Revision of December 2000 Clean Air Act Section 112(n) Finding Regarding Electric Utility Steam Generating Units; and Standards of Performance for New and Existing Electric Utility Steam Generating Units: Reconsideration, 33388-33402 [06-5173]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 71, Number 111 (Friday, June 9, 2006)]
[Rules and Regulations]
[Pages 33388-33402]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-5173]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2002-0056; FRL-8180-4]
RIN 2060-AN50


Revision of December 2000 Clean Air Act Section 112(n) Finding 
Regarding Electric Utility Steam Generating Units; and Standards of 
Performance for New and Existing Electric Utility Steam Generating 
Units: Reconsideration

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; notice of final action on reconsideration.

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SUMMARY: This action sets forth EPA's decision after reconsidering 
certain aspects of the March 29, 2005 final rule entitled ``Revision of 
December 2000 Regulatory Finding on the Emissions of Hazardous Air 
Pollutants From Electric Utility Steam Generating Units and the Removal 
of Coal- and Oil-Fired Electric Utility Steam Generating Units from the 
Section 112(c) List'' (Section 112(n) Revision Rule). We are also 
issuing our final decision regarding reconsideration of certain issues 
in the May 18, 2005 final rule entitled ``Standards of Performance for 
New and Existing Stationary Sources: Electric Utility Steam Generating 
Units'' (Clean Air Mercury Rule; CAMR).
    After considering the petitions for reconsideration and the 
comments received, we are not revising the final Section 112(n) 
Revision Rule other than explaining in more detail what we meant by the 
effectiveness element in the term ``necessary.'' The only two 
substantive changes we are making to

[[Page 33389]]

CAMR in response to comments involve revisions to the State mercury 
(Hg) allocations, and to the new source performance standards (NSPS). 
We also are finalizing the regulatory text that clarifies the 
applicability of CAMR to municipal waste combusters (MWC) and certain 
industrial boilers. Finally, we are denying the requests for 
reconsideration with respect to all other issues raised in the 
petitions for reconsideration submitted for both rules.

DATES: Effective Date: This final action is effective on June 9, 2006.

ADDRESSES: Docket. EPA has established a docket for this action 
including Docket ID No. EPA-HQ-OAR-2002-0056, legacy EDOCKET ID No. 
OAR-2002-0056, and legacy Docket ID No. A-92-55. All documents in the 
docket are listed on the www.regulations.gov Web site. Although listed 
in the index, some information is not publicly available, e.g., 
confidential business information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically through https://
www.regulations.gov or in hard copy at the following address: Air and 
Radiation Docket and Information Center (Air Docket), EPA/DC, EPA West, 
Room B102, 1301 Constitution Avenue, NW., Washington, DC 20004. This 
Docket Facility is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The Docket telephone number is (202) 
566-1744. The Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public reading Room is (202) 566-1744, and the telephone number for the 
Air Docket is (202) 566-1742.

FOR FURTHER INFORMATION CONTACT: For general and technical information, 
contact Mr. William Maxwell, Emission Strategies Group, Sector Policies 
and Programs Division, Mailcode: D243-01, U.S. EPA, Research Triangle 
Park, NC 27711; telephone number: (919) 541-5430; fax number: (919) 
541-5450; e-mail address: maxwell.bill@epa.gov.

SUPPLEMENTARY INFORMATION:
    Outline. The information presented in this preamble is organized as 
follows:

I. General Information
    A. Does this reconsideration action apply to me?
    B. How do I obtain a copy of this document and other related 
information?
    C. Is this action subject to judicial review?
II. Background
III. This Action
    A. Section 112(n) Revision Rule
    B. CAMR
IV. Issues Not Corrected in the CAMR Technical Corrections or in the 
Reconsideration Documents
V. Statutory and Executive Order (EO) Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act (NTTAA)
    J. Congressional Review Act

I. General Information

A. Does this reconsideration action apply to me?

    Categories and entities potentially affected by this action 
include:

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

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

B. How do I obtain a copy of this document and other related 
information?

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

C. Is this action subject to judicial review?

    Under section 307(b) of the Clean Air Act (CAA or the Act), 
judicial review of this final action is available only by filing a 
petition for review in the U.S. Court of Appeals for the District of 
Columbia Circuit on or before August 8, 2006. Only those objections to 
the final action which were raised with reasonable specificity during 
the period for public comment may be raised during judicial review. 
Moreover, under CAA section 307(b)(2), the requirements established by 
this final action may not be challenged separately in any civil or 
criminal proceeding we bring to enforce these requirements.

II. Background

    For a brief history of the Section 112(n) Revision Rule rulemaking 
process that preceded this final action, see our discussion at 70 FR 
62200 (October 28, 2005). On March 29, 2005, we issued a final rule (70 
FR 15994) that revised the Agency's December 2000 finding made pursuant 
to CAA section 112(n)(1)(A), and based on that revision, removed coal- 
and oil-fired electric utility steam generating units (Utility Units or 
power plants) from the CAA section 112(c) source category list.
    Following publication of the March 29, 2005 Federal Register rule, 
the Administrator received two petitions, filed pursuant to section 
307(d)(7)(B) of the CAA, requesting reconsideration of

[[Page 33390]]

many aspects of the final rule.\1\ On October 28, 2005 (70 FR 62200), 
we granted reconsideration on several issues raised by petitioners 
(October Reconsideration Notice).\2\ At that time, we did not act on 
any of the remaining issues in those petitions. We are responding to 
those issues in this action.
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    \1\ One petition was submitted by 14 States: New Jersey, 
California, Connecticut, Delaware, Illinois, Maine, Massachusetts, 
New Hampshire, New Mexico, New York, Pennsylvania, Rhode Island, 
Vermont, and Wisconsin (State petitioners). The other petition was 
submitted by five environmental groups and four Indian Tribes: The 
Natural Resources Defense Council (NRDC), the Clean Air Task Force 
(CATF), the Ohio Environmental Council, the U.S. Public Interest 
Research Group (USPIRG), the Natural Resources Council of Maine; the 
Aroostook Band of Micmacs, the Houlton Band of Maliseet Indians, the 
Penobscot Indian Nation, and the Passamaquoddy Tribe of Maine 
(Indian Township and Pleasant Point) (Environmental petitioners).
    \2\ In this action, the term ``petitioner'' refers only to those 
entities that filed petitions for reconsideration.
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    The issues on which we granted reconsideration involved several 
aspects of the final rule, including:
     Legal interpretations;
     EPA's methodology and conclusions concerning why utility 
Hg emissions remaining after imposition of the requirements of the CAA 
are not reasonably anticipated to result in hazards to public health;
     Detailed discussion of certain issues related to coal-
fired Utility Units as set forth in section VI of the final Section 
112(n) Revision Rule; and
     EPA's decision related to nickel (Ni) emissions from oil-
fired Utility Units.
    We describe these issues at 70 FR 62200. For the reasons indicated 
in a letter dated June 24, 2005, we denied petitioners request that we 
administratively stay the Section 112(n) Revision Rule under CAA 
section 307(d)(7)(B). On August 4, 2005, the D.C. Circuit denied a 
similar request to stay the Section 112(n) Revision Rule pending the 
outcome of the litigation challenging the rule.
    For a brief history of the CAMR rulemaking process that preceded 
this final action, see our discussion at 70 FR 62213 (October 28, 
2005). On May 18, 2005, we issued a final rule (70 FR 28606) that 
established standards of performance for emissions of Hg from new and 
existing, coal-fired electric utility steam generating units (Utility 
Units or EGU). Following publication of the May 18, 2005 Federal 
Register rule the Administrator received four petitions, filed pursuant 
to CAA section 307(d)(7)(B), requesting reconsideration of many aspects 
of the final rule.\3\
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    \3\ One petition was submitted by 14 States: New Jersey, 
California, Connecticut, Delaware, Illinois, Maine, Massachusetts, 
New Hampshire, New Mexico, New York, Pennsylvania, Rhode Island, 
Vermont, and Wisconsin (State petitioners). The second petition was 
submitted by five environmental groups: the Natural Resources 
Defense Council (NRDC), the Clean Air Task Force (CATF), the Ohio 
Environmental Council, the U.S. Public Interest Research Group 
(USPIRG), and the Natural Resources Council of Maine. The third 
petition was submitted by the Jamestown Board of Public Utilities. 
The fourth petition was submitted by the Integrated Waste Service 
Association (IWSA).
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    On October 28, 2005 (70 FR 62213), we granted reconsideration on 
seven issues raised by petitioners. At that time, we did not act on any 
of the remaining issues in those petitions. We are responding to those 
issues in this action.
    The issues on which we granted reconsideration involved seven 
narrow aspects of the final rule as follows:
     2010 phase I Statewide Hg emission budgets and the unit-
level Hg emission allocations on which those budgets are based;
     Definition of ``designated pollutant'' under 40 CFR 60.21;
     EPA's subcategorization for subbituminous coal-fired units 
in the context of the new source performance standards (NSPS);
     Statistical analysis used for the NSPS;
     Hg content in coal used to derive the NSPS;
     Definition of covered units as including municipal waste 
combustors (MWC); and,
     Definition of covered units as including some industrial 
boilers.
    We describe these issues at 70 FR 62213. For the reasons indicated 
in a letter dated August 19, 2005, we denied petitioners request that 
we administratively stay CAMR under CAA section 307(d)(7)(B).
    On November 17, 2005, we held a public hearing on the issues for 
which we granted reconsideration under all six petitions. Five 
individuals gave oral presentations at the hearing. The transcript of 
their comments is located in Docket EPA-HQ-OAR-2002-0056, which can be 
accessed on the Internet at https://www.regulations.gov.
    We provided a public comment period on the reconsideration issues 
that ended on December 19, 2005. More than 300 written public comments 
on the reconsideration issues were received (for both the Section 
112(n) Revision Rule and CAMR). The individual comment letters can be 
found in Docket EPA-HQ-OAR-2002-0056.

III. This Action

    We are making available in Docket EPA-HQ-OAR-2002-0056 a document 
entitled, ``Response to Significant Public Comments Received in 
Response to: Revision of December 2000 Regulatory Finding on the 
Emissions of Hazardous Air Pollutants From Electric Utility Steam 
Generating Units and the Removal of Coal- and Oil-Fired Electric 
Utility Steam Generating Units from the Section 112(c) List: 
Reconsideration (70 FR 62200; October 28, 2005) and Standards of 
Performance for New and Existing Stationary Sources: Electric Utility 
Steam Generating Units: Reconsideration (70 FR 62213; October 28, 
2005),'' (Final Reconsideration Response to Comment Document, RTC). 
This document contains (1) a summary of the comments received on the 
issues for which we granted reconsideration and our responses to these 
comments, and (2) a summary of issues raised in the petitions for which 
we are denying reconsideration, and our rationale for denying 
reconsideration. This document is available on our Web site at https://
www.epa.gov/ttn/atw/utility/utiltoxpg.html and through the docket at 
https://www.regulations.gov.

A. Section 112(n) Revision Rule

    In the final Section 112(n) Revision Rule, EPA revised the 
regulatory finding that it issued in December 2000 pursuant to section 
112(n)(1)(A) of the CAA, and based on that revision, removed coal- and 
oil-fired electric utility steam generating units (coal- and oil-fired 
Utility Units) from the CAA section 112(c) source category list.
    At this time, we are announcing our final action after 
reconsideration of several aspects of the Section 112(n) Revision Rule. 
We are also announcing our final decision on reconsideration of the 
remaining issues that were raised by the petitioners.
1. Issues for Which We Granted Reconsideration
    After carefully considering the petitions and the information that 
was submitted during the public comment period, we have determined that 
none of the new information presented leads us to conclude that our 
original determination as presented in the final Section 112(n) 
Revision Rule was incorrect. Therefore, we are reaffirming the March 
29, 2005 action. A summary of the comments received and our responses 
to these comments can be found in our Final Reconsideration RTC. A 
short summary of the final 112(n) decision follows:
    a. Legal Interpretations. Congress treated Utility Units 
differently from other major and area sources and provided EPA 
considerable discretion in determining whether to regulate such

[[Page 33391]]

units under CAA section 112. CAA section 112(n)(1)(A) provides:

    The Administrator shall perform a study of the hazards to public 
health reasonably anticipated to occur as a result of emissions by 
electric utility steam generating units of pollutants listed under 
subsection (b) of this section after imposition of the requirements 
of this Act. The Administrator shall report the results of this 
study to the Congress within 3 years after November 15, 1990. The 
Administrator shall develop and describe in the Administrator's 
report to Congress alternative control strategies for emissions 
which may warrant regulation under this section. The Administrator 
shall regulate electric utility steam generating units under this 
section, if the Administrator finds such regulation is appropriate 
and necessary after considering the results of the study required by 
this subparagraph.

    The rationale behind our interpretation of the above language is 
set forth in the final Section 112(n) Revision Rule, the 
Reconsideration Notice, and attendant response to comment documents. 
See, e.g., 70 FR 15997-16002; Final Reconsideration RTC; Section 1.1.1. 
In those documents we explain how we reasonably interpreted the terms 
``appropriate'' and ``necessary,'' as well as why it was reasonable for 
us to interpret CAA section 112(n)(1)(A) to focus on (1) hazards to 
public health and (2) hazardous air pollutant (HAP) emissions from 
Utility Units remaining after imposition of the requirements of the Act 
when making our appropriate and necessary inquiries. Although in this 
action we are not reiterating all the reasons our interpretations are 
reasonable, we note that the comments received during reconsideration 
did not cause us to change those interpretations.
    We are, however, clarifying what we meant when we said that the 
``necessary'' inquiry entails an analysis of whether the alternative 
authorities identified under the Act would ``effectively address'' the 
remaining HAP emissions from Utility Units. See 70 FR 16001. In 
interpreting the phrase ``necessary'' to incorporate an effectiveness 
inquiry, we did not intend for such an inquiry to involve a public 
health-based assessment, or ``health test,'' as some commenters called 
it. Rather, the sole purpose of including the effectiveness inquiry as 
part of the ``necessary'' analysis was to ensure that EPA was not 
precluded from regulating Utility Units under CAA section 112 where 
another statutory authority identified would do so in a manner that was 
either not cost-effective or administratively effective in terms of 
ease of implementation of the program for regulators and the regulated 
community (even though that statutory authority may address any 
remaining hazards to public health).
    To summarize, there are two aspects of the ``necessary'' inquiry. 
The first aspect involves a determination as to whether there are any 
other authorities under the Act that, if implemented, would address any 
hazards to public health posed by the remaining Utility HAP emissions. 
The second aspect involves the effectiveness inquiry, which we have now 
clarified involves an assessment of whether the alternative statutory 
authority identified can be implemented in a cost-effective and 
administratively-effective manner.\4\
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    \4\ We recognize that the final rule may have engendered some 
confusion as to the two distinct steps of the ``necessary'' inquiry. 
For example, in the first column of page 16005 of the final rule, we 
note that regulation under CAA sections 110(a)(2)(D) and 111 ``would 
effectively address'' utility Hg emissions because the level of 
utility Hg emissions remaining after CAIR will not result in hazards 
to public health. This discussion in the preamble mixes the first 
and second steps of the ``necessary inquiry.'' As explained above, 
the first inquiry under the ``necessary'' prong is whether there are 
any alternative authorities in the Act that, if implemented, would 
address the identified hazards to public health associated with the 
remaining Utility Unit HAP emissions. The second inquiry under the 
necessary prong involves the effectiveness inquiry and the scope of 
that inquiry is clarified above.
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    b. CMAQ. EPA received numerous comments regarding its use of the 
Community Multi-scale Air Quality (CMAQ) modeling system for the 
Section 112(n) Revision Rule. The Final Reconsideration RTC contains a 
detailed summary of comments and responses on particular issues raised 
(e.g., 36 kilometer (km) grid cell, emissions inventory, dry 
deposition). Below we respond generally to criticisms that it is 
premature to use CMAQ for this rule, and arguments that recent 
information from an ongoing receptor modeling study shows that CMAQ 
underestimates local deposition.
    The CMAQ model contains the best science available to EPA to model 
Hg deposition. All atmospheric modeling analyses include some 
assumptions and uncertainties that are improved as scientific 
understanding evolves.
    The peer review process was part of this process. The CMAQ peer 
review process has been the same for Hg, ozone, and fine particulate 
matter (PM2.5).\5\ In fact, the latest peer review of CMAQ 
focused both on PM2.5 and Hg. The peer review panel 
consisted of six to eight experts from academia, industry, and 
consulting. The panel was charged with review and oversight of all 
aspects of CMAQ, including emissions pre-processors, meteorological 
inputs and chemical mechanisms in the model. The peer review panel 
received documentation and presentations from EPA Office of Research 
and Development (ORD) scientists on ozone, PM2.5, Hg, and 
other aspects of CMAQ science. The peer review panel was also able to 
question, in-person, EPA ORD scientists on all aspects of the science 
contained in CMAQ. After the latest peer review,\6\ the panel then 
prepared a report on the results of their peer review, which is 
contained on the Community Modeling and Analysis System (CMAS) Web site 
(https://www.cmascenter.org) and in the CAMR docket.\7\ In addition the 
ORD response to this peer review is also found at this location on this 
Web site. The New York Department of Environmental Conservation 
findings to-date show CMAQ to be the best performing model for wet 
deposition at the MDN sites. Importantly, the peer review process did 
not identify any concerns regarding assumptions used or with 
uncertainties in the modeling that EPA was not already aware of and 
considering as it used the model. Thus, although it is true that a 
portion of the peer review occurred after EPA issued the Section 112(n) 
Revision Rule and CAMR, even if the peer review had occurred before the 
rules were final, it would not have resulted in EPA's using CMAQ 
differently or reaching a different conclusion.
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    \5\ Because the necessary Hg measurements do not exist, it has 
not been possible to subject the Hg portion of the model to the kind 
of evaluation against empirical measurements that the ozone and fine 
particulate matter portions have received. However, we applied the 
CMAQ model for CAMR only in a relative sense (the CMAQ estimate of 
the percent of deposition, not the absolute amount, due to power 
plants was used as an input into the Mercury Maps model as described 
in the Effectiveness TSD--thus, empirical validation of absolute 
values is not as critical to this use of the model.
    \6\ A December 2003 peer review focused on the total CMAQ 
platform and specifically on enhancements to the Hg chemical solver, 
which is responsible for Hg transformation and deposition in CMAQ. A 
May 2005 peer review included an extended discussion on the CMAQ Hg 
model science, the specific version of CMAQ used in CAMR, the 2001 
model-Mercury Deposition Network (MDN) intercomparison study and the 
upcoming North American Intercomparison Study.
    \7\ Community Modeling and Analysis System (CMAS). Final Report: 
Second Peer Review of the CMAQ Model. July 2005. https://
www.cmascenter.org. See also EPA-HQ-OAR-2002-0056-6307.
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    We also received numerous comments citing to an EPA ORD receptor 
modeling study in Steubenville, Ohio. The Steubenville study can not be 
directly compared with the model results because, among other things, 
the Steubenville study included sources other than U.S. power plants 
and used a different timeframe for its analysis. However, the results 
of the Steubenville,

[[Page 33392]]

Ohio, receptor modeling study conducted by EPA ORD are consistent, not 
inconsistent, with those obtained by the CMAQ modeling. The results of 
this receptor modeling study show that 67 percent of the Hg depositing 
in precipitation in 2003 at the Steubenville monitor location is from 
all forms of coal-combustion, with an uncertainty range of 14 percent. The CMAQ Hg modeling predicts for 2001 that utility 
coal combustion contributes 44 percent to Hg deposition at the CMAQ 36-
km square grid cell containing the Steubenville, Ohio, monitoring site. 
One grid cell to the north and three grid cells to the east of this 
monitoring site, the CMAQ model predicts 57 percent and 71 percent, 
respectively of Hg deposition from utility coal combustion. Thus, 
because this receptor modeling study provides utility and other coal 
combustion percentages roughly in the same range as those provided by 
the CMAQ model for utilities only, it improves confidence in the CMAQ 
source-attribution results. Furthermore, the CMAQ model predicted wet 
deposition at the grid cell containing the ORD Steubenville monitoring 
site of 14.2 micrograms per square meter ([mu]g/m2) for 
2001. The measured Hg wet deposition at the Steubenville monitoring 
site for 2003 is 13.1 [mu]g/m2. At the closest MDN site 
(PA37) to Steubenville, the 2001 CMAQ predicted and measured Hg wet 
deposition rates are 9.9 and 9.4 [mu]g/m2. Thus, it appears 
that CMAQ model is predicting Hg wet deposition values in the 
Steubenville area with sufficient accuracy for these rules.
    We note that the Steubenville study estimates current deposition at 
a single point.\8\ Although these data will be useful for validating 
air quality models, they are not useful for estimating exposure because 
deposition over a larger geographic area is needed to estimate the 
contribution to watersheds, MeHg concentrations in fish, and ultimately 
human exposure. As explained in the Effectiveness TSD, Section 2, the 
hydrologic unit code (HUC-8) watershed is the appropriate scale for 
estimating exposure to Hg. The CMAQ model, not a single point estimate, 
is used for estimating deposition within the watersheds.
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    \8\ We note that the location of the sole monitor for the 
Steubenville study is not designed to be representative of the 
deposition to the entire watershed. In fact, it is placed on top of 
a hill and not at a location where fish are caught.
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    In conclusion, CMAQ was applied using the best available Hg science 
for the Section 112(n) Revision Rule. Nonetheless, we recognize that, 
as new Hg scientific information becomes available and accepted by the 
scientific community, we will incorporate it into future versions of 
the CMAQ model. Indeed, EPA released an updated version of the CMAQ Hg 
model on the CMAS Web site in March 2006 which partially addresses the 
concerns of the peer review. Importantly, even if we were to use of the 
March 2006 version of CMAQ it would not materially alter the results of 
our March decision. Future versions of CMAQ will address other aspects 
of the peer review.
    c. Public Health Analysis. EPA conducted a thorough and 
sophisticated public health analysis pursuant to CAA section 
112(n)(1)(A). The final Section 112(n) Revision Rule, the Effectiveness 
TSD, the Reconsideration TSD, and the Final Reconsideration RTC set 
forth EPA's methodology and analysis supporting its conclusion under 
CAA section 112(n)(1)(A) that the utility-attributable emissions 
remaining after imposition of the requirements of the Act are not 
reasonably anticipated to pose hazards to public health. Specifically, 
EPA examined in detail the impact of remaining utility Hg emissions on 
consumers of self-caught freshwater fish because this exposure pathway 
results in the highest utility-attributable Hg exposure. See 70 FR 
16021; Reconsideration TSD at 1. Thus, consumers of self-caught 
freshwater fish that substitute other sources of fish (e.g., 
aquaculture, commercial freshwater, or marine) for self-caught 
freshwater fish in their diet will lower (reduce) their exposure to 
utility-attributable Hg.
    This sophisticated analysis involved our modeling utility Hg 
deposition following implementation of CAIR and CAMR, and then applying 
Mercury Maps and actual fish tissue sample data to estimate 
corresponding changes in methylmercury (MeHg) fish tissue 
concentrations. We then folded into the analysis fish consumption rates 
from various sources, including the Exposure Factors Handbook (EFH), 
the Methylmercury Water Quality Criterion, and a study of Native 
American subsistence fisher consumption rates. All of this information 
was compiled in order to compare the exposure to utility-attributable 
MeHg for a freshwater fisher to the Reference Dose (RfD) for Hg--what 
we labeled the index of daily intake (IDI). This comparison was done 
not only at several consumption rates, including the mean recreational 
freshwater fisher and the 99th percentile Native American subsistence 
fisher, but also for various levels of utility-attributable MeHg fish 
tissue concentrations. See Effectiveness TSD, Table 6.4; Final 
Reconsideration RTC, Table 2. An IDI of less than one (1) is equal to a 
utility-attributable exposure lower than the RfD. See 70 FR 16021.
    As these IDI tables show, CAIR, and, furthermore, CAMR, reduce the 
general public's exposure to utility-attributable MeHg due to 
freshwater fish consumption well below the RfD (e.g., IDI less than 1). 
In particular, for all consumption rates analyzed, the IDI is below 1 
when eating freshwater fish from up to and including the 50th 
percentile for fish tissue utility-attributable MeHg. When eating 
solely freshwater fish in the 75th to 95th percentiles for fish tissue 
utility-attributable MeHg, the only two groups with IDIs above 1 are 
the 95th and 99th Native American subsistence fishers. Finally, only 
when eating solely freshwater fish from the 99th percentile for fish 
tissue utility-attributable MeHg do the 99th percentile recreational 
fisher and mean Native American subsistence fisher show IDIs above 1. 
See Effectiveness TSD, Table 6.4; Final Reconsideration RTC, Table 2. 
These results show that the overwhelming majority of the general public 
and high-end consumers of self-caught freshwater fish are not expected 
to be exposed to an IDI above 1 (e.g., utility-attributable MeHg 
exposure would be below the RfD).
    Importantly, as discussed in the final Section 112(n) Revision 
Rule, the likelihood that factors will converge such that a person 
would both eat at a high consumption rate and eat solely freshwater 
fish with high utility-attributable MeHg concentrations is small. See 
70 FR 16024. Notably, this is true for Native American subsistence 
fishers because deposition and fish tissue maps indicate that the 
overwhelming majority of tribal populations live outside areas most 
impacted by utility-attributable Hg deposition and elevated utility-
attributable fish tissue levels. Id. Moreover, as discussed elsewhere, 
although the RfD is an appropriate benchmark, an IDI above 1 (e.g., 
above the RfD) does not necessarily mean that a public health hazard 
exists.\9\ Id.
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    \9\ The World Health Organization (WHO), Health Canada, and the 
Agency for Toxic Substances and Disease Registry (ATSDR) all set 
higher thresholds for Hg than EPA's RfD, which would in turn lead to 
lower IDIs. For example, the WHO sets the level at 0.23 g/kg/day; 
Health Canada sets the level at 0.2 g/kg/day; and ATSDR sets a value 
of 0.3 g/kg/day.
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    In the Reconsideration TSD, we looked beyond the self-caught 
freshwater fish exposure pathway. We were able to undertake a similar 
quantitative IDI analysis only for the marine fish consumption pathway. 
That analysis, which likely overstates the utility-attributable Hg 
levels in marine

[[Page 33393]]

fish, showed that for the general public eating at both mean and high-
end consumption rates the IDIs are well below 1 (e.g., 0.00 to 0.05). 
See Reconsideration TSD, Table 3.2. EPA went further and calculated IDI 
values for consumption of marine species with high MeHg concentration, 
yet those IDIs also were below 1, even for a person consuming in the 
99.9th percentile consuming exclusively fish with high utility-
attributable MeHg concentrations. Id., Table 3.3. Finally, Table 3 of 
the Final Reconsideration RTC shows that even when higher marine fish 
consumption rates (for marine fish with average utility-attributable 
MeHg concentrations) are added to the freshwater consumption rates, the 
IDI values do not change substantially (e.g., increase ranges from 0.03 
to 0.09).\10\ Notably, such an increase is highly unlikely because an 
individual first would need to eat a large amount of marine fish in 
addition to a given amount of freshwater fish. Even if it were to 
occur, such an increase would not materially affect the IDI values, 
which again supports our focus on utility-attributable exposure from 
freshwater fish consumption.
---------------------------------------------------------------------------

    \10\ In Section 1.1.1.1.1 of the Final Reconsideration RTC, EPA 
explained in more detail why it is very likely that its CAA section 
112(n)(1)(A) conclusion regarding hazards to public health would 
remain unchanged even had it applied the health-based prong of the 
CAA section 112(f) ample margin of safety inquiry. In particular, we 
discussed how we effectively considered the factors relevant in the 
benzene analysis (e.g., estimates of individual risk, incidence, 
numbers of exposed persons within various risk ranges, scientific 
uncertainties, weight of evidence, as well as potential standards' 
technical feasibility, cost, and economic impact).
---------------------------------------------------------------------------

    Although scientific uncertainties and a lack of data made similar 
quantitative IDI analyses for other pathways (e.g., commercial 
freshwater, estuarine, and aquaculture) not possible, EPA presented 
detailed qualitative analyses showing that the contribution from these 
pathways would be small, and in all cases are bounded by the self-
caught freshwater pathway. See Reconsideration TSD, Sections 4 through 
7. For example, EPA explained how it is the location and type of feed 
caught to make fish feed, as opposed to the location of the aquaculture 
farms, that is relevant to assessing the utility-attributable 
concentration of MeHg in aquaculture fish. See 60 FR 62207. 
Furthermore, many of the commonly consumed aquaculture fish species 
(e.g., catfish) tend to have lower concentrations of MeHg than many of 
the commonly consumed marine fish, and the total amount of aquaculture 
fish consumed in the U.S. is substantially less than the total amount 
of marine fish consumed in the U.S. Thus, having already concluded that 
an upper-bound estimate of utility-attributable Hg exposure due to 
marine fish is small and that the utility-attributable Hg exposure due 
to aquaculture is smaller than for marine fish, we reasonably concluded 
that the utility-attributable Hg exposure due to aquaculture fish is 
minimal. Id.
    For the estuarine pathway, we discussed how EPA finds that the 
available data indicate that the utility-attributable exposure to Hg 
from estuarine fish and shellfish will likely be small relative to that 
from self-caught freshwater fish. Id. We estimated that the total 
exposure from the entire global Hg pool (i.e., all Hg sources, 
including, but, not limited to power plants,) associated with 
consumption of estuarine and nearcoastal fish is roughly one third of 
the exposure from all marine species. This estimate of total Hg 
exposure from estuarine species is thought to be an upper bound because 
it is based on total Hg concentrations in shellfish rather than MeHg 
concentrations, the Hg species that is toxicologically most 
significant. See Reconsideration TSD, Section 4. Moreover, of the Hg 
exposure associated with the consumption of estuarine and near-coastal 
fish, we estimate that the utility-attributable fraction is small.\11\
---------------------------------------------------------------------------

    \11\ As described in section 4 of the Reconsideration TSD, 
utility deposition after CAIR, and even more so after CAMR, is small 
in the coastal areas, especially taking into account estuarine and 
near-coastal fisheries on the West Coast. Finally, populated coastal 
regions like the Chesapeake Bay and Baltimore Harbor (see Mason and 
Lawrence, 1999) will receive significant land-based (e.g., point 
source discharges) Hg inputs from wastewater effluents, municipal 
waste discharges, and historical Hg contamination that is slowly 
leaching from the watershed.
---------------------------------------------------------------------------

    Finally, for the commercial freshwater fish pathway, we explained 
how freshwater commercial fish are not a significant exposure pathway 
because total consumption is small when compared to recreational 
freshwater fish consumption. See Reconsideration TSD, Section 6; 70 FR 
62205. Further, even though utility-attributable Hg deposition is 
comparatively higher around the Great Lakes and the regional watershed 
surrounding the Great Lakes as defined by the U.S. Geological Survey 
(USGS), in comparison with the rest of the U.S., it is still only a 
small percentage of Hg deposition from all sources. Additionally, only 
a portion of the commercial freshwater harvesting area is affected by 
comparatively higher concentrations of utility-attributable Hg 
deposition in [mu]g/m\2\ (e.g., Lakes Michigan, Erie, and Huron), and 
the Great Lakes utility-attributable Hg deposition is not 
disproportionately higher than the immediately surrounding areas for 
recreational freshwater harvest. All of these factors lead us to 
believe that the commercial freshwater fish exposure pathway is still 
expected to be small relative to the national recreational freshwater 
exposure pathway. See 70 FR 62206.
    After reviewing the comments received during the reconsideration, 
we are not changing our analyses of these consumption pathways and 
continue to find that self-caught freshwater fish represent the pathway 
most impacted by utility Hg emissions.
    Finally, in addition to the above IDI analyses, EPA evaluated 
whether, following CAIR and, furthermore, following CAMR, there would 
be any utility hotspots, defined as water bodies that are a source of 
consumable fish with MeHg tissue concentrations attributable solely to 
utilities greater than the MeHg water quality criterion of 0.3 mg/kg. 
See 70 FR 16026. EPA's analysis showed that after implementation of 
CAIR and, furthermore, after CAMR we do not believe that there will be 
any utility hotspots. See 70 FR 16027. Nonetheless, as indicated 
elsewhere, EPA intends to monitor the situation and take action as 
necessary. Id.\12\
---------------------------------------------------------------------------

    \12\ The EPA Inspector General recently issued a report 
suggesting that EPA conduct monitoring to ensure that its hotspots 
analysis is accurate. See EPA Office of Inspector General, 
``Monitoring Needed to Assess Impact of EPA's Clean Air Mercury Rule 
on Potential Hotspots,'' Report No. 2006-P-00025 (May 15, 2006).
---------------------------------------------------------------------------

    In summary, this information supports EPA's conclusion that 
following CAIR, and, moreover, following CAMR, utility Hg emissions are 
not reasonably anticipated to result in a hazard to public health. 
Specifically, the overwhelming majority of the general public and high-
end fish consumers are not expected to be exposed above the MeHg RfD 
(an IDI value greater than 1). Although the possibility exists that a 
very small group of people may be exposed above the RfD (an IDI value 
greater than 1), significant uncertainties exist with respect to the 
existence and actual size of such a group. There are also significant 
uncertainties concerning the extent to which such exposure might exceed 
the RfD (an IDI value greater than 1) and whether exposure at such 
levels would cause adverse effects. Notably, as the U.S. Court of 
Appeals for the District of Columbia Circuit in Vinyl Chloride held, 
``safe'' does not mean risk-free. See 824 F.2d 1165. Id. Rather, EPA 
must ``determine what inferences should be drawn from available 
scientific data and

[[Page 33394]]

decide what risks are acceptable in the world in which we live.'' Id.
    Given the size of the population, including sensitive 
subpopulations, that after implementation of CAIR and, furthermore, 
CAMR, will be below the RfD (an IDI value of less than 1); the 
uncertainty of the size and the level to which certain groups may be 
exposed above the RfD (an IDI value greater than 1); the uncertainties 
that adverse effects will be experienced by such groups even at levels 
significantly above the MeHg RfD; and the nature of those potential 
adverse effects (see Reconsideration TSD), EPA, in its expert judgment, 
concludes that utility Hg emissions do not pose hazards to public 
health, and, therefore, that it is not appropriate to regulate such 
emissions under CAA section 112.
    c. Alternative Global Pool Analysis. In the final rule, EPA 
concluded that the utility-attributable emissions remaining after 
imposition of the requirements of the Act are not reasonably 
anticipated to pose hazards to public health. Based on this finding and 
consistent with its interpretation of the term ``appropriate,'' EPA 
concluded that it was not appropriate to regulate Utility Units under 
CAA section 112. EPA's analysis did not end there, however. EPA went 
further and concluded that even examining the impact of the global Hg 
pool, as opposed to the impacts associated with utility-attributable 
emissions only, it is still not appropriate to regulate Utility Units 
under CAA section 112. See 70 FR 16028-29 (setting forth global pool 
analysis). In this regard, EPA looked at the global Hg pool and the 
impact of eliminating all domestic Utility Unit Hg emissions, including 
those that enter the global mix (versus deposit relatively quickly in 
the U.S. or nearby ocean waters). See 70 FR 16028-29; 70 FR 62208-09. 
EPA's analysis showed that total domestic utility-attributable 
emissions are ``a very small fraction of overall methylmercury 
levels.'' Id. at 16028. The modeling further showed that even if we 
were to eliminate (versus merely further reduce) all domestic utility-
attributable Hg, ``virtually none of the risks to public health 
stemming from the global pool'' would be reduced. See 70 FR 16029. In 
the Reconsideration TSD we went further and undertook a bounding 
exercise of the monetary benefits, based on intelligence quotient (IQ) 
decrements, which would occur from elimination of utility Hg emissions. 
In the context of this global pool argument, EPA assumed a hazard to 
public health existed resulting from global pool emissions, and then 
properly proceeded with its analysis under the ``appropriate'' prong.
    Specifically, in light of its finding that eliminating all domestic 
utility-attributable Hg would reduce virtually none of the health risks 
stemming from the global pool, EPA proceeded in the appropriate inquiry 
by considering the factor of cost. As explained in detail in Section 8 
of the Reconsideration TSD, the lower bound cost of regulating under 
CAA section 112 beyond CAIR e.g., $750 million) exceeds the upper bound 
estimate of the benefits of such regulation (e.g., $210 million).\13\ 
See 70 FR 62209. This alternative global pool cost/benefit analysis 
further supports EPA's conclusion that it is not appropriate to 
regulate Utility Units under CAA section 112.
---------------------------------------------------------------------------

    \13\ As explained below, we revised our original estimate of 
$168 million based on corrections made to the Ryan study.
---------------------------------------------------------------------------

    Numerous commenters questioned EPA's benefits analysis, citing an 
article by Trasande, et al. (2005), a study prepared for the Northeast 
States for Coordinated Air Use Management (NESCAUM) entitled, `` 
`Economic Valuation of Human Health Benefits of Controlling Mercury 
Emissions from U.S. Coal-fired Power Plants' '' (February 22, 2005; 
NESCAUM Report), and a study by Cohen, et al. (2005). The 
Reconsideration TSD and Final Reconsideration RTC contain our detailed 
response to these studies; however, a summary follows.
    As stated in the Reconsideration TSD, EPA's approach to modeling 
exposure and health benefits of reducing emissions from power plants 
differs in some important ways from the approach in the NESCAUM Report. 
EPA believes that some of these differences simply reflect the large 
amount of uncertainty in the underlying science. Other differences 
reflect situations where the science and economics are fairly clear and 
EPA has concerns about the approach taken in the NESCAUM Report. For 
example, the NESCAUM Report attempted to quantify the marine exposure 
pathway but used assumptions that are not supported by the literature 
on marine fate and transport of Hg, likely resulting in an overestimate 
by an unknown amount. The NESCAUM Report used REMSAD modeling which 
appears to over-predict Hg deposition from U.S. power plants. Although 
EPA does not endorse the approach in the NESCAUM Report approach, at 
best it should be interpreted as producing an upper-bound estimate of 
the IQ benefits of reducing Hg emissions from power plants for two 
reasons. First, it does not appear that the NESCAUM Report took into 
account the timeframe for reduced exposure to MeHg. This omission alone 
leads to an overestimate of estimated benefits in the NESCAUM Report by 
at least a factor of two. Second, EPA's integrated analysis of the 
three major epidemiological studies (i.e., Faroes, Seychelles, New 
Zealand) produced an estimated relationship between exposure and 
neurological problems that EPA feels is much more scientifically 
defensible than the estimated relationship used in the NESCAUM Report, 
based, in part, on a then unpublished and generally unavailable study 
(Cohen et al., see below).
    EPA believes that many of the assumptions made in the Trasande 
article lead to an extreme overstatement of the benefits of Hg 
reduction (or cost of Hg exposure). Most importantly, the article as 
originally published contained an error in the estimate of the linear 
dose-response curve that overstated the estimates of that model by a 
factor of 10. EPA's estimates fall within the range of the corrected 
estimates, even accepting the author's other assumptions. However, EPA 
believes that there are other assumptions embedded in the Trasande, et 
al., analysis that overstate the possible benefits from Hg reductions. 
Examples include assumptions regarding the amount of Hg in the supply 
of edible fish in the U.S., the estimate of the percent of the U.S. 
edible fish supply that is imported, the assumption that 60 percent of 
the Hg content in fish affected by domestic deposition is due to U.S. 
sources, and assumptions related to the derivation of IQ decrements 
associated with exposure to Hg, including the study's primary estimate 
of IQ decrements being based on a logarithmic model, instead of a 
linear model (as recommended by the National Research Council (NRC)). 
Finally, in the Final Reconsideration RTC we discuss several reasons 
why the results from Trasande, et al., are an overestimate of the 
economic benefits of controlling Hg.
    In regard to the Cohen, et al., article, EPA also disagrees with 
some of the assumptions made. In particular, a key element of the 
Cohen, et al., methodology was to convert the log regression 
coefficients from the Faroe Islands study into corresponding linear 
coefficients. Because the slope of the log regression relationship 
varies at different levels of exposure, the corresponding linear 
coefficient can vary based on which portion of the dose-response 
relationship is chosen (e.g., ranging from -0.2 to -1.0 IQ points per 1 
[mu]g/g increase of Hg in hair).

[[Page 33395]]

    Although the approach taken by Cohen, et al., is in general a 
reasonable use of the available data to derive an estimate of the Hg-IQ 
dose-response relationship, it is evident from the results summarized 
above that the result is highly sensitive to the assumptions made in 
converting the log regression coefficients from the Faroe Islands study 
into linear regression coefficients. The approach taken by EPA and Dr. 
Ryan was more rigorous than that of Cohen, et al., in a number of 
respects, but one of the most important differences is that EPA 
obtained linear regression coefficients directly from the Faroe Islands 
research team, thus, eliminating the need to make assumptions to 
convert the log regression coefficients into linear coefficients. If 
the Cohen, et al., analysis were revised to incorporate the linear 
coefficients provided by the Faroe Islands researchers to EPA, it is 
likely that Cohen, et al., would produce a Hg-IQ coefficient very 
similar to that estimated by Dr. Ryan and used by EPA.
2. Remaining Issues in Petitions for Reconsideration
    We deny the petitioners' requests for reconsideration on the 
remaining issues raised in the petitions because they have failed to 
meet the standard for reconsideration under CAA section 307(d)(7)(B). 
Specifically, the petitioners have failed to show: That it was 
impracticable to raise their objections during the comment period, or 
that the grounds for their objections arose after the close of the 
comment period; and/or that their concern is of central relevance to 
the outcome of the rule. We discuss our reasons for denying 
reconsideration in the Final Reconsideration RTC, which is available on 
our Web site at https://www.epa.gov/ttn/atw/utility/utiltoxpg.html.

B. CAMR

    CAMR established standards of performance for Hg for new and 
existing coal-fired electric utility steam generating units (Utility 
Units), as defined in CAA section 111. The amendments to CAA section 
111 rules create a mechanism by which Hg emissions from new and 
existing coal-fired Utility Units are capped at specified, nation-wide 
levels. A first phase cap of 38 tons per year (tpy) becomes effective 
in 2010, and a second phase cap of 15 tpy becomes effective in 2018. 
Facilities must demonstrate compliance with the standard by holding one 
``allowance'' for each ounce of Hg emitted in any given year. 
Allowances are readily transferable among all regulated facilities. 
Such a ``cap-and-trade'' approach to limiting Hg emissions is the most 
cost-effective way to achieve the reductions in Hg emissions from the 
power sector.
    At this time, we are announcing our final action after 
reconsideration of the seven CAMR issues described above. We are also 
announcing our final decision on reconsideration of the remaining 
issues that were raised by the petitioners.
1. Issues for Which Reconsideration Was Granted
    After carefully considering the petitions and the information that 
was submitted during the public comment period, we have concluded that 
one clarification and two revisions to CAMR are warranted. First, for 
the reasons stated in the October Reconsideration Notice and in the 
Final Reconsideration RTC, we are finalizing regulatory language to 
make it clearer that CAMR does not apply to MWC and certain industrial 
boilers (40 CFR 60.24(h)(8) (definition of ``Electric generating unit 
or EGU''). Specifically, we are providing that CAMR applies to coal-
fired boilers and combustion turbines serving, at any time since 
November 15, 1990, a generator with a nameplate capacity greater than 
25 MWe producing electricity for sale and does not apply to 
cogeneration units meeting certain requirements concerning their 
electricity sales and to solid waste incineration units combusting 
municipal waste and subject to certain regulatory requirements. In the 
October Reconsideration Notice, EPA noted that the Agency would make 
conforming changes to the applicability provisions in the model trading 
rule (subpart HHHH, 40 CFR 60.4104) based on the final action EPA takes 
on the proposed rule as those provisions are intended to be consistent 
with the definition in 40 CFR 60.24(h). We are, therefore, finalizing 
revised applicability provisions in 40 CFR 60.4104, which are 
consistent with the language in revised 40 CFR 60.24(h)(8). (We also 
noted in the October Reconsideration Notice that we would address the 
matter of the applicability of units subject to the Industrial Boiler 
maximum achievable control technology (MACT) standards to units subject 
to CAMR. We recently proposed language amending 40 CFR part 63, subpart 
DDDDD, with regard to this matter. See 70 FR 62264, 62272; October 31, 
2005.) The two changes we are making in response to comments relate to 
issues raised as a result of our request for comment on: (1) The 2010 
phase I Statewide Hg emission budgets and the unit-level Hg emission 
allocations on which those budgets are based; and, (2) the statistical 
analysis used for the NSPS. These revisions are discussed further 
below. A summary of the comments received and our responses to these 
comments can be found in our Final Reconsideration RTC.
    a. Statewide Hg Allocations. Several commenters, in response to the 
issue of the unit-level Hg emission allocations on which the 2010 phase 
I Statewide Hg emission budget is based, provided data that indicated 
that EPA had erred in the allocations for the State of Alaska because 
it had failed to include a coal-fired unit located in the State. EPA 
has added the heat input values for Healy Unit 1 reported by 
the commenters, and made the appropriate adjustment to the State of 
Alaska budget. However, EPA is not making any corrections for the Healy 
Clean Coal Project as requested by the commenters. EPA calculated State 
budgets based on historic heat input for all units, not potential or 
projected heat input.
    The original CAMR State budgets and the revised State budgets based 
on the addition of the Healy Unit 1 heat input data are 
provided in the Final Reconsideration RTC. Because of the small total 
adjustment and the digit at which the budgets are rounded, only six 
other State budgets are affected.
    b. Statistical Analysis for NSPS. Petitioners expressed 
considerable concern over EPA's statistical analysis. Further, certain 
commenters provided additional data in support of a revision to the 
NSPS emission limits for coal refuse-fired units. EPA did not change 
its statistical approach but, as noted in the October Reconsideration 
Notice, we did correct the arithmetic errors. EPA has reviewed its 
analysis along with the discussions provided by the petitioners and 
commenters, and reanalyzed the coal refuse NSPS based on the new data 
and documented the results (see Final Reconsideration RTC; revised NSPS 
memo available in the docket). Based on this reanalysis of the 
appropriate NSPS emission limits, EPA is finalizing the following NSPS 
Hg limits for new units:


Bituminous coal.....................  20 x 10-\6\ lb/MWh
Subbituminous coal (wet units)......  66 x 10-\6\ lb/MWh
Subbituminous coal (dry units)......  97 x 10-\6\ lb/MWh
Lignite coal........................  175 x 10-\6\ lb/MWh
Coal refuse.........................  16 x 10-\6\ lb/MWh
IGCC................................  20 x 10-\6\ lb/MWh
 

2. Remaining Issues in Petitions for Reconsideration
    We deny the petitioners' requests for reconsideration on the 
remaining issues raised in the petitions, because they have failed to 
meet the standard for reconsideration under CAA section

[[Page 33396]]

307(d)(7)(B). Specifically, the petitioners have failed to show: that 
it was impracticable to raise their objections during the comment 
period, or that the grounds for their objections arose after the close 
of the comment period; and/or that their concern is of central 
relevance to the outcome of the rule. We discuss our reasons for 
denying reconsideration in the Final Reconsideration RTC, which is 
available on our Web site at https://www.epa.gov/ttn/atw/utility/
utiltoxpg.html.

IV. Issues Not Corrected in the CAMR Technical Corrections or in the 
Reconsideration Documents

    On August 30, 2005 (70 FR 51266), EPA issued a technical 
corrections document addressing certain corrections to the May 18, 2005 
(70 FR 28606) CAMR. We subsequently found certain other errors in CAMR 
that need correction. All of these corrections should be non-
controversial.
    On October 28, 2005 (70 FR 62213), EPA proposed to correct the 
following errors. First, we were inconsistent in our use of phrase 
``new, modified, and reconstructed'' in the applicability provisions of 
the NSPS portion of CAMR. We proposed to correct this inconsistency by 
revising the language to indicate that the NSPS applies to units which 
are constructed, modified, or reconstructed after January 30, 2004. 
Second, there is an inconsistency between the definitions of ``coal'' 
and ``coal-fired electric utility steam generating unit.'' In defining 
``coal'' we indicate that ``coal'' includes ``petroleum coke'' while in 
defining ``coal-fired electric utility steam generating unit'' we 
identify ``petroleum coke'' as an example of a supplemental fuel (i.e., 
a fuel that is burned with coal). We proposed to correct this 
inconsistency by removing ``petroleum coke'' from the definition of 
``coal'' as we do not think ``petroleum coke'' is properly classified 
as ``coal.'' (We have subsequently placed ``petroleum coke'' in the 
definition of ``petroleum''; see 70 FR 9877, February 27, 2006.) Third, 
because of the delay between signature and publication of CAMR, the 
submittal dates for the individual State Hg allocation plans and the 
full State plans are not consistent. We proposed to resolve this 
problem by changing the October 31, 2006 date for submitting Hg 
allowance allocations to the Administrator specified in 40 CFR 
60.24(h)(6)(ii)(C) and 40 CFR 60.4141(a) of the model trading rule to 
November 17, 2006, consistent with the date for submitting State plans 
specified in 40 CFR 60.24(h)(2). Finally, we identified additional 
instances where the section renumbering, noted in the August 30, 2005 
document, was not corrected, and we proposed to correct these. We 
received no comments on these issues as a result of the October 28, 
2006 document and, therefore, are finalizing these corrections in this 
action.
    Subsequent to the October 28, 2005 document, we found certain other 
errors in CAMR. With regard to the inconsistency in our use of the 
phrase ``new, modified, and reconstructed'' in the applicability 
provisions of the NSPS portion of CAMR, we missed instances in CAA 
sections 60.40Da and 60.45Da where this inconsistency was found. We 
believe that these corrections are non-controversial and we are 
correcting these in this action.

V. Statutory and Executive Order (EO) Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under EO 12866 (58 FR 51735, October 4, 1993), EPA must determine 
whether the regulatory action is ``significant'' and, therefore, 
subject to review by the Office of Management and Budget (OMB) and the 
requirements of the EO. The EO defines a ``significant regulatory 
action'' as one that is likely to result in a rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Pursuant to the terms of EO 12866, it has been determined that this 
final action on reconsideration is a ``significant regulatory action'' 
because it raises novel legal or policy issues. As such, the action was 
submitted to OMB for review under EO 12866. Changes made in response to 
OMB suggestions or recommendations are documented in the public record.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
This final action on reconsideration imposes no new information 
collection requirements on the industry. However, the Office of 
Management and Budget (OMB) has previously approved the information 
collection requirements contained in the existing regulations (40 CFR 
60.40Da-60.49Da; 40 CFR 60.4100-60.4199) under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB 
control number 2060-0567 and EPA ICR number 2137.02. A copy of the OMB 
approved Information Collection Request (ICR) may be obtained from 
Susan Auby, Collection Strategies Division; U.S. Environmental 
Protection Agency (2822T); 1200 Pennsylvania Ave., NW., Washington DC 
20460 or by calling (202) 566-1672.
    Burden means the total time, effort, or financial resource