ERCC Comments on Utility MACT

August 4, 2011

U.S. Environmental Protection Agency
Air & Radiation Docket
1200 Pennsylvania Ave. NW, Mail Code 6102T
Washington, DC 20460

Re: EPA-HQ- OAR–2009–0234; EPA-HQ- OAR–2011–0044

National Emission Standards for Hazardous Air Pollutants From Coal and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units 76 Fed. Reg. 24976 (May 3, 2011)

Dear Sir or Madam:

The Electric Reliability Coordinating Council (ERCC) is a group of power-generating companies that provide reliable and affordable power to millions of consumers in geographically diverse regions of the United States. ERCC members have long supported commonsense interpretation of the Clean Air Act (the Act) in order to ensure electric reliability, consistency, affordability, safety and environmental protection. In furtherance of these goals, ERCC is pleased to submit the following comments on the U.S. Environmental Protection Agency‘s (EPA or the Agency) proposed National Emission Standards for Hazardous Air Pollutants (HAP) from Coal- and Oil-Fired Electric Utility Steam Generating Units (hereinafter referred to as "Utility MACT").1

INTRODUCTION

Put simply, EPA's Utility MACT, when combined with the myriad other regulations proposed, enacted, or currently planned by the Agency, presents a near and present danger to the Nation's economy and the reliability of the electric grid. For this reason, we urge EPA to consider the comments below, along with those submitted by other members of the utility industry, and take appropriate actions to ensure that this rulemaking complies with the imperative laid out by President Obama in Executive Order 13563 requiring agency regulations to "protect public health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness, and job creation." 2

GENERAL COMMENTS

I. EPA'S RULEMAKING PROCESS ALLOWS INSUFFICIENT TIME FOR PUBLIC INPUT AND AGENCY/INTERAGENCY REVIEW

EPA has acknowledged that, even under its own estimates, the proposed Utility MACT would be the most expensive direct rule in the Agency's history – costing some $11 billion annually.3 In the face of such a price tag, it is essential that the Agency ensure sufficient time to analyze the input it receives from the public and industry, prepare appropriate responses, and, where necessary, make changes to the proposed rule. Unfortunately, as with the development of the proposed rule, EPA has voluntarily committed itself to a timeline that is insufficient for the scope of the task.

As it refers to in the rule and in its public statements, in April 2009, EPA signed a consent decree requiring the Agency to issue a proposed Utility MACT by March 16, 2011 and a final Utility MACT by November 16, 2011 (the "Consent Decree").4 While the Consent Decree resolved litigation filed against the Agency in 2008, no individual, group, or court forced EPA to commit to the timelines listed therein. Indeed, the Consent Decree itself lays out a procedure for EPA to modify the deadlines – a procedure explicitly cited by the Judge as one basis for approving the Consent Decree.

Despite the ability to ask for more time afforded under the Consent Decree, EPA has stuck fast to a schedule that saw the Agency: issue an information collection request (ICR) to all coal- and oil-fired utility EGUs in December 2009; received hundreds of millions of dollars worth of data from industry in November 2010; and spend an inadequate three months analyzing the data before submitting the proposed rule to the White House Office of Management and Budget (OMB) in February 2011. OMB then had a mere 30 days to conduct an interagency review of the proposed rule before its issuance in March 2011. Such a process was entirely insufficient for appropriate analysis and review and ensured that the rule would (and, as it turned out, did) contain important errors.5

The process described above now stands to repeat itself as EPA receives hundreds of thousands of public comments, including extensive industry input, on the proposed rule. EPA will once again have a mere three months to: analyze comments and coordinate appropriate responses; make necessary changes to the proposed rule; submit the final rule to OMB for analysis and interagency comments; resolve interagency comments; and promulgate a final rule. In a real sense, the proposed rule, coupled with overlapping rules affecting the power sector, places an effective boot on the garden hose of economic recovery – making much of industrial America uncompetitive and risking millions of jobs.

Some may argue that the regulated community has effectively been on notice of the proposed rule ever since the adoption of the Clean Air Act Amendments of 1990 over 20 years ago. Such a position is farce. The current rule is an incredibly complex set of decisions based on the Agency's discretion and sometimes only tangentially related to actual data or the administrative record. Indeed, as the U.S. Court of Appeals for the D.C. Circuit ruled in Sierra Club v. Thomas, 828 F.2d 873, 798 (D.C. Cir. 1987), a rulemaking schedule is indeed reasonable in which the Agency had taken just less than 3 years from proposal without final action. In so finding, the Court explained that "[a] simple reading of the Clean Air Act reveals that whether to impose a certain type of regulation often involves complex scientific, technological, and policy questions. EPA must be afforded the amount of time necessary to analyze such questions so that it can reach considered results in a final rulemaking that will not be arbitrary and capricious or an abuse of discretion." Id. at 799.6

There is simply too much at stake for the Agency to fail to perform sufficient analysis to ensure this rule is based on accurate data. Accordingly, ERCC recommends that EPA utilize the procedure afforded it under the Consent Decree to seek an appropriate extension of the deadline for issuing the final rule and formulate a realistic compliance schedule that takes into account intense competition for resources and capital. Mere rote citation of alleged benefits to the proposed rule cannot substitute for the real work necessary to produce an adequate final rule. Indeed, such a rush to judgment, as noted by the court in Sierra Club v. Thomas, can actually undermine protections by producing a result more susceptible to judicial intervention.7

II. THE TIME PERIOD FOR COMPLIANCE WITH THE PROPOSED RULE IS INADEQUATE AND INCOMPATIBLE WITH EXECUTIVE ORDER 13563

In 2015, due to the timetables established by EPA, the industry will face perhaps its costliest and most pressing challenge in Utility MACT. In addition to Utility MACT, EPA has or will promulgate numerous new rules in 2010 – 2012 with compliance deadlines on, before, or near 2015. These other rules include regulations for:

  • Greenhouse Gases (GHG) from new and modified sources;
  • Ash and other residuals from the combustion of coal either under Subtitle C as a hazardous waste or Subtitle D as a solid waste of Resource Conservation and Recovery Act (RCRA);
  • National Ambient Air Quality Standards (NAAQS) for SO2, NO2, Ozone, and PM, including a utility-specific SO2-and-NOx-emissions-limiting transport rule; and
  • Cooling water intake structure requirements under section 316(b) and new discharge limiting effluent standards under the Clean Water Act.

Taken together, these regulations will impact roughly 400,000 megawatts of oil and coal-fired generation, which is about 40 percent of the current available capacity in the U.S., and makes up nearly 50 percent of the U.S. total electricity generation. Without further deadline extensions, compliance with several of EPA's new rules, including Utility MACT, would all be required within the three-year MACT compliance period or shortly thereafter. This means that the generating units subject to these rules would either have to undertake the installation of extensive retrofits on an unrealistic timeframe or else shutdown entirely. These retrofits are so substantial that, in many cases, they will cost more to build than the cost of the original generating unit. Yet, despite the amount of time needed to design, procure and construct the required retrofits on a large percentage of the generation in the U.S., only three years are allowed for compliance after the issuance of the final rule unless EPA or the Administration exercises the authority granted them under the statute to extend the compliance period.

President Obama himself embraced the need to closely scrutinize the cost and economic impact of new agency regulations. Executive Order 13563 laid out the new review process for regulations by stating that an agency should "tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations." 8 The accompanying memo issued with the Executive Order sought to clarify the order, by highlighting a basic tenet of the Order; Agency's must "consider costs and how best to reduce burdens for American businesses and consumers."

We believe Congress and the EPA should honor the spirit of the President's Executive Order and address the timeframe and content of overlapping rules for the power sector, beginning with Utility MACT. Taking into account the multiple and overlapping rules facing the power sector, the spirit of the President's Executive Order should force EPA to choose a formulation of the proposed Utility MACT that imposes the "least burden" on society. Where EPA has the capacity for flexibility – such as in the control of non-mercury HAPs, sub-categorization, determination of the MACT floor, and other areas, EPA should do so.

III. THE PROPOSED RULE UNDERESTIMATES IMPACT OF UTILITY MACT ON JOBS, ELECTRIC RELIABILITY, AND ELECTRICITY PRICES

As outlined earlier, EPA has estimated the cost of the proposed rule as $11 billion annually9 – the most expensive rule in the Agency's history. And yet, in recent months, multiple studies have been released and concluded that the potential impact of the rule on jobs, reliability, and electricity prices could be far more serious.

a. Jobs Impact

As our Nation tries to recover from the recent recession, no challenge has been greater than the continued scourge of long-term unemployment. As the Administration and Congress continue to seek solutions for this crisis, the President has directed executive agencies to consider the impact of government regulations on job creation. On this issue, it is clear that the impact of Utility MACT, and related EPA regulations, could be severe.

EPA, and advocates supportive of strict environmental regulations, often make the claim that regulations such as Utility MACT will actually increase economic growth and create jobs. And yet, in its May 2011 study on the potential impacts of Utility MACT and the interstate transport rule, NERA Economic Consulting projects that EPA's proposals would result in employment losses of over 1.4 million job-years over the 2013-2020 time period with industry sector losses outnumbering gains by more than 4 to 1 (1.8 million jobs lost and 450,000 created).10 In a separate study of pending MACT standards for industrial boilers and process heaters, IHS Global Insight also countered the "regulation equals job growth" argument and estimated in an August 2010 study that every $1 billion spent on upgrade and compliance costs will put 16,000 jobs at risk and reduce U.S. GDP by as much as $1.2 billion.11

b. Reliability Impact

EPA's proposed rule will impact roughly 400,000 MWs of oil and coal-fired generation, which is about 40 percent of the current available electric capacity in the U.S., and makes up nearly 50 percent of the U.S. total electricity generation. As such, EPA's proposed Utility MACT rule, combined with the impact of other existing and upcoming rules, poses a serious threat to the reliability of the nation's electric supply. In its analysis of the reliability impacts of Utility MACT, EPA estimates that the new standards will force close to 10 GW of coal-fired power plant retirements by 2015.12 This estimate is, however, far short of several industry studies, examples of which are below:

  • NERA Economic Consulting – May 2011 study estimated that the proposed Utility MACT standards combined with the interstate transport rule would result in close to 48 GW of coal-fired power plant retirements by 2015.13
  • ICF International – January 2011 study prepared for the Edison Electric Insitute, showed that when a complete picture of pending and planned environmental regulations are factored in, over 150 GW of coal-fired power plants are at risk of being unavailable in 2015 for the needed energy and required reliability due to insufficient time to install controls or replacement generation. The study concluded further that nearly 80 GW of coal-fired power plants could be retired by 2015 with the remaining coal subject to an unachievable retrofit program.
  • NERC – October 2010 study analyzed the combined impact on reliability of four key EPA rules (Utility MACT, interstate transport rule, 316(b), coal combustion residuals disposal regulations) and concluded that from 78 GW of generating capacity is at risk for retirement by 2015.

Reports have been submitted to the docket – largely from economic competitors with a vested economic interest in decreasing the economic viability of coal-fired generation and thereby increasing the clearing price of energy for consumers – that dispute adverse reliability claims from the proposed rule. In short, these reviews claim that the rule's impact falls within the minimum reserve requirements necessary for reliable operations. Unfortunately, these reports are highly suspect on several grounds. First, the generation and transmission of power takes place on an interrelated grid. Reserve margin assessments are based in part on the ability to back up power from one location with power from another. To say that the impact of a plant's retirement is within reserve margin fails to take into account the probability that the plant's continued operation – even if only occasional – may be necessary for the stability of operations elsewhere. Second, these assessments must admit that those areas most reliant upon coal-fired capacity are indeed likely to face profound price, supply, and reliability concerns. Third, in the event of extraordinary events, only the additional peak-load capacity supplied by coal-fired facilities are likely to provide the resilience necessary to address potential weather-related blackouts or even cyber-security threats to critical infrastructure. And last, the facile reliance in these reports of EPA emergency authorities fails to take into account the continued disagreements between EPA and the U.S. Department of Energy regarding whether or not emergency orders actually forestall Agency enforcement actions.

The conclusions reached by the studies above and the shortcomings of contrary assessments are also highlighted by the recent response by the Federal Energy Regulatory Commission (FERC) to questions from the Senate Energy and Natural Resources Committee on the reliability impacts of EPA's regulations. In a letter dated August 1, 2011, FERC Chairman John Wellinghoff, along with two Commissioners, acknowledged that FERC's preliminary assessment on the impact of EPA rules on coal-fired generating capacity "showed 40 GW of coal-fired generating capacity 'likely' to retire, with another 41 GW 'very likely' to retire[.]"14 Referring to the potential conflict between the impacts of EPA regulations on reliability and entities' requirements to uphold FERC-approved reliability standards, FERC Commissioner Marc Spitzer, in a separate letter to the Committee, argued, that regulated entities should not have to make such a "Hobson's" choice. Commissioner Spitzer stated further that "FERC and EPA need to be proactive to ensure that reliability concerns are considered and addressed in any analysis by the EPA of its environmental regulations affecting utilities." 15 Unfortunately, if not heeded by EPA, this advice may come too late to address the impacts of this rule.

As these studies and the recent comments by FERC point out, the stringency of these regulations, their lack of flexibility, and their rigid compliance schedules put electric reliability at risk. This is especially true at the regional level as the impacts will be disproportionately felt in this Nation's industrial heartland – an area of the country that can ill-afford further impediments to economic growth. EPA should heed the advice given by FERC and analyze the cumulative impact of both the proposed Utility MACT and other related regulations on the Nation's bulk power system and utilize the flexibility afforded under the Clean Air Act to ease the compliance schedule set out by the proposed rule.

c. Impact on Consumer Electricity Prices

In addition to threatening the reliability of our Nation's electric grid, EPA's inflexible compliance timeline will, especially when combined with other EPA regulations, increase the cost of electricity for consumers. In its May 2011 study, NERA Economic Consulting looked at the potential impact of Utility MACT and the interstate transport rule and projected that average U.S. retail electricity prices in 2016 would increase by about 12%, with regional increases as much as about 24%.16 As an example of the potential regional impact, the Illinois Power Agency recently estimated that by 2017 the energy portion of bills could jump 65 percent from today's rates.17 The reason? As articulated by the Director of the Illinois Power Agency, "[e]ach generator will have to decide for itself whether the investment required to meet environmental regulations can be justified based on its projection of market prices and the cost of its capital. In any case, those costs will be passed through to consumers."18

d. Impact on the Federal Budget Deficit

Small businesses, households, industry, schools and hospitals are not the only entities that are adversely affected when the cost of electricity goes up. Indeed, the U.S. federal government itself is a major consumer of electric power and, for that matter, an operators of electric generating units potentially subject to the rule. Recently, the EOP Foundation released a study19 that found that taking into consideration only federal budget costs for electricity purchases, the rule can be expected to increase federal outlays by a minimum of $286 million annually, with more conservative assumptions placing the annual figure above $300 million. Of course, these are direct costs alone – the embedded energy costs associated with goods and services purchased by the federal government are not included nor are potential compliance costs for federal EGUs – meaning that the actual impact on the deficit would be considerably higher. Of course, states and municipalities likewise purchase power, energy-dependent goods and services, and operate EGUs, meaning that their increasingly strapped budgets will be impacted as well.

Nowhere in the Agency's regulatory impact analysis are the effects on federal, state or municipal budget outlays taken into account. However, as the President told the nation on July 25, 2011, control over budgetary outlays reflects a "debate that directly affects the lives of all Americans."20 For her part, Administrator Jackson stated she has "heeded the President's call for deficit reduction"21 as a major policy initiative of the Agency. In light of these commitments, EPA must take budgetary outlays into account in its regulatory impact analysis and must subject the analysis of these outlays to rigorous interagency review.

e. Negative Public Health Impacts of the Proposed Rule

It is tempting to look at cost factors as solely affecting large power companies and ignore the potential impact on public health. The rule is likely to adversely affect public health in three ways: by increasing the cost of medical care and treatment; by imposing real threats on human health by suppressing economic growth and the improved health it brings; and by focusing on expensive rulemakings with little incremental benefits when those resources, if more sensibly deployed could save many times more lives.

With respect to treatment costs, it is important to note that U.S. hospitals spend $8.5 billion annually on energy, often equaling between one and three percent of a hospital's operating budget.22 Additionally, EPA estimates, in the U.S., the health sector is the second most energy-intensive commercial sector resulting in more than $600 million per year in direct health costs and over $5 billion in indirect costs.23 The average cost of power per square foot for hospitals is approximately $2.84.24 Under the EPA's proposed rule, energy costs are estimated to increase 23.5% over the next decade. Hospital administrators will have no choice but to pay attention to the cost of energy as these surging energy costs will squeeze hospital budgets like never before. Without adequate power supply, built upon a foundation of stable and cost-effective coal-fired generation, the healthcare sector and the American public can expect rapidly increasing costs that consumers can ill-afford.

The economic impacts cited earlier will also directly impact public health. Placing unnecessary economic constraints on the U.S. economy, in a time of recession, is unwise and detrimental to sound public health policy as, based on decades of research, continuously-employed individuals experienced, on average, an additional life expectancy of four to five years.25 Comparably, the direct effect of reducing unemployment has been estimated to prevent up to 2,500 premature deaths a year.26 In contrast, additional unemployment may significantly harm public health. A report to Congress' Joint Economic Committee by Dr. Harvey Brenner showed the impacts of unemployment on public health. Brenner found that a one percent increase in the unemployment rate was associated with a two percent increase in premature deaths.27 In 2004, Brenner used his econometric models to estimate the public health results from reducing coal-generated electricity. For example, with a substantial reduction in coal-fired power, Brenner found the result would be between 170,000 and 300,000 premature deaths.28

Placing EPA regulations in a broader public health perspective, it is clear that the proposed Utility MACT standard is not among the wisest of societal investments in addressing premature mortality. President Obama himself has recognized the need to keep cost-effectiveness in mind when he ordered EPA to protect public health and the environment "while promoting economic growth, innovation, competitiveness, and job creation."29 Failure to allocate resources based on cost-effectiveness quite literally costs lives. Experts at the Harvard School for Public Health have estimated that expensive environmental rules literally save 100 times fewer lives than when the federal government redeployed those assets addressing higher risks.30 This tremendous differential in health impacts explains why EPA should not be so cavalier in its benefits analysis.

It is well established that additional costs placed upon the healthcare and economic sectors of our country may actually damage public health and raise premature death rates. Given the extremely high cost of the Utility MACT proposal – perhaps the most expensive in the Agency's history – we recommend that the EPA take into account the direct and indirect costs associated with the proposed rule and withdraw the rule until we can be assured of its positive contribution to public health.

IV. EPA'S JUSTIFICATION FOR UTILITY MACT IS PREMISED ON BENEFITS ALMOST ENTIRELY GENERATED FROM PM 2.5 REDUCTIONS – RESULTING IN INAPPROPRIATE DOUBLE COUNTING

EPA has gone to great lengths to argue that the benefits of this rule will exceed the large costs described above. Under the requirements of two Executive Orders on regulatory process, EPA prepared a cost-benefit analysis that it claims demonstrates net savings attributable to the Agency's benefits analysis.

The Agency's sole basis for issuing this proposal is a regulatory determination that then-EPA Administrator Carol Browner made in December 2000 that it was "appropriate and necessary" to regulate certain HAPs from power plants This determination was based almost entirely on the Administrator's concern about mercury emissions from coal-fired power plants. Not surprisingly, the majority of the proposed rule deals with mercury reduction requirements for coal-fired power plants.

It stands to reason that the vast majority of benefits claimed by EPA to justify the proposed rule must be the result of reductions in mercury emissions. But the Agency's cost-benefitanalysis tells a very different story. According to EPA, the benefits to society of the mercury-reduction requirements are in the range of $500,000 to a maximum of $6.1 million in total (i.e. not even annual) benefits.31 In other words, in a rule estimated by EPA to cost $11 billion annually, the maximum total benefit of reducing emissions of mercury – the emissions of which serve as the primary basis for the rule – is $6.1 million.

EPA asserts, however, that its proposal is justified based on cost-benefit analysis because the rule will provide benefits of up to $130 billion ever year.32 Yet virtually all of the benefits come from reducing PM2.5.

Although mercury is the Agency's legal justification for the Utility MACT, EPA argues that it must also regulate non-mercury HAPs such as certain metals (e.g. nickel, selenium, etc.) emitted in trace amounts and acid gases (e.g. hydrogen chloride and hydrogen fluoride) that, according to EPA, do not pose a meaningful risk to public health. While some health risks from emissions of non-mercury HAPs are discussed in the proposed rule and the RIA (presumably implying health benefits from reducing such emissions), EPA does not make any attempt to evaluate the benefits that will be achieved by reducing these emissions. What is discussed at some length is that control technologies for non-mercury HAPs included in the proposed MACT standard result in reductions of emissions of PM2.5 and SO2. In fact, EPA's analysis admits that virtually all (i.e. 99+ percent) of the estimated $53 to $140 billion in annual benefits are due to reductions in PM 2.5.33

Nowhere does EPA explain whether there is a less costly way to achieve these benefits, which is puzzling because Congress has created a whole separate program to regulate PM2.5 – and it is very different from the MACT approach that EPA is now proposing. Although EPA is aggressively implementing the program that Congress created to regulate PM2.5, this program is much more flexible than the MACT program and would be a much more cost-effective way of regulating PM2.5 from power plants.

Why should this matter to the public? Because EPA is mandated to find the most cost-effective solution for the regulatory priority (here: controlling mercury emissions from power plants) How can the Agency possibly conclude that it is a good deal for society to impose an annual cost of $10.9 billion to achieve benefits of $6.1 million?

The other reason this type of analysis matters is that EPA has already controlled emissions of PM2.5 by setting a national ambient air quality standard ("NAAQS") under section 108 of the Clean Air Act.34 In doing so, EPA has set a level of PM2.5 that it has found to be sufficient to public health and welfare with an adequate margin of safety. Areas of the country that have already attained this level of PM2.5 (i.e., that are in "attainment") are presumably therefore already safe from any health risks; Other areas that have not yet reached this level (i.e. are in "non-attainment") are already required to implement market-wide reductions in PM2.5 to get into attainment.

In explaining how it developed the baseline for its benefits analysis, EPA's RIA states that "EPA did not consider actions states may take in the future to implement the existing ozone and PM2.5 NAAQS standards[.]"35 Of course, as it did for the Utility MACT, EPA's proposed NAAQS for PM2.5 contained an estimated analysis of the benefits of PM2.5 reductions.36 By not including these benefits in the baseline of the Utility MACT, EPA is essentially claiming these same benefits a second time to justify another regulation. Put a different way, the only way EPA can possibly claim more benefits from reductions in PM2.5 is to go beyond the controls it has already put in place under the PM2.5 NAAQS. Doing so, however, is completely contrary to Congress' intent to regulate PM2.5 under a different section of the Clean Air Act and contrary to EPA's own claims that the PM2.5 NAAQS is sufficient to protect public health and welfare.

CONCLUSION

The ERCC is pleased to offer these comments. We do not dispute the obligation of EPA to develop and implement sensible, effective regulations. Indeed, we have many times offered to work closely with the Agency on effectively discharging that obligation. However, the current rule is based upon a hurried administrative process that may result in a final work product less able to pass judicial muster. Further, the constrained compliance deadlines in the rule are unnecessary and likely to maximize costs, increase unemployment, suppress economic growth, undermine reliability and security, and increase the federal budget deficit. Due to doublecounting of benefits, the incremental health benefits of the rule are slight – and public health disbenefits to the rule are much greater and unaccounted for in EPA analyses. We respectfully ask the Agency to continue a robust analytical process that includes real interagency dialogue and we request more realistic timetables that reflect facts on the ground related to true cost and benefit.

Sincerely,

Scott H. Segal, Director
Electric Reliability Coordinating Council


1 This rule is generally referred to as the "Utility MACT" as it was proposed pursuant to section 112 of the Act which requires EPA to develop standards based on the "maximum achievable control technology" (MACT) that can be used to control HAP emissions from different types of industrial facilities.

2 E.O. 13653, 76 Fed. Reg. 3821, published Jan. 21, 2011.

3 U.S. Environmental Protection Agency, “Regulatory Impact Analysis of the Proposed Toxics Rule: Final Report,” March 2011 at 1-1.

4 See U.S. Environmental Protection Agency, National Emission Standards for Hazardous Air Pollutants from Coal- and Oil-Fired Electric Utility Steam Generating Units and Standards of Performance for Fossil-Fuel-Fired Electric Utility, Industrial-Commercial-Institutional, and Small Industrial-Commercial-Institutional Steam Generating Units, 76 Fed. Reg. 24976, 24986 (May 2, 2011).

5 One widely reported error – since acknowledged by EPA – resulted in the unit chosen by EPA as a single best performing mercury source being listed as having emission levels that were off by a factor of 1000.

6 This precedent was cited with favor by EPA in its recent continuance motion filed on Dec. 8, 2010, with respect to the ozone national ambient air quality standard. There, EPA cited the need for "additional time" when a proposed air rule "requires the deliberative evaluation of the extensive body of scientific and technical information and the many comments received" from the regulated community and through interagency review. At 1.

7 Sierra Club v. Thomas, 828 F.2d at 798-99 ("by decreasing the risk of later judicial invalidation and remand to the agency, additional time spent reviewing a rulemaking proposal before it is adopted may well ensure earlier, not later, implementation of any eventual regulatory scheme.").

8 E.O. 13653, 76 Fed. Reg. 3821, published Jan. 21, 2011.

9 U.S. Environmental Protection Agency, "Regulatory Impact Analysis of the Proposed Toxics Rule: Final Report," March 2011 at 1-1.

10 Proposed CATR + MACT, NERA Economic Consulting, May 2011.

11 The Economic Impact of Proposed EPA/Process Heater MACT Rule on Industrial, Commercial, and Institutional Boiler and Process Heater Operators, IHS Global Insight, August 2010.

12 U.S. Environmental Protection Agency, “Regulatory Impact Analysis of the Proposed Toxics Rule: Final Report,” March 2011 at 8-17.

13 Proposed CATR + MACT, NERA Economic Consulting, May 2011.

14 Letter from Chairman John Wellinghoff to Senator Lisa Murkowski (Aug. 1, 2011).

15 Letter from Commissioner Marc Spitz to Senator Lisa Murkowski (Aug. 1, 2011).

16 Proposed CATR + MACT, NERA Economic Consulting, May 2011.

17 Julie Wernau, Consumers’ Electric Bills Likely to Spike As Coal Plants Close, CHI. RIB., June 11, 2011, available at http://articles.chicagotribune.com/.

18 Id.

19 EOP Foundation, Inc., Utility MACT: Federal Budget Implications Ignored, Final Report, June 2011.

20 Address by the President to the Nation, available at http://www.whitehouse.gov/the-press-office/2011/07/25/address-president-nation.

21 Statement of Administrator Lisa P. Jackson before the Committee on Environment and Public Works, U.S. Senate, March 2, 2011, at 1.

22 United States Department of Energy, (2006) Energy Information Administration (EIA), Commercial Buildings Energy Consumption Survey (CBECS): Consumption and Expenditures Tables. “Table C3A". US Department of Energy.

23 The World Health Organization. Healthy Hospitals, Healthy Planet, Healthy People: Addressing Climate Change in Healthcare Settings. Washington, DC, 29.

24 Northwest Energy Efficiency Alliance, (2010), Energy in Heathcare [Fact Sheet].

25 Morris JK, Cook DG, Shaper AG. (1994), Loss of employment and mortality. BMJ;308:1135-9.

26 Dorling, D. (2009). Unemployment and health: Health benefits vary according to the method of reducing unemployment. BMJ, 338, b829.

27 United States. Cong. House. Joint Economic Committee, (1976), Estimating the Social Costs of National Economic Policy: Implications for Mental and Physical Health, and Criminal Aggression, By Harvey Brenner, 94th Cong., 2nd sess. H. Rept. 5th ed. Vol. 1., Washington, D.C.

28 Id.

29 E.O. 13653, 76 Fed. Reg. 3821, published Jan. 21, 2011.

30 Tengs, T.O., et al, (1995) Five Hundred Life-Saving Interventions and Their Cost Effectiveness, Risk Analysis 15, 3, 369-90.

31 U.S. Environmental Protection Agency, “Regulatory Impact Analysis of the Proposed Toxics Rule: Final Report,” March 2011 at 5-107.

32 Id. at 1-2

33 Id. at 1-1.

34 See National Ambient Air Quality Standards for Particulate Matter , 71 Fed. Reg. 61144 (Oct. 17, 2006).

35 U.S. Environmental Protection Agency, “Regulatory Impact Analysis of the Proposed Toxics Rule: Final Report,” March 2011 at 2-11.

36 See U.S. Environmental Protection Agency, “Regulatory Impact Analysis of the National Ambient Air Quality Standards October 2006, available at: http://www.epa.gov/ttn/ecas/ria.html.