Leavy, Jacqueline 

From:	 Miller, Alice V <alice.miller@ncdenr.gov > 

Sent:	 Thursday, May 08, 2014 12:56 PM 

To:	 Mccarthy, Gina 

Cc: darwin.henry@azdeq.gov; Holman, Sheila; teasterly@idem.in.gov; 

patrick.stevens@wisconsin.gov ; Robert.Hodanbosi@epa.ohio.gov ; 

Trudy_Fisher@deq.state.ms.us ; Randy.C.Huffman@wv.gov ; gechols@adem.state.al.us

Subject:	 State Environment Commissioner Joint Letter Draft Final with signatures 

Attachments:	removed.txt; State Envir Comm Joint Letter Draft Final with signatures v2.pdf 

Categories:	 Red Category 

Administrator McCarthy, 

Please find the attached carbon copy letter concerning § 111(d). The hard copy is being sent out today. 

Thank you, 

Alice V. Miller 

Executive Assistant to Secretary John E. Skvarla, III 

North Carolina Department of Environment and Natural Resources 

P: 919.707.8625 

E-rnail correspondence to and from this address may be subject to the 

North Carolina Public Records Law and may be disclosed to third parties.

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May 8, 2014 

Regina McCarthy 

Administrator 

U.S. Environmental Protection Agency 

1200 Pennsylvania Avenue, N.W. 

Washington, DC 20460 

Dear Ms. McCarthy: 

As EPA continues to develop guidelines for the States to use in regulating greenhouse gas 

("GHG") emissions from existing fossil fuel-fired electric generating units, we wish to offer our 

thoughts on how EPA should carry out its responsibilities and still respect the prerogatives granted 

to the States by the Clean Air Act ("CAA"). Our States have had a long and successful history of 

protecting the environment and our natural resources, while at the same time providing for 

economic development. We believe the following considerations will help us to continue 

environmentally responsible growth. 

First, EPA should recognize that its role under the CAA is limited to establishing a procedure for 

State implementation of GHG performance standards. EPA's role is not to set performance 

standards. CAA § 1 1 1(d) allows EPA to establish only unit-specific guidelines that describe what 

control technologies have been adequately demonstrated as a general framework for States to 

develop and implement. States have the responsibility for developing plans that establish 

performance standards. We believe it is important to emphasize that EPA's regulations allow 

States, under certain circumstances, to set less stringent performance standards or longer 

compliance schedules than EPA guidelines. Some States may be able to submit a plan that requires 

no reductions. EPA acknowledged in its 2010 report on Available and Emerging Technologies 

that detexmining unit-specific efficiency is dependent on a number of factors including, but not 

limited to, EGU thermodynamic cycle, coal rank and quality, plant size, pollution system, 

operating and maintenance practices, cooling system, geographic location, load generation 

characteristics, equipment manufacturer, and plant components. ' It is not feasible for EPA to 

establish any assumed numeric efficiency to any existing unit, mtach less a numerical standard for 

the approximately 1,200 coal-fired EGUs in the country. 

Second, the EPA should ensure that its guidelines allow States to set GHG performance standards 

that are based on measures that can be applied at each EGU rather than include activities beyond 

the unit itself (i.e. "outside the fence" approach). 

Finally, given the almost certain litigation associated with a CAA §111(d) emission guideline, 

States are at risk if they move forward with developing and enacting State CAA §111(d) plans 

prior to the resolution of litigation. EPA can help States avoid expending their limited resources 

by simply including a timing provision in the CAA § I 1 1(d) guideline that requires State plans to 

' Available and Emerging Technologies for Reducing Greenhouse Gas Emissions from Coal-Fired Electric 

Generating Units, EPA Sector Policies and Programs Division, OAQPS, October 2010. 

http://www.epa.gov/nsr/ghgdocs/electricgeneration.pdf
be submitted after the conclusion of any legai challenges to the rule. Once the judicial review 

processes have run their course, each State can safely move forward deve(oping plans that satisfy 

CAA § 111(d). 

EPA asked the States for input by November 2013 and stated that EPA's focus would then turn 

from soliciting feedback to developing the guidelines. Given the level of responsibility at the State 

level and the fact that EPA has not yet given any indication of its direction or options under 

consideration, we suggest that EPA's comtnunications with the States continue to occur between 

now and .lune 2014 to give States adequate opportunity to provide input. We hope that as EPA 

develops the guide(ines it will continue to openly communicate with the States to ensure that the 

States can provide substantive input on EPA's direction before the June 2014 proposal and have 

sufficient time and information to fuifill their obligations under the statute. 

We iook forward to working with EPA over the coming months to develop a program that meets 

the needs of our States. 

,►,,	.^ 

Lance LeFleur, Director 

Alabama Department of Environmental Management 

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Randy C. Huffman, Secretary 

West Virginia Department of Environmental 

Protection 

John E. Skvarla, Secretary 

North Carolina Department of Environment & 

Natural Resources

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Thomas Easterly, Comissioner	 Trudy D. Fisher, Executive Director 

Indiana Department of Environmental Management Mississippi Department of Environmental Quality 

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Craig W. Butler, Interim Director 

Ohio Environmental Protection Agency 

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I Ie	R. i^arwin 

D' r^ctor 

Arizona Department of Environmental Quality

John W. Mitchell, Director, Division of Environment 

Kansas Department of Health and Environment 

Cathy Stepp, Secretary 

Wisconsin Department of Natural Resources 

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