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May 6, 2011



### Via E-Mail and First-Class Mail and Electronic Submission to www.regulations.gov The Honorable LisaP. Jackson Administrator U.S. Environmental Protection Agency Ariel Rios Building 1200 Pennsylvania Avenue Washington, DC 20460 HUNTON & WILLIAMS LLP 1900 K STREET, N.W. WASHINGTON. D.C. 20()06·IIO'l

TEL 202' 955 • 1500 FAX 202'778·2201

LEE B. ZEUGIN DIRECT DIAL: 202 ''l55 • 1535 EMAIL: Izeugin@hunton.coll1 FILE :--.10: 31531.23000I



### Re: Request ofthe Utility Air Regulatory Group for Re-proposal or, in the Alternative, an Extension ofthe Public CommentPeriod ofthe "National Emission Standardsfor Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards ofPerformance for FossilFuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units; Proposed Rule," DocketNo. EPA-HQ-OAR-2011-0044
Dear AdministratorJackson: The Utility Air Regulatory Group ("UARG")I intends to file comments in the abovereferenced rulemaking docket on EPA's proposed national emission standards for hazardous airpollutant ("HAP") emissions from coal- and oil-fired electric utility steam generating units ("EGUs") as published on May 3, 2011 (the "EGUMACTRule"). 76 Fed. Reg. 24,976. EPA provided a 60-daypublic commentperiod on the proposed rule, requiring comments to be submitted by July 5,2011. As discussed below, UARG is requesting that EPA withdraw the rule and re-propose itbecause critical parts ofthat proposed rule are based upon numerous and significanterrors in EPA's technical analyses ofHAP emissions data, including

-- but not
IUARG is a voluntary, not-for-profit group ofelectric utilities, otherelectric generating companies, and national trade associations. UARG'spurpose is to participate on behalfofits members collectivelyin EPA's rulemakings underthe Clean AirAct and other proceedings that affect the interests ofelectric generators and in related litigation.

ATLA:--.ITA AUSTIN BANGKOK BEIJING BRUSSELS CHARLOTTE DALLAS HOUSTON LONDON LOS ANGELES McLEAN MIAMI NEW YORK NORFOLK RALEIGH RICHMOND SAN FRANCISCO WASHINGTON www.hunton.comMay 6, 2011 Page 2 limited to

-- a widespread errorinvolving EPA's proposed new and existing source MACT limits for mercury. Alternatively, ifEPA believes that all such errors can be identified and addressed within the next 60 days, then UARG asks that the public comment period be extended byan additional 60 days beyond the time that significanterrors are addressed

-- i.e., to September6, 2011

-- to allow interested parties time to provide meaningful comments on this lengthy and important proposal. 

### Background The EGUMACTRule is one ofthe most far-reaching and expensive rules EPA has ever proposed under the Clean Air Act. In preparing for this rulemaking, EPA issued an information collection request ("ICR") ofunprecedented size and scope for any § 112 rulemaking. All EGUs were asked to provide extensive historic information on HAP emissions and many units were also required to conduct more than $100 million ofstack sampling for emissions ofHAPs and possible HAP surrogates. The proposal that EPAjust published in the Federal Register is 171 pages long and includes new MACTand NSPS limits and compliance requirements for coal- and oil-fired EGUs as well as an extensive new interpretation andjustification for EPA's regulatory finding under § 112(n)(1)(A). Also part ofthe rulemaking docket

-- and containing information on which UARG must comment

-- are 19 technical support documents and a more than SOO-page Regulatory ImpactAnalysis.
In previously filed comments, UARG expressed serious concerns that EPA was giving itself inadequate time to review and analyze this large body ofinformation. UARG also worried that the rulemaking schedule would unfairly truncate interested parties' time to comment on the proposed rule. UARG concerns have been provenjustifiedby the proposed rule. 

### Critical and Widespread Errors in the Proposal
In the limited time that UARG has had to review the extensive amounts ofinformation in the rulemaking docket, UARG has identified several errors that warrant withdrawal ofthe current proposal, re-analysis ofthe data, and re-proposal once the errors have been addressed. The following is a summary ofthe most egregious errors that UARG has identified to date. Further analysis is likely to uncoverothererrors as well. The most widespread errorUARG has found thus far concerns the proposedMACT standards for mercury -- the pollutant long-cited byEPA as being the HAP ofthe greatest health concern. Those proposed standards are fatally flawed because ofan errorEPA used to convert historical emissions data to common emission units. Specifically, the conversion factor EPA used to convert measurements reported in terms ofIb/GWh to Ib/MWh is incorrect by a factor of 1000. As a result, the emissions ofthe unit chosen as the single best

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May 6,2011 Page 3 performing mercury source are actually 1000 times higher than those EPA assumed in setting the new source MACTlimit for mercury. This conversion error also pervades EPA's mercury MACTfloor analysis for existing units. At least halfofthe 40 units identified as "best performing" have actual emissions 1000 times higherthan EPA used in its MACTfloor analysis. Furthermore, the conversion error draws into question EPA's decision to base its mercuryMACTfloor calculations on 40units (the top 12% ofall units for whichEPAhas data) instead of 130 (the top 12% ofall units in the category). UARGbelieves that had EPA done the mercuryMACT floor analysis correctly it would have concluded that the plants sampled during the Part III ofthe ICR were, in fact, the best performing units for mercury emissions. Parties interested in commenting on the proposed mercury MACT limits face an impossible task because the proposed mercury standards are obviously wrong and parties have no way of knowing what standards EPA would have proposed had it used the emissions information correctly. Indeed, this errormeans that EPA's rulemaking proposal failed to comply with the rulemaking requirements of § 307(d)(3) ofthe Clean Air Act. EPA's haste in issuing a proposedrule is also revealed in several otherMACTlimits. For example, EPA'sproposed mercury limit for existing units designed to burn coal >8,300 BTU/hris 1.0 Ib/l0 12 BTU or0.008Ib/GWh. Table 2 to Subpart UUUUU ofPart 63. The required heat rate to convert from the proposed input limit to the proposed output limit is 8,000 BTU/KWh, which is unrealistically low value for a coal-fired powerplant. Similarheat rate errors exist in MACTcalculations for all HAP groupings for IGCC, liquid oil and petroleum coke units. In addition, transcription errors, data assignment errors and a lack of outlierqualitycontrol are all present in the spreadsheets used by EPA to calculate the MACT floors. UARG is also concerned that significant errors were made in the risk calculations reported by EPA in an attempt to support its appropriate and necessary finding. EPA has onlyrecently made available information about some ofits modeling assumptions, so UARG has not yet been able to identify specific errors. ReliefRequested The above-listed errors alone should promptEPA to withdraw its proposed rule, redo its analyses, and re-propose corrected MACTlimits. UARG requests that EPA dojustthat.
Even ifsuchpervasiveerrors did not exist, however, a longer comment period would be warranted by the length and complexityofEPA's published rulemaking proposal. As noted above, the proposal is 171 pages long and includes new MACTand NSPS limits andMay 6,2011 Page4 compliance requirements for coal- and oil-fired EGUs and an extensive new interpretation andjustificationfor EPA's regulatory finding under § 112(n)(1)(A). But the lengthyproposal is not all that UARG and otherinterested parties mustreview and understand in orderto prepare meaningful comments. EPAhas placed 19 technical support documents and a more than SOO-page Regulatory Impact Analysis in the rulemaking docket. In addition, UARG plans to conduct its own review ofthe ICR data given the rushed review EPA appears to have given to these data. For all these reasons, more time is needed to prepare comments on the proposed rule.
In otherrecent rulemakings that have affected the utility industry, EPA has provided much longer commentperiods. Forexample, the commentperiod in the proposed Coal Combustion Residuals rule, which covered 138 Federal Register pages, was 120 days. The comment period in the § 3I6(b)rulemaking (114 Federal Register pages) is 90 days and the comment period on the industrial boilerMACTrule (67 Federal Registerpages) was 80 days. The fact that EPA is under a court-ordered schedule to promulgate this rule does not prevent the Agency from assuring its rule is factually correct and scientifically sound and that interested parties are given adequate time to prepare meaningful comments. Last year, UARG challenged the consent decree for the EGU MACTRule arguing that more time was needed to propose the rule and that at least four months should be provided for public comment. See Memorandum Opinion,AmericanNursesAssoc. v. Lisa Jackson, Civil Action No. 08-2198 (RMC) p. 2 (April 15,2010). WhileJudge Collyergranted EPA's Motion to EnterConsent Decree, she specifically noted: "The Court appreciates industry's concern that this schedule maybe too hasty for the critical and expensive regulatory decisions that will be made; however, the proposed Consent Decree allows for a change ofschedule ifneed be." Id. at 3. She further offered "[i]fthe science and analysis require more time, EPA can obtain it," id., and she added "[i]fEPA needs more time to get it right, it can seek more time." Id. at 4. EPA should take Judge Collyerup on her offer and seek more time to correct the proposed rule and to provide the public sufficient time to comment on this important rule. UARG therefore respectfullyrequests that EPA withdraw the proposed rule so it can correct the obvious errors in its proposed MACTfloors. Alternatively, ifEPAbelieves that all such errors can be identified and addressed within the next 60 days, then UARG asks that the public comment periodbeextended by an additional 60 days beyond the time that significant errors are addressed

-- i.e., to September6, 2011

-- to allow interestedparties time to provide meaningful comments on the revised limits and supporting analyses and upon the remainder ofthis lengthy and importantproposal. Thank you, in advance, for your consideration ofthis request. Please do not hesitate to contact me, orhave your staffcontactme, ifyou orthey would like to discuss this request.May 6, 2011 Page 5 UARG looks forward to hearing from you soon and participating in this important proceeding. Sincerely,

Counsel to the UtilityAirRegulatory Group

cc (via e-mail and first-class mail: Ms. GinaMcCarthy Assistant Administratorfor Air and Radiation U.S. Environmental Protection Agency 1200 PennsylvaniaAvenue, N.W. Mail Code: 6101A Washington, D.C. 20460 mccarthy.gina@epa.gov
Mr. WilliamMaxwell Energy Strategies Group SectorPolicies and Program Division (0234-01) Office ofAir Quality Planning and Standards U.S. Environmental Protection Agency Research Triangle Park, North Carolina 27711 maxwell.bill@epa.gov