> **COMMENTS OF THE EDISON ELECTRIC INSTITUTE**[^1] **ON THE DEPARTMENT
> OF ENERGY'S CORRECTIONS AND UPDATES TO THE TECHNICAL GUIDELINES FOR
> VOLUNTARY GREENHOUSE GAS REPORTING**[^2]

February 20, 2007

**I. [Background]{.underline}**

On January 31, 2007, the Department of Energy (DOE) published in the
*Federal Register* a notice of the availability for public comment of
"an interim final rule that corrects, updates, and makes clarifying
changes to Technical Guidelines used for reporting under the Voluntary
Reporting of Greenhouse Gases Program of the Energy Policy Act of 1992."
The notice points out that a March 2006 version of the Technical
Guidelines was, according to 10 C.F.R. § 300.13, previously incorporated
by reference in the General Guidelines, which were issued by DOE under
the 1992 Act on April 21, 2006. 71 *Fed. Reg*. 20817 (2006). The notice,
citing the regulations of the Administrative Committee of the *Federal
Register*, states that if any agency "seeks to change a document
approved for incorporation by reference in a regulation," that agency --
namely, DOE in this case -- "must," among other things, "\[p\]ublish
notice of this change in the Federal Register and amend the Code of
Federal Regulations" (C.F.R.) and "notify the Director of the Federal
Register in writing" about the "changes" proposed by DOE. Apparently, at
some time prior to the notice being "issued" for *Federal Register*
publication on January 25, 2007, by DOE Assistant Secretary for Policy
and International Affairs Karen Harbert, "DOE sent the January 2007
update of the Technical Guidelines" to the Director, "obtained his
approval of the incorporation by reference of the January 2007 Technical
Guidelines in the regulations for the section 1605(b) program," and then
published "notice of change in the **Federal Register**." The notice
explains that "\[b\]y today's interim final rule, DOE changes the date
of the Technical Guidelines from March 2006 to January 2007 in 10 C.F.R.
300.13." It adds that "DOE believes that all of the
modifications"/changes "are fully consistent" with the "program General
Guidelines and DOE's original intent regarding the methods and other
guidance provided in such Guidelines." Nevertheless, consistent with the
above-referenced requirements of the *Federal Register* Committee and
with what we understand to be DOE's general policy, "DOE is specifically
soliciting public comment" on the changes, which EEI welcomes.
Nevertheless, we are concerned, as noted in our transmittal letter, that
DOE shortened the comment period to just 20 days without giving any
reason for deviating from its long-standing policy of affording a
comment period of at least 30 days.

Consistent with the order of the numbered requirements of such Committee
listed in the notice, DOE should first publish notice of the changes and
the amendment to the C.F.R. for public comment for the normal minimum
period of 30 days and then "notify" the Director of such changes "in
writing." Indeed, we are uncertain why DOE chose to reverse the order of
the Committee's requirements and are particularly concerned that DOE
only affords a public comment period of 20 days, rather than at least 30
days. The shortened period unnecessarily limits the public's opportunity
to comment.

In addition, although the *Federal Register* document states that DOE is
publishing this second "interim final rule" and explains therein that by
this action "the date of the Technical Guidelines" is changed "from
March 2006 to January 2007 in 10 C.F.R. 300.13," we question whether
that properly amends Part 300 of title 10 of the C.F.R. As we understand
this C.F.R. Part, the date of "(March 2006)" is contained in § 300.13 of
the "General Guidelines," Part 300, not the "Technical Guidelines," and
thus the amendment should be to strike "(March 2006)" in such

§ 300.13 and insert therein "(January 2007)." However, for the reasons
discussed herein, that amendment may be premature in light of the above
request for public comments, assuming the DOE request is intended to be
meaningful, notwithstanding DOE's stated belief of consistency with the
program, etc. regarding the changes.

Nevertheless, EEI takes this opportunity to respond to DOE's request and
submits our comments below while noting that our cover letter
incorporates by reference our comments of October 2, 2006, as well as
our related comments to the Energy Information Administration (EIA) and
Office of Management and Budget (OMB) on the program's draft forms and
instructions.

**II.** **[Comments on Chapter 1, Emission Inventories]{.underline}**

**A.** **[Section 1.A.5, Covered Gases and Global Warming
Potentials]{.underline}**

On page 10,[^3] DOE inserts a new paragraph, which provides a general
directive that EIA "will specify in its forms," etc. "the Global Warming
Potentials and other emission factors to be used by all reporters,"
which, in general, "will be those specified in the Technical Guidelines
unless the EIA specifies the use of more current and accurate factors,
which have been adopted by the IPCC \[Intergovernmental Panel on Climate
Change\], a public agency, a standards-setting organization or an
industry group, and have been publicly documented and reviewed."

However, in several tables (*e.g*., Table 1.C.10 (p. 46), Table 1.C.13
(p. 49), Table 1.C.14 (p. 51), Table 1.E.23 (p. 111) and Table 1.E.37
(p. 143)) apparently no factors are "specified" in the Technical
Guidelines, which would seem to trigger specification by EIA. Yet in
each case the tables appear to allow unfettered flexibility to turn to
other agencies, organizations or groups without any EIA input as
provided in the above directive. There is, in fact, nothing to indicate
that EIA has specified "use of more current and accurate factors. .
.adopted" by the IPCC, etc. that "have been publicly documented and
reviewed." That appears to be inconsistent with the above general
directive, which allows such flexibility [only]{.underline} when so
specified by EIA. In short, the changes made by DOE in the tables appear
internally inconsistent with this general directive and, as such, seem
to make the directive meaningless. We urge correction.

**B. Section 1.B.4.3, Using Existing Data Systems**

On page 31, the first bullet states that "[Large]{.underline} electric
power plants report fuel consumption and stock to the EIA" and the
second bullet states that "[Large regulated]{.underline} electric
utilities. . .report to the FERC on FERC Form 1. . . " (emphasis added).
In both cases, the word "Large" is undefined, although on page 38, when
referring to "steam turbine electrical generating plants," the word is
defined in a parenthetical as "(greater than 100 MW)." However, in Part
300, the term "large emitter" is defined in terms of annual emissions,
not megaWatts. In addition, as noted on page 39, footnote 12, there is a
reference to "25 MW." Thus, it is unclear what the word "large" means.

In the second bullet, the use of the qualifying word "regulated" implies
that deregulated electric utilities do not have to report on FERC
Form 1. It is our understanding that this is not the case. We recommend
deletion of the word "regulated."

**C. Section 1.C.2.1, Overview**

In the last sentence of the second paragraph (p. 35), the word "sources"
after "combustion" should, consistent with the first sentence on p. 46,
be changed to "units."

**D. Section 1.C.3.1, Coal**

The first sentence of the fourth paragraph (p. 39) refers to carbon
dioxide (CO~2~) emissions data being "provided to the EPA under the
CAAA." We presume that this refers to section 821 of Public Law No.
101-549. However, while that law also amended the Clean Air Act through
provisions designated as "Clean Air Act Amendments" (CAAA) "of 1990,"
not all of the provisions of that law, including section 821, were Clean
Air Act Amendments.[^4] Thus, the reference to the "CAAA" is incorrect
and the words "under the CAAA" should be changed to either "under
section 821 of Public Law No. 101-549" or "under Public Law No.
101-549."

**E. Sections 1.D.1 and 1.D.2.1, Overview**

In the first sentence of the third paragraph under section 1.D.1 and the
first sentence of the first paragraph under section 1.D.2.1 (p. 60), the
word "commercial" modifies fossil fuels" in the context of measuring
CO~2~ emissions from the "combustion" of such fuels. We question the use
of, and need for, such modification, and urge its deletion. We are
unaware of non-commercial fossil fuels, and in the event that there is
the combustion of non-commercial fossil fuels, we question whether the
measuring of such combustion would be different.

**F. Section 1.F.2.2, Electricity**

The second sentence of the last paragraph that begins on page 153
includes the words "grid-generated electricity," while the first
sentence of the first paragraph on page 154 uses the words
"grid-supplied electricity." Similarly, the words "grid-generated" power
are used in the second sentence of the second paragraph (p. 154). These
are inconsistencies. The words "grid-supplied" electricity or power are
more accurate.

The second sentence of the first full paragraph (p. 154) states, "In
most instances, electricity will be purchased from a regulated
utility^149^ or other load-serving entity that operates within the
context of a power control region." Footnote 149 states (p. 154):

> While the generation of electricity has been opened to market
> competition in many states, all public utilities are still regulated
> at some level, usually at the level of electricity transmission and
> distribution.

We question the accuracy of the above sentence and suggest that the
footnote is misleading. In the first place, there is a significant
difference between the regulation of electric utility generation by
states through ratemaking and the regulation of, for example, interstate
transmission of electric energy by the Federal Energy Regulatory
Commission. Moreover, it is our understanding that electric generation
by municipal utilities and cooperatives is not regulated for ratemaking
purposes by the states. In addition, we do not know what the words
"power control region" are intended to cover. The footnote should be
deleted and the above sentence revised.

**G. Section 1.G.2, Reporting on Carbon Dioxide Capture for Geologic
Sequestration**

In the first sentence of the first paragraph of this section (p. 172),
strike "reporter's" and insert "entity's"; strike "facilities" and
insert "sources"; and strike "reporter" and insert "entity." Similarly,
in the last three paragraphs of the section (pp. 172-73), the words
"reporters" and "reporter's" should be changed to "entity" or "entity's"
as the context requires. Some paragraphs in the section refer to
entities, while others do not. DOE should use the defined term "entity."
In addition, source is defined in § 300.2, while "facilities" is not. A
source is defined to include a "facility."

**H. Section 1.G.2.2, Sources of Carbon Dioxide for Geologic
Sequestration**

The chapeau paragraph (p. 174) states that "there are a number of
industrial and energy combustion processes that yield a highly
concentrated stream of carbon dioxide, amenable to geologic
sequestration." Listed are a series of bulleted industrial processes and
"*Advanced coal-fired power generation.*" While the word "amenable"[^5]
may be appropriate for some industrial processes at this time, that it
is not the case for such coal-fired generation,[^6] considering the
status of the technology and its commercial feasibility.[^7]

In the first place, it is a stretch to say that integrated gasification
combined cycle power plants -- or other advanced coal-fired power
generation -- emit a "sequestration-ready" stream of CO~2~. With respect
to power generation, the integration of CO~2~ capture, transport and
storage is just being tested in pilot projects, with a DOE-National
Energy Technology Laboratory (NETL) goal of successful tests and pilots
by 2012.[^8] The commercial scale-up of such integrated carbon capture
and storage facilities is not expected until around 2020 or later.[^9]

Second, FutureGen is not expected to be operational until 2012. The
successful commercial scale-up of "FutureGen-type plants" thus cannot be
expected until sometime after 2012.

**III. [Comments on Chapter 2, Emission Reductions]{.underline}**

**A. Section 2.2.1, Section 300.8 of the General Guidelines**

On page 261, there begins in italicized form the provisions of § 300.8
of Part 300. The second sentence of § 300.8(f) (p. 251) ends with "DOE,"
which should be "EIA." It should be corrected here and also in Part 300.
Incidentally, we do not understand why this restated § 300.8 is
italicized here and other restatements of Part 300 (*e.g*., pp. 12, 13,
14) are not.

**B. Section 2.4.2, Changes in Absolute Emissions**

The second sentence of the second paragraph (p. 281) ends with "reported
to DOE." This should be changed to "reported to EIA."

**IV. [Comments on Glossary]{.underline}**

**A. [General Comment (p. 316)]{.underline}**

We appreciate that DOE has taken steps to indicate that the revised
Glossary provides "definitions and explanations" to terms "used
primarily" in the Technical Guidelines and ones that, as to the terms
defined and explained in Part 300, are cross-referenced to that Part
rather than restated. However, EIA's Glossary for its November 9, 2006,
draft Instructions for draft Form EIA-1605 should also adopt this same
approach and, of course, the same terms in that Glossary and this one
should conform (see also our comments of December 22, 2006, to OMB on
these EIA drafts).

**B. Note to Users (p. 316)**

The bracketed note refers to the "draft Technical Guidelines." The word
"draft" is inconsistent with the above-referenced *Federal Register*
notice, which we understand by the reference to "interim final rule"
seeks to convey that they are no longer draft but "final" or "interim
final." The word "draft" should be deleted.

**C. [Double Reporting (p. 318)]{.underline}**

The word "data" should be added before the period.

**D. [EIA (p. 318)]{.underline}**

To conform with 10 C.F.R. § 300.2, the words "or Energy Information
Administration" should be deleted. The term defined is "EIA," not the
"Energy Information Administration."

**E. [Emissions, Fugitive (p. 319)]{.underline}**

As stated on p. 309, 10 C.F.R. § 300.2 defines the term "Fugitive
emissions." That definition, which should be controlling, differs from
the Glossary definition of "Emissions, fugitive." For example, it refers
to "uncontrolled releases" rather than "unintentional" releases. It also
ends with the clause "that are not emitted (via an exhaust pipe(s) or
stack(s))." We view those differences as significant. Moreover, as far
as we can tell, the Technical Guidelines use the term "fugitive
emissions," not "emissions, fugitive" (*e.g*., section 1.E.2.2, p. 83).
In our view, this Glossary term and its definition are inconsistent with
the General Guidelines and should be deleted.

Regarding section 1.E.2.2, Fugitive Emissions (p. 83), we question the
inclusion of the first sentence of the first paragraph of the section,
which, in essence, attempts to again explain the term "fugitive
emissions." In doing so, is also inconsistent with the § 300.2
definition because, in part, it also includes the word "unintentional."
If DOE is going to define or explain the term for use in both
guidelines, the Technical Guidelines and the Glossary should use the
defined Part 300 term and not adopt or paraphrase versions of the
definition or explanation in the text.

**F. [Entity (p. 319)]{.underline}**

The term defined in the General Guidelines is "\[e\]ntity**.**" That
definition does not also define the term "or reporting entity." That
term is, in fact, defined separately in § 300.2. We recommend deletion
of "or reporting entity" in conformity with § 300.2.

**G. [Mobile Source Emissions (p. 322) and Transportation Sources (p.
326)]{.underline}**

These two definitions or explanations are inconsistent and not helpful
or meaningful, particularly in light of the first sentence of section
1.D.1, Overview (p. 60), which, as noted below, gives examples of mobile
sources similar to those for transportation sources. First, § 300.2
defines the term "sources" broadly to "mean any land, facility, process,
vehicle or activity that releases a greenhouse gas." In addition, the
term "emissions" is already defined in § 300.2 as the "direct release"
of gases from "any anthropogenic. . .source and certain indirect
emissions. . .specified in this part." Second, with respect to both
terms, "Mobile source emissions" and "Transportation sources," the
definitions use part or all of the terms defined (*i.e*., "emissions" in
the case of the former and "Transportation sources" in the case of the
latter), which are circular.

In light of the above definition in Part 300 of the term "emissions," we
question the need to define the term "mobile source emissions," although
there could be a need to define the term "mobile source." In this
regard, the first sentence of section 1.D.1, Overview (p. 60), gives
examples of "mobile sources" as including "automobiles, tractors,
locomotives, watercraft, and aircraft," without specifically mentioning,
for example, non-road equipment, but not excluding such equipment.

In the case of the term "Transportation sources," we do not know where
it is used in the guidelines. However, it seems to be duplicative of the
term "mobile sources," except, while both appear to include non-road
equipment, it excludes "farm equipment associated with particular farm
premises," while the definition of mobile source emissions includes
"non-road equipment used in farming." We do not understand the reason
for the apparent difference, nor do we understand what is covered or
excluded by the different farm wording. In addition, the examples given
with the definition begin with the word "include," which is open-ended,
and they duplicate and expand the examples given in section 1.D.1
(discussed above).

In our view, these two definitions are ineffective and confusing at
best.

**H. [Net Emission Reductions (p. 323)]{.underline}**

This is a term defined in § 300.2, as noted in the Glossary. Further,
the Glossary adds after the above term "or net entity-wide reductions"
and states "See General Guidelines, 10 C.F.R. § 300.2." However, there
is no definition of that term in § 300.2, and thus this reference is
inconsistent with Part 300. It should be deleted.

**I. [Organizational Boundary (p. 323)]{.underline}**

We reiterate our comments to DOE of October 2, 2006 (p. 7) and our
comments to OMB of December 22, 2006, on the EIA draft Forms and
Instructions of November 2006 (pp. 25-26).

**J. [Reporting (p. 324)]{.underline}**

In EEI's comments of December 22, 2006, to OMB regarding this term in
the Glossary for the draft Forms EIA-1605 and the related Instructions,
we pointed out (p. 26) that EIA's "Supporting Statement" explains (p.
14) that "EIA now uses the terms 'reporting' but not registering
reductions," which we presume is in lieu of the term "reporting." It is
also in addition to the term "reporting entity," which is defined in §
300.2 to mean an "entity that has submitted a report. . .that has been
accepted" by EIA. The EIA term is helpful in distinguishing between an
entity registering and not registering emissions, but nevertheless
submitting a report to EIA. We thus said that an attempt to define the
term "reporting" is not needed, particularly since it is rather
convoluted. It is also unnecessary here, and we urge its deletion.

However, if DOE decides to retain it, we point out that the definition
differs from that of EIA in its draft Glossary (p. 160) of the
Instructions. The EIA definition is the proper one. In the proposed DOE
definition, the words "these Guidelines" appear twice in the sentence,
which wrongly refers to the "Technical Guidelines," not Part 300. We
recommend that the words "these Guidelines" be replaced in both places
by "10 C.F.R. Part 300" to conform to the EIA definition. However, we
reiterate that the best approach is for DOE and EIA to abandon trying to
define this term altogether.

[^1]: EEI is the association of U.S. shareholder-owned electric
    companies, international affiliates and industry associations
    worldwide. Our U.S. members serve 92 percent of all customers served
    by the investor-owned segment of the industry. They serve more than
    67 percent of all ultimate customers of the electricity in the
    nation. EEI is also one of six electric power trade associations in
    the United States that -- acting through their member companies and
    along with the Tennessee Valley Authority -- are collectively
    referred to as the "Power Partners^SM^." On December 13, 2005, Power
    Partners^SM^ entered into the umbrella Climate VISION Memorandum of
    Understanding with DOE in support of the President's efforts to
    reduce the greenhouse gas emissions intensity of the U.S. economy by
    18 percent by the end of 2012.

[^2]: RIN 1901-AB23 "Interim Final Rule Comments."

[^3]: All page references in these comments are to the track changes
    version of the Technical Guidelines and Glossary available on the
    Internet.

[^4]: Public Law No. 101-549 does not contain a short title designating
    the entire Act (*i.e*., the law) as the "Clean Air Act Amendments of
    1990."

[^5]: The Random House Webster's College Dictionary 42 (2^d^ ed. 1997)
    defines "amenable" to mean "**1.** ready or willing to . . . act . .
    ., or yield . . . **3.** capable of being tested, tried, etc. . .
    .".

[^6]: The first paragraph on page 169 states in the present tense that
    there "are several. . .energy combustion processes that emit a
    relatively concentrated stream of" CO~2~ "that is suitable for use
    in geologic sequestration" and includes "advanced coal-fired power
    generation." That is even a more optimistic statement than
    "amenable."

[^7]: See IPCC Special Report "Carbon Dioxide Capture and Storage,"
    Summary for Policymakers, section 10, "Gaps in Knowledge" (p. 45).

[^8]: See DOE-NETL "Carbon Sequestration Technology Roadmap and Program
    Plan 2006," p. 9 (2006). The goal is defined as 90 percent CO~2~
    capture with 99 percent storage permanence at less than a 10 percent
    increase in the cost of energy services by 2012.

[^9]: *Id.*