November 1 6 , 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 than k 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 2 00 coal

- fired units with an aggregate generating capacity of 31 G W . 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 requirement s , closure s of existing coal plants , and replacement of most of th ose coal plants with new natural gas plants vary, the sheer scale of the efforts will be enormous . Given this scale , t he issue of providing sufficient compliance time in order to maintain an a d equate and reliable supply of electricity is APPA’s top priorit y. 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 a nd calibrate for use all the required cont rol technologies (baghouses, Activated Carbon Injection , Dry Sorbent Injection , scrubbers, and in some cases , to install a second baghouse) . APPA is very concern ed with the time gap that will exist for publicly ele cted officials and utility managers between the 48 th month currently allowed and the actual date of completion without a mechanism to preven t the utility from operating their coal fired power plant in criminal noncompliance or under the risk of citizen sui ts . 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 t ime for the Marine Tank Vessel L o ading 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 u sing 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 t he CAA and shielding them from citizen suits . APPA believes that our Title V permit mechanis m 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 whate ver mechanism is adopted should be included the final EGU MACT rule .Mr . Dominic Mancini

Page 2 November 1 6 , 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 un der the Unfunded Mandates Reform Act (UMRA), Small Business Regulatory Fairness Act (SBREFA), Executive Orde r 12866, and all relevant aspects of the Clean Air Act Amendm ents of 1990 . We also noted that e xisting 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 governmenta l 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 regulat ions 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 o ther 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 3 rd 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 / SO 2 county maps and we cross - refe renced the U. S. EPA maps and county lists with the EIA database for our member utilit ies’ coal

- fired power plants . We have determined that 62 of our 65 coal

fired 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 - owne r ship of units with investor or cooperatively owned utilities in this breakdown due to insufficient data ). Additionally, APPA’s member s have 23 units at 2 0 utilities that are <25 MW representing approximately 121 MW and will be regulated unde r the separate ICI Boiler MACT rule . APPA believes that based upon the preponderance of the public power coal

- fired units in attai nment areas, that OMB and U. S. EPA’s inclu sion of the subcategory and a mechanism for timely compliance throug h 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 pol lutants . 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 “reliabilit y 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 ad dressed 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 ut ility sector . We appreciate your consideration of our recommendations . We would beMr . Dominic Mancini

Page 3 November 1 6 , 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 Johansso n, Council of Eco nomic 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