[Federal Register Volume 85, Number 100 (Friday, May 22, 2020)]
[Rules and Regulations]
[Pages 31286-31320]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08607]
[[Page 31285]]
Vol. 85
Friday,
No. 100
May 22, 2020
Part II
Environmental Protection Agency
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National Emission Standards for Hazardous Air Pollutants: Coal- and
Oil-Fired Electric Utility Steam Generating Units--Reconsideration of
Supplemental Finding and Residual Risk and Technology Review; Final
Rule
Federal Register / Vol. 85, No. 100 / Friday, May 22, 2020 / Rules
and Regulations
[[Page 31286]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 63
[EPA-HQ-OAR-2018-0794; FRL-10008-60-OAR]
RIN 2060-AT99
National Emission Standards for Hazardous Air Pollutants: Coal-
and Oil-Fired Electric Utility Steam Generating Units--Reconsideration
of Supplemental Finding and Residual Risk and Technology Review
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The U.S. Environmental Protection Agency (EPA) is revising its
response to the U.S. Supreme Court decision in Michigan v. EPA, which
held that the EPA erred by not considering cost in its determination
that regulation under section 112 of the Clean Air Act (CAA) of
hazardous air pollutant (HAP) emissions from coal- and oil-fired
electric utility steam generating units (EGUs) is appropriate and
necessary. After primarily comparing the cost of compliance relative to
the benefits of HAP emission reduction from regulation, the EPA finds
that it is not ``appropriate and necessary'' to regulate HAP emissions
from coal- and oil-fired EGUs, thereby reversing the Agency's previous
conclusion under CAA section 112(n)(1)(A) and correcting flaws in the
Agency's prior response to Michigan v. EPA. We further find that
finalizing this new response to Michigan v. EPA will not remove the
Coal- and Oil-Fired EGU source category from the CAA section 112(c)
list of sources that must be regulated under CAA section 112(d) and
will not affect the existing CAA section 112(d) emissions standards
that regulate HAP emissions from coal- and oil-fired EGUs. The EPA is
also finalizing the residual risk and technology review (RTR) conducted
for the Coal- and Oil-Fired EGU source category regulated under
national emission standards for hazardous air pollutants (NESHAP),
commonly referred to as the Mercury and Air Toxics Standards (MATS).
Based on the results of the RTR analyses, the Agency is not
promulgating any revisions to the MATS rule.
DATES: Effective May 22, 2020.
ADDRESSES: The EPA has established a docket for these actions under
Docket ID No. EPA-HQ-OAR-2018-0794.\1\ All documents in the docket are
listed on the https://www.regulations.gov/ website. Although listed,
some information is not publicly available, e.g., confidential business
information 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 through https://www.regulations.gov/, or in hard copy at
the EPA Docket Center, WJC West Building, Room Number 3334, 1301
Constitution Ave. NW, Washington, DC. The Public Reading Room hours of
operation are 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST),
Monday through Friday. The telephone number for the Public Reading Room
is (202) 566-1744, and the telephone number for the Docket Center is
(202) 566-1742.
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\1\ As explained in a memorandum to the docket, the docket for
these actions include the documents and information, in whatever
form, in Docket ID Nos. EPA-HQ-OAR-2009-0234 (National Emission
Standards for Hazardous Air Pollutants for Coal- and Oil-fired
Electric Utility Steam Generating Units), EPA-HQ-OAR-2002-0056
(National Emission Standards for Hazardous Air Pollutants for
Utility Air Toxics; Clean Air Mercury Rule (CAMR)), and Legacy
Docket ID No. A-92-55 (Electric Utility Hazardous Air Pollutant
Emission Study). See memorandum titled Incorporation by reference of
Docket Number EPA-HQ-OAR-2009-0234, Docket Number EPA-HQ-OAR-2002-
0056, and Docket Number A-92-55 into Docket Number EPA-HQ-OAR-2018-
0794 (Docket ID Item No. EPA-HQ-OAR-2018-0794-0005).
FOR FURTHER INFORMATION CONTACT: For questions about these final
actions, contact Mary Johnson, Sector Policies and Programs Division
(D243-01), Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number: (919) 541-5025; and email address:
[email protected]. For specific information regarding the risk
modeling methodology, contact Mark Morris, Health and Environmental
Impacts Division (C539-02), Office of Air Quality Planning and
Standards, U.S. Environmental Protection Agency, Research Triangle
Park, North Carolina 27711; telephone number: (919) 541-5416; and email
address: [email protected]. For information about the applicability
of the NESHAP to a particular entity, contact your EPA Regional
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representative as listed in 40 CFR 63.13 (General Provisions).
SUPPLEMENTARY INFORMATION:
Preamble acronyms and abbreviations. We use multiple acronyms and
terms in this preamble. While this list may not be exhaustive, to ease
the reading of this preamble and for reference purposes, the EPA
defines the following terms and acronyms here:
CAA Clean Air Act
CAMR Clean Air Mercury Rule
CEMS continuous emissions monitoring systems
CFR Code of Federal Regulations
CRA Congressional Review Act
EGU electric utility steam generating unit
EPA Environmental Protection Agency
EPRI Electric Power Research Institute
HAP hazardous air pollutant(s)
HCl hydrochloric acid
HF hydrogen fluoride
HQ hazard quotient
ICR information collection request
km kilometer
MACT maximum achievable control technology
MATS Mercury and Air Toxics Standards
MIR maximum individual risk
MW megawatt
NAAQS National Ambient Air Quality Standards
NAICS North American Industry Classification System
NEI National Emissions Inventory
NESHAP national emission standards for hazardous air pollutants
NOAEL no-observed-adverse-effect-level
NOX nitrogen oxides
NTTAA National Technology Transfer and Advancement Act
OAQPS Office of Air Quality Planning and Standards
OMB Office of Management and Budget
PB-HAP hazardous air pollutants known to be persistent and bio-
accumulative in the environment
PDF Portable Document Format
PM particulate matter
PM2.5 fine particulate matter
POM polycyclic organic matter
PRA Paperwork Reduction Act
RDL representative detection level
REL reference exposure level
RFA Regulatory Flexibility Act
RIA regulatory impact analysis
RTR residual risk and technology review
SO2 sulfur dioxide
TOSHI target organ-specific hazard index
tpy tons per year
UMRA Unfunded Mandates Reform Act
Background information. With this action, the EPA is, after review
and consideration of public comments, finalizing two aspects of the
2019 Proposal. On February 7, 2019, the EPA proposed to find that it is
not ``appropriate and necessary'' to regulate HAP emissions from coal-
and oil-fired EGUs, thereby reversing the Agency's prior conclusion
under CAA section 112(n)(1)(A) and correcting flaws in the Agency's
prior response to Michigan v. EPA, 135 S. Ct. 2699 (2015). 84 FR 2670
(2019 Proposal). We further proposed that finalizing this new response
to Michigan v. EPA would not remove the Coal- and Oil-Fired EGU source
category from the CAA section 112(c) list of sources that must be
regulated under CAA section 112(d) and would not
[[Page 31287]]
affect the existing CAA section 112(d) emissions standards that
regulate HAP emissions from coal- and oil-fired EGUs. In the same
action, the EPA also proposed the results of the RTR of the NESHAP for
Coal- and Oil-Fired EGUs. In this action, we are taking final action
with regard to these aspects of the 2019 Proposal.\2\ We summarize some
of the more significant comments regarding the proposed rule and
provide our responses in this preamble. A summary of all other
significant comments on the 2019 Proposal and the EPA's responses to
those comments is available in the document titled Final Supplemental
Finding and Risk and Technology Review for the NESHAP for Coal- and
Oil-Fired EGUs Response to Public Comments on February 7, 2019 Proposal
(Response-to-Comment (RTC) document), in Docket ID No. EPA-HQ-OAR-2018-
0794.
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\2\ The EPA took final action on the other aspect of the 2019
Proposal (i.e., solicitation of comment on establishing a
subcategory of certain existing EGUs firing eastern bituminous coal
refuse for emissions of acid gas HAP) on April 15, 2020, in a
separate action (85 FR 20838).
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Organization of this document. The information in this preamble is
organized as follows:
I. General Information
A. Do these actions apply to me?
B. Where can I get a copy of this document and other related
information?
C. Judicial Review and Administrative Reconsideration
II. Appropriate and Necessary Finding
A. Overview
B. Background
C. EPA's Finding Under CAA Section 112(n)(1)(A)
D. Effects of This Reversal of the Supplemental Finding
III. Background on the RTR Action
A. What is the statutory authority for this action?
B. What is the Coal- and Oil-Fired EGU source category and how
does the NESHAP regulate HAP emissions from the source category?
C. What changes did we propose for the Coal- and Oil-Fired EGU
source category in our February 7, 2019, proposed rule?
IV. What is included in this final rule based on results of the RTR?
A. What are the final rule amendments based on the residual risk
review for the Coal- and Oil-Fired EGU source category?
B. What are the final rule amendments based on the technology
review for the Coal- and Oil-Fired EGU source category?
C. What are the effective and compliance dates of the standards?
V. What is the rationale for our final decisions regarding the RTR
action for the Coal- and Oil-Fired EGU source category?
A. Residual Risk Review for the Coal- and Oil-Fired EGU Source
Category
B. Technology Review for the Coal- and Oil-Fired EGU Source
Category
VI. Summary of Cost, Environmental, and Economic Impacts and
Additional Analyses Conducted
A. What are the affected facilities?
B. What are the air quality impacts?
C. What are the cost impacts?
D. What are the economic impacts?
E. What are the benefits?
F. What analysis of environmental justice did we conduct?
G. What analysis of children's environmental health did we
conduct?
VII. Statutory and Executive Order Reviews
A. Executive Orders 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act (CRA)
I. General Information
A. Do these actions apply to me?
Regulated entities. Categories and entities potentially regulated
by these final actions are shown in Table 1 of this preamble.
Table 1--NESHAP and Industrial Source Categories Affected by These Final
Actions
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NESHAP and source category NAICS \1\ code
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Coal- and Oil-Fired EGUs......... 221112, 221122, 921150.
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North American Industry Classification System.
Table 1 of this preamble is not intended to be exhaustive, but
rather to provide a guide for readers regarding entities likely to be
affected by these final actions for the source category listed. To
determine whether your facility is affected, you should examine the
applicability criteria in the appropriate NESHAP. If you have any
questions regarding the applicability of any aspect of this NESHAP,
please contact the appropriate person listed in the preceding FOR
FURTHER INFORMATION CONTACT section of this preamble.
B. Where can I get a copy of this document and other related
information?
In addition to being available in the docket, an electronic copy of
this document will also be available on the internet. Following
signature by the EPA Administrator, the EPA will post a copy of this
document at: https://www.epa.gov/mats/regulatory-actions-final-mercury-and-air-toxics-standards-mats-power-plants. Following publication in
the Federal Register, the EPA will post the Federal Register version
and key technical documents at this same website.
Additional information regarding the RTR action is available on the
RTR website at https://www3.epa.gov/ttn/atw/rrisk/rtrpg.html. This
information includes an overview of the RTR program, links to project
websites for the RTR source categories, and detailed emissions and
other data we used as inputs to the risk assessments.
C. Judicial Review and Administrative Reconsideration
Under CAA section 307(b)(1), judicial review of these final actions
is available only by filing a petition for review in the United States
Court of Appeals for the District of Columbia Circuit (D.C. Circuit) by
July 21, 2020. Under CAA section 307(b)(2), the requirements
established by this final rule may not be challenged separately in any
civil or criminal proceedings brought by the EPA to enforce the
requirements.
Section 307(d)(7)(B) of the CAA further provides that only an
objection to a rule or procedure which was raised with reasonable
specificity during the period for public comment (including any public
hearing) may be raised
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during judicial review. That section of the CAA also provides a
mechanism for the EPA to reconsider the rule if the person raising an
objection can demonstrate to the Administrator that it was
impracticable to raise such objection within the period for public
comment or if the grounds for such objection arose after the period for
public comment (but within the time specified for judicial review) and
if such objection is of central relevance to the outcome of the rule.
Any person seeking to make such a demonstration should submit a
Petition for Reconsideration to the Office of the Administrator, U.S.
EPA, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW,
Washington, DC 20460, with a copy to both the person(s) listed in the
preceding FOR FURTHER INFORMATION CONTACT section, and the Associate
General Counsel for the Air and Radiation Law Office, Office of General
Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW,
Washington, DC 20460.
II. Appropriate and Necessary Finding
A. Overview
On June 29, 2015, the U.S. Supreme Court ruled in Michigan v. EPA
that the Agency had erred when it failed to take cost into account in
its previous CAA section 112(n)(1)(A) determination that it is
appropriate and necessary to regulate HAP emissions from coal- and oil-
fired EGUs. In response to that decision, the EPA finalized a
supplemental finding on April 25, 2016, that evaluated cost
considerations and concluded that the appropriate and necessary finding
was still valid. 81 FR 24420 (2016 Supplemental Finding). On February
7, 2019, the EPA proposed a revised response to the U.S. Supreme Court
decision. 84 FR 2670 (2019 Proposal). In the 2019 Proposal, after
primarily comparing the cost of compliance relative to the benefits of
HAP emission reduction from regulation, the EPA proposed to find that
it is not appropriate and necessary to regulate HAP emissions from
coal- and oil-fired EGUs, thereby reversing the Agency's conclusion
under CAA section 112(n)(1)(A), first made in 2000 and later affirmed
in 2012 and 2016. Specifically, the Agency proposed that the 2016
Supplemental Finding considering the cost of MATS was flawed as it did
not satisfy the EPA's obligation under CAA section 112(n)(1)(A), as
interpreted by the U.S. Supreme Court in Michigan. Additionally, the
EPA proposed that while finalizing the action would reverse the 2016
Supplemental Finding, it would not remove the Coal- and Oil-Fired EGU
source category from the CAA section 112(c)(1) list, nor would it
affect the existing CAA section 112(d) emissions standards regulating
HAP emissions from coal- and oil-fired EGUs that were promulgated on
February 16, 2012. 77 FR 9304 (2012 MATS Final Rule).
In section II.B of this preamble, which finalizes the reversal of
the 2016 Supplemental Finding, the EPA provides background information
regarding the previous appropriate and necessary findings, including
the affirmations in the preamble of the 2012 MATS Final Rule and in the
2016 Supplemental Finding. Section II.C of this preamble describes why
the 2016 Supplemental Finding was flawed, why the EPA has authority to
revisit that finding now, and what the EPA is finalizing as the
appropriate approach to satisfy the EPA's obligation under CAA section
112(n)(1)(A) as interpreted by the U.S. Supreme Court in Michigan.
Finally, section II.D of this preamble explains that the EPA's revised
determination that regulation of HAP emissions from EGUs under CAA
section 112 is not appropriate and necessary will not remove coal- and
oil-fired EGUs from the CAA section 112(c) list of source categories,
and that the previously established CAA section 112(d) standards for
HAP emissions from coal- and oil-fired EGUs will remain in place. In
this preamble, the EPA provides a summary of certain significant
comments received on the 2019 Proposal and the Agency's response to
those comments. The RTC document for this action summarizes and
responds to all other significant comments that the EPA received.
B. Background
The CAA establishes a multi-step process for the EPA to regulate
HAP emissions from EGUs. First, section 112(n)(1)(A) of the CAA
requires the EPA to perform a study of the hazards to public health
reasonably anticipated to occur as a result of HAP emissions from EGUs
``after imposition of the requirements of this chapter.'' \3\ If, after
considering the results of this study, the EPA determines that it is
``appropriate and necessary'' to regulate EGUs under CAA section 112,
the EPA shall then do so.
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\3\ See CAA section 112(n)(1)(A); see also Michigan v. EPA, 135
S. Ct. at 2705 (``Quite apart from the hazardous-air-pollutants
program, the Clean Air Act Amendments of 1990 subjected power plants
to various regulatory requirements. The parties agree that these
requirements were expected to have the collateral effect of reducing
power plants' emissions of hazardous air pollutants, although the
extent of the reduction was unclear.'').
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The required study, which the EPA completed in 1998, contained an
analysis of HAP emissions from EGUs, an assessment of the hazards and
risks due to inhalation exposures to these emitted pollutants, and a
multipathway (inhalation plus non-inhalation exposures) risk assessment
for mercury and a subset of other relevant HAP.\4\ The study indicated
that mercury was the HAP of greatest concern to public health from
coal- and oil-fired EGUs. Mercury is highly toxic, persistent, and
bioaccumulates in food chains. The study also concluded that numerous
control strategies, of varying cost and efficiency, were available to
reduce HAP emissions from this source category. Based on this study and
other available information, the EPA determined in December 2000,
pursuant to CAA section 112(n)(1)(A), that it was appropriate and
necessary to regulate coal- and oil-fired EGUs under CAA section 112
and added such units to the CAA section 112(c) list of sources that
must be regulated under CAA section 112(d). 65 FR 79825 (December 20,
2000) (2000 Finding).\5\ The 2000 Finding did not consider the cost of
regulating EGUs in its finding that it was appropriate and necessary to
do so. Id. at 79830.
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\4\ U.S. EPA. 1998. Study of Hazardous Air Pollutant Emissions
from Electric Utility Steam Generating Units--Final Report to
Congress, Volume 1. EPA-453/R-98-004a.
\5\ In the same 2000 action, the EPA Administrator found that
regulation of HAP emissions from natural gas-fired EGUs is not
appropriate or necessary. 65 FR 79826.
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In 2005, the EPA revised the original 2000 Finding and concluded
that it was neither appropriate nor necessary to regulate EGUs under
CAA section 112. 70 FR 15994 (March 29, 2005) (2005 Revision). This
action was taken because, at that time, the EPA concluded that the
original 2000 Finding lacked foundation in that it failed to consider:
(1) The HAP reductions that could be obtained through implementation of
CAA sections 110 and 111; and (2) whether hazards to public health
would still exist after imposition of emission reduction rules under
those sections. The 2005 Revision also removed coal- and oil-fired EGUs
from the CAA section 112(c) list of source categories to be regulated
under CAA section 112. In a separate but related 2005 action, the EPA
also promulgated the Clean Air Mercury Rule (CAMR) which established
CAA section 111 standards of performance for mercury emissions from
EGUs. 70 FR 28605 (May 18, 2005).
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Both the 2005 Revision and the CAMR were vacated by the D.C. Circuit in
2008. The Court held that the EPA had failed to comply with the
requirements of CAA section 112(c)(9) for delisting source categories,
and consequently also vacated the CAA section 111 performance standards
promulgated in CAMR, without addressing the merits of those standards.
New Jersey v. EPA, 517 F.3d 574 (D.C. Cir. 2008).
In response to the New Jersey decision, the EPA conducted
additional technical analyses, including peer-reviewed risk assessments
on human health effects associated with mercury and non-mercury HAP
emissions from EGUs, focusing on risks to the most exposed and
sensitive individuals in the population. Those analyses found that
mercury and non-mercury HAP emissions from EGUs remain a significant
public health hazard and that EGUs were the largest U.S. anthropogenic
source of mercury emissions to the atmosphere.\6\ Based on these
findings, in 2012, the EPA affirmed the original 2000 Finding that it
is appropriate and necessary to regulate EGUs under CAA section 112. 77
FR 9304 (February 16, 2012).
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\6\ U.S. EPA. 2011. Revised Technical Support Document:
National-Scale Assessment of Mercury Risk to Populations with High
Consumption of Self-caught Freshwater Fish in Support of the
Appropriate and Necessary Finding for Coal- and Oil-Fired Electric
Generating Units. Office of Air Quality Planning and Standards.
December. EPA-452/R-11-009. Docket ID Item No. EPA-HQ-OAR-2009-0234-
19913.
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In the same 2012 action, the EPA established a NESHAP, commonly
called MATS, that required coal- and oil-fired EGUs to meet HAP
emission standards reflecting the application of the maximum achievable
control technology (MACT) for mercury and other air toxics. After MATS
was promulgated, both the rule itself and many aspects of the EPA's
appropriate and necessary finding were challenged in the D.C. Circuit.
In White Stallion Energy Center v. EPA, the Court denied all
challenges. 748 F.3d 1322 (D.C. Cir. 2014). One judge dissented,
expressing the view that the EPA erred by refusing to consider cost in
its ``appropriate and necessary'' determination. Id. at 1258-59
(Kavanaugh, J., dissenting).
The U.S. Supreme Court subsequently granted certiorari, directing
the parties to address a single question posed by the Court itself:
``Whether the Environmental Protection Agency unreasonably refused to
consider cost in determining whether it is appropriate to regulate
hazardous air pollutants emitted by electric utilities.'' Michigan v.
EPA, 135 S. Ct. 702 (Mem.) (2014). In 2015, the U.S. Supreme Court held
that ``EPA interpreted [CAA section 112(n)(1)(A)] unreasonably when it
deemed cost irrelevant to the decision to regulate power plants.''
Michigan v. EPA, 135 S. Ct. 2699, 2712 (2015). In so holding, the U.S.
Supreme Court found that the EPA ``must consider cost--including, most
importantly, cost of compliance--before deciding whether regulation is
appropriate and necessary.'' Id. at 2711. It is ``up the Agency,'' the
Court added, ``to decide (as always, within the limits of reasonable
interpretation) how to account for cost.'' Id. The rule was ultimately
remanded back to the EPA (without vacatur) to complete the required
cost analysis. White Stallion Energy Ctr. v. EPA, No. 12-1100, ECF No.
1588459 (D.C. Cir. December 15, 2015).
In response to the U.S. Supreme Court's direction, the EPA in the
2016 Supplemental Finding promulgated two different approaches to
incorporate cost into the appropriate and necessary finding. 81 FR
24420. The EPA's preferred approach (referred to as the ``cost
reasonableness'' approach) compared the estimated cost of compliance in
the regulatory impact analysis (RIA) for the 2012 MATS Final Rule
(referred to here as 2011 RIA \7\) against several cost metrics
relevant to the EGU sector (e.g., historical annual revenues, annual
capital expenditures, and impacts on retail electricity prices). The
``cost reasonableness'' approach did not compare costs to benefits.
Under this approach, the EPA concluded that the power sector would be
able to comply with the MATS requirements while maintaining its ability
to generate, transmit, and distribute reliable electricity at
reasonable cost to consumers. Using a totality-of-the-circumstances
approach, the EPA weighed this analysis that the costs of the rule were
reasonable along with its prior findings about the amount of HAP
pollution coming from the Coal- and Oil-Fired EGU source category, the
scientific studies and modeling assessing the risks to public health
and the environment from domestic EGU HAP pollution, and information
about the toxicity and persistence of HAP in the environment.
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\7\ U.S. EPA. 2011. Regulatory Impact Analysis for the Final
Mercury and Air Toxics Standards. EPA-452/R-11-011. Available at:
https://www3.epa.gov/ttn/ecas/docs/ria/utilities_ria_final-mats_2011-12.pdf.
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In a second, alternative, and independent approach (referred to as
the ``cost benefit'' approach), the EPA considered the benefit-cost
analysis in the RIA for the 2012 MATS Final Rule. In that analysis, the
EPA estimated that the final MATS rule would yield total annual
monetized benefits (in 2007 dollars) of between $37 billion to $90
billion using a 3-percent discount rate and $33 billion to $81 billion
using a 7-percent discount rate, plus additional benefits that cannot
be quantified, in comparison to the projected $9.6 billion in annual
compliance costs. That analysis reflects that 99.9 percent of the total
annual monetized benefits were attributable not to benefits from HAP
reduction, but rather from benefits from co-reduction of non-HAP
pollutants. In the 2016 Supplemental Finding, the EPA determined that
both the preferred ``cost reasonableness'' approach and the alternative
``cost benefit'' approach supported the conclusion that regulation of
HAP emissions from EGUs is appropriate and necessary.
Several state and industry groups petitioned for review of the 2016
Supplemental Finding in the D.C. Circuit. Murray Energy Corp. v. EPA,
No. 16-1127 (D.C. Cir. filed April 25, 2016). In April 2017, the EPA
moved the D.C. Circuit to continue oral argument and hold the case in
abeyance in order to give the new Administration an opportunity to
review the 2016 action. (As further explained below, as of the date of
signature, the case remains pending in the D.C. Circuit.) Accordingly,
the EPA reviewed the 2016 action and proposed on February 7, 2019, to
correct flaws in the prior response to Michigan v. EPA (84 FR 2670).
Specifically, the 2019 Proposal proposed to reverse the 2016 action and
to conclude that it is not ``appropriate and necessary'' to regulate
HAP emissions from coal- and oil-fired EGUs. The public comment period
for the 2019 Proposal ended on April 17, 2019. The remainder of this
section of this preamble responds to significant comments received on
the appropriate and necessary finding and describes the EPA's
justification for finalizing this reversal of the 2016 Supplemental
Finding.
C. EPA's Finding Under CAA Section 112(n)(1)(A)
1. EPA Has the Statutory Authority To Revisit the Appropriate and
Necessary Finding
a. Summary of 2019 Proposal
Section 112(n)(1)(A) of the CAA directs the Administrator of the
EPA to determine whether it is ``appropriate and necessary'' to
regulate HAP emissions from fossil fuel-fired EGUs after conducting a
study of the hazards to public health reasonably anticipated to occur
as a result of emissions of HAP
[[Page 31290]]
from EGUs after imposition of emission controls imposed under other
provisions of the CAA. In Michigan v. EPA, the U.S. Supreme Court
instructed the Agency that it was required to consider cost as part of
its appropriate and necessary determination. The Agency completed a
consideration of the cost to regulate HAP emissions from coal- and oil-
fired EGUs in the 2016 Supplemental Finding. The EPA's 2019 action
proposed to revisit the 2016 Supplemental Finding's consideration of
cost, on the basis that the 2016 action is flawed. The 2019 Proposal
stated that such reexamination was permissible as a basic principle of
administrative law and under the CAA. 84 FR 2674 n.3.
b. Final Rule
The EPA is finalizing this action as proposed in February 2019 on
the basis that the CAA and CAA section 112(n)(1)(A) do not prohibit the
Administrator from revisiting a prior finding made under that section.
c. Comments and Responses
Comment: Some commenters asserted that it is unlawful for the EPA
to revisit its 2016 Supplemental Finding at all, because the EPA has
completed the analytic process Congress set in motion in 1990, and the
statute unambiguously prohibits the EPA from revisiting or revising the
CAA section 112(n)(1)(A) finding. Commenters asserted that the
legislative history, statutory context, and statutory structure support
their position that Congress intended the CAA section 112(n)(1)(A)
appropriate and necessary finding to be a one-time decision, and that
the provision gives the EPA ``limited discretion to activate a one-way
switch to `turn on' regulation of power plants.'' The commenters argued
that ``[o]nce EPA turns on that switch, as it did in its 2000 finding .
. . it must regulate power plants under section 112.''
Moreover, those commenters argued that even if CAA section 112 were
ambiguous as to the EPA's authority to revisit the appropriate and
necessary finding, the EPA was still bound to follow CAA section
112(c)(9)'s delisting procedure before it could reverse its finding
under CAA section 112(n)(1)(A). The commenters claimed that New Jersey
confirms that the EPA lacks inherent authority to reconsider the
appropriate and necessary finding.
Finally, the commenters claimed that it would be ``illogical'' for
the EPA to have authority to revise the appropriate and necessary
finding independent of removing power plants from the list of regulated
sources under CAA section 112. Commenters argued that a revised finding
that has no regulatory effect would be ``inherently irrational,'' and
that the EPA has failed to articulate a reasoned basis for undertaking
this action (citing Air Alliance Houston v. EPA, 906 F.3d 1049 (D.C.
Cir. 2018), and asserting that in that decision the D.C. Circuit found
an EPA rule irrational where the EPA tried to ``have it both ways'' by
claiming that a rule was necessary to prevent harms to regulated
industry but also ``does nothing more than maintain the status quo,''
Id. at 1068).
Other commenters said that the EPA has authority to reconsider
prior Agency decisions and the 2016 Supplemental Finding in particular.
These commenters noted that if the 2016 Supplemental Finding were left
unamended, it would establish policy precedents at odds with well-
established precepts about how benefits and costs should be considered
in regulatory decisions.
Response: The EPA disagrees with commenters that CAA section
112(n)(1)(A) speaks to the EPA's authority to revisit its appropriate
and necessary finding, and we, therefore, disagree with commenters'
contention that the statute on its face prohibits the EPA from
revisiting a determination made under that provision. The provision
reads: ``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 [the ``Utility Study''
\8\].'' The only clear requirement with regard to timing or sequence
found in the text of the provision is that the Administrator may not
make the finding prior to considering the results of the Utility Study,
which the EPA completed in 1998. The statute does not restrict the
Administrator's ability to revise or reconsider a prior finding made
under CAA section 112(n)(1)(A).
---------------------------------------------------------------------------
\8\ CAA section 112(n)(1)(A) directs the EPA to conduct a study
to evaluate the hazards to public health reasonably anticipated to
occur as the result of HAP emissions from EGUs after the imposition
of the requirements of the CAA, and to report the results of such
study to Congress by November 15, 1993. See U.S. EPA, Study of
Hazardous Air Pollutant Emissions from Electric Utility Steam
Generating Units--Final Report to Congress. EPA-453/R-98-004a,
February 1998.
---------------------------------------------------------------------------
We also disagree with commenters' argument that because other
statutory provisions in the CAA mandate that the EPA review and revise
regulations on a set schedule or continuing basis, it must follow that
every other statutory provision lacking such a review-and-revise clause
prohibits an agency from rethinking its interpretation of such
provision. The EPA's CAA rulemaking history contains many examples of
the Agency's changing position on a previous interpretation of a
provision, even where there is no explicit directive within the
provision to review or revise.
Absent a specific statutory prohibition, the EPA's ability to
revisit existing decisions is well established. The EPA has inherent
authority to reconsider and/or revise past decisions to the extent
permitted by law so long as the Agency provides a reasoned explanation.
The authority to reconsider exists in part because the EPA's
interpretations of statutes it administers ``[are not] instantly carved
in stone,'' but must be evaluated ``on a continuing basis.'' Chevron
U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 863-64. This
is true when, as is the case here, review is undertaken partly ``in
response to . . . a change in administrations.'' National Cable &
Telecommunications Ass'n v. Brand X internet Services, 545 U.S. 967,
981 (2005). Indeed, ``[a]gencies obviously have broad discretion to
reconsider a regulation at any time.'' Clean Air Council v. Pruitt, 862
F.3d 1, 8-9 (D.C. Cir. 2017).
Commenters' assertions that the statutory context and structure of
CAA section 112 and the legislative history of that provision support
their view that the EPA lacks authority to revisit its CAA section
112(n)(1)(A) determination are marred by the commenters' assumed
premise that the EPA necessarily would find that it is appropriate and
necessary to regulate EGUs. The commenters argue that their
interpretation of the statute must be correct because it creates a tidy
framework: The EPA makes an affirmative appropriate and necessary
finding, regulations under CAA section 112 are promulgated, and the
only statutory means by which the appropriate and necessary finding
could be revisited is to satisfy the delisting criteria under CAA
section 112(c)(9). According to commenters, such a framework fits with
Congress' concerns about dangers to public health and welfare due to
air pollution and what they broadly characterize as congressional
desire to regulate HAP from power plants ``promptly.'' The problem with
the commenters' statutory interpretation is that it makes sense only if
an affirmative appropriate and necessary finding occurs in the first
instance. If, as commenters assert, CAA section 112(c)(9) is the only
statutory means by which a finding under CAA section 112(n)(1)(A) may
be revisited, commenters' framework provides no pathway by which the
EPA could revisit
[[Page 31291]]
a finding that it is not appropriate and necessary to regulate HAP from
power plants. Commenters' ``unambiguous'' reading of CAA section
112(n)(1)(A) and its assumption that Congress drafted the provision in
order to ensure ``prompt'' reductions of HAP from EGUs treats an
affirmative finding under that section as a foregone conclusion rather
than a decision left up to the expertise of the Agency and its
Administrator.
The commenters' reading of the statute also cannot be squared with
the Michigan v. EPA decision. They assert that CAA section 112(n)(1)(A)
only allows the EPA ``to activate a one-way switch to `turn on'
regulation,'' and notes that the Agency did so ``in its 2000 finding.''
Commenters are essentially arguing that the U.S. Supreme Court's
instruction to the EPA that it was required to consider cost as part of
a CAA section 112(n)(1)(A) finding could never have had any practical
effect, because according to commenters, the ``only . . . statutorily
mandated avenue to turn the switch off and reverse course . . . [is]
the section 112(c)(9) procedures.'' Therefore, in petitioners' view,
regardless of what the EPA determined on remand from Michigan, only the
satisfaction of the CAA section 112(c)(9) criteria, which contain no
consideration of cost, could have altered the EPA's finding under CAA
section 112(n)(1)(A). We do not agree that this is a reasonable reading
of the statute or the Michigan decision.
Additionally, the EPA notes that the D.C. Circuit in New Jersey
held that the EPA's reversal of a prior determination that it was
appropriate and necessary to regulate EGUs under CAA section 112 did
not by itself effect a delisting of EGUs from the CAA section 112(c)
list of source categories. This holding recognizes that the CAA section
112 appropriate and necessary determination is structurally and
functionally separate from the EPA's ability, conditioned on certain
predicate findings, to remove source categories from the CAA section
112(c) list. Commenters are, therefore, wrong to assert that the EPA
can reverse an appropriate and necessary determination under CAA
section 112(n)(1)(A) only if it has first undertaken CAA section
112(c)(9)'s delisting procedure, and wrong to assert that New Jersey
supports their position that the EPA lacks inherent authority to
reconsider the appropriate and necessary finding; in fact, that case
supports the opposite position.
For similar reasons, we also reject the commenters' contention that
CAA section 112(c)(9)'s health protective criteria are substantively
incorporated into CAA section 112(n)(1)(A)'s appropriate and necessary
determination, such that a failure to consider those criteria in the
context of reversing a determination under CAA section 112(n)(1)(A) is
arbitrary and renders CAA section 112(c)(9) a nullity. As explained in
section II.D of this preamble, we agree that the EPA may not delist
EGUs from the CAA section 112(c) list and revoke MACT standards for
power plants without meeting the delisting criteria of CAA section
112(c)(9). We do not agree, however, that the delisting provision has
any effect on the Agency's ability to make an affirmative or negative
determination under CAA section 112(n)(1)(A) where we are not
purporting to alter the CAA section 112(c) list. In particular, we do
not agree with the commenters' reading of New Jersey that the D.C.
Circuit's holding means that the EPA could reverse an affirmative
appropriate and necessary finding only if it found that the CAA section
112(c)(9) delisting criteria were met. The Court's holding in New
Jersey plainly states that CAA section 112(c)(9) ``unambiguously
limit[s] EPA's discretion to remove sources, including EGUs, from the
section 112(c)(1) list once they have been added to it.'' 517 F.3d 574,
583 (D.C. Cir. 2008). Commenters' presumed incorporation of the
statutory delisting criteria into the CAA section 112(n)(1)(A)
determination also finds no support in the Michigan decision, which
said nothing about the EPA's obligation to consider those criteria in
determining whether regulation of power plants is appropriate and
necessary.
Finally, we disagree with commenters who assert that this final
action is ``inherently irrational'' because the MATS standards would
not be reversed as a result of the negative appropriate and necessary
finding, due to controlling legal precedent from the D.C. Circuit (New
Jersey). In this action the EPA is setting out the Agency's revised
reasoning to respond to a U.S. Supreme Court decision and remand
(Michigan), because the EPA concludes that the 2016 Supplemental
Finding is not appropriate as a matter of interpretation of the statute
or as a matter of policy. As noted by some of the commenters, leaving
in place the incorrect interpretation of ``appropriate'' in CAA section
112(n)(1)(A) could establish policy precedent that could have ``long-
term and harmful consequences.''
Moreover, the EPA disagrees that Air Alliance Houston v. EPA has
any bearing on this action. There, in admonishing the Agency that it
could not ``have it both ways,'' the Court was criticizing the EPA for
attempting to characterize its rule as relieving ``substantial
compliance and implementation burden'' while also ``maintaining the
status quo'' (such that the rule would have little effect on compliance
requirements). See Air Alliance Houston, 906 F.3d at 1068. Here, the
Agency believes a different finding and better response to the U.S.
Supreme Court's decision in Michigan v. EPA is warranted given the
proper application of that decision and the facts in the EPA's record.
We acknowledge that this change in policy will not affect the CAA
section 112 MACT standards for EGUs because the D.C. Circuit's decision
in New Jersey v. EPA prohibits the Agency from removing listed sources
from the CAA section 112(c) list without satisfying the CAA section
112(c)(9) delisting criteria (see section II.D of this preamble). But
we do not agree that simply because D.C. Circuit precedent establishes
that the Agency's reversing its prior determination will have a
particular regulatory consequence, the Agency is, therefore, prohibited
from revisiting that prior determination in the first instance.
Comment: Some commenters stated that the EPA has no authority to
``revise'' its response to the U.S. Supreme Court's decision in
Michigan, and its attempt to do so would impermissibly subvert the
judicial review process. These commenters argued that the EPA's
response to Michigan is the 2016 Supplemental Finding, and that at this
stage, that response cannot be altered or reversed. The commenters
contended that the 2016 Supplemental Finding constitutes final Agency
action and noted that the Finding is currently subject to petitions for
review in the D.C. Circuit. The commenters suggested that seeking to
undo the 2016 Supplemental Finding by administrative action would
unlawfully circumvent that review. Other commenters asserted that the
EPA has an obligation to explain how final action on the 2019 Proposal
could impact the government's position in ongoing litigation of the
2016 Supplemental Finding. Commenters also said the EPA must address
the implications of a reversal of that finding, considering the
petitioner's positions in the ongoing litigation where the petitioner
has argued that reversal of the appropriate and necessary finding must
be followed by vacatur of MATS.
Response: The EPA disagrees with the commenters that finalizing
this action ``subverts the judicial review process'' with respect to
the 2016 Supplemental Finding. To the extent that commenters are
arguing that the EPA lacks statutory
[[Page 31292]]
authority to review the 2016 Supplemental Finding, the EPA has
addressed that contention in the response to the comment above. We
agree that the 2016 Supplemental Finding constituted final Agency
action, and we acknowledge that petitions for review of that action
were filed in the D.C. Circuit in Murray Energy Corp. v. EPA, No. 16-
1127 (and consolidated cases) (D.C. Cir. filed April 25, 2016).
However, we disagree that our final action unlawfully circumvents the
judicial process. The EPA filed a motion in the Murray Energy
litigation requesting the Court to continue oral argument, which had
been scheduled for May 18, 2017, to allow the new Administration
adequate time to review the 2016 Supplemental Finding to determine
whether it needed to be reconsidered.\9\ On April 27, 2017, in
consideration of the EPA's motion, the D.C. Circuit ordered that the
consolidated challenges to the 2016 Supplemental Finding be held in
abeyance.\10\ That case continues to be held in abeyance, pending
further order of the Court. In its order, the Court directed the
parties to file motions to govern future proceedings within 30 days of
the Agency's concluding its review of the 2016 Supplemental
Finding.\11\
---------------------------------------------------------------------------
\9\ Respondent EPA's Motion to Continue Oral Argument at 6,
Murray Energy Corp. v. EPA, No. 16-1127 (D.C. Cir. April 18, 2017),
ECF No. 1671687.
\10\ Order, Murray Energy Corp. v. EPA, No. 16-1127 (D.C. Cir.
April 27, 2017), ECF No. 1672987.
\11\ Id.
---------------------------------------------------------------------------
The EPA disagrees with the commenters that the Agency has an
obligation to address in the context of this regulatory action the
government's position in that ongoing litigation. We address in section
II.D of this preamble the implications of the reversal of the 2016
Supplemental Finding, including addressing those comments received that
argue that a vacatur of MATS is required upon finalization of this
action. To the extent that the commenter is suggesting that it would be
appropriate or required for the EPA at this point to address potential
future arguments petitioners might make in the Murray Energy litigation
following this final action, the Agency disagrees. The appropriate
venue for addressing such arguments is the judicial review process for
that action. Commenters provide no authority to support their assertion
that an agency is obliged to discuss in a rulemaking the implications
of that rulemaking for pending litigation challenging a previous,
related agency action; the EPA is aware of no such authority; and the
EPA declines to take such litigation positions in this final action.
2. The Preferred Cost Reasonableness Approach of the 2016 Supplemental
Finding Was Deficient
a. Summary of 2019 Proposal
The EPA proposed to determine that the Agency's 2016 Supplemental
Finding erred in its consideration of cost. Specifically, we proposed
to find that what was described in the 2016 Supplemental Finding as the
preferred approach, or the ``cost reasonableness test,'' does not meet
the statute's requirements to fully consider costs and was an
unreasonable interpretation of CAA section 112(n)(1)(A)'s mandate, as
informed by the U.S. Supreme Court's opinion in Michigan. A summary of
that approach can be found in the 2019 Proposal. 84 FR 2674-75.
b. Final Rule
After considering comments submitted in response to the EPA's 2019
Proposal, the EPA is finalizing the proposed approach. The EPA
concludes that the ``preferred approach'' in the 2016 Supplemental
Finding did not meaningfully consider cost, which the Michigan Court
observed to be a ``centrally relevant factor'' in making the CAA
section 112(n)(1)(A) appropriate and necessary finding. The 2016
Supplemental Finding's de-emphasis of the importance of the cost
consideration in the appropriate and necessary determination was based
on an impermissible attempt to ``harmonize'' CAA section 112(n)(1)(A)
with the remainder of CAA section 112,\12\ and was not consistent with
Congress' intent and the U.S. Supreme Court's decision in Michigan v.
EPA, given that statutory provision's directive to treat EGUs
differently from other sources. See 135 S. Ct. at 2710 (``The Agency
claims that it is reasonable to interpret [CAA section 112(n)(1)(A)] in
a way that `harmonizes' the program's treatment of power plants with
its treatment of other sources. This line of reasoning overlooks the
whole point of having a separate provision about power plants: Treating
power plants differently from other sources.'') (emphasis in original).
---------------------------------------------------------------------------
\12\ See Legal Memorandum Accompanying the Proposed Supplemental
Finding that it is Appropriate and Necessary to Regulate Hazardous
Air Pollutants from Coal- and Oil-Fired Electric Utility Steam
Generating Units (EGUs) (2015 Legal Memorandum) (Docket ID Item No.
EPA-HQ-OAR-2009-0234-20519), at 6-15 (describing statutory purpose
of 1990 CAA Amendments and CAA section 112, and concluding that
``while cost is certainly an important factor, it is one of several
factors that must be considered and section 112(n)(1) does not
support a conclusion that cost should be the predominant or
overriding factor.'').
---------------------------------------------------------------------------
c. Comments and Responses
Comment: Some commenters asserted that the cost analysis in the
2016 Supplemental Finding was consistent with longstanding cost-
effectiveness methodologies used in other CAA programs, such as the CAA
section 111 New Source Performance Standards and CAA section 169
Prevention of Significant Deterioration (PSD). These commenters
disagreed with what they characterized as the 2019 Proposal's position
that CAA section 111 case law was irrelevant to the CAA section
112(n)(1)(A) appropriate and necessary determination, noting that cost
effectiveness is used in CAA section 111 to determine standards for
existing sources, much as the EPA is determining whether to regulate
existing sources in CAA section 112(n)(1)(A). These commenters further
said that the proposed monetized cost-benefit approach is inferior to
the longstanding cost-effectiveness test for addressing concerns about
standards that impose costs too high for the industry to bear. However,
other commenters agreed with the EPA that cases interpreting section
111 of the CAA were not an appropriate guide to considering costs under
CAA section 112(n)(1)(A).
Response: The broad language of CAA section 112(n)(1)(A) and the
holding of the Michigan Court suggest that there is more than one
permissible way to interpret the Agency's obligation to consider cost
in the appropriate and necessary finding. The text of that section does
not require the Agency to consider cost in a particular fashion. The
U.S. Supreme Court, in identifying that the Agency's obligation to
consider cost in some fashion in light of the broad term
``appropriate,'' recognized the discretion afforded the Administrator,
noting, ``[i]t will be up the Agency to decide (as always, within the
limits of reasonable interpretation) how to account for cost.'' 135 S.
Ct. at 2711. Even in the final 2016 Supplemental Finding, the EPA
acknowledged that the cost reasonableness test was but one way to
interpret its CAA section 112(n)(1)(A) obligation to consider cost, and
``that the agency need not demonstrate that [its] decision is the same
decision that would be made by another Administrator or a reviewing
court.'' 81 FR 24431. The commenters provide many reasons for why they
preferred the EPA's ``cost reasonableness'' test, but even they do not
attempt to argue that the EPA's 2016 ``preferred approach'' is
[[Page 31293]]
the only permissible interpretation of the statute.
Comparisons of a regulation's costs and the relationship of those
costs to the benefits the regulation is expected to accrue are a
traditional and commonplace way to assess the costs of a regulation and
are a permissible way to comply with Congress' broad directive to the
Administrator to determine whether regulation is ``appropriate'' in CAA
section 112(n)(1)(A). The EPA has never taken the position, nor do
commenters argue now, that any comparison of costs to benefits would be
an impermissible reading of the Agency's obligation to consider cost in
CAA section 112(n)(1)(A); indeed, the Agency's alternative approach to
considering cost in the 2016 Supplemental Finding was a formal cost-
benefit analysis based on its 2011 RIA, and many of the commenters who
now evince a preference for the 2016 ``cost reasonableness test'' at
the time agreed that the 2011 RIA cost-benefit analysis could
independently satisfy the Agency's obligation to consider cost under
CAA section 112(n)(1)(A). U.S. Supreme Court precedent also supports
the Agency's position that, absent an unambiguous prohibition to use
cost-benefit analysis, the Agency generally may do so as a reasonable
way to consider cost.\13\ In Entergy Corp. v. Riverkeeper, Inc., 556
U.S. 208 (2009), the U.S. Supreme Court struck down a Second Circuit
decision prohibiting the EPA from employing benefit-cost analysis where
the statute was silent as to how the Agency was to consider cost in
adopting standards for cooling water intake standards for power plants.
The Second Circuit found that because analogous provisions in the Clean
Water Act explicitly instructed the EPA to consider ``the total cost of
application of technology in relation to the effluent reduction
benefits to be achieved,'' (33 U.S.C. 1314(b)(4)(B)), Congress' failure
to include such an instruction to the EPA in the provision at issue in
the case meant that the EPA was not permitted to compare compliance
costs to expected environmental benefits. The U.S. Supreme Court
reversed, holding that the EPA's use of cost-benefit analysis ``governs
if it is a reasonable interpretation of the statute--not necessarily
the only possible interpretation, nor even the interpretation deemed
most reasonable by the courts.'' Id. at 218 (emphasis in original).
---------------------------------------------------------------------------
\13\ See S. Masur & Eric A. Posner, Cost-Benefit Analysis and
the Judicial Role, 85 U. Chi. L. Rev. 935, 981 (2018).
---------------------------------------------------------------------------
The EPA's choice to employ cost-effectiveness analyses, rather than
cost-benefit comparisons, in the context of other statutory provisions
such as CAA section 111 or the PSD program in no way binds the Agency
to using that method to consider cost in CAA section 112(n)(1)(A). The
EPA's citation in the 2015 Legal Memorandum of our consideration of
cost under CAA section 111 and the case law evaluating those instances
was only to provide context to explain the genesis of the EPA's newly
minted ``cost reasonableness'' test in the 2016 Supplemental Finding.
Even then the EPA did not take the position that the D.C. Circuit cases
reviewing the Agency's cost considerations under CAA section 111 were
binding precedent upon which the Court should review our action under
CAA section 112(n)(1)(A). In short, the commenters' preference that the
EPA consider cost in a different way does not preclude the Agency from
instead considering cost using an approach that compares costs and
benefits, where the statute's broad directive suggests that it may. See
Entergy, 556 U.S. at 226.
Comment: Some commenters asserted that the EPA's proposed approach
to considering costs and benefits is inconsistent with what they
broadly characterize as congressional intent to err on the side of
protecting public health. These commenters argued that Congress
recognized the insufficiency of available methods for quantifying costs
and benefits when revising CAA section 112 in 1990 and that Congress
concluded that the nature and latency of harms posed by HAP are not
given sufficient weight in a regulatory process that must balance long-
term benefits against present-day costs. Commenters said that the
Agency should not construe the Michigan Court's instruction to
``meaningfully consider cost'' as a requirement to consider benefits in
a way that is inconsistent with Congress' determination that reductions
in HAP emissions have great value to the public. These commenters added
that the EPA's proposed approach is based on an incorrect
interpretation of Michigan, which stated only that consideration of
cost should play some role in the appropriate and necessary finding,
not that cost considerations should dominate that finding. According to
these commenters, the studies required in CAA section 112(n) indicate
that Congress put public health and environmental concerns at the
forefront of CAA section 112, which was enacted explicitly in response
to the EPA's lack of action in addressing the harmful effects of HAP,
and, therefore, shares the section's overall focus on harm prevention.
These commenters asserted that the ``preferred approach'' in the 2016
Supplemental Finding met the requirements of Michigan and were
consistent with congressional intent and the CAA's statutory goals.
Other commenters, however, agreed with the 2019 Proposal that the
``cost reasonableness'' test in the 2016 Supplemental Finding's
``preferred approach'' was invalid, harmful, and failed to meet the
Michigan Court's expectation that the Agency should weigh benefits
against costs. These commenters characterized the cost-reasonableness
test, which compared costs of MATS compliance with various other costs
incurred by the power sector, as an ``affordability test,'' or an
inquiry into whether the power sector could absorb the costs of
compliance. These commenters noted that such a test ignores benefits by
failing to provide important information on whether society's
investment in additional costs is worth the expected benefits and fails
to consider whether costs would be ``prudently incurred'' as a means to
reduce hazards to public health. As one commenter put it, ``Simply
because the power sector could absorb costs without affecting current
operational performance does not mean that it should absorb those
costs.'' Some commenters objecting to the ``preferred approach'' in the
2016 Supplemental Finding emphasized that looking at cost in this
manner would invite the promulgation of regulations that are poorly
designed, with few potential benefits. They voiced concern that using
affordability tests could result in agencies focusing public and
private sector resources on extinguishing relatively small risks while
leaving larger risks unattended. Other commenters noted that such tests
also penalize successful industries due to their success, and risk
failing to appropriately regulate industries that are less profitable.
Response: The EPA agrees with commenters who stated that Congress'
intent with respect to CAA section 112, as a whole, evinces an
acknowledgment of the seriousness of toxic air pollutants. We do not
agree, however, that general congressional concern about the toxicity
of HAP overrides the specific instruction given to the Administrator in
CAA section 112(n)(1)(A) to make a determination about whether
regulation of EGUs in particular is ``appropriate and necessary.'' As
the U.S. Supreme Court admonished the EPA in Michigan, the text and
structure of CAA section
[[Page 31294]]
112, and 112(n)(1)(A) in particular, evince Congressional design to
approach the question whether to regulate EGUs differently than other
source categories:
Congress crafted narrow standards for EPA to apply when deciding
whether to regulate other sources; in general, these standards
concern the volume of pollution emitted by the source, [CAA section
112(c)(1)], and the threat posed by the source ``to human health or
the environment,'' [citing CAA section 112(c)(3)]. But Congress
wrote the provision before us [CAA section 112(n)(1)(A)] more
expansively . . . That congressional election settles this case.
[The Agency's] preference for symmetry cannot trump an asymmetrical
statute.
135 S. Ct. at 2710 (internal citations omitted).
Moreover, we do not agree with commenters' suggestion that in the
Agency's comparison of costs and benefits, the EPA is considering
benefits in a way that is inconsistent with a congressional
determination that reductions in HAP emissions have great value to the
public and Congress' public health and environmental concerns. We
disagree that CAA section 112's general concerns about public health
and environmental risks from HAP emissions mandated a particular manner
of valuing or weighing the benefits of reducing those risks.
As noted in the 2019 Proposal, we do not think the 2016
Supplemental Finding's analysis of cost satisfied the Agency's mandate
under CAA section 112(n)(1)(A) and Michigan. The ``preferred approach''
in the 2016 Supplemental Finding considered cost insofar as the Agency
at the time analyzed whether the utility industry as a whole could
continue to operate, and found that it could (i.e., that costs were
``reasonable''). 81 FR 24420, 24422, 24424, 24427, 24428, 24429, 24430,
24431. But we do not think the ``preferred approach'' in the 2016
Finding gave sufficient weight to cost as a ``centrally relevant
factor,'' Michigan, 135 S. Ct. at 2707--that is, we do not think that a
cost standard that is satisfied by establishing that regulation will
not fundamentally impair the functioning of a major sector of the
economy places cost at the center of a regulatory decision--and we are
in this action heeding the Michigan Court's reading of the
Administrator's role under CAA section 112(n)(1)(A), which directed the
Agency to meaningfully consider cost within the context of a
regulation's benefits. We agree that Michigan did not hold that the
Agency is required to base its decision whether it is appropriate and
necessary to regulate EGUs under CAA section 112 on a formal benefit-
cost analysis, but neither did it hold that a comparison of costs and
benefits is an impermissible approach to considering cost.
The U.S. Supreme Court contemplated that a proper consideration of
cost would be relative to benefits, and the Court's decision contains
many references comparing the two considerations. In establishing the
facts of the case, the Court pointed out that ``EPA refused to consider
whether the costs of its decision outweighed the benefits.'' 135 S. Ct.
at 2706. The Court questioned whether a regulation could be considered
``rational'' where there was a gross imbalance between costs and
benefits and stated that ``[n]o regulation is `appropriate' if it does
more harm than good.'' Id. at 2707. The Court also made numerous
references to a direct comparison of the costs of MATS with benefits
from reducing emissions of HAP. For instance, the Court pointed out
that ``[t]he costs [of MATS] to power plants were thus between 1,600
and 2,400 times as great as the quantifiable benefits from reduced
emissions of hazardous air pollutants.'' Id. at 2706. Although the
Court's holding established no bright-line rules, the opinion as a
whole, thus, repeatedly suggests that CAA section 112(n)(1)(A)'s
requisite consideration of cost would not be met if the cost analysis
did not ``prevent the imposition of costs far in excess of benefits.''
Id. at 2710.
The 2016 Supplemental Finding's ``test'' of whether an industry can
bear the cost of regulation, and its subsequent conclusion that such
costs are ``reasonable,'' does not satisfy the statute's mandate to
determine whether such regulation is appropriate and necessary. We
agree with commenters who stated that the metrics ``tested'' by the
Agency in the 2016 Supplemental Finding are not an appropriate basis
for the determination whether it is ``appropriate and necessary'' to
impose that regulation. Each cost metric the Agency examined compared
the cost of MATS to other costs borne by the industry, but never in its
``preferred approach'' did the Agency make the assessment of whether
the benefits garnered by the rule were worth it--i.e., a comparison of
costs and benefits. Even if the EPA determined that cost of regulation
was, viewed on its own terms, unreasonable after comparing the cost of
regulation to other costs borne by the industry, the ``preferred
approach'' could have still resulted in a finding that regulation was
``appropriate'' because the EPA placed so much weight on hazards to
public health and the environment that needed to be prevented. See 81
FR at 24432. In other words, much as it did in 2012 when it read cost
consideration entirely out of the CAA section 112(n)(1)(A)
determination, the Agency in 2016 was fixated on the term
``necessary,'' without considering whether any countervailing factors,
i.e., cost, might call into question whether regulation was
``appropriate.'' As many commenters pointed out, the ``cost
reasonableness test'' failed to consider cost relative to benefits, and
really focused only on whether costs could be absorbed, rather than on
whether they should be absorbed--the inquiry that is specifically
required by the word ``appropriate.'' We, therefore, conclude that the
``cost reasonableness'' approach did not adequately address the U.S.
Supreme Court's instruction that a reasonable regulation requires an
agency to fully consider ``the advantages and the disadvantages'' of a
decision. See Michigan, 135 S. Ct. at 2707 (emphasis in original).
Moreover, we take seriously commenters' concerns that leaving the
``preferred approach'' in place, with its ``cost reasonableness'' or
affordability test, could have a harmful influence on other agencies
interpreting similarly broad congressional directives to consider cost.
Statutes that direct agencies to make determinations about whether
regulation is ``appropriate'' are precisely the contexts in which those
agencies should retain discretion to select and prioritize public
policies which provide the most value for the public good in relation
to the cost.
Comment: Commenters said that the EPA's proposed new approach to
considering cost in the CAA section 112(n)(1)(A) finding is an
impermissible interpretation of that provision because it fails to
meaningfully address factors that are ``centrally relevant'' to the
inquiry of whether it is appropriate and necessary to regulate HAP from
EGUs. Some commenters noted that the Agency's alleged failure in the
2019 Proposal to adequately address these factors, upon which the 2016
Supplemental Finding was predicated, runs afoul of the Agency's
obligation to provide a reasoned explanation for abandoning these
considerations, citing Motor Vehicle Mfrs. Ass'n of United States, Inc.
v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29 (1983) and FCC v.
Fox Television Stations, Inc., 556 U.S. 502 (2009). The commenters
noted that these cases state the principle that agencies cannot simply
ignore prior factual determinations but must provide a ``reasoned
explanation'' for a proposed departure from ``facts and circumstances
that underlay or were engendered by the
[[Page 31295]]
prior policy.'' These commenters specifically faulted the EPA for not
giving appropriate weight to the following factors:
i. Unquantified Benefits
Commenters stated that the 2019 Proposal does not acknowledge that
some ``hazards to public health'' are unquantified and asserted that
the 2019 Proposal presents a significant change in position with
insufficient justification for revising the EPA's longstanding
interpretation that the phrase ``hazards to public health'' encompasses
risks that have not been monetized because of the limitations of
current methods, data, and uncertainty. Commenters said the 2019
Proposal gave no discernable weight to these risks as required by the
statutory phrase ``hazards to public health reasonably anticipated to
occur.''
Moreover, the commenters asserted that the monetized, HAP-specific
benefits at issue, which quantify avoided IQ loss in children
associated with prenatal methylmercury exposure from self-caught fish
consumption among recreational anglers, are but a small fraction of the
public health benefits attributable to reductions in mercury emissions
alone. The commenters cited the statement from the EPA's Science
Advisory Board (SAB), which stated that IQ loss ``is not the most
potentially significant health effect associated with mercury exposure
as other neurobehavioral effects, such as language, memory, attention,
and other developmental indices, are more responsive to mercury
exposure.'' 80 FR 75040. The commenters noted that none of the
environmental benefits from reductions in mercury emissions could be
quantified, nor any of the health or environmental benefits
attributable to reductions in other HAP.
ii. Qualitative Benefits Such as Impacts on Tribal Culture and
Practices
Some commenters stated that the EPA's proposed approach ignores
non-monetizable benefits. These commenters asserted that methylmercury
contamination threatens traditional American Indian lifeways, including
longstanding traditions of fishing and fish consumption that are
central to many tribes' cultural identity and that make individual
tribes as distinct as different individual people. These commenters
stated that for many tribes, fishing and fish consumption are critical
social practices, handed down from generation to generation. Where
tribal members no longer fish due to health concerns, these fishing
traditions are not passed down to new generations of tribal members,
leading to permanent cultural loss. Furthermore, these commenters
stated that many tribes are connected to particular waters for
cultural, spiritual, or other reasons (and others' fishing rights are
limited to certain grounds by treaty), so tribal members cannot simply
move their fishing to another location to avoid mercury contamination.
The commenters asserted that the preferred approach of the 2016
Supplemental Finding recognized that regulation of HAP from EGUs would
benefit American Indians by allowing them to safely engage in, and
thereby perpetuate, their culture. These commenters argued that the
Agency's preferred approach in the 2016 Supplemental Finding properly
deemed these qualitative benefits to be cognizable and highly
significant. In addition, the commenters stated that mercury emissions
likewise cause significant harm to Indian subsistence and fishing
economies, contaminating food sources that many tribal members depend
on for survival. According to these commenters, the EPA's 2016
preferred approach methodology allowed for a full range of qualitative
benefits to be accounted for, whereas the 2019 proposed reversal does
not.
iii. Latency, Persistence in the Environment, and Toxicity of Regulated
Pollutants
Some commenters asserted that the EPA's proposed approach
disregarded the physiochemical nature and toxicity of the toxic air
pollutants regulated by CAA section 112 and the concern Congress had
expressed about these qualities in enacting that section. These
commenters pointed out that, in enacting the list of regulated air
toxics, Congress deliberately withdrew the EPA's authority to judge the
importance of the harms threatened by the listed pollutants. The
commenters noted that Congress itself listed the pollutants, rather
than waiting for the EPA to do so, because of a difficulty which
commenters argue is particular to air toxics: ``[t]he public health
consequences of substances which express their toxic potential only
after long periods of chronic exposure will not be given sufficient
weight in the regulatory process when they must be balanced against the
present-day costs of pollution control and its other economic
consequences.'' Leg. Hist. at 8522 (S. Rep. No. 101-228 at 182). The
commenters argued that these identified harms from air toxics occur
regardless of the source of the pollutants, and, therefore, there is no
reason to believe that Congress might have, by inserting CAA section
112(n)(1)(A), authorized the EPA to reassess the benefits of reducing
those harms in the context of EGUs. The commenters stated that no
study, including the EPA's Utility Study, suggests that HAP from EGUs
are of any different character or pose less harm by their nature than
HAP emitted by any other industrial source category.
iv. Distributional Impacts of the Pollutants on the Population
Commenters pointed to Congress' intent to address harms that are
concentrated within particular communities or populations, citing CAA
section 112(f)(2)(A)'s requirement that the EPA address lifetime excess
cancer risks borne by the ``individual most exposed to emissions,'' CAA
section 112(n)(1)(C)'s directive that the EPA consider power plant
mercury harms to sensitive fish-consuming populations, and legislative
history (``EPA is to consider individuals who are sensitive to a
particular chemical'' in assessing whether a pollutant's harm warrants
regulation) (Leg. Hist. at 8501). The commenters noted that the 2016
Supplemental Finding's preferred approach identified several
populations that were disproportionately at risk of mercury exposure
from EGUs, including African-Americans living below the poverty line in
the Southeast who rely on the fish they catch for food, and the
children and fetuses in those communities in particular whose risk of
exposure is amplified; and individuals and communities who live near
coal- and oil-fired power plants, who are disproportionately members of
racial and ethnic minorities. The commenters cited a study that found
that of the 8.1 million people living within 3 miles of a coal-fired
plant in the year 2000, 39 percent were people of color, a percentage
significantly higher than the proportion of people of color in the U.S.
population as a whole. The same study found that people living within 3
miles of such power plants had an average annual per capita income of
$18,596, significantly lower than the national average.
Some commenters pointed to various executive orders that
independently direct the EPA to consider some of these factors,
including Executive Order 12898 (February 11, 1994), which establishes
that ``disproportionately high and adverse human health or
environmental effects'' of EPA decisions ``on minority populations and
low-income populations in the U.S. and its territories and
possessions'' are of central concern to the EPA's decision-making, with
specific emphasis upon ``subsistence consumption of fish and
[[Page 31296]]
wildlife.'' The commenters also pointed to Executive Order 13045 (April
21, 1997),\14\ which is particularly concerned about ``environmental
health risks'' that may ``disproportionately affect children.''
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\14\ Commenters cite Executive Order 13035 in their comments,
but we believe this was a typographical error.
---------------------------------------------------------------------------
Response: Agency decisions, once made, are not forever ``carved in
stone.'' Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545
U.S. 967, 981 (2005) (internal quotation marks and citations omitted).
We disagree with the commenters' view that the EPA is not permitted to
determine that the ``cost reasonableness'' approach is not the correct
way to consider cost in the CAA section 112(n)(1)(A) appropriate and
necessary finding, and their view that the EPA is not permitted to re-
evaluate the significance of the factual findings underpinning its 2016
Supplemental Finding and come to a different conclusion. D.C. Circuit
and U.S. Supreme Court precedent, including those cases cited by the
commenters, support the Agency's position that it is within its
authority to do so, provided that the Agency's new action is based on a
permissible interpretation of the statute and is supported by a
reasoned explanation.
In FCC v. Fox, the U.S. Supreme Court stated an agency's obligation
with respect to changing a prior policy quite plainly:
We find no basis . . . for a requirement that all agency change
be subjected to more searching review. The [Administrative
Procedure] Act mentions no such heightened standard. And our opinion
in State Farm neither held nor implied that every agency action
representing a policy change must be justified by reasons more
substantial than those required to adopt a policy in the first
instance.\15\
---------------------------------------------------------------------------
\15\ FCC v. Fox, 556 U.S. at 514.
In cases where an agency is changing its position, the Court stated
that a reasoned explanation for the new policy would ordinarily
``display awareness that it is changing position'' and ``show that
there are good reasons for the new policy.'' Id. at 515. However, the
Court held that the agency ``need not demonstrate . . . that the
reasons for the new policy are better than the reasons for the old one;
it suffices that the new policy is permissible under the statute, that
there are good reasons for it, and that the agency believes it to be
better.'' Id. In cases where a new policy ``rests upon factual findings
that contradict those which underlay its prior policy; or when its
prior policy has engendered serious reliance interests that must be
taken into account,'' the Court found that a more detailed
justification might be warranted than what would suffice for a new
policy.
Although commenters assert that the EPA has failed to provide a
reasoned basis for its action here, their real complaint with the
Agency's abandonment of the 2016 Supplemental Finding's ``cost
reasonableness test'' and ``preferred approach'' is that they favored
the way the Agency under that approach weighed certain factors,
including unquantified benefits, impacts on tribes and tribal culture,
the latency and persistence of air toxics in the environment, and
distributional concerns and impacts. That the EPA now weighs these
concerns differently--a weighing that is further explained below--does
not mean the Agency is ``disregarding'' or ``dismissing'' these
concerns.
In the 2019 Proposal, the EPA clearly stated that the unquantified
HAP benefits associated with regulating power plants were
``significant,'' and enumerated the impacts on human health that have
been linked to mercury (including neurologic, cardiovascular,
genotoxic, and immunotoxic effects), the adverse health effects
associated with non-mercury HAP (including cancer and chronic and acute
health disorders that implicate organ systems such as the lungs and
kidneys), and other effects on wildlife and ecosystems. 84 FR 2677.
Contrary to commenters' assertions, the EPA did not ignore these
concerns but said, ``The EPA acknowledges the importance of these
benefits and the limitations on the Agency's ability to monetize HAP-
specific benefits. The EPA agrees that such benefits are relevant to
any comparison of the benefits and costs of a regulation.'' Id. at
2677-78. Moreover, as the Agency pointed out in its proposal, the 2011
RIA, which summarizes the factual findings and scientific studies which
form the basis of this action as well as the EPA's 2016 action,
discussed all of the monetized and unquantified benefits of regulating
HAP from power plants, including the qualitative impacts on American
Indian tribes,\16\ distributional impacts,\17\ and latency and
persistence of the pollutant.\18\ Id. at 2678.
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\16\ 2011 RIA at 7-40 to -49.
\17\ 2011 RIA at 7-49 to -54.
\18\ 2011 RIA at Chapter 4.
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In the context of this action, in which the lens we use to consider
cost is based on a comparison of benefits to cost, we are choosing to
weigh these concerns (and particulate matter (PM) co-benefits discussed
in more detail in section II.C.3 of this preamble) differently than the
manner in which the EPA evaluated them in the 2016 Supplemental
Finding. While it is true that many of the benefits associated with
reducing emissions of HAP from power plants have not been quantified,
the EPA provided in the 2019 Proposal its reasons for concluding that
those unquantified benefits were not likely to overcome the imbalance
between the monetized HAP benefits and compliance costs in the record.
First, as the EPA pointed out and as discussed below, most of the
unquantified benefits of MATS are morbidity effects associated with
exposure to mercury and other HAP. Second, to the extent commenters
have identified potential mortality outcomes such as potential
cardiovascular impacts from mercury exposure and potential cancer risks
from exposure to other HAP, the EPA disagrees, for the reasons provided
below, with the proposition that significant monetized benefits would
be expected from either outcome.
As the commenters acknowledged, the SAB noted that IQ loss ``is not
the most potentially significant health effect associated with mercury
exposure, as other neurobehavioral effects, such as language, memory,
attention, and other developmental indices, are more responsive to
mercury exposure.'' 80 FR 75040. The Agency explained in its 2019
Proposal that the neurobehavioral effects of mercury exposure
identified by the SAB as more ``potentially significant'' are
morbidity, not mortality, outcomes. In the EPA's experience, the
economic value of avoided morbidity effects (e.g., impaired cognitive
development, problems with language, abnormal social development, etc.)
per incident is a small fraction of the monetizable value of avoided
premature deaths. Further, when estimating the economic value of
avoided cases of air pollution-related effects, the Agency has
generally found that the aggregate value of the avoided illnesses
(e.g., hospital admissions, emergency department visits, cases of
aggravated asthma, etc.) is small as compared to the total value of
avoided deaths.\19\
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\19\ See U.S. EPA 2010a: Regulatory Impact Analysis for the
Nitrogen Oxide National Ambient Air Quality Standards Page 4-8
through 4-10; U.S. EPA. 2010b: Regulatory Impact Analysis for the
Sulfur Dioxide National Ambient Air Quality Standards Page 5-26
through 5-28; U.S. EPA. 2012: Regulatory Impact Analysis for the
Particulate Matter National Ambient Air Quality Standards pages 5-
69; U.S. EPA. 2015: Regulatory Impact Analysis for the Ozone
National Ambient Air Quality Standards. Pages 6-57 through 6-60.
---------------------------------------------------------------------------
And the EPA does not expect that to the extent the prevention of
any premature deaths due to regulation of
[[Page 31297]]
HAP could be associated with the MATS rule, the value of that effect
would be significant. With respect to potential premature deaths due to
cardiovascular impacts from mercury exposure, as discussed further in
section II.C.4 of this preamble, there is inconsistency among available
studies as to the degree of association between methylmercury exposure
and various cardiovascular system effects, including studies showing no
association. As a result, based on the presently available information,
the EPA believes available evidence does not support a clear
characterization of the potential relationship between mercury exposure
and cardiovascular mortality. For that reason, the EPA has not modeled
risk (incidence) estimates for this health endpoint and has not
included benefits associated with that endpoint in the analysis. With
respect to potential premature deaths associated with inhalation
exposure to non-mercury HAP, based on existing case-study analyses for
EGUs which focus on the assessment of individual risk based on a number
of conservative assumptions regarding exposure, the EPA anticipates
that the mortality incidence associated with these non-mercury HAP
exposures would be low (see section II.C.3 of this preamble for
additional detail).\20\ In sum, while the EPA recognizes the importance
of unquantified benefits in a comparison against costs, the evaluation
of evidence of unquantified benefits is based on qualitative
information that helps understand the likelihood and potential scale of
those benefits, relative to the monetized benefits and monetized costs.
These qualitative assessments help confirm that unquantified benefits
do not alter the underlying conclusion that costs greatly outweigh HAP
benefits. This topic is discussed in more detail in section II.C.3 of
this preamble.
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\20\ U.S. EPA, Supplement to the Non-Hg Case Study Chronic
Inhalation Risk Assessment In Support of the Appropriate and
Necessary Finding for Coal- and Oil-Fired Electric Generating Units,
November 2011, EPA-452/R-11-013.
---------------------------------------------------------------------------
The other factors identified by the commenters concern qualitative
concerns such as impacts to tribal cultures and the concentration of
public health risks occurring among certain population subgroups or for
individuals living proximate to EGUs. The distribution of potential
health effects may indicate more risk to some individuals than to
others or more impacts to some groups like tribes than others; but in a
cost-benefit comparison, the overall amount of the benefits stays the
same no matter what the distribution of those benefits is. The EPA,
therefore, believes it is reasonable to conclude that those factors to
which the EPA previously gave significant weight--including qualitative
benefits, and distributional concerns and impacts on minorities--will
not be given the same weight in a comparison of benefits and costs for
this action under CAA section 112(n)(1)(A).\21\
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\21\ Nor does the EPA agree with the commenters that Executive
Orders 12898 and 13045 require a particular outcome in the EPA's
appropriate and necessary finding. Executive orders recognize that
agencies must weigh conflicting goals, priorities, and associated
costs as a necessary part of reasoned decision making. Other more
recent executive orders, which emphasize the environmentally
responsible use and development of domestic natural resources, are
also part of the policy calculus to consider. See, e.g., Executive
Order No. 13783, 82 FR 16093 (March 28, 2017) (directing the EPA to
review for possible reconsideration any rule that could
``potentially burden the development or use of domestically produced
energy resources, with particular attention to oil, natural gas,
coal, and nuclear energy resources.
---------------------------------------------------------------------------
None of the information underlying the EPA's action here
constitutes new factual findings, but rather is a reevaluation of the
existing record to arrive at what the Agency believes to be the better
policy regarding whether regulation is ``appropriate.'' In Nat'l Ass'n
of Home Builders v. EPA, the D.C. Circuit reviewed challenges brought
against the EPA that were similar to those concerns raised by
commenters here and found that ``this kind of reevaluation is well
within an Agency's discretion.'' 682 F.3d 1032, 1038 (D.C. Cir. 2012)
(NAHB). There, the EPA reversed course on a prior policy, and
petitioners in that case contended that ``EPA has provided no
justification for its decision to reverse course . . . that is grounded
in any information or experience that was not available to the Agency
when it [adopted] the original rule . . . Rather, EPA merely revisited
old arguments that had already been addressed as part of the original
rulemaking.'' NAHB, 682 F.3d at 1036. Petitioners insisted in that case
that the Agency was required to be held to a higher standard in
reversing its prior decision based on the same factual record, but the
D.C. Circuit disagreed. The Court held that FCC v. Fox ``foreclosed''
petitioners' argument, and that the Agency was permitted to rely on ``a
reevaluation of which policy would be better in light of the facts.''
Id. at 1036-38. It is well settled that such re-weighing or re-
balancing is permissible. See State Farm, 463 U.S. at 57 (``An agency's
view of what is in the public interest may change, either with or
without a change in circumstances.''); Am. Trucking Ass'ns v. Atchison,
Topeka & Santa Fe Ry. Co., 387 U.S. 397, 416 (1967) (declaring that an
agency, ``in light of reconsideration of the relevant facts and its
mandate, may alter its past interpretation and overturn past
administrative rulings''); Organized Village of Kake v. Dept. of
Agriculture, 795 F.3d 956 (9th Cir. 2015) (``We do not question that
the Department was entitled in 2003 to give more weight to
socioeconomic concerns than it had in 2001, even on precisely the same
record.'').
As alluded to in these cases, the ``reasoned basis'' for an
agency's change of interpretation need not be overly complex. Even
Justice Breyer, who dissented from the FCC v. Fox majority, admitted,
``I recognize that sometimes the ultimate explanation for a change may
have to be, `We now weight the relevant considerations differently.' ''
556 U.S. at 550. Such change can, and often is, fueled by the basic
functioning of American democracy--when new presidential
administrations come into office--and the courts have recognized this
to be a legitimate basis for a re-weighing of priorities. See NAHB, 682
F.3d at 1038 (noting the ``inauguration of a new President and the
confirmation of a new EPA Administrator'' largely provided the
reasoning for the EPA's change in policy). Unlike in State Farm, where
the administering agency issued a rollback of a regulation requiring
passive restraints in automobiles without even mentioning airbags at
all, 463 U.S. at 48, 49, 51, here we acknowledge and address those
factors to which we are giving less weight than was given in the 2016
Supplemental Finding. Cf. Organized Village of Kake, 795 F.3d at 968
(suggesting that a policy reversal could be premised upon ``merely
decid[ing] that [the agency] valued socioeconomic concerns more highly
than environmental protection''). The commenters disagree with the way
the Agency has now weighed the facts and circumstances underlying the
original appropriate and necessary finding and the Agency's
consideration of cost in 2016. But that does not mean that the Agency
has not provided a ``reasoned basis'' for its action.
Comment: Some commenters asserted that a ``more detailed
justification'' of the EPA's change in policy is required in this case
given the ``serious reliance interests'' of states, the public, and
industry in maintaining the appropriate and necessary determination and
the MATS rule (citing Fox, 556 U.S. at 515; Encino Motorcars, LLC v.
Navarro, 136 S. Ct. 2117 (2016)). With respect to state and public
interests, the commenters pointed to the fact that the implementation
of MATS has led to a dramatic decrease in HAP emissions
[[Page 31298]]
from power plants, and that the public has an interest in having those
controls remain in place and in the continuation of improvements in air
quality and the corresponding public health and environmental benefits.
Other commenters pointed to the major capital investments that
regulated utilities have already made to comply with MATS and asserted
that a reversal of the 2016 Supplemental Finding creates uncertainty
for the standards themselves. The commenters argued that these reliance
interests, which they claim depend on the maintenance of the 2016
Supplemental Finding, therefore, require the EPA to provide the
heightened justification required under Fox and Encino Motorcars for
its reversal of that finding.
Response: The EPA disagrees with the commenters that the Agency is
required to provide a ``heightened justification'' for this action. In
Fox, the U.S. Supreme Court stated that as a general matter, no
heightened scrutiny or review applies to decisions by agencies to
reverse policies, and that policy changes need not be justified by
reasons more substantial than those required to adopt a policy in the
first instance. See Fox, 556 U.S. at 514-15. But the Court noted that
``in such cases it is not that further justification is demanded by the
mere fact of policy change; but that a reasoned explanation is needed
for disregarding facts and circumstances that underlay or were
engendered by the prior policy, i.e., . . . when its prior policy has
engendered serious reliance interests that must be taken into
account.'' Id. at 515. The Court elaborated on this principle in Encino
Motorcars v. Navarro, 136 S. Ct. 2117 (2016). There, the Court found
that the retail automobile and truck dealership industry had relied for
decades on the Department of Labor's (DOL) position that service
advisors are exempt from the Fair Labor Standard Act's overtime pay
requirements. Given this reliance and the impact that the DOL's change
in policy would have on the industry (citing ``systemic, significant
changes to the dealerships' compensation arrangements'' and the risk
that non-conforming dealerships could face ``substantial FLSA
liability''), the Court held that the DOL had not provided good reasons
for its change in policy, noting that the agency ``said almost
nothing'' and that it merely stated that exempting such employees from
overtime pay was contrary to the statute and it believed its
interpretation was reasonable. Encino Motorcars, 136 S. Ct. at 2126-27.
The Court stated that ``an agency may justify its policy choice by
explaining why that policy is more consistent with statutory language
than alternative policies,'' Id. (internal citations omitted), but
chided the DOL for failing to include such a justification in its
policy reversal.
First, we note that commenters raising serious reliance interests
differ in at least one major way from the petitioners in Encino
Motorcars. While those petitioners faced very real impacts based on the
Agency's changed position (``systemic, significant'' changes to
employee compensation and potential liabilities from failure to comply
with the changed policy), the reliance interests cited by the
commenters are not upended by this final action. As we stated in the
proposal, the EPA finds that its re-evaluation of the costs and
benefits of regulation of HAP emissions from power plants will not
rescind or affect the regulatory program upon which the commenters
rely, due to binding D.C. Circuit precedent (see section II.D of this
preamble). To the contrary, the EPA is finalizing the results of the
proposed RTR of MATS in this final action. The EPA determined that
after compliance with MATS, the residual risks due to emissions of HAP
from the Coal- and Oil-Fired EGU source category are acceptable in
accordance with CAA section 112, and that there are no developments in
HAP emissions controls to achieve further cost-effective reductions
beyond the current standards. Therefore, based on the results of the
RTR analyses, the Agency is promulgating this final action that
maintains MATS in its current form.
Second, unlike the DOL in Encino Motorcars, the EPA has provided
its reasons for changing its determination that the regulation of HAP
emissions from power plants is not ``appropriate.'' As explained in the
proposal and in this preamble, the EPA believes that a consideration of
costs that compares the costs of compliance with the HAP-specific
benefits of regulation ``is more consistent with statutory language''
than the 2016 Supplemental Finding's ``preferred approach.'' Further,
as discussed in section II.C.3 of this preamble, we do not think the
determination that regulation is ``appropriate'' under CAA section
112(n)(1)(A), an air toxics provision, should primarily hinge on the
monetary benefits associated with reductions in emissions of pollutants
not regulated under CAA section 112. We believe the explanations
provided in this action fully comply with the case law's requirement to
provide a reasoned explanation for our reversal of the 2016
Supplemental Finding.
3. The EPA's Alternative Benefit-Cost Approach Used in the 2016
Supplemental Finding Improperly Considered Co-Benefits From Non-HAP
Emissions Reductions
The 2016 Supplemental Finding presented an alternative approach
under which the EPA made an independent finding under CAA section
112(n)(1)(A) based on a formal benefit-cost analysis \22\ that it was
appropriate and necessary to regulate EGUs under CAA section 112. See
81 FR 24427. The formal benefit-cost analysis used in the 2016
Supplemental Finding relied on information reported in the RIA
developed for the 2012 MATS Final Rule pursuant to Executive Orders
12866 and 13563 and applicable statutes other than the CAA (e.g., the
Regulatory Flexibility Act and the Unfunded Mandates Reform Act), as
informed by Office of Management and Budget (OMB) guidance \23\ and the
EPA's Economic Guidelines.\24\
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\22\ We use the term ``formal benefit-cost analysis'' to refer
to an economic analysis that attempts to quantify all significant
consequences of an action in monetary terms in order to determine
whether an action increases economic efficiency. A benefit-cost
analysis evaluates the favorable effects of policy actions and the
associated opportunity costs of those actions. The favorable effects
are defined as benefits. Opportunities forgone define economic
costs. A formal benefit cost analysis seeks to determine whether the
willingness to pay for an action by those advantaged by it exceeds
the willingness to accept the action by those disadvantaged by it.
The key to performing benefit-cost analysis is the ability to
measure both benefits and costs in monetary terms so that they are
comparable. Assuming all consequences can be monetized, actions with
positive net benefits (i.e., benefits exceed costs) improve economic
efficiency. This usage is consistent with the definition of a
benefit-cost analysis used in the economics literature and the EPA's
Guidelines for Preparing Economic Analyses.
\23\ U.S. OMB. 2003. Circular A-4 Guidance to Federal Agencies
on Preparation of Regulatory Analysis. Available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.
\24\ U.S. EPA. 2014. Guidelines for Preparing Economic Analyses.
EPA-240-R-10-001. National Center for Environmental Economics,
Office of Policy. Washington, DC. December. Available at https://www.epa.gov/environmental-economics/guidelines-preparing-economic-analyses. Docket ID Item No. EPA-HQ-OAR-2009-0234-20503.
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The quantified benefits accounted for in the formal benefit-cost
analysis in the 2016 Supplemental Finding's alternative approach
included both HAP and non-HAP air quality benefits. Based on the 2011
RIA, the EPA projected the quantifiable benefits of HAP reductions
under the rule to be $4 to $6 million in 2015.\25\ The RIA also
identified unquantified benefits associated with reducing HAP emissions
from EGUs.
[[Page 31299]]
The EPA projected that the co-benefits associated with reducing these
non-HAP pollutants would be substantial. Indeed, these projected co-
benefits comprised the overwhelming majority (approximately 99.9
percent) of the monetized benefits of MATS ($36 billion to $89 billion
in 2015). The compliance costs of the 2012 MATS Final Rule were
projected to be $9.6 billion in 2015.\26\ These compliance costs are an
estimate of the increased expenditures in capital, fuel, and other
inputs by the entire power sector to comply with MATS emissions
requirements, while continuing to meet a given level of electricity
demand.
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\25\ Like the 2011 RIA, all benefits and costs in this and
subsequent sections of this preamble are reported in 2007 dollars.
\26\ See Table 3-5 of the RIA: https://www3.epa.gov/ttn/ecas/docs/ria/utilities_ria_final-mats_2011-12.pdf.
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a. Summary of 2019 Proposal
The EPA proposed to find that it had erred in the 2016 Supplemental
Finding's benefit-cost analysis in giving equal weight to the air
quality co-benefits projected to occur as a result of the reductions in
HAP. The focus of CAA section 112(n)(1)(A) is HAP emissions reductions.
The EPA outlined in detail in the 2019 Proposal that the Agency had
erred in concluding in the 2016 Supplemental Finding that the statutory
text of CAA section 112(n)(1)(A) and the legislative history of CAA
section 112 more generally supported the position that it was
reasonable to give equal weight to co-benefits in a CAA section
112(n)(1)(A) appropriate and necessary finding. 81 FR 24439. The EPA
explained in the 2019 Proposal that, because the vast majority of the
estimated monetized benefits in the 2011 RIA that were estimated to
result from MATS are associated with reductions in fine particulate
matter (PM2.5) precursor emissions, the EPA had erred in the
2016 Supplemental Finding by giving equal weight to non-HAP co-benefits
in making the appropriate and necessary determination. As the 2019
Proposal observed, Congress, in the National Ambient Air Quality
Standards (NAAQS) program, established a rigorous system for setting
standards of acceptable levels of criteria air pollutants requisite to
protect public health with an adequate margin of safety, and by state,
regional, and national rulemakings establishing control measures to
meet those levels.
The EPA did acknowledge the importance of unquantified benefits in
the 2019 Proposal, but also pointed out the limitations of the Agency's
ability to monetize HAP-specific benefits. The EPA explained that
unquantified benefits are relevant to any comparison of the benefits
and costs of regulation. Because unquantified benefits are, by
definition, not considered in monetary terms, the EPA proposed that the
Administrator would evaluate the evidence of unquantified benefits and
determine the extent to which they alter any appropriate and necessary
conclusion based on the comparison of monetized costs and benefits.
b. Final Rule
The EPA is finalizing the determination outlined in the 2019
Proposal. The EPA believes that the alternative approach to the 2016
Supplemental Finding was fundamentally flawed in applying a formal
cost-benefit analysis to the specific decision making standard directed
by CAA section 112(n)(1)(A) because, in the context of the appropriate
and necessary finding, doing so implied that an equal weight was given
to the non-HAP co-benefit emission reductions and the HAP-specific
benefits of the regulation. The total cost of compliance with MATS
($9.6 billion in 2015) vastly outweighs--by a factor of 1 thousand, or
3 orders of magnitude--the monetized HAP benefits of the rule ($4 to $6
million in 2015). In these circumstances, to give equal weight to the
monetized PM2.5 co-benefits would permit those benefits to
become the driver of the regulatory determination, which the EPA
believes would not be appropriate for the reasons stated in the
proposal and set forth below.
c. Comments and Responses
Comment: Many commenters argued that the EPA's proposed approach to
considering co-benefits in the CAA section 112(n)(1)(A) appropriate and
necessary determination is not consistent with the statute. The
commenters believe that basic principles of statutory construction do
not allow the EPA to read CAA section 112(n)(1)(A) only in isolation.
The commenters asserted that the EPA has not explained why CAA section
112(n)(1)(A)'s reference to regulation of EGUs allows the Agency to
disregard a portion of the consequences of its decision. One commenter
noted that the language in the Senate Report on the 1990 amendments to
CAA section 112, which directs the EPA to consider the co-benefits of
HAP regulation, is the closest specific indication of congressional
intent for interpreting CAA section 112(n). The commenter also pointed
to the portion of CAA section 112(n) that requires the EPA to conduct a
study of hazards to health likely to occur from utility HAP emissions
after implementation of other non-HAP provisions of the CAA, and
suggested that this provision implies that the EPA should evaluate non-
HAP benefits of HAP regulations to see if they are sufficient to
establish the case for HAP regulation. One commenter noted that the
EPA's approach arbitrarily excludes from consideration a critically
important set of the consequences of the EPA's decision, namely the
public health concerns at the heart of the CAA.
Response: The EPA agrees with the commenters that it is critical to
examine the language in CAA section 112(n)(1)(A), as well as the
overall context of CAA section 112, in determining the scope of the
cost consideration for the appropriate and necessary determination. In
CAA section 112, Congress has a particularized focus on reducing HAP
emissions and addressing public health and environmental risks from
those emissions. In CAA section 112(n)(1)(A), Congress directs the EPA
to decide whether regulation of EGUs is appropriate and necessary under
CAA section 112, i.e., whether the deployment of specific CAA
provisions targeted at reducing HAP emissions from the EGU sector is
warranted. The EPA believes that it cannot answer this question by
pointing to benefits that are overwhelmingly attributable to reductions
in an entirely different set of pollutants not targeted by CAA section
112. The EPA believes that it is illogical for the Agency to make a
determination, informed by a study of what hazards remain after
implementation of other CAA programs, that regulation under CAA section
112, which is expressly designed to deal with HAP emissions, is
``appropriate'' principally on the basis of criteria pollutant impacts.
The EPA believes that relying almost exclusively on benefits
accredited to reductions in pollutants not targeted by CAA section 112
is particularly inappropriate given that those other pollutants are
already comprehensively regulated under other CAA provisions, such as
those applying to the NAAQS. As the EPA outlined in the 2019 Proposal,
the determination that it is not appropriate to give equal weight to
non-HAP co-benefits in making the appropriate and necessary
determination is further supported by the fact that Congress
established a rigorous system for setting standards of acceptable
levels of criteria air pollutants and provided a comprehensive
framework directing the implementation of those standards in
[[Page 31300]]
order to address the health and environmental impacts associated with
those pollutants. See, e.g., 42 U.S.C. 7409; 7410; 7501; 7502; 7505a;
7506; 7506a; 7507; 7509; 7509a; 7511; 7511a; 7511b; 7511c; 7511d;
7511e; 7511f; 7512; 7512a; 7513; 7513a; 7513b; 7514; and 7515. The vast
majority of the monetized benefits in the 2011 RIA that were estimated
to result from MATS are associated with reductions in PM2.5
precursor emissions, principally nitrogen oxides (NOX) and
sulfur dioxide (SO2). NOX, SO2, and
PM2.5 are already addressed by a multitude of statutory
provisions governing levels of these pollutants, including the NAAQS
provisions that require the EPA to set standards for criteria
pollutants requisite to protect public health with an adequate margin
of safety, and by state, regional, and national rulemakings
establishing control measures to meet those levels.
The 2016 Supplemental Finding pointed to CAA section 112(n)(1)(A)'s
directive to ``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 [HAP] after imposition of the
requirements of [the CAA],'' and noted that the requirement to consider
co-benefit reduction of HAP resulting from other CAA programs
highlighted Congress' understanding that programs targeted at reducing
non-HAP pollutants can and do result in the reduction of HAP emissions.
Id. The finding also noted that the Senate Report on CAA section
112(d)(2) recognized that MACT standards would have the collateral
benefit of controlling criteria pollutants. Id. However, these
statements acknowledging that reductions in HAP can have the collateral
benefit of reducing non-HAP emissions and vice versa, provides no
support for the proposition that any such co-benefits should be
considered on equal footing as the HAP-specific benefits when the
Agency makes its finding under CAA section 112(n)(1)(A).
The study referenced in CAA section 112(n)(1)(A) specifically
focuses on the hazards to public health that will reasonably occur as a
result of HAP emissions, not harmful emissions in general. (``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
chapter.'') According to that section, ``[t]he 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.'' The text on its face suggests that Congress wanted the
Administrator's appropriate and necessary determination to be focused
on the health hazards related to HAP emissions and the potential
benefits of avoiding those hazards by reducing HAP emissions. While the
provision in one sense does acknowledge the existence of co-benefits--
i.e., by referencing the potential for ancillary reductions of HAP
emissions by way of CAA provisions targeting other pollutants--it does
not follow from this that any ancillary reductions of criteria
pollutants that may be projected to result from the regulation of EGU
HAP emissions should, therefore, play a part in the Administrator's
consideration under CAA section 112(n)(1)(A) whether the regulation of
EGUs is ``appropriate and necessary.'' To the contrary, the statutory
direction to consider whether it is appropriate and necessary to
regulate HAP after criteria pollutants have been addressed by the CAA's
other requirements suggests that it is not proper for the co-benefits
of further criteria pollutant reductions to provide the dominant
justification for an affirmative CAA section 112(n)(1)(A)
determination. Certainly, Congress' instruction to the EPA that it
study HAP effects under CAA section 112 after implementation of other
CAA provisions cuts against any suggestion that such benefits should be
given equal consideration in a CAA section 112(n)(1)(A) determination.
Comment: Several commenters argued that the EPA's proposed
approach, of not providing consideration to co-benefits equal to the
consideration provided to the benefits specific to HAP reductions,
takes a too-narrow approach that conflicts with Michigan. Commenters
pointed out that the Court found that CAA section 112(n) tells the EPA
to undertake a ``broad and all-encompassing'' review of ``all the
relevant factors.'' 135 S. Ct. at 2707. Commenters argued that if the
Court read ``appropriate'' to be a ``broad and all-encompassing term,''
then the EPA cannot excise relevant factors from consideration.
Commenters also stated that the Court, in instructing the EPA to
consider cost, appeared to adopt a broad reading of the word ``cost,''
including ``more than the expense of complying with regulations; any
disadvantage could be termed a cost.'' 137 S. Ct. at 2707.
Response: Nothing in the Michigan decision decides this issue. To
the contrary, the Court said that the proper treatment of co-benefits
is ``a point we need not address.'' 135 S.Ct. at 2711. Additionally,
commenters seem to mistake the EPA's position (see, e.g., Environmental
Protection Network (EPN) comment at 25 (April 17, 2019) (Docket ID Item
No. EPA-HQ-OAR-2018-0794-2261) (referring to ``EPA's crabbed claim that
it can focus only on reduction of `HAP emissions--without even
considering reductions in non-HAP pollutants').'' See also States and
Local Governments comment at 35-36 (April 17, 2019) (Docket ID Item No.
EPA-HQ-OAR-2018-0794-1175) (``In proposing to exclude consideration of
[co-benefits], EPA misinterprets and misapplies the Supreme Court's
directive in Michigan.'')). The commenters essentially argue that the
language in Michigan requires the EPA to review ``all the relevant
factors,'' including co-benefits. As described at length in the 2019
Proposal and other parts of this section of this preamble, the EPA is
considering what significance co-benefits have for its determination
under CAA section 112(n)(1)(A)--but we are concluding that the finding
must be justified overwhelmingly by the HAP benefits due to the
statutory structure.
Comment: Some commenters argued that existing case law, beyond the
Michigan decision, supports inclusion of indirect benefits into an
agency's benefit-cost analysis. A commenter quoted the D.C. Circuit's
statement in American Trucking Ass'ns v. EPA that the EPA must consider
both the direct and indirect effects of pollutants, rather than only
``half of a substance's health effects.'' 175 F.3d 1027, 1051-53 (D.C.
Cir. 1999), rev'd on other grounds sub nom. Whitman v. Am. Trucking
Ass'ns, Inc., 531 U.S. 457 (2001). The commenter also cited a Fifth
Circuit case in which the Court held that the EPA had to consider the
indirect safety harm that could result from the use of substitute, non-
asbestos brakes when attempting to ban asbestos-based brakes under the
Toxic Substances Control Act. Corrosion Proof Fittings v. EPA, 947 F.2d
1202, 1225 (5th Cir. 1991). A few commenters also noted the D.C.
Circuit's favorable treatment of the EPA's consideration of co-benefits
in regulating HAP from boilers, process heaters, and incinerators in
U.S. Sugar Corp. v. EPA, 830 F.3d 579, 591, 625 (D.C. Cir. 2016).
Response: As explained elsewhere in this preamble, the EPA is
interpreting and applying the statutory directive to make an
appropriate and necessary determination under CAA section 112(n)(1)(A)
and determining what role
[[Page 31301]]
consideration of co-benefits should play in making that determination.
None of the case law the commenters cite pertains to CAA section
112(n)(1)(A), and, therefore, the case law is not directly relevant to
this action.
As explained in the 2019 Proposal and in this preamble, the EPA
believes that it would be inconsistent with the statute and with case
law to base the appropriate and necessary finding on a monetized
benefit estimate that is almost exclusively attributable to reductions
of non-HAP pollutants. Further, the CAA sets out a specific regulatory
scheme for the PM pollutants in question, the NAAQS, and as a first
principle the EPA believes those regulations, not CAA section 112,
should be the primary method by which the Agency targets those
pollutants.
Comment: Several commenters argued that the EPA's approach of
giving less weight to co-benefits in the appropriate and necessary
determination is fundamentally arbitrary. The commenters pointed out
that the PM2.5 emission reductions are a direct result of
HAP emissions controls, and that there is no way to reduce the HAP
emissions without reducing PM emissions. Some commenters asserted that
excluding some benefits from the appropriate and necessary
determination creates a biased analysis. One commenter argued that the
EPA's approach is arbitrary and contrary to Michigan and other U.S.
Supreme Court precedent because it ``fai[ls] to consider [such] an
important aspect of the problem.'' Michigan, 135 S. Ct. at 2707
(quoting State Farm, 463 U.S. at 53).
Response: The EPA acknowledges the existence and importance of
these co-benefits. However, when the EPA is comparing benefits to costs
as a required prerequisite to regulation, it is critical to examine the
particular statutory provision that is being implemented. That
statutory provision may limit the relevance of certain costs and
benefits--e.g., serve to establish that any benefits attributable to
the ancillary reduction of pollutant emissions that are not the focus
of the provision at issue are not ``an important aspect of the
problem'' that Congress is seeking to address. As noted in the 2019
Proposal and in earlier responses to comments, in CAA section
112(n)(1)(A), Congress directs the EPA to decide whether regulation of
EGUs is appropriate and necessary under CAA section 112; the EPA
believes that it is not appropriate to answer this question in the
affirmative by pointing to benefits that are overwhelmingly
attributable to reductions in an entirely different set of pollutants
that CAA section 112 is not designed to address. In fact, the EPA
believes that it would be arbitrary and capricious to do so. See Motor
Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983) (``Normally, an agency rule would be arbitrary and capricious if
the agency has relied on factors which Congress has not intended it to
consider.'').
The EPA is not turning a blind eye to the reasonably predictable
consequences of MATS. The 2011 RIA appropriately details the magnitude
of the PM2.5-related co-benefits in the form of avoided
premature deaths, hospital admissions, emergency department visits and
asthma attacks, among other endpoints. However, CAA section
112(n)(1)(A) requires a threshold determination of whether any
regulation of EGUs under CAA section 112 is ``appropriate and
necessary.'' The EPA believes that this inquiry must be focused
primarily on the risks posed by the pollutants targeted by CAA section
112, i.e., HAP emissions. The gross disparity between monetized costs
and HAP benefits, which should be the primary focus of the
Administrator's determination in CAA section 112(n)(1)(A), is so great
as to make it inappropriate to form the basis of the necessary
statutory finding. While the Agency acknowledges that PM co-benefits
are substantial, the Agency cannot rely on PM co-benefits to supplant
the primary factors Congress directed the Administrator to consider.
Comment: Several commenters asserted that the EPA's approach to
considering co-benefits under the CAA section 112(n)(1)(A) analysis was
inappropriate because it is unprecedented in the EPA's regulatory
practice and contrary to OMB and EPA policy. Commenters asserted that
co-benefits are universally accepted as an important tool in regulatory
economics and economic planning. Commenters quoted OMB Circular A-4 as
directing agencies in conducting RIAs to ``look beyond the direct
benefits and direct costs of your rulemaking and consider any important
ancillary benefits and countervailing risks.'' The commenters also
identified the EPA's ``Guidelines for Preparing Economic Analyses''
that states: ``An economic analysis of regulatory or policy options
should present all identifiable costs and benefits that are incremental
to the regulation or policy under consideration. These should include
directly intended effects and associated costs, as well as ancillary
(or co-) benefits and costs.'' Commenters also cited to previous clean
air rules where the EPA has afforded co-benefits equal weight in cost-
benefit analyses.
Response: The EPA developed the 2011 RIA for the 2012 MATS Final
Rule pursuant to Executive Orders 12866 and 13563, as well as certain
other applicable statutes, as informed by OMB guidance and the EPA's
Economic Guidelines. It is true that, in this action, the EPA is
drawing on information generated in that RIA in order to make the
determination required under CAA section 112(n)(1)(A) concerning
whether regulation of EGUs under CAA section 112 is appropriate. How
costs are to be considered in making the congressionally-directed CAA
section 112(n)(1)(A) determination, however, is not governed
independent from statutory requirements, by preexisting OMB or EPA
guidelines, nor could it be. Furthermore, for the many reasons
explained elsewhere in this preamble and in the 2019 Proposal, the CAA
section 112(n)(1)(A) determination is governed by the particular
statutory provision at issue, and, therefore, is distinct from any
other CAA action.
In the context of conducting the CAA section 112(n)(1)(A)
determination, the EPA finds it is not only appropriate but indeed,
necessary for the EPA to interpret and apply the particular provision
of CAA section 112(n)(1)(A), which as mentioned earlier specifically
cites to HAP listed under section 112(b) of the CAA. To be valid, the
EPA's analytical approach to that provision must recognize Congress'
particular concern about risks associated with HAP and the benefits
that would accrue from reducing those risks. OMB and EPA guidance
outline regulatory principles that agencies are encouraged to follow to
the extent permissible under law. These guidance documents, and the
standard economic principles reflected in them, are not necessarily
informative regarding how Congress intended the EPA to make the CAA
section 112(n)(1)(A) determination, nor should they be read to override
statutory text and structure that, as explained earlier in this
preamble, requires a focus on a limited set of costs and benefits.
Although an analysis of all reasonably anticipated benefits and costs
in accordance with generally recognized benefit-cost analysis practices
(including extending analytic efforts to ancillary impacts in a
balanced manner across both benefits and costs) is appropriate for
informing the public about the potential effects of any regulatory
action, as well as for complying with the requirements of Executive
Order 12866, it does not follow that equal consideration of all
benefits and costs, including co-benefits, is warranted, or even
[[Page 31302]]
permissible, for the specific statutory provision requiring the EPA to
make an appropriate and necessary finding called for under CAA section
112(n)(1)(A).
Comment: Some commenters asserted that the EPA's 2019 Proposal
erroneously suggests that CAA sections 110 and 112 must be treated as
mutually exclusive authorities for reducing the public health impacts
of PM emissions. Commenters argued that there is no basis to ignore the
benefits of reducing pollutants merely because they are also subject to
regulation under state and federal implementation plans approved to
implement the NAAQS. One commenter noted that the existence of other
CAA provisions that deal with criteria pollutant emissions likely
indicates Congress' deep concern about the health and environmental
risks they pose. One commenter argued that there is no legal support
for the idea that CAA section 110 or 112 requires exclusivity; the EPA
is not required to pick one avenue through which it can impact PM
emissions. The commenter noted that many CAA provisions can address PM,
such as those for interstate transport and regional haze, and the EPA
itself has encouraged states in their implementation planning to
consider selecting controls that will minimize emissions of multiple
pollutants. Another commenter acknowledged that the EPA does not argue
that the other provisions should be the exclusive vehicle for
addressing criteria pollutants, but this commenter asserted that the
2019 Proposal did not explain how criteria pollutant reductions could
be realized more effectively by some other legal mechanism and did not
claim that criteria pollutants have been fully controlled through those
other programs. One commenter also argued that the EPA's proposal is
particularly unfounded because many metal HAP are emitted as PM.
Response: The EPA disagrees with the commenters. The EPA's
discussion of co-benefits, and the impropriety of giving them equal
weight to HAP-specific benefits within the context of the appropriate
and necessary determination, is based on an interpretation of CAA
section 112(n)(1)(A), a provision enacted by Congress to address the
unique situation facing EGUs. We have limited our analysis to the
specifically tailored provision of CAA section 112(n)(1)(A), in which
Congress recognized that EGUs would face regulation under numerous
parts of the CAA and chose to ask the EPA to consider whether further
regulation of EGUs under CAA section 112 would be appropriate and
necessary. As noted previously in this preamble and the 2019 Proposal,
the vast majority of estimated monetized benefits resulting from MATS
are associated with reductions in PM2.5 precursor emissions,
principally NOX and SO2. Both NOX and
SO2 are criteria pollutants in their own right and are
already addressed by the numerous statutory provisions governing
criteria pollutants. In interpreting and applying CAA section
112(n)(1)(A), we believe it is important to acknowledge that the CAA
has established numerous robust avenues for minimizing PM-precursor
emissions to a level that is requisite to protect public health with an
adequate margin of safety. Because other CAA programs are already in
place to ensure reductions in criteria pollutants to the level
requisite to protect public health with an adequate margin of safety,
the EPA believes that it is not reasonable to point to criteria
pollutant co-benefits as the primary benefit to justify regulation of
EGUs under a provision of the CAA that authorizes such regulation only
where the Administrator determines that it is ``appropriate and
necessary'' to do so.\27\
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\27\ A number of commenters raised this same issue and made this
same point. See, e.g., Docket ID Item Nos. EPA-HQ-OAR-2018-0794-
1135, -1178, -1189, -1190.
---------------------------------------------------------------------------
With respect to one commenter's assertion that the EPA's approach
was particularly unfounded given that many metal HAP are emitted as PM,
the EPA agrees that most non-mercury metal HAP are emitted as PM. In
fact, the EPA established an emission standard for filterable PM in the
2012 MATS Final Rule that serves as a surrogate for the non-mercury
metal HAP (recognizing that controls for PM are also effective for the
non-mercury metal HAP). However, the fact that the non-mercury metal
HAP are emitted in a solid particulate form does not mean that the EPA
should give equal weight to the benefits from removal of all PM. As
described in the 2011 RIA for the 2012 MATS Final Rule,
PM2.5 benefits result from emissions reductions of
SO2 (1,330,000 tons), NOX (46,000 tons),
carbonaceous PM2.5 (6,100 tons), and crustal
PM2.5 (39,000 tons). Control of directly-emitted filterable
PM for purposes of controlling non-mercury metal HAP constituted
approximately 5 percent of the total PM2.5 health co-
benefits of the rule. Based on analysis of available data, the EPA
estimates that non-mercury metal HAP represent, at most, 0.8 percent of
this directly emitted filterable PM.\28\ The actual HAP-related
benefits of controlling non-mercury metal HAP were unquantified. Again,
the vast majority of estimated monetized benefits resulting from MATS
are associated with reductions in premature mortality resulting from
emissions reductions of PM precursors and not from metal HAP or even
direct PM.
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\28\ As mentioned in the Emission Factor Development for RTR
Risk Modeling Dataset for Coal- and Oil-fired EGUs memorandum
(Docket ID Item No. EPA-HQ-OAR-2018-0794-0010), the EPA developed
ratios of non-mercury metal and filterable PM emissions for use in
estimating emissions from coal- and oil-fired EGUs without current
non-mercury metal emissions data. These ratios were determined by
dividing the fuel-specific averages of the 2010 MATS Information
Collection Request (ICR) non-mercury metals data, combined by
control technique where possible, by the filterable PM emissions
data. The ratios represent the amount of non-mercury metals present
in filterable PM. For more detail, see memorandum titled Non-mercury
Metals Content of Filterable Particulate Matter in the docket for
this action.
---------------------------------------------------------------------------
Comment: Several commenters asserted that the EPA has not explained
what weight is given to co-benefits, or how the EPA chose that
standard, aside from saying that the weight is less than what is given
to HAP-specific benefits. One commenter noted that the EPA essentially
claims that co-benefits cannot affect the appropriate and necessary
determination unless quantified HAP benefits are ``moderately
commensurate'' with compliance costs, but the EPA does not provide any
clarity on the point at which HAP benefits would be ``moderately
commensurate'' to allow the EPA to rely on co-benefits.
Response: The Administrator has concluded that the following
procedure provides the appropriate method under which the EPA should
proceed to determine whether it is appropriate and necessary to
regulate EGUs under CAA section 112(n)(1)(A). First, the EPA compares
the monetized costs of regulation against the subset of HAP benefits
that could be monetized. Here, those costs are disproportionate to the
monetized benefits, by three orders of magnitude. That does not
demonstrate ``appropriate and necessary.'' Second, the EPA considers
whether unquantified HAP benefits may alter that outcome. For the
reasons proposed in February 2019 and further discussed in this final
action, the EPA determines they do not. Third, the EPA considers
whether it is appropriate, notwithstanding the above, to determine that
it is ``appropriate and necessary'' to regulate EGUs under CAA section
112(n)(1)(A) out of consideration for the PM co-benefits that result
from such regulation. For the reasons proposed in February 2019 and set
forth in this final action, on the record before the Agency, it is not
appropriate to do so.
Here, almost the entirety of monetized benefits (about 99.9
percent) of MATS
[[Page 31303]]
reflected in the RIA were derived from non-HAP co-benefits. Had the
HAP-specific benefits of MATS been closer to the costs of regulation, a
different question might have arisen as to whether the Administrator
could find that co-benefits legally form part of the justification for
determination that regulation of EGUs under CAA section 112(d) is
appropriate and necessary. The EPA does not need to, and does not,
determine whether that additional step would be appropriate in this
factual scenario given that the monetized and unquantified HAP-specific
benefits do not come close to a level that would support the prior
determination. Under the interpretation of CAA section 112(n)(1)(A)
that the EPA adopts in this action, HAP benefits, as compared to costs,
must be the primary question in making the `appropriate and necessary'
determination. While the Administrator could consider air quality
benefits other than HAP-specific benefits in the CAA section
112(n)(1)(A) context, consideration of these co-benefits could
permissibly play only, at most, a marginal role in that determination,
given that the CAA has assigned regulation of criteria pollutants to
other provisions in title I of the CAA, specifically the NAAQS regime
pursuant to CAA sections 107-110, which requires the EPA to determine
what standards for the ambient concentration of PM are necessary to
protect human health. Here, to the extent that the alternative approach
set forth within the 2016 Supplemental Finding was legally grounded in
co-benefits, the massive disparity between co-benefits and HAP benefits
on this record would mean that that alternative approach clearly
elevated co-benefits beyond their permissible role.
If the Administrator were to consider the size of the
PM2.5-related co-benefits in deciding whether regulating
EGUs under CAA section 112(d) is appropriate and necessary, he should
also consider taking into account key assumptions affecting the size
and distribution of these co-benefits and potential uncertainty
surrounding them. In the past, the EPA has highlighted a number of
these assumptions as having particularly significant effect on
estimates of PM-related benefits, including assumptions about: The
causal relationship between PM exposure and the risk of adverse health
effects; the shape of the concentration-response relationship for long-
term exposure-related PM2.5 and the risk of premature death;
the toxicity of individual PM2.5 particle components; the
levels of future PM2.5; the validity of the reduced-form
technique used to relate PM2.5 emission precursors to the
number and value of PM2.5 adverse health effects; and the
approach used to assign a dollar value to adverse health effects. The
Agency has separately noted that, in general, it is more confident in
the size of the risks we estimate from simulated PM2.5
concentrations that coincide with the bulk of the observed PM
concentrations in the epidemiological studies that are used to estimate
the benefits. Likewise, the Agency is less confident in the risk
estimated from simulated PM2.5 concentrations that fall
below the bulk of the observed data in these studies.\29\ Furthermore,
when setting the 2012 PM NAAQS, the Administrator acknowledged greater
uncertainty in specifying the ``magnitude and significance'' of PM-
related health risks at PM concentrations below the NAAQS. As noted in
the preamble to the 2012 PM NAAQS final rule, in the context of
selecting an alternative NAAQS, the ``EPA concludes that it is not
appropriate to place as much confidence in the magnitude and
significance of the associations over the lower percentiles of the
distribution in each study as at and around the long-term mean
concentration.'' (78 FR 3154, January 15, 2013).
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\29\ The Federal Register document for the 2012 PM NAAQS
indicates that ``[i]n considering this additional population level
information, the Administrator recognizes that, in general, the
confidence in the magnitude and significance of an association
identified in a study is strongest at and around the long-term mean
concentration for the air quality distribution, as this represents
the part of the distribution in which the data in any given study
are generally most concentrated. She also recognizes that the degree
of confidence decreases as one moves towards the lower part of the
distribution.''
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Comment: Some commenters argued that the EPA is inappropriately
giving full weight to the consideration of indirect costs of regulating
EGUs while simultaneously giving less than equal weight to co-benefits.
One commenter argued that comparing direct and indirect costs to only
the ``direct'' benefits associated with HAP reductions is not an
apples-to-apples comparison. Some commenters stated that the EPA is
including not only compliance costs incurred by the sources regulated
under MATS, but also costs incurred by other power plants that are not
regulated under MATS due to the effects on the power sector of
regulated sources' investing in pollution abatement technologies or
taking other steps to reduce emissions. The commenter argued that the
EPA does not explain why it is appropriate to discount or ignore co-
benefits while giving full weight to indirect compliance costs.
Response: The EPA disagrees with the commenters that co-benefits
and the types of compliance costs that the commenters consider
``indirect'' must be given comparable treatment within this action. As
discussed throughout this section, the EPA believes that it is
inappropriate to rely, as did the alternative, benefit-cost approach in
the 2016 Supplemental Finding, almost exclusively on benefits
accredited to reductions in pollutants not targeted by CAA section 112
when those other pollutants are already extensively regulated under
other CAA provisions.
Additionally, unlike benefits, which can be disaggregated into
benefits attributable to reduction in HAP and co-benefits attributable
to reduction in non-HAP pollutants, costs cannot similarly be
disaggregated. There is no analogous distinction with respect to
compliance costs and, thus, nothing in the statute that directs the EPA
to partition compliance costs into direct and indirect (or ancillary)
costs, or that supports the view that such a partitioning would be
appropriate.
From an economic perspective, MATS was a consequential rulemaking
that was expected to induce changes in both electricity and fuel
markets beyond the impacts on affected coal- and oil-fired EGUs. The
policy case examined in the 2011 RIA introduced the requirements of
MATS as constraints on affected EGUs, which resulted in new projections
of power sector outcomes under MATS. These compliance costs are an
estimate of the increased expenditures in capital, fuel, labor, and
other inputs by the entire power sector to comply with MATS emissions
requirements, while continuing to meet a given level of electricity
demand. These costs were summarized in Table 3-16 of the 2011 RIA.\30\
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\30\ The EPA estimated the impacts of MATS on oil-fired units
and costs associated with monitoring, recordkeeping, and reporting
in separate analyses, which are summarized in Chapter 3 and Appendix
3A of the 2011 RIA.
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The commenters do not attempt to present an alternative analysis
under which the EPA would assess what they term ``indirect costs.'' To
focus on the projected impact of MATS on only affected entities would
produce an incomplete estimate of the entire cost of complying with the
rule and, thus, lead to an inappropriate consideration of the costs of
the 2012 MATS Final Rule. The costs termed ``indirect costs'' by
commenters are neither ancillary or incidental costs; these costs are
an integral part of the compliance costs that are attributable to
expected changes
[[Page 31304]]
to production behavior in the sector in order to minimize the cost of
complying with MATS. Furthermore, an evaluation of the costs borne
solely by the owners of EGUs subject to MATS would need to account for
the ability of owners of these EGUs to recoup their increased
expenditures through higher electricity prices; otherwise, an estimate
of the costs of MATS borne by the owners of those EGUs (i.e., their
economic incidence) would be an overestimate. However, if the EPA was
to only account for the economic incidence for owners of EGUs, the
costs borne by the consumers of electricity from these higher prices
would be ignored, which the EPA finds inappropriate. Therefore, the EPA
determined it was appropriate to account for all of the costs that may
be incurred as a result of the rule that could be reasonably estimated,
recognizing that these expenditures would ultimately be borne either by
electricity consumers or electricity producers, rather than limiting
our consideration of costs to just those borne by a subset of producers
or consumers.
Comment: Some commenters asserted that the EPA has failed to
explain how it has given any meaningful consideration in its benefit-
cost comparison to the numerous health effects of reducing HAP
emissions that the EPA has not quantified. A few commenters asserted
that the non-monetized benefits of the rule encompass virtually all the
HAP reductions that the rule yields. One commenter argued that the EPA
has only given ``lip service'' to these benefits, but not any
discernible weight in reaching the conclusion that regulating EGUs
under CAA section 112 is not appropriate and necessary. Further, the
commenter asserted that the EPA has offered no support or explanation
for the assertion that the unquantified benefits are not sufficient to
overcome the difference between the monetized benefits and the costs of
MATS.
Response: The 2011 RIA attempted to account for all the monetized
and unquantified benefits of the rule, and the EPA's benefit-cost
analysis in the RIA does not discount the existence or importance of
the unquantified benefits of reducing HAP emissions. However, in this
final action, the EPA has determined that it is reasonable to evaluate
unquantified benefits separately in the comparison of benefits and
costs for this action under CAA section 112(n)(1)(A).
The EPA explained in the 2011 RIA that there are significant
obstacles to successfully quantifying and monetizing the public health
benefits from reducing HAP emissions (see also Gwinn, et al., 2011,\31\
and Fann, Wesson, and Hubbell, 2016 \32\ for a detailed discussion of
the complexities associated with estimating the benefits of reducing
emissions of air toxics). These obstacles include gaps in toxicological
data, uncertainties in extrapolating results from high-dose animal
experiments and worker studies to estimate human effects at lower
doses, limited monitoring data, difficulties in tracking diseases such
as cancer that have long latency periods, and insufficient economic
research to support the valuation of the health impacts often
associated with exposure to individual HAP.
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\31\ Gwinn, M.R., et al., 2011. Meeting Report: Estimating the
Benefits of Reducing Hazardous Air Pollutants--Summary of 2009
Workshop and Future Considerations. Environmental Health
Perspectives, 119(1): 125-130.
\32\ Fann N., Wesson K., and Hubbell B (2016), Characterizing
the confluence of air pollution risks in the United States. Air Qual
Atmos Health 9:293. Available at https://doi.org/10.1007/s11869-015-0340-9.
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The EPA fully acknowledges the existence and importance of the
unquantified benefits. The EPA explained in the 2019 Proposal reasons
why the EPA has determined that the unquantified benefits are unlikely
to overcome the significant difference (which, the EPA notes again, is
a difference of three orders of magnitude) between the monetized HAP-
specific benefits and compliance costs of the MATS rule. This is also
further discussed in section II.C.2 of this preamble. As noted there,
many of the HAP-related effects that were unquantified in the 2011 RIA
consist of morbidity effects in humans. The EPA's methods estimating
the economic value of avoided health effects values mortality effects
significantly more than avoided illnesses (e.g., hospital admissions,
emergency department visits, cases of aggravated asthma, etc.).\33\
Hence, valuing HAP-related morbidity outcomes would not likely result
in estimated economic values similar to those attributed to avoiding
premature deaths.
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\33\ See U.S. EPA. 2010a: Regulatory Impact Analysis for the
Nitrogen Oxide National Ambient Air Quality Standards Page 4-8
through 4-10; U.S. EPA. 2010b: Regulatory Impact Analysis for the
Sulfur Dioxide National Ambient Air Quality Standards Page 5-26
through 5-28; U.S. EPA. 2012: Regulatory Impact Analysis for the
Particulate Matter National Ambient Air Quality Standards pages 5-
69; U.S. EPA. 2015: Regulatory Impact Analysis for the Ozone
National Ambient Air Quality Standards. Pages 6-57 through 6-60.
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Commenters raised the possibility that there could be unquantified
HAP-related benefits of mortality effects, based on the comments the
EPA believes the most significant are associated with avoiding
premature death, and in particular, potential cancer risks.\34\ As part
of the 2012 MATS Final Rule, the EPA modeled the maximum individual
risk (MIR) associated with non-mercury HAP including arsenic,
hexavalent chromium, nickel, and hydrogen chloride for a subset of 16
EGUs. MIR is the ``maximum individual risk'' experienced by the most
highly exposed individual living in proximity to the source, presuming
continuous exposure for 70 years. The analysis found that the one oil-
fired EGU studied had a lifetime cancer risk of 20-in-1 million, and
that none of the remaining 15 coal-fired EGU facilities posed a
lifetime risk of cancer for the maximally exposed individual exceeding
8-in-1 million, with most facilities posing a risk of equal to, or less
than, 1-in-1 million. These risks are significantly below the levels
defined by the EPA as being the presumptive upper limit of acceptable
risk (i.e., 1-in-10 thousand). While that analysis did not separately
estimate the number of new cases of HAP-attributable cancer among each
year, the size of the MIR implies that the number of new cases would
likely be very small. The EPA's evaluation of evidence of unquantified
benefits is based on qualitative information that helps understand the
likelihood and potential scale of those benefits, relative to the
monetized benefits and monetized costs. These qualitative assessments
help confirm that unquantified benefits do not alter the underlying
conclusions that costs greatly outweigh HAP benefits.
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\34\ See sections II.C.2 and II.C.4 of this preamble for the
EPA's response to commenters' assertions regarding potential
mortality effects due to methylmercury exposure and cardiovascular
impacts.
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Comment: Several commenters pointed out that the EPA's 2019
Proposal relies on undefined terms such as ``moderately commensurate,''
``gross disparity,'' and ``significant difference,'' which are not
statutory terms and do not appear in prior regulatory actions
associated with MATS. Without explanation of what these terms mean, the
commenters asserted that the public did not receive adequate notice so
that they could provide meaningful comments on the proposal. Commenters
said the 2019 Proposal leaves the public in the dark as to what data
and methodology the EPA relies on to determine that the costs of
regulating power plants under CAA section 112 ``grossly outweigh'' the
hazardous air pollution benefits. One commenter asserted that the
failure to define these terms and outline the EPA's analytical
[[Page 31305]]
methodology has rendered this action in violation of CAA section
307(d).
Response: The EPA believes that the language used in its 2019
Proposal and final actions is reasonable and understandable and is
consistent with legal standards that have been previously upheld in
litigation challenges. For example, in the Entergy decision the U.S.
Supreme Court upheld the EPA's use of a ``wholly disproportionate''
standard. 556 U.S. at 224 (``[I]t is also not reasonable to interpret
Section 1326(b) as requiring use of technology whose cost is wholly
disproportionate to the environmental benefit to be gains'') (internal
quotation removed). Further, as recognized in the 2016 Supplemental
Finding, CAA section 112(n)(1)(A) and the Michigan decision give broad
discretion to the Administrator to apply his expert judgment in
considering cost in order to determine whether it is appropriate and
necessary to regulate HAP emissions from EGUs. See 81 FR 24428. CAA
section 112(n)(1)(A) requires that ``the Administrator shall regulate
[EGUs] . . . if the Administrator finds such regulation is appropriate
and necessary.'' The Michigan Court explicitly acknowledged the
discretion held by the Administrator: ``[i]t will be up to the Agency
to decide (as always, within the limits of reasonable interpretation)
how to account for cost.'' 135 S. Ct. at 2711. As explained in the
prior response and in other places in this preamble, the EPA has
concluded, as a result of our qualitative evaluation of evidence, that
unquantified benefits cannot reasonably be expected to be comparable to
the cost of regulation or to meaningfully redress the gross disparity
between that cost and the monetized HAP benefits. The commenters take
issue with some of the terminology used in the 2019 Proposal, but given
the discretion afforded to the Administrator by CAA section
112(n)(1)(A), as acknowledged by the U.S. Supreme Court, we believe
this preamble outlines a reasonable and fitting approach to Congress'
open-ended instruction to the Administrator to determine whether a
regulation of EGUs is ``appropriate and necessary.'' The EPA further
believes that, in a context where costs outweigh monetized HAP-specific
benefits by three orders of magnitude, the meaning and relevance of
terms such as ``gross disparity'' and ``significant difference'' are
self-evident.
4. It Is Reasonable To Continue To Rely on the Original 2011 Regulatory
Cost-Benefit Data Comparison as Part of a CAA Section 112(n)(1)(A)
Assessment of Costs and Benefits
a. Summary of 2019 Proposal
As discussed above, in the 2016 Supplemental Finding, the EPA
considered an alternative approach to considering cost as part of the
appropriate and necessary finding that was based on a benefit-cost
analysis originally performed as part of the 2011 RIA for the 2012 MATS
Final Rule. This analysis summarized the EPA's projected estimates of
annualized benefits, costs, and net benefits of the MATS rule in 2015.
The 2011 RIA considered costs, quantified HAP benefits, unquantified
HAP benefits, and non-HAP co-benefits and concluded that aggregated
monetized benefits ($37 to $90 billion each year) exceeded the costs of
compliance ($9.6 billion) by 3 to 9 times. The EPA, therefore,
concluded in the 2016 Supplemental Finding's alternative approach that
the RIA's benefit-cost analysis supported its affirmation of the prior
appropriate and necessary finding under CAA section 112(n)(1)(A).
The 2019 Proposal also used the estimates from the 2011 RIA to
address costs in the context of a CAA section 112(n)(1)(A) appropriate
and necessary finding but concluded that the alternative approach in
the 2016 Supplemental Finding had improperly weighed the non-HAP co-
benefits estimates reported in the 2011 RIA. Specifically, the EPA
concluded that the Agency's previous equal weighting of the
PM2.5 co-benefits projected to occur as a result of the
reductions in HAP emissions was inappropriate given that the focus of
CAA section 112(n)(1)(A) is on the HAP emissions reductions themselves.
Upon reconsideration, the EPA proposed to determine that it would be
illogical for the Agency to decide that regulation under CAA section
112, which is expressly designed to deal with HAP, could be justified
primarily based on the non-HAP pollutant impacts of these regulations.
In the 2019 Proposal, the EPA provided an updated comparison of costs
and targeted pollutant benefits (i.e., HAP benefits) in a memorandum to
the proposed rulemaking docket.\35\ The EPA used the results from the
2011 RIA for the updated comparison, as this RIA contained the best
available information on the projected costs, benefits, and impacts of
the MATS rule at the time the Agency was making its regulatory decision
to establish CAA section 112(d) emissions standards.
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\35\ See Compliance Cost, HAP Benefits, and Ancillary Co-
Pollutant Benefits for ``National Emission Standards for Hazardous
Air Pollutants: Coal-and Oil-Fired Electric Utility Steam Generating
Units--Reconsideration of Supplemental Finding and Residual Risk and
Technology Review'' (Docket ID Item No. EPA-HQ-OAR-2018-0794-0007).
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b. Final Rule
The EPA is finalizing the determination outlined in the 2019
Proposal. The EPA believes that the approach to the formal benefit-cost
analysis presented in the 2011 RIA contains the best available
information on the projected costs, benefits, and impacts of the MATS
rule at the time the Agency was making its regulatory decision to
establish CAA section 112(d) emissions standards. The EPA maintains
that, based upon an evaluation of the information in the record, even
if the Agency were to perform new analysis to estimate the benefit and
cost impacts of MATS, the results are unlikely to materially alter the
general conclusions of the analysis, with small benefits associated
with the targeted quantified HAP benefits and compliance costs and
would not alter the final determination herein.
c. Comments and Responses
Comment: Some commenters asserted that the EPA has failed to comply
with basic principles of administrative law by failing to develop an
adequate factual record in basing its cost-benefit comparison on the
data contained in the 2011 RIA, as opposed to gathering the body of
information relevant to these issues that has since become available.
These commenters asserted that any consideration of the appropriate and
necessary finding must consider new information on what the benefits
and costs of regulating EGUs would be if the question were revisited in
light of current knowledge, not as the facts were thought to be 8 years
in the past.
Response: The EPA agrees with the commenters that courts have
required administrative agencies to address ``newly acquired data in a
reasonable fashion,'' but depending on the circumstances, agencies are
not always required to rely on updated data when engaged in decision-
making. American Iron & Steel Inst. v. EPA, 115 F.3d 979, 1007 (D.C.
Cir. 1997). The EPA maintains that its use of benefit and cost
information from the 2011 RIA is reasonable in this context.
To determine whether an agency reasonably addressed updated data,
courts may look to the statutory mandate to the Agency. NRDC v.
Herrington, 786 F.2d 1355 (D.C. Cir.
[[Page 31306]]
1985). Under the statutory structure of CAA section 112, the CAA
section 112(n)(1)(A) finding is a preliminary determination that is
made significantly before the CAA section 112(d) standards would be
promulgated. The suggestion by some commenters that the EPA is required
to conduct a new analysis that attempts to estimate the actual costs
incurred through compliance with the final CAA section 112(d) standards
is, thus, not consistent with the statute. The 2016 Supplemental
Finding similarly declined to conduct new analysis before reaffirming
the appropriate and necessary determination, arguing that this was an
appropriate approach to the problem because that determination is a
threshold question under the statute. 81 FR 24432 (2016 Supplemental
Finding). We also note that in 2012, the EPA interpreted CAA section
112(n)(1)(A) as not obligating the Agency to update its data, and we
maintain that interpretation here. That interpretation is consistent
with the text and structure of CAA section 112(n)(1)(A), which focuses
on an expressly required study that evaluates hazards to public health.
When the EPA reaffirmed the 2000 appropriate and necessary finding in
2012, it explained that although it was choosing to undertake an
updated analysis of the public health risks associated with EGU HAP
emissions, doing so was ``not required.'' 77 FR 9304, 9310 (February
16, 2012). The EPA argued at the time that the continued existence of
the appropriate and necessary finding in 2012 was warranted by the
analysis undertaken in 1998 and summarized in the 2000 appropriate and
necessary finding. Id.
Both the statute and the Michigan decision support the EPA's
reliance on the cost estimates from the 2011 RIA. First, any cost
analysis included in an ``initial decision to regulate,'' Michigan, 135
S. Ct. at 2709, must precede any regulations flowing out of that
decision. Therefore, in considering the costs of compliance as part of
its appropriate and necessary finding, it is reasonable for the EPA to
look at what types of cost information, such as the 2011 RIA cost
estimates, would be available at this threshold stage. In addition,
nothing in the Michigan decision precludes the EPA's use of the
existing cost information in the record in addressing the Agency's
obligation on remand to consider cost as part of the appropriate and
necessary finding. In Michigan, the Court rejected arguments that it
could conclude that the Agency had properly considered cost based on
the Agency's consideration of costs in other stages of the rulemaking
(e.g., in setting the emission standards or in the RIA). The Court
emphasized that the Agency itself had not relied upon these rationales
at the finding stage. 135 S. Ct. 2710-11 (citing SEC v. Chenery Corp.,
318 U.S. 80, 87 (1943)). However, the Court left open the possibility
that the economic analyses the Agency had already conducted could
suffice to satisfy its obligation to consider costs as part of the
appropriate finding. Id. at 2711.
There is nothing in the operative statutory language here that is
akin to wording that courts have found to require an agency to
incorporate updated information. See Sierra Club v. EPA, 671 F.3d 955
(9th Cir. 2012) (directing the EPA to rely on updated data when
approving nonattainment state implementation plans (SIPs) because CAA
section 172(c)(3) requires SIPs to include ``comprehensive, accurate,
current inventory of actual emissions''); see also City of Las Vegas v.
Lujan, 891 F.2d 927 (D.C. Cir. 1989) (holding that the Secretary of the
Interior could not disregard available scientific information because
the Endangered Species Act required the ``best scientific and
commercial data available'').
In addition to looking at the statutory language, courts also often
examine the impact any updated data would have had on the agency's
decision. Catawba County v. EPA, 571 F.3d 20, 45 (D.C. Cir. 2009)
(upholding the EPA's designations for the NAAQS because ``EPA dealt
with the newly acquired data in a reasonable fashion by explaining why
it would not have changed the designations''); see also Eastern
Carolinas Broadcasting v. FCC, 762 F.2d 95, 98 (D.C. Cir. 1985)
(upholding FCC's determination in light of the Commission's failure to
utilize updated data because it was a ``harmless error in light of the
ultimate rationale'').
According to the commenters, costs of MATS compliance have been
lower than the EPA estimated in 2011 and the EPA has not accounted for
more recent studies of quantified HAP benefits. However, even if the
EPA updated its analysis, there is no reason to believe that the new
data and analysis would change the overall conclusion of the 2011
analysis that costs outweighed the quantified benefit attributed to
reduction in HAP emissions.
However, while it is challenging to produce rigorous retrospective
estimates of the benefits and costs of MATS, it is possible to
demonstrate, using publicly available information, that there is no
reason to believe that the relative difference between compliance costs
and quantified HAP benefits projected in the 2011 RIA ($9.6 billion
versus $4 to $6 million annually in 2015) would be materially different
under any re-analysis.\36\ Several commenters pointed to independent
analyses that provided three estimates of the actual costs of MATS.
While none of these estimates can be precisely compared against the EPA
ex ante estimates because they use different cost metrics and dollar
years, the independent analyses indicate that, if actual costs were to
be estimated in a manner consistent with the EPA's 2011 RIA estimates,
the compliance costs expenditures would still likely be in the billions
of dollars.
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\36\ The EPA's April 15, 2020, finalization of the
subcategorization of Eastern Bituminous Coal Refuse-Fired EGUs could
alter the benefits and costs of MATS. However, given that such
subcategorization will affect only six units, we think it is
reasonable to expect that any changes to the 2011 RIA's projected
cost and benefits as a result of the potential subcategorization
would not materially affect the EPA's conclusion that compliance
costs of MATS disproportionately outweigh the HAP benefits
associated with the standards.
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First, a 2015 analysis by Andover Technology Partners referred to
by commenters estimated that the actual cost of compliance in the
initial years of implementation was approximately $2 billion per
year.37 38 The second study referred to by commenters was a
study performed by M.J. Bradley & Associates (MJB&A) using information
from the U.S. Energy Information Administration.\39\ MJB&A estimated
that MATS-regulated facilities incurred total capital expenditures on
environmental retrofits of $4.45 billion, an estimate that does not
include ongoing operating and maintenance expenditures. Finally, as
documented in a letter to the EPA and cited by several commenters, the
Edison Electric Institute estimated that the power sector incurred
total compliance costs of more than $18 billion, including both capital
and
[[Page 31307]]
operations and maintenance costs.\40\ While these retrospective cost
estimates are developed from bases that are dissimilar from one another
and, in particular, from how the EPA developed the prospective cost
estimates in the 2011 RIA, it is evident that the independent analyses
each indicate that the industry costs of MATS are of a similar order of
magnitude and in the billions of dollars.
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\37\ Declaration of James E. Staudt, Ph.D., CFA, at 3, White
Stallion Energy Center v. EPA, No. 12-1100 (D.C. Cir., December 24,
2015). Also available at Docket ID Item No. EPA-HQ-OAR-2009-0234-
20549.
\38\ In addition to the 2015 study, Andover Technology Partners
produced two other analyses in 2017 and 2019, respectively, that
estimated the ongoing costs of MATS. The 2017 report estimated that
the total annual operating cost for MATS-related environmental
controls was about $620 million, an estimate that does not include
ongoing payments for installed environmental capital. The 2019
report estimates the total annual ongoing incremental costs of MATS
to be about $200 million; again, this estimate does not include
ongoing MATS-related capital payment. The 2017 report is available
in Docket ID Item No. EPA-HQ-OAR-2018-0794-0794. The 2019 report is
available in Docket ID Item No. EPA-HQ-OAR-2018-0794-1175.
\39\ Available in Docket ID Item No. EPA-HQ-OAR-2018-0794-1145.
\40\ Available in Docket ID Item No. EPA-HQ-OAR-2018-0794-2267.
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At the same time, the quantified mercury-related benefits would
still likely be in the millions of dollars and not substantially more
than what was estimated when the rule was finalized. Table 3-4 of the
2011 RIA shows that the EPA estimated that MATS would reduce mercury
emissions from MATS-regulated units about 20 tons in 2015 (from 27 to 7
tons). According to recent EPA estimates, mercury emissions from MATS-
regulated units decreased by about 25 tons from 2010 (pre-MATS) to 2017
(from 29 to 4 tons).\41\ Even if the 25-ton decrease in mercury
emissions from 2010 to 2017 is entirely attributed to MATS (which would
be a very strong assumption given other economic and regulatory factors
that influenced the trajectory of mercury emissions downward during
this period), the quantified mercury-related benefits are likely to be
not much greater than the estimates in the 2011 RIA, and certainly
would continue to be at least an order of magnitude smaller than the
actual costs of MATS.
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\41\ https://www3.epa.gov/airmarkets/progress/reports/index.html.
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Similarly, as discussed in more detail in sections II.C.2 and
II.C.3 of this preamble, we would expect that the unquantified HAP-
related benefits of MATS would not meaningfully redress the large
disparity between monetized costs and monetized HAP benefits estimated
in the 2011 RIA. Lastly, whether the co-benefits that MATS achieved are
larger or smaller than estimated in the 2011 RIA is not a central
consideration in the EPA's appropriate and necessary finding, as
discussed previously in section II.C.3 of this preamble.\42\ The net
result of this inquiry is that we believe that if the EPA were to
perform retrospective analysis of the impacts of MATS for the purposes
of the appropriate and necessary determination, the results of that
analysis would not lead to any material change in the relative
magnitude of costs and HAP-related benefits. In satisfaction of the
requirements of OMB's Circular A-4, Section 3 of the memorandum,
Compliance Cost, HAP Benefits, and Ancillary Co-Pollutant Benefits,
that accompanies this final action presents all reasonably anticipated
costs and benefits arising out of the MATS rule, including those
arising out of co-benefits.
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\42\ As previously discussed, section 112(n) of the CAA requires
the EPA to make a finding as to whether regulation of EGUs is
``appropriate and necessary'' following consideration of hazards to
public health reasonably anticipated to result from EGU emissions of
HAP listed in CAA section 112(b).
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Comment: Commenters said that the compliance cost estimates
underlying the 2019 Proposal are several times higher than actual costs
because the projections in the 2011 RIA assumed that MATS would require
the installation of additional fabric filters, scrubber upgrades, and
electrostatic precipitator upgrades that were subsequently not
required. Additionally, the commenters suggested the EPA's analysis
erred because the projected price of natural gas was too low in the
2011 RIA. Commenters said that what they characterized as substantial
inaccuracies of the 2011 RIA projections render these projections an
inappropriate basis for the proposed comparison of the costs and
benefits.
Response: The EPA disagrees with the commenters that the entire
economic analysis that the EPA performed in the 2011 RIA is invalid
simply because of an asserted discrepancy between modeling projections
and actual outcomes. See, e.g., EME Homer City Generation, L.P. v. EPA,
795 F.3d 118, 135-36 (D.C. Cir. 2015) (``We will not invalidate EPA's
predictions solely because there might be discrepancies between those
predictions and the real world. That possibility is inherent in the
enterprise of prediction. The best model might predict that the
Nationals will win the World Series in 2015. If that does not happen,
you can't necessarily fault the model.''). The EPA used the best
available data and modeling information, in accordance with Executive
Order 12866 and the EPA's economic guidelines, and provided the public
with the opportunity to comment on all aspects of its analysis in
developing the 2011 RIA.
The independent analyses cited by several commenters find that a
variety of control technology costs have shown to be lower than the
EPA's projection from the 2011 RIA. However, the suggestion that
important components of the actual compliance cost of MATS are lower
than the Agency's projections does not alter the Agency's determination
that the analysis in the 2011 RIA represents the best and most
comprehensive estimate of the cost of compliance with MATS available to
the EPA for use in this finding, because it was developed at the time
when the Agency reaffirmed the appropriate and necessary finding and
established CAA section 112(d) standards for EGUs. Additionally, as
discussed in another comment response in this section, even if actual
compliance costs are lower than the EPA projected in the 2011 RIA, the
costs are still likely to be at least an order of magnitude greater
than the monetized HAP benefits.
Comment: Other commenters rejected the argument that actual utility
sector compliance costs for MATS have been less than predicted in 2011.
One commenter said that utilities have spent less on retrofitting power
plants by simply closing plants to avoid installing costly controls.
However, the commenter also claimed that the utility sector's avoided
MATS compliance costs did not simply disappear; they were translated
into costs borne by the former employees of retired coal-fired plants,
by coal workers who have lost their jobs, and by the communities of
those displaced workers. Commenters said that the 2019 Proposal
continues to treat these MATS-driven ``costs'' as irrelevant when
considering the regulatory impacts, but the commenters said that the
EPA must add these regulatory costs to its analysis as required by
Michigan. The commenter cited data indicating an individual's job loss
has a direct correlation with adverse health outcomes.
Response: The 2011 RIA provided estimates of employment changes for
the regulated power sector and for the air pollution control sector,
including estimates of employment impacts from changes in fuel demand
from EGUs. However, examining localized employment impacts that may
arise from MATS compliance actions is outside of the scope of this
action. The commenter asserts that the cost of the rule will result in
lost income or employment that will, in turn, result in negative health
impacts. The EPA disagrees that this point is relevant to the
appropriate and necessary finding.
Comment: Commenters highlighted that the industry has already
incurred costs to implement MATS and cannot recover these costs except
through rate recovery and similar mechanisms. Commenters argued that
finalization of a reconsideration of the appropriate and necessary
finding under CAA section 112(n)(1)(A) should be based on an analysis
of ongoing and future costs weighed against ongoing and future
benefits, as opposed to considering past costs and benefits. If the EPA
considers past costs that have already been incurred by the industry to
comply with MATS in connection with the proposed
[[Page 31308]]
rule, the Agency must consider whether those past costs might weigh in
favor of maintaining or affirming the 2016 Supplemental Finding.
Response: A previous response in this section explains why the
EPA's use of the benefit and cost estimates from the 2011 RIA is
reasonable. Additionally, with respect to the suggestion that the EPA
estimate future costs and benefits flowing from this action, section
II.D of this preamble explains that the EPA's revised determination
that regulation of HAP emissions from EGUs under CAA section 112 is not
appropriate and necessary will not remove EGUs from the CAA section
112(c) list of sources, and the previously established MATS rule will
remain in place. As a result, there will be no changes in future
compliance expenditures or emissions under MATS as a result of the
revised determination under CAA section 112(n)(1)(A).
Comment: Commenters said that many utilities that expended
resources to comply with MATS are subject to ongoing rate reviews by
public utility commissions regarding recovery of MATS-associated costs.
Some utilities expressed concerns that, if MATS or the appropriate and
necessary finding is rescinded, whether through EPA action or as a
result of judicial review of a reversal of the 2016 Supplemental
Finding, stakeholders will intervene in rate cases before public
utility commissions, arguing that utilities' investments in the MATS-
required pollution controls were imprudent and should no longer be
recoverable through their approved rates. Because of this reasoning,
the commenters said the EPA should consider the impacts on recovery of
sunk costs jeopardized by a reversal of the appropriate and necessary
finding in its benefit-cost analysis.
Response: Section II.D of this preamble explains that the EPA's
revised determination that regulation of EGUs under CAA section 112 is
not appropriate and necessary will not remove EGUs from the CAA section
112(c) list of sources, and the previously established MATS rule will
remain in place. As a result, the EPA does not anticipate that the
ability of utilities to recover MATS-related expenditures will be
jeopardized as a result of this action. Even if MATS were to be
rescinded, a number of states have mercury rules that would continue to
mandate the use of mercury controls. The EPA is committed to working
with states that are interested in developing their own HAP-specific
requirements. The EPA's proposal noted that, in 2011, the Utility Air
Regulatory Group (UARG) submitted a petition pursuant to CAA section
112(c)(9) requesting that coal-fired EGUs be removed from the CAA
section 112(c) List of Categories of Major and Area Sources, and that
the EPA denied this petition on several grounds.\43\ The EPA's position
on denial of this petition has not changed.
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\43\ 84 FR 2679-2680.
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Comment: Commenters stated that since the revised consideration of
weighing costs and benefits as part of a CAA section 112(n)(1)(A)
finding hinges on the estimation of HAP reduction benefits, the EPA
must make a better effort to monetize all HAP reduction benefits. These
commenters asserted that new research suggests that the EPA
underestimated the benefits associated with HAP reductions across
several effects. Specific criticisms of the EPA HAP benefit estimation
focused primarily on methylmercury \44\ and included: (1) Failure to
quantify cardiovascular effects; (2) criticism of the approach used in
modeling the IQ loss endpoint; (3) failure to consider other
neurological endpoints besides IQ loss; (4) failure to consider
additional health effects besides neurological and cardiovascular
impacts; and (5) failure to model the full range of fish consumption
pathways related to mercury emissions from EGUs.
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\44\ Additional comments also addressed the modeling of non-
mercury HAP in the context of the appropriate and necessary risk
assessment (as opposed to the benefits analysis), with these
comments focusing on claims that EPA had failed to appropriately
include adjustment factors addressing individual-variability and
limitations in using the census block-centroid approach to capturing
risk for the most exposed individual. These comments are addressed
in the RTC document.
---------------------------------------------------------------------------
Response: After reviewing the additional peer-reviewed studies on
health effects attributable to mercury that were submitted in the
comments, the EPA concludes that the approach to assessing quantified
and unquantified methylmercury benefits in the 2011 RIA, while subject
to uncertainty, remains valid. We address the major criticisms across
the five major categories of comments below.
i. Failure To Quantify Cardiovascular Effects
Commenters cited several studies regarding the linkage between
methylmercury concentrations in blood and tissue samples and
cardiovascular health. Some of the studies cited in the comments were
available to the EPA at the time of the 2011 RIA, while others were
not. The former category includes Rice et al. (2010) \45\ and Roman et
al. (2011) \46\ which characterize methylmercury-related effects. These
two articles concluded that methylmercury is both directly linked to
acute myocardial infarction and intermediary impacts that contribute to
myocardial infarction risk. They also discussed a host of uncertainties
associated with methylmercury cardiovascular effects.
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\45\ Rice, G.E., et al. (2010). A Probabilistic Characterization
of the Health Benefits of Reducing Methyl Mercury Intake in the
United States. Environmental Science & Technology, 44(13): 5216-
5224.
\46\ Roman, H.A., et al. (2011). Evaluation of the
cardiovascular effects of methylmercury exposures: Current evidence
supports development of a dose-response function for regulatory
benefits analysis. Environmental Health Perspectives, 119(5): 607-
614.
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Rice et al. (2010) evaluated the benefits of a 10-percent reduction
in methylmercury exposure for U.S. populations (reflecting IQ loss and
presumed mortality impacts). The study used a probabilistic approach to
address confidence in a causal association between methylmercury and
heart attacks. Importantly, they state ``we view the evidence for
causal interpretation as relatively weak.'' They use a subjectively
defined probability of one-third that the association between
methylmercury and cardiovascular effects is causal, acknowledging that
the strength of the association was ``modest.'' The Rice et al. (2010)
estimates are also sensitive to assumptions regarding the coefficient
linking hair mercury to heart attack and the timing of the exposure-
response relationship.
The Roman et al. (2011) paper was a workshop report from a panel
convened to assess the potential for developing a concentration-
response function for the cardiovascular effect from methylmercury
exposure. The report recommended that the EPA develop a new dose-
response relationship for cardiovascular-related methylmercury effects.
However, the study also reports the results of a literature review that
yield a very small number of in vitro or animal studies; the review
characterized the strength of the epidemiological studies that assessed
clinically significant endpoints as being ``moderate.'' The Roman et
al. (2011) review also mentions uncertainty as to which exposure metric
(including the timing of exposure and appropriate bio-marker) would
provide the most robust statistical outcome in modeling cardiovascular
effects.
In the 2012 MATS Final Rule, the EPA also addressed comments on the
linkage between methylmercury exposure and cardiovascular effects. One
of the references cited as part of the EPA response was Mozaffarian et
al.
[[Page 31309]]
(2011), which evaluated health outcomes from two large cohorts of men
and women in the U.S. and showed no evidence of a relationship between
mercury exposure and increased cardiovascular disease risk.\47\ This
study also evaluated multiple coronary heart disease subtypes and
concluded that mercury exposure was not associated with the risk of
nonfatal myocardial infarction or fatal coronary heart disease. Based
on the available scientific literature at the time of the MATS rule,
the Agency concluded that there was inconsistency among available
studies as to the association between methylmercury exposure and
various cardiovascular system effects.
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\47\ Mozaffarian, D.; Shi, P.; Morris, J.S.; Spiegelman, D.;
Grandjean, P.; Siscovick, D.S.; Willett, W.C.; Rimm, E.B. Mercury
exposure and risk of cardiovascular disease in two U.S. cohorts. N
Engl J Med, 2011, 364, 1116-1125.
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In the second category of newer literature, commenters referenced
the Genchi et al. (2017) \48\ review article that summarizes the
methylmercury-cardiovascular literature but does not report dose-
response parameters. The paper cites studies from 2002-2007 looking at
cardiovascular-related effects (e.g., heart rate variability,
myocardial infarction, atherosclerosis, hypertension, etc.) for a range
of populations, some U.S. and some non-U.S. The article recommends
development of a dose-response function for methylmercury exposure and
myocardial infarctions for regulatory benefits analysis, but does not
provide specific recommendations regarding which studies, effect
estimates or functional forms to use. The authors also acknowledge the
need ``to improve the characterization of the potential linkage between
methylmercury exposure and the risk of cardiovascular disease.''
Commenters also cited Giang and Selin (2016) \49\ as support for their
argument that the monetized benefits of reducing mercury is greater
than the EPA estimates in the proposal. This study also acknowledges
that the relevant literature (through 2016) is relatively small and
inconsistent with respect to the association between methylmercury
exposure and cardiovascular disease. The study notes that all of the
literature discusses the challenges associated with teasing out any
adverse effects of methylmercury exposure through fish consumption in
the midst of the positive cardiovascular impacts associated with fish
consumption. However, based on the information available in the
existing record and material submitted during the public comment
period, the EPA believes available evidence does not support a clear
characterization of the potential relationship between mercury exposure
and cardiovascular effects at this time. This does not preclude the
possibility that later scientific work may provide more clarity as to
the existence or absence of an association.
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\48\ Genchi, G.; Sinicropi, M.S.; Carocci, A.; Lauria, G.;
Catalano, A. Mercury Exposure and Heart Diseases. Int. J. Environ.
Res. Public Health, 2017, 14, 74. https://doi.org/10.3390/ijerph14010074.
\49\ Giang, A.; Selin, N. Benefits of mercury controls for the
United States. Proceedings of the National Academy of Sciences, Vol
113, No. 2, January 12, 2016. https://doi.org/10.1073/pnas.1514395113.
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Further, current research is also insufficient to support modeling
of the cardiovascular mortality endpoint with a sufficient degree of
confidence for inclusion in an EPA benefits analysis due to (1)
questions regarding overall causality and uncertainty in specifying the
dose-response relationship required (including the form and
parameterization of the function) and (2) uncertainty in modeling the
prospective bio-markers (e.g., hair mercury) required in part due to
questions regarding the temporal aspects of the exposure-response
relationship.
ii. Criticism of the Approach Used in Modeling the IQ Loss Endpoint
The second category of criticism related to the 2011 RIA estimation
of benefits involves the approach used in modeling IQ loss,
specifically the effect estimate used in modeling this endpoint.
Commenters pointed out that in modeling IQ loss, two studies, Bellanger
et al. (2013) \50\ and Trasande et al. (2005),\51\ employ effect
estimates significantly larger than the effect estimate utilized by the
EPA in the 2011 RIA, which was obtained from Axelrad et al. (2007).\52\
In responding to these comments, the EPA notes that both of these
alternate studies (Bellanger et al., 2013 and Trasande et al., 2005)
utilized data from one of the three key datasets (Faroes study) in
characterizing the relationship between methylmercury exposure and IQ
loss. By contrast, Axelrad et al. (2007) uses data from all three key
studies (Faroes, Seychelles, and New Zealand) in fitting their
function. In addition, Axelrad et al. (2007) also obtained a new
modeled estimate for IQ loss for the Faroes data from the study authors
based on structural equation modeling involving underlying neurological
endpoints. And finally, Axelrad et al. (2007) also used a sophisticated
hierarchical random-effects model that can consider study-to-study and
endpoint-to-endpoint variability in modeling the endpoint. When
considered in aggregate, these details regarding study design
associated with Axelrad et al. (2007) lead the EPA to conclude that the
effect estimate obtained from this particular study is well supported
by the underlying evidence and continues to be appropriate for modeling
IQ loss benefits related to methylmercury exposure.
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\50\ Bellanger, D., et al. (23 authors), Economic benefits of
methylmercury exposure control in Europe: Monetary value of
neurotoxicity prevention. Environmental Health, 2013, 12:3.
\51\ Trasande, L.; Landrigan, P.; Schechter, C. Public Health
and Economic Consequences of Methyl Mercury Toxicity to the
Developing Brain. Environmental Health Perspectives, Vol 113, No 5,
May 2005. https://doi.org/10.1289/ehp.7743.
\52\ Axelrad, D.; Bellinger, D.; Ryan, L.; Woodruff, T. Dose-
Response relationship of Prenatal Mercury Exposure and IQ: An
Integrative Analysis of Epidemiologic Data. Environmental Health
Perspectives, Vol 115, No 4, April 2007.
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iii. Failure To Consider Other Neurological Endpoints Besides IQ Loss
The third broad category of criticism related to the 2011 RIA
estimation of benefits was that the EPA failed to consider other
neurological endpoints besides IQ loss in modeling benefits.
Specifically, commenters asserted that pre-existing literature \53\ and
more recent data have revealed a suite of more sensitive
neurodevelopmental effects than IQ loss. For example, one recent study
(Patel et al., 2019) \54\ referenced in the comments suggests an
association between methylmercury exposure and behavioral problems
(specifically anxiety), even at relatively low prenatal exposure
levels. Another study, Masley et al. (2012) \55\ cited by commenters
concludes that cognitive effects of methylmercury on adults are
substantial enough to negate beneficial effects of omega-3 fatty acids
among adults who consume large amounts of some types of fish. Finally,
commenters pointed to new research (Julvez et al., 2013) \56\ which
suggests that some individuals might be genetically susceptible to the
neurological effects of methylmercury and that null groups which do not
include these individuals could mask significant impacts among
[[Page 31310]]
genetically susceptible within the larger study group.
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\53\ National Research Council, The Toxicological Effects of
Methylmercury, 2000. https://www.nap.edu/catalog/9899/toxicological-effects-of-methylmercury, p. 310.
\54\ Patel, N.B.; Xu, Y.; McCandless, L.C.; Chen, A.; Yolton,
K.; Braun, J.; . . . Lanphear, B.P. (2019). Very low-level prenatal
mercury exposure and behaviors in children: The HOME Study.
Environmental health: A global access science source, 18(1), 4.
doi:10.1186/s12940-018-0443-5.
\55\ Masley, S.C.; Masley, L.V.; Gualtieri, T.: Effect of
mercury levels & seafood intake on cognitive function in middle-aged
adults. Integrative Medicine, 11:32-40, 2012.
\56\ Julvez, J. and Grandjean, P. Genetic susceptibility to
methylmercury developmental neurotoxicity matters. Front Genet, 4:
278, 2013.
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Taking these comments in order, regarding the potential for
modeling additional neurological endpoints, including behavioral
problems (e.g., anxiety), the EPA notes that the cited study (Patel et
al., 2019) is equivocal in its findings, with the authors stating that
they ``did not find a consistent association between very low-level
prenatal mercury exposure and behavior problem scores in children, but
[they] did find some evidence of an association between very low-level
mercury exposure during early pregnancy and parent-reported anxiety
scores in children.'' The authors note that the association of low-
level mercury exposure with behavioral problems, including anxiety,
deserves further scrutiny. The EPA concludes that we are not yet at the
point where we can reliably model the effects of low-level mercury
exposure on children's behavior, including anxiety.
Regarding the potential for the beneficial cognitive effects of
omega-3 fatty acids in adults (resulting from fish consumption) to be
partially negated by coexistent methylmercury exposure, the EPA
recognizes conceptually that this could occur. However, it is important
to note that the effects of methylmercury on omega-3 fatty acid intake
and associated benefits were seen only for the subset of the population
with relatively elevated consumption of larger fish (i.e., more than 3-
4 servings a month, Masley et al., 2012). Modeling benefits-related
changes in fish consumption typically focuses on the general consumer
rather than attempting to model benefits for a specific subset of that
population which can be challenging to enumerate (i.e., the subgroup of
those consuming relatively elevated levels of higher-trophic level
fish)--that level of more refined subgroup modeling is often reserved
for scenario-based risk assessments, where population enumeration is
not the focus. For that reason, data on how methylmercury could obscure
the benefits of omega-3 fatty acid intake (for a specific higher large-
fish-consuming segment of the population) would have less utility in
the context of a benefits analysis aimed at the more generalized fish-
consuming population. In addition, the EPA would note potential
challenges in modeling this kind of trade-off related to fish
consumption, since not only would levels of methylmercury and omega-3
fatty acids need to be characterized for a broad range of fish species;
in addition, the specific mix of those types of fish consumed by the
high-consuming study population would need to be specified in order to
increase overall confidence in modeling cognitive-related benefits at
the representative population-level for this subgroup.
Regarding the potential that certain individuals could be
genetically susceptible to the neurological effects of methylmercury
and that, consequently, these individuals may not be fully covered by
existing studies characterizing neurodevelopmental effects of
methylmercury, the EPA acknowledges this as a possibility. However, the
study cited by commenters (Julvez et al., 2013) does not provide effect
estimates for these potentially at-risk subgroups, which prevents
quantitative analysis of risk and associated dollar-benefits associated
with mercury-exposure in these subgroups.
iv. Failure To Consider Additional Health Effects Besides Neurological
and Cardiovascular Impacts
Commenters pointed to the potential for methylmercury exposure to
be associated with a range of additional adverse health effects
(besides neurological and cardiovascular), including cancer (leukemia
and liver) and possible effects on the reproductive, hematological,
endocrine (diabetes), and immune systems. The EPA notes the distinction
between evidence-based support for specific health effects (potentially
even including support for causal associations should it exist) and the
ability to reliably model those health endpoints quantitatively. In
referencing the above health endpoints, commenters referred to a range
of study data which can be used as evidence for an association,
including elucidation of potential toxicity pathways.
In response to these comments, the EPA notes that in order to model
a health effect within a defined population as part of a benefits
analysis, high-confidence concentration-response functions linked to
clearly defined biometrics (which can themselves be simulated at the
population-exposure level) are required. At this time, as noted
earlier, with the exception of IQ loss in children, the EPA does not
believe research is currently sufficient to support quantitative
assessment of any of these additional endpoints in the context of a
benefits analysis involving mercury (accessed through a fish-
consumption pathway).
v. Failure To Model the Full Range of Fish Consumption Pathways Related
to Mercury Emissions From EGUs
A number of commenters stated that the EPA underestimated IQ-
related benefits by focusing the benefits analysis on self-caught
(recreational) freshwater fish. Specifically, commenters pointed to
Trasande et al. (2005) as an example of an assessment that, while also
modeling benefits associated with controlling mercury emissions from
U.S. power plants, more fully considers exposure to methylmercury,
including the general consumption of commercial fish by the U.S.
population. The Trasande et al. (2005) study employs general linear
apportionment (based on estimates of U.S. EGU emissions relative to
global emissions) to estimate the fraction of methylmercury in U.S.
freshwater and coastal fish associated with U.S. EGU emissions. A
similar calculation is used to estimate the fraction of methylmercury
in non-U.S. sourced commercial fish associated with U.S. EGU emissions.
They then apportion their estimate of total IQ loss for children in the
U.S. (assumed to come completely from fish consumption) to U.S. EGU-
sourced mercury versus other sources. Similarly, commenters have also
cited Giang and Selin (2016) as another example of a study that
attempts to generate a more complete picture of methylmercury benefits
associated with controlling U.S. EGU mercury emissions, including
exposures associated with commercial fish consumption. Notably, the
Giang et al. (2016) study uses a more sophisticated modeling approach
(compared with Trasande et al., 2005), to project potential benefits
associated with MATS within the United States out to 2050, including
application of global mercury deposition modeling covering specific
regions associated with commercial fishing. The authors note that
greater than 90 percent of U.S. commercial fish consumption, and the
majority of U.S. mercury intake, comes from marine and estuarine
sources, particularly from the Pacific and Atlantic Ocean basins.
Regarding the assertion that the EPA should have used methodologies
similar to those cited in these studies to incorporate consideration of
commercial fish consumption (linked to U.S. EGU mercury emissions) in
its benefits analysis, the EPA again reiterates the importance of
including only those consumption pathways that can be modeled with a
reasonable degree of confidence. Both of the studies cited employ
broad-scale simplifying assumptions in order to link changes in U.S.
EGU mercury emissions to potential changes in the concentration of
methylmercury in commercial fish, which Giang et al. (2016) suggest is
responsible for the vast majority of fish-
[[Page 31311]]
related methylmercury exposure in the U.S. Specifically, as noted
earlier, the Trasande et al. (2005) study links U.S. EGU emissions (as
a fraction of total global emissions) to methylmercury concentrations
in commercially and recreational fish consumed by the U.S. population.
With the Giang et al. (2016) study, the authors utilize U.S. EGU
deposition (as a fraction of total) in specific broad fishing regions
(e.g., Atlantic) to estimate the fraction of methylmercury in
commercially sourced fish caught in those broad regions attributable to
U.S. EGUs. Both of these simplifying assumptions mask the potential
complexity associated with linking U.S. EGU-sourced mercury to
methylmercury concentrations in these commercial fish species. In
particular, a larger region such as the Atlantic likely displays
smaller-scale variation in critical factors such as fish species
habitat/location, patterns of mercury deposition, and factors related
to the methylation of mercury and associated bioaccumulation/
biomagnification. In developing these kinds of more sophisticated
models aimed at factoring commercial fish consumption into a benefits
analysis involving U.S. EGU mercury, additional analyses could be
needed to understand this critical element of spatial scale and the
generalizing assumptions used by these authors in linking mercury
emissions and deposition to commercial fish. Note that in the EPA's
benefits analysis completed for MATS, one reason focus was placed on
the freshwater angler scenario was increased confidence in modeling
this exposure pathway given our ability to link patterns of U.S. EGU
mercury deposition (relative to total deposition) over specific
watersheds to sampled fish tissue concentrations in those same
watersheds. This degree of refined spatial precision in linking U.S.
EGU deposition to actual measured fish tissue data increased overall
confidence in modeling benefits associated with this pathway, leading
us to focus on the recreational angler exposure pathway.
D. Effects of This Reversal of the Supplemental Finding
1. Summary of 2019 Proposal
In the 2019 Proposal, the EPA proposed to conclude that finalizing
a revision to the 2016 Supplemental Finding to determine that it is not
appropriate and necessary to regulate HAP emissions from coal- and oil-
fired EGUs would not lead to the removal of that source category from
the CAA section 112(c)(1) list, nor would it affect the CAA section
112(d) standards established in the MATS rule.
As described in section II.B of this preamble, in 2005, the EPA
reversed the 2000 determination that regulation of HAP emissions from
EGUs under CAA section 112 was appropriate and necessary. At that time,
the EPA justified its decision to delist EGUs because it ``reasonably
interprets section 112(n)(1)(A) as providing it authority to remove
coal- and oil-fired units from the section 112(c) list at any time that
it makes a negative appropriate and necessary finding under the
section.'' 70 FR 16032. In the 2005 Delisting Rule, the EPA
``identified errors in the prior [2000] finding and determined that the
finding lacked foundation.'' 70 FR 16032. Because the EPA concluded the
2000 Finding had been in error at the time of listing, the Agency
asserted that coal- and oil-fired EGUs ``should never have been listed
under section 112(c) and therefore the criteria of section 112(c)(9) do
not apply'' in removing the source category from the list. Id. at
16033. Therefore, the EPA stated that it had ``inherent authority under
the CAA to revise [the listing] at any time based on either identified
errors in the December 2000 finding or on new information that bears
upon that finding.'' Id. at 16033.
The D.C. Circuit rejected the EPA's interpretations, holding that
the Agency did not have authority to remove source categories from the
CAA section 112(c) list based only on a revised CAA section
112(n)(1)(A) negative appropriate and necessary finding. The Court held
that the CAA unambiguously requires the EPA to demonstrate that the
delisting criteria in CAA section 112(c)(9) have been met before
``any'' source category can be removed from the CAA section 112(c)(1)
list. New Jersey, 517 F.3d at 582. The D.C. Circuit specified that,
under the plain text of the CAA, ``the only way the EPA could remove
EGUs from the section 112(c)(1) list'' was to satisfy those criteria.
Id. The Court expressly rejected the EPA's argument that,
``[l]ogically, if EPA makes a determination under section 112(n)(1)(A)
that power plants should not be regulated at all under section 112 . .
. [then] this determination ipso facto must result in removal of power
plants from the section 112(c) list.'' Id. (quoting the EPA's brief).
Instead, the Court maintained that CAA section 112(n)(1) governed only
how the Administrator determines whether to list EGUs, and that the
EPA's authority to remove a source category from the list, even for
EGUs, must be exercised only in accordance with the requirements of CAA
section 112(c)(9). Accordingly, the Court vacated the 2005 Delisting
Rule.
Based on the D.C. Circuit's holding in New Jersey, the EPA proposed
that finalization of the reversal of the 2016 Supplemental Finding,
much like the 2005 Delisting Rule's reversal of the 2000 appropriate
and necessary determination, would not have the effect of removing the
Coal- and Oil-Fired EGU source category from the CAA section 112(c)(1)
list because the EPA had not met the statutorily required CAA section
112(c)(9) delisting criteria. Because coal- and oil-fired EGUs would
remain on the CAA section 112(c)(1) source category list, the EPA
proposed to conclude that the CAA section 112(d) standards for that
category, as promulgated in the MATS rule, would be unaffected by the
proposal if finalized.
In the proposal, the EPA requested comment on two alternative
interpretations of the New Jersey holding. The first alternative
interpretation probed whether the New Jersey decision does not apply
because the facts of the current situation are distinguishable from the
underlying facts of that case. Specifically, the EPA requested comment
on the view that New Jersey would not apply because the proposed
reversal of the 2016 Supplemental Finding is a continuation of the
Agency's response to the U.S. Supreme Court's remand in Michigan. Under
this view, the Agency could rescind MATS without demonstrating that the
CAA section 112(c)(9) criteria had been met because New Jersey did not
address the situation in which the Agency was revising its CAA section
112(n)(1)(A) determination in response to a U.S. Supreme Court
decision. The second alternative interpretation solicited comment on
whether the EPA would have the authority to rescind the standards
regulating HAP emissions under CAA section 112(d) in light of the fact
that CAA section 112(n)(1)(A) plainly requires that the Administrator
must find that regulation under CAA section 112 is appropriate and
necessary as a prerequisite to undertaking such regulation. Under this
theory, EGUs would remain on the CAA section 112(c) list, but would not
be subject to CAA section 112(d) standards, because New Jersey did not
address the question of whether, in the absence of a valid and
affirmative appropriate and necessary finding, the EPA must regulate
EGUs for HAP. For both alternative interpretations, the EPA solicited
comment on whether the Agency had the discretion to follow an
alternative or was, in fact, obligated to pursue an alternative
interpretation.
[[Page 31312]]
2. Final Rule
After considering comments submitted in response to the EPA's 2019
Proposal, we are concluding that the current action to reverse the 2016
Supplemental Finding would not affect the CAA section 112(c) listing of
EGUs or the CAA section 112(d) regulations. The situation here is
essentially indistinguishable to that in the New Jersey case, and,
therefore, in the absence of the CAA section 112(c)(9) delisting
criteria being satisfied, coal- and oil-fired EGUs necessarily remain
on the list of regulated sources, and the CAA section 112(d) standards
promulgated in the MATS rule necessarily remain in place. The EPA did
not propose a delisting analysis, and the EPA does not intend to
examine the delisting criteria for the Coal- and Oil-Fired EGU source
category. Moreover, as noted in the proposal, the results of the CAA
section 112(f)(2) residual risk review conducted as part of this final
action indicate that with the MATS rule in place, the estimated
inhalation cancer risk to the individual most exposed to actual
emissions from the source category is 9-in-1-million, which would not
satisfy the requirements for delisting as specified in CAA section
112(c)(9).\57\
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\57\ As relevant here, CAA section 112(c)(9) provides that the
``Administrator may delete any category from the list under this
subsection . . . whenever the Administrator makes the following
determination . . . (i) In the case of hazardous air pollutants
emitted by sources in the category that may result in cancer in
humans, a determination that no source in the category . . . emits
such hazardous air pollutants in quantities which may cause a
lifetime risk of cancer greater than one in one million to the
individual in the population who is most exposed to emissions of
such pollutants from the source . . . .'' (emphases added). The
findings of the EPA's residual risk review indicate that it is
extremely unlikely that any EPA Administrator could (much less
would) lawfully exercise his or her discretion to ``de-list'' the
Coal- and Oil-Fired EGU source category.
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3. Comments and Responses
Comment: Some commenters argued that the EPA must rescind MATS if
the Agency finalizes a determination that regulation under CAA section
112(n)(1)(A) is not appropriate and necessary. The commenters cited the
finding in Michigan which held that ``EPA interpreted [section
112(n)(1)(A)] unreasonably when it deemed cost irrelevant to the
decision to regulate power plants'' and asserted that if the EPA now
concludes that, based on a proper evaluation of costs, regulation of
EGUs under CAA section 112 is not appropriate and necessary, then
either the CAA section 112(c) listing, the MATS rule, or both must be
invalidated. The commenters argued that, after the finalization of the
proposal, there is no valid appropriate and necessary determination,
which was the basis for the EPA's listing of the Coal- and Oil-Fired
EGU source category. The commenters also argued that under the plain
meaning of the statutory text, Congress' intention is clear that if the
EPA determines that regulation of EGU emissions under CAA section 112
is not ``appropriate and necessary,'' then the EPA lacks jurisdiction
to regulate such emissions. One commenter asserted that the EPA's
proposal to continue to enforce MATS while simultaneously rejecting the
factual and statutory basis for the rule, offends the rule of law.
The commenters argued that the EPA's reliance on the New Jersey
decision is misplaced because the regulatory landscape presented in
this action is fundamentally different than what was assessed by the
D.C. Circuit in New Jersey. According to the commenters, the New Jersey
decision only addressed the EPA's authority to delist based on the
reversal of an appropriate and necessary finding presumed to be legally
valid, which is a fact pattern not present in this action given the
Michigan holding. One commenter argued that because the EPA had not yet
issued any EGU HAP standards under CAA section 112(d) at the time of
New Jersey, the EPA's interpretation of its regulatory jurisdiction
under CAA section 112(n) had not been subject to judicial review and
the New Jersey decision, therefore, does not speak to whether the EPA
has authority to rescind a CAA section 112(d) standard after reversing
the appropriate and necessary finding. One commenter further argued
that to the extent the EPA views its legal authority regarding
continued enforcement of MATS to be ambiguous, it would be arbitrary
and capricious for the EPA to voluntarily leave MATS in place.
Conversely, there were many commenters who agreed with the EPA's
proposed approach to leave the MATS rule in place. These commenters
agreed that the situation here is identical to what was adjudicated in
New Jersey; that is, in both cases (1) the EPA had reversed an earlier
final and effective finding that regulating EGUs under CAA section
112(n)(1)(A) was appropriate and necessary, and (2) coal- and oil-fired
EGUs had been listed pursuant to CAA section 112(c). These commenters
concluded that following a final EPA determination that regulation of
EGUs under CAA section 112 is not appropriate and necessary, both the
CAA and the New Jersey holding are clear that the only way to delist or
de-regulate EGUs would be through meeting the delisting criteria of CAA
section 112(c)(9).
Response: As explained in the 2019 Proposal, the EPA believes that
the D.C. Circuit's New Jersey decision governs the effects of the EPA's
final action. More specifically, this final action reversing the 2016
Supplemental Finding does not remove the Coal- and Oil-Fired EGU source
category from the CAA section 112(c)(1) list. As the Court stated,
``Congress . . . undoubtedly can limit an agency's discretion to
reverse itself, and in section 112(c)(9) Congress did just that,
unambiguously limiting EPA's discretion to remove sources, including
EGUs, from the section 112(c)(1) list once they have been added to
it.'' 517 F.3d at 583. The Court expressly rejected the argument made
by the EPA at the time that if the Agency reversed course and
determined it was not appropriate and necessary to regulate EGUs under
CAA section 112, then that determination ``logically'' resulted in the
removal of EGUs from the CAA section 112(c)(1) list. 517 F.3d at 582.
As the D.C. Circuit stated: ``EPA's disbelief that it would be
prevented from correcting its own `errors' except through section
112(c)(9)'s delisting process or court-sanctioned vacatur cannot
overcome the plain text enacted by Congress.'' 517 F.3d at 583. Because
coal- and oil-fired EGUs remain on the CAA section 112(c)(1) source
category list, the CAA section 112(d) standards for the Coal- and Oil-
Fired EGU source category, as promulgated in the MATS rule, are
unaffected by this action.
The EPA does not find persuasive commenters' argument that New
Jersey is distinguishable because this action is not a reversal of a
valid prior appropriate and necessary finding. As the commenters
acknowledge, the D.C. Circuit in New Jersey did not directly assess the
validity of the EPA's 2000 appropriate and necessary determination.
Rather, the EPA in its 2005 action revised the 2000 appropriate and
necessary finding because it was flawed. Similarly, here, the EPA has
determined that the 2016 Supplemental Finding was erroneous (just as it
did in 2005 with respect to the 2000 finding) and is finalizing
reversal of the 2016 Supplemental Finding (just as the EPA revised the
2000 finding).
We also disagree with the commenters' argument that New Jersey is
distinguishable because it was decided before the EPA had promulgated a
NESHAP for EGUs, and, therefore, the D.C. Circuit did not address the
EPA's authority to rescind MATS following a final determination that it
is not appropriate and necessary
[[Page 31313]]
to regulate EGUs under CAA section 112. The statute does preclude a
challenge to the EPA's appropriate and necessary finding until
standards are in place, see CAA section 112(e)(4); Util. Air Regulatory
Grp. v. EPA, D.C. Cir. No. 01-1074, 2001 WL 936363 at *1 (D.C. Cir.,
July 26, 2001), but nothing in the D.C. Circuit's reasoning in the New
Jersey decision relied on the fact that the earlier appropriate and
necessary finding was not yet reviewable. In New Jersey, the 2000
Finding was not yet subject to judicial review and the EPA argued that
the inclusion of EGUs on the CAA section 112(c) list was not final
Agency action; here, the 2016 Supplemental Finding was final and
subject to judicial review. New Jersey is clear that, even following an
EPA determination that it is not appropriate and necessary to regulate
EGUs under CAA section 112, the EPA cannot delist EGUs without going
through the statutory delisting criteria (which the EPA has not done
here). As long as EGUs stay on the CAA section 112(c) list of source
categories, the EPA is required to promulgate emission standards under
CAA section 112(d) regulating such sources. 42 U.S.C. 7412(c)(2) (``For
the categories and subcategories the Administrator lists, the
Administrator shall establish emissions standards under subsection (d)
of this section.''). Thus, there is no question about it: Under the
D.C. Circuit's holding in New Jersey, in order to rescind regulation
under CAA section 112(d), i.e., to rescind MATS, EGUs must first be
delisted as a CAA section 112(c) source category.
As explained, the EPA believes that it is bound by the D.C.
Circuit's New Jersey decision. The New Jersey decision itself was
decided on Chevron step 1 grounds. 517 F.3d at 582 (``EPA's purported
removal of EGUs from the section 112(c)(1) list therefore violated the
CAA's plain text and must be rejected under step one of Chevron.'').
Because the facts of this rulemaking are substantially similar to those
before the D.C. Circuit in New Jersey, and because the D.C. Circuit
recognized that in such a scenario the Agency has no discretion, the
EPA does not believe that it has any discretion under Chevron, as one
commenter asserted, to voluntarily rescind MATS following this final
action. For these reasons, the EPA rejects commenters' assertion that
it is acting in an arbitrary and capricious manner in this
determination of the effect of this final Agency action.
The EPA additionally notes that one commenter stated in its comment
that if the EPA finalized the proposal ``based on any justification
that does not include a full updating, subject to public comment, of
the analytical data base on which it rests,'' EPN ``formally petitions
EPA to continue the EGU MACT rule in effect'' by making a new
appropriate and necessary finding ``based on the facts as they stand
today,'' which EPN believes would support a determination that
regulation of EGUs under CAA section 112 is appropriate and necessary.
EPN comment at 36 (April 17, 2019) (Docket ID Item No. EPA-HQ-OAR-2018-
0794-2261). However, as explained above, the EPA determines that this
final action has no effect on the MATS for EGUs; the MATS rule remains
in effect without any further action by the EPA. To the extent any
response is needed, the EPA denies the EPN petition.
Comment: Numerous stakeholders claimed a serious reliance interest
in the MATS rule that should weigh against delisting or rescission of
MATS as a result of the EPA's reversal of the 2016 Supplemental
Finding. These stakeholders cited concerns about how delisting or
rescission could lead to negative impacts on cost recovery of
significant capital investments, potential disruptions to pre-existing
air quality planning efforts at the state-level, or potentially
foregone improvements in public health of the kind that have already
resulted from improved air quality due to MATS emissions reductions.
Some commenters pointed to these interests as a reason why the EPA
should not adopt either of the two alternative interpretations
presented by the Agency in the 2019 Proposal regarding the potential
effects of this Agency action.
Response: The EPA's revised determination that regulation of EGUs
under CAA section 112 is not appropriate and necessary will not remove
EGUs from the CAA section 112(c) list of sources, and the previously
established EGU MACT standard, as established in MATS, remains in
place. As a result, the EPA does not anticipate that any of the
reliance interests cited above will be jeopardized as a result of this
action.
III. Background on the RTR Action
A. What is the statutory authority for this action?
Section 112 of the CAA establishes a two-stage regulatory process
to address emissions of HAP from stationary sources. In the first
stage, we must identify categories of sources emitting one or more of
the HAP listed in CAA section 112(b) and then promulgate technology-
based NESHAP for those sources. ``Major sources'' are those that emit,
or have the potential to emit, any single HAP at a rate of 10 tons per
year (tpy) or more, or 25 tpy or more of any combination of HAP. For
major sources, these standards are commonly referred to as MACT
(maximum achievable control technology) standards and must reflect the
maximum degree of emission reductions of HAP achievable after
considering cost, energy requirements, and non-air quality health and
environmental impacts. CAA section 112(d)(2) directs the EPA, in
developing MACT standards, to consider the application of measures,
processes, methods, systems, or techniques, including, but not limited
to, those that reduce the volume of or eliminate HAP emissions through
process changes, substitution of materials, or other modifications;
enclose systems or processes to eliminate emissions; collect, capture,
or treat HAP when released from a process, stack, storage, or fugitive
emissions point; are design, equipment, work practice, or operational
standards; or any combination of the above.
For these MACT standards, the statute specifies certain minimum
stringency requirements, which are referred to as MACT floor
requirements, and which may not be based on cost considerations. See
CAA section 112(d)(3). For new sources, the MACT floor cannot be less
stringent than the emission control achieved in practice by the best-
controlled similar source. The MACT standards for existing sources can
be less stringent than floors for new sources, but they cannot be less
stringent than the average emission limitation achieved by the best-
performing 12 percent of existing sources in the category or
subcategory (or the best-performing five sources for categories or
subcategories with fewer than 30 sources). In developing MACT
standards, we must also consider control options that are more
stringent than the floor under CAA section 112(d)(2). We may establish
standards more stringent than the floor, based on the consideration of
the cost of achieving the emissions reductions, any non-air quality
health and environmental impacts, and energy requirements.
In the second stage of the regulatory process, the CAA requires the
EPA to undertake two different analyses, which we refer to as the
technology review and the residual risk review. Under the technology
review, we must review the technology-based standards and revise them
``as necessary (taking into account developments in practices,
processes, and control technologies)'' no less frequently than every 8
years, pursuant
[[Page 31314]]
to CAA section 112(d)(6). Under the residual risk review, we must
evaluate the risk to public health remaining after application of the
technology-based standards and must revise the standards, if necessary,
to provide an ample margin of safety to protect public health or to
prevent, taking into consideration costs, energy, safety, and other
relevant factors, an adverse environmental effect. The residual risk
review is required within 8 years after promulgation of the technology-
based standards, pursuant to CAA section 112(f). In conducting the
residual risk review, if the EPA determines that the current standards
provide an ample margin of safety to protect public health, it is not
necessary to revise the MACT standards pursuant to CAA section
112(f).\58\ For more information on the statutory authority for this
rule, see 84 FR 2670, February 7, 2019.
---------------------------------------------------------------------------
\58\ The D.C. Circuit has affirmed this approach to implementing
CAA section 112(f)(2)(A). See NRDC v. EPA, 529 F.3d 1077, 1083 (D.C.
Cir. 2008) (``If EPA determines that the existing technology-based
standards provide an 'ample margin of safety,' then the Agency is
free to readopt those standards during the residual risk
rulemaking.'').
---------------------------------------------------------------------------
B. What is the Coal- and Oil-Fired EGU source category and how does the
NESHAP regulate HAP emissions from the source category?
The EPA promulgated the NESHAP for Coal- and Oil-Fired EGUs
(commonly referred to as MATS) on February 16, 2012 (77 FR 9304). The
standards are codified at 40 CFR part 63, subpart UUUUU. The MATS rule
applies to existing and new coal- and oil-fired EGUs located at both
major and area sources of HAP emissions. An EGU is a fossil fuel-fired
combustion unit of more than 25 megawatts (MW) that serves a generator
that produces electricity for sale. A unit that cogenerates steam and
electricity and supplies more than one-third of its potential electric
output capacity and more than 25 MW electric output to any utility
power distribution system for sale is also an EGU. The source category
covered by this MACT standard currently includes an estimated 713 EGUs
located at approximately 323 facilities.
For coal-fired EGUs, the rule established standards to limit
emissions of mercury, acid gas HAP, non-mercury HAP metals (e.g.,
nickel, lead, chromium), and organic HAP (e.g., formaldehyde, dioxin/
furan). Standards for hydrochloric acid (HCl) serve as a surrogate for
the acid gas HAP, with an alternate standard for SO2 that
may be used as a surrogate for acid gas HAP for those coal-fired EGUs
with flue gas desulfurization systems and SO2 continuous
emissions monitoring systems installed and operational. Standards for
filterable PM serve as a surrogate for the non-mercury HAP metals, with
standards for total non-mercury HAP metals and individual non-mercury
HAP metals provided as alternative equivalent standards. Work practice
standards that require periodic combustion process tune-ups limit
formation and emissions of the organic HAP.
For oil-fired EGUs, the rule establishes standards to limit
emissions of HCl and hydrogen fluoride (HF), total HAP metals (e.g.,
mercury, nickel, lead), and organic HAP (e.g., formaldehyde, dioxin/
furan). Standards for filterable PM serve as a surrogate for total HAP
metals, with standards for total HAP metals and individual HAP metals
provided as alternative equivalent standards. Periodic combustion
process tune-up work practice standards limit formation and emissions
of the organic HAP.
The MATS rule was amended on April 19, 2012 (77 FR 23399), to
correct typographical errors and certain preamble text that was
inconsistent with regulatory text; on April 24, 2013 (78 FR 24073), to
update certain emission limits and monitoring and testing requirements
applicable to new sources; on November 19, 2014 (79 FR 68777), to
revise definitions for startup and shutdown and to finalize work
practice standards and certain monitoring and testing requirements
applicable during periods of startup and shutdown; and on April 6, 2016
(81 FR 20172), to correct conflicts between preamble and regulatory
text and to clarify regulatory text. In addition, the electronic
reporting requirements of the rule were amended on March 24, 2015 (80
FR 15510), to allow for the electronic submission of Portable Document
Format (PDF) versions of certain reports until April 16, 2017, to allow
for time for the EPA's Emissions Collection and Monitoring Plan System
to be revised to accept all reporting that is required by the rule, and
on April 6, 2017 (82 FR 16736), and on July 2, 2018 (83 FR 30879), to
extend the interim submission of PDF versions of reports through June
30, 2018, and July 1, 2020, respectively.
Additional detail regarding the standards applicable to the seven
subcategories of EGUs regulated under the MATS rule can be found in
section IV.B of the 2019 Proposal. 84 FR 2670 (February 7, 2019).
C. What changes did we propose for the Coal- and Oil-Fired EGU source
category in our February 7, 2019, proposed rule?
On February 7, 2019, the EPA published a proposed rule in the
Federal Register for the NESHAP for Coal- and Oil-Fired EGUs, 40 CFR
part 63, subpart UUUUU, that took into consideration the RTR analyses.
84 FR 2670. In the proposed rule, we found that residual risks due to
emissions of air toxics from this source category are acceptable and
that the current NESHAP provides an ample margin of safety to protect
public health, and we identified no new developments in HAP emission
controls to achieve further cost-effective emissions reductions under
the technology review. Based on the results of these analyses, we
proposed no revisions to the MATS rule.
IV. What is included in this final rule based on results of the RTR?
This action finalizes the EPA's determinations pursuant to the RTR
provisions of CAA section 112 for the Coal- and Oil-Fired EGU source
category.
A. What are the final rule amendments based on the residual risk review
for the Coal- and Oil-Fired EGU source category?
We found risk due to emissions of air toxics to be acceptable from
this source category and determined that the current NESHAP provides an
ample margin of safety to protect public health and prevent an adverse
environmental effect. Therefore, we did not propose and are not
finalizing any revisions to the NESHAP for Coal- and Oil-Fired EGUs
based on our analyses conducted under CAA section 112(f).
B. What are the final rule amendments based on the technology review
for the Coal- and Oil-Fired EGU source category?
We determined that there are no developments in practices,
processes, and control technologies that warrant revisions to the MACT
standard for this source category. Therefore, we did not propose and
are not finalizing revisions to the MACT standard under CAA section
112(d)(6).
C. What are the effective and compliance dates of the standards?
The final rule is effective on May 22, 2020. No amendments to the
MATS rule are being promulgated in this action. Thus, there are no
adjustments being made to the compliance dates of the standards.
[[Page 31315]]
V. What is the rationale for our final decisions regarding the RTR
action for the Coal- and Oil-Fired EGU source category?
This section of this preamble provides a description of what we
proposed and what we are finalizing, the EPA's rationale for the final
decisions, and a summary of key comments and responses. For comments
not discussed in this preamble, comment summaries and the EPA's
responses can be found in the document titled Final Supplemental
Finding and Risk and Technology Review for the NESHAP for Coal- and
Oil-Fired EGUs Response to Public Comments on February 7, 2019
Proposal, available in the docket for this action.
A. Residual Risk Review for the Coal- and Oil-Fired EGU Source Category
1. What did we propose pursuant to CAA section 112(f) for the Coal- and
Oil-Fired EGU source category?
Pursuant to CAA section 112(f), the EPA conducted a residual risk
review and presented the results of this review, along with our
proposed decisions regarding risk acceptability, ample margin of
safety, and adverse environmental effects, in the February 7, 2019,
proposed rule. 84 FR 2697-2700. The results of the risk assessment are
presented briefly in Table 2, and in more detail in the document titled
Residual Risk Assessment for the Coal- and Oil-Fired EGU Source
Category in Support of the 2019 Risk and Technology Review Proposed
Rule (risk document for the proposed rule), available in the docket for
this action.
Table 2--Coal- and Oil-Fired EGU Inhalation Risk Assessment Results in the February 2019 Proposal
[84 FR 2670, February 7, 2019]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Maximum individual Population at increased Annual cancer incidence Maximum chronic Maximum screening acute noncancer HQ 4
cancer risk (in 1 risk of cancer >=1-in-1 (cases per year) noncancer TOSHI 3 -------------------------------------------
million) 2 million ----------------------------------------------------
---------------------------------------------------- Based on . . . Based on . . .
Number of facilities 1 Based on . . . Based on . . . ----------------------------------------------------
---------------------------------------------------- Based on actual emission level
Actual Allowable Actual Allowable Actual Allowable Actual Allowable
emissions emissions emissions emissions emissions emissions emissions emissions
level level level level level level level level
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
322......................................... 9 10 193,000 636,000 0.04 0.1 0.2 0.4 HQREL = 0.09
(arsenic).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1 Number of facilities evaluated in the risk analysis. There are an estimated 323 facilities in the Coal- and Oil-Fired EGU source category; however, one facility is located in Guam, which is
beyond the geographic range of the model used to estimate risks. Therefore, the Guam facility was not modeled and the emissions for that facility are not included in this assessment.
2 Maximum individual excess lifetime cancer risk due to HAP emissions from the source category.
3 Maximum target organ-specific hazard index (TOSHI). The target organ systems with the highest TOSHI for the source category are neurological and reproductive.
4 The maximum estimated acute exposure concentration was divided by available short-term threshold values to develop an array of hazard quotient (HQ) values. HQ values shown use the lowest
available acute threshold value, which in most cases is the reference exposure level (REL). When an HQ exceeds 1, we also show the HQ using the next lowest available acute dose-response
value.
a. Chronic Inhalation Risk Assessment Results
The results of the chronic inhalation cancer risk assessment based
on actual emissions, as shown in Table 2 of this preamble, indicate
that the estimated maximum individual lifetime cancer risk (cancer MIR)
is 9-in-1 million, with nickel emissions from oil-fired EGUs as the
major contributor to the risk. The total estimated cancer incidence
from this source category is 0.04 excess cancer cases per year, or one
excess case in every 25 years. Approximately 193,000 people are
estimated to have cancer risks at or above 1-in-1 million from HAP
emitted from the facilities in this source category. The estimated
maximum chronic noncancer TOSHI for the source category is 0.2
(respiratory), which is driven by emissions of nickel and cobalt from
oil-fired EGUs. No one is exposed to TOSHI levels above 1 based on
actual emissions from sources regulated under this source category.
The EPA also evaluated the cancer risk at the maximum emissions
allowed by the MACT standard (i.e., ``allowable emissions''). As shown
in Table 2 of this preamble, based on allowable emissions, the
estimated cancer MIR is 10-in-1 million, and, as before, nickel
emissions from oil-fired EGUs are the major contributor to the risk.
The total estimated cancer incidence from this source category,
considering allowable emissions, is 0.1 excess cancer cases per year,
or one excess case in every 10 years. Based on allowable emissions,
approximately 636,000 people are estimated to have cancer risks at or
above 1-in-1 million from HAP emitted from the facilities in this
source category. The estimated maximum chronic noncancer TOSHI for the
source category is 0.4 (respiratory) based on allowable emissions,
driven by emissions of nickel and cobalt from oil-fired EGUs. No one is
exposed to TOSHI levels above 1 based on allowable emissions.
b. Screening Level Acute Risk Assessment Results
Table 2 of this preamble provides the worst-case acute HQ (based on
the REL) of 0.09, driven by emissions of arsenic. There are no
facilities that have acute HQs (based on the REL or any other reference
values) greater than 1. For more detailed acute risk results, refer to
the risk document for the proposed rule, available in the docket for
this action.
c. Multipathway Risk Screening and Site-Specific Assessment Results
Potential multipathway health risks under a fisher and gardener
scenario were identified using a three-tier screening assessment of the
HAP known to be persistent and bio-accumulative in the environment (PB-
HAP) emitted by facilities in the Coal- and Oil-Fired EGU source
category, and a site-specific assessment of mercury using the EPA's
Total Risk Integrated Methodology.Fate, Transport, and Ecological
Exposure (TRIM.FaTE) for one location (i.e., three facilities located
in North Dakota) as further described below. Of the 322 MATS facilities
modeled, 307 facilities have reported emissions of carcinogenic PB-HAP
(arsenic, dioxins, and polycyclic organic matter (POM)) that exceed a
Tier 1 cancer screening value of 1, and 235 facilities have reported
emissions of non-carcinogenic PB-HAP (lead, mercury, and cadmium) that
exceed a Tier 1 noncancer screening value of 1. For facilities that
exceeded a Tier 1 multipathway screening value of 1, we used additional
facility site-specific information to perform an assessment through
Tiers 2 and 3, as necessary, to determine the maximum chronic cancer
and noncancer impacts
[[Page 31316]]
for the source category. For cancer, the highest Tier 2 screening value
was 200. This screening value was reduced to 50 after the plume rise
stage of Tier 3. Because this screening value was much lower than 100-
in-1 million, and because we expect the actual risk to be lower than
the screening value (site-specific assessments typically lower
estimates by an order of magnitude), we did not perform further
assessment for cancer. For noncancer, the highest Tier 2 screening
value was 30 (for mercury), with four facilities having screening
values greater than 20. These screening values were reduced to 9 or
lower after the plume rise stage of Tier 3.
Because the final stage of Tier 3 (time-series) was unlikely to
reduce the highest mercury screening values to 1, we conducted a site-
specific multipathway assessment of mercury emissions for this source
category. Analysis of the facilities with the highest Tier 2 and Tier 3
screening values helped identify the location for the site-specific
assessment and the facilities to model with TRIM.FaTE. The assessment
took into account the effect that multiple facilities within the source
category may have on common lakes. The three facilities selected are
located near Underwood, North Dakota. All three facilities had Tier 2
screening values greater than or equal to 20. Two of the facilities are
near each other (16 kilometers (km) apart). The third facility is more
distant, about 20 to 30 km from the other facilities, but it was
included in the analysis because it is within the 50-km modeling domain
of the other facilities and because it had an elevated Tier 2 screening
value. We expect that the exposure scenarios we assessed for these
facilities are among the highest, if not the highest, that might be
encountered for other facilities in this source category. The refined
multipathway assessment estimated an HQ of 0.06 for mercury for the
three facilities assessed. We believe the assessment represents the
highest potential for mercury hazards through fish consumption for the
source category.
In evaluating the potential multipathway risk from emissions of
lead compounds, rather than developing a screening threshold emission
rate, we compare maximum estimated chronic inhalation exposure
concentrations to the level of the current NAAQS for lead (0.15
micrograms per cubic meter). Values below the level of the primary
(health-based) lead NAAQS are considered to have a low potential for
multipathway risk. We did not estimate any exceedances of the lead
NAAQS in this source category.
d. Environmental Risk Screening Results
An environmental risk screening assessment for the Coal- and Oil-
Fired EGU source category was conducted for the following pollutants:
Arsenic, cadmium, dioxins/furans, HCl, HF, lead, mercury (methylmercury
and mercuric chloride), and POMs. In the Tier 1 screening analysis for
PB-HAP (other than lead, which was evaluated differently), POM
emissions had no exceedances of any of the ecological benchmarks
evaluated. Arsenic and dioxin/furan emissions had Tier 1 exceedances
for surface soil benchmarks. Cadmium and methylmercury emissions had
Tier 1 exceedances for surface soil and fish benchmarks. Divalent
mercury emissions had Tier 1 exceedances for sediment and surface soil
benchmarks.
A Tier 2 screening analysis was performed for arsenic, cadmium,
dioxins/furans, divalent mercury, and methylmercury emissions. In the
Tier 2 screening analysis, arsenic, cadmium, and dioxin/furan emissions
had no exceedances of any of the ecological benchmarks evaluated.
Divalent mercury emissions from two facilities exceeded the Tier 2
screen for a sediment threshold level benchmark by a maximum screening
value of 2. Methylmercury emissions from the same two facilities
exceeded the Tier 2 screen for a fish (avian/piscivores) no-observed-
adverse-effect-level (NOAEL) (merganser) benchmark by a maximum
screening value of 2. A Tier 3 screening assessment was performed to
verify the existence of the lake associated with these screening
values, and it was found to be located on-site and is a man-made
industrial pond, and, therefore, was removed from the assessment.
Methylmercury emissions from two facilities exceeded the Tier 2
screen for a surface soil NOAEL for avian ground insectivores
(woodcock) benchmark by a maximum screening value of 2. Other surface
soil benchmarks for methylmercury, such as the NOAEL for mammalian
insectivores and the threshold level for the invertebrate community,
were not exceeded. Given the low Tier 2 maximum screening value of 2
for methylmercury, and the fact that only the most protective benchmark
was exceeded, a Tier 3 environmental risk screen was not conducted for
methylmercury.
For lead, we did not estimate any exceedances of the secondary lead
NAAQS. For HCl and HF, the average modeled concentration around each
facility (i.e., the average concentration of all off-site data points
in the modeling domain) did not exceed any ecological benchmark. In
addition, each individual modeled concentration of HCl and HF (i.e.,
each off-site data point in the modeling domain) was below the
ecological benchmarks for all facilities. Based on the results of the
environmental risk screening analysis, we do not expect an adverse
environmental effect as a result of HAP emissions from the Coal- and
Oil-Fired EGU source category.
e. Facility-Wide Risk Results
An assessment of risk from facility-wide emissions was performed to
provide context for the source category risks. Based on facility-wide
emissions estimates developed using the same estimates of actual
emissions for emissions sources in the source category, and emissions
data from the 2014 National Emissions Inventory (NEI) (version 2) for
the sources outside the source category, the estimated cancer MIR is 9-
in-1 million, and nickel emissions from oil-fired EGUs are the major
contributor to the risk. The total estimated cancer incidence based on
facility-wide emissions is 0.04 excess cancer cases per year, or one
excess case in every 25 years. Approximately 203,000 people are
estimated to have cancer risks at or above 1-in-1 million from HAP
emitted from all sources at the facilities in this source category. The
estimated maximum chronic noncancer TOSHI posed by facility-wide
emissions is 0.2 (respiratory), driven by emissions of nickel and
cobalt from oil-fired EGUs. No one is exposed to TOSHI levels above 1
based on facility-wide emissions. These results are very similar to
those based on actual emissions from the source category because there
is not significant collocation of other sources with EGUs.
f. Proposed Decisions Regarding Risk Acceptability, Ample Margin of
Safety, and Adverse Environmental Effect
In determining whether risks are acceptable for this source
category in accordance with CAA section 112, the EPA considered all
available health information and risk estimation uncertainty. The risk
results indicate that both the actual and allowable inhalation cancer
risks to the individual most exposed are well below 100-in-1 million,
which is the presumptive limit of acceptability. Also, the highest
chronic noncancer TOSHI, and the highest acute noncancer HQ, are well
below 1, indicating low likelihood of adverse noncancer effects from
inhalation exposures. There are also low risks associated with
ingestion, with the highest cancer risk being less than 50-
[[Page 31317]]
in-1 million based on a conservative screening assessment, and the
highest noncancer hazard being less than 1 based on a site-specific
multipathway assessment. Considering this information, the EPA proposed
that the residual risks of HAP emissions from the Coal- and Oil-Fired
EGU source category are acceptable.
We then considered whether the current standards provide an ample
margin of safety to protect public health and whether more stringent
standards were necessary to prevent an adverse environmental effect by
taking into consideration costs, energy, safety, and other relevant
factors. In determining whether the standards provide an ample margin
of safety to protect public health, we examined the same risk factors
that we investigated for our acceptability determination and also
considered the costs, technological feasibility, and other relevant
factors related to emissions control options that might reduce risk
associated with emissions from the source category. In our analysis, we
considered the results of the technology review, risk assessment, and
other aspects of our MACT rule review to determine whether there are
any cost-effective controls or other measures that would reduce
emissions further to provide an ample margin of safety. The risk
analysis indicated that the risks from the source category are low for
both cancer and noncancer health effects, and, therefore, any risk
reductions from further available control options would result in
minimal health benefits. Moreover, no additional measures were
identified for reducing HAP emissions from affected sources in the
Coal- and Oil-Fired EGU source category. Thus, we proposed that the
current MATS requirements provide an ample margin of safety to protect
public health in accordance with CAA section 112.
Based on the results of our environmental risk screening
assessment, we also proposed that more stringent standards are not
necessary to prevent an adverse environmental effect.
2. How did the residual risk review change for the Coal- and Oil-Fired
EGU source category?
Since proposal (84 FR 2670, February 7, 2019), neither the risk
assessment nor our determinations regarding risk acceptability, ample
margin of safety, or adverse environmental effects have changed.
3. What key comments did we receive on the residual risk review, and
what are our responses?
The EPA received comments in opposition to and in support of the
proposed residual risk review and our determination that no revisions
were warranted under CAA section 112(f)(2) for the Coal- and Oil-Fired
EGU source category.
Generally, the comments that were not supportive of the proposed
determination from the risk review claimed that the risks are
understated with the methods used by the EPA to assess inhalation,
multipathway, and environmental risks and suggested changes to the
underlying risk assessment methodology. For example, some commenters
stated that the EPA should lower the acceptability benchmark so that
risks below 100-in-1 million are unacceptable, include emissions
outside of the source category in question in the risk assessment, and
assume that pollutants with noncancer health risks have no safe level
of exposure. With regard to the Coal- and Oil-Fired EGU source category
risk review, several commenters claimed that the type and quantity of
organic HAP emissions modeled were underestimated, disagreeing with the
EPA's determination to model only 16 organic HAP and to base the
estimated emissions on EPA-developed representative detection levels
(RDLs). Commenters pointed to the difference between the modeled 3.4
tons of total source category organic HAP emissions versus other
estimates of total source category organic HAP, such as the EPA's 2014
NEI estimate of over 3,000 tons of total source category organic HAP
emissions from 130 organic HAP.
The EPA disputes the comments objecting to the type and quantity of
organic HAP modeled under the risk review. As discussed in section IV.B
of the proposed rule (84 FR 2670, February 7, 2019), during the 2010
ICR effort for the original MATS rulemaking process, most of the
organic HAP emissions data for EGUs were at or below the detection
levels of the prescribed test methods, even when long duration test
runs (i.e., approximately 8 hours) were required. Under the MATS rule,
organic HAP are regulated by a work practice standard that requires
periodic combustion process tune-ups. As such, EGUs are not required to
meet numeric emission limits for organic HAP or to test and report
organic HAP emissions. Because the MATS rule does not require
measurements of organic HAP, the EPA reviewed the available organic HAP
test results from the 2010 ICR when developing the RTR emissions
dataset. For each organic HAP tested, if 40 percent or more of the
available test data were above test method detection limits, emissions
estimates for that HAP were included in the modeling file. We assert
that this approach which modeled each organic HAP where up to 60
percent of its 2010 ICR emissions data were below test method detection
limits is a reasonable and conservative means of estimating which
organic HAP are emitted from currently operating coal- and oil-fired
EGUs. We also assert that the use of RDLs, which are based on averages
of better-performing unit method detection levels, as well as
laboratories using the most sensitive analyses across many source
categories, is a reasonable means of estimating organic HAP emissions
from currently operating EGUs which, under the MATS rule, are not
required to measure organic HAP emissions. With regard to the 2014 NEI
organic HAP emissions estimates referred to by commenters, the EPA
points out that those estimates are based on pre-MATS compliance
information and, thus, do not reflect reductions in organic HAP
resulting from periodic tune-ups that have been conducted as required
by the MATS rule. In addition, the pre-MATS compliance estimates in
instances are likely to be based on, at most, 19 site-specific tests
which have an average ``D'' rating and which were conducted over 25
years ago, as opposed to the MATS ICR data from up to 170 site-specific
tests which would have an average A rating and which were conducted
just 9 years ago.\59\ Moreover, the pre-MATS compliance estimates most
certainly includes emissions from EGUs that have since shut down.
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\59\ As discussed in the Introduction to AP-42 (see https://www3.epa.gov/ttn/chief/ap42/c00s00.pdf), the AP-42 emission factor
rating is an overall assessment of how good a factor is, based on
both the quality of the test(s) or information that is the source of
the factor and on how well the factor represents the emission
source. A `D' rated emission factor is below average and is
developed from test data from a small number of facilities, and
there may be reason to suspect that these facilities do not
represent a random sample of the industry. In addition, test data
from `D' rated emission factors may show evidence of variability
within the source population. Emission factors from the MATS ICR
have not been developed for AP-42 and the current rating process has
been revised from letter grades to descriptors. However, under the
previous rating process, emission factors from the MATS ICR data
would have received `A' ratings, where an `A' rated emission factor
is excellent and is developed from test data taken from many
randomly chosen facilities in the industry population. Moreover, for
an `A' rated emissions factor, the source category population is
sufficiently specific to minimize variability.
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Although some comments were supportive of the EPA's proposed
determination based on results of the risk review, the comments claimed
that
[[Page 31318]]
the risks are overstated due to the overly conservative risk assessment
methodology used by the EPA. Commenters stated, for example, that the
risk assessment makes numerous conservative assumptions regarding
emissions and exposures, the exposure assumptions are scientifically
outdated, and the assessment used unrealistically high fish consumption
rates. With regard to the Coal- and Oil-Fired EGU source category risk
review, several commenters suggested data corrections to emissions
estimates for particular EGUs that, according to commenters, resulted
in overstated emissions being modeled. One commenter also suggested
several revisions to the emissions estimation methodology for HAP
emissions from EGUs. Several commenters pointed out that the EPA's risk
review for the Coal- and Oil-Fired EGU source category and the June
2018 Electric Power Research Institute (EPRI) risk studies for coal-
fired power plants \60\--each of which followed somewhat different
methodologies--similarly concluded that human health risks associated
with HAP emissions are within EPA acceptability thresholds.
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\60\ EPRI. June 8, 2018. Hazardous Air Pollutants (HAPs)
Emission Estimates and Inhalation Human Health Risk Assessment for
U.S. Coal-Fired Electric Generating Units: 2017 Base Year Post-MATS
Evaluation. Available at https://www.epri.com/#/pages/product/3002013577/?lang=en.EPRI. June 22, 2018. Multi-Pathway Human Health
Risk Assessment for Coal-Fired Power Plants. Available at https://www.epri.com/#/pages/product/3002013523/?lang=en.
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The EPA acknowledges that the risk assessment results for the Coal-
and Oil-Fired EGU source category are dependent on the emission values
used in the assessment. If we were to lower emission rates based on
more accurate data, we expect lower risk estimates. Because the EPA has
determined that the risk is acceptable, and that the existing standards
provide an ample margin of safety to protect public health in
accordance with CAA section 112, making the data corrections suggested
by commenters would potentially reduce risk further but would not
change the determinations under the risk review. Accordingly, we
conclude that it is reasonable not to update the risk assessment
following the proposal, and we have finalized the risk document and re-
submitted it to the docket for this action as the Residual Risk
Assessment for the Coal- and Oil-Fired EGU Source Category in Support
of the 2019 Risk and Technology Review Final Rule.
4. What is the rationale for our final approach and final decisions for
the residual risk review?
We evaluated all of the comments on the EPA's proposed residual
risk review and determined that no changes to the review are needed.
For the reasons explained in the proposed rule, we determined that the
risks from the Coal- and Oil-Fired EGU source category are acceptable,
and that the current standards provide an ample margin of safety to
protect public health and prevent an adverse environmental effect.
Therefore, pursuant to CAA section 112(f)(2), we are finalizing our
residual risk review as proposed.
B. Technology Review for the Coal- and Oil-Fired EGU Source Category
1. What did we propose pursuant to CAA section 112(d)(6) for the Coal-
and Oil-Fired EGU source category?
Pursuant to CAA section 112(d)(6), the EPA conducted a technology
review, which focused on identifying and evaluating developments in
practices, processes, and control technologies for the emission sources
in the source category. After conducting the CAA section 112(d)(6)
technology review of the NESHAP for Coal- and Oil-Fired EGUs, we
proposed that revisions to the standards are not necessary because we
identified no cost-effective developments in practices, processes, or
control technologies. More information concerning our technology review
is in the memorandum titled Technology Review for the Coal- and Oil-
Fired EGU Source Category, available in the docket for this action, and
in the February 7, 2019, proposed rule. 84 FR 2700.
2. How did the technology review change for the Coal- and Oil-Fired EGU
source category?
Since proposal (84 FR 2670, February 7, 2019), the technology
review has not changed.
3. What key comments did we receive on the technology review, and what
are our responses?
The EPA received comments in support of and against the proposed
technology review and our determination that no revisions were
warranted under CAA section 112(d)(6) for the Coal- and Oil-Fired EGU
source category.
The comments that agreed with the EPA's proposed determination that
no revisions to the MATS rule are warranted based on results of the
technology review also asserted that the reductions required by MATS
were not cost-effective at the time they were adopted and forced
widespread and unprecedented coal-fired EGU retirements, that the
general costs of emission control technologies have not significantly
been reduced and have increased in some instances, and that the beyond-
the-floor analyses conducted by the EPA in support of the 2012 MATS
Final Rule are still valid. Commenters also asserted that the EPA
cannot adopt more stringent standards under CAA section 112(d)(6) where
there is no appreciable HAP-related benefit from doing so and pointed
to the results of the risk assessment for the Coal- and Oil-Fired EGU
source category.
The comments that were not supportive of the proposed determination
from the technology review generally claimed that the review failed to
assess whether control technologies deployed for compliance with the
2012 MATS Final Rule were less expensive and more effective than
projected and whether technologies deemed economically infeasible in
2012 have since become cheaper.
The EPA disagrees with the comments opposing the proposed
determination that no revisions were warranted under CAA section
112(d)(6). As explained in section VI.C of the proposed rule (84 FR
2670, February 7, 2019), control technologies typically used to
minimize emissions of pollutants that have numeric emission limits
under the MATS rule include electrostatic precipitators and fabric
filters for control of PM and non-mercury HAP metals; wet scrubbers and
dry scrubbers for control of acid gases (SO2, HCl, and HF);
and activated carbon injection for control of mercury. These existing
air pollution control technologies that are currently in use are well-
established and provide the capture efficiencies necessary for
compliance with the MATS emission limits. Organic HAP, including
emissions of dioxins and furans, are regulated by a work practice
standard that requires periodic burner tune-ups to ensure good
combustion. This work practice continues to be a practical approach to
ensuring that combustion equipment is maintained and optimized to run
to reduce formation and emissions of organic HAP and continues to be
expected to be more effective than establishing a numeric standard for
emissions that, due to current detection levels, cannot reliably be
measured or continuously monitored. We received no comments that
included specific information on costs or performance for control
technologies deployed to comply with the 2012 MATS Final Rule or for
other control technology, work practices, operational
[[Page 31319]]
procedures, process changes, or pollution prevention approaches that
reduce HAP emissions. Since proposal, no information has been presented
to cause us to change the proposed determination that no developments
in practices, processes, or control technologies, nor any new
technologies or practices were identified for the control of non-
mercury HAP metals, acid gas HAP, or mercury, and that no developments
in work practices nor any new work practices or operational procedures
have been identified for the control of organic HAP.
4. What is the rationale for our final approach for the technology
review?
We evaluated all of the comments on the EPA's technology review and
determined that no changes to the review are needed. For the reasons
explained in the proposed rule, we determined that no cost-effective
developments in practices, processes, or control technologies were
identified in our technology review to warrant revisions to the
standards. Therefore, pursuant to CAA section 112(d)(6), we are
finalizing our technology review as proposed.
VI. Summary of Cost, Environmental, and Economic Impacts and Additional
Analyses Conducted
A. What are the affected facilities?
The EPA estimates that there are 713 existing coal- and oil-fired
EGUs located at 323 facilities that are subject to the MATS rule and
will be affected by this final action.
B. What are the air quality impacts?
Because the EPA is not promulgating any amendments to the MATS
rule, there will be no air quality impacts as a result of this final
action.
C. What are the cost impacts?
Because the EPA is not promulgating any amendments to the MATS
rule, there will be no cost impacts as a result of this final action.
D. What are the economic impacts?
Because the EPA is not promulgating any amendments to the MATS
rule, there will be no economic impacts as a result of this final
action.
E. What are the benefits?
Because the EPA is not promulgating any amendments to the MATS
rule, there will be no benefits as a result of this final action.
F. What analysis of environmental justice did we conduct?
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the U.S.
As discussed in section VI.A of the proposed rule (84 FR 2670,
February 7, 2019), to examine the potential for any environmental
justice issues that might be associated with the source category, we
performed a demographic analysis, which is an assessment of risk to
individual demographic groups of the populations living within 5 km and
within 50 km of the facilities.\61\ In the analysis, we evaluated the
distribution of HAP-related cancer and noncancer risks from the Coal-
and Oil-Fired EGU source category across different demographic groups
within the populations living near facilities. The results of the Coal-
and Oil-Fired EGU source category demographic analysis indicate that
emissions from the source category expose approximately 193,000 people
to a cancer risk at or above 1-in-1 million and no people to a chronic
noncancer TOSHI greater than 1. There are only four facilities in the
source category with cancer risk at or above 1-in-1 million, and all of
them are located in Puerto Rico. Consequently, all of the percentages
of the at-risk population in each demographic group associated with the
Puerto Rican population are much higher than their respective
nationwide percentages, and those not associated with Puerto Rico are
much lower than their respective nationwide percentages. The
methodology and the results of the demographic analysis are presented
in the technical report titled Risk and Technology Review--Analysis of
Demographic Factors for Populations Living Near Coal- and Oil-Fired
EGUs Regulated Under the Mercury and Air Toxics Standards (MATS),
available in Docket ID No. EPA-HQ-OAR-2018-0794.
---------------------------------------------------------------------------
\61\ See technical report titled Risk and Technology Review--
Analysis of Demographic Factors for Populations Living Near Coal-
and Oil-Fired EGUs Regulated Under the Mercury and Air Toxics
Standards (MATS). May 23, 2018; Docket ID Item No. EPA-HQ-OAR-2018-
0794-0012.
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G. What analysis of children's environmental health did we conduct?
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. This action's health and risk assessments are summarized in
section V.A of this preamble and are further documented in sections V
and VI of the proposed rule (84 FR 2670, February 7, 2019), and the
risk document for the final rule,\62\ available in the docket for this
action.
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\62\ See document titled Residual Risk Assessment for the Coal-
and Oil-Fired EGU Source Category in Support of the 2019 Risk and
Technology Review Final Rule, available in Docket ID No. EPA-HQ-OAR-
2018-0794.
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VII. Statutory and Executive Order Reviews
Additional information about these statutes and Executive Orders
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Orders 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to OMB for review because it is likely to raise novel legal or policy
issues. Any changes made in response to OMB recommendations have been
documented in the docket. The EPA does not project any potential costs
or benefits associated with this action.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is not considered an Executive Order 13771 regulatory
action. There are no quantified cost estimates for this final rule
because it will not result in any changes in costs.
C. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the existing regulations and has assigned OMB
control number 2060-0567. This action does not impose an information
collection burden because the EPA is not making any changes to the
information collection requirements.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a
[[Page 31320]]
substantial number of small entities under the RFA. This action will
not impose any requirements on small entities. The EPA does not project
any potential costs or benefits associated with this action.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local, or tribal governments or the private sector.
F. Executive Order 13132: Federalism
This action does 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.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have tribal implications as specified in
Executive Order 13175. It would neither impose substantial direct
compliance costs on tribal governments, nor preempt Tribal law. Thus,
Executive Order 13175 does not apply to this action.
Consistent with the EPA Policy on Consultation and Coordination
with Indian Tribes, the EPA consulted with tribal officials during the
development of this action. A summary of the consultations follows.
On April 2, 2019, the EPA held a consultation with the Blue Lake
Rancheria. The tribe indicated that they did not support the 2019
Proposal for several reasons. The tribe expressed concern that the
EPA's proposed finding that it is not appropriate and necessary to
regulate HAP emissions from coal- and oil-fired EGUs under section 112
of the CAA would remove the legal foundation for the MATS rule. The
tribe added that the EPA has neither the authority nor the obligation
to remove coal- and oil-fired EGUs from the CAA section 112(c) source
category list or to rescind MATS. The tribe noted that the costs of
compliance for EGUs subject to MATS have already been incurred, and
that those investments could be in vain if MATS is rescinded. In
addition, the proposed finding will likely lead to litigation which
would be a waste of taxpayer dollars, according to the tribe. The Blue
Lake Rancheria stated that the EPA's cost-benefit analysis should not
exclude co-benefits, and that the analysis should include healthcare
costs and environmental remediation costs. The tribe discussed the
health effects of exposure to mercury and noted that the RTR shows that
the risks are acceptable with MATS in place; that margin of safety
would be eliminated if the rule is rescinded. The tribe also expressed
concern that eliminating the MATS rule will prolong the use of coal-
fired power plants, which would lead to increased greenhouse gas
emissions.
The EPA held a consultation with the Fond du Lac Band of Lake
Superior Chippewa on April 3, 2019. The tribe also did not support the
proposed finding that regulation of HAP emissions from coal- and oil-
fired EGUs is not appropriate and necessary. The tribe stated that
studies have shown that mercury is harmful and should be controlled,
and that the EPA does not have the authority to delist EGUs from
regulation under CAA section 112. According to the tribe, co-benefits
from reductions of non-HAP pollutants should be considered equally with
benefits from reductions of HAP. The tribe asked whether the EPA had
considered factors specific to their tribe in the EPA's analysis, such
as their higher consumption of fish due to cultural and subsistence
reasons and the prevalence of wetlands and ditches on the reservation,
which are mercury sinks. The tribe also questioned whether impacts to
wildlife such as otters, loons, and eagles were considered.
Responses to these comments and others received are available in
the RTC document,\63\ available in the docket for this action.
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\63\ See document titled Final Supplemental Finding and Risk and
Technology Review for the NESHAP for Coal- and Oil-Fired EGUs
Response to Public Comments on February 7, 2019 Proposal, available
in Docket ID No. EPA-HQ-OAR-2018-0794.
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H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children. This action's health and risk assessments are contained in
sections V and VI of the proposed rule (84 FR 2670, February 7, 2019),
and the risk document for the final rule, available in the docket for
this action (see document titled Residual Risk Assessment for the Coal-
and Oil-Fired EGU Source Category in Support of the 2019 Risk and
Technology Review Final Rule, available in Docket ID No. EPA-HQ-OAR-
2018-0794).
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. This action is not anticipated to have
impacts on energy supply decisions for the affected electric utility
industry.
J. National Technology Transfer and Advancement Act (NTTAA)
This action does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low-income populations, and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
documentation for this decision is contained in section VI.F of this
preamble, section VI.A of the proposed rule (84 FR 2670, February 7,
2019), and the technical report, Risk and Technology Review--Analysis
of Demographic Factors for Populations Living Near Coal- and Oil-Fired
EGUs Regulated Under the Mercury and Air Toxics Standards (MATS),
available in the docket for this action (see Docket ID Item No. EPA-HQ-
OAR-2018-0794-0012).
L. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
Dated: April 16, 2020.
Andrew Wheeler,
Administrator.
[FR Doc. 2020-08607 Filed 5-21-20; 8:45 am]
BILLING CODE 6560-50-P