Comments Regarding the Proposed Endangerment and Cause or

Contribute Findings for Greenhouse Gases 

Under Section 202(a) of the Clean Air Act 

From the American Public Power Association (APPA)

Submitted to 

The U. S. Environmental Protection Agency (EPA) 

Docket ID No. EPA-HQ-OAR-2009-0171.

June 23, 2009 
1

EPA Docket Center (EPA/DC), Mailcode 6102T

Attention Docket ID NO. EPA-HQ-OAR-2009-0171

U.S. EPA

1200 Pennsylvania Ave., NW

Washington, DC 20460

Re: American Public Power Association’s Comments on Proposed 

Endangerment and Cause or Contribute Findings for Greenhouse Gases 

Under Section 202(a) of the Clean Air Act, 74 Fed. Reg. 18886 (April 24, 

2009); Docket No. EPA-HQ-OAR-2009-0171

Dear Sir/Madam:

The American Public Power Association (APPA) appreciates the opportunity to provide 

comments on U.S. EPA‘s proposed endangerment and cause or contribute findings (―Proposed 

Endangerment Findings‖), published in the Federal Register at 74FR18886, April 24, 2009. 

APPA previously commented on U.S. EPA‘s Advance Notice of Proposed Rulemaking (ANPR) 

on regulating greenhouse gases, published at 73FR44354, July 30, 2008. APPA has attached a 

copy of those comments to this submittal, for inclusion in the current rulemaking record. 

Public power is the term used to describe the more than 2,000 municipal and other state and local 

community-owned electric utilities that provide electricity for approximately 43 million 

Americans. These public power systems are among the most diverse of the electric utility 

sectors, representing utilities in small, medium and large communities in 49 states (all states 

except Hawaii). Seventy-five percent of public power systems are located in cities with 

populations of 10,000 or less. Overall, public power accounts for about 16 percent of all 

kilowatt-hour sales to consumers. APPA was created in 1940 as a non-profit, non-partisan 

organization. Its purpose is to advance the public policy interests of its members and their 

consumers, and provide member services to ensure adequate, reliable electricity at a reasonable 

price with the proper protection of the environment. More than 90 percent of APPA member 

utilities meet the definition and qualify under Small Business Regulatory Enforcement and 

Fairness Act of 1996 (SBREFA). 

One characteristic of public power municipal electric utilities that makes our perspective unique 

on the questions pertaining to geologic sequestration (often referred to as CCS) of CO2 as a 

control option is that more than 80 percent of the public power utilities also manage drinking 

water utilities that supply residential, industrial, commercial and industrial customers. While the 

Endangerment proposal is not calling for comments about CCS, APPA believes that both fuel 

switching to natural gas and geologic sequestration technical issues are worthy of discussion. 

Should the U.S. EPA propose any regulatory controls on CO2 for the electric utility sector in the 

short term, these comments offered here and under the proposed UIC rule must be considered. 

APPA appreciates the opportunity to file comments and remains willing to meet with the U.S. 

EPA staff or contractors.

Thank you.
2

Table of Contents 

I. APPA believes the U.S. EPA has selected two gases for consideration for a 

Section 202(a) endangerment finding – U.S. EPA has selected two greenhouse 

gases not emitted by motor vehicles, and has omitted two gases that are emitted 

or are precursors to GHGs. Pg. 4

II. APPA believes that U.S. EPA has mistakenly categorized climate effects as 

―health‖ impacts, while the Clean Air Act and regulatory precedents are clear 

that such effects must be categorized as ―welfare‖ impacts. Pg. 8

III. APPA’s observations about welfare-based standards Pg. 11

IV. The proposed endangerment finding is in conflict with the larger structure of the 

Clean Air Act Pg. 11

V. U.S. EPA must consider the broad flexibility it has to make reasonable 

regulatory decisions following on Endangerment findings. Pg. 14

VI. U.S. EPA’s regulatory options following an endangerment determination on 

human health basis would require considerable U.S. EPA’s Science Advisory 

Board (SAB) review and analysis before the U.S. EPA could propose specific 

regulations. Pg. 16

VII. Any U.S. EPA action following an endangerment finding must consider all of the 

U.S. EPA’s regulatory options. Pg. 17

VIII. The various regulatory options must consider energy policy and consequences 

from fuel switching to natural gas. Pg. 19

IX. APPA believes the U.S. EPA has considerable discretion in sequencing or 

phasing in regulatory controls under the existing Clean Air Act. Pg. 22

X. The U.S. EPA might want to address others first before addressing all industrial 

sectors. Pg. 23

XI. APPA believes the U.S. EPA must consider the status of commercially viable and 

fully demonstrated technology if it would regulate through NSPS, HAPS, or 

critical pollutants NAAQS/SIP process. Pg. 24
3

XII. Before making an endangerment determination that could lead to proposing and 

setting standards, the U.S. EPA must consider the ramifications of international 

GHG emission contributions to the background emissions. Pg. 24

XIII. APPA believes the U.S. EPA must consider existing renewable requirements and 

other state or regional GHG reduction strategies, regulations and laws to give 

credit for early reduction of CO2 . Pg. 24

XIV. APPA believes that the U. S. EPA’s actions under the Clean Air Act must 

consider both international energy forecasts, emissions, and growth in CO2

emissions resulting from circumstances beyond the utility’s control before 

setting standards. Pg. 25
4

Introduction

U.S. EPA‘s proposed endangerment finding represents the first step toward a potentially 

irreversible course of greenhouse gas regulation under the Clean Air Act, a course of action even 

the U.S. EPA Administrator recently recognized as an undesirable outcome. APPA believes 

consistent with our comments filed on Nov. 26th, 2008 in response to the ANPR that the Clean 

Air Act is not a suitable method to reduce carbon dioxide (CO2) and other GHGs. A copy of the 

APPA comments on the ANPR is found in the Appendix (page 28).1 Importantly, for the reasons 

described below, APPA believes that U.S. EPA continues to retain discretion at this moment, and 

should exercise that discretion, to avoid triggering the otherwise unavoidable cascade of 

consequences that would result from a final endangerment determination. Given the uniform 

recognition of the unsuitability of the Clean Air Act to address GHGs—including a recent 

statements by U.S. EPA Administrator Lisa Jackson—and the ongoing developments on 

comprehensive legislation, EPA must exercise this discretion to defer a final endangerment 

determination at this time. APPA‘s views have not changed as to a preference that Congress pass 

an entirely new law to accommodate an economy wide approach to reduce GHGs and mitigate 

against climate change. APPA is not offering comments in this submittal regarding any views on 

any bills pending in Congress. However in the Appendix (page 28) the APPA policy views on 

climate change may be found. APPA‘s comments on the endangerment are specifically focused 

on the authorities under existing law and do not offer views on cap and trade, carbon taxes, or 

any other new legislative approaches being considered in Congress. 

I. APPA believes the U.S. EPA has selected two gases for consideration for a Section 

202(a) endangerment finding – U.S. EPA has selected two greenhouse gases not 

emitted by motor vehicles, and has omitted two gases that are emitted or are 

precursors to GHGs. 

(a) Summary

U.S. EPA‘s proposed definition of ―air pollution‖ for the endangerment finding is 

specified as the combined mix of the six ―long-lived‖ greenhouse gases: CO2, CH4, N2O, 

HFCs, PFCs, and SF6 (74 FR 18895). This definition is inappropriate because it neither 

fits the source category being addressed by the rulemaking (mobile sources) nor the 

immediate nature of multiple GHG effects. Enlarging this definition to include Black 

Carbon and tropospheric ozone should be considered, as these two substances or their 

precursors are emitted by mobile sources. 

U.S. EPA has found no direct effects of greenhouse gases on human health 

(74 FR 18901). U.S. EPA has, however, concluded that these gases, acting through 

changes in the climate, can impact public health, both positively and negatively. As 

discussed in more detail below, APPA believes that there is substantial legislative and 

regulatory history that supports the view that such impacts are properly characterized as 

―welfare‖ impacts, and not health impacts.

 

1 APPA re-submits those comments in this submittal of comments on the proposed endangerment.
5

A related and significant issue is the fact that the Clean Air Act provides greater 

flexibility for attaining secondary (welfare) standards than primary (health) standards. 

Hence, the issue of how best to address indirect health issues is one which materially 

affects a series of implementation issues, including the technical and economic 

reasonableness of mitigation measures, and mandatory sanctions for failure to attain a 

National Ambient Air Quality Standard (NAAQS).

The proposal states that one significant indirect impact of climate change on human 

health is the effect of temperature changes on mortality (74 FR 18901). The proposal 

further states that higher temperatures can increase mortality in the summer, and decrease 

mortality in the winter, but concludes that the net impact is ambiguous (74 FR 18901). 

Numerous studies point to the net benefit of a warmer climate with respect to this aspect

of indirect health impacts.

These issues are presented in greater detail below.

(b) Definition of air pollution

U.S. EPA has proposed to define climate-related ―air pollution‖ to be the six ―long-lived‖ 

gases (or groups): CO2, CH4, N2O, HFCs, PFCs, SF6. U.S. EPA has considered and 

rejected inclusion of both Black Carbon (BC), and tropospheric ozone as part of the mix 

of gases affecting climate change.

The radiative forcing of greenhouse gases is measured in watts per square meter (W/m2). 

According to the IPCC2, the contributions to radiative forcing (in 1998) by the six GHGs 

proposed by U.S. EPA in its definition of ―air pollution‖ total about 2.1 W/m2, and 

individually are

o CO2: 1.46 W/m2 

o CH4: 0.48

o N20: 0.15

o HFCs, PFCs, SF6: 0.02

According to Ramanathan & Carmichael3:

o ―Emissions of Black Carbon are the second strongest contribution to current 

global warming.‖

o ―Deposition of Black Carbon darkens snow and ice surfaces, which can contribute 

to melting, in particular of Arctic sea ice.‖

 

2 Climate Change 2001: The Scientific Basis, Intergovernmental Panel on Climate Change, 2001. 

3 Global and regional climate changes due to black carbon, V. Ramanathan and G. Carmichael (Scripps Institution 

of Oceanography and College of Engineering, University of Iowa), Funded by NSF, NOAA, and NASA, Nature 

Geoscience, 1: 221-227, March 2008.
6

o Black Carbon is removed from the atmosphere by rain and snowfall, and by direct 

deposition to the earth‘s surface. Black Carbon particles remain in the 

atmosphere approximately one week.

o ―The BC (Black Carbon) forcing of 0.9 W/m2is as much as 55 percent of the CO2

forcing and is larger than the forcing due to the other GHGs such as CH4, CFCs, 

N2O or tropospheric ozone. Similar conclusions have been inferred by others....‖

o ―Given that BC (Black Carbon) has a significant contribution to global radiative 

forcing, and a much shorter lifetime compared with CO2 (which has a lifetime of 

100 years or more), a major focus on decreasing BC (Black Carbon) emissions 

offers an opportunity to mitigate the effects of global warming trends in the short 

term. Reductions in BC (Black Carbon) are also warranted from considerations 

of regional climate change and human health.‖ 

According to M. Jacobson4:

o ―Soot particles containing Black Carbon, from fossil-fuel and biofuel burning 

sources, have a strong probability of being the second-leading cause of global 

warming after carbon dioxide and ahead of methane. Control of soot emissions, 

particularly from fossil-fuel sources, is very likely to be the fastest method of 

slowing global warming.‖ 

o ―The United States‘ soot contribution to global warming may exceed each its 

methane and nitrous oxide contributions to global warming.‖

o ―The main sources of U.S. fossil-fuel soot are nonroad vehicles, followed by 

onroad mobile vehicles.‖

According to Zender5, ―Reducing Arctic BC concentrations sooner rather than later is the 

most efficient way to mitigate Arctic warming that we know of.‖

According to the IPCC6, ―Tropospheric ozone changes due to emissions of ozone 

forming chemicals (nitrogen oxides, carbon monoxide, and hydrocarbons) contribute 0.35 

W/m2.‖ Motor vehicles are a major source of nitrogen oxides, carbon monoxide, and 

hydrocarbons.

The above references demonstrate that U.S. EPA has elected to include in the definition 

of climate change air pollution, three groups of gases that cumulatively contribute 0.02 

W/m2to radiative forcing, and which are not emitted in significant quantities by motor 

vehicles, while electing to exclude Black Carbon and tropospheric ozone smog that 

contribute 0.9 and 0.35 W/m2, respectively, to radiative forcing, and which are derived in 

 

4 Testimony for the Hearing on Black Carbon and Arctic, House Committee on Oversight and Government Reform, 

Mark Jacobson, Professor of Civil & Environmental Engineering, Stanford University Atmosphere/Energy Program, 

October 18, 2007.

5 Arctic Climate Effects of Black Carbon, C. Zender, Department of Earth System Science, University of California, 

Irvine, Testimony before the House Oversight and Government Reform Committee, October 18, 2007.

6

IPCC, 2007: Summary for Policymakers, Intergovernmental Panel on Climate Change, 2007.
7

large part, if not primarily in the U.S., from motor vehicles This could be significant 

since the two excluded pollutants have approximately 60 percent of the radiative forcing 

effect of the six gases selected by U.S. EPA. Strategies to mitigate climate change should 

be built around the definition of the gases that contribute most to radiative forcing. 

Practical decisions will be necessary in order to achieve reductions that can be sustained 

over time and have the least deleterious impact on the U.S. economy. In the Proposal, 

U.S. EPA defines both the ―air pollution‖ reasonably anticipated to endanger public 

health and welfare and the ―air pollutant‖ that contributes to the air pollution as a 

collective class of six greenhouse gases. By improperly defining ―air pollutant‖ to 

include perfluorocarbons and sulfur hexafluoride—substances that are not present in 

motor vehicle emissions—the Administrator exceeded her statutory authority under CAA 

Section 202(a). See Sierra Club v. EPA, 479 F.3d 875, 884 (D.C. Cir. 2007) (―If the 

Environmental Protection Agency disagrees with the Clean Air Act‘s requirements for 

setting emission standards, it should take its concerns to Congress . . . In the meantime, it 

must obey the Clean Air Act as written‖). As discussed in more detail below, Section 

202 indicates one and only one reason for the Administrator to make an endangerment 

finding: as a basis for promulgating emission standards for new motor vehicles. Thus, it 

is inappropriate to propose a stand alone endangerment finding for air pollutants which 

cannot be regulated under Section 202. 

o U.S. EPA acknowledged the scope of its authority when considering an 

endangerment finding in the ANPR: ―Title II of the CAA provides U.S. EPA 

statutory authority for mobile source air pollution control.‖ ANPR, 73 Fed. Reg. 

44432 (July 30, 2008). U.S. EPA also acknowledged that ―[p]erfluorocarbons 

(PFCs) and sulfur hexafluoride (SF6) are not emitted from motor vehicles or motor 

vehicle engines in the United States.‖ Id at 44431. Yet, in the Proposal, the 

Agency is unable to justify this overly broad definition, merely stating that ―it is 

entirely appropriate for the Administrator to define the air pollutant in a manner 

that recognizes the shared relevant properties of all of these six gases, even 

though they are not all emitted from the source category before her.‖ 74 Fed. 

Reg. at 18904.

o Past endangerment findings under Section 202(a) demonstrate U.S. EPA‘s 

consistent approach of defining ―air pollutant(s)‖ in accordance with the Act‘s 

clear direction, to include only those emitted from the relevant source category. 

For instance, in U.S. EPA‘s Notice of Proposed Rulemaking for Heavy-Duty 

Engine and Vehicle Standards, the Agency found that ―emissions of NOx, VOCs, 

SOx, and PM from heavy-duty trucks can reasonably be anticipated to endanger 

the public health or welfare.‖ 65 Fed. Reg. 35436 (June 2, 2000) (emphasis 

added). The Administrator proposed standards to regulate those particular air 

pollutants from heavy duty trucks, not a broader class of ―air pollutants‖ including 

pollutants not actually present in heavy duty vehicle emissions. 

The Proposal itself uses the statutory term ―air pollutant(s) inconsistently—at times 

referring to the group of six GHGs as the ―air pollutant,‖ while in other instances falling 

back on a four pollutant definition. For example: ―[t]he Administrator further proposes to 
8

find that combined emissions from new motor vehicles and new motor vehicle engines 

for four of these greenhouse gases - carbon dioxide, methane, nitrous oxide, and 

hydrofluorocarbons - contribute to this air pollution.‖ Proposal, 74 Fed. Reg. at 18888. 

The Administrator‘s own inconsistency demonstrates the difficulty with including PFCs 

and SF6 in the cause or contribute finding. For these reasons, the endangerment proposal 

oversteps legal bounds in defining the scope of pollution address to include air pollutants 

beyond those potentially subject to Section 202 authority. This makes the endangerment 

proposal fundamentally flawed; and U.S. EPA must revise the proposal to include only 

the four greenhouse gases.

II. APPA believes that U.S. EPA has mistakenly categorized climate effects as ―health‖ 

impacts, while the Clean Air Act and regulatory precedents are clear that such 

effects must be categorized as ―welfare‖ impacts.

The Proposal explicitly concedes that the only public health effects resulting from global 

climate change would be indirect in nature. 74 Fed. Reg. at 18901 (all public health risks 

―occur [ ] through changes in climate, but the end result is an adverse effect on the health 

of the population.‖)7. Classifying these indirect ―welfare‖ effects as ―public health‖ 

effects for purposes of an endangerment finding is improper under the Clean Air Act. 

Although the Act contains no definition of ―public health,‖ it does define effects on 

―welfare‖ as including ―effects on ... weather ... climate.... [and] personal comfort and 

well being.‖ 42 U.S.C. § 7602(h); CAA 302(h). In its Proposal, the Administrator 

rejected any distinction between the two categories, claiming that adverse impacts on 

―welfare‖ may lead to adverse impacts on ―public health.‖ 74 Fed. Reg. at 18,902. 

Given that Congress provided a separate and specific definition of ―welfare,‖ it clearly 

intended ―health‖ and ―welfare‖ to encompass different effects. Thus, the Administrator‘s 

interpretation provided in the Proposal is not permissible under the CAA. 

The legislative history of the Act reveals Congressional intent for public health effects to 

encompass only direct exposure to air pollutants. The relevant parts of CAA Sections 

202(a) and 302(h) were enacted in the 1970 Clean Air Act Amendments. Prior to 1970, 

―adverse effects on welfare‖ included only ―injury to crops and livestock, damage to and 

deterioration of property, and hazards to transportation.‖ 1970 Legis. Hist. 1543, 1571 

(quoting Clean Air Act, § 302(g)). The 1970 Amendments significantly expanded the 

Act‘s definition of welfare effects to include effects on weather, climate and ―personal 

comfort and well-being.‖ 42 U.S.C. §7602(h). This expansion was concurrent with the 

Senate‘s creation of separate ambient air quality standards for both public health and 

public welfare. 

 

7 EPA made the same concession in its ANPR. See 73 Fed. Reg. at 44,478 (July 30, 2008) (―GHGs at current or 

projected ambient levels appear to have no known adverse effects on human health. Rather the health impacts 

associated with ambient GHG concentrations are a result of the changes in climate ... which trigger myriad 

ecological and meteorological changes that can adversely affect public health. The effects on human health are thus 

indirect impacts resulting from these ecological and meteorological changes, which are effects on welfare. This 

raises the question of whether it is more appropriate to address these health effects as part of our consideration of the 

welfare effects of GHGs when setting a secondary NAAQS rather than a primary NAAQS.‖).
9

The simultaneous expansion of ―welfare‖ effects and their statutory separation from 

―public health‖ effects was a stark contrast from an earlier bill which proposed only a 

single NAAQS providing for both ―the protection of the public health and guard against 

environmental and economic effects of air pollution.‖ See, e.g., Sen. Hearing, Subcomm. 

on Air and Water Pollution, Comm. on Public Works (Mar. 17, 1970) (statement of Dep‘t 

of HEW Sec. Finch), 1970 Leg. Hist. 972. Proponents explained that this single standard 

would be based solely on ―direct personal health impacts‖ but would have the co-benefit 

of also protecting ―welfare‖ impacts. Sen. Hearing, Subcommittee on Air and Water 

Pollution, Comm. on Public Works (Mar. 17, 1970) (statement of Dr. Middleton, 

Comm‘r, Nat‘l Air Pollution Control Admin., HEW), 1970 Leg. Hist. 1194 (emphasis 

added). 

The Senate bill that ultimately passed unbundled ―public health‖ effects from ―public 

welfare‖ effects, despite the relationship between the two. Instead, the final Senate bill 

required one standard to protect the health of persons and a separate standard to protect 

the ―public welfare,‖ which included but was not limited to, ―effects on soil, water, 

vegetation, manmade materials, animals, wildlife, weather, visibility, and climate, as well 

as effects on economic values.‖ The Senate Committee Report explained the difference 

between the national standards and goals: 

National ambient air quality standards are authorized because . . . 

the protection of health is a national priority, but the Committee 

also recognizes that man‘s natural and man-made environment 

must be preserved and protected. Therefore, the bill provides for 

the setting of national ambient air quality goals at levels necessary 

to protect public health and welfare from any known or anticipated 

adverse effects of air pollution—including effects on soils, water, 

vegetation, man-made materials, animals, wildlife, visibility, 

climate, and economic values.(emphasis added). This is clearly the 

source of the current definition of welfare effects in Section 302(h), 

which also includes ―personal comfort and well being.‖8 Notably, 

the Senate‘s proposal contemplated that welfare effects, including 

climate, weather, and personal well being would encompass 

indirect effect on the public health, suggesting that the separate 

public health effects standard excludes these indirect effects 

considered under the public welfare prong. 

Considering both direct and indirect effects under the public health standard would be 

duplicative and essentially result in the same single-standard analysis from earlier 

versions of the bill that the Senate rejected. At a minimum, the Senate Report and floor 

debate demonstrate that Senator Edmund Muskie, the leading proponent of the final bill, 

conceptualized health effects to include only direct effects on human health.

 

8 The final version of the bill included a primary standard tied to public health and a secondary standard to protect 

the public welfare. The list of welfare effects was moved from Section 109 to Section 302(h). 
10

In the nearly forty years since the 1970 Clean Air Act Amendments, U.S. EPA has 

consistently categorized direct human health effects, such as increased risks of cancer, 

asthma, neurological effects, and the like as ―public health effects,‖ while defining effects 

on vegetation, weather, climate, and visibility as impacts to welfare. By importing, for 

the first time, weather and climate impacts into the public health effects analysis, the 

Agency sharply departs from its past position without providing an explanation for its 

new interpretation. More importantly, the proposal would categorize weather and climate 

impacts as ―public health‖ effects, in conflict with the clear definition in the CAA that 

they are ―welfare‖ effects.

Just as an example, in the 1995 review of the NO2 NAAQS, U.S. EPA listed the public 

health effects of NO2 as lung cell injury, death, increased susceptibility to respiratory 

illness in children, pulmonary adema, and increased airway resistance in asthmatics.9 In 

its separate public welfare analysis, U.S. EPA listed the effects of NO2 as including 

impacts to ecosystems, including adverse effects to vegetation, wetlands, aquatic systems, 

soil, and toxicity to wildlife, and impacts to visibility and man-made materials. Review 

of the National Ambient Air Quality Standards for Nitrogen Dioxide, Assessment of 

Technical and Scientific Information, U.S. EPA (September 1995). 

Prior court decisions supported prior Agency decisions limiting the public health effects 

analysis to those that have a direct impact on human health. In NRDC v. EPA, the D.C. 

Circuit rejected a claim that U.S. EPA must consider the effect of increased 

unemployment on public health in setting a primary NAAQS. NRDC v. EPA, 902 F.2d 

962, 973 (D.C. Cir. 1990). The Court explained that, ―[i]t is only the health effects 

relating to pollutants in the air that U.S. EPA may consider.‖ Id. (emphasis added). 

U.S. EPA later relied on this holding in defending its decision to set a primary NAAQS 

for ozone based solely on direct health effects of ozone. In a Petition for Rehearing, 

U.S. EPA argued that the primary NAAQS should be set through consideration of only 

―direct adverse effects on public health, and not indirect, allegedly beneficial effects.‖ 

U.S.EPA Pet‘n for Rehearing, Am. Trucking Ass’n v. EPA, No. 97-1440 (D.C. Cir. June 

28, 1999).

Most importantly, U.S. EPA categorized climate change as a public welfare effect in a 

prior endangerment finding. In listing new municipal solid waste landfills as a source 

category under Section 111, U.S. EPA identified global climate change, along with odor, 

fires and explosions, reduced plant growth, decreased crop yield and deterioration of 

man-made materials as public welfare effects to which landfill emissions cause or 

contribute. 56 Fed. Reg. 24469 (May 30, 1991). U.S. EPA‘s position in the NSPS 

reinforces the proper classification of climate change impacts as welfare impacts.

 

9 EPA has made similar health and welfare distinctions in numerous reviews of the NAAQS. See e.g., CO National 

Ambient Air Quality Standards, 50 Fed. Reg. 37484, 37494 (Sept. 13, 1985); Review of the national Ambient Air 

Quality Standards for Ozone, Policy Assessment of Scientific and Technical Information, U.S. EPA (July 2007); 

National Ambient Air Quality Standards for SO2, 38 Fed. Reg. 25678 (Sept. 14, 1973); Proposed National Ambient 

Air Quality Standard, 42 Fed. Reg. 63076 (Dec. 14, 1977).
11

III. APPA’s observations about welfare-based standards

U.S. EPA notes that Primary National Ambient Air Quality Standards (P-NAAQS) must 

be attained within 5 years from the effective date of designation of an area as 

nonattainment (with a possible 5 year extension), but that ―there is no statutory maximum 

date for attainment‖ of a secondary standard.10 APPA encourages the U.S. EPA to take 

appropriate time to submit the GHG reduction targets, regulatory approaches and specific 

sector regulatory concepts, along to the U.S. EPA Science Advisory Board (SAB). Prestandards setting consultation and review of the U.S. EPA‘s plans to reduce CO2 and 

GHGs would be very beneficial. This review would help determine the optimal methods 

and timing for compliance with any possible secondary welfare standards. 

Implementation plans for attaining secondary standards would require the use of 

―reasonably available control measures,‖ but under a secondary standard attainment plan, 

these measures ―allow for consideration of costs‖.11

A welfare-based approach to climate change mitigation would provide states (and 

U.S. EPA) the flexibility to avoid economically disruptive mandates that precede the 

availability of affordable and effective control technologies. This could be particularly 

relevant to the power sector, where a major source of GHG emissions is fossil fuel 

combustion, but where carbon capture and storage technology or geosequestration 

remains an immature technology, lacking any commercial scale demonstration. 

Moreover, states in compliance with such a plan would not be subject to mandatory, but 

counterproductive, sanctions denying federal funds to states not in compliance with 

attainment plans under a Primary NAAQS approach.

IV. The proposed endangerment finding is in conflict with the larger structure of the 

Clean Air Act

GHGs are generally distributed equally throughout the global atmosphere. As a result, 

the level of localized GHG emissions has no direct effect on local or global atmospheric 

concentrations of GHGs. This stands in sharp contrast to the pollutants currently 

regulated under the CAA (e.g., volatile organic compounds), which create local or 

regional air quality problems. It is this unique nature of GHGs that sets them apart from 

other, more traditional air pollutants, and makes the current Act a poor fit for addressing 

this global nature of GHG concentrations. As former U.S. EPA Administrator Johnson 

warned, ―[t]he potential regulation of greenhouse gases under any portion of the Clean 

Air Act could result in an unprecedented expansion of U.S. EPA authority that would 

have a profound effect on virtually every sector of the economy and touch every 

household in the land.‖ 73 Fed. Reg. 44354, 44355 (July 30, 2008). Given the current 

 

10 Ibid, 73 FR 44481, July 30, 2008.

11 Ibid.
12

Administrator‘s stated preference for new legislation to reduce GHG emissions, rather 

than regulations based on the current Act, and the stated concerns of other federal 

agencies as reflected in a recent OMB memorandum,12 U.S. EPA‘s proposals will 

virtually assure adverse, unintentional consequences.

The Clean Air Act‘s unsuitability for regulating GHG emissions is illustrated in three 

unavoidable consequences of an endangerment finding under Section 202: 

(1) the presumption of an endangerment finding under multiple other provisions of the 

Act; 

(2) a corresponding duty to regulate GHG emissions under those other sections; and 

(3) a duty to require permits for GHG from countless newly-regulated sources under the 

Act‘s pre-construction and operating permit provisions. While the U.S. EPA‘s 166-page 

July 2008 ANPR discussed these consequences in detail, the Proposal contains only the 

narrowest mention of the ANPR and the public comment on that notice.13 See 73 Fed. 

Reg. 44354 (July 30, 2008). The Administrator has taken the drastic step of issuing the 

Proposal before responding to comments on the ANPR in any meaningful fashion, 

despite the existence of a direct relationship between the ANPR and the Administrator‘s 

current Section 202(a) Proposal. For that reason, we have resubmitted our comments on 

the ANPR in this proceeding. See Appendix item I for a copy of APPA‘s 200+ page 

comments with attachments.

Many sections of the CAA, including sections 108, 111, 112, 211, 213, 231 and 615, 

contain similar language requiring the Administrator to make a positive endangerment 

finding prior to proceeding with regulations. While the endangerment language in each

CAA section is slightly different, each section generally calls for similar analysis of the 

impact of the air pollution at issue. This means that a positive GHG endangerment 

finding under one provision is likely to overflow into other provisions. In fact, U.S. EPA 

acknowledged in the ANPR that ―a positive or negative endangerment finding for GHG 

emissions under one provision of the Act could have a significant and direct impact on 

decisions under other CAA sections.‖ 73 Fed. Reg. 44354, 44420 (July 30, 2008).

 

12 First (1st) Round of Office of Management and Budget (OMB) Comments to USEPA on the Proposed Findings, 

Doc. ID EPA-HQ-OAR-2009-0171-0124, Docket ID EPA-HQ-OAR-2009-0171 (Apr. 22, 2009) , 

http://www.regulations.gov/fdmspublic/component/main?main=DocumentDetail&o=0900006480965abd.

13 In the Proposal, EPA states that an endangerment finding under Section 202(a) does not trigger the CAA's 

Prevention of Significant Deterioration (―PSD‖) program for GHGs. However, EPA notes that the Interpretive 

Guidance on In Re Deseret Power Electric Cooperative Decision, upon which its current position regarding the PSD 

trigger is based, is under reconsideration. Proposal, 74 Fed. Reg. 18905, n. 29. More importantly, EPA fails to 

mention the regulations that will presumably follow from its endangerment finding. 
13

In the Proposal, the Administrator notes that ―EPA is not proposing or taking action 

under any other provision of the Clean Air Act.‖ 74 Fed. Reg. at 18888. However, 

merely making such a statement can not prevent a regulatory ―cascade‖ of consequences 

throughout the Act the Agency admits it wants to avoid, as an endangerment finding‘s 

statutory effect can not be limited by a proclamation in the Proposal‘s preamble. An 

endangerment finding under Section 202, or any other similar section, is the necessary 

prerequisite to mandatory regulation. In most instances, once an endangerment finding is 

made, the Act provides that U.S. EPA ―shall‖ regulate the subject pollutant. That 

mandatory duty to regulate, combined with the cascading effect of a single endangerment 

finding, means that U.S. EPA may face an overwhelming burden of needing a regulatory 

regime in place for all emission sources at the time it starts to regulate the first source. 

Accordingly, the creation of GHG emission standards for new motor vehicles could 

trigger a duty for U.S. EPA to regulate GHG emissions from stationary sources under 

other CAA sections, such as the development of NAAQS, New Source Performance 

Standards (―NSPS‖), the PSD program, Title V, and National Emission Standards for 

Hazardous Air Pollutants (―NESHAP‖). For reasons explained in detail in our ANPR 

comments, each of these is impractical or inappropriate for addressing GHG emissions. 

The U.S. EPA‘s issuance of an endangerment finding and promulgation of final GHG 

emission standards under any of the CAA‘s related sections would trigger a duty to 

regulate GHG emissions under the PSD and Title V operating permit programs. These 

sections apply to stationary sources that emit, on an annual basis, at or above certain 

thresholds of any regulated air pollutant. Stationary sources emitting 250 tons per year or 

more of a regulated pollutant, or 100 tons per year or more for certain listed sources, must 

acquire a PSD permit before constructing or modifying the source. Title V‘s permit 

obligations are triggered for stationary sources emitting 100 tons per year or more of a 

regulated pollutant. According to U.S. EPA‘s own analysis, regulation of GHG 

emissions would expand the PSD program‘s scope by ―orders of magnitude.‖ 73 Fed. 

Reg. at 44498. Similarly, U.S. EPA estimated that an addition 550,000 existing sources 

would require a Title V operating permit. Id. at 44511. While the statutorily mandated 

thresholds may be appropriate for traditional air pollutants such as sulfur dioxide and 

nitrogen oxides, they were never intended for GHGs, and in particular CO2, which is 

emitted in much larger quantities during combustion. Consequently, many minor sources 

that were never intended by Congress to be regulated under either the PSD or Title V 

program would exceed the statutory thresholds. For these sources, even the smallest 

modification, such as minor equipment upgrades or energy efficiency measures, could 

trigger these burdensome permitting requirements. U.S. EPA undoubtedly would like to 

―fix‖ the PSD and Title V problem, but the Agency has recognized in the ANPR that any 

possible solution under the Clean Air Act is legally untested. Id. at 44506.
14

V. U.S. EPA must consider the broad flexibility it has to make reasonable regulatory 

decisions following an Endangerment finding.

In the Proposal, the Administrator invited comment on alternatives to an endangerment 

finding under Section 202. See 74 Fed. Reg. at 18890. We do not believe U.S. EPA 

should move forward with finalizing an endangerment finding under Section 202 until it 

fully vets all other alternatives and options, including Section 115 of the CAA—

International Air Pollution. While APPA in these comments does not advocate Section 

115 or any other Clean Air Act provision as an appropriate approach to regulating GHGs, 

at the same time APPA believes U.S. EPA should fully consider all options prior to 

proceeding, including Section 115.

Section 115 has the potential to offer an effective, flexible, economically reasonable, and 

legally supportable means by which to regulate GHG emissions under the current CAA. 

The potential advantages of regulating GHG emissions under Section 115 are significant 

and include

(1) broad flexibility regarding which source categories are regulated and how they are 

regulated; 

(2) easier harmonization of future legislation and/or international agreements; 

(3) use of a regulatory scheme that reflects the global nature of GHG emissions and 

effects; 

(4) a structure that satisfies the Supreme Court‘s mandate in Massachusetts; 

(5) avoidance of other CAA regulatory programs that many, including U.S. EPA itself, 

have recognized are ill-suited for regulating GHG emissions;

(6) avoid of the potentially serious economic consequences of regulating minor sources 

under the PSD and Title V programs; and 

(7) an opportunity to partner with the states in building an effective approach to GHG 

regulation. Despite these potential benefits, and the availability of a section specifically 

created to address international air pollution, U.S. EPA has yet to seriously consider 

regulating GHG emissions under CAA § 115. 

As its name—International Air Pollution—suggests, Section 115 was designed by 

Congress to address air pollution issues that are international in nature and that require, at 

the very least, consideration of actions taken by other countries. When certain 

requirements are met, including an endangerment finding, Section 115 authorizes 
15

U.S. EPA to issue what amounts to a State Implementation Plan (SIP) call, requiring 

states to take direct action in regulating domestic emission sources. To trigger action 

Section 115, there must be (1) receipt of an international report; (2) an international (as 

opposed to domestic) endangerment finding; and (3) international reciprocity. 

The ANPR expended only three paragraphs discussing Section 115 as an avenue for 

regulating GHG emissions. 14 Two issues raised by U.S. EPA in this discussion require 

clarification. First, in the ANPR, U.S. EPA appears to assume that a GHG NAAQS 

would be required before Section 115 could be used. 73 Fed. Reg. 44354, 44482 (July 

30, 2008). APPA believes this is incorrect. U.S. EPA may require SIP revisions in order 

to meet NAAQS attainment ―or to otherwise comply with any additional requirement 

established under [the Act].‖ 42 U.S.C. §§ 7415(b), 7410(a)(2)(H)(ii). Second, U.S. EPA 

also seemed to assume that an endangerment finding under Section 115 is no different 

than the endangerment finding provisions found elsewhere in the Act. 73 Fed. Reg. at 

44420. This is also incorrect, as a Section 115 endangerment is fundamentally different

in that it analyzes the effects of air pollution outside of the United States. As discussed 

below, an endangerment finding under Section 115 does not prompt the endangerment 

―overflow‖ and regulatory ―cascade‖ under other provisions of the CAA. 

U.S. EPA‘s failure to give serious consideration to a potentially relevant provision may 

be, not just unwise, but unlawful as a matter of administrative action. Before finalizing 

the proposed endangerment finding, the Administrator should either consider using 

Section 115 in lieu of Section 202 or explain why the Clean Air Act‘s existing provision 

governing international air pollution is unsuited to regulated proposed air pollutants that 

are indisputably international in scope. 

As the U.S. EPA considers the viability of a Section 115 over a Section 202 

endangerment finding, it should consider the following issues at a minimum: 

o First, Congress designed Section 115 for air pollution that is international in nature. 

Its reciprocity requirement allows the U.S. EPA to consider the extent of GHG 

emission regulation in other countries and how domestic regulation would effect 

domestic sources competing in a globalized market. Although Section 115 would 

only regulate these domestic emission sources, regulatory decisions could be 

informed by the type and degree of controls taken by other countries, either 

independently or through international agreements.

 

14 Importantly, the staff analysis is comprehensive with regard to virtually every other CAA program, so this should 

in no way be read as a criticism of the document generally.
16

o Second, Section 115 provides an alternative to a Section 202 endangerment finding 

while still satisfying the U.S. Supreme Court‘s mandate in Massachusetts. Under 

Section 115, U.S. EPA may still issue an endangerment finding and may still regulate 

mobile source emissions, however, it would likely prevent the endangerment 

―overflow‖ and regulatory ―cascade,‖ as discussed below. Further, as discussed 

above, Section 115 will allow for regulation that is more befitting an international 

environmental matter than under Section 202. 

o Third, the issuance of an endangerment finding and subsequent regulation under 

Section 115, instead of Section 202, may avoid the endangerment ―overflow‖ and 

regulatory ―cascade‖ that will lead to unintended consequences, constrain U.S. EPA 

discretion and result in years of legal challenges. The unique nature of Section 115 

provides strong arguments to avoid regulating GHG emissions in ways not intended 

by Congress and resulting in severe regulatory burdens. Additionally, U.S. EPA will 

be afforded more discretion to develop a GHG emission regulatory plan that 

effectively utilizes available resources to reduce emissions in a more comprehensive 

and efficient manner.

o Finally, Section 115 allows U.S. EPA to partner with the States in order to create 

more flexible, efficient, creative and effective regulatory programs while remaining 

under U.S. EPA oversight at the national level. Several States have invested 

significant sums of time and resources into developing their own GHG mitigation 

strategies on either a state-wide or regional basis. Section 115‘s SIP process allows 

opportunities for States to reduce GHG emissions through consideration of their own 

unique combination of emission sources and control alternatives, rather than have to 

work within a uniform set of federal mandates. 

For all of these reasons, U.S. EPA should provide serious consideration to withdrawing 

its proposed endangerment finding under Section 202 and proceeding under Section 115

or at least articulate a reasoned basis for rejecting Section 115‘s provisions governing 

international air pollution control.

VI. U.S. EPA’s regulatory options following an endangerment determination on human 

health basis would require considerable U.S. EPA’s Science Advisory Board (SAB) 

review and analysis before the U.S. EPA could propose specific regulations.

Although APPA believes that public health endangerment is not justified, we recognize that U.S. 

EPA is proposing precisely such a finding. Should the U.S. EPA proceed with an Endangerment 

determination based upon public health, the U.S. EPA and the SAB must review many 

regulatory options. Included in the staff preparation of options would be SAB review and votes 

as to the proper way to regulate. The SAB must meet, review technical papers dealing with 
17

human health issues (if they exist) and processes that the U.S. EPA could utilize to reduce the 

pollutants and reduce the human health risks.

Typically from staff preparation time to concluding votes, SAB review may require as long as 

two years. APPA urges the U.S. EPA to take the required time to make suggestions for SAB‘s 

review. This time would be consistent with SAB‘s on-going review of ozone, PM, PM 2.5 and 

other pollutants such as lead.

VII. Any U.S. EPA action following an endangerment finding must consider all of the 

U.S. EPA’s regulatory options. 

Prior to finalizing any Section 202 endangerment finding, the U.S. EPA must carefully assess 

and be prepared for the consequences of impacts not just on cars and light duty trucks, but on 

stationary source GHG emissions. The regulatory options currently available to the U.S. EPA 

were not designed and not adaptable for controlling GHG emissions that accumulate and mix on 

a global scale. An attempt to force GHG emission reductions through the National Ambient Air 

Quality Standards, New Source Review and the New Source Performance Standards programs 

would involve enormous costs and unparalleled administrative burdens and likely inefficient 

results. 

The global nature of GHG emissions bar any realistic or practical NAAQS approach. First, 

no State can take any meaningful action to reduce GHG concentrations in either their region 

or the United States, making it impossible for any state or county to move from a 

nonattainment status to attainment. It is well understood that a NAAQS for GHGs will be 

utterly ineffective at a local or regional level, but will result in solely a symbolic statement 

that the nation is either in attainment or out of attainment for GHGs. Second, implementing a 

NAAQS depends on the existence of control technologies that will reduce stationary source 

emissions. No commercially feasible control technology exists today to reduce GHGs from 

fossil-fueled electricity generating units. While pursuing the impossible goal of reaching 

NAAQS attainment status, States and their regulated industrial sources would be subjected to 

extraordinarily costly, onerous, and punitive regulatory requirements that will not lead to any 

ability for them to come into attainment. The only other alternative, classifying the entire 

nation as being in attainment with a GHG NAAQS would likely produce little GHG 

reductions and be strongly opposed by environmental groups. 

Congress designed the NSPS to regulate stationary sources that cause or contribute 

significantly to air pollution that may endanger the public health or welfare. 42 U.S.C. § 

7411(b)(1)(A). Under the NSPS, new or modified stationary sources must meet emission 

standards based on the best demonstrated technology – a standard that must be ―adequately 

demonstrated‖ in practice. Id. § 7411(a)(1). Congress‘ intent for broad national standards 

was to prevent industries from ―forum shopping,‖ where they seek out States with the most 

lenient air pollution standards. ASARCO, Inc. v. EPA, 578 F.2d 319, 327, 332 (D.C. Cir. 

1978). The global nature of GHG concentrations, however, nullifies such an intent – GHG 

emissions originating from one State will have no different an impact on global GHG 

concentrations than if the facility was located in any other State. Additionally, no control 
18

technology to control or capture GHG emissions has been ―adequately demonstrated‖ for 

purposes of NSPS at this time. 

Section 112 of the Act regulates hazardous air pollutants (―HAPs‖), which are commonly 

referred to as air toxics. The U.S. EPA is required to identify major sources of HAPs, which 

are in turn required to employ highly stringent levels of emissions controls known as 

―maximum achievable control technology‖ (―MACT‖). The threshold emission or potentialto-emit levels defining a ―major source‖ under section 112 are extremely low – 10 tons per 

year (―tpy‖) for individual HAPs or 25 tpy for multiple HAPs from a source. 42 U.S.C. § 

7412(a)(1). Thus, listing one or more GHGs as a HAP would expand the applicability of 

section 112 to at least hundreds of thousands of new sources across the nation, imposing 

upon them one of the most stringent and costly types of regulation under the CAA. New 

potential major sources would become subject to case-by-case MACT determinations before 

construction. The costs and time associated with implementing such a program would be 

astonishingly burdensome. Section 112 was, however, quite obviously never intended to 

regulate substances such as GHGs, where emissions are dispersed globally rather than 

causing low-dose local exposures. This is borne out by the fact that the 190 HAPs listed by 

Congress generally cause serious health effects in small doses (most are known or suspected 

carcinogens). GHGs, in contrast, are not lethal to humans by direct exposure in amounts 

anywhere remotely close to those released by any type of emissions source, be it electric 

power plants or lawn mowers (or, for that matter, human exhalation). Section 112 was 

clearly not designed, and is wholly ill-suited, to address GHG emissions. 

The NSR program applies to any new stationary source emitting a threshold amount of a 

regulated air pollutant and existing sources that undertake modifications triggering emission 

increases above a significance level. 42 U.S.C. § 7479(1); 40 C.F.R. § 52.21(b)(23)(i). 

Although GHGs are not currently a regulated NSR air pollutant, if the U.S. EPA were to 

change this status, stationary sources with the potential to emit more than 250 tons of GHGs 

would become subject to the NSR program. U.S. EPA has acknowledged that GHGs are 

routinely emitted in such large quantities that the number of new sources requiring NSR 

permits would increase by orders of magnitude, with one study placing the number in excess 

of one million sources. Portia Mills, A Regulatory Burden: The Compliance Dimension of 

Regulating CO2 as a Pollutant, Sept. 2008. The administrative burden under such a scheme 

would be immense. Permitting times would increase dramatically, even with dramatic 

increases in permitting staff and budgets. This is at a time where the country desperately 

needs new jobs, economic growth would be stifled across all sectors. Finalizing a Section 

202 Rule without being prepared for the consequences on the NSR program would be an 

administrative and economic disaster, and further demonstrates the need for the U.S. EPA 

must carefully exercise its discretion at this time regarding the timing of any endangerment 

determination and subsequent GHG regulation. 

APPA also thinks that, in consideration of a Section 115 approach to controlling CO2 from 

power plants, that the U.S. EPA should become more familiar with technology options that are 

commercially viable now or would be likely to become commercially viable in the next decade. 

Additionally, APPA is familiar with the ―envelope‖ policy of controlling CO2 and conventional 

pollutants in Australia. This approach is be worthy of consideration by the U.S. EPA since this 
19

approach has allowed the Australian government to set reduction targets for CO2 (which are 

enforceable) but also that provide the maximum flexibility to industrial facilities, commercial 

enterprises, and local government. The Australian government has had an aggressive CO2

reduction strategy through its ―envelope‖ program which includes first measures such as energy 

efficiency, changes in building codes, and other measures with geologic sequestration to follow 

when the costs reduce. These reduction methods have nothing to do with the Australian 

government‘s Emissions Trading System (ETS) for GHGs which is expected to go into effect in 

2010. However, Australian‘s approach to regulating CO2 through other less expensive but 

verifiable methods should by the U.S. EPA. This approach should be seriously evaluated for any 

future proposed regulatory actions. 

Beyond the ―envelope‖ approach, Australia has some very useful pilot projects on geologic 

sequestration of CO2 in situ that would be very valuable to study. Two of the primary benefits of 

the Australian CCS projects is that they have tremendous emphasis on reducing the parasitic load 

of the plants to run the carbon separation and geologic sequestration and that they have assessed 

the cost of CCS to be, in 2009 dollars, the equivalent to $125 U.S. (these costs include 

transportation and SO2 removal which are not required in the Australian projects). While these 

numbers may not be dispositive for geologic sequestration technologies in the U.S. they are a 

very helpful start to understanding the costs and timing of geologic sequestration in the U.S. 

APPA does not presume that everything that the Australian government has done is to be used in 

a cookie-cutter fashion but we do believe that since CO2 is a global substance that looking at 

what other countries have done might merit consideration before the U.S. EPA proposes 

standards under the Clean Air Act. 15

In addition, the U.S. EPA should focus on each pollutant in a common sense manner based upon 

it with scientific technology and economic impacts to society. This might mean, for example, 

that CO2 and methane might be regulated differently for different industrial or commercial 

sources. APPA believes, as stated in the introduction to these comments and in our ANPR 

comments (submitted on Nov. 26th, 2008) that the Clean Air Act was not designed to deal with a 

 ̳pollutant‘ as ubiquitous as CO2. If the U.S. EPA proceeds, the full panoply of regulatory options 

must be considered under the Clean Air Act. 

VIII. The various regulatory options must consider energy policy and consequences from 

fuel switching to natural gas.

APPA believes the U.S. EPA may have a notion that the entire electric utility sector may switch 

to natural gas as a CO2 mitigation/ reduction method. Serious questions remain as to availability 

of adequate natural gas supplies as well as the impacts to the existing coal fleet if the existing 

fleet were prematurely retired. In addition to supply issues, the U.S. EPA must consider fuel cost 

volatility in the economic analysis. This economic analysis is required under Executive Order 

12866, the Unfunded Mandates Reduction Fairness Act (UMRA) and the Small Business 

 

15 Summary of the Australian Carbon Capture & Storage and conventional pollutant/energy efficiency ―envelope‖ 

policy based upon a presentation by and follow up conference call with the Honorable James McGregor, PE, Energy 

Systems Manager, CSIRO Energy Technology, CSIRO Energy Centre, Mayfield West NSW, Australia. 

James.mcgregor@csiro.au 
20

Regulatory Enforcement Act of 1996 (SBREFA) require such analysis of economic impact, 

unfunded mandates and energy impacts. More than 90 percent of APPA‘s member utilities are 

SBREFA qualified. As our member utilities are entities of local and state government, all are 

covered by UMRA.

Other economic and industry infrastructure considerations:

The cost of building new natural gas storage and pipeline infrastructure for the 

portion of coal-fired electric utility sector should it be forced to switch to natural 

gas under a NAAQS, NSPS, HAPs, or PSD driven regulatory system. 

The U.S. EPA‘s economic impacts should identify the macroeconomic effects to 

regions of the U.S. such as the Southeast and Midwest areas that rely heavily 

upon coal-generation. 

The costs of pre-maturely retired or mothballed coal generation facilities and any 

remaining debt incurred by a division of state and local governments under 

UMRA. These debts must be evaluated on a state and regional basis.

Natural gas, emissions from natural gas units, and the realities of power plants:

One of the greatest myths of ―baseload‖ generation today is that the power plants run 24 hours a 

day, seven days a week at full generating capacity. This is almost never the case. Most 

―baseload‖ coal plants have increasing variation in load on a daily, weekly and monthly basis 

reflecting both market dispatch and criteria pollutant control concerns (based upon energy 

generation). Additionally, from 2002 to 2007 the U.S. has nearly tripled its electricity generation 

from wind and solar from 0.304 percent of to 0.806 percent16 (energy generation) and the 

presence of these excellent resources has necessitated more fluctuations in generating capacity of 

the baseload coal plant to meet and follow demand when the wind drops or sunlight decreases.

Electricity is generated from natural gas using either a simple cycle or combined cycle process. 

The simple cycle natural gas utility unit operates in the same way as an airplane engine and, in 

fact, these are almost always retired airplane engines. 

How combined cycle and simple cycle natural gas units differ:

The simple cycle natural gas utility unit‘s fuel is burned and the hot compressed exhaust gases 

expand through a turbine to generate electricity. This simple cycle has the advantage of being 

able to be started up and produce electricity very rapidly. However, the heat in the exhaust gas is 

wasted, thus leading to lower efficiency overall. 

The combined cycle plant uses the waste heat from the exhaust gas to generate steam to produce 

additional electricity, thus using the same fuel source twice (thus the expression ―combined 

cycle‖). Therefore, it takes additional time (upwards of 2-3 hours, depending on the temperature 

of the boiler water and ambient conditions) for the plant to generate electricity at full capacity. 

 

16 Based on EIA data
21

Until the water is heated enough to produce steam, the combined cycle plant will only operate in 

a low-load simple cycle startup mode thus producing less electricity.

Availability of natural gas is critical—but it is not the total picture:

With the newly emerging shale gas production fields in Texas, Arkansas, and the Marcellus shale 

fields in the northeastern United States, it might be more feasible to fuel switch electric utilities 

to natural gas from a resource standpoint. However there might be reliability impacts if the entire 

electric utility‘s fossil generation is based upon natural gas for baseload generation. 

In plain English, the ―nimbleness‖ refers to how quickly full power can be produced when the 

utility gets the signal for dispatch. U.S. EPA must include in its regulatory analysis the complete 

natural gas picture if fuel switching (directly or indirectly) is used to set a CO2 standard or if a 

natural gas equivalency is to be used for a NSPS. The U.S. EPA must look at pipeline and 

storage capacity and fuel price volativity in addition to North American natural gas supply 

(including Canada)

APPA believes that when the U.S. EPA assesses the options of controlling CO2 through a 

NSPS standard which is either directly or indirectly a natural gas equivalent, that these 

reliability, ―nimbleness‖, natural gas infrastructure, and cost issues should be considered 

for the entire utility industry. These are the critical real world issues affecting the 

effectiveness of a CO2 control method at the U.S. EPA that will determine how effectively and 

how quickly CO2 can realistically be reduced through fuel switching to natural gas.

Wind and natural gas: Many current press stories and interviews feature the benefits of wind 

and other renewables with natural gas as the backup. Many APPA member utilities are very 

proud of their investments in wind generation and often have simple cycle generation backing up 

that wind. Currently wind power from electric utilities is supplemented with simple cycle natural 

gas turbines – that can produce full power at perhaps 30 minutes‘ notice if the wind ceases to 

blow (or when the wind or ice exceeds a safe operating condition). That comes at a cost of 

increased CO2 emissions – simple cycle plants average approximately 1350 lb/MWh versus 

combined cycle plants which can operate at less than 900 lb/MWh (when running continuously).

While natural gas generation overall can potentially reduce the CO2 emission rate by 

approximately half compared with the CO2 emission rate of coal generation, the U.S. EPA must 

consider the ―real world‖ operating and fuel supply conditions which might make combined 

cycle natural gas power plants unable to achieve that presumed ―half‖ of the emissions level of a 

conventional coal plant.

The cost of finding oil and natural gas resources cost companies 35 percent more last year amid 

the up-and-down ride of commodity prices, according to a report released June 18, 2009 by Ernst 

& Young. While this figure includes oil, there are operational and locational links between oil 

and gas. The three-year average cost per barrel of oil equivalent, excluding acquisitions and 

proved reserves, was $27.22. That cost jumped to $51.96 in 2008. Thus the costs for producing 

natural gas would also increase. APPA believes that these operational issues and price volatility

should be considered by the U. S. EPA when it considers any natural gas-equivalent standard or 

NSPS or other Clean Air Act regulation which would use the CO2 equivalent from a natural gas 

as a method to determine, set or calibrate any future EPA standard.
22

IX. APPA believes the U.S. EPA has considerable discretion in sequencing or phasing in 

regulatory controls under the existing Clean Air Act. 

We recognize that President Obama recently announced on that the government will regulate 

cars and light duty trucks in the upcoming year. Importantly, however, the government can 

achieve these goals through the imposition of CAFE standards. The U.S. EPA has discretion at 

this time to avoid imposing Clean Air Act regulations of GHGs, and thus avoid the adverse 

consequences described above.

At the outset, the U.S. EPA has discretion to defer a final endangerment determination at this 

time and avoid the adverse consequences described above. Specifically, the U. S. EPA retains 

considerable discretion regarding when regulations imposing emission reductions may be 

promulgated and the schedule for which any emission standards are phased-in. The U.S. 

Supreme Court‘s Massachusetts decision noted the U.S. EPA‘s substantial discretion in when it 

must respond to the Court‘s mandate. Massachusetts, 549 U.S. 497533 (2007) (―EPA no doubt 

has significant latitude as to the manner, timing, content, and coordination of its regulations with 

those of other agencies‖); see also Massachusetts v. EPA, Dkt. No. 03-1361 (D.C. Cir. June 26, 

2008) (per curium order rejecting petition for writ of mandamus) (the court has ―often allowed 

delays significantly beyond a year, especially where, as here, the issue facing the agency was 

both complicated and controversial‖); S.F. Chapter of A. Philip Randolph Inst. v. EPA, 2008 

U.S. Dist. LEXIS 27794 at *10-11 (N.D. Cal. Mar. 28, 2008) (―[t]he Supreme Court was careful 

not to place a time limit on the U.S. EPA, and indeed did not even reach the question whether an 

endangerment finding had to be made at all‖). Courts apply a ―rule of reason‖ for agency 

decision-making that heavily weighs the complexity of the issue under consideration. See Sierra 

Club v. Thomas, 828 F.2d 783, 799 (D.C. Cir. 1987) (―Given the complexity of the issues facing 

the U.S. EPA and the highly controversial nature of the proposal, agency deliberation for less 

than three years – little more than one year since the close of the public comment period – can 

hardly be considered unreasonable.‖).

Here, the U.S. EPA is faced with the most complex and ambitious regulatory action the Agency 

has ever attempted. There is no legal mandate for the Administrator to issue an endangerment 

finding quickly, or at all, and certainly no reason why the Agency should take action before 

resolving the myriad of impacts such a finding would have on the regulated community and the 

resources of permitting agencies. Caution and deliberation are imperative in this case, given the 

lack of any statutory instruction from Congress. The Administrator should, at the very least, 

consider other options described in both comments on the Proposal and on the ANPR before 

considering further action. 

If the U.S. EPA were to proceed with issuing a final endangerment finding and emission 

standards for mobile sources, the Agency should remain mindful of exercising discretion 

regarding the timing of subsequent regulatory triggers. For example, certain groups may argue 

that an endangerment finding under Section 202 would satisfy the requirements of an 

endangerment finding under Section 108(a). The statute, however, does not dictate when a 

Section 108(a) finding must be made, stating only that primary and secondary ambient air quality 

standards need only be revised ―from time to time....‖ 42 U.S.C. § 7408(a)(1). This discretion 
23

affords the U.S. EPA the opportunity to undertake a proper deliberation regarding how it will or 

will not approach the question of establishing air quality criteria, how States may address 

stationary source controls in their implementation plans and several other issues inherent in such 

an endangerment finding. Ultimately, the U.S. EPA retains discretion through the SIP process in 

determining how and when GHG emission reduction strategies are phased-in over time. 

Further, and critical to APPA and its member utilities, the Agency also should exercise 

additional discretion to avoid regulating GHG‘s at this time under the Section 111 NSPS. NSPS 

can provide the U.S. EPA with an additional layer of discretion to avoid imposing standards at 

the outset if the U.S. EPA chooses to exercise such discretion. Unlike most other Clean Air Act 

provisions, Section 111 explicitly mandates only the promulgation of source category emission 

standards that the Administrator ―deems appropriate,‖ as acknowledged in the Agency‘s final 

rulemaking promulgating standards of performance for petroleum refineries. 73 Fed. Reg. 

35838, 35858 (June 24, 2008) (citing 42 U.S.C. § 7411(b)(1)(B)). For example, the U.S. EPA in 

the 2008 NSPS for petroleum refineries exercised this discretion to decline setting performance 

standards for GHGs, citing the statute‘s provision of ―significant flexibility in determining which 

pollutants are appropriate for regulations under 111(b)(1)(B).‖ 73 Fed. Reg. at 35858 (citing 

Nat’l Lime Ass’n v. v. EPA, 627 F.2d 416, 426 (D.C. Cir. 1980); Nat’l Ass’n of Clean Air 

Agencies v. EPA, 489 F.3d 1221, 1228-1230 (D.C. Cir. 2007)).17 In explaining its previous 

declination to impose GHG emission standards on petroleum refineries, the U.S. EPA stated that 

the global nature of GHG emissions ―renders them readily distinguishable from other air 

pollutants,‖ which warranted ―proceeding initially through a more deliberate process‖ such as the 

ANPR. 73 Fed. Reg. at 35860. Additionally, the subsequent ―complexity of PSD issues arising 

from regulation of GHG emissions, among other complex issues of regulating a pollutant,‖ made 

them unsuited for new source performance standards. 73 Fed. Reg. at 35860-61. The U.S. EPA 

should not disturb its prior exercise of discretion in refraining from imposing GHG standards 

under Section 111. Instead, it should explore the many regulatory and sequencing alternatives 

offered in both the ANPR in the comments and from industry to the ANPR. 

X. The U.S. EPA might want to address others first before addressing all industrial 

sectors.

Ultimately it will be difficult to reduce CO2 adequately in the U.S. to compensate for the 

significant increases in CO2 as the third world industrializes. In order to achieve significant 

emissions reductions, targets must be focused on economy-wide approaches. The U.S. EPA has 

suggested in the ANPR and other TSD reports that significant reductions in CO2 could be 

accomplished through Federal Acquisition Requirements (FAR), changes in local building codes, 

and through fleet conversions of U.S. government owned fleets (postal trucks, military/noncombat vehicles etc.) APPA applauds the consideration that realistic CO2 reduction methods 

across all industrial sectors be encouraged in this way while reasonable reduction methods are 

undertaken following a welfare-based endangerment determination. APPA strongly believes that 

sequencing or other practical approaches might allow the use of energy efficiency measures 

 

17 EPA also determined that nothing in the NSPS 8-year review provision requires the addition of new standards for 

air pollutants not previously covered. 73 Fed. Reg. at 35859-60.
24

involving the ultimate utility customer to be considered as a viable emissions reductions options 

for fossil generation electric utilities in lieu of fuel switching to natural gas (or a NSPS 

equivalent such as what Congress has defined in recent legislation as CCS technology with 

emissions limits for power plants of roughly 65 percent reduction). This does not preclude CCS 

or other technologies in later years. It merely makes reduction targets more realistic. Fuel 

switching to natural gas would only reduce the CO2 emissions by approximately 50 percent

while the regulatory impact of that fuel switching to gas would be enormous. Natural gas 

production and combustion involves methane emissions. It is not clear to the APPA that fuel 

switching to natural gas will result in an exact reduction of CO2 by 50 percent given both the 

increases in methane in natural gas production and combustion and the increased use of natural 

gas for renewables.

XI. APPA believes the U.S. EPA must insure that control technologies are both 

commercially viable and fully demonstrated before it regulates emissions sources

through NSPS, HAPS, or criteria pollutants NAAQS/SIP process.

APPA strongly supports the research and demonstration of pilot or RD&D projects needed for 

carbon separation and geologic sequestration of CO2. We believe the technology is promising 

but not yet a promise. APPA believes that any endangerment decision and the ensuing regulatory 

actions for the electric utility sector must consider the commercial deployment of a technology 

before it is used to set or inform BACT, LAER, or NSPS standards for coal or gas fired 

generation. Commercial deployment must be based upon non-oil and gas locations, solely power 

plant applications of CCS, and injection into a wide variety of geologic formations.

XII. Before making an endangerment determination that could lead to proposing and 

setting standards, the U.S. EPA must consider the ramifications of international 

GHG emission contributions to the background emissions. 

Additionally APPA believes that the U.S.EPA must consider additional CO2 emissions resulting 

from increased industrial growth in India, China, Former Soviet/Russian countries, Latin 

America and from changes in generation demand. For example, any NSPS, NAAQS or other 

Clean Air Act regulatory system must accommodate electricity growth demand increases.

Additionally, any U.S. EPA action to regulate electric utilities must also propose a way to 

flexibly accommodate increased CO2 and other GHGs if the advent of PHEVs (broadly adopted) 

as well as any other electronic products not envisioned today. Given the advent of computers, 

internet, PDAs, IPODs and cell phone technology which was not imagined in 1977, this is not a 

far-fetched possibility. Such electrification of new products or displacement of liquid fuels 

would likely increase CO2 from the electric utility sector until nuclear power or renewables are 

broadly deployed.

XIII. APPA believes the U.S. EPA must consider existing renewable requirements and 

other state or regional GHG reduction strategies, regulations and laws to give credit 

for early reduction of CO2 .

APPA would like to reserve the right to file additional comments on this later. 
25

XIV. APPA believes that the U.S. EPA’s actions under the Clean Air Act must consider 

both international energy forecasts, emissions, and growth in CO2 emissions 

resulting from circumstances beyond the utility’s control before setting standards.

The U.S. Department of Energy‘s Energy Information Administration (EIA) predicts global 

energy demand will rise 44 percent between 2006 and 2030, cause mainly by a 73-percent rise in 

demand from non-developed countries18. The giants of the developing world, China and India, 

will fuel much of the growth as their economies continue to expand, EIA said in its International 

Energy Outlook 2009 report. The EIA projects global carbon dioxide emissions to reach 40.4 

billion tons by 2030, up from 29 billion in 2006. A tenth of the increase in CO2 emissions – an 

additional 1 billion tons a year by 2030, rising from 13.6 billion tons in 2006 to 14.6 billion –

will come from the world's developed countries. The lion‘s share – an additional 10 billion tons 

a year by 2030, a jump from 15.4 billion to 25.8 billion – will come from the world‘s developing 

nations. By 2030, developing countries‘ CO2 emissions will exceed those of developed countries 

by 77 percent. See the figure below:

Some of this increase is fueled by electronics. The International Energy Agency estimates that 

the yearly energy consumed from Information Technology and consumer electronics is on pace 

to double by 2020 and triple by 2030 to 1,700 terawatt-hours. That would be the equivalent of 

the combined residential electricity consumption of Japan and the United States in a year. This 

growth will again be more pronounced in developing countries. Whereas mobile phones are 

prevalent in the U.S., in Africa, only one in nine people now has a mobile phone

 

18 See May 27, 2009 Associated Press Story (AP) ―Carbon pollution to grow by 40%‖, AP, H. Josef Herbert and 

related articles including ―Global energy demand seen up 44% by 2030:EIA‖ , source: Reuters By Tom Doggett and 

Ayesha Rascoe, May 27, 2009.
26

APPA believes that the U.S. EPA must seriously evaluate the effectiveness of any CO2 or GHG 

control program under the Clean Air Act given these international or ―background‖ emissions 

details. The U.S. government‘s regulatory system, whether under the Clean Air Act or any other 

authorizing law, should consider both the emissions inventory contributions from other countries 

and new factors that might increase CO2 emissions in outlying years. The additional causes for

CO2 emissions from power plants might be increases in population which would drive load as 

well as increased reliance from electricity to power Plug In Hybrid Electric Vehicles (PHEVs). 

Unless all new PHEV vehicles are powered by 100 percent renewables or nuclear, there would 

be some increase in CO2 emissions at most utilities. Even where wind generation is backed up 

with natural gas, the PHEV vehicle charging would have impacts on CO2 emissions from the 

power plant. APPA believes that any U.S. EPA control strategy should give flexibility to reduce 

CO2 but must also consider load growth from electronics, PHEVs and population increases. 

These are the types of complex issues that the U.S. EPA‘s SAB needs to review before the EPA 

can propose effective regulations.

Conclusion:

APPA believes that the U.S. EPA must recognize the limitations of the existing Clean Air Act as 

a regulatory system to reduce CO2 in any effort to slow stop or reverse the ill effects of climate 

change. APPA would prefer a new law to control CO2 and other GHGs. While APPA‘s 

comments on preferring a new law do not imply support for H.R. 2454 (the Waxman-Markey 

bill), we believe that it is possible to craft a better way to reduce CO2 for the electric utility 

sector.

APPA resubmits in these comments our comments submitted on Nov. 26th, 2008 and asks that 

those comments be considered in totality. APPA notes that the U.S. EPA proposed endangerment 

determination requests a resubmittal of these ANPR comments for consideration. APPA also 

re-submits the comments on the U.S. EPA UIC Class VI Proposed Rule since there is a link 

between the presumption of CCS as a control technology and its commercial deployment and the 

timing of geologic injection or ―geosequestration‖ for non-oil and gas sector locations.

APPA believes the expertise of the U.S. EPA senior water, waste, and air staff should be used to 

benefit the U.S. EPA administrator on the timing, availability and commercial deployment for 

geosequestration if CCS is presumed to be the technology to enable future coal plants in the 

electric power sector. APPA believes the U.S. EPA Office of Air and Radiation presumes the 

technology to be commercially deployable in the next decade while the U.S. EPA‘s Office of 

Water (OW) and the state water directors recognize that the data needs for new full size coal 

plants (>800MW) with large scale geosequestration might take more than two decades. APPA is 

very optimistic about the possibility of the technology but does not want the U.S. EPA‘s Office 

of Air and Radiation to presume that the technology is fully commercial or deployable in all

states at this time. The multimedia or cross regulatory programs must be discussed at the most 

senior levels of the U.S. EPA before the U.S. EPA should propose any regulatory standards 

based upon carbon separation and geologic sequestration for the electric utility sector‘s fossil 

fleet.
27

Submitted by: 

Theresa Pugh

Director, Environmental Services

American Public Power Association

(202) 467-2943

JP Blackford 

Environmental Services Engineer

American Public Power Association

(202) 467-2956

Appendix
28

I. APPA‘s November 26th, 2008 comments on ANPR

II. APPA‘s December 19th, 2008 comments on UIC

III. APPA- AWWA joint letter on UIC Class VI Proposed Rule 

IV. Gov't: Carbon pollution to grow by 40 percent.

By H. Josef Hebert

V. ―Global energy demand seen up 44% by 2030:EIA”

Reuters by Tom Doggett and Ayesha Rascoe, May 27, 2009

VI. APPA Legislative Resolutions

Resolution 08-03: Encouraging the Environmental 

Protection Agency to Act Prudently on Any Proposals to 

Regulate Greenhouse Gas Emissions

Resolution 09-08: Enact Climate Change Legislation that 

Is Distinct and Separate from the Clean Air Act and 

Addresses the New Source Review Dilemma

Resolution 08-10: Principles for a Potential Federal Capand-Trade Program to Reduce Greenhouse Gas Emissions
December 24, 2008

U. S. Environmental Protection Agency

Docket ID No. EPA-HQ-OW-2008-0390

Office of Groundwater and Drinking Water (OGWDW)

Mail Code: 2822T

1200 Pennsylvania Ave. NW

Washington, DC 20460

 

RE: Federal Requirements Under the Underground Injection Control (UIC) Program 

for Carbon Dioxide Geosequestration Wells, Proposed Rule

 

Dear Docket:

This letter is submitted on behalf of the American Water Works Association (AWWA) 

and the American Public Power Association (APPA). Our two associations represent

utilities that provide drinking water and/or electric generation to approximately

260,000,000 customers across the United States. Together we represent more than 90% 

of all the municipal electric (2,000) and drinking water systems (4,700) of all sizes. 

We submit this letter in response to the proposed rule from the July 25th, 2008 Federal 

Register (73 FR 43491). Both associations will file more detailed comments. However, 

AWWA and APPA have the following common concerns, which we are also addressing 

in more detail in separate Association correspondence.

 Protection of underground sources of drinking water (USDWs) should be the 

highest priority – "water should trump everything!"

 A Class VI regulatory permit system is needed to advance geosequestration 

demonstration projects.

 Geosequestration activities should be prohibited in the immediate vicinity of sole 

source aquifers.

 The protection of the lowermost USDWs is of critical importance, and the 

location of these USDWs should be the primary factor in determining if a 

geosequestration project can be located in the same area.

 Reevaluation of the Area of Review should occur annually for the first ten years, 

and then every five years for the remaining life of the project.

 Although geosequestration might look feasible, especially in oil/gas formations, 

there is still much to be known about this technology. 

The Authoritative Resource on Safe Water SM
December 24, 2008

Page 2

 Congress must address liability issues under CERCLA, RCRA and Natural 

Resource Damage Assessment before this technology is commercially 

deployable. 

 It is not realistic to presume that we know enough about carbon separation or 

geosequestration to draw the conclusion that all new power plants with these new 

technologies would be carbon neutral in the first few decades of operation. 

 More research is needed to answer USDW protection and technical questions 

related to feasibility, infrastructure and reliability. This research includes the 

work from the U.S. Geological Survey and other agencies.

We appreciate the expertise from your staff, and the public workshops and meetings that 

were held by your agency during the deliberative process. We stand ready to work with 

you and the state regulatory agencies in implementing the new rule.

Yours Sincerely,

Thomas W. Curtis Theresa Pugh

Deputy Executive Director Director, Environmental Services

American Water Works Association American Public Power Association
Copyrighted page(s) removed. Copyrighted 

material is not available in Regulations.gov since 

it may not be reproduced without consent of the 

copyright holder. 

Removed pages can be viewed at the USEPA 

Docket Center, Public Reading Room. 

Address: 1301 Constitution Ave, NW 

Room 3334 

Washington, DC 20004 

Telephone: 202-566-1744 

Email: docket-customerservice@epa.gov
Resolution 08-03 

Sponsors: JEA, MEAG Power 

Encouraging the Environmental Protection Agency to Act Prudently on Any 

Proposals to Regulate Greenhouse Gas Emissions 

The April 2007 U.S. Supreme Court decision in Massachusetts v. EPA stated that the 

U.S. Environmental Protection Agency (EPA) has the statutory authority under the 

existing Clean Air Act to regulate emissions of greenhouse gases from new motor 

vehicles if, in EPA’s judgment, those emissions cause or contribute to air pollution that 

may reasonably be anticipated to endanger public health and welfare. Greenhouse gases 

include carbon dioxide (CO2

), methane, and sulfur hexafluoride (SF6). If EPA makes 

such a judgment and regulates new motor vehicles, it could also seek to regulate 

emissions of greenhouse gases from electricity-related stationary sources such as fossil 

fueled power plants (that emit CO2 

and other greenhouse gases), substations (that use SF6 

insulation), and coal mines (that emit methane). A proposed rulemaking by the EPA 

could occur as early as in 2008. Any such rulemaking could substantially affect the 

ability of APPA members to deliver reliable electric service at a competitive cost. 

NOW, THEREFORE, BE IT RESOLVED: That the American Public Power 

Association (APPA) will monitor these possible regulatory developments and ensure that 

any rule, if finalized: 

1) Maintains the ability of APPA member utilities to deliver a reliable supply of 

electricity to residential, commercial, industrial, and government customers; 

2) Addresses all types of stationary sources appropriately, not just those associated with 

electricity production and delivery; 
3) Considers existing local, state and regional initiatives to address greenhouse gas 

emissions and the availability of local energy resources that have low greenhouse gas 

emissions; 

4) Considers greenhouse gas emissions reductions resulting from the Energy 

Independence and Security Act of 2007, Public Law 110-140; 

5) Ensure the reliability of the electricity grid by retaining a diverse mix of electric 

generation (including coal, oil, gas, nuclear, hydropower and other renewables); 

6) Considers the financial impact on consumers; 

7) Considers the availability of technological solutions; 

8) Guards against widespread fuel-switching to natural gas or an increase in dependence 

on imported fuels such as liquefied natural gas. 

As adopted June 24, 2008 by the membership of the American Public Power 

Association at its annual meeting in New Orleans, Louisiana.
Resolution 09-08 

Sponsor: APPA Climate Change Task Force 

Enact Climate Change Legislation that Is Distinct and Separate from the Clean Air 

Act and Addresses the New Source Review Dilemma 

The American Public Power Association (APPA) supports congressional action to reduce 

greenhouse gas (GHG) emissions to address the adverse effects of global climate change. 

However, the Clean Air Act (CAA) is particularly unsuited for such a task and APPA 

believes that Congress should adopt separate and distinct legislation addressing GHG 

emissions rather than amend the CAA to do so or to allow the Environmental Protection 

Agency to regulate GHG emissions under the existing CAA. 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

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18 

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In enacting separate GHG emission legislation, however, Congress must include 

provisions that make such separation from the CAA clear and workable. This would 

include, for example, provisions that ensure there is a pollution control exclusion 

specifically designed for CO2 and other GHG emissions, and a clear exemption from the 

CAA Title V permitting program and any other relevant parts of the Clean Air Act that 

could inadvertently create ambiguity and/or unnecessary duplication between the Clean 

Air Act and any new statute to reduce GHG emissions. 

In addition, Congress needs to resolve the “New Source Review dilemma” that is 

currently impeding the most efficient use of many coal and natural gas-fired electric 

generating units. On October 27, 2003, the Environmental Protection Agency (EPA) 

finalized a rule on New Source Review (NSR) for Routine Maintenance, Repair, and 
Replacement (RMRR) that was challenged in federal court. On May 2, 2007, the 

Supreme Court refused the petition to hear this case. Until the matter is resolved by 

Congress or the EPA, all electric utilities continue to face great uncertainty surrounding 

NSR and how to make maintenance and repair decisions without consulting state 

agencies or EPA. As a result, fossil-fuel generation owners have been extremely 

conservative in their maintenance and repair activities so that NSR requirements are not 

triggered that would obligate them to install very expensive new control equipment. 

APPA believes that any federal GHG emission reduction regime enacted by Congress or 

the Administration should not trigger NSR. 

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APPA believes Congress must be accountable to the American consumer for establishing 

a set of climate change goals and a broad greenhouse gas statutory framework under a 

new law and remove the confusion from attempting to regulate CO2 under the Clean Air 

Act while also resolving the application of NSR. 

NOW, THERFORE, BE IT RESOLVED: That APPA urges Congress not to use the 

Clean Air Act to regulate CO2 or other greenhouse gas emissions, but to enact stand-alone 

legislation to address reduction of those emissions and include provisions that clearly 

separate the GHG emissions reduction program from the requirements of the CAA. This 

would include, for example, provisions that ensure there is a pollution control exclusion 

specifically designed for CO2 and other GHG emissions, and a clear exemption from the 

CAA Title V permitting program; and 
BE IT FURTHER RESOLVED: that APPA supports reform of the new source review 

requirements in the CAA that would allow reasonable levels of routine maintenance, 

repair, and replacement at existing coal-fired generating units in order to improve their 

efficiency and reliability without resulting in the application of NSR requirements. 

43 

44 

45 

46 
Resolution 09-08 

Sponsor: APPA Climate Change Task Force 

Enact Climate Change Legislation that Is Distinct and Separate from the Clean Air 

Act and Addresses the New Source Review Dilemma 

The American Public Power Association (APPA) supports congressional action to reduce 

greenhouse gas (GHG) emissions to address the adverse effects of global climate change. 

However, the Clean Air Act (CAA) is particularly unsuited for such a task and APPA 

believes that Congress should adopt separate and distinct legislation addressing GHG 

emissions rather than amend the CAA to do so or to allow the Environmental Protection 

Agency to regulate GHG emissions under the existing CAA. 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

In enacting separate GHG emission legislation, however, Congress must include 

provisions that make such separation from the CAA clear and workable. This would 

include, for example, provisions that ensure there is a pollution control exclusion 

specifically designed for CO2 and other GHG emissions, and a clear exemption from the 

CAA Title V permitting program and any other relevant parts of the Clean Air Act that 

could inadvertently create ambiguity and/or unnecessary duplication between the Clean 

Air Act and any new statute to reduce GHG emissions. 

In addition, Congress needs to resolve the “New Source Review dilemma” that is 

currently impeding the most efficient use of many coal and natural gas-fired electric 

generating units. On October 27, 2003, the Environmental Protection Agency (EPA) 

finalized a rule on New Source Review (NSR) for Routine Maintenance, Repair, and 
Replacement (RMRR) that was challenged in federal court. On May 2, 2007, the 

Supreme Court refused the petition to hear this case. Until the matter is resolved by 

Congress or the EPA, all electric utilities continue to face great uncertainty surrounding 

NSR and how to make maintenance and repair decisions without consulting state 

agencies or EPA. As a result, fossil-fuel generation owners have been extremely 

conservative in their maintenance and repair activities so that NSR requirements are not 

triggered that would obligate them to install very expensive new control equipment. 

APPA believes that any federal GHG emission reduction regime enacted by Congress or 

the Administration should not trigger NSR. 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

APPA believes Congress must be accountable to the American consumer for establishing 

a set of climate change goals and a broad greenhouse gas statutory framework under a 

new law and remove the confusion from attempting to regulate CO2 under the Clean Air 

Act while also resolving the application of NSR. 

NOW, THERFORE, BE IT RESOLVED: That APPA urges Congress not to use the 

Clean Air Act to regulate CO2 or other greenhouse gas emissions, but to enact stand-alone 

legislation to address reduction of those emissions and include provisions that clearly 

separate the GHG emissions reduction program from the requirements of the CAA. This 

would include, for example, provisions that ensure there is a pollution control exclusion 

specifically designed for CO2 and other GHG emissions, and a clear exemption from the 

CAA Title V permitting program; and 
BE IT FURTHER RESOLVED: that APPA supports reform of the new source review 

requirements in the CAA that would allow reasonable levels of routine maintenance, 

repair, and replacement at existing coal-fired generating units in order to improve their 

efficiency and reliability without resulting in the application of NSR requirements. 

43 

44 

45 

46