Public Comment Submitted to the SAB Staff Office

By Electronic Mail and U.S. Mail Dr. Thomas Armitage Designated Federal Officer EPA Science Advisory Board (1400R) U.S. Environmental Protection Agency 1200 Pennsylvania Avenue, NW Washington, DC 20460 Email: [email protected] Re: Science Advisory Board (SAB) Consideration of the Scientific and Technical Basis of EPA’s Proposed Mercury and Air Toxics Standards for Power Plants Residual Risk and Technology Review and Cost Review Dear Mr. Armitage: The undersigned organizations respectfully submit this written statement concerning the Science Advisory Board’s (SAB’s) review of the Environmental Protection Agency’s (EPA’s) Proposed Rule entitled National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units—Reconsideration of Supplemental Finding and Risk and Technology Review, 84 Fed. Reg. 2670 (Feb. 7, 2019) (Proposal). INTRODUCTION The SAB has issued a Draft Report on its review of the Proposal. Although dated October 16, 2019, the Draft Report did not become publicly available until December 31, 2019, and the SAB has stated that written statements should be submitted by January 10, 2020. The abbreviated public comment period does not allow sufficient time for adequate in-depth review and detailed discussion of all of the topics raised in the Draft Report. Accordingly, in this letter, we offer general comments but point the SAB to more-extensive and detailed discussions in some of the comments that our groups and commenters have provided in response to EPA’s Proposal. See Comments of Environmental, Public Health, and Civil Rights Organizations (dated April 17, 2019) (Appendix A). We also attach for reference the rulemaking comments filed by Attorneys General of Massachusetts and 20 other states, and other governmental entities, which are also cited below.1 The SAB plans to accept oral testimony on the proposed rule and the Draft Report, together with three other major rulemaking reviews, for one hour during a single abbreviated session on January 17. 84 Fed. Reg. 72,356, 72,356 (Dec. 31, 2019). While the opportunity is 1 Comments of the Attorneys General of Massachusetts, California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia; the Maryland Department of the Environment; the City Solicitor of Baltimore; the Corporation Counsels of Chicago and New York City; the County Attorney of the County of Erie, NY; and the County Counsel for the County of Santa Clara, CA (April 17, 2019). EPA-HQ- OAR-2018-0794-1175 (Appendix B). 1 important, this plan unduly limits the opportunity for public input, particularly given the magnitude and complexity of the rules in question.2 The SAB’s statutory charge is to provide the EPA Administrator with “its advice and comments on the adequacy of the scientific and technical basis of the proposed … regulation, together with any pertinent information in the Board’s possession.” 42 U.S.C. § 4365(c)(2). The proposed EPA actions at issue here include a proposed “revised” finding under Clean Air Act section 112(n)(1)(A), 42 U.S.C. § 7412(n)(1)(A), that regulation of emissions of mercury and other hazardous air pollutants (“HAPs”) from coal- and oil-burning power plants is not “appropriate,” as well as a risk analysis for the Mercury and Air Toxics Standards (“MATS,” or “the Rule”) rule under section 112(f), 42 U.S.C. § 7412(f). These actions centrally turn on evaluation of scientific evidence, matters squarely within the SAB’s congressional charge to provide advice and comment on regulatory proposals’ “scientific and technical basis.” The validity of EPA’s Proposal turns in large part on quintessentially scientific questions, including assessments of health hazards from mercury emissions.3 As discussed below, and more extensively in the attached comments, the scientific and technical basis for EPA’s proposed actions is deeply flawed. While the SAB’s Draft Report identifies some of the key shortcomings, it does not identify all of the flaws and fully grapple with problems concerning EPA’s treatment of benefits and costs in this reconsideration of the supplemental finding as well as the agency’s approach to the risk and technology review. DISCUSSION MATS addresses the nation’s largest stationary sources of mercury and numerous other of the hazardous air pollutants Congress listed in Clean Air Act section 112, 42 U.S.C. § 7412(b)(1). When the rule was adopted, EPA projected that it would yield deep reductions in aggregate nationwide emissions of HAPs, 76 Fed. Reg. at 25,013-14, including a 49 percent reduction in all anthropogenic U.S. emissions of hydrochloric acid gas and a 38 percent reduction in non-mercury metal hazardous air pollutants such as arsenic, chromium, and nickel, id. at 25,013-15. EPA projected that MATS would reduce power plant mercury emissions by 75 percent, 77 Fed. Reg. at 9424, thereby eliminating over a third of total national anthropogenic mercury emissions. 76 Fed Reg. at 25,015. Experience under MATS has indeed demonstrated major benefits from the Rule’s implementation. Today, regulated power plants are in full compliance with the standards and 2 We continue to have grave concerns about this Administration’s removal of highly qualified experts from the SAB on grounds unrelated to scientific credentials and expertise. The unfortunate appearances those actions have created make it especially important for the Board to evaluate EPA’s proposed actions with neutrality, transparency, and scientific rigor. 3 See 42 U.S.C. § 7412(n)(1)(A) (decision whether regulation is “appropriate” to rest upon results of “a study of the hazards to public health reasonably anticipated to occur as a result of emissions by electric utility steam generating units of [hazardous air] pollutants”); id. § 7412(n)(1)(B) (requiring EPA to prepare a “study of mercury emissions from electric utility steam generating units,” including consideration of “the health and environmental effects of such emissions, technologies which are available to control such emissions, and the costs of such technologies”); id. § 7412(n)(1)(C) (mandating study by National Institute of Environmental Health Sciences of “the threshold level of mercury exposure below which adverse human health effects are not expected to occur”). 2 have achieved a 96 percent reduction in power-plant hazardous air pollution emissions, including an 86 percent reduction in power-plant mercury emissions.4 Although MATS has been in effect for many years and has contributed to massive reductions in emissions of mercury and many other air toxics, EPA now proposes to find regulation “not appropriate”—without performing any analysis of the health or environmental consequences of ceasing to regulate. EPA’s Proposal depends critically upon the proposition that the health benefits of controlling these emissions are very minor in relation to the compliance costs. But the analysis of those health benefits is not only obviously inadequate— but also contradicted by the record before the Agency. A. The SAB Must Fully Document How the Proposal’s Characterization of the Health and Environmental Benefits of Reducing Mercury and Other HAP Emissions from Power Plants Lacks a Sound Scientific and Technical Basis and Is Contradicted by the Evidence Before the Agency. EPA’s Proposal declares that regulation of mercury and other hazardous air pollutants from coal- and oil-fired power plants is not “appropriate” because “the costs of such regulation grossly outweigh the HAP benefits,” 84 Fed. Reg. at 2676. EPA’s assessment of those “HAP benefits” relies almost exclusively on parts of the 2011 Regulatory Impact Analysis (“RIA”) for MATS ascribing a figure of $4 to $6 million per year, as compared to MATS compliance costs that were (in 2011) forecast to be around $7.4 to $9.6 billion annually. 84 Fed. Reg. at 2676-77. EPA’s conclusion is not supported by the available evidence. As EPA repeatedly stated in promulgating MATS, the $4 to $6 million RIA figure failed to—indeed, was not even intended to—capture all benefits of mercury reduction or any benefits from reductions of other HAPs. 77 Fed. Reg. at 9428. To the contrary, it reflected “a small subset of the health and environmental benefits attributable to reducing mercury and none of the health and environmental benefits attributable to reductions in other [hazardous air pollutants],” 81 Fed. Reg. at 24,441, specifically lost earnings due to IQ loss from mercury exposure in children born to mothers in households with recreational freshwater anglers in a subset of U.S. watersheds. 77 Fed. Reg. at 9428; 84 Fed. Reg. at 2677. See also 80 Fed. Reg. at 75,025, 75,040 (Dec. 1, 2015). Among the mercury-specific benefits EPA acknowledged it did not monetize in 2011, are: (1) benefits from reducing adverse health effects on brain and nervous system development beyond IQ loss; (2) benefits from reducing mercury emissions for consumers of commercial (store-bought) fish (i.e., the largest pathway to mercury exposure in the U.S.); (3) benefits from reducing mercury emissions for consumers of self-caught fish from oceans, estuaries or large lakes such as the Great Lakes; (4) benefits for the populations most affected by mercury emissions (e.g., children of women who consume subsistence-level amounts of fish during pregnancy); (5) benefits from reducing mercury emissions for children who otherwise would be exposed to mercury after birth; and (6) environmental benefits from reducing adverse effects on birds and mammals that consume fish. See 81 Fed. Reg. at 24,441. As EPA stated, because key 4 84 Fed. Reg. at 2689, tbl.4; see also Barbara Morin and Paul J. Miller, It Remains “Appropriate and Necessary” to Regulation Toxic Air Emissions from Coal- and Oil-Fired Electric Generating Units (Northeast States For Coordinated Air Use Management April 17, 2019) (Attachment B to State Comments).

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