62200 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[OAR–2002–0056; FRL–7989–3] 

RIN 2060–AM96 

Revision of December 2000 Regulatory 

Finding on the Emissions of 

Hazardous Air Pollutants From Electric 

Utility Steam Generating Units and the 

Removal of Coal- and Oil-Fired Electric 

Utility Steam Generating Units From 

the Section 112(c) List: 

Reconsideration 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of reconsideration of 

final rule; request for public comment; 

notice of public hearing. 

SUMMARY: On March 29, 2005, EPA 

published a final rule entitled ‘‘Revision 

of December 2000 Regulatory Finding 

on the Emissions of Hazardous Air 

Pollutants From Electric Utility Steam 

Generating Units and the Removal of 

Coal- and Oil-Fired Electric Utility 

Steam Generating Units from the 

Section 112(c) List’’ (Section 112(n) 

Revision Rule). (See 70 FR 15994.) 

Following that final action, the 

Administrator received two petitions for 

reconsideration. In response to those 

petitions, EPA is announcing its 

reconsideration of certain aspects of the 

Section 112(n) Revision Rule. We are 

requesting comment on the particular 

issues identified below for which we are 

granting reconsideration. Those issues 

are referenced briefly in the 

SUPPLEMENTARY INFORMATION section of 

the preamble and described more fully 

later in this preamble. 

We are seeking comment only on the 

aspects of the Section 112(n) Revision 

Rule specifically identified in this 

notice. We will not respond to any 

comments addressing other aspects of 

the Section 112(n) Revision Rule or any 

related rulemakings. 

DATES: Comments. Comments must be 

received on or before December 19, 

2005. Because of the need to resolve the 

issues raised in this notice in a timely 

manner, EPA will not grant requests for 

extensions beyond this date. 

Public Hearing. A public hearing will 

be held on November 17, 2005. For 

further information on the public 

hearing and requests to speak, see the 

ADDRESSES section of this preamble. 

ADDRESSES: Comments. Submit your 

comments, identified by Docket ID No. 

OAR–2002–0056 (Legacy Docket ID No. 

A–92–55), by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Web site: http:// 

www.epa.gov/edocket. EDOCKET, EPA’s 

electronic public docket and comment 

system, is EPA’s preferred method for 

receiving comments. Follow the on-line 

instructions for submitting comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: (202) 566–1741. 

• Mail: Air and Radiation Docket and 

Information Center, U.S. EPA, Mailcode: 

6102T, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460. 

• Hand Delivery: Air and Radiation 

Docket and Information Center, U.S. 

EPA, Room B102, 1301 Constitution 

Avenue, NW., Washington, DC. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions. Direct your comments to 

Docket ID No. OAR–2002–0056 (Legacy 

Docket ID No. A–92–55). EPA’s policy is 

that all comments received will be 

included in the public docket without 

change and may be made available 

online at http://www.epa.gov/edocket, 

including any personal information 

provided, unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through 

EDOCKET, regulations.gov, or e-mail. 

The EPA EDOCKET and the Federal 

regulations.gov Web sites are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

EDOCKET or regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Public Hearing. The public hearing 

will run from 8 a.m. to 5 p.m., Eastern 

time, and will be held in Room 111C at 

the EPA facility, Research Triangle Park, 

N.C. Persons interested in attending the 

hearing or wishing to present oral 

testimony should notify Ms. Pamela 

Garrett at least 2 days in advance of the 

public hearing (see FOR FURTHER

INFORMATION CONTACT section of this 

preamble). The public hearing will 

provide interested parties the 

opportunity to present data, views, or 

arguments concerning this notice. The 

public hearing for this action will be 

held on the same date and at the same 

time and location as the public hearing 

for the related reconsideration action for 

the Clean Air Mercury Rule (CAMR), 

published elsewhere in today’s Federal 

Register. 

If no one contacts Ms. Garrett in 

advance of the hearing with a request to 

present oral testimony at the hearing, 

we will cancel the hearing. The record 

for this action will remain open for 30 

days after the date of the hearing to 

accommodate submittal of information 

related to the public hearing. 

Docket. The EPA has established an 

official public docket for today’s notice, 

including both Docket ID No. OAR– 

2002–0056 and Legacy Docket ID No. 

A–92–55. The official public docket 

consists of the documents specifically 

referenced in today’s notice, any public 

comments received, and other 

information related to this notice. All 

items may not be listed under both 

docket numbers, so interested parties 

should inspect both docket numbers to 

ensure that they have received all 

materials relevant to today’s notice. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as 

copyrighted material, is not placed on 

the Internet and will be publicly 

available only in hard copy form. 

Publicly available docket materials are 

available either electronically in 

EDOCKET or in hard copy at the Air 

and Radiation Docket and Information 

Center, U.S. EPA, Room B102, 1301 

Constitution Avenue, NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the Air 

and Radiation Docket and Information 

Center is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: For 

general and technical information, 

contact Mr. William Maxwell, 

Combustion Group, Emission Standards 

Division, Mailcode: C439–01, U.S. EPA, 

Research Triangle Park, NC 27711; 

telephone number: (919) 541–5430; fax 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 62201 

number: (919) 541–5450; e-mail address: 

maxwell.bill@epa.gov. For questions 

about the public hearing, contact Ms. 

Pamela Garrett, Combustion Group, 

Emission Standards Division, Mailcode: 

C439–01, Environmental Protection 

Agency, Research Triangle Park, NC 

27711; telephone number: (919) 541–

7966; fax number: (919) 541–5450; email address: garrett.pamela@epa.gov. 

SUPPLEMENTARY INFORMATION: 

Outline. The information presented in 

this preamble is organized as follows: 

I. General Information 

A. Does this reconsideration notice apply 

to me? 

B. How do I submit CBI? 

C. How do I obtain a copy of this document 

and other related information? 

II. Background 

III. Today’s Action 

IV. Discussion of Issues Subject to 

Reconsideration 

A. Legal Interpretations 

B. EPA’s Methodology and Conclusions 

Concerning Why Utility Hg Emissions 

Remaining After Imposition of the 

Requirements of the CAA are not 

Reasonably Anticipated to Result in 

Hazards to Public Health 

C. Detailed Discussion of Certain 

Reconsideration Issues Related to CoalFired Utility Units as Set Forth in 

Section VI of the Final Section 112(n) 

Revision Rule 

D. EPA’s Decision Related to Nickel (Ni) 

Emissions from Oil-Fired Utility Units 

E. Documents Identified by Petitioners that 

are Dated After the Close of the Public 

Comment Period 

V. Clarification and Correction of Statements 

Made in Final Section 112(n) Revision 

Rule 

VI. Statutory and Executive Order (EO) 

Reviews 

A. EO 12866: Regulatory Planning and 

Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. EO 13132: Federalism 

F. EO 13175: Consultation and 

Coordination With Indian Tribal 

Governments 

G. EO 13045: Protection of Children from 

Environmental Health and Safety Risks 

H. EO 13211: Actions that Significantly 

Affect Energy Supply, Distribution, or 

Use 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

I. General Information 

A. Does This Reconsideration Notice 

Apply to Me? 

Categories and entities potentially 

affected by today’s notice include: 

Category NAICS 

code 1 Examples of potentially regulated entities 

Industry ...................................................... 221112 Fossil fuel-fired electric utility steam generating units.

Federal Government ................................. 2221122 Fossil fuel-fired electric utility steam generating units owned by the Federal government. 

State/local/Tribal Government ................... 2221122 Fossil fuel-fired electric utility steam generating units owned by municipalities. 

921150 Fossil fuel-fired electric utility steam generating units in Indian country. 

1 North American Industry Classification System. 

2Federal, State, or local government-owned and operated establishments are classified according to the activity in which they are engaged. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

affected by today’s notice. This table 

lists examples of the types of entities 

EPA is now aware could potentially be 

affected by today’s notice. Other types 

of entities not listed could also be 

affected. If you have questions regarding 

the applicability of today’s notice to a 

particular entity, consult Mr. William 

Maxwell listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

B. How Do I Submit CBI? 

Do not submit this information to EPA 

through EDOCKET, regulations.gov, or 

e-mail. Clearly mark the part or all of 

the information that you claim to be 

CBI. For CBI in a disk or CD ROM that 

you mail to EPA, mark the outside of the 

disk or CD ROM as CBI and then 

identify electronically within the disk or 

CD ROM the specific information that is 

claimed as CBI. In addition to one 

complete version of the comment that 

includes information claimed as CBI, a 

copy of the comment that does not 

contain the information claimed as CBI 

must be submitted for inclusion in the 

public docket. Information so marked 

will not be disclosed except in 

accordance with procedures set forth in 

40 CFR part 2. 

C. How Do I Obtain a Copy of This 

Document and Other Related 

Information? 

In addition to being available in the 

docket, an electronic copy of today’s 

notice also will be available on the 

World Wide Web (WWW) through 

EPA’s Technology Transfer Network 

(TTN). Following the Administrator’s 

signature, a copy of this notice will be 

posted on the TTN’s policy and 

guidance page for newly proposed rules 

at http://www.epa.gov/ttn/oarpg. The 

TTN provides information and 

technology exchange in various areas of 

air pollution control. 

II. Background 

On March 15, 2005, EPA signed a 

final action that revised the Agency’s 

December 2000 finding made pursuant 

to Clean Air Act (CAA) section 

112(n)(1)(A), and based on that revision, 

removed coal- and oil-fired electric 

utility steam generating units (Utility 

Units or power plants) from the CAA 

section 112(c) source category list. The 

final Section 112(n) Revision Rule was 

published on March 29, 2005. (See 70 

FR 15994.) CAA section 112(n)(1)(A) is 

the threshold statutory provision 

underlying the Section 112(n) Revision 

Rule. That provision requires EPA to 

conduct a study to examine the 

possibility of hazards to public health 

that are reasonably anticipated to occur 

as the result of hazardous air pollutant 

(HAP) emissions from Utility Units after 

imposition of the requirements of the 

CAA. The provision also provides that 

EPA shall regulate Utility Units under 

CAA section 112, but only if the 

Administrator determines that such 

regulation is both ‘‘appropriate’’ and 

‘‘necessary’’ considering, among other 

things, the results of the study. EPA 

completed the study in 1998 (the Utility 

Study), and in December 2000 found 

that it was appropriate and necessary to 

regulate coal- and oil-fired Utility Units 

under CAA section 112. That December 

2000 finding focused primarily on 

mercury (Hg) emissions from coal-fired 

Utility Units. In light of the finding, 

EPA in December 2000 listed coal- and 

oil-fired Utility Units on the CAA 

section 112(c) list of regulated source 

categories. On January 30, 2004 (69 FR 

4652), EPA proposed revising the 

December 2000 appropriate and 

necessary finding and, based on that 

revision, removing coal- and oil-fired 

Utility Units from the CAA section 

112(c) list. 

In the final Section 112(n) Revision 

Rule, EPA revised the December 2000 

appropriate and necessary finding, 

having concluded that it is neither 

appropriate nor necessary to regulate 

coal- and oil-fired Utility Units under 

62202 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 

1One petition was submitted by 14 States: New 

Jersey, California, Connecticut, Delaware, Illinois, 

Maine, Massachusetts, New Hampshire, New 

Mexico, New York, Pennsylvania, Rhode Island, 

Vermont, and Wisconsin (State petitioners). The 

other petition was submitted by five environmental 

groups and four Indian Tribes: The Natural 

Resources Defense Council (NRDC), the Clean Air 

Task Force (CATF), the Ohio Environmental 

Council, the U.S. Public Interest Research Group 

(USPIRG), the Natural Resources Council of Maine; 

the Aroostook Band of Micmacs, the Houlton Band 

of Maliseet Indians, the Penobscot Indian Nation, 

and the Passamaquoddy Tribe of Maine (Indian 

Township and Pleasant Point) (Environmental 

petitioners). In this notice, the term ‘‘petitioners’’

refers only to those entities that filed petitions for 

reconsideration of the Section 112(n) Revision Rule 

with EPA. 

EPA also received four petitions to reconsider the 

CAMR. EPA’s response to those petitions is 

addressed in a separate Federal Register notice 

published today. 

2 In a letter dated June 24, 2005, we informed the 

petitioners that we intended to initiate a 

reconsideration process of the Section 112(n) 

Revision Rule for at least one issue raised in the 

petitions. We indicated that we would provide 

particulars in a subsequent Federal Register notice. 

This is that notice. Also in that June 24, 2005, letter, 

we denied petitioners’ request that we 

administratively stay the Section 112(n) Revision 

Rule under section 307(d)(7)(B). On August 4, 2005, 

the DC Circuit denied a similar request to stay the 

Section 112(n) Revision Rule pending the outcome 

of the litigation challenging the rule. 

CAA section 112. EPA took this action 

because the December 2000 finding 

lacked foundation and EPA received 

new information that confirmed that it 

is not appropriate or necessary to 

regulate coal- and oil-fired Utility Units 

under CAA section 112. Based solely on 

the revised finding, EPA removed coaland oil-fired Utility Units from the CAA 

section 112(c) list. 

The final Section 112(n) Revision 

Rule discusses, among other things, two 

other recent rulemakings. First, on 

March 10, 2005, EPA finalized the Clean 

Air Interstate Rule (CAIR), which will 

reduce nitrogen oxide (NOX) and sulfur 

dioxide (SO2) emissions from coal-fired 

power plants by about 70 percent when 

fully implemented. As explained in the 

final Section 112(n) Revision Rule, EPA 

expects Hg co-benefit emissions 

reductions from CAIR. CAIR was 

published on May 12, 2005. (See 70 FR 

25162.) 

Second, on March 15, 2005, EPA 

signed the final CAMR and established 

standards of performance for Hg for new 

and existing coal-fired Utility Units, as 

defined in CAA section 111. CAMR was 

published on May 18, 2005. (See 70 FR 

28606.) 

Following promulgation of the 

Section 112(n) Revision Rule, the 

Administrator received two petitions, 

filed pursuant to CAA section 

307(d)(7)(B), requesting reconsideration 

of many aspects of the final Section 

112(n) Revision Rule.1 The purpose of 

today’s notice is to initiate 

reconsideration of certain issues raised 

in those petitions.2

III. Today’s Action 

Today, we are granting 

reconsideration of, and requesting 

comment on, many of the issues raised 

in the two petitions for reconsideration. 

Generally, the petitioners claim the final 

Section 112(n) Revision Rule contains 

legal interpretations and information 

that are of central relevance to the final 

rule but that were not sufficiently 

reflected in the proposed rule, and that 

they, therefore, did not have an 

adequate opportunity to provide input 

on these matters during the designated 

public comment period. 

Further, the petitioners contend that 

additional information has become 

available since the close of the public 

comment period, and that this new 

information is also of central relevance. 

The EPA recognizes that there is a 

high degree of public interest in the 

final rule. The public had three 

opportunities to submit comments on 

the rulemaking, following the January 

30, 2004, Notice of Proposed 

Rulemaking (NPR), the March 16, 2004, 

Supplemental Notice of Proposed 

Rulemaking (SNPR), and the December 

1, 2004, Notice of Data Availability 

(NODA). EPA received, reviewed, and 

responded to thousands of documents. 

Thus, a robust public discussion of the 

rule has already occurred. Nonetheless, 

in the interest of ensuring ample 

opportunity to comment on all 

meaningful aspects of this important 

rule, we are granting reconsideration on 

certain issues and asking the public for 

additional comment. The issues for 

which we are granting reconsideration 

at this time, and for which we are 

soliciting comment, are discussed 

below. 

Our final decision on reconsideration 

for all the issues for which we are not 

granting reconsideration today will be 

issued no later than the date by which 

we take final action on the issues 

discussed in today’s action. 

IV. Discussion of Issues Subject to 

Reconsideration 

A. Legal Interpretations 

In the final Section 112(n) Revision 

Rule, EPA explained, in detail, its 

interpretation of CAA section 

112(n)(1)(A). Petitioners claim that 

many of the legal interpretations 

underlying the final Section 112(n) 

Revision Rule were not part of the 

proposal and, therefore, that they did 

not have an opportunity to comment on 

them during the designated comment 

period. They also contend that they did 

not have an opportunity to address 

EPA’s application of its legal 

interpretations. At this time, EPA is 

opening for public comment several 

aspects of its legal interpretations and 

its application of those interpretations 

as provided in the final Section 112(n) 

Revision Rule. 

As explained in the final Section 

112(n) Revision Rule, Congress treated 

Utility Units differently from other 

major and area sources and provided 

EPA considerable discretion in 

determining whether to regulate such 

units under CAA section 112. CAA 

section 112(n)(1)(A) provides: 

The Administrator shall perform a 

study of the hazards to public health 

reasonably anticipated to occur as a 

result of emissions by electric utility 

steam generating units of pollutants 

listed under subsection (b) of this 

section after imposition of the 

requirements of this Act. The 

Administrator shall report the results of 

this study to the Congress within 3 years 

after November 15, 1990. The 

Administrator shall develop and 

describe in the Administrator’s report to 

Congress alternative control strategies 

for emissions which may warrant 

regulation under this section. The 

Administrator shall regulate electric 

utility steam generating units under this 

section, if the Administrator finds such 

regulation is appropriate and necessary 

after considering the results of the study 

required by this subparagraph. 

At this time, EPA grants 

reconsideration of its interpretation of 

the following terms and phrases in CAA 

section 112(n)(1)(A), and its application 

of those terms and phrases. 

1. Hazards to Public Health Reasonably 

Anticipated To Occur as a Result of 

Emissions by Electric Utility Steam 

Generating Units 

We solicit comment on all aspects of 

EPA’s interpretation of the above phrase 

as set forth in the final Section 112(n) 

Revision Rule and its application of that 

phrase. Although we seek comment on 

all aspects of EPA’s interpretation and 

application of the above phrase, we 

clarify certain points below and identify 

certain threshold issues raised by 

petitioners on which we seek additional 

comment. 

As EPA explained in the final Section 

112(n) Revision Rule, CAA section 

112(n)(1)(A) does not define what 

constitutes ‘‘hazards to public health 

reasonably anticipated to occur’’ and 

EPA has the discretion to interpret those 

terms and, using its technical expertise, 

determine whether Hg emissions from 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 62203 

Utility Units pose such hazards. (See 70 

FR 15997–98, 16023–25.) EPA also 

explained in the final Section 112(n) 

Revision Rule that CAA section 

112(n)(1)(A) does not incorporate the 

requirements of CAA section 112(f), 

including, but not limited to, the twopart ample margin of safety inquiry set 

forth at 54 FR 38044 (September 14, 

1989) (the benzene analysis), as 

referenced in CAA section 112(f)(2)(B). 

Accordingly, in evaluating ‘‘hazards to 

public health reasonably anticipated to 

occur’’ under CAA section 112(n)(1)(A), 

EPA is not subject to the requirements 

of CAA section 112(f). We are reiterating 

this point because the petitions 

exhibited some confusion in this regard. 

EPA also noted in the final Section 

112(n) Revision Rule that even 

assuming, arguendo, that the healthbased aspect of the two-part ample 

margin of safety inquiry under CAA 

section 112(f) applied to CAA section 

112(n)(1)(A) (which EPA maintains it 

does not), EPA’s conclusions would not 

have differed from the conclusion it 

reached in analyzing hazards to public 

health reasonably anticipated to occur 

under CAA section 112(n)(1)(A). In this 

regard, EPA examined the two steps in 

the ample margin of safety inquiry 

under CAA section 112(f) from a public 

health perspective and concluded that 

even ‘‘if we were proceeding under 

section 112(f), we would likely 

conclude that CAIR, and even more so 

CAMR, not only protects public health, 

but does so with an ample margin of 

safety.’’ (See 70 FR 16025.) EPA 

specifically solicits comment on the 

above-noted conclusion and EPA’s 

analyses in this regard. (See also section 

IV.C of today’s notice.) 

Finally, EPA specifically solicits 

comment on its interpretation that the 

relevant inquiry for assessing ‘‘hazards 

to public health reasonably anticipated 

to occur’’ under CAA section 

112(n)(1)(A) is to focus on HAP 

emissions resulting from Utility Units. 

(See generally 70 FR 15998.) 

2. After Imposition of the Requirements 

of the Act 

We solicit comment on all aspects of 

EPA’s interpretation of the above phrase 

as set forth in the final Section 112(n) 

Revision Rule and its application of that 

phrase. (See generally 70 FR 15998–99; 

section IV of the preamble to the final 

Section 112(n) Revision Rule.) Among 

other things, we solicit comment on 

EPA’s reliance on CAIR in this regard. 

3. Appropriate and Necessary After 

Considering the Results of the Study 

We solicit comment on all aspects of 

EPA’s interpretation of the term 

‘‘appropriate.’’ Among other things, we 

seek comment on EPA’s interpretation 

of CAA section 112(n)(1)(A) as allowing 

EPA to consider environmental impacts 

of emissions from Utility Units in the 

‘‘appropriate’’ analysis, but only when 

EPA has already determined that 

hazards to public health are reasonably 

anticipated to occur as the result of 

utility HAP emissions. (See 70 FR 

15997–98; section IV of the preamble to 

the final Section 112(n) Revision Rule.) 

We further solicit comment on EPA’s 

application of its interpretation of the 

term ‘‘appropriate.’’ We specifically 

solicit comment on EPA’s application of 

the term ‘‘appropriate’’ in the context of 

utility-attributable emissions alone, 

which reflects EPA’s interpretation of 

CAA section 112(n)(1)(A). 

In their petitions, petitioners focus on 

EPA’s alternative ‘‘appropriate’’

argument. Specifically, in the final 

Section 112(n) Revision Rule, EPA 

explained that even examining the 

entire global pool of Hg emissions, as 

opposed to utility-only attributable Hg 

(as EPA has interpreted CAA section 

112(n)(1)(A)), EPA would still conclude 

that it is not appropriate to regulate 

coal-fired Utility Units on the basis of 

the global Hg pool under CAA section 

112. We seek comment on this 

argument. (See 70 FR 16028.) 

Moreover, we solicit comment on 

EPA’s interpretation of the term 

‘‘necessary,’’ but only insofar as EPA 

has interpreted that term as involving an 

analysis of whether the alternative legal 

authority identified, if implemented, 

would result in effective regulation, 

including, for example, its costeffectiveness and administrative 

effectiveness. (See 70 FR 16001.) We 

also solicit comment on EPA’s 

application of this aspect of the term 

‘‘necessary.’’ We are not soliciting 

comment today on EPA’s interpretation 

of the term ‘‘necessary’’ as involving an 

analysis of whether there is alternative 

authority under the CAA that, if 

implemented, would address hazards to 

public health associated with remaining 

utility-attributable HAP emissions. 

We further solicit comment on EPA’s 

interpretation of the phrase 

‘‘considering the results of the study’’

and, in particular, that EPA is not 

foreclosed from examining relevant 

information that becomes available after 

the study. (See 70 FR 15999.) We also 

solicit comment on EPA’s interpretation 

of CAA section 112(n)(1)(A) as 

authorizing EPA to revise a prior 

appropriate and necessary 

determination, where, as here, we 

believe that the December 2000 finding 

lacked foundation and that new 

information confirms that it is neither 

appropriate nor necessary to regulate 

HAP emissions from Utility Units under 

CAA section 112. (See 70 FR 16001.) 

EPA’s interpretation of the above 

identified terms and phrases in CAA 

section 112(n)(1)(A) is set forth, in full, 

in the final Section 112(n) Revision Rule 

and commenters should refer to that 

discussion in formulating any 

comments. In particular, commenters 

may want to review sections III, IV, V, 

and VI of the final Section 112(n) 

Revision Rule. 

EPA also specifically solicits 

comment on EPA’s interpretation of 

CAA sections 112(n)(1)(A) and 

112(c)(9), and its explanation as to why 

the requirements of CAA section 

112(c)(9) do not apply to EPA’s removal 

of Utility Units from the CAA section 

112(c) source category list. (See 

generally section VIII of the final 

Section 112(n) Revision Rule.) 

B. EPA’s Methodology and Conclusions 

Concerning Why Utility Hg Emissions 

Remaining After Imposition of the 

Requirements of the CAA Are Not 

Reasonably Anticipated To Result in 

Hazards to Public Health 

In section VI of the final Section 

112(n) Revision Rule, EPA set out a 

methodology for evaluating utility Hg 

emissions and deposition. That 

methodology, among other things, 

assesses the amount of utilityattributable methylmercury (MeHg) 

levels in fish tissue and the amount of 

fish consumption and evaluates the 

resulting public health effects. EPA also 

set forth in section VI its conclusions 

based on that methodology. At this time, 

EPA is opening for public comment all 

aspects of this methodology and the 

conclusions EPA reached, as described 

and justified in section VI and the 

associated Section 112(n) Revision Rule 

technical support documents (TSD). 

EPA is also granting reconsideration 

with respect to materials included in the 

CAIR docket that EPA incorporated by 

reference into the docket for the final 

Section 112(n) Revision Rule, as they 

pertain to the methodology in section VI 

of the final Section 112(n) Revision 

Rule. We ask that anyone who 

comments on materials in the CAIR 

docket explain why their comments are 

pertinent to the issues on which we are 

granting reconsideration today. 

Many of the analytical tools (e.g., 

Community Multiscale Air Quality 

model (CMAQ), Mercury Maps 

(MMaps)) and data sources (e.g., 

emissions inventories, GEOS–CHEM 

global background, and fish tissue 

concentrations) relevant to the 

methodology described in section VI of 

the final Section 112(n) Revision Rule 

62204 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 

3CMAQ Review Panel, 2004: Final Report 

Summary: December 2003 Peer Review of the 

CMAQ Model. http://www.cmascenter.org/html/ 

CMAQ%20peer%20review%20final_CMASweb.pdf, Carolina Environmental Programs, Chapel 

Hill, NC. 

CMAQ Review Panel, 2005: Final Report: Second 

Peer Review of the CMAQ Model. Carolina 

Environmental Programs, Chapel Hill, NC (http:// 

www.cmascenter.org). 

Byun, D., and K.L. Schere, 2005: Review of the 

Governing Equations, Computational Algorithms, 

and Other Components of the Models-3 Community 

Multiscale Air Quality (CMAQ) Modeling System. 

Applied Mechanics Reviews (in press). 

were described in the NODA and the 

public, therefore, had an opportunity to 

comment on them previously. 

Nevertheless, EPA today grants the 

petitioners’ request for an additional 

opportunity to comment on those 

analytical tools and data sources, 

including how they informed our final 

decision, as discussed in section VI of 

the final Section 112(n) Revision Rule. 

Among other things in Section VI, we 

solicit comment on EPA’s treatment of 

the uncertainties in the analysis that 

support its determination that utilityattributable Hg emissions remaining 

after CAIR, and independently CAMR, 

are not ‘‘reasonably anticipated to result 

in hazards to public health.’’

Although we are granting 

reconsideration on the entire 

methodology and our associated 

conclusions set forth in section VI of the 

final Section 112(n) Revision Rule, the 

following section of this preamble 

includes additional discussion 

concerning particular aspects of that 

methodology. 

C. Detailed Discussion of Certain 

Reconsideration Issues Related to CoalFired Utility Units as Set Forth in 

Section VI of the Final Section 112(n) 

Revision Rule 

As explained in the prior section, EPA 

grants reconsideration of its 

methodology and conclusions contained 

in section VI of the final Section 112(n) 

Revision Rule. In this section, we 

provide additional information and 

discussion concerning specific aspects 

of the methodology described in section 

VI of the final Section 112(n) Revision 

Rule for which we are soliciting 

comment. 

1. Modeling of Hg Deposition Changes 

That Result From Implementation of 

CAIR and CAMR 

The petitioners claim that EPA did 

not provide adequate notice of how EPA 

intended to use the CMAQ model or of 

the results from CMAQ model runs. In 

addition, some petitioners claim that 

EPA’s reliance on the CMAQ model was 

flawed because (a) the model has not 

been used before for Hg modeling, (b) 

the model has not been peer reviewed, 

and (c) EPA conducted an inadequate 

performance evaluation. Other 

petitioners assert that CMAQ is not 

precise enough to estimate deposition 

for the purposes of the final Section 

112(n) Revision Rule because the grid 

size is too large to investigate the 

possibility of utility hotspots. These 

petitioners add that CMAQ underpredicts wet deposition and that its dry 

deposition rates are inaccurate because 

there is no dry deposition monitoring 

against which to evaluate the model 

predictions. Petitioners add that EPA’s 

averaging of the model-predicted gridcell-wide average deposition across all 

grid cells in a watershed obscures areas 

of higher deposition. 

Through the NODA, EPA solicited 

and received public comment on CMAQ 

and how EPA intended to use it 

generally, and responded to those 

comments in the final Section 112(n) 

Revision Rule. Even so, as noted above, 

in the interests of ensuring full 

opportunity for the public to comment, 

we grant reconsideration of EPA’s use of 

CMAQ in its public health analysis, and 

solicit comment on the documentation 

for CMAQ and the substantive points 

raised by petitioners, in particular. In 

addition, we have developed additional 

information, summarized below, on 

some of the points raised by petitioners, 

and solicit comment on that 

information. 

a. Prior Use, and Peer-Review, of the 

CMAQ Model. The CMAQ model used 

in the Section 112(n) Revision Rule has 

been used for Hg modeling previously 

in model evaluation studies, although 

not to support a regulatory analysis. We 

solicit comment on the following 

information concerning peer review, 

some of which was included in the 

docket at the time of the final Section 

112(n) Revision Rule, others of which 

we have added more recently in support 

of today’s notice. 

The CMAQ model has been peer 

reviewed, as noted in section III of the 

‘‘Modeling TSD’’ (Technical Support 

Document for the Final Clean Air 

Mercury Rule: Air Quality Modeling; 

OAR–2002–0056–6130).3 The CMAQ Hg 

module is primarily documented in the 

peer reviewed Atmospheric 

Environment journal article documented 

in the Modeling TSD (Bullock and 

Brehme, 2002). In addition the entire 

CMAQ model, including the Hg updates 

documented in the Modeling TSD, 

underwent further peer review in May 

2005. A report containing the results of 

this peer review is available in the 

docket (and is also publicly available at 

http://www.cmascenter.org). 

Concerns have also been raised over 

the exclusion of the State of Alaska 

(Healy Plant), the State of Hawaii 

(AES—Hawaii), and the U.S. Territories 

from the modeling analyses supporting 

CAMR. The primary reason for this 

exclusion is that the meteorological 

model (Mesoscale Meteorological 

Model, Version V, which drives the 

atmospheric chemistry simulation in 

CMAQ) does not include these remote 

areas in its current modeling domain. 

Thus, there is no available 

meteorological information to assess the 

transport, diffusion, and deposition 

from sources in these regions in the 

CMAQ modeling analyses. 

Moreover, EPA assessed the 

magnitude of emissions from coal-fired 

power plants in Alaska and Hawaii in 

the 1999 ICR data and determined that 

these plants emitted 0.0155 percent and 

0.0162 percent, respectively, of the total 

48 tons of Hg emissions in 1999. Given 

the magnitude and density of power 

plant emissions in the lower 48 States, 

and the conclusion stated in the final 

Section 112(n) Revision Rule that 

emissions in the lower 48 States, after 

the implementation of CAIR (and 

moreover CAMR), are not reasonably 

anticipated to result in hazards to public 

health, EPA does not reasonably 

anticipate that Hg emissions from units 

located in Alaska, Hawaii, and the U.S. 

Territories pose hazards to public 

health. 

b. CMAQ Model Evaluation. We 

solicit comment on the evaluation of the 

CMAQ model performance summarized 

in section VI of the Section 112(n) 

Revision Rule and discussed more fully 

in section IV of the Modeling TSD. In 

particular, we seek comment concerning 

our conclusion that the model 

performance for CMAQ Hg deposition 

falls within what has been considered 

reasonable model performance for ozone 

and particulate matter model 

applications. 

Currently, there is no continuous 

measurement network for Hg dry 

deposition in part because there is no 

low-cost dry measurement method 

available for use in such a network. 

Thus, we are not able to evaluate model 

performance for Hg dry deposition by 

comparing model predictions to 

monitored observations. Nonetheless, 

we believe our use of CMAQ adequately 

accounts for Hg dry deposition. 

As discussed in the Modeling TSD, 

the best current scientific understanding 

is that wet Hg deposition and dry Hg 

deposition are roughly equal in 

magnitude. In a recent peer-reviewed 

journal article, Miller et al. (2005) 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 62205 

discuss in detail the state-of-the-science 

regarding monitoring wet and dry 

deposition in North America. In general, 

areas with high precipitation amounts 

may have more wet Hg deposition and 

areas with low precipitation amounts 

may have more dry Hg deposition. The 

total national CMAQ Hg wet deposition 

is roughly equal in magnitude to the 

total national dry deposition (see 

Modeling TSD) while CMAQ predicts 

more dry deposition in dry areas of the 

country and more wet deposition in wet 

areas of the country, as empirical 

evidence would support. (Miller, et al., 

2005). 

c. Changes in Deposition Predictions. 

Petitioners state that the model 

predictions of higher Hg deposition 

rates in a 2001 scenario in which Utility 

Unit emissions are zeroed-out, 

compared to a 2020 scenario in which 

Utility Unit emissions are reduced but 

not zeroed-out, reveal the inaccuracies 

of the model. 

The 2001 utility emissions zero-out 

scenario results in lower Hg deposition 

than the 2020 with CAIR scenario in the 

high utility-attributable Hg emissions 

area of the Ohio River Valley and 

western Pennsylvania. The CMAQ 

model predicts lower utility Hg 

deposition for the 2001 utility Hg 

emissions zero-out scenario than for the 

2020 with CAIR scenario in the areas of 

highest utility Hg emissions. 

There are a few scattered small areas 

of the country where the 2001 Hg 

deposition with utility Hg emissions 

zeroed-out are higher than the 2020 

with CAIR Hg deposition. However, 

these are in areas where local nonutility sources of Hg emissions have 

decreased between 2001 and 2020. In 

the 2020 with CAIR scenario, not only 

are utility Hg emissions reduced from 

the 2001 scenario, but local non-utility 

sources of Hg emissions are also 

reduced from the 2001 scenario (see 

table 2 of the Modeling TSD). Thus, the 

reason that the model predicts higher 

Hg deposition in some scattered areas 

for the 2001 utility zero-out scenario, 

compared to the 2020 with CAIR 

scenario, is due to decreased Hg 

emissions from non-utility Hg emissions 

sources in the 2020 with CAIR scenario. 

d. Grid Cell Size and Averaging 

Across Grid Cells in a Watershed. 

Petitioners assert that averaging 

deposition within the 36 kilometer (km) 

grid cell, and averaging deposition 

across all grid cells within a watershed, 

results in imprecise estimates of the 

effects of Hg emissions on fish tissue in 

waterbodies. As explained in the final 

Section 112(n) Revision Rule and 

section 2.1 of the ‘‘Effectiveness TSD’’

in support of the final Section 112(n) 

Revision Rule (Methodology Used to 

Generate Deposition, Fish Tissue 

Methylmercury Concentrations, and 

Exposure for Determining Effectiveness 

of Utility Emission Controls, OAR–

2002–0056–6301, OAR–2002–0056–

6190), we believe that averaging Hg 

deposition within a grid cell, and then 

across all grid cells that comprise a 

watershed, is a reasonably accurate 

methodology to indicate the impact of 

Hg deposition on fish tissue levels in 

waterbodies within a given watershed. 

Processes operating at the watershed 

(8-digit hydrologic unit code (HUC)) 

level likely influence MeHg 

concentrations in fish at any given 

location within the ecosystem. As water 

moves through the watershed, Hg that 

has been deposited from the atmosphere 

will also move through the HUC. Fish 

living in the aquatic ecosystem can 

move as well. Some species migrate, 

while others may travel significant 

distances in large lakes and through 

river and stream networks while other 

species remain within smaller 

geographic areas. Therefore, there is 

additional geographic uncertainty 

associated with where the fish are 

exposed to Hg deposition. Additionally, 

many fishers visit numerous 

waterbodies to fish. Averaging to a 

larger geographic unit (U.S. Geological 

Survey (USGS) 8-digit HUC) 

representative of an ecosystem unit 

(watershed) helps us to avoid modeling 

false precision between the exposure of 

fish and the source of the deposited Hg, 

and fishing activity. 

Given all of these factors, averaging 

enables us to produce an accurate 

regional or watershed level picture of 

deposition. Thus, 36 km resolution 

CMAQ output, which is generally 

somewhat smaller than the 8-digit HUC 

resolution, is an appropriate geographic 

resolution from which to analyze air 

deposition of Hg to the ecosystem, and 

averaging deposition across grid cells 

within a given watershed enables a 

watershed-level characterization of Hg. 

2. EPA’s Method for Determining How 

Changes in Utility-Attributable Hg 

Deposition Would Result in Changes in 

Concentrations of MeHg in Fish Tissue. 

Petitioners claim that the 1,633 

sample sites for fish tissue MeHg levels 

are too few to adequately represent the 

millions of lake acres and river miles in 

the U.S. They also argue that the 

samples do not adequately represent the 

places where people regularly fish, and 

in particular that the geographic scope 

of sample sites is too limited. Petitioners 

also contend that EPA’s elimination of 

small-sized fish samples resulted in too 

few sites for Virginia, Pennsylvania, 

Ohio, and certain other States, even 

though most of the utility-attributable 

Hg deposition occurs in these States. 

We solicit comment on the sufficiency 

of the sample site data set for the 

analytic purposes described in the final 

Section 112(n) Revision Rule, in 

particular the specific issues raised by 

the petitioners. In addition, we solicit 

comment on the additional information 

that we have developed, described 

below, which is pertinent to the 

concerns expressed by the petitioners, 

as noted above. 

We have re-examined aspects of the 

sufficiency of the fish tissue data set 

related to fish tissue concentrations and 

believes that because it is not realistic 

to directly sample, on a yearly basis, 

over 40 million lake acres and 3 million 

miles of river, the issue is whether the 

available samples comprise a 

representative sample of U.S. 

waterbodies. As part of this evaluation, 

EPA examined the geographic area that 

a single sample represents. 

We have examined the similarity of 

sample sites within a particular 

geographic area. We define similarity in 

terms of variance, which is the average 

squared deviation of all values from the 

mean. The values are the levels of MeHg 

in fish tissue at the sample sites. We 

determine variance on the basis of all 

the values within particular geographic 

units. 

Our exploratory studies have found 

that samples taken from within the same 

watershed are reasonably similar to each 

other. They are more similar to each 

other than samples taken within larger 

geographic areas like States or the entire 

nation. EPA has examined whether 

samples continued to be more alike at 

the smaller geographic unit of a county. 

The samples are not greatly more alike 

within counties than they are within 

watersheds (which can contain several 

counties). Variance among fish tissue 

concentrations from across the nation is 

0.21 parts per million (ppm). Average 

variance within States is 0.07 ppm. 

Average variance within watersheds is 

0.053 ppm, and average variance within 

counties is 0.050 ppm. 

The difference between a geographic 

unit of analysis on the county level, 

compared to a watershed level is, 0.003 

ppm in variance. This represents less 

than a 1 percent decrease in variance 

within the sample data, an amount 

which is quite small. Note that in the 

Effectiveness TSD, the average 

concentration is 0.43 ppm. 

The relatively small amount of 

variance within a watershed of 0.053 

ppm, compared to the average 

concentration of 0.43 ppm, and the 

comparability of the intra-watershed 

62206 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 

variance with intra-county variance, 

supports EPA’s use of the available fish 

tissue samples to adequately represent 

MeHg levels over a watershed. 

Applying this assumption of 

representativeness means that the fish 

tissue sample data are representative of 

all the rivers and lakes found within the 

watersheds in which they were taken. 

The set of fish tissue concentration 

samples used for the Effectiveness TSD 

covers approximately 24.5 percent of all 

the HUCs which, in turn, contain 50 

percent of lakes and 25 percent of river 

miles in the U.S. While EPA does 

recognize that there are HUCs from 

which no fish tissue samples have been 

taken, our sample set provides an 

adequate regional, watershed-level 

characterization. 

The adequate portrayal or 

characterization of concentrations in 

areas that have not been sampled can 

lead to more uncertainty in the analyses. 

The unavailability of predictive models 

to accurately estimate values of Hg 

concentrations in fish where no samples 

have been taken makes it difficult to 

quantitatively assess how representative 

of unsampled geographic locations the 

existing sample data set is. Thus, to 

assess the coverage of the available data 

set of fish tissue samples, we can 

examine how similar the data set is to 

other data resources that provide 

complete national coverage, and are 

believed to be related to fish tissue 

concentrations. Total air mercury 

deposition is one such data set. 

It is not unreasonable to assume that 

the fish tissue samples would have 

similar statistical characteristics to Hg 

deposition concentrations. In other 

words, if total Hg concentrations are 

dependent upon total Hg deposition, we 

would expect the distributional 

properties in each data set to be similar. 

The degree of similarity between the 

distributional properties of the two data 

sets (deposition and fish tissue 

concentrations) can be somewhat 

assessed by a visual comparison of the 

patterns shown in figures 2.9 and 3.4 of 

the Effectiveness TSD. 

Figures 2.9 and 3.4 graphically depict 

the cumulative distributions for the two 

data sets—Hg deposition and fish tissue 

concentration. A visual comparison of 

these two distributions reveals similar 

distributional properties. Both data sets 

show that small numbers of 

observations (samples/HUCs) have low 

values, while the majority of the data 

are within a tightly defined middle 

range, with the highest concentrations 

deviating further from the rest of the 

data, but small in numbers compared 

with the overall data set. 

While examining these data sets in 

this manner does not conclusively or 

quantitatively prove that new fish tissue 

samples would never be outside the 

statistical range of the existing 

distributions (minimum and maximum 

value), it does suggest that if air 

deposition and fish tissue 

concentrations have similar 

distributions, the fish tissue sample data 

set is representative of the total 

population of U.S. fish. Thus, the 

sample of fish tissue concentrations 

available to EPA for the Effectiveness 

TSD in support of the final Section 

112(n) Rule analyses is adequate to 

reasonably characterize the range of 

potential health risks. 

In response to petitioners’ argument 

that there are not enough samples in the 

West, we note that in the Effectiveness 

TSD, which focuses on examining the 

role coal-fired power plants play in Hg 

deposition and fish tissue 

concentration, the lower density of 

samples in the West is of comparatively 

little concern because of the low utilityattributable Hg deposition there. Figure 

2.2 of the Effectiveness TSD shows that 

in the West, Hg deposition from power 

plants is less than 1 microgram per 

square meter (μg/m2), while in the East, 

it can account for average HUC levels as 

high as 20 μg/m2. Although these data 

do not mean that the West is not of any 

concern, they do show that utilityrelated impacts are significantly lower 

in the West than in the East, and, 

therefore, they do not form a significant 

portion of the foundation of EPA’s 

decision. 

3. EPA’s Approach to Estimating UtilityAttributable Exposure 

Petitioners provide substantive 

comments on certain aspects of EPA’s 

decision regarding exposure pathways 

and health risks associated with Hg 

exposure. We provide further 

information below on some of the points 

they raise, and we solicit comment on 

this information. 

a. Exposure Pathways. The petitioners 

assert that EPA, by limiting its focus to 

one fish consumption pathway of Hg 

exposure—freshwater fish caught by 

recreational and subsistence fishers—

failed to adequately evaluate four other 

fish consumption pathways for human 

Hg exposure: (a) Marine (saltwater) fish, 

(b) commercial freshwater fish, (c) fish 

produced through aquaculture, and (d) 

estuarine fish. Furthermore, the 

petitioners charge that EPA failed to 

explain the rationale for assessing these 

pathways qualitatively. 

Petitioners are correct that 

considering the total concentrations of 

MeHg in fish tissue resulting from all 

sources of Hg emissions (including 

global sources), marine fish present the 

primary source of Hg exposure to most 

persons living within the U.S. However, 

as explained in the final Section 112(n) 

Revision Rule, EPA has interpreted CAA 

section 112(n)(1)(A) as calling for an 

analysis of the hazards to public health 

reasonably anticipated to occur as the 

result of emissions by Utility Units. 

Thus, as explained in the final Section 

112(n) Revision Rule, the proper inquiry 

for purposes of CAA section 

112(n)(1)(A) is to examine the 

concentrations of MeHg in fish tissue 

that result from U.S. coal-fired power 

plant Hg emissions. As discussed in the 

final Section 112(n) Revision Rule, 

emissions of Hg from U.S. coal-fired 

power plants most significantly impact 

concentrations of MeHg in freshwater 

fish; thus, it was appropriate for EPA to 

focus on this pathway in the CAA 

section 112 rulemaking. Nonetheless, 

we recognize that other exposure 

pathways may still contribute to the 

total exposure from U.S. coal-fired 

power plant Hg emissions, and, thus, we 

explore them more fully below and in 

the ‘‘Reconsideration TSD’’ in support 

of the final Section 112(n) Revision Rule 

(Technical Support Document: Revision 

of December 2000 Regulatory Finding 

on the Emissions of Hazardous Air 

Pollutants From Electric Utility Steam 

Generating Units and the Removal of 

Coal- and Oil-Fired Electric Utility 

Steam Generating Units from the 

Section 112(c) List: Reconsideration). 

EPA solicits comment on all of these 

issues, comments, and analyses. 

Marine Fish Pathway. The petitioners 

argue that because utility-attributable 

Hg deposits in areas where marine 

fishing occurs, human health impacts 

attributable to power plant Hg emissions 

should be reasonably anticipated, noting 

that a number of commercially 

important marine fish have relatively 

high Hg concentrations. 

In the Effectiveness TSD, EPA did 

acknowledge that marine systems could 

be affected by U.S. power plant Hg 

emissions, but concluded that based on 

the available science marine species do 

not appear to be significantly affected by 

Hg emissions from U.S. power plants. 

The actual quantification of this impact 

was not conducted because of the 

scientific uncertainty in modeling 

marine systems. (See Reconsideration 

TSD, section 2.) For today’s action, EPA 

conducted an analysis using upperbound assumptions, including the 

assumption of a proportional 

relationship between decreases in 

utility-attributable Hg deposition and 

decreases in MeHg fish tissue 

concentration. (See Reconsideration 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 62207 

4As described in the final Section 112(n) 

Revision Rule, the IDI is an index of exposure to 

Hg due solely to power plants. An IDI of 1 or greater 

indicates that an individual exposure to Hg from 

power plants is equal to or exceeds the EPA 

reference dose (RfD) for Hg due solely to utilityattributable Hg exposure. (See 70 FR 16021.) 

5The Great Lakes commercial haul is 0.2 percent 

of the total commercial haul. The marine haul 

represents the most significant fraction of the total 

haul and is discussed elsewhere. (See 

Reconsideration TSD, section 6.) 

TSD, section 3.) The conclusion of this 

analysis reinforces our conclusion to 

focus our previous quantitative analysis 

on self-caught freshwater fish, not 

marine fish. This conclusion is based on 

the small contribution of the U.S. power 

plant Hg emissions to open ocean 

environments. High-end consumers 

eating over 200 grams per day of a crosssection of marine fish would have an 

Index of Daily Intake (IDI) value of 

about 0.05.4 (See Reconsideration TSD, 

table 3.2.) Even if this high-end 

consumer exclusively ate marine fish 

with one of the highest utilityattributable MeHg concentration levels, 

the consumer would have an IDI value 

below one. (See Reconsideration TSD, 

table 3.3.) Given that the IDI values for 

the marine fish pathway are 

significantly less than one for moderate 

consumption rates and less than one 

even for the extreme combination of 

high consumption rate of marine fish 

with high MeHg levels, EPA maintains 

that marine fish are a pathway of small 

concern when evaluating the health 

impact of Hg emissions from U.S. power 

plants. 

Aquaculture Fish Exposure Pathway. 

The petitioners assert that our 

qualitative treatment of utilityattributable Hg exposure due to U.S. 

aquaculture fish was not adequate. EPA 

acknowledged in the Effectiveness TSD 

that we lacked ‘‘sufficient information 

to characterize the impact of utility 

emissions on aquaculture’’ due to the 

unique nature of the aquaculture 

pathway and gaps in the available data. 

By this statement, we meant that we 

were not able to provide a quantitative 

estimate then. Nor can we do so now. 

As explained in section 5 of the 

Reconsideration TSD, the concentration 

of MeHg in aquaculture fish is 

dependent on the MeHg content of the 

fish products fed to aquaculture fish. 

Thus, it is the location and type of the 

fish caught to make fish feed, as 

opposed to the location of aquaculture 

farms, that is relevant to assessing the 

utility-attributable concentration of 

MeHg in aquaculture fish. Furthermore, 

many of the commonly consumed 

aquaculture fish species (e.g., catfish) 

tend to have lower concentrations of 

MeHg than many of the commonly 

consumed marine fish, and the total 

amount of aquaculture fish consumed in 

the U.S. is substantially less than the 

total amount of marine fish consumed 

in the U.S. 

Having already concluded that an 

upper-bound estimate of utilityattributable Hg exposure due to marine 

fish is small and that the utilityattributable Hg exposure due to 

aquaculture is smaller than for marine 

fish, we reasonably conclude that the 

utility-attributable Hg exposure due to 

aquaculture fish is minimal. 

Estuarine Fish Exposure. EPA 

believes that the state of the science 

currently does not support a nationalscale quantitative analysis for this 

component of the exposure pathway. 

The studies cited as examples by the 

petitioners assumed a proportional 

relationship between declines in Hg 

deposition and declines in MeHg 

concentrations in estuarine fish. 

However, while such an assumption is 

supported for freshwater systems, it has 

not been endorsed by EPA or the 

scientific community as an appropriate 

method for characterizing the effects of 

Hg emissions reductions on MeHg 

estuarine fish concentrations. (See 

section 4.1 the Reconsideration TSD.) 

EPA finds that the available data 

indicate that the utility-attributable 

exposure to Hg from estuarine fish and 

shellfish will likely be small relative to 

that from self-caught freshwater fish. 

We estimate that the total exposure 

from the entire global Hg pool (i.e., all 

Hg sources, including, but, not limited 

to power plants,) associated with 

consumption of estuarine and nearcoastal fish is roughly one third of the 

exposure from all marine species. This 

fraction includes near-coastal fish 

caught on the Pacific Coast and other 

areas not significantly affected by U.S. 

power plants. This estimate of total Hg 

exposure from estuarine species is 

thought to be an upper bound because 

it is based on total Hg concentrations in 

shellfish rather than MeHg 

concentrations, the Hg species that is 

toxicologically most significant. (See 

section 4 of the Reconsideration TSD.) 

Of the Hg exposure associated with 

the consumption of estuarine and nearcoastal fish, we estimate that the utilityattributable fraction is small. As 

described in section 4 of the 

Reconsideration TSD, utility deposition 

after CAIR, and even more so after 

CAMR, is small in the coastal areas, 

especially taking into account estuarine 

and near-coastal fisheries on the West 

Coast. Finally, populated coastal regions 

like the Chesapeake Bay and Baltimore 

Harbor (Mason and Lawrence, 1999) 

will receive significant land-based (e.g., 

point source discharges) Hg inputs from 

wastewater effluents, municipal waste 

discharges, and historical Hg 

contamination that is slowly leaching 

from the watershed. 

Although we are not able to provide 

a national-scale quantitative estimate of 

the utility-attributable Hg exposure from 

the consumption of estuarine and nearcoastal species of fish and shellfish, for 

all of these reasons we conclude that 

this exposure pathway is small relative 

to the self-caught freshwater pathway. 

Commercial Freshwater Fish 

Exposure Pathway. The petitioners 

raised concerns over the contribution of 

commercial freshwater fish to human 

Hg exposures. Specifically, the 

petitioners are concerned that the 

annual Great Lakes commercial 

freshwater fish harvest is 17 million 

pounds and EPA’s air deposition 

modeling shows that relatively higher 

levels of utility-attributable Hg 

deposition, after CAIR and CAMR, 

occurs in the Great Lakes region. 

Freshwater commercial fish are not a 

significant exposure pathway because a 

total consumption of 17 million 

pounds/year (lb/yr) is small when 

compared to recreational freshwater fish 

consumption of 377 million lb/yr (see 

section 6, Reconsideration TSD), or 22 

times the Great Lakes’ commercial 

haul.5 Further, even though utilityattributable Hg deposition is 

comparatively higher around the Great 

Lakes and the regional watershed 

surrounding the Great Lakes as defined 

by the USGS, in comparison with the 

rest of the U.S., it is still only a small 

percentage of Hg deposition from all 

sources. Within small HUC cataloging 

units, the average percent of total Hg 

deposition that is attributable to power 

plants in these areas is approximately 

14 percent in 2001. By 2020 after CAIR, 

this will decrease to approximately 8 

percent. After CAMR, utility-attributable 

deposition decreases further to 

approximately 7.5 percent. Thus, 

following the assumptions in MMaps, 

approximately 10 percent of the Hg in 

the fish found in this area is attributable 

to power plants. 

As described above, the commercial 

freshwater harvest is small compared to 

recreational freshwater consumption. 

Additionally, only a portion of the 

commercial freshwater harvesting area 

is affected by comparatively higher 

concentrations of utility-attributable Hg 

deposition in μg/m2 (Lakes Michigan, 

Erie, and Huron), and the Great Lakes 

utility-attributable Hg deposition is not 

disproportionately higher than the 

immediately surroundings areas for 

62208 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 

6Petitioners note that EPA used different 

variations of the term ‘‘hotspot’’ in the final Section 

112(n) Revision Rule. As part of this 

reconsideration process, we are clarifying that we 

mean ‘‘utility hotspot.’’

recreational freshwater harvest. All of 

these factors lead us to believe that the 

commercial freshwater fish exposure 

pathway is still expected to be small 

relative to the national recreational 

freshwater exposure pathway. 

Although we are not able to provide 

a national-scale quantitative estimate of 

the utility-attributable Hg exposure from 

the consumption of commercial 

freshwater species of fish, for all of the 

reasons discussed above, we conclude 

that exposure from this pathway is 

small. 

b. Joint Consumption. In order to 

examine utility-attributable Hg exposure 

from total fish consumption 

quantitatively, it would be necessary to 

have information on the distribution of 

consumption of each type of fish—

recreational freshwater, commercial 

freshwater, recreational saltwater, etc—

as well as utility-attributable MeHg 

concentrations (either sufficiently 

accurate or upper-bound) for each type 

of fish. If we were able to identify the 

consumption of each type of fish as well 

as utility-attributable MeHg 

concentrations for each type of fish, 

then the IDI values from each type of 

fish could be calculated and added 

together to arrive at a total IDI value. 

Currently no such data exists. While we 

are not able to develop a quantitative 

estimate, for the reasons described 

above and in the Reconsideration TSD, 

EPA maintains that self-caught 

freshwater fish consumption represents 

the most significant exposure pathway 

for the populations with the highest 

utility-attributable exposure. 

At any given total fish consumption 

rate noted in our analyses, introducing 

aquaculture, marine, or estuarine fish 

into the diet of a self-caught freshwater 

fish consumer necessarily implies 

reducing consumption of self-caught 

freshwater fish (e.g., in order to 

maintain the same total fish 

consumption rate). As discussed in 

previous sections, because power plants 

contribute more Hg to freshwater fish 

species than to any other fish species, 

such substitution implies a lower IDI 

than is associated with consumption of 

self-caught freshwater fish alone, 

supporting the assertion that self-caught 

freshwater fish consumption represents 

the primary source of utility-attributable 

Hg exposure. Hence, for any given 

consumption rate, consumption of selfcaught freshwater fish alone leads to a 

higher IDI than that of any other 

combination of fish, supporting our 

decision to focus our analysis on 

consumption of self-caught freshwater 

fish. 

Table 6.4 of the Effectiveness TSD (US 

EPA 2005a) shows an array of 

consumption values combined with 

percentiles of MeHg concentration in 

freshwater fish. Results for 2020 with 

CAIR indicate that estimated IDIs are all 

well below 1 for the first three 

consumption rates. Estimated IDIs are 

over one for 99th percentile recreational 

fishers and mean subsistence Native 

Americans only when all of the fish 

consumed has MeHg concentrations at 

the 99th percent level, a convergence of 

factors which is unlikely to occur. (See 

70 FR 16024.) Estimated IDIs for the 

95th (170 g/day) and 99th percentile 

(295 (g/day) subsistence Native 

American consumers are above one for 

lower percentile MeHg concentration 

fish. It is unlikely that these consumers 

would add significant amounts of nonself-caught freshwater fish to their diets 

over the course of a year, but rather 

would substitute fish, again supporting 

our focusing on the consumption of selfcaught freshwater fish. 

Further, we have no evidence that 

high-end consumers of self-caught fish 

also consume other types of fish. It is 

highly unlikely that subsistence 

individuals eating 170 g/day or 295 g/ 

day of self caught freshwater fish would 

also consume significant quantities of 

marine fish. Even if we were to assume 

that these consumers do eat additional 

fish, the additional MeHg ingested by 

these consumers is believed to be small 

as described above. For scenarios in 

which the IDI value is below one, it is 

unlikely that a consumer would add a 

sufficient amount of other fish (with 

lower utility-attributable MeHg 

concentrations than freshwater fish) to 

their freshwater fish diet to cause their 

IDI to exceed one. 

4. Utility Hotspots 

In the final Section 112(n) Revision 

Rule, we explained that we do not 

believe that there will be any utility 

hotspots after implementation of CAIR. 

In the final Section 112(n) Revision 

Rule, we defined a ‘‘utility hotspot’’ as 

a waterbody with utility-attributable 

MeHg levels in excess of the MeHg 

water quality criterion of 0.3 ppm 

(milligram per kilogram (mg/kg)). The 

methodology for calculating an 

exceedence of the MeHg water quality 

criterion is explained in the 

Effectiveness TSD, including the 

approach of looking at the highest MeHg 

concentration fish species and averaging 

across samples within that species. 

The petitioners asserted that this 

definition of a ‘‘utility hotspot’’ differs 

from the definition in the NPR. The 

petitioners also asserted that EPA’s 

definition of a utility hotspot differs 

from the common understanding of that 

term and, therefore, obscures what the 

petitioners consider to be waterbodies 

with problematically high levels of 

MeHg. The petitioners further stated 

that the water quality criterion that EPA 

uses as the basis of its definition of a 

utility hotspot is defective in that it is 

based on assumptions about fish 

consumption habits that, the petitioners 

assert, are incorrect. The petitioners also 

stated that EPA’s definition fails to 

consider that even when utilityattributable Hg emissions may not be 

the sole cause of problematically high 

MeHg levels in a waterbody, they may 

contribute to existing background levels 

so that total MeHg levels are 

problematic. In addition, the petitioners 

objected to EPA’s position that utility 

hotspots should not be considered a 

problem because even if they do occur, 

EPA can address them in the future. 

Today, we grant the petitions to 

reconsider on the issue of how to define 

a ‘‘utility hotspot’’ for purposes of the 

finding concerning regulation of Utility 

Units under CAA section 112. We also 

solicit comment on our analysis and 

conclusions concerning utility hotspots, 

in section VI.J of the final Section 112(n) 

Revision Rule (70 FR 16025).6

5. Cross-Cutting Issues 

a. Regulation of Power Plant Hg 

Emissions Under CAA Section 112 

Beyond CAIR. In two separate sections 

of the final Section 112(n) Revision 

Rule, EPA makes statements comparing 

the costs of further controlling Hg 

emissions from coal-fired power plants 

to the benefits that may accrue from 

those additional reductions. The 

statements appear in the context of 

‘‘alternative arguments’’ that EPA 

provided in addition to its main 

argument that utility Hg emissions 

remaining after implementation of 

CAIR, and even more so after CAMR, are 

not reasonably anticipated to result in 

hazards to public health. (See 70 FR 

16025 (discussing CAA section 112(f)), 

and 70 FR 16028 (discussing utilityattributable Hg emissions in the context 

of the global pool).) 

The Reconsideration TSD contains 

additional information supporting 

EPA’s statements about the costs and 

benefits of further reductions of Hg 

emissions from Utility Units. As 

explained in the Reconsideration TSD, 

we evaluated the costs and benefits of 

regulating under section 112 beyond the 

level of CAIR using a screening analysis. 

In this regard, we presumed that the 

costs of regulating under section 112 are 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 62209 

at least as great as the costs of regulating 

under CAMR. This assumption is a 

lower bound estimate of the potential 

costs of regulating under section 112. 

See Cost and Energy Impacts—

Technical Support Document (Cost 

TSD). We further estimate the 

neurological benefits of the complete 

elimination of utility-attributable Hg 

after CAIR, which is an upper-bound 

estimate of the health benefits of 

regulating under section 112 beyond 

CAIR. As explained below, the lower 

bound cost of regulating under section 

112 beyond the level of CAIR far 

exceeds the upper bound estimate of the 

benefits of such regulation. Therefore, 

regulating under section 112 beyond the 

level of CAIR would not be justified. 

In particular, in the Reconsideration 

TSD, EPA performed an analysis of the 

upper bound of benefits of reduced 

intelligent quotient (IQ) decrements that 

could be obtained from eliminating 

exposure to U.S. power plant Hg 

emissions after CAIR. The analysis is a 

bounding analysis in the sense that the 

resulting health benefit estimate is 

almost certainly above the true health 

benefits of improved neurological 

performance associated with reducing 

Hg emissions from power plants. 

The benefit calculation follows 

directly from the IDI values presented in 

table 6–4 of the Effectiveness TSD and 

the IDI values calculated for the marine 

pathway in the Reconsideration TSD. 

Using a dose-response relationship, we 

translate these IDI values into 

neurological improvements, using IQ 

points as a surrogate, were power plant 

Hg emissions to be eliminated. We then 

estimate the monetized value of these IQ 

point increments and discount these 

future monetized benefits to account for 

the ecosystem response time. 

The total annualized cost of CAMR 

exceeds the upper bound estimate of the 

total health benefits from eliminating 

utility-attributable Hg exposure in 2020 

after the implementation of CAIR. It 

should be noted, however, that CAMR 

does not eliminate all Hg emissions and 

that CAMR’s cost estimate is based on 

a market-based approach, generally 

considered to be one of the lowest cost 

regulatory options. 

Given that the total monetized costs of 

CAMR (which only partially eliminates 

remaining power plant Hg emissions 

after CAIR) exceed the total monetized 

benefits of eliminating all remaining 

power plant Hg emissions, it is 

reasonable to conclude that the cost of 

requiring further reductions in U.S. 

power plant Hg emissions beyond CAIR 

would significantly outweigh the 

benefits associated with reductions in 

IQ decrements. We request comment on 

these analyses and calculations. 

Moreover, as noted below, even if 

EPA were to undertake a similar 

analysis for non-Hg HAP emissions from 

coal-fired Utility Units, we would likely 

conclude that the benefits from 

additional regulation of the non-Hg HAP 

under section 112 were not justified by 

the costs. This statement is supported 

by the Utility Study Report to Congress 

(see http://www.epa.gov/ttn/atw/ 

combust/utiltox/utoxpg.html#TEC) The 

health benefits of eliminating non-Hg 

HAP would likely reduce cancer cases 

by only a few per year. (See ES–5 highend estimate of 1.3 cancer cases per year 

from HAP from inhalation from coalfired power plants). The multi-pathway 

assessment increases this estimate 

somewhat (see, for example, the 

estimate that radionuclides may 

increase risk by a small amount. ‘‘The 

estimated cancer incidence in the U.S., 

due to emissions and dispersion of 

radionuclides within 50 km of each 

utility, is estimated to be 0.3 cancer 

deaths/yr.’’ ES22.) The non-cancer risks 

are small. (‘‘The highest estimated longterm ambient HAP concentration was 10 

times below the RfC.’’) 

Using economic valuation of these 

health endpoints would not lead to 

significant monetized health benefits 

(see U.S. EPA, 2000, Guidelines for 

Preparing Economic Analyses, EPA 

240–R–00–003, for a discussion of the 

Agency’s methodology for valuing 

reduced premature mortality and 

morbidity). The costs of controls to 

reduce non-Hg HAP would be far 

greater. (See 70 FR 25201 for a 

discussion of the cost of scrubbers.) We 

request comment on these analysis, 

calculations, and conclusions. 

b. EPA’s Selection of 2020 as the Date 

for Measuring the Remaining Emissions. 

Some petitioners argue that EPA should 

not have based its decisions regarding 

hazards to public health based on 

emissions as of 2020; rather, EPA 

should have looked at earlier dates that 

tracked those that would apply if a CAA 

section 112(d) standard were 

promulgated, followed by a residual risk 

review under CAA section 112(f). 

For the reasons stated in the final 

Section 112(n) Revision Rule, EPA 

continues to believe that it must look at 

what emissions from Utility Units will 

be after imposition of the requirements 

of the CAA, here CAIR, and 

independently CAMR, when 

determining whether it would be 

appropriate and necessary to regulate 

Utility Units under CAA section 112. 

Thus, it was reasonable for EPA to look 

at what Utility Unit Hg emissions were 

predicted to be after imposition of CAIR, 

and, independently, CAMR. 

Nonetheless, after the Section 112(n) 

Revision Rule was finalized, EPA 

modeled scenarios for the years 2010, 

2015, and 2020 that included the CAIR, 

CAMR, and Clean Air Visibility Rule 

(CAVR) programs. For the reasons set 

forth below and in section 10 of the 

Reconsideration TSD, we believe this 

modeling supports our position that the 

expected Hg deposition with CAIR plus 

CAMR in 2015 is expected to be similar 

to the Hg deposition with CAIR plus 

CAMR in 2020. (See Modeling TSD, 

section V.B.) EPA takes comment on our 

tentative conclusion that the modeling 

shows that most of the reductions from 

CAIR will be achieved by 2010. 

Moreover, as we noted in the final 

Section 112(n) Revision Rule, CAIR 

targets the form of Hg of the greatest 

importance for local and regional 

deposition purposes (i.e., ionic or 

oxidized Hg, also know as reactive 

gaseous Hg (RGM)). (See 70 FR 16011, 

n.37). As noted in section II of the 

Modeling TSD, Hg reductions associated 

with CAIR co-control result in a 62 

percent reduction in RGM by 2020. 

However, because of the 2010 Phase I 

CAIR cap, most of these reductions in 

RGM are expected to occur by that time. 

Reductions related to CAMR, on the 

other hand, lead to proportionately 

more reductions in elemental Hg 

because of the reliance on Hg-specific 

controls for the 2018 cap. 

First, CAVR indicates that States that 

opt into the CAIR trading program can 

satisfy CAVR without imposing further 

requirements on eligible utility sources. 

(See 70 FR 39137 and 40 CFR 

51.308(e)(4).) Therefore, in the CAIR 

States, it is reasonable to presume that 

there would be no further reductions in 

utility Hg emissions from CAVR. Thus, 

in these States, it is reasonable to 

presume that the modeled CAIR/CAMR/ 

CAVR reductions in Hg emissions are a 

fair representation of CAIR/CAMR Hg 

reductions. 

Second, the most readily depositable 

Hg emissions are RGM emissions. As 

discussed in the Reconsideration TSD, 

the CAIR/CAMR/CAVR runs show a 

significant drop in modeled utility RGM 

emissions of almost 11 tons between 

2001 (20.6 tons) and 2010 (9.7 tons) 

(primarily, as noted above, as a result of 

the co-control effected by the CAIR 

Phase I cap). Much smaller reductions 

occur between 2010 and 2015 (2.5 tons), 

and even smaller reductions between 

2015 and 2020 (1.1 tons) (because of the 

large reductions in RGM emissions 

already effected and because of the 

increased reliance on the CAMR Hgspecific controls for the 2018 Phase II 

cap). Additionally, there is a similarly 

62210 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 

significant drop in the modeled utilityattributable Hg deposition from 2001 to 

2010 (because of the large reductions in 

RGM), and very small changes in the 

utility-attributable Hg deposition from 

2010 to 2015 and from 2015 to 2020 

(because of the increased reliance on 

Hg-specific controls to meet the 2018 

Phase II CAMR cap, which results in 

increased reductions in elemental Hg 

emissions—a form that does not readily 

deposit). Finally, we would expect that, 

in accordance with our assumptions in 

the MMaps model for purposes of this 

rulemaking, reductions in utilityattributable MeHg levels in fish tissue 

by 2010 and 2015 would parallel the 

reductions in utility-attributable Hg 

deposition by those years. 

We ask for comment on EPA’s 

position that the above-noted modeling 

results are a fair indicator or 

representation of the levels of utilityattributable Hg emissions and 

deposition that one could reasonably 

anticipate in the CAIR States in 2010 

and 2015 for CAIR/CAMR. 

D. EPA’s Decision Related to Nickel (Ni) 

Emissions From Oil-Fired Utility Units 

In the final rule, EPA determined that 

it is neither appropriate nor necessary to 

regulate oil-fired units on the basis of 

nickel (Ni) emissions. In support of that 

finding, EPA explained that it was ‘‘not 

appropriate to regulate oil-fired Utility 

Units under CAA section 112 because 

we do not anticipate that the remaining 

level of utility Ni emissions will result 

in hazards to public health’’ (70 FR 

16008). 

Petitioners contend that EPA did not 

quantify the cancer risk resulting from 

the changed fuel mixes at oil-fired units, 

and did not establish that the changes 

in fuel mix upon which EPA relied in 

making its determination are permanent 

and enforceable. 

We are granting reconsideration of the 

Agency’s conclusion that it is not 

appropriate or necessary to regulate oilfired units under CAA section 112 on 

the basis of Ni emissions. (See section 

IV.B.1 of the final Section 112(n) 

Revision Rule.) EPA is particularly 

interested in information related to the 

primary factors supporting its decision 

not to regulate Ni emissions from oilfired Utility Units under CAA section 

112, including those it identified in the 

final Section 112(n) Revision Rule. 

Those factors are: (1) The low level of 

risk presented by Ni emissions from oilfired Utility Units as documented in the 

Report to Congress; (2) uncertainty 

regarding the health impacts of Ni 

emissions from oil-fired Utility Units; 

(3) the trend toward a reduction in the 

utilization of oil for electric power 

generation; and, (4) the fact that EPA is 

aware of no information regarding the 

health impacts of Ni emissions from the 

plants located in Hawaii that would 

justify regulating those units, much less 

the entire class of oil-fired Utility Units, 

under CAA section 112. 

In summary, EPA is specifically 

seeking the following: 

(1) Information indicating that the 

trend away from the use of oil in the 

generation of electricity will not be 

maintained. 

(2) Information indicating that there 

are oil-fired power plants other than the 

11 plants identified in the Report to 

Congress and considered in the 

December 2000 finding with estimated 

risk values greater than 1 × 10¥6. 

(3) Specific information indicating 

that any of the 11 identified plants pose 

a greater risk than EPA has considered 

to date. 

E. Documents Identified by Petitioners 

That Are Dated After the Close of the 

Public Comment Period 

Petitioners also identify certain 

documents that are dated after the close 

of the public comment period, which 

they believe are of central relevance to 

the final Section 112(n) Revision Rule. 

In particular, petitioners argue that the 

documents are relevant to EPA’s 

determination that the levels of utilityattributable Hg remaining after the 

implementation of CAIR, and 

independently after CAMR, are not 

reasonably anticipated to result in 

hazards to public health. As explained 

above, EPA is granting reconsideration 

on section VI of the final Section 112(n) 

Revision Rule, which sets forth EPA’s 

methodologies and its conclusion that 

after implementation of CAIR, and 

independently CAMR, utilityattributable Hg emissions are not 

reasonably anticipated to result in 

hazards to public health. During the 

public comment period for this notice, 

petitioners and any other commenters 

may submit any documents that they 

believe are relevant to section VI of the 

final Section 112(n) Revision Rule or to 

any other issue on which we are 

granting reconsideration today, 

including the documents cited by 

petitioners. We will consider any such 

documents and any other new 

information at the same time we 

consider all significant comments 

received during the comment period on 

the reconsideration issues. 

We do note, however, that one of the 

documents cited by petitioners is a 

study submitted by the Northeast States 

for Coordinated Air Use Management 

(NESCAUM) entitled, ‘‘Economic 

Valuation of Human Health Benefits of 

Controlling Mercury Emissions from 

U.S. Coal-fired Power Plants’’ (February 

22, 2005; OAR–2002–0056–5749, OAR–

2002–0056–5752). After issuance of the 

final Section 112(n) Revision Rule, EPA 

did address this study publicly in 

response to an inquiry from Senators 

Leahy, Jeffords, Boxer, and Kerry that 

we received. We set forth our position 

on that study in an April 5, 2005 reply 

to them and have included this response 

in the Reconsideration TSD (and in the 

docket). Please refer to that discussion 

in the Reconsideration TSD in 

formulating any comments on the issues 

relevant to this reconsideration notice. 

V. Clarification and Correction of 

Statements Made in Final Section 

112(n) Revision Rule 

In addition to commencing a 

reconsideration proceeding on the above 

issues, EPA by this notice is also 

clarifying or correcting some statements 

made in the final Section 112(n) 

Revision Rule. The clarifications and 

corrections can be categorized generally 

as follows: (a) Clarification of confusing 

explanatory text and (b) correction of 

incorrect factual statements. Below, we 

identify each clarification or correction 

to the explanatory text at 70 FR 15994 

and provide a brief explanation for the 

revised language. 

(1) On page 16024, column 3, in the 

last full paragraph, after the second 

sentence, change the first sentence to 

read as follows: ‘‘Applying the risk 

factors identified above to utility Hg 

emissions in the 112(n)(1)(A) context, 

EPA concludes that utility Hg emissions 

remaining after implementation of 

CAIR, and even more so after CAMR, are 

not reasonably anticipated to result in 

hazards to public health.’’

We are revising this sentence because 

the original sentence (‘‘ * * * 

unacceptable hazards to public health 

*** ’’) in the preamble to the final 

Section 112(n) Revision Rule is 

inconsistent with the wording of CAA 

section 112(n)(1)(A), which is the 

standard that EPA applies when making 

its final decision. 

(2) On page 16022 in column 1, last 

paragraph, and in column 3, first 

paragraph, and on page 16024 in 

column 2, second full paragraph, EPA 

indicates that data from a study by the 

Great Lakes Indian Fish and Wildlife 

Commission (GLIFWC) on fish 

consumption rates by Ojibwa Great 

Lakes tribes had not been peer 

reviewed. However, we have 

subsequently learned that this is a peerreviewed study. We, nevertheless, 

continue to believe that there are 

reasons for not using the Ojibwa study. 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 62211 

Two reasons for not using the Ojibwa 

study not related to the peer review 

status of the study were cited in the 

final rule. Specifically, commenters did 

not include information on annual 

average consumption rates or the 

percentage of those fish consumers that 

are women of childbearing age and, 

based on EPA’s information, the Tribes 

do not reside in an area that appears to 

be significantly impacted by utility Hg 

emissions. Thus, despite having 

extremely high consumption rates, there 

are no data in the record that suggest 

that members of the Tribe would be 

exposed above the RfD (above an IDI 

value of 1) as a result of utilityattributable emissions. (See 70 FR 16012 

and 70 FR 16021 for a discussion of the 

RfD and the IDI, respectively.) 

Moreover, EPA notes that (a) the study 

does not clearly identify the population 

percentile that the data represent (i.e., 

what fraction of fishers is represented 

by the various consumption rates given), 

and without this information, we can 

not know whether the information is 

relevant for a 90th percentile, 95th 

percentile, 99th percentile, or max 

value; (b) the study covers individuals 

not residing in the most impacted 

portions of our study area, therefore, 

using a more generalized and broadly 

representative estimate such as EPA’s 

recommended subsistence fisher rate, is 

a better approach; and (c) the data are 

seasonal, therefore, one cannot 

necessarily translate the date into 

annual-averaged values (i.e., what is 

consumption during periods other than 

the high-consuming fishing seasons). 

In addition, EPA, in the Effectiveness 

TSD, did evaluate a 99th percentile 

subsistence fisher consumption rate that 

was 295 grams per day (g/day) (this 

value was based on the EPA mean and 

a 95th percentile subsistence fisher 

consumption rate of 60 and 170 g/day, 

respectively; we fitted a log-normal 

distribution and took the 99th percentile 

from this). This 295 g/day value is at the 

high end of the values provided in the 

Ojibwa study; therefore, EPA did use a 

consumption value that was at the high 

end of the values presented in the 

GLIFWC study. 

VI. Statutory and Executive Order (EO) 

Reviews 

A. EO 12866: Regulatory Planning and 

Review 

Under EO 12866 (58 FR 51735; 

October 4, 1993), EPA must determine 

whether the regulatory action is 

‘‘significant’’ and, therefore, subject to 

review by the Office of Management and 

Budget (OMB) and the requirements of 

the EO. The EO defines a ‘‘significant 

regulatory action’’ as one that is likely 

to result in a rule that may: 

(1) Have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

State, local, or Tribal governments or 

communities; 

(2) Create a serious inconsistency or 

otherwise interfere with an action taken 

or planned by another agency; 

(3) Materially alter the budgetary 

impact of entitlement, grants, user fees, 

or loan programs, or the rights and 

obligations of recipients thereof; or 

(4) Raise novel legal or policy issues 

arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in the EO. 

Pursuant to the terms of EO 12866, 

OMB has notified us that it considers 

this a ‘‘significant regulatory action’’

within the meaning of the EO. We have 

submitted this reconsideration notice to 

OMB for review. However, EPA 

determined that the final Section 112(n) 

Revision Rule would not have a 

significant economic impact. Similarly, 

today’s notice of reconsideration does 

not have a significant economic impact. 

Changes made in response to OMB 

suggestions or recommendations will be 

documented in the public record. All 

written comments from OMB to EPA 

and any written EPA response to any of 

those comments are included in the 

docket listed at the beginning of this 

notice under ADDRESSES. 

B. Paperwork Reduction Act 

The final Section 112(n) Revision 

Rule did not contain any information 

collection requirements and therefore 

was not subject to the Paperwork 

Reduction Act (44 U.S.C. 3501 et seq.) 

(PRA). Similarly, this action does not 

contain any information collection 

requirements and, therefore, is not 

subject to the PRA. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act 

generally requires an agency to prepare 

a regulatory flexibility analysis of any 

rule subject to notice and comment 

rulemaking requirements under the 

Administrative Procedure Act or any 

other statute unless the agency certifies 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. Small entities 

include small businesses, small not-forprofit enterprises, and small 

governmental jurisdictions. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small business 

as defined by the Small Business 

Administration’s (SBA) regulations at 13 

CFR 121.201; (2) a small governmental 

jurisdiction that is a government of a 

city, county, town, school district, or 

special district with a population of less 

than 50,000; and (3) a small 

organization that is any not-for-profit 

enterprise which is independently 

owned and operated and is not 

dominant in its field. 

We certify that this notice of 

reconsideration will not have a 

significant economic impact on a 

substantial number of small entities 

because it imposes no regulatory 

requirements. We continue to be 

interested in the potential impacts of the 

Section 112(n) Revision Rule on small 

entities and welcome comments on 

issues related to such impacts. 

D. Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (Pub. L. 104–4) 

(UMRA), establishes requirements for 

Federal agencies to assess the effects of 

their regulatory actions on State, local, 

and Tribal governments and the private 

sector. Under UMRA section 202, 2 

U.S.C. 1532, EPA generally must 

prepare a written statement, including a 

cost-benefit analysis, for any proposed 

or final rule that ‘‘includes any Federal 

mandate that may result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

* * * in any one year.’’ A ‘‘Federal 

mandate’’ is defined under section 

421(6), 2 U.S.C. 658(6), to include a 

‘‘Federal intergovernmental mandate’’

and a ‘‘Federal private sector mandate.’’

A ‘‘Federal intergovernmental 

mandate,’’ in turn, is defined to include 

a regulation that ‘‘would impose an 

enforceable duty upon State, local, or 

Tribal governments,’’ section 

421(5)(A)(i), 2 U.S.C. 658(5)(A)(i), 

except for, among other things, a duty 

that is ‘‘a condition of Federal 

assistance,’’ section 421(5)(A)(i)(I). A 

‘‘Federal private sector mandate’’

includes a regulation that ‘‘would 

impose an enforceable duty upon the 

private sector,’’ with certain exceptions, 

section 421(7)(A), 2 U.S.C. 658(7)(A). 

We determined that the final Section 

112(n) Revision Rule did not contain a 

Federal mandate that may result in 

expenditures of $100 million or more 

for State, local, or Tribal governments, 

in the aggregate, or the private sector in 

any 1 year. Thus, the final Section 

112(n) Revision Rule was not subject to 

the requirements of UMRA sections 202 

and 205. In addition, we determined 

that the final Section 112(n) Revision 

Rule contained no regulatory 

62212 Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 

requirements that might significantly or 

uniquely affect small governments 

because it contained no regulatory 

requirements that apply to such 

governments or imposed obligations 

upon them. Therefore, the final Section 

112(n) Revision Rule was not subject to 

the requirements of UMRA section 203. 

Today’s notice of reconsideration 

changes none of the regulatory 

requirements of the final Section 112(n) 

Revision Rule and, thus, is also not 

subject to the requirements of UMRA. 

E. Executive Order 13132: Federalism 

Executive Order 13132 (64 FR 43255; 

August 10, 1999) requires EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

State and local officials in the 

development of regulatory policies that 

have federalism implications.’’ ‘‘Policies 

that have federalism implications’’ are 

defined in the Executive Order to 

include regulations that have 

‘‘substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government.’’

The final Section 112(n) Revision 

Rule did not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government, as specified in 

Executive Order 13132. In addition, 

today’s notice does not impose any 

additional requirements. Thus, 

Executive Order 13132 did not apply to 

the final Section 112(n) Revision Rule. 

For the same reasons, today’s notice 

of reconsideration does not have 

federalism implications. Thus, 

Executive Order 13132 does not apply 

to today’s notice of reconsideration. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175 (65 FR 67249; 

November 6, 2000) requires EPA to 

develop an accountable process to 

ensure ‘‘meaningful and timely input by 

tribal officials in the development of 

regulatory policies that have tribal 

implications.’’ ‘‘Policies that have tribal 

implications’’ are defined in the EO to 

include regulations that have 

‘‘substantial direct effects on one or 

more Indian tribes, on the relationship 

between the Federal government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal government and Indian tribes.’’

The final Section 112(n) Revision 

Rule did not have Tribal implications as 

defined by Executive Order 13175. It 

did not have a substantial direct effect 

on one or more Indian Tribes, in that it 

was a determination not to regulate 

power plants under CAA section 112, 

and, therefore, imposed no burden on 

tribes. Furthermore, the final Section 

112(n) Revision Rule did not affect the 

relationship or distribution of power 

and responsibilities between the Federal 

government and Indian Tribes. The 

CAA and the Tribal Authority Rule 

establish the relationship of the Federal 

government and Tribes in implementing 

the CAA. Because the final Section 

112(n) Revision Rule did not have 

Tribal implications, Executive Order 

13175 did not apply. Furthermore, this 

notice of reconsideration does not 

impose any additional requirements 

and, thus, is also not subject to 

Executive Order 13175. 

Although we have determined that 

the final Section 112(n) Revision Rule 

and this notice are not subject to 

Executive Order 13175, we recognize 

that Tribes have expressed concern 

about the rule’s impact upon human 

health and the environment in Indian 

Country and the scope of EPA’s 

consultation with Tribes on these 

issues. In recognition of these concerns 

and EPA’s trust responsibility to Tribes, 

and because this reconsideration 

includes additional scientific and 

technical analysis, such as on fish 

consumption levels by Tribes and the 

extent of the impact of utilityattributable Hg on fish tissue, EPA is 

considering outreach strategies to 

further explain our findings to Tribes 

beyond this notification and the 

requirements of Executive Order 13175. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

Executive Order 13045 (62 FR 19885; 

April 23, 1997) applies to any rule that: 

(1) Is determined to be ‘‘economically 

significant,’’ as defined under Executive 

Order 12866, and (2) concerns an 

environmental health or safety risk that 

EPA has reason to believe may have a 

disproportionate effect on children. If 

the regulatory action meets both criteria, 

EPA must evaluate the environmental 

health or safety effects of the planned 

rule on children and explain why the 

planned regulation is preferable to other 

potentially effective and reasonably 

feasible alternatives considered by EPA. 

The final Section 112(n) Revision 

Rule was not subject to Executive Order 

13045 because it was not an 

economically significant regulatory 

action as defined by EO 12866. In 

addition, EPA interprets Executive 

Order 13045 as applying only to those 

regulatory actions that are based on 

health and safety risks, such that the 

analysis required under section 5–501 of 

the Executive Order has the potential to 

influence the regulations. The final 

Section 112(n) Revision Rule was not 

subject to Executive Order 13045 

because it did not include regulatory 

requirements based on health or safety 

risks. This notice of reconsideration 

imposes no requirements and, thus, also 

is not subject to Executive Order 13045. 

Nonetheless, in making its 

determination as to whether it is 

‘‘appropriate and necessary’’ to regulate 

utility units under CAA section 112, 

EPA considered the effects of utility 

HAP emissions on both the general 

population and sensitive 

subpopulations, including children. 

H. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

Executive Order 13211 (66 FR 28355; 

May 22, 2001) provides that agencies 

shall prepare and submit to the 

Administrator of the Office of 

Regulatory Affairs, OMB, a Statement of 

Energy Effects for certain actions 

identified as ‘‘significant energy 

actions.’’ Section 4(b) of Executive 

Order 13211 defines ‘‘significant energy 

actions’’ as ‘‘any action by an agency 

(normally published in the Federal 

Register) that promulgates or is 

expected to lead to the promulgation of 

a final rule or regulation, including 

notices of inquiry, advance notices of 

final rulemaking, and notices of final 

rulemaking: (1)(i) That is a significant 

regulatory action under EO 12866 or any 

successor order, and (ii) is likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy; or 

(2) that is designated by the 

Administrator of the Office of 

Information and Regulatory Affairs as a 

‘‘significant energy action.’’ Although 

the final Section 112(n) Revision Rule 

was determined to be a significant 

regulatory action under Executive Order 

12866, it will not have a significant 

adverse effect on the supply, 

distribution, or use of energy. Further, 

we conclude that today’s notice of 

reconsideration is not likely to have any 

adverse energy effects. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

Section 12(d) of the NTTAA of 1995 

(Pub. L. 104–113; 15 U.S.C. 272 note) 

directs EPA to use voluntary consensus 

standards in their regulatory and 

procurement activities unless to do so 

would be inconsistent with applicable 

Federal Register / Vol. 70, No. 208 / Friday, October 28, 2005 / Proposed Rules 62213 

law or otherwise impracticable. 

Voluntary consensus standards are 

technical standards (e.g., material 

specifications, test methods, sampling 

procedures, business practices) 

developed or adopted by one or more 

voluntary consensus bodies. The 

NTTAA requires EPA to provide 

Congress, through the OMB, with 

explanations when EPA decides not to 

use available and applicable voluntary 

consensus standards. 

The final Section 112(n) Revision 

Rule did not involve technical standards 

and, therefore, the NTTAA did not 

apply. Similarly, this notice of 

reconsideration does not involve 

technical standards and, therefore, the 

NTTAA does not apply. 

Dated: October 21, 2005. 

Stephen L. Johnson, 

Administrator. 

[FR Doc. 05–21456 Filed 10–27–05; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 60 

[OAR–2002–0056; FRL–7989–2] 

RIN 2060–AN50 

Standards of Performance for New and 

Existing Stationary Sources: Electric 

Utility Steam Generating Units: 

Reconsideration 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of reconsideration of 

final rule; request for public comment; 

notice of public hearing. 

SUMMARY: On May 18, 2005, pursuant to 

section 111 of the Clean Air Act (CAA), 

EPA published a final rule, entitled 

‘‘Standards of Performance for New and 

Existing Stationary Sources: Electric 

Steam Generating Units’’ (the Clean Air 

Mercury Rule or CAMR; see 70 FR 

28606). The final rule establishes 

standards of performance for emissions 

of mercury (Hg) from new and existing 

coal-fired electric utility steam 

generating units (Utility Units or EGU). 

After the notice of final rule appeared 

in the Federal Register, the 

Administrator received four petitions 

for reconsideration of certain aspects of 

CAMR. In this notice, EPA is 

announcing reconsideration of specific 

issues in CAMR, and we are requesting 

comment on those issues. 

We are seeking comment only on the 

aspects of CAMR specifically identified 

in this notice. We will not respond to 

any comments addressing other 

provisions of CAMR or any related 

rulemakings. 

DATES: Comments. Comments must be 

received on or before December 19, 

2005. Because of the need to resolve the 

issues raised in this notice in a timely 

manner, EPA will not grant requests for 

extensions beyond this date. 

Public Hearing. A public hearing will 

be held on November 17, 2005. For 

further information on the public 

hearing and requests to speak, see the 

ADDRESSES section of this preamble. 

ADDRESSES: Comments. Submit your 

comments, identified by ‘‘Docket ID No. 

OAR–2002–0056 (Legacy Docket ID No. 

A–92–55),’’ by one of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• Agency Web site: http:// 

docket.epa.gov/edkpub/index.jsp. 

EDOCKET, EPA’s electronic public 

docket and comment system, is EPA’s 

preferred method for receiving 

comments. Follow the on-line 

instructions for submitting comments. 

• E-mail: a-and-r-docket@epa.gov. 

• Fax: (202) 566–1741. 

• Mail: Air and Radiation Docket and 

Information Center, U.S. EPA, Mailcode: 

6102T, 1200 Pennsylvania Avenue, 

NW., Washington, DC 20460. 

• Hand Delivery: Air and Radiation 

Docket and Information Center, U.S. 

EPA, Room B102, 1301 Constitution 

Avenue, NW., Washington, DC. Such 

deliveries are only accepted during the 

Docket’s normal hours of operation, and 

special arrangements should be made 

for deliveries of boxed information. 

Instructions. Direct your comments to 

Docket ID No. OAR–2002–0056 (Legacy 

Docket ID No. A–92–55). EPA’s policy is 

that all comments received will be 

included in the public docket without 

change and may be made available 

online at http://www.epa.gov/edkpub/ 

index.jsp, including any personal 

information provided, unless the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI or otherwise 

protected through EDOCKET, 

regulations.gov, or e-mail. The EPA 

EDOCKET and the Federal 

regulations.gov Web sites are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

EDOCKET or regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. 

Public Hearing. The public hearing 

will run from 8 a.m. to 5 p.m., Eastern 

time, and will be held in Room 111C at 

the EPA facility, Research Triangle Park, 

NC. Persons interested in attending the 

hearing or wishing to present oral 

testimony should notify Ms. Pamela 

Garrett at least 2 days in advance of the 

public hearing (see FOR FURTHER

INFORMATION CONTACT section of this 

preamble). The public hearing will 

provide interested parties the 

opportunity to present data, views, or 

arguments concerning this notice. If no 

one contacts Ms. Garrett in advance of 

the hearing with a request to present 

oral testimony at the hearing, we will 

cancel the hearing. The record for this 

action will remain open for 30 days after 

the date of the hearing to accommodate 

submittal of information related to the 

public hearing. 

Docket. All documents in the docket 

are listed in the EDOCKET index at 

http://www.epa.gov/edkpub/index.jsp. 

Although listed in the index, some 

information is not publicly available, 

i.e., CBI or other information whose 

disclosure is restricted by statute. 

Certain other material, such as copy 

righted material, is not placed on the 

Internet and will be publicly available 

only in hard copy form. Publicly 

available docket materials are available 

either electronically in EDOCKET or in 

hard copy at the Air and Radiation 

Docket and Information Center, U.S. 

EPA, Room B102, 1301 Constitution 

Avenue, NW., Washington, DC. The 

Public Reading Room is open from 8:30 

a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the Air and 

Radiation Docket and Information 

Center is (202) 566–1742. 

FOR FURTHER INFORMATION CONTACT: 

Contact Mr. William Maxwell, 

Combustion Group, Emission Standards 

Division, Mail Code: C439–01, U.S.