November 16, 2011

Mr. Dominic Mancini

Branch Chief of Natural Resources and Environment

Office of Information and Regulatory Affairs (OIRA)

The Office of Management and Budget

725 17th Street, NW

Washington, DC 20503

Dear Mr. Mancini:

I write to thank you on behalf of the American Public Power Association (APPA) for the November 3, 

2011 meeting regarding the proposed U. S. EPA NESHAP for mercury and its anticipated significant 

impact for the nation’s public power utilities. APPA’s 2,000 state and community-owned utilities own 

approximately 200 coal-fired units with an aggregate generating capacity of 31 GW. APPA writes this 

letter to both thank you and the attendees of the meeting as well as to notice the Office of Management 

and Budget (OMB) docket of our meeting (docketed at 

http://www.whitehouse.gov/omb/2060_meeting_11032011). 

While estimates of the number of retrofits to meet EGU MACT regulatory requirements, closures of 

existing coal plants, and replacement of most of those coal plants with new natural gas plants vary, the 

sheer scale of the efforts will be enormous. Given this scale, the issue of providing sufficient compliance

time in order to maintain an adequate and reliable supply of electricity is APPA’s top priority.

A survey of our members illustrates that 99% of public power’s coal-fired plants need 77 months to 

comply. A survey of our members shows this is necessary to conduct system planning, convene public 

meetings, obtain financing, construct, install and calibrate for use all the required control technologies 

(baghouses, Activated Carbon Injection, Dry Sorbent Injection, scrubbers, and in some cases, to install a 

second baghouse). APPA is very concerned with the time gap that will exist for publicly elected officials 

and utility managers between the 48th month currently allowed and the actual date of completion without 

a mechanism to prevent the utility from operating their coal fired power plant in criminal noncompliance 

or under the risk of citizen suits. APPA’s primary purpose in meeting with your staff was to augment the 

detailed comments submitted to the U. S. EPA (docket) on August 3, 2011 and to explain these unique 

and significant factors that the U. S. EPA and the OMB should consider when finalizing the mercury 

NESHAP.

While regulatory accommodations to provide additional time are rare given the Clean Air Act’s (CAA) 

statutory language, the U. S. EPA did provide additional compliance time for the Marine Tank Vessel 

Loading regulation because of labor feasibility. The statute also provides for Presidential Exemptions 

(extensions) through Executive Order. In addition, APPA recommended in our comments an 

administrative mechanism for providing additional compliance time using the Title V permitting program 

that we believe is within U. S. EPA’s authority under the CAA. This mechanism would provide the 

necessary time for improving air quality while also preventing our member communities from in criminal 

non-compliance with the CAA and shielding them from citizen suits. APPA believes that our Title V 

permit mechanism is a preferred approach but we are certainly open to the use of Presidential 

Exemption(s) or other mechanisms that achieve the same goals. We believe strongly that whatever 

mechanism is adopted should be included the final EGU MACT rule. 
Mr. Dominic Mancini

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November 16, 2011

APPA’s original comments also addressed a wide range of issues that stretched well into technical 

concerns regarding particulate matter, monitoring, and recommendation for mercury only (no acid gas) 

controls. In addition, we addressed our timing and technical concerns under the Unfunded Mandates 

Reform Act (UMRA), Small Business Regulatory Fairness Act (SBREFA), Executive Order 12866, and 

all relevant aspects of the Clean Air Act Amendments of 1990. 

We also noted that existing Executive Orders (e.g. EO 12866 OIRA) provide "Regulatory Principles" that 

include requiring that U. S. 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 the most cost-effective manner to achieve the 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 J(ll) 

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".

Another key recommendation in our comments was to urge inclusion in the final rule of a subcategory to 

address the area source control options to regulate mercury at smaller power plants < 100 MW. 

At the November 3rd meeting, APPA was asked how many of the overall coal-fired power plants in our 

membership are in attainment areas. Following our meeting, APPA reviewed the CSAPR and 

Ozone/PM/SO2 county maps and we cross-referenced the U. S. EPA maps and county lists with the EIA 

database for our member utilities’ coal-fired power plants. We have determined that 62 of our 65 coalfired power plants covered by (EGU MACT) or 95% are in attainment areas under current NAAQS 

standards. Forty-five of the 65 power plants are affected by the CSAPR rule. (We did not include 

co-ownership of units with investor or cooperatively owned utilities in this breakdown due to insufficient 

data).

Additionally, APPA’s members have 23 units at 20 utilities that are <25 MW representing approximately 

121 MW and will be regulated under the separate ICI Boiler MACT rule. APPA believes that based upon 

the preponderance of the public power coal-fired units in attainment areas, that OMB and U. S. EPA’s 

inclusion of the subcategory and a mechanism for timely compliance through the utility’s Title V permit 

without risks of criminal noncompliance or citizen suits provide no opportunity to expand the number of 

nonattainment areas or expose the public to hazardous air pollutants. 

There is one other issue that we did not raise at the meeting that we would like to mention here. We urge 

the U. S. EPA and OMB to reject a proposal recommended by regional transmission organizations for 

establishment of a so-called “reliability safety valve”. This proposal discriminates between regions of the 

country and would allow certain generating units not planning to retrofit to receive waivers for 

compliance from mercury NESHAP. The market conditions prompting this proposal are better addressed 

by the Federal Energy Regulatory Commission through changes to the design and operation of those 

markets.

APPA believes that these recommendations comport with the guiding principles set forth in Executive 

Orders 12866 and 13563, and do not compromise the integrity of the CAA’s reduction of health risks 

from human health exposure from mercury resulting from coal combustion. Our suggestions offer 

practical opportunities for the U. S. EPA and OMB to reduce the most significant and burdensome 

impacts to the utility sector. We appreciate your consideration of our recommendations. We would be 
Mr. Dominic Mancini

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November 16, 2011

happy to provide any additional information.

Sincerely yours,

Mark Crisson

President & CEO

MC/TP/JN

cc:

Ms. Lisa Jackson, Administrator, U. S. EPA

Ms. Gina McCarthy, Assistant Administrator, Office of Air and Radiation, U. S. EPA

Ms. Heather Zichal, Deputy Assistant to the President for Energy and Climate Change

Mr. Bob Wayland, U. S. EPA

Mr. Tom Gillis, U. S. EPA

Ms. Karen Thundiyil, U. S. EPA

Ms. Cortney Higgins, OMB

Mr. Drew McConville, Council on Environmental Quality

Ms. Manisha Patel, Council on Environmental Quality

Mr. Michael Drummond, Council on Environmental Quality

Mr. Stiven Foster, Council on Environmental Quality

Mr. Glen Sheriff, Council on Environmental Quality

Mr. Rob Johansson, Council of Economic Advisors

Mr. Bruce Rodan, Office of Science and Technology Policy

Mr. Ali Zaidi, White House Domestic Policy Council

Mr. Mike Clark, OMB

Mr. Kevin Neyland, OMB