Comment submitted by Neil F. Woodworth, Executive Director, Adirondack Mountain Club

EPA Docket Center (Aid Docket) U.S. EPA Room B102 1301 Constitution Avenue NW Washington, D.C Docket ID N. OAR-2002-0056 (Legacy Docket ID No. A-92-55) The Adirondack Mountain Club (ADK) represents over 30,000 hikers, cross- country skiers and paddlers who cherish the mountains of the Northeastern United States. New York has widespread mercury contamination in streams, wetlands, reservoirs, and lakes. New York?s contaminated water bodies include some of the state?s most important lakes, including several New York City reservoirs (the Ashokan, Rondout, and Neversink), Lake Champlain, and several western Adirondack lakes and reservoirs. As such, ADK and its membership have a critical stake in the Clean Air Mercury Rule. I. The Clean Air Mercury Rule is Arbitrary and Capricious On March 15, 2005, EPA issued the Clean Air Mercury Rule. The Clean Air Mercury Rule establishes ?standards of performance? limiting mercury emissions from new and existing coal-fired power plants and creates a market-based cap-and trade program that will reduce nationwide utility emissions of mercury in two phases. EPA determined that its previous December 2000 regulatory findings lacked foundation and that recent information demonstrated that it is not appropriate or necessary to regulate coal- and oil-fired utility units under section 112 of the Clean Air Act. Thereafter, and on that basis, EPA removed those utility units from the section (112) list of source categories. The EPA?s 1997 US Mercury Study Report to Congress, the 1998 Utility Air Toxics Study and its final regulatory findings stated in its December 2000 rule entitled, ?Utility Air Toxics Determination? all found that mercury is a public health hazard and that coal-fired power plants are to be regulated under section 112 of the Clean Air Act. The Clean Air Mercury Rule is a complete reversal from the EPA?s previous stance and ignores the agency?s own findings without justification and without true explanation. A. EPA?s 1997 US Mercury Study Report In EPA?s 1997 US Mercury Study Report, all three forms of mercury (Elemental, Inorganic, and Methylmercury) were found to present a human health hazard. Of the three forms of mercury, methylmercury poses the greatest health risk to humans. Neurotoxicity is the most sensitive indicator of adverse effects in humans exposed to methylmercury. Although small quantities of mercury may be emitted as fugitive particulate matter (PM) from coal storage and handling, the primary source of mercury from both coal and oil combustion in utility boilers is the combustion stack. The study goes on to state, ?Methylmercury is rapidly and extensively absorbed through the gastrointestinal tract. This form of mercury is distributed throughout the body and easily penetrates the blood-brain and placental barriers in humans and animals. Methylmercury transport into tissues appears to be mediated by the formation of a methylmercury-cysteine complex. This complex is structurally similar to methionine and is transported into cells via a widely distributed neutral amino acid carrier protein. It is hypothesized that methylmercury metabolism may be related to a latent or silent period observed in epidemiological studies observed as a delay in the onset of specific adverse effects. Methylmercury has a relatively long biological half-life in humans; estimates range from 44 to 80 days. Excretion occurs via the feces, breast milk, and urine.? The US Mercury Study Report to Congress in 1997 found that methylmercury is of greatest concern because of the fate and transport of mercury to water bodies and sediments with subsequent bioaccumulation of methylmercury in the aquatic food- web. In short, the exposure assessment in the 1997 EPA Report (as well as other exposure assessments) indicates that most human exposure is likely to be due to methylmercury in food ? primarily fish. The 1997 study concluded that mercury exposure may occur through fish consumption or other routes such as the ingestion of methylmercury-contaminated drinking water and dermal uptake through soil and water B. 1998 EPA report to Congress ? Utility Air Toxics Study Following the 1997 Study, the EPA issued the Utility Toxics Study Report to Congress in February of 1998. The findings of this study concluded that mercury from coal-fired utilities is the hazardous air pollutant (HAP) of greatest potential concern and merits additional research and monitoring. In November of 1998, the deadline for EPA to determine whether it is ?appropriate and necessary? to regulate power plant emissions under Clean Air Act section 112 is extended until December 15, 2000. C. December 2000 EPA Final Regulatory Findings ? ?Study of Hazardous Air Pollutant Emissions from Electric Utility Steam Generating Units-Final Report to Congress.? In December 2000, EPA announced its finding that it was ?appropriate and necessary? to regulate coal and oil fired utilities under section 112 of the Clean Air Act. The finding was entitled, ?Study of Hazardous Air Pollutant Emissions from Electric Utility Steam Generating Units-Final Report to Congress.? EPA indicated that coal and oil-fired electric unit steam generating units are significant emitters of Hazardous Air Pollutants (HAP), including mercury. EPA identified mercury as the HAP of greatest concern to public health from the industry. EPA found that regulation of HAP emissions from coal and oil-fired electric utility steam generating units under section 112 of the Clean Air Act (CAA) was ?appropriate and necessary.? Therefore, coal-and oil-fired electric utility steam generating units were added to the list of source categories under section 112(c) of the CAA. Interestingly, the report stated ?[t]here is a plausible link between emissions of mercury from anthropogenic sources (including coal-and oil-fired electric utility steam generating units) and methylmercury in fish. Therefore, mercury emissions from electric utility steam generating units are considered a threat to public health and the environment.? Furthermore, the following statement shows the EPA?s concern with mercury and public health hazards, directly contradicting the representations made in conjunction with the current Clean Air Mercury Rule, implemented March 15, 2005: ?The Administrator has concluded that there is a plausible link between methylmercury concentrations in fish and mercury emissions from coal-fired electric utility steam generating units. The Administrator also found that regulation of HAP emissions from coal-and oil-fired electric utility steam generating units under section 112 is appropriate and necessary. It is appropriate and necessary because electric utility steam generating units are the largest domestic source of mercury emissions, and mercury in the environment presents significant hazards to public health and the environment.? ?It is necessary to regulate HAP emissions from coal-and oil-fired electric utility steam generating units under section 112 of the CAA because the implementation of other requirements under the CAA will not adequately address the serious public health and environmental hazards. Therefore, the EPA is adding coal-and oil-fired electric utility steam generating units to the list of source categories under section 112(c) of the CAA.? The 2000 study demonstrates the EPA?s cognizance of the dangers of mercury generally as well as the specific hazard to human health. ?Based on the assessment of hazards and risks due to emissions of HAP from electric utility steam generating units mercury is the HAP of greatest concern.? Mercury is a highly toxic chemical and is linked to many adverse health effects, including neurological problems and endocrine disruption in humans, fish and wildlife. Mercury?s effect on the central nervous system is comparable to those of lead, especially for unborn fetuses and very young children whose brains are still developing. Children and fetuses exposed to mercury can suffer poor attention span and language development, impaired memory and vision, problems processing information, and impaired fine motor coordination. Consumption of mercury-contaminated fish can also harm cardiovascular and immune systems in adults. The 2000 study also found that people eating contaminated fish have the greatest risk of developing mercury poisoning. ?Most of the mercury currently entering U.S. water bodies and contaminating fish is the result of air emissions which, following atmospheric transport, deposit onto watersheds or directly to water bodies. The EPA estimates that roughly 60 percent of the total mercury deposited in the U.S. anthropogenic air emission sources, the percentage is estimated to be even higher in certain regions (e.g., northeast U.S.)? Mercury pollution has tremendous impacts on New York State?s economy. Recreational fishing generates over $1 billion annually for New York State alone. An increase in the number of water bodies with contaminated fish will affect fishing habits and may drive away much-needed dollars. Furthermore, there are concerns over the cost of educating children who develop learning problems as a result of mercury exposure. D. U.S. Geological Survey: Mercury Contamination of Aquatic Ecosystems (1995) According to a 1995 study by the US Geological Survey (USGS), USGS found that unlike organic contaminants (for example PCBs and dioxins) which concentrate in the skin and fat, mercury cannot be filleted or cooked out of fish. Forty-four states and territories have issued advisories urging people to avoid or limit consumption of fish due to high levels of mercury. In 2002, New York State alone had posted thirty-two health warnings for mercury covering 59,228 acres of our lakes. In fact, of the approximately 200 water bodies tested in New York, 38 have fish populations that are unsafe to eat because of mercury contamination. Ninety-six percent of the lakes in the Adirondack region of New York exceed the recommended EPA action level for methyl-mercury in fish. For example, state environmental officials found that tissues of smallmouth bass in the Neversink Reservoir contained mercury at concentrations up to twice the federal limit of 1 part per million. A series of studies from 2002-2005 show the effects of mercury found in fish and the direct human health effects. Health problems that may result from the contaminants found in fish or game range from small changes in health that are hard to detect to birth defects and cancer. Although mercury is toxic in many of its forms, it is the ingestion of methylmercury via fish consumption that poses the greatest risk of exposure to the general public and, therefore, has the greatest potential for adverse environmental and human health effects. The magnitude of human methylmercury exposures depends on the fish methylmercury levels and the quantity of fish consumed. Between 70% and 90% of the U.S. population (roughly, 200 to 250 million individuals) consumes seafood from the commercial market. In the U.S., this market is comprised of farmed fish and wild fish that have been caught off the U.S. coasts or imported from countries around the world. Policy makers concerned about the safety of commercial seafood obtained from marine environments must consider the influence of U.S. mercury emissions on methylmercury concentrations in the food webs of the commercial seafood stocks living in these areas of the ocean. The continental shelf adjacent to the North American continent under the Atlantic Ocean is one such area of concern; the Gulf of Mexico is another. According to a study by Harada (1994, 1995), the first report of widespread environmental methylmercury poisoning in recent history was in 1956 in Minamata, Japan. Approximately 2,200 people were officially recognized as having Minamata disease as a result of being exposed to extreme levels of methylmercury. Approximately 1,000 people have died and up to 12,000 people are suspected of suffering from Minamata disease with chronic and mild symptoms Additional epidemics of methylmercury poisoning from consumption of methylmercury on grain occurred in Iraq in the 1960s and 1970s. Both poisoning episodes resulted in severe central nervous system (CNS) toxicity in adults and infants born to exposed mothers. At least 459 deaths and 6,530 hospital admissions occurred due to methylmercury ingestion. Reported CNS effects included cerebral palsy, mental retardation, weakness, paresthesia (numbness), seizures, tremors, and sensory, auditory, and visual disturbances). These epidemics demonstrated that neurotoxicity is the health effect of greatest concern and that the developing fetus is the most susceptible subgroup for methylmercury exposure and neurotoxicity. The EPA concludes in a 2001 report on water quality, that in contrast to these acute poisoning episodes, neurotoxic effects from relatively low-level exposure to methylmercury in the diet are more subtle, but nonetheless significant. Reported effects include deficits in memory, language, learning, and intelligence. Dietary methylmercury is almost completely absorbed into the blood and distributed to all tissues including the brain. It also readily passes through the placenta to the fetus and fetal brain EPA?s Clean Air Mercury Rule exempting coal and oil fired utilities from being regulated under section 112 of the Clean Air Act reverses its own findings in 1997, 1998 and 2000 without further study. ADK does not believe that this rule is adequate or defensible. II. The Mercury Cap-and-Trade Program is Contrary to Law Further, ADK strongly opposes EPA?s rule establishing a cap and trade system for mercury, a hazardous air pollutant. The Mercury Cap-and-Trade Program is Contrary to Congressional Intent. Even if EPA were justified in setting new source performance standards under section 111 for the HAPs listed in section 112(b) ? and EPA is not ? neither section 111 nor section 112 of the Clean Air Act permit a nationwide cap-and-trade program. EPA argues that a section 111 ?standard of performance? can embrace nationwide, unrestricted, emission trading, under which plants that prefer not to install pollution controls will be able to purchase credits from companies that do clean up. Reading EPA?s proposal, one would hardly know that the notion of pollution trading under CAA programs has been the subject of extensive litigation, administrative action, and legislative debate, as the agency acts as though it is writing on a virtually clean slate. Considering the history of trading under the CAA, it becomes abundantly clear that EPA cannot authorize it as part of a ?standard of performance? applicable to stationary sources. To follow is a fuller discussion of the history of trading provisions via section 111 of the Clean Air Act. A. Case Law In ASARCO, Inc. v. EPA, the court held that even the limited emission trading conceived of by the agency ? which would have allowed existing plants to avoid section 111 standards when they made changes that increased emissions so long as offsetting emission reductions were identified elsewhere at the same plant site ? was inconsistent with the purpose of section 111. As the court described the statute: Section 111?s provisions mandating New Source Performance Standards were passed because Congress feared that the system of state plans designed to keep air pollution below nationally determined levels was insufficient by itself to achieve the goal of protecting and improving air quality. The New Source Performance Standards are designed to enhance air quality by forcing all newly constructed or modified buildings, structures, facilities, or installations to employ [best demonstrated controls] Thus, section 111 standards of performance are supposed to apply uniformly to all pollution-generating equipment, and the notion of intra-source trading runs counter to that overall purpose. As the court noted, The bubble concept in the challenged regulations would undercut Section 111 by allowing operators to avoid installing the best pollution control technology on an altered facility as long as the emissions from the entire plant do not increase. For example, under the bubble concept an operator who alters one of its facilities so that its emission of some pollutant increases might avoid application of the NSPS by simultaneously equipping other plant facilities with additional, but inferior, pollution control technology or merely reducing their production. Applying the bubble concept thus postpones the time when the best technology must be employed arid at best maintains the present level of emissions. Accordingly, in ASARCO, Inc. v. EPA, the court struck down EPA?s attempt to authorize section 111 pollution trading. Subsequently, courts have interpreted the language in section 111 to allow or even demand limited pollution trading under the permitting programs for new and modified pollution sources. In Alabama Power Co. v. Costle, the D.C. Circuit concluded that EPA was obliged to allow some form of intra-source trading to avoid the application of the Prevention of Significant Deterioration (PSD) permit requirements, in part because ?the PSD provisions express a purpose of ensuring that economic growth occurs in a manner consistent with preservation of clean air. The bubble concept is precisely suited to preserve air quality within a framework that allows cost-efficient, flexible planning for industrial expansion and improvement.? In so doing, however, the court stressed that ?the offsetting changes must be within the same source, as defined by EPA.? The Supreme Court similarly found that the language of the CAA was open to the interpretation that trading between units at the same physical ?source,? but the Court defined that concept in a way that would not permit the kind of trading that EPA proposes. Furthermore, the Court understood ?source? to be ?any discrete, but integrated, operation which pollutes.? While these cases focused on the question of the proper interpretation of the statutory term ?source,? and the agency?s proposal focuses on the statutory term ?standard of performance,? they are instructive none-the-less. First, and most obviously, ?standards of performance? apply to ?sources,? and interpreting ?standard of performance? to allow the trading that the courts have prevented EPA from interpreting ?source? to allow would render superfluous the requirement that ?sources? be regulated. Second, when it amended the CAA in 1990, Congress legislated against the backdrop of these judicial decisions and while it made specific provision for trading in several parts of the statute, it did not include trading in section 111. Title IV of the 1990 amendments, for instance, has elaborate requirements mandating a program for, and regulating the conduct of, trading for the purposes of reducing pollution which contributes to acid rain. In addition, Congress spelled out the circumstances in which intra-source trading would be allowed in certain kinds of ozone non-attainment areas and for certain sources of HAPs as a means by which such facilities could make changes without making ?modifications? that would subject them to stringent controls. B. Legislative History The legislative history provides significant evidence that Congress never intended for section 111(d) to be used to promulgate a mercury emissions cap-and-trade pollution program. Rather, the legislative history suggests that Congress intended that every plant meet a single national emissions standard. Regulation of existing sources under section 111(d) is based on the promulgation of ?standards of performance? which the states must include in a SIP-like plan. ?Standard of performance? is defined in section 111 (a) (1) as: a standard for emissions of air pollutants which reflects the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any non air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated. This definition applies to both new sources and existing sources. Section 111 and the term ?standard of performance? first appeared in the CAA in the 1970 Amendments. The definition of ?standard of performance? was amended in1977 to include a ?percentage reduction requirement? for electric utility units, but in the1990 Amendments, Congress removed this addition in order to ?return to the definition in the 1970 CAA requirements.? Thus, the legislative history of the CAA amendments of both 1970 and 1990 clarifies the legislative intent underlying enactment of section 111(d). Moreover, even though there is no legislative history specific to section 111(d) in particular, the same definition of ?standard of performance? applies to existing sources and new sources. Therefore, the legislative history related to the term ?standard of performance? as application to new sources, therefore also illuminates Congress?s intent with respect to existing sources. The Conference Committee for the 1970 CAA Amendments explained that section 111 ?require[s] that new major industry plants such as power plants, steel mills, and cement plants achieve a standard of emission performance based on the latest available control technology, processes, operating methods and other alternatives.? The Conference Committee report explains that the provision ?provides for national standards of performance on emission from new stationary sources.? Furthermore, it notes that ?[t]hese sources, important in themselves and involved in industries of national scope, must be controlled to the maximum practicable degree regardless of their location.? Senator Cooper elaborated during Senate debate that ?the concept is that wherever we can afford or require new construction, we should expect to pay the cost of using the best available technology to prevent pollution.? Similarly, the House Report explains that ?the emission standards shall provide that sources of such emissions shall be designed and equipped to prevent and control such emissions to the fullest extent compatible with the available technology and economic feasibility as determined by the Secretary.? Congress?s manifested intent that every individual source meet the same standard is fundamentally inconsistent with a cap-and-trade program in which some plants would be able to operate at pollution levels higher than the technology based emissions standard because they have traded with other plants. Moreover, although the EPA relies, here, on the term ?best system? for the authority to instigate a novel regulatory scheme under section 111, nothing in the legislative history suggests that Congress intended ?best system? to be interpreted so broadly. To the contrary, the ?best system? is consistently understood to be the best system that an individual plant could implement. For example, the Senate explained: ?Standards of performance?. . . refers to the degree of emissions control which can be achieved through process changes, operation changes, direct emission control, or other methods. The Secretary should not make a technical judgment as to how the standard should be implemented. He should determine the achievable limits and let the owner or operator determine the most economic, acceptable technique to apply. Likewise, the legislative history of the 1990 Amendments reaffirms that Congress intended ?best system? to apply to the methods of individual plants not to a novel inter-plant regulatory system. For example, although Senator Simpson explained that Congress had reverted to the 1970 definition of ?standards of performance? in order to give sources significant flexibility, he made clear that this flexibility is understood in the context of a plant meeting a specific standard: [Congress has] directed EPA to come up with an alternative standard that would allow utilities to meet it in the most flexible manner possible. The new standard could be met by fuel switching, the use of technology and fuel switching, by technology alone, and by intermittent controls or intermittent operation ? For the first time Congress has made it clear that not only technology can be considered, but the use of low-sulfur fuels may be considered as a best available control technology under the law. Thus, the legislative history suggests that the ?best system? mandate was intended to apply within the constraint of a command and control system. C. Contrary Proof from the Agency Itself Although EPA solicits comment on whether section 112(d) permits EPA to create a cap-and-trade program encompassing multiple sources, the agency commits only a paragraph to the notion and thus seems barely to believe it is legally possible. It is not; section 112 emission standards must be as stringent as the ?floor? level of control achieved in the industry, and must be met by each ?source? in the category. Even while interpreting the CAA to permit MACT standards to contain a limited form of emissions averaging, in the Hazardous Organic NESHAP in 1994, EPA specifically concluded that the Act barred it from allowing inter-source trading, saying: In setting the standard for a category or subcategory, the Administrator is required to determine a floor for the entire category or subcategory, and then set a standard applicable to each source within that category that is at least as stringent as the floor and requires the maximum achievable emission reductions considering certain factors. In determining whether the standard should be more stringent than the floor and by how much, the Administrator is to consider, among other factors, the cost of achieving the additional emission reductions. The statute does not limit how the standard is to be set beyond requiring that it be applicable to all sources in a category, be written as a numerical limit wherever feasible, and be at least as stringent as the floor. Therefore, the relevant statutory language is broad enough to permit the Administrator to exercise discretion to allow sources to meet MACT through the use of emissions averaging provided the standard applies to every source in the category. However, averaging does not cross source boundaries, and the standard is no less stringent than the floor. Therefore, that averaging is permissible should not and can not be construed as evidence that the proposed cap-and-trade program is permissible. Similarly, when EPA interpreted the CAA to permit averaging between affected sources in the Primary Aluminum NESHAP, the agency concluded that it was constrained to allow such averaging: only if it can be demonstrated that the total quantity of any particular HAP that may be emitted by that portion of a contiguous major source that is subject to the NESHAP will not be greater under the averaging mechanism than it would be if each individual affected source complied separately with the applicable standard. Under this rigorous test, the practical outcome of averaging is equivalent in every respect to compliance by the discrete sources, and the statutory policy embodied in the MACT floor provisions is therefore fully effectuated. A construction of the Act which permits EPA to establish a unified compliance regimen in these limited circumstances promotes economic efficiency and has no adverse environmental consequences. In a NESHAP incorporating such a unified compliance regimen, EPA would construe compliance with the overall regimen to constitute compliance for each of the affected sources. Strict limits on the scope and nature of averaging across sources are necessary to ensure that no HAP is emitted by that portion of a major source subject to a NESHAP in quantities that are greater than those that would result from compliance by each discrete affected source within the facility. These limits include: (1) No averaging can be permitted between differing pollutants, (2) no averaging can be permitted between sources that are not part of the same major source, (3) no averaging can be permitted between sources within the same major source that are not subject to the same NESHAP, (4) statistical discounts must be derived and applied to account for the variability in emissions by the sources to be averaged, and (5) no averaging can be permitted between existing sources and new sources. Accordingly, EPA?s proposed trading program under the authority of section 112(d) is completely inconsistent with the statute?s single-source focus and with the agency?s own interpretations of the law. III. The Proposed Polution Trading Scheme is Contrary to the Law There is no legal basis in section 112(n) or else where for EPA to authorize pollution trading. EPA, drawing on arguments directly from utility industry talking points, argues that section 112(n) (1) (A) provides EPA with affirmative authority to establish emission standards that are less stringent than the traditional MACT approach. Specifically, EPA?s proposal claims: Congress?s intent to authorize EPA to regulate Utility Unit HAP emissions in ways other than with the prescriptive requirements of section 112(d) is indicated by the section 112(n) requirement that EPA develop alternative control strategies for HAP emissions from these units. These alternative control strategies must address the hazards to public health that EPA reasonably anticipates will occur as a result of Utility Unit HAP emissions. Congress authorized EPA to consider a wider range of control alternatives for the utility sector than the source-by-source approach EPA has prescribed in standards for other source categories under the traditional section 112(d) MACT approach. Because Congress directed EPA to develop control strategies that would be alternatives to the usual section 112 (d) MACT standard, it is reasonable to conclude that Congress authorized EPA to implement such alternatives. As a result, EPA believes that section 112(n) confers on the Agency the authority to develop a system-wide or pooled performance standard for HAP emissions from Utility Units. Thus, the agency seems to believe that the mere directive to examine, during a proceeding that culminated in 2000 with the issuance of the Regulatory Finding, various ways to reduce utility HAPs, also grants EPA the power to prescribe something weaker than the statutory standard. This agency position is contrary to the law. The Agency?s Congressionally-authorized opportunity to ?develop and describe ? alternative control strategies? has come and gone. The statute explicitly states that this analysis and development of alternative control strategies ?shall? occur in the Administrator?s Utility Air Toxics Study and Report to Congress - that Study and Report was completed in 1998. The CAA?s directive to the Agency to consider ?alternative control strategies? is unexceptional and certainly is not a license to abandon the MACT regulatory scheme of section 112(d) altogether. Common sense directs the wisdom in studying of a range of control methods in light of the fact that the MACT program does not dictate specific technology. However, it does direct the EPA to set an inflexible emission standard reflecting the best performers in the industry which regulated sources are permitted to meet in a flexible manner. That is why section 112(d) (2) specifies that MACT must be: achievable ? through application of measures, processes, methods, systems or techniques including, but not limited to, measures which--(A) reduce the volume of, or eliminate emissions of, such pollutants through process changes, substitution of materials or other modifications, (B) enclose systems or processes to eliminate emissions, (C) collect, capture or treat such pollutants when released from a process, stack, storage or fugitive emissions point, (D) are design, equipment, work practice, or operational standards (including requirements for operator training or certification) ? or (E) are a combination of the above. The EPA acknowledged this plain and obvious meaning when it surveyed ?alternative control strategies? in the agency?s Report to Congress; the agency examined pre-combustion controls (such as coal cleaning, gasification, and fuel switching), combustion controls (including NOx controls and boiler type), post-combustion controls (both particulate phase controls and vapor phase controls), and non-technology based options. However, the EPA has never considered or reviewed the effectiveness of a cap-and-trade scheme for HAP emissions. This demonstrates that the assertion that the statutory directive to review ?alternative control strategies? provided the agency with authority to ignore the requirement that MACT is required on all sources is false. There is absolutely no credible support for industry?s suggestion that the language requiring EPA to ?develop and describe in the Administrator?s report to Congress alternative control strategies,? serves as an independent and affirmative grant of authority to regulate outside of section 112(d). Most obviously, the plain meaning of the language indicates that this directive is limited to what EPA does in the study, develop and describe strategies ? this falls far short of a Congressional grant of jurisdiction to regulate within the scope of section 112(d), much less outside the scope of the section. Moreover, this mere descriptive gloss on EPA?s study obligations lacks sufficient content and legal standards to serve as a grant of jurisdiction. It is especially ridiculous to contend, as some industry commenter?s do, that the ?alternative control strategies? language provides EPA with freewheeling authority to create a Rube Goldberg regulatory cap-and-trade program with extended compliance deadlines that directly conflict with section 112(d). The detailed and intricate design of the acid rain program shows that Congress knows how to structure a cap-and-trade program when that is its intent. As discussed more fully, elsewhere in these comments, this language does not and can not supplant mandatory section 112(d) regulation. Even more unjustified is industry?s contention that because section ?112(n) does not expressly prohibit the implementation of a national trading program as an alternative control strategy,? EPA may adopt such a program. This is an unfounded view of statutory construction and the jurisdictional limits of agency authority. There are countless legal measures that section 112(n) does not prohibit or even address, but that silence hardly amounts to an independent and affirmative grant of authority to do as EPA wishes. There is no support or precedent for this industry propositions and extensive and countless support to the contrary. The Adirondack Mountain Club notes the irony of coal burning utilities seeking to grant EPA essentially unfettered and ?standard-less? authority to create whatever regulatory program it wishes in order to address the risks of harm from electric utility HAP emissions. Industry pretends that in doing so EPA may adopt more cost-effective and effective controls, but there is nothing in the language that industry itself relies upon that would require EPA to do so. In contrast, it is certain that protection of the public health against utility HAP emissions will suffer if the proposal were adopted. The thinly veiled reality of industry?s ironic position, is that industry seeks to grant EPA such wide latitude and unfettered discretion because industry believes EPA to be receptive to adopting a weaker and unlawful program that will circumvent the more protective requirements of section 112(d). Such broad authority has not been delegated to the EPA by Congress. Furthermore, the EPA was intended to be an objective body. Furthermore, the idea that section 112 might permit inter-source emission trading is fundamentally at odds with a clear statutory provision ? section 112(g). Section 112(g) provides a general rule that major HAP a source which makes a change that increases emissions must apply MACT. Section 112(g) provides for a narrow exception to the general rule when ?such increase in the quantity of actual emissions of any hazardous air pollutant from such source will be offset by an equal or greater decrease in the quantity of emissions of another hazardous air pollutant (or pollutants)from such source which is deemed more hazardous. In other words, intra-source trading is a way for a source to avoid MACT under certain narrowly prescribed circumstances. If Congress intended for section 112 emission standards to permit inter-source trading as a way of avoiding the source- specific application of MACT, it could and would have done so. EPA officials repeatedly acknowledged, during the development of the present proposal, that inter-source pooled compliance schemes could not be incorporated into the standards for Utility Units. Such acknowledgment demonstrates the agencies concession of the limits on trading under sections 112(d) and (n) as discussed above. In connection the Utility MACT Working Group, William Maxwell of the Office of Air Quality Planning and Standards made a presentation titled ?MACT process,? which noted, ?[t]rading [is] not allowed in any consideration of the level(s) of control at the floor.? Similarly, Mr. Maxwell, in answering an email question fewer than three months before the proposal was signed, stated, ?the MACT does not provide for a ?cap-and-trade? approach.? The next month, an EPA staffer participated in a presentation which noted, ?[s]ection 112 does not allow trading between facilities to meet the standard. Section 112 does not authorize EPA to adopt the ?wait-and-see? approach it proposes in this rulemaking to the potential problem of localized heightened risk of mercury contamination (?hot spots?) due to the cap-and-trade alternatives proposed. To the contrary section 112(d) mandates the promulgation of a MACT standard, mandatory to all sources in the regulated industry. The requirement for the EPA to investigate and review the ?risk to public health remaining or likely to remain from sources subject to regulation under [section 112] after the application of standards under [section 112(d)]? is triggered only after the MACT standard is in place. At that point, the Administrator is mandated (in the absence of Congressional action) to issue additional standards if necessary to ?provide and ample margin of safety to protect public health.? Furthermore, EPA?s proposed ?wait-and-see? approach to the problem of hotspots is based on the premise that mercury will behave like sulfur dioxide. Even if one were to assume that EPA?s assertions that its Acid Rain program has not resulted in hot spot creation (an incorrect assumption we address in Chapter 111), it is completely contrary to the science on the uptake and bioaccumulation of methylmercury to compare the public health risks of sulfur dioxide and mercury deposition. Specifically, as part of its approach to the hotspots problem, EPA proposes to look at human blood levels rather than levels of methylmercury in fish to discern whether local deposition is high. But that approach would not address the issue of environmental loading of this persistent pollutant over time, provides only a snapshot of human exposure and does not mean that the long-term risk for human health is any less. Moreover, the agency is not proposing to monitor actual deposition of mercury through monitors located near utility units ? which would be the appropriate way to assess actual hot spot creation. While EPA correctly asserts that ?the relevant question is what is the contribution of [utility units] to hot spots [will be] under a cap-and-trade approach, relative to their current contribution and their projected contribution under a traditional section 112 approach,? the agency simply dismisses the problem without making the assessment or even proposing a monitoring approach that would allow it to make the assessment. EPA?s dismissal of the hot spots problem therefore reflects its apparent fundamental misunderstanding of the problem ? and demonstrates that the agency?s approach is unsupported technically, and arbitrary and capricious. EPA has requested comment on whether utility units emitting less than 25 pounds of mercury should be exempted from the 2018 cap. Our response is ?no?. The record documents the origin of this provision and illustrates that EPA has done no analysis of this issue, either with respect to costs or impacts. The language adopted comes directly from staff at the Small Business Administration (SBA). Apparently, the SBA is concerned that small units may have difficulty reducing their mercury emissions, although EPA has presented no evidence that suggests this is true. Hoping to apparently bury this giveaway in the preamble, the SBA staff person writes: [W]e are not making a formal proposal here ? fuzzing up the original version will give the commenters even less of a target to focus on. ***One solution ? we could provide a memorandum in the record which addresses the releases of utilities that are 50 pounds/year and under, by individual unit, so that the commenters can draw their own conclusions. A review of EPA?s memorandum documenting the units emitting less than 25 pounds of mercury demonstrates that of all the 396 units listed, only about 60 are standalone units. All of the others are boilers that are part of a multi-boiler facility and it is entirely likely that at some facilities all of the boilers are tied into common ductwork for pollution control. Also, because EPA is proposing to allow facilities to bubble their emissions, units other than the one or two emitting less than 25 pounds of mercury per year can be controlled to a greater extent to compensate for the lower emitting units; this option would help mitigate any concerns that small units will be costly to control. Thus, the proposal to exempt units emitting less than 25 pounds of mercury a year is simply arbitrary and capricious. The proposal seeks comment on the use of a so-called ?safety valve, which? would provide that, ?[s]ources may purchase allowances from subsequent year budgets at the safety-valve price at any time.? Even though purchased safety valve allowances are deducted from the next year?s allocation, there does not seem to be any limit on using the safety valve to borrow yet again in the next year and the year after that, indefinitely putting off controls. Moreover, depending on how the cost of such an allowance ($2,187.50 per ounce) compares to the cost of controls, this could be a significant disincentive to pollution reduction. Indeed, the 1PM modeling EPA did of its 111 scheme reveals that the ?safety valve? proposal is bad environmental policy. It is our understanding, based on discussions with EPA staff that this model run assumed the presence of the ?safety valve,? and it predicts that emissions in the years 2023-2030 will be roughly 22 tons per year, rather than the cap level of 15 tons per year, and that the reason for this is ?allowances purchased.? Accordingly, it appears that the ?safety valve? permits ? indeed, is predicted to result in ? elevated mercury levels into the distant future. Moreover, the ?safety valve? has the potential to cause delays in installing control equipment. If the price of ?safety valve? allowances is significantly cheaper than pollution controls, the source may never install control equipment. Similarly, the ?safety valve? provision could encourage the purchase of allowances that would worsen the problem posed by local hot spot deposition of mercury. If a local power plant, unwilling to spend the money to control mercury emissions, is encouraged to purchase allowance by the ?safety valve? price and thus continues to pollute, this dynamic could create an area around the plant of higher mercury emissions than those areas surrounding plants that control emissions. EPA does not even address the possibility of localized problems associated with the ?safety valve? provision, but it is a very real concern. For example, a utility owner can decide that an old, large coal-fired (and very dirty) plant is ready for retirement, but rather than retire it right away, decide to buy allowances at ?safety valve? prices for a several years. In addition, another problem with this approach is that it creates a huge paradox associated with the continual borrowing of future allowances without ever reconciling the borrowed allowances from future compliance periods. As written, it appears as though EPA anticipates that a plant can comply by purchasing allowances into the future. Conclusion The Clean Air Mercury Rule will have serious health impacts on fetuses and adults alike. Mercury?s health effects are too devastating to leave to market dynamics. Furthermore, cuts must be made deeper and quicker than those highlighted in the Mercury Rule. For these reasons we strongly oppose the EPA?s Mercury Rule and have joined New York and fourteen other state attorneys general who state that this rule fails to adequately protect New York and the Northeast from harmful mercury emissions from coal-fired power plants. This rule is step in the wrong direction for clean air and water, not only for the future of New York but for the future of the entire Northeast region. Thank you for this opportunity to comment on the reconsideration of the Clean Air Mercury Rule. We urge the EPA to take our comments into consideration and to abandon the Clean Air Mercury Rule. Sincerely, Neil F. Woodworth Executive Director Adirondack Mountain Club nwoodwor@nycap.rr.com (518) 449-3870 (518) 449-3875 FAX