Follow-up to January 5, 2011 FCPC Consultation with EPA Regarding EGU MACT 

Rulemaking

I. Importance of EGU MACT rule making to Tribe. FCPC is very concerned 

about mercury and other HAP emissions from EGUs for several reasons:

 FCPC Tribal members face substantially increased health risks from mercury. As EPA has 

noted, Native Americans face heightened exposure to mercury contamination-related health 

impacts because of their high consumption of fish compared to the general population. See 69 

Fed. Reg. 4709. FCPC members are even more exposed to mercury than Native Americans in 

general because their reservation contains and is surrounded by numerous lakes and streams, 

many of which have been identified as having special mercury concerns. 

 Pure water is critical to the Tribe’s culture. Pure water is needed for FCPC ceremonies and 

rituals, and is essential to the preparation of certain medicines and foods. Unless pure water is 

used, the spiritual and therapeutic force of the ceremony or medicine is lost. 

 Significant methyl mercury contamination of critical FCPC cultural resource. Devils Lake, 

which is located on the FCPC reservation, has critical cultural and spiritual significance to FCPC 

and its members. Because of its importance, an entire 10-mile diameter resource catchment area 

around the lake has been found eligible for the National Register of Historic Places. 

Unfortunately, despite its relatively pristine setting, Devils Lake has been very significantly 

impacted with methyl mercury contamination, caused by air emissions. 

 The Tribe relies heavily on Forest County’s recreational economy. Forest County’s economy 

relies heavily on tourism associated with recreational hunting and fishing. Several water bodies 

in Forest County have been identified as having unacceptably high concentrations of mercury, 

which has resulted in even more stringent advisories than the general state-wide advisory. 

 The Tribe has devoted significant resources to address its water pollution and 

mercury-related concerns. 

 The Tribe has funded significant research on mercury contamination in Northern 

Wisconsin. FCPC has funded significant research by Dr. Carl Watras, one of the 

world’s leading methyl mercury researchers, on the causes of methyl mercury 

formation in Devils Lake. 

 The Tribe successfully fought for Class I status for its reservation. In large part 

because of the Tribe’s significant concerns regarding mercury contamination, the 

Tribe endured a 13-year battle to obtain Class I status. The first AQRVs identified by 

the Tribe are water quality and aquatic systems, which have been established to help 

protect against methyl mercury contamination. 

 The Tribe led a 3-decade battle to stop the Crandon Mine. If built, the Crandon mine 

would have resulted in significant ground and surface water contamination, as well as 

the loss of hundreds of acres of wetlands. 

 The Tribe has significantly reduced its energy usage. To lower its own contributions 

to mercury, SO2 (which contributes to methyl mercury formation), and other 
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emissions from EGUs, the Tribe has implemented a tribal-wide energy efficiency and 

renewable energy program entitled “Project GreenFire,” which has already resulted in 

a reduction of carbon emissions per square foot of approximately 20%. 

II. Calculating the Maximum Achievable Control Technology (MACT) floor.

 EPA should employ output-based numerical emission limits for mercury (e.g., emissions per 

mWh). Output-based limits provide an incentive for EGUs to increase boiler efficiency as an air 

pollution control measure to comply with emission limits. As EPA has recognized, traditional 

input-based limits (i.e., emissions per heat input) rely solely “on the application of pollution 

control devices to reduce emissions and [do] not explicitly recognize the efficiency of the 

process in converting fuel input into a useful output.” EPA, Output-Based Regulations, 

http://www.epa.gov/chp/state-policy/output.html (last visited Jan. 11, 2010). Furthermore, EPA 

has noted that unlike input-based limits, output-based limits directly correlate to actual emission 

impacts, resulting in greater mercury emission reductions. Id.; see also U.S. GAO, Mercury 

Control Technologies at Coal-Fired Power Plants Have Achieved Substantial Emissions 

Reductions, 23 (2009). 

 EPA must promulgate MACT standards for all EGUs. EPA does not have the authority to 

promulgate separate generally available control technology (“GACT”) regulations for HAP 

emissions from EGUs that are area sources. CAA 112(d)(5) allows EPA to “elect to promulgate 

standards or requirements applicable to sources in such categories or subcategories which 

provide for the use of [GACT] or management practices” for “categories and subcategories of 

area sources listed pursuant to subsection [CAA 112(c)].” (emphasis added). However, EGUs 

have never been listed as a category pursuant to CAA 112(c); therefore, CAA112(d)(5) does not 

apply. See 64 Fed. Reg. 6302. Instead, HAPs from coal- and oil-fired EGUs must be regulated 

under CAA 112(n)(1), which makes no reference to alternative standards for area sources. 

 If EPA decides to promulgate separate regulations for EGUs that are area sources, it should 

reduce the threshold quantity that defines a major source for mercury. Under 112(a)(1), EPA 

“may establish a lesser quantity...for a major source than that specified...on the basis of the 

potency of the air pollutant, persistence, potential for bioaccumulation, other characteristics of 

the air pollutant or other relevant factors.” CAA 112(a)(1). EPA has acknowledged that 

“mercury is the HAP of greatest concern” from EGU emissions because it is “highly toxic, 

persistent, and bioaccumulates in food chains.” 65 Fed. Reg. 79827. Furthermore, Mercury is 

incredibly potent and no EGUs emit a quantity anywhere near CAA 112(a)(1)’s current threshold 

of 10 tons per year per HAP. Considering mercury’s potency, toxicity, and bioaccumulation 

factor, EPA should dramatically lower the quantity of mercury emissions that qualifies an EGU 

as a major source. 

 EPA should not subcategorize coal-fired EGUs for mercury emissions. CAA 112(d) allows 

but does not require EPA to “distinguish among classes, types, and sizes of sources within a 

category or subcategory in establishing [MACT] standards.” CAA 122(d)(1). EPA has noted 

that subcategorization is appropriate where “different types” of units have different emission 

characteristics which may influence the feasibility of effectiveness of emission control. 75 Fed 

Reg 32017. However, during FCPC’s consultation, EPA indicated that mercury emissions data 
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from different types of coal-fired EGUs do not show significant differences in emission levels or 

speciation. Therefore, subcategorization is not appropriate. 

 EPA should set the MACT floor based on a long-term average and not account for 

variability. The MACT standard cannot be less stringent than “the average emission limitation 

achieved by the best performing 12% of the existing sources.” CAA 112(d)(3)(A). According to 

GAO, “EPA’s method for accounting for variability generally overestimates the average 

emissions of the top performers.” U.S. GAO, Mercury Control Technologies at Coal-Fired 

Power Plants Have Achieved Substantial Emissions Reductions, 23 (2009). This concern is 

shown in FCPC’s CAMR comments at page 32. Moreover, EPA does not need to statistically 

account for variability because available long-term data reflect the variability in mercury 

emissions from plants over the range of operating conditions. Many of the states with mercury 

regulations rely on long-term emission averaging to account for variability. See id. 

 EPA should request CEMS from EGUs in states with data submission requirements and/or 

mercury standards. Identifying and obtaining data from the 12% of coal-fired EGUs with the 

lowest mercury emissions is a critical step for reasonably calculating the MACT floor. FCPC is 

surprised by the low quantity of CEMS data submitted under Part II of the ICR because many 

states already have CEMS reporting requirements for mercury. Respondents may have 

overlooked the footnote requesting CEMS data in EPA’s ICR. Obtaining all available CEMS 

data is imperative because EPA may have missed some top performers when it only targeted 

EGUs with PM controls and active carbon injection for mercury emission stack testing. While 

PM controls and active carbon injection have shown to be effective in reducing mercury 

emissions, there are additional control technologies and non-technology factors that EPA did not 

consider. Therefore, FCPC urges EPA to request CEMS data from EGUs in states with 

monitoring requirements and/or the states themselves. This is especially important for EGUs in 

states with existing mercury standards, since the EGUs in these states are likely among the best 

performers. 

III. More stringent beyond the MACT floor standards: 

 EPA must set standards more stringent than the MACT floor when achievable. HAP 

emissions standards promulgated under CAA 112(d), “shall require the maximum degree of 

reduction in emissions of the hazardous air pollutants subject to CAA 112(d)]...that the 

Administrator, taking into consideration the cost of achieving such emission reduction, and any 

non-air quality health and environmental impacts and energy requirements determines is 

achievable for new or existing sources.” 42 U.S.C. 7412(d)(2) (emphasis added). EPA’s 

required analysis is not what emission limits are reasonable, but what limits are achievable. 

When Congress amended the CAA in 1990, its objective was to require EPA to set the most 

stringent standards achievable. Sierra Club v. EPA, 479 F.3d 875, 877 (2007). Congress only 

intended the MACT floor to be a minimum stringency requirement not a defacto emission 

standard. See id. Thus, if EPA chooses not to regulate beyond the MACT floor, it must support 

that decision with concrete evidence showing that a more stringent standard is not achievable.

 When considering what level is achievable for EGUs, EPA must employ a “portfolio 

approach.” CAA 112(d)(2) requires EPA to promulgate the “maximum degree of 

reduction...achievable for new or existing sources...through application of measures, processes, 
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methods systems or techniques including but not limited to measures, which (A) reduce the 

volume of, or eliminate emissions of, such pollutants through process changes, substitution of 

materials or other modifications, (B) enclose systems or processes to eliminate emissions, (C) 

collect, capture or treat such pollutants when released from a process, stack, storage or fugitive 

emissions point, (D) are design, equipment, work practice, or operational standards, or (E) are a 

combination of the above.” CAA 112(d)(2)(A-E) (emphasis added). 

 EPA must consider fuel switching when determining what MACT standard is 

achievable. When determining achievability, CAA 112(d)(A) instructs EPA to 

consider measures which “reduce the volume of, or eliminate emissions of, such 

pollutants through process changes, substitution of materials or other modifications.” 

One measure available to coal-fired EGUs to reduce their mercury emissions is to 

switch over to fuels with little or no mercury content such as natural gas. 

 EPA must consider emerging technology when determining what MACT standard is 

achievable. Emerging technologies and those deployed in other countries are not 

excluded from CAA 112(d)(2)(A). Therefore, EPA must fully consider emerging 

technologies shown to be effective at reducing EGU mercury emissions including 

oxidation catalysts, the installation of metal plates with sorbents in the exhaust gas 

and low-temperature mercury capture. 

 When considering “the cost of achieving emission reductions,” EPA should:

 Recognize that environmental regulations “spark innovation” and create markets that 

lead to lower compliance costs. See Lisa P. Jackson statement in The EPA Turns 40, 

Wall St. J., December 2, 2010. 

 Account for the cost savings achieved by multi-HAP pollution control technology. 

Available multipollutant control methods provide cost effective control for mercury 

and other HAPs including SO2 and PM. EPA should acknowledge these cost savings 

and allocate only a small portion of the technology’s implementation cost to each 

affected HAP. 

 Discount the cost of achieving emission reductions based on actions already planned 

or required by EGUs. EGUs have and will achieve mercury reductions independent 

of EPA’s MACT rule making through compliance with other state and federal 

regulations, steps to address excess electrical capacity, attempts to reduce carbon 

emissions, etc. When considering what standard is achievable, EPA should exclude 

the costs incurred in achieving emissions reductions that would have occurred 

regardless of a MACT standard. 

 Recognize the potential lower cost of shutting down or converting old plants. In 

evaluating costs, EPA should recognize that it may be more cost effective to 

decommission or convert coal plants to operate with cleaner fuels.

 When considering “non-air quality health and environmental impacts from reduced mercury 

emissions,” EPA should balance the implementation costs against: 

 The critical and pervasive health impacts associated with mercury and their 

associated economic costs to the United States. 
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 The impact of mercury contamination on lakes and streams and the fish that inhabit 

them.

 Mercury’s very significant tourism-related costs , especially in areas that rely heavily 

on recreational fishing.

 When considering “energy requirements,” EPA should consider the current overcapacity of 

traditional electricity generation.

IV. Compliance schedule for existing sources: 

 EPA should require compliance with the new MACT standards substantially sooner than 

three years after the effective date of promulgation. CAA 112 requires EPA to “establish a 

compliance date or dates for each category or subcategory of existing sources, which shall 

provide for compliance as expeditiously as practical.” 112(i)(3). It has been ten years since 

EPA determined that regulating mercury emissions from EGUs is necessary and appropriate and 

EGUs have had sufficient lead time to prepare for these regulations. Dr. Carl Watras’ research 

and others make clear that removal of mercury and sulfur emissions results in direct, substantial, 

and timely reductions of mercury in fish and wildlife, which has immediate benefits for human 

health.

V. Environmental Justice doctrine and EPA’s Trust Responsibility: 

 The environmental justice doctrine obligates EPA to address the disproportionate impact of 

mercury emissions from EGUs on Native American communities. Under executive Order 

12898, "Federal Actions to Address Environmental Justice in Minority Populations and 

Low-Income Populations," EPA is required to identify and address “disproportionately high and 

adverse human health or environmental effects of its programs, policies and activities on 

minority populations and low income populations.” 59 Fed. Reg. 7629 (1994). E.O. 12,898 

expressly confirms that its provisions apply to federal activities involving Native Americans. Id.

at 7632.

 EPA’s Trust Responsibility requires EPA to protect Tribal rights and resources from mercury 

contamination. The federal government’s Trust Responsibility is an independent legal doctrine 

based on the unique history of the federal-tribal relationship and the course of dealings between 

Native Americans and the United States. Under the Trust Responsibility, EPA has a 

“responsibility to protect [tribal] rights and resources” including cultural resources. See Klamath 

Water Users Protective Association v. Patterson, 204 F.3d 1206, 1213 (9th Cir. 2000).

 The environmental justice doctrine and EPA’s Trust Responsibility require EPA to ensure 

that tribes’ mercury concerns are addressed. EPA’s environmental justice and Trust 

Responsibility duties require it to (1) set an existing source MACT floor that truly represents the 

average emissions of the best performing 12%, (2) set a new-source MACT floor that truly 

represents the best performing source, (3) ensure that the MACT standard represents the 

maximum degree of reduction achievable, and (4) provide for compliance as expeditiously as 

possible.

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