January 14, 2004
The Honorable Michael R. Leavitt RE: Section 112(n) Utility Mercury Regulation Dear Administrator Leavitt: On December 15, 2003, the Environmental Protection Agency (EPA) issued proposed rules and emission guidelines relating to airborne emissions of mercury (and nickel) from electric utility steam generating units. According to the proposal, EPA plans to reverse its previous finding that regulation of utility mercury emissions is "appropriate and necessary" under Clean Air Act section 112(n). (See 65 Fed. Reg. 79825 (December 20, 2000)). Instead, EPA now plans to set a New Source Performance Standard (NSPS) for mercury emissions pursuant to Clean Air Act section 111. As you know, the standards for regulation under these sections (sections 111 and 112) differ substantially and this proposal represents a significant departure from EPA's previous plans for regulation of mercury from electric utilities. Given the important and highly controversial nature of this change, I am writing to urge that you provide the fullest opportunity for public comment regarding the EPA plans for mercury regulation from electric utility steam generating units. In particular, I believe it is in EPA's interest, and in the public interest, that there be ample opportunity for comment beyond the 60-day comment period set forth in the Notice of Proposed Rulemaking. Sixty days, particularly 60 days that include the end of the year holidays, is simply too short a time to digest and properly respond to this complex and lengthy rulemaking package. I also request that there be public hearings held in each major region of the Nation and that all forms of comment remain acceptable for inclusion in the rulemaking record as EPA has previously allowed. Although EPA is obligated to finalize its approach to this issue by year's end, limiting public input at this initial stage of the process would be ill-advised. The 1990 Clean Air Act Amendments required EPA to study and determine whether further regulation of hazardous air pollutants from electric utility steam generating units was "appropriate and necessary" (CAA section 112(n)). In 1998, EPA completed its Report to Congress regarding this issue, concluding that "for the utility industry, mercury from coal-fired power plants [i]s the [pollutant] of greatest concern" (February 1998 Report to Congress at ES-27). On December 14, 2000, EPA made a finding that regulation of mercury emissions from oil- and coal-fired boilers was "appropriate and necessary." (See, 65 Fed. Reg. 79825 (December 20, 2000)). EPA also funded a National Academy of Sciences study regarding mercury deposition and in August 2001, convened a public workgroup as part of the Clean Air Act Advisory Committee, pursuant to the Federal Advisory Committee Act (FACA). This working group issued a report in October of 2002. (Recommendations on the Utility Air Toxics MACT, Final Working Group Report, Working Group on the Utility MACT.) Thus, it has now been more than 13 years since the 1990 Clean Air Amendments and virtually all of the mercury work conducted during that time was predicated on the use of CAA section 112 and the use of Maximum Achievable Control Technology (MACT) standards as the basis for any regulation. Indeed, section 112(n) itself indicates that any "appropriate and necessary" regulation should take place under "this section," apparently referring to section 1121. Given that fact, I would anticipate substantial litigation regarding the legal underpinnings of this decision, if it is ultimately finalized. In any event (and regardless of the legal merits of EPA's package), release of the current EPA proposal casts further uncertainty on the future of mercury regulation for the electric utility sector. Considering the very substantial change of direction evident in this proposal, it is critical that the agency allow ample time for comment from all interested parties. Thus, I would suggest enlarging the time for public comment by at least an additional 60 days. In the NPRM, EPA indicates that, upon request, a hearing will be held regarding the proposed mercury rules. According to the proposal, EPA is considering holding a single large hearing, probably in North Carolina, close to EPA's Office of Air Quality Planning and Standards. Although this may be convenient for EPA staff, it is unlikely that all interested parties in the United States will find it equally convenient to attend. I urge you to schedule a series of hearings in each region of the country where a request has been received (including the Midwest), so that everyone with an interest may have a reasonable ability to attend and participate. This is particularly so with regard to the Great Lakes states, such as Michigan, where the effect of mercury emissions into water bodies represents an important public health issue. I realize that you were not confirmed as EPA Administrator until very shortly before this package was issued by EPA. I have serious reservations, however, about the merits of this proposal and whether it will ultimately result in a workable solution to a key environmental issue. At a minimum, this proposal represents an unusual approach to a question on which EPA has already expended more than a decade of effort. While an uncertain outcome may be desirable to some, it seems unlikely that the bipartisan compromise represented by the Clean Air Act Amendments of 1990 would have contemplated such fundamental uncertainty at so late a stage in the process. I am not opposed to mercury regulation that considers technical feasibility at an appropriate stage and assesses the ultimate need for control on the basis of the risk to public health -- that is the goal of the 1990 Clean Air Act. If there are innovative and cost effective ways to reach that goal, they should be considered. In the end, however, it is up to EPA to tell us what the facts are and how they relate to the law established by Congress. Abrupt policy shifts that appear after more than 13 years of agency effort do little to improve the public's confidence in EPA's ultimate decision-making apparatus. Moreover, in determining whether additional public comment and input is warranted, I urge you to assess the process by which this rule was created against the principles of balance, consensus, and open decisionmaking set forth in your own personal "Enlibra" doctrine.2 I will be writing shortly to seek further, detailed clarification on a number of the legal and technical issues raised above. I believe before we move forward on EPA's proposal, we need to establish clearly the facts and their relation to the express commands of the 1990 Clean Air Act. There is little to be gained and much to be lost by improvidently setting forth on a course that will ultimately result only in further delay, litigation, and uncertainty. In the meantime, as discussed above, I would urge you to allow all interested parties the fullest opportunity to establish their views and to provide any additional factual information bearing on this important issue. If you have any questions regarding this letter please contact me or have your staff contact Michael Goo, Minority Counsel, Committee on Energy and Commerce at 202-226-3400. Sincerely, JOHN D. DINGELL cc: The Honorable W.
J. "Billy" Tauzin, Chairman
The Honorable Joe Barton, Chairman
The Honorable Rick Boucher, Ranking Member 1 Moreover, section 111(d), on which EPA relies for its NSPS proposal, appears to preclude section 111 regulation in situations involving section 112 pollutants/sources. 2 For instance, I am troubled by reports that a key request for analysis from the FACA Committee (composed of industry, government, and environmental representatives) went unanswered for more than year and was not addressed in the proposal at all. In addition, the proposal also fails to consider any alternative levels for standards beyond the proposed 34 ton "MACT Floor," as is required. Finally, the 34 ton figure is not consistent with the Administration's own, publicly available control technology assumptions used in its IPM economic modeling. (See http://www.epa.gov/airmarkets/epa-ipm/attachment-k.pdf). The failure to provide information, and to consider important aspects of its own information, casts substantial doubt on EPA's adherence to key tenets of the Enlibra doctrine, particularly those related to "Collaboration" and "Science For Facts."
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