FOREST COUNTY POTA WATOMI COMMUNITY

COMMENTS

ON

PROPOSED NATIONAL EMISSION STANDARDS
FOR HAZARDOUS AIR POLLUTANTS; AND, IN THE ALTERNATIVE,
PROPOSED STANDARDS OF PERFORMANCE
FOR
NEW AND EXISTING STATIONARY SOURCES: ELECTRIC UTILITY STEAM GENERATING UNITS; PROPOSED RULE

DOCKET ID NO. OAR-2002-0056TABLE OF CONTENTS

I. Executive Summary .......................................................................................................1

II. Significant Health and Econom ic Impacts of Mercury ..................................................2
A. Severe Health-Related Impacts, Especially to Newborns ........................................2
B. Economic Cost of Mercury’s Health-Related Impacts ............................................3
C. Other Economic Costs Associated with Mercury-Related Contamination ..............3
D. Tremendous Natural Resource Damage s Caused by Mercury Deposition ..............4

III. Background Regarding FCPC and Heighten ed Mercury Impacts on the Tribe ............5
A. FCPC History and Treaties ......................................................................................5
B. FCPC’s Reservation .................................................................................................5
C. Critical Importance of Pure Water and F ood Resources to Tribal Way of Life ......6
D. Devils Lake ..............................................................................................................8
E. Tribal Members Face Substantially Incr eased Health Risks Because of their Higher Consumption of Fish and Because of the Significant Mercury Impacts to
Devils Lake and Other Water Bodi es Near the FCPC Reservation .......................10
F. Unique Cultural Impacts Because of Li mitations on Ability to Engage Fully in
Subsistence and Cultural Activities .......................................................................11

IV. Special Status of FCPC in Making Comments ............................................................12
A. EPA’s Trust Responsibility and Obliga tions under Environmental Justice Doctrine with Respect to Trib e’s Impacted Trust Assets ......................................12
B. FCPC’s Special Expertise Regarding Mercury and Mercury-Related Impacts to
the Tribe and Its Members .....................................................................................19

V. Utility Coal Plants are the Key Cause of Mercury Impacts in U.S. Waters ................20
A. Utility Units Make Up Largest Domestic Anthropogenic Source of Mercury
Emissions ...............................................................................................................20
B. EPA’s Finding of “Plausible Link” Betw een Utilities and Mercury in Fish .........20
C. Florida DEP and Other Findings that Rem oval of Mercury Emissions Results in Direct, Substantial, and Timely Reducti ons of Mercury in Fish and Wildlife ......20

VI. MACT Regulation Under Section 1 12 of CAA is Legally Required ..........................21
A. EPA’s Regulatory Finding that Regulation of Utility Units Under Section 112 is Appropriate and Necessary Cannot be Reversed ...................................................21
B. EPA’s Arguments in the Pre-amble to the Proposed Rule to Avoid MACT Regulation Lack Merit ...........................................................................................22
C. NRDC Settlement Requires EPA to Regulate Utility Units Under Section 112 ...26
D. The Trust Responsibility Requires EPA to Regulate Under MACT .....................27

VII. EPA’s MACT Floor Analysis is Improper a nd Sets Emission Limits that Are Several Times Higher than Appropriate ...................................................................................29ii A. EPA’s Methodology for Developing MACT Floor Must be Reasonably Based (i.e., it must reasonably estimate the perfor mance of the relevant best-performing plants) and must be demonstrated with substantial evidence ................................29
B. EPA’s Proposed Methodology Fails to R easonably Estimate the Performance of
the Relevant Best-Performance Plants and EPA Cannot Demonstrate that its Methodology is Reasonably Based Because It Improperly Uses a Short-Term Worst-Case Analysis to Develop a Long-Term Average Standard .......................29
C. Trust Responsibility Heightens EPA’s Re sponsibility to Properly Develop MACT
Floor .......................................................................................................................35
D. EPA’s Improper Calculation of the MACT re sults in a Mercury Standard that is Up to Five Times Higher than Appropriate ...........................................................36

VIII. Need for EPA to Set Standard Mo re Stringent than MACT Floor ..............................38
A. EPA Must Establish a MACT Standard that Results in Maximum Degree of
Reduction Achievable Consideri ng Costs and Other Concerns ............................38
B. Trust Responsibility Requires EPA to Go Beyond the MACT Floor ....................44

IX. Regulation Under Section 111 .....................................................................................44
A. EPA is Required to Regulate Unde r Section 112, Not Section 111 ......................44
B. Even if EPA Could Properly Regulate Mercury Emissions from Utility Units
Under Section 111 Rather than Section 112, Its Proposed Cap-and-Trade Program
Fails to Meet Clear Clea n Air Act Requirements ..................................................44
C. Any 111 Standard Should be at Least as Stringent as a Property Implemented
MACT Standard .....................................................................................................47
D. The Presumed Efficiencies Inherent in a Trading Program Support a Cap Lower
Than that Achievable with a Traditional MACT Standard ....................................48
E. Under Trust Responsibility, EPA is Require d to Act More Quickly and Forcefully in Regulating Mercury Emi ssions Under Section 111 ...........................................48

X. Trading Program Must Address “Hot-Spots” ..............................................................48
A. Hot-Spots in Upper Midwest Are a Real Concern Because of the Use of Western Subbituminous Coal, From Which It is More Difficult to Obtain Mercury
Reductions than Eastern Bituminous Coal ............................................................49
B. Requirement Under Trust Responsibility and Environmental Justice Doctrine to Fully Analyze and Address Hot-Spot Con cerns to Ensure that Tribes are Not Adversely Effected .................................................................................................50
C. Potential Means of Preventing Hot-spots ..............................................................50I Executive Summary

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The Forest County Potawatomi Community (“FCPC” or the “Tribe”), a federally recognized Indian tribe located in northern Wisconsin, respectfu lly submits these comments, on a government-to-government basis, with respect to the Environmental Protection Agency’s (“EPA”) Proposed National Emission Standard s for Hazardous Air Pollutants; and, in the Alternative, Proposed Standards of Performan ce for New and Existing Stationary Sources: Electric Utility Steam Generating Units. FCPC’s comments focus on EPA’s proposed standards for mercury emissions from coal-fired power plants.

While FCPC recognizes the difficult role th at EPA serves in balancing the numerous interests affected by this proposed rule, the Tribe is troubled by th e low level of control that EPA proposes, as well as the unduly long time frame that EPA proposes to implement that control. As outlined below, FCPC and its members have f aced and will continue to face disproportionate health, environmental, and cultural impacts from the deposition of merc ury from coal-fired power plants. FCPC and its members face thes e disproportionate impacts because of their traditional subsistence way of life, which includes a heavy reliance on fish and other natural resources. Moreover, Devils La ke, which is an important tradit ional cultural resource of the
Tribe and which is located on the FCPC Reserv ation, has been severely impacted by mercury deposition, which has lead to high levels of methylmercury in the lake and its fish.

Because of the heightened impacts that FCPC and its members face from mercury deposition from coal-fired power plants, EPA’s tr ust responsibility and its obligations under the Environmental Justice Doctrine require it to ensu re that mercury emissions be fully regulated in
accordance with law and be reduced to the exte nt feasible. Unfortunately, EPA’s proposed mercury rule does neither.

Contrary to the requirements of the Clean Air Act, EPA’s proposal fails to fulfill its legal obligation to regulate mercury emissions from po wer plants under section 112. Moreover, even with respect to its alternative proposal to regulate under section 112, EP A makes clear errors, which result in a proposed standard that allows several times more emissions than appropriate. As demonstrated in these comments, proper calcul ation of the MACT floor standards for the five subcategories that EPA proposes would result in standards for existing sources that allow less than one-half to less than one-fifth of the emissions that EPA’s proposed MACT standards would permit. Likewise, proper calculation of MACT floor standards for new sources results in standards that for bituminous-, subbituminous -, and lignite-fired facilities allow approximately one-half to less than one-fourth of the emissions that EPA’s proposed MACT standards would permit.

EPA’s MACT floor analysis, which app ears to adopt the methodology proposed by a utility trade group, improperly uses a short-term worst-case analysis to develop its long-term average standard. Under this approach, EPA di scards the 97.5 percent best emission reductions and develops standards based on the 2.5 percent worst emissions from relevant sources. Contrary to the requirements of the Clean Air Ac t, EPA’s analysis also further increases the allowed emissions under the MACT floors by impr operly considering units for which it has no2 data. Moreover, even if EPA could properly consider such un its, its approach results in a standard that has a 99 percent certainty to overstate the average emissions of such units.

In addition to proposing an improper MACT floor, EPA fails to consider numerous available additional pollution control techniques, which would result in emissions that are substantially more stri ngent than the proposed MACT floor. Indeed, these comments include a report by a mercury control techno logy expert that identifies nume rous control techniques that
are available at this time to achie ve greater than 90 percent contro l. This level of control should be imposed regardless of whether EPA correctly issues a MACT standard under section 112 or continues to attempt to regulate under section 111.

Finally, EPA’s proposed trading program is not authorized under section 111 or 112 and creates grave concerns regarding high levels of localized mercury impacts. This concern is especially great in areas such as Wisconsin, wh ich use western subbituminous coal. To address these concerns, EPA must either abandon its trading program or take substantial steps to rectify the significant localized problems that it creates.

Because of the significant impacts that mercury contamination have caused to FCPC and its way of life and because of the significant co ncerns that FCPC raises in these comments, FCPC formally requests a mee ting with EPA to discuss mercury impacts to the Tribe and FCPC’s comments on EPA’s proposed rule. FCPC ma kes this formal request in accordance with EPA’s trust responsibility and its obligations under the Envi ronmental Justice Doctrine.

II Significant Health and Economic Impacts of Mercury

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FCPC and its members are very concerned about the health and economic impacts of mercury deposition. As the EPA recognizes in the preamble to its proposed rulemaking and elsewhere, mercury is widely re cognized as causing very serious health impacts to a very large portion of the American people. In addition to significantly aff ecting and ruining the lives of literally hundreds of thousands of people, thes e adverse health effects are recognized by EPA
and others to cause billions of dollars of economic impacts.

In addition to the health impacts that EP A notes, mercury contamination has been found to cause learning and educational impacts that have resulted in significant costs to our country and its people. Also, it is important to note merc ury’s tremendous tourism-related costs to states, like Wisconsin, and especially rura l areas, like those near the FCPC reservation, that rely heavily on tourism associated with recreational fishing. Finally, mercury contamination to lakes and
streams and the fish that inhabit them causes tr emendous natural resource damages that need to be considered when evaluating the costs of mercury contamination.

A. Severe health-related impact s, especially to newborns . A very large portion of the American population is signifi cantly impacted by mercury cont amination. Indeed, mercury impacts have reached epidemic proportions. As EPA notes in this proposed rule-making, a recent analysis of U.S. Centers for Disease Cont rol data shows that approximately 8 percent of women of child-bearing age have levels of me rcury in their blood th at are at or above U.S. EPA’s RfD. 69 Fed. Reg. 4658. Moreover, because mercury in the blood readily passes3 from the mother to her unborn child, EPA has not ed that “the developi ng fetus is considered most sensitive to the effects of methylmerc ury.” 69 Fed. Reg. 79829. Because of this, EPA’s
own scientists have concluded that 630,000 infants born each year may be adversely effected by mercury. See Inside EPA’s Clean Air Report, Vol. XV, No. 4, Pg. 13 (February 12, 2004).

B. Economic cost of mercury’ s health-related impacts . The significant and pervasive impacts of mercury have a great economic cost to the United States. As EPA recognizes, its proposed mercury reductions would save approximately $15 billion (in 1999 dollars) in healthrelated costs. See 69 Fed. Reg. 4710 (emphasis added). However, this number likely
underestimates the true health re lated costs associated with mercury emissions. For example, EPA likely did not consider the co sts related to the overall lowering of IQ levels as a result of mercury emissions. As recently reported in the Milwaukee Journal Sentinel, Mr. Michael McCalley, a professor of community and preven tive medicine at New York’s Mount Sinai School of Medicine, and president of Physicians for Social Responsibility has estimated the diminished lifetime earnings that result from th e lowering of IQ in the general population as a result of exposure to mercury at a pproximately $2.3 billion per year. See Milwaukee Journal Sentinel, Mercury’s dangers persist , Section G1 (April 12, 2004). 1

Moreover, it is important to note that the $15 billion in health-related benefits acknowledged by EPA do not reflect the full benefits that would be realized if a correct level of mercury reductions (e.g., 90 percent) were required from power pl ants. Rather, these benefits simply relate to the health impacts that w ould be avoided with the very limited mercury reductions that EPA now proposes. They do not reflect the additional billions of dollars in health cost savings and the thousands of deaths that could be avoided and lives that could be dramatically improved with a pr oper level of mercury control.

C. Other economic costs associated wi th mercury-related contamination . It is also important to note that the $15 billion in health-rel ated costs do not includ e any of the significant tourism-related impacts caused by the significant mercury contamination in the nation’s waters. As EPA is aware, mercury pollution has contaminated 12 million acres of lakes, estuaries, and wetlands (30 percent of the national total) and 473,000 miles of streams, rivers, and coast lines. For Great Lakes states, such as Wisconsin, that are blessed with rich water resources, and therefore rely heavily on recreational tourism associated with fi shing, the situation is even worse.

As Wisconsin’s Attorney General Lautenschlager testified in this rule-making proceeding, the Wisconsin Department of Natu ral Resources “has found that atmospheric mercury deposition has contaminated nearly all of the state’s 15,000 lakes and 57,000 miles of
rivers and streams to some level. This contamination has resulted in a state-wide fish consumption advisory.” (Emphasis in original). This level of mercury contamination is not unique to Wisconsin. For instance, Wisconsin’s Gr eat Lakes sister states of Illinois, Indiana, Minnesota, Michigan, and Ohio have all also issued mercury fish advisories for 100 percent of their lakes or rivers, or both.

1 This article is available at http://www .jsonline.com/alive/news/apr04/221511.asp.4 Wisconsin’s Department of Natural Resour ces is also in the process of conducting individual testing of specific water bodies, and has thus fa r identified at least 84 with unacceptably high concentrations of mercury. Th is has resulted in even more stringent advisories than the general stat e-wide advisory. Exhibit A, W DNR Mercury Advisory Update.
These individual advisories mean that fewer fish or no fish should be consumed from these water bodies. These specially impacted lakes include Deep Hole Lake, Julia Lake, Little Sand Lake, Roberts Lake, and Van Zile Lake, all of which are close to the FCPC reservation in Forest County. Indeed, the Tribe owns fee land that is adjacent to Deep Hole Lake and within a couple hundred yards of Little Sand Lake.

As Attorney General Lautenschlager testif ied, the economic concer ns associated with mercury contamination in Wisconsin are tremendous . Each year, the Wisconsin Department of Natural Resources sells approximately 1.5 million fishing licenses. Attorney General Lautenschlager testified that th e sales of these licenses, as we ll as of food, lodging, gasoline, and sporting equipment related to fishing as an activit y, resulted in a total yearly economic impact of approximately $2.1 billion , with the sports fishing indus try accounting for approximately 30,500 jobs in the state each year. Again, Wisconsin is not alone in its reliance on and benefits from recreational fishing. Wisconsin and its Great Lakes neighbors of Illinois, Indiana, Michigan, Minnesota, and Ohio together serve over 7.8 million anglers and, not including direct payments to the state in the form of fishing licenses and taxation, these states’ economies receive

over $5 billion in fishing-related income. 2

By failing to appropriately and fully addre ss the significant mercury contamination from power plants, EPA is continuing to hold back and threaten the important fishing-related
economies in the Great Lakes states and the nati on as a whole. In Wisconsin alone, EPA is putting at risk billions of dolla rs in economic activity and tens of thousands of fishing-related jobs.

D. Tremendous natural resource damages caused by mercury deposition . The deposition of mercury from coal-fired power plants and othe r industrial sources into the lakes, streams, and
other water bodies also has caused and continues to cause tremendous natural resource damages. As a consequence of mercury deposition, millions of acres of lakes and hundreds of thousands of miles of rivers, streams, and coast lines are c ontaminated. Moreover, th e natural conversion of the deposited mercury to poisonous methylmercur y and the bioaccumulation of methylmercury in fish and other living organisms has created and continues to create significant natural resource damages. Indeed, given the likely billions of contaminated fish, on top of the millions of acres
and thousands of miles of contam inated water bodies, the financ ial costs of these damages is likely in the hundreds of billions of dollars.

2 U.S. Department of Interior, Fish and Wildlife Service, U.S. Department of Commerce, U.S. Census Bureau, 2001, National Survey of Fishing, Hunting, and Wildlife associated recreation. FHW/01-Nat. October 2002. Tables 55
and 64.5 III Background regarding FCPC and height ened mercury impacts on the tribe

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A. FCPC History and Treaties . According to the Potawato mi tradition, FCPC originated on the eastern seaboard and, in company with their fellow Algonquian speaking ancestors of the modern Ojibwe and Odawa, migrated west until they settled in southern Michigan. During the mid-seventeenth century attacks by Iroquoian people drove them west of Lake Michigan. From this refuge they eventually reoccupied their former territory in Mi chigan and by the early eighteenth century were e xpanding into adjacent areas of norther n Indiana and Illinois, as well as
eastern Wisconsin.

By the late 1820s the Potawatomi were the pr edominant tribe in this large territory that
included all of the west shorelin e of Lake Michigan between Green Bay and Chicago, east across the lower peninsula of Michigan and northern In diana, and west across southern Wisconsin to the Mississippi and south to the Illinois River. At the same time, however, pressure from nonIndians for land resulted in numerous treaties ma de by the United States with the Potawatomi, under which the United States acquired much of our ancestor’s aborigin al territory, and in exchange, promised to provide them with ot her lands, funds and resources from which the Potawatomi might continue to live.

By the treaties made in the 1830s, the Unite d States sought to remove the Potawatomi
from their homelands near the Great Lakes to alternative land west of the Mississippi. Many refused to move, and many others returned to Wisconsin following efforts to remove them. The FCPC is comprised of those Potawatomi who refu sed to be relocated. After being forced from their traditional villages and set tlements, the Potawatomi in Wisconsin began to migrate north, generally ahead of the line of settlement and into the remaining unoccupied areas of Wisconsin. By 1910, 457 Potawatomi resided in the area of Fo rest, Marinette, and Oconto Counties. In 1913, the federal government purchased lands for FCPC using the funds due to the Band under
their treaties with the United Stat es. FCPC, as a matter of federa l law has the right to hunt, fish, and gather in its Reservation la nds. Menominee Nation v. United States , 391 U.S. 404, 405-13 (1968) (Indians have the right to hunt, fish, and gather on their reservation lands regardless of whether the enactment setting aside their lands makes specific reference to such rights).

In the years that followed – from 1914 through 1920 and 1928 and 1929 – Congress continued to appropriate funds, which were to be reimbursed from the Wisconsin Potawatomis’
share of the annuities due under their treaties, for use in build ing homes and other improvements on the lands acquired for the Wisconsin Potawa tomis. In 1934, FCPC organized under the Indian Reorganization Act.

B. FCPC’s Reservation . The FCPC Reservation is located in northeastern Wisconsin in Forest County. The Reservation consists of 12,000 acres with approximately seventy-five percent of the land surrounded by the Nicolet National Forest. The Reservation is sparsely populated, remote and largely wilderness. It is dominated by upland hardwood forests, which are managed for timber harvest, as well as by wetl ands and rivers and lakes. The Reservation includes parcels of land scatte red amongst three townships, th ose being Stone Lake (Crandon), Wabeno, and Carter. There are tw o wilderness areas within 10 m iles of the Reservation: the
Catwillow Creek and Headwaters National Wilderness areas.6 The FCPC Reservation contains three wa tersheds: the Upper Wolf, North Branch Oconto, and the Peshtigo. All of these rivers are afforded special levels of protection under state
and federal law. The tributaries for these rivers originate or flow through the Reservation, with the majority being high quality tr out waters. Four lakes are lo cated within the Reservation.
Wetland areas are abundant and are habitat for wildlife and home to threatened and endangered species.

About half of its estimated 1,200 enrolled me mbers live on the FCPC Reservation lands. The local economy is dominated by tourism and by the timber industry. The FCPC is providing jobs for its people through a series of economic development projects. The Tribe uses financial resources from these projects to protect its reservation and the pristine lands that surround it. For example, it has worked to raise its concerns regardi ng the proposed highly sulfidic Crandon Mine proposal and last year, with th e Sokaogon Chippewa Community, purchased the 5,000 acre mine site, which is rich in forests, wetlands and surface waters, for $16.5 million. The then-pending mining permit a pplications were withdrawn.

C. Critical importance of pur e water and food resources to tribal way of life . In order to fully appreciate the impact associated with merc ury emissions from power plants, it is important
to understand the culture and beliefs of the FCPC tr ibe. This understanding is also critical to a legal analysis of the trust respons ibility owed by EPA to the Tribe.

The FCPC ancestors have lived in the Great Lakes area since time immemorial; they have occupied eastern Wisconsin since the mid-seventeen th century and Forest County since the latter part of the nineteenth century. As they moved into the forested and cut-over area of eastern Wisconsin, its people lived from the land. By necessity, they acquire d most of their food, building materials, and medicine from nature. Although they hunted, fish ed, and gathered over most of the counties of the northeast part of the state, they eventually concentrated their
subsistence activities in areas in the vicinity of its current Re servation lands in Forest County.

The close historical link be tween FCPC members and the natural environment and the continuity of this tradition into modern time s is well documented. Today, plants and animals
obtained from the Tribe’s environm ent are a vital part of the relig ious rituals, ceremonials, and medicines which define unique aspe cts of tribal life and which form the vital link between the Tribe’s cultural past and future.

Historically, Potawatomi’s conceived of the natural as being controlled by spirits with whom the Tribe must maintain harmony and balance in order to assure health and well being in the natural world. Today, FCPC members perpetua te these beliefs. As one of the four major spirits, water has a role of singul ar significance in the Tribe’s cultu re. Water in its pure form is
needed for FCPC ceremonies and rituals and is es sential to preparation of certain medicines and foods. For example, water to prepare ritual f oods or to mix medicines must be drawn from a specific spring, medicinal herbs must come fr om “clean” or undisturbed ground. Unless these conditions are met, the spiritual and therapeutic force of the ceremony or the medicine is lost.

The purity of water in a cultural sense is distin ct from purity from a chemical or scientific perspective. Any alteration of the flow a nd quality of water, including contamination by7 airborne emissions, renders water no longer pure for the Tribe’s peopl e. Furthermore, as water is sacred and represents life itself, changes to wate r will also affect the natural resources which rely on it to sustain themselves. In the FCPC culture, these changes will upset the balance that plants and animals depend on to survive in the natural world.

The cultural practices associ ated with FCPC’s Reservat ion and surrounding lakes and forests are hunting, fishing and gathering, as we ll as ceremonies, rituals, appropriate harvesting practices and other actions nece ssary to maintain harmony and balance between FCPC members and the spirit world. It is through these activities that its members fulfill th eir responsibilities in
the natural world. This is reflected in the fish ing and collecting activitie s at Devils Lake and elsewhere, and the rituals, taboos and appropria te conduct associated with avoiding harm from underworld spirits at Devils Lake.

Cultural beliefs, which include dances, rituals, ceremonies, as well as traditional Potawatomi religion and ideology remain the co re of life on the FCPC Reservation. These activities depend in large part on the natural resources which mu st be drawn from spiritually pure
natural environments. Concern about access to these resources and the ability of the environment to provide the pure resources need ed to sustain FCPC’s culture occupies the thoughts and prayers of the community. The long oral and written histor ies of FCPC members confirm that the use of wild game, fish, and plan t products gathered from nature, sustained them until after the mid-point of the twentieth centu ry. Today these same resources are no less important as the source of “pure” foods for ritual and for medicinal purposes and for subsistence and craft production. The contin ued health of the natural worl d as well as FCPC’s continued existence as a people requires the use of thes e resources to conduct rituals of harmony and

atonement.

The Tribe obtains most of the resources that are required to maintain its traditional culture, including religious practic es, from two “resource catchments” adjacent to and including Reservation land. These areas are ecologica lly diverse and relatively undisturbed by the intrusion of exotic species or environmental contamination. Obvi ously, the maintenance of these
resource catchments is critical to the Tribe’s abil ity to maintain cultural continuity with its past.
The Tribe’s two resource catchments in Forest C ounty have been found eligible for listing on the National Register of Historic Places.

Wetlands and their associated lakes and stream s constitute the most important source of
natural foods and medicines of the FCPC members. Although upland hardwood forests, lowland conifer forests, and meadows all produce unique resources necessary fo r curing, rituals, and feasting, it is the open water and wetland environmen ts that yield an estimated two-thirds of the
resources that are critical for these cultural purposes. For th is reason, healthy wetlands are
critical to the survival of Potawatomi traditional culture.

The Tribe’s hunters, fishers, a nd gatherers rea lize the importance of th ese natural areas to their traditional culture and particularly their sp iritual purity, and are an xious to preserve them for future generations.8 D. Devils Lake . Devils Lake has special significance both culturally and spiritually to FCPC and its membership. Unders tanding of the specific significan ce of this important resource is critical to understanding the need and legal requirements to pr otect the resource from adverse impacts from mercury deposition.

1. Background regarding Devils Lake . Devils Lake, together with its associated wetlands, is approximately thirty-five acres in size and lies entirely within the FCPC Reservation in the northwest quarter of section 2 of Lincol n Township. This lake is used as a fishing, collecting, and recreat ion site by the FCPC people. Devils Lake has been determined to be eligible for inclusion on the National Register of Historic Places as a traditional cultural property on the basis of its religious and spiritual significance to the comm unity. In fact, because of the central importance of Devils Lake and the cultural activity that traditionally has occurred and continues to occur in the area around the lake, an entire ten-mile diameter resource catchment area around the lake has been found eligible for listing on the National Re gister of Historic Places. A map of the Devils Lake catch ment area is attached as Exhibit B.

In the territory formerly occupied by th e northern Algonquian tribes, maps will often show lakes named Spirit Lake, Manitou Lake or De vil Lake. Invariably, Indian traditions say these lakes are bottomless and are connected by unde rwater tunnels to other water bodies. It is by this means that underworld creatures appear unexpectedly in these lakes and why they are given their names. FCPC beliefs indicate that Devils Lake on the FCPC Reservation has these
features.

2. FCPC’s study of Devils Lake and mercury impacts . Because of the central importance of Devils Lake to FCPC’s culture an d way of life, the Tribe has devoted substantial resources to the study and care of the lake. In particular, because th e Tribe has long been concerned about potential mercury impacts to the lake, it has devoted substantial tribal resources to evaluate mercury contamination in th e lake. Beginning in 1995, the FCPC Tribal Environmental Protection Agency (“Tribal EPA”) began collecting data re garding the levels of mercury and methylmercury in the lake. A compre hensive report that quantifies the Devils Lake watershed hydrology and water quality (including waterborne mercury and methylmercury) from 1995 to 2003 has been prepared for the Tribe by Horsley & Witten, Inc., The “ Devils Lake Summary Report: Water Years 1996 to 2002 ” is attached as Exhibit C.

(a) Dr. Watras’ study of mercury c ontamination in Devils Lake . Because of the Tribe’s significant concerns regarding el evated levels of mercury in the lake, it has devoted almost $400,000 to fund further testing and analysis of merc ury contamination in Devils Lake by a team of experts led by Dr. Carl Watras. Dr. Watras is an internationally recogn ized expert in mercury impacts to fresh water bodies who works with the Wisconsin DNR. A copy of Dr. Watras’
curriculum vitae is attached as Exhibit D. Dr. Watras has executed a certification testifying that he participated in the drafting of the sections of these comments that relate to his work regarding
Devils Lake and Little Rock Lake and that thos e sections are a true a nd accurate representation of his work and findings. A copy of his certification is attached as Exhibit E.

Building on the studies conducted by Horsle y & Witten, Inc., this research project indicates that the major source of mercury to the lake and its wate rshed is atmospheric9 deposition. The research also indi cates that the lake has high le vels of methylmercury, which is the form of mercury that bioaccumulates in fish and is most toxic to humans and piscivorous wildlife. The lake’s waterborne methylmercur y concentration ranges from 0.2 to 6.3 ng/1, with the highest concentrations occurring in the lake ’s anoxic bottom water. Dr. Watras’ research on
Devils Lake involves both ma ss balance studies and process oriented studies designed to elucidate the methylmercury cycl e in the lake and watershed.

The purpose of Dr. Watras’ mass balance studie s is to quantify the sources and fates of inorganic mercury and methylmercury in the la ke. Essentially, thes e studies involve the development of an annual balance sheet that a ccounts for the inputs and outputs of mercury to and from the lake while tracking changes in th e mercury content of the lake over time. To facilitate this effort, Tribal EPA researchers ar e quantifying inputs of mercury to the lake, which include direct precipitation (wet atmospheric me rcury deposition falling on the lake surface) and stream flows (indirect precipita tion falling on the terrestrial watershed). The hydrology of Devils Lake is particularly well suited for a ma ss balance analysis because it is perched above the local groundwater system. Accordingly, the groundwater provides negligible amounts of water and mercury to the lake. Dr. Watras’ process-oriented studi es include measurement of the rate of methylmercury production within the lake . They also involve identification of the mechanisms by which this process is occurring.

The ongoing mass balance studies indicate that De vils Lake receives the vast majority of its mercury from atmospheric deposition in the lake , in part because of the pristine setting of the lake. It receives essentially no mercury from a ny point source other than the forest stream, and there is no significant geologic source of mercur y in the watershed. The glacial till surrounding the lake is relatively thick, and there are no known deposits of cinnabar, the mineral form of mercury, within the till. This is generally th e situation for lakes in the Wisconsin Northwoods.

Dr. Watras’ work also shows that atmosphe rically-deposited merc ury is converted to methylmercury in the hypolimnion of Devils Lake. During the summer of 2002, roughly 0.5 grams of methylmercury were produced in th e lake’s deep anoxic water. This amount of methylmercury would be sufficient to contaminate 900 pounds of fish to levels above the Federal health advisory limit (1 ppm Hg ) if it was all bioaccumulated.

There are several reasons why inorganic mercury may be conve rted to methylmercury at high rates in Devils Lake. First, the lake is cl osely connected to a wetland that serves as an additional conduit for atmospherically-deposited mercury as well as dissolved sulfate and organic carbon. Since dissolved sulfate and organic carbon ar e essential nutrients for the bacteria that produces methylmercury in the lake, contributions from the wetland may fuel additional mercury methylation. The dissolved carbon also imparts a dark tea-stained color to the lake water which blocks sunlight and reta rds the photodestruction of methylmercury. In clear-water systems, methylmerc ury is often destroyed relative ly quickly in reactions with sunlight.

Research on Devils Lake and elsewhere indicate s that acid rain is an important secondary factor that may increase the production of methyl mercury. This is because acid rain also adds sulfate directly to the lake. Becau se of the elevated levels of sulf ate in Devils Lake due to acid10 rain, sulfate-reducing bacteria may have also increased the production of methylmercury in the
lake.

Work by Dr. Watras’ colleagues will include looking at the microbial community in
Devils Lake in more detail and using DNA fingerprinting to determ ine which particular bacteria are causing the production of methylmercury. They will also be looking at other factors that affect the rate at which methylme rcury is produced and destroyed.

(b) FCPC’s testing of fish in Devils Lake for mercury . In addition to the Tribe’s testing and evaluation of the mercury cycle in Devils Lake and it s surrounding watershed, FCPC has
tested the lake’s fish for th eir mercury content. This testing has focused on yellow perch ( Perca flavescens ) because of their abundan ce in the lake and their importance as a food source for larger gamefish, like largemouth bass, a nd for wildlife, like wading birds and small mammals. The testing shows that perch in Devils Lake have relatively high concentrations of mercury when compared to other lakes in northern Wisconsin. This result is consistent with the high concentrations of methylmercury observed in th e lake water. Testing results are attached as
Exhibit F.

Because Devils Lake is now and traditionally ha s been an important fishing site for tribal members, in the past, the Tribe had a fish stocki ng program for the lake. However, because of the high levels of mercury found in the lake and it s fish, the Tribe unfortunately determined that it was appropriate to discon tinue this stocking program.

E. Tribal members face substantially increased health risks because of their higher consumption of fish and because of the signifi cant mercury impacts to Devils Lake and other
water bodies near the FCPC Reservation . Because of the Tribe’s heavy reliance on fish for both subsistence and cultural activities, its members are especially vulnerable to the impacts of mercury. As EPA notes in this proposed rule-m aking, “[s]ome populations in the U.S., such as: Native Americans. . . may rely on fish as a primary source of nutrition and/or for cultural practices. Therefore, they consume larger amoun ts of fish than the general population and may be at a greater risk to the adverse health e ffects from Hg due to incr eased exposure.” 69 Fed. Reg. 4709.

EPA’s studies and documents show the heig htened exposure of Native Americans to mercury-contaminated health impacts because of their high consumption of fish compared to the general population. For example, EPA recently re vised its standard assumptions and now uses default values for fish consumption of 142.4 gr ams/day for subsistence population, such as Native American communities, more than eight times the 17.5 grams/day that EPA uses for the general population. Methodology for Deriving Water Qualit y Criteria for the Protection of
Human Health , (US EPA, 2000), p. 4-27 3

However, these revised values may s till underestimate Nativ e American fish consumption and the health impacts from that consumption. See e.g. , Fish Consumption and Environmental Justice: A Report Developed from the National Environmental Justice Advisory

3 This document is available at http://www.epa.gov/waterscience/ humanhealth/method/method.html.11 Committee Meeting of December 3-6 , 2001 (2002 revised), 14-15 ( noting that while these revised numbers are a marked improvement over EPA’s previous assumptions, “they are still a source of concern for those groups whose members consume at the highest levels. The result is that when fish is contaminated, those consumi ng at the higher rate will be exposed to greater quantities of contamination that are present in the fish tissue”). This concern is especially true with respect to methylmercury, since the human in take of methylmercury from fish consumption is directly related to the le vel of consumption, as well as the level of methylmercury
contamination in the fish. See Gilkinson, Miriam, Sample Calculation of Mercury in Support of HWC Background Document , 12 (providing equation showing that methylmercury intake from fish is directly related to the consumption rate of fish and the concentra tion of methylmercury in the fish consumed) (July 20, 1999) , attached as Exhibit G.

FCPC members may be even more exposed to mercury than Native Americans in general. FCPC’s Reservation is located in Wisconsin’s Northwoods, an area well known for its numerous lakes and streams, which are rich in fish resources. FCPC Tribal members regularly
fish from Devils Lake and other water bodies in the Forest County area, many of which have been found to contain highly elevated levels of mercury. As discussed above, Devils Lake and
its fish have been found to c ontain elevated levels of merc ury. In addition, surrounding lakes used by FCPC tribal members such as Deep Ho le Lake, which is adjacent to FCPC Tribal property, and Little Sand Lake, wh ich is within a couple hundred yards of Tribal lands, have been identified as having special mercury concerns. See Exhibit A, WDNR Mercury Advisories Update.

In addition to the increased risks FCPC Trib al members face from their high consumption of fish from impacted lakes, as heavy consumers of natural resour ces in general, the Potawatomi risk factor from exposure to environmental pollu tants is further heightened. Because FCPC’s members consume substantially higher levels of fish than the general public and because
Devils Lake and other lakes and water bodies on and around FCPC’s lands are significantly contaminated from mercury deposition, FCPC faces substantially increased risks of health and learning disability effects from mercury. Like wise, FCPC faces heightened natural resource damages from impacts to waters and fish on and near its Reservation.

F. Unique cultural impacts because of lim itations on ability to engage fully in
subsistence and cultural activities . As was discussed in Section III.C above, FCPC’s members have a strong connection to the na tural world. This is manifested in cultural activities that range from hunting and fishing, to gathering of resour ces for medicines, crafts, and other cultural purposes. Performing these activities is necessary in order for the Tribe’s people to attempt to maintain harmony in the natural world. Ma ny of these activities depend upon having pure resources, such as water or plants that have not been altered (and are collected in the proper manner and from the correct location).

The mercury contamination discussed above th reatens more than th e physical health of
FCPC’s members: It also threat ens the Tribe’s spiritual well bei ng. The contamination of Tribal waters, such as Devils Lake, and the entry of me rcury into the food chain and into plant tissues
renders the use of these resource s for cultural purposes problematic. The Tribe is left with a12 Hobson’s choice of ingesting materials that may ultimately injure Tribal members’ health, or foregoing cultural practices that are essential to their spiritual well being.

This is a dilemma that the general public – even those who hunt and fish and use natural resources for food and craft purposes – does not face because these resources do not have the enormous cultural value they do for Tribal memb ers. In this sense, the impacts of mercury contamination pose a unique threat to Na tive American populations such as FCPC.

After decades of losing the lands and resource s FCPC ancestors used in their subsistence way of life, mercury contamination threaten s perhaps FCPC’s most important remaining resource: its clean water. The cultural damage that accompanies poisoning the Tribe’s water
and the fish and other animals and plants that depend on and use that water is incalculable. It is critical that EPA fully understand FCPC’s and ot her tribes’ cultures and their use of fish and other wildlife resources to properly assess and address the environmen tal and human health hazards that they face from mercury contaminatio n. Otherwise, as discussed in greater detail below, EPA will not be able to meet its obligatio ns to act as a fiduciary to protect the Tribe’s interests from permitted mercury emissions, and to assess and address the disproportionately high and adverse impacts that trib es face from mercury deposition and to ensure that tribes enjoy the same degree of protection from environmen tal and health hazards as other Americans.

IV Special Status of FCPC in making comments

.

A. EPA’s trust responsibility a nd obligations under Environmen tal Justice Doctrine with respect to tribe’s impacted trust assets . Under the federal trust re sponsibility, established by the Supreme Court in the 1830s in the historic Cherokee cases, the federal government is obligated to protect Indian tribes’ lands, wa ters, natural resources and rights of self-government as a trustee would protect the interests of a beneficiary. This obligation is heightened by the Environmental
Justice Doctrine. Pursuant to Executive Or der 12,898, the federal government has bound itself to ensuring the fair treatment of all minor ity communities, incl uding Indian tribes.

In this rulemaking, these obligations requi re EPA to consult with FCPC and other
affected tribes to determine how the proposed rule could have heightened or unique impacts on
Indian tribes. As discussed above, mercury contamination crea tes significant heightened and unique impacts to the Tribe and its members b ecause of FCPC’s heavy reliance on pure water, fish, and other natural resources for its cultur e and way of life and th e significant mercury
contamination to water bodies on and near the Tr ibe’s reservation and other lands. In addition, after EPA has determined the unique impacts to Indi an tribes, EPA must make sure that its rulemaking properly protects the Tr ibes’ rights and resources, in cluding their way of life and resources. Likewise, EPA must identify and ad dress disproportionately high human health and environmental effects to all tribes, so that EPA ensures that all people en joy the same degree of protection from environmental and health hazards.13 1. EPA’s trust responsibility to FCPC and other tribes

.

(a) EPA’s recognition of its trus t responsibility to tribes . In 2001 the EPA reaffirmed its Indian Policy. 4 First adopted in 1984, the Policy ma ndates that EPA “recognize[] that a trust responsibility derives from the historical re lationship between the Federal Government and Indian Tribes as expressed in certain treaties a nd Federal Indian law.” The Policy continues: “In keeping with that trust responsibility, the Agen cy will endeavor to protect the environmental
interests of Indian Tribes when carrying out its responsib ilities that may affect the reservations.”

The Policy also confirms that the EPA will st and ready to “work di rectly with Indian tribal governments on a one-to-one basis (the ‘government-to-gove rnment’ relationship), rather than as subdivisions of other governments.” Finally, in circumstances where EPA has not transferred regulatory and program management responsibilities to tribes (though the Policy expresses a preference for such transfers), the Policy requires that EPA “encourage [tribes] to participate in policy-making” and other appropri ate roles in the manage ment of reservation

programs.

In reaffirming this Policy, th e EPA Administrator concluded:

The United States has a unique legal rela tionship with Tribal Governments based on the Constitution, treaties, statutes, Execu tive Orders, and court decisions. This relationship includes a recognition of the ri ght of tribes as sovereign governments to self-determination, and an acknowledgm ent of the Federal government’s trust responsibility to the Tribes.

Accordingly, it is critical that EPA work closely with FCPC and other impacted tribes to ensure that EPA’s trust responsibil ity is met in addressing the signi ficant impacts associated with mercury contamination.

(b) EPA’s general obligation under trust responsib ility to act in accordance with highest fiduciary standards for benefit of tribes . The commitment embodied by EPA’s Indian Policy and its reaffirmation of that policy is consistent with the Agency’s oblig ations under settled law regarding the trust responsibility of the United States to Indian trib es. The trust responsibility is based on the unique history of the federal-tribal relationship, and the course of dealings between
Indian tribes and the United Stat es. The origin of the trust res ponsibility in federal law is found in the Supreme Court’s histor ic decisions in the Cherokee cases. Cherokee Nation v. Georgia

, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia , 31 U.S. (6 Pet.) 515 (1832). The Cherokee cases establish that the trust responsibility is an independent legal doctri ne, a conclusion which is confirmed by nearly two centuries of Supreme Court jurisprudence. 5 In carrying out their

4 The memorandum reaffirming the EPA Indian Polic y (with the policy attached) can be found at http://www.epa.gov/indian/pdfs/reaffirmindpol01.pdf

.

5 E.g., Fellows v. Blacksmith , 60 U.S. (19 How.) 366 (1856); United States v. Kagama , 118 U.S. 375 (1886); Choctaw Nation v. United States , 119 U.S. 1 (1886); Cherokee Nation v. Southern Kansas R. Co.

, 135 U.S. 641, 654-55 (1890); Cherokee Nation v. Hitchcock , 187 U.S. 294, 300-05 (1902); Lone Wolf v.
Hitchcock , 187 U.S. 553 (1903); Tiger v. Western Investment Co. , 221 U.S. 286 (1911); Heckman v.14 obligations imposed by treaties, st atutes, regulations and executive orders, executive officials of the United States are bound by the trust responsibi lity. In discharging the trust responsibility,
executive officials of the United States must obser ve “obligations of the highest responsibility and trust” and “the most exacting fiduciary standards,” Seminole Nation v. United States

, 316 U.S. 286, 296-97 (1942). Moreover, EPA is bound “by every moral and equitable consideration to discharge its trust with good faith and fair ness.” United States v. Payne

, 264 U.S. 446, 448 (1924). As the District Court held in Northwest Sea Farms v. United States Army Corps of Engineers , 931 F. Supp. 1515, 1520 (W.D. Wash. 1996), applying these principles, the Corps has a fiducia ry duty to “ensure that Indian treaty rights are given full
effect.”

The trust responsibility also includes a duty to consult with Indian tribes concerning federal actions that may affect their interests. As the Court explaine d in Klamath Tribes v.
United States Forest Service , 1996 WL 924509 (D. Or. 1996), “[i]n pr actical terms, a procedural duty has arisen from the trust rela tionship such that the federal government must consult with an Indian Tribe in the decision-making process to avoid adverse effects on treaty resources.” Id

. at 8. These principles are well settled. E.g. , Morton v. Ruiz , 415 U.S. 199 (1974) (denial of general assistance benefits to Indians living near the reservation held to be “inconsistent with ‘the distinctive obligation of trust incumbent upon the Government in its dealings with these dependent and sometimes exploited people.’” Id . at 236 (quoting Seminole Nation v.
United States , 316 U.S. 286, 296 (1942)); HRI, Inc. v. EPA , 198 F.3d 1224, 1245 (10th Cir. 2000) (“in some contexts the fiduciary obligatio ns of the United States mandate that special regard be given to the procedural rights of I ndians by federal administrative agencies”) (quoting
Felix S. Cohen’s Handbook of Federal Indian Law 225 (1982)); Midwater Trawlers Cooperative v. U.S. Dep’t of Commerce

, 139 F. Supp. 2d 1136, 1145-46 (W.D. Wash. 2000) (consultation grounded in the trust relationship) aff’d in part and rev’d in part , 282 F.3d 710 (9th Cir. 2002).

Settled law confirms that federal agencies must strictly adhere to th e ordinary duties of a private fiduciary when their actions impact Indi an rights. Covelo Indian Community v. FERC

, 895 F. 2d 581, 586 (9 th Cir. 1990) (“the same trust principl es that govern private fiduciaries determine the scope of FERC’s obligati ons to the [Indian] Community”); accord Assiniboine and
Sioux Tribes of the Fort Peck Indian Rese rvation v. Board of Oil and Gas Conservation , 792 F.2d 782, 794 (9 th Cir. 1986) (applying “the same trust principles that gov ern the conduct of private fiduciaries” to Departme nt’s authority over mineral roya lties); Coast Indian Community

United States , 224 U.S. 413 (1912); Choate v. Trapp , 224 U.S. 665, 675 (1912); United States v.
Sandoval , 231 U.S. 28, 45-46 (1913); United States v. Pelican , 232 U.S. 442 (1914); United States v.
Nice , 241 U.S. 591 (1916); Lane v. Pueblo of Santa Rosa , 249 U.S. 110 (1919); United States v. Payne

, 264 U.S. 446 (1924); United States v. Candelaria , 271 U.S. 432 (1926); United States v. Creek Nation

, 295 U.S. 103 (1935); Shoshone Tribe of Indians v. United States , 299 U.S. 476 (1937); United States v.
Santa Fe Pac. R. Co. , 314 U.S. 339 (1941); Tulee v. State of Washington , 315 U.S. 681 (1942); Seminole
Nation v. United States , 316 U.S. 286, 296-97 (1942); United States v. Alcea Band of Tillamooks , 329 U.S. 40, 47 (1946); United States v. Mason , 412 U.S. 391 (1973); Morton v. Ruiz , 415 U.S. 199, 236 (1974); Morton v. Mancari , 417 U.S. 535, 552-55 (1974); United States v. Sioux Nation , 448 U.S. 371, 408 (1980); Nevada v. United States , 463 U.S. 110, 142 (1983); County of Oneida v. Oneida Indian
Nation , 470 U.S. 226, 247 (1985).15 v. United States , 213 Ct. Cl. 129, 550 F.2d 639 (1977); Cheyenne-Arapahoe Tribes v. United
States , 206 Ct. Cl. 340, 512 F.2d 1390 (1975); Me nominee Tribe v. United States , 101 Ct. Cl. 10, 18-19 (1944); Navajo Tribe v. United States , 364 F.2d 320, 322-24 (Ct. Cl. 1966). Thus, EPA must strictly adhere to its dutie s as a fiduciary to ensure proper protection of FCPC’s and other impacted tribes’ rights and resour ces from mercury contamination.

(c) EPA’s specific obligations to protect tribes ’ rights and resources, including their way
of life and cultural resources . Applying this standard, the courts have restricted federal agencies’ ability to permit actions which would interfere w ith Indian tribes’ treaty rights. See, e.g

., Northwest Sea Farms, Inc. v. Army Corps of Engineers

, 931 F. Supp. 1515, 1520-22 (W.D. Wash. 1996); Muckleshoot Indian Tribe v. Hall , 698 F. Supp. 1504, 1510-16 (W.D. Wash. 1988). As the Court held in Northwest Sea Farms , the trust responsibility is not limited to the protection of treaty rights, reserv ation lands, and other property held in trust for the tribes. Rather, the trust responsibility applies to all ac tions of the federal government that may affect Indian tribes, 931 F. Supp. at 1520, and extends to all rights, res ources and interests of Indian tribes which are recognized by treaty, statute, executive order or the common law. Simply stated, as trustee for the tribes, the United States “has a responsibility to protect their rights and
resources.” Klamath Water Users Protective Association v. Patterson , 204 F.3d 1206, 1213 (9 th Cir. 2000).

These rights include tribal rights to the la nds, waters and natural environment of the
reservation. Winters v. United States , 207 U.S. 564 (1908); Arizona v. California , 373 U.S. 546 (1963) (water rights are re served despite silence in treaties, statutes and executive orders creating reservations); United St ates v Shoshone Tribe , 304 U.S. 111 (1938) (same for minerals and timber). Tribes are entitled to sufficient wate r and other resources “to make the reservation livable,” Arizona , 373 U.S. at 599, and “to maintain . . . th eir way of life.” Indian tribes also hold rights to hunt, fish, and gather on Rese rvation lands and waters. Menominee Tribe v.
United States , 391 U.S. 404, 406 (1968) (natural resource harvesting rights held on reservation
whether mentioned in the enactment cr eating the reservat ion or not); see also Arizona , 373 U.S. at 598-99, concluding Indians are ent itled to sufficient “water nece ssary to sustai n life” on their reservations and observing that “wat er from the [Colorado River] woul d be essential to the life of the Indian people and to the animals th ey hunted and the crops they raised.”

The trust responsibility also applies to tribal cultural resources. Indeed, Congress has specifically recognized the applicab ility of the trust res ponsibility in this area: numerous federal laws protect tribal historic and cultural resources. See National Historic Preservation Act, 16 U.S.C. §§ 470-470x-6; Archeological Resources Protection Act, 16 U.S.C. §§ 470aa-470mm; Antiquities Act of 1906, 16 U.S.C. §§ 431-433; Exec. Order No. 13,007, 61 Fed. Reg. 26,771 (May 24, 1996); Exec. Or der No. 11,593, reprinted in 16 U.S.C. § 470 note. In addition, the American Indian Religious Fr eedom Act, 42 U.S.C. §§ 1996, 1996a, recognizes and protects the tribes’ right to practice traditional religions pursu ant to the First Amendment to the United States
Constitution. See also Religious Freedom Restoration Act, 42 U.S.C. § 2000bb; Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc. Thus, it is critical that EPA act to
ensure that the water resources and especially the cultural resour ces (e.g., Devils Lake) of FCPC and other impacted tribes are fully protected in accordance with EPA’s fiduciary obligations from mercury-related impacts.16 2. EPA’s responsibility under the Environmental Justice Doctrine

.

(a) General obligation under Environmental Just ice Doctrine to identify and address disproportionately high human heal th and environmental effects . Executive Order 12,898 established the Environmental Justice Doctrine, amid growing concern th at minority populations, low-income populations, and Indian tribes bear a disproportionate amount of adverse health and environmental effects. Executive Order 12,898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations , 59 Fed. Reg. 7629 (1994), (E.O. 12898), mandates that:

[E]ach federal agency shall make achieving en vironmental justice part of its mission by identifying and addressing , as appropriate, disproportionately high and adverse human
health or environmental eff ects of its programs, policie s, and activities on minority populations and low- income populations.

E.O. 12,898 (Section 1-101) (emphasis added). E.O. 12,898 expressly confirms that its provisions apply to federal programs, policie s and activities involving Native Americans. 59 Fed. Reg. at 7632. Similarly, guidance released by the Council on Environmental Quality expressly incorporates Indian tr ibes into the definition of low- income populations and minority populations. See Environmental Justice: Guidance Unde r the National Environmental Policy
Act , December 10, 1997. Accordingly, EPA must en sure that it identifie s and addresses the disproportionately high and adverse impacts of mercury deposition to FCPC and other affected
tribes.

(b) The Administration’s endorsement of the Environmental Justice Doctrine and its commitment to ensure all people the same degr ee of protection from e nvironmental and health
hazards . On August 9, 2001 the current administration confirmed its commitment to environmental justice and endorsed E.O. 12,898. In a memorandum (2001 Memo) 6 sent to the leadership of the agency, the EPA Administrator stated:

The Environmental Protection Agency has a firm commitment to the issue of environmental justice and its integration in to all programs, policies, and activities, consistent with existing environmental laws and their implementing regulations.

The Agency defines environmental justice to mean the fair treatment of people of all races, cultures, and incomes with respect to the development, implementation, and enforcement of environmental laws and policies, and their meaningful involvement in the decision making processes of the government.

2001 Memo at 1 (emphasis in original).

The memorandum specifies that this commit ment to environmenta l justice includes, “[c]onducting our programs, policies, and activities th at substantially affect human health and the

6 This document can be found at: http://www.epa.gov/compliance/resources/ policies/ej/admin_ej_ commit_letter_081401.pdf.17 environment in a manner that ensures the fair treatment of all pe ople, including minority populations and/or low-income popu lations; . . . [e]nsuring greater public participation in the Agency’s development and implementation of environmental regulations and policies; and [i]mproving research and data collection for Agen cy programs relating to the health of, and the environment of all people, including minority popul ations and/or low-income populations.” Id. (emphasis added).

The memorandum concludes:

In sum, environmental justice is the go al to be achieved for all communities and persons across this Nation. Environmenta l justice is achieved when everyone, regardless of race, culture, or income, enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.

2001 Memo at 2. To ensure that everyone, regardle ss of race or culture, enjoys the same degree of protection from environmental and health ha zards associated with mercury deposition, it is critical that EPA develop appropr iately stringent mercury standard s that are implemented in the near future, so that citizens, such as FCPC’s me mbers that rely heavily on fish consumption for cultural and other reasons, do not face disproporti onately high environmental and health hazards from mercury contamination.

(c) Need for EPA to understand tribal culture a nd natural resource use to properly assess and address disproportionately high and adverse im pacts of mercury deposition on tribes and to ensure tribes same degree of protecti on from environmental and health hazards . E.O. 12,898 and
the Environmental Justice Doctrine have direct relevance to the promulgation of environmental regulations that could affect In dian tribes -- as the 2001 Memo e xplicitly recognizes. What may be less apparent is how disproportionately hi gh and adverse human heal th or environmental effects on tribal individuals and/or communities can be properly assessed. In fact, such
individuals and communities ofte n experience environmental and other impacts differently from both the general population and from other minor ity populations. As Professor Dean Suagee explains:

[I]f you look closely you are bound to find impacts that affect tribal people differently from the way they affect othe r groups. Any activity that affects the environment has the potential to cause impacts on a tribal community that are different from the impacts suffered by other communities because of the ways in which the natural world is important to tribes for cultural and religious reasons. [This] kind of disproportionate impact re flects a basic difference between tribes and other minority groups in this country. This distinction applies both within and beyond reservation boundaries. . . . Some tribes, and some people within any given tribe, are more dependent than ot hers on traditional cu ltural practices for
their basic survival needs. Traditional re ligions have more practitioners in some
tribes than in others. But for all Am erican Indian and Alaska Native people, traditional cultural and religious practices are an important aspect of tribal18 identity. Impacts on culturally important biological communities or sacred places are bound to affect tribal communities differently.

Suagee, Dean B. Dimensions of Environmental Justic e in Indian Country and Native Alaska , 7 (2002) (Second National People of Color Enviro nmental Leadership Summit Resource Paper Series).

Thus, in order to assure that – in the wo rds of the 2001 Memo – “everyone, regardless of race, culture, or income, enjoys the same degree of protection from environmental and health hazards,” the EPA must undertake the study necessa ry to properly understand tribal culture and use of resources of FCPC and other impacted tribes and then carefully assess how this rulemaking (including its failure to adequately limit mercury emissions) will affect those uses
and resources.

3. Duty of EPA to consult with tribe, and tribe’s request for co nsultation meeting to discuss mercury impacts and tribe’s comments . EPA has a duty to consult with the potentially affected tribes in considering the impact of the proposed rule on their rights, resources and interests. This is an important part of the trus t responsibility. Because of this duty, FCPC asks that EPA carefully consider these comments and m eet with us to consult regarding our concerns.

Such consultation is specifically required by Executive Order 13,175, entitled
Consultation and Coordination with Indian Tribal Governments . 65 Fed. Reg. 67249 (2000). Executive Order 13,175 was recently reaffirmed by the Bush Administration. See letter to the Honorable Frank Pallone, Jr. from Alberto R. Gonzales, Counsel to the President, dated June 19, 2002. Executive Order 13,175 al so requires that “[e]ach agen cy shall have an effective process to permit . . . Indian tribal government s to provide meaningful and timely input in the development of regulatory policies on matters th at significantly or un iquely affect their communities.” 65 Fed. Reg. at 27655 (Section 3). Indeed, as outlined above, EPA has an Indian Policy that requires the Agency to “encourage [tri bes] to participate in policy-making” and other appropriate roles in the manage ment of reservation programs. 7

Executive Order 13,175 and EPA’s Indian Policy recognize that the trust responsibility includes the duty to consult with tribes and Indians to ensure their understanding of federal actions that may affect their rights and to ensu re federal consideration of their concerns and objections with regard to such actions.

Accordingly, in fulfillment of its trust du ties, the EPA is required to engage in meaningful consultation with the potentially a ffected tribes concerni ng the impacts of the proposed rule. Such consultation is also essential as a practical matter. The tribes are a primary source of knowledge and information regarding the lands, waters, natural re sources, and historic

7 Note also, as outlined in Section IV.A.2.b a bove, that EPA recently reaffirmed that the environmental justice doctrine requires that the Ag ency ensure the “meaningful involvement in the decision making processes of the government” for e nvironmental justice communities – which includes
Indian tribes

.19 and cultural resources in the ar ea that may be impacted by the proposed rule. Indeed, because the protection of historic and cu ltural resources often depends on maintaining the confidentiality
of information about such resource s, the tribes and their members ar e likely to be the only source
of certain information. Consultati on with the tribes is essential if the EPA is to consider and evaluate potential impacts to trib al rights, resources and interests from the proposed rule and fulfill its trust obligations.

In these comments, FCPC is presenting the s ubstantial concerns of its members regarding the proposed rule. To date, except for holding a regional hearing open to any participant, EPA has taken no steps to specifical ly consult with FCPC or any other tribes (to our knowledge). Under Executive Order 13,175 and EPA’s Indian Polic y, the FCPC asks that EPA meet with it to
discuss these comments.

B. FCPC’s special expertise rega rding mercury and mercury-re lated impacts to the tribe
and its members . Over the past decade, with its study of the effects of mercury deposition and cycling in Devils Lake, FCPC has developed si gnificant expertise regarding mercury-related issues. As discussed above, FCPC Tribal EP A, in conjunction with Dr. Carl Watras, has developed significant information regarding the mercury and methylmercury levels in Devils Lake and its surrounding waters, as well as data regarding the mercury content in fish found in the lake. As indicated above, Dr. Watras has executed a certification that he participated in the drafting of th e sections of these comments that relate to his work regarding
Devils Lake and Little Rock Lake and that thos e sections are a true a nd accurate representation of his work and findings.

In addition, the Tribe has s ubstantial expertise regardi ng available mercury control technology for coal-fired power plants. In par ticular, FCPC has retained the services of Dr. Phyllis Fox, an expert in pollution control technology for power plants, and in particular, mercury control technology. A copy of Dr. Fox’s cu rriculum vitae is attached as Exhibit H. A copy of Dr. Fox’s expert comments on availabl e mercury pollution control technology is
attached as Exhibit I. Because this report contains detailed information regarding available mercury control technology, as well as numerous attachments that discu ss the technology, FCPC requests that EPA carefully review Dr . Fox’s report and its attachments.

Moreover, the Tribe has retained Mr. Ted J ohnson, an expert in health risk assessment and statistical analysis to eval uate both the increased exposure of FCPC tribal members to mercury contamination and EPA’s proposed me thodology for developing its MACT floor. A copy of Mr. Johnson’s curriculum vitae is attach ed as Exhibit J. A copy of Mr. Johnson’s analysis of EPA’s proposed MACT floor is attached as Exhibit K. Because of the importance of this analysis in developing appropriate and le gally defensible mercury emission limits, FCPC requests that EPA carefully re view Mr. Johnson’s analysis.

Finally, the Tribe has clear expe rtise regarding its culture and way of life, as well as the impacts that mercury contamination has on its tr aditional activities. In addition to the vast knowledge of the Tribe’s members and leadership with respect to its cu ltural activities and potential impacts to those activit ies, these comments reflect the input of Dr. Charles Cleland, an expert in tribal culture. A c opy of Dr. Cleland’s curriculum vit ae is attached as Exhibit L.20 Dr. Cleland has executed a certificat ion that he participated in th e drafting of the sections of
these comments that relate to his area of e xpertise and the impact of mercury deposition on
cultural resources and that those sections are a true and accurate representation of his work and findings. A copy of his Dr. Cleland’s cer tification is attach ed as Exhibit M.

Accordingly, in order to meet its obligations under the trust respons ibility as well as the Environmental Justice Doctrine, it is critical that EPA work closel y and consult with the tribe to make sure that EPA’s rule-making adequately and fully addresses mercury-related health, environmental, and cultural impacts to the Tribe.

V Utility coal plants are the key caus e of mercury impacts in U.S. waters

.
Utility units make up the larg est domestic anthropogenic source of mercury emissions. In addition, EPA has found a plausi ble link between methylmercury concentrations in fish and mercury emissions from coal-fired power plants. Finally, studies have sh own that reduction in mercury deposition results in substantial reductions in methylmercury in surface waters and fish. Accordingly, FCPC believes that it is critical th at EPA take appropriate and significant action to fully and properly regulate emission of mercury from power plants.

A. Utility Units make up largest domesti c anthropogenic source of mercury
emissions . EPA estimates that approximately 60 percent of the total mercury deposited in the United States comes from U.S. anthropogenic air emission sources, and that the percentage is estimated to be even higher in some regions. See Regulatory Finding on the Emissions of Hazardous Air Pollutants From Electric Utility Steam Generating Units, Notice of Regulatory Finding, 65 Fed. Reg. 79825, 79827 (Dec. 20, 2000) (“2000 Regulatory Finding”). As recognized by EPA, utility units are the largest domestic source of such mercury emissions. 69 Fed. Reg. 4659. Accordingly, coal-fired utility un its are the key source of mercury emissions that must be significantly reduced to address the serious health-re lated and other costs associated with mercury. See 65 Fed. Reg. 79827 (“the available info rmation indicates that mercury emissions from electric utility steam generating units comprise a substantial portion of the environmental loadings and are a threat to public health and the environment.”).

B. EPA’s finding of “plausible link” be tween utilities and mercury in fish . EPA has not quantified how much of the methylmercury in fish is due to utility units relative to other sources, but concluded that it was not necessary to do so for the purpose of its finding that regulation of utility units is appropriate and necessary. See 65 Fed Reg. 79827. In fact, in its 2000 Regulatory Finding, EPA specifically conclude d that “there is a plausible link between methylmercury concentrations in fish and merc ury emissions from coal -fired electric utility steam generating units.” Id. at 79830.

C. Florida DEP and other findings that rem oval of mercury emissions results in direct, substantial, and timely reducti ons of mercury in fish and wildlife . It is critical to note that studies have shown that reductions in mercury em issions from utility uni ts and other industrial
sources would have an immedi ate beneficial effect. For example, according to the Florida Department of Environmental Protec tion, “over a single generation, mercury concentrations found in fish and wading birds in America’s Everglades have dropped by 60-7021 percent. The drastic reductions are directly linked to the inst allation of technol ogy that reduced mercury in emissions in industries in south Flor ida by 100 fold in the last two decades. . . . significant reductions in concentrations lead the Department of Health to downgrade fish consumption advisories in central and northern areas of the Ever glades this year (2003).” http://www.dep.state.fl.us /evergladesforever/news/ 2003/110603.htm (February 23, 2004).

Likewise, Dr. Watras’ studies have found that when the mercury content in rain declines, so does the mercury and methylmercury content in the water and fish of impacted lakes. In particular, his five-year study of Little Rock La ke indicates that reductions in atmospheric mercury deposition of 10 percent per year resulted in reductions of roughly 5 percent per year for mercury in lake water and fish. Unfortuna tely, more recent info rmation regarding the Little Rock Lake area indicates that mercury deposition may be rising again. Thus, not only is there a real need to address mercury deposition in the United States, but extant data indicate that substantial benefits may occur relatively quickly when mercur y deposition is significantly
reduced.

VI MACT regulation under Section 112 of CAA is legally required

.

A. EPA’s regulatory finding th at regulation of utility units under Section 112 is appropriate and necessary cannot be reversed . In its 2000 Regulatory Finding, EPA determined that regulation of Utility Units under Section 112 is “appropriate and necessary.” See 65 Fed. Reg. 79826. Although the Clean Air Act (“CAA”) provides a procedure whereby regulation under Section 112 may be avoided if EPA demonstrat es that emissions do not represent a threat to public health or the environment, EPA cl early cannot make such a showing for mercury emissions from Utility Units. Accordingly, EP A’s 2000 Regulatory Finding cannot be reversed, and it must regulate mercury emissions from U tility Units under Section 112 of the Clean Air
Act.

1. EPA’s 2000 Regulatory Finding that regulation of coal and oi l-fired utility units is appropriate and necessary . The Clean Air Act required EPA to “perform a study of the hazards to public health reasonably antici pated to occur as a result of emissions by electric utility steam generating units of [hazardous air] pollutants. . . .” 42 U.S.C. §112(n)(1)(A). After conducting the study required by section 112(n)( 1)(A), EPA determined that “regulation of HAP emissions
from coal- and oil-fired electr ic utility steam generating units under section 112 of the CAA is appropriate and necessary.” 65 Fed. Reg. 79826. Accordingly, EPA added “coal- and oil-fired electric utility steam generating units to the list of source categories under section 112(c) of the
CAA.” Id. Since EPA has found regulation of coal - and oil-fired electric utility steam generating units under Section 112 to be appropr iate and necessary, it must regulate HAP
emissions from these sources under Section 112. 42 U.S.C. §112( n)(1)(A) (“The Administrator
shall regulate electric utility steam generating units under this section [112] , if the Administrator finds such regulation is appropriate and necessa ry after considering th e results of the study required by this subparagraph” (emphasis added)).

2. Section 112(c) sets forth the standard s for deleting a MACT source category

. EPA now proposes to reverse its 2000 Regulatory Finding and proposes to “find that regulation of coal- and oil-fired Utility Units under section 112 is not ‘appr opriate and necessary’ within the22 meaning of section 112(n)(1)(A). As a conseque nce, EPA also proposes to delete such units from the CAA section 112(c) list.” 69 Fed. Reg. 4683.

The Clean Air Act sets forth clear standard s for any deletion of a source category from the list under section 112(c). In pa rticular, the Clean Air Act states:

The Administrator may delete any sour ce category from the list under this subsection, on petition of any person or on the Administrator’s own motion,
whenever the Administrator makes the follo wing determination or determinations, as applicable. . . In the case of hazardous air pollutants that may result in adverse
health effects in humans other than can cer or adverse environmental effects, a determination that emissions from no source in the category or subcategory concerned. . . exceed a level which is adequat e to protect public health with an ample margin of safety and no adverse environmental effect will result from emissions from any source

. . . .
42 U.S.C. §112(c)(9)(B) (emphasis added).

Nowhere in EPA’s proposed rule has the Agency determined that mercury emissions from Utility Units will not “exceed a level which is adequate to protect public health with an ample margin of safety” or that “no adverse en vironmental effect will result from emissions from” Utility Units. Indeed, the Agency has failed to provide any facts in the record that would support such a determination. Accordingly, EPA ha s failed to meet the statutory requirement to delete Utility Units from the list of categories under Section 112(c). As a result, because Utility Units are a listed source category under Secti on 112, the Clean Air Act specifically requires the
EPA to “establish emission standards under subsec tion (d)” of Section 112 for such listed Utility Units. See 42 U.S.C. §7412(c)(2) (“For the cat egories and subcategories the Administrator lists, the Administ rator shall establish emission st andards under subsection (d) of this section, according to the schedule in this subsection and subsection (e ) of this section”).

3. Because coal-fired utility units emit merc ury at levels that do not adequately protect public health, EPA cannot delete th ese facilities as a MACT source category . As explained above, EPA has not made the statutoril y mandated finding required to delete Utility Units from the list of sources subjec t to regulation under Section 112. See 42 U.S.C. § 112(c)(9)(B). In fact, the Agency cannot make such a showing given its finding that “mercury emissions from electric utility steam generating units comprise a substantial portion of the environmental loadings and are a threat to public health and the environment .” 65 Fed. Reg. 79827 (emphasis added). Indeed, even in its current proposed rule, EPA states that it “continues to believe that emissions of Hg fr om coal-fired Utility Units. . . pose hazards to public health . . .” 69 Fed. Reg. 4683 (emphasis added). Accordingly, EPA is statutorily obligated to regulate mercury emissions from Utility Units under Section 112.

B. EPA’s arguments in the pre-amble to the proposed rule to avoid MACT regulation
lack merit . EPA attempts to sidestep the clear stat utory procedure for deli sting a source category set out in section 112(c)(9)(B) by claiming that “its initial decision to list coal- and oil-fired Utility Units under section 112(c) in Decembe r 2000 was without proper foundation.” 69 Fed.23 Reg. 4689. EPA apparently bases this claim on its belief that section 111 provides authority to regulate mercury emissions from Utility Units and th at such authority will adequately address the public health hazards associated with mercur y emissions. In particular, EPA makes the unsubstantiated claim “that the premise underl ying its December 2000 ‘necessary’ finding, that no other authority exis ts under the CAA to adequately a ddress the public health hazards associated with Hg and Ni em issions, lacks foundation.” Id.

As explained in greater detail below, EPA’s cl aim that its original decision to list utility units was improper because of its asserted author ity to regulate them under section 111 fails for at least three reasons: (1) EPA misreads section 112(n)(1)(A)’s requirement to consider other requirements under the Clean Air Act as allowing a consideration of EPA’s overall authority to regulate even when no regulatory requirements ex ist; (2) EPA has not and cannot demonstrate that its proposed section 111 regulations will ade quately address mercury health hazards; and (3) once a pollutant such as mercur y is listed under sec tion 112(b), section 11 1(d) prohibits EPA from establishing emission standards under Section 111 for any such source category.

1. EPA’s assertion that MACT regulation is not required if there is other authority under the Clean Air Act to regulate mercury emissions is based on a mis-reading and misapplication of S ection 112(n)(1)(A) . In its attempt to avoid regulating utility units under section 112, EPA argues that it based its 2000 Regulatory Finding that it is ne cessary to regulate mercury emissions “solely on its belief , at the time, that there were no other authorities under the CAA that would adequately address Hg and Ni emi ssions from coal- and oil-fired Utility Units.” 69 Fed. Reg. 4684 (emphasis added). Among other things, EPA argues that Congress intended “that Utility Units be regulate d under section 112 only if the other authorities of the CAA, once implemented , would not adequately address those HAP emissions from Utility Units that warrant regulation.” Id. (emphasis added). As support, EPA c ites “the first sentence of section 112(n)(1)(A), which requires EPA to conduct a study that focuses on the hazards to public health that would exist following implementation of the other authorities of the CAA.” Id. (emphasis added). Citing section 111 as the other authority under the CAA, EPA now “propose[s] to find that regulation of coal- and o il-fired Utility Units under sectio n 112 is not necessary because CAA section 111 once implemented would adequate ly address the public health hazards posed by Utility Unit emissions of Hg and Ni.” Id. at 4684.

However, EPA mis-reads the clear language of section 112(n)( 1)(A) by replacing the word “requirements” with “authorities.” As EPA is aware, section 112(n)(1)(A) provides in part:

The Administrator shall perf orm a study of the hazards to public health reasonably anticipated to occur as a resu lt of emissions by electric utility steam generating units of pollutants listed under subsection (b) of this section after imposition of the requirements of this chapter.

(Emphasis added). Since at the time of the study , as well as now, there wa s a clear lack of any existing mercury-control requirement or in fact any requirement for EPA to develop future mercury-control regulations outside of secti on 112, the 1998 EPA study properly evaluated the hazards to public health reasonabl y anticipated to occur as a resu lt of emissions from these units without assuming required contro l under the Act. Consistent with the plain language of24 section 112(n)(1)(A), EPA’s 2000 Regulatory Findi ng found that “[i]t is necessary to regulate HAP emissions. . . under section 112 of the CAA because the implementation of other requirements under the CAA will not adequately addr ess the serious public health and environmental hazards arising from such emissi ons . . . and which section 112 is intended to address.” 65 Fed. Reg. 79820 (emphasis added).

In its attempt to avoid the effects of its proper 2000 Regul atory Finding, EPA now strains to read section 112(n)(1)(A) to allow, and in fact require, consideration of EPA’s other potential regulatory “authorities” under the Act, even if no requirements have or even in the future must
be issued under those authoritie s. Thus, in order to shoehorn section 111’s poten tial regulatory authority into section 112(n)(1 )(A)’s clear statutory language, EPA is forced to interpret section 112(n)(1)(A) to require EPA’s utility unit study to evaluate onl y those impacts that remain, “after imposition of [potential future] requirements [that could be promulgated under any other authority] of this chapter.” EPA cite s no basis for its expansion of section 112(n)(1)(A) to include not only existi ng requirements of the Ac t but also any future actions EPA may take under other aut horities accorded to it under the Act.

It is also important to note the context in which the “requirements of this chapter” is referenced in section 112(n)(1)(A ). It is referenced with re spect to EPA’s study of the public
health hazards associated with electric utility steam generating units’ emissions, not to a later decision regarding whether to regulate those emi ssions under section 112. It is highly unlikely that Congress could have intended EPA to conduc t a study of health effects that would occur only after the assumed imposition of then-unknown future potential but not required regulation. Indeed, if that were true and EPA were correct in its asser tion that regulation of mercury emissions from generating units is authorized under section 111, EPA’s strained and expansive interpretation of “requirements” would require EPA’s study to have assumed that regulation
under section 111 could/would address a ny mercury emissions, making EPA’s study meaningless. It is difficult to imagine that Congress would require EPA to conduct such a
fruitless exercise.

Accordingly, because there were and are no other statutory requirements currently in place to address mercury emissions from Utility Units, EPA’s 1998 study correctly considered
the health hazards that would occur after imposition of other statutory requirements. Thus, EPA’s subsequent finding, that it is appropriate and necessary to regulate mercury emissions from Utility Units under section 112, is valid and ca nnot be reversed based on the theoretical and contrived premise that EPA has the, as yet unexe rcised, authority to re gulate under some other provision of the Act.

2. EPA has not and cannot demonstrate that section 111 will ade quately address the public health hazards from mercury emissions . Even if EPA were co rrect that it could avoid MACT regulation by relying on its potential s ection 111 authority, rath er than on section 112, EPA has not and cannot support its determination that its proposed section 111 regulation would adequately address the public health hazards posed by mercury emissions from Utility Units.

EPA’s section 111 proposal will not be fully effective until at le ast 2018, leaving large segments of the American population subject to si gnificant health risks for almost a generation.25 Moreover, EPA specifically states that even afte r the proposed regulation is fully in place, its cap-and-trade program for mercury emissions under section 111 “may not eliminate the risk of unacceptable adverse health eff ects of Hg emissions.” 69 Fe d. Reg. 4686. Similarly, EPA has recognized that under a trading program some ut ilities may purchase allowances instead of reducing emissions and that thes e continued “emissions may have adverse health impacts within
the local area.” Id. ; see also , Obey, Doug, New Hampshire Data May Aid Opponents Of Emissions Trading In Mercury Rule , Inside Washington Publishers, 8 (April 8, 2004) (citing a recent study by New Hampshire state officials sugge sting that localized mercury deposition is a much greater concern than EPA has recognized). Because of these significant remaining health concerns, EPA is proposing to evaluate the health risks that remain afte r implementation of the cap-and-trade program.

3. EPA’s attempts to harmonize the 1990 House and Senate amendments to the Clean Air Act to allow regulation of mercury em issions from Utility Units under section 111(d)
lacks merit . As EPA admits, prior to the 1990 Clean Air Act amendments, section 111(d)(1)(A)(i) prevented the establishm ent of standards of performance for existing sources under section 111(d) for any pollutant, su ch as mercury, which is listed as a hazardous air pollutant under section 112(b )(1)(A). 69 Fed. Reg. 4685. As EPA also explains, it appears that the House and Senate passed two conflicting amendments to se ction 111(d)(1)(A )(i) as part
of the 1990 amendments to the Clean Air Act. Id. As EPA states, the House amendment provides that “a standard of performance under CAA section 111(d) cannot be established for any air pollutant that is emitted from a source category regulated under section 112 .” Id. (emphasis added). The Senate amendment pr ovides that “a standard of performance under section 111(d) cannot be established for any HAP that is listed in sec tion 112(b)(1), regardless of what categories of sources of that pollutant are regulated under section 112 .” Id.

EPA attempts to “harmonize” the Senate and House amendments by concluding that they together mean that “[w]here a source cat egory is being regula ted under section 112, a section 111(d) standard of perf ormance cannot be established to address any HAP listed under 112(b) that may be emitted from that particular source category.” Id . EPA apparently chooses this very narrow interpretation of section 111(d)(1)(A)(i), since otherwise regulation of existing Utility Units under section 111 would be barred by law, creating another clear legal barrier to EPA’s attempt to overturn its 2000 Regulatory Finding.

EPA’s proposed “harmonization” is improper for at least three reasons: (1) EPA’s reading completely disregards the intent of th e Senate simply to pa ss a conforming amendment and keep in place the existing ba r on section 111 regulation of listed HAPs, (2) EPA’s attempted harmonization violates hornbook law regarding stat utory interpretation, and (3) the Statutes at Large, which EPA notes constitute the legal evidence of the law, clearly bar section 111 regulation for listed HAPs, regardless of wh ether they are from a listed source category.

As EPA recognizes in its proposed ru lemaking, the Senate’s amendment to section 111(d)(1)(A)(i) was merely a “conforming amendment” and wa s intended to maintain the

8 http://insideepa.com/secure/docnum.asp?f=epa_2001.ask&docnum=482004_data26 bar on section 111 regulation of any listed HAPs rega rdless of what categories of sources of that pollutant are regulated under section 112. Id. Despite this recogniti on of the Senate’s clear intent, EPA completely disregarded this inte nt when it “harmonized” the Senate and House amendments. Indeed, EPA reads section 111(d)(1)(A )(i) directly contrary to the Senate’s clear intent by asserting that this subsection only pr events section 111(d) regulation when a source category (as opposed to a HAP) is regulated by section 112 and only then for listed HAPs that may be emitted from the source category.

Moreover, since the Senate a nd House amendments resulted in the enactment of two substantially different versions of section 111(d), EPA’s attemp ted “harmonization” [violates hornbook law regarding statutory cons truction.] When the houses of the legislature “. . . pass what purports to be the same bill but the contents differ substantially, the enrollment of the bill as finally passed is not conclusive, and the bill is not law .” Norman J. Singer, Sutherland Statutes and Statutory Construction ¶15.16 (2004) (empha sis added) (citing Volusia County v. State

, 125 So. 375, State ex rel. Caillouet v. Laiche , 29 So. 700 (La 1901), Bull v. King , 286 N.W. 311 (MN 1929), Moore v. Neece , 114 N.W. 767 (Neb. 1908)). Thus, since as EPA admits, the House and Senate amendments differ substantially, neither amendment is the law. Rather, the law on this issue is as it was prior to the 199 0 Clean Air Act amendments. Accordingly, section 111(d)(1)(A)(i) bars regu lation of existing units under s ection 111 for mercury emissions, since mercury is a listed HAP.

Finally, even if the conflicting House and Senate amendments could be read together to create one statement of the law, they would not support EPA’s reading. As EPA states, the Statutes at Large “constitute the legal evidence of the laws. . .” 69 Fed. Reg. 4685. The Statutes at Large for section 111(d) provi de that a standard of perfor mance may be established under section 111(d) “for any existing source for any air pollutant (i) . . which is not included on a list published under section 7408(a) ( or emitted from a source category which is regulated under section 112) ( or 112(b) ). . .” Id. (parenthetical in original and emphasis added). Thus, the Statutes at Large provide that regulation under section 111(d) is pr ohibited in any one of at least three instances: (1) where a pollutant is listed under section 7408(a) or (2) where a pollutant is emitted from a regulated section 112 source category or (3) where a pollutant is included on a list published under section 112(b)

.

For all of the above reasons, it is clear that regulation of mercury emissions under section 111(d) is prohibited. Therefore, EPA cannot legally regulate mercury emissions from existing units under section 111(d), and therefore, its arguments to overturn its 2000 Regulatory Finding lack merit.

C. NRDC settlement requires EPA to re gulate utility units under Section 112 . On October 26, 1994 EPA and the Natural Resource Defense Council, Inc. (“NRDC”) executed a Settlement Agreement which provided that, by N ovember 15, 1995 EPA must complete a health effects study and determine whet her regulation of electric util ity steam generating units under section 112 is appropriate and necessary. The Se ttlement Agreement also provided that if EPA found that regulation of utility units under sec tion 112 was appropriate and necessary, then EPA would propose regulations under section 112 by November 15, 1998 a nd take final action on that proposal by November 15, 2000. See NRDC v. EPA , D.C. Cir. No. 92-1415 (Oct. 26, 1994).27 The dates in the original Settlement Agr eement were subsequently modified in a November 17, 1998 Stipulation to provide that EP A must make the appropriate and necessary determination no later than December 15, 2000 and if EPA finds that regulation is appropriate and necessary, then it must propose section 112 regulations by December 15, 2003 and take final action on the proposed rule by December 15, 2004.

Pursuant to the 1994 Settlement Agreement a nd the dates set out in the 1998 Stipulation, in December 2000 EPA determined that regulation of electric utility un its under section 112 of the Clean Air Act is appropr iate and necessary. See 65 Fed. Reg. 79825 (Dec. 20, 2000). EPA is therefore required by its agreement with NR DC to propose regulations under section 112 for electric utility units by December 15, 2003 and to take final action on those proposed rules by December 15, 2004.

EPA’s January 30, 2004 proposed rule states th at the EPA likely may not regulate utility
units under section 112 of the Clean Air Act. In stead, EPA proposes to regulate such units under section 111. This attempt to avoid section 112 regulation conflicts with EPA’s previous Settlement Agreement with NRDC. Any attemp t to regulate utility units under section 111, instead of section 112, constitutes a breach of its 1994 Settlement Agreement and 1998 Stipulation Agreement with NRDC.

D. The trust responsibility require s EPA to regulate under MACT . The trust responsibility requires EPA to prot ect tribal resources, especially in circumstances when those resources are relied upon by Indian tribes and their right to harves t such resources is protected by federal law. Such rights are held by Indian trib es on, and in many instances, off the Reservation lands. This responsibility is enhanced by the Environmental Justice Doctrine and by Executive Order 12,898 regarding envi ronmental justice, since as discussed in detail above, FCPC and other impacted tribes clearly face disproportionate a nd adverse impacts from mercury deposition. See Sections III and IV supra . Here the EPA has the ability to require substantial reductions in mercury emissions that harm FCPC resources and is under a legal mandate to do so. The trust responsibility is one additional reason why EPA must comply with the law and require coal-fired power plants to meet a protective MACT standard under CAA Section 112.

As discussed in Section IV.A .1 of these comments, under EPA’s Indian Policy and under the federal trust respon sibility (which the Indian Policy embodies), EPA has an obligation to protect tribal rights and res ources -- including the lands, waters and natural environment of Indian reservations. Under the Policy and the ca se law cited above, the relationship between the
EPA and FCPC is the same as that of a private fiduciary to a beneficiary.

This obligation is strengthened by EPA’s commitme nt to the principle of fair treatment of people of all races, cultures, and incomes – in cluding Indian tribes – under the environmental justice doctrine and Executive Order 12,898 re garding environmental justice. See Section IV.A.2. supra

. In 2001 EPA specifically reaffirmed its obligations under the environmental justice doctrine and Executive Order 12,898. In so doing, EPA made clear that its
commitment to environmental justice extends to the devel opment and implementation of environmental regulations and policies.28 In this rulemaking, EPA must consider the severe impact mercur y pollution has on the
FCPC reservation and on other lands owned and/ or used by FCPC and its members for cultural purposes. As described above in Section III, mercury pollution of water and water-dependant resources has a severe impact on FCPC’s ability to continue its cultural practices. It is clear, however, that the regulatory options EPA is considering in this rulemaking would not adequately address the mercury contamination of FCPC wate r, lands and cultural resources. The trust responsibility requires more than this.

Under the trust responsibilit y, federal agencies must administer their own programs and activities in a manner that avoids adverse impacts on Indian rights. This is shown, for example, by the decisions in Pyramid Lake Paiute Tribe v. Morton , 354 F. Supp. 252 (D.D.C. 1972), and
Muckleshoot Indian Tribe v. Hall , 698 F. Supp. 1504 (W.D. Wash. 1988), cited above. The holdings of these cases reflect prior decisions of the Supreme Court which establish that the trust responsibility imposes legal dutie s on federal agencies separate and apart from the express provisions of a treaty, statute, regulation or executive order.

In Pyramid Lake Paiute Tribe v. Morton , the court enjoined diversions of water for a federal reclamation project which adversely affected a lake loca ted downstream of the project on the Pyramid Lake Paiute Tribe’s Reservation. In that case the Tribe’s members lived on the
shores of the lake and fished its waters fo r food. 354 F. Supp. at 254. Although the diversions violated no specific statute or treaty, the court he ld that the Agency’s decision to divert water
constituted a violation of th e trust responsibility. Id. at 256. The court ruled that in order to fulfill his duties as trustee, the Secretary of the Interior was obliged to insure that the tribe received all water not otherwise obligat ed by court decree or contract. Id. Under the trust analysis of this case, EPA has a duty to prev ent degradation due to mercury deposition of resources relied on by tribes, and to prevent im pacts to tribal rights to such resources.

Making decisions under the Clean Air Act that affect tribal lands similarly implicates EPA’s duty as a trustee to FCPC an d to other tribes. This fiduciar y responsibility requires a high standard of conduct by EPA. In Navajo Tribe v. United States , 364 F.2d 320, 322-24 (Ct. Cl. 1966), for example, an oil company had leased tribal land for oil and gas purposes. Upon discovering helium-bearing non-combustible gas wh ich it had no desire to produce, the company assigned the lease to the Federal Bureau of Mine s. The Bureau then developed and produced the helium under the terms of the assigned federal lease instead of negotiating a new, more
remunerative lease for the tribe. The Court of Claims held this to violate the trust responsibility, and analogized these facts to th e case of a “fiduciary who learns of an opportunity, prevents the beneficiary from getting it, and seizes it for himself.” Id. at 324.

As Navajo Tribe exemplifies, the “most fundamental duty owed by the trustee to the beneficiaries of the trust is the duty of loyalty . . . to administer the trust solely in the interest of the beneficiaries.” Pegram v. Herdrich , 530 U.S. 211, 224 (2000) (quoting 2A Austin W. Scott & William F. Fratcher on Trusts § 170 at 311 (4 th ed. 1987)); accord NLRB v. Amax Coal Co.

, 453 U.S. 322, 327 (1981); Restatement (Second) of Trusts § 170 (1959); George G. Bogert and George T. Bogert, Law of Trusts and Trustees § 543, at 217-19 (2d rev. ed. 1993).29 From the proposed rule it appears that EPA de sires to abandon the requirements of CAA Section 112 and the development of a proper MACT standard that goes along with it. As these comments demonstrate, EPA can effectively lim it mercury emissions, doing so has very positive
benefits for those who live downwind of merc ury-emitting power plants, and EPA has a legal mandate to properly restrict mercury emissions under CAA Section 112. That is exactly what EPA should be doing. Any other path is inconsis tent with EPA’s trust responsibility to FCPC and to other tribes. Failing to properly regulate mercury emissi ons would also be contrary to
EPA’s commitment to fair treatment of Indian tribes under the Environmental Justice Doctrine.

VII EPA’s MACT floor analysis is improper a nd sets emission limits that are several times higher than appropriate

.

A. EPA’s methodology for developing MACT floor must be reasonably based (i.e., it must reasonably estimate the performance of the relevant best-performin g plants) and must be
demonstrated with substantial evidence . While EPA likely has the authority to devise the methodology of deriving the MACT floor, such methodology must reasonably estimate the performance of the best performing units, and th e Agency must demonstrate with substantial evidence why its methodology provides a reasonable estimate. See Northeast Maryland Waste Disposal Authority v. EPA , 358 F.3d 936, (D.C. Cir. 2004) (“To satisfy [Clean Air Act] requirement, EPA must demonstrate with substantia l evidence -- not mere assertions -- that the chosen floors represent ‘a reasonable estimate of the performance of the [best-performing] units.”) (internal quotations omitted; citation om itted); Cement Kiln Recycling Coalition v. EPA

, 255 F.3d, 855, 862 (D.C. Cir. 2001) (“While acknowledgi ng that EPA has authority to devise the means of deriving [the MACT floor]. . . the method the Agency selects must ‘allow[ ] a reasonable inference as to the performance of the top 12 percent of units. . .’[and] EPA must show not only that it believes its methodology pr ovides an accurate picture of the relevant sources’ actual performance, but also why its methodology yields th e required estimate.”) (emphasis in original) (c iting Sierra Club v. EPA , 167 F.3d 658, 663); National Lime
Association v. EPA , 233 F.3d 625, 632 (D.C. Cir. 2000) (“. . .to comply with the statute, EPA’s method of setting emission floors must reasonably estimate the performance of the relevant best performing plants.”).

B. EPA’s proposed methodology fails to reasona bly estimate the performance of the relevant best-performing plants and EPA cannot demonstrate that its methodology is reasonably based because it improperly uses a short-term wors t-case analysis to develop a long-term average
standard . To establish the MACT floor, EPA esse ntially adopted a util ity industry-friendly methodology prepared by ENSR Corpor ation for WEST Associates. See Memorandum from
William H. Maxwell to the U tility MACT Project Files, Analysis of variability in determining MACT floor for coal-fired electr ic utility steam generating units , Nov. 26, 2003 (EPA’s “MACT Variability Analysis”) (“A multi-variable analys is provided by WEST Associates... appeared to provide the most comprehensive approach and has been adopted , with modifications... by the EPA in determining the MACT floor.”) (emphasis added). See also

, Multivariate Method to Estimate the Mercury Emissions of the Best-Performing Coal-Fired Utility Units Under the Most
Adverse Circumstances Which Can Reasonably be Expected to Recur , March 4, 2003. In fact, EPA took additional steps, discussed below, to make the methodology even more friendly to the
utilities.30 As indicated above, FCPC has retained the services of Mr. Ted Johnson, an expert in exposure assessment and air quality analysis to review the methodology used by EPA to
establish the MACT floor. Ba sed on Mr. Johnson’s analysis, it is clear that EPA’s adopted methodology fails to reasonably estimate the pe rformance of the best-performing units, and cannot be supported by substantial evidence for the following reasons.

1. EPA fails to reasonably estimate the perfor mance of the relevant best performing plants since it uses a short-term worst-case emission rate to calculate a long-term average
standard . EPA is proposing that “[c]ompliance with the Hg emission limit would be determined based on a rolling 12-month averag e calculation.” 69 Fed. Reg. 4663. EPA has also determined that mercury is highly toxic, pe rsistent, and bioaccumulates in the food chain, and that “[f]ish consumption dominates the pathway for human a nd wildlife exposure to mercury.” 65 Fed. Reg. 79827. Since it appears that the primary health h azard associated with mercury emissions is due to long-term or chronic exposure. EPA’s development of a long-term average compliance
standard appears to be reasonably based.

However, EPA then adopted the utility industry’ s variability analysis that calculated the long-term coverage emissions standard using a short-term worst-case emission rate . This calculation method is wholly in appropriate and prevents EPA’ s MACT floor methodology from reasonably estimating the performance of the releva nt best performing sour ces. As Mr. Johnson notes in the attached memorandum, it is cl ear that the averagi ng time for compliance
demonstrations should be consistent with the av eraging time of the data used to establish the
emission limit. See Memorandum from Mr. Ted Johnson, TRJ Environmental, Inc., Comments on the Proposed MACT Floors for Mercury Em issions from Coal-F ired Utility Units , April 27, 2004 (“Johnson Comments”) (attached as Exhi bit K). For example, if the compliance demonstration was to be based on an hourly em ission rate, then it woul d be appropriate to
establish an emission limit base d on the potential emissions that could occur in any 1-hour period over the full range of possible operational scenario s. Similarly, if the compliance demonstration
is to be based on based on a 12-month rolling average , the emission limit should likewise be
based on the average emissions over the range of possible operational scenarios that that could
occur over the course of a year . As indicated earlier in these comments, because of the importance of developing appropriate and lega lly defensible mercury emission limits, FCPC requests that EPA carefully revi ew Mr. Johnson’s analysis cont ained in the Johnson Comments.

EPA apparently adopted the utility industry’s variability analysis b ecause it believes that mercury emission rates would be greatly influenced by coal composition. See 60 Fed. Reg. 4672 (“The variability of Hg emissions from coal-f ired units is signifi cantly influenced by the variability over time in the composition of the coal burned as fuel”). Moreover, because the available stack test data was repr esentative of the coal being bur ned at the time of the test, EPA apparently believed it was necessary to estimate th e mercury emissions that may be expected to occur over the full range of coal compositions. To account for variability in coal composition (e.g. , heat content, mercury content, chlorine co ntent) the utility indus try developed and EPA adopted a correlation equation and estimated the mercury removal fraction based on coal composition data from the ICR (Information Collection Request) data base. Id. (“The purpose of deriving a correlation equation. . . was to provide a numerical means of predicting the fraction of Hg removed for the best-performing sources over th e entire range of fuel variability experienced31 by each of those sources over the course of a year .”). However, where the correlation equation was deemed to be a “poor fit,” the utility i ndustry and EPA based the mercury removal fraction on the average mercury removal fraction obser ved in the actual stack tests. Id. at 4673.

For each of the best performing units, the ut ility industry and EPA then calculated the mercury emission rates over the full range of coal compositions presumed to be used by that unit and sorted those emissions from smallest to larg est to obtain a cumulativ e frequency distribution.
Id. EPA then decided, without any rational basis, to discard 97.5 percen t of the best emission results of the relevant facilities and to propose a standard based solely on the worst 2.5 percent of
emissions from the relevant sources. As EPA notes, it determined that “[t]he 97.5 percentile value of this distribution (i.e., an em ission rate that is expected to be exceeded only 2.5 percent of
this time ) would represent the operation of the unit under conditions reasonably expected to
occur at the unit.” Id. (emphasis added); see also , MACT Variability Analysis, at 7 (“The EPA
chose to use the 97.5 th percentile (as opposed to the 95 th percentile used in the WEST analysis) value of this distribution (i.e., an emission rate that is expected to be exceeded only 2.5 percent of the time) to represent th e operation of the unit under ‘ worst conditions .’”) (emphasis added).

EPA has not and cannot demonstrate why its proposed use of a short-term worst condition approach reasonably estimates the perf ormance of the best performing units given its long-term average standard. This is because th e use of short-term worst case data clearly and substantially overstate s the long-term (e.g. , 12-month) emissions from the best performing units.
EPA’s own documents show this fact. EPA’s MACT variability analysis shows that the 97.5 th percentile emissions are substantia lly greater than the average or median emissions from these plants. For example, for the Meckle nburg 1 bituminous-fired unit, the 97.5 th percent emission level is approximately 1.8051 lbs/TBtu, the average emissions level is 0.5700 lbs/TBtu (less than
one-third of the 97.5 th percent emission level), and the me dian is 0.1385 lbs/TBtu (less than onetwelfth of the 97.5 th percent emissions level). MACT Vari ability Analysis, Mecklenburg 1: 97 th percentile = 1.8051 lb Hg/TBtu Graph.

This type of unsupported a nd inappropriate methodology clearly does not satisfy the requirement for the EPA to adequately explai n why its methodology is reasonable and for EPA’s methodology to reasonably estimate the performan ce of the best-performing units. For example,
in Cement Kiln , the D.C. Circuit vacated EPA’s MACT standards for hazardous waste combustors in part because EPA had not adequa tely explained why its MACT setting approach was reasonable. 255 F.3d at 865 (“Some of the agen cy’s citations to the record merely contain assertions that ‘[the] appro ach... fully accounts for normal proce ss variability.’”) (citing EPA’s Final Response to Comments: MACT Floor Approaches at 59) (quotations and omissions in original). Likewise, in Northeast Maryland Waste Disposal Authority , the D.C. Circuit made clear that “to satisfy [Clean Air Act] require ments, EPA must demonstrate with substantial
evidence – not mere assertions – that the chosen floors represent ‘a reasonable estimate of the performance of the [best-perfor ming] units.” 358 F.3d at 936 (int ernal quotations omitted; citing
Cement Kiln at 866).

Accordingly, EPA’s use of a 97.5 percentile (i.e. , short-term worst-case) factor to calculate a long-term average MA CT floor standard is inappropr iate, lacks merit and cannot be32 demonstrated to reasonably estimate the long-t erm average performance of the relevant best performing sources.

2. EPA’s own documents recognize that its vari ability analysis is inconsistent with setting a standard that is enfor ced on a long-term average basis . In setting the MACT floor, EPA states that although it believes the available emissi on data is representative of the industry, the data exhibited a significant degree of variability. See MACT Variabilit y Analysis, at 1 (“Although EPA is confident that the data availa ble are representative of the industry, it is evident that the test report data exhibit a signifi cant degree of variability, even within a given subcategory.”). EPA thus concluded that “it was necessary to devel op a methodology to address the multiple sources of the observed variability in order to assure that an emission limitation
value could be derived that would be achievable.” Id. As a result, it appears that EPA attempted to account for the variability in emissions that coul d occur on a short-term worst-case basis. In other words, EPA attempted to establish a long- term emission limit that would normally not be exceeded at any time during any operational scenario by basing the limitation on a short-term, worst-case variability analysis.

However, EPA’s own documents acknowledge that its variability analysis is inappropriate where a long-term compliance average period is allowed. EPA’s MACT Variability Analysis “found that there are two fundamentally d ifferent approaches to incorporating variability into the proposed ru le: (1) including variability in the MACT floor calculation, or (2) including variability in the compliance method.” Id. at 2 (emphasis added). Regarding the second method, EPA stated that “[a]ddressing variability in the compliance method would involve allowing an averaging time for compliance that would accommodate variations in pollutant em issions over time.” Id.

Thus, according to the MACT Variability Analysis, it is appropriate to choose one of two fundamentally different methods to account for variability in the data. Unfortunately, EPA chose

to use both methods in the proposed rule. That is, not only did EPA allow compliance
determinations “based on a ro lling 12-month average calculation” but it also went to great lengths to “adjust” the available emission da ta to account for vari ability. 69 Fed. Reg. 4663.

As Mr. Johnson notes, allowing compliance to be determined based on a 12-month rolling average is more than adequate to account fo r any short-term variations in emissions that a particular source may experience. See Johnson’s comments at 6. But it is not just Mr. Johnson that says this, EPA’s own documents plainly stat e “averaging over a month or year of data will provide opportunity for variations in the amount of a constituent in the fuel to be accommodated without exceeding the emission limitation.” MA CT Variability Analysis , at 2. Accordingly, given EPA’s long-term compliance demonstratio n period, there is no need for EPA’s proposed short-term, worst-case variability analysis. Rather, the MACT fl oor should be set simply using the mathematical average of the emission data fo r each of the top 12 percent of existing sources (or the top performer in the case of new sources).

3. EPA also improperly inflates the aver age emissions of the relevant best performing plants in setting the MACT floor for existing sources by using a 97.5 percent upper
confidence level . After applying the 97.5 percentile shor t-term worst case factor discussed33 above, EPA takes the additional unusual step of applying yet another variability factor to “account for inter-unit variability among the top pe rformers for existing sources.” 69 Fed. Reg. 4673. Without any explanation, EPA states that “[a] focus on within-unit variability alone is not expected to capture the full range of emission variability among the best-performing sources. The EPA accounted for this variability by calcu lating a 97.5 percent upper confidence level for the mean by use of the student t-statistic.” Id.

(a) Applying a 97.5 percent upper confidence le vel to estimate the emissions of topperforming units for which EPA does not have emission data violates the Clean Air Act

. Although the preamble is unclear, it appears EPA is applying the 97.5 percent upper confidence level to the existing emission data for the top-performing units to es timate the emission rate that might be calculated if EPA had actual emission data from all top-performing units. For example, the MACT Variability Analysis states that “[t] his adjustment reflects the fact that the top performing sources in the data base do not represent the full population of the best performing 12 percent of coal-fired utility units.” MACT Va riability Analysis, at 7 (emphasis added). In other words, it appears that EPA believes that there are other units fo r which it doesn’t have
emission data that would nevertheless be in the top 12 percent of the subcategory.

Similarly, as Mr. Johnson explains in his co mments a confidence interval, such as this used by EPA, “is typically used to indicate the degree to which a ‘sample mean’ – a mean determined from a relatively small sample of measurements – is likely to differ from the ‘true (population) mean’ – the mean that would be determined from a mu ch larger (possible infinite)
set of measurements.” Johnson Comments at 7. Accordingly, the confidence interval should only be used if EPA were set ting the MACT floor at the emi ssion level achieved by the top 12 percent of units regardless of whether EPA had emission information from all such units.

However, whether the data base reflects th e “full population of the best performing. . . units” is irrelevant to setting a proper MACT floor. The Clean Ai r Act clearly states that the MACT floor is to be based on the “average emission limitation achieved by the best performing 12 percent of the existing sources ( for which the Administrator has emissions information ) . . .” 42 U.S.C. § 7412(d)(3)(A) (emphasis added). Thus , the statute does not allow the EPA to try to guess what the performance of the top 12 percent woul d be if data were available from all of the top-performing units. Rather, th e statute simply requires EPA to develop the MACT floor based
on the sources for which EPA has emission data. Accordingly, EPA’s attempt to manipulate the existing emission data to estimate what the emissi on rate might be if EPA had data from all topperforming units violates the Clean Air Act’s clear mandate to c onsider only the units for which
EPA has emissions information.

(b) Assuming a 97.5 upper confidence level on the top performing units is arbitrary and caprious and cannot be justified . As explained in the pr evious section, EPA cannot manipulate existing emission data to estimate missi ng emission data from other units. However, even if EPA could properly employ a confidence interval in its analysis, the use of EPA’s proposed 97.5 percent upper confidence le vel would be arbitrary and caprious.

EPA chose a 97.5 percent confidence interv al meaning that there is a 97.5 percent probability that the true mean will fall somewhere within that interval. See Johnson Comments34 at 7. The choice of a 97.5 percen t confidence interval means that there is a 2.5 percent chance of the true mean being outside this interval (i .e., a 1.25 percent chance of being above the upper confidence limit and a 1.25 percent chance of bei ng below the lower confidence limit). Thus,
there is a 98.75 percent chance that the upper confidence limit overestimates the true mean (likewise there is a 98.75 percent chance that the lower confidence limit will underestimate the true mean). Accordingly, the use of a 97.5 pe rcent upper confidence limit is not a reasonable
estimate of the true mean of a population since there is almost a 99 percent certainty that it
overestimates the true mean.

Moreover, it is clear that the choice of the actual percen t confidence level will greatly influence the upper and lower limits. Although EPA chose a 97.5 percent confidence level, it could just have easily chosen a 90 per cent or other confidence level. See id. Accordingly, because EPA has not provided any justification as to why is choose the 97.5 percent confidence level, the use of such an upper confid ence level is arbitrary and caprious.

(c) The use of a 97.5 percent upper confidence le vel is inconsistent with EPA’s own guidance and past practices . EPA’s use of the 97.5 percent upper confidence limit is contrary to its own practices and guidance regarding the se tting of MACT standa rds. Early in the development of MACT standards, EPA determined that a simple average should be used. In particular, EPA found that “the most natural a nd straightforward reading of this language [in section 112(d)(3)(A)] would have EPA first de termine the emission limitations achieved by sources within the best performing 12 percen t, and then average those limitations.” National Emission Standards for Hazardous Air Pollutants for source Category: Organic Hazardous Air Pollutants From the Synthetic Organic Chemic al Manufacturing Industry and Other Processes Subject to they Negotiated Regula tion for Equipment Leaks; Dete rmination of MACT ‘Floor,’ Final Rule, 59 Fed. Reg. 29296 (June 6, 1994). In this rulemaking, the term “average” was “interpreted to mean a measure of central tendency such as the arit hmetic mean or median.” Id.

EPA later restated its simple averaging appr oach when it developed general guidance for
the MACT standards. See Guidelines for MACT Determinations under Section 112(j) Requirements , EPA 453/R-02-001 (Feb. 2002) (informing stat es that they should use the simple averaging approach set forth in the June 6, 1994 rulemaking when developing MACT standards). Moreover, as Mr. Johnson notes, EPA’ s historical use of the simple average is the best and least biased estimate of the “averag e” of a set of numbers. See Johnson Comments at 7. Accordingly, there is no reason for EPA to abandon this approach now.

Mr. Johnson has also conducted a review of the methodologies used by EPA to establish the MACT floor for other categories of sources regulated under section 112. Based on this review and consistent with EPA’s 1994 interpre tation, Mr. Johnson has concluded that “EPA should use the simple arithmetic mean of the four or five unit values in each category as the MACT floor, as the simple mean is the best (lea st biased) estimate of th e average performance of these units, regardless of the degree of variability exhibited by these data.” Johnson Comments at 7 (citing Snedecor and Cochran, Statistical Methods , Iowa State University Press, section 4.4, 1980). Indeed, while Mr. Johnson’s review has found numerous examples where EPA has used a simple average of the relevant faci lities to set the MACT floor, in no cases except the rules35 EPA is proposing this spring has his review id entified situations wh ere any upper confidence limit in averaging has been used.

Accordingly, in setting the MACT floor for ex isting Utility Units, EPA is required to take a simple average of the emission rates achieved by the best performing 12 pe rcent of the units in the source category.

(d) EPA’s use of the 97.5 percent upper c onfidence level improperly results in a MACT floor that is in most cases higher than emissions from the worst-performing relevant
units . The results of EPA’s use of 97.5 per cent upper confidence level demonstrate the problems with its approach. The plain langua ge of the Clean Air Act requires that the average of
the relevant units be used in creating the MACT floor. See 42 U.S.C. §7412(d)(3)(A) (requiring the MACT floor to be no less stringent than “ the average emission limitation achieved by the best performing 12 percent of the existing sources . . . .”). In contrast, EPA’s use of this upper
confidence level causes it to create MACT standards that are in most cases higher than the worstperforming relevant facilities.

For example, the worst performing bituminous unit used by EPA to set its MACT floor
had measured emissions of 0.10620 lbs/TBtu. See MACT Variability Analysis. After applying the 97.5 variability percentile fact or, this unit had an adjusted emission rate of approximately
1.8 lbs/TBtu . Id. However, the final proposed standard fo r bituminous units was calculated to be
2.0 lbs/Tbtu (i.e., 11 percent highe r than the emissions of the wo rst performer). Similarly, for subbituminous units, the worst performing unit had an adjusted emission rate of approximately
5.583 lbs/Tbtu . EPA’s proposed standard is 5.8 lbs/Tbtu (i.e., 4 percent hi gher than the worst performer). The worst performing units for the wa ste coal and IGCC units had adjusted emission rates of approximately 0.158 and 7.34 lbs/TBtu respectively. EPA’s proposed standards are
0.38 and 19 lbs/Tbtu (i.e., 141 and 159 percent higher than the worst performer). Only for lignite units is the proposed sta ndard set below the worst performe r. However, even here the final standard was set well above the average of th e relevant facilities and almost as high as the worst performer (9.2 vs. 9.53 lbs/TBtu). Acco rdingly, rather than complying with the Clean Air Act and creating a standard that is the average of the relevant facilities for which EPA has data, EPA proposes a standard that in almost all cases allows for more emissions than the worst-performing relevant facility.

C. Trust responsibility heightens EPA’s re sponsibility to properly develop MACT
floor . As discussed above in Section VI.D of th ese comments, the trust responsibility based on federal Indian law and on EPA’s Indian Policy requires EPA to protect resources that Indian tribes rely upon. In this case the resources affected by mercury contamination have particular cultural importance to FCPC. The surface waters that emissions from coal-fired power plants contaminate with mercury (which then becomes toxic methylmercury) ar e critical to FCPC cultural practices. FCPC members also fish, hunt, and gather materials (such as medicinal plants) that can be affected by mercury contamin ation. Each of these activities has a cultural
dimension and harm to these resources harms FCPC members.

As presented above, the trust responsibility applies to acti ons by the federal government including agency actions such as rulemakings. As these comme nts make clear, EPA’s proposal36 strongly suggests that EPA will fail to properly develop the MACT floor (if the Agency even ends up acting under Section 112). Not only does the Clean Air Act require EPA to do this, but the trust responsibility and the e nvironmental justice doctrine add s ubstantial weight to this legal
mandate.

D. EPA’s improper calculation of the MACT results in a me rcury standard that is up to five times higher than appropriate . Mr. Johnson calculated th e MACT floor using EPA’s general methodology but eliminating EPA’s improper us e of a short-term wors t-case approach to develop a long-term average standard, and its improper use of a 97.5 percent upper confidence
level. Mr. Johnson’s corrected calculations dem onstrate the EPA’s proposed MACT floor standards for existing sources allow up to five times more emissions of toxic mercury than proper MACT floor calculations would permit. Likewise , Mr. Johnson’s corrected calculations show that EPA’s proposed MACT floor standards for new sources allow up to four times more emissions than proper MACT fl oor calculations would allow.

1. EPA’s MACT standard should be based on the simple average of the 12-month emissions from the relevant best-performing sources . As explained in section VII.B. above, EPA has determined that a compliance demonstrat ion based on a 12-month rolling-average is appropriate for the MACT standard. However, EPA inappropriately estimated its proposed long-term average emission limit based on a vari ability analysis that used a short-term worst-case emission rate. In addition, EPA di scarded the requirements of Section 112 and its own guidance and precedents in setting MACT floors to apply a 97.5 percent upper confidence level, which substantially overstates the aver age emissions of the relevant facilities.

As explained in section VII.B ., in order to be consistent with the 12-month compliance demonstration averaging period, EPA must deve lop the MACT limit based on an emission rate averaged over a similar 12-month period. Accord ingly, it is improper for EPA to address shortterm variability by applying its 97.5 percentile f actor. Likewise, as discussed above, nothing in the Clean Air Act or EPA’s history of creati ng MACT standards suppo rts the use of EPA’s proposed upper confidence level. Rather, the MACT floor should simp ly be set at the average of the emission rates achieved by the best-performing units.

2. Calculation of the MACT floor for existi ng sources using the simple average of 12-month emissions from the relevant best-perfo rming sources yields emission limitations that
are less than one-half to le ss than one-fifth of those allowed under EPA’s proposal . Mr. Johnson has calculated the MACT floor by eliminati ng EPA’s improper use of the 97.5 percentile short-term, worst-case factor a nd its additional 97.5 percent upper c onfidence level. In all other significant respects, Mr. Johns on’s methodology follows EPA’s.

The results obtained by Mr. Johnson show that when the MACT floor is properly calculated for the long-term compliance averagin g period proposed by EPA, the emission limits

are less than one-half to less than one-fifth of the limits established in the proposed rule. In particular, Mr. Johnson’s co rrected calculations of the MACT floors produce emission
limitations of:37  0.346 lbs/TBtu for bituminous-fired plants (less than one-fifth of EPA’s proposed standard of 2.0 lbs/TBtu).

 1.362 lbs/TBtu for subbituminous-fired plan ts (less than one-fourth of EPA’s proposed standard of 5.8 lbs/TBtu).

 4.050 lbs/TBtu for lignite-fired plants (less than one-half of EPA’s proposed standard of 9.2 lbs/TBtu).

 0.093 lbs/TBtu for coal refuse-fired plants (less than one-fourth of EPA’s proposed standard of 0.38 lbs/TBtu).

 4.237 lbs/TBtu for IGCC units (less than one -fourth of EPA’s proposed standard of 19 lbs/TBtu).

See Johnson Comments, Table 2.

3. Calculation of the MACT floor for ne w sources using the one-year average emissions from the relevant best performing sour ce yields emission limitations that are as low as one-fourth of those allowed by EPA’s proposal . Mr. Johnson’s calculations also show that EPA’s proposed MACT floor for new sources allo ws for significantly greater emissions than appropriate. Indeed, with the exception of IGCC units, the proposed MACT floor standards allow for emissions that are approximately 19 percent to more than four times too high . This is because EPA’s proposed MACT floor standards were developed using EPA’s inappropriate
97.5 th percentile short-term worst-ca se to develop long-term averag e standards. In particular,
Mr. Johnson’s corrected calcula tions of the MACT floor stan dards for new sources produce
emission limitations of:

 0.148 lbs/TBtu or approximately 1.55 10 -6 lb/MWh for bituminous-fired plants (just slightly over one-fourth of EP A’s proposed standard of 6.0 10 -6 lb/MWh).

 1.006 lbs/TBtu or approximately 10.6 10 -6 lb/MWh for subbituminous-fired plants (just slightly over one -half of EPA’s proposed standard of 20 10 -6 lb/MWh).

 1.285 lbs/TBtu or approximately 13.5 10 -6 lb/MWh for lignite-fired plants (less than one-fourth of EPA’s proposed standard of 62 10 -6 lb/MWh).

 0.085 lbs/TBtu or approximately 0.893 10 -6 lb/MWh for coal refuse-fired plants (approximately 19 percent lower than EPA’s proposed standard of 1.1 10 -6 lb/MWh).

See Johnson Comments, Table 2.

Indeed, the only units for which EPA’s pr oposed standard is less than a properly calculated MACT floor is for the IGCC units, where EPA appropriately requires a 90 percent reduction based on the use of carbon bed technology.38 VIII Need for EPA to set standard more stringent than MACT floor

.
Both the Clean Air Act and EPA’s trust responsibility clearly require it to establish a
MACT standard that is more stri ngent than the MACT floor when such a more stringent standard
is feasible.

A. EPA must establish a MACT standard that results in maximum degree of reduction achievable considering costs and other concerns . Section 112 requires EPA to set a standard that does not merely meet the MACT fl oor, but also results in the maximum degree of
reduction in emissions that is achievable taking into account co st, non-air quality health, and environmental impacts, and energy requirements. In particular, section 11 2(d)(2) provides that MACT standards “shall require the maximum degree of reduction in emissions . . . that the Administrator, taking into cons ideration the cost of achieving such emission reduction, and any non-air quality health and envi ronmental impacts and energy requirements, determines is achievable . . . .” 42 U.S.C. § 7412(d)(2) (empha sis added). This maxi mum degree of reduction
is often referred to as the “be yond-the-floor” standard. See, e.g. , 69 Fed. Reg. 4675. As EPA has stated in previous rulemaki ngs, “[t]he object of a beyond-the-fl oor standard is to achieve the maximum degree of emission reduction without unreasonable economic, energy, or secondary environmental impacts.” 64 Fed. Reg. 52828, 52852, Final Standards for Hazardous Air Pollutants for Hazardous Waste Combustors, Final Rule , Sept. 30, 1999.

1. EPA’s improperly fails to consider achiev able mercury controls solely because they may not be applicable to all sources within a category or sub-category and as a result fails to establish a proper beyond-the-floor standard . EPA concludes that several of the technologies discussed in the preamble are not viable because th ey may not be applicable to all sources within a category or sub-category. For example, EPA states “that pre-combus tion measures are not a viable emissions reductions approach for all units in the category . . . .” 69 Fed. Reg. 4669 (emphasis added). Similarly, EPA states that it “believes that 90 percent emission reductions
cannot be achieved across all Utility Units in the proposed se ction 112 time frame.” 69 Fed. Reg. 4674 (emphasis added).

EPA’s reliance on a particular control technolo gy being available to all units across the county is misguided and inconsistent with the Clean Air Act’s mandate to require the maximum degree of emissions reductions. See 42 U.S.C. §7412(d)(2). S ection 112 is clear that the required degree of emission reductions can be achie ved through the applica tion of a variety of “measures, process, methods, systems or techniques.” Id. These measures can include, process changes, material substitutions, elimination of emissions, capture and treatment controls, and design, equipment, work practice or operational st andards or any combina tion of the foregoing.
See 42 U.S.C. §7412(d)(2)(A)-(E).

Moreover, EPA guidance to the states makes it clear that a MACT standard may be a numerical emission limit, a production ratio, a concentration limit or a performance-based standard (e.g., a 90 percent redu ction from a baseline). See Guidelines for MACT Determinations under Section 112(j) Requirements , EPA 453/R-02-001 (Feb. 2002). EPA also indicated that “[t]he MACT emission limitation may be based on a design, equipment, work practice, operational standard, or any combination of these.” Id.39 Accordingly, it is clear that the emission stan dard does not need to be based on any single type of control technique. Rather, the sta ndard must be based on the maximum degree of emission reductions achievable through any co mbination of emission control or reduction techniques. Thus, even if a partic ular control technique is not universally applicable to all Utility Units, the proper focus should be on whether ther e are other available techniques that would allow all Units to achieve the required standard. For example, if there is a suite of control options available, none of which could be implemented by all Units, but where all Units could implement at least one or more of the cont rol options, EPA is required to adopt a MACT
standard reflective of the overall level of emi ssion reductions that could be achieved when each Unit implements the control options that are available to that particular Unit.

Dr. Fox, the FCPC’s expert in pollution c ontrol technologies note s that “[n]o single technology is likely to universally a pply to all facilities due to the differences in the design of the pollution control train used to control other pollutants (NO
x , SO 2 PM10, H 2 SO 4 ), differences in coal type, and differences in boiler design.” Fox, J. Phyllis, Comments on Proposed National Emission Standards for Hazardous Air Pollutants; and, in the Alternativ e, Proposed Standards of Performance for New and Existing Stationar y Sources: Electric Utility Steam Generating
Units , 3 (April 27, 2004) (“Fox Comments”). However, Dr. Fox has identified “many technologies that are currently co mmercially available or soon to be commercially available” and concludes that “[o]ne or more of these technologies from this portfolio could be deployed today to reduce Hg from each of the plants in the entire US fleet of coal-fired power plants by at least
90% .” Id. at 4 (emphasis added). As indicated ea rlier in these comments, because the Fox Comments contain detailed information regarding available mercury control technology, as well
as numerous attachments that discuss the tec hnology, FCPC requests that EPA carefully review Dr. Fox’s report and its attachments.

Indeed, EPA itself has recognized the value of a “portfolio ap proach” to mercury emissions control. In its Supplemental Noti ce for the proposed mercury reduction rule, EPA acknowledges that “[m]ercury-specific pollution control device development has made major
strides since the EPA announced its Information Collection Request in 1998. Currently, there are a broad range of technologies under consider ation, consistent with the view that the EPA believes a portfolio approach is required to ad equately and effectively implement significant reductions in mercury emissions from coal -fired power plants.” 69 Fed. Reg. 12398, 12401 (March 16, 2004).

Accordingly, it is clear that EPA’s failure to consider all available control options and its refusal to establish a proper beyond-the-floor MACT standard violates the Clean Air Act’s mandate to require “the maximum degree of reduc tion in emissions . . . th at the Administrator, taking into consideration the cost of achievi ng such emission reduction, and any non-air quality health and environmental impacts and energy requ irements, determines is achievable . . . .” 42 U.S.C. § 7412(d)(2).

2. EPA has found that some utility units can achieve 90 percent mercury emission
reductions . In response to a report from Environmenta l Defense indicating th at coal-fired power plants should be able to achieve 90 percent Hg emission reductions, EPA states that it “expects that some Utility Units can achieve such high reduction rates.” 69 Fed. Reg. 4674 (citing Out of40 Control and Close to Home: Mercury Pollution from Power Plants , Environmental Defense, 2003). However, EPA further stat es that it “believes that 90 pe rcent emission reductions cannot
be achieved across all Utility Units in the proposed section 112 time frame.” Id. (emphasis added). Although EPA tries to di stinguish coal-fired boilers from municipal waste combustors and health, medical and infectious waste incinera tors, which are currently required to achieve an 85 percent reduction in me rcury emissions (see e.g. , 40 C.F.R. §60.52b(a)(5); 40 C.F.R. Subpart Ec, Table 1) such a distinction does nothing to address EPA’s conclusion that at least some Utility Units can achieve very high levels of mercury reductions. Indeed, Dr. Fox cites an example of a pollution control vendor that will guarantee “up to a 90 percent control for Hg emissions from coal-fired power plants based on its experience in the wa ste-to-energy industry. Fox Comments at 10; see also , id. at 8-12 (indicating that experi ence with waste combustors and incinerators is applicable to Utility Units). Unle ss EPA explains why the same or similar level of control cannot reasonably be applied to all Util ity Units, the Agency cannot meet its burden to “require the maximum degree of reduction in emi ssions of the hazardous air pollutant . . . .” 42 U.S.C. §112(d)(2).

3. Numerous commercially available and t echnically feasible control techniques exist that would lower mercury emissions below the MACT floor . Throughout the preamble to the proposed mercury rule as well as other doc uments in the docket, EPA cites to numerous
emission control and other tec hnologies that can effectively reduce mercury emissions from Utility Units. For example, EPA cites sorben t injection, including act ivated carbon (AC) and chemically-impregnated AC, and selective cataly tic reduction (SCR) a nd “[t]wo technologies that possibly could be used to further redu ce the amount of vapor-phase Hg emitted from utilities.” 69 Fed. Reg. 4676. Some of these control technologies are discussed below.

(a) Sorbent injection . EPA indicates that “due to their multiple internal pores and high specific surface areas, sorbents have the po tential to improve the removal of Hg (mostly through the enhanced capture of elemental Hg; sorb ents will also remove Hg++) as well as other gaseous pollutants . . .” 69 Fed. Reg. 4676. Ho wever, EPA concludes that “[a]lthough AC, chemically impregnated AC, and other sorbents show potential for improving Hg removal by
conventional PM and SO 2 controls, this technology is not currently available on a commercial basis and has not been installed, except on a demons tration basis, on any electric utility unit is the U.S. to date . . . Therefore, we do not beli eve these technologies pr ovide a viable basis for going beyond-the-floor.” Id. Elsewhere EPA states that “sor bent injection is not currently
available on a commercial basis and has not been demonstrated on a utility unit operating at full capacity over an extended period of time.” Id. at 4679.

However, as indicated by Dr. Fox, sorbent injection is a commercially available, technically feasible technology. See generally Fox Comments at Section III.A. For example, Dr. Fox points out that emission data from “s imilar sources” both in the U.S. and abroad demonstrates that sorbent technology is achievable for Utility Units. Id. Dr. Fox also correctly notes that there is no requiremen t in Clean Air Act that a cont rol “technology must operate ‘at full capacity over an extended period of time’ before it qualifies as a beyond-the-floor technology.” Id . at 14. In fact, as Dr. Fox indicates, “[ o]ne can determine, based on pilot-, field,
and/or full-scale demonstration tests that a technology ‘is achieva ble’ . . . .” Id

.41 Accordingly, it is clear that sorbent inject ion is a commercially available, technically feasible and achievable method for reducing me rcury emissions from Utility Units, and this technology must be considered and incorporated into EPA’s beyond-the-floor MACT analysis.

(b) Selective catalytic reduction . EPA states that “SCR has been shown... to have the ability to transform certain species of Hg in to other speciated forms that are easier for
conventional PM and SO 2 controls to capture.” 69 Fed. Reg. 4676. However, EPA also found that “SCR has not shown the same change-in-speci ation effect on Hg emi ssions on all types of
coal sources.” Id. at 4679. EPA also concluded that ther e was insufficient test data for lignitefired units and across all type of coal. See Id. at 4676. As a result, EPA did not explore the possibility of requiring SCR as a beyond-the-floor requirement. See id. (“With regard to the use of SCR, the EPA has inadequate information on which to base a beyond-the-floor standard.”).

However, once again, Dr. Fox presents clear evidence that SCR is a commercially available, technically feasible c ontrol technology. See generally Fox. Comments at Section III.B. Dr. Fox points out that the “absence of data for one type of coal, lignite, is not a valid reason for rejecting it for a ll other coal types.” Id. at 20. Moreover, Dr. Fox cites several test results and concludes that “[t]hi s data is more than adequate to conclude that SCR plus downstream particulate and SO 2 removal technologies are comme rcially available and achieve much higher Hg removals than proposed by EPA.” Id. at 22.

Accordingly, it is clear that SCR is a comme rcially available, tec hnically feasible and achievable method for reducing mercury emissions from Utility Units, and this technology must be considered and incorporated into EPA’s beyond-the-floor MACT analysis.

(c) Coal washing . EPA indicates its desire to “pro mote, and give credit for, coal preparation practices that remove Hg before firing (i.e., coal washing or benefication),” but no coal preparation practices are addressed or c onsidered in EPA’s analysis of beyond-the-floor standards. 69 Fed. Reg. 4672; see also

, Beyond-the-floor analysis fo r existing and new coal- and oil-fired electric utility steam generating uni ts national emission standards for hazardous air pollutants , Memorandum from Jeffrey Cole, RTI Inte rnational to Bill Maxell, EPA, OAQPS, December 2003 (this technical analysis does no t include any discussion of pre-combustion techniques such as coal washi ng or fuel substitution). EPA ha s not demonstrated that coal washing is not currently available to all units. Accordingly, its complete failure to address this important mercury reduction technique is a majo r flaw in EPA’s analysis of beyond-the-floor
standards.

In fact, Dr. Fox indicates that “[a]bout 80 perc ent of the eastern and midwestern bituminous coal is currently washed to meet customer specifications for heating value, ash content, and sulfur content. Other coals could al so be washed. Thus, this is a mature technology
that should have been evaluate d as a technically feasible port folio technology.” Fox Comments
at 26-7. Dr. Fox also cites several studies indica ting the availability and effectiveness of coal washing as a technology to re move mercury. See generally id. at Section III.E. Moreover, the EPA has recognized coal washing as a viable method for removing mercury from coal. See U.S. EPA, Mercury Study Report to Congress, Volume I: Study of Hazardous Ai r Pollutant Emissions from Electric Utility Steam Generati ng Units – Final Report to Congress , Report EPA-453/R-42 98-004a, ES-19 (February, 1998) (“Other various po llution prevention strategies, such as coal cleaning, have shown some effectiveness in redu cing utility emissions of mercury.”). Dr. Fox also indicates that “[t]he Eur opean Commission identified coal washing as a viable method to reduce Hg emissions from coal-fired plants.” Fox Comments at 29-30 (citation omitted). Likewise, the Massachusetts De partment of Environmental Pr otection “concluded that coal washing is a feasible method for control of Hg from coal-fired power plants.” Id. at 30.

Accordingly, it is clear that coal washing is a commercially available, technically feasible and achievable method for reducing mercury emi ssions from Utility Units, and this technology must be considered and incorporated in to EPA’s beyond-the-fl oor MACT analysis.

(d) In addition to the methodologies iden tified by EPA, numerous additional practicable mercury control tec hnologies are available or ar e currently under development . In addition to sorbent injection, SCR and coal wa shing, Dr. Fox has identified numerous other control options that are currently available or ar e under development. For example, Dr. Fox has
identified fixed carbon beds and co mbustion modifications as two t echnologies that are currently
available. See Fox Comments at 25-6. Moreover, Dr . Fox has also identified numerous additional control technologies that are currently under development and that are reasonably expected to become commercially available. These additional contro l technologies include: multipollutant removal processes that achieve greater than 90 percen t mercury reduction; sorbents such as sodium tetrasulfide, amended s ilicates, and various carbon-based sorbents that are cheaper and more effective than activated carbon; mercury oxidizing methods; amalgamation with noble metals; plasma enhan ced electrostatic precipitator technology; and enhanced wet scrubbing. See generally id. at Section IV. Dr. Fox conclude s that "[t]hese near-commercial technologies are generally applicab le to all coals," have demonstr able potential to "achieve over 90 percent Hg removal in commerci al applications . . . are cost effective and have no adverse non-air quality health and environmental impacts or energy requirements." Id. at 2.

Accordingly, these additional mercury cont rol technologies must be considered and incorporated into EPA's be yond-the-floor MACT analysis.

4. EPA fails to provide any evidence that th e above achievable additional reductions are not cost effective, result in non-air quality he alth or environmental impacts, or cause energy requirement concerns . As required by the Clean Ai r Act, EPA must “require the maximum degree of reduction in emissions . . . that the Administrator, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and en vironmental impacts and energy requirements, determines is achie vable . . .” 42 U.S.C. §7412(d)(2) (emphasis added). As shown above, ther e are numerous emission contro l and pre-combustion techniques that are currently available and economically viable for reducing mercury emissions from Utility Units. Beyond some general statements that such technologies have not b een adequately tested or may not be feasible for all units in a sour ce category, EPA has failed to provide any evidence that such technologies would not support a beyond-the-floor standard due to cost, non-air quality health and environmental impacts or energy requi rements. Indeed Dr. Fox has concluded that “[t]here are a large num ber of technically feasible, econom ic, technologies with no adverse nonair quality health and environmental impacts a nd energy requirements, which can be used to control Hg.” Fox Comments at 3. Accordin gly, EPA is required to develop beyond-the-floor43 MACT standards that require the degree of emission reductions achievable by those technologies.

5. Greater than 90 percent mercury reduction is currently feasible for all Utility
Units . As Dr. Fox notes in her comments, several state agencies have de termined that a very high reduction of mercury from coal -fired power plants is currently achievable. For example, Dr. Fox notes that Massachusetts has recently co ncluded "that there is strong evidence that the removal of 85-90+% of the mercury in the flue gas is technologically and economically feasible for coal-fired power plants at the present time ." Fox Comments at 45 (emphasis added, citation omitted). Similarly, Connecticut has enacted le gislation that requires a 90 percent mercury removal efficiency for coal-fired Utility Units. See id.

Moreover, Dr. Fox cites an October 2002 pre ss release from the Northeast States for Coordinated Air Use Management ("NESCAUM") th at reported that "[t]oxic mercury emissions from power plants could be reduced by over 90 percent - from 48 tons annually down to only 7 tons annually - through a combina tion of benefits achieved from existing air pollu tion controls and utilization of commercially availabl e mercury reduction technologies." Id. at 46-7 (citation omitted).

In addition, Dr. Fox references a consent de cree that U.S.EPA recently signed with PSEG Fossil in New Jersey that requires a 90 pe rcent reduction in mercury emissions. See id. at 47. Dr. Fox also notes that "recent case-by-case be st available control technology (“BACT”) and MACT analyses prepared for new coal-fired power plant air permit applications have concluded that 90% to 95% Hg cont rol is feasible." Id. at 44.

As the evidence above and in Dr. Fox's comment s indicate, it is clear that reductions in mercury emissions of 90 percent or greater is ac hievable and that the control technology is currently available, is technologically and econo mically feasible and is being applied in many instances throughout the U.S.

6. The Clean Air Act requires EPA to devel op a MACT standard that requires at least 90 percent reduction of mercury emissions from Utility Units . As indicated above, the Clean Air Act requires EPA to establish a MACT standard that results in the maximum degree of
reduction in emissions that is achievable taking into account co st, non-air quality health and environmental impacts and energy requirements. See 42 U.S.C. §7412(d)(2). Moreover, it is
clear that the determination of achievable emission reduction s is not limited to emission
reductions that are achievable th rough application of a single c ontrol technology, but rather the
determination must be based on a consideration of all available control options (i.e., a portfolio approach). As is demonstrated in Dr. Fox's co mments, the portfolio of commercially available control technologies includes numerous technologies that are cost effective and have no adverse non-air quality health and environm ental impacts or energy requireme nts. While not all of these technologies may be available to each and every coal plant, each plant has the ability to use one or more of the technologies to achieve very significant (i.e., 90 percent or greater) mercury emission reductions. Accordingly, Dr. Fox has concluded that “[o]ne or more of these technologies from this portfolio could be deployed today to reduce Hg from each of the plants in the entire US fleet of coal-fired power pl ants by at least 90%.” Fox Comments at 4.44 Therefore, EPA is required to consider and incorporate the entire portfolio of control technologies and develop a MACT standard that requires mercury reductions of at least 90 percent.

B. Trust responsibility requires EPA to go beyond the MACT floor . It is critical to keep in mind the human cost of the decisions involved in this rulemaking. The mercury
contamination of resources that FCPC members count on for their culture creates an unfair
dilemma. FCPC members have to choose betwee n, on the one hand, risking their health and the health of loved ones if they continue to use wate r, fish, and other resources tainted with lethal methylmercury, and, on the other hand, stopping cultu ral activities that connect them to their community, their past, and to their natural surroundings.

The question of where to set the MACT floor is, in essenc e, a question of how much pollution should be condoned by EPA. Where good science demonstrates that reductions much more significant than those contemplated by EPA in this proposal are possible and feasible, the trust responsibility requires EPA to rethink its proposal in consu ltation with the tribes. EPA’s Indian Policy, which EPA specifically reaffi rmed in 2001, underscores EPA’s commitment to protecting resources th at tribes rely upon.

IX Regulation Under Section 111

.

A. EPA is required to regulate under Section 112, not Section 111 . As explained in detail in section VI of these comments, EPA is required to regulate mercury emissions from Utility Units under section 112 of the Clean Air Ac t. EPA has previously found that regulation of Utility Units under section 112 is appropriate and necessary and has listed coal- and oil-fired electric utility steam generating units as a source category under section 1 12(c) of the Act. 65 Fed. Reg. 79826. This regulatory finding cannot be undone simply because EPA now believes it also has the authority to regulat e Utility Units under section 1 11. In fact, EPA cannot regulate under section 111 because mercury is a listed HAP. See 42 U.S.C. §111(d)(a)(A)(i). Moreover, EPA cannot delist Utility Units from the list of source categories required to be regulated under section 112 absent a finding that mercury emission s from Utility Units will not be a hazard to public health or the environment. This is a finding that EPA has not and cannot make. Accordingly, EPA is statutorily required to regulate mercury emissions from Utility Units under
section 112 of the Clean Air Act.

B. Even if EPA could properly regulate mercury emissions from utility units under
section 111 rather than section 112, its proposed cap-and-trade progr am fails to meet clear Clean Air Act requirements . Section 111 requires the EPA to estab lish “standards of performance” for new and existing source categories that EPA determ ines “causes, or contributes significantly to, air pollution which may reasonabl y be anticipated to endanger pub lic health or welfare.” See 42 U.S.C. § 7411(b) and (d). The te rm “standard of performance” is defined as “a standard for emissions of air pollutants wh ich reflects the degree of emis sion limitation achi evable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.” 42 U.S.C.45 § 7411(a)(1) (emphasis added). For the reasons discussed below, EPA’s proposed cap-and-trade program cannot qualify as a proper sta ndard of performance under section 111.

1. Lack of authority for trading under Sections 111 . EPA interprets the term “standard of performance” in section 111 to include a cap-and-trade program. See 69 Fed. Reg. 4697 (“In today’s action, EPA propos ed to interpret the term ‘s tandard of performance,’ as applied to existing sources, to include a cap-and -trade program.”). The term “standard of performance” is defined as “a standard for emissions of air pollutants which reflects the degree of emission limitation achievabl e through the application of th e best system of emission
reduction which (taking into account the cost of achieving such reduction and any non-air quality health and environmental impact and energy re quirements) the Administrator determines has been adequately demonstrated.” 42 U.S.C. § 7411(a)(1) (emphasis added).

EPA admits that the term does not “explicitly . . . include or exclude an emissions cap and allowance trading program.” 69 Fed. Reg. 4697. Th is is in stark contra st to other provisions of the Clean Air Act where Congress expressly i ndicated its desire for an emissions trading program. For example, in the acid rain provis ions, Congress clearly auth orized an "allowance transfer system." See 42 U.S.C. §7651b(b) ("Allowances allocated under this subchapter may be transferred among... affected sources under this subchapter and any other person who holds such allowances . . . ."). Similarly, Congress au thorized emission trades in its offset provisions relating to nonattainment areas. See 42 U.S.C. §7503(c) ("The owne r or operator of a new or modified major stationary source may comply with any offset requirement . . . by obtaining
emission reductions ... from the same source or other sources in the same nonattainment area . . . .") (emphasis added). Accordingly, it is clear that where Congress envisioned an emissions trading program it expressly provided fo r such a program in its statutory language.
This is not the case in section 111.

Nevertheless, EPA makes a stra ined and unsupportable reading of the term standard of performance by parsing the definition into sma ll components, skipping important elements (e.g., deleting the word “best” from the phrase “bes t system of emission re duction”) and then bootstrapping each component into a defi nition that supports a trading program.

This interpretation is supported by a car eful reading of the section 111(a) definition of the term... A requirement for a cap-and-trade program (i) constitutes a “standard for emissions of air pollutants” (i.e., a rule for air emissions), (ii) “which reflects the degree of emission limitation achievable” (i.e., which requires
an amount of emissions reductions th at can be achieved), (iii) “through application of (a)... system of emission reduction” (i.e ., in this case, a cap-andtrade program that caps allowance at a level lower than current emissions.)”

Id.

This type of strained and unsupportable inte rpretation is inconsis tent with a natural reading of the standard which implies a strai ghtforward numerical emi ssion limitation. Indeed, section 111(a)(1) specifically defines a “standar d of performance” as “standard for emission of pollutants which reflects the degree of emission limitation ac hievable through application of the46 best system of pollution reduction .” Thus, section 111 requires EPA to develop emission standards that reflect the degree of emission limitat ion that is achievable us ing the best system of pollution reduction, not simply propos e a cap-and-trade system in which caps are not tied to the
emission reductions achievable with th e best system of pollution reduction.

EPA also “proposes to determine that a cap-and-trade program ha s been adequately determined to be the best system for reducing Hg emissions from coal-fired Utility Units.” 69 Fed. Reg. 4697. As support for its proposal, EPA cites the acid rain SO 2 and 1998 NO
x SIP Call
rules as effective and successful ex amples of trading programs. See id. at 4696 (“The success of the Acid Rain cap-and-trade program for utility SO 2 emissions, which EPA duplicated in large
measure with the NO
x SIP Call cap-and-trade program for, primarily, utility NO
x emissions, leads EPA to conclude that a cap-and-trade prog ram for Hg emissions from utilities qualifies as the 'best system of emission reductions’ th at ‘has been adequately demonstrated”).

However, even if it is assumed that the acid rain and NO
x SIP Call trading programs are effective and successful, such trading program s have no application to a mercury control program. Clearly SO 2 and NO
x are quite different contaminants than mercury. Some of the most important differences include diffe rent dispersion patterns, different health and environmental effects and different control technologies for redu cing emissions. As a result, trading programs
for SO 2 and NO
x provide no support that a trading program for mercury will be effective or successful. Indeed, EPA has pr ovided no evidence that the SO 2 and NO
x trading programs are even the “best system” for reducing SO 2 and NO
x emissions. Accordingly, EPA has not met its burden of adequately demonstrating that a cap-a nd-trade program will be the best system for reducing mercury emissions.

2. The emission levels proposed under EPA’ s cap-and-trade program fail to meet section 111’s emission limitation requirements . In its proposed rule, EPA “proposes to determine that a cap-and-trade prog ram has been adequately determined to be the best system for reducing Hg emissions from coal-fired Utility Units.” 69 Fed. Reg. 4697. However, EPA does
not and cannot demonstrate that the emission reductions required under its proposed cap-andtrade program reflect “the degree of emission limitation achi evable through the application of the best system of emission reduction . . . [which] has been adequate ly demonstrated.” 42 U.S.C. §7411(a)(1) (emphasis added)

EPA’s proposed cap (eventual 70 percent re duction) and the extensive timeframe EPA proposes to allow to meet the cap (at least until 2018) clearly do not require the level of
emissions reductions that is cu rrently achievable with available and demonstrated control technology. This fact is shown by the attach ed comments by Dr. Fox, which show that reductions of greater than 90 pe rcent are achievable now. See Fox Comments at 2 (“[t]echnologies are generally applicable to all coals and coal-fired bo ilers and are able to achieve over 90% Hg removal, either individually or in combination, from the entire existing coal-fired fleet.”). Moreover, EPA specifically recognizes that the leve l of emission reductions under the proposed cap-and-trade program may not constitute the “best system” of emission
reductions. See 69 Fed. Reg. 4687 (“The EPA retains the author ity to revise its conclusions as to what constitutes the ‘best system’ of emissions reductions for existing sour ces, and, therefore, to revise the standard of performance, to require additional reductions or controls . . .”).47 Under its proposed cap-and-trade program, EPA stat es that its “primary goal is to reduce power plant emissions of Hg by 70 percent fr om today’s levels by 2018.” 69 Fed. Reg. 4698. However, EPA provides very little support or rationale for its goa l of a 70 percent reduction in mercury emissions beyond stating that “[o]ur pr oposed 15 ton cap in 2018 is grounded largely in the modeling completed in support of the President’s Clear Skies initiative.” Id. at 4699. Indeed, EPA admits that “we fully expect othe r Hg air pollution control technologies such as ACI and/or one or more of the breakthrough technologies will have been adequately
demonstrated before 2018.”

EPA also proposes to set a phase I mercury cap to be implemented by 2010. However, this cap simply relies on other co ntrols required as part of a different rulemaking for other air
contaminants. Id. (“We are also proposing to set a near -term cap in 2010 at a level that reflects the maximum reduction in Hg emissions that c ould be achieved through th e installation of FGD and SCR units that will be necessary to meet the 2010 caps for SO 2 and NO
x in our proposed IAQR.”). As a result, Utility Units will not be required to take any actions specifically designed to reduce mercury emissions for almost a decade and a half.

C. Any 111 standard should be at least as stringent as a properly implemented
MACT standard . It is important to not e that the substantive emi ssion standards under section 111 are essentially equivalent to the MACT st andard under section 112. Section 111 requires a standard of performance “which reflects the degree of emission limitation achievab le through the application of the best system of emission re duction which (taking into account the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.” 42 U.S.C. § 7411(a)(1). Similarly, sect ion 112(d)(2) requires “the ma ximum degree of reduction in emissions. . . that the Administrator, taking in to consideration the cost of achieving such emission reduction, and any non-air quality h ealth and environmental impacts and energy requirements, determines is achievable. . .” 42 U.S.C. § 7412(d)(2). Thus, one standard requires application of the “best system demonstrated,” while the other standard requires the “maximum degree of reduction achievable,” with each taki ng into consideration the same cost, non-air health and environment impacts and energy requirements.

As demonstrated in section VI above, a correct MACT floor analysis clearly shows that a
MACT standards under section 112 can be set at levels much lower than those in EPA’s current proposal even without considering the applicatio n of additional mercury control technologies. Indeed, a proper MACT floor analysis results in standards that allow less than one-half to less than one-fifth of the emissions that EPA’s pr oposed MACT standards and its similar Phase I mercury cap would allow. Moreover, this corr ected MACT floor analysis shows that these reductions, which are likely subs tantially greater than what EPA proposes to achieve in 2018 (i.e., fourteen years from now) are presently available.

In addition, as described above in section VIII.A, there are nume rous pre-combustion measures and control technologies that are currently available and could be employed to reduce mercury emissions even further -- to at leas t 90 percent control -- under a corrected beyond-thefloor MACT standard. All of these measures a nd technologies are cost effective, and do not create significant non-air health or environmental impacts or en ergy requirements. Accordingly,48 if EPA regulates mercury emissions through a cap-a nd-trade system, the actual cap level as well as the time allowed to meet that cap should be at least as stringent as the level of control that would be achieved under a correct beyond-the-MACT -floor analysis purs uant to section 112.

D. The presumed efficiencies inherent in a trading program support a cap lower than
that achievable with a traditional MACT standard . EPA argues that a trading program will produce greater reduction than a se ction 112 MACT standard. For example, EPA states that “a trading approach is better suit ed to stimulating development and adoption of new technologies [to reduce mercury emissions].” 69 Fed. Reg. 4688. EPA also argues that “a MACT approach will not stimulate innovation in Hg control technology as well as a cap-and-trade approach because it does not reward reductions beyond the required levels.” Id. In its Regulatory Finding, EPA concluded that “[t]rading also can allow for a greater level of control because it offers the opportunity for greater efficien cy in achieving control.” 65 Fed. Reg. 79830. Likewise, EPA
now cites the acid rain SO 2 , and NO
x SIP Call programs as examples of successful and effective emission trading programs. See 69 Fed. Reg. 4697.

Thus, EPA has found that a trading program will stimulate development of new and better mercury control technologies and allow for a greater level of cont rol. Accordingly, to meet section 111’s requirement of setting a standa rd of performance that reflects the degree of reduction achievable, EPA should establish a cap le vel that would be reflective of the greater levels of mercury reductions that would be achie vable under a trading progra m. If EPA’s stated premise is correct, this level should be considerab ly lower than the level that would be achieved by applying a correct beyond-the-floor MACT analysis.

E. Under trust responsibility, EPA is required to act more quickly and forcefully in regulating mercury emissions under Section 111 . If EPA chooses to improperly rescind its Section 112 determination and to pursue regula tion under Section 111 instead, it is still obliged to take all steps necessary to fulfill its trust re sponsibility to tribes. FCPC and other tribes affected by mercury emissions from coal-fired power plants will continue to be harmed until EPA acts to curb this deadly pollution.

The trust responsibility requires EPA to act towards FCPC and other affected tribes as a fiduciary would act towards a be neficiary. This means that, ev en if EPA mistakenly chooses Section 111 as the vehicle for curbing mercury em issions from coal-fired power plants, it must aggressively take up this task and set the most protective emission limit consistent with science
and the Clean Air Act.

X Trading program must address “hot-spots.”

Although EPA’s authority to promulgate a cap- and-trade program is unclear at best, if such a program is ultimately selected, EPA must en sure that toxic hot-spots are not created as a result. Indeed, in its Regulat ory Finding, EPA recognized the “c oncerns about the local impacts of mercury emission and any regulatory scheme fo r mercury that incorpor ates trading or other approaches that involve economic incentives must be constructed in a way that assures that
communities near the source of emission are adequately protected.” 65 Fed. Reg. 79830. Furthermore, as other stakeholders have note d, “modeling results suggest that Hg deposition49 from emission from Utility Units may be higher in certain regions of the country. . . In addition, the ecosystems in some regions (e.g., the lakes regions of the Upper Midwest) may be more sensitive to Hg deposition.” 69 Fed. Reg. 4701. Ind eed, the lake region of the Upper Midwest is
the home to the FCPC and is of utmost concern to its people. Moreove r, a recent study by New Hampshire state officials suggested that locali zed mercury deposition is a much greater concern than EPA has recognized. See Obey, Doug, New Hampshire Data May Aid Opponents Of Emissions Trading In Mercury Rule , Inside Washington Publishers, 9 (April 8, 2004).

Despite the real and serious concern about t oxic hot-spots, EPA claims that it “does not expect any local or regional hot-spots.” Id. at 4701. EPA makes several brief arguments to support this claim (see generally id. at 4702-3), however, these argum ents are anecdotal at best, and are not supported by adequate science. For ex ample, EPA concludes that large Utility Units with large localized deposition f ootprints, will be most likely to control emissions and generate
emission credits. Id. at 4702. However, there is no support for this argument and it is just as likely that the decision to install controls or buy credits will be based on th e type of coal burned and the existing configuration of the Utility Un it rather than simply the size of the Unit.

EPA also argues that “the economics of the trad ing system are likely to favor controls of Hg that are likely to be deposited locall y, thereby reducing any lo cal hot-spots.” Id. However, this argument assumes that the types of mercury that are deposited locally are limited to Hg++ and particulate mercury, and that gaseous mercur y will be transported long distances and will not affect local or regional deposit ion. EPA then argues that Hg++ and particulate mercury are the forms most easily controlled and that these forms of mercury will be effectively controlled as Utilities comply with other emission requireme nts (i.e., EPA’s new fine particle and ozone control requirements). However, EPA does not support the assumption that gaseous mercury will not contribute to hot-spots or that other em ission requirements will effectively address the localized deposition of Hg++ and particulate merc ury. Accordingly, if a trading program is promulgated, EPA must take all a ppropriate actions to ensure that local or regional hot-spots are
not created as a result of emission trades.

A. Hot-spots in upper midwest are a real concern because of the use of western subbituminous coal, from which it is more diffic ult to obtain mercury reductions than eastern
bituminous coal . The toxic hot spot concern discussed a bove is a primary concern of the FCPC. Indeed, EPA has recognized that the very area so critical to the FCPC ’s way of life is at increased risk to mercury deposition. 69 Fe d. Reg. 4701 (“[T]he ecosystems in some regions (e.g., the lakes regions of the Uppe r Midwest) may be more sensitive to Hg deposition.”). Of particular concern to the FCPC is the fact that most Utility Units in the upper midwest burn a
western subbituminous coal. It is apparently much more dif ficult and costly to reduce mercury emissions from western subbituminous coal than it is from east ern bituminous coal. See Fox Comments at 2 (“the costs to control Hg from units fired on lignites and sub-bituminous coals will generally be higher than on units fired on bitu minous coals”). As a result, utilities burning eastern bituminous coal will be more likely to in stall mercury control technologies than will the utilities burning western subbituminous coal. Thus , utilities in the upper midwest are likely to

9 http://insideepa.com/secure/docnum.asp?f=epa_2001.ask&docnum=482004_data50 forego emission controls and would instead purchas e emission credits from the utilities burning eastern coal that have installed mercury controls . Because the utilities burning eastern coal are likely to be located on the eastern side of the Un ited States, it is unlikel y that the upper midwest will realize any localized benefit from the mercury reduction effo rts undertaken by those utilities.
The end result is that FCPC’s home and indeed th e entire lakes area of the upper midwest (which is particularly sensitive to mercury deposition and thus most needing of real reductions in mercury emissions) may experience little-to-no benefit from EPA’s proposed rule.

B. Requirement under trust respons ibility and Environmental Ju stice Doctrine to fully analyze and address hot-spot concerns to en sure that tribes are not adversely effected . It is hard to overstate how troubling the hot -spot is to FCPC. EPA, which has a clear legal mandate to reduce the mercury emissions that threaten the h ealth, environment, and spiritual well-being of FCPC members, is not only not proposing means that would be the most certain of addressing this toxic threat, it is proposing an alternativ e that seems destined to leave FCPC out of the
solution.

As discussed above, the power plants that pollute the lands and waters that FCPC members rely upon for cultural and other needs ar e unlikely to reduce their mercury emissions under the proposed trading scheme. This means that, despite a clear legal mandate to reduce mercury emissions and despite their duty to prot ect public health and the environment, EPA is contemplating a scheme that w ould do nothing whatsoever for FCPC and other tribes. If the EPA Indian Policy and the federal trust responsibility are to mean anything, they have to mean that this is wrong.

It is well established that, under the trust re sponsibility, federal agencies such as EPA must act with regards to tribes in the same way that a fiduciary must act towards a beneficiary. Here we see EPA proposing the opposite. The resu lt of the trading scheme would be to place FCPC in a worse position than many non-nati ve populations. Not onl y would FCPC members continue to face mercury poisoning of their resour ces, but the impact will continue to be more substantial that what non-natives would experi ence because of the added cultural importance
these resources have to FCPC members.

EPA has reaffirmed that the environmental just ice doctrine requires “the fair treatment of people of all races, cultures, and incomes with respect to the development, implementation, and enforcement of environmental laws and policies. . . .” It is in no way fair that the mercury emission trading scheme outlined in the propos ed rule would leave behind native populations
like FCPC’s.

At the very least, the trust responsibility and the environmen tal justice doctrine require that EPA much more carefully analyze the pote ntial impact of the proposed trading scheme on FCPC and other similarly situated Indian populations.

C. Potential means of preventing hot-spots . Given the serious concerns regarding the creation of toxic hot-spots unde r the proposed trading program, if EPA adopts a cap-and-trade rule, it must take all appropriate actions to en sure that such hot-spot s do not result from its program. Some of the actions EPA should take are described below.51 (a) Require excess “offsets.” Although EPA claims that local or regional hot-spots will not occur, it nevertheless requests comments on “whether it would be appropriate to adjust the geographic scope of this pr ogram to introduce trading ratios between regions as a way of addressing regional differences should they occur.” 69 Fed. Reg. 4701. Because EPA has not and cannot adequately demonstrate that hot-s pots will not occur under its proposed trading program, the EPA should require a greater amount of emission reductions or “offsets” for each
trade.

The offset ratio should be adjusted based on the ability of mercury reductions at one source to reduce mercury deposition in the area of influence of another source. For example, the trading ratio should be increased based on the distance from the utility units generating the credits to the utility unit purchas ing the credits, since the greate r the distance between the sources
the less effect that reductions at one source will have at the other. Simila rly, the trading ratio should be increased if the prevailing winds limit th e ability of reductions at one plant to benefit the area impacted by another plant. The goal of such enhanced-offset requirements would be to ensure that any mercury reductions realized at units ge nerating credits would have an equivalent
environmental effect in the local area surroundi ng a unit that is purchasing those credits.

These types of enhanced offset requirements would encourage sources to install mercury controls and would thus prom ote real and tangible reducti ons in mercury emissions by discounting credits, especially t hose credits received from sources located great distances from the unit purchasing the credits. Furthermore, because a greater number of credits would be required from units that are less likely to have a beneficial effect on the area impacted by the purchasing facility, this policy would encourag e more trading that would result in true
“localized” reductio ns of mercury.

(b) Limit trades to a regional or basin-wide area . In addition to the enhanced offset requirements, trading should be limited to the region or basin in which mercury reductions will have a substantial impact. In other words, trad ing should be limited to those areas where it is
shown that reductions at one unit will have a s ubstantial positive impact (i.e., net reduction in mercury deposition) in the area surrounding the other unit.

(c) Limit amount of credits that can be purchased to meet emission limits . In order to ensure that all areas and regi ons of the country experience some bene fit from the mercury reduction rule, all utility units should be required to achieve some level of mercury reduction through the addition of add-on controls or other mercury reduc tion technologies.

(d) Creation of natural resour ce damages fund to attempt to compensate entities impacted by hot-spots . Because of the high likelihood that a trading program, even with the protections identified above, will allow mercury hot-s pots to continue to persist, EPA should also create a fund to compensate tribes, states, and other natural resouce trustees for the damages cause by these hot-spots. This fund could be created by assessing a surcharge on all mercury
reduction credits that are traded. The creation of this fund woul d help to at least somewhat address the liability exposure of utilities to states, tribes, and others because of the damages that have been and will continue to be caused by their mercury emissions.52 MWFCPC Comments on EPA_s CAMR Rulemaking.DOC

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