HUNTONi',. 

WIlliAMS 

May 6, 2011 

Via E-Mail and First-Class Mail 

and Electronic Submission to www.regulations.gov 

The Honorable Lisa P. 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: 31531.23000 I 

Re: Request of the Utility Air Regulatory Group for Re-proposal or, in the 

Alternative, an Extension of the Public Comment Period of the "National 

Emission Standards for Hazardous Air Pollutants from Coal- and Oil-Fired 

Electric Utility Steam Generating Units and Standards of Performance for FossilFuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small 

Industrial-Commercial-Institutional Steam Generating Units; Proposed Rule," 

Docket No. EPA-HQ-OAR-2011-0044 

Dear Administrator Jackson: 

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 

air pollutant ("HAP") emissions from coal- and oil-fired electric utility steam generating units 

("EGUs") as published on May 3, 2011 (the "EGU MACT Rule"). 76 Fed. Reg. 24,976. 

EPA provided a 60-day public comment period 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 it because critical parts of that proposed rule are based upon numerous 

and significant errors in EPA's technical analyses of HAP emissions data, including -- but not 

I UARG is a voluntary, not-for-profit group of electric utilities, other electric 

generating companies, and national trade associations. UARG's purpose is to participate on 

behalf of its members collectively in EPA's rulemakings under the Clean Air Act and other 

proceedings that affect the interests of electric 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.com 
May 6, 2011 

Page 2 

limited to -- a widespread error involving EPA's proposed new and existing source MACT 

limits for mercury. Alternatively, if EPA 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 by an additional 60 days beyond the time that significant errors are addressed -- i.e., 

to September 6, 2011 -- to allow interested parties time to provide meaningful comments on 

this lengthy and important proposal. 

Background 

The EGU MACT Rule is one of the 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") of unprecedented 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 of stack 

sampling for emissions of HAPs and possible HAP surrogates. The proposal that EPA just 

published in the Federal Register is 171 pages long and includes new MACT and NSPS limits 

and compliance requirements for coal- and oil-fired EGUs as well as an extensive new 

interpretation and justification for EPA's regulatory finding under § 112(n)(1)(A). Also part 

of the rulemaking docket -- and containing information on which UARG must comment -- are 

19 technical support documents and a more than SOO-page Regulatory Impact Analysis. 

In previously filed comments, UARG expressed serious concerns that EPA was giving itself 

inadequate time to review and analyze this large body of information. UARG also worried 

that the rulemaking schedule would unfairly truncate interested parties' time to comment on 

the proposed rule. U ARG concerns have been proven justified by the proposed rule. 

Critical and Widespread Errors in the Proposal 

In the limited time that UARG has had to review the extensive amounts of information in the 

rulemaking docket, UARG has identified several errors that warrant withdrawal of the current 

proposal, re-analysis of the data, and re-proposal once the errors have been addressed. The 

following is a summary of the most egregious errors that UARG has identified to date. 

Further analysis is likely to uncover other errors as well. 

The most widespread error UARG has found thus far concerns the proposed MACT standards 

for mercury -- the pollutant long-cited by EPA as being the HAP of the greatest health 

concern. Those proposed standards are fatally flawed because of an error EPA used to 

convert historical emissions data to common emission units. Specifically, the conversion 

factor EPA used to convert measurements reported in terms of Ib/GWh to Ib/MWh is 

incorrect by a factor of 1000. As a result, the emissions of the unit chosen as the single best 
HUNTON 

WILUAMS 

May 6,2011 

Page 3 

performing mercury source are actually 1000 times higher than those EPA assumed in setting 

the new source MACT limit for mercury. This conversion error also pervades EPA's mercury 

MACT floor analysis for existing units. At least half of the 40 units identified as "best 

performing" have actual emissions 1000 times higher than EPA used in its MACT floor 

analysis. Furthermore, the conversion error draws into question EPA's decision to base its 

mercury MACT floor calculations on 40 units (the top 12% of all units for which EPA has 

data) instead of 130 (the top 12% of all units in the category). UARG believes that had EPA 

done the mercury MACT floor analysis correctly it would have concluded that the plants 

sampled during the Part III of the 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 error means that EPA's rulemaking proposal failed to comply with the 

rulemaking requirements of § 307(d)(3) of the Clean Air Act. 

EPA's haste in issuing a proposed rule is also revealed in several other MACT limits. For 

example, EPA's proposed mercury limit for existing units designed to burn coal >8,300 

BTU/hr is 1.0 Ib/l0 12 BTU or 0.008Ib/GWh. Table 2 to Subpart UUUUU of Part 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 power plant. Similar heat 

rate errors exist in MACT calculations for all HAP groupings for IGCC, liquid oil and 

petroleum coke units. In addition, transcription errors, data assignment errors and a lack of 

outlier quality control 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 only recently 

made available information about some of its modeling assumptions, so UARG has not yet 

been able to identify specific errors. 

Relief Requested 

The above-listed errors alone should prompt EPA to withdraw its proposed rule, redo its 

analyses, and re-propose corrected MACT limits. UARG requests that EPA do just that. 

Even if such pervasive errors did not exist, however, a longer comment period would be 

warranted by the length and complexity of EPA's published rulemaking proposal. As noted 

above, the proposal is 171 pages long and includes new MACT and NSPS limits and 
May 6,2011 

Page 4 

compliance requirements for coal- and oil-fired EGUs and an extensive new interpretation 

and justification for EPA's regulatory finding under § 112(n)(1 )(A). But the lengthy proposal 

is not all that UARG and other interested parties must review and understand in order to 

prepare meaningful comments. EPA has 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 of the 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 other recent rulemakings that have affected the utility industry, EPA has provided much 

longer comment periods. For example, the comment period 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 boiler MACT rule (67 Federal Register pages) 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 MACT Rule 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, American Nurses Assoc. v. Lisa Jackson, Civil Action No. 08-2198 

(RMC) p. 2 (April 15,2010). While Judge Collyer granted EPA's Motion to Enter Consent 

Decree, she specifically noted: "The Court appreciates industry's concern that this schedule 

may be too hasty for the critical and expensive regulatory decisions that will be made; 

however, the proposed Consent Decree allows for a change of schedule if need be." Id. at 3. 

She further offered "[i]f the science and analysis require more time, EPA can obtain it," id., 

and she added "[i]f EPA needs more time to get it right, it can seek more time." Id. at 4. EPA 

should take Judge Collyer up 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 respectfully requests that EPA withdraw the proposed rule so it can correct 

the obvious errors in its proposed MACT floors. Alternatively, if EPA 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 by an additional 60 days beyond the time that significant 

errors are addressed -- i.e., to September 6, 2011 -- to allow interested parties time to provide 

meaningful comments on the revised limits and supporting analyses and upon the remainder 

of this lengthy and important proposal. 

Thank you, in advance, for your consideration of this request. Please do not hesitate to 

contact me, or have your staff contact me, if you or they 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 Utility Air Regulatory Group 

cc (via e-mail and first-class mail: Ms. Gina McCarthy 

Assistant Administrator for Air and Radiation 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Mail Code: 6101A 

Washington, D.C. 20460 

mccarth y. gina @epa.gov 

Mr. William Maxwell 

Energy Strategies Group 

Sector Policies and Program Division (0234-01) 

Office of Air Quality Planning and Standards 

U.S. Environmental Protection Agency 

Research Triangle Park, North Carolina 27711 

maxwell.bill@epa.gov