Washington, D.C. – A bipartisan group of thirteen Senators, led by U.S. Sen. Jim Jeffords, I – Vt., today called on the Bush Administration to propose strong mercury emission reductions in a federal rule scheduled to be released later this year. In a letter to the Office of Management and Budget and the Environmental Protection Agency, the Senators urge the administration to set maximum achievable control technology (MACT) standards to reduce utility emissions of mercury as required under the Clean Air Act. Per a settlement agreement, the proposed federal rule must be signed by December 15, 2003, and compliance must start four years later, by December 2007. Every other major industrial source of mercury emissions to the air currently now has control requirements, except for utilities. Jeffords, the ranking member of the Senate Environment and Public Works Committee, said, “We expect the Administration to abide by the law, and put forward a decent proposed rule that would result in significant reductions of mercury pollution from power plants. Mercury has a devastating effect on our environment and on public health, particularly on pregnant woman and infants. The time is well past due for EPA to regulate all sources of this potent air toxic. The technology is available now and the damage has to be stopped." The letter was signed by: U.S. Sens. Jim Jeffords, I – Vt., Patrick Leahy, D – Vt., Olympia Snowe, R – Me., Susan Collins, R – Me., Joseph Lieberman, D – Conn., Lincoln Chafee, R – RI, Frank Lautenberg, D – NJ, Jack Reed, D – RI, Edward Kennedy, D – Mass., John Kerry, D – Mass., Hillary Clinton, D – NY, Charles Schumer, D – NY, and Richard Durbin, D – Il. The following is the text of the letter. ------------------------------ November 5, 2003 The Honorable Joshua B. Bolton
The Office of Management and Budget
725 17th Street, NW
Washington, DC 20503 The Honorable Michael O. Leavitt
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW
Washington, DC 20460 Dear Director Bolten and Administrator Leavitt: We are writing to urge the Office of Management and Budget and the Environmental Protection Agency to promulgate expeditiously a proposed rule to set maximum achievable control technology (MACT) standards to reduce utility emissions of hazardous air pollutants (HAPs), including mercury, as required by the Clean Air Act. As you may know, this proposed rule must comport with, at a minimum, the requirements of sections 112 and 307 of the Clean Air Act, the Administrative Procedures Act, Executive Order 12866, and all applicable settlement agreements. News accounts suggest that the rule is being written to include an arbitrary reduction requirement and compliance date that are not justifiable given the Clean Air Act’s specific language, and in a manner that may not produce a defensible proposal. The Clean Air Act Amendments of 1990 require EPA to promulgate national technology-based standards for utilities that emit hazardous air pollutants, if deemed appropriate and necessary by the Administrator. After many years of Agency delay on that utility MACT standards rule, a settlement agreement was entered into between EPA and environmental organizations. The settlement agreement required EPA to sign a determination of whether regulation of utility HAP emissions is appropriate and necessary, and to follow a positive determination with a proposed and finalized rule, by dates certain. Pursuant to that settlement agreement, as last modified in November 1998, EPA Administrator Carol Browner finally made a regulatory determination in December 2000 that it was appropriate and necessary to regulate utility HAP emissions through the MACT regulatory process. Under this agreement, EPA must now publish a proposed utility MACT rule by December 15, 2003, and a final rule by December 15, 2004, with the compliance date set for December of 2007. In general, the Clean Air Act Amendments of 1990 require EPA to set a MACT standard that achieves the maximum degree of reduction in emissions of hazardous air pollutants from all new and existing major and area stationary sources, taking into consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements. But, section 112 of that Act defines MACT for new facilities as an emission standard no less stringent than what is achieved in practice by the best-performing similar source for which the Administrator has emissions information. Existing sources are required, at a minimum, to meet the average emissions of the best performing 12% of existing units, though EPA can set a more stringent standard. Section 112 (f) also requires EPA to assess the remaining (i.e., "residual") risks posed to human health within eight years after the promulgation of MACT standards, and regulate sources of HAPs to provide an ample margin of safety to protect public health. The EPA has moved responsibly in the past to regulate mercury emissions from all major non-utility sources, leaving utilities as the largest source of mercury air emissions in the country. According to data collected by EPA and presented to industry groups in December 2001, there are technologies available today to reduce mercury and other HAPs from utilities in an efficient and economical manner. In fact, EPA’s own analysis shows that several of today’s technologies can control mercury emissions from coal-fired utilities by 99% for new sources, and by 98% for existing sources, without subcategorization by coal type. The upcoming utility MACT proposed rule must reflect this technological capability. Furthermore, given that this technology is already available today, there is no defensible reason to delay for any source the compliance date of December 2007, a deadline mandated by both the Clean Air Act and the settlement agreement. Section 112 (d) of the Act allows for subcategorization of the standard, but only by class, type, and size of source, assuming it does not result in a delay of the compliance date. In other words, subcategorization is allowable for physical differences in plant design. We are concerned that EPA may be considering subcategorization by coal type, which does not constitute one of these allowable distinctions. Including such a subcategorization in the MACT rule would not be legally defensible. As you know, the Executive Order on regulatory review (No. 12866) enhances planning and coordination with respect to new and existing regulations, with the understanding that the, "... American people deserve a regulatory system that works for them, not against them: a regulatory system that protects and improves their health, safety, environment, and well-being...." In particular, E.O. 12866 states that in deciding whether and how to regulate, agencies should assess all costs and benefits of available regulatory alternatives. Further, in choosing among alternative regulatory approaches, agencies should select those approaches that maximize net benefits, including potential economic, environmental, public health and safety, and other advantages, as well as distributive impacts and equity. Despite that directive, we are concerned that EPA and OMB may not be considering a full range of regulatory options that includes accurate implementation of the Clean Air Act, namely, a standard based on technologies available today that can achieve a 98%+ reduction in mercury emissions. We expect the upcoming proposal to reflect what the law requires by offering either the most stringent technology standard for public comment, or at least a range of options that includes this most stringent standard. We also expect that the regulatory impact assessment, as required by the Executive Order, which accompanies the proposed rule to include an assessment, and the underlying analysis, of the costs and benefits (including reductions in other air pollutants such as fine particulate matter) of potentially effective and reasonably feasible alternatives to the proposed rule that have been identified by the public. We are also troubled that the Clean Air Act Advisory Committee established under the Federal Advisory Committee Act to advise EPA on development of utility MACT standards has not received promised analyses and has been inappropriately and abruptly excluded from the regulatory process. EPA worked with industries, environmental organizations, and state and local agencies in the context of these FACA workgroup meetings over a two year period. During these meetings, environmental stakeholders requested specific considerations and mercury reduction scenarios to be included in a model the Agency was developing. The Agency promised to incorporate group recommendations and deliver findings of this updated modeling to the workgroup by March 4, 2003, yet the analysis was not available by that time. The Agency promised then to share the analysis by April 15, 2003, yet the analysis was again not available, and EPA staff abruptly cancelled that day’s workgroup meeting, saying, "We will get back to you regarding a future meeting." The utility workgroup was never able to schedule a subsequent meeting with the Agency, and has still not received the modeling analysis promised almost eight months ago. This failure to deliver promised analysis is unacceptable, and the abrupt exclusion of stakeholder involvement is not good governance. We expect the Environmental Protection Agency and the Office and Management and Budget to propose utility MACT standards on schedule. We expect that proposal will use the best performing facilities as the guide in setting standards that obtain the maximum reductions achievable. We also expect EPA to deliver on its promises by swiftly completing and distributing to the workgroup the modeling analysis for group-specified mercury reduction scenarios. Further, we expect EPA to continue to work in good faith to incorporate public comment on the proposal and finalize a thoughtful rule by December 15, 2004, while maintaining the December 2007 compliance date. To do any less would be legally indefensible, and would prolong damage to the public’s health. It is well documented that mercury from utility air emissions endangers our health and environment by depositing into our lakes, streams, and oceans and bioaccumulating in the fish we eat. The National Academy of Sciences has confirmed that fish consumption by pregnant women can lead to neuro-developmental damage in fetuses, and that all other adults can be put at greater risk of heart, kidney, and liver effects. Due to this public health threat, 44 states now post advisories warning the public about the risks of fish consumption. Dozens of other toxic air pollutants are released in significant quantities from power plants as well, including arsenic, cadmium, and lead, many of which are known carcinogens. The Clean Air Act does not allow for promulgation of a rule on this matter that is ineffectual in reducing to the maximum extent achievable the major HAPs emitted by utilities. Thank you for your attention to this matter. Sincerely,