Meeting with OMB to Discuss EGU MACT

Nov. 3, 2011

1. Brief overview of public power and APPA’s interest in the final rule for ensuring timely 

compliance.

2. In the proposed rule, the four years (three plus one) available for compliance is simply

not enough time and the additional time for compliance must be provided. However, the 

additional time should not come through the “regular” enforcement process (Section 113) 

that involves a court-supervised consent decree. That approach is too lengthy and costly, 

and carries an unfair public stigma of having committed criminal noncompliance. 

3. The Utility MACT rule presents unique and significant timing impacts to communityowned utilities because of state and local regulatory requirements for planning (average 

time is 17 months), often public hearings, financing (average time is 8 months), 

permitting, public bid procurement & construction involving large capital investments 

like pollution controls. The final rule therefore should provide tailored solutions for these 

unique government burdens by providing (a) compliance extensions for meeting MACT 

and (b)a subcategory for power plants <100 MW.

4. Existing Executive Orders (e.g. EO 12866 OIRA) provide “Regulatory Principles” that 

include requiring that EPA consider how regulatory requirements might significantly or 

uniquely affect small communities and governmental entities. In Sections 1(5) and 1(9) 

the EO outlines requirements to design regulations in most cost-effective manner to 

achieve objective and to minimize those regulatory costs and burdens that uniquely and 

significantly affect such governmental entities.” In addition, as appropriate, agencies 

shall seek to harmonize Federal regulatory actions with related State, local and tribal 

regulatory and other governmental functions”. The EO states in Section 1(11) that “Each 

agency shall tailor its regulations to impose the least burden on society, (including 

individuals, businesses of differing sizes) and other entities, including small communities 

and governmental entities), consistent with obtaining the regulatory objectives, taking 

into account, among other things, and to the extent practicable, the costs of cumulative 

regulations”.

5. Publicly-owned utilities must comply under State law with a rigorous public 

process to secure funding and approval for capital improvement and maintenance 

projects. Based upon our recent survey, most community owned utility systems 

will require on average 77 months to comply with state regulations and other 

public participation requirements to fund and award bids for purchase and 

installation of equipment. APPA survey results reflect 50% of coal generating 

capacity or 14 GW of coal capacity.

6. In order to ensure that our mayors and city councils (and operators) remain in 

compliance with the new regulation, APPA has suggested using Title V permits to 
2

incorporate a compliance schedule as provided by Section 504(b) of the Clean Air 

Act for meeting the requirements of the utility MACT. Such a compliance plan 

would need to include milestones including the date by which the city will:

 Hold city council, board or hold public referenda (ex. public vote in

Missouri, SD)

 Issue bonds for financing required MACT pollution control 

equipment;

 Accept and award bids for purchase of MACT pollution control 

equipment;

 Award contracts for installation of MACT pollution control 

equipment;

 Install MACT controls

 Comply with MACT requirements.

7. The Title V permit regulations allow the state agency to “preprogram” in a regulation the 

type of permit revision needed to incorporate rule (in this case the utility MACT) 

requirements. This decision can be made by either the Governor or a delegated state 

pollution control agency. APPA has suggested that the final utility MACT rule would 

denote that incorporation of a compliance schedule would be incorporated into a Title V 

permit by using the minor permit revision procedure under 40 CFR §70.7 (e). We 

suggested this mechanism because (1) it provides public review procedures that confer 

federal and state enforceability over each milestone and (2) because once amended, the 

Title V permit provides a “permit shield” or “safe harbor” for city officials and the power 

plant’s operators. 

8. We also request a subcategory for units <100 MW (requiring ACI for mercury controls, 

reductions in SO2 and PM and perhaps precipitator tuning). APPA also supports Area 

Source Controls. (This approach avoids many installations of Fabric Filters). This issue is 

addressed in APPA’s comments (See Table 1 of APPA’s comments).

Contacts:

Mark Crisson, President & CEO

Joe Nipper, Senior Vice President

Theresa Pugh, Director, Environmental Services

202 467 2943 tpugh@publicpower.org

Leslie Ritts, Outside Counsel to APPA