### PETITION FOR RECONSIDERATION OF EDISON MISSION ENERGY AND SUBSIDIARIES MIDWEST GE NERATION EME, LLC AND EME HOMER CITY GENERATION, LP ON EPA’S FINAL RULE ON STANDARDS OF PERFORMANCE FO R NEW STATIONARY SOURCES AND EMISSION GUIDELINES FOR EXISTING SOURCES: COMMERCIAL AND INDUSTRIAL SOLID WASTE INCINERATION UNITS 76 FED. REG. 15,608 (MAR. 21, 2011)

Basil G. Constantelos Managing Director, Environmental Services

Midwest Generation Edison Mission Energy 235 Remington Blvd. Suite A Bolingbrook, IL 60440 Tel: 630-771-7829 Email: bconstantelos@mwgen.com

May 20, 2011TABLE OF CONTENTS Page I. INTRODUCTION & OVERVIEW..................................................................................1

II. EXECUTIVE SUMMARY ...............................................................................................3

III. EPA SHOULD ALLOW A DE MINIMIS EXEMPTION FROM TREATMENT AS AN INCINERA TOR FOR UNITS BURNING MATERIALS GENERATED IN THE NORMAL COURSE OF BOILER OPERATION .....................................................................................................................5 A. EPA’s Frequent Application Of Its De Minimis Authority Has Withstood Judicial Challenge ...............................................................................6 1. De Minimis Exemptions In EPA’s Transportation Conformity Regulations .................................................................................................6 2. Exemption Of De Minimis Sources Of PM 10 Under A Federal Implementation Plan .................................................................................7 3. De Minimis Exceptions from New Source Review for Routine Maintenance, Repair and Replacement...................................................7 4. De Minimis Exemption From CERCLA Requirements On The Basis Of No Appreciable Health Risk ......................................................8 B. EPA Allows Similar De Minimis Exemptions Under the Solid Waste Rule and Other Rules Under RCRA....................................................................9 C. An Exemption for Materials Generated in the Course of Normal Boiler Operations Would Fit Squarel y Within the Scope of EPA’s De Minimis Authority................................................................................................10 1. The Emissions Impacts of an Exemption Would Be Trivial................10 2. NRDC V. EPA Does Not Address EPA’s De Minimis Authority...................................................................................................13 3. Requiring Application of Section 129 to De Minimis Amounts of Secondary Materials Would Be a Mandate of Pointless Expenditure ..............................................................................................13 4. The Text of Section 129 of the Clean Air Act is Not “Uncompromisingly Rigid”.....................................................................14

IV. GRANTING EME’S RECONSIDER ATION REQUEST WOULD SERVE THE GOALS OF EXECUTIVE ORDER 13,563 .........................................................15

V. CONCLUSION ................................................................................................................16Edisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

1 I. INTRODUCTION & OVERVIEW This petition is submitted pursuant to s ection 307(d)(7)(B) of the Clean Air Act (“CAA”). 1 Edison Mission Energy and its subsidiari es Midwest Generation EME, LLC and EME Homer City Generation, LP (collectively “EME”) respectfully request that EPA reconsider and revise one aspect of the fina l “Standards of Performance fo r New Stationary Sources and Emission Guidelines for Existing Sources: Comme rcial and Industrial Solid Waste Incineration Units” 76 Fed. Reg. 15,608 (Mar. 21, 2011) (“CISWI Rule”). EPA should exercise its de
minimis authority to allow combustion in onsite bo ilers for materials generated in the normal course of boiler operations that do not significantly affect the level of contaminants emitted from the plant, without triggering the definition of “solid waste incineration unit” under Sec. 129 of the CAA. This petition also forms the basis fo r EME’s Petition for Review of the CISWI Rule, filed May 20, 2011, in the U.S. Court of Appeals for the District of Columbia Circuit. A copy of the Petition for Review is enclosed for your conv enience. Given the important issues raised by this petition, EME would welcom e an opportunity to di scuss with EPA an appropriate schedule and process for reconsideration, as well as poten tial settlement of its Petition for Review. EME, through its subsidiaries and affiliates, is an independent power producer engaged in the business of developing, acquiri ng, owning or leasing, capacity to generate and sell electricity into the wholesale energy market. 2 EME owns or operates 39 opera ting assets that provide a total net generation capacity of approximately 10,979 megawatts (“MW”) , including 7,133 MW of coal-fired generation in Illinois, Pennsylvania and We st Virginia, 1,934 MW of gasfired generation in California, 305 MW of oil-fi red generation in Illinois, and more than 1,800 MW of wind power from various projects throu ghout the country (making it one of the largest wind power generators in the United States). EME currently has five wind power projects under construction that will eventually provide an additional 630 MW of net generating capacity. EME’s largest electricity generating assets cons ist of one coal-fired power plant in western Pennsylvania and six coal-fired power plants in I llinois. EME also is a part owner and is the

1 42 U.S.C. § 7607(d)(7)(B). 2 EME is part of the Edison International family of companies. Based in Rosemead, California, Edison International is the parent company of Southern California Edison, EME, Edison Capital, Edison Enterprises and Edison O&M Services.Edisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

2 operator of the American Bituminous Grant Town Power Plant, a coal refuse-fired electric generation facility located in West Virginia with a combined output of 80 MW from two circulating fluidized bed boilers. The combined facilities can generate en ough electricity to meet the needs of more than eight million homes.
Under the CAA Section 129, 42 U.S.C. Section 7429, facilities combusting materials that are determined to be non-hazardous solid wast e under the Resource Conservation and Recovery Act (“RCRA”) are regulated as incinerators and required to meet the emissions standards under Section 129 of the CAA. EPA ha d originally attempted to exem pt energy recovery facilities from this requirement, but that a pproach was found to be invalid in NRDC v. EPA , 489 F. 3d 1250 (D.C. Cir. 2007). In response to the NRDCdecision, EPA promulgated a definition of nonhazardous solid waste under RCRA, which would be used to determine which facilities are classified as boilers and which are classified as incinerators. EP A released the new NonHazardous Secondary Materials Rule (“Solid Waste Rule”), 76 Fed. Reg. 15,456, along with the CISWI Rule and major source boiler standards (76 Fed. Reg. 15,608). All of these rules were published in the Federal Re gister on March 21, 2011. EME requests in this petition that EPA clarify that burning de minimis amounts of nonhazardous boiler cleaning wastes and other trad itional byproducts of boiler operation (such as water treatment resins) does not transform a boile r into an incinerator, even if the byproducts have a low heat value. EPA has sufficient de minimis authority to prevent applications of the law which would have trifling benefits at extremely high cost. Additionally, reconsider ing the CISWI Rule in the manner we seek will promote the principles of the recent regulatory Executive Or der 13563, which was issued shortly before the final rules were signed. EPA should use the reconsideration of th e CISWI Rule as an opportunity to apply the principles of the Ex ecutive Order. Specifically, EPA should allow regulatory flexibility in continuing existing utility practices by allowing de minimis exemptions from the definition of “solid waste incinera tor unit” under the CAA. EME had originally submitted a request that EPA exercise its de minimis authority under RCRA in its comments to the proposed Solid Waste Rule; however EPA failed to address EME’s request in the final Solid Waste Rule. EME has submitted a request to re consider the exemption under RCRA, but is alsoEdisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

3 submitting this request under the CAA for completeness. EPA’s authority to grant de minimis exemptions under the CAA is supported by signifi cant case law, and should be exercised here.

II. EXECUTIVE SUMMARY EME supports EPA’s general goal of reducing risks to human health and the environment from emissions from combustion facilities; however it believes that regulation of the combustion of secondary materials under S ection 129 of the CAA should be carefully applied so as to encourage the safe reuse of materials that were previously used for different purposes, and in a flexible manner that does not impose unnecessary regulatory burdens in exchange for trivial benefits. EME respectfully reque sts that EPA use its inherent de minimis authority to exempt boilers combusting small amounts of materials gene rated in the normal course of boiler operation from treatment as an incinerator when the materials are generated and combusted onsite. Combustion of these materials does not appreciably impact contaminant emissions, but the economic and environmental costs of a lternative disposal are significant.

 EPA granted a de minimis exemption in the related regulations under the RCRA Solid Waste definitions rule for contaminants in construction and demolition debris, and should do so under Section 129 of the CAA fo r boilers combusting materials generated in the course of normal boiler operation.

o EPA has a long history of de minimis authority, and courts have allowed the exercise of that authority under statutory language analogous to that in the solid waste incineration unit defi nition under CAA Section 129 . EPA is not required to apply the “literal terms of a statute to ma ndate pointless expenditures of effort.” Instead EPA should use its de minimis authority when the burden of the regulation would produce minimal or no benefit to the pub lic. EPA can use its authority as long as the purpose of the statute is not frustrat ed, or it is prohibited by an extraordinarily inflexible statute, neither of which is the case under Sect ion 129 of the CAA.

o A de minimis exemption from treatment as an in cinerator for boilers combusting materials generated in the course of normal boiler operations that do not appreciably increase emissions would fi t squarely within the scope of EPA’s de minimis authority. The recorded impacts of combus tion of boiler cleaning wastesEdisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

4 are less than that caused by the normal va riations in the coal stream. Although NRDC v. EPA rejected EPA’s position that energy reco very facilities should be regulated under Boiler MACT (rather than CISWI) even if they burned solid wastes, that decision is not controlling as to EPA’s ab ility to exempt these small amounts of secondary materials with tr ivial to no emissions imp acts from rendering a boiler subject to CISWI. EME estimates that altern ate, off-site disposal costs for each boiler clean that it undertakes would be up to $1 million. That expense would provide no appreciable emissions reduction, and would further tax limited disposal resources, generate additional emissions from transportation, and increase safety hazards during transport.

o While broad, the definition of solid waste incineration unit is not so restrictive as to prevent a de minimis exemption, and is similar to the provisions for which courts have allowed such exemptions under the CAA and CERCLA. Courts have held that de minimis authority was not restrict ed by language such as “any modification” or “any hazardous waste.” The purpose of the statute must not be frustrated, but that would not be the case for materials whose emissions increases are not appreciable.

 The exercise of EPA’s de minimis authority requested by EME would serve to further the goals of Executive Order 13653. By eliminating costs of approximately $50 million annually industry-wide, without reducing benefits, this flexibili ty from application of EPA’s de minimis authority could help increase the costs to benefits ratio of this expensive rule. By granting flexibility in dealing with these s econdary materials, EPA can not only reduce the regulatory burden on EME and similarly situated companies, but also preserve the disposal options and capacity available for other uses.

EME notes with approval EPA’ s decision to reconsider and stay the CISWI rule and the related rule for boilers. However, the interactio n with the Solid Waste Rule is an area which should also be addressed in th e reconsideration process, as the Solid Waste Rule governs whether a facility could fall under CISWI or an alternate section of the CAA, including the existing boiler and forthcoming utility MACT st andards. EME requests that EPA include theEdisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

5 issue of secondary materials in its reconsideration of the CISWI rule, particularly the de minimis issue raised in this petition. As EME outlines in more detail below, EPA should reconsider the Solid Waste Rule to incorporate greater flexibili ty and reduce regulatory burdens in ways that will advance the central purpose of the statutes at hand.

III. EPA SHOULD ALLOW A DE MINIMIS EXEMPTION FROM TREATMENT AS AN INCINERATOR FOR UNITS BURN ING MATERIALS GENERATED IN THE NORMAL COURSE OF BOILER OPERATION EPA has a long history of de minimis authority under the CAA, with the seminal case being Alabama Power Co. v. Costle

. 3 In Alabama Power the court held that the EPA has inherent de minimis authority to exempt small sources from all but the most rigidly prescribed statutes as long as the legislative intent of the st atute is not frustrated. The D.C. Circuit expressly stated that: It is commonplace . . . that the law does not concern itself with trifling matters, and this principl e has often found application in the administrative context. Courts should be reluctant to apply the literal terms of a statute to mandate pointless expenditure of effort . . . . The ability, which we describe here, to exempt de minimis situations from a statutor y command is not an ability to depart from the statute, but ra ther a tool to be used in implementing the legislative design. 4
This authority has been applied by EPA and uphe ld by the courts in a variety of different circumstances. Similar to the examples descri bed below, EPA has the inherent authority under CAA Section 129 to limit the applic ation of the incinerator standa rds in situations where the intent of the statute would not be frustrated, and imposing th e regulation would produce no or trivial benefits. 5 It should do so here with respect to boiler cleaning wastes, water treatment residues, and other minor const ituents generated in the normal course of boiler operations.

3 636 F.2d 323 (D.C. Cir. 1979).

4 Id. at 360 (emphasis added).

5 On the Senate floor prior to the vote to approve the CAA amendments including the CISWI provisions, Senator Baucus indicated that EPA was granted significant discretion in implementing the standards, andEdisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

6 A. EPA’s Frequent Application Of Its De Minimis Authority Has Withstood Judicial Challenge 1. De Minimis Exemptions In EP A’s Transportation Conformity Regulations

In Environmental Def. Fund, Inc., v. EPA (“ EDF ”), 82 F.3d 451 (D.C. Cir. 1996), the Court set forth the existing de minimis standard: As long as the Congress has not been extraordinarily rigid in drafting the statute . . . there is lik ely a basis for an implication of de minimis authority to provide an exemption when the burdens of regulation yield a gain of trivial or no value

. Id . at 466 (quotations omitted and emphasis added). In EDF , the D.C. Circuit upheld EPA’s transportation conformity regulations promulgated under CAA Section 176. 6 CAA Section 176(c)(1) contains a broad prohibition against any “d epartment, agency, or instrumentality of the Federal Government . . . support[ing] in any way ” or engaging in “ any activity which does not conform to an implementation plan after it has been approved or promulgated[.]” 7 Notwithstanding this prohibition, EPA’s transpor tation conformity regulations presumptively exempted federal actions that resulted in emissi ons below certain tonnage thresholds, as well as certain other categories of gove rnment action, because the emissions increases they produced were presumed to be de minimis

. 8 EDF argued that these exemp tions violated CAA § 176(c)(1), which (according to EDF) demonstrated congre ssional intent that the general conformity requirement should apply to every activity of the federal governme nt, however minor a source of emissions. The D.C. Circuit rejected this challenge because EPA’s de minimis exemption did not hinder the accomplishment of the CAA’s goals: [I]t seems eminently reasonable for th e EPA to interpret this provision to refer to ‘any activity’ that is likely to interfere with the attainment goals in

noted that the amendments recognize that some in cinerators should not be regulated at all. See 136 Cong. Rec. 6402 (1990) (statement of Sen. Baucus).

6 See 82 F.2d at 469.

7 CAA § 176(c)(1), 42 U.S.C. § 7506(c)(1) ( emphasis added ).

8 Id . at 465.Edisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

7 a SIP – that is, to major federal actions and to lesser actions that could still produce a regionally significan t level of emissions . . . we find nothing in the statute to preclude the EPA’s iden tification of cate gories of federal action that would produce either no or a trivial level of emissions .”

Id. at 466-67 (emphasis added). Similarly an exercise of de minimis authority here for the combustion of boiler cleaning wastes and other mate rials, such as water treatment resins, with minimal impact on emissions levels w ould not be precluded by the statute.

2. Exemption Of De Minimis Sources Of PM 10 Under A Federal Implementation Plan

In Ober v. Whitman, 243 F.3d 1190 (9th Cir. 2001), th e Ninth Circuit upheld EPA’s authority to exempt de minimis sources of PM 10 from control requirements under a federal implementation plan against a challenge that do ing so was “arbitrary and capricious.” The Court acknowledged that the CAA makes no explicit provision for a de minimis exception, but it nonetheless upheld EPA’s de minimis authority because: “There is no explicit provision in the Clean Air Act prohibiting the exemption from controls for de minimis sources of PM-10 pollution. Nor is the statutory language uncompromisingly rigid .” 9
The Court’s reasoning is applicable to the CI SWI context. No explicit provision of CAA Section 129 prohibits a de minimis exemption, and, as discussed below, the statutory language of CAA Section 129 is not “uncompromisingly rigid.”

3. De Minimis Exceptions from Ne w Source Review for Routine Maintenance, Repair and Replacement Following the reasoning of the Alabama Power decision, the D.C. Circuit recognized the continued validity of EPA’s de minimis authority in 2006 in New York v. EPA , although the case was decided on other grounds. 10 EPA did not attempt to include its change in policy, the Equipment Replacement Provision (“ERP”), under de minimis authority, instead arguing that the

9 Id . at 1194 (emphasis added).

10 See New York v. EPA , 443 F.3d 880 883-84 (D.C. Cir. 2006).Edisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

8 statutory term “ any physical change” was ambiguous. 11 Despite the use of the word “any,” the court noted the long history of EPA properly applying its de minimis authority beginning with Alabama Power , provided that the intent of the statute is not frus trated: “[r]eliance on the de
minimis doctrine invokes congressional in tent that agencies diverge from the plain meaning of a statue only so far as is necessary to avoid its futile application.” 12 The final decision rested on emissions increases that the c ourt found were significant, and although not evaluated under the de minimis standard, the court indica tes that they would have exceeded its boundaries. The exemption EME requests from the CISWI rule ap plication, by contrast, would not have any significant impact on emissions, resu lting in statistically insignificant variations when compared to the baseline variation within the fuel stream. 13

4. De Minimis Exemption From CERCLA Requirements On The Basis Of No Appreciable Health Risk

De minimis exemptions have been applied – and uphe ld – in other environmental statutes as well. In Ohio v. EPA , the D.C. Circuit upheld EPA’s de minimis authority to exempt remediated hazardous waste sites that posed no appreciable health risk from a CERCLA requirement to review all re mediated sites periodically. 14 CERCLA provides that, “[i]f the President selects a remedial action that results in any hazardous substances ... remaining at the site, the President shall review such remedial action no less often than each 5 years after the initiation of such remedial action [.]” 15 EPA interpreted this provi sion to require review only when remedial action “results in ha zardous substances . . . remaining at the site above levels that allow for unlimited use and unrestricted exposure. ” Notably, EPA exempted sites from review “when the initial remedial action renders the site safe, under the standard prevailing at the time of the determination,” notwithstanding the potential for the continued presence of “ any hazardous substances.” 16

11 Id. at 888-89 (emphasis added).

12 Id. at 888.

13 See E LECTRIC P OWER R ESEARCH I NSTITUTE , B OILER C HEMICAL C LEANING W ASTE M ANAGEMENT M ANUAL 3-6 (1992).

14 See Ohio v. EPA, 997 F.2d 1520, 1535 (D.C. Cir. 1993).

15 42 U.S.C. § 9621(c) (emphasis added).

16 Ohio at 1534 (emphasis added).Edisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

9 The D.C. Circuit upheld EPA’s implementation of the review provision, finding that the provision allowed the Agency to avoid having to undertake continuing re gulatory action in the absence of risk: The legislative design is not bei ng flouted by EPA’s reading of the five-year review provision because the statutory command is not so clear as to rule ou t EPA’s application of a de minimis exception . . . . The literal meaning of a st atute need not be followed where the precise terms lead to absurd or futile results, or where failure to allow a de minimis exception is contrary to the primary legislative goal . . . . EPA’s interpretation, which requires review only where a hazardous substance is present in an amount appreciable enough to present some possibili ty of harm, squares with the health-protective pur pose of the statute . To go beyond that is to adjudge Congress incompetent to fashion a rational legislative design. 17
In the case of Section 129, an interpretati on requiring treatment as an incinerator only where wastes are combusted in amounts apprecia ble enough to create a significant increase in emissions is squarely within the purpose of the CAA.
On the whole, Courts have found broad aut hority for EPA to exempt minor sources of emissions when a strict legal application would provide little or no benefit. Given the limited emissions impacts from combusting materials genera ted in the regular oper ation of the boiler, EPA’s de minimis authority allows it to exempt units combusting those materials from application of Section 129.

B. EPA Allows Similar De Minimis Exemptions Under the Solid Waste Rule and Other Rules Under RCRA EPA already uses its de minimis authority under RCRA, and, i ndeed, has applied it in the Solid Waste Rule. EPA allows a de minimis exemption for contaminants, including paper,

17 Id. at 1534-35 (emphasis added).Edisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

10 insulation and other items which may be included in construction wastes demolition derived wood (“C&D wood”):

C&D-derived wood can contain de minimis amounts of contaminants and other materials provided it meets the legitimacy criterion for contaminant levels. 18
EPA has also applied its de minimis authority under RCRA in the hazardous waste context, allowing listed wastes to be discharged to a wa stewater treatment facility as long as the total concentration of the chemicals does not exceed a certain threshold. 19 EPA allows similar exemptions from characterization as solid wast es for condensates derived from overhead gases from kraft mill steam strippers that are used to comply with 40 C.F.R. § 63.446(e) where the exemption applies only to combustion at the mill generating the condensates, 40 C.F.R. § 262.4(a)(16), or pulping liquors that are reclaimed in a pulping liquor recovery furnace and then reused in the pulping process, 40 C.F.R. § 261.4(a )(6). One of the requirements under 40 C.F.R. § 63.446(e) is for the condensate to be treated so it is either mana ged in specified equipment or in a manner that ensures the HAPs are destroyed to specified levels. Similar requirements could be used in a de minimis exemption under Section 129, limiting any exemption to onsite materials that do not significantly impact emissions.

C. An Exemption for Materials Generated in the Course of Normal Boiler Operations Would Fit Squarely Wi thin the Scope of EPA’s De Minimis Authority 1. The Emissions Impacts of an Exemption Would Be Trivial Combusting and evaporating boiler cleaning wast es and other materials generated in the course of normal boiler operations is standard pr actice, and currently pa rt of most electrical generating units’ air permits in North America. 20 Allowing this practice to continue would not increase emissions. Further, without a de minimis exemption, to maintain their status as generators, not incinerators, generating unit opera tors would be required to transport cleaning wastes and other materials to an offsite dispos al site, incurring additional expenses, generating

18 See Solid Waste Rule at 15,487.

19 See 40 C.F.R. 261.3 (a)(2)(iv)(F) and (G).

20 See E LECTRIC P OWER R ESEARCH I NSTITUTE , G UIDELINES FOR C HEMICAL C LEANING OF C ONVENTIONAL F OSSIL P LANT E QUIPMENT , 9-4 (2001).Edisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

11 more emissions in the process, creating potential safety issues associated with transportation of materials, and disposing of the wastes without necessarily destroying them.

There is little to no environmental benefit to requiring alternate dis posal of materials in control of the generato r that have only a de minimis impact on emissions. The emissions impact from evaporating boiler cl eaning materials, for example, is comparatively small and the resulting total variation in emission of pollutants from th eir combustion would likely be similar to that from normal variation resulting from differences in coal composition. 21 Emissions tests of the electrostatic precipitator outlet flue gas conducted by the Electric Power Research Institute (“EPRI”) during evaporation of boiler cleaning wastes showed no statistically significant increases in metal concentrations over baseline data. In addi tion, the concentrations of NOx, HCl, and HF present in the flue gas were also not statistically affected. 22 In monitoring studies conducted by EPRI on evaporation of boiler cleani ng wastes in utility boilers, chromium levels in the stack gas were 0.076 lb/hr at ba seline vs. 0.080 lb/hr during evaporation. 23 Chromium is the metal typically of the highest concentration in boiler cleaning wastes and the boiler cleaning wastes are tested prior to combus tion to ensure the concentrations are below the hazardous level. Results for other metals, PM, and tr ace organics were similarly low. 24

Water treatment resins are used to deminera lize boiler feed water. Like home water softeners, utility-scale water treatment resins ar e used to remove minerals and other compounds that would lead to scaling a nd clogging of boiler equipment. Although resins can be reused multiple times, they eventually become spent a nd can no longer effectively cycle to capture minerals and release them, at which point they must be repl aced. Resins typically have significant fuel value, and are relatively low in c ontaminants, as they are repeatedly flushed to remove mineral contents. Furt her, any contaminants they co ntain would be from the water supply, not the fuel supply, and thus with lim ited potential for hazardous materials to be included.

21 See E LECTRIC P OWER R ESEARCH I NSTITUTE , B OILER C HEMICAL C LEANING W ASTE M ANAGEMENT M ANUAL 3-6 (1992).

22 Id. at 8-15.

23 Id. at 8-16.

24 Id.Edisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

12 Indeed, boiler cleaning wastes and other non- hazardous materials have routinely been allowed to be evaporated in onsite utility bo ilers because they do not appreciably increase emissions and thus pose minimal risk to the en vironment. As an example, EME provides the following permit condition, included in its Illinois facility ai r operating permits: The permittee is allowed to burn bo iler cleaning wastes only when the boiler is in a normal mode of operation and generating no less than 105 megawatts (gross). Burnin g of boiler cleaning wastes is not allowed during startup, shut down, malfunction or breakdown. 25
Operating information submitted by the generating st ation to obtain the permit indicates that to ensure steady boiler operations, the maximum boiler cleaning waste feed rate to the boilers is up to 200 gpm depending on the size of the unit. 26
With respect to the volumes of onsite generated materials su ch as boiler cleaning wastes that would be evaporated in the boilers, EME’s experience is that the waste volumes range from approximately 250 to 1835 tons per boiler per boiler cleani ng event, but would only be fed to the boiler at a rate of up to 0.8 tons per minute. 27 This contrasts with a total amount of coal burned on average in each boiler of between 1,420 a nd 8,220 tons per day. The boiler cleaning frequency can vary from every two to ten year s, depending on the type of boiler and the coal burned. Other materials generated include resins from water treat ment; however, those materials are even more limited in amounts than the boi ler cleaning wastes. Regardless, the annual amount of boiler cleaning wastes generated for ea ch individual boiler is relatively small – a mere fraction of a percent on an annual basis – even assuming boilers are cleaned every year, which they are not. The application of de minimis authority where emissions impacts are trivial is consistent with how courts have addressed the authority in the context of similar situations. As in EDF , here a de minimis exemption for materials generated in the normal course of boiler operation

25 EME’s IL station permits all include the same langua ge, but this was taken from Crawford Unit 7’s permit. Crawford Unit 7, Crawford Electric Generating Station, Operating Permit, Special Condition 14 (June 25, 2001).

26 Id.

27 Assuming boiler cleaning wastes have the same density as water.Edisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

13 would have minimal or no impact on the level of emissions. Since this does not affect the purpose of the CAA, i.e. reducing emissions, al lowing such an exemption would be a proper exercise of EPA’s de minimis authority.

2. NRDC V. EPA Does Not Address EPA’s De Minimis Authority. Although NRDC v. EPA rejected EPA’s position that ener gy recovery fac ilities should be regulated under Boiler MACT (ra ther than CISWI) even if they burned solid wastes, that decision is not controlling as to EPA’s ability to exempt these small amounts of secondary materials with trivial to no emissions impacts from rendering a boiler subject to CISWI. NRDC v. EPA did not address a de minimis argument, but was instead dealing with a significant regulatory interpretation exempting all energy re covery facilities from Section 129 of the CAA. 28 The court found that EPA’s interpretation of the unambiguous statut e was invalid under Chevron Step 1. 29 Although the court in NRDC found the term “any” in th e “solid waste incineration unit” definition to be instructive to invalidate EPA’s interpretation exempting all generators of electricity from the Section 129 rules, no matter how much waste they burned, as noted above in numerous statutory and regul atory contexts, the term “a ny” does not restrict EPA’s de minimis authority. 30 This is the same conclusion that the court reached in New York v. EPA , where the court overturned EPA’s statutory interpretation as a violation of an unambiguous statute, but upheld EPA’s de minimis authority. 31

3. Requiring Application of Section 129 to De Minimis Amounts of Secondary Materials Would Be a Mandate of Pointless Expenditure

While the volumes of solvents are minuscule compared to the overall volume of fuel burned, the costs of the disposal for a boiler cl eaning event can exceed $1 million per event in EME’s experience, and as a result the costs to the industry may exceed $50 million per year. The amounts generated that would require offs ite disposal are estimated at 125,100 tons per

year. 32 This compares to annual coal burned of over 1 trillion tons per year. EME questions

28 See NRDC v. EPA , 489 F. 3d 1250 1257-60 (D.C. Cir. 2007).

29 Id. at 1257-58.

30 See id.

31 See New York v. EPA , 443 F.3d 880 883-84 (D.C. Cir. 2006).

32 Again assuming the density of boiler cleaning wastes is identical to water.Edisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

14 whether there is sufficient treatment capacity for this volume of material, which EPA may not have considered because the volumes and frequency of occurrence per facility are relatively low. As in Alabama Power , the flexibility to prevent these kinds of needless expenditures and unnecessary burdens are exactly the reasons that the courts originally applied de minimis exemptions. Given the trivial impact on emissions, the environmental and economic costs generated by treating generators as incinerators because of common utility practice is simply not justified. EME requests that EPA apply its de minimis authority to prevent this unnecessary regulatory burden.

4. The Text of Section 129 of the Clea n Air Act is Not “Uncompromisingly Rigid” In Section 129, the key term fo r application of the incinerato r standards is the definition of “solid waste incineration unit”: “a distinct operating unit of any f acility which combusts any solid waste material from commercial or industrial establishments or the general public (including single and multiple residences, hotels, and motels).” 33
While clearly broad, the definition is not so restrictive as to prevent a de minimis exemption, and is similar to the provisions for which courts have allowed exemptions under the CAA and CERCLA. Specifically, in New York v. EPA , the court recognized EPA’s inherent de minimis authority notwithstanding the language “ any modification.” 34 The D.C. Circuit in EDF also allowed an exemption from the broad “ any activity which does not conform to an implementation plan after it has been approved or promulgated” when increases in emissions were trivial. 35 Finally, in Ohio v. EPA , the court upheld EPA’s de minimis authority to only monitor sites with minimal contamination de spite the language of CERCLA that required monitoring of any sites with “ any hazardous substances.” 36

33 CAA § 129 (g)(1) (portions omitted).

34 See New York v. EPA , 443 F.3d 880 883-84 (D.C. Cir. 2006) (decided on other grounds) (emphasis added).

35 See Environmental Def. Fund, Inc., v. EPA (“ EDF ”), 82 F.3d 451 (D.C. Cir. 1996)(quoting CAA § 176(c)(1), 42 U.S.C. § 7506(c)(1)) (emphasis added).

36 See Ohio v. EPA, 997 F.2d 1520, 1535 (D.C. Cir. 1993) (emphasis added).Edisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

15 The definition also includes several more ge neral exemptions, such as for air curtain incinerators burning solely wood and yard wa stes, qualifying cogenera tion facilities, and materials recovery facilities, further supporti ng a conclusion that Congress did not intend an “uncompromisingly rigid” application of the provision. 37 Rather, the intent of the section overall is to protect public health by limiting emissions , by means of numerical limits on particular facilities. 38 Applying EPA’s de minimis authority will not frustrate, and has the potential to further, the goals of the st atute. EME respectfully requests that EPA do so here.

IV. GRANTING EME’S RECONSIDERATIO N REQUEST WOULD SERVE THE GOALS OF EXECUTIVE ORDER 13,563
President Obama’s Executive Order 13563, “Improving Regulation and Regulatory Review,” 76 Fed. Reg. 3821 (Jan. 18, 2011), reaffirms and expands upon Executive Order 12866, “Regulatory Planning and Review,” 58 Fe d. Reg. 51,735 (Sept. 30, 1993). In the new Executive Order, President Obama ordered federal agencies to take several actions to improve the federal regulatory system. Among these, agencies must:

 “propose or adopt a regulation only upon a reasoned determ ination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify),”

 “use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible,”

 “tailor its regulations to impos e the least burden on society ...,”

 “identify and consider regul atory approaches that re duce burdens and maintain flexibility and freedom of choice for the public,” and

 “consider how best to promote retrosp ective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them ....” Exec. Order 13563, 76 Fed. Reg. at 3821-22.

37 Id.

38 See CAA § 129 (a)(3) (directing the Administrator to set standards protective of the public health and the environment).Edisson Mission Energy Petition for Reconsideration on EPA’s CISWI Rule

16 In responding to this Executive Order, EPA focused its request for comments on the final bullet point above addressing the “retrospec tive analysis” of ex isting regulations. See 76 Fed. Reg. 9988. EME submitted comments addressing the CISWI Rule to EPA’s review docket requesting retrospective analysis an d revision. The exercise of EPA’s de minimis authority requested by EME would serve to further the goal s of the executive order in numerous ways. First, the costs of treating generato rs as incinerators as a result of de minimis amounts of secondary materials far outweigh the benefits to the public of such treatment. EME estimates that each boiler clean would generate up to $1 million in disposal costs, for an estimated $50 million in annual disposal costs throughout the industry. The emissions impacts are minimal, and less than that caused by regular variation in the coal fuel stream. 39 By eliminating costs of approximately $50 million annually, without reduci ng benefits, this flexibility could help increase the costs to benefits ratio of this expensive rule.
Second, a de minimis exemption for the on-site combus tion of boiler cleaning wastes and other materials generated in the course of norma l boiler operation, such as water treatment resins, would “tailor[ the] regulations to impose the least burden.” By granting flexibility in dealing with these secondary materials, EPA can also preserve the disposal options and capacity available for other uses. As disc ussed above, exemption of these ma terials is square ly within the courts’ traditional interpretation of EPA’s de minimis authority, which is further buttressed by the Executive Order. As a result, EME requests that EPA should apply it s regulatory flexibility and grant a de minimis exception here.

V. CONCLUSION Consistent with the cases upholding EPA’s de minimis authority, and the reasons discussed above, EME respectfully requests that EPA reconsider the CISWI Rule and exercise its authority here to prevent the unnecessary expense of regulating electric gene rators as incinerators for combusting on-site materials generated in the course of normal boiler operations.

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39 See E LECTRIC P OWER R ESEARCH I NSTITUTE , B OILER C HEMICAL C LEANING W ASTE M ANAGEMENT M ANUAL 3-6 (1992).