinations. A tiered analysis involves making successive refinements in modeling methodologies and input data to derive successively less conservative, more realistic estimates of pollutant concentrations in air and estimates of risk.

As a first tier of analysis, EPA could develop a series of simple look up tables based on the results of air dispersion modeling conducted using conservative input assumptions. By specifying a limited number of input parameters, such as stack height, distance to property line, and emission rate, a facility could use these look up tables to determine easily whether the emissions from their sources might cause a hazard index limit to be exceeded.

A facility that does not pass this initial conservative screening analysis could implement increasingly more site specific but more resourceintensive tiers of analysis using EPA approved modeling procedures, in an attempt to demonstrate that exposure to emissions from the facility does not exceed the hazard index limit. The EPA's guidance could provide the basis for conducting such a tiered analysis. [ FN8]

FN8 " A Tiered Modeling Approach for Assessing the Risks due to Sources of Hazardous Air Pollutants." EPA 450/ 4 92 001. David E. Guinnup, Office of Air Quality Planning and Standards, USEPA, March 1992.

The EPA requests comment on methods for constructing and implementing a tiered analytical approach for determining applicability of 50 Id. at 1671. 51 Id. at 1692. 52 Id. at 1691. 16 the CAA section 112( d)( 4) criterion to specific industrial boiler and process heater sources. It is also possible that ambient monitoring data could be used to supplement or supplant the tiered modeling approach described above. It is envisioned that the appropriate monitoring to support such a determination could be extensive. The EPA requests comment on the appropriate use of monitoring in the determinations described above. 53 Even a reader new to " tiered modeling approach[ es]" can easily recognize that innumerable details are missing from this description. For example: What air dispersion models will be acceptable? Will the lookup tables be published as part of the final rule or included in some external EPA database? How will EPA arrive at the emissions levels listed in those tables? What are " conservative input assumptions"? 54 Will facilities that resort to site specific modeling be required to account for such seemingly relevant sitespecific factors as weather ( e. g., wind speed, average precipitation levels, etc.) and altitude? What might " appropriate monitoring" 55 include?

These omissions might be less concerning if the report on which EPA apparently relied in crafting the exemption proposal, David E. Guinnup's " A Tiered Modeling Approach for Assessing the Risks due to Sources of Hazardous Air Pollutants," 56 were included in the docket. But not only is that report missing from the docket, it appears nowhere in the final rule. If EPA in fact relied on the report in crafting either the proposal or the final rule, the CAA requires that the relevant portions of the report be included in the docket. 57 If the final version of the risk based exemptions did not derive 53 68 Fed. Reg. at 1691. 54 Id. 55 Id. 56 Id. 57 See 42 U. S. C. § § 7607( d)( 3) (" All data, information, and documents referred to in this paragraph on which the proposed rule relies shall be included in the docket on the date of publication of the proposed rule."), 7607( d)( 4)( B)( i) (" All documents   which the Administrator determines are of central relevance to the rulemaking shall be placed in the docket as soon as possible after their availability."). 17 from this report, that fact serves only to underline the proposal's paucity of details about the possible contours of those exemptions.

Due to the lack of detail in the proposal, most of our objections to the risk based exemptions arose upon publication of the final rule, after the period for public comment had closed. Yet those objections, detailed below, are centrally relevant to the final rule,

as even EPA's " preliminary ` rough' assessment of the large solid fuel subcategory"

indicates that over 800 large, solid fuel boilers could take advantage of the exemptions to evade otherwise applicable, CAA mandated MACT standards. 58 Therefore, under CAA § 307( d)( 7)( B), EPA must reconsider both the concept and the practicalities of the exemptions. In so doing, the Agency should take into account the following legal and analytical objections, each of which calls into question the validity of those exemptions and is thus " of central relevance to the outcome" of the final ICI boiler and process heater rule. 59 b. CAA § 112( d)( 4) does not support the adoption of individualized, risk based exemptions.

EPA calls its § 112( d)( 4) based MACT exemptions " health based compliance alternatives," 60 but this euphemism cannot disguise the exemptions' true nature: They are a clear attempt to exempt individual HAP sources in a listed category from CAAmandated HAP standards. That attempt contravenes the Act and is arbitrary and capricious.

58 69 Fed. Reg. at 55,244. 59 42 U. S. C. § 7607( d)( 7)( B). 60 E. g. 69 Fed. Reg. at 55,227. 18 i. The plain language of the Act specifies that EPA can neither refuse to set emissions standards for listed sources nor exempt individual sources from otherwise applicable standards.

As discussed above, the CAA's MACT requirements are unequivocal: When a source category is listed, the Agency must establish emission standards that apply to the entire category. Section 112( c)( 2) of the Act, " Requirement for emissions standards,"

states that "[ f] or the categories and subcategories the Administrator lists, the Administrator shall establish emission standards under subsection ( d) of this section." 61 Likewise, § 112( d)( 1) instructs the Agency to " promulgate regulations establishing emission standards for each category or subcategory of major sources and area sources of hazardous air pollutants listed for regulation pursuant to subsection ( c) of this section." 62 Applying this plain language, National Lime squarely holds that EPA is not allowed to make a " no control" determination for a pollutant emitted by a listed source category. 63 Against this background, the import of § 112( d)( 4) is clear. The provision gives EPA authority to " consider" a HAP's established health threshold in setting emission standards under the Act. 64 In other words, if there is a known " threshold" level below which the HAP causes no adverse health effects, EPA may set a category or subcategory wide control standard at a level more or less stringent than the MACT provisions would otherwise require.

Section 112( d)( 4) does not, however, allow EPA to make facility by facility exemptions from otherwise applicable MACT standards. The section provides, "[ w] ith respect to pollutants for which a health threshold has been established, the Administrator 61 42 U. S. C. § 7412( c)( 2). 62 Id. § 7412( d)( 1). 63 National Lime, 233 F. 3d at 633 34. 64 42 U. S. C. § 7412( d)( 4). 19 may consider such threshold level, with an ample margin of safety, when establishing emissions standards under this subsection." 65 The words " under this subsection" require EPA to apply any § 112( d)( 4) influenced standard to entire categories or subcategories of sources, because subsection ( d) includes no mention of individualized exemptions or individualized standard setting and therefore must be read to require the regulation of HAP emissions on a category wide basis. Moreover, § 112( d)( 4) is only available when the Agency is " establishing"   not applying   emissions standards. 66 This interpretation of the statute's plain meaning is confirmed by the fact that the only time § 112 mentions individualized standard setting is under the so called " MACT hammer" provisions of § 112( j). In the event that EPA misses a statutory deadline to establish emissions standards for a category or subcategory of sources, § 112( j) directs the States to set MACT standards for each facility via Title V permitting programs. 67 The language of § 112( j), which directs " the owner or operator of any major source" to submit a Title V permit application in this circumstance, 68 indicates that Congress knew how to regulate on a source by source basis; had legislators wished to create a similar,

source by source regulatory regime for threshold HAP emissions from listed sources,

therefore, one can only presume they would have included similar language in § 112( d)( 4). Instead, § 112( d)( 4) clearly mandates that EPA promulgate category wide,

MACT based emissions standards for all sources in a listed category or sub category. 69 65 Id. 66 Id. ( emphasis added). 67 Id. § 7412( j)( 2)( 5). 68 Id. § 7412( j)( 2) ( emphasis added). 69 Id. § 7412( d)( 4); see also id. § 7412( c)( 2) (" For the categories and subcategories the Administrator lists, the Administrator shall establish emissions standards under subsection ( d), according to the schedule in this subsection and subsection ( e)."). 20 The only alternatives to this requirement are ( 1) to delist an entire category of facilities via section 112( c)( 9), 70 or ( 2) to delist a specific chemical under subsection ( b)( 3). 71 ii. Congress did not intend to permit EPA to exempt facilities simply because they emit threshold HAPs.

In creating individualized, risk based exemptions for facilities that emit HCl and Mn, EPA invokes an authority that Congress expressly declined to grant the Agency.

Indeed, as discussed below, both Houses of Congress considered source by source riskbased exemptions for threshold HAPs, but both chose not to adopt such exemptions.

Emissions standards under § 112 apply to " major sources," and the Act specifies that a source is " major" if it emits in excess of 10 tons per year of a given HAP. 72 A prior version of the bill, however, would have allowed EPA to decline to regulate sources that emit greater quantities of threshold pollutants. 73 As the Senate report describing the provision explained:

[ U] nder section 112( c)( 5) the Administrator may set a lower boundary for the category of major sources which is higher than 10 tons per year ( but which provides an ample margin of safety to protect public health). If there are no sources emitting the pollutant in that amount in a particular category, then no regulation under section 112( d) need be promulgated. 74 70 Id. § 7412( c)( 9). 71 Id. § 7412( b)( 3). 72 Id. § 7412( a)( 1). 73 See S. Rep. No. 101 228, at 519 ( 1989), reprinted in V A LEGISLATIVE HISTORY OF THE CLEAN AIR ACT AMENDMENTS OF 1990, at 8338, 8859 ( Comm. Print 1993) ( hereinafter " LEGISLATIVE HISTORY") ( noting that the Senate's proposed version of § 112 would have permitted EPA to " establish a minimum emissions rate of more than ten tons for a category or subcategory and a pollutant for which a health effects threshold can be established, provided that, the minimum emissions rate assures, with an ample margin of safety, such threshold will not be exceeded within the vicinity of the sources in the category and that no additional adverse environmental effects will occur as the result of emissions from the sources individually or in combination with emissions from other similar sources"). 74 S. Rep. No. 101 228, at 176, reprinted in V LEGISLATIVE HISTORY, at 8516. 21 The fact that such a provision did not become law indicates that the current CAA does not permit EPA to avoid regulating facilities by pointing to evidence of a health threshold.

Moreover, EPA's current interpretation of § 112 ( d)( 4) directly parallels another idea advanced and rejected during the debate over the1990 Amendments to the CAA ( CAAA). The House bill would have allowed an individual facility to escape MACT if a risk analysis showed that the source posed a negligible hazard. Specifically, the bill would have allowed States to permit " a major source to comply with alternative emission limitations in lieu of standards under this section, if the owner or operator presents sufficient evidence to demonstrate that emissions from the source in compliance with such limitations present a negligible risk to public health under criteria issued by the Administrator." 75 This proposal was not in the Senate bill, however, and again the conference rejected the idea in the final legislation. 76 Finally, the conference report on the 1990 CAAA states, "[ i] t is the conferees'

intent that EPA not use the [ § 112( j)] permit hammer approach ( case by case) to avoid or delay meeting MACT requirements." 77 In other words, Congress expressed its desire for a category based approach to MACT standard setting rather than a time consuming and delay inducing source by source approach.

c. EPA's authority under § 112( d)( 4) does not extend to HCl and Mn.

75 H. R. 3030, 101st Cong. § 112( g)( 1)( A), reprinted in II LEGISLATIVE HISTORY, at 3939. 76 See Senate Debate on the Clean Air Act Amendments of 1990 Conference Report ( hereinafter " Senate Debate"), reprinted in I LEGISLATIVE HISTORY, at 866 ( Statement of Senator Durenberger) (" The authority for such exemptions was not present in the Senate bill, and the House receded to the Senate on this point. The provision was deleted in conference."). 77 Clean Air Act Amendments of 1990 Conference Report, at 340 ( hereinafter " Conference Report"), reprinted in I LEGISLATIVE HISTORY, at 1790. 22 i. Section 112( d)( 4) applies only to HAPs for which a health threshold has been established.

Whatever the legality of invoking CAA § 112( d)( 4) to support adoption of individualized risk based exemptions from otherwise applicable MACT standards, the plain language of that section limits its applicability to HAPs for which a " health threshold has been established." 78 Three aspects of this phrase are noteworthy. First, the word " threshold" requires that EPA have direct evidence that the HAP in question has no health effects below an identified, non zero level. 79 This requirement, in turn, precludes the extension of § 112( d)( 4) authority to carcinogens, which are presumed to have no such level. Indeed, the Senate CAAA report made precisely this point, noting that invoking § 112( d)( 4) is appropriate only when " the pollutant presents no risk of other adverse health effects, including cancer, for which no threshold can be established. . . ." 80 Recognizing this Congressional intent, EPA traditionally has interpreted § 112( d)( 4) to exclude consideration of carcinogens. 81 Second, the phrase " has been" demonstrates that Congress intended for EPA to use its § 112( d)( 4) authority only when a pollutant's health threshold is already accepted in the scientific community. That is, Congress did not intend for EPA to spend time and resources seeking such a threshold. This reading is bolstered by the fact that one draft of 78 42 U. S. C. § 7412( d)( 4). 79 The Senate report on the CAAA states that the section allows EPA to use the " no observable effects level" ( NOEL). S. Rep. No. 101 228, at 171, reprinted in V LEGISLATIVE HISTORY, at 8511. 80 S. Rep. No. 101 228, at 171, reprinted in V LEGISLATIVE HISTORY, at 8511 ( emphasis added); see also Senate Debate, reprinted in I LEGISLATIVE HISTORY, at 876 ( Statement of Senator Durenberger) (" With respect to pollutants for which a safe threshold can be set, the authority to set a standard less stringent than the maximum achievable control technology is contained in subsection ( d)( 4). With respect to carcinogens and other non threshold pollutants, no such authority exists in subsection ( d) or any other provision of the Act." ( emphasis added)). 81 See, e. g., National Emission Standard for Hazardous Air Pollutants, Proposed Standards for Hazardous Air Pollutants From Chemical Recovery Combustion Sources at Kraft, Soda, Sulfite, and Stand alone Semichemical Pulp Mills, 63 Fed. Reg. 18,754, 18, 765 ( proposed Apr. 15, 1998) ( to be codified at 40 C. F. R. pt. 63) ( noting that EPA has not applied section 112( d)( 4) to carcinogens because Congress " clearly intended them to be nonthreshold pollutants"). 23 the CAAA   later rejected   would have made the § 112( d)( 4) authority contingent only on a finding that a threshold " can be established." 82 Third, Congress's use of the word " established"   rather than, for example,

" estimated" or " approximated"   indicates that EPA must have a high degree of scientific certainty before using its § 112( d)( 4) authority. 83 Again, the CAAA legislative history supports this interpretation; even the Senate, whose bill would have allowed EPA to invoke section ( d)( 4) when a threshold " can be established," did not intend for the Agency to take less than definitive evidence of a threshold into account in setting emissions standards:

[ T] hat would jeopardize the standard setting schedule imposed under this section with the kind of lengthy study and debate that has crippled the current program. But where health thresholds are well established,   and the pollutant presents no risk of other adverse health effects, including cancer, for which no threshold can be established, the Administrator may use the threshold with an ample margin of safety ( and not considering cost) to set emissions limitations for sources in the category or subcategory. 84 Overall, then, EPA may not rely on § 112( d)( 4) to support risk based exemptions for known or potential carcinogens. It may not invoke the section unless evidence of a no effects threshold for a pollutant already exists in the scientific literature. And it may not speculate from inconclusive evidence; it must be certain that exposure to the pollutant at the identified " threshold" level has no deleterious health effects.

ii. No health threshold has been established for HCl.

82 S. 1630, 101st Cong. § 112( d)( 4)( A), reprinted in III LEGISLATIVE HISTORY, at 4425 ( emphasis added). 83 The most relevant dictionary definition of " established" is " to put beyond doubt; prove." WEBSTER'S NEW COLLEGIATE DICTIONARY 388 ( 1980). 84 S. Rep. No. 101 228, at 171, reprinted in V LEGISLATIVE HISTORY, at 8511 ( emphasis added). 24 These three considerations squarely preclude establishment of a § 112( d)( 4) based exemption for HCl. To begin with, it is possible that HCl is carcinogenic. In its Integrated Risk Information System ( IRIS) database, EPA states that HCl " has not undergone a complete evaluation and determination   for evidence of human carcinogenic potential." 85 Elsewhere, the Agency states that " no information" exists on HCl carcinogenicity in humans. 86 Further, the International Agency for Research on Cancer ( IARC) identifies several human and animal studies that suggest HCl may have carcinogenic effects:

One US study of steel pickling workers showed an excess risk for cancer of the lung in workers exposed primarily to hydrochloric acid. An increased risk for laryngeal cancer was observed in the same cohort; however, no analysis was performed of workers exposed to hydrochloric acid. None of three US industry based case control studies suggested an association between exposure to hydrogen chloride and cancers of the lung, brain or kidney. In one Canadian population based case control study, an increased risk for oat cell carcinoma was suggested in workers exposed to hydrochloric acid; however, no excess risk was observed for other histological types of lung cancer.

In one lifetime study in male rats exposed by inhalation at one dose level, hydrogen chloride did not produce a treatment related increase in the incidence of tumours. Hydrogen chloride was tested at one dose level in combination with formaldehyde by inhalation exposure in the same longterm experiment in male rats. Hydrogen chloride did not influence the nasal carcinogenicity of formaldehyde when mixed with it upon entry into the inhalation chamber. When the two compounds were premixed before entry into the inhalation chamber, an increased incidence of nasal tumours was observed over that seen in animals treated with the combination mixed on entry or with formaldehyde alone. 87 85 U. S. EPA, Integrated Risk Information System: Hydrogen Chloride, http:// www. epa. gov/ iris/ subst/ 0396. htm. 86 U. S. EPA, Technology Transfer Network Air Toxics Website: Hydrochloric Acid ( Hydrogen Chloride), http:// www. epa. gov/ ttnatw01/ hlthef/ hydrochl. html. 87 International Agency for Research on Cancer, Hydrochloric Acid, Summary of Data Reported and Evaluation, http:// www cie. iarc. fr/ htdocs/ monographs/ vol54/ 03 hydrochloric acid. htm. 25 From these studies, IARC concludes only that "[ t] here is inadequate evidence for the carcinogenicity in humans of hydrochloric acid," 88 but these studies and the absence of further data are patently insufficient for EPA simply to assume HCl is not carcinogenic.

A further flaw in the Agency's decision to treat HCl as a threshold pollutant concerns its conclusion that the HCl reference concentration ( RfC, or level at which no adverse health effects are expected89) is 0.02 mg/ m3 ( 0.0134 ppm90). 91 EPA selects this RfC value based on rat studies that demonstrated hyperplasia of the nasal mucosa ( the protective cell lining of the nasal tract and cavities), larynx, and trachea in response to HCl exposure. 92 But these rat studies only investigated effects on respiratory tract organs; the Agency identifies no studies that indicate whether exposure to HCl   at 0.02 mg/ m3 or any other concentration   harms other bodily systems. In addition, the studies failed to identify a no observed effects level ( NOEL). As a result, the RfC in the final ICI boiler and process heater rule is based on the lowest observed adverse effects level ( LOAEL)   that is, the lowest dose to which study rats were exposed, and at which measurable adverse health effects occurred in treated animals. 93 88 Id. ( emphasis in original). 89 Specifically, the RfC is an estimate ( with uncertainty spanning perhaps an order of magnitude) of a continuous, lifetime inhalation exposure that is unlikely to pose significant risks of deleterious noncancer effects in human subjects ( including sensitive subgroups). 90 To convert concentrations in air ( at 25 oC) from ppm to mg/ m3: mg/ m3 = ( ppm) x ( molecular weight of the compound)/ 24.45. For hydrochloric acid: 1ppm = 1.49 mg/ m3. 91 69 Fed. Reg. at 55,283, Appendix A § 6( a)( 1) ( referring facilities to EPA's Technology Transfer Network Air Toxic Website for an RfC for HCl). 92 R. E. Albert, et al., Gaseous formaldehyde and hydrogen chloride induction of nasal cancer in rats. 68 J. Natl. Cancer Inst. 597 603 ( 1982). 93 The Albert, et al. study ( discussed in detail by A. R. Sellakumar, et al., Carcinogenicity of formaldehyde and hydrogen chloride in rats. 81 Toxicol. Appl. Pharmacol. 401 406 ( 1985)) reported data from a chronic inhalation exposure study in rats. One hundred male Sprague Dawley rats were exposed to 10 ppm hydrogen chloride for 6 hours/ day, 5 days/ week ( duration adjusted concentration = 2.5 mg/ m3) for their lifetimes. Only the organs of the respiratory tract were subjected to detailed histological analysis. Even at this lowest dose, there was a 24% incidence of hyperplasia of laryngeal tracheal segments in HCl exposed rats ( larynx 2/ 22, trachea 6/ 26) versus 6% in the controls. 26 It is highly likely that at doses below those in the study, there are alterations in normal physiological and biological functions in exposed animals, and consequent adverse health effects. Further, it is reasonable to presume that organs other than those associated with the nasal and respiratory tracts are vulnerable to damage or destruction through acute or long term HCl inhalation. After all, clinical symptoms of HCl toxicity in humans include gastritis, dermatitis, and adverse reproductive outcomes.

iii. No health threshold has been established for Mn.

EPA's decision to treat Mn as a threshold pollutant is equally ill founded. 94 For one thing, Mn, like HCl, may have carcinogenic effects. On this subject, EPA's IRIS database indicates that "[ e] xisting studies are inadequate to assess the carcinogenicity of manganese," 95 but the database also identifies two mouse studies in which exposure to Mn compounds induced lung96 and lymph97 tumors, respectively. Moreover, EPA concedes that the results of the former study " are suggestive of carcinogenicity." 98 Studies by the National Toxicology Program at the National Institute of Environmental Health Sciences ( NTP) provide further evidence of Mn's potential carcinogenicity. NTP performed toxicology and carcinogenesis studies on rats and mice, finding that adding manganese ( II) sulfate monohydrate to the animals' feed marginally increased incidences of thyroid gland follicular cell adenoma and significantly increased incidences of 94 The flaws in the Mn exemption are particularly worthy of reconsideration, as EPA's proposed ICI boiler and process heater rule provided absolutely no notice that the Agency was considering Mn as a possible subject of a risk based exemption under § 112( d)( 4). 95 U. S. EPA, Integrated Risk Information System: Manganese, http:// www. epa. gov/ iris/ subst/ 0373. htm. 96 G. D. Stoner, et al., Test for carcinogenicity of metallic compounds by the pulmonary tumor response in strain A mice. 36 Cancer Res. 1744 1747 ( 1976). 97 J. A. DiPaolo, The potentiation of lymphosarcomas in mice by manganous chloride. 23 Fed. Proc. 393 ( 1964) ( abstract). 98 U. S. EPA, Integrated Risk Information System: Manganese, http:// www. epa. gov/ iris/ subst/ 0373. htm. 27 follicular cell hyperplasia. 99 Clearly, then, it is arbitrary   and hence unlawful   for the Agency to assume that Mn is noncarcinogenic   as it must to treat Mn as a threshold pollutant to which CAA § 112( d)( 4) may be applicable.

In addition, as for HCl, the Agency's studies of the inhalation effects of Mn ( on which the Mn RfC is based) identify only a LOAEL, not a NOEL. 100 Again, this strongly suggests that physiological and biological impairments occur at Mn doses below those tested in the studies. Moreover, according to EPA's database, the two studies in question involved men exposed to Mn compounds in their workplace. 101 That is, the Agency only considered presumptively healthy, adult men's exposure to Mn compounds   an egregious flaw given that Mn is a well established, potent developmental neurotoxicant,

known to be most damaging to the central nervous systems of fetuses, infants, and young children. 102 Finally, the rule indicates that in treating Mn as a threshold pollutant, the Agency considered only the health effects of chronic exposure, ignoring " potential acute effects"

because "[ a] screening assessment   for [ those] effects" showed " no exceedances." 103 99 National Toxicology Program, National Institute of Environmental Health Sciences, Study Abstract for Manganese Sulfate Monohydrate, http:// ntp apps. niehs. nih. gov/ ntp_ tox/ index. cfm? fuseaction = abstracts. abstract& nextcircuit= longtermbioassaydata& study_ no= C61143B& abstract_ url= http% 3A% 2F% 2Fntp% 2Dserver% 2Eniehs% 2Enih% 2Egov% 2Fhtdocs% 2FLT% 2DStudies% 2FTR428% 2Ehtml& test_ type = Long Term& study_ length= 2% 20Years& cas_ no= 10034% 2D96% 2D5& chemical_ name= Manganese% 20Sulfate% 20Monohydrate. 100 U. S. EPA, Integrated Risk Information System: Manganese, http:// www. epa. gov/ iris/ subst/ 0373. htm. 101 Id. ( describing H. Roels, et al., Epidemiological survey among workers exposed to manganese: Effects on lung, central nervous system, and some biological indices. 11 Am. J. Ind. Med. 307 327 ( 1987), and H. Roels, et al., Assessment of the permissible exposure level to manganese in workers exposed to manganese dioxide dust. 49 Br. J. Ind. Med. 25 34 ( 1992). 102 See, e. g., L. Takser L., et al., Manganese, monoamine metabolite levels at birth, and child psychomotor development. 24 Neurotoxicology 667 74 ( 2003) ( describing a prospective epidemiological study in 247 healthy pregnant women and their babies to determine the long term effect of in utero exposure to environmental low levels of Mn, and reporting evidence of impaired psychomotor development by age six). See also L. Normandin, et al., Manganese distribution in the brain and neurobehavioral changes following inhalation exposure of rats to three chemical forms of manganese. 25 Neurotoxicology 433 41 ( 2004). 103 69 Fed. Reg. at 55,220. 28 Amazingly, however, the cited screening assessment appears nowhere in the docket for the final rule. Moreover, a memorandum describing that screening assessment, which does appear in the docket, 104 indicates that the assessment relied on "[ a] cute   toxicity dose response values   taken from the EPA Air Toxics website ( http:// www. epa. gov/ ttn/

atw/ toxsource/ summary. html)" 105   even though that website identifies no acute toxicity dose response value for Mn. 106 That is, EPA appears arbitrarily to have concluded that Mn emissions from regulated facilities never exceed the level at which acute effects may occur even though the Agency has no data indicating what that level might be. 107 d. The final rule makes no attempt to account for background levels and alternative sources of HCl and Mn.

A further problem with the ICI boiler and process heater rule's risk based exemptions is the Agency's failure to account for either background levels or alternative sources of HCl and Mn. The final rule permits an individual facility to demonstrate that it qualifies for the risk based exemption for HCl or Mn simply by submitting data showing that emissions from the facility do not exceed the RfC for that HAP, whether or not there are other, co located sources of the HAP or other pathways of exposure. 108 As a consequence, a facility with both an ICI boiler or process heater and other HCl or Mn

104 Memorandum from Scott Jenkins, Risk and Exposure Assessment Group, to Dave Guinnup, Leader, Risk and Exposure Assessment Group, " Screening Assessment of Central Nervous System Hazardous Air Pollutants from Wood Fired Industrial Boilers" ( February 25, 2004), OAR 2002 0058 0608. 105 Id. at 1. 106 U. S. EPA, Acute Dose Response Values, http:// www. epa. gov/ ttn/ atw/ toxsource/ table2. pdf ( listing acute exposure guideline levels ( AEGLs) for various air toxics, but leaving blank the AEGLs corresponding to " Manganese compounds"). 107 The table does include one value for Mn   the " IDLH" level, or level at which the compound is immediate dangerous to life or health. Relying on this value to determine when and whether emissions from regulated facilities might cause acute health effects is completely inappropriate, as the IDLH level indicates only the concentration at which Mn would be deadly or irreversibly dangerous to health, not the concentration at which lesser ( but still measurable and adverse) acute effects would be observed. 108 69 Fed. Reg. at 55,283, 55,285, Appendix A § § 7( a)( b), 13. 29 emitting units, or a facility located in an industrial park near other similar facilities, or a facility located in an area with high background concentrations of either HAP, could qualify for the HCl or Mn risk based exemption yet still pose a significant risk to people living or working nearby.

This dubious approach differs from that advanced in the proposed rule. 109 In the proposal, EPA made clear that any credible assessment of the risks posed by a regulated facility must include background pollution and emissions from co located sources. The proposal's discussion of this issue proceeded in three steps. First, the Agency explained that it would use the concept of a hazard index ( HI) or hazard quotient ( HQ) to quantify the risks from regulated plants. 110 ( As defined in the final rule, an HI is the sum of individual HQs " for multiple substances and/ or multiple exposure pathways," while an HQ is " the ratio of the predicted media concentration of a pollutant to the media concentration at which no adverse effects are expected." 111) Second, EPA sought comment on a range of HI ( or HQ) values that, if exceeded at any particular plant, would indicate unacceptably high emissions of one or more HAPs. Third, the Agency observed that simply ensuring that HAP emissions from an individual facility result in an HI less than or equal to 1.0   that is, ensuring that emissions from the facility do not exceed the threshold concentration for the relevant pollutant but ignoring other sources of exposure   inevitably underprotects. Specifically, the Agency stated:

109 Because EPA's final approach differs from that championed in the notice of proposed rulemaking, the grounds for our objection arose after the period for public comment had ended. The objection is thus appropriately raised in this petition. See 42 U. S. C. § 7607( d)( 7)( B). Moreover, the objection is " of central relevance to the outcome of the rule," id., because it demonstrates that the exemptions contravene the CAA and are arbitrary and capricious. 110 68 Fed. Reg. at 1689 1691. 111 69 Fed. Reg. at 55,285, Appendix A § 13. For inhalation exposures, the rule goes on to note, " the HQ is calculated as the air concentration divided by the Rfc." Id. 30 One option is to allow the hazard index posed by all threshold HAP emitted from sources at the facility to be no greater than one. This approach is protective if no additional threshold HAP exposures would be anticipated from other sources in the vicinity of the facility or through other routes of exposure ( e. g., through ingestion).   Because noncancer risk assessment is predicated on total exposure or dose, and because risk assessments focus only on an individual source, establishing a hazardous index limit of 0.2 would account for an assumption that 20 percent of an individual's total exposure is from that individual source.   If the facility is allowed to emit HAP such that its own impacts could result in HI values of one, total exposures to threshold HAP in the vicinity of the facility could be substantially greater than one due to background sources, and this would not be protective of public health, since only HI values below one are considered to be without appreciable risk of adverse health effects. 112 Thus, at the proposal stage, EPA apparently concluded that an HI limit of 1.0 could only protect public health " with an ample margin of safety" ( a protective cushion required by § 112( d)( 4) 113) in the absence of other sources of the HAP in question.

This conclusion is unsurprising. Indeed, any other conclusion would be untenable. The lungs do not distinguish between pollution from boilers and similar pollution from other plants or mobile sources. If the ambient concentration of a particular pollutant is at or near the safe level, therefore, an additional source of the pollutant can push the exposure over the threshold even if the additional source emits the pollutant at low levels. And similarly, if the source is emitting the pollutant at levels close to the RfC, even low background pollution could lead to unsafe overall conditions.

To determine whether an HI ( or HQ) of 1.0 for HCl or Mn emissions from an ICI boiler or process heater is insufficiently protective, therefore, one need only ask whether " additional [ HCl or Mn] exposures would be anticipated from other sources in the vicinity of the facility or through other routes of exposure." 114 The answer to both questions is clearly yes. With respect to HCl, EPA elsewhere identified a study   112 68 Fed. Reg. at 1691 ( emphasis added). 113 42 U. S. C. § 7412( d)( 4). 114 68 Fed. Reg. at 1691. 31 performed by a different regulated industry, lime manufacturing plants   that demonstrated that " the mean national HCl concentration correspond[ s] to an HQ of 0.06 and the 95th percentile national HCl concentration correspond[ s] to an HQ of 0.2." 115 With respect to Mn, the National Library of Medicine's Toxmap116 indicates that in 2002,

( 1) nationwide, over 1,000 facilities reported on site Mn releases, and ( 2) within a 50

mile radius of most major urban centers, there were multiple ( and often many) such releases. 117 Despite these alternative sources of HCl and Mn, however, EPA's final ICI boiler and process heater rule settles on an HI ( or HQ) limit of 1.0,118 thus failing to ensure   on the Agency's own terms   that sources are truly " without appreciable risk of adverse health effects." 119 The rule therefore violates the CAA and is arbitrary and capricious.

e. EPA may not simultaneously adopt a risk based exemption for HCl emissions and use HCl as a proxy for other unidentified HAPs.

A further flaw in the risk based exemptions concerns the Agency's simultaneous creation of an exemption for HCl emissions and adoption of HCl as a surrogate for other non metallic inorganic HAPs. The obvious and entirely unlawful consequence of this maneuvering is that large, solid fuel facilities whose HCl emissions fall below the Agency's identified risk based standard are permitted to evade the MACT standards for 115 Proposed Rules, National Emission Standard for Hazardous Air Pollutants for Lime Manufacturing Plants, 67 Fed. Reg. 78,046, 78,056 ( proposed Dec. 20, 2002) ( to be codified at 40 C. F. R. pt. 63). 116 National Library of Medicine, National Institutes of Health, Toxmap   Environmental Health E Maps, http:// toxmap. nlm. nih. gov/ toxmap/ main/ index. jsp. 117 For example, Toxmap indicates that there were over 30 such releases within a 50 mile radius of Chicago, about 15 within a similar distance of Dallas, over 10 for Los Angeles, about 40 for Milwaukee, and almost 20 for Philadelphia. Id., Toxmap   Environmental Health E Maps, MANGANESE ( 7439 96 5), http:// toxmap. nlm. nih. gov/ toxmap/ releases/ searchChemical. do. 118 69 Fed. Reg. 55,283, Appendix A § 7( a), ( b). 119 68 Fed. Reg. at 1691. 32 HCl and in turn to avoid adopting controls for other non metallic inorganic HAP.

Adding insult to injury, the Agency fails even to identify which non metallic inorganic HAPs may elude regulation in this way, let alone to explain its apparent certainty that all such HAPs are " pollutants for which a health threshold has been established," 120 such that they may be eligible for consideration under § 112( d)( 4). Instead, EPA says only that the " available   emissions test information   indicate[] that the primary inorganic HAP emitted from boilers and process heaters is HCl," 121 that "[ m] uch smaller amounts of hydrogen fluoride and chlorine are emitted," 122 and that the Agency " do[ es] not expect hydrogen cyanide emissions from boilers covered under the final rule." 123 Even if one accepts these unsubstantiated and self serving assertions as true, their direct and necessary implication is that facilities that qualify for the HCl exemption need not control their hydrogen fluoride ( HF) emissions either. As discussed above, however,

whatever the general lawfulness of § 112( d)( 4) based exemptions, EPA may not adopt such exemptions for pollutants whose health thresholds have not been established. 124 Yet HF falls squarely in this category. Although EPA does not consider the chemical in its IRIS database, 125 the database does include information about fluorine, to which HF rapidly breaks down. According to that information, no data are available to determine an RfC for chronic inhalation exposure to fluorine, nor has fluorine " undergone a complete evaluation and determination   for evidence of human carcinogenic potential." 126 Moreover, EPA elsewhere acknowledges data suggesting that those with 120 42 U. S. C. § 7412( d)( 4). 121 69 Fed. Reg. at 55,230. 122 Id. 123 Id. at 55,244. 124 See supra at pp. 20 21. 125 See U. S. EPA, Integrated Risk Information System, http:// www. epa. gov/ iris. 126 U. S. EPA, Integrated Risk Information System: Fluorine, http:// www. epa. gov/ iris/ subst/ 0053. htm. 33 occupational exposure to HF have greater than normal occurrences of cancer. 127 Because EPA has not established that HF is noncarcinogenic, it may not consider HF a threshold pollutant. Further, even if an RfC for HF were established, EPA offers no justification for its apparent assumption that plants whose emissions meet the RfC for HCl will necessarily also meet the RfC for HF. For this reason alone, EPA's rule contravenes the CAA and is arbitrary and capricious.

Far worse than the fact that some facilities' HF emissions may go uncontrolled,

however, is the fact that EPA also allows facilities that qualify for the HCl exemption to ignore emissions of all other inorganic non metallic HAPs, some of which may not even be identified. The Agency itself concedes that it has " limited emissions information for   inorganic HAP[ s]" other than HCl and metals, 128 yet it identifies only HCl, HF, and chlorine as inorganic, non metallics likely to be emitted from large, solid fuel boilers   an oversimplification at best naïve and at worst disingenuous given the exhaustive list of fuel types burned by such facilities ( including " coal, wood, biomass, tires, plastics, and other nonfossil solid materials" 129). Moreover, EPA expressly discounts hydrogen cyanide emissions without offering any support for the claim that regulated boilers are unlikely to emit this toxin. Without a thorough study of emissions from large, solid fuel boilers, EPA cannot reasonably adopt a risk based HCl exemption that effectively exempts all inorganic non metallic HAPs   whatever their individual toxicities and carcinogenicities   from MACT compliance. For these additional reasons, the HCl exemption violates the Act and is arbitrary and capricious.

127 U. S. EPA, Technology Transfer Network Air Toxics Website: Hydrogen Flouride, http:// www. epa. gov/ ttn/ atw/ hlthef/ hydrogen. html. 128 69 Fed. Reg. at 55,230. 129 Id. at 55,269. 34 f. The Mn exemption effectively permits sources with relatively low Mn emissions to avoid controlling emissions of any other non mercury metals.

The Mn exemption is just as flawed as the HCl exemption, although EPA has gone out of its way to conceal the flaw. Because EPA does not expressly use Mn as a surrogate for any other HAPs, the Mn exemption's only direct effect is to permit facilities to avoid their control obligations for Mn. In practice, however, the exemption also enables facilities to avoid controlling emissions of other, non mercury metals.

To see this, one must first understand both how the ICI boiler and process heater rule regulates emissions of non mercury metals and how the Mn exemption operates.

The rule first identifies eight non mercury metallic HAPs: arsenic, beryllium, cadmium,

chromium, lead, manganese, nickel, and selenium. The rule then adopts particulate matter ( PM) as a surrogate for these HAPs, because "[ m] ost, if not all, non mercury metallic HAP emitted from combustion sources will appear on the flue gas fly ash," so " the same control techniques that would be used to control the fly ash PM will control non mercury metallic HAP." 130 Because " some sources burn fuels containing very little metals, but would have sufficient PM emissions to require control under the PM provisions of the proposed rule," however, the final rule also includes " an alternative [ total selected metals ( TSM)] limit.   A source may choose to comply with the alternative [ TSM] emissions limit instead of the PM limit to meet the final rule." 131 The Mn exemption operates against this background. Sources must first submit data establishing to EPA's satisfaction that ( 1) their Mn emissions fall below certain listed levels, or ( 2) the maximum predicted concentration of Mn at their site falls below 130 Id. at 55,223. 131 Id. 35 the RfC for Mn. 132 Sources able to meet one of these requirements may then exclude their Mn emissions from their calculations when they seek to establish compliance with the otherwise applicable MACT standard for non mercury metallic HAPs. For sources that choose to comply with the PM standard, this deduction is irrelevant. Sources that choose to comply with the TSM standard, however, receive a windfall: They are permitted to show that their emissions of seven non mercury metals ( arsenic, beryllium,

cadmium, chromium, lead, nickel, and selenium) fall below the standard EPA adopted for eight such metals. This is particularly problematic for facilities whose Mn emissions are high relative to their emissions of other non mercury metals   to instruct such facilities to total only their emissions of the seven non mercury non Mn metals in determining their non mercury metallic HAP emissions is like instructing banks to ignore all $ 20 bills in determining the contents of their ATM machines. Provided such facilities can comply with the Mn exemption, their emissions of the remaining seven metals will almost inevitably fall below the TSM standard, and they will therefore be able to avoid taking any steps to control those emissions ( even though the Agency nowhere asserts, let alone establishes, that the remaining seven metals are " threshold pollutants" to which § 112( d)( 4) could even arguably apply). Indeed, EPA effectively concedes this point at various places in the final rule, when it labels the Mn exemption a " TSM compliance alternative," 133 and observes that almost 400 biomass fired boilers " could be potentially eligible" for this alternative. 134 This flaw in the Mn exemption is not only illogical but unlawful. As noted elsewhere, the CAA requires EPA to adopt emissions controls comparable to those 132 See id. at 55,283, Appendix A § 5( d). 133 E. g., id. at 55,227, 55,244 ( emphasis added); id. at 55,283, Appendix A § 6( b) ( emphasis added). 134 Id. at 55,244. 36 achieved by the best performing similar sources. To comply with this requirement ( even assuming the lawfulness of the Mn exemption itself, which we do not concede) EPA should have adopted two TSM standards: one for facilities summing emissions of all eight non mercury metallic HAPs, and one for facilities excluding their Mn emissions.

Instead, EPA permits facilities that comply with the Mn exemption to compare apples and oranges; they are permitted to show not that their emissions of the seven remaining non mercury metallic HAPs are comparable to the same set of emissions from the best performing plants, but instead that their emissions of those seven HAPs are comparable to the best performing plants' emissions of those HAPs plus Mn. This result violates the express requirements of the CAA and is arbitrary and capricious.

g. The described procedures for demonstrating compliance with the § 112( d)( 4) risk based exemptions are significantly flawed.

Appendix A to the final rule outlines two methods by which sources can demonstrate compliance with the HCl and Mn exemptions, both of which are flawed.

First, a facility may conduct emissions tests at " appropriate emission point[ s]" 135 under " worst case operating conditions," 136 calculate the HCL equivalent or Mn emissions rate for each emission point, and establish that the calculated rate falls below the appropriate value in the Agency's look up tables. Second, a source that fails to comply with this " look up table approach" 137 may " perform a site specific compliance demonstration" and submit data demonstrating to EPA's satisfaction that the source's maximum HI for HCl and chlorine, or HQ for Mn, does not exceed 1.0.

135 Id. at 55,283, Appendix A § 5( a). 136 Id. at 55,282, Appendix A § 4( b)( 2). 137 Id. at 55,283, Appendix A § 7. 37 The most significant flaw in the look up table approach is that EPA instructs sources to use the average stack height of their multiple emission points in comparing emissions rates to the values in the tables138   an oversimplification that may understate the risks posed by the source. For example, if a source is configured such that its shortest, most highly polluting stack is located closest to the source's neighbors, a calculation that estimates risk by averaging with another emission point that is taller,

cleaner, and farther away, may not accurately reflect the risk to those neighbors. In addition, the values in the look up tables   that is, the maximum permissible emissions rates   vary depending on the emission point's distance from the property boundary, but the Agency makes no attempt to account for other variables ( for example, topography or climatic conditions, or proximity of local population centers) that could also significantly affect the risks a plant's emissions pose.

Whatever the flaws in the look up table approach, however, they pale in comparison to the inadequacies of the site specific compliance demonstration, at least as the latter approach is described in the final rule. The only guidance EPA gives sources with respect to this second approach is that they must use a " scientifically accepted peerreviewed assessment methodology," 139 and that their compliance demonstration must, at a minimum, ( 1) "[ e] stimate long term inhalation exposures through the estimation of annual or multi year average ambient concentrations;" 140 ( 2) "[ e] stimate the inhalation exposure for the individual most exposed to the facility's emissions;" 141 ( 3) use " site

138 Id. at 55,282, Appendix A § 6( a)( 2). 139 Id. at 55,282, Appendix A § 7. 140 Id. at 55,283 84, Appendix A § 7( c)( 1). 141 Id. at 55,283 84, Appendix A § 7( c)( 2). 38 specific, quality assured data wherever possible;" 142 ( 4) use " health protective default assumptions wherever site specific data are not available;" 143 and ( 5) "[ c] ontain adequate documentation of the data and methods used." 144 This cursory outline does not even begin to place real, enforceable limits on facilities' assessment methodology. The Agency does not, for example, explain how facilities are to estimate inhalation exposures.

Are they required to estimate exposures for individuals who work or attend school in the vicinity of the plant, or only individuals who live nearby? Must they account for geographic and climatic variations that could affect dispersion of the pollutants, such as variations in topography, wind speeds, precipitation levels, or humidity levels?

Moreover, EPA uses terms like " quality assured data" and " health protective default assumptions" that are entirely meaningless without further clarification. Such an obscure and permissive compliance approach cannot possibly satisfy § 112( d)( 4)' s " ample margin of safety" requirement. Indeed, the methodology is so vague and unenforceable that one wonders whether any source will fail to qualify for the exemptions, no matter how high its HCl and Mn emissions.

As discussed above, the proposed ICI boiler and process heater rule failed to discuss the Agency's legal justification for adopting 47 " no control" standards and to outline the possible contours of the risk based exemptions ( notably omitting any mention of the possibility of an Mn exemption). Thus, most of the objections raised above could not have been raised at the comment stage. Yet these objections, which make clear that neither the " no control" standards nor the exemptions can withstand legal challenge, " are 142 Id. at 55,283 84, Appendix A § 7( c)( 3). 143 Id. at 55,283 84, Appendix A § 7( c)( 4). 144 Id. at 55,283 84, Appendix A § 7( c)( 5). 39 of central relevance to the outcome of the rule." 145 Accordingly, EPA must " convene a proceeding for reconsideration of the rule and provide the same procedural rights as would have been afforded had the information been available at the time the rule was proposed." 146 Furthermore, some of the issues we raise ( notably the creation of 47 " no control" standards and the establishment of an HCl exemption that also enables facilities to avoid controlling emissions of other, unidentified, non metallic, inorganic HAPs) are so crucial to the rulemaking, and so legally deficient, that EPA has violated its " duty to examine key assumptions as part of its affirmative ` burden of promulgating and explaining a non arbitrary, non capricious rule.'" 147 EPA must therefore grant reconsideration of those issues or risk the rule's invalidation in court.

Dated: November 11, 2004 145 42 U. S. C. § 7607( d)( 7)( B). 146 Id. 147 Small Refiner Lead Phase Down Task Force v. EPA, 705 F. 2d 506, 534 35 ( D. C. Cir. 1983) ( quoting National Lime, 627 F. 2d at 433). See also Appalachian Pwr. Co. v. EPA, 135 F. 3d 791, 818 ( D. C. Cir. 1998).


[Federal Register Volume 81, Number 217 (Wednesday, November 9, 2016)]
[Proposed Rules]
[Pages 78759-78760]
[FR Doc No: 2016-27037]

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket Number USCG-2016-0799]
RIN 1625-AA87

Safety and Security Zones; New York Marine Inspection and Captain
of the Port Zone

AGENCY: Coast Guard, DHS.

ACTION: Technical correction.

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SUMMARY: The Coast Guard is publishing this notice to correct a
misstatement and typographical error in a previous

Advance Notice of Proposed Rulemaking (ANPRM). A sentence in the
summary of that document erroneously stated that the Coast Guard was
considering removing a security zone around Liberty State Park and
Ellis Island, while the document itself merely discussed the
possibility of modifying the zone, not removing it.

DATES: Comments and related material regarding the ANPRM must be
received by the Coast Guard on or before January 3, 2017.

ADDRESSES: You may submit comments identified by docket number [USCG-
2016-0799] using the Federal eRulemaking Portal at http://www.regulations.gov. See the ``Public Participation and Request for
Comments'' portion of the ANPRM for further instructions on submitting
comments.

FOR FURTHER INFORMATION CONTACT: If you have questions on this
technical correction, call or email Ari Scott, Office of Regulations
and Administrative Law, U.S. Coast Guard; telephone<PHONE_NUMBER>,
email<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    On November 3, 2016, the Coast Guard published an ANPRM which
discussed the possibility of modifying the security zone around Liberty
State Park and Ellis Island (81 FR 76545). On page 76545, in the second
column, correct the second sentence of the Summary to read: ``The
proposed modification of the security zone would increase navigational
safety in New York Harbor by allowing vessels to transit under the
Ellis Island Bridge, rather than being required to transit the
Anchorage Channel.''

    Dated: November 3, 2016.
Katia Kroutil,
Office Chief, Office of Regulations and Administrative Law, U.S. Coast
Guard.
[FR Doc. 2016-27037 Filed 11-8-16; 8:45 am]
 BILLING CODE 9110-04-P


[Federal Register Volume 86, Number 129 (Friday, July 9, 2021)]
[Notices]
[Pages 36272-36273]
[FR Doc No: 2021-14666]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. ER21-2333-000]

Red Cloud Wind, LLC; Supplemental Notice That Initial Market-
Based Rate Filing Includes Request for Blanket Section 204
Authorization

    This is a supplemental notice in the above-referenced proceeding of
Red Cloud Wind LLC's application for market-based rate authority, with
an accompanying rate tariff, noting that such application includes a
request for blanket authorization, under 18 CFR part 34, of future
issuances of securities and assumptions of liability.
    Any person desiring to intervene or to protest should file with the
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, in accordance with Rules 211 and 214 of the Commission's
Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone
filing a motion to intervene or protest must serve a copy of that
document on the Applicant.
    Notice is hereby given that the deadline for filing protests with
regard to the applicant's request for blanket authorization, under 18
CFR part 34, of future issuances of securities and assumptions of
liability, is July 22, 2021.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically may mail similar pleadings to
the Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426. Hand delivered submissions in docketed
proceedings should be delivered to Health and Human Services, 12225
Wilkins Avenue, Rockville, Maryland 20852.
    In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (http://www.ferc.gov) using
the ``eLibrary'' link. Enter the docket number excluding the last three
digits in the docket number field to access the document. At this time,
the Commission has suspended access to the Commission's Public
Reference Room, due to the proclamation declaring a National Emergency
concerning the Novel Coronavirus Disease (COVID-19), issued by the
President on March 13, 2020. For assistance, contact the Federal Energy
Regulatory Commission at<EMAIL_ADDRESS>or call toll-free,
(886) 208-3676 or TYY,<PHONE_NUMBER>.

    Dated: July 2, 2021.
Debbie-Anne A. Reese,
Deputy Secretary.
[FR Doc. 2021-14666 Filed 7-8-21; 8:45 am]
BILLING CODE 6717-01-P


[Federal Register Volume 76, Number 99 (Monday, May 23, 2011)]
[Notices]
[Pages 29742-29743]
[FR Doc No: 2011-12565]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings 1

    Take notice that the Commission received the following electric
corporate filings:

    Docket Numbers: EC11-77-000.
    Applicants: Paulding Wind Farm II LLC.
    Description: Application For Authorization For Disposition of
Jurisdictional Facilities and Request for Expedited Action of Paulding
Wind Farm II LLC.
    Filed Date: 05/16/2011.
    Accession Number: 20110516-5143.
    Comment Date: 5 p.m. Eastern Time on Monday, June 6, 2011.

    Take notice that the Commission received the following electric
rate filings:
    Docket Numbers: ER96-496-019; ER99-3658-005.
    Applicants: Northeast Utilities Service Company, Select Energy,
Inc.
    Description: Amendment to Application of Northeast Utilities
Service Company, et. al.
    Filed Date: 05/17/2011.
    Accession Number: 20110517-5013.
    Comment Date: 5 p.m. Eastern Time on Tuesday, June 7, 2011.

    Docket Numbers: ER11-3180-001.
    Applicants: Westerly Hospital Energy Company, LLC.
    Description: Westerly Hospital Energy Company, LLC submits tariff
filing per 35: Westerly Hospital Amended FERC Electric Tariff to be
effective 3/23/2011.
    Filed Date: 05/16/2011.
    Accession Number: 20110516-5085.
    Comment Date: 5 p.m. Eastern Time on Monday, June 6, 2011.

    Docket Numbers: ER11-3202-001.
    Applicants: WFM Intermediary New England, LLC.
    Description: WFM Intermediary New England, LLC submits tariff
filing per 35: WFM Intermediary NE Amended FERC Electric Tariff to be
effective 3/28/2011.
    Filed Date: 05/16/2011.
    Accession Number: 20110516-5089.
    Comment Date: 5 p.m. Eastern Time on Monday, June 6, 2011.

    Docket Numbers: ER11-3455-001.
    Applicants: Southwest Power Pool, Inc.
    Description: Southwest Power Pool, Inc. submits tariff filing per
35.17(b): Amendment to Docket ER11-3455 to be effective 4/1/2011.
    Filed Date: 05/16/2011.
    Accession Number: 20110516-5116.
    Comment Date: 5 p.m. Eastern Time on Monday, June 6, 2011.

    Docket Numbers: ER11-3573-000.
    Applicants: The United Illuminating Company.
    Description: The United Illuminating Company submits tariff filing
per 35.13(a)(1): Revised Localized Costs Sharing Agreements to be
effective 6/1/2011.
    Filed Date: 05/16/2011.
    Accession Number: 20110516-5021.
    Comment Date: 5 p.m. Eastern Time on Monday, June 6, 2011.

    Docket Numbers: ER11-3574-000.
    Applicants: ISO New England Inc.
    Description: ISO New England Inc. submits tariff filing per
35.13(a)(2)(iii: Collation Value Correction Filing to be effective 1/
15/2011.
    Filed Date: 05/16/2011.
    Accession Number: 20110516-5030.
    Comment Date: 5 p.m. Eastern Time on Monday, June 6, 2011.

    Docket Numbers: ER11-3575-000.
    Applicants: Wisconsin Public Service Corporation.
    Description: Wisconsin Public Service Corporation submits tariff
filing per 35.13(a)(2)(iii: Filing to Revise Rate Schedule No. 87 to be
effective 2/1/2011.
    Filed Date: 05/16/2011.
    Accession Number: 20110516-5038.
    Comment Date: 5 p.m. Eastern Time on Monday, June 6, 2011.

    Docket Numbers: ER11-3576-000.
    Applicants: Golden Spread Electric Cooperative, Inc.
    Description: Golden Spread Electric Cooperative, Inc. submits
tariff filing per 35.1: Baseline Tariff Filing to be effective 5/16/
2011.
    Filed Date: 05/16/2011.
    Accession Number: 20110516-5087.
    Comment Date: 5 p.m. Eastern Time on Monday, June 6, 2011.

    Docket Numbers: ER11-3577-000.
    Applicants: PJM Interconnection, L.L.C., Commonwealth Edison
Company.
    Description: PJM Interconnection, L.L.C. submits tariff filing per
35.13(a)(2)(iii: ComEd submits Ministerial Revisions to its Formula
Rate Template--Attach H-13A to be effective 6/1/2011.
    Filed Date: 05/16/2011.
    Accession Number: 20110516-5115.
    Comment Date: 5 p.m. Eastern Time on Monday, June 6, 2011.

    Docket Numbers: ER11-3578-000.
    Applicants: Glacial Energy of Maryland.
    Description: Notice of Cancellation of Market-Based Rate Tariff and
Revised Tariff Sheets for Glacial Energy of Maryland, Inc.
    Filed Date: 05/16/2011.
    Accession Number: 20110516-5144.
    Comment Date: 5 p.m. Eastern Time on Monday, June 6, 2011.

    Any person desiring to intervene or to protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Rules of Practice and Procedure (18 CFR 385.211 and
385.214) on or before 5 p.m. Eastern time on the specified comment
date. It is not necessary to separately intervene again in a subdocket
related to a compliance filing if you have previously intervened in the
same docket. Protests will be considered by the Commission in
determining the appropriate action to be taken, but will not serve to
make protestants parties to the proceeding. Anyone filing a motion to
intervene or protest must serve a copy of that document on the
Applicant. In reference to filings initiating a new proceeding,
interventions or protests submitted on or before the comment deadline
need not be served on persons other than the Applicant.
    As it relates to any qualifying facility filings, the notices of
self-certification [or self-recertification] listed above, do not
institute a proceeding regarding qualifying facility status. A notice
of self-certification [or self-recertification] simply provides
notification that the entity making the filing has determined the
facility named in the notice meets the applicable criteria to be a
qualifying facility. Intervention and/or protest do not lie in dockets
that are qualifying facility self-certifications or self-
recertifications. Any person seeking to challenge such qualifying
facility status may do so by filing a motion pursuant to 18 CFR
292.207(d)(iii). Intervention and protests may be filed in response to
notices of qualifying facility dockets other than self-certifications
and self-recertifications.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet
access who will eFile a document and/or be listed as a contact for an
intervenor must create and validate an eRegistration account using the
eRegistration link. Select the eFiling link to log on and submit the
intervention or protests.
    Persons unable to file electronically should submit an original and
14 copies

of the intervention or protest to the Federal Energy Regulatory
Commission, 888 First St., NE., Washington, DC 20426.
    The filings in the above proceedings are accessible in the
Commission's eLibrary system by clicking on the appropriate link in the
above list. They are also available for review in the Commission's
Public Reference Room in Washington, DC. There is an eSubscription link
on the Web site that enables subscribers to receive e-mail notification
when a document is added to a subscribed docket(s). For assistance with
any FERC Online service, please e-mail<EMAIL_ADDRESS>or
call<PHONE_NUMBER> (toll free). For TTY, call<PHONE_NUMBER>.

    Dated: May 17, 2011.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2011-12565 Filed 5-20-11; 8:45 am]
BILLING CODE 6717-01-P