Emergency Application — North Dakota, et al., Applicants v. Environmental Protection Agency, et al.

Supreme Court briefAug 16, 2024

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USCA Case #24-1119

Document #2058570

Filed: 06/07/2024

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IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

STATE OF NORTH DAKOTA, STATE

OF WEST VIRGINIA, STATE OF

ALASKA, STATE OF ARKANSAS,

STATE OF GEORGIA, STATE OF

IDAHO, STATE OF INDIANA, STATE

OF IOWA, STATE OF KANSAS,

COMMONWEALTH OF KENTUCKY,

STATE OF LOUISIANA, STATE OF

MISSISSIPPI, STATE OF MISSOURI,

STATE OF MONTANA, STATE OF

NEBRASKA, STATE OF OKLAHOMA,

STATE OF SOUTH CAROLINA,

STATE OF SOUTH DAKOTA, STATE

OF TENNESSEE, STATE OF TEXAS,

STATE OF UTAH, COMMONWEALTH

OF VIRGINIA, AND STATE OF

WYOMING,

Case No. 24-1119

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

DECLARATION OF CLAIRE VIGESAA

IN SUPPORT OF PETITIONERS’ MOTION TO STAY FINAL RULE

I, Claire Vigesaa, hereby declare and state under penalty of perjury that the following is

true and correct to the best of my knowledge and is based on my personal knowledge or

information available to me in the performance of my official duties:

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My name is Claire Vigesaa, and my business address is 600 East Boulevard Ave Dept 405

Bismarck, ND 58505-0840. I am over the age of 18, have personal knowledge of the subject

matter, and am competent to testify concerning the matters in this declaration.

2.

I have served as Executive Director of the North Dakota Transmission Authority (NDTA)

since July 2023. I have a Bachelor of Science degree in engineering from North Dakota

State University and held leadership roles in the electric utility industry for 39.5 years, my

last 10 years as General Manager/CEO of an electric transmission cooperative utility. As

Executive Director of the NDTA, my responsibilities include working with the North

Dakota Industrial Commission (NDIC) to facilitate the development and maintenance of

electric transmission infrastructure in North Dakota and coordinating with regional

transmission organizations to provide for a reliable and resilient electrical grid.

3.

The NDTA was created by the North Dakota legislature in 2005. The NDTA was

established to serve as a catalyst for new investment in transmission by facilitating,

financing, developing, or acquiring transmission to accommodate energy production.

NDTA is actively engaged in seeking ways to improve North Dakota’s energy export and

transmission capabilities within the state. NDTA is also involved with planning and

studying grid reliability, resilience, and congestion issues. To that end, NDTA has funded

several studies that examine the likely impacts of EPA’s proposed air quality regulations

on electric grid reliability and resilience in North Dakota and surrounding regions.

4.

I am submitting this declaration in support of Petitioners’ Motion to Stay the Final Rule

published by the U.S. Environmental Protection Agency (EPA) on May 7, 2024, entitled

“National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric

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Utility Steam Generating Units Review of the Residual Risk and Technology Review,” 89

Fed. Reg. 38508 (Final Rule).

5.

As Director of the NDTA, I have significant concerns that the Final Rule will

fundamentally undermine the reliability and resiliency of the electric grids upon which the

State of North Dakota and its people rely.

North Dakota’s Power Generation Environment

6.

North Dakota has a diverse portfolio of power generation resources, including wind, coal,

hydroelectric, and natural gas. The combined total capacity of all types of utility-scale

generation in North Dakota is approximately 8,863 MW, and almost half of that (4,048

MW) comes from 10 coal-firing power plants operating within the State.

7.

Over thirty percent of the electricity generated in North Dakota is exported out of the State

through the two Regional Transmission Organizations that service the State and

surrounding regions—the Midcontinent Independent System Operator (MISO) and the

Southwest Power Protocol (SPP).

8.

Studies commissioned by the NDTA project a 10,000 GWhr increase in energy demand in

North Dakota over the next two decades, requiring approximately 2200 to 2500 MW of

additional capacity to meet the anticipated growth in demand.

9.

The projected growth in renewable resources over the next two decades will not be enough

to meet the projected demand in growth, especially if existing dispatchable fossil

generation is forced into early retirement by this Final Rule or other federal rules.

10.

Dispatchable energy is energy that is available on demand. Energy sources such as wind

and solar are considered non-dispatchable. When demand for electricity exceeds the

dispatchable supply, the foreseeable result will be blackouts or energy rationing.

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The Final Rule Threatens an Already Vulnerable Power Grid

11.

The power grids providing electricity to North Dakota (and much of the country) are

already stretched dangerously thin, and they do not have the resiliency or the buffer of

excess dispatchable generation that they had ten or even five years ago.

12.

Prior to 2016, MISO had no instances requiring the use of emergency procedures, but since

then, there have been 48 Maximum Generation events. 1 Maximum Generation events are

a multi-tiered process to respond to generation resource shortages. A graphic from MISO

shows this tiered process. 2

1

North Dakota Industrial Commission and North Dakota Transmission Authority, “Analysis of Proposed EPA MATS

Residual Risk and Technology Review and Potential Effects on Grid Reliability in North Dakota,” at 9 (Apr. 2, 2024)

(MATS

Study),

available

at

https://www.ndic.nd.gov/sites/www/files/documents/TransmissionAuthority/Publications/MATS_Analysis_Report.pdf.

2

Midcontinent Independent System Operator, “Overview of June 10, 2021 Maximum Generation Event,” (July 8,

2021) available at https://cdn.misoenergy.org/20210708%20MSC%20Item%2006%20Review%20of%20Max%20

Gen%20Event%20-%20June%2010567565.pdf

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Since 2022, MISO has been operating near the level of minimum reserve margin

requirements. 3 This means that there is little to no excess capacity in the grid.

14.

In 2023, both the MISO and SPP grid operators issued warnings about the adequacy of

generation resources to meet peak demand situations. 4

15.

National organizations charged with monitoring the nation’s regional power grids are

reporting the same thing. The North American Electric Reliability Corporation (NERC)’s

2023 Long-Term Reliability Assessment, identified MISO as one of the two regions in the

country most at risk of capacity shortfalls due to the retirement of thermal resources with

inadequate reliable generation coming online to replace them. 5

16.

As soon as 2028, the MISO grid is projected to have capacity shortfalls even during normal

weather. And much of the rest of the country is projected to have capacity shortfalls during

severe weather events, when it is needed the most (and when renewable energy is at its

least reliable). These are not historically normal projections and are a significant source of

concern. And that is without this Final Rule and other federal rules forcing even more

reliable, dispatchable, fossil fuel generation sources to retire.

17.

A graphic from NERC’s 2023 Long-Term Reliability Assessment illustrates the gravity of

current projections for our national power grids. 6 Areas in red are not projected to have

sufficient capacity during normal weather events. As described above, MISO, which

3

Midcontinent Independent System Operator, “MISO’S Response to the Reliability Imperative,” at 6 (Feb. 2024),

available at https://cdn.misoenergy.org/2024%20Reliability%20Imperative%20report%20Feb.%2021%20Final

504018.pdf?v=20240221104216.

4

MATS Study at 9.

5

North American Electric Reliability Corporation, “2023 Long-Term Reliability Assessment,” (Dec. 2023),

https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments%20DL/NERC_LTRA_2023.pdf.

6

North American Electric Reliability Corporation, “2023 Long-Term Reliability Assessment,” Dec. 2023, available

at https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments%20DL/NERC_LTRA_2023.pdf.

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includes much of North Dakota, is in red. Areas in orange are not projected to have

sufficient capacity in severe weather events.

18.

On February 26, 2024, MISO released “MISO’s Response to the Reliability Imperative,”

a report that addresses the disturbing outlook for electric reliability in its footprint. The

main reasons for this warning are the pace of premature retirements of dispatchable fossil

generation and the resulting loss of accredited capacity and reliable energy production

sources. 7 In that report, MISO states that “[w]idespread retirements of dispatchable

resources, lower reserve margins, more frequent and severe weather events and increased

reliance on weather-dependent renewables and emergency-only resources have altered the

7

Midcontinent Independent System Operator, “MISO’S Response to the Reliability Imperative” (Feb. 2024), https:

//cdn.misoenergy.org/2024%20Reliability%20Imperative%20report%20Feb.%2021%20Final504018.pdf?v=202402

21104216.

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region’s historic risk profile, creating risks in non-summer months that rarely posed

challenges in the past.”

19.

That February 2024 Report from MISO contains a section titled, “EPA Regulations Could

Accelerate Retirements of Dispatchable Resources,” which states:

While MISO is fuel- and technology-neutral, MISO does have a

responsibility to inform state and federal regulations that could

jeopardize electric reliability. In the view of MISO, several other

grid operators, and numerous utilities and states, the U.S.

Environmental Protection Agency (EPA) has issued a number of

regulations that could threaten reliability in the MISO region and

beyond.

20.

If the Final Rule forces even more coal generation sources to shut down, there can be little

doubt that it will significantly impact grid reliability and the provision of reliable electricity

to the people of North Dakota and surrounding regions.

21.

Even if the Final Rule does not cause plants do not shut down, implementation of the Rule’s

low emissions standards will necessitate operational modifications within lignite power

plants. Such operational changes can compromise the inherent flexibility of lignite power

plants to respond effectively to fluctuating load conditions and grid demands. The need

for continuous operation of emission control systems, coupled with potential limitations in

responsiveness, may impede the plant’s ability to ramp up or down quickly in response to

changes in electricity demand or supply. Consequently, the reliability of lignite power

plants to maintain grid stability and meet grid operator requirements may be compromised,

raising concerns about their ability to ensure consistent and secure electricity supply.

Potential Impact of the MATS Rule to the MISO Grid and North Dakota

22.

Due to its very serious concerns about the impact the MATS Rule will have on power grid

reliability for the people of North Dakota, NDTA engaged the Center of the American

Experiment to model the reliability and cost impacts of the Rule in the MISO subregions

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as it relates to eliminating the subcategory for lignite-fired power plants. That report is

available at: https://www.ndic.nd.gov/sites/www/files/documents/Transmission-Authority

/Publications/MATS_Analysis_Report.pdf (“NDTA MATS Study”).

23.

The NDTA MATS Study applied EPA’s own capacity factor assumptions to the projected

future demand growth for electricity in the MISO region, but also accounted for seasonality

and timing of generation and demand based on historical use in the MISO region. See

NDTA MATS Study at 49-50, 58-59.

24.

After applying EPA’s own capacity factor assumptions to projected future demand, and

accounting for seasonality and timing of generation and demand, the NDTA MATS Study

concluded that if lignite-fired facilities in North Dakota that serve the MISO market are

forced to retire in the near future as a result of the Rule (or otherwise), it will increase the

severity of future projected capacity shortfalls in the MISO region, resulting in economic

damages from the ensuing blackouts ranging from $29 million to $1.05 billion over the

next decade, and imposing replacement generation costs that will be passed onto ratepayers

of approximately $1.9 billion to $3.8 billion. See NDTA MATS Study at 1, 31-32, 48.

25.

Moreover, NDTA’s MATS Study notes that in exchange for those projected capacity

shortfalls in the MISO Region, the Final Rule will not provide any meaningful or

quantifiable benefit to public health or the environment from the reductions in mercury and

other air toxins that are mandated by the Rule. EPA acknowledges those levels of emission

are already well below any level that would meaningfully affect public health. Indeed, as

the Study notes, there is substantially more mercury emitted annually from the cremation

of people with dental fillings than is emitted from all coal-fired power plants in the U.S.

combined. EPA’s decision to risk the reliability of our nation’s power grids by imposing

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a Final Rule that will not provide any meaningful public health benefit should be a cause

for concern. See NDTA MATS Study at 16-18.

26.

In summary, the long-term reliability of the power grids serving North Dakota and the

surrounding regions are already in a precarious position, with demand projected to exceed

supply for significant amounts of time, even under normal weather conditions. And the

reason is not a mystery. Reliable, dispatchable generation sources are being pushed into

premature retirement before replacement sources are projected to be online with sufficient

capacity to meet demand projections. A reliable power grid is important for meeting the

basic needs of modern society, therefore alarm bells should be going off. Grid reliability

is vital for ensuring continuous access to essential services, such as food production and

military operations. Dispatchable, reliable generation forms the backbone of grid stability,

enabling the balancing of supply and demand fluctuations. Now is not the time to be

forcing even more dispatchable sources onto retirement tracks for a Final Rule that will not

even create any meaningful or quantifiable public health benefit.

Executed in Bismarck, North Dakota, on May 25, 2024.

Claire Vigesaa

Executive Director

North Dakota Transmission Authority

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IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

STATE OF NORTH DAKOTA, STATE

OF WEST VIRGINIA, STATE OF

ALASKA, STATE OF ARKANSAS,

STATE OF GEORGIA, STATE OF

IDAHO, STATE OF INDIANA, STATE

OF IOWA, STATE OF KANSAS,

COMMONWEALTH OF KENTUCKY,

STATE OF LOUISIANA, STATE OF

MISSISSIPPI, STATE OF MISSOURI,

STATE OF MONTANA, STATE OF

NEBRASKA, STATE OF OKLAHOMA,

STATE OF SOUTH CAROLINA,

STATE OF SOUTH DAKOTA, STATE

OF TENNESSEE, STATE OF TEXAS,

STATE OF UTAH, COMMONWEALTH

OF VIRGINIA, AND STATE OF

WYOMING,

Case No. 24-1119

Petitioners,

v.

U.S. ENVIRONMENTAL PROTECTION

AGENCY,

Respondent.

DECLARATION OF DOYLE WEBB

IN SUPPORT OF PETITIONERS’ MOTION TO STAY FINAL RULE

I, Doyle Webb, hereby declare pursuant to 28 U.S.C. § 1746 and state under penalty of

perjury that the following is true and correct to the best of my knowledge and is based on my

personal knowledge or information available to me in the performance of my official duties:

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I am the Chairman of the Arkansas State Public Service Commission (Commission

or PSC). I have held this position since January 17, 2023. I am over the age of 18 and am

competent to testify concerning the matters in this declaration based on my personal knowledge,

my experience with the PSC, and information provided to me by PSC personnel.

2.

The PSC is responsible for regulating the service and rates of utilities, including

electric and gas utilities serving retail customers in Arkansas. As Chairman of the PSC, I am

charged with the responsibility for appraising and balancing the interests of current and future

utility service customers, the general interests of the State economy and the interests of the utilities

subject to Commission jurisdiction in its deliberations and decisions. The Commission actively

participates in the governance of two Regional Transmission Organizations: the Midcontinent

Independent System Operator (MISO), through the Organization of MISO States, and Southwest

Power Pool (SPP), through the Regional State Committee.

3.

I am submitting this declaration in support of Petitioners’ Motion to Stay the Final

Rule, published by the U.S. Environmental Protection Agency (EPA) on May 7, 2024, entitled

“National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility

Steam Generating Units Review of the Residual Risk and Technology Review,” 89 Fed. Reg.

38508 (Final Rule).

4.

I am aware that the EPA published the Final Rule following EPA’s proposed Rule

issued on April 24, 2023. See 89 Fed. Reg. 24854.

5.

The Final Rule will negatively impact Arkansas, its ratepayers, and its utilities that

own and operate generation facilities.

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The Final Rule will make electricity less reliable in Arkansas and throughout the

grid by forcing the retirement of base load resources, only serving to exacerbate the threat of

brownouts and blackouts, as well as long-term negative cost impacts.

7.

The Federal Energy Regulatory Commission, the North American Electric

Reliability Corporation (NERC), and entities charged with overseeing the reliability of our power

grids have warned about the long-term reliability of our nation’s power grids. NERC recently

stated that the bulk power system has reached an “inflection point” in which the risk profile to

customers is steadily deteriorating due to the retirement of valuable generation resources outpacing

the addition of new dispatchable generation. 1

8.

In its 2023 Long Term Reliability Assessment, NERC identified that the SPP region

will be at an “elevated risk” of shortfall in extreme conditions.

9.

NERC has also identified risk in MISO, projecting a “high risk” level indicating

insufficient resource adequacy for the majority of Arkansas. 2 This indicates that the electricity

supply for these areas is more likely to be insufficient in the forecast period and more firm

resources are needed. While MISO has seen an upward trend in installed capacity, accredited

capacity to meet system needs is moving in the opposite direction. MISO’s recent accreditation

reforms around direct loss of load indicate that this trend is likely to worsen. 3

10.

MISO released the following statement:

1

The Reliability and Resiliency of Electric Service in the United States in Light of

Recent Reliability Assessments and Alerts: Hearing Before the Committee on Energy and

Natural Resources (June 1, 2023) (Statement of James B. Robb, North American Electric

Reliability Corporation).

2

Id.

3

Midcontinent Independent System Operator (MISO), Managing Reliability Risk in the

MISO Footprint (June 16, 2022), available at https://cdn.misoenergy.org/20220616%20

Board%20of%20Directors%20Item%2008a%20Reliability%20Imperative625168.pdf.

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There are urgent and complex challenges to electric system

reliability in the MISO region and elsewhere. This is not just

MISO’s view; it is a well-documented conclusion throughout the

electric industry. …

Many dispatchable resources that provide critical reliability

attributes are retiring prematurely due to environmental regulations

and clean-energy policies. …

The new weather-dependent resources that are being built, such as

wind and solar, do not provide the same critical reliability attributes

as the conventional dispatchable coal and natural gas resources that

are being retired. While emerging technologies such as long

duration battery storage, small modular reactors and hydrogen

systems may someday offer solutions to this issue, they are not yet

viable at grid scale 4

11.

In summary, the Final Rule will likely have lasting negative impacts. Unless a stay

is immediately granted, the Final Rule will impose significant and irreparable harm on Arkansas

and its citizens.

I declare under penalty of perjury that the foregoing is true and correct to the best of my

knowledge. Executed in Little Rock, Arkansas, on May 22, 2024.

Doyle Webb

Chairman

Arkansas Public Service Commission

4

Midcontinent Independent System Operator, “MISO’s Response to the Reliability

Imperative,” at 2 (Feb. 2024), available at https://cdn.misoenergy.org/2024%20Reliability%20

Imperative%20report%20Feb.%2021%20Final504018.pdf?v=20240221104216.

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DECLARATION OF JASON BOHRER

I, Jason Bohrer, declare as follows:

1.

I am over eighteen years of age, suffer from no disability that would

preclude me from giving this declaration, and make this declaration based upon

personal knowledge or information available to me in the performance of my

professional duties.

2.

I am President and Chief Executive Officer of the Lignite Energy

Council (LEC).

3.

I have been employed by the LEC for 11 years and held my current title

for that entire time. My responsibilities include directing and coordinating the policy

work and research and development priorities of the LEC.

4.

The LEC is a trade association that represents various lignite mines,

lignite-fired power plants and conversion facilities, as well as the businesses that

contribute goods and services to the industry. Its members produce electricity and

also gasify lignite coal, which is then turned into synthetic natural gas and other

valuable byproducts.

5.

LEC members provide electricity to two Regional Transmission

Organizations: the Midcontinent Independent Systems Operator and the Southwest

Power Pool.

6.

I am providing this declaration in support of the motion to stay the rule

promulgated by the U.S. Environmental Protection Agency (“EPA”) entitled National

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Emission Standards for Hazardous Air Pollutants: Coal-and Oil-Fired Electric Utility

Steam Generating Units Review of the Residual Risk and Technology Review, 89 Fed.

Reg. 38,508 (May 7, 2024) (“MATS RTR”).

7.

The MATS RTR threatens the viability of North Dakota’s lignite-fired

power plants and coal mines. The MATS RTR also endangers the reliability and

resilience of the power grids in North Dakota and the surrounding regions.

8.

LEC members have extensive experience in operating electric

generating units (EGUs) powered by lignite coal while using a variety of emission

control technologies.

9.

North Dakota contains the world’s largest deposit of lignite coal.

Lignite coal is a geologically young form of coal and lacks the homogeneity found

in older types of coal.

10.

In North Dakota, lignite coal is mined adjacent to the EGUs and

conversion facilities where it is used in a “mine-to-mouth” operation. Each EGU

contracts with an individual lignite mine for its supply of lignite, and these EGUs

have been geographically sited based on the availability of lignite coal. Neither

market economics nor coal transportation logistics allow for fuel switching or coal

blending. Should an associated lignite EGU close, the mine providing coal for it

would have no reasonable or viable market alternative.

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The total number of EGU employees in North Dakota is 7,725, and the

total number of mining jobs is 3,250. This ratio suggests that for each employee at a

mine there are two employees at a power plant.

12.

Emission control solutions are not interchangeable and are crafted on

an EGU-by-EGU basis due to the differences in coal composition, power plant

technology and operational needs at each facility.

13.

Particularly for lignite-firing EGUs, the variability in chemical

composition of lignite coal, along with mine-to-mouth operations, requires that

EGUs maintain an emission control compliance margin that accounts for variability

in coal composition and required operational conditions.

14.

The lignite subcategory created by the EPA in the 2012 MATS rule

reflected the reality that the chemical makeup and characteristics of lignite not only

cause different emissions profiles than bituminous or sub-bituminous coals, but also

reflect the lower homogeneity of lignite coal compared to other types of coal.

15.

The lignite subcategory therefore reflected basic chemical truths, such

as the mechanism by which the higher sulfur content of lignite reduces the

effectiveness of sorbent mercury reduction solutions and the interplay between the

formation of SO3 and potential mercury reduction technologies.

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LEC is not currently aware of any verified or demonstrated technology

that will consistently allow all of North Dakota’s lignite-firing EGUs to comply with

the MATS RTR’s newly lowered Hg requirement of 1.2 lb/TBtu.

17.

Illustrating that point, testing performed by LEC member Minnkota

Power Cooperative verified that the increased utilization of sorbents, even at

significantly elevated levels, would not result in consistent compliance with the

newly reduced Hg limit.

The new limit will cause immediate and irreparable harm to LEC Members.

18.

LEC’s members are actively trying to determine if they will be able to

comply with the MATS RTR’s reduced emission requirements and still remain

commercially viable. Testing alone to accurately quantify the requirements specific

to each unique EGU is estimated at more than $1,000,000.00 per unit.

19.

Even if such further testing indicated the new emission limitations

could be met (and it is not currently clear that they could be), the construction costs

necessary to update or replace existing technologies and optimize operation would

be expensive and time consuming.

20.

New expenses would be added to those one-time construction

expenditures (estimated at a minimum of $5,000,000.00 by Minnkota Power

Cooperative for a single facility to between $55,000,000 and $500,000,000 for Basin

Electric Cooperatives’ generating fleet) by requiring additional sorbents or other

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control materials. These new expenses would continue in perpetuity along with

increased operating costs.

21.

Each EGU in North Dakota is unique, but they share in the difficulty of

establishing the feasibility of a path to compliance, and, if one is achievable, the

expenses incurred in implementation, as well as the continual ongoing costs. For

example, a baghouse is estimated to cost $282,715 per fPM ton removed while an

ESP retrofit is estimated at $67,262 per fPM ton removed. Operators will be forced

to pass along those costs to ratepayers or other end users to continue to operate.

22.

Moreover, should feasibility testing indicate compliance is possible, the

substantial modifications required by the MATS RTR would need to be

implemented immediately.

23.

For example, electrostatic precipitator upgrades carry a three-year

timeline from start of construction to implementation. For the EPA’s assessment to

be accurate that no facilities will close due to the MATS RTR, at least 26 impacted

EGUs in the country would be competing for the 4 vendors capable of performing

the work. And based on historical performance, it is unlikely the four contractors

could perform the work needed for all 26 plants in that 3-year period.

24.

The alternative to compliance is to shut down or operate at such a

reduced level that end of life will occur prematurely for the EGU. For every two jobs

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lost at a power plant due to premature shut down, a worker in a lignite mine who

will also lose their job.

The MATS RTR Rule will harm North Dakotans

25.

The elimination of the lignite subcategory will impact North Dakota

and North Dakotans in multiple ways. Lignite provides most of the electricity

consumed in North Dakota, and it provides the backbone of reliability and resilience.

26.

Should testing indicate compliance with the MATS RTR’s new

emission limits is possible for every EGU in North Dakota, the implementation of

new control technologies at each EGU would require multiple EGUs be taken offline

for extended periods of time, concentrating the danger of an unstable, unreliable grid

on North Dakota and its residents.

27.

As a recent study commissioned by the North Dakota Transmission

Authority confirmed, the power grids serving the people of North Dakota are already

operating on dangerously thin margins of dispatchable power. Available at

https://www.ndic.nd.gov/sites/www/files/documents/Transmission-Authority/

Publications/MATS_Analysis_Report.pdf. Consequently, even if Noth Dakota

plants are capable of complying with the MATS RTR’s new standards (which, as

noted above, remains entirely uncertain), complying with the Rule would require

taking multiple units offline for an extended duration to make necessary upgrades,

removing load from power grids that are not projected to have capacity to spare.

(Page 125 of Total)

610a

USCA Case #24-1119

28.

Document #2058570

Filed: 06/07/2024

Page 8 of 8

Winters in North Dakota require consistently available power for

homes, hospitals and businesses to provide care and services for families. Previous

blackouts in other parts of the country associated with Winter Storm Uri have

demonstrated that death and health impacts can follow blackouts even in relatively

mild weather.

29.

Consequently, the MATS RTR will impose significant regulatory

burdens and cost on coal-fired EGUs in North Dakota and create serious risks to the

health and welfare of people in the region.

30.

I declare under penalty of perjury that the foregoing is true and correct

to the best of my knowledge.

Executed this 3rd day of June 2024.

Jason Bohrer

President and Chief Executive Officer

Lignite Energy Council

(Page 126 of Total)

611a

Kristina Tridico

Deputy General Counsel -Regulatory

Direct Dial: 317-618-0151

Email: ktridico@misoenergy.org

April 10, 2023

VIA ELECTRONIC Submission and Email

Attn: Michelle Lloyd

Office of Resource Conservation and Recovery, Materials Recovery and Waste Management

Division, Environmental Protection Agency,

1200 Pennsylvania Avenue NW, MC: 5304T, Washington, DC 20460

Lloyd.Michelle@epa.gov

Re: Comments from the Midcontinent Independent System Operator, Inc. (MISO)

Regarding the United States Environmental Protection Agency’s Request for Comment re

Docket ID Nos. EPA-HQ-OLEM-2021-0283, EPA-HQ-OLEM-2021-0282, EPA-HQOLEM-2021-0280.

The Midcontinent Independent System Operator (“MISO”) offers these comments on the

proposal by the United States Environmental Protection Agency (“EPA”) to deny applications by

DTE Electric Company’s (“DTE”) 1.3-GW Belle River 1 and 3.3-GW Monroe Power 2 Plants in

Michigan and Rainbow Energy Center, LLC’s (“Rainbow”) 1.2-GW Coal Creek Station in North

Dakota 3 (collectively the “Plants”) for an alternate liner demonstration (ALD) to allow coal

combustion residuals (“CCR”) surface impoundments to continue to receive CCR and non-CCR

waste streams after the current April 11, 2021, deadline to cease receipt of wastes. EPA has

proposed to deny these requests4 and require the Plants to: 1) submit an application for a sitespecific alternative deadline to initiation closure of its CCR surface impoundment(s) or 2) cease

receipt of waste no later than 135 days after EPA issues its final determination on the proposed

denial of the ALD application (or a later date as EPA determines is necessary to address grid

reliability). 5 EPA has requested comment on its denials of the Plants’ alternate liner

demonstrations and its proposed date for the Plants to cease receipt of waste. See EPA-HQOLEM-2021-0280-0001 at p. 2; EPA-HQ-OLEM-2021-0282-0001 at p. 2; EPA-HQ-OLEM1

See https://www.regulations.gov/document/EPA-HQ-OLEM-2021-0282-0001.

See https://www.regulations.gov/document/EPA-HQ-OLEM-2021-0283-0001.

3

See https://www.regulations.gov/document/EPA-HQ-OLEM-2021-0280-0001.

4

The bases for EPA’s proposed decisions are explained in the following memos and proposed determinations: 1)

Proposed Denial of the CCR Part B Alternate Liner Demonstration Application Great River Energy Coal Creek

Station, Upstream Raise 91, Underwood, North Dakota, EPA-HQ-OLEM-2021-0280-0001 at p. 2; Proposed Denial

of the CCR Part B Alternate Liner Demonstration Application, DTE Electric Belle River Power Plant Bottom Ash

Ponds and Diversion Basin, China Township, Michigan , EPA-HQ-OLEM-2021-0282-0001 at p. 2; Proposed Denial

of the CCR Part B Alternate Liner Demonstration Application, DTE Energy Monroe, Fly Ash Basin, Monroe,

Michigan, EPA-HQ-OLEM-2021-0283-0001 at p. 2.

5

See EPA-HQ-OLEM-2021-0280-0001 at p. 2; EPA-HQ-OLEM-2021-0282-0001 at p. 2; EPA-HQ-OLEM-20210283-0001 at p. 2.

2

Midcontinent Independent

System Operator, Inc.

317.249-5400

www.misoenergy.org

720 City Center Drive

Carmel, Indiana 46032

2985 Ames Crossing Road

Eagan, Minnesota 55121

1700 Centerview Drive

Little Rock, AR 72211

612a

April 10, 2023

Page 2

2021-0283-0001 at p. 2. The comment period on these proposals extends to April 10, 2023. See

EPA-HQ-OLEM-2021-0280-0014; EPA-HQ-OLEM-2021-0282-0013; EPA-HQ-OLEM-20210283-0011. MISO’s comments will focus on issues surrounding the potential date for cessation

of operations at these facilities, including receipt of wastes, relevant to the electrical grid and

resource availability.

By way of background, MISO 6 delivers power from the high-voltage transmission grid to

local distribution utilities, which then are responsible for delivery to end-use customers. MISO is

authorized by the Federal Energy Regulatory Commission (“FERC”) to exercise “functional

control” over the high voltage transmission system and otherwise administer the bulk electric

system in its region. One of MISO’s critical functions is to facilitate and maintain the reliable

delivery of electricity. MISO acknowledges and appreciates the role that EPA and other

governmental agencies play in addressing environmental matters, including grid reliability issues.

• EPA MUST CONSIDER RESOURCE ADEQUACY AND GRID RELIABILITY ISSUES

IN ITS DECISIONS REGARDING ANY DATE FOR CESSATION OF WASTE RECEIPT

AT THE PLANTS.

The electric grid is undergoing significant fleet changes that creates an immediate need for

stakeholders to work together to address and maintain electric reliability. MISO’s studies indicate

that its region needs a certain level of dispatchable and flexible resources to reliably manage the

transition to a decarbonized energy future. MISO faces increasing challenges to system reliability

and the ability to commit sufficient resources to supply electricity to customers within the

Midcontinent region.7 Even with the recognized growth of alternative and renewable energy

6

MISO is an independent, not-for-profit, member-based organization responsible for managing the power grid across

15 U.S. states and the Canadian province of Manitoba. MISO is both fuel- and technology-neutral. Today, 45 million

people depend on MISO to coordinate the generation and transmission of the right amount of electricity every minute

of every day. MISO is committed to delivering electricity reliably, dependably and cost effectively. In addition to

managing the power grid within its region, MISO administers the buying and selling of electricity at the wholesale

level, and partners with members and stakeholders to plan the grid of the future.

7

Studies conducted by MISO and other Regional Transmission Organizations (RTOs) have verified that their

transmission systems are at their capacity and there are financial and other impairments currently impacting the ability

to address this lack of capacity issue. MISO’s Long Range Transmission Plan details interconnection issues7 and its

Planning Resource Auction (PRA) process shows strains in the availability of sufficient generating capacity to meet

the region’s needs. See MISO’s 2022/2023 PRA resulted in a capacity shortfall for the MISO North/Central Regions

despite the fact that MISO was able to import over 3,000 MW from neighboring regions. See, e.g., MISO 2022/2023

Planning

Resource

Auction

(PRA)

Results,

April

14,

2022,

available

at

https://cdn.misoenergy.org/2022%20PRA%20Results624053.pdf. See also MISO 2022/2023 Planning Resource

Auction

(PRA)

Results,

Revised

May

3,

2022,

available

at

https://cdn.misoenergy.org/20220420%20RASC%20Item%2004b%20PRA%20Results%20Supplemental624128.pd

f.

See

MISO

2022

Regional

Resource

Assessment

(Nov.

2022),

available

at

https://cdn.misoenergy.org/2022%20Regional%20Resource%20Assessment%20Report627163.pdf noting an overall

decline in accredited capacity in 2022 and near term capacity risk as well as increased complexity of reliability

operating and planning the electric system due to changes in generator sources); MISO’s Response to the Reliability

Imperative

(Jan.

2023),

available

at

https://cdn.misoenergy.org/MISO%20Response%20to%20the%20Reliability%20Imperative504018.pdf (addressing

the shared responsibility of shareholders to address the urgent and complex challenges to electric system reliability

and noting that the MISO region has been inching ever closer to experiencing a shortfall in electricity-generating

613a

April 10, 2023

Page 3

sources, MISO continues to be concerned about the looming shortfall of generation needed to

ensure grid reliability in the region. Within the MISO region, the retirement of generation plants

is occurring far faster than new energy sources with equivalent attributes, whatever the fuel source,

can be developed, constructed, and brought online. While MISO is both fuel- and technologyneutral, it needs to preserve the best options to provide these needed resource capabilities and

attributes to bridge the gap between retirements and replacement capabilities and attributes.

MISO has concerns as to grid reliability and resource adequacy. Resource adequacy, in

general terms, is achieved when the accredited megawatt capacity of the generators in a particular

region meets or exceeds the forecasted load, plus reserves, for that region. MISO is experiencing

a trending decline in reserve margin and fewer always-on “baseload” resources, which is largely

the result of the retirement of significant amounts of dispatchable generation and the retirement of

thermal units. Different types of resources are accredited, or count, for different amounts capacity

depending on how reliable they are to be able to generate at the time they are needed. The

traditional dispatchable generators like Coal, impacted by the CCR rules, tend to have much higher

accredited capacity than the replacement capacity that has been brought online in recent years.

Replacement of retiring generation with new, mostly intermittent facilities that are not installed at

the same time or valued at the same output presents its own risks. Moreover, new capacity from

these resources (i.e., non-thermal) is not always available to provide energy during times of need.

For instance, MISO has previously expressed concern to EPA regarding issues related to

withdrawal of service by the Dalman, Erickson, Meramec, Ottumwa, and Sioux power plants and

potential impacts from the loss of generation from these five generators.8 In particular, MISO

commented that “[b]ased on the most currently available information . . . there is very little excess

generating capacity (or none at all) to cover demand for electricity, plus the required reserve

margin, in the immediate future.” 9 It takes time to obtain the required regulatory approvals to

construct new generation and especially any needed transmission facilities to connect that

generation to the grid. In the interim, resource adequacy must be maintained, and reliability

standards met during this period. Accordingly, the future of the electric grid and associated

electric markets depend upon resource availability, flexibility, and visibility.

While resource adequacy is generally the responsibility of the state regulatory authorities

within the Midcontinent region, MISO is in a unique position as the grid operator to inform state

and environmental regulators on the regional impact of actions on grid reliability and customer

impacts. Given the changes to the generating fleet, and the potential shortfalls in generating

capacity, it is imperative that EPA consider the need for reliable generating resources for the

regional reliability value provided to the region’s customers. Given the existing regional supply

capacity due to widespread retirements of conventional resources, not enough replacement capacity coming online,

and other factors). FERC also notes backlogs of more than three years in the interconnection queue. See FERC

Proposes Interconnection Reforms to Address Queue Backlogs, available at, https://www.ferc.gov/newsevents/news/ferc-proposes-interconnection-reforms-address-queue-backlogs (noting significant current backlogs in

the interconnection queues of more than three years).

8

See Comments of Midcontinent Independent System Operator (MISO) related to EPA-HQ-OLEM-2021-0588, EPAHQ-OLEM-2021-0589, EPA-HQ-OLEM-2021-0592, EPA-HQ-OLEM-2021-0593, and EPA-HQ-OLEM-20210594, available at https://www.regulations.gov/comment/EPA-HQ-OLEM-2021-0588-0010.

9

Id. at p. 6, available at https://www.regulations.gov/comment/EPA-HQ-OLEM-2021-0588-0010

614a

April 10, 2023

Page 4

situation, resources need to remain online and available to provide capacity and transmission grid

stability to meet the system’s needs until sufficient replacement capability is brought online.

MISO would note that it has multiple facilities potentially impacted by proposed EPA

denials of ALD determinations for CCR wastes. Accordingly, retirement/suspension requests as

well as planned outages will require particular attention to ensure continued grid reliability and

resource adequacy. The Plants at issue in this particular comment serve crucial power corridors

and provide a combined 5.9 GW to the grid.

•

MISO HAS MADE MODIFICATIONS TO ITS TIMING REQUIREMENTS FOR GENERATOR

SUSPENSIONS AND RETIREMENTS THAT EPA WILL NEED TO CONSIDER IN ITS

DETERMINATION OF WHEN PLANTS WILL NEED TO CEASE RECEIVING WASTES AND

OPERATE.

With regard to potential timing for the Plants to cease receiving wastes and operation, EPA

has requested comments on its proposed dates for the Plant to cease receipt of waste. EPA noted

that the Plants would have “four months from the date of the ineligibility determination to apply

for an alternative closure deadline, during which time the facility’s deadline to cease receipt of

waste to be tolled.” See EPA-HQ-OLEM-2021-0280-0001 at p. 52; EPA-HQ-OLEM-2021-02820001 at p. 51; EPA-HQ-OLEM-2021-0283-0001 at p. 46. Should a plant be unable to submit a

demonstration requesting an alternative closure deadline, EPA has proposed that the plant cease

receipt of waste within 135 days of the date of the Agency’s final decision (i.e., the date on which

the decision is signed) as this would time period would provide the same amount of time that would

have been available to the Plants had EPA issued a denial immediately upon receipt of their applications

(i.e., from November 30, 2020, when EPA received the submission, to April 11, 2021, the regulatory

deadline to cease receipt of waste). See EPA-HQ-OLEM-2021-0280-0001 at pp. 52-53; EPA-HQ-

OLEM-2021-0282-0001 at pp. 51-53; EPA-HQ-OLEM-2021-0283-0001 at pp. 46-47. EPA has

proposed that it may authorize additional time for continued use of the impoundments to the extent

necessary to address demonstrated grid reliability issues, provided that a planned outage request is

submitted to MISO “within 15 days of the date of EPA’s final decision” and “a MISO

determination disapproving the planned outage and the formal reliability assessment upon which

it is based” is provided to EPA within 10 days of receipt by the submitting party. See EPA-HQOLEM-2021-0280-0001 at pp. 53; EPA-HQ-OLEM-2021-0282-0001 at pp. 52; EPA-HQ-OLEM2021-0283-0001 at pp. 46-47.

EPA has stated that it is sensitive to the importance of maintaining enough electricity

generating capacity to meet the Midcontinent region’s energy needs, including meeting specific,

localized issues. See EPA-HQ-OLEM-2021-0280-0001 at p. 55; EPA-HQ-OLEM-2021-02820001 at p. 54; EPA-HQ-OLEM-2021-0283-0001 at p. 48. EPA is proposing to rely on MISO’s

procedures for reviewing planned maintenance outage and similar requests to determine the

appropriate date for the Plants to cease taking waste. See EPA-HQ-OLEM-2021-0280-0001 at pp.

56-57; EPA-HQ-OLEM-2021-0282-0001 at pp. 55-56; EPA-HQ-OLEM-2021-0283-0001 at pp.

49-50. EPA further stated that in MISO’s region “power plants are normally required to submit a

request at 26 weeks in advance of a planned outage to allow MISO to evaluate whether the resource

is needed to maintain grid reliability, among other scheduling considerations” and that MISO

would be able to “to provide an initial assessment of reliability within 135 days.” See EPA-HQ-

615a

5301 32nd Ave S

Grand Forks, ND 58201-3312

Phone 701.795.4000

www.minnkota.com

June 23, 2023

Administrator Michael S. Regan

U.S. Environmental Protection Agency

1200 Pennsylvania Avenue, NW

Washington, DC 20460

RE: Comments from Minnkota Power Cooperative, Inc. on 88 Fed. Reg. 24854 (April 24,

2023), Docket ID No. EPA–HQ–OAR–2018–0794

Dear Administrator Regan,

Minnkota Power Cooperative, Inc.(Minnkota) appreciates the opportunity to provide comments

on EPA’s proposed rule entitled “National Emission Standards for Hazardous Air Pollutants: Coaland Oil-Fired Electric Utility Steam Generating Units Review of the Residual Risk and

Technology Review” (the Proposed Rule). This Proposed Rule concerns the Mercury and Air

Toxics Standards (the MATS Rule) under Clean Air Act (CAA) Section 112.

Minnkota is a not-for-profit electric generation and transmission cooperative headquartered in

Grand Forks, North Dakota. We are comprised of 11 member-owner distribution cooperatives

located in eastern North Dakota and northwestern Minnesota, and serve some 160,000 cooperative

members, rate-payers. Minnkota also serves as the operating agent for the Northern Municipal

Power Agency (NMPA), headquartered in Thief River Falls, MN. Since our formation in 1940,

Minnkota has been committed to delivering safe, reliable, affordable and environmentallyresponsible energy to its member cooperatives.

Minnkota operates the Milton R. Young Station (the Young Station), a two-unit, cyclone lignite

coal-fired power plant located near the town of Center, North Dakota, that currently complies with

the MATS rule. Consequently, as the operator of the Young Station, Minnkota has a strong interest

in commenting on the proposed revisions in this rulemaking.

We believe EPA’s decision to affirm the robust and technically sound residual risk analysis

concluded in 2020 is well supported. However, our comments further address our serious concerns

that the EPA (1) lacks a legal basis for this proposed rulemaking; (2) used a flawed methodology,

resulting in erroneous filterable particulate matter and mercury baselines; and (3) relied upon

technical conclusions that suffer from several significant technical errors. EPA must modify the

Docket ID No. EPA–HQ–OAR–2018–0794

COMMENTS OF MINNKOTA POWER COOPERATIVE ON THE NATIONAL

EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS: COAL - AND OIL FIRED ELECTRIC UTILITY STEAM GENERATING UNITS REVIEW OF THE

RESIDUAL RISK AND TECHNOLOGY REVIEW; PROPOSED RULE

88 Fed. Reg. 24854 (April 24, 2023)

Docket ID No. EPA–HQ–OAR–2018–0794

Minnkota appreciates the opportunity to provide comments on EPA’s proposed

rule entitled “National Emission Standards for Hazardous Air Pollutants: Coal- and OilFired Electric Utility Steam Generating Units Review of the Residual Risk and

Technology Review” (the Proposed Rule).1 This Proposed Rule concerns the Mercury

and Air Toxics Standards (the MATS Rule) under Clean Air Act (CAA) Section 112.

Minnkota operates the Milton R. Young Station (the Young Station) that currently

complies with the MATS rule. Consequently, Minnkota has a strong interest in

commenting on the proposed revisions in this rulemaking.

I.

Introduction.

In June, EPA recognized dramatic air quality improvements since 1990.2 All

major air pollutants have fallen, including hazardous air pollutants (HAPs), which are the

topic of this rulemaking. Concurrently, our nation is facing an energy reliability crisis.

The North American Electric Reliability Corporation (NERC) recognizes the

unprecedented, rapid evolution of the electricity grid due to retirements of fossil

generation and renewable generation coming on-line.3 NERC predicts electricity

shortfalls in the MISO portion of the electricity grid that Minnkota serves. S&P Global

reports that: “Utilities in MISO are retiring fossil capacity in exchange for investments in

renewable energy resources either contracted or added to their rate base; however,

those exchanges are not happening fast enough to replace all the generation coming

offline.”4

Despite air quality improvements and reliability fears, EPA presses the power

sector further in the proposed rule entitled, “National Emission Standards for Hazardous

Air Pollutants: Coal- and Oil-Fired Electric Utility Steam Generating Units Review of the

Residual Risk and Technology Review” (the Proposed Rule).5 The rulemaking comes

at a time when fossil fuel-fired electric generating units (EGUs) are contending with

significant rulemakings that will create a sizeable cumulative cost burden on the industry

in a short time period, most by 2028. For example, in addition to the Proposed Rule,

there currently are open comment periods on other complex proposed rules directly

affecting electric cooperatives:

1

88 Fed. Reg. 24854 (Apr. 24, 2023).

Our Nation’s Air, June 2023,

https://gispub.epa.gov/air/trendsreport/2023/documentation/AirTrends_Flyer.pdf

3

NERC, Long-Term Reliability Assessment, December 2022 at 5,

https://www.nerc.com/pa/RAPA/ra/Reliability%20Assessments%20DL/NERC_LTRA_2022.pdf

4

Bennett, “Outlook 2023: MISO expects net addition of 8.9 GW, may face capacity strain” S&P Global

(May 3, 2023)

5

88 Fed. Reg. 24854 (Apr. 24, 2023).

2

Docket ID No. EPA–HQ–OAR–2018–0794

Nine states experienced rolling blackouts last December as the demand for

electricity exceeded the available supply. Those situations will become even

more frequent if EPA continues to craft rules without any apparent consideration

of impacts on electric grid reliability. American families and businesses rightfully

expect the lights to stay on at a price they can afford. EPA needs to recognize

the impact this proposal will have on the future of reliable energy before it’s too

late.6

The reliability and the costs of this Proposed Rule should be considered as

required by CAA Section 112. It is crucial for EPA to evaluate the overall regulatory

context. The burden of environmental compliance on electric cooperatives and their

end users is cumulatively affected by the compliance timelines of these concurrent

rulemakings.

Minnkota appreciates EPA’s recognition and consideration of these overarching

impacts on electric cooperatives and on the nation’s grid. Minnkota advocates for

adjustment of the fPM emissions limit to 0.020 lb/mmBtu or greater, which would

account for a compliance margin to accommodate variability in unit operation. Minnkota

asks EPA to revise the mercury (Hg) analysis to correct critical errors, which is

necessary to determine whether a Hg emissions limit can be consistently met by lignite

units, as further discussed infra. Minnkota supports the following specific changes to

the proposal:

• Correct the flawed fPM baseline to accurately account for current EGU emissions

and fPM control device capabilities.

• Recognize that EGUs vary in different seasonal and operational conditions as

well as on a unit-by-unit basis due to size, unit-type, fuel and climate. A

compliance margin is necessary to account for these differences.

• Correct the fPM cost analysis to quantify the appropriate number of fPM

upgrades and cost values, such that the cost is not underestimated.

• Consider the time frames in which certain fPM control upgrades and installations

can realistically occur.

• Retain the option to stack test for fPM and non-metal HAPs.

• Reconsider the substantial Hg reductions proposed for lignite-fired units that rely

on flawed technical assumptions as to the capabilities of lignite units.

• Adopt reasonable revisions or keep the current PM CEMS correlation test

requirements that apply to units that elect to use PM CEMS for MATS

compliance.

• Revise the IPM model to refrain from overvaluing the impacts of the Inflation

Reduction Act of 2022 (IRA) as the basis for the regulatory impacts analysis for

this Proposed Rule.

6

Matheson, Electric Co-ops: EPA’s Power Plant Proposal Would Further Jeopardize Reliability, May 11,

2023, https://www.electric.coop/electric-co-ops-epas-power-plant-proposal-would-further-jeopardizereliability (discussing Section 111 greenhouse gas regulations as the latest problematic EPA rule to

jeopardize reliability).

3

January 15, 2016

VIA ELECTRONIC MAIL TO: a-and-r-docket@epa.gov

Dr. Nick Hudson

Energy Strategies Group, Sector Policies &

Programs Division (D243-01)

U.S. Environmental Protection Agency

Research Triangle Park, NC 27711

Attention: Docket ID No. EPA–HQ–OAR–2009–0234

Re:

Comments of the National Mining Association on Supplemental Finding That It Is

Appropriate and Necessary To Regulate Hazardous Air Pollutants From Coaland Oil-Fired Electric Utility Steam Generating Units, 80 Fed. Reg. 75,025 (Dec.

1, 2015)

Dear Dr. Hudson:

The National Mining Association (NMA)1 submits these comments in response to

the proposed supplemental finding that it is appropriate and necessary to regulate

hazardous air pollutants (HAPs) from coal and oil-fired electric utility steam generating

units (EGUs), 80 Fed. Reg. 75,025 (Dec. 1, 2015). In addition to submitting these

comments NMA incorporates by reference the comments of the Utility Air Regulatory

Group of which NMA is a member.

NMA urges EPA to rescind and re-propose its “appropriate and necessary”

finding for electric generating units. EPA’s proposed finding is based on an arbitrarily

limited view of the information the agency should examine in assessing the costs and

benefits of regulation. EPA seems more interested in quickly reaffirming the flawed

appropriate and necessary finding it made when it issued the MATS rule rather than

conducting the type of searching analysis the Supreme Court called for in Michigan v.

EPA, 135 S. Ct. 2699 (2015), where the Court directed the agency to “consider costincluding, and most importantly, cost of compliance before deciding whether regulation

is appropriate and necessary.” (Emphasis added.) Despite this rebuke from the Court,

1

NMA’s membership includes the producers, transporters and consumers of coal. Our member

companies mines over 75 percent of the coal produced annually from operations located in 26 states.

Most of the coal produced by NMA members is used by coal-fired EGUs subject to this rulemaking.

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

Jan. 15, 2016

Page Two

our analysis of the Supplemental Finding demonstrates that it, like the agency’s prior

determination, is wrong in reaching the conclusion that it is appropriate and necessary

to regulate HAP emissions from EGUs.2

1.

EPA has completely failed to consider the effect of its rule on coal.

Four years after MATS was issued, with the damage the rule caused in the coal

industry all but complete, EPA maintains its preposterous view reached in the MATS

Regulatory Impact Analysis (RIA) that the rule will have little effect on coal. EPA has no

new analysis to support this assertion as no such analysis can be constructed. It simply

proposes to limit its consideration of costs to the information it included in the RIA,

including the RIA forecast that the rule would result in the retirement of less than 5 GW

of coal capacity.3 By limiting its cost consideration in this fashion, the agency believes it

can erase the actual experience of the last four years and the hardship the agency has

wrought on our nation’s coal communities and ratepayers who were previously the

beneficiaries of affordable, reliable coal-based electricity.

As numerous commenters, including NMA, told EPA during the MATS

rulemaking, the rule would cause a wave of coal unit retirements. Unfortunately, events

have confirmed the accuracy of these forecasts and disproved EPA’s. Between 2012

when the rule went into effect and 2016 when the rule’s compliance period ends, almost

60 GW of coal capacity will have retired, including units that have already retired or, for

2016, have announced their retirement.

Coal-Fired Generating Unit Retirements by Year – Actual and Announced (MW)

Year

2012

2013

2014

2015

2016

Annual

12,601

8,220

5,568

20,728

12,065

Cumulative

12,601

20,821

26,389

47,116

59,181

Source: Energy Ventures Analysis

According to statements made by the utilities announcing the retirements,

virtually all of these closures are either fully or partially attributable to MATS and other

EPA regulations.4

2

To ensure a complete record here, NMA attaches and resubmits its MATS comments.

EPA Regulatory Impact Analysis for the Final Mercury and Air Toxics Standards, page 3-17.

4

See attached compilation from the American Coalition of Clean Coal Electricity.

3

National Mining Association 101 Constitution Avenue, NW | Suite 500 East | Washington, DC 20001 | (202) 463-2600

C O A L UN I T R E T I R E M EN T S 1

As of December 30, 2015

Since 2010, utilities have announced the retirement of a very large number

of coal-fired electric generating units. 2 In addition to these retirements,

some coal units are converting to natural gas, and a small number are

converting to biomass or another fuel. Most of these retirements and

conversions have been attributed to EPA policies, although other factors

may play a role too. 3

Table 1 lists 37 states with coal retirements and conversions that have been

attributed to EPA policies. These retirements and conversions total 410

units and represent nearly 67,000 megawatts (MW

MW) of electric generating

capacity. Approximately 12,000 MW (one-fifth of the total) are converting

to natural gas, biomass, or another fuel. By the end of 2016, 51,481 MW

will retire or convert due to EPA policies.

Table 2 lists all announced coal retirements and conversions, regardless of

cause, through 2030

30. (Table 2 includes the units in Table 1 plus additional

retirements and conversions that have not been attributed to EPA policies.)

Table 2 shows that 499

99 units  totaling over 81

81,000 MW  are slated

ed for

retirement or conversion. These units are located in 42 states and represent

26% of the U.S. coal fleet that existed in 2010. Approximately 14,0

,000 MW

(slightly less than one-fifth of the total) are converting to natural gas,

biomass, or another fuel.

By the end of 2015, approximately 50,000 MW will have retired or

converted. Between 2016 and 2019, an additional 22

22,000 MW are expected

4

to retire or convert.

1 This list of retirements and conversions is based primarily on public announcements by the owners of

the

coal units. We also use other information sources that are highly reliable. These retirements and conversions

are not based on modeling projections.

2 In 2010, according to EIA, the U.S. coal fleet was comprised of 1,396 electric generating units at 580 power

plants that represented a total electric generating capacity of more than 315,000 MW.

3               

Review enforcement activities. Other factors contributing to the shutdowns in Table 1 include low natural

gas prices.

4 4,831 MW are slated to retire or convert after 2025.

1

TABLE 1. Coal Units Retiring or Converting Because of EPA Policies 5

STATE

1. Ohio

2. Pennsylvania

3. Alabama

4. Indiana

5. Kentucky

6. Georgia

7. Illinois

8. North Carolina

9. West Virginia

10. Virginia

11. Tennessee

12. Minnesota

13. South Carolina

14. Missouri

15. Arkansas

16. Florida

17. Iowa

18. Oklahoma

19. Massachusetts

20. Texas

21. New Mexico

22. Michigan

23. Maryland

24. Wisconsin

25. Colorado

26. Arizona

27. Mississippi

28. Nebraska

29. Oregon

30. Louisiana

31. New York

32. New Jersey

33. Utah

34. Montana

35. Kansas

36. Wyoming

37. South Dakota

MW CLOSING OR

CONVERTING

6,421

5,548

5,166

4,308

3,471

3,249

2,996

2,783

2,737

2,354

2,299

2,014

1,759

1,738

1,659

1,568

1,564

1,464

1,408

1,399

1,375

1,352

1,319

1,287

1,172

822

706

637

585

575

475

268

172

154

92

49

22

UNITS CLOSING OR

CONVERTING

40

30

26

25

16

15

13

20

18

16

15

13

14

17

2

7

28

3

6

3

5

16

7

16

11

4

2

5

1

1

3

2

2

1

2

4

1

66,967 MW

410 UNITS

5 Most of the coal units listed in the table are

retiring; 74 units representing 12,440 MW are converting to

natural gas, biomass, or another fuel.

2

TABLE 2. All Coal Units Retiring or Converting 6

STATE

1. Ohio

2. Pennsylvania

3. Alabama

4. Indiana

5. North Carolina

6. Illinois

7. Georgia

8. Kentucky

9. Virginia

10. West Virginia

11. Nevada

12. Tennessee

13. Minnesota

14. Utah

15. Iowa

16. South Carolina

17. Missouri

18. Arkansas

19. New York

20. Florida

21. Wisconsin

22. Massachusetts

23. Oklahoma

24. Michigan

25. Texas

26. Washington

27. New Mexico

28. Maryland

29. Colorado

30. Arizona

31. Nebraska

32. Mississippi

33. Oregon

34. Louisiana

35. Delaware

36. New Jersey

37. Connecticut

38. Montana

39. California

40. Kansas

41. Wyoming

42. South Dakota

MW CLOSING OR

CONVERTING

7,751

5,737

5,166

4,748

4,288

4,261

3,752

3,471

2,836

2,737

2,689

2,299

2,152

2,072

1,832

1,759

1,755

1,659

1,588

1,568

1,525

1,517

1,464

1,433

1,399

1,376

1,375

1,319

1,172

822

757

706

585

575

360

291

181

154

129

92

49

22

UNITS CLOSING OR

CONVERTING

43

33

26

30

33

18

17

16

21

18

8

15

15

7

32

14

18

2

13

7

23

7

3

19

3

2

5

7

11

4

6

2

1

1

4

3

1

1

3

2

4

1

81,423 MW

499 UNITS

6 Most of the coal units in the table are retiring; 93 units representing 13,890 MW are converting to natural

gas, biomass, or another fuel.

3

The National Rural Electric

Cooperative Association

Comments on

Proposed National Emission Standards for Hazardous Air Pollution: Coal-and OilFired Electric Utility Steam Generating Units Review of the Residual Risk and

Technology Review

Submitted Electronically to:

The Environmental Protection Agency

Air Docket

Attention Docket ID NO. EPA-HQ-OAR-2018-0794

June 23, 2023

by

Rae E. Cronmiller

Environmental Counsel

4301 Wilson Boulevard, EU 11-249

Arlington, VA. 22203-1860

(703) 907-5791 / rae.cronmiller@nreca.coop

NRECA Comments on Proposed EGU RTR

correlation requirements are next to impossible to achieve for the proposed fPM limit of

0.010lbs./MMBtu and even more unworkable with the alternative 0.006 lbs./MMBtu proposal.

The EPA cites earlier rulemakings and research projects that in fact reasonably lead to the

opposite of EPA’ s conclusion of CEMS viability to accurately measure fPM at 0.010

lbs./MMBtu. EPA maintains that the 2012 Portland Cement rulemaking bolsters EPA’s

contention that CEMS can operate with required accuracy and precision within the proposed

fPM range EPA proposes. Roberson, however, points out that in the final Portland Cement rule

EPA decided not to require CEMS because of correlation issues. EPA next claims the CEMS

requirement for new EGUs validates the proposed requirement here. But again, as Roberson

point out since there are no new EGUs, there is no actual required use to validate the CEMS

workability for the fPM levels at issue here. Lastly, EPA references an Electric Power Research

Institute (EPRI) project whose objective was to perfect a CEMS that would directly measure PM.

EPA cites the EPRI effort to somehow show this technology was developed and would allow

accurate measurement of fPM at the level proposed here. Roberson, who participated in this

earlier effort, recounts that the research effort was terminated without success at least partially

because EPA showed no interest in furthering the effort to perfect CEMS.

EPA has failed to consider the electric reliability impacts of this rulemaking

As detailed in the Cichanowicz Report, EPA IPM model base case for this proposal prematurely

retired 59 coal-fired units. Many of these units have not, as of the time of this rulemaking,

indicated retirement dates near the date when this proposal may become final. Thus, if EPA

prediction is wrong, they would be affected by the date this proposal would become final.6 EPA

modeling principally relies on the Inflation Reduction Act associated financial incentives along

with the implementation of the 2015 Ozone Transport Federal Implementation Plan (FIP) as the

main drivers forcing the retirements of most of the 59 units. EPA’ s specific modeling

assumptions leading to these units prematurely retiring do not appear anywhere in the docket and

yet EPA’s Regulatory Impact Analysis (RIA) for this proposal incorporates these assumptions to

6 Cichanowicz Report at pages 40-43. Table 8-1 listing units retiring in 2030 should read 27 not 23

making the total in Table 8-1 59 units. Tables 8-2 and 8-3 are correct in listing EPA IPM retired units.

5

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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