Utility MACT

1. Utility MACT DRAFT – DELIBERATIVE DOCUMENT – DO NOT CITE OR QUOTE

2. Legal History • February 8, 2008 -- U.S. Court of Appeals for the District of Columbia Circuit vacated the Section 112(n) Revision Rule and CAMR • September 16, 2008 – UARG filed a petition for writ of certiorari with the U.S. Supreme Court • October 17, 2008 – U.S. Government filed a petition for writ of certiorari with the U.S. Supreme Court • December 18, 2008 – Mandatory duty suit filed by American Nurses Assn, et al. for failure to establish MACT standards for coal- and oil-fired electric generating units by December 20, 2002 • February 6, 2009 – U.S. Government asks U.S. Supreme Court to drop its petition for writ of certiorari • February 23, 2009 – U.S. Supreme Court denies UARG petition for writ of certiorari and accepts U.S. Government’s request to drop its petition

3. Section 112 – MACT Standards • EPA per the CAA lists hazardous air pollutants (HAP) • Currently there are 188 listed HAP • Must then list “all categories and subcategories of major sources and area sources” of listed HAP • Major sources emit greater than 10 tpy of any one pollutant or 25 tons of all listed pollutants in the aggregate • For major sources, EPA sets national emission standards for hazardous air pollutants (NESHAPS), also known as maximum achievable control technology (MACT) standards • MACT for existing sources must be at least as stringent as the average emission limitations achieved by the best performing 12 percent sources in that category • Called the “MACT floor” – can not consider costs • EPA may regulate “beyond the floor” where justified – can consider costs • Less stringent regulation of area sources possible • MACT for new sources must be based on the single best performing source

4. Constraints • Recent Court decisions (e.g., Brick, Boilers, Plywood) relating to achievability and how floors, subcategorization, pollutants covered, etc. are handled will need to be examined • Floors and variability • Strict adherence to language of section 112 • No going outside the top performing 12 percent unless EPA can show a demonstrated relationship between the variability of the worst performers and the variability of the best performers • Subcategorization • Authorized if consistent with section 112(d) and case law • Pollutants covered • All HAP need to be addressed • Surrogates allowed • Possible surrogate relationships • Mercury – no surrogate • PM – for non-mercury metallic HAP • SO2 or HCl – for acid gas HAP • VOC/CO/THC – for non-dioxin/furan organic HAP • S/Cl ratio – for dioxin/furan organic HAP

5. Available Data • Coal • Mercury data are now approaching 9+ years old • Likely to be more recent data from plant tests, mercury-specific State regulations, etc. • Have limited (approaching 15+ year old) data for other metals, HCl, dioxin, etc. • Likely to be additional data through Title V actions, compliance with State regulations, contractual obligations, etc. • Oil • Have very limited (approaching 15+ year old) data, primarily for metals • Less likely to be additional data through Title V actions, compliance with State regulations, etc. DRAFT – DELIBERATIVE DOCUMENT – DO NOT CITE OR QUOTE