1

TABLE OF CONTENTS

CHAPTER 9 STATUTORY AND EXECUTIVE ORDERS.................................................... 2

9.1 Executive Order 12866: Regulatory Planning and Review, and Executive Order 13563: 

Improving Regulation and Regulatory Review.............................................................. 2

9.2 Paperwork Reduction Act...................................................................................................... 7

9.3 Regulatory Flexibility Act.................................................................................................... 11

9.4 Unfunded Mandates Reform Act ........................................................................................ 19

9.5 Executive Order 13132: Federalism.................................................................................... 25

9.6 Executive Order 13175, Consultation and Coordination with Indian Tribal 

Governments ................................................................................................................... 29

9.7 Executive Order 13045, Protection of Children from Environmental Health Risks and 

Safety Risks...................................................................................................................... 49

9.8 Executive Order 13211, Actions Concerning Regulations That Significantly Affect 

Energy Supply, Distribution, or Use ............................................................................. 50

9.9 National Technology Transfer and Advancement Act...................................................... 51

9.10 Executive Order 12898, Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations................................................................... 52

CHAPTER 10 RULE LANGUAGE CORRECTIONS......................................................... 100

10.1 Definitions (existing)......................................................................................................... 100

10.2 Definitions (new) ............................................................................................................... 108

10.3 Rule language .................................................................................................................... 112

10.3.1 Applicability for EGUs/affected entities...................................................................... 112

10.3.2 Incorporation of Part 75................................................................................................ 115

10.3.3 Requirements for affected entities................................................................................ 117

10.4 Other .................................................................................................................................. 118

CHAPTER 11 GENERAL SUPPORT AND GENERAL OPPOSITION........................... 133

11.1 General Support................................................................................................................ 133

11.2 General Opposition........................................................................................................... 133

CHAPTER 12 OTHER............................................................................................................. 135

APPENDIX A: CROSS-REFERENCED COMMENTS ...................................................... 162
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CHAPTER 9 STATUTORY AND EXECUTIVE ORDERS

9.1 EXECUTIVE ORDER 12866: REGULATORY PLANNING AND REVIEW, AND 

EXECUTIVE ORDER 13563: IMPROVING REGULATION AND REGULATORY 

REVIEW

Comment 1: Commenters stated that the EPA's Clean Power Plan (CPP) and the public 

participation process fall far short of President Obama's Jan. 18, 2011 executive order outlining 

how regulations should be crafted and implemented. 

Commenters noted that Executive Order 13563 holds as a "general principle" that the nation's 

"regulatory system must protect public health, welfare, safety, and our environment while 

promoting economic growth, innovation, competitiveness, and job creation.[... ] It must allow for 

public participation and an open exchange of ideas. It must promote predictability and reduce 

uncertainty. It must identify and use the best, most innovative, and least burdensome tools for 

achieving regulatory ends. It must take into account benefits and costs, both quantitative and 

qualitative."

Response 1: The EPA agrees with the commenters that public participation and an open 

exchange of ideas in the regulatory process are crucial and necessary to develop rules that 

‘“protect public health, welfare, safety, and our environment while promoting economic growth, 

innovation, competitiveness and job creation...’ ” Following the direction in the Presidential 

Memorandum to the Administrator (June 25, 2013),1 the EPA engaged in extensive and 

vigorous outreach to stakeholders and the general public at every stage of development of the 

rule. The EPA’s outreach included direct engagement with the energy and environment officials 

in states, tribes, and a full range of stakeholders including leaders in the utility power sector, 

labor leaders, non-governmental organizations, other federal agencies, other experts, community 

groups and members of the public. The EPA participated in more than 300 meetings before the 

rule was proposed and more than 300 after the proposal. The proposed guidelines were also 

subject to a formal comment and response process. For more information on the process afforded 

the public for participation in this rulemaking see section II.K (Stakeholder Outreach and 

Consultations) of the final rule preamble of the CPP. The EPA also conducted a Regulatory 

Impact Analysis (RIA) to assess the benefits, costs and economic impacts to society for both the 

proposed and the final emission guidelines. In this analysis, the EPA found that the benefits of 

the guidelines to society far outweigh the costs. See the RIAs for the proposed and final rule in 

the docket (EPA-HQ-OAR-2013-0602) for further information.

 

1 Presidential Memorandum – Power Sector Carbon Pollution Standards, June 25, 2013. 

http://www.whitehouse.gov/the-press-office/2013/06/25/presidential-memorandum-powersector-carbon-pollution-standards.
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Comment 2: Commenters stated that the EPA failed to conduct a cumulative analysis of the 

Rule as required by E.O. 12866 and E.O. 13563.

Commenters noted that the EPA is obligated to "propose or adopt a regulation only upon a 

reasoned determination that its benefits justify its costs" and "tailor its regulations to impose the 

least burden on society...taking into account...the costs of cumulative regulations." Commenters

stated that the EPA's failure to consider the cumulative impacts of its proposal along with other 

numerous and extremely costly rules that directly impact the utility industry is in direct 

contradiction to E.O. 13563. Commenters stated that EPA must conduct this cumulative impact 

analysis and provide the public with an opportunity for review and comment.

Commenters noted that the requirement for cumulative analysis stems from the regulatory 

philosophy of E.O. 12866 "that the need for an effects of government regulatory actions should 

not be examined in isolation but instead on an overall and coordinated basis." Commenters

additionally noted that the Statement of Regulatory Philosophy and Principles in E.O. 12866 also 

stresses the need for planning and coordination with respect to both new and existing regulations.

Response 2: The EPA conducted an RIA assessing the costs and benefits of the Clean Power 

Plan proposal and final guidelines consistent with the requirements of E.O. 12866 and 

E.O.13563. The Integrated Planning Model (IPM) was used to estimate the emission reductions 

and costs associated with the guidelines. All promulgated EPA regulations affecting the power 

sector are incorporated into the baseline of IPM for development of the emission reductions, 

costs, and benefits for the guidelines. (See docket EPA-HQ-OAR-2013-0602 for the RIA 

conducted for the proposed and final emission guidelines and more details on the analysis 

conducted.) The final CPP establishes emission guidelines for states to use in developing plans to 

address GHG emissions from existing fossil fuel-fired EGUs. Specifically, the EPA is 

establishing: 1) CO2 emission performance rates based on the BSER for two subcategories of 

existing fossil fuel-fired EGUs, fossil fuel-fired electric utility steam generating units and 

stationary combustion turbines, and 2) guidelines for the development, submittal and 

implementation of state plans that implement the CO2 emission performance rates. Each state 

may comply with the guidelines by adopting the emission rates as emission standards for their 

sources or by adopting a plan that is projected to achieve equivalent emission reductions as 

determined by their state goal, which is tailored to its particular mix of sources. Because states 

will ultimately make the decisions as to implementation of the guidelines, the RIA reflects 

illustrative benefits and costs. The guidelines set in motion actions to lower the CO2 emissions 

associated with existing power generation sources in the United States. 

The EPA recognizes that each state has different policy considerations, including varying 

emission reduction opportunities and existing state programs and measures, and characteristics of 

the electricity system (e.g., utility regulatory structure, generation mix, electricity demand). The 

final emission guidelines provide states with options for establishing standards of performance in 

a manner that accommodates a diverse range of state approaches. The guidelines also allow 

states to collaborate and to demonstrate emission performance on a multi-state basis, in 

recognition of the fact that electricity is transmitted across state lines, and local measures often 

impact regional EGU CO2 emissions.
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Comment 3: Commenters stated that the best means to tackle carbon emissions may require an 

all for one and one for all approach; however, section 111(d) cannot be interpreted to have such 

expansive power and doing so will place enormous burdens on already limited governmental 

resources which, as the court in Utility Air Regulatory Group v. EPA found, was alone a good 

reason for rejecting the EPA's interpretation of other Act provisions to regulate carbon 

emissions. Commenters noted that they co-own generation that the Proposed Rule will affect in 

Indiana, Illinois and Kentucky, potentially subjecting the commenters to three different state 

implementation plans which will involve three different governments, three different state 

environmental enforcement agencies and three different public utility commissions, amongst 

other interested parties. Commenters also noted that they uniquely serve municipal electric 

communities that lie in both the MIS065 and PJM territories, which will require commenters to 

comply with different regional transmission operator ("RTOs") compliance strategies. 

Commenters stated that such examples are playing out repeatedly across the nation and the 

burdens on limited governmental resources will only become more apparent if the Proposed Rule 

moves forward.

Commenters noted that the EPA has set its state emission rate goals based on presumptions that 

there will be dramatic shifts in generation, both locational shifts and shifts in fuel type, yet the 

infrastructure costs necessary to accommodate such shifts are completely ignored. Commenters 

stated that the EPA cannot impose burdens on the states to achieve such emission rates without 

accounting for the costs that the EPA's goals would impose. Commenters further argued that the 

EPA's suggestion that the states have the "flexibility" to undertake different measures if they find 

such costs to be too great is neither accurate nor does it relieve the EPA from this legal failing. 

Commenters stated that the EPA cannot simply impose burdens on the states without a full 

analysis of the costs of such burdens.

Response 3: Costs realized by states to develop their state plans for the period 2016-2018 were 

developed and reported in the Supporting Statement for the proposed rule. These estimates 

included the costs to coordinate with other states, based on previous costs developed for the 

regional haze rules (and as discussed in the supporting statement). Without receiving actual 

information on hours needed to coordinate with other states for state plan development on this 

final rule, the EPA has no basis to change the original estimates. Refer to document EPA-HQOAR-0602-0438.

Comment 4: Commenters stated that the EPA has failed to take into account the interagency 

cooperation necessary to implement Rule 111(d) and has also failed to account for the increased 

costs this will place on states. Commenters stated that their agency anticipates that a new 

program within their agency will be required to track industry compliance with the proposed 

rule, which will require two to three full time staff. In addition, commenters relayed that their 

agency will need assistance from other state agencies to coordinate "outside the fence" activities 

related to Blocks 2-4 that are typically overseen by state public utility commissions and/or the 

FERC, not by the EPA or state environmental agencies. Commenters estimated that assisting 

their agency in monitoring compliance with energy efficiency programs would likely require one 

to two additional staff members but meaningful estimates are difficult because the EPA has yet 
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to provide guidance on the evaluation, measurement & verification (EM&V) standards for 

renewable energy or demand side energy efficiency programs.

Response 4: The EPA has accounted for the costs that the commenters describe. Refer to the 

RIA for the proposed carbon pollution guidelines for existing power plants that can be found in 

the docket, (EPA-HQ-OAR-2013-0602-0391, Section 3.11). In that section of the RIA for the 

proposed guidelines, the EPA developed projections for the compliance years 2020, 2025, and 

2030. Table 3-25 of that section displays projections for 2020 of $61,583,896 annually for 

review and assessment of all building blocks, development of contingency measures, state plan 

revisions, coordination with affected sources, oversight of consumer-based energy efficiency 

programs, and public meeting development, development of a monitoring system, and staff 

needed by the affected EGU's to compile quarterly data downloaded to the EPA's Emission 

Collection and Monitoring Plan System (ECPMS). For the years 2025 and 2030, the EPA 

projected the monitoring system will be in place, so costs will have reduced. The projection is for 

2 full time state staff to continue implementation, monitoring and recordkeeping at a rate of 

$8,215,237 annually nationwide. After receiving input from the commenters above, the EPA has 

added the cost to the agency’s original staffing estimates, for two additional staff members in the 

final Paperwork Reduction Act (PRA) burden estimate for the years 2016-2018, to account for 

the additional staffing the commenters believe will be needed in their agency, and has 

extrapolated this need to each state where the agency believes it will receive a state plan. The 

revised estimates can be found in the final docket for this rulemaking, in section 6 of the 

Supporting Statement, and section 3.11 of the RIA.

Comment 5: Commenters stated that the EPA has underestimated the number of full time staff 

states will need to implement the proposed rule because it has not considered the multiple state 

agencies impacted by the EPA's proposed rule. Commenters stated that the exact number of staff 

needed to implement a state plan will depend on numerous factors, such as whether the state 

implements a cap and trade program or if energy efficiency and renewable energy measures are 

relied upon, and cited their agency's estimates that additional resources will be needed from other 

agencies. Commenters stated that in addition, significantly more resources will be needed by the 

state in the initial years during development of the state plan for activities such as developing 

rules and guidance, creation of databases, and establishing new programs to implement the state 

plan. Commenters also stated that the EPA has not accounted for all aspects of the proposed rule 

that have direct fiscal implications for the states, such as the state database for making records 

available to the EPA and the public, the requirements of the EM&V Plan, and the possible need 

to contract out activities to independent parties.

Response 5: The EPA points out that with regard to the costs developed for the proposed rule, 

the RIA did include costs (see Chapter 3.11) for the proposal related to state implementation 

activities for the years 2020, 2025, and 2030. The EPA included 2 full time equivalent personnel 

that covered 4 to 5 staff working part time in both the energy and air offices to coordinate 

activities. Since there is no way to predict how many states will submit a multiple state plan, the 

EPA assumed that at the time of proposal, only one grouping of states would submit a multiple 
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plan, which is the Regional Greenhouse Gas Initiative comprised of the northeastern states. In 

addition, as documented in the Supporting Statement, docket number EPA-HQ-OAR-2013-

0602-0438, Exhibits 1a and 1b include the lower and upper bounds, respectively, of individual 

burdens for the reporting requirements applicable to the states for the first 3 years. The lower 

bound estimate accounts for 23 states already having active energy efficiency programs in place 

for meeting their emission performance goals, while the upper bound assumes that no energy 

efficiency programs exist. By accounting for states' existing programs, the burden estimates in 

Exhibit 1a are lower than those in Exhibit 1b. The national range for these costs was estimated to 

be $22 million (lower bound) and $44 million (upper bound) per year between 2016 and 2018. 

These estimates have been revised to reflect an additional 2 full time staff members’ 

participation, in response to commenters. The final estimates are $35.8 million (lower bound) to 

$58.1 million (upper bound) per year, between the years 2016 to 2018.

In developing estimates for the years 2020, 2025, and 2030, the EPA did not include costs for 

possible contracting out the EM&V activities to independent parties, nor did the EPA include 

costs for states to develop a database for making records available to the EPA and the public. 

The activity of contracting out the EM&V activities is not mandated in the rule. In addition, 

EPA will have in place a central database for states to upload their information and thus the 

agency does not see a need for state specific databases to be developed. Thus, these two activities 

have not been accounted for in agency calculations. The lower estimate reflects assumptions that 

23 states already have active energy efficiency programs in place, and the higher estimate 

reflects estimates that no energy efficiency programs are in place. The revised costs for 2020, 

2025, and 2030 can be found in the RIA, in the docket.

Comment 6: Commenters noted that the EPA estimates that reducing co-pollutants under the 

CPP will generate $25-$59 billion in monetized benefits, plus significant unquantified effects. 

Commenters stated that counting such indirect benefits from reducing co-pollutants like 

particulate matter and mercury is required by federal administrative guidelines, recommended by 

standard economic methodologies and prior agency practices, and consistent with case law. 

Commenters noted that E.O. 12866 requires federal agencies to conduct regulatory impact 

analyses of significant rulemakings and that the E.O. broadly defines costs and benefits to 

encompass all regulatory impacts on the economy, government, health, safety, and environment, 

and does not differentiate between direct and indirect effects. Commenters further noted that the 

EPA has regularly assessed indirect benefits in its economic analyses since at least 1978.

Commenters noted several court cases which have consistently found that, in cases where 

agencies either choose or are required by statute to consider regulatory costs and benefits, 

important indirect effects deserve equal treatment and urged the EPA to continue to consider the 

value of significant ancillary benefits from reductions in co-pollutants, as it properly has for 

decades under administrations of both parties.

Court cases cited:

• Competitive Enterprise Inst. v. NHTSA, 956 F.2d 321, 327 (D.C. Cir. 1992) 

(finding the agency "must exercise its discretion; that means conducting a serious 
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analysis of the data and deciding whether the associated fuel savings [direct 

benefits] are worth the lives lost [indirect costs]"); 

• Am. Trucking Ass'ns v. EPA, 175 F.3d 1027, 1051-52 (D.C. Cir. 1999), rev'd on 

other grounds sub nom. Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457 

(2001) (holding that "all identifiable effects" included indirect costs and benefits, 

and cautioning that "it seems bizarre that a statute [the Clean Air Act] intended to 

improve human health would ... lock the agency into looking at only one half of a 

substance's health effects in determining the maximum level for that substance"); 

• U.S. Telecom Ass'n v. FCC, 290 F.3d 415, 425 (D.C. Cir. 2002) (remanding an 

FCC rule for failure to consider indirect costs); 

• Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1225 (5th Cir. 1991); 

• Am. Dental Ass'n v. Martin, 984 F.2d 823, 826 (7th Cir. 1993).

Response 6: The EPA agrees with the commenters’ conclusion that the benefits from reducing 

co-pollutants such as particulate matter and mercury associated with the CPP are appropriately 

considered in the assessment of benefits of the emission guidelines to society. Pursuant to E.O. 

12866, the EPA conducted a RIA of the CPP to estimate the costs, benefits, and economic 

impacts of the emission guidelines. In the RIA, the EPA assessed climate benefits associated 

with the emission guidelines, as well as the benefits associated with air quality co-pollutant 

emission reductions expected as a result of the emission guidelines. For more information, see 

the RIA available in the docket (EPA-HQ-OAR-2013-0602).

9.2 PAPERWORK REDUCTION ACT

Comment 1: Commenters stated that the EPA does not have the legal authority under CAA 

section 111(d) to require the states to create and maintain public databases to make records 

submitted by affected entities available to the public and the EPA. Commenters further stated 

that the EPA has not accounted for the costs of creating and maintaining such a database in the 

RIA of the proposed section 111(d) rule. Commenters referred to 79 FR 34910 which proposes 

that the periodic reports from affected entities must be submitted annually, electronically, and 

"disclosed on a state database accessible to the public and EPA." Commenters stated that the 

EPA does not have the legal authority to mandate what media a state uses to make records 

available to the public. Additionally, commenters claimed that they do not currently have a 

publically accessible database for posting such records. Commenters further stated that the EPA's 

analysis in Section 3.11 of the RIA regarding the Monitoring, Reporting, and Recordkeeping 

Costs does not provide any cost estimates for the states to create and maintain such databases. 

Commenters stated that the costs for modifying an existing public database or creating a new 

database system would be substantial. As such, commenters stated that the EPA's impact analysis 
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with regard to the burden to state agencies is not valid. Commenters said the EPA's analysis for 

the Unfunded Mandates Reform Act is also invalid because the EPA has not factored in the costs 

for the public databases when determining whether the proposed rule would result in 

expenditures of $100 million or more for state, local, and tribal governments.

Response 1: As discussed in previous responses to comments addressing public databases, the 

EPA has not included the cost of developing a public database in the final estimates since the 

agency does not mandate the development of a public database in the final rule. The EPA will 

have a national database available for state data.

In responding to the commenters’ assertion that the EPA does not have the legal authority to 

mandate what media a state uses to make records available to the public, the issue is moot since 

the EPA is not mandating what media a state uses to make records available to the public: a 

national database is instead being developed.

In responding to the assertion that the EPA has not factored in the costs for the public databases 

and that these costs would result in expenditures of $100 million or more for state, local and 

tribal governments, the EPA believes that public databases are not needed since the agency will 

have a national database in place for states to use, and thus, there will be no need for such 

expenditures.

Comment 2: Commenters observed that the EPA notice of PRA applicability reflects a disregard 

for the procedural requirements of the Act and among other things, the rulemaking does not 

respond in any meaningful way to the important inquiry concerning what significant aspects of 

the burden associated with the reporting and recordkeeping involved with State plan 

development, submission, and ongoing use subject to the EPA's discretionary approval are 

within the scope of the PRA's Public Protection provision.

Commenters noted that the EPA does not clarify for the public's understanding that the entire 

rulemaking cannot be made final until final approval from OMB pursuant to EPA's and OMB's 

responsibilities under the PRA. Commenters further noted that OMB must make a decision 

within 30 to 60 days after June 18, 2014 which have long since passed. Commenters stated that 

with its extension of the comment period until after the elections, the EPA has not, to the 

commenters’ knowledge, informed the public of the status of the OMB decision, including to 

what extent the public could comment on the proposed collection of information specifically 

contained in the rulemaking.

Commenters also stated that there is no mention made of whether the EPA analysis has 

determined, as it is required by the law to do, how States can determine what aspects of the State 

submission and the EPA's discretionary approval of State plans mandate collections of 

information which are federally "sponsored". Commenters stated that due to the discretionary 

and conditional approval by the EPA of State plan elements the fruits of all collection of 

information provided to the EPA by a State for the EPA's use to determine approval should be 

considered "federally sponsored". Commenters believed that the EPA misguidedly assumed that 

collection of information by the States which may be already collected for State purposes is not 
9

considered "federally sponsored" if it is in turn provided as part of a required element of a State 

plan, which is contrary to the statute's meaning for "sponsored" collections of information. 

Commenters stated that the EPA's assumptions are significant because the standard of review for 

the EPA and OMB under the PRA is "necessity, including practical utility" [44 USC 3508] as 

opposed to "reasonableness" subject to judicial review under the (Administrative Procedure Act 

(APA). Commenters noted that federally sponsored collections of information are required to be 

re-approved every three years and that opportunity for public comment in the re-review is to be 

provided, otherwise they are legally unenforceable.

Commenters also noted that the EPA obfuscates by not delineating EPA information collection 

request (ICR) numbers from OMB control numbers which hinders the public participation 

required by the PRA and intended to be accomplished concurrently with the opportunity to 

comment on related provisions in the rulemaking. Commenters stated that the fact that 

OMB control numbers can be viewed in the Federal Register without indicating which OMB 

control numbers are associated with State plan requirements adds to this lack of transparency and 

clarity.

In addition, commenters stated that EPA's assertion that "These recordkeeping and reporting 

requirements are "specifically" authorized by CAA section 114 (42 U.S.C.7414) " further 

obfuscates and confuses the public. Commenters noted that the content and substance of what is 

contained in the reporting and recordkeeping requirements the Administrator may discretionarily 

prescribe is not specifically contained in the language of the cited authorizing provision. 

Commenters noted that the collections of information which flow from the Administrator's 

discretion are subject to the PRA's required procedures and the scope of the Public Protection 

section. Commenters stated that the EPA gives the appearance of flouting the law and seeking 

an exemption from its statutory responsibilities by its use of the word "specifically" in this 

context. 

Commenters concluded by stating that the EPA's approach to its legal responsibilities under the 

PRA lacks common sense and that they doubted the creditability of the EPA's high-end labor 

cost estimate of some 44.8 million dollars for the whole Country to provide the necessary 

"federally sponsored" collections of information which underpin State plans. Commenters stated 

that this estimate is not realistic or meaningful and when properly interpreted, 

commenters believe the labor costs, among other burdens, are at least five times greater.

Response 2: The EPA disagrees with comments suggesting it has not fully satisfied its legal 

obligations under the PRA. The information collection requirements in this propose rule have 

been submitted for approval to the OMB. The ICR document prepared by the EPA for the final 

rule has been assigned the EPA ICR number 2503.02. The average annual labor costs over the 3-

year period of this ICR from these reporting requirements increased from the proposed burden 

estimates due to specific comments received on staff labor needed to coordinate with other state 

agencies. The final estimate developed is still a range, but was increased and is now from 

approximately $35.8 to $58.1 million per year for states (detailed in Exhibit 1c of the Supporting 

Statement as found in the docket). Labor rates and associated costs are based on Bureau of Labor 

Statistics (BLS) data. Technical, managerial, and clerical average hourly rates for state 

government workers were based on the Bureau of Labor Statistics, Occupational Employment 

Statistics, May 2013 National Industry-Specific Occupational Employment and Wage Estimates 
10

for state government (NAICS code 999200). The state government labor rates from BLS were 

multiplied by an overhead multiplier of 110 percent to estimate loaded labor rates of $74.05 per 

hour for technical, $89.67 per hour for managerial, and $35.09 per hour for clerical. This 

information was provided in the docket for the proposed rule whereby the public had an 

opportunity to comment on these estimates and all estimates of costs, for an unprecedented 

period of 180 days.

With regard to the comments suggesting that CAA section 114 does not specifically authorize 

the information collection requirements in the rule, this is not accurate. Subpart B of 40 CFR part 

60 requires the plans to include monitoring, recordkeeping, and reporting provisions consistent 

with the emission guidelines. In addition, section 114(a) states that the Administrator may 

require any owner or operator subject to any requirement of this Act to: (A) Establish and 

maintain such records; (B) make such reports; (C) install, use, and maintain such monitoring 

equipment, and use such audit procedures, or methods; (D) sample such emissions (in 

accordance with such procedures or methods, at such locations, at such intervals, during such 

periods, and in such manner as the Administrator shall prescribe); (E) keep records on control 

equipment parameters, production variables or other indirect data when direct monitoring of 

emissions is impractical; (F) submit compliance certifications in accordance with section 

114(a)(3); and (G) provide such other information as the Administrator may reasonably require.

Further, the public protection provision applies to collections of information conducted or 

sponsored by a federal agency. While the PRA does not prevent federal agencies from 

promulgating final rules containing collections, the PRA’s public protection provision does 

prevent federal agencies from penalizing a person for failing to comply with a federal collection 

of information that does not have a currently-valid OMB control number. Dithiocarbamate Task 

Force v. EPA, 98 F.3d 1394 (D.C. Cir. 1996). The EPA disagrees with comments suggesting that 

state collections of information are necessarily sponsored by the Federal government. 

Determining whether a Federal agency sponsors a collection of information is a fact-specific 

inquiry to be addressed on a case-by-case basis.

Note that this action has been assigned the OMB Control Number 2060-0698. The final 

supporting statement will be provided to OMB, and after discussions between the agency and 

OMB regarding its content, the supporting statement will be submitted for approval. 
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9.3 REGULATORY FLEXIBILITY ACT

Comment 1: Commenters stated concerns about the EPA's lack of consideration of small entities 

when developing the proposed rule.

Commenters stated that the EPA failed to satisfy its statutory obligations under the Regulatory 

Flexibility Act (RFA) by not convening a small business advocacy review (SBAR) panel for the 

proposed regulation.

Commenters disagreed with the EPA's conclusion that the emission guidelines established under 

CAA 111(d) will not have a significant economic impact upon a substantial number of small 

entities and that EPA's "acknowledgement" of an RFA analysis is not adequate. Commenters 

further stated that the rule was tailor made for an RFA analysis, and that the EPA itself admits 

that electricity prices, one of the largest concerns of small businesses, will increase as a result of 

the proposal. Commenters stated that energy costs are one of the top three business expenses for 

35 percent of small businesses. 

Commenters stated that the EPA has a duty to correctly estimate the proper number of entities to 

be included in the RFA analysis and that the EPA has failed to do so. Commenters noted that the 

EPA attempts to claim it conducted the RFA analysis in the preamble to the proposed rule and 

that the EPA attempts to brush off its RFA duty by stating it conducted stakeholder outreach. 

Commenters felt that there is no actual analysis as to why the EPA's proposed rule and its BSER 

determination including interim and final goals will not have a "significant economic impact on a 

substantial number of small entities" and stated that the EPA simply provided "buzz" words 

to indicate an analysis was completed, but its statements lack any justifying substance. 

Commenters stated that they are entitled to a full analysis under the RFA and, because this did 

not occur, the Court must vacate and remand the Rule to EPA.

Commenters stated that the proposed section 111(d) rule for existing power plants is 

fundamentally different from the prior national ambient air quality standards (NAAQS) proposed 

rules which the EPA cites as precedent for the argument that an RFA analysis is not required for 

the proposed section 111(d) rule. . Commenters additionally stated that "while the EPA interprets 

the Regulatory Flexibility Act to only apply to costs directly imposed by a proposed rule, the 

Regulatory Flexibility Act does not make this distinction" in that "Section 605 of the Regulatory 

Flexibility Act only speaks to a significant economic impact on a substantial number of small 

entities and does not preclude indirect impacts on such entities." Commenters further stated that 

the EPA is incorrect to assert that the emission guidelines set under section 111(d) do not result 

in direct costs to small entities through the application of the emission guidelines by states. 

Commenters noted that in the EPA's economic analysis of Building Block 4, EPA "clearly 

expects a potentially significant economic impact on small entities" because

"...EPA acknowledges that half of the costs associated with enhancing energy 

efficiency programs will fall to the electricity consumers, which will include the 

small entities that the Regulatory Flexibility Act is intended to address." 

Commenters stated that it is "irrational for EPA to provide these estimated cost 

impacts to electricity consumers, which clearly will have a significant economic 
12

impact on small businesses, yet certify there is no significant economic impact on 

small entities for purposes of avoiding a Regulatory Flexibility Act analysis."

Commenters stated that the 1999 Court decision cited by the Administrator to support her 

certification that this action will not have a significant impact on a substantial number of small 

entities does not preclude the EPA undertaking an analysis as contemplated by the Act to address 

the rising prices of electricity prices upon small businesses that will result. (American Trucking 

Assoc. v. EPA, 175F.3d 1029, 104-45 (D.C. Cir.1999)) Commenters stated that how small 

businesses and governments must change to conform to the EPA's State plan requirements in the 

face of rising electricity prices to meet the needs of its senior citizen populations is a 

consideration that merits more attention as millions of senior citizens are engaged in attempts to 

supplement social security income by becoming small business owners and participants. 

Commenters recommended that Congress provide oversight of this certification under the 

procedures of the Congressional Review Act (CRA).

Commenters also stated that by proposing a "beyond the fenceline BSER analysis that includes 

emission reductions by electricity consumers and a portfolio approach that allows direct 

regulation of entities outside the regulated source category, the EPA has virtually ensured that 

small businesses will be regulated under the proposed rule. In fact, given the lack of practical 

flexibility available to states to achieve the aggressive emission reduction targets proposed by the 

EPA, section 111(d) implementing agencies will likely have no choice but to impose legally 

binding energy efficiency obligations on electricity consumers, including many small 

businesses." Commenters expressed concern towards the possibility that small businesses, 

particularly industrial and manufacturing facilities, could be called upon to shoulder part of the 

compliance burden for this proposal if individual states choose to go beyond EGUs to achieve 

emission reductions under the proposed rule.

Commenters were specifically concerned that municipal power systems will bear the brunt of the 

EPA's proposed rule in ways that could put local communities at risk. Commenters stated that 

small plants will suffer due to diseconomics in trying to achieve optimistic heat rate efficiency at 

plants that are already attempting to incorporate these improvements as they are available. 

Commenters further stated that many public power systems in Michigan have only a single basic 

unit, or a very small number of units, eliminating the ability to redispatch to a lower emitting unit 

or apply controls flexibly across multiple units. Commenters noted that these units are generally 

in isolated and/or rural areas where there are limited options for securing power. Commenters 

noted that the EPA has said itself that municipal utilities, small entities, and utilities with only 

one unit may suffer under the proposed rule.

Commenters noted that the EPA continues to rely on unfounded data to support its regulatory 

actions. Commenters noted that the APA of 1946, in addition to the RFA and other long-standing 

statutes, set clear guidelines covering public transparency of science and economic data used to 

justify a new regulation; however, the EPA continues ignore these requirements and dismiss the 

impact their actions have on small manufacturers and their employees.

Response 1: The EPA disagrees with commenters’ assertion that the EPA did not consider small 

businesses when developing the proposed rule. The EPA is aware that there is substantial interest 

in the rule among small entities (e.g., municipal and rural electric cooperatives) and has 
13

conducted an unprecedented amount of stakeholder outreach. As part of that outreach, agency 

officials participated in many meetings with individual utilities as well as meetings with electric 

utility associations. Specifically, the EPA Administrator, Gina McCarthy, participated in separate 

meetings with both the National Rural Electric Cooperative Association (NRECA) and the 

American Public Power Association (APPA). The meetings brought together leaders of the rural 

cooperatives and public power utilities from across the country. The Administrator discussed and 

exchanged information on the unique challenges, in particular the financial structure, of NRECA 

and APPA member utilities. Agency officials also engaged with industry leaders and trade 

association representatives from various industries. While formulating the provisions of the 

proposed rule, the EPA considered the input provided over the course of the stakeholder 

outreach. After proposal, the EPA continued to seek input from stakeholders, including small 

businesses. Opportunities for stakeholder input included providing testimony during public 

hearings and submitting comments during the public comment period. In addition, agency 

officials participated in over 300 meetings after proposal with a full range of stakeholders, 

including stakeholders with small business interests. The EPA considered this input in 

determining the provisions of the final rule.

The EPA disagrees with commenters that believe the EPA failed to satisfy the RFA’s statutory 

obligations and the rule must be vacated and remanded to the EPA because a full analysis was 

not conducted. The RFA generally requires an agency to prepare a regulatory flexibility analysis 

of any rule subject to notice and comment rulemaking requirements under the APA or any other 

statute, unless the agency certifies that the rule will not have a significant economic impact on a 

substantial number of small entities. The impact of concern is any significant adverse economic 

impact on small entities directly regulated by the rule. See American Trucking Assoc. v. EPA, 

F.3d 1029, 1044-45 (D.C. Cir. 1999). The EPA made such a certification and, thus, a regulatory 

flexibility analysis is not required. In addition, the EPA was not statutorily obligated to convene 

a small business advocacy review panel. The EPA also disagrees with commenters that believe 

the CAA section 111(d) rule for existing power plants is fundamentally different from the 

NAAQS. The EPA continues to assert that the establishment of NAAQS is analogous to 

establishing section 111(d) emission guidelines and that the EPA’s analysis here is consistent 

with the analysis conducted when the EPA establishes NAAQS. As stated in the preamble to the 

proposed rule (79 FR 34946-34947, June 18, 2014) and reaffirmed in the preamble to the final 

rule, the EPA’s rule will not impose any requirements on small entities. Specifically, emission 

guidelines established by the EPA under CAA section 111(d) do not impose any requirements 

(or associated costs) on non-state entities (i.e., existing power plants) and, thus, will not have a 

significant economic impact upon a substantial number of small entities. After emission 

guidelines are promulgated, states establish standards on existing sources, and it is those 

state requirements that could potentially impact small entities.

With regard to commenters’ recommendation that Congress provide oversight of this 

certification under the procedures of the CRA, the EPA will submit a rule report, which includes 

a copy of the rule and other required information, to the U.S. Senate, the U.S. House of 

Representatives and the Comptroller General of the United States prior to publication of the rule 

in the Federal Register, as required by the CRA, 5 U.S.C. 801–808.

With regard to commenters’ concerns that non-power producing small businesses, such as 

industrial and manufacturing facilities that consume electricity, may be required to bear some 
14

compliance burden and that small municipal power systems may be required to bear a significant 

compliance burden, the EPA points out that we do not prescribe how a state must meet the 

emission guidelines. That is, the emission guidelines do not require that non-power producing 

small business-owned facilities or small municipal power systems bear compliance burden. CAA 

section 111(d) creates a partnership between the EPA and the states under which the EPA 

establishes emission guidelines and the states take the lead on meeting them by creating plans 

that are consistent with the EPA emission guidelines. The final rule establishes the BSER 

specifically for affected sources in the form of subcategory-specific performance rates for 

affected EGUs instead of only setting goals for a state. Performance rates are being established 

for two subcategories of affected fossil fuel-fired EGUs – fossil fuel-fired electric utility steamgenerating units and stationary combustion turbines. Each state will determine whether to impose 

source-by-source limitations reflecting the BSER performance rates to each affected EGU or to 

adopt a state measures approach and meet a statewide mass-based goal. A state choosing the 

state measures approach will have the option to place few or no requirements directly on affected 

EGUs. Specifically, the final guidelines are structured so that states are not required to use each 

and every one of the measures that the EPA determines constitute the BSER or to apply any one 

of those measures to the same extent that the EPA determines is achievable at reasonable cost on 

a national basis. Instead, in developing its plan, each state will have the flexibility to select the 

measure or combination of measures it prefers in order to achieve the CO2 performance rates for 

its affected EGUs or meet the equivalent statewide rate- or mass-based CO2 goal.

The EPA recognizes that each state has differing policy considerations – including varying 

emission reduction opportunities and existing state programs and measures – and that the 

characteristics of the electricity system in each state (e.g., utility regulatory structure, generation 

mix and electricity demand) also differ. The final rule gives states the flexibility to implement a 

broad range of approaches that recognize that the power sector is made up of a diverse range of 

companies that own and operate fossil fuel-fired EGUs, including vertically integrated 

companies in regulated markets, independent power producers, rural cooperatives and 

municipally-owned utilities, all of which are likely to have different ranges of opportunities to 

reduce GHG emissions while facing different challenges in meeting these reductions. By 

expressing the application of the final BSER as a source-specific performance standard, and by 

providing a translation of that to statewide rate- and mass-based CO2 goals based on each state’s 

particular mix of sources, the rule allows states the flexibility to determine how to achieve the 

CO2 reductions (i.e., greater reductions from one building block and less from another, as well as 

the adoption of other measures that lower carbon intensity), and to adjust the timing in which 

reductions are achieved, in order to address key issues such as cost to consumers, electricity 

system reliability and the remaining useful life of existing generation assets.

The EPA disagrees with commenters’ assertions that the EPA continues to rely on unfounded 

data to support its regulatory actions, to ignore guidelines covering public transparency of 

science and economic data used to justify new regulations, and to dismiss the impact of its 

actions. Commenters did not provide specific information regarding these assertions. Through 

the public comment process, the public is provided an opportunity to comment on the EPA’s 

proposed action, including technical and economic data and analyses used by the EPA to support 

its proposal.
15

Comment 2: Commenters asserted that the final rule should acknowledge states' discretion to 

address disproportionate cost impacts regulation will have on small utilities.

Commenters said that certain small utilities will be impacted especially hard by the costs and 

related impacts of the Proposed Rule. Commenters said the Proposed Rule, although stating on 

its face that cost-effectiveness is "especially important," does little to provide flexibility for 

certain small utilities to achieve any modicum of cost-effectiveness. Commenters said given the 

small relative size of certain utilities and the relative impact that having very few jurisdictional 

EGUs - even one jurisdictional EGU in many cases - can have on electricity customers, the EPA 

should encourage states to exercise their discretion to address those impacts.

Commenters said the communities served by Deseret's rural cooperative members are sparsely 

populated, and most of the communities lie within counties that are economically at-risk, and 

include especially sensitive tribal communities as well as challenged communities located in 

rugged geographical areas sometimes surrounded by federally protected lands. Commenters said 

these communities are especially vulnerable to fluctuations in electricity rates, with sensitivities 

for already marginal economic development, business development, and relocation particularly 

at risk to price sensitivities. 

Commenters said at the same time, electric reliability and transmission constraints/limits pose 

special threats to some of these communities, many of which are fed through radial transmission 

systems, without significant backup electric generation within the load area should price/cost 

considerations pose potential threats to deliveries of power and energy. 

Commenters said small systems such as Deseret have no large investor base to draw from, as 

Deseret is customer-owned and cooperatively operated; it has no large customer base to which 

increases in operating expenses can be spread. Commenters said in fact, much of the power and 

energy generated by Deseret's generation system has long ago been committed under long-term 

power sales agreement to third-party utilities and Deseret has limited ability to pass through 

increases in costs associated with compliance with the CO2 limits under the Proposed Rule to 

these long-term purchase customers. Commenters said as a result, the increased cost of 

compliance will fall disproportionately on the rural and tribal customers who depend on Deseret 

as sole-source all-requirements supplier. 

Commenters said that state discretion should be acknowledged and encouraged in implementing 

the Proposed Rule to take into account the disproportionate cost-impacts the Proposed Rule will 

have on small utilities, especially those such as Deseret. Commenters emphasized that these 

small utilities have significantly fewer resources at their disposal to comply with the Proposed 

Rule and often there are no alternative electricity suppliers to serve small utilities' customers. 

Commenters said rural cooperatives in particular would be adversely impacted by the 

disproportionate effects the Proposed Rule would have on customers.

Response 2: As pointed out in the previous response, the EPA does not prescribe how a state 

must meet the emission guidelines. That is, the emission guidelines do not require that small 

utilities bear compliance burden. CAA section 111(d) creates a partnership between the EPA and 

the states under which the EPA establishes emission guidelines and the states take the lead on 

meeting them by creating plans that are consistent with the EPA emission guidelines. The final 
16

rule establishes the BSER specifically for affected sources in the form of source categoryspecific performance rates for affected EGUs instead of only setting goals for a state. Each state 

will determine whether to impose source-by-source limitations reflecting the BSER performance 

rates to each affected EGU or to adopt a state measures approach and meet a statewide massbased goal. A state choosing the state measures approach will have the option to place few or no 

requirements directly on affected EGUs. Specifically, the final guidelines are structured so that 

states are not required to use each and every one of the measures that the EPA determines 

constitute the BSER or to apply any one of those measures to the same extent that the EPA 

determines is achievable at reasonable cost on a national basis. Instead, in developing its plan, 

each state will have the flexibility to select the measure or combination of measures it prefers in 

order to achieve the CO2 performance rates for its affected EGUs or meet the equivalent 

statewide rate- or mass-based CO2 goal. 

The EPA recognizes that each state has differing policy considerations – including varying 

emission reduction opportunities and existing state programs and measures – and that the 

characteristics of the electricity system in each state (e.g., utility regulatory structure, generation 

mix and electricity demand) also differ. The final rule gives states the flexibility to implement a 

broad range of approaches that recognize that the power sector is made up of a diverse range of 

companies that own and operate fossil fuel-fired EGUs, including vertically integrated 

companies in regulated markets, independent power producers, rural cooperatives and 

municipally-owned utilities, all of which are likely to have different ranges of opportunities to 

reduce GHG emissions while facing different challenges in meeting these reductions. By 

expressing the application of the final BSER as a source-specific performance standard, and by 

providing a translation of that to statewide rate- and mass-based CO2 goals based on each state’s 

particular mix of sources, the rule allows states the flexibility to determine how to achieve the 

CO2 reductions (i.e., greater reductions from one building block and less from another, as well as 

the adoption of other measures that lower carbon intensity), and to adjust the timing in which 

reductions are achieved, in order to address key issues such as cost to consumers, electricity 

system reliability and the remaining useful life of existing generation assets.

Comment 3: Commenters stated that the supplemental proposal fails to meet the EPA's 

obligations under the RFA.

Commenters noted that the EPA's justification for concluding that this rulemaking will not have 

a significant impact on a substantial number of small entities is that the emissions caps do not 

apply directly to individual entities. Commenters stated that this misinterpretation depends on the 

notion that the agency has satisfied its BSER obligations by announcing high-level emissions 

standards, thus leaving selection of actual "systems of emission reduction" to the states: "states 

establish standards on existing sources, and it is those state requirements that could potentially 

impact small entities." (79 FR at 34947) Commenters stated that this interpretation is mistaken 

for the same reason the agency is incorrect about characterizing emission goals as BSER--

namely, those goals are not BSER, but the "state requirements that could potentially impact 

small entities" are. Commenters stated that the agency has therefore not only failed to meet the 

CAA requirement of identifying BSER but, in so doing, has also failed to comply with the RFA.

Commenters stated that the agency's reliance on American Trucking Associations, Inc. v. EPA, 
17

175 F.3d 1027, 1043-44 (D.C. Cir. 1999), is inappropriate, 79 Fed. Reg. at 34,947, because 

American Trucking concerned the NAAQS system, which specifically calls for local emissions 

caps, accompanied by State Implementation Plans ("SIPs"); it does not include a BSER 

requirement. Moreover, commenters stated that the EPA's argument assumes that states will play 

along and submit their own plans for implementing the proposed rule which was not a concern 

for the NAAQS in American Trucking because of the looming threat that non-participating states 

could lose the federal highway funding or face other penalties. Commenters noted that 

presumably, in instances where states decline to submit a plan, the agency itself will impose the 

very "requirements that could potentially impact small entities," but for which no RFA study has 

occurred. Commenters concluded that the agency was incorrect in assuming that it could sidestep 

the requirements of the RFA by denying any "significant economic impact on a substantial 

number of small entities." 

Commenters stated that the EPA appears to take the position that it is not required to do a full 

analysis under these authorities because its proposal will not directly affect the Uintah-Ouray 

Tribe or the small communities in commenters’ areas. Commenters noted that they do not have 

the authority in place to develop and implement a section 111(d) plan and that, absent changed 

circumstances, the EPA itself will need to implement the requirements set forth in the 

supplemental proposal.

Response 3: The EPA disagrees with commenters’ assertion that the supplemental proposal fails 

to meet the EPA's obligations under the RFA and that the agency's reliance on American 

Trucking Assoc. v. EPA is inappropriate. As previously explained, the RFA generally requires an 

agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment 

rulemaking requirements under the APA or any other statute, unless the agency certifies that the 

rule will not have a significant economic impact on a substantial number of small entities. The 

impact of concern is any significant adverse economic impact on small entities directly regulated 

by the rule. See American Trucking Assoc. v. EPA, 175 F.3d 1029, 1044-45 (D.C. Cir. 1999). 

The EPA made such a certification and, thus, a regulatory flexibility analysis was not required. 

The EPA continues to assert that the establishment of NAAQS is analogous to establishing 

section 111(d) emission guidelines and that the EPA’s analysis here is consistent with the 

analysis conducted when the EPA establishes NAAQS. As stated in the preamble to the proposed 

rule (79 FR 34946-34947, June 18, 2014) and reaffirmed in the preamble to the final rule, the 

EPA’s rule will not impose any requirements on small entities. Specifically, emission guidelines 

established by the EPA under CAA section 111(d) do not impose any requirements (or 

associated costs) on non-state entities (i.e., existing power plants) and, thus, will not have a 

significant economic impact upon a substantial number of small entities. After emission 

guidelines are promulgated, states establish standards on existing sources, and it is those 

state requirements that could potentially impact small entities.

The EPA has appropriately met the CAA requirement of identifying the BSER for the sources 

affected by the final rule. As also previously explained, the final rule establishes the BSER 

specifically for affected sources in the form of source category-specific performance rates for 

affected EGUs instead of only setting goals for a state. Performance rates are being established 

for two subcategories of affected fossil fuel-fired EGUs – fossil fuel-fired electric utility steamgenerating units and stationary combustion turbines. Each state will determine whether to impose 

source-by-source limitations reflecting the BSER performance rates to each affected EGU or to 
18

adopt a state measures approach and meet a statewide mass-based goal. A state choosing the 

state measures approach will have the option to place few or no requirements directly on affected 

EGUs.

Tribes are not required to submit implementation plans under the CAA. With respect to 

comments regarding states that decline to submit 111(d) plans or tribes without authority to 

develop and implement section 111(d) plans, the EPA has initiated a rulemaking for a federal 

plan as a mechanism for implementation of the emission guidelines for those states or tribes that 

do not develop a plan and for which the EPA makes a finding that it is necessary or appropriate.. 

The affected EGUs in the states or areas of Indian country that do not develop a state plan as part 

of the emission guidelines are the entities that will be subject to the federal plan rulemaking. The 

federal plan rulemaking will appropriately assess the direct impacts on those EGUs, including 

those owned by small entities.

Comment 4: Commenters requested that the EPA produce the modeling and cost information 

supporting the RFA analysis for Alaska.

Response 4: The EPA is not setting CO2 emission performance goals for Alaska. See section 

VII.F of the final rule preamble for discussion of geographically isolated states. 

Comment 5: Commenters believed that the EPA needs to provide flexibility to small businesses 

and cooperatives as provided in section 111(d) of the CAA. Commenters asserted that remaining 

useful life and stranded assets are the types of factors that Congress expected states to be able to 

consider in determining what standard of performance to apply to each specific facility within 

their individual borders. Commenters provided an example of a flexibility that could be provided 

for small entities that would allow the entity to continue to operate and pay off its debt over the 

remaining life of the unit and not become a stranded asset. Specifically, the example provided by 

commenters is to allow the state flexibility to require smaller emissions reductions by small 

businesses without punishing the larger entities by increasing their reductions, which, according 

to commenters, would lead to a minor slippage in the state’s goal.

Response 5: As stated above, under the CAA, the states are given the flexibility to design state 

plans that include any measure or combination of measures to achieve the required emission 

limitations. Each state may consider factors such as remaining useful life and stranded assets in 

their determination of the most cost-effective measures that achieve the reductions necessary to 

meet its goal. The final rule gives states the flexibility to implement a broad range of approaches 

that recognize that the power sector is made up of a diverse range of companies that own and 

operate fossil fuel-fired EGUs, all of which are likely to have different ranges of opportunities to 

reduce GHG emissions while facing different challenges in meeting these reductions. By 

expressing the application of the final BSER as a source-specific performance standard, and by 

providing a translation of that to statewide rate- and mass-based CO2 goals, the rule allows states 

the flexibility to determine how to achieve the CO2 reductions (i.e., greater reductions from one 
19

building block and less from another, as well as the adoption of other measures that lower carbon 

intensity), and to adjust the timing in which reductions are achieved, in order to address key 

issues such as cost to consumers, electricity system reliability and the remaining useful life of 

existing generation assets.

9.4 UNFUNDED MANDATES REFORM ACT

Comment 1: Commenters stated that the EPA did not meet its requirements under the Unfunded 

Mandates Reform Act (UMRA).

Commenters noted that the EPA stated in the proposed rule "The EPA has concluded that this 

action may have federalism implications, because it may impose substantial direct compliance 

costs on state or local governments, and the federal government will not provide the funds 

necessary to pay those costs." Commenters stated that this preamble language appears to 

contradict the EPA's rationale in the statutory and executive review of the UMRA and its 

determination that the Act does not apply to this rulemaking. Commenters stated concern that the 

EPA did not fully evaluate the potential impact on state and local governments when stating the 

following: "This proposed rule is also not subject to the requirements of section 203 of the 

UMRA because it contains no regulatory requirements that might significantly or uniquely affect 

small governments." Commenters stated that the EPA must consider the significant costs 

imposed upon the states as well as the adverse impacts on local or small governments and 

requested that the EPA provide appropriate funding to state agencies for the specific 

development, implementation and enforcement of a section 111(d) plan

Commenters stated that the proposed rules are an unfunded mandate and could impose 

substantial direct compliance costs on state and local governments. Commenters noted that even 

though the unfunded mandate has been estimated by the EPA to be below $100 million in any 

one year, they question those estimates and assert that the proposed rules are contrary to the 

UMRA. Commenters stated that the EPA's analysis did not factor in the costs for creating and 

maintaining public databases to fulfill monitoring, reporting and recordkeeping requirements 

when determining whether the proposed rule would result in expenditures of $100 million or 

more for state, local, and tribal governments. Commenters further stated that the federal 

government and state governments cannot afford the monitoring, reporting and record-keeping 

costs associated with this rule, which the EPA estimates to be $68.3 million in 2020.

Commenters stated that the EPA's argument that the proposed rule does not result in 

expenditures of $100 million or more for state, local, and tribal governments, or the private 

sector, in any one year is incorrect and reflects the EPA's efforts to obscure the costs that the 

proposed rule will impose. Commenters stated that the EPA ignored the costs of this rule on the 

private sector and noted that given the national scope and complexity of the proposed rule, the 

private sector expenditures alone will exceed $100 million annually. Commenters stated that the 

EPA touts flexibility in allowing states to develop their own SIPs, yet hides behind state 

responsibility when it comes to the resulting economic impacts of the rule. Commenters likened 

this to mandating 50 outcomes for 50 different states under the guise of flexibility, then 

absolving responsibility for those 50 outcomes and concealing the resulting costs, which 
20

commenters stated is precisely the kind of unfunded mandate that the UMRA was designed to 

prevent. Commenters concluded that the EPA erred in failing to conduct a qualitative and 

quantitative assessment of the costs, as well as identify and consider less costly regulatory 

alternatives as required by the UMRA.

Commenters stated that the EPA insinuates that apart from the requirements for states to develop 

State plans the rulemaking does not impose direct compliance costs upon the states. Commenters 

asserted that the EPA’s PRA estimates demonstrating that costs are below $100 million are 

seriously flawed and disagreed with the EPA’s determination that the costs do not reach 

threshold amounts to trigger the UMRA’s requirements. Commenters noted that the 

EPA acknowledges the expenses incurred by states to develop state plans will not be paid for by

the federal government which amount to an EPA imposition of untold billions of dollars in 

"hidden taxes" in the next 10 years above and beyond those inherent in rising electricity prices 

that the public must eventually pay to state and local taxing authorities. Commenters stated that 

this incredible declaration by the EPA is an attempt to flout the purpose and requirements of the 

UMRA.

Commenters stated that any and all unfunded mandates associated with this proposed rulemaking 

are explicitly rejected by commenters. Commenters stated that if this rule proceeds, the EPA 

should provide adequate funding to the state environmental regulatory agencies from 2015 -

2033 for developing and modifying state plans, tracking progress with state goals, determining 

interim compliance, and writing annual compliance certifications. Commenters stated that 

insufficient Federal resources would equate to an unfunded mandate on the states.

Commenters stated that much of the proposed rule relies on states to develop and implement

state-specific plans and regulate areas that they have not in the past and that states are not staffed 

to implement the rule without additional funding and authority that would need to be 

appropriated through the legislative process.

Commenters stated that Arkansas will require significant resources, which are not available at 

the state level, to develop and implement a successful Plan and needs the EPA to provide 

additional financial resources to facilitate states' abilities to conduct their section 111(d) planning 

and implementation.

Commenters further stated that the EPA must provide financial assistance to help states with the 

development of state or multistate plans.

Commenters stated that the EPA must provide state and local agencies with the significant 

additional resources needed to make the CPP a success. Commenters urged the EPA to build 

upon its strong foundation of pre-proposal dialogue to develop resources to facilitate states' 

abilities to conduct their section 111(d) planning.

Commenters requested that the EPA seek to secure additional federal funding for the states to 

cover the customary portion of costs associated with any new rule, and consider the availability 

of funding support in planning for new obligations. Commenters stated that they understand that 

the Administration is seeking Congressional reallocation of funds from state air quality planning 

budgets for FY2015, but noted that it is important for the EPA to provide states with additional 
21

assistance, not reallocated funding, wherever possible, to help states meet the deadlines and 

obligations proposed under 111(d). Commenters further requested that the EPA include in its 

support of any final rule estimates of both state administrative costs and state direct 

implementation costs (see ECOS Resolution 14-3. Approved September 2014).

Response 1: The EPA disagrees with commenters’ assertion that the EPA did not meet its 

requirements under the UMRA. With regard to one commenters’ statement that the UMRA 

language in the preamble to the proposed rule contradicts the Federalism language in the 

preamble to the proposed rule (79 FR 34947, June 18, 2014), the EPA points out that the 

applicability criteria for UMRA and Federalism are not the same. With regard to Federalism, the 

EPA has concluded that the action may have federalism implications, because it may impose 

substantial direct compliance costs on state or local governments, and the federal government 

may not provide the funds necessary to pay those costs. Specifically, the rule is likely to result in 

the expenditure by state and/or local governments in the aggregate of $25 million or more in any 

one year.

With regard to UMRA, the EPA has concluded that the action is not subject to the requirements 

of section 202 or section 205 of the UMRA. Specifically, the action does not contain a federal 

mandate that may result in expenditures of $100 million or more for state, local and tribal 

governments, in the aggregate, or the private sector, in any one year. The basis for these 

conclusions is that the emission guidelines under CAA section 111(d) do not impose any direct 

compliance requirements on EGU sources. After emission guidelines are promulgated, states 

establish standards for existing sources, and it is those state requirements that impact EGU 

sources, including those owned by state, local and tribal governments and by the private sector. 

The federal mandate associated with these emission guidelines is the burden imposed on states2

to develop, implement, and enforce state plans. The average, annual burden on states during 

2016 through 2018 is estimated to be $35.8 - $58.1 million. Estimated state burden during this 

time period includes activities associated with developing state plans, such as team leadership, 

political outreach, general coordination of state plans, energy and policy analysis, coordination 

between state energy office and air office, modeling, and data analysis.

The EPA has developed projections for the compliance years 2020, 2025, and 2030. State burden 

is estimated to be $13.9 million in compliance year 2020 and $14.8 million in each of the 

compliance years 2025 and 2030. State burden in all three compliance years includes 

implementation activities such as the review and assessment of building blocks used by the state

that contribute to their state reduction goal, possible development of contingency measures, state 

plan revisions, coordination with affected sources, oversight of consumer-based energy 

efficiency programs, and possible public meeting development on state plan revisions. State 

burden in compliance years 2025 and 2030 also includes compilation of quarterly EGU data and 

preparation of a summary of the state program’s progress. The EPA did not include costs for 

states to create and maintain public databases to fulfill monitoring, reporting and recordkeeping 

requirements. The EPA will have in place a central database for states to upload required 

 

2 “State” is defined under UMRA as “a State of the United States, the District of Columbia, a 

territory or possession of the Unites States, and an agency, instrumentality, or fiscal agent of a 

State but does not mean a local government of a State.”
22

information and, thus, there is not a need for state specific databases. With regard to 

commenters’ reference to the proposal’s estimate of $68.3 million in 2020 for monitoring, 

reporting, and recordkeeping, and their statement that federal and state governments cannot 

afford such costs, the EPA points out that the vast majority of the estimated monitoring, 

reporting and recordkeeping cost in that 2020 estimate is the one-time cost to EGUs for 

development of a monitoring system for net energy output to comply with state requirements. As 

previously noted, state burden in 2020 is estimated to be $13.9 million. 

With regard to section 203 of the UMRA, the EPA has concluded that the rule is not subject to 

the requirements of section 203 because it contains no regulatory requirements that might

significantly or uniquely affect small governments. UMRA defines a “small government” as a 

city, county, town, township, village, school district, or special district with a population of less 

than 50,000. Specifically, the emission guidelines impose no direct compliance requirements on 

small governments but, rather, impose a burden on state governments in that they are required to 

develop, implement and enforce state plans. Nevertheless, as explained in the preamble to the 

proposed rule (79 FR 34947, June 18, 2014), in light of the interest among governmental entities, 

the EPA consulted with 10 national organizations representing state and local elected officials 

prior to proposing the emission guidelines.

The EPA points out that, in accordance with Executive Order 12866, Executive Order 13563, 

and the EPA’s “Guidelines for Preparing Economic Analyses,” an RIA was prepared in support 

of the proposed action as well as the final action. The RIA presents the expected benefits, costs, 

and economic impacts of illustrative strategies states may implement to comply with the 

emission guidelines in 2020, 2025, and 2030. Additionally, the RIA includes information on 

potential impacts on electricity markets, employment, and markets outside the electricity sector.

With regard to commenters’ request that funding be provided to state agencies for development, 

implementation and enforcement of their section 111(d) plans, the EPA points out that the 

President’s FY 2016 Budget request recognized that states will play a critical role in the 

successful implementation of the Clean Power Plan. That is why the budget included a $25 

million increase to support states as they implement the requirements of the President’s Clean 

Power Plan. Of this increase, $17.5 million would be provided to support states’ Clean Power 

Plan modeling, technical analysis, and training efforts under CAA section 103 authority and $7.5 

million would be allocated to states for Clean Power Plan activities under CAA section 105 

authority. The President’s FY 2016 Budget also included a $4 billion Clean Power State 

Incentive Fund to support states that choose to go beyond the minimum requirements established 

in the Clean Power Plan for the pace and extent of carbon pollution reductions from the power 

sector.

In addition, other existing sources of funding might be available, such as other funds made 

available under Clean Air Act sections 103 and 105 which could assist with planning generally. 

There are also sources of funding targeted at specific sectors or emissions reductions 

opportunities, such as the Drinking Water State Revolving Fund and Clean Water Revolving 

Loan Fund, which may be able to assist states in reducing water pollution and achieving carbon 

dioxide emissions reductions through demand side energy efficiency measures.
23

Comment 2: Commenters stated that the EPA's broad interpretation of its authority to regulate 

carbon under the CAA unfairly shifts the cost of designing, implementing and enforcing this 

proposed federal rule to the states. Commenters noted that since the EPA has no existing CO2

emission program for electricity generating units, the EPA is also shifting to the states the cost, 

uncertainty and risk of developing a new program. Commenters stated that any proposal that 

shifts such burdens to the states must be accompanied by adequate resources for planning and 

implementation, and these resources should not come at the expense of a state's existing air 

quality programs.

Commenters noted that the EPA proposed to implement this rule through state implementation 

plans that would address such far-reaching topics as re-dispatch of power from coal to natural 

gas generation facilities, new renewable and nuclear generation, and energy efficiency programs. 

However, commenters stated that once approved, these plans would become federally 

enforceable and would conflict with the state's ability to pass timely and responsive legislation to 

protect and enhance its power system. Commenters stated that the EPA's proposed regulation of 

CO2 emissions from EGU's through federally enforceable state implementation plans should be 

abandoned.

Response 2: The EPA’s rule provides states the flexibility to design state plans that include any 

measure or combination of measures to achieve the required emission limitations. The final rule 

establishes the BSER specifically for affected sources in the form of subcategory-specific 

performance rates for affected EGUs – fossil fuel-fired electric utility steam-generating units and 

stationary combustion turbines. Each state will determine whether to impose source-by-source 

limitations reflecting the BSER performance rates to each affected EGU or to adopt a state 

measures approach and meet a statewide mass-based goal. A state choosing the state measures 

approach will have the option to place few or no requirements directly on affected EGUs. 

Specifically, the final guidelines are structured so that states are not required to use each and 

every one of the measures that the EPA determines constitute the BSER or to apply any one of 

those measures to the same extent that the EPA determines is achievable at reasonable cost on a 

national basis. Instead, in developing its plan, each state will have the flexibility to select the 

measure or combination of measures it prefers in order to achieve the CO2 performance rates for 

its affected EGUs or meet the equivalent statewide rate- or mass-based CO2 goal. Thus, the rule 

does not force states to change their energy policies and move away from coal-fired power 

plants. Each state has the flexibility to choose the most cost-effective measures given that state’s 

energy profile and economy, as long as the state achieves the reductions necessary to meet its 

goal. The EPA recognizes that each state has differing policy considerations – including varying 

emission reduction opportunities and existing state programs and measures – and that the 

characteristics of the electricity system in each state (e.g., utility regulatory structure, generation 

mix and electricity demand) also differ. The final rule gives states the flexibility to implement a 

broad range of approaches that recognize that the power sector is made up of a diverse range of 

companies that own and operate fossil fuel-fired EGUs, including vertically integrated 

companies in regulated markets, independent power producers, rural cooperatives and 

municipally-owned utilities, all of which are likely to have different ranges of opportunities to 

reduce GHG emissions while facing different challenges in meeting these reductions. In 

formulating their plans, states will be in a position to recognize the distinctive attributes of their 

government, affected utilities, including small businesses and electric cooperatives, and private 

citizens and to consider compliance strategies to increase flexibility and address key issues such 
24

as cost to consumers, electricity system reliability and the remaining useful life of existing 

generation assets.

With regard to comments regarding resources for state agencies for planning and implementation 

purposes, as pointed out above, the President’s FY 2016 Budget request recognized that states 

will play a critical role in the successful implementation of the Clean Power Plan. That is why 

the budget included a $25 million increase to support states as they implement the requirements 

of the President’s Clean Power Plan. Of this increase, $17.5 million would be provided to 

support states’ Clean Power Plan modeling, technical analysis, and training efforts under CAA 

section 103 authority and $7.5 million would be allocated to states for Clean Power Plan 

activities under CAA section 105 authority. The President’s FY 2016 Budget also included a $4 

billion Clean Power State Incentive Fund to support states that choose to go beyond the 

minimum requirements established in the Clean Power Plan for the pace and extent of carbon 

pollution reductions from the power sector.

In addition, other existing sources of funding might be available, such as other funds made 

available under Clean Air Act sections 103 and 105 which could assist with planning generally. 

There are also sources of funding targeted at specific sectors or emissions reductions 

opportunities, such as the Drinking Water State Revolving Fund and Clean Water Revolving 

Loan Fund, which may be able to assist states in reducing water pollution and achieving carbon 

dioxide emissions reductions through demand side energy efficiency measures.

Finally, in response to states’ and other stakeholders’ requests for guidance from the EPA on 

how to design plans, the agency is proposing this summer a federal plan that will serve as a 

model rule that states can adopt or tailor. Using the model rule could relieve the administrative 

burden on states to design plans. The model rule will provide an example for how to design an 

emissions trading program that is implementable without command-and-control regulatory 

measures such as ordering installation of specific pollution control equipment, ordering redispatch to different fuel sources, building new renewable energy, or operating new energy 

efficiency programs. Further, states may simply choose not to submit a plan and to have a federal 

plan based on the proposed model trading rule promulgated for their affected EGUs rather than 

designing a state plan of their own. Finally, in response to states’ and other stakeholders’ 

requests for guidance from the EPA on how to design plans, the agency is proposing this summer 

a federal plan that will serve as a model rule that states can adopt or tailor. Using the model rule 

could relieve the administrative burden on states to design plans. The model rule will provide an 

example for how to design an emissions trading program that is implementable without 

command-and-control regulatory measures such as ordering installation of specific pollution 

control equipment, ordering re-dispatch to different fuel sources, building new renewable energy, 

or operating new energy efficiency programs. Further, states may simply choose not to submit a 

plan and to have a federal plan based on the proposed model trading rule promulgated for their 

affected EGUs rather than designing a state plan of their own.

Comment 3: Commenters stated that the supplemental proposal fails to meet the EPA's 

obligations under the UMRA and that the EPA appears to take the position that it is not required 

to do a full analysis under these authorities because its proposal will not directly affect the 
25

Uintah-Ouray Tribe or the small communities in commenters’ areas. Commenters noted that they 

do not have the authority in place to develop and implement a section 111(d) plan and that, 

absent changed circumstances, the EPA itself will need to implement the requirements set forth 

in the supplemental proposal.

Response 3: The EPA has initiated a rulemaking for a federal plan as a mechanism for 

implementation of the emission guidelines for tribes (where it makes a finding that it is necessary 

or appropriate), such as the commenters’, that do not have the authority in place to develop and 

implement a section 111(d) plan. The affected EGUs in the areas of Indian country that do not 

develop a tribal plan under the emission guidelines are the entities that will be subject to the 

federal plan rulemaking. The federal plan rulemaking will appropriately address the requirements 

of UMRA with regard to those EGUs.

9.5 EXECUTIVE ORDER 13132: FEDERALISM

Comment 1: Commenters agreed with the EPA that multiple stakeholder calls and meetings 

were held prior to the proposed rule, but noted that during these meetings the EPA did not 

identify its intent to propose "beyond the fenceline" measures in regulating electric generating 

units, providing little time for input on these measures. Commenters stated that the EPA has not 

adhered to the principles and criteria of E.O. 13132 in the following ways:

1. Commenters noted that section 2(f) of the E.O. states, "In the search for enlightened 

public policy, individual states and communities are free to experiment with a variety 

of approaches to public issues. One-size-fits-all approaches to public policy problems 

can inhibit the creation of effective solutions to those problems." Commenters stated 

that the EPA's criteria for establishing state goals utilize a one-size-fits-all approach. 

Commenters noted that there exists significant variation in conditions among the 50 

states and the EPA's one-size-fits-all approach that will inhibit states from developing 

effective solutions creatively.

2. Commenters noted that section 2(g) of the E.O. states, "Acts of the national 

government... that exceed the enumerated powers of that government under the 

Constitution violate the principle of federalism established by the Framers." 

Commenters contended the EPA's proposed rule violates the principle of federalism 

established by the framers by going "beyond the fence line" in controlling CO2 from 

fossil fueled fired power plants.

3. Commenters noted that section 2(i) of the E.O. requires the EPA to be deferential to 

states when taking action that affects the policymaking discretion of the states and act 

with the greatest caution where state and local governments have identified 

uncertainties regarding the constitutional or statutory authority of the national 

government. Commenters stated that the EPA is affecting the policymaking discretion 

of the states and not acting with the greatest caution by proposing a rule that impacts 

state agencies, small businesses, electric coops, and private citizens that have not 
26

before been regulated under the CAA. Commenters believed that it also forces states 

to change their energy policies and move away from reliable and affordable coal-fired 

power plants to unreliable and unaffordable power sources.

4. Commenters noted that section 3(b) of the E.O. states, "National action limiting the 

policymaking discretion of the States shall be taken only where there is constitutional 

and statutory authority for the action .... " Commenters stated that the EPA is not 

adhering to this section because section 111(d) of the CAA limits the EPA's role to 

procedure and not the substance. Commenters noted that by defining the state's 

standard (goal) that a state may not revise, the EPA is exceeding its constitutional and 

statutory authority.

5. Commenters noted that section 3(c) of the E.O. states, "With respect to Federal 

statutes and regulations administered by the States, the national government shall 

grant the States maximum administrative discretion possible. Intrusive oversight of 

State administration is neither necessary nor desirable." Commenters noted that the 

EPA has the authority to approve or disapprove a 111(d) plan and if the EPA 

approves of that plan, the requirements of the plan are federally enforceable and allow 

the EPA oversight. Commenters noted that one of the building blocks involves the 

demand side use of electricity, which if included by a state, allows the EPA oversight 

and enforcement authority over individuals and small business. Commenters stated 

that the U.S. Supreme Court has just ruled this is beyond the EPA's authority under 

the CAA. Section 111(d) was not designed to regulate individuals and small business 

and therefore the EPA's claimed authority to regulate individuals under section 111(d) 

is intrusive federal oversight created by the EPA's coercion of state goal calculations.

6. Commenters noted that section 3(d)(2) of the E.O. states, "When undertaking to 

formulate and implement policies that have federalism implications, agencies shall ... 

where possible, defer to States to establish standards ... " Commenters believed that 

by informing states that once this rule is finalized state goals can no longer be 

adjusted; the EPA is not adhering to this section of the Executive Order. Commenters 

noted that the EPA may state this proposed rule gives states the flexibility to 

demonstrate compliance, but the only flexibility it gives is to follow the EPA's goal to 

shutdown coal-fired power plants.

7. Commenters noted that section 6(b) of the E.O. states, " ... no agency shall 

promulgate any regulation that has federalism implications, that imposes substantial 

direct compliance costs on State and local governments, and that is not required by 

statute, unless: 1) funds necessary to pay the direct costs incurred by the State and 

local governments in complying with the regulation are provided by the Federal 

Government; or 2) the agency, prior to formal promulgation of the regulation, (A) 

consulted with State and local officials ... " Commenters noted that EPA states in the 

preamble that this proposed regulation will require states to expend resources on the 

development and implementation of the program without any funds from the federal 

government. Commenters stated that this is an unfunded mandate upon the states.
27

Response 1: The EPA disagrees with commenters’ statement that the EPA has not adhered to the 

principles and criteria of E.O. 13132. With respect to section 2(f) of E.O. 13132, the EPA 

disagrees with commenters’ assertion that the EPA’s criteria for establishing state goals utilizes a 

one-size-fits-all approach. The EPA provides for variation in conditions that exists among the 50 

states in that the states have the flexibility to design state plans that include any measure or 

combination of measures to achieve the required emission limitations. The final rule establishes 

the BSER specifically for affected sources in the form of specific performance rates for affected 

EGUs instead of only setting goals for a state. Performance rates are being established for two 

subcategories of affected fossil fuel-fired EGUs – fossil fuel-fired electric utility steamgenerating units and stationary combustion turbines. Each state will determine whether to impose 

source-by-source limitations reflecting the BSER performance rates to each affected EGU or to 

adopt a state measures approach and meet a statewide mass-based goal. A state choosing the 

state measures approach will have the option to place few or no requirements directly on affected 

EGUs. Specifically, the final guidelines are structured so that states are not required to use each 

and every one of the measures that the EPA determines constitute the BSER or to apply any one 

of those measures to the same extent that the EPA determines is achievable at reasonable cost on 

a national basis. Instead, in developing its plan, each state will have the flexibility to select the 

measure or combination of measures it prefers, given that state’s energy profile and economy, in 

order to achieve the CO2 performance rates for its affected EGUs or meet the equivalent 

statewide rate- or mass-based CO2 goal.

With respect to section 2(g) of E.O. 13132, the EPA disagrees with commenters’ assertion that 

the EPA’s rule violates the principle of federalism by going "beyond the fence line" in 

controlling CO2 from fossil fueled-fired power plants. By expressing the application of the final 

BSER as a source-specific performance standard that can be imposed on each affected EGU, and 

by providing a translation of that performance standard to statewide rate- and mass-based CO2

goals, the rule allows states the flexibility to determine how to achieve the CO2 reductions. States 

can require greater reductions from one building block and less from another, and, thus, are not 

required to obtain CO2 reductions through any particular measures.

With respect to section 2(i) of E.O. 13132, the EPA disagrees with commenters’ assertions that 

the EPA is affecting states’ policymaking discretion and not acting with greatest caution. As 

discussed in section V.B. of the preamble to the final rule, the EPA has the authority to establish 

the BSER and the resulting emission performance levels, and the structure of this rule does not 

represent over-reaching by the EPA. As previously stated, the EPA’s rule provides states the 

flexibility to design state plans that include any measure or combination of measures to achieve 

the required emission limitations. The final rule establishes the BSER specifically for affected 

sources in the form of subcategory-specific performance rates for affected EGUs – fossil fuelfired electric utility steam-generating units and stationary combustion turbines. Each state will 

determine whether to impose source-by-source limitations reflecting the BSER performance 

rates to each affected EGU or to adopt a state measures approach and meet a statewide massbased goal. A state choosing the state measures approach will have the option to place few or no 

requirements directly on affected EGUs. Specifically, the final guidelines are structured so that 

states are not required to use each and every one of the measures that the EPA determines 

constitute the BSER or to apply any one of those measures to the same extent that the EPA 

determines is achievable at reasonable cost on a national basis. Instead, in developing its plan, 

each state will have the flexibility to select the measure or combination of measures it prefers in 
28

order to achieve the CO2 performance rates for its affected EGUs or meet the equivalent 

statewide rate- or mass-based CO2 goal. Thus, the rule does not force states to change their 

energy policies and move away from coal-fired power plants. Each state has the flexibility to 

choose the most cost-effective measures given that state’s energy profile and economy, as long 

as the state achieves the reductions necessary to meet its goal. The EPA recognizes that each 

state has differing policy considerations – including varying emission reduction opportunities 

and existing state programs and measures – and that the characteristics of the electricity system 

in each state (e.g., utility regulatory structure, generation mix and electricity demand) also differ. 

The final rule gives states the flexibility to implement a broad range of approaches that 

recognize that the power sector is made up of a diverse range of companies that own and operate 

fossil fuel-fired EGUs, including vertically integrated companies in regulated markets, 

independent power producers, rural cooperatives and municipally-owned utilities, all of which 

are likely to have different ranges of opportunities to reduce GHG emissions while facing 

different challenges in meeting these reductions. In formulating their plans, states will be in a 

position to recognize the distinctive attributes of their government, affected utilities, including 

small businesses and electric cooperatives, and private citizens and to consider compliance 

strategies to increase flexibility and address key issues such as cost to consumers, electricity 

system reliability and the remaining useful life of existing generation assets. 

The EPA disagrees with commenters’ overall assertion that the EPA is not adhering to section 

3(b) of E.O. 13132. Specifically, the EPA disagrees with commenters’ inference that the EPA’s 

action limits the policymaking discretion of states and commenters’ assertions that by defining 

the state's standard (goal), the EPA is exceeding its constitutional and statutory authority which 

is limited by section 111(d) of the CAA to the role of providing procedure and not substance. As 

explained immediately above, section V.B. of the preamble explains that the EPA has the 

authority to establish the BSER and the resulting emission performance levels, and that the 

structure of this rule does not represent over-reaching by the EPA. In addition, as also explained 

immediately above, the final rule does not force states to change their energy policies, but gives 

states the flexibility to design state plans that may include a broad range of measures to achieve 

CO2 reductions. 

With respect to commenters’ assertions regarding section 3(c) of E.O. 13132, the EPA points out 

that the final state goals do not include demand-side energy efficiency (building block 4) as a 

component of the BSER. Thus, commenters’ assertion that use of the building block that 

involves demand side use of electricity creates intrusive federal oversight in that it allows the 

EPA oversight and enforcement authority over individuals and small businesses is moot and 

need not be addressed in this response. The EPA disagrees with the commenter’s

characterization of the recent UARG decision. While the court noted that the EPA’s analysis was 

limited so as to not include such programs, the legality of such a requirement as part of a Best 

Available Control Technology determination was not before the court, let alone the legality of 

such programs under the CAA generally. Moreover, the EPA is not regulating non-EGU entities.

The EPA disagrees with commenters’ assertion that the EPA is not adhering to section 3(d)(2) of 

E.O. 13132. As explained above, section V.B. of the preamble explains that the EPA has the 

authority to establish the BSER and the resulting emission performance levels, and that the 

structure of this rule does not represent over-reaching by the EPA. As previously stated, the 

EPA’s rule provides states the flexibility to design state plans that include any measure or 
29

combination of measures to achieve the required emission limitations and, further, does not force 

states to change their energy policies and move away from coal-fired power plants.

With respect to section 6(b) of E.O. 13132, the EPA consulted with state and local officials early 

in the process of developing the proposed regulation. As described in the Federalism discussion 

in the preamble to the proposed standards of performance for GHG emissions from new EGUs 

(79 FR 1501, January 8, 2014), the EPA consulted with state and local officials in the process of 

developing the proposed standards for newly constructed EGUs. This outreach regarded planned 

actions for new, reconstructed, modified and existing sources. The EPA invited the following 10 

national organizations representing state and local elected officials to a meeting on April 12, 

2011, in Washington DC: (1) National Governors Association; (2) National Conference of State 

Legislatures, (3) Council of State Governments, (4) National League of Cities, (5) U.S. 

Conference of Mayors, (6) National Association of Counties, (7) International City/County 

Management Association, (8) National Association of Towns and Townships, (9) County 

Executives of America, and (10) Environmental Council of States. On February 26, 2014, the 

EPA re-engaged with those governmental entities to provide a pre-proposal update on the 

emission guidelines for existing EGUs and emission standards for modified and reconstructed 

EGUs. In addition, as described in section III.A of the preamble to the proposed carbon pollution 

emission guidelines for existing EGUs (79 FR 34845-34847, June 18, 2014), extensive 

stakeholder outreach conducted by the EPA allowed state leaders, including governors, 

environmental commissioners, energy officers, public utility commissioners, and air directors, 

opportunities to engage with EPA officials and provide input regarding reducing carbon 

pollution from power plants. The EPA also included in the preamble to the final regulation, and 

provided to the OMB, a federalism summary impact statement (FSIS). The FSIS consists of a 

description of the extent to which the agency consulted with state and local officials, a summary 

of the nature of their concerns and the agency’s position supporting the need to issue the 

regulation, as well as, a statement of the extent to which the concerns of state and local officials 

have been met. In addition, a list of the state and local government commenters, including the 

docket document identification numbers associated with the comments, has been provided to the 

OMB and has been placed in the docket for the rulemaking.

9.6 EXECUTIVE ORDER 13175, CONSULTATION AND COORDINATION WITH 

INDIAN TRIBAL GOVERNMENTS

Comment 1: Commenters believed that the EPA lacked meaningful government-to-government 

consultation as part of E.O. 13175. Commenters stated that the EPA's outreach to tribes was 

minimal at best, and that no one in the agency contacted commenters directly as required by E.O. 

13175. Commenters stated that significant substantive policy prescriptions are likely to cause 

serious setbacks to their Nation, potentially over multiple generations. Commenters noted that 

the longstanding trust responsibility between the federal government and commenters may be 

violated unless an exception and/or mitigation of the rule is provided to commenters.

Response 1: The EPA appreciates the comments and recognizes the importance of 

understanding the tribes' interests and providing appropriate consultation with tribes in the 
30

development of this rule, consistent with EPA policy and the federal government's trust 

responsibility to all federally recognized tribes. We agree that these guidelines impact tribes and, 

as such, we actively encouraged tribes to participate in the pre-proposal outreach for these 

guidelines. Additionally, we conducted outreach and information sharing on the content of the 

proposal with tribal environmental professionals through the monthly National Tribal Air 

Association (NTAA) calls and held an informational session at the National Tribal Forum (NTF) 

in Anacortes, Washington in May 2014. Furthermore, we held five webinars open to tribal 

environmental professionals; 11 listening sessions held at all ten EPA regions and at EPA 

headquarters in Washington D.C.; four two-day public hearings for the proposed guidelines and 

a public hearing for the supplemental proposal; and three informational meetings (via 

teleconference) targeted specifically to the tribal community.

In addition, we sent out four letters in 2013 and 2014 to all tribal leaders and offered consultation 

on the rule, prior to proposal and after the proposal, to ensure tribes had the opportunity to 

participate in the process. As further recognition of the importance of appropriate consultation 

with tribes in the development of these guidelines, we held (face-to-face) informational meetings 

(2) and government-to-government consultations (10) with tribes requesting consultation on July 

18, 2014 at EPA's Region 8 office in Denver, Colorado; September 15, 2014 in New Mexico; 

and at the Inter Tribal Council of Arizona on November 18, 2014 in Phoenix, Arizona. In 

addition, we held two teleconference government-to-government consultations with other tribes 

as requested and we held government-to-government consultation several more times in 2015.

The concerns raised in these interactions helped us to understand tribes' interests and allowed 

tribes to weigh in on the decisions made on the rule, consistent with EPA policy and federal trust 

responsibilities. Further information on the consultations conducted can be found in the docket 

for this action.

Furthermore, commenters expressed concern about the potential effects on tribal treaty rights. 

Under the U.S. constitution, treaties have the same legal force as federal statutes, and the United 

States' government-to-government relationship with and trust responsibility to federally 

recognized tribes reinforces the importance of honoring these treaty rights. The EPA takes 

seriously its obligation to honor and respect tribal rights and resources protected by treaties. 

While treaties do not expand the authorities granted by the EPA's underlying statutes, we must 

ensure that our actions do not conflict with tribal treaty rights. When implementing programs, the 

EPA strives to enhance protection of tribal treaty rights and treaty-covered resources where we 

have the discretion to do so.

Comment 2: Commenters found that the proposed guidelines have implications to tribes beyond 

those identified by the EPA. Commenters stated that some of these have already been addressed 

under the multistate plans and environmental justice sections of their organization's comments, 

but other implications to tribes could exist such as potential effects on tribal treaty rights. 

Commenters noted that E.O. 13175 requires the EPA to develop an accountability process to 

ensure "meaningful and timely input by development of regulatory policies that have tribal 

implications." Commenters stated that the EPA accomplished this on a number of levels as 

identified in the proposed guidelines, but more needs to be done by the EPA to fulfill the intent 

of E.O. 13175.
31

Response 2: The EPA agrees with commenters that it is important to ensure meaningful and 

timely input in the development of regulatory policies that have tribal implications. As a result, 

the EPA offered consultation to all tribes during the pre-proposal and post-proposal phases of the

rulemaking. The extent of EPA’s outreach and consultation efforts is fully explained in Response 

1 above. Additionally, the EPA will offer consultation to all tribes after this rule is promulgated

to assist them in understanding the implications that implementing this rulemaking may have on 

them. Furthermore, the EPA will be conducting outreach to tribes throughout the implementation 

process.

Comment 3: Commenters noted that the proposed guidelines indicate that the EPA 

organized, encouraged, and attended meetings to discuss multistate planning efforts with the 

rationale for these meeting being that "because the power sector is interconnected and electricity 

generated at power plants crosses state lines, states, utilities, and ratepayers might benefit from 

states working together to address the requirements of the rulemaking implementation." 

Commenters were unaware of any Indian Tribes being invited to participate in any of these 

meetings, which would appear to contradict the EPA's understanding of EGUs located on tribal 

lands that would warrant the involvement of tribes in multistate planning meeting efforts. 

Commenters noted that Indian Tribes can be treated as states under section 301(d) of the CAA 

and as such, there is no reason why the EPA should not have involved them in meetings with 

states concerning multistate planning efforts. Commenters stated that "this lack of consultation is 

compounded by the EPA's request for comments under the proposed rule as to whether a Tribe 

wishing to develop and implement a plan, much like a state, should have the option of including 

the EGUs located in its areas of Indian Country in a multi-jurisdictional plan with one or more 

states."

Response 3: Commenters stated that tribes were not involved in the multi-state planning process. 

The EPA is committed to ensuring that tribes are included in conversations regarding multistate 

planning. In regards to the meetings commenters noted above, the EPA is unaware of any 

meetings organized by the EPA on multi-jurisdictional planning. However, the EPA is aware that 

external organizations have held multi-state planning meetings. Those organizations, and not 

EPA, determined who was invited to participate in those meetings. 

Comment 4: Commenters also noted that in the EPA's promotion of a multistate planning 

approach under the proposed rule, it did not work through the five regional planning 

organizations (RPOs) which the EPA has supported financially in the past. Commenters stated 

that the RPOs have "an established framework and governance, established relationships 

between states and Tribes, and a proven track record of using their combined technical, policy, 

and legal resources and expertise to address air quality issues effectively on a local, regional, and 

national level." Commenters additionally noted that "in some of the RPOs, there is a particularly 

high understanding and respect among state and federal partners about tribal cultural values and 

practices, which would help in implementing the proposed rule across state and tribal borders." 
32

Commenters recommended that the EPA provide sufficient funding to and work closely with the 

existing RPOs to help implement the proposed rule properly and effectively.

Commenters noted that Indian Tribes can be treated as states under section 301(d) of the CAA 

and as such, there is no reason why the EPA should not have involved them in meetings with 

states concerning multistate planning efforts. Commenters noted that this relates to the EPA's 

responsibility to consult with tribes on a government-to-government basis, something that it 

failed to do in this specific case. Commenters stated that this lack of consultation is compounded 

by the EPA's request for comments under the proposed rule as to whether a tribe wishing to 

develop and implement a plan, much like a state, should have the option of including the EGUs 

located in its areas of Indian Country in a multi-jurisdictional plan with one or more states.

Commenters stated that the EPA's outreach to tribes was minimal at best, and that no one in the 

agency contacted commenters directly as required by E.O. 13175. Commenters stated 

that significant substantive policy prescriptions are likely to cause serious setbacks to their 

Nation, potentially over multiple generations. 

Commenters expressed concern that the Navajo Nation president and his carbon plan team have 

not shared with the general Navajo public their plan and that there has been no public hearing 

conducted on the Navajo land. Commenters stated that they do not know if the Navajo Nation 

Council had their input into this plan.

Response 4: Commenters stated that the five regional planning organizations were not involved 

in the multi-state planning process. As stated above, the EPA is committed to ensuring that tribes 

are included in conversations regarding multistate planning. In regards to the meetings 

commenters noted above, the EPA is unaware of any meetings organized by the EPA on multijurisdictional planning. However, the EPA is aware that external organizations have held multistate planning meetings. Those organizations, and not EPA, determined who was invited to 

participate in those meetings. Additionally, the EPA is committed to including all stakeholders 

including tribes in the outreach activities around this rulemaking. As detailed in Response 1 

above, the EPA conducted outreach with tribes in both the pre-proposal and post-proposal stages 

of this rulemaking and we will continue to do so throughout the implementation process. 

Furthermore, the EPA is not aware of what public involvement the Navajo Nation sought, but the 

EPA is not in this action acting on a plan for the Navajo Nation.

Comment 5: Commenters requested additional consultation between the EPA and Indian Tribes. 

Commenters requested consultation to discuss aspects of the EPA's proposed carbon pollution 

emission guidelines for existing stationary sources and the anticipated supplemental EPA 

rulemaking that is important to the Nation. Commenters noted that although the proposed Clean 

Power Plan for Existing Power Plants does not directly affect the existing EGUs located on the 

Navajo Nation- the Navajo Generating Station ("NGS") and the Four Comers Power Plant 

("FCPP") - the EPA's anticipated supplemental rulemaking and planning actions will impact the 

Nation and these two sources. Commenters stated that they are requesting "an opportunity to 

consult with EPA on the emission reduction goals and CAA 111(d) plan options that are most 
33

appropriate for the Navajo Nation." Commenters stated that they are particularly interested in 

discussing: "(1) The timeframe involved for plan submittal for the two sources on the Nation, 

should the Nation pursue development of such a plan; (2) Whether EPA has or will calculate 

emission reduction goals for any areas of Indian Country and when such determination will take 

place; and (3) How EPA envisions the Nation participating in multi-jurisdictional planning with 

states in the implementation of the proposed national guidelines" as impacts of all three topics 

have the potential to adversely affect the Nation. Commenters stated that they would also like to 

discuss the implications of any actions that could require the NGS and FCPP to install additional 

emission controls to meet carbon emission reductions, despite the early retirement of units at 

both sources. Commenters noted that they stand to lose significant economic benefits through 

additional retirement of units, or departure of the sources, if the EPA does not specifically tailor 

its goal-setting and planning to reflect the circumstances listed above. Commenters additionally 

recognized that the proposed rule and the EPA's supplemental goal-setting and planning actions 

for Indian country "may continue to shape the Nation's goals for renewable energy development 

and for maintaining low carbon emissions" and that "flexibility in the goals and planning options 

for carbon dioxide emission reductions are also worth discussing during a consultation meeting."

Response 5:

The EPA recognizes the importance of government-to-government consultation with tribes, 

particularly on issues that may affect EGUs in Indian country. During the development of the 

Carbon Pollution Emission Guidelines for Existing Stationary Sources: EGUs in Indian Country 

and U.S. Territories; Multi-Jurisdictional Partnerships ("Supplemental Proposal"), the EPA held 

government-to-government consultation with the Navajo Nation in Santa Fe, New Mexico on 

September 15, 2014. At that consultation we discussed the issues raised by the Navajo Nation in 

their letter requesting consultation; one issue included how the four building blocks would be 

applied to the Navajo Nation. The EPA presented a summary of the main issues raised during 

consultation in the Supplemental Proposal (see 79 FR 65482 at 65489 and 65502). 

Following publication of the supplemental proposal, the EPA offered consultation to all tribes 

and held government-to-government consultation with the Navajo Nation, as well as other tribes 

as requested, in Phoenix, Arizona on November 18, 2014. In 2015, the EPA twice held further 

government-to-government consultation with the Navajo Nation in Washington, D.C. The EPA 

recognizes that NGS and FCPP are important sources of economic benefit to the Navajo Nation, 

and the EPA remains committed to engaging in government-to-government consultation with the 

Nation, and any other tribes, as requested, on issues related to EGUs located in Indian country.

With regard to Commenters’ specific comments concerning Four Corners Power Plant (FCPP) 

and Navajo Generating Station (NGS), the EPA believes that it should be consistent in its 

approach to setting emission reduction targets for EGUs like FCPP and NGS that operate 

as part of the interconnected system of electricity production and distribution. Consistent with 

this approach, in the final rule, EPA establishes emission performance rates for the four EGUs 

located in Indian country, including FCPP and NGS, and mass- and rate-based performance 

goals for the three affected areas of Indian country, including the Navajo Nation, that were 

derived using the same methodology (the application of BSER) used to derive goals for EGU 

located outside of Indian country. It is not possible to know at this juncture how the final 
34

Emission Guidelines will affect FCPP and NGS, or any other EGU, since that will depend on the 

structure (e.g., participation in a multi-jurisdictional trading program) of any applicable 

implementation plan and how a particular EGU chooses to comply with the requirements of such 

a plan.

Comment 6: Commenters stated that the proposed guideline's promotion of nuclear energy "will 

help increase the amount of waste that could one day be transported across or near Tribal lands, 

and ultimately be stored on lands culturally important to Indian Tribes." Commenters noted that 

nuclear’s promotion as a low- or zero-carbon generation energy source could cause "increased 

pressure on some tribes to open up their lands to uranium mining to support nuclear energy use." 

Commenters noted that the EPA doesn't find that the potential disadvantages of nuclear waste 

relative to fossil fuel-fired generation outweighs nuclear generation's other advantages as an 

element of Building Block 3 and indicated disagreement with the EPA's statement. Commenters 

recommended that the EPA engage in a government-to-government consultation with tribes and 

include other federal agencies such as DOE, to discuss and address the prospective issues of 

transporting and/or storing nuclear waste across or near tribal lands, and legacy waste.

Commenters noted the Nuclear Regulatory Commission actions in September 2014 allowing for 

continued 'temporary' storage of nuclear waste "paving the way for nuclear plant license 

extension do not adequately resolve the critical problem of permanent waste storage." 

Commenters noted that the effects of uranium mining and milling activities from as early as the 

1950s are still unresolved and pose present health risks to these communities in Indian Country. 

Commenters stated that the naturally elevated levels of uranium, selenium, arsenic, and other 

elements associated with mine and mill sites on the Navajo Nation means that the health and 

environmental effects due to exposure to these elements can include lung cancer, bone cancer, 

and impaired kidney function and that until these nuclear legacy issues are adequately addressed, 

"any further expansion in nuclear generating capacity that results in increased nuclear waste 

should not be included in the CPP." Commenters stated that they do not support use of nuclear 

energy, either through extension of existing plant operations or new plant construction as an 

option for meeting state targets. Commenters noted that the EPA identifies nuclear power as a 

low- and zero-carbon generating capacity; however, "nuclear costs, the extensive legacy and 

future environmental issues associated with nuclear power make it an unacceptable option for 

long-term health and environmental sustainability."

Commenters also stated that nuclear power has a longstanding and tragic history of harming 

environmental justice communities to a disproportionate degree. Commenters noted that 

according to a literature survey prepared by the Southwest Research and Information Center, 

more than 1,200 abandoned uranium mines have been documented on the Navajo Nation alone. 

Commenters also noted that seven uranium mills were operated in the State of New Mexico 

between 1947 and 1995, generating more than 90 million tons of radioactive tailings that caused 

extensive radioactive and chemical groundwater contamination. Commenters stated that the EPA 
35

lacks reasonable grounds to continue to characterize nuclear energy as "BSER," given 

the sufficiency of renewable and cost-effective energy technologies that do not have such dire 

and disproportionate effects on Native American communities.

Response 6: The EPA acknowledges the comments and, for reasons discussed in the preamble,

has determined that the BSER for the final rule will not include either of the proposed provisions 

for existing and new nuclear units in the setting of state goals.

Comment 7: Commenters noted that the EPA intends to publish a supplemental proposal to 

establish emission performance goals covering four potentially affected power plants in Indian 

Country: The South Point Energy Center, on Fort Mojave tribal lands within Arizona; the Navajo 

Generating Station, on Navajo tribal lands within Arizona; the Four Corners Power Plant, on 

Navajo tribal lands within New Mexico; and the Bonanza Power Plant, on Ute tribal lands within 

Utah. Commenters acknowledged the EPA's effort to work directly with tribes in this capacity on 

matters pertaining to new regulations. Commenters stated that they plan to review the 

supplemental proposal once it is released for public comment.

Response 7: The EPA published the Clean Power Plan supplemental proposal in the Federal 

Register on November 4, 2014. Comments received on that proposal are also responded to in this 

document.

Comment 8: Commenters noted the key principals of E.O. 13175, which includes ensuring 

meaningful and timely input by tribal officials in the development of regulatory policies that 

have tribal implications and prohibiting regulations with tribal implications unless the agency has 

consulted with tribal officials early in the process of developing a regulation before its formal 

promulgation. Commenters noted that, consistent with E.O. 13175, the EPA and the Community 

have scheduled a consultation meeting for January 15, 2015. Commenters stated they look 

forward to this meeting and reserve the right to supplement their comments following that 

meeting, as part of the consultation process.

Response 8: On October 27, 2014, the EPA sent letters to the leaders of all federally recognized 

tribes inviting consultation on the supplemental proposal. On November 18, 2014, the EPA held 

an informational meeting on the supplemental proposal at the offices of the Inter Tribal Council 

of Arizona and held consultation meetings with several tribes located in Arizona. The Gila River 

Indian Community was unavailable for consultation on November 18, therefore, per their 

request, the EPA conducted consultation with the Gila River Indian Community on January 15, 

2015 (see EPA memo to docket at EPA-HQ-OAR-2013-0602). In addition, Lieutenant Governor 

and Governor-elect Stephen Roe Lewis provided oral testimony at the November 19, 2014 public 

hearing on the supplemental proposal in Phoenix, Arizona and the Gila River Indian Community 

provided comments on the supplemental proposal to the docket on December 19, 2014. The 

EPA’s responses to those comments are provided elsewhere in this document.
36

Comment 9: Commenters appreciated the extensive outreach conducted by the EPA concerning 

the proposed supplemental rule, including the September 15, 2014 and November 18, 2014 

government-to-government consultations with the Navajo Nation and the November 19, 2014 

public hearing. Commenters stated that the proposed supplemental rule showed that the EPA 

reflected upon some of the concerns expressed by commenters during the September 15, 2014

consultation and in commenters’ September 18, 2014 follow-up letter to the EPA and noted that 

the supplemental proposal did in fact acknowledge some of commenters’ concerns.

Response 9: The EPA takes into account all comments received, when developing its 

rulemakings. The EPA is pleased that commenters felt that their concerns were acknowledged in 

the supplemental proposal.

Comment 10: Commenters urged the EPA to continue to provide outreach and consultations to 

tribes even after issuance of the EPA's supplemental proposal.

Commenters noted that the supplemental rule describes that the EPA has hosted webinars, 

listening sessions, teleconferences, outreach meetings, and consultations with tribal 

representatives between June 2013 and September 2014, including members of the Navajo 

Nation, the Ute Tribe, and the Fort Mojave Tribe (all of whom own lands where affected sources 

are located) plus other interested tribes such as the Crow Nation and the MHA Nation. 

Commenters commended the EPA for these consultations, but urged the agency to continue to 

organize meetings not only with tribal officials, but also with tribal community grassroots 

organizations and individual tribal members, per the agency's 2011 Policy. Commenters 

specifically urged the EPA to carefully review the hearing transcript of the Navajo Nation's 

officials as they wish to transition off of fossil fuels for health-related reasons.

Commenters believed that a greater commitment toward tribal outreach and consultation is 

required in order for the EPA to fulfill its obligations under E.O. 13175. Commenters noted that 

the EPA stated that its proposed rule "would not impose substantial direct compliance costs on 

tribal governments that have affected EGUs located in their area of Indian country," but 

disagreed with the EPA's interpretation and stated that consultation is not limited to federal 

actions with financial impacts to tribes. Commenters noted that the EPA's 2011 Policy on 

Consultation and Coordination with Indian Tribes defines actions that are subject to consultation 

which include regulations or rules and policies, guidance documents, and directives. 

Commenters encouraged the EPA to consult with tribal governments to ensure that their 

concerns are addressed per the process discussed in the EPA's Policy on Consultation and 

Coordination with Indian Tribes.

Commenters stated that the EPA did not meaningfully consult with the Crow Nation Tribe, 

which owns merchantable coal deposits, and is one of only three tribes (out of 566 federally 

recognized tribes) for whom the mining of coal burned in electrical generating units is impacted 

by the proposal is a hugely significant piece of the tribal economy. Commenters stated that the 
37

extent of the EPA's outreach was a single letter sent to tribal leaders and that no one in the 

agency contacted the Crow Nation directly for consultation as required by E.O. 13175.

Response 10: The EPA appreciates these comments and recognizes the importance of 

appropriate consultation with tribes in developing this rule, consistent with the federal 

government’s trust responsibility to federally recognized tribes. Under EPA’s 2011 Consultation 

Policy, the agency recognizes its obligations to consult with federally recognized tribes when its 

actions and decisions may affect tribal interests and to involve the public as required by federal 

environmental laws. Tribal officials may request consultation in addition to the EPA’s ability to 

determine what requires consultation. The EPA attempts to honor the tribal government’s request 

with consideration of the nature of the activity, past consultation efforts, available resources, 

time considerations, and all other relevant factors. As proposals and options are developed, 

consultation and coordination is continued, to ensure that the overall range of options and 

decisions is shared and deliberated by all concerned parties, including additions or amendments 

that may occur later in the process. In addition, under EPA’s 2011 Policy, the agency recognizes 

the need to be responsive to the environmental justice concerns of individual tribal members, 

tribal community-based/grassroots organizations and other indigenous stakeholders. 

Commenters stated that the EPA did not meaningfully consult with the Crow Nation Tribe and 

that the EPA’s outreach was a single letter sent to tribal leaders. Under E.O. 13715, the EPA 

takes seriously its obligation to provide tribes with an opportunity to provide meaningful input 

that can be considered prior to the agency deciding whether, how, or when to act on an action. 

To ensure that tribes had the opportunity to participate in the action development process, the 

EPA conducted outreach and information sharing on the content of the proposal with tribal 

environmental professionals through the monthly National Tribal Air Association (NTAA) calls 

and held an informational session at the National Tribal Forum (NTF) in Anacortes, Washington 

in May 2014. Furthermore, we held five webinars open to tribal environmental professionals; 11 

listening sessions held at all ten EPA regions and at EPA headquarters in Washington D.C.; four 

two-day public hearings for the proposed guidelines and a public hearing for the supplemental 

proposal; and three informational meetings (via teleconference) targeted specifically to the tribal 

community.

In addition, we sent out four letters in 2013/2014 to tribal leaders and offered consultation on the 

rule, prior to proposal and after the proposal, to ensure tribes had the opportunity to participate in 

the process. As further recognition of the importance of appropriate consultation with tribes in 

the development of these guidelines, we held (face-to-face) informational meetings (2) and 

government-to-government consultations (10) with tribes on July 18, 2014 at EPA's Region 8 

office in Denver, Colorado (which included government- to- government consultation with four 

members of the Crow Indian Tribe’s legislative branch); September 15, 2014 in New Mexico; 

and at the Inter Tribal Council of Arizona on November 18, 2014 in Phoenix, Arizona. In 

addition, we held two teleconference government-to-government consultations with other tribes 

as requested. Furthermore, the EPA continued to conduct outreach and, in some instances, 

government-to-government consultation after the supplemental proposal was issued. These 

further meetings are detailed in the docket and in responses above. The EPA appreciates these 

comments and recognizes the importance of appropriate consultation with tribes in developing 

this rule, consistent with the federal government’s trust responsibility to federally recognized 

tribes. Under EPA’s 2011 Consultation Policy, the agency recognizes its obligations to consult 
38

with federally recognized tribes when its actions and decisions may affect tribal interests and to 

involve the public as required by federal environmental laws. Tribal officials may request 

consultation in addition to the EPA’s ability to determine what requires consultation. The EPA 

attempts to honor the tribal government’s request with consideration of the nature of the activity, 

past consultation efforts, available resources, time considerations, and all other relevant factors. 

As proposals and options are developed, consultation and coordination is continued, to ensure 

that the overall range of options and decisions is shared and deliberated by all concerned parties, 

including additions or amendments that may occur later in the process. In addition, under EPA’s 

2011 Policy, the agency recognizes the need to be responsive to the environmental justice 

concerns of individual tribal members, tribal community-based/grassroots organizations and 

other indigenous stakeholders. 

Commenters stated that the EPA did not meaningfully consult with the Crow Nation Tribe and 

that the EPA’s outreach was a single letter sent to tribal leaders. Under E.O. 13715, the EPA 

takes seriously its obligation to provide tribes with an opportunity to provide meaningful input 

that can be considered prior to the agency deciding whether, how, or when to act on an action. 

To ensure that tribes had the opportunity to participate in the action development process, the 

EPA conducted outreach and information sharing on the content of the proposal with tribal 

environmental professionals through the monthly National Tribal Air Association (NTAA) calls 

and held an informational session at the National Tribal Forum (NTF) in Anacortes, Washington 

in May 2014. Furthermore, we held five webinars open to tribal environmental professionals; 11 

listening sessions held at all ten EPA regions and at EPA headquarters in Washington D.C.; four 

two-day public hearings for the proposed guidelines and a public hearing for the supplemental 

proposal; and three informational meetings (via teleconference) targeted specifically to the tribal 

community.

In addition, we sent out four letters in 2013/2014 to tribal leaders and offered consultation on the 

rule, prior to proposal and after the proposal, to ensure tribes had the opportunity to participate in 

the process. As further recognition of the importance of appropriate consultation with tribes in 

the development of these guidelines, we held (face-to-face) informational meetings (2) and 

government-to-government consultations (10) with tribes on July 18, 2014 at EPA's Region 8 

office in Denver, Colorado (which included government- to- government consultation with four 

members of the Crow Indian Tribe’s legislative branch); September 15, 2014 in New Mexico; 

and at the Inter Tribal Council of Arizona on November 18, 2014 in Phoenix, Arizona. In 

addition, we held two teleconference government-to-government consultations with other tribes 

as requested. Furthermore, the EPA continued to conduct outreach and, in some instances, 

government-to-government consultation after the supplemental proposal was issued. These 

further meetings are detailed in the docket and in responses above.

Comment 11: Commenters stated that the supplemental proposal fails to meet the EPA's 

obligations under E.O. 13175 and that the EPA appears to take the position that it is not required 

to do a full analysis under these authorities because its proposal will not directly affect the 

Uintah-Ouray Tribe or the small communities in commenters’ areas. Commenters noted that they 

do not have the authority in place to develop and implement a Section 111(d) plan and that, 
39

absent changed circumstances, the EPA itself will need to implement the requirements set forth 

in the supplemental proposal.

Response 11: Under the Tribal Authority Rule (TAR), the EPA will develop regulations where it 

is necessary or appropriate to implement Clean Air Act programs in Indian country. The EPA 

will make that determination at a future time and will provide for consultation at that time.

Comment 12: Commenters stated that the EPA is obligated to consult with the Navajo Nation's 

leaders on a government-to-government basis and noted that the EPA should consult with the 

Navajo Nation during the development of any 111(d) plan for the Navajo Nation. Commenters 

stated that this is consistent with the federal government's trust responsibilities as well as the 

EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 2011). Commenters 

stated that they appreciate the extensive outreach the EPA has conducted in this rulemaking 

process, including its government-to-government consultations with the Navajo Nation on 

September 15, 2014 and November 18, 2014 and noted that the supplemental proposed rule does 

incorporate some of the concerns raised by commenters in the September 15th consultation and 

in commenters’ follow-up letters.

Response 12: The EPA recognizes the importance of government-to-government consultation 

with tribes, particularly on issues that may affect EGUs in Indian country. In January 2015, we 

announced our intention to propose, for public review and comment, a federal plan for meeting 

the goals of the CPP. As we did for the supplemental proposal, the EPA intends to invite 

government-to-government consultation on a federal plan, as well as a finding that it is necessary 

or appropriate to promulgate a federal plan, for affected EGUs on the Navajo Nation. 

Additionally, government-to-government consultation will be an important component of the 

process for any future 111(d) plans of particular applicability in Indian country.

Comment 13: Commenters stated that E.O. 13175 requires the EPA to prepare and provide to 

OMB a tribal summary impact statement as part of its obligation to consult and coordinate with 

Indian tribes which consists of a description of the extent of the agency's prior consultation with 

tribal officials, a summary of the nature of their concerns and the agency's position supporting 

the need to issue the regulation, and a statement of the extent to which the concerns of tribal 

officials have been met. Commenters noted that the supplemental proposal provides a description 

of EPA's consultations with tribal officials and a summary of their concerns, but it does not state 

the agency's position supporting the need to issue the proposal in consideration of the 

aforementioned concerns or explain how tribal officials' concerns have been met. Commenters 

stated that the EPA has not provided this full tribal summary impact statement, and must do so in 

the final rule. Commenters also noted that the EPA's statements to the effect that tribes are not 

required to develop 111(d) plans to implement the emission guidelines for affected EGUs in their 

areas of Indian country unless they seek Treatment in the Same Manner as a State (TAS)

approval to do so, and that the proposal does not directly impose specific requirements on 
40

affected EGUs in Indian country, while accurate, should be supplemented with the additional 

discussion articulating the agency's need for this regulation in a manner that fully considers the 

various concerns expressed by tribal members - not just tribal officials, but also members of the 

community.

Response 13: The EPA will provide a summary impact statement as part of its obligation to 

consult and coordinate with Indian Tribes after the rulemaking is completed.

Comment 14: Commenters stated that although the two power plants, Four Corners and Navajo 

Generating Station, are generating significant profits, the Navajo people continue to suffer from 

extremely high levels of poverty, unemployment, and poor health. Commenters also added that 

one-third of more of the Navajo Nation residents remain without electricity in their homes.

Response 14: The EPA recognizes that commenters have expressed frustration regarding social 

inequities related to the profits generated from the coal-fired power plants on the Navajo Nation, 

and the high levels of poverty, unemployment, poor health, and limited access to electricity on 

the Navajo Nation. We note that NGS and Kayenta Mine are undergoing a process to renew 

various leases and rights-of-way, and that these approvals are federal actions that are subject to 

NEPA. The joint EIS process for NGS and Kayenta Mine is an appropriate venue to raise these 

concerns related to costs, benefits, and the environmental and social justice of coal mining and 

coal combustion on the Navajo Nation, as some of these concerns are beyond the scope of this 

action.

Comment 15: Commenters stated that, although Tribal Nations have access to financial and 

technical assistance with energy efficiency and weatherization through the DOE's Tribal Energy 

Program, more technical and financial assistance would be helpful. Commenters explained that

Tribal Nations stand to benefit significantly from implementing energy efficiency programs, 

which have the direct effect of reducing utility bills and improving quality of life. Commenters 

encouraged the EPA to work with the DOE to evaluate whether these programs will help meet 

the needs of tribes that seek and receive authority to develop implementation plans under the 

supplemental rule. Commenters added that, while energy efficiency programs pay for themselves 

by reducing total system costs, there is a steep learning curve in implementing these programs 

and establishing comprehensive evaluation, measurement and verification protocols, and 

commenters encouraged the EPA to continue its efforts to make technical resources and advisors 

available to tribes so that they may realize all cost-effective energy efficiency opportunities 

among their customers.

Commenters noted that the U.S. Department of Energy's Tribal Energy Program, which provides 

financial and technical assistance for renewable energy and energy efficiency in tribal areas, 

could provide useful support in consulting with tribal governments and with other federal 

agencies to provide guidance and support on ways to address this transition, including 

opportunities for economic diversification, job creation from investments in renewable energy 
41

and energy efficiency, and access to new funding streams such as from the sale of renewable 

energy credits (RECs).

Response 15: As noted in the community and environmental justice considerations section IX of 

the final rule preamble of the CPP, the EPA is encouraging states in the development of their 

state plans to use available tools that help low-income communities (including tribal 

communities) access EE/RE and financial assistance programs. Furthermore, to help all 

stakeholders become aware of programs available to low-income communities, the EPA is 

crafting a guidance document that provides a list of EE/RE and financial assistance programs. 

This guidance document once finalized will be posted on the EPA’s Community Climate 

Protection Portal.

Comment 16: Commenters stated that the TAR does not provide enough reductions and 

therefore protection for tribal lands (AZ-52, NM-34%, tribal only up to 6%). Commenters stated 

that the difference in the two reduction goals amounts to environmental injustice. Commenters

stated that the Navajo Generating Station and the Four Corner Power plants are among the 

largest sources of carbon pollution in Indian country and until now have been allowed to pump 

unlimited carbon pollution. Commenters stated that tribal communities are in the front line of 

climate disruption, threatening the health and eco systems that land-based people depend upon. 

Commenters stated that tribal community deserves an equal and strong carbon power plan that 

protects health and communities.

Response 16: The EPA agrees that tribal communities deserve equal protection under the CAA 

and the TAR. The TAR provides flexibility in how the CAA is implemented in Indian country, in 

that the tribal government may take on all or part of the Act and in meeting the schedules in the 

Act. The TAR requires Tribal Implementation Plans, if the tribe choses to develop one, to meet 

the same requirements as those of the states. The EPA will develop a Federal Implementation 

Plan, if it is necessary or appropriate to do so in the absence of a tribal plan. In addition, in 

setting the goals for the areas of Indian country with affected sources, the EPA tried to balance 

the providing consistency with the state goals, with flexibility for the tribal governments and the 

need to provide for public health and environmental protection. The EPA believes that 

communities will benefit from this final rulemaking because this action directly addresses the 

impacts of climate change by limiting GHG emissions through the establishment of CO2 

emission guidelines for existing affected fossil fuel-fired EGUs. 

In addition to reducing CO2 emissions, the guidelines finalized in this rulemaking will reduce 

other emissions from affected EGUs that reduce generation due to higher adoption of energy 

efficiency and renewable energy. These emission reductions will include SO2 and NOx, which 

form ambient PM2.5 and ozone in the atmosphere, and hazardous air pollutants (HAP), such as 
42

mercury and hydrochloric acid. In the final rule revising the annual PM2.5 NAAQS,3 the EPA 

identified persons with lower socioeconomic status as an at-risk population for experiencing 

adverse health effects related to PM exposures. Persons with lower socioeconomic status have 

been generally found to have a higher prevalence of pre-existing diseases, limited access to 

medical treatment, and increased nutritional deficiencies, which can increase this population’s 

risk to PM-related and ozone-related effects.4 Therefore, in areas where this rulemaking reduces 

exposure to PM2.5, ozone, and methylmercury, persons with lower socioeconomic status will also 

benefit from such emissions reductions. The RIA for this rulemaking, included in the docket for 

this rulemaking, provides additional information regarding the health and ecosystem effects 

associated with these emission reductions.

In addition, in the final rulemaking, the EPA has recognized the interconnected nature of the grid 

in a way that addresses commenters’ equity concern regarding the disparity between the goals for 

different jurisdictions.

Comment 17: Commenters stated that as citizens of a planet that is threatened by global 

warming and ocean acidification from coal being burned, it would be racist and discrimination to 

not require the same rules as to have been promulgated for non-native lands, to not be required 

on Native American lands.

Response 17:

Leading up to this rulemaking, the EPA summarized the public health and welfare effects of 

GHG emissions in its 2009 Endangerment Finding. See section II.A of the final rule preamble of 

the CPP where the EPA summarizes the public health and welfare impacts from GHG emissions 

that were detailed in the 2009 Endangerment Finding under CAA section 202(a)(1).5 As part of 

the Endangerment Finding, the Administrator considered climate change risks to minority 

populations and low-income populations, finding that certain parts of the population may be 

especially vulnerable based on their characteristics or circumstances. Populations that were 

found to be particularly vulnerable to climate change risks include the poor, the elderly, the very 

young, those already in poor health, the disabled, those living alone, and/or indigenous 

populations dependent on one or a few resources. See sections XII.F and G of the final rule 

preamble of the CPP, where the EPA discusses Consultation and Coordination with Tribal 

Governments and Protection of Children. The Administrator placed weight on the fact that 

certain groups, including children, the elderly, and the poor, are most vulnerable to climate-

 

3 “National Ambient Air Quality Standards for Particulate Matter, Final Rule,” 78 FR 3086 (Jan. 

15, 2013).

4 U.S. Environmental Protection Agency (U.S. EPA). 2009. Integrated Science Assessment for 

Particulate Matter (Final Report). EPA-600-R-08-139F. National Center for Environmental 

Assessment – RTP Division. December. Available on the Internet at 

<http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=216546>.

5 “Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) 

of the Clean Air Act,” 74 Fed. Reg. 66,496 (Dec. 15, 2009) (“Endangerment Finding”).
43

related health effects.

The record for the 2009 Endangerment Finding summarizes the strong scientific evidence in the 

major assessment reports by the U.S. Global Change Research Program (USGCRP), the 

Intergovernmental Panel on Climate Change (IPCC), and the National Research Council (NRC) 

of the National Academies that the potential impacts of climate change raise environmental 

justice issues. These reports concluded that poor communities can be especially vulnerable to 

climate change impacts because they tend to have more limited adaptive capacities and are more 

dependent on climate-sensitive resources such as local water and food supplies. In addition, 

Native American tribal communities possess unique vulnerabilities to climate change, 

particularly those impacted by degradation of natural and cultural resources within established 

reservation boundaries and threats to traditional subsistence lifestyles. Tribal communities whose 

health, economic well-being, and cultural traditions that depend upon the natural environment 

will likely be affected by the degradation of ecosystem goods and services associated with 

climate change. The 2009 Endangerment Finding record also specifically noted that southwest 

native cultures are especially vulnerable to water quality and availability impacts. Native 

Alaskan communities are already experiencing disruptive impacts, including coastal erosion and 

shifts in the range or abundance of wild species crucial to their livelihoods and well-being. 

The most recent assessments continue to strengthen scientific understanding of climate change 

risks to minority populations and low-income populations in the United States.6 The new 

assessment literature provides more detailed findings regarding these populations’ vulnerabilities 

 

6 Melillo, Jerry M., Terese (T.C.) Richmond, and Gary W. Yohe, Eds., 2014: Climate Change 

Impacts in the United States: The Third National Climate Assessment. U.S. Global Change 

Research Program, 841 pp. 

IPCC, 2014: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part A: Global and 

Sectoral Aspects. Contribution of Working Group II to the Fifth Assessment Report of the 

Intergovernmental Panel on Climate Change [Field, C.B., V.R. Barros, D.J. Dokken, K.J. Mach, 

M.D. Mastrandrea, T.E. Bilir, M. Chatterjee, K.L. Ebi, Y.O. Estrada, R.C. Genova, B. Girma,

E.S. Kissel, A.N. Levy, S. MacCracken, P.R. Mastrandrea, and L.L. White (eds.)]. Cambridge 

University Press, 1132 pp.

IPCC, 2014: Climate Change 2014: Impacts, Adaptation, and Vulnerability. Part B: Regional 

Aspects. Contribution of Working Group II to the Fifth Assessment Report of the 

Intergovernmental Panel on Climate Change [Barros, V.R., C.B. Field, D.J. Dokken, M.D. 

Mastrandrea, K.J. Mach, T.E. Bilir, M. Chatterjee, K.L. Ebi, Y.O. Estrada, R.C. Genova, B. 

Girma, E.S. Kissel, A.N. Levy, S. MacCracken, P.R. Mastrandrea, and L.L. White (eds.)]. 

Cambridge University Press, 688 pp.
44

and projected impacts they may experience. In addition, the most recent assessment reports 

provide new information on how some communities of color may be uniquely vulnerable to 

climate change health impacts in the United States. These reports find that certain climate change 

related impacts—including heat waves, degraded air quality, and extreme weather events—have 

disproportionate effects on low-income populations and some communities of color, raising 

environmental justice concerns. Existing health disparities and other inequities in these 

communities increase their vulnerability to the health effects of climate change. In addition, the 

studies also find that climate change poses particular threats to health, well-being, and ways of 

life of indigenous peoples in the United States.

As the scientific literature presented above and as the Endangerment Finding illustrates, low 

income populations and some communities of color are especially vulnerable to the health and 

other adverse impacts of climate change. The EPA believes that vulnerable communities will 

benefit from this final rulemaking because this action directly addresses the impacts of climate 

change by limiting GHG emissions through the establishment of CO2 emission guidelines for 

existing affected fossil fuel-fired EGUs. 

In addition to reducing CO2 emissions, the guidelines finalized in this rulemaking would reduce 

other emissions from affected EGUs that reduce generation due to higher adoption of energy 

efficiency and renewable energy. These emission reductions will include SO2 and NOx, which 

form ambient PM2.5 and ozone in the atmosphere, and HAP, such as mercury and hydrochloric 

acid. In the final rule revising the annual PM2.5 NAAQS,7 the EPA identified persons with lower 

socioeconomic status as an at-risk population for experiencing adverse health effects related to 

PM exposures. Persons with lower socioeconomic status have been generally found to have a 

higher prevalence of pre-existing diseases, limited access to medical treatment, and increased 

nutritional deficiencies, which can increase this population’s risk to PM-related and ozonerelated effects.8 Therefore, in areas where this rulemaking reduces exposure to PM2.5, ozone, and 

methylmercury, persons with lower socioeconomic status will also benefit from such emissions 

reductions. The RIA for this rulemaking, included in the docket for this rulemaking, provides 

additional information regarding the health and ecosystem effects associated with these emission 

reductions. 

Additionally, as outlined in the community and environmental justice considerations section IX 

of the final rule preamble of the CPP, the EPA has put a number of conditions in place to help 

ensure that this action will not have potential disproportionately high and adverse human health 

or environmental effects on vulnerable communities. As described in the community and 

environmental justice considerations section of the preamble, the EPA also conducted a 

 

7 “National Ambient Air Quality Standards for Particulate Matter, Final Rule,” 78 FR 3086 (Jan. 

15, 2013).

8 U.S. Environmental Protection Agency (U.S. EPA). 2009. Integrated Science Assessment for 

Particulate Matter (Final Report). EPA-600-R-08-139F. National Center for Environmental 

Assessment – RTP Division. December. Available on the Internet at 

<http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=216546>.
45

proximity analysis, which is available in the docket of this rulemaking and is discussed in section

IX of the final rule preamble.

In addition, in the final rulemaking, the EPA has recognized the interconnected nature of the grid 

in a way that addresses commenters’ equity concern regarding the disparity between the goals for 

different jurisdictions.

Comment 18: Commenters stated that President Obama and his EPA are pushing to clean up the 

oldest and dirtiest power plants all across our nation. Commenters stated that the Navajo 

Generating Station, the nation's only coal power plant where the United States Government is an 

operator, would have been a good place to start; instead the people of the Navajo Nation will be 

left breathing poisons for another three decades.

Commenters stated that NGS is the largest coal-fired power plant on the Colorado Plateau, and 

one of the 10 biggest polluters in this country and after years of delay, rather than holding the 

federal owners to the requirements of the CAA, EPA Administrator McCarthy caved. 

Commenters stated that the health and cultural integrity of people whose homelands surrounds 

the power plants is being compromised for the sake of coal jobs and cheap power to pump the 

Colorado River. 

Commenters stated that animals and crops are directly impacted by the pollution emitted from 

this 40 year-old generating station and people are not only breathing in the pollution but are also 

ingesting the toxins that fall upon the vegetation, crops, and animals. 

Commenters stated that the EPA was supposed to clean up NGS's emissions within five years. 

Administrator McCarthy should have acquired the federal operator, the U.S. Bureau of 

Reclamation, to cut smog forming nitrogen oxide currently spewing from the stacks by 85 

percent by 2020. 

Commenters stated that those improvements would have ended generations of disproportionate 

health impacts to people from the plant's pollution, and clear up hazy vistas in the Grand Canyon 

National Park. Commenters stated that the EPA watered down the CAA requirements and 

adopted a plan to let the power plants to keep polluting until 2044, continuing a legacy of 

asthma, bronchitis, and choking haze. 

Commenters stated that ending the United States' Government's interest in this dirty coal plant 

would have also spurred needed investment in renewable energy on tribal lands and keep water 

flowing to every thirsty metropolitan areas, benefiting the Arizonians and commenters’

community.

Response 18: This comment is referring to the EPA’s Federal Implementation Plan for NGS 

under the Regional Haze Program, which is an action that is unrelated to the proposed Clean 

Power Plan. The EPA notes that the comment period for the Regional Haze FIP for NGS closed 

in January 2014 and the EPA responded to comments and took final action on August 8, 2014 

(79 FR 46514). The EPA’s FIP for NGS establishes a cap in NOx emissions from NGS over 

2009 to 2044 and requires the operator of NGS to implement one of several alternative operating 

scenarios to comply with the emission cap. Generally, the alternative operating scenarios require 
46

NGS to close one unit at NGS, or curtail electricity generation by a similar amount, in 2019, and 

to meet a NOx emission limit that is achievable with the installation of selective catalytic 

reduction (SCR) on two units in 2030. When fully implemented, this final action requires over an 

80 percent reduction in NOx emissions from NGS and is expected to significantly reduce the 

impact of NGS on visibility at 11 mandatory Class I Federal areas.

Comment 19: Commenters stated that the fossil fuel industry holds them back from going into 

other forms of economic development that builds off a traditional economy, and is more 

sustainable and in line with traditional values and teachings such as improve the wool industry, 

how to build traditional food economy backup to provide for people, and how to promote 

renewable energy in these areas. 

Commenters stated that there are precious resources that we need to use for other things besides 

fossil fuel, power plants, and coalmines.

Commenters stated that the Navajo Nation are economic hostages to the fossil fuel industry and 

it's been set up this way. Commenters stated that this supplemental proposal is another example 

of that because it's believe off of this false dichotomy between environmental protection, 

protections of human health, and jobs and economy. Commenters stated that it is a form of 

environmental racism and that's why most Navajo communities continue to bear the brunt and all 

the negative impacts of this industry while down here, its cheap electricity, cheap water, 

economic prosperity, housing going up all over the place, all over the city. 

Commenters asked why they have to continue to bear these negative impacts and miss out on this 

very rare moment in which the EPA is actually able to mandate and enforce, and when the actual 

polluters pay for what they're doing. 

Commenters stated that the EPA laws that it is enforcing now are a very important way to break 

out of this position and while the EPA has consulted with tribal leaders they don't necessarily 

represent us because they're operating from this economic hostage mentality in which their focus 

is on providing more than the 1,000 jobs that these coal industries provide.

Commenters stated that it is the EPA's obligation to not only consult with the tribes, tribal 

governments, but also with our own people, transition away from fossil fuels, enforce these 

regulations, the same on the Navajo Nation as every other place in the United States. 

Response 19: The EPA agrees that it is equally important to ensure that we not only consult with 

tribal governments but also with members of Indian Nations. The EPA recently released its EJ 

policy on tribes and indigenous people located at: 

https://www.epa.gov/compliance/ej/indigenous/index.html. 

This policy acts to clarify and integrate environmental justice principles in a consistent manner in 

the agency’s work with federally recognized tribes and indigenous peoples throughout the United 

States, and with others living in Indian country to protect their environment and public health. 

As mentioned before, the EPA believes that vulnerable communities will benefit from this final 

rulemaking because this action directly addresses the impacts of climate change by limiting 
47

GHG emissions through the establishment of CO2 emission guidelines for existing affected fossil 

fuel-fired EGUs. 

In addition to reducing CO2 emissions, the guidelines finalized in this rulemaking would reduce 

other emissions from affected EGUs that reduce generation due to higher adoption of energy 

efficiency and renewable energy. These emission reductions will include SO2 and NOx, which 

form ambient PM2.5 and ozone in the atmosphere, and HAP, such as mercury and hydrochloric 

acid. In the final rule revising the annual PM2.5 NAAQS,9 the EPA identified persons with lower 

socioeconomic status as an at-risk population for experiencing adverse health effects related to 

PM exposures. Persons with lower socioeconomic status have been generally found to have a 

higher prevalence of pre-existing diseases, limited access to medical treatment, and increased

nutritional deficiencies, which can increase this population’s risk to PM-related and ozonerelated effects.10 Therefore, in areas where this rulemaking reduces exposure to PM2.5, ozone, 

and methylmercury, persons with lower socioeconomic status will also benefit from such 

emissions reductions. The RIA for this rulemaking, included in the docket for this rulemaking, 

provides additional information regarding the health and ecosystem effects associated with these 

emission reductions.

Comment 20: Commenters stated that the proposed emissions reduction of four percent for both 

the Peabody and NGS power plants is severely insufficient and a racial, social environmental 

injustice and also discrimination. Commenters stated that the EPA knows that Native Americans 

suffer the worst pollution everywhere in the U.S., are perplexed that the agency is not doing 

better, and as many people have voiced their concerns here today, they do not benefit. 

Commenters referred to an ASU economic study which failed to account for the fact that the 

plant workers and the coal mine workers mostly live off reservation, so the money they earn does 

not come back to the nation at all. Commenters emphasized that nothing is ever -- hardly ever 

purchased on the reservation; most of the payroll from the workers at those plants is spent off the 

reservation, so the EPA must stop saying that because it is very erroneous. 

Commenters wished that the EPA and all the plant owners and APS, SRP, BOR would take into 

consideration the high cost of health that this imposes on the people and the commenters. 

Commenters stated that the government is always talking about how it has to cut back and that 

funding these Native American tribes are, too high. Commenters stated that the government 

could save a lot of money by cleaning up these power plants the right way and on time, rather 

than waiting 30 years as well as the coal mine which is taking and abusing contaminating 

precious water supplies. Commenters stated that Maricopa County has the highest number of 

golf courses while Navajo are still hauling water in 55 gallon barrels; that's a severe injustice.

 

9 “National Ambient Air Quality Standards for Particulate Matter, Final Rule,” 78 FR 3086 (Jan. 

15, 2013).

10 U.S. Environmental Protection Agency (U.S. EPA). 2009. Integrated Science Assessment for 

Particulate Matter (Final Report). EPA-600-R-08-139F. National Center for Environmental 

Assessment – RTP Division. December. Available on the Internet at 

<http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=216546>.
48

Commenters stated people have illnesses and thought that 4 percent for both power plants by 

2030 is ridiculous and is protecting the owners and their pocketbooks no the people.

Response 20: The EPA believes that vulnerable communities will benefit from this final 

rulemaking because this action directly addresses the impacts of climate change by limiting 

GHG emissions through the establishment of CO2 emission guidelines for existing affected fossil 

fuel-fired EGUs. 

In addition to reducing CO2 emissions, the guidelines finalized in this rulemaking would reduce 

other emissions from affected EGUs that reduce generation due to higher adoption of energy 

efficiency and renewable energy. These emission reductions will include SO2 and NOx, which 

form ambient PM2.5 and ozone in the atmosphere, and HAP, such as mercury and hydrochloric 

acid. In the final rule revising the annual PM2.5 NAAQS,11 the EPA identified persons with lower 

socioeconomic status as an at-risk population for experiencing adverse health effects related to 

PM exposures. Persons with lower socioeconomic status have been generally found to have a 

higher prevalence of pre-existing diseases, limited access to medical treatment, and increased 

nutritional deficiencies, which can increase this population’s risk to PM-related and ozonerelated effects.12 Therefore, in areas where this rulemaking reduces exposure to PM2.5, ozone, 

and methylmercury, persons with lower socioeconomic status will also benefit from such 

emissions reductions. The RIA for this rulemaking, included in the docket for this rulemaking, 

provides additional information regarding the health and ecosystem effects associated with these 

emission reductions.

Comment 21: Commenters stated that they have two major power plants, and both are major 

polluters in the country and the only thing that separates them is an invisible boundary of 

reservation and a river, 10 to 15 miles apart from one another. Commenters stated that the Four 

Corners area, where commenters live in, holds the highest carbon pollution in the entire country 

with those two power plants 15 minutes apart from one another, both emitting a carbon factor of 

25.3 metric tons of carbon pollution in the Four Corners area. Commenters stated that the Four 

Corners Power Plant is one of the oldest and dirtiest power plants in the entire country.

Commenters stated that it would be an injustice not to implement stronger measures for the Four 

Corners Power Plant, just as our stateside neighbors at the San Juan Power Plant are going to 

have implemented on them. Commenters stated that to curb the carbon pollution on one and not 

the other makes no logical sense. 

Response 21: The response to this comment is addressed elsewhere in this section.

 

11 “National Ambient Air Quality Standards for Particulate Matter, Final Rule,” 78 FR 3086 

(Jan. 15, 2013).

12 U.S. Environmental Protection Agency (U.S. EPA). 2009. Integrated Science Assessment for 

Particulate Matter (Final Report). EPA-600-R-08-139F. National Center for Environmental

Assessment – RTP Division. December. Available on the Internet at 

<http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=216546>.
49

9.7 EXECUTIVE ORDER 13045, PROTECTION OF CHILDREN FROM 

ENVIRONMENTAL HEALTH RISKS AND SAFETY RISKS

Comment 1: Commenters stated that it is essential that a greater importance be placed on the 

value to providing children with a healthy future and, as the agency proceeds with the 

rulemaking, it assures that the agency’s policy to consistently and explicitly consider the risks to 

infants and children is followed.

Commenters further stated that climate change presents major challenges to the health and

welfare of children because it exacerbates existing environmental problems and has detrimental 

effects on air quality. Commenters asserted that children are especially vulnerable to the effects 

of air pollution because the airways of young children are smaller than those of adults and, thus, 

inhalation of air pollutants that would produce only a slight respiratory response in an adult can 

result in potentially significant obstruction in the airways of a young child. Commenters 

explained that children breathe more rapidly and inhale more pollutants per pound of body 

weight than adults, and they often spend more time engaged in vigorous outdoor activities.

Commenters also explained that because of their developing organs, children are at risk due to 

poor air pollution of all kinds, but especially the CO2 and global warming.

Commenters urged the agency to adopt stronger standards and suggested that the agency 

consider timing with regard to the impact on children's health, in addition to timing with regard 

to the determination of BSER. Commenters said that children are more vulnerable than adults 

and, as a result of their developing bodies, are more susceptible to environmental contaminants. 

Commenters added that it is imperative that effective emissions reductions be implemented as 

expeditiously as possible since achieving the greatest portion of the emissions reductions in the 

least amount of time would be most beneficial for the health of children.

Response 1: E.O. 13045 requires agencies to identify and assess health and safety risks that may 

disproportionately affect children and ensure that activities address disproportionate risks to 

children. Protecting children’s health from environmental risks is fundamental to the EPA’s 

mission. Accordingly, the agency has evaluated the environmental health and welfare effects of 

climate change on children. In the preamble to the final rule, the EPA summarizes the 

assessment literature cited in the EPA’s 2009 Endangerment Finding, which concluded that 

certain populations and life stages, including children, the elderly, and the poor, are most 

vulnerable to climate-related health effects. We also describe the assessment literature since 

2009, which strengthens these conclusions by providing more detailed findings regarding these 

groups’ vulnerabilities and the projected impacts they may experience.

For the final rule, the EPA has followed the CAA in determining the BSER and establishing CO2

emission performance rates for the two categories of affected EGUs that reflect the BSER. We 

have also established a timeframe for achievement of those reductions that will result in 

meaningful reductions of CO2 emissions from the utility power sector while maintaining electric 

system reliability and affordable electricity. The EPA believes that the CO2 emission reductions 

resulting from implementation of the final guidelines, as well as substantial ozone and PM2.5 

emission reductions as a co-benefit, will further improve children’s health.
50

9.8 EXECUTIVE ORDER 13211, ACTIONS CONCERNING REGULATIONS THAT 

SIGNIFICANTLY AFFECT ENERGY SUPPLY, DISTRIBUTION, OR USE

Comment 1: Commenters stated that EPA did not meet its requirement to fulfill E.O. 13211 

when proposing the Clean Power Plan.

Commenters cited OMB Memorandum 01-2717, regarding implementation of E.O. 13211, 

where the memorandum details what constitutes a "significant adverse effect" under E.O. 13211 

Section 2(b). Commenters stated that the Statement of Energy Effects offered by EPA in the 

Federal Register and the very limited discussion in the RIA did not constitute a "detailed 

statement" of the "numerous adverse effects of this rule in two dimensions" as required by E.O. 

13211. Commenters stated that "EPA's statement does not provide any regional or local impacts 

of the proposed rule" and that "while noting that electricity prices will increase by four to seven 

percent and that natural gas prices will increase by eight to twelve percent, EPA does not 

reference the regional and local impacts of these changes." Commenters additionally stated that 

"EPA's Statement of Energy Effects for this action notes a "16 to 22 percent reduction in coalfired electricity generation", but does not reference the change in U.S. coal production. 

Commenters noted that EPA omitted reference to its own projections that this rule will reduce 

U.S. coal production by 20 to 27 percent in 2020 which, according to the EIA's Annual Energy 

Outlook 2014 estimates, is a reduction of between 217 and 291 million tons of coal annually--at 

least 40 times greater than the 5 million ton reporting threshold required by OMB Memorandum 

01-27. Commenters urged EPA to expand its statement and provide more detail on these impacts, 

and noted that any final rule should include this detail as well as address alternatives that 

mitigate regional and local impacts of the rule.

Commenters stated that EPA has "focused on speculative and in fact utterly unproven "benefits" 

while turning a blind eye to the clear and palpable economic harms, particularly the steep 

increase in electricity rates that low-income ratepayers will not have the financial ability to 

afford" and that EPA cannot refuse to consider these relevant costs. Commenters noted that 

although EPA finds that the national average electricity rate will increase only between 5.9 and 

6.6 percent in 2020 under the Proposed Rule, EPA's approach is flawed since EPA commingles 

rates for coal-dependent states with those for coal-independent states which produces an overall 

mean rate figure that is not representative of what occurs in either type of state. Commenters 

noted that some coal-dependent states could see an increase of up to 30 percent which has a 

consider effect on low-income populations in the state. Commenters stated that EPA does not 

conduct an analysis of any financial impact that price increases resulting from the Proposed Rule 

will have on low-income ratepayers and accordingly, EPA has no basis for assuming that the 

conjectural "benefits" of the Proposed Rule will outweigh its certain costs on low-income 

ratepayers.

Response 1: The EPA conducted a thorough analysis of the energy impacts of the CPP as 

required by E.O. 13211. The results of this analysis are reported in the preamble and the RIA for 

the proposed and final emission guidelines. The EPA used the Integrated Planning Model (IPM), 
51

developed by ICF International, to conduct its analysis of the potential impacts of the emission 

guidelines on the electricity and fuel input markets such as natural gas and coal. IPM is a 

dynamic linear programming model that can be used to examine air pollution control policies for 

CO2, SO2, NOX, Hg, HCl, and other air pollutants throughout the United States for the entire 

power system. The IPM analysis is complemented by an analysis of the cost and scope of 

reductions in electricity demand that can be achieved through energy efficiency programs. 

Projected impacts of the CPP on electricity generation and fuel input markets such as coal and 

natural gas are reported in chapter 3 of the RIA. Given the flexibilities afforded states in 

complying with the emission guidelines, the benefits, cost and economic impacts reported in the 

RIA are not definitive estimates, but are instead illustrative of compliance actions states may 

take. 

Energy and economic impacts are evaluated on a regional as well as national basis. For example 

in chapter 3 of the RIA, the EPA reports expected retail electricity price changes as a result of 

the illustrative emission guidelines option for the 22 regions evaluated by IPM as well as 

national estimates. Retail price estimates for electricity embody generation, transmission, 

distribution, taxes, and utility demand-side energy efficiency program costs. Thus differences in 

coal dependencies in the regions are reflected in the price change estimates. IPM modeling 

projects changes in regional wholesale power prices and capacity payments related to imposition 

of the represented policy that are combined with EIA regional transmission and distribution costs 

to calculate changes to regional retail prices. As described in Chapter 3 of the RIA, the utility 

funding for demand-side energy efficiency programs (to cover program costs) is typically 

collected through a standard per kWh surcharge to the ratepayer and the regional retail price 

impacts assume that first-year costs of these policies are recovered by utilities in retail rates. 

There are many factors influencing the estimated retail electricity price impacts, namely 

projected changes in generation mix, fuel prices, and development of new generating capacity. 

Projected price changes by region are reported in section XI of the final rule preamble of the 

CPP and Chapter 3 of the RIA. Price change estimates vary regionally in response to the goals, 

and they also vary depending upon retail electricity market structure (e.g., cost-of-service vs. 

competitive). It is important to note that energy efficiencies may lead to lower consumption of 

electricity and average bills paid by customers are expected to decline upon full implementation 

of CPP rather than increase. The EPA addresses the impact of the guidelines on low income 

populations in sections 8.6 and 9.10 of this Response to Comments document.

9.9 NATIONAL TECHNOLOGY TRANSFER AND ADVANCEMENT ACT

No comments were received on this topic.
52

9.10 EXECUTIVE ORDER 12898, FEDERAL ACTIONS TO ADDRESS 

ENVIRONMENTAL JUSTICE IN MINORITY POPULATIONS AND LOW-INCOME 

POPULATIONS

Analysis

Comment 1: Commenters recommended that the EPA conduct a thorough environmental justice 

analysis of the proposed rule, which quantifies emissions reductions and co-benefits while 

stating where these reductions occur, and make it a required part of the planning process for state 

implementation plans. Commenters stated that the EPA needs to conduct a proper environmental 

justice analysis as required under Executive Order 12898 in order to address concerns and 

protect the welfare of minority and low-income communities, especially those located next to 

power plants. Commenters recommended that the EPA conduct an Environmental Justice 

analysis of the same standard as the one conducted for the Definition of Solid Waste Rule, which 

the EPA had described as the "gold star" standard, on this rule prior to its promulgation. 

Commenters asked that in the final rule accompanying EPA guidance, the EPA should include 

language that recognizes and considers potential disparate impacts the rule may have on 

environmental justice communities, and direct states to identify environmental justice 

communities and where there are potential disparate impacts, and take steps to avoid or mitigate 

those disparate impacts.

Commenters stated that the EPA could follow the 6-step approach used in the DSW Rule to 

define the parameters of the environmental justice analysis to be prepared after state plan 

submission and before approval. Commenters said that the EPA can readily perform Step 1, 

Hazard characterization, at this time by assessing the co-pollutant implications of the generic 

application of Building Blocks 1 and 2 to coal-fired and gas-fired plants that are sited in areas 

where minority and low income communities reside. Commenters stated that the EPA could also 

perform Steps 2 and 3, identifying potentially affected communities and collecting demographics 

of potentially affected communities, to construct its guidance to states, but may require them to 

provide specific information. Commenters suggested that the EPA can complete these steps by 

getting unit-level data for select plants with large nameplate capacity or high capacity factors, or 

plants in coal- or gas-heavy states (which may apply Building Blocks 1 and 2) and assess their 

emissions of CO2 and criteria air pollutants by mapping the facilities against demographics of the 

surrounding communities and finding out whether communities with a high percentage of 

Environmental Justice populations are located near these plants. Commenters noted that 

the focus on specific pollutants, however, does not account for cumulative effects on minority 

and low income populations from a variety of environmental hazards such as industrial facilities, 

landfills, poor housing, leaking underground tanks, pesticides, and incompatible land uses. 

Commenters noted that the EPA has undertaken significant efforts to develop research on 

cumulative impacts, and should draw from this research in assessing the potential cumulative 

impacts of the proposed rule. Commenters stated that if the EPA found environmental justice 

impacts from the general application of Building Blocks 1 and 2 to these plants, the agency 

should, to the extent practicable, incorporate in the final rule a range of additional measures that 

states can incorporate in their plans to mitigate these impacts such as requiring affected sources 

to site additional monitors in locations where minorities and low-income communities reside to 

address any risks of increased exposure to air pollutants.
53

Commenters stated that while they contend that all rulemaking should involve an analysis of the 

impacts on EJ communities, this requirement should not be mandated on the states, which do not 

have the appropriate staff and financial resources to conduct such analyses, and instead, 

recommended that the EPA evaluate the impacts a proposed rule would have on low-income and 

minority communities as a standard element of the rulemaking process and should work closely 

with the states to thoroughly and meaningfully address EJ issues during development of a rule. 

Commenters stated that the EPA should work with all applicable federal public health partners to 

thoroughly consider all pollutants and their environmental and health impacts before a rule is 

proposed.

Commenters noted that the EPA should not rely solely on reservation boundary maps or census 

records when conducting an environmental justice analysis, because these may not accurately 

reflect all tribes that have interest in a given area. Commenters stressed that disadvantaged 

communities living on Native reservations are highly affected by rising electricity prices, 

pollution from power generating plants, and the effects of climate change. Commenters noted 

that residents of the Navajo Nation have previously asked the federal government to assess the 

health impacts of the Four Corners Generating Station, but no study has been done to date and 

stated that the EPA should undertake this task as part of its environmental justice analysis of the 

supplemental rule. Commenters noted that because territories are treated as states under the 

CAA, the EPA could require Puerto Rico and Guam to perform an environmental justice analysis 

as a component of their implementation plans, and use that information to perform its own 

expanded analysis prior to plan approval. Commenters noted that tribes, however, are sovereign 

nations, and the EPA may not be able to directly require such an analysis from tribes that seek 

TAS approval, unless those tribes provide evidence that they are able to do so as part of their 

application and the EPA may therefore need to develop the tribal environmental justice analysis 

on its own.

Commenters stated the EPA should also mandate that states use whatever tools at their disposal, 

and their best science to identify the regulated entities in their state, understand the sociodemographic make-up of the communities around those facilities, take stock of the other 

environmental pollution sources within the defined community (addressing cumulative impacts), 

and analyze the cost and benefits to EJ communities of potential mitigation strategies, including 

the state plans developed pursuant to the EPA's Clean Power Plan. 

Commenters stated that the EPA should employ analyses using the same baseline and regulatory 

option scenarios conducted in support of the rule to determine distributional impacts using the 

pending draft Environmental Justice Technical Review Guide. Commenters noted that this 

analyses should include modeling potential changes in co-pollutants and GHGs due to shifts in 

load capacities across geographic regions, conducting cumulative impact assessments to 

determine the effects of projected increases in frequency of periods of high concentration; and 

benefit-cost and economic impact analyses to assess the distributive impacts of all proposed 

options including efficiency and renewable implementation options proposed should be 

conducted in support of the rule. Commenters stated that if the proposed rule would result in 

environmental or socio-economic impacts, or would add to cumulative impacts to minority and 

low-income populations that already face environmental hazards, the EPA should include 

measures to avoid or mitigate these impacts in the final rule but if, after performing the analysis, 

no such impacts would result, the agency should adequately support the basis of its conclusions.
54

Commenters noted that the EPA concluded that local air quality, as a result of the rule, is likely 

to be affected very little. Commenters stated that the EPA did not conduct an adequate analysis 

to determine if co-pollutants will increase in the local areas with increased gas-fired plant 

utilization. Commenters stated that as one of the most significant rules promulgated by the EPA 

to address the significantly challenging environmental and human health threat of climate 

change, the EPA should not base such determinations on "assumptions"; rather the EPA should 

base such determinations of potential environmental justice effects using informed best practice 

methodologies. 

Commenters also asked that, in addition to conducting a thorough environmental justice analysis, 

the EPA should provide a proximity analysis of all the impacted facilities that details the location 

of permitted/affected EGUs and Natural Gas Combined Cycle Plants (NGCC)s, that includes the 

current emissions profile, review of the community demographics, other permitted sources in the 

1 to 3 mile buffer zone, the prevalence of asthma and/or other related/recorded health outcomes 

in the impacted community, and other key variables before or by the time the final rule is 

completed. Commenters noted that this type of proximity analysis could be extremely useful to 

provide to states and state-based stakeholders as they work to implement the building blocks to 

meet the new emissions goals. Commenters noted while they suggest that the EPA require states 

to perform a distributional analysis on their SIPs, commenters would also support the EPA if the 

EPA believes it is more appropriate for the agency itself to perform the analyses.

Commenters stated that despite the EPA's environmental justice commitments in Plan EJ 2014, 

the proposed rule is devoid of a meaningful analysis of how the EPA incorporated environmental 

justice considerations into the development and implementation of the Clean Power Plan 

proposal. Commenters stated that this void in the proposal is in stark contrast to the public but 

very general statements made by EPA Administrator McCarthy touting the Clean Power Plan as 

advancing the agency's commitment to environmental justice. Commenters stated that the EPA 

must demonstrate how environmental justice is incorporated throughout all phases of the Action 

Development Process and, in the EPA's own words, the agency should document explicitly how 

environmental justice is woven "into the fabric" of this process.

Commenters addressed the usage of science-based tools in order to help guide investments 

generated by the implementation of the Clean Power Plan. Commenters provided a list of readily 

available tools that the EPA could utilize to collect environmental and demographic information 

in commencing an Environmental Justice analysis.

Commenters first referenced the EJView tool which allows users to create maps and generate 

detailed reports based on the geographic areas and data sets they choose and incorporates 

Hazardous Waste data, Toxics Release Inventory data, Superfund data, Brownfields data, data on 

nonattainment areas, demographics data (based on 2010 US Census Population and Housing 100 

percent count database), health information from the National-Scale Air Toxics Assessment, and 

other monitoring data. Commenters noted that this tool would be particularly useful to gather 

information on cumulative impacts as its aggregate database can incorporate multiple factors.

Next, commenters referenced the EJ SEAT tool, designed by the EPA's Office of Enforcement 

and Compliance, which assigns scores (higher scores are indicative of areas that could be 

environmental justice areas facing disproportionate impacts) to every census tract in the country 
55

by using an index compiled from 18 indicators which are grouped into 4 different categories: 

environmental indicators, human health indicators, compliance indicators, and 

social/demographic indicators. Commenters noted that the process is conducted on a state-bystate basis rather than for the U.S. as a whole. Commenters stated that EJ SEAT is nationally 

consistent and systematic in its approach and can be helpful in evaluating whether or not the 

Clean Power Plan has been effective in improving environmental justice in those particular areas 

during compliance. However, commenters noted that EJ SEAT's human health category is hard 

to quantify because only a few indicators are available at the census tract level across the nation 

in a way that is accessible. Commenters noted that EJ SEAT also cannot capture communities 

smaller than 4,000 people due to census tracts which may not capture some tribal communities. 

Commenters also noted that the compliance indicator has no distinction between serious 

violations and violations with no material environmental impact.

Next, commenters referenced the CalEnviroScreen 2.0 tool which measures environmental 

impacts by using 19 different indicators including pollution burden, socioeconomic 

vulnerabilities, public health risk factors, among other indicators, which can be used to assess 

areas most heavily impacted by pollution. Commenters noted that the demographic data is 

derived from roughly 8,000 census tracts (using the 2010 census) throughout the state and then 

assembled into an interactive map. Commenters stated that the tool compiles all of these 

different indicators when evaluating a particular location, and ranks zip codes statewide for 

comparison and by dividing regions by census tracts rather than just the roughly 1,800 zip codes 

in the state, CalEnviroScreen 2.0 has the ability to provide an impartial accounting of 

circumstances in areas that potentially have a smaller number of residents, thus making it 

possible to obtain a more in-depth analysis. Commenters noted that by using these indicators, the 

tool has the ability to take into account socioeconomic characteristics, health statistics, and 

environmental exposure to give a much more precise indication of the environmental risks faced 

by these vulnerable populations and can provide guidance to state and local policymakers on 

where to best direct their resources and programs. Commenters noted that CalEnviroScreen 2.0 

is available to the public, unlike EJSEAT, and that guidance documents state that the tool should 

be used mostly in planning for compliance and use by local and regional governments.

Lastly, commenters referenced the EJ Screen tool which compiles "EJ indexes" using 

demographic information (at the census tract level and group block level) and environmental 

indicators in order to identify specific communities that may be disproportionately burdened by a 

given environmental harm. Commenters noted that there are 12 different environmental 

indicators and seven demographic indicators. Commenters also noted that like EJ SEAT, EJ 

Screen will be a nationally consistent environmental justice screening tool and can be used to 

identify where specific environmental risks occur in certain communities. Commenters stated 

that a report in EJ Screen generates all 12 environmental indicators in one area, while a map 

provides one environmental indicator at a time over a wider area which the EPA could use 

to identify disproportionately burdened communities using the different environmental 

indicators.

Response 1: The EPA appreciates the commenters’ concern that the EPA consider 

environmental justice in its development of the final Clean Power Plan. Commenters state that 

the EPA should conduct an environmental justice analysis to illustrate the potential 

disproportionate impacts that these guidelines may have on vulnerable communities, especially 
56

those located near power plants.13 The commenters provided a number of suggested types of 

analyses that the agency should consider when conducting its analysis. The EPA agrees with the 

commenters that environmental justice is an important consideration and that an analysis is 

needed for this final rulemaking. In section IX.A of the preamble to the final CPP, the EPA 

outlines how it conducted a proximity analysis for this final rulemaking. A more detailed 

discussion on the proximity analysis is available in the EJ Screening Report for the Clean Power 

Plan, which is located in the docket for this rulemaking and on the Clean Power Plan 

Communities Portal located at www.epa.gov/cleanpowerplan. Commenters also stressed the 

importance of states and EPA conducting analyses to better understand how state plans, once 

implemented, impact vulnerable communities. The EPA addresses this comment in section IX.F 

of the preamble of the final Clean Power Plan. The EPA commits to assessing the impact of the 

Clean Power Plan during the implementation phase and encourages states to do so as well. If the 

assessment identifies adverse disproportionate impacts of air quality rules including the CPP on 

vulnerable communities, the EPA will work with the states to mitigate the impacts using Clean 

Air Act authorities. 

States Using an Analysis

Comment 2: Commenters stated that the EPA should develop and adopt a definition of an 

"impacted community" to guide investments and program implementation, which may be done 

by using a science-based tool (e.g. the EPA's EJ View or the Community Development Financial 

Institution Fund's CIMS Mapping Tool). Commenters stated that these actions ensure that the 

Clean Power Plan will reduce carbon emissions and address social, economic, health, and 

environmental conditions in an equitable and responsible way. Commenters urged that the Clean 

Power Plan direct states to use science-based tools in identifying disadvantaged communities and 

that the EPA should require implementation plans to list facilities of regulated entities in their 

state, describe the socio-demographic make-up of communities around those facilities, take stock 

of the other environmental pollution sources within the defined community, and incorporate a 

mechanism that dedicates to these communities a fair portion of the funds raised for 

implementation. Commenters felt that these steps will ensure that the Clean Power Plan reduces 

carbon emissions in ways that address social, economic, health, and environmental conditions 

that impacted communities face.

Commenters stated they recommend that the rule require each state to conduct an environmental 

justice analysis as a component of its plan. Commenters said that each state should seek to 

maximize the health benefits accruing to local communities who have suffered the long-term 

impacts of living near high-polluting operations. Commenters said that they also recommend 

consideration of the development of a health registry to record and analyze the effects of carbon 

pollution on those who live near these facilities to ensure maximum health benefits are achieved 

from the rule. Commenters also said that it is important to look at the entire energy value chain 

taking into account health impacts associated with the production of the power plant feed stocks. 

 

13 The EPA in section IX defines the term “vulnerable/overburdened communities” to refer to 

low-income communities, communities of color, and indigenous communities that are central to 

the agency’s community and environmental justice considerations.
57

Commenters said they encourage specific attention to potential deleterious impacts on local 

communities and the environment from hydraulic fracturing and the production of oil and gas.

Commenters urged states to strongly consider, in the SIP process, an analysis and demonstration 

that the burden of any predicted increases to consumer bills, for any part of the period (taking 

into account remedial measures proposed in the plan, such as discounts and other safeguards), 

will not make electricity unaffordable to lower-income customers nor to disadvantaged 

communities in the state.

Commenters stated that the State of Georgia has no laws or regulations requiring environmental 

justice considerations in air regulations in permitting and has historically failed to take into 

account the disproportionate effects of pollution in low-income and minority communities, such 

as in 2007 when the GAEPD approved the siting of a proposed coal-fired power plant, even 

though the population of the surrounding area is 49.6 percent African American and nearly 30 

percent of the population lives below federal poverty levels. Commenters stated that because of 

the state's history with environmental justice considerations, it is essential for EPA to require that 

this analysis occur as a compliance requirement under the Clean Power Plan. Commenters 

suggested that states be required to determine the location of EJ communities where pollution 

sources are located and additional monitors should be placed at those sites...to find if any 

NAAQS limits have been violated.

Commenters stated that the environmental justice analyses as part of SIPs should demonstrate 

that the state's plan would achieve emissions reductions in and near environmental justice 

communities and evaluate the impact of its SIP on environmental justice communities. 

Commenters noted that if the EPA chooses to include a policy that considers "intentional 

maximization of co-pollutant reduction", then state's environmental justice analyses should 

demonstrate this as well; however, if the EPA only requires states to prevent emissions increases 

in and near EJ communities, then this prohibition should be demonstrated by the EJ analyses. 

Commenters also recommended that a distributional analysis of costs and benefits to EJ 

communities caused by the state's implementation plan should be performed as part of the state's 

EJ analyses and that this analysis should include an evaluation of the elements used from each 

building block included in the EPA's Clean Power Plan and anything else the state uses to meet 

its obligation under the Clean Power Plan. The analysis should also take into account cumulative 

impacts. Commenters stated that the “The EJ distributional analysis should be required by the 

states even if the EPA does not require mandated emissions reductions, or the prevention of 

emissions increases, in and near EJ communities. Gaining this type of information from an EJ 

analysis would be a vital step in allowing EJ communities to attempt to protect themselves from 

detrimental impacts of the Clean Power Plan or to attempt to ensure benefits from the Plan." 

Commenters stated that a state's approach to meeting the three criteria must include a 

demonstration to the EPA that the implementation policies meet these environmental justice tests 

through providing a valid and sophisticated analysis of how populations and communities will 

experience the plan's cost impacts, face health risks and benefits broadly construed to include 

affordability of energy, share in the policy's benefits and be represented in a meaningful way in 

the process of state plan development and implementation. Commenters further stated that when 

the EPA assesses a completed plan, they must review of the quality of the analysis should 

include whether both the methodology and the final analysis is peer-reviewed and achieves an 
58

examination of the differential impacts of policies and costs on vulnerable populations and 

communities and inform states that plans which cannot demonstrate they meet environmental 

justice standards based on a valid analysis will be subject to greater scrutiny, including possible 

re-analysis by experts of the EPA's choice. Commenters stated that they do not believe that it is 

necessary for the agency to establish a single methodology nor to provide a single data source 

and that the tests applied to state plans should be procedural. 

Commenters urged the EPA to include in the final rule a robust discussion of how states can 

perform analyses to identify air pollution burdens disproportionately burdening disadvantaged 

communities and of the ways in which state plans can be designed to ensure that communities 

bearing a disproportionate share of air pollution burdens have those burdens reduced. 

Response 2: The EPA appreciates commenters’ request that the EPA define what constitutes an 

“impacted community,” in order to help guide investments and program analysis as part of the 

CPP. The EPA in section IX defines the term “vulnerable/overburdened communities” to refer to 

low-income communities, communities of color, and indigenous communities that are central to 

the agency’s community and environmental justice considerations. The EPA’s intent is for these 

terms to be understood in an expansive sense, in order to capture the full scope of communities 

that are central to our environmental justice and community considerations. This definition was 

also used to guide the proximity analysis that the agency conducted. Please see section IX of the 

CPP preamble for more information on how the EPA addresses this comment. The EPA will 

forward to each state the results of the proximity analysis that the EPA conducted. States may 

use these results as a starting point for their own analyses. Commenters further ask that the EPA 

require states to conduct an analysis as part of the development of their state plans. The EPA 

encourages states to conduct an analysis; the agency provides a response to this comment in 

section IX.A of the final CPP preamble. Additionally, as noted in section IX.G of the final 

preamble, the EPA will provide states with resources containing examples of analyses that other 

states have conducted to examine the impacts of their programs on vulnerable communities. 

States can use this information to conduct analyses of their own if they choose to do so. The EPA 

stands ready to assist states in conducting these analyses as they commence or continue their 

outreach to communities and other stakeholders and as they begin to consider plan options.

RE/EE/Financial Assistance Programs and State Plans/Jobs

Comment 3: Commenters expressed concerns as to how the proposed rule will affect the 

livelihood of low and fixed-income communities and individuals and urged the EPA to decrease 

the burden on these individuals.

Commenters stated that higher electricity prices as a result of this rule have a disproportionately 

greater impact on lower and middle-income families, with lower-income families being 

especially vulnerable to higher costs as a large portion of their budgets go towards energy which 

reduces the amount of income they are able to spend on other necessities. Commenters noted that 

these families constitute the working class, and that these families are more likely to have more 

children, spend more time at home, have less well-insulated homes, and also have lower 

efficiency appliances. Commenters noted that those earning between $10,000 and $30,000 per 
59

year will, on average, spend almost 10 percent of their disposable income on residential energy 

needs. 

Commenters noted that the most recent estimate shows that, on average, 2014 energy bills of 

lower-income consumers will equal 16.5 percent of their total income and also noted that the 

electricity bill burden on low-income consumers today is more than 11 percent of their limited 

resources, while others will pay 2.3 percent of income for their power. Commenters also noted 

that in a survey of households that received federal home energy assistance, 37 percent went 

without medical care, 34 percent did not fill a prescription or took less than their full dose of 

prescribed medication, 29 percent did not make a house payment, and 24 percent went without 

food for at least one day as a result of high home energy costs. Commenters stated that State 

Clean Power plans should demonstrate the impact of expected bills on the most vulnerable 

consumers has been evaluated and, as needed, remediated in the implementation plan. 

Commenters also stated that states should adopt, and the EPA should review, rules for allocating 

costs and mitigating increases to ensure access to electricity for all and that these rules should be 

reviewed through the environmental justice policy filter.

Commenters requested that the EPA both re-examine this over-simplified long range view, and -

most importantly- set criteria for state plans that include sophisticated assessments of the impact 

of planned programs and predicted rates on vulnerable populations and disadvantaged 

communities. Commenters noted that as the expert review of the rule by Synapse Inc. for the 

National Association of State Utility Consumer Advocates points out, "customers not 

participating in efficiency programs will not share in benefits and will face higher costs." 

Commenters noted that Synpase's analysis, based on EPA data, demonstrates that compliance 

with the Clean Power Plan (at least using EPA's building block compliance) will result in higher 

rates, but lower bills for energy efficiency participants. Commenters stated that based on the 

EPA expectations for EE utilization in Building Block 4, the number of consumers participating 

in energy efficiency programs would also be anticipated to grow substantially, meaning such 

people would be expected to see the benefit of lower bills and customers not participating in EE 

programs will not share in benefits and will face higher costs. Commenters also noted that 

although they expect that many more consumers will realize the benefits of lower bills due to 

increased energy efficiency, consumer advocates still need to ensure that the allocation of costs 

and benefits among different customer types is equitable and does not unfairly burden any one 

group of customers (such as low-income households). Commenters submitted that 

EPA's obligation to Environmental Justice is far greater than that to predict an average national 

outcome in fifteen years and that the EPA's obligation to Environmental Justice requires that 

equity considerations be built into the criteria for state plan acceptance.

Commenters stated that the number of people who are now vulnerable to increased energy prices 

is increasing. Commenters stated that poverty rates have increased to historic highs along with 

the declining long-term trend in family incomes and that the number of people in poverty in 2010 

was the largest number in the 52 years since the Census Bureau began to publish poverty 

statistics. Commenters noted that poverty is more prevalent among some minority groups with 

some 27% of Blacks and 26% of Hispanics lived in poverty in 2010, compared with 15% for the 

overall population. Commenters stated that, nationally, between 2000 and 2012, the percentage 

of people in poverty increased from 12.2 percent to 15.9 percent, while the number of people in 

poverty increased from 33.3 million to 48.8 million and the percentage of people in the United 
60

States with income below 50 percent of the poverty thresholds grew from 5.0 percent in 2000 to 

7.0 percent in 2012. Commenters further noted that over this period, the percentage of people 

with income below 125 percent of the poverty thresholds grew from 16.5 percent to 20.8 

percent. Commenters stated that increased energy costs also cause harm to the health of lower 

income people. Commenters pointed to two studies that show that greater use of coal-fueled 

electricity helps free a family's disposable income for good nutrition, quality medical care and 

other smart lifestyle choices that lead to improved health. Commenters noted a 2002 study by 

researchers Daniel E. Klein and Ralph L. Keeney which found that coal prevents at least 14,000 

to 25,000 premature deaths each year due to low-cost electricity and a 2007 study by Dr. M. 

Harvey Brenner, a professor of Health and Policy Management at Johns Hopkins University, 

confirming the Klein-Keeney findings, as Brenner concluded that if coal were removed from the 

energy mix, the result would be approximately 170,000 to 368,000 premature deaths in the 

United States.

Commenters noted that health impacts from climate change are expected to be exacerbated in 

cities as concrete, asphalt, and densely-packed buildings absorb the sun's radiation and can 

increase heat on urban populations by as much as 10 degrees F compared to nearby rural areas 

while worsening health conditions. Commenters noted that heat does not affect everyone 

equally; because low-income areas frequently have more concrete and less vegetation in their 

neighborhoods, these neighborhoods experience more severe heat.

Commenters stated that electric customers with lower income levels often reside in older homes 

that are less energy efficient and generally lack the financial ability to upgrade appliances to 

more energy efficient models. Commenters noted that these customers with lower income levels 

often use as much - or more - electricity than customers with higher income levels and will carry 

the heavier burden of the Clean Power Plan. Commenters stated that they cannot support 

an environmental program that disproportionately burdens those who are least able to pay.

Commenters stated that several studies have demonstrated a strong connection between a 

family's inability to pay its home energy bills and some obvious and not-so-obvious 

consequences such as children being removed from their homes because of loss of electricity, 

senior homeowners being forced to leave their homes because they cannot keep up with their 

bills, and the inability to pay utilities being second only to inability to pay rent as a reason for 

homelessness.

Commenters additionally stated that the distribution of the benefits of 111(d) state 

implementation strategies should be subject to analysis from the environmental justice 

perspective and noted that the heart of the issue is whether the cost of compliance and of the 

implementation of the Plan will be balanced by the benefits received by low-income and 

disadvantaged consumers and communities. Commenters noted that most utility efficiency and 

renewable energy program incentives are financed by all ratepayers but are primarily designed 

for consumers who can pay a large share of the total upgrade costs themselves and that analyses 

of the impact of such policies highlight the need for thoughtful state evaluation of the incidence 

of costs v. benefits. Commenters noted that lower income consumers use substantially less 

household energy than others make up a large share of the low-usage population. Commenters 

stated that inequitable sharing in the costs and benefits will disproportionately burden those with 

lower incomes.
61

Commenters noted that is it typical for them to find that their clients spend a significant portion 

of their annual income on electricity alone and that the low-wage workers and retirees they serve 

are disproportionately likely to carry arrears on their utility bills and to face utility disconnection. 

Commenters noted that these individuals will they typically sacrifice good nutrition and medical 

care to meet their rent and utility obligations to avoid utility disconnection. Commenters noted 

that unaffordable energy leads to a cascade of health risks from poor nutrition, erratic medication 

purchase and the threat of eviction, in addition to the dangerous possibility of disconnection from 

electricity. Commenters also noted that utility program expenditures are biased towards those 

who can share the costs out of pocket. Commenters stated that presently, the vast majority of 

utility efficiency investments in our state are set up to match a small share of a larger, private 

consumer expenditure on new equipment or a building upgrade. Commenters stated that while 

their clients pay for these programs in their bills, they are excluded because the requirement for 

personal spending to access a benefit is unaffordable.

Commenters stated that the Clean Power Plan does not do enough to address concentrations of 

localized pollution in low-income communities and stated that they would like to see strong 

incentives to protect these communities who can be disproportionately affected by carbon 

pollution.

Commenters said that states should place higher priorities on alternatives that will benefit 

environmental justice communities, including conservation and efficiency, renewable energy, 

and retirement of coal-fired power plants. Commenters noted that conservation and efficiency 

provide clear environmental benefits and also create job opportunities and result in energy cost 

savings for low-income families. Commenters stated that U.S. EPA's Energy Star program 

estimates that through energy efficiency and energy efficient products, local governments can 

help homeowners in the U.S. reduce annual energy bills by an average of $750 and that this 

number is even more significant when considering low-income families' annual income. 

Commenters noted that as most energy efficiency jobs consist of installment or maintenance of 

equipment locally, as opposed to conventional energy supplies and delivery, this will increase 

job production in lower-income communities. Commenters noted that these jobs are also 

available to employees without higher education, and energy efficiency investment also creates 

more jobs than an equivalent investment in the utility sector or fossil fuels. Commenters stated 

the importance of renewable energy to environmental justice communities such as tribes as 

the Inter-Tribal Council on Utility Policy reports that over 4,500MW of wind and solar energy 

projects are currently on tribal land. Commenters noted that renewable energy also brings an 

increase in green jobs to low-income environmental justice communities and that while this is 

being recognized and introduced into law in certain regions, states should consider and place 

priority on green jobs in their proposal to U.S. EPA. Commenters lastly noted that coalfired power plants are the largest stationary sources of GHG emissions and today many old, 

poorly controlled and inefficient plants are being phased out, separate and apart from the CPP. 

However, commenters noted that coal-fired power plants still contribute to 25.5% of GHG 

emissions in the country, and still provided 41% of energy generation in Illinois. Commenters 

noted that these plants pose significant health risks to Americans, and that these numbers are 

higher in lower-income communities. Commenters stated that according to a report by 

Physicians for Social Responsibility, "detrimental health risks are associated with every aspect of 

coal's life cycle, including mining, hauling, preparation at the power plant, combustion, and the 

disposal of post-combustion wastes." Commenters noted that the life cycle of coal generally 
62

poses health risks to environmental justice communities, and as such, retirement of coal-fired 

power plants should be a priority in state implementation plans. Commenters also noted that 

members of environmental justice communities perform most of the jobs required to produce 

coal and in addition to coal miners themselves, "communities near coal mines may be adversely 

affected by mining operations due to the effects of blasting, the collapse of abandoned mines, 

and the dispersal of dust from coal trucks." Commenters stated that surface mining, mountaintop 

removal, coal washing, and transportation all take tolls on environmental quality and human 

health.

Commenters expressed specific concern about the incorporation of and access to renewable 

energy services in environmental justice communities and asked the EPA to ensure that the Rule 

assures that sufficient resources are made available to help workers in affected communities 

make the transition to a clean energy economy.

Commenters recommended that the EPA urge states to ensure that communities that have borne 

heavy burdens from fossil fuel-fired power plant emissions - and low-income communities more 

broadly - have full access to opportunities to develop renewable generation (including distributed 

renewable generation) and opportunities to benefit from investments in demand-side energy 

efficiency improvements. Commenters noted that full access will likely mean ensuring that 

traditional barriers to accessing these types of cost-saving and energy-saving programs are 

overcome by encouraging innovative financing arrangements. Commenters specifically 

mentioned addressing problems that arise when landlords are not paying energy bills and thus 

lack a sufficient incentive to invest in demand-side energy efficiency improvements. 

Commenters also urged the EPA to prioritize developing guidance that will facilitate investments 

in energy efficiency in low-income communities and communities of color, and make it clear to 

states that these types of programs can be deployed, and verified, as part of a compliance 

strategy.

Commenters stated that "at this time, many EJ communities are not energy efficiency ready -

states must be required to make a commitment to fund projects that will create the infrastructure 

(i.e. homes, multi-family dwellings) in EJ communities that can be retrofitted to meet baseline 

standards for weatherization, as well as the financial support to own and operate clean energy 

sources, like solar power." Commenters urged the EPA to ensure that "clean energy training and 

job opportunities, and other innovative ways to stimulate the local economy are considered in the 

SIP planning process to help create a thoughtful, just transition for plant-dependent 

communities." Commenters stated that the EPA's lack of attention to equity in the Clean Power 

Plan "can give the impression that equity is not important in the context of the Clean Power Plan 

and reducing GHG emissions." Commenters expressed concern that the EPA stated in the final 

pages of the preamble that the Clean Power Plan might even lead to local increases in emissions, 

and then "surprisingly does not direct the states to address the issue." Commenters stated that 

"even if EPA believes it lacks the authority to force the states to prevent emissions increases in 

and near EJ communities, a position with which we disagree, EPA should at least urge states to 

address this issue and provide the guidance for them to do so."

Commenters stated that the use of renewable energy should be prioritized as a method of 

reducing economic burdens in environmental justice communities and ratepayers as a whole. 

Commenters noted that renewable energy offers unique opportunities both to avoid 
63

environmental injustice and to affirmatively advance environmental justice as well. Commenters 

stated that "in displacing sources of pollution, which have disproportionately affected 

environmental justice communities, a sector-wide shift toward renewable energy serves a central 

environmental justice objective of reducing industrial pollution" and additionally noted that 

"there is a quality of life difference between living within close proximity to a solar or wind farm 

as opposed to a plant that burns fuel to produce electricity." Commenters noted that improving a 

building's resistance to the elements and other energy efficiency improvements are effective in 

reducing fuel poverty which is in contrast to the Low Income Home Energy Assistance Program 

"which is expensive and costly to the government as well as to energy providers, making such 

assistance programs unsustainable." Commenters stated that investments in energy efficiency 

permanently lower energy use in low-income households while simultaneously reducing 

government and energy provider outlays. Commenters stated that environmental justice 

communities can benefit from energy efficiency initiatives "if there is adequate support to make 

them energy efficiency ready."

Commenters stated that environmental justice must include access to affordable energy 

efficiency and renewable energy services and equitable distribution of incentives must be made 

available to middle and upper income populations and that delegating energy services to 

environmental justice households in effect to programs of rate relief, provides unequal and 

inequitable access to renewable energy and energy efficiency.

Commenters specifically stated support for the Clean Power Plan, but asked the EPA and all 

relevant federal and state agencies to work to ensure the following four items: making sure that 

workers and communities that are affected by the phasing out of fossil fuels are treated fairly and 

justly, making sure that the jobs that the plan creates are good family sustaining jobs, making 

sure than disadvantaged communities receive their fair share of clean energy related economic 

opportunities, and making sure that clean energy continues to be affordable.

Commenters stated that ensuring that clean energy training and job opportunities, and other 

innovative ways to stimulate the local economy should be considered in the SIP planning process 

to help create a thoughtful and just transition for plant-dependent communities.

Commenters stated that the Obama Administration to commit to measures that will direct 

resources to workers and communities to mitigate undue hardship that may result from state 

implementation plans approved by the EPA pursuant to the final rule. Commenters also stated 

that enhanced support should also be provided to people and communities experiencing 

continued exposure to the hazardous impacts of ongoing fossil fuel energy production.

Commenters recommended that the state's plan include a rate and bill impact analysis that should 

make transparent the burden of any predicted increases to consumer rates and bills. State plans 

should include a summary of any low-income discount rates or other programs that will mitigate 

any rate or bill impacts on low-income and minority communities. Commenters also 

recommended that state's provide an analyses that 1) demonstrate that emissions reductions of 

pollutants other than GHG will equitably benefit disadvantaged low-income and minority 

communities; and, 2) demonstrate that investments in and benefits from renewable energy and 

energy efficiency are distributed so as to equalize access to utility service, including improving 

current disparities, for disadvantaged communities and consumers.
64

Commenters stated that in its current form, the Clean Power Plan does not directly address equity 

or environmental justice and this needs to be corrected. Commenters urged the EPA to at least 

question whether an environmental justice and equity-driven reading of section 111(d) and 

related court opinions might provide the authority to: prohibit the use of carbon trading, new and 

'extended' nuclear energy, and CCS to satisfy requirements under the Clean Power Plan; target 

EJ communities for emissions reductions, renewable energy use and the use of energy efficiency 

under the Plan; and to mandate that states include distributional EJ analyses as part of their state 

implementation plans.

Commenters stated that delegating energy services to environmental justice households in effect 

to programs of rate relief, provides unequal and inequitable access to renewable energy and 

energy efficiency. Commenters also noted that all existing state emission budget trading 

programs addressing GHG emissions include out-of-sector, project based emission offsets, which 

may be used to cover a portion of the compliance obligation of affected sources and that 

environmental justice advocates do not support the use of offsets as a method of compliance 

obligations by states, either domestically or internationally.

Commenters encouraged the EPA to adopt policies that direct states to make long-term 

investments into communities disproportionately burdened by pollution and economic stress. 

Commenters stated that revenues committed to, or generated by, policies or programs created to 

meet Clean Power Plan requirements should be invested into programs that maximize 

environmental and economic benefits in impacted communities. 

Commenters urged the EPA to provide guidance for states to design energy efficiency, 

distributed renewable energy programs and other broad-based initiatives that can be 

implemented with maximum benefits for consumers. Commenters also urged the EPA to work 

with states and stakeholders to promote processes and programs that will reduce the threat of 

climate disruption while ensuring that service and affordability is safeguarded for low-income 

consumers.

Commenters stated that the EPA should include language that moves long-term investments into 

impacted communities that are disproportionally burdened by pollution and economic distress. 

Commenters stated that policies or programs created to meet the Clean Power Plan requirements 

- in addition to any revenues committed to or generated by such programs - should maximize 

environmental, social and economic benefits in impacted communities. Commenters stated that 

these programs and investments should be guided by the following basic principles: 1) 

reinvestments must prioritize mitigating the costs of implementation to low-income 

communities; 2) create clean, living wage jobs and business opportunities for minority- and 

women-owned businesses that open pathways for low income individuals, people of color, and 

local residents to enter the green industry workforce; 3) enable people to live where they work 

with access to clean transportation, an affordable place to live, and clean and secure food 

sources; and 4) prevent displacement of low-income residents and local businesses that may be 

caused by investments that reduce carbon pollution and increase the quality of life in 

neighborhoods that have long suffered from disinvestment.

Commenters noted that the EPA has recognized in the proposal that there is no technological 

option to reduce CO2 emissions from power plants and instead determined that BSER for CO2
65

emissions from EGUs is primarily a reduction or elimination of coal generation, much of which 

was built in compliance with the federal Fuel Use Act of 1978. Commenters stated that the 

reliability of the country's electric grid is severely threatened without this coal generation. 

Commenters stated that coal generation is essential to serving this county's electric load, 

ensuring that owners and operators of coal generation remain viable, and preventing dramatic 

increases in electricity rates. Commenters noted that these impacts will fall on the lowest income 

electric consumers in the country, which they feel is unacceptable. Commenters stated that the 

Clean Power Plan is illegal and must be withdrawn.

Commenters noted that lower-income residents have fewer resources to adapt to the impacts of 

global warming. Commenters stated that lower-income residents have less access to demand 

response and energy-efficiency programs that the EPA plan relies upon, and that these types of 

programs are often economically and organizationally challenging for rural residents with budget 

constraints.

Commenters noted that low-income ratepayers incur a significantly higher energy burden than 

the general population which creates a disparity in the impacts of family budgets, and are more 

likely to suffer severe heat island effect and environmental gap. Commenters stated that in order 

to address such situations, programs to explicitly consider and ameliorate the energy burden and 

environmental gap of low-income residents must be considered. Commenters stated that 

weatherization is a well-established program that is able to accomplish these objectives while 

reducing greenhouse gas emissions and any plan must make considerations for low-income 

residents to receive weatherization.

Commenters stated "to minimize costs for their citizens, states should take full advantage of 

renewable energy and energy efficiency resources and use this opportunity to create a much 

cleaner, more resilient electric system" and that "states should also take into account both 

environmental justice communities and transitioning workers from jobs in the coal mines, power 

plants, and associated equipment manufacturers to other jobs in a cleaner energy economy." 

Commenters stated that states should "evaluate the jobs and environmental justice impacts - both 

positive and negative - of their proposed state plans. 

Commenters stated that we must ensure that the most vulnerable communities are protected by 

the standards and consulted throughout the standard setting and state plan development process 

and that public resources are made available to help workers and affected communities’ 

transition to the clean energy economy.

Commenters asked the EPA to develop guidelines and outreach for citizens and states that wish 

to incorporate energy efficiency in a way which build equity within the state. Commenters 

recommended that the EPA highlight and provide guidance to states on considering a variety of 

policy mechanisms, both within the context of state compliance plans and through 

complementary policies enacted by state legislatures, to retain workers and invest in economic 

diversification. Commenters noted that such policies have the potential to generate revenue that 

the state can then invest as they see fit. Commenters noted that these policies may include: 

market-based mechanisms similar to RGGI, carbon fees/taxes to drive down emissions, 

permanent mineral trust funds which levy a special tax on companies for right to remove 

resources from the ground, renewable energy standards which designate a portion of RE 
66

development from in-state resources to support local job creation, energy efficiency resource 

standards which promote energy efficiency in homes and businesses, worker training programs, 

and economic development and economic diversification. Commenters noted several instances 

of success with these policies in a number of states.

Commenters expressed concerns for the senior citizen community in response to the proposed 

rule. Commenters noted that higher costs associated with CO2 regulations will be passed on to 

the consumer, and that many seniors live on fixed incomes and do not have additional capital to 

spare. Commenters stated that the health of millions of low income senior citizens are 

disproportionately harmed by the EPA's deliberate actions to raise electricity prices. Commenters 

were upset by what they felt was a lack of sensitivity towards senior citizens and recommended 

that the EPA reconsider its environmental justice analysis. Commenters noted that some states, 

such as Alaska, have a quickly increasing percentage of senior residents who will be impacted by 

this rule as their energy costs will consume disproportionate percentages of their income.

Commenters believed that strong support for, and use of, the energy efficiency building block 

incorporated in EPA's Clean Power Plan is essential for low-income households. According to 

commenters, energy efficiency not only leads to the lowest overall cost of compliance with the 

rules, but it also represents the best opportunities for low-income families to reduce their own 

energy bills. Commenters urged the EPA to further articulate and encourage opportunities for 

energy efficiency programs aimed at low-income households (including renewable and 

alternative energy resources) and to emphasize the role these programs can play in keeping costs 

low for those families that can least afford energy cost increase. 

As an example of these opportunities, commenters cited Wisconsin's low-income weatherization 

program. Commenters stated that this program has a 30+ year track record of positively 

impacting low-income energy bills, yet, over the past 4-5 years, funding for the program both 

nationally and within Wisconsin has been reduced, oftentimes so as to continue to support 

payments for bill assistance. While a worthy goal, commenters said bill payment assistance does 

not have anywhere close to the impact that weatherization does on reduction in energy usage, 

while, at the same time, creating self-sufficiency for low-income families in their energy choices. 

Commenters stated that robust funding for low-income weatherization, as Wisconsin's single, 

largest energy efficiency program, would have clearly identifiable impacts on the Clean Power 

Plans goals.

Commenters stated that low-income weatherization must be included in the Clean Power Plan. 

Commenters said that weatherization is a unique tool that both mitigates climate change and 

promotes resilience and adaptation. By improving a low-income resident's building envelope, 

home insulation, and replacing inefficient appliances, commenters stated that energy efficiency 

savings are realized and greenhouse gas emissions are mitigated. Commenters indicated 

weatherization also helps low-income families save on their utility bills, on average $400 per 

year; this increases their resilience to other possible climate-related hurdles by making them 

more financially secure. Commenters estimated that weatherization offers a 1.83:1 ROI in energy 

savings, and with non-energy benefits the returns are 2.69:1. Commenters stated that low-income 

communities are disproportionately affected by the negative impacts of climate change; it's only 

right that a plan to address climate change would explicitly provide assistance to ameliorate these 

impacts. 
67

Commenters stated that the EPA should require states to demonstrate equal access to these 

benefits, and should evaluate state plans on this basis. Commenters noted that in this context, 

environmental justice is not only the avoidance of disproportionate harm, it also encompasses an 

affirmative obligation to ensure equal access to anticipated services and benefits.

Response 3: The EPA appreciates commenters’ highlighting the importance of communities 

having access to EE/RE and financial assistance programs. The EPA addresses these comments 

in section IX.C of the final rule preamble, in which the EPA encourages states to take steps to 

make sure that low-income communities gain additional access to EE/RE benefits. In section 

IX.C, the EPA provides examples of state programs including those conducted by Maryland, 

New York, and Colorado that assist communities in increasing their ability to access RE/EE and 

financial assistance programs. The EPA encourages states in developing their plans to use these 

and other models to address issues around increasing low-income communities’ access to EE/RE 

and financial assistance programs. Additionally, as stated in sections IX.C-D of the preamble, 

the EPA in the coming months will continue to provide information resources for communities 

and states on existing federal, state, local, and other financial assistance programs to encourage 

EE/RE that are already available to low-income communities. The EPA will also provide a 

catalog of current or recent state and local programs that have successfully helped low-income 

communities adopt EE/RE measures. The goal in providing these resources is to help 

communities gain the benefits of this rulemaking by encouraging that states use these types of 

tools in their state plans. The commenters also reference potential incentive programs that could 

be conducted as a result of this rulemaking. The EPA encourages states to award early 

investments in RE and EE projects that benefit low-income communities, and the EPA has 

established a state-federal partnership program, the Clean Energy Incentive Program, to 

encourage such investments. Further information on this can be found in section VIII.B of the 

final preamble. Additionally, commenters raise concerns with the potential of the EPA allowing 

cap and trade programs and CCS. Both of these topics will be addressed in responses to other 

comments that are presented below, in response 15 and in response 18. 

Including Vulnerable Communities in State Plan Process

Comment 4: Commenters presented concerns about the inclusion and participation of 

environmental justice communities within the development of states’ plans and the EPA's 

proposed rule.

Commenters stated that, because the EPA indicated that it cannot predict, with accuracy, how 

CO2 emissions from specific EGUs would change as an outcome of the proposed rule due to 

state-led implementation, the EPA therefore cannot determine whether there would be a 

disproportionately high and adverse human health or environmental effect on indigenous 

populations. Commenters assumed by extension that the EPA cannot determine the effects of the 

proposed building block measures used by states, in isolation and in combination with others, on 

Indian Tribes. Commenters noted that understanding the effect of individual EGUs as well as the 

building blocks used under state programs is critical and that the EPA must perform an 

environmental justice analysis. Commenters stated that the EPA's statement is very concerning, 

especially with previous criticism the EPA has received for its lack of inclusion of environmental 
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justice in drafting regulations (the Gasoline Rule, the Diesel Rule, and the Ozone 

Implementation Rule where EPA "generally devoted little attention to environmental justice"). 

Commenters also stated that the EPA's statement also contradicts its own mandates for its 

operations, as its Plan EJ 2014 states the EPA is continuing to identify and prioritize EJ-related 

research activities. Commenters stated that "our main demand is that the federal EPA include 

language in the final rule and the subsequent guidance that recognizes and considers potential 

disparate impacts the rule may have on environmental justice communities, and explicitly direct 

states to identify environmental justice communities and where there are potential disparate 

impacts, and take steps to avoid or mitigate those disparate impacts."

Commenters stated that the Clean Power Plan, in its current form, fails to ensure meaningful 

involvement of EJ communities in the development of state implementation plans. Commenters 

noted that it is not clear if the Clean Power Plan requires a state to have even one hearing for the 

general public, as 79 FR at 34900 indicates that a hearing is required, but 79 FR at 34915 seems 

to state that no hearing is required on an initial plan. Commenters stated that perhaps a hearing 

on the final plan is necessary but to the degree the requirement for a hearing is unclear in the 

Clean Power Plan it needs to be clarified; but in any case, a more robust public participation 

process needs to be developed that specifically involves EJ communities in the development of 

state implementation plans. Commenters also noted that the Clean Power Plan does not 

specifically mention the involvement of environmental justice communities at all. Commenters 

stated that the EPA should either place a robust EJ participation requirement in the Clean Power 

Plan itself that states must follow or require states to develop and submit an EJ participation 

strategy as part of their state implementation plans, which would make the participation strategy 

subject to EPA approval.

Commenters stated that meaningful participation in the state planning process by low-income 

and minority groups is a fundamental environmental justice requirement and that they are 

disappointed that the EPA's review of environmental justice concerns in the preamble addressed 

the agency's own considerable record in consulting with such groups and advisors, but ignored 

application of the requirement to the states' procedures. Commenters stated that the Clean Power 

Plan contains no requirements or guidance for states to ensure adequate low-income and 

minority participation in the development of state plans. Commenters noted that the EPA 

requires the state to conduct a public hearing when the plan is made public, prior to submission 

to the EPA and stated that this is certainly a necessary procedural step, and the EPA should 

commit to careful consideration of the public hearing record; however, the requirement to hold a 

public hearing does not mean that low-income and minority communities will have an adequate 

opportunity to participate, nor that the state plan process will be sufficiently transparent. 

Commenters stated that strong consumer participation and oversight is both in the national 

interest and in the interest of sound climate policy and that providing low-income consumer 

representation in the state implementation process makes it more likely that states will produce 

sound, reliable and low-cost plans. Commenters recommended that as part of a state's 

demonstration that it has provided for meaningful participation, the EPA should stipulate that 

providing financial support for planning and regulatory participation will be the best evidence 

the mandate has been carried out effectively.

Commenters noted that the systematic engagement of leaders and advocates who authentically 

represent the concerns of low-income community members in climate-protection efforts can 
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generate publicly endorsed plans that are more attendant to equity concerns and carry more 

public support. Commenters stated that the process of engagement itself will help to build social 

cohesion within states, and lessons from place-based innovation with intentional focus on 

meaningful civic engagement as well as the inclusion and benefit of low-income communities 

will improve the effectiveness of the field as a whole. 

Commenters noted that the EPA's guidance provides that minority and low income communities 

must have an adequate opportunity to participate in decisions about a proposed activity that will 

affect their health or their environment, and their concerns must be considered in the agency's 

decision-making process and that the inability of these communities to participate in this process 

constitutes an "EJ concern" that may itself contribute to disproportionate impacts. Commenters 

stated that the EPA must engage these communities early in the process through targeted 

outreach efforts, in a manner that overcomes any lack of trust, as well as any language, 

communication, and information barriers. Commenters commended the EPA for hosting 

webinars, conference calls, and workshops for environmental justice communities in the context 

of this rulemaking and urged the EPA to continue to provide these communities with 

opportunities for meaningful involvement in the rule making process, and to actively seek their 

input in the development of a comprehensive environmental justice analysis of the Clean Power 

Plan.

Commenters stated that the EPA should commit to careful consideration of the public hearing 

record; however, it is no substitute for continuous engagement of advocates for all key 

constituencies throughout the process. Commenters noted that few changes will be possible once 

the yearlong planning process has produced a tidy submission and an innovation on the scale of 

this policy requires far more. Commenters stated that strong consumer participation and 

oversight is both in the national interest and in the interest of sound climate policy and that 

providing low-income consumer representation in the state implementation process makes it 

more likely that states will produce sound, reliable and low-cost plans.

Commenters urged the EPA to require states to demonstrate the following within their 

compliance plans: that equity was part of the state's planning process from the beginning; that 

states find the best path through the challenges of developing a plan to reduce carbon pollution in 

a socially equitable manner that reflects the distinct ethnic, social, economic, and political 

qualities of each state; that the needs of disadvantaged stakeholders' capacity to participate were 

developed through understanding the different motivations, needs, and barriers and developing 

collaborative strategies to address them; and that state compliance plans ensure a fair distribution 

of the costs and benefits of carbon reduction.

Commenters appreciated that each state is required to certify that it held a hearing on the plan, 

including a list of witnesses and their affiliation, along with a summary of the presentation. 

However, commenters encouraged even broader community participation in the creation of the 

state plans and recommended the inclusion of representatives from the environmental justice 

community. As the state plans are both developed and implemented, commenters wanted to 

ensure that the needs of the most vulnerable and low-income populations are taken into account. 

Commenters also recommended that the EPA encourage states to solicit input on state 

compliance plans from a wide variety of stakeholders. Commenters stated that outreach efforts 
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should include robust and extensive dialogues with community leaders and the public, with 

particular attention to EJ communities. Commenters recommended that the EPA solicit feedback 

and participation from EJ groups like WE ACT and National Environmental Justice Advisory 

Council (NEJAC) to help formulate guidance on including EJ concerns in state compliance 

plans.

Commenters noted that the results of small-scale energy efficiency programs already in place in 

South Carolina have demonstrated that citizens need guidance and assistance throughout the 

entire process in order to reap the cost savings and other benefits promised by such programs. 

Commenters stated that while they have already begun this important work, more time and 

resources are needed to help develop better outreach methods to increase participation among the 

state's families, including those with limited discretionary money. Commenters recommended 

that states be given more time and resources to provide more outreach in order to increase 

participation among the state's families, including and especially those within EJ communities, 

who have the potential to be more financially impacted.

Commenters noted that the EPA's obligations to ensure meaningful public participation from 

tribes under E.O. 12898 are distinct from the agency's consultation obligations under E.O. 

13175. Commenters noted that the EPA must ensure public participation by a broad range of 

tribal stakeholders, including community and neighborhood groups; traditional leaders (elders); 

community service, environmental, and other non-governments organizations; academic 

institutions; and religious communities. Commenters noted that the supplemental proposal 

explains that, in order to provide opportunities for meaningful participation early in the process, 

the EPA hosted webinars and conference calls on the Clean Power Plan specifically for 

environmental justice and tribal communities. Commenters stated, however, that the proposal 

does not discuss any targeted outreach efforts for U.S. territories. Commenters urged the agency 

to continue to provide as many interested members of these communities with opportunities for 

meaningful involvement in the rulemaking process, and to thoroughly describe how these 

concerns have been taken into consideration in the final rule.

Commenters stated a general need for the inclusion and protection of environmental 

communities as a result of the proposed rule, as some of these communities are suffering health 

impacts from exposure to pollution will continue to do so into the future unless the EPA offers 

this safeguard. Commenters stated that the negative health effects associated with air pollution 

are especially damaging for vulnerable populations including the elderly, young children, those 

individuals already in poor health, and also communities of color and low-income residents. 

Commenters said that even though the findings and the reduction of co-pollutants are aligned 

with EJ concerns, there is no guarantee that these reductions will occur in historically 

overburdened communities.

Commenters stated that the EPA must require the states to specifically determine ways to reduce 

ongoing burden to these communities and prevent increased exposure to emissions from steps 

taken in the plan while reaching out to these communities specifically to engage them in the 

process. Commenters noted that the EPA discusses steps that states can do to monitor and 

address higher emissions that occur, but preventing exposure remains a much better approach.
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Commenters urged the EPA to prioritize innovative emissions reduction to lessen the health 

impacts to vulnerable communities with significant health disparities. Commenters said that 

exposure to cumulative risks from carbon emissions impacts acute health conditions and long 

term health of vulnerable people with important health disparities or those who live in small and 

underserved communities. Commenters said that air quality is a life and death issue, especially 

among those individuals suffering from chronic respiratory and cardiopulmonary diseases, those 

who are immune-compromised and more generally among women and children. Commenters 

stated that public health statistics indicate a rise in air contaminants across the nation, which 

triggers exposure to irritants to those dealing with health disparities.

Commenters encouraged the EPA to include the following in the final rule: 1) a requirement for 

states to include local leaders from impacted "hot spot" communities in the development and 

execution of State Plans; 2) a directive for states to make long-term community benefit 

investments in these communities disproportionately burdened with pollution; 3) a requirement 

to identify "impacted communities" for inclusion in planning and targeted investments, using 

existing federal government-derived instrument (e.g., EPA's Environmental Justice View or the 

CDFI Fund's CIMS Mapping Tool) to define target areas; and 4) a requirement that states 

conduct an "equity" analysis of their Carbon Reduction Plans.

Commenters urged that the EPA ensure that each state's plan is done inclusively so that equitybased input is heeded.

Commenters asked that the final rule includes language and the subsequent guidance to force 

States to recognize and consider potential disparate impacts the rule might have on 

environmental justice communities, and explicitly direct states to identify environmental justice 

communities and where there are potential disparate impacts, and take steps to avoid or mitigate 

those disparate impacts. Commenters noted that making equity and environmental justice 

concerns a mandatory part of the state implementation planning process is key because the States 

have the ultimate responsibility for crafting their solutions. Commenters stated that some states 

may currently be questioning how to define their environmental justice communities, since there 

is no widely accepted definition, and noted that the EPA is in a position to advise states on how 

to identify vulnerable communities and insure that the BSER measures that each state decides to 

use to meet emission reduction requirements do not adversely impact low income, and/or 

communities of color. Commenters stated that by writing equity into the final rule and 

subsequent guidance, "the EPA will send a message to States that environmental justice is a 

priority."

Commenters noted that the integration of social equity into any carbon reduction planning 

process will increase the quality and reduce the extent of inequitable impacts while a lack of 

attention to social equity in low-carbon initiatives is likely to lead to the worsening of existing 

inequalities. Commenters stated that states should integrate social equity into their plans because: 

1) As a society, we have an obligation to ensure that policies and institutions do not disadvantage 

or exclude weaker groups; 2) Introducing an equity focus to carbon reduction initiatives will help 

extend the reach and overall impact of carbon initiatives; 3) Transition will bring new costs and 

responsibilities to consumers, industry, and regulators that will require political support. 

Disadvantaged communities have a political voice that can help drive through new policies and 

regulation, or conversely, resist change; 4) Disadvantaged communities hold a range of 
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economic assets and resources - land, investment funds, purchasing power, social networks, 

skills and knowledge - that are increasingly recognized but still largely under-utilized in lowcarbon strategies; and 5) Equitable approaches can increase the efficiency and impact of carbon 

reduction investments by simultaneously generating new wealth creating opportunities and social 

and economic benefits for deprived communities and for society as a whole.

Commenters recommended that the EPA work with states to engage local governments to 

promote emission reductions and to share these approaches through multimedia outreach, 

work with states and tribal governments to provide incentives to achieve and implement these 

innovative emission reducing approaches, further efforts to work with states on broad targets for 

consideration of environmental justice communities that have the most critical health concerns 

and vulnerable populations, and work with states to provide incentives for private sector 

partnerships which aim at reducing harmful emissions.

Commenters noted, however, that the proposed rule is devoid of meaningful directions to states 

about how they must incorporate environmental justice considerations into the development and 

implementation of their state implementation plan. Commenters stated that the failure to 

incorporate explicit, proactive environmental justice guidance to states is guaranteed to cause 

havoc for years to come; states will not know what they are required to do to incorporate 

environmental justice into the development or substance of their plans and environmental justice 

communities will become frustrated because state efforts will be ad hoc, rather than consistently 

administered pursuant to clear EPA guidance. Commenters stated that the EPA should address its 

expectations for its state partners related to environmental justice, and explicitly indicate that 

adherence to these expectations will be a basis by which state implementation plans will be 

evaluated. 

Response 4: The EPA appreciates commenters’ interest in the EPA’s providing guidance to 

states with regard to engaging environmental justice leaders, community leaders, and others who 

can speak to the concerns of vulnerable communities. The EPA agrees with the importance of 

such engagement, and the agency guides and directs states accordingly in the final rule. 

The EPA added a requirement to the final rule that a state’s initial submittal must contain a 

description of the engagement with stakeholders including vulnerable communities that the state 

has undertaken already and that it plans for the period of final plan development. Further, states’ 

final plan submittals must contain similar descriptions. The EPA provides guidance to the states 

in the final rule on how to engage communities in a meaningful way. The EPA states in the 

preamble to the final rule that it will continue to provide recommendations and tools to states and 

communities that will help enable meaningful conversations about the concerns of vulnerable 

communities. The EPA consulted its May 2015 Guidance on Considering Environmental Justice 

During the Development of Regulatory Actions in the creation of this final rulemaking and 

encourages states to consult this document as they create their state plans. See sections VIII.E&D 

and IX.B of the final rule preamble of the CPP for more details on how EPA has addressed these 

comments in the rule.
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Co-pollutants

Comment 5: Commenters stated that because the immediate health benefits will be the result of 

reductions in emissions of GHG co-pollutants, it is preferable that co-pollutant emissions 

reductions be intentionally maximized. Commenters noted that the co-pollutants of greatest 

concern are particulate matter (PM), nitrogen oxide, and sulfur dioxide. Commenters stated that 

given the detrimental impact fine PM has on the health of residents in EJ and other communities, 

it only makes sense to utilize and develop strategies that will maximize co-pollutant emissions 

reductions while achieving the goal for GHG emissions reductions. Commenters stated that 

reductions of co-pollutants, and therefore of GHGs also, should be ensured in and near EJ 

communities because these communities tend to have the highest concentrations of, and 

exposure to, air pollutants. Commenters stated that EPA should create one of three policies to 

ensure GHG and co-pollutant emissions reductions under the Clean Power Plan: 1) the best 

policy would be an intentional maximization of co-pollutant emissions reduction and mandated 

reductions of co-pollutant and GHG emissions in and near EJ communities; 2) the next best 

policy would be a mandated reduction of GHG emissions in and near EJ communities so these 

communities could benefit from the accidental reduction of co-pollutants that would accompany 

the reduction in GHG emissions; or 3) a minimally protective policy would prohibit increases in 

emissions that impact EJ communities.

Commenters also indicated that states should be required to develop multi-pollutant 

plans because CO2 is not the only pollutant harmful to environmental justice communities.

Response 5: The EPA appreciates the commenters’ recommendations for approaches states may

take to reducing emissions of co-pollutants in vulnerable communities. In the final rule, the EPA 

encourages states and communities to engage in conversations about how state plan options may 

affect overburdened communities. The EPA notes in Section IX of the preamble to the final rule 

that we expect that EGUs that may increase their GHG emissions as part of how utilities respond 

to the requirements in a state plan would be the cleanest generators, with the lowest emissions of 

co-pollutants The EPA in section IX.E addresses the issue of co-pollutants and the agency 

encourages that states use a multi-pollutant planning approach when developing their plans. 

Additionally, the EPA in section IX.F outlines the path forward for the agency and states in 

terms of addressing the impacts that state plans have on vulnerable communities during the 

implementation phase of this rulemaking. In particular, the EPA commits to assessing the 

impacts of this and other rules on the air quality of communities and encourages states to conduct 

assessments of the impacts of their plans on their vulnerable communities. If adverse impacts are 

identified, the EPA commits to working with the state to address them using Clean Air Act 

authorities.

Communities Shouldering Burden

Comment 6: Commenters expressed concerns about the proposed rules' effect on various 

minority communities and how these communities that are less able to adapt to the consequences 

of climate change may be required to bear the burden of environmental and regulatory effects. 

Commenters stated that the EPA must ensure that the CPP provides real relief to communities 

located near power plants who have suffered the impacts of power plant pollution for decades.
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Commenters stated specific concerns about the impacts of the proposed rule on African 

American communities. Commenters cited an NAACP report, "Energy Justice," which stated 

that approximately 68 percent of African Americans live within 30 miles of a coal plant and that 

the impact of this proximity is clear in the rates of respiratory illnesses in African Americans. 

Commenters additionally stated that, nationwide, African American children are twice as likely 

to experience asthma and three times as likely to be admitted to the hospital for an asthma attack 

versus the national average. Commenters stated that the EPA must ensure that each state's 

development of implementation plans is done inclusively, so that equity-based input is heeded 

and all stakeholders are heard, particularly in communities that are most impacted by coal 

pollution directly as well as indirectly. Commenters cited the 1987 report by the United Church 

of Christ Commission for Racial Justice on Toxic Waste and Race and noted that the study found 

that 3 out of 5 African Americans live in communities with abandoned toxic waste sites and that 

3 of the 5 largest commercial hazardous waste landfills are located in predominantly African 

American or Latino communities.

Commenters referenced an NAACP report titled "Cold Blooded" that analyzed criteria air 

pollutant emissions from coal-fired plants in conjunction with demographic factors, concluding 

that a number of coal plants in the United States had "a disproportionately large and destructive 

effect on the public's health, especially on the health of low-income people and people of color," 

who are more likely to be disproportionately affected by climate change. Commenters stated that 

the report found that 6 million Americans living near coal plants had an average income of 

$18,400, in comparison to the $21,857 average income nationwide, and of those 6 million 

Americans, 39 percent were people of color. Commenters noted that while the 75 plants that 

received a grade of "F" in the study only produced 8 percent of the total electricity, they 

accounted for 14 percent of overall SO2 emissions and 13 percent of NOx emissions and that the 

average per capita income of the people living within 3 miles of these 75 plants (roughly 4 

million people) was $17,500, and nearly 53 percent were people of color. Commenters expanded 

on this analysis by incorporating the data from the NAACP report and analyzing emissions from 

a list of 384,460 coal-fired power plants. Commenters stated that the 197 plants identified in the 

NAACP report that fall in the low-income threshold of $17,505 per capita produced more CO2, 

SO2, and NOx emissions overall in both 2012 and 2013 compared to the 187 other plants in the 

study that are above the low income threshold. Specifically, commenters stated that these plants 

produced on average 33 percent more NOx emissions, 21 percent more SO2 emissions, and 11 

percent more CO2 emissions than the other 187 plants in 2013, and 24 percent more NOx 

emissions, 11 percent more SO2 emissions, and 9 percent more CO2 emissions in 2012. 

Commenters concluded that these 197 plants identified as under the low income threshold would 

be causing adverse impacts in low income communities in comparison with the rest of the plants 

identified in the study.

Commenters stated that environmental justice communities need reductions in air pollution that 

the Clean Power Plan could deliver to them because it appears these neighborhoods bear a 

disproportionate burden of pollution that includes air pollution. Commenters noted that there is 

evidence that a disproportionate number of polluting facilities and other unwanted land uses are 

sited in Environmental Justice communities that most likely cause these neighborhoods to suffer 

from the effects of pollution. Commenters were troubled by the relationship between race, 

income, and pollution that is suggested in the State of New Jersey by a cumulative impacts 

screening tool--and nationally by other reports--and stated that these findings "go against our 
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country's most tightly held values of justice and fairness." Commenters also indicated that 

particulate matter (PM) in general causes health problems in environmental justice communities 

and that the Clean Power Plan provides the EPA with a mechanism to save lives in 

environmental justice communities by mandating emissions reductions in these neighborhoods 

and thereby reducing fine PM concentrations...to levels that are probably not attainable without 

utilizing the Plan. Commenters stated that if used in this fashion the Clean Power Plan would 

also help to fight the very disturbing link that exists between race, income and pollution in New 

Jersey and in the country; if the Clean Power Plan is not utilized in this fashion the EPA will 

miss an opportunity to improve health in environmental justice neighborhoods and to improve 

equity and environmental justice in our country that may never present itself again.

Commenters stated that community differences in health concerns, income disparity, energy 

access, and housing can contribute to health disparities given the disproportionate access to 

energy and environmentally sustainability resources and exposures to unhealthy conditions. 

Commenters noted that living near toxic waste dumps, freeways and other sources of exposures 

that are harmful to health is highly correlated with race as well as socioeconomic 

status. Commenters noted that racial segregation and past U.S. Indian policy also means that 

Indigenous, Blacks, Latino are more likely than Whites to live in poor - quality housing, posing a 

greater risk of cumulative exposure to environmental conditions that can contribute to poor 

health and that approximately 40 percent to 45 percent of Black, Latino, and Native individuals 

live in poor neighborhoods.

Commenters stated specific concerns about the impacts of the proposed rule on Hispanic and 

Latino communities. Commenters noted that 90 percent of Latinos live in metropolitan areas, 

and one out of two lives in a state that doesn't meet air quality standards regularly for ozone and 

air pollutants. Commenters stated that Hispanic children are almost twice as likely as nonHispanic white children to be admitted to the hospital for asthma and that even full-time 

employed Hispanic parents are less likely to be fully insured and have to resort to emergency 

rooms with steep costs for medical treatment due to respiratory distress.

Commenters conducted a national poll among African-American, Latino, and Asian American 

populations to determine whether or not vulnerable populations across the country would support 

the carbon emissions standards. Commenters stated that 50 percent of likely minority voters 

across the country believe that the carbon emission standards are going to increase their energy 

prices and are going to cut jobs; however, 75 percent of those same likely minority voters also 

believe that in the long term, the carbon emission standards are going to make them healthier, it's 

going to spur innovation, and it's going to create jobs. Commenters noted that the people polled 

have a complex understanding of the carbon emission standards and are actually willing to 

accept short-term costs if that's what it takes so that in the long term they'll be healthy. 

Commenters tallied what voters thought was most important to them regarding climate change 

and the environment and noted that "at the very top of the list ... was the moral obligation to 

leave a healthy planet for our children. The second thing was jobs and the economy, and the third 

thing was health." Commenters provided a copy of the poll results.

Commenters questioned why minority communities are at the front gates of toxic oil spills, super 

fund sites, and are living daily in the shadow of coal burning power plants. Commenters said that 

even though minorities have dealt with the devastating health impacts, pollution affect us all.
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Commenters stated that minority communities often borne the effects of harmful energy 

extraction and experience the worst side effects of our energy production cycle. Commenters 

said the mad rush to mine, drill, and burn off our natural resources, often fails to take into 

account the effect on our communities, on our environment and the cost and effect on future 

generations in favor of temporary profit and short-term gain. Commenters said that communities 

in New Mexico are ready for clean energy such as solar and wind, to power the country without 

polluting air and water resources. 

Commenters stated that is essential that the EPA mandate that the co-benefits of this rule 

be equally accessible to all households and communities, and do not become amenities that are 

de facto only accessible to wealthier or racial majority communities. Commenters stated that 

the rule should require states to demonstrate equal access to these benefits, and should evaluate 

state implementation plans on this basis. 

Response 6: The EPA recognizes that overburdened communities are often disproportionately 

impacted by pollution. As stated in section XII.J of the final rule preamble of the CPP, the EPA 

defines environmental justice as the fair treatment and meaningful involvement of all people 

regardless of race, color, national origin, or income with respect to the development, 

implementation, and enforcement of environmental laws, regulations, and policies. The EPA has 

this goal for all communities and persons across this Nation. It will be achieved when everyone 

enjoys the same degree of protection from environmental and health hazards and equal access to 

the decision-making process to have a healthy environment in which to live, learn, and work.

As outlined in sections VIII.E&D, IX and XII.J of the final rule preamble, the EPA has taken a 

number of actions to help ensure that this rule will not have disproportionately high and adverse 

human health or environmental effects on vulnerable communities. The EPA has conducted a 

proximity analysis, encourages states to conduct analyses of their vulnerable communities, 

commits to continuing to engage with communities during implementation, requires states to 

describe their engagement with vulnerable communities as part of their initial submittal and final 

plan submittal, commits to assessing the impact of this and other air quality rules on 

communities’ air quality, and encourages states to conduct their own assessments of the impacts 

of their plans on communities.

Comment 9: Commenters stated that while shifting to more efficient coal combustion may be a 

better alternative than current coal-fired power plants, the total environmental burdens of coal 

remains the same. Commenters noted that in addition to the large health effects and 

environmental burdens placed in environmental justice communities, coal combustion is also 

profoundly uneconomic.

Response 9: The commenters expressed concerns with the total environmental impacts of coal 

emissions. The EPA in the RIA for this rulemaking discusses the economics of coal combustion 

and in section II.A of this preamble the agency discusses the impacts of climate change and in 

section IX the EPA discusses the actions that the agency has taken to ensure that vulnerable 

communities are not disproportionately impacted by this rulemaking. Please see these sections 

for the EPA’s response to this comment. 
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Comment 10: Commenters stated that the proposed regulations appear to go far beyond what the 

CAA requires and will adversely affect low and fixed-income citizens by forcing ratepayers to 

bear the cost of acquiring new renewable electricity sources that are much more expensive (solar 

and wind) than the low to zero-emission sources already located in the city (nuclear and 

hydropower).

Response 10: Commenters raised concerns about the potential impacts that this rulemaking will 

have on the price of electricity. See section XI.C of the final rule preamble of the CPP for the 

EPA’s response to this comment. Additionally, the EPA addresses its authority to regulate 

carbon pollution under section 111(d) in section IV.A of the preamble for this final rulemaking.

Comment 11: Commenters stated that the proposed rule places a heavy burden on the members 

served by rural electric cooperatives and fails to acknowledge the limited resources and unique 

characteristics of rural communities served by distribution cooperatives and that fact that many 

rural electric cooperatives do not have diverse generation sources and have limited ability to 

obtain energy from lower-emitting sources and thus, commenters stated that the proposed rule 

defies the directive of the CAA and will prevent rural electric cooperatives from providing 

affordable and reliable electricity to its members, thus violating the REA.

Commenters noted that low population density affects not only the cost of providing electricity, 

but also electricity demand, making rural Americans much more vulnerable to rising electricity 

costs and because population is more dispersed in America's rural expanses, people tend not to 

live in close proximity, but in detached single unit homes that endure significant exposure to the 

elements. Commenters noted that for these reasons, the average monthly electricity usage for 

households served by electric cooperatives is 1,128 kW a month, significantly higher than the 

IOU average of 829 kWh or even the municipal average of 971 kWh. Commenters also noted 

that because many rural residents do not have access to natural gas and depend on electricity, 

expensive propane and heating oil for warmth during cold months, electric cooperative members 

lack practical, affordable alternatives they can turn to when their electric rates rise.

Commenters stated that the proposed rule exacerbates urban-rural inequalities, placing a heavy 

burden on the rural electric consumers cooperatives serve and in failing to acknowledge the 

difficulties rural Americans face, the EPA's proposed rule has set up rural communities for 

failure. Commenters noted that the rule requires that roughly half of the total reductions in 

greenhouse gases be achieved through implementing energy efficiency measures, yet the rule 

fails to consider the EPA's own analysis that energy efficiency measures undertaken in the 

residential sector are considerably less effective on a dollar-per-KWh-reduction basis than those 

undertaken in the industrial and commercial sectors. Commenters stated that in proposing

unrealistic, binding, state-wide targets, the proposed rule threatens to strand assets, encumber 

reliability, and increase the cost of electricity in rural America and America's most vulnerable 

residents.

Commenters noted that over one-half of rural electric cooperatives' members are residential and 

moreover, rural electric co-ops serve the vast majority of the nation's persistent poverty counties 

(327 out of 353, or 93 percent). Commenters stated that these counties have deeply entrenched 

poverty with rates consistently 20 percent or above and will incur higher than "average" costs to 

achieve the CPP mandates. Commenters stated that the CPP fails to acknowledge the need of a 
78

safety net for these cooperative members to meet the EPA's proposed rule and requested the CPP 

address the issues and concerns of these members in the final rule.

Commenters stated that small systems, have no large investor base to draw from because they are 

customer owned and cooperatively operated and has no large urban customer base across which 

to spread increased operating expenses. Commenters stated that much of the power and energy 

generated was long ago committed under long-term power sales, agreements to third-party 

utilities, and the cooperative has only limited ability to pass through increases in cost to those 

long-term purchasers. In considering the proposed supplemental rule, discretion should be 

exercised in implementing it to take into account the disproportionate cost impacts the proposed 

rule will have on small utilities, especially those like Desert.

Response 11: The comments expressed concerns that the CPP will have on rural electric 

cooperatives. See section V.A of the final rule preamble of the CPP in which EPA details how it 

addressed these concerns. 

Comment 12: Commenters stated that West Virginia's job force would suffer greatly from 

reductions in coal demand, which would by extension cause suffering in low-income and 

minority population communities that rely on these jobs. Commenters noted that the coal 

industry, and associated transportation and power generation industries, employ 63,896 people, 

accounting for 11.3% of employment by private industry in the state with these industries 

accounting for 17.5% of income paid by private industry to West Virginians, with combined

labor income impacts of $3.9 billion. Commenters noted that studies have shown that increasing 

the regulatory burdens placed on these industries can lead to significant job losses, as well as the 

loss of hundreds of millions of dollars in income across West Virginia. Commenters stated that 

job loss as a result of decreased demand for coal will also lower the tax base in the states and 

municipalities where displaced coal mining employees live, leading to increased poverty and 

negative health outcomes. Commenters also stated that the rule will increase electricity in gas 

prices in the state, which as severe economic consequences on environmental justice 

communities.

Response 12: The commenters expressed concerns that this rulemaking could potentially have 

on the coal industry and consequently on jobs in West Virginia. The EPA responds to the issue 

regarding potential job losses and recommends that states in designing their plans should 

consider the effects of their plans on employment and overall economic development. Please see 

sections VIII.G and IX.C of the final rule preamble of the CPP for the EPA’s response to this 

comment.

Comment 13: Commenters expressed concern with the proposed rule regarding its effect on 

disadvantaged communities within the State of Arkansas. Commenters noted that Arkansas' 44% 

reduction target, the highest in the nation, is higher than that of any surrounding state and that all 

18 of the states that have higher carbon emission rates (lbs/MWh) than Arkansas have lower 

reduction targets. Commenters stated that Arkansas bears a disproportionate burden of 

compliance, as Arkansas has the 5th lowest per capita income and the 2nd highest child poverty 

rate in the United States. Commenters noted that the average Arkansas household spends about 
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20 percent of its after tax income on energy, with electricity representing more than 77 percent of 

that cost. Commenters urged that sharp increase in electricity costs will be especially hard on 

lower income households, as cost of living or salary increases will not likely keep pace with 

electricity prices. Commenters also noted that "the proposed rule will result in the forced, early

retirement of coal plants, which provide a stable tax and employment base for the communities 

in which they are located...such plant closures will further exacerbate the economic strife already 

being experienced in those communities, several of which are in high unemployment counties 

within Arkansas." 

Commenters attached a document titled "Energy Cost Impacts on Arkansas Families" which 

assesses the impact of energy costs on Arkansas households using energy consumption survey 

date and current energy price data from the U.S. Department of Energy's EIA. Energy costs are 

summarized by household income group using 2013 Arkansas data from the U.S. Bureau of the 

Census. Energy expenditures as a percentage of after-tax income are estimated for the effects of 

federal and state income taxes and federal social insurance payments.

Commenters noted the following key findings from the paper which further detail the adverse 

effect the proposed rule will have on economically disadvantaged families in the State of 

Arkansas:

• Some 61% of Arkansas's families have gross annual incomes of $50,000 or less, 

with an average after-tax income of $22,116. These households collectively 

receive 27% of Arkansas's total household income. The median gross household 

income of Arkansas families in 2012 was $40,112, 21% below the national 

median household income of $51,017. The average gross income of Arkansas 

households in 2012 was $54,116, 24% below the national average of $71,274.

• Measured in constant 1990 prices, residential electricity prices in Arkansas are 

34% below their 1990 levels. After more than a decade of sharp price increases, 

residential natural gas prices are 13% above their 1990 levels. The relative low 

price of electricity in Arkansas reflects in part the state's dependence on low-cost 

domestic coal for a majority of its electric power supplies. In 2013, Arkansas will 

generate approximately 53% of its electricity from domestic coal.

• Energy costs are consuming the household incomes of Arkansas's low- and 

middle-income families at levels comparable to other necessities such as housing, 

food, and health care. Arkansas families spend an estimated average of 12% of 

their after-tax incomes on energy. The 683,000 Arkansas households earning less 

than $50,000 devote an estimated average of 20% of their after-tax incomes to 

energy.

• The 111,000 poorest families in Arkansas, living well below the federal poverty 

line and earning less than $10,000 per year, are being squeezed hardest by energy 

cost increases. Many of these families receive state and other energy assistance to 

help reduce energy costs. Yet for most lower-income families and for the 34% of 

Arkansas households receiving Social Security, energy costs are competing with 

other basic necessities for the family budget.
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Response 13: Commenters raised concerns about the potential impacts that this rulemaking will 

have on the price of electricity in the State of Arkansas. The EPA addresses these comments in 

section IX.C of the final rule preamble in which the EPA encourages states to take steps to 

ensure that low-income communities have additional access to EE/RE benefits. In section IX.C,

the EPA provides examples of state programs including those conducted by Maryland, New 

York, and Colorado that assist communities in increasing their ability to access RE/EE and 

financial assistance programs. The EPA encourages states in developing of their plans to use 

these and other models to address issues around increasing low-income communities’ access to 

EE/RE and financial assistance programs. Additionally, as stated in sections IX.C-D of the 

preamble, the EPA in the coming months will continue to provide information resources for lowincome communities and states on existing federal, state, local, and other financial assistance 

programs to encourage EE/RE that are already available to low-income communities. The EPA 

will also provide a catalog of current or recent state and local programs that have successfully 

helped communities adopt EE/RE measures. The goal of these resources is to help communities 

gain the benefits of this rulemaking by encouraging that states use these types of tools in their 

state plans. Finally, the EPA is making available to states the Clean Energy Incentive Program, 

which can bring additional RE and demand-side EE to communities; incentives for EE are 

targeted specifically to low-income communities.

Comment 14: Commenters noted several difficulties they face in ensuring environmental justice 

within Tennessee's compliance plan without a mandate to do so.

Commenters noted that in Tennessee, 24.1% of homeowners and 42.6% of renters live in 

unaffordable housing, which is defined as households that spend 30% or more of their income on 

housing costs. Commenters stated that 20% of working families are severely housing cost 

burdened, meaning that they spend 50% of their income on housing and that the numbers of 

Tennesseans living in unaffordable housing continues to rise. Commenters noted that 33% of all 

Tennessee households are renters and that more than 42% of Tennessee households that rent are 

cost burdened and one-quarter of renters spend more than half their income on housing costs.

Commenters also noted that the TVA's energy efficiency programs are among the most limited 

in the nation, as Tennessee ranks 38th among the states in energy savings largely because TVA 

has one of the smallest energy efficiency programs in the nation. Commenters further noted that 

TVA's energy efficiency programs are not accessible to those with the fewest resources. 

Commenters stated that the design of TVA's energy efficiency program, which involves 

customers paying for a home energy audit to obtain recommendations to increase energy 

efficiency in their homes so that they can access TVA rebates for installing the recommended 

measures, assumes that the customer has money to pay for the energy efficiency work or has at 

least a 620 credit score to access a TVA on-bill financing program. Commenters stated that the 

program excludes renters, those with a credit score below 620, and those who do not have the 

money to cover the cost of installing the energy efficiency measures which creates inequitable 

outcomes for low income people who could benefit most from this program. Commenters added 

that TVA spend no money on lower income energy efficiency programs, in contrast to the 

national average for utility spending on lower income programs of 7% according to the 

Consortium for Energy Efficiency's 2013 study.
81

Commenters were also concerned that the Tennessee Department of Environment and 

Conservation (TDEC) does not have the experience and tools to ensure fairness and protection of 

utility customers within the development of its compliance plan. Commenters stated that 

Tennessee does not have the tools needed to address and fairly manage the distribution of 

compliance program costs and benefits among customers because it has no authority over or 

experience in TVA rate making or program design processes. Commenters noted that because 

the EPA has delegated to the State of Tennessee the authority to implement and enforce its 

environmental regulations, TVA must comply with TDEC regulations; however TVA has always 

protected its rate making authority from state oversight.

Response 14: Commenters raised concerns about the potential impacts that this rulemaking will 

have on the price of electricity in the State of Tennessee. See section XI.C of the final rule 

preamble of the CPP for information regarding electricity prices. The EPA addresses these 

comments in section IX.C of the final rule preamble, in which the EPA encourages states to take 

steps to make sure that low-income communities get more access to EE/RE benefits. In section 

IX.C, the EPA provides some examples of state programs including those conducted by 

Maryland, New York, and Colorado that assist communities in increasing their ability to access 

RE/EE and financial assistance programs. The EPA encourages states in developing their plans 

to use these and other models to address issues around increasing low-income communities’

access to EE/RE and financial assistance programs. Additionally, as stated in sections IX.C-D of 

the preamble, the EPA in the coming months will continue to provide information resources for 

communities and states on existing federal, state, local, and other financial assistance programs 

to encourage EE/RE that are already available to low-income communities. The EPA will also 

provide a catalog of current or recent state and local programs that have successfully helped 

communities adopt EE/RE measures. The goal of these resources is to help low-income 

communities gain the benefits of this rulemaking by encouraging that states use these types of 

tools in their state plans. Finally, the EPA is making available to states the Clean Energy 

Incentive Program, which can bring additional RE and demand-side EE to communities; 

incentives for EE are targeted specifically to low-income communities.

Cap and Trade

Comment 15: Commenters raised environmental justice concerns surrounding the use of 

regional emissions trading programs.

Commenters stated that they do not support any carbon trading mechanism as an option to 

achieve the proposed BSER in the Clean Power Plan, as they may lead to adverse effects on lowincome or minority communities.

Commenters stated that the Clean Power Plan as written is very slanted towards states initiating 

Cap & Trade programs, where facilities are given the opportunity to buy and sell permits to 

pollute. Commenters stated that if cap and trade is implemented, there must be controls 

integrated into the process to make sure that the total reductions in carbon dioxide do not lead to 

disparate impacts of other pollutants such as sulfur oxides, nitrogen oxides, and particulate 

matter in environmentally stressed communities. Commenters offered a possible solution to this 

issue: "create an emissions or operating threshold that would mandate additional monitoring of 
82

any fossil fuel unit under this proposed plan, to make sure that our environmentally sensitive 

communities do not have to absorb the local burden of increased emissions while overall 

emissions have decreased." Commenters pointed to California's trading program in which often 

results in allowing the most polluting companies to 'buy their way out' of compliance, and not 

eliminating pollution in the most impacted communities. Commenters instead expressed support 

for a carbon tax while making renewable energy options accessible and affordable to low-income 

communities and communities of color. Commenters stated that if states choose to embark or 

continue with a Cap & Trade program, the state implementation plans (SIPs) must address the 

potential negative impacts that commenters stated "has the potential to exacerbate the 

substandard environmental quality in EJ communities." Commenters noted that a Cap & Trade 

program gives EGUs the ability to pay their way out of compliance through unfettered 

allowance/permit allocation, which allows the oldest and dirtiest facilities to avoid reducing 

emissions which poses a problem in an environmental justice context in that communities of 

color and low-income communities are disproportionately affected by concentrations of copollutants, which are products of fossil fuel combustion. Commenters provided a list of 

stipulations that must be implemented for states or regions with pre-existing Cap & Trade 

programs, as well as those intending to create one to comply with the Rule: (1) Complete an 

analysis of other market-based compliance mechanisms; (2) Any market-based compliance 

program must be designed to guarantee that they do not increase the emissions of co-pollutants, 

especially in EJ communities ; (3) Restrict allowance allocations trading and offset use - or fee 

options - among facilities responsible for the worst health impacts; (4) Create trading zones to 

incentivize pollution reduction in the areas with the dirtiest air; (5) Use revenues to improve air 

quality in highly polluted areas and enhance the ability of local residents to adapt to climate 

change impacts; (6) Mandate that "long-term investments [are moved] into disadvantaged 

communities to fund environmental programs that have co-benefits, such as economic and 

employment benefits"; (7) Create a climate gap neighborhoods fund to protect the most 

vulnerable neighborhoods.

Commenters posed that in both re-dispatch and emissions budget trading programs, location is 

important and that the potential of re-dispatch and trading schemes in combination, can have 

disproportionate impacts on environmental justice communities. Commenters noted that the 

disproportionality of both costs and benefits of implementation of AB32 and RGGI have not 

been adequately documented or demonstrated, including identified issues such as exacerbation of 

pollution 'hot-spots' in environmental justice communities. Commenters noted that the EPA 

states that through 2012, the RGGI states invested approximately Dollar 460 million of proceeds 

into energy efficiency programs and the participating RGGI states estimate that those 

investments are providing benefits to energy consumers in the region of more than Dollar 1.8 

billion in lifetime energy savings. Yet, In New York, a RGGI state for example, the Home 

Energy Affordability Gap for income vulnerable households has increased between 2011 and 

2013 to Dollar 4,199,921,779, an increase of approximately Dollar 99,000,000. Commenters 

noted that at the same time, approximately 25,000 less heating/cooling average annual bills were 

covered by LIHEAP and the average dollar amount by which actual home energy bills exceeded 

affordable home energy rose from Dollar 1,774 to Dollar 1,821 per household. Commenters 

noted that in 2012, the cumulative revenue from RGGI totals $707,225,905 - of which 18% is 

dedicated to what can be defined as Environmental Justice populations for rate relief and 

efficiency. Commenters noted that the reported also stated that more than 17% of cumulative 

RGGI investments to date, fund direct bill assistance programs in the region. Commenters 
83

concluded that this means that potentially, less than 1% of energy efficiency investments have 

benefitted environmental justice households.

Commenters also noted that all existing state emission budget trading programs addressing GHG 

emissions include out-of-sector, project based emission offsets, which may be used to cover a 

portion of the compliance obligation of affected sources and stated that environmental justice 

advocates do not support use of offsets as a method of compliance obligations by states, either 

domestically or internationally. Commenters stated health and environmental outcomes should 

be based on those affected by the operations of EGUs in their own community. Commenters 

noted that the EPA stated that some groups thought that the EPA should put forward a model 

rule for an interstate emissions credit trading program that could be easily adopted by states who 

wanted to use such a program for its plan and that at stakeholder meetings, some commenters 

noted that trading programs like RGGI have been successful at reducing GHGs. Commenters 

stated that the EPA should document to what extent environmental justice stakeholder groups 

were consulted, both in scope and quantity of engagement, specifically on interstate emissions 

trading programs. Commenters noted that consultation with the power industry, including 

utilities, power generators, and state regulatory authorities does not and should not constitute 

representation or "meaningful engagement" of environmental justice stakeholders.

Commenters stated that while there are currently two active market-based CO2 emission 

reduction programs operating in the United States (the Regional Greenhouse Gas Initiative 

(RGGI), a market-based CO2 emission reduction program established in 2009 in 10 Northeast 

states is currently active, and California's market-based GHG emissions trading program 

established under the authority of the 2006 Global Warming Solutions Act, known as Assembly 

Bill 32), market based CO2 emission trading programs like Cap and Trade will not guarantee that 

states achieve absolute reductions of GHG and co-pollutant emissions in communities that are 

already pollution-burdened. Commenters noted that while the Clean Power Plan discusses how 

investments of both RGGI and California's cap and trade program have been used to support 

energy efficiency programs, there has been no analysis to examine if the dividends actually 

reached "disadvantaged communities" and targeted specific communities to provide technology 

and resources to improve public health. Commenters stated that even if cap and trade programs 

do benefit environmental justice neighborhoods to some extent, "we do not find this an adequate 

trade-off for a failure to guaranty emissions reductions that will improve health in these 

areas. Hence, it is critical that the EPA require states to perform an analysis to evaluate the direct 

and indirect costs and benefits of specific carbon reduction strategies on EJ communities, and 

most importantly comply with Executive Order 12898 and Title VI of the Civil Rights Act of 

1964."

Commenters noted that EJ organizations have generally been against carbon trading as a climate 

change mitigation policy and that this opposition has often centered on the facts that carbon 

trading has not directly addressed the amount of co-pollutant emissions and has not guaranteed 

emissions reductions of GHG's, and therefore also not of co-pollutants, in or near EJ 

communities. Commenters stated that in a worst case scenario carbon trading can even allow an 

increase in emissions at certain locations and that there is also concern that emission offsets can 

prevent emissions reductions in the community where the facility seeking the offset is located 

and possibly even harm the community where it is being applied. 
84

Commenters noted that GHG emission trades could implicate the distribution of associated copollutants and stated that a regional GHG trading program can produce environmentally unjust 

outcomes by placing a disproportionate burden on a region's low-income communities. 

Commenters noted that older, larger and dirtier facilities are generally located in low-income 

communities and because of the high cost associated with retrofitting existing plants, these 

facilities are more likely to buy credits to pollute instead of controlling their own pollution. 

Commenters further stated that the states that house many of these old facilities are likely to buy 

credits from other states to avoid these retrofitting costs, thus meeting GHG pollution goals 

while continuing to harm communities than cannot otherwise protect themselves.

Commenters stated that, should a regional approach become a consideration for South Carolina, 

some environmental justice communities are concerned that dirtier plants, such as older, coalfired units, may 'trade' their way out (i.e. purchase credits to avoid) installing new controls, 

which could result in local areas of higher pollution levels in poorer communities. Commenters 

recommended that the EPA utilize the staff and resources of its own Office of Environmental 

Justice to respond to the concerns that result from regional trading on the national level, 

including the additional impacts of increased emissions of co-pollutants, prior to publishing its 

final regulation.

Commenters stated that because the Clean Power Plan relies on state-based goals, it does 

not effectively address how individual states or regional partners should account for the total 

environmental costs of their choices on other states or regions. Commenters noted that 

while some environmental benefits may be realized in one state, it may be at the expense of 

environmental justice communities in other states which create an additional risk of 

environmental burden shifting where regional carbon reduction mechanisms are poorly 

constructed---for example, poorly constructed cap and trade programs. Commenters urged the 

EPA to provide guidance to ensure that states do not reduce CO2 levels at the expense of 

environmental quality in other states, especially in environmental justice communities.

Response 15: The EPA appreciates commenters’ concerns about increases in pollution, 

particularly of co-pollutants, in overburdened communities. The EPA anticipates that most 

communities will benefit from the implementation of this rule but acknowledges that localized 

increases in co-pollutants are possible. Therefore, the EPA commits to conduct an assessment 

during program implementation to determine whether all communities are benefiting from the 

rule or whether there are communities experiencing adverse impacts. The EPA encourages states 

to conduct analyses of their own. Further, the EPA commits to work with states to address any 

adverse impacts that may be identified. The EPA’s approach is discussed more fully in section 

IX.F of the final preamble to the rule. 

Comment 16: Commenters expressed further concerns with the lack of inclusion of 

environmental justice surrounding nuclear energy.

Commenters stated that "nuclear energy should not be considered a form of clean of energy, it 

should not be expanded, and no scheduled shut-downs of existing nuclear facilities should be 

extended." Commenters also stated that "the definition of clean energy does not involve nuclear 

power" and that "until the massive legacy of pollution from the last round of nuclear power 

plants is addressed, and nuclear energy generation no longer produces a waste product that is 
85

almost uniquely toxic, no new nuclear generation should be expanded, and no EJ communities 

should be the host of waste sites."

Commenters noted that nuclear waste sites tend to be sited in areas with marginalized 

populations that have difficulty finding a voice in decision making. Commenters stated that 

if states continue to construct and operated nuclear reactors near environmental justice areas, it 

creates substantial health risks to these minority communities.

Response 16: The commenters expressed concerns regarding the impact of nuclear energy on 

environmental justice communities. The EPA acknowledges the comments and has determined 

that the BSER for the final rule will not include either of the proposed provisions for existing and 

new nuclear units in the setting of state goals.

Comment 17: Commenters expressed concern with the lack of environmental justice 

consideration for various practices related to the combustion of biomass as an alternative fuel. 

Commenters stated that EPA is incentivizing the use of biomass as a CO2 mitigation option by 

classifying it as a clean energy source. Commenters stated that this is "a faulty and troubling 

claim in an EJ and overall environmental context as the burning of biomass is more carbonintensive than coal and as biomass facilities are a source of several dangerously toxic copollutants, at times emitting 14 times the amount as coal plants." Commenters noted that the 

promotion of biomass "ignores recommendations brought forward by the EPA's own EJ advisory 

council, which calls for the consideration of the 'potential for industrial pollution and other 

significant quality of life impacts to surrounding communities by so-called 'green' businesses and 

industries.'"

Commenters stated concern that the Clean Power Plan and the biogenic emissions framework 

together will result in an increase of health consequences and related economic burdens for 

frontline communities of color and low-income communities across the United States. 

Commenters urged EPA to prioritize the reduction of pollution burdens in communities 

disproportionately impacted, not promote such avenues for greater harm.

Commenters stated that the Clean Power Plan must become more restrictive --not less-- towards 

other combustion energy sources, such as biomass, to make significant reductions in greenhouse 

has output in and near environmental justice communities.

Response 17: The EPA’s position on this issue remains the same as it did in the proposed rule

(79 FR 34949-34950). As we stated in the proposal for this rule, while many locations with 

EGUs will experience improved air quality for pollutants such as PM2.5, ozone, and HAPs due 

to implementation of this rule, we recognize that the emissions of these pollutants, their 

precursors and GHGs may increase at other EGU locations as a result of this rule. This may 

occur at EGUs that undertake a physical or operational change to improve a unit’s efficiency that 

in turn results in an increase in the unit’s dispatch and an increase in the unit’s annual emissions 

of GHGs including CO2 emissions resulting from the burning of biogenic feedstocks for EGUs 

that use biomass as fuel, and other regulated pollutants. GHGs are not localized pollutants and 

this rule is not altering existing regulations of non-GHGs pollutants. Non-GHG emissions will 

continue to be subject to important safeguards that protect communities. Unlike, criteria 
86

pollutants, there is no National Ambient Air Quality Standard for GHGs and the “Endangerment 

and Cause or Contribute Finding” determined that GHGs have global climate-change inducing 

effects (75 FR 66497). 

The EPA recognizes that the use of some biomass-derived fuels can play a role in controlling 

increases of CO2 levels in the atmosphere. The use of some kinds of biomass has the potential to offer a 

wide range of environmental benefits, including carbon benefits. However, these benefits can typically 

only be realized if biomass feedstocks are sourced responsibly and attributes of the carbon cycle related to 

the biomass feedstock are taken into account.

A discussion regarding the use of some biomass feedstocks for compliance purposes can be 

found in Section VIII.I.2.c and Section VIII.K.1 of the preamble.

Comment 18: Commenters had concerns about the inclusion of environmental justice when 

considering CCS in implementation plans.

Commenters stated that "due in large part to its experimental nature and the possibility of its 

disproportionate use in and near EJ communities many EJ advocates have opposed the use of 

carbon capture and sequestration (CCS) as a method of mitigating climate change." Commenters 

noted that "disproportionate siting would expose these communities to any accidents associated 

with CCS facilities and expose residents to a significant amount of local air pollution" and urged 

EPA to disallow the inclusion of CCS in state implementation plans. Commenters asked that the 

ban on use of CCS be incorporated into building block one.

Commenters stated that CCS is a "false solution” to mitigating climate change and also said that 

"false solutions such as 'clean coal', also known as carbon capture and sequestration, are 

designed to facilitate the continued use of fossil fuels. These false solutions to climate change 

can exacerbate and expand environmental injustice, particularly when disproportionate siting 

issues are also considered."

Response 18: The EPA has indicated that affected EGUs may utilize retrofit CCS technology to 

reduce reported stack CO2 emissions from the EGU. Affected EGUs that apply CCS under a 

state plan must meet the same reporting and sequestration requirements for sequestered CO2 as 

new units with CCS capability subject to the final CAA section 111(b) rule for new 

EGUs. Specifically, the final CAA section 111(b) rule for new sources requires that, if a new 

affected EGU uses CCS to meet the applicable CO2 emission limit, the EGU must report in 

accordance with 40 CFR part 98 subpart PP (Suppliers of Carbon Dioxide), and the captured 

CO2 must be injected at a facility or facilities that report in accordance with 40 CFR part 98 

subpart RR (Geologic Sequestration of Carbon Dioxide). See 40 CFR part 60.46Da(h)(5) and 

part 60.5555(d). Taken together, these requirements ensure that the amount of captured and 

sequestered CO2 will be tracked as appropriate at project- and national-levels, and that the status 

of the CO2 in its sequestration site will be monitored, including air-side monitoring and 

reporting. 

For reasons noted in the proposal and in the final preamble, the EPA did not propose nor finalize 

CCS as a component of the BSER for existing EGUs. However, the EPA noted that CCS may be 

a viable CO2 mitigation technology at some existing sources and that it would be available to 

states and to sources as a compliance option. The EPA believes that existing sources that 
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implement CCS will so when they can take advantage of opportunities to reduce the cost of CCS 

implementation by selling the captured CO2 for use in Enhanced Oil Recovery (EOR) operations. 

Those operations would take place at existing operational and depleted oil fields.

Comment 19: Commenters stated that the EPA should do more to account for environmental 

justice concerns surrounding fracking and use of natural gas. Commenters noted that these 

projects are largely housed in communities of low socioeconomic status and create harmful 

emissions similar to those of coal-fired power plants.

Commenters stated that most of the environmental and economic consequences associated with 

natural gas fracturing are well documented and include issues such as price vitality, 

contamination of ground and drinking water, induction of seismic events, and harm to air quality. 

Commenters noted that the EPA posed a series of questions in 2011 that remain unanswered 

regarding the environmental justice implications of hydraulic fracking whose topics included 

disproportionately targeted or wastewater treatment facilities near environmental justice 

communities, perceived socioeconomic status of residents and their inability to challenge 

decisions, and whether water is being disproportionately taken from environmental justice 

communities for use in the fracturing process. Commenters added that the amount of water used 

in natural gas fracturing and the chemicals added in the fracturing process also pose significant 

threats to environmental justice communities as it is estimated that each well consumes 

approximately 4 million gallons of freshwater during the drilling and extraction process. 

Commenters expressed concern over the Clean Power Plan's incorporation of natural gas into its 

BSER determination. Commenters stated that the "rising cost of natural gas consequent upon 

increased use for electricity generation would also impose disproportionate economic impacts on 

low-income and minority populations that the EPA has ignored." Commenters stated that the 

EPA needs to "re-evaluate its characterization of natural gas as BSER, using complete, current 

and reliable data and taking into account environmental justice considerations, before it may 

characterize natural gas as BSER or allow states to credit increased use of natural gas as an 

effective means for reducing carbon emissions." Commenters stated that the EPA has proposed 

to rely heavily on natural gas for carbon emission reductions with this rule, but fails to account 

for the disparate impacts of rising natural gas prices on low-income households, many of whom 

already experience severe conflicts regarding whether and how to pay for necessities including 

food, fuel, medicine, and rent.

Response 19: The EPA does not provide a response to the comment regarding the impacts of 

hydraulic fracking as it is outside the scope of the CPP. In regard to the comment about the 

EPA’s characterization of natural gas in the setting of BSER, see section V.A of the final rule 

preamble of the CPP. In regard to the actions that the EPA put in place to ensure that this 

rulemaking does not disproportionately impact vulnerable communities, please see section IX of 

the final rule preamble. 

Comment 20: Commenters suggested that communities like those in southwestern Pennsylvania 

coal fields should have a significant role to play in this process now and in the future because 

they are the ones that stand to be among the most impacted through this transition to a coal-free 
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generation. Commenters supported the CPP for the environmental justice benefits associated 

with reduced coal mining.

Response 20: The EPA describes the benefits of this rulemaking to communities in sections IX 

and XII.J of the final rule preamble of the CPP. In addition, in the final rule, the EPA encourages 

states to consider the effects of their plans on employment and economic development, 

especially in communities in transition such as that described by the commenters, and to engage 

with workers in the utility sector as they develop their plans.

Comment 21: Commenters stated that if environmental justice is the priority for the EPA that 

the agency insists it is, then the EPA "should put its lawyers, including those that represent EPA 

from the Department of Justice, to work developing the legal support for policies recommended 

by...EJ organizations that will protect and benefit EJ communities both within and outside of the 

context of the Clean Power Plan" and that "this legal support should not be limited to the Clean 

Air Act." Commenters urged the EPA to consult with a wide range of attorneys (those working 

in the government, for environmental organizations, and in EJ communities) when developing 

this legal support while allowing environmental justice organizations to be a part of, and help 

guide, the legal discussions.

Response 21: As stated in this final rulemaking, environmental justice is an important priority 

for the agency. The EPA’s Office of General Counsel and Office of Environmental Justice have 

been involved in developing the EPA’s approaches to addressing EJ issues, and issues of concern 

to vulnerable communities more generally, in this final rule. The EPA considered carefully the 

input provided by many environmental justice organizations as it developed these approaches. 

More information on how the agency considered environmental justice impacts in the 

rulemaking is available in sections IX and XII.J of this final rule preamble of the CPP.

Comment 22: Commenters stated that climate change will amplify existing vulnerabilities and 

create new risks for natural and human systems. Commenters added that strong scientific 

evidence shows that environmental justice ("EJ") communities are especially vulnerable to the 

impacts of climate change because they tend to have more limited adaptive capacities and are 

more dependent on climate-sensitive resources. Commenters noted that the proposed Clean 

Power Plan presents an opportunity for government to address the impact of carbon pollution on 

EJ communities and garner public information and participation as suggested by the E.O.

Commenters stated that the Clean Power Plan should not encourage the replacement of one fossil 

fuel with another, but should instead encourage clean, safe, renewable energy and increased 

energy efficiency. Commenters urged the EPA to put forward a final rule that adequately 

addresses carbon pollution from the power sector, one that will result in the transformational 

change needed to end our dependence on dirty energy. Commenters noted that climate change 

is impacting a wide range of conditions in our communities including human health, energy 

systems, food and agriculture, ecosystems, and transportation and that the effects of climate 

change are interrelated with other environmental, social and economic conditions, which create 

disproportionate vulnerabilities on low-income and communities of color, referred to as 
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environmental justice communities. Commenters urged the EPA to set more aggressive emission 

reduction targets and increase energy efficiency and renewable energy goals.

Commenters urged the EPA to include safeguards in the rule to protect environmental justice 

communities living near power plants that may be subjected to disproportionate health impacts 

from power plants that do not choose to upgrade. Similarly, commenters asked the EPA to 

ensure equal protection for those who are so often left out of the conversation of climate change 

and environmental degradation but asked to bear the burden.

Response 22: The commenters assert that these communities are especially vulnerable to the 

impacts of climate change. The EPA acknowledges these concerns and took environmental 

justice issues seriously when developing this rule. See sections IX and XII.J of the final rule 

preamble of the CPP for a more detailed response to this comment. In these sections, the EPA 

commits to continue engaging with vulnerable communities, encourages that states do so as they 

develop their plans, and requires that states describe their engagement with vulnerable 

communities in their initial and final plan submittals.

Comment 23: Commenters expressed concern about the inclusion of Tribes in environmental 

justice initiatives take by the EPA.

Commenters stated concern with the EPA's statement that is it not practicable to determine 

whether there would be disproportionately high and adverse human health or environmental 

effects on Indigenous populations from this rule because the EPA cannot accurately predict how 

carbon dioxide emissions from specific EGUs would change as an outcome of the proposed rule 

due to jurisdiction-led implementation. Commenters stated that they find this statement 

unacceptable and urged the EPA to conduct a thorough environmental justice analysis of the 

proposed rule and its impacts on tribes. Commenters additionally stated that the EPA has not 

done enough to protect the Ute Indian Tribe from power plant emissions, including GHG 

emissions on the Uintah and Ouray Indian Reservation in Utah. Commenters noted that the 

Bonanza Power Plant operating on land within the Reservation is in violation of the CAA as the 

plan has been operating without a Title V permit required for all major sources under the Act, 

and it has operated without an appropriate PSD permit since 2001. Commenters stated that the 

EPA will perpetuate environmental justice against the Ute Indian Tribe unless is takes effective 

action regarding the Bonanza Power plant.

Commenters stated that the Navajo Nation is considered an environmental justice community 

and the U.S. EPA and the Navajo Nation EPA have an obligation to provide a safe and healthy 

environment for all people regardless of race, color, national origin, or income in order for these 

people to live, learn, and work. Commenters noted that Native American communities have been 

demanding justice for many years, "but to this day...are still fighting the same fight to make a 

change for the survival of (our) people. We have not seen justice served in regards to the 

pollution coming from power plants even though we have been to many meetings with the

owners and have made comments during the public comment periods." Commenters further 

noted that community members residing near the power plants and mines are being ignored when 

they raise concerns about their livestock dying from contaminated water and pollution. Sheep 

and cattle are the source of dietary supplement for the Dine people, so for these concerns to 
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continue to be ignored and for the health impacts to be ignored, it poses a huge environmental 

justice issue that needs to be addressed.

Commenters noted that the EPA is likely to feel severe pressure from well-financed 

environmental groups to reduce CO2 emissions on the Navajo Nation even more than what is 

currently stated in the supplemental proposed rule and stated that these groups may take further 

actions to curtail or end operation of the power plants located on the Navajo Nation; however, 

this is a situation where the Navajo Nation's environmental justice concerns should prevail. 

Commenters noted that the NGS and FCPP are an economic lifeline for the Navajo Nation and 

closing down or severely hindering the operation of these power plants would be devastating to 

the Navajo people and the Navajo Nation economy as the Navajo people live in extreme poverty. 

Commenters supported the EPA's efforts to take meaningful steps to combat climate change, but 

noted that the Navajo Nation is one of the indigenous populations that the Action Development 

Process (ADP) was designed to protect and the Navajo Nation has already suffered 

disproportionate impacts from other environmental rulemakings. Commenters stressed that the 

EPA carefully consider how the actions it takes in finalizing the supplemental proposed rule may 

adversely affect the Navajo Nation, including its people and its fragile economy.

Response 23: The response to this comment is addressed elsewhere in this section and in 

section XII.F of the final rule preamble of the CPP.

Comment 24: Commenters stated that the EPA's proposed reduction of carbon emissions for 

power plants on the Navajo Nation (4-6% by 2030) "is weak, unfair, and does not do justice for 

the Dine who have and continue to suffer the burden of the impacts from these 2 dirty coal-fired 

power plants for the past 50 years." Commenters noted that the U.S. EPA met with the Navajo 

Nation Carbon Team to discuss the Clean Power Plan supplemental proposal, but further noted 

that this Carbon Team does not include "the important voices of the Dine who reside near these 

power plants, it does not include the voices of the elders, it does not include the voices of the 

youth, and it does not include the voices of those who are advocating for clean air and clean 

water for future generations." Commenters stated that there is an obvious disconnect between the 

Dine community members and the Tribal officials as the Navajo Nation EPA Director "supports 

a weak supplemental proposal all in the name of preserving jobs and revenue, yet the community 

members who lives near the power plants, who work with communities affected by 

environmental justice issues, and who want clean air and clean water for themselves and their 

families are the ones who do not want to suffer the burden of the pollution on their health, the 

air, water, animals, and plants any longer." Commenters requested that EPA thoroughly read 

their comments on the supplemental proposal. Commenters provided links to voice recordings of 

Dine community members who testified at the November 19, 2014 EPA Public Hearing held in 

Phoenix, AZ and noted that these individuals did not support EPA's supplemental proposal with 

most members advocating for a stronger proposal for the Navajo Nation and equal treatment as 

the rest of the country.

Response 24: The EPA appreciates all the input provided by the commenters and those who 

attended the EPA’s hearing in Phoenix on November 19, 2014. The EPA has responded to the 

comment regarding the stringency of the proposed goal for the Navajo Nation elsewhere in this 

document and in section XII.F of the final rule preamble of the CPP. The EPA recognizes that 
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comments submitted by individual community members of the Navajo Nation may differ from 

comments provided by officials of the Navajo Nation, including the Navajo Nation 

Environmental Protection Agency and the Navajo Nation Department of Justice. We understand 

the Navajo Nation has formed the Navajo Nation Carbon Team “to take the lead in determining 

the course of action that will be best from an environmental, economic, and cultural perspective 

in response to EPA’s Clean Power Plan.”14 The EPA has provided the comments from the Diné 

community members to the Navajo Nation EPA and Navajo Nation Carbon Team and we 

encourage future work of the Navajo Nation Carbon Team related to the Clean Power Plan to 

include a process for public involvement. 

Comment 25: Commenters submitted that the EPA's obligation to ensure environmental justice 

as the result of its activities and policies cannot be satisfied by ratifying a predicted average 

national outcome in fifteen years. Commenters noted the EPA's obligations under its Plan EJ 

2014 to think beyond average or aggregated impacts of environmental rules and instead ensure 

that disadvantaged communities are neither excluded from the general benefit of an action nor 

burdened disproportionately with the costs of securing the result. Commenters noted that the 

EPA concludes communities impacted by the single risk that was considered, increased pollution 

from a nearby EGU, cannot be identified until specific state and industry plans are set; however 

"EPA proposes no procedural safeguards to identify and mitigate the potential risks when they 

ARE identified in specific areas." Commenters stated that in the EPA's reliance on state-federal 

government dialogue, the agency "has not met its responsibility for ensuring the proposed rule 

guarantees the fair treatment and the public participation...required by federal policy."

Response 25: The commenters state that it is the EPA’s obligation to ensure environmental 

justice as a result of its activities and policies. The EPA agrees with the commenters and is 

committed to ensuring that its activities and policies do not disproportionately impact vulnerable

communities. See sections IX and XII.J of the final rule preamble of the CPP for more 

information on the actions that the agency is taking around environmental justice in this final 

rulemaking. In particular, the EPA commits to assess the effects of plan implementation and to 

work with states to mitigate adverse impacts, if any, on overburdened communities.

Comment 26: Commenters recommended three additional state plan requirements prior to 

finalizing the rule:

1. An Analysis Demonstrating the Fairness of the Consumer Utility Bill Cost Incidence and 

Cost Impact. 

Commenters described this as a demonstration that the burden of any predicted 

increases to consumer bills, for any part of the period (taking into account 

remedial measures proposed in the plan, such as discounts and other safeguards), 

 

14 See October 30, 2014 Press Release from the Navajo Nation titled “Navajo Nation pleased to 

work with U.S. EPA on proposed carbon rule,”, available at http://www.navajonsn.gov/News%20Releases/OPVP/2014/oct/U%20S%20%20EPA%20Carbon%20Rule.pdf
92

will not make electricity unaffordable to lower-income customers nor to 

disadvantaged communities in the state.

2. Demonstration of the Fairness of the Distribution of Efficiency and Clean Energy 

Benefits among Communities and Consumers

Commenters suggested that the states must provide analyses that: 1) demonstrate 

the emissions reductions occur at least proportionately to all reductions, if not to a 

greater degree, on and near disadvantaged communities; and, 2) demonstrate that 

investments in and benefits from renewable energy and energy efficiency are 

distributed so as to equalize access, including improving current disparities, for 

disadvantaged communities and consumers. 

3. Demonstration that the State has Conducted an Inclusive Planning Process during CPP 

Development

Commenters recommended that skilled representatives of low-income energy 

consumers and disadvantaged communities should be engaged consistently by the 

state at all periods and levels of plan development. Commenters stated that the 

EPA should accept proof of the following three elements as evidence of an 

inclusive planning process and provide a far more deliberate review and reanalysis of plans that were not developed under such a process: 

a. The legitimacy, expertise and constituencies of the participating groups;

b. The state resources provided for the participation of disadvantaged 

groups - such as intervener funding at state commission, and grants and/or 

in kind support for planning, analysis and participation; and,

c. Inclusive rules for participation in planning at each phase of plan 

development.

Commenters stated that the EPA would judge whether these three criteria are met by requiring 

that states perform a valid and sophisticated analysis. Commenters stated that tests of the quality 

of the analysis should include whether the methodology is peer-reviewed and whether it models 

the differential impacts of policies and costs on vulnerable populations and communities. 

Commenters recommended that the EPA promise that plans lacking such analytic basis will be 

subject to greater scrutiny, including possible re-analysis by experts of EPA's choice, than plans 

that demonstrate robust approaches to analysis and the use of accurate and in-depth data.

Response 26: Commenters above ask that the EPA require that states engage with communities 

throughout the state plan development process. As discussed above, the EPA addresses the 

requirements that it established for states as they engage with stakeholders including vulnerable 

communities throughout the state plan development process. Additionally, the EPA in the final 

preamble outlines the considerations that it has included in the final rulemaking to help 

determine the impacts of the rulemaking on vulnerable populations during the implementation 
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process. See sections VIII.E&D and IX.C&F of the final rule preamble of the CPP for the EPA’s 

approach to assessing impacts of plan implementation.

Comment 27: Commenters stated that while they support that reductions in carbon intensity of 

the U.S. economy should be achieved, performance targets should be defined on the basis of 

absolute carbon emissions. Commenters noted that "if the solution is simply shifting more 

energy use to the existing natural gas infrastructure this could actually result in an increase in 

emissions from some natural gas plants, which, of course, is exactly opposite to the decreased 

emissions needed in EJ communities." Commenters urged that the EPA develop guidance and 

require states to demonstrate verifiable absolute carbon reductions, and that absolute carbon

reductions be achieved in environmental justice communities. Commenters additionally stated 

that "regardless if states decide to use a mass-based or rate-based system to account for their 

reductions, it is important chosen mitigation strategies document reductions in emissions from 

the regulated EGUs in EJ communities." Commenters stated that any carbon trading mechanism 

should NOT be presented as an option to achieve emissions reductions. Commenters stated that 

the EPA should develop guidance and require that states demonstrate verifiable absolute carbon 

reductions, and that absolute carbon reductions be achieved in environmental justice 

communities. Commenters noted that because the possibility that reductions in carbon intensity 

can still result in increases in absolute carbon emissions, both goals should be addressed in the 

rule. 

Response 27: As mentioned above, see section VIII.C of the final rule preamble of the CPP for 

the EPA’s response to this comment. The implementation of state plans will be assessed to 

determine whether there are disproportionate impacts on overburdened communities and, if such 

impacts are identified, the EPA will work with states to mitigate the impacts.

Comment 28: Commenters explained that with respect to a cap-and-trade program, spatial 

restrictions can be imposed on the trading, in this case of renewable energy credits ("RECs"), by 

sources located in or near environmental justice communities. Commenters noted that this can 

be done by delineating zones where the flow of RECs is prohibited or limited, to ensure that 

adverse impacts on these communities from trading are minimized. Commenters noted that the 

EPA's own guidance suggests that these zones can be defined in terms of non-attainment areas 

and therefore suggested that those zones should be defined in terms of hotspots that take into 

account cumulative impacts. Commenters noted that once state agencies have delineated these 

zones, they could forbid or limit REC purchases that allow dirty plants to increase or maintain 

their co-pollutant emissions in these zones.

Response 28: As mentioned above in response 13, see section IX.F of the final rule preamble of 

the CPP for the EPA’s response to this comment.
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Comment 29: Commenters noted that the EPA cannot predict which coal and natural gas-fired 

EGUs will increase or decrease their utilization as a result of implementing specific Building 

Blocks because the Clean Power Plan gives states flexibility to comply with the required state 

goals instead of mandating the installation of specific control technologies as previous Section 

111 rulings have done. Commenters stated that the EPA should require states to provide this 

information as a part of their submission plans. Commenters also asked that the EPA provide 

guidance to the states on how to prepare such an analysis and address emissions concerns in their 

plans. Commenters also stated that the EPA could provide qualitative assessment as part of its 

guidance in the final rule, and require states to provide a quantitative assessment of these impacts 

in connection with the compliance measures included in their plans which would allow the EPA 

to more rigorously assess how emissions and health effects will be distributed among minority 

and low-income groups during implementation.

Response 29: As noted above, the EPA has provided a response to this comment in sections 

VIII.E&D and XI.C of the final rule preamble of the CPP.

Comment 30: Commenters advocated for absolute reduction of greenhouse gas and co-pollutant 

emission from facilities and existing coal plants located in/within 30 miles of impacted 

communities, eliminating CCS technology as a mitigation option, preventing the expansion of 

nuclear energy, and ensuring that carbon trading mechanisms employed would not adversely 

affect impacted communities or export negative consequences to other low-income communities 

of color, domestically or internationally within EPA's and state's analyses.

Response 30: The response to this comment is addressed in response 16 above.

Comment 31: Commenters stated that the most recent report on the status of Urban Air Toxins 

to Congress supports the need for a strategy to address the cumulative impacts of pollution, 

especially in urban air areas and communities that are overburdened.

Response 31: The EPA agrees with the commenters of the importance of addressing cumulative 

impacts of pollution in communities. The EPA in its outreach conducted throughout this 

rulemaking process received feedback from vulnerable communities about the cumulative 

impacts that they face and took this information into account when finalizing this rulemaking. 

The EPA believes this final rule addresses this issue. See section IX and XII.J of the final rule 

preamble of the CPP for the EPA’s response to this comment.

Comment 32: Commenters stated that they will engage in providing input to the Administration 

and the EPA on the Carbon Pollution Standards and other aspects of the Clean Power Plans to 

ensure that equity and justice based measures are integral to all policy and rule making, through 

submitting comments, participating in EPA hearings, and through consultative meetings with 

administration officials led by the Washington Bureau. Commenters noted that they will call on 

the EPA to establish a strong, protective, effective and timely federal rule that ensures that coal 
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ash is disposed of safely by regulating coal ash as a "special waste" under subtitle C of the 

Resource Conservation and Recovery Act, and that commenters and their units will facilitate 

the advancement of a justice based energy policy and action agenda, including hosting the 

NAACP signature state level forums--- "Bridging the Gap: Connecting Black Communities to 

the Green Economy" and the "Black Green Pipeline Career Fair" as well as launching state level 

"Just Energy Policies: Reducing Pollution, Creating Jobs" Reports and Campaigns, and other 

national, state, and local activities.

Response 32: The EPA is committed to working with all stakeholders throughout the 

implementation phase of this rulemaking. The EPA believes that this final rule addresses these 

issues. See section XI.E of the final rule preamble of the CPP for the EPA’s response to this 

comment.

Comment 33: Commenters stated that natural gas-fired power plants emit significant amounts of 

conventional pollutants (especially NOx) and that even with modern pollution controls, they 

contribute to reduced air quality and harm public health. Commenters said older natural gas-fired 

plants with lower efficiencies and less effective pollution controls result in more significant 

environmental and health impacts. Commenters stated these harmful impacts are particularly 

acute for local communities that live in close proximity to power plants. 

Response 33: See section IX.E of the final rule preamble of the CPP for the EPA’s response to 

this comment.

Comment 34: Commenters urged that the final rule encourage the states to embrace in their 

state implementation plans concrete support for new technologies that will protect existing jobs 

while reducing emissions.

Response 34: As mentioned above in response 10 the EPA provides a response to this comment 

in section IX.C of the final rule preamble of the CPP.

Comment 35: Commenters strongly supported the general goal and ultimate result of the 111(d) 

rule and the framework that allows a building block of efficiency and clean energy policies as 

part of the solution. However, commenters suggested that the EPA should consider establishing: 

1. The needed framework for participatory planning;

2. The criteria for establishing that each state's plan is equitable with respect to access to 

clean energy;

3. Protection from environmental degradation; and, 

4. Protection of human health.

Response 35: The EPA agrees with the importance of these issues and has addressed them in 

sections VIII.E&D and IX.C of the final rule preamble.
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Comment 36: Commenters stated that equity must be at the center of policies addressing climate 

change. Commenters stated that the Clean Power Plan proposal creates an unprecedented 

opportunity to address the environmental inequities in the most impacted communities. 

Commenters stated that the Plan can also provide multiple benefits and help alleviate 

longstanding economic and social problems, including unemployment, disinvestment, violence 

and blight. As such, commenters strongly encouraged the EPA to adopt policies that direct states 

to make long-term investments into communities disproportionately burdened by pollution and 

economic stress. 

Commenters stated that the EPA should ensure that equity is incorporated into 

implementation plans by including it in guidance for states developing their plans and also 

including it in any model federal plan that would apply to states without an acceptable state plan. 

Commenters suggested that when states submit plans to comply with the Clean Power Plan, the 

EPA should strongly encourage states to adopt policy choices and implementation approaches 

that specifically take equity into account. Commenters stated that this will ensure that as states 

reduce carbon pollution they also address inequities in the distribution of public health hazards 

that are correlated with poverty, employment, and air quality.

Response 3: The EPA agrees in the importance of addressing environmental justice in its 

rulemakings. See section IX.B of the final rule preamble of the CPP for the EPA’s response to 

this comment.

Title VI Questions

Comment 37: Commenters expressed the need for EPA to enforce Title 6 of the Civil Rights 

Act on their state-funded partners since Title 6 "mandates that any entity that receives federal 

funds cannot discriminate on the basis of race, national origin, or color."

Commenters noted that the EPA has a long history of failing to enforce Title VI. Commenters 

stated that in a recent case involving EPA's Title VI program, the Ninth Circuit described the 

EPA's handling of administrative complaints as "a consistent pattern of delay." Rosemere 

Neighborhood Association v. EPA, 581 F.3d 1169, 1175 (9th Cir. 2009). Commenters stated that 

the Ninth Circuit noted that "Rosemere's experience before the EPA appears, sadly and 

unfortunately, typical of those who appeal to OCR to remedy civil rights violations" and that 

"discovery has shown that the EPA failed to process a single complaint from 2006 or 2007 in 

accordance with its regulatory deadlines." Id. Commenters noted that the EPA has neglected to 

consider or analyze the discriminatory effects of cap and trade in obligation to Title VI. 

Commenters stated that allowing cap and trade programs could potentially create disparate and 

adverse impacts to low-income and minority communities. Commenters noted that the EPA 

has full knowledge of such potential impacts, including receiving and refusing to investigate a 

Title VI administrative complaint alleging that cap and trade in California violated Title VI and 

reiterated that the EPA has failed to articulate any rationale for excluding cap and trade from the 
97

environmental justice analysis required by E.O. 12898. Commenters stated that if the 

EPA promulgates the proposed rule as written, then its action would be arbitrary and capricious 

and in violation of the law because the EPA has (1) failed to propose any regulatory provisions 

that would ensure states' comply with section 601 and 40 C.F.R. 7.35(b) when implementing the 

proposed rule; and (2) failed to explain how the EPA's existing Title VI regulations - given the 

EPA's history of inadequate Title VI enforcement - ensure states implementing the proposed rule 

will comply with section 601 and 40 C.F.R. section 7.35(b). Commenters noted that the EPA 

could address its Title VI obligation by proposing additional regulatory language as part of the 

proposed rule that (1) directs each state to include federally enforceable provisions in their state 

plan to ensure compliance with Title VI and demonstrate, when submitting their state plan to the 

EPA, that the state plan complies with Title VI; and (2) requires the EPA to make a finding, 

supported by evidence in the record, that the state plan ensures compliance with Title VI when 

the EPA reviews state plans under 40 C.F.R. section 60.27. Commenters stated that a simple 

certification by a state that the state plan complies does not suffice since the CAA requires state 

plans under section 111(d) to contain enforceable provisions, and the EPA should affirmatively 

evaluate a state's compliance.

Commenters stated that the EPA must ensure its state-funded partners conform to Title VI by 

providing a full and complete opportunity for public participation and not causing significant, 

adverse, and disproportionate effect on people receiving Title VI protections. Commenters noted 

that the EPA should, at a minimum, mandate measures to ensure full and complete public 

participation in the development of state implementation plans and mandate that state 

implementation plans do not cause a significant, adverse, and disproportionate effect on people 

receiving Title VI protections. Commenters also stated that Title VI affirmatively mandates that 

federally funded entities ensure equal access to benefits and services. Commenters noted that this 

is a significant part of Title VI as applied to housing, health care, transportation, education, and 

other federally funded initiatives administered by states and units of local government. 

Commenters stated that mandating emissions reductions in and near EJ communities, and 

targeting these communities for the use of renewable energy and energy efficiency, could 

possibly be legally justified as affirmative actions taken by the EPA in an attempt to ensure that 

state implementation plans developed pursuant to the Clean Power Plan do not violate Title VI. 

Commenters stated that the environmental justice analyses would then be justified as supporting 

the targeted emissions reductions and renewable energy and energy efficiency utilization. 

Commenters recommended that all states should at least have to ensure that all aspects of their 

implementation plans do not violate Title VI. 

Response 37: Commenters stated that the EPA must ensure that all state-funded partners are 

following the guidelines established under Title VI. See section VIII.G of the final rule preamble 

of the CPP for the EPA’s response to this comment. Recipients of EPA financial assistance must 

comply with all federal nondiscrimination statutes that together prohibit discrimination on the 

bases of race, color, national origin (including limited-English proficiency), disability, sex and 

age. These laws include: Title VI of the Civil Rights Act of 1964; Section 504 of the 

Rehabilitation Act of 1973; Section 13 of the Federal Water Pollution Control Act Amendments 

of 1972; Title IX of the Education Act Amendments of 1972; and the Age Discrimination Act of 

1975. Compliance with these nondiscrimination statutes is a recipient’s separate and distinct 

obligation from compliance with environmental regulations. In other words, all recipients are 
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required to ensure that all aspects of their implementation plans of the Clean Power Plan 

guidance do not violate any of the federal nondiscrimination statutes, including Title VI. 

EPA’s Office of Civil Rights (OCR) is responsible for carrying out compliance with these 

federal nondiscrimination statutes and does so through a variety of means including: complaint 

investigation; agency-initiated compliance reviews; pre-grant award assurances and audits; and 

technical assistance and outreach activities. Anyone who believes that any of the federal 

nondiscrimination laws enforced by OCR have been violated by a recipient of EPA financial 

assistance may file an administrative complaint with EPA’s OCR.

In addition, commenters stated that the EPA should require states to demonstrate equal access to 

these benefits, and should evaluate state plans on this basis. Commenters noted that in this 

context, environmental justice is not only the avoidance of disproportionate harm, it also 

encompasses an affirmative obligation to ensure equal access to anticipated services and 

benefits. Please see section IX.G of this final preamble for more information on how the EPA 

responds to this comment.

Comment 38: Commenters stated that E.O. 12250 directs federal agencies to issue appropriate 

Title VI implementing directives, either in the form of policy guidance or regulations consistent 

with the requirements prescribed by the Department of Justice's Assistant Attorney General for 

Civil Rights and therefore EPA must ensure that state plans ensure compliance with Title VI of 

the Civil Rights Act. Commenters noted that the EPA's implementing regulations forbid 

recipients of federal funds from using "criteria or methods of administering [their] program[s] or 

activit[ies] which have the effect of subjecting individuals to discrimination because of their 

race, color, national origin, or sex" and that state agencies implementing the Clean Power Plan 

who receive funding from the EPA are responsible for ensuring that funded activities (for 

example, permitting processes) that become part of compliance plans under the Clean Power 

Plan conform to Title VI requirements. Commenters noted that if compliance to Title VI cannot 

be achieved voluntarily, the regulations authorize the EPA to deny, suspend or terminate funding 

to the particular program under which the agency has found discrimination and that the EPA may 

also refer the matter to the Department of Justice to get compliance.

Commenters further noted that meaningful public involvement is also necessary to ensure 

recipients' compliance with Title VI and that the EPA has suggested specific public involvement 

in the permitting process in Title VI's "Recipient Guidance" that could also apply to the process 

of developing SIPs under the Clean Power Plan. Commenters stated that these approaches 

include preparing a "public involvement plan" with the participation of Environmental Justice 

communities, equipping communities with information materials, training sessions, and grants to 

ensure participation, and working with local authorities to integrate Environmental Justice 

concerns from communities into developing plans.

Response 38: The EPA appreciates commenters’ stressing the importance of meaningful public 

involvement in the rulemaking process. The EPA agrees that meaningful engagement between 

states and stakeholders including vulnerable and overburdened communities is a critical 

component of state plan development. In sections VIII.E&D and IX.B of the final rule preamble, 

the EPA outlines its approach to providing guidance and assistance to states and communities to 

facilitate such engagement, and its inclusion of a requirement for states’ initial submittals and 
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final plan submittals of descriptions of engagement with vulnerable communities. The EPA 

outlines in section VIII.G of the preamble the obligations of fund recipients with respect to Title 

VI of the Civil Rights Act, as well as how the EPA assures compliance with Title VI.
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CHAPTER 10 RULE LANGUAGE CORRECTIONS

This chapter addresses comments received on the EPA’s proposed rule language for the EGU 

GHG Emission Guidelines. Comments received on the following topics are covered by this 

chapter: definitions (existing) (Section 10.1), definitions (new) (Section 10.2), rule language 

(Section 10.3), and comments received on other topics relevant to this chapter (Section 10.4). 

Commenters also raised issues on topics that are not covered by this chapter. Please refer to the 

following chapters for responses specific to those issues:

• Chapter 1: Legal

• Chapter 2: Applicability

• Chapter 3: GHG Mitigation Measures

• Chapter 4: State Goal Computation

• Chapter 5: State Plan Considerations

• Chapter 6: State Plans

• Chapter 7: Interactions With Other EPA Programs and Rules

• Chapter 8: Impacts and Cost Analysis

• Chapter 9: Statutory and Executive Orders10.1 Definitions (existing)

10.1 DEFINITIONS (EXISTING)

This section addresses comments on definitions existing in the proposed rulemaking. 

Commenters have raised a number of issues related to this subsection which are organized by 

topics (comments) below. Responses are provided for these topics.

Comment 1: Base Load Rating 

Response 1: The EPA disagrees with the commenters that the definition of “base load rating” 

restricting to only allow for the “manufacturer’s design heat input capacity”. The EPA believes 

the current definition in 60.5840 allows for any change in operation of a stationary combustion 

turbine with respect to ISO conditions.

The following are summaries of the specific public comments under this comment:
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Commenters stated, EPA should revise the definition of base load rating to enable the 

owner/operator to reflect actual heat input capacity or changes in the capacity of the stationary 

combustion turbine that may occur [this comment was originally made on the KKKK proposal, 

but commenter has asked that it be applied to UUUU]. Commenters said, as proposed in rule 

section 60.4421, the "base load rating" of a stationary combustion turbine would be fixed 

indefinitely at the "manufacturer's design heat input capacity" value at ISO conditions and using 

higher heating value of the fuel. Commenters said, the base load rating is a key component in 

determining "potential electric output" of the turbine and ultimately whether the turbine is 

subject to Subpart KKKK under criteria in proposed rule section 60.4305.

Commenters stated, similar to the "potential electric output" proposed definition, the "base load 

rating" definition should enable "at the election of the owner/operator of the facility" to use or 

revise the base load rating to reflect actual heat input capacity (that may differ from 

manufacturer's design) or to reflect changes in the heat input capacity over time (e.g., due to 

degradation, new environmental requirements, efficiency improvements, etc.).

Commenters stated, the use of a base load rating different than the manufacturer's design heat 

input capacity could be based on methods such as a manufacturer's thermal performance test 

procedure or an ASME Performance Test Code (PTC), such as PTC 22 for stationary 

combustion turbines, or another known industry standard - all at ISO conditions and using higher 

heating value of the fuel.

Comment 2: Emission Standard 

Response 2: The EPA has expanded upon the discussion of emission standard in section VIII of 

the preamble. Additionally the EPA has explicit requirements for emission standards and state 

measures in 60.5775 and 60.5780 of the regulation.

The following are summaries of the specific public comments under this comment:

Commenters requested that EPA provide greater clarity with respect to the term "emission 

standard." Commenters said, for instance, this term appears in Section VIII (D)(8). Commenters 

said, the proposed rule says, "For each emission standard, a plan must describe how it is 

quantifiable, non-duplicative, permanent, verifiable, and enforceable with respect to an affected 

entity" (page 34,913). Commenters had several questions related to the term.

• How is the term distinct from the term "emission limit" (e.g. as used on pages 34,909 -

34910)?

• Is each affected entity supposed to have an individual "emission standard," or does a 

group of affected entities roll-up under a single emission standard?
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• Does an emission standard only apply to EGU affected entities?

Comment 3: Emission Standard 

Response 3: The EPA has decided not to finalize the definition of “emission standard” as 

proposed, in part because the agency is not finalizing a definition of “affected entity.” The 

definition of “emission standard” in the framework regulations at 40 CFR 60.21(f) recognizes 

that an emission standard may be rate-based or may be mass-based. The EPA is authorizing in 

the final EGs the use of rate-based trading as a means of meeting a rate-based emission standard. 

A mass-based trading program is encompassed by the term “allowance system.” The EPA is 

making clear in the final EGs that allowance systems are an allowable form of emission standard 

and, responding to the concern raised by the comment, is also including a definition of 

“allowance system” in the final EGs. The definition of “allowance system” allows for a certain 

degree of flexibility, within the requirements of the EGs. For instance, the “unit” of emissions is 

unspecified by the definition. While the agency agrees with the commenters’ statement that 

“novel” approaches to allowance systems (so long as they meet the terms of the EGs) may be 

accepted, the agency also believes there is substantial benefit in being able to link state plans and 

therefore uniformity of system requirements is advantageous. For instance, states may want to 

work with each other and/or the EPA to utilize a single approach to denominating the “unit” of 

emissions that each allowance will authorize. The agency believes that the final EGs provide a 

great deal of flexibility to states. In addition to the flexibilities available to states in the design of 

a rate- or mass-based “emission standards” approach, the EPA is also allowing states to use 

“state measures,” subject to certain requirements, that are not “emission standards.”

The following are summaries of the specific public comments under this comment:

Commenters stated, the final rule should clarify the definition of "emissions standard" to increase 

state flexibility. Commenters said, EPA touts the Proposed Emission Guidelines as providing 

states with a great deal of flexibility in how to achieve their goal. Commenters said, this 

flexibility could be significantly enhanced by clarifying and simplifying the definition of 

"Emission Standard" in proposed 40 C.F.R. section 60.5820 to read as follows:

Emission standard means in addition to the definition in section 60.21, any requirement 

applicable to any affected entity that has the effect of reducing emissions or utilization of one or 

more affected sources, including, for example, renewable energy and demand-side energy 

efficiency requirements. 

Commenters stated, section 60.5820, as currently drafted, appears to unduly restrict the types of 

requirements that can be imposed on "affected EGUs" or "affected sources" to reduce CO2 

emissions in state plans. Commenters said, although 40 C.F.R. section 60.21 and section 

60.24(b)(1) permit section 111(d) emission guidelines to impose either an emission rate or an 

allowance system on affected sources, it is conceivable that states plans could devise broader, 
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more creative, and more effective options to address compliance from affected EGUs than now 

contemplated under section 60.21 and section 60 .24(b)(1). Commenters said, for example, one 

ambiguity that will confront states as they develop plans is that the term "allowance system" is 

not defined in EPA's section 111 general regulations in 40 C.F.R. Part 60. Commenters said, thus 

it is unknown precisely what types of "allowance systems" EPA will approve under state plans. 

Commenters said, there is potentially a vast array of allowance-type systems that states may wish 

to explore, and EPA should remove any doubts that novel approaches will be encouraged and 

accepted. Commenters urged EPA to remove such questions and affirm state flexibility by 

revising proposed 40 C.F.R. section 60.5820 as suggested above.

Comment 4: Net energy output 

Response 4: The EPA has revised the definition of net energy output to include 100 percent of 

useful thermal output to address the issues raised by the commenters. See Comment 7 of this 

section noting that the EPA is using a definition of useful thermal output for the final rule 

consistent with other subparts in 40 CFR part 60. Additionally the EPA has added a definition 

for 

The following are summaries of the specific public comments under this comment:

Commenters stated, the definition of net energy output is somewhat unclear with regard to the 

precise meaning of the phrase "that is not used to generate additional electrical or mechanical 

output or to enhance the performance of the unit." Commenters said, while EPA has intended 

that "net energy output" apply to the EGU for which the standard applies, the definition could be 

more precise. Commenters said, "EGU" should be used instead of "unit" in this definition. 

Commenters said it needs to be clear that the phrase "is not used to generate additional electrical 

or mechanical output" applies to the EGU. Commenters said, many industrial processes involve 

the use of steam for mechanical or internal electrical needs of the process that are unrelated to 

the generation of electricity that is sold to a utility system. Commenters said, the most 

straightforward approach, and easiest to identify and measure, is the "energy in the steam 

delivered to an industrial process for whatever purpose" or "thermal energy made available for 

use for whatever purpose." Commenters said, the amount of energy actually recovered may be 

much more difficult to measure, because this quantity may be dependent on an array of 

equipment with differing thermal recovery efficiencies, steam usage rates, etc.

Commenters stated, for example, NHPC's Cogeneration Boilers (i.e., EGUs) send both high 

pressure and low pressure steam from the EGUs to a sugar mill and refinery, which use the 

thermal energy in the steam, but the sugar mill also generates additional electricity from the 

steam it receives. Commenters said, EPA should allow the useful thermal output to include 100 

percent of the electrical energy generated, and 75 percent of the thermal energy made available 

for use in any industrial or commercial process. Commenters said, this approach can be 

expressed as follows:
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(1) The net electric or mechanical output from the affected facility, plus 100 percent of any 

electrical energy generated outside the EGU by steam generated from the EGU, plus 75 percent 

of the useful thermal output measured relative to SATP conditions that is not used to generate 

additional electric or mechanical output of the EGU, or to enhance the performance of the 

unitEGU (e.g., steam delivered to an industrial process for a heating application).

(2) For combined heat and power facilities where at least 20.0 percent of the total gross energy 

output consists of electric or direct mechanical output and 20.0 percent of the total gross energy 

output consists of useful thermal output on a rolling 3 year basis, the net electric or mechanical 

output from the affected facility divided by 0.95, plus 100 percent of any electrical energy 

generated outside the EGU by steam generated from the EGU, plus 75 percent of the useful 

thermal output measured relative to SATP conditions that is not used to generate additional 

electric or mechanical output of the EGU, or to enhance the performance of the unitEGU (e.g., 

steam delivered to an industrial process for a heating application).

Commenters stated, this definition of "useful thermal output" appears to exclude electrical 

generation that may be inherent to an industrial process and not sold to a utility system. 

Commenters said, however, the Proposed Rule and the proposed NSPS only apply to EGUs; they 

do not apply to other electrical generating systems. Commenters said, therefore, NHPC suggests 

that a definition of useful thermal output be included in the final rule and be stated as:

Useful thermal output means the thermal energy made available for use in any industrial or 

commercial process, or used in any heating or cooling application (i.e., total thermal energy 

made available for processes and applications or to enhance the performance of the stationary 

combustion turbine). Thermal output for this subpart means the energy in recovered thermal 

output measured against the energy in the thermal output at ISO conditions.

Comment 5: Clarify the terms "measures" and "actions". 

Response 5: EPA has provided a detailed discussion on eligible resources with respect to 

renewable energy measures and actions in the provisions for state plans in preamble section VIII 

to better clarify the issues raised by commenters. 

The following are summaries of the specific public comments under this comment:

Commenters said, the EPA states that the definition of an: 

Existing state program, requirement, or measure means, in the context of a state plan, a 

regulation, requirement, program, or measure administered by a state, utility, or other entity that 

is currently established. This may include a regulation or other legal requirement that includes 

past, current, and future obligations, or current programs and measures that are in place and 

are anticipated to be continued or expanded in the future, in accordance with established plans. 
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An existing state program, requirement, or measure may have past, current, and future impacts 

on EGU carbon emissions. 

Commenters stated, however, EPA never defines what "measures" constitutes even though it 

uses it to mean something separate from a state "program" in many instances throughout the 

plan. Commenters said, while we support a broad definition of that term, EPA should clarify, 

from a compliance perspective, what types of measures might constitute a "measure" as long as it 

is incorporated into a state plan. Commenters seek clarification in the final rule as to whether 

"measure" can be merely included in a state plan to make it a "legal requirement." Commenters 

said, EPA should also clarify the standard for "legal requirement" so that it provides flexibility 

for bilateral contracts to be used as compliance tools, as long as they are enforceable at the state 

or federal level.

Commenters recommended that, while the EPA defer to states on terms and requirements 

contained in existing state EE and RE standards and plans, the EPA should clarify the key terms 

used in the EPA's requirements, such as meanings and differences between the terms "existing 

measures" and "actions" (Section 60.5750). Commenters said, for example: 

• Would the installation of a highly efficient motor, as part of an energy efficiency program 

required by State law, be considered a measure?

• If the installation occurred in 2013, would that be considered an existing measure?

• Would the electricity savings that occurred in 2020 from that existing measure be 

considered an action?

Commenters stated, if so, a kilowatt-hour of electricity saved in 2020, from a measure (i.e., a 

highly efficient motor) installed in 2013, would count towards meeting the goal for 2020.

Comment 6: Stationary combustion turbine 

Response 6: The EPA has revised the definition for stationary combustion turbine in the rule to 

be consistent with the definition listed in the GHG EGU NSPS, 40 CFR subpart TTTT of part 

60. Additionally the EPA has revised the applicability section of the rule to make it clearer the 

certain types of units that are subject to the rule.

The following are summaries of the specific public comments under this comment:

Commenters stated, in subpart KKKK, the proposed definition of "stationary combustion 

turbine" that would apply "with respect to CO2 emissions" is inconsistent with the current 

"stationary combustion turbine" definition that would remain in place in the same subpart. 

Commenters said, as a minimum, EPA should remove the term "steam turbine" from the 
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proposed definition. Commenters said, more appropriately, subpart KKKK should have a single 

definition for the source category (stationary combustion turbines), i.e., the current definition.

Commenters stated, the current (generally applicable) and proposed (for CO2 emissions) 

definitions are as follows:

Current Generally Applicable Definition At 40 CFR 60.4420 (with strikeouts indicating words 

that would not appear in proposed section 40 CFR 60.4421 for CO2 emissions): "Stationary 

combustion turbine means all equipment, including but not limited to the turbine, the fuel, air, 

lubrication and exhaust gas systems, control systems (except emissions control equipment), heat 

recovery system, and any ancillary components and sub-components comprising any simple 

cycle stationary combustion turbine, any regenerative/recuperative cycle stationary combustion 

turbine, any combined cycle combustion turbine, and any combined heat and power combustion 

turbine based system. Stationary means that the combustion turbine is not self propelled or 

intended to be propelled while performing its function. It may, however, be mounted on a vehicle 

for portability."

Proposed Definition for CO2 Emissions At Proposed 40 CFR 60.4421 (with bolded words 

indicating added words not in the current definition): "Stationary combustion turbine means all 

equipment, including but not limited to the combustion turbine engine, the fuel, air, lubrication 

and exhaust gas systems, control systems, heat recovery system, steam turbine, fuel 

compressor, heater, and/or pump, postcombustion emission control technology, and any 

ancillary components and subcomponents plus any integrated equipment that provides 

electricity or useful thermal output to the combustion turbine engine, heat recovery system 

or auxiliary equipment. Stationary means that the combustion turbine is not self propelled or 

intended to be propelled while performing its function. It may, however, be mounted on a vehicle 

for portability."

Commenters stated, the relatively short discussions in the preamble do not identify any rationale 

for establishing a separate definition of a stationary combustion turbine for CO2 emissions, nor 

does the Regulatory Impact Analysis or the relevant Technical Support Document. 

Commenters stated, while Section 111(b)(2) may allow EPA to distinguish among classes, types, 

and sizes within categories of new sources for establishing standards, there is nothing in Section 

111 that appears to allow or encourage EPA to define a source category in different ways for 

different categories have focused on the emitting device or apparatus, along with directly 

integrated equipment. Commenters said, for the stationary combustion turbine category, the 

current definition incorporates the combustion turbine itself and any associated heat recovery 

steam generator (including any installed duct burner), but not a steam turbine.

Commenters stated, the current definition makes it clear that combustion turbines used in a 

number of applications (in simple cycle, regenerative/recuperative, combined cycle, and 

combined heat and power turbine applications) are within the definition. Commenters said, the 

current definitions of these applications in existing rule section 40 CFR 60.4420 make it clear 
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that, in cases where there is heat recovery, the equipment used by the recovered heat (e.g., a 

steam turbine for combined cycle), is not considered part of the stationary combustion turbine.

Commenters stated, specifically, "steam turbine" should not be included in any revised definition 

of "stationary combustion turbine." Commenters said, including "steam turbine" (a non-emitting 

device) or any equipment associated with use of recovered heat would greatly expand the scope 

of the regulated source category. Commenters said, while EPA has proposed to give credit for 

use of recovered heat for demonstrating compliance with the proposed emission standard in 

proposed rule section 40 CFR 60.4374, this is not a justification for expanding the definition of 

the source category itself.

Commenters stated, likewise, EPA should not make other expansions of the scope of "stationary 

combustion turbine" - such as including other equipment that may make use of recovered heat 

input or post-combustion emission control technology. Commenters said, therefore, the current 

definition of "stationary combustion turbine" should be retained.

Comment 7: Useful thermal output 

Response 7: The EPA acknowledges the comments, however the EPA is using the definition of 

useful thermal output consistent with other subparts in 40 CFR part 60.

The following are summaries of the specific public comments under this comment:

Commenters stated, Massachusetts' new law's definition of useful thermal energy is offered as a 

potential substitute for or for incorporation in the current EPA proposed definition of useful 

thermal energy (Sec Section 1 of Massachusetts Session Law 251 (S. 2214) approved by the 

Governor on August 6, 2014, amending Massachusetts General Laws Part l, Title II, Chapter 

25A. Section 3: 

"Useful thermal energy," energy in the form of direct heat, steam, hot water or other Thermal 

form that is used in production and beneficial measures for heating, cooling, humidity control, 

process use or other valid thermal end use energy requirements and for which fuel or electricity 

would otherwise be consumed.

Commenters concurred with NGWA and proposes a modification to the current definition of 

useful thermal output. Commenters said, Massachusetts, for example, has a new law [S.2214, the 

definition of Useful Thermal Energy is in the second paragraph of section 1. Retrieved October 

22, 2014 at https://malegislature.gov/Bills/188/Senate/S2214] defining useful thermal energy. 

Commenters said, this is offered as potential substitute for or for incorporation in the current 

EPA proposed definition of useful thermal energy. Commenters suggested that the EPA add or 

modify the current definition to include the following:

"Useful thermal energy", energy in the form of direct heat, steam, hot water or other thermal 

form that is used in production and beneficial measures for space comfort and air quality control, 
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process use or other valid thermal end use energy requirements and for which fuel or electricity 

would otherwise be consumed.

10.2 DEFINITIONS (NEW)

This section addresses comments on new definitions that were not included in the proposed 

rulemaking.

Commenters have raised a number of issues related to this subsection which are organized by 

topics (comments) below. Responses are provided for these topics.

Comment 1: Renewable Energy 

Response 1: The EPA will not be defining a definitive list of renewable energy in this rule 

making, however the EPA points to examples of renewable energy in the rule making and in the 

preamble discussion in sections V.E and VIII. 

The following are summaries of the specific public comments under this comment:

Commenters noted that the proposed rule does not define renewable energy. Commenters 

suggested that the final rule give flexibility to states to develop their own definition of renewable 

energy that can be used for compliance. Commenters said, with this flexibility, states can 

develop renewable energy definitions that mirror state RPS definitions, which will reduce 

complexity and bring more certainty to affected sources.

Commenters stated, the concept of renewable energy is broadly stated in the Proposed Rule's 

Technical Support Document:

The portfolio of available RE sources encompasses a wide variety of technologies from utilityscale RE plants to smaller-scale distributed generation sited at residential, commercial, or 

industrial facilities. RE technologies are fueled by the sun, wind, water, organic matter, and other 

resources regularly replenished by physical and biological cycles."

Commenters stated, background documentation for the Proposed Rule acknowledges that landfill 

gas and biomass are renewable energies. Commenters said, noting that the renewable energy 

proportion of electricity in the United States has "increased dramatically" and that "over 38 

percent of new generating capacity (over 5 GW out of 13.5 GW) built in 2013 used renewable 

power generation technologies[,]" footnote 30 then specifically identifies landfill gas and 

biomass renewable energy sources:
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Based on Table 6.3 (New Utility Scale Generating Units by Operating Company, Plant, Month, 

and Year) of the U.S. Energy Information Administration (EIA) Electric Power Monthly, data 

for December 2013, for the following renewable energy sources: solar, wind, hydro, geothermal, 

landfill gas, and biomass... 

Commenters supported a broad definition of renewables and seeks a clearer statement in the final 

version of the Rule. Commenters have found a ready and reliable source of landfill gas that has 

simultaneously produced electricity and reduced greenhouse gas emissions by using gases that 

would otherwise vent to the atmosphere unabated. Commenters said, while landfill gas and 

biomass are clearly included in the above quoted statement, to avoid any ambiguity or debate 

about the issue it would be preferable to expressly identify them both as a renewable energy 

sources in a conspicuous place in the rule instead of a footnote. Commenters said, furthermore, 

existing hydropower resources constitute a valuable source of zero emission baseload generation 

and should receive full credit as a renewable resource as opposed to crediting only incremental 

or new hydropower. 

Commenters encouraged the EPA to allow States to continue to use their current definitions of 

renewable resources. Commenters said, for example, Chapter 269-91, Hawaii Revised Statutes, 

defines "renewable energy" as energy generated or produced using the following sources:

(1) Wind;

(2) The sun;

(3) Falling water;

(4) Biogas, including landfill and sewage-based digester gas;

(5) Geothermal;

(6) Ocean water, currents, and waves, including ocean thermal energy conversion;

(7) Biomass, including biomass crops, agricultural and animal residues and wastes, and 

municipal solid waste and other solid waste;

(8) Biofuels; and

(9) Hydrogen produced from renewable energy sources.

Commenters stated, the development of the renewable energy definition through legislative 

proceedings involved many experts, consultants, and stakeholders. Commenters said, the 

inclusion of municipal solid waste and other waste materials as a renewable energy resource is of 

particular importance as an island state with limited land area. Commenters said, the pros and 
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cons of including these types of resources in Hawaii's RPS was debated and adopted by the 

Hawaii Legislature.

Commenters were concerned that, if the EPA indicates that it will redefine or specify renewable 

energy generation differently from Hawaii's current approach, it could require changes to 

Hawaii's laws and affect how the RPS is implemented, which may cause Hawaii to forego 

certain carbon reductions strategies due to uncertainty as to what resources would qualify.

Comment 2: "Sustainable forest production" and "Waste" 

Response 2: A discussion regarding the use of some biomass feedstocks for compliance 

purposes can be found in section VIII.I.2.c and section VIII.K.1 of the preamble.

The following are summaries of the specific public comments under this comment:

Commenters stated, with regard to diverse, sustainable bioenergy, major concepts such as 

"sustainable forest production" and "waste" should be clearly defined.

Comment 3: Clarification of what it means to be "under construction"

Response 3: The proposed rule considered the term “under construction” in relation to proposed 

provisions addressing nuclear units in the goal-setting methodology for BSER. The EPA 

determined that the final rule will not include provisions for under construction nuclear units in 

the goal-setting methodology, therefore, this term no longer requires a definition. 

The following are summaries of the specific public comments under this comment:

Commenters noted that the Proposed Rule deems resources not yet in commercial operation, but 

under construction as of January 8, 2014, be considered as "existing resources" under 111(d). 

Commenters noted that the set of units considered "under construction" under the Proposed Rule 

does not match up with, and is in fact 3,000-4,000 MW less than, the set of combined cycle gas 

units that PJM would consider "under construction" as evidenced by signed Construction Service 

Agreements (CSAs). Commenters said, in PJM's recently released OPSI-Requested Analysis, 

PJM included all units with CSAs as existing units for the purposes of meeting the PJM derived 

mass-based targets from the June 2nd Proposed Rule and November 6th Guidance. Commenters 

requested that EPA provide a more formal definition of what it means to be "under construction" 

for the purposes of the rule to help PJM, OPSI, and other interested parties more accurately 

evaluate different compliance options and to develop more informed State Plans. Commenters 

suggested that the term "under construction" should be tied to readily-identified benchmarks 

used in the interconnection process such as executed CSAs as noted above.
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Comment 4: Waste Energy Recovery (WER) 

Response 4: The EPA has included a definition of waste-to-energy in the final rule and a 

detailed discussion of waste-to-energy is located in the discussion of eligible resources in section 

VIII of the preamble.

The following are summaries of the specific public comments under this comment:

Several commenters suggested adding a definition for WER to identify this potential energy 

source that can reduce greenhouse gas emissions:

Waste Energy Recovery (WER) is energy recovered, such as through heat pump systems, and 

made available for reuse in any industrial or commercial process or used in any heating and/or 

cooling application, (e.g. this energy might normally be discharged as waste to the air or a nonstationary earth based thermal mass, such as the groundwater or a body of surface water). Usable 

waste energy calculations are the quantification of the energy recovered and reused that may be 

expressed in British Thermal Units (BTU) or Kilowatt hours (KWh) of avoided consumption or 

generation. From these net energy calculations, a normalized or localized estimate may be made 

of the emissions avoided and resource consumption avoided in the process of recovery and reuse 

of this energy.

Comment 5: EPA should ensure that definitions and uses of terms relating to stationary 

combustion turbines are clear and consistent. 

Response 5: The EPA acknowledges the comments and has expanded upon the definition of 

stationary combustion turbine in the final rule and has ensured that it is consistent with the EGU 

GHG NSPS, 40 CFR part 60 subpart TTTT, and additionally revised the applicability for 

stationary combustion turbines to be clearer.

The following are summaries of the specific public comments under this comment:

Commenters stated, in reviewing the proposed rule text and preamble, we found the definitions 

and uses of important terms to be unclear, inconsistent, and/or potentially confusing. 

Commenters said, to the extent used in a final rule, EPA should insure that definitions and uses 

of terms such as "Potential Electric Output," "Net-Electrical Output," "Net Electric Output," 

"Gross Electric Sales," "Gross Energy Output," "Utility Distribution System," "Utility Power 

Distribution System," "Electric Grid," and "Purchased Power" are clear and unambiguous [this 

comment was originally made on the KKKK proposal, but commenters have asked that it be 

applied to UUUU].
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10.3 RULE LANGUAGE

This section addresses comments on the proposed rule language. Topics covered by this section 

include applicability, incorporation of Part 75, and requirements for affected entities, which are 

organized under three subsections, 10.3.1 to 10.3.3. 

Responses to the comment topics of these subsections are discussed below along with summaries 

of the specific public comments.

10.3.1 Applicability for EGUs/affected entities

This subsection addresses comments on the proposed rule language related to applicability for 

EGUs and affected entities.

Commenters have raised a number of issues related to this subsection which are organized by 

topics (comments) below. Responses are provided for these topics.

Comment 1: EPA Should More Clearly Define "Affected Source" 

Response 1: The EPA has revised the sections for defining an affected EGU and points the 

commenter to sections 60.5800, 60.5805, and 60.5810 for further clarification of the changes.

The following are summaries of the specific public comments under this comment:

Commenters stated, the EPA must clarify how sources can demonstrate that they were not 

constructed for the purposes of supplying one-third or more of their potential electric output and 

more than 219,000 MWh net-electrical output to the grid. Commenters said, in addition, there 

seems to be some conflict in EPA's definition of affected units between the Proposed Rule and 

the accompanying technical support documents. Commenters said, specifically, the Proposed 

Rule describes a 73 MW base load rating threshold for affected units as noted above, but the 

technical support documents reference a 25 MW nameplate capacity threshold. Commenters 

said, EPA must ensure consistency between its rule and its supporting analyses.

Comment 2: Clarify applicability criteria for affected EGUs 

Response 2: The EPA has revised the sections for defining an affected EGU and points the 

commenter to sections 60.5800, 60.5805, and 60.5810 for further clarification of the changes.

The following are summaries of the specific public comments under this comment:
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Commenters stated, the preamble indicates that the unit must actually sell at least 219,000 MW-h 

per year, which raises questions. Commenters said, it is unclear if the unit is affected if it ever 

sold more than 219,000 MW-hr in a year or if this is based on an average over a certain time 

period. Commenters said, in Missouri, there are multiple units that EPA has identified as "likely 

affected units" in the proposed rule; however, these units have never sold more than 219,000 

MW-h in a calendar year. Commenters said, it is unclear whether these units would be affected 

units under the rule, which could affect the goal calculation for Missouri. Commenters said, the 

preamble and the regulatory text should be clarified so that states can easily determine which 

units are affected and which are not.

Comment 3: Applicability criteria for affected EGUs - "sells" versus "constructed for the 

purpose of supplying" 

Response 3: The EPA has revised the sections for defining an affected EGU and points the 

commenter to sections 60.5800, 60.5805, and 60.5810 for further clarification of the changes.

The following are summaries of the specific public comments under this comment:

Commenters stated, in reviewing the preamble and the proposed regulatory text, there appear to 

be inconsistencies with the applicability criteria used to determine which EGUs are affected by 

the rule, specifically the criteria regarding the 219,000 MW-h threshold. Commenters presented 

the inconsistency:

From the preamble 79 FR 34854: sells (emphasis added) the greater of 219,000 MWh per year 

and one-third of its potential electrical output to a utility distribution system;

From the proposed regulatory text (Section 60.5795) 79 FR 34954: was constructed for the 

purpose of supplying (emphasis added) one-third or more of its potential electric output and 

more than 219,000 MWh net-electric output to a utility distribution system on an annual basis. 

Commenters stated, the phrase "constructed for the purpose of supplying" is not defined in either 

established or proposed regulatory text. Commenters said, it is unclear if this means the same 

thing as "has the potential to generate and supply at least 219,000 MW-h per year" or if there is 

another test for determining the purpose for which the unit was constructed.

Comment 4: Treatment of new, modified, and reconstructed sources 

Response 4: The EPA is finalizing the rule to not include those units that are subject to 40 CFR 

part 60 subpart TTTT, and those units are not included in the applicability of an affected EGU.

The following are summaries of the specific public comments under this comment:
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Commenters stated, the preamble discusses how new, modified, and reconstructed sources 

should be treated in state plans. Commenters said, in general, the preamble states that newly 

constructed sources subject to the NSPS (40 CFR 60 subpart TTTT) would not be affected 

sources under the 111(d) rule. Commenters said, it also states that existing sources would remain 

subject to the 111(d) plan requirements even if modified or reconstructed in the future and 

became subject to requirements under 111(b) of the CAA. Commenters said, however, the 

preamble is inconsistent with the proposed regulatory text.

Commenters said, from the Preamble, 79 FR 34903: The EPA is proposing that an existing 

source that becomes subject to requirements under CAA section 111(d) will continue to be 

subject to those requirements even after it undertakes a modification or reconstruction. 

Commenters said, under this interpretation, a modified or reconstructed source would be subject 

to both (1) the CAA section 111 (d) requirements that it had previously been subject to and (2) 

the modified source or reconstructed source standard being promulgated under CAA section 111 

(b) simultaneously with this rule making.

Commenters stated, based on this preamble language, the proposed regulatory text (79 FR 

34954) appears to have an error. Commenters said, by making the following edit (removing the 

words "or reconstruction") this corrects the apparent discrepancy between the regulatory text and 

the preamble: 

Proposed Revision: Section 60.5800 What affected EGUs are exempt from my state plan? 

Affected EGUs that are exempt from your state plan include: those that are subject to subpart 

TTTT as a result of commencing construction after the subpart TTTT applicability date; and 

those subject to subpart TTTT as a result of commencing modification or reconstruction prior 

becoming subject to an applicable state plan.

Comment 5: Clarify methods of monitoring, recordkeeping and reporting. 

Response 5: The EPA has revised the monitoring, recordkeeping and reporting requirements to 

make it clear that states can incorporate the current monitoring provision that are used under the 

Acid Rain Program in Part 75 and that any use of that system additionally meets the 

requirements of states to submit and keep records the source specific data.

The following are summaries of the specific public comments under this comment:

Commenters stated, the requirement that a state plan must include monitoring that is no less 

stringent than section 60.5805(a)(1) to (6) is not clear. Commenters said, the EPA should 

indicate in guidance if a state plan would need to include the actual monitoring plans and data, or 

just the monitoring requirements. Commenters said, the monitoring requirements are included in 

proposed rule section 60.5805(a).
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Commenters stated, paragraphs (a)(1) through (a)(6) specify what kind of equipment must be 

used and how it must be installed. Commenters said, they include equipment to measure CO2 

emissions, as well as electric meters. Commenters said, a monitoring plan is also required. 

Commenters said, there is no indication as to whether monitoring plans would need to be 

submitted in their entirety in the state plan for each of the affected EGUs, or if these plans could 

be reviewed and referenced with the appropriate ORIS code and CAMD location.

10.3.2 Incorporation of Part 75

This subsection addresses comments on the proposed rule language related to the incorporation 

of Part 75 requirements.

Commenters have raised a number of issues related to this subsection which are organized by 

topics (comments) below. Responses are provided for these topics.

Comment 1: Modify 60.5805(a)(2)(i) 

Response 1: The EPA agrees with the comment and has made the necessary changes in the final 

rule to correct the reference.

The following are summaries of the specific public comments under this comment:

Commenters stated, the state plan monitoring requirements for measuring CO2 emissions in 

section 60.5805(a)(2)(i) include a reference to Part 75 that deals with SO2 emissions. 

Commenters said, the monitoring requirements are included in proposed rule section 

60.5805(a)(2)(i). Commenters said, the language is as follows: 

"(i) An affected EGU must install, certify, operate, maintain, and calibrate a CO2 continuous 

emissions monitoring system (CEMS) to directly measure and record CO2 concentrations in the 

affected EGU exhaust gases emitted to the atmosphere and an exhaust gas flow rate monitoring 

system according to section 75.10(a)(3)(i) of this chapter. If an affected EGU measures CO2 

concentrations on a dry basis, they must also install, certify, operate, maintain, and calibrate a 

continuous moisture monitoring system, according to section 75.11(b) of this chapter."

Commenters stated, section 75.11 specifies monitoring requirements for SO2; whereas, section 

75.13 specifies monitoring for CO2. Commenters recommended that the reference be changed to 

section 75.13.

Comment 2: Modify 60.5805(a)(2)(ii) 
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Response 2: The EPA agrees with the comment and has made the necessary changes in the final 

rule to correct the reference.

The following are summaries of the specific public comments under this comment:

Commenters stated, the state plan monitoring requirements for measuring CO2 emissions in 

proposed rule section 60.5805(a)(2)(ii) include a reference to Part 75 that deals with SO2 

emissions. Commenters said, the monitoring requirements are included in proposed rule section 

60.5805(a)(2)(ii). Commenters said, the language is as follows: 

"For each monitoring system an affected EGU uses to determine the CO2 mass emissions, they 

must meet the applicable certification and quality assurance procedures in section 75.20 of this 

chapter and Appendices B and D to part 75 of this chapter."

Commenters stated, Appendix D to Part 75 is titled "Optional SO2 Emissions Data Protocol for 

Gas-Fired and Oil-Fired Units," not CO2 mass emissions. Commenters said, the reference to 

Appendix D to Part 75 in the proposed rule should be dropped.

Comment 3: Modify 60.5805(a)(2)(v) 

Response 3: The EPA acknowledges the comments and has removed this requirement in the 

final rule.

The following are summaries of the specific public comments under this comment:

Commenters stated, the state plan monitoring requirements for measuring CO2 emissions in 

proposed rule section 60.5805(a)(2)(v) include a requirement to use a calibrated Type-S pitot 

tube when following Method 2 in Appendix A-1 to this part to perform the required RATAs of 

the part 75 flow rate monitoring system, and specifically not to use the default Type-S pitot tube 

coefficient. Commenters said, the proposed rule needs to specify the calibration method(s) for 

use on the Type-S pitot tubes. Commenters said, the monitoring requirements are included in 

proposed rule section 60.5805(a)(2)(v). The language is as follows: 

"If an affected EGU chooses to use Method 2 in Appendix A-1 to this part to perform the 

required relative accuracy test audits (RATAs) of the part 75 flow rate monitoring system, they 

must use a calibrated Type-S pitot tube or pitot tube assembly. An affected EGU must not use 

the default Type-S pitot tube coefficient."

Commenters stated, the proposed rule must specify the calibration method that must be used, a 

visual inspection procedure or a wind tunnel calibration method of calibration, and whether a 

standard pitot tube is acceptable. Commenters said, additionally, the proposed rule needs to 

specify the acceptable tolerance range outside of 0.84, as no two pitot tubes have the same 

precise coefficient.
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10.3.3 Requirements for affected entities

This subsection addresses comments on the proposed rule language related to requirements for 

affected entities.

Commenters have raised a number of issues related to this subsection which are organized by 

topics (comments) below. Responses are provided for these topics.

Comment 1: 60.5815 - affected entities versus affected EGUs

Response 1: The EPA acknowledges the comment and has removed the definition of affected 

entities and has updated the definition of affected EGUs in the applicability section of the rule.

The following are summaries of the specific public comments under this comment:

Commenters stated, paragraphs (a)(1) and (a)(2) of proposed rule section 60.5815 require the 

reporting of emissions performance by affected entities and EGUs. Commenters found these 

requirements confusing. Commenters said, it is unclear why paragraph (1) addresses 

requirements for "affected entities," which by EPA's definition include affected EGUs, and 

paragraph (2) separately addresses requirements for "affected EGUs." Commenters requested 

clarification of the separate reporting requirements for emissions performance of "affected 

entities" and "affected EGUs," against emissions performance projections for different periods.

Comment 2: 60.5815 - performance period versus compliance period 

Response 2: The EPA has revised the periods required in the final rule to include interim steps 

composed of 3 interim steps and additionally a final period composed of final reporting periods 

of every 2 calendar years. Additionally, the EPA has added definitions in the definitions section 

of the final rule text to clarify the differences in the terminology relating to the time periods 

required in the rule.

The following are summaries of the specific public comments under this comment:

Commenters stated, paragraphs (a)(1) and (a)(2) of proposed rule section 60.5815 require the 

reporting of emissions performance by affected entities and EGUs. Commenters found these 

requirements confusing. Commenters said, another point of confusion is that paragraph (1) 

requires evaluation of "emissions performance for affected entities during the plan performance 

period and compliance periods," whereas paragraph (2) requires evaluation of "emissions 

performance for affected EGUs during the plan performance period." Commenters said, note that 

proposed rule section 60.5820, Definitions, includes a definition for "compliance period" but not 
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for "performance period." Commenters requested clarification of the difference between 

"performance period" and "compliance period."

10.4 OTHER

This section addresses comments received on other topics relevant to this chapter.

Commenters have raised a number of issues related to this subsection which are organized by 

topics (comments) below. Responses are provided for these topics.

Comment 1: The text of the actual rule should be expanded and updated to clearly address all 

requirements.

Response 1: The EPA has expanded the final rule to include mass based goals, eliminating the 

requirement for states to make the translation and has added detail with respect to EM and V. 

Additionally the EPA has removed the term affected entity to clarify the rule as the commenters 

suggest.

The following are summaries of the specific public comments under this comment:

Commenters stated, the text of the proposed rule is only ten pages long. Commenters said, 

because proposed Subpart UUUU is introducing new interpretations of BSER and a number of 

terms and concepts that are new to air quality regulation, it is very important for the text of the 

rule to be clear and thorough. Commenters said, a number of rule requirements are either omitted 

or else are not addressed in a clear and thorough manner. Commenters said, these requirements 

include the following:

- Conversion of rate-based goal to mass-based goal

- Evaluation, measurement, and verification of renewable energy and energy efficiency

- Definition and illustration of "affected entity"

- Consistent use and differentiation of "affected entity" and "affected EGU"

- Emissions standards for affected entities

Commenters recommended that the text of Subpart UUUU should be expanded and revised to 

clearly and thoroughly address all requirements.

Comment 2: Several commenters stated that the EPA should clarify that the rule allows for full 

flexibility for compliance. 
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Response 2: The EPA has expanded in the rule text to make it clear the flexibilities states have 

while also adding text that addresses structure and requirement principles that states should take 

into consideration upon creating and submitting a state plan.

The following are summaries of the specific public comments under this comment:

Commenters stated, although the proposed rule states that "the affected EGUs, to comply with 

the applicable standards of performance in the state plan, may rely on any efficacious means of 

emission reduction, regardless of whether the EPA identifies those measures as part of the 

BSER[,]"other sections of the proposed rule confuse the issue of how much flexibility is 

permitted. Commenters said, for example, elsewhere in the proposed rule, EPA lists a number of 

measures such as partial carbon capture and sequestration and transmission and distribution 

system efficiency improvements, stating: "[t]he agency solicits comment on whether these 

measures are appropriate to include in a state plan to achieve CO2 emission reductions from 

affected EGUs." Commenters requested that EPA clarify that states and EGUs may rely on any 

efficacious means of emission reduction to comply with the state's goal.

Commenters stated, the Clean Power Plan appropriately devotes considerable attention to and 

explanation of how the state emissions reductions goals were developed. Commenters said, in 

doing so, it chooses to use the organizational structure of "building blocks". Commenters said, 

the term "building block" has been widely and broadly interpreted by readers of the Proposed 

Rule to imply that the "blocks" are what a state would use to "build" its plan. Commenters said, 

in other words, there is a widely held interpretation that EPA is designating the four building 

blocks as the menu of eligible choices that a state has to work with in putting together its plan -

not the building blocks that EPA used to develop the goals. Commenters said, this 

misinterpretation is not based on loose anecdotal information. Commenters said, multiple parties, 

including state utility commissioners, have stated as much at NARUC events and industry 

conferences. Commenters said, even though the Proposed Rule goes on to explain the flexibility 

that it provides for compliance, the structure and wording of the document leads to the 

interpretation that flexibility only applies within the four building blocks. Commenters said, 

since demand response and smart grid do not appear in any of the blocks, not even the one on 

energy efficiency, a signal is being sent that those tools are not eligible to be used in state 

compliance plans, even if this was not EPA's intention. 

Commenters stated, states can include in their compliance plan anything that can be shown to 

help meet the emissions reductions goal. Commenters said, in the Final Rule, EPA must clearly 

express this flexibility. Commenters said, it should go further and list and explain emissions 

reductions options that are pertinent, but not necessarily the first to be thought of, such as 

demand response and smart grid. Commenters considers smart grid to be a holistic, umbrella 

term that encompasses demand response, distributed energy resources, microgrids, 

electricity/energy storage, distribution automation, and other grid modernization and 

optimization strategies. 
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Commenters urged EPA to accept and convey a similar use of terminology in its Final Rule so 

that it is clear to states that they have the flexibility to include smart grid, as well as the options 

included under "smart grid", in their compliance plans.

Comment 3: The final rule should say clearly that states may use CHP, natural gas direct use, 

and other non-BSER building block measures as compliance options 

Response 3: The EPA has improved the definition of eligible resources throughout the rule that 

are able to generate either credits in a rate-based trading program or allowances in a mass-based 

trading rule. This allows states the flexibility to implement a program of their choice including 

state specific measures. 

The following are summaries of the specific public comments under this comment:

Commenters urged EPA to revise the rule text to make it clear that states are not restricted to just 

the emission reduction measures that EPA used in the "building blocks" to develop the BSER 

goals. Commenters said, the rule should explicitly say that states are allowed and encouraged to 

include other emission reduction measures that were not used in the BSER building blocks.

Final Rule: Commenters said, please add the following separate section to the regulatory text of 

the final rule:

Section 60.57XX Can I include emission reduction measures in my state plan that EPA did not 

use to develop the CO2 emissions goals?

(a) Yes, you may include emission reduction measures in your state plan that EPA did not use to 

develop the CO2 emissions goals. For example, you may include demand side management or 

energy efficiency programs that EPA did not consider in developing the CO2 emissions goals, or 

you may include programs to remove barriers to the deployment of combined heat and power 

(CHP), or you may include programs that credit replacing inefficient electric appliances with 

natural gas appliances or equipment even if EPA did not use these measures to develop your 

CO2 emission goals.

B. Preamble

Commenters urged EPA to include a section in the preamble to the final rule entitled (with a 

boldface heading) "State Plans May Include Emission Reduction Measures Not Used to Set 

Proposed Goals" - and provide a clear explanation that states are free to consider and use 

measures that reduce demand for and thus emissions from existing EGUs, including, for 

example, measures that were not used to set BSER goals. Commenters said, EPA should explain 

that these measures can include deploying more CHP or replacing electric appliances with 

efficient natural gas appliances to serve thermal load directly.
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C. Fact Sheets, Presentations and Other Outreach Materials

Commenters also urged EPA to highlight the option to use non-BSER emission reduction 

measures in the explanatory and outreach materials EPA uses to explain the rule to stakeholders 

and the public. Commenters said, these materials should clearly say that non-BSER measures 

may be used and that EPA's final rule allows and encourages states to include CHP and natural 

gas direct use in their plans to comply with the Clean Power BSER goals.

Comment 4: Treatment of newly constructed cleaner units

Response 4: The final rule states that units subject to 40 CFR part 60 subpart TTTT are not 

affected units subject to emission standards under this rule.

The following are summaries of the specific public comments under this comment:

Commenters stated, the proposed rule also solicits comments about the treatment of newly 

constructed units. Commenters said, the preamble clearly allows for new, cleaner sources to be 

relied on as a compliance option in states' 111(d) plans; however, this does not appear to be 

included in the proposed regulatory text. Commenters said, since the preamble appears to 

concede that EPA does not have authority to impose 111(d) requirements on newly constructed 

units, the Department suggests allowing states the option of allowing new units subject to the 

NSPS to opt-in to the 111(d) plan if they wish to do so. Commenters said, this will allow newly 

constructed units to be considered for compliance purposes as envisioned in the preamble but 

would not exceed statutory authority because it would not be a requirement. Commenters said, 

such an approach also grants states additional flexibility to determine whether it is in the state's 

interest to include or exclude new units from their 111(d) plan requirements. Commenters said, if 

this option is allowed in the final rule, then the Departments suggests that regulatory text similar 

to the following language be added to the end of section 60.5800:

Commenters stated, units meeting the conditions of this section can be exempt from 

consideration in a state plan under this subpart and can also be considered exempt when states 

demonstrate compliance with the goals listed in Table 1 of this subpart. Commenters said, 

however, states have the option of including units that meet the conditions of this section in their 

plans under this subpart and including the generation and emissions data from such units when 

demonstrating compliance with the goals listed in Table 1 of this subpart.

Comment 5: Determining "Creditable Generation" 

Response 5: In the final rule, the denominator for the calculation of goals no longer includes 

what the commenters refer to as “creditable generation” as was proposed. However, the final 

rule includes provisions for the creation of credits for compliance purposes. The EPA has 

improved the definition of eligible resources throughout the rule that are able to generate either 
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credits in a rate-based trading program or allowances in a mass-based trading rule. Please see 

sections VII and VIII of the preamble for further discussion of emission rate credits. 

The following are summaries of the specific public comments under this comment:

Commenters stated, per the proposed regulatory text (Section 60.5740) 79 FR 34951:

(a) (3) (ii) The identified emission performance level for each plan performance period in 

paragraph (a)(3)(i) of this section must be equivalent to or better than the levels of the ratebased CO2 emission performance goals in Table 1 of this Subpart for affected entities in your 

state. The emission performance levels may be in either a rate-based form or a mass based form 

which is calculated according to Section 60.5770. The CO2 emission performance level specified 

must include either of the following as applicable: (A) For a rate-based CO2 emission 

performance level, the identified level must represent the CO2 emissions rate, in pounds of CO2 

per MWh of net energy output that will be achieved by affected entities.

Commenters stated, for states using a rate-based approach, both the preamble and the Goal 

Computation TSD describe that the performance level for determining compliance is to be based 

on emissions from affected EGUs in the numerator and "all creditable generation" (which 

includes generation from sources that are not affected EGUs) in the denominator. Commenters 

said, however the proposed regulatory text above is not clear about what is allowed to be 

considered "net energy output that will be achieved by affected entities" when determining state 

compliance. Commenters suggested that EPA add another paragraph under 40 CFR 60.5740 

(a)(3)(iii)(A) with language similar to the following:

Under a rate-based emission performance level, the net energy output that will be achieved by 

affected entities includes all of the following if the SIP has measures in place to quantify and 

verify these amounts:

1. Net generation from affected EGUs in the state

2. Net generation from renewable energy generated in the state (excluding generation from 

hydropower capacity that was operational before June 20 14). Net generation from renewable 

energy is only allowed to be included in the calculation-of the net energy output that will be 

achieved by affected entities if the renewable generation is supplied to an electricity distribution 

system that receives generation from one or more affected EGUs

3. 5. 8% of net nuclear generation in the state from nuclear capacity that commenced operations 

before June 2014

4. 100% of net nuclear generation in the state from nuclear capacity that commenced operations 

after June 2014.
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5. Cumulative avoided net-generation in the state from demand-side energy efficiency projects 

implemented after June 2014. The cumulative avoided net-generation from demand-side energy 

efficiency projects is to be calculated via a method included in a federally approved SIP for the 

state. Cumulative avoided net generation from demand-side energy efficiency projects is only 

allowed to be included in the calculation of the net energy output that will be achieved by 

affected entities if the cumulative avoided net generation reduces demand from an electricity 

distribution system that receives generation from one or more affected EGUs

6. Other forms of net generation may be allowed to be included in the calculation of the net 

energy output that will be achieved by affected entities if specified in a federally approved SIP 

for the State.

Comment 6: 60.5740(a) 

Response 6: Because the rule does not mandate the use or consideration of any specific 

technologies, EPA disagrees with the suggested regulatory text. Each affected source is 

expected to determine how best to meet the applicable requirements. Please see preamble 

section VIII.I.2.a for further discussion of considerations of carbon capture technology in this 

rule. 

The following are summaries of the specific public comments under this comment:

Commenters urged EPA to include language in the final rule on Carbon Pollution Standards for 

Existing Power Plants that recognizes the viability and benefits of developing carbon capture and 

utilization technologies. Commenters said, for example, the final rule could include additions 

such as those suggested below.

In Section 60.5740(a) revise the following provision:

(a) You must include the elements described in paragraphs (a)(1) through (12) of this section in 

your state plan.

In Section 60.5740(a) add the following provision:

(a) (12) A biennial analysis of carbon capture, conversion, and/or utilization technologies that 

could provide significant, permanent, and cost-effective reduction of carbon emission rates from 

affected units and the flexibility within the state implementation plan to require that such 

technologies be installed on affected units as they are proven cost effective and commercially 

available.

Commenters stated, the purpose of the above language is to require states to conduct an analysis 

every two years of the state of technology as to carbon capture, conversion, and utilization and to 

adjust their state plants to require such technologies on existing power plants as they become 
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commercially available and cost effective. Commenters said, this provision would not require the 

installation of any carbon emission reduction devices until those technologies are practical and 

feasible. Commenters said, but it adds a level of flexibility to the rulemaking that could make it 

much more effective at reducing emissions over its decades-long implementation schedule. 

Commenters said, for ideas for more detailed regulatory language should EPA decide to require 

states to consider such technologies, please see their comments on the new plant proposal, which 

are included below.

PREVIOUSLY SUGGESTED REGULATORY LANGUAGE FOR NEW PLANT PROPOSAL

Commenters urged EPA to include language in the final rule on Carbon Pollution Standards for 

New Power Plants that recognizes the viability and benefits of carbon utilization. Commenters 

said, for example, the final rule could include additions such as those suggested below.

In Section 60.46Da:

(h) (6) If your affected unit uses methods of carbon capture that convert carbon dioxide to other 

chemical forms to meet the applicable emission limit, you must demonstrate either one of the 

following fates of the carbon dioxide:

(i) the carbon dioxide is permanently converted to other chemical forms and will not revert back 

to carbon dioxide under natural or typical conditions, or

(ii) the carbon dioxide is converted to a carbon-sequestering product that will emit carbon 

dioxide only if used to supplant another product, such as a fossil fuel, the use of which would 

emit as much or more carbon dioxide as the carbon-sequestering product.

(7) If your affected unit converts carbon dioxide emissions into other chemical forms and 

produces materials that supplant other commonly purchased products with a significant carbon 

footprint, you may calculate your carbon dioxide emissions for purposes of achieving the GHG 

emission standard by subtracting supplanted emissions from your actual emissions only if you 

demonstrate: 

(i) your carbon-sequestering product replaces a product the manufacture or processing of which 

emits carbon dioxide, such as cement manufacturing or petroleum refining,

(ii) your carbon-sequestering product is introduced into commerce and thus actually supplants 

the purchase of a high-carbon product, 

(iii) the supplanted emission deduction from your actual emissions is calculated by multiplying 

the volume of carbon-sequestering product that you introduce into commerce by an accepted 

carbon dioxide emission factor for the manufacturing or processing of the supplanted product, 

and 
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(iv) if the use or combustion of your carbon-sequestering product emits carbon dioxide at levels

comparable to the emissions from the use or combustion of the supplanted product, the 

supplanted emission deduction for those products only includes emissions for the manufacture or 

processes of the supplanted product and not for the use or combustion of the supplanted product.

In Section 60.5555:

(e) If your affected unit uses methods of carbon capture that convert carbon dioxide to other 

chemical forms in a way that are permanent under natural or typical conditions to meet the 

applicable emission limit, then you must report the volume of emissions that are permanently 

converted. 

(f) If your affected unit uses methods of carbon capture in which the carbon dioxide is converted 

to a carbon-sequestering products that will emit carbon dioxide only if used to supplant another 

product to meet the applicable emission limit, then you must report: 

(g) If your affected unit uses a deduction for supplanting the manufacture or processes of other 

products with your carbon sequestering products to meet the applicable emission limit, then you 

must report:

(1) the carbon dioxide emission factor for the manufacture or processing of the supplanted 

product, and 

(2) the volume of carbon sequestering products that is introduced into commerce.

Commenters stated, the purpose of the above language is to encourage and recognize the capture 

of carbon dioxide in a way that not only prevents emissions from reaching the atmosphere but 

also replaces other products that have a high greenhouse gas footprint. Commenters said, of 

course, this must be done in a manner that ensures net emission reductions and recognizes the 

ways to reduce overall emissions. Commenters said, for example, a product, like Blue Planet's 

carbon negative cement, that not only captures would-be carbon dioxide emissions but also 

prevents additional emissions by supplanting the manufacture of an equal volume of Portland 

cement provides a significant overall emission reduction. Commenters said, to encourage this 

practice, the suggested language above would enable an electricity generating facility to comply 

with the rule by calculating not only their actual emission reduction due to on-site capture but 

also an additional reduction representing the indirect emission reduction achieved by making 

cement in a way that does not emit carbon dioxide.

Commenters stated, on the other hand, a process that captures carbon dioxide from a power plant 

and converts it into a gasoline substitute should still get the benefit of reducing the emissions at 

the plant since the same amount of fuel would be combusted - and thus the same amount of 

carbon would be ultimately emitted - by the end user if they purchased petroleum fuel rather than 

carbon sequestering fuel. Commenters said, in this scenario, there would still be an external 

reduction worthy of a deduction, but only for the refining of the supplanting gasoline and not for 
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the combustion of the gasoline, since this would be balanced out by the emissions resulting in the 

combustion of the carbon-sequestering fuel.

Other commenters stated that a reduction at a single facility could make a modest but material 

difference in the state's compliance efforts, a value that could be monetized through a variety of 

mechanisms, which would encourage deployment of CCS. The commenters stated that the 

additional captured CO2 has value in production of a natural resource; this is precisely the kind 

of win-win-win situation the Department of Energy has touted for CCS and enhanced oil 

recovery. The commenters stated that some will oppose crediting CO2 emissions reductions 

below the 111(b) requirements because it may encourage compliance via an emitting source. The 

commenters stated that such criticism should be placed in the context that this rule is intended to 

reduce emissions and it does not, and should not, prevent new fossil-fueled facilities from being 

constructed. The commenters recommended that if the rule is to continue generally in its current 

flexible form, it should be adjusted to provide this additional flexibility to incentivize a 

technology the Administration has identified as a high priority.

Comment 7: Modify wording of 60.5750

Response 7: The EPA’s final emission guidelines require that all EE providers demonstrate that 

they will quantify and verify MWh savings (including savings from building energy codes) using 

best-practice EM&V approaches. One way to make this demonstration is to use the 

presumptively approvable EM&V approaches in the proposed Federal Plan, which specify that 

building code savings can only come from improving code compliance and/or increasing code 

stringency over baseline code compliance and stringency at the time of the CPP. The draft 

EM&V guidance that the EPA is releasing in conjunction with the Federal Plan proposal 

provides supplemental information on how to conduct quantification and verification consistent 

with this building code provision.

The following are summaries of the specific public comments under this comment:

Commenters stated, EPA should modify wording of the proposed rule at Section 60.5750 ("Can I 

include existing requirements, programs, and measures in my state plan?") to clarify that for 

building energy codes the baseline or 'business-as-usual' condition is meant to be the code in 

force and its compliance rate at the time of the CPP proposal. Commenters said, this section 

states that emissions reduction "actions taken" after the date of rule proposal pursuant to existing 

"requirements, programs and measures" can be counted for rule compliance. Commenters said, 

this is an important and beneficial section that would allow projects and actions taken under an 

existing EERS, ESPC authority or other policy or program to be credited for savings that are 

achieved during the compliance period. Commenters said, however, a particular concern with 

respect to building energy codes is that construction or renovation of a building under an existing 

(and perhaps old code) could be construed as an "action taken" pursuant to an existing 

"requirement." Commenters said, in other words, the current wording of Section 60.5750 can be 

interpreted as allowing a state with a weak building energy code now on the books to count 
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energy savings from building to that weak code as compared to building to an even weaker 

earlier code or no code at all. Commenters said, EPA should modify wording of the rule to 

assure that states should only be able to count code savings that come about from improving 

code compliance and/or increasing code stringency over baseline code compliance and 

stringency at the time of the CPP proposal.

Comment 8: Modify 60.5770 

Response 8: The EPA has added text regarding the flexible choices that states can meet either 

CO2 emission performance rates or emission goals and in addition the EPA is finalizing values 

for those different CO2 rates and goals. The EPA points the readers to section VI of the 

preamble for a detailed discussion of the new terminology and calculation methods.

The following are summaries of the specific public comments under this comment:

Commenters stated, section 60.5770(a)(3) is confusing and unclear as to what is required in a 

state plan that converts from a rate-based standard to a mass-based standard. Commenters said, 

the subsection appears to require that the conversion impose the entirety of state emission 

reductions on affected EGUs, although the goal would have been developed through the 

application of all four Building Blocks. Commenters said, the conversion is required to represent 

emissions from affected EGUs as if "the affected EGUs were to perform at an average lb 

CO2/MWh rate equal to the rate-based goal for the state," in other words, after the application of 

all four Building Blocks. Commenters said, reading from (a) of the subsection, this appears to be 

the identification of the "mass-based goal, [solely reflected] in tons of CO2 emitted by affected 

EGUs over the plan performance period." Commenters said, how this "beyond the fence" 

Building Block calculation would be included in emission limits imposed, through air permits,

on the "inside the fence" operations of an affected unit is quite unclear. 

Commenters stated, section 60.5740(a)(3), concerning the required elements of a state plan, 

requires the "identification of the state emissions performance level from affected entities." 

Commenters said, the definitions of "emissions performance level" and of "affected entities" 

given in 60.5820 indicate that this performance level does not apply only to EGUs, but to any 

entity "with obligations under this subpart for the purpose of meeting the emissions performance 

goal requirements." Commenters said, section 60.5740(a)(3)(ii) also indicates that emission 

performance levels are for "affected entities," and refers back to the possibility of a conversion to 

mass under 60.5770. Commenters said, section 60.5740(3)(ii)(B) then states that a mass-based 

conversion is to "represent the total tons of CO2 that will be emitted by affected entities," not 

solely as reflected by affected EGUs, in contradiction to 60.5770. 

Commenters stated, if the language of 60.5770 is intended to create an enforceable emission rate 

for affected units that implement the reductions from all four Building Blocks, then the section is 
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unrealistic, arbitrary and capricious, and would create a strong disincentive for conversion to a 

mass-based standard. Commenters said, at best, it is extremely unclear.

Comment 9: 60.5770 

Response 9: The EPA acknowledges the comment and has added additional clarification in the 

final rule to address the issue raised. 

The following are summaries of the specific public comments under this comment:

Commenters stated, the EPA should clarify its proposed compliance requirements for states 

using a mass based approach to meet the goals set forth under Section 111(d). Commenters said, 

as referenced in the Technical Support Document, it appears that a state can meet a Final Mass 

Equivalent and such a result should mean that a state is in compliance with the final rule, 

regardless of the EPA's calculated rate for 2030. 

Comment 10: 60.5780 

Response 10: EPA thanks the commenters for identifying the omission. The EPA inadvertently 

excluded the required demonstration that states and other third parties can enforce against 

violations of an emission standard included in a state plan via civil action pursuant to CAA 

section 304, and has included this requirement in the final rule. Please see preamble section 

VIII.D.2 for further discussion of this provision. 

The following are summaries of the specific public comments under this comment:

Commenters stated, the Proposed Rule omits citizens from important enforceability provisions. 

See 40 CFR 60.5780. Commenters said, EPA should specifically amend sections 60.5780(c) and 

(f)(5) to include citizens. Commenters said, the plans should include methods that ensure citizens 

may independently evaluate, measure, and verify compliance. See 40 CFR 60.5780(c) 

(proposed) at 79 Fed. Reg. at 34953. Commenters said, furthermore, EPA should amend section 

60.5780(f)(5) to specifically include reference to citizens and section 304, the Act's citizen suit 

provision. Commenters said, EPA does not have authority to exclude citizen enforcement of 

these section 111 requirements and Congress has specifically allowed citizens to enforce such 

requirements. See 42 USC 7604(a), 7604(f)(3).

Comment 11: Modify 60.5795 
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Response 11: The EPA disagrees with the commenters on the inclusion of oil fired combustion 

turbines and points the commenters to section IV.C. Authority to Regulate EGUs of the preamble 

that addresses the EPA’s applicability rationale. 

The following are summaries of the specific public comments under this comment:

Commenters stated, subsection 60.5795(b)(2), concerning which EGUs must be addressed in a 

state plan, includes only a subset of stationary combustion turbines. Commenters said, the 

subsection includes only combustion turbines of a certain size, that supply a certain amount of 

electricity to a utility distribution system, and that "combust[s] over 90% natural gas on a heat 

input basis on a 3-year rolling average basis." Commenters said, this provision would exclude 

from consideration in state plans combustion turbines that use oil as fuel more than 10% of the 

time. Commenters said, this distinction is contrary to the discussion of the definition of "affected 

units" in the preamble, 79 Fed. Reg. 34854, where EPA describes the unit combustion type, size, 

and generation for distribution percentage elements of the definition but does not mention an 

exemption for oil-fired units. Commenters said, if combustion turbines are included in the final 

rule as affected sources (see CICS comments regarding additional comments on why combustion 

turbines should be excluded from the final rule), then combustion turbines that fire oil should be 

included just as those that fire natural gas are included, especially since emission rates for oilfired units are likely to be higher than those for gas-fired units. Commenters said, EPA states no 

basis for the disparate treatment of oil-fired and gas-fired combustion turbines.

Comment 12: Modify 60.5795(b)(2) 

Response 12: We appreciate the comment; the final rule has the requested regulatory text (as 

proposed at 79 FR 34954, 6/18/2014).

The following are summaries of the specific public comments under this comment:

Commenters provided the following text:

"A stationary combustion that has a base load rating greater than 73 MW (250 MMBtu/h), was 

constructed for the purpose of supplying, [and supplies], one-third or more of its potential 

electric output and more than 219,000 MWh net-electrical output to a utility distribution system 

on a 3-year rolling average basis, combusts fossil fuel for more than 10.0 percent of the heat 

input during a 3-year rolling average basis and combusts over 90% natural gas on a heat input 

basis on a 3-year rolling average basis." [Proposed section 60.5795(b)(2)]

Commenters stated, EPA should fix the drafting error in the proposed rule as noted above the 

words [and supplies] appear to have been omitted. Commenters said, EPA is proposing to use 

the same applicability for affected steam generating units and IGCCs as it proposed in the New 

Source Performance Standard (NSPS) issued on January 8, 2014 [see proposed section 60.5509,
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Federal Register, Vol. 79, No. 5, p 1511]. Commenters said, EPA's preamble states "The 

rationale for this proposal concerning applicability is the same as that for the January 8, 2014 

proposal (see Fed. Reg. at 34854). Commenters said, the proposed New Unit NSPS includes the 

requirement that an affected steam generating unit or IGCC "sells the greater of 219,000 MWh 

per year and one-third of its potential electrical output to a utility distribution system". 

Commenters said, the EPA appears to have mistakenly omitted this [and supplies] criteria from 

the definition of affected steam generating units in the proposed regulatory text for the Clean 

Power Plan [see proposed section 60.5795(b)(1), 79 Fed. Reg. at 34954]. Commenters requested 

that the EPA correct this drafting error in the final rule.

Comment 13: Modify 60.5795 (b)(2) 

Response 13: The EPA agrees with the comment and is updating the exclusion criteria for 

combined heat and power units the final rule (see exclusion in §60.5850) with the intent to not 

regulate units that are and have historically been industrial units.

The following are summaries of the specific public comments under this comment:

Commenters urged EPA to adopt the following language for 40 CFR 60.5795 (b)(2), in lieu of 

the proposed language: “40 CFR 60.5795 What affected EGUs must I address in my state plan? 

...(2) A stationary combustion turbine that has a base load rating greater than 73 MWthermal (250 

MMBtu/h), was constructed for the purpose of supplying, and supplies, more than 50% of total 

energy output, including MWelectricity and MWthermal to a utility distribution system on a 3-year 

rolling average basis, combusts fossil fuel for more than 10.0 percent of the heat input during a 

3-year rolling average basis, and combusts over 90% natural gas on a heat input basis on a 3-year 

rolling average basis.” EPA should not regulate industrial cogeneration units that produce at 

least 50 percent thermal energy to a host facility. Commenters also recommend EPA consider a 

20 percent threshold consistent with the definition of net energy output, where units with at least 

20 percent of the total gross energy output consists of useful thermal output on a rolling 3 year 

basis would not be considered an affected source.

Comment 14: GHG Abatement Measures TSD 

Response 14: EPA thanks the commenters for noting the error. 

The following are summaries of the specific public comments under this comment:

Commenters noted, in the GHG Abatement Measures TSD (pg 4-29), the heading location for 

Interim and Final Proposed Targets are interchanged. Commenters said, the same error appears 

for the Alternate Targets on the following page.
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Comment 15: GHG Abatement Measures TSD, Table 5-21 has incorrect goal for NC 

Response 15: EPA thanks the commenters for noting the error. 

The following are summaries of the specific public comments under this comment:

Commenters noted, in the GHG Abatement TSD, the Option 1 2020 goal for NC given in Table 

5-21 is 2.2%. Commenters said, based on EPA spreadsheets, this value should be 2.4%. 

Commenter said, the first table gives the table in the TSD and the second table gives the value 

from EPA's spreadsheets.

Comment 16: Behavioral Energy Efficiency 

Response 16: The EPA recognizes the value of non-BSER measures, such as demand-side EE, 

to reduce CO2 emission from affected EGUs, and allows for the inclusion of non-BSER 

measures as a part of a state’s plan to meet the emission guidelines. To the extent qualifying 

demand-side EE measures are tied to a state plan, the quantified and verified MWh impacts of 

the measures may be used by an affected EGU or state to adjust a CO2 emission rate. 

Incremental emission reduction measures, such as demand-side EE, installed after 2012 can be 

recognized as part of state plans, but only for the emission reductions they provide during a plan 

performance period. Measures, including EE behavioral programs, must meet the general and 

specific eligibility requirements for resources used to adjust a CO2 emission rate as described in 

Section VIII.K.1. The measures must also meet the requirements and criteria related to proper 

quantification and verification of MWhs from demand-side EE savings are described in Section 

VIII.K.3.

The measures must also address the EM&V criteria in Section VIII.K.3 of the emission 

guidelines, which require that all EE providers demonstrate that they will quantify and verify 

MWh savings using best-practice EM&V approaches. One way to make this demonstration is to 

apply the presumptively approvable EM&V approaches specified in the proposed Model Rule in 

section IV.D.8. States may also submit other means of meeting the EM&V requirements so long 

as the state satisfactorily demonstrates in the state plan submittal that such alternative means of 

addressing requirements are as stringent as the presumptively approvable approach.

The following are summaries of the specific public comments under this comment:

Commenters stated, in order to help EPA recognize the efforts that states are already taking to 

use behavioral energy efficiency, we include the following sample language that EPA could use 

to encourage broader adoption of best practices across the country:
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"State-level behavioral energy efficiency programs will be approved as part of a state's pollution 

reduction plan if the program's savings are measured and verified using a randomized control 

trial."

Comment 17: Preamble text - incidental correction 

Response 17: EPA thanks the commenters for noting the error. 

The following are summaries of the specific public comments under this comment:

Commenters stated, footnote 260 on pages 34895 and 34896 of the proposed rule as published in 

the Federal Register states "EGUs whose capacity, fossil fuel combustion, or electricity sales 

were insufficient to qualify them as affected EGUs were not included in the goal computations. 

Commenters said most simple cycle combustion turbines were excluded on this basis. See the 

applicability criteria described in Section V.B. above."

Commenters stated, Section V.B. discusses EPA's authority to regulate EGUs. EPA should 

correct the footnote to reference Section V.C.

Comment 18: Prefer use of CO2 term rather than carbon term.

Response 18: EPA thanks the commenters for the input and clarification. 

The following are summaries of the specific public comments under this comment:

Commenters opposed the proposal's use of the word "carbon" instead of "carbon dioxide" 

because, commenters believed this is misleading as the proposed rule regulates only CO2.
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CHAPTER 11 GENERAL SUPPORT AND GENERAL OPPOSITION

11.1 GENERAL SUPPORT

Eighty one percent (81%) of the commenters discussing non-specific topics expressed general 

support for the rule. 

The commenters expressed support for the proposed rule due to concerns about the effects of 

climate change, to include health effects. Many commenters asked that the rule do more and 

move faster.

Commenters expressed support for the Clean Power Plan's renewable energy and energy 

efficiency goals. Many provided examples of renewable power and energy efficiency programs 

that are already in place.

The EPA appreciates the commenters’ support for the Carbon Pollution Emission Guidelines for 

Existing Stationary Sources: Electric Utility Generating Units.

11.2 GENERAL OPPOSITION

Nineteen percent (19%) of the commenters discussing non-specific topics expressed general 

opposition to the rule. 

Commenters expressed a number of concerns, including the following:

- Unacceptable risk

- Hurt economic growth

- Hardship on utility providers

- Disagreement with the building blocks

- Loss of jobs

- Loss of retirement and pension benefits as a result of the rule

- Timeline is too fast

- They believe the rule doesn't follow constitutional requirements

- Disbelief in CO2 as a pollutant/Climate Change in general

- Rule won't create meaningful change

- A desire for states to control energy production

- Concerns about grid reliability

- Too much uncertainty in the rule

- Beyond the authority under the CAA
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The EPA acknowledges the general concerns of the commenters regarding the Carbon Pollution 

Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, and 

responses to comments elsewhere in this document generally address those concerns.
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CHAPTER 12 OTHER 

This chapter addresses comments received on topics not covered by the other chapters of this 

Response to Comments document.

Commenters also raised issues on topics that are not covered by this chapter. Please refer to the 

following chapters for responses specific to those issues:

• Chapter 1: Legal

• Chapter 2: Applicability

• Chapter 3: GHG Mitigation Measures

• Chapter 4: State Goal Computation

• Chapter 5: State Plan Considerations

• Chapter 6: State Plans

• Chapter 7: Interactions With Other EPA Programs and Rules

• Chapter 8: Impacts and Cost Analysis

• Chapter 9: Statutory and Executive Orders

• Chapter 10: Rule Language Corrections

Comment 1: Comments suggesting that non-affected entities that participate in voluntary 

reductions should get credit or be exempted from future CAA section 111 rules.

Response 1: This comment is out of scope for this rulemaking.

The following are summaries of the specific public comments under this comment

Commenters noted concerns that if EPA allows other (i.e., non-affected source) entities to 

participate in voluntary emission reduction programs in association with 111(d) rules, then EPA 

should give them credit in upcoming standards issued under Section 111. Specifically, 

commenters suggested that electricity consumers engaged in emission reduction activities in 

association with the 111(d) EGU rules that result in verified GHG emission reductions should be 

exempted from, or given credit towards, compliance with any subsequent future standards, so 

that they are not being subject to regulation under GHG standards for multiple source categories.

Comment 2: Commenters noted that as to the regulation of GHG emissions, other source 

categories in the manufacturing sector require a fundamentally different approach than EGUs 

because they are impacted by a much broader range of factors, such as industry economics, 

geography, federal and state incentives, transportation systems, ownership structures, foreign 

competition, profit margins, and customer bases. Commenters added that regulating GHG 

emissions from the manufacturing sector is neither necessary nor sensible at this time, 

particularly given that so many industries have already been reducing GHG emissions through 

voluntary and extensive energy efficiency initiatives, and imposing uniform GHG standards of 

performance on other source categories could disadvantage these sectors by making them less 

competitive on the global stage. Commenters believed new regulations with high compliance 

costs that do not account for trade exposure will translate into significant job losses and 
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reductions in economic activity without actually reducing GHG emissions, and for all of these 

reasons, the EPA should not expand GHG performance standards to other source categories; 

however, if the EPA were to proceed with regulations for other sectors, then the agency, at a 

minimum, should first proceed with an Advanced Notice of Proposed Rulemaking ("ANPR") for 

any particular source category.

Response 2: This comment is out of scope for this rulemaking.

Comment 3: Section 111(b) rules as the sole mechanism of uniform federal standards for GHG 

emissions from future power plants 

Response 3: The commenters are correct that this rule applies to existing EGUs and EPA’s 

proposed 111b rule would apply to new and modified EGUs. EPA’s response to comments on 

the stringency of the 111b rule are addressed in the preamble and response to comments for that 

rulemaking.

The following are summaries of the specific public comments under this comment:

Commenters stated that regardless of federal or state regulation, existing plants will be replaced 

by new plants over time, and at some point in the future the EPA's proposed 111(b) rule may be 

the sole mechanism through which there are uniform federal standards for GHG emissions from 

power plants; likewise, existing plants that modify or are reconstructed would fall under the 

associated 111(b) requirements. The commenters recommended that in the context of this future 

reality, the EPA should ensure that the Section 111(b) rules for the evolving power sector are as 

rigorous as possible. The commenters stated that, in particular, they have previously urged the 

EPA to set distinct standards for natural gas-fired power plants based on their operational 

profiles to ensure low emissions from peaker, flexible, and baseload plants while maintaining 

sufficient flexibility to integrate zero-emission renewable generation. The commenters stated that 

supporting a wide range of potential measures could allow states like California, which recently 

implemented the region's first energy imbalance market as an option available to other balancing 

authorities in the West, to track carbon reduction stemming from more efficient utilization of the 

electric grid. 

Comment 4: Commenters stated that in 2009 the President announced his goal of a 17% 

reduction below 2005 levels by 2020, and the power industry is on track to meet its share of that 

target. The commenters stated that over the long term, they see dramatic long term emission 

reductions in our sector very much in line with the President's 2050 goals given the average 

retirement age of a coal plant, the transformative shift to gas due to the enormous domestic 

resource now economically recoverable, MATS and other proposed EPA rules. Given these 

facts, the commenters questioned the need for the current structure of the proposed rule. 

Response 4: EPA agrees that the CO2 emission performance rates established in the emission 

guidelines and the associated emission reductions are achievable and consistent with current 

industry trends but disagrees with the commenter’s view that the rule is therefore unnecessary. 

EPA is promulgating these emission guidelines as an important step in the process through which 

states develop and implement plans establishing standards of performance for their existing 
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affected sources, consistent with CAA section 111(d) and the implementing regulations in 40 

CFR part 60, subpart B.

The CPP will strengthen and further the ongoing trend toward a cleaner electricity system that is 

already in progress. State plans will require the CO2 emission reductions from affected EGUs 

that are achievable by 2030 through the best system of emission reduction. The emission 

guidelines provide states with flexibility to use different types of requirements and incentives, 

and to tailor their plans to their unique circumstances. The EPA believes that it would not be 

responsible given the serious impacts of climate change, nor legal given the requirements of the 

Clean Air Act, to issue no rule and assume that the needed emissions CO2 reductions from this 

sector will occur in the absence of federal policy. 

Comment 5: Commenters described the jurisdictional conflict that would arise between the state 

utility commissions and the state environmental agencies. Commenters stated that the CPP does 

not indicate which agency should take the implementation lead. Commenters also stated that 

there is not a simple solution to the jurisdictional conflict because the CPP is at once both an 

environmental regulation and an energy regulation.

Response 5: The EPA has been encouraged to see that proposal of the CPP has prompted state 

utility commissions and state environmental agencies in many states to engage and communicate 

about ways to reduce CO2 emissions from affected EGUs in ways that are consistent with 

meeting energy needs. State laws and jurisdictions differ from state to state, and the CPP allows 

entities in each state to work out their appropriate roles under state laws. Environmental policy 

and energy policy are closely related, and increased cooperation among environmental and 

energy agencies at the federal, state and local levels will help to ensure that our nation meets 

both its environmental and its energy goals.

Comment 6: The commenters stated that EPA needs to provide a clear timeline for when new 

gas plants will become part of the existing fleet for purposes of 111(d) compliance.

Response 6: New sources will be required to meet the requirements of the 111(b) rule that we’re 

finalizing and won’t become affected sources under the EGs. New NGCC capacity is subject to 

the CO2 standards for new EGUs being established under section 111(b) in a separate, concurrent 

action (CAA section 111(b) final Standards of Performance for Greenhouse Gas Emissions from 

New Stationary Sources: Electric Utility Generating Units rule). 

Comment 7: Commenters recommended that EPA allow states to credit end use efficiency 

measures that reduce demand on the carbon-free hydroelectric power system and subsequently 

offset fossil fuel generated power as emission reduction measures in a state compliance plan. For 

crediting emission reductions resulting from energy efficiency measures, commenters 

recommended that EPA allow each state to assign an emission reduction value equal to the 

emissions rate of the marginal resources in the power pool. 

Response 7: The EPA is finalizing a system of Emission Rate Credits (ERCs), where 1 ERC is 

issued for each verified MWh of energy actually generated or saved with zero associated CO2 

emissions. See Section VIII.K of the final rule preamble of the CPP. 
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Comment 8: Commenters stated, neither the Congress nor the states support the EPA's 

irresponsible agenda. Commenters said, a group of forty-one senators sent a letter to President 

Obama in June after EPA's announcement of the rule, requesting its withdrawal due to concerns 

about the "outside the fence" approach, electricity price increases, threats to manufacturers' 

competitiveness, climate benefits of "essentially zero", and costs likely to "far exceed EPA's own 

estimate...if history is any guide." Commenters said, state elected officials are weighing in as 

well. Commenters said, thirteen State Attorneys General requested withdrawal of the rule in an 

August letter to EPA Administrator Gina McCarthy. Commenters said, a September letter to 

President Obama from fifteen Governors requested additional plans and information in time for 

states to incorporate into their comments, and to withdraw the rule if unable to fulfill that 

request. Commenters said, also in September, seventeen former and current public utility 

commissioners from eleven states sent a letter to energy regulators and the EPA expressing 

serious concerns about the proposed rule's threats to the diversity and stability of America's 

electricity supply. Commenters said, according to ACCCE's count in August of 2014, legislative 

bodies and Attorneys General in 25 states have expressed opposition to EPA's approach for 

existing coal plants.

Response 8: The EPA conducted an unprecedented amount of outreach throughout this 

rulemaking process with all stakeholders including elected officials. The agency considered all 

feedback and comments received throughout the rulemaking process when writing these final 

guidelines.

Comment 9: Commenters stated that EPA should coordinate the rule with other international 

policy actions. Commenters stated that the Clean Power rule is premature in the context of 

ongoing international negotiations for a "global" climate agreement in Paris in 2015, and the 

likelihood of a revised domestic ozone standard potentially requiring retrofits or closures of 

many fossil-fueled generating units. Commenters stated that the U.S. should not risk higher 

electricity prices and diminished fuel diversity in the absence of legally binding commitments 

from major developing nations to pursue meaningful emission reductions over a defined 

timetable that is not contingent upon the completion of industrial nations' commitments. 

Commenters stated that any commitments by industrial nations to reduce emissions in advance 

of major developing nations would increase domestic job losses and accelerate the off-shoring of 

energy-sensitive industries. Commenters stated that the deadlines of the rule should 

accommodate the uncertainty associated with the U.N. FCCC negotiations, such as by providing 

a trigger mechanism in the form of an Executive Order to determine the effective date of the rule 

following the successful negotiation of a global climate agreement. Commenters stated that 

adjustment of the rule's deadlines in this manner also would allow for regulatory coordination 

with a revised ozone standard, which is scheduled to be promulgated in late 2015.

Commenters stated that the EPA and the Administration cannot gauge the extent to which other 

nations, particularly large developing nations, will be willing to bind themselves to a truly global 

program of GHG reductions - a policy requisite in order to have efficacy. Commenters stated that 

the United States should not expect that our actions will have any meaningful climate impact in a 

world economy that is using more coal and other fossil fuels every day. Therefore, commenters 

suggested that EPA delay further action on this rulemaking to regulate carbon dioxide from 

EGUs until after the 2015 Paris Conference of the Parties of the United Nations Framework 

Convention on Climate Change.
139

Response 9: EPA has taken this action under 111(d) to meet the mandates of the Clean Air 

Act. In the RIA, EPA projects that if states use the flexibilities provided under the guidelines 1) 

there will not be a significant impact on electricity prices and that we will maintain fuel diversity 

in our electricity sector with renewable generation playing an increasing role, while natural gas, 

coal and nuclear continue to play important roles.

American leadership in cleaner generating technologies encouraged by the emission guidelines 

will not only help to ensure that we can continue to provide affordable electricity domestically 

while lowering emissions of greenhouse gases and other pollutants, it can help to continue the 

downward trend in prices and the upward trend in performanve for key technologies like wind, 

solar and energy storage. These technologies are likely to be even more cost effective in 

developing nations that do not have as developed a grid system to provide electricity using the 

20th century model of large central power stations.

While the guidelines are being promulgated to meet CAA requirements, they will also help 

ensure other countries (both developed and developing) take more aggressive targets.

With regards to the ozone standard, EPA believes that the timing of these two rules aligns quite 

well. States and sources will be able to consider both rules as they make their compliance 

decisions.

Comment 10: Commenters stated EPA's building block assumptions regarding legal 

applicability, technical capability, and related factual assumptions are unfounded and arbitrarymaking the various building blocks fatally flawed, individually and in combination. Commenters 

said the target emission rates proposed cannot be achieved. Commenters continued a core 

assumption of the proposed rule is that a state that fails to achieve targeted emission reductions 

in one building block will be able to achieve the overall emissions reductions goal by increasing 

the utilization of one or more of the other three; however, EPA thus makes no provision for 

adjusting any state's overall emission reduction target in the event that an assumption about a 

particular building block proves to be wrong. Commenters stated the ability of any state or 

regulated entity to avail itself of any particular building block to reduce emissions is limited, as 

EPA recognizes. Commenters said requiring increases in the utilization of any of these building 

blocks in the face of the proposal’s limitations is infeasible.

Response 10: EPA disagrees with this comment. EPA has evaluated each of the building blocks 

with respect to the statutory factors for the BSER, including achievability, and has concluded 

that each building block is achievable through a variety of mechanisms. EPA has supported the 

data used in these evaluations. The evaluations of the individual building blocks and 

mechanisms to achieve them are discussed in sections V.C., V.D., and V.E. of the preamble and 

in the GHG Mitigation Measures TSD. Achievability and mechanisms for achievement with 

respect to all the building blocks and combinations of the building blocks, and EPA’s evaluation 

of the building blocks with respect to all statutory factors for the BSER, is further discussed in 

sections V.A. and V.B of the preamble and in the Legal Memorandum. 

Comment 11: Commenters stated EPA's modeling and assumptions regarding the viability of 

lower emission natural gas generation supplanting coal-fired generation under building block 2 
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effectively penalizes states for pre-existing RE and EE. Commenters said states that have 

substantially more coal generation in their energy mix, and higher carbon output per kWh, are 

nonetheless given lower compliance targets under the EPA rule than states with more balanced 

energy portfolios. Commenters said states that have already diversified their resource mix to 

include lower carbon emitting resources such as NGCC, hydro, nuclear, renewables and energy 

efficiency are penalized.

Response 11: The regional approach to setting emission performance standards in the final CPP 

addresses the disparity in proposed state goals and recognizes the efforts states have already 

made to reduce the emission intensity of their generation. For additional information in how 

emission performance standards were calculated, please refer to section V of the final preamble.

EPA has revised its quantification of BSER in this final rule to include a regionalization of the 

building blocks. This change addresses some of the concerns addressed by the commenter below 

by no limiting building block two replacement potential to the state in which it is 

located. Moreover, as described in V.E, EPA no longer includes existing hydro when 

quantifying its building block three levels. This addresses the concern of commenters by no 

longer deriving a lower rate premised on their existing RE generation.

Comment 12: Commenters stated EPA's assumption of an interconnected grid is inapplicable at 

Newmont's mines, which are energy-intensive and need a steady, reliable load of electricity - and 

the TS Power Plant was constructed to provide electricity to those mines. Commenters said 

whether Nevada increases the use of solar power as part of an RPS, or achieves energy savings 

of 1.5% a year at the retail level, such outcome will not result in a substantial shift in electricity 

generated at the TS Power Plant. Commenters said Nevada's emission limit is set at a level that is 

impossible to achieve by any fossil-fuel fired EGU, either coal or natural gas, because EPA 

assumed reductions in CO2 emissions as a result of these other building blocks. Commenters 

said the application of these building blocks to the TS Power Plant is neither technically feasible 

nor reasonable from a cost perspective.

Response 12: EPA disagrees with the comment. The final rule has established performance 

rates and goals for states based on the best system of emission reduction (BSER) adequately 

demonstrated. This includes engineering and feasibility analysis of various methods for reducing 

CO2 emissions from the power sector. See section V for more discussion about BSER (technical 

basis and cost reasonableness), along with the GHG Mitigation Measures TSD that also supports 

the final rule. In addition, the final rule grants States ample flexibility to design and implement 

appropriate plans (preamble section VIII) in accordance with particular state climate and energy 

policy objectives. Section VIII also clearly discusses how states can use flexible mechanisms to 

achieve the performance rates and/or state goals, such that particular electric operating 

parameters, constraints, or concerns can be adequately addressed as states develop plans to meet 

the state goals and/or performance rates. The final rule does not adopt facility level standards 

that can only, or must, be achieved through actions at the affected EGU. States will ultimately 

decide how best to meet the emission guidelines using the flexibility afforded to them in the final 

rule. 

Comment 13: Commenters stated in the proposed rule, the EPA decided all four blocks better 

represent the BSER "because it achieves greater emission reductions at a lower cost." 
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Commenters said the claim that requiring existing plant retirements to build new RE plants that 

have a higher $/kWh is a "lower cost" is difficult to understand. Commenters said in trying to 

understand the EPA's calculation, they have only identified that the EPA did not fully consider 

costs, and therefore potentially made assumptive conclusions.

Response 13: EPA disagrees with this comment. In the final rule, EPA concludes that the 

combination of all three building blocks is capable of achieving greater emission reductions at 

reasonable costs than the individual building blocks or combinations of fewer than all three 

building blocks. The EPA considered cost extensively in determining the BSER, as discussed in 

sections V.A.4.d., V.C., V.D., and V.E. of the preamble and in the GHG Mitigation Measures 

TSD.

Comment 14: Commenters stated the EPA failed to justify the designation "BSER" for natural 

gas and nuclear power. Commenters said in the case of natural gas, EPA has relied on outdated 

and incomplete information to conclude that increased use of natural gas would reduce carbon 

emissions.

Response 14: EPA disagrees with this comment. As discussed in sections V.A.3.c. and 

V.A.2.d.(2)(b)(ii) of the preamble, respectively, EPA has not included emission reductions 

achievable through the use of nuclear generation or generation from new natural gas units in the 

BSER for the final rule. In sections V.A.4.b. and V.B. of the preamble and in the GHG 

Mitigation Measures TSD, EPA has supported its determination that the substitution of increased 

generation from existing natural gas units for reduced generation from higher-emitting fossil 

fuel-fired units can reduce CO2 emissions from the affected source category for reasons 

including of the lower share of energy provided by carbon in natural gas relative to coal, the 

greater efficiency of NGCC units at converting fuel energy input to electricity output relative to 

coal steam units, and the demonstrated ability to the interconnected electricity system to 

accommodate generation shifting from coal steam units to existing NGCC units.

Comment 15: Commenters stated the underlying goals in each building block are not required in 

a state's compliance plan, however the goals in each building block must be based on what is 

technologically achievable in each state. Commenters said EPA did not consider state-specific 

constraints to increased utilization of NGCC units (e.g., permit limits, electric transmission 

constraints, and natural gas delivery constraints) during its analysis of building block 2. 

(Commenters stated the underlying goals in each building block are not required in a state's 

compliance plan, however the goals in each building block must be based on what is 

technologically achievable in each state. Commenters said EPA did not consider state-specific 

constraints to increased utilization of NGCC units (e.g., permit limits, electric transmission 

constraints, and natural gas delivery constraints) during its analysis of building block.

Response 15: EPA disagrees with this comment. EPA has quantified the emission limitations 

achievable through application of the building blocks on the regional scale of the interconnection 

in order to better represent the interconnected and integrated system in which affected EGUs 

operate and the fact that emission reduction opportunities available to individual EGUs do not 

stop at state borders just as electricity movements do not stop at state borders. EPA’s 

determination to quantify achievable emission reductions from all building blocks on a regional 
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rather than state-specific basis is discussed in section V.A.3.e. of the preamble. EPA’s analysis 

regarding the achievability of building block 2, including consideration of the types of 

constraints identified in the comment, is discussed in section V.D. of the preamble and in the 

GHG Mitigation Measures TSD.

Comment 16: Commenters stated EPA's Notice of Data Availability ("NODA"), issued on 

October 28, 2014, also suggests an impermissible overreach of EPA's authority. Commenters 

said EPA notes that the anticipated emission rate reductions calculated under Building Block 2 

are inconsistent from state to state because certain states have little or no NGCC affected EGUs. 

Commenters said EPA then asserts that one way to address this discrepancy would be to require 

a floor on the amount of re-dispatch in each state. Commenters said this approach not only lacks 

merit, but also carries with it the unintended consequence of EPA's improperly entering the 

realm occupied by utilities on how to dispatch EGUs. Commenters said EPA argues that for 

states with little or no existing NGCC units, this floor could be achieved through the construction 

and utilization of new NGCC units. Commenters said EPA is overstepping, because decisions 

about the construction or utilization of new NGCC EGUs are well beyond EPA's jurisdiction or 

agency expertise. Commenters said there is nothing in the text of CAA 111(d) that even remotely 

suggests that EPA has the authority to set limits or require emission.

Response 16: EPA disagrees with this comment. In the final rule, EPA has established uniform 

CO2 emission performance rates for steam EGUs and for NGCC units that are consistent across 

all states in the contiguous U.S., as discussed in section V.A.3.f. of the preamble. EPA’s 

determination regarding the achievability of generation shifts of the magnitude established for 

building block 2 is discussed in section V.D. of the preamble and in the GHG Mitigation 

Measures TSD. The final rule does not establish a floor on the amount of redispatch for each 

state, does not impose emission limits or generation limits on any individual EGUs, does not 

base the BSER on the construction or utilization of new NGCC capacity, and does not alter 

existing institutional regimes for making dispatch decisions. As discussed in section VIII of the 

preamble, states have considerable flexibility in developing their state plans to implement the 

emission guidelines, and may choose to structure their plans in ways that place greater or lesser 

emphasis on achieving CO2 emission reductions through the substitution of increased dispatch 

from existing NGCC units for reduced generation from higher-emitting affected EGUs.

Comment 17: The Federal Energy Regulatory Commission (FERC) is the administrative agency 

who has been properly vested by Congress with jurisdiction over interstate electricity issues and 

has voiced its concerns over the feasibility of implementing the Proposal: "Electricity Markets 

are 'interstate in nature' and the Proposed Rule's 'state-by-state approach results in an 

enforcement regime that would be awkward at best, and potentially very inefficient and 

expensive.'"[Written Testimony of Commissioner Phillip D. Moeller, Before the Committee on 

Energy and Commerce Subcommittee on Energy and Power United States House of 

Representatives, Hearing on FERC Perspective: Questions Concerning EPA' Proposed Clean 

Power Plan and other Grid Reliability Challenges at 3 (July 29, 2014) ("Moeller Testimony" ] As 

an organization that develops generation projects and has members in eight States, 

[Commenters] find it very troubling that its evaluation and development of new generation 

projects (such as small modular nuclear reactors or other carbon free generation projects) may be 

perversely influenced by state targets that are designated as part of this rulemaking. Historically, 
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[Commenters], like other utilities with multi-state footprints, has made resource decisions 

premised on the interstate nature of the electrical markets.

Response 17: EPA staff and management has worked closely with FERC throughout this 

rulemaking. FERC held and EPA participated in four technical conferences about the design of 

the CPP and electric reliability. We are confident that the advice and counsel that we have 

received from FERC has helped to improve the final rule and to assure that the rule does not 

interfere with the electric power industry’s ability to maintain electric reliability. EPA notes that 

the electric industry has done an excellent job of maintaining reliability, including when it has 

had to comply with environmental rules with much shorter compliance periods and much less 

flexibility than this final rule provides. In the final CPP EPA gives the states a number of ways 

that compliance can take into account the regional character of the electric grid. Not only can 

states develop multi-state plans but also there are opportunities for states to use either allowances 

or ERCs across state lines. Finally we are committed to maintaining an ongoing relationship 

with FERC and DOE as this final rule is implemented to help ensure continued reliable electric 

generation and transmission. 

Comment 18: Commenters stated the use of these non-BSER compliance options is an 

important flexibility mechanism that allows states to design compliance plans that reflect the 

reduction opportunities available in each state and requested that the final guidelines recognize 

this. The commenters said that the magnitude of the reduction required by the proposed 

guidelines are such that no non-BSER option could ever fully replace a building block measure 

nor does it obviate the need for EPA to address the serious concerns about the interim average 

compliance period, and that using these measures will not make it feasible for states to achieve 

the significant reductions that the structure of the interim average goal requires before 2020. The 

commenters also requested that the final guidelines indicate that states are free to propose other 

non-BSER measures for inclusion in the state plans, regardless of whether they were explicitly 

recognized by EPA first. The commenters noted states and electric utilities should be encouraged 

to continue to pursue new, cost-effective measures for reducing emissions. Commenters stated 

measures should include co-firing with natural gas or biomass, incremental hydro from existing 

facilities, new hydro, and increased utilization of electric storage technologies, as well as avoided 

emissions from supply-side EE improvements and electrification of the transportation sector.

Response 18: As discussed in sections VIII.J-K, the EPA recognized in the final rule that state 

plans may incorporate a number of measures that were not included in the EPA’s determination 

of the BSER, provided that the measures meet the general requirements in the emission 

guidelines. The preamble to the final rule specifically discusses several of the measures listed by 

the commenters, and also indicates that other actions not discussed in the preamble may also be 

used, provided they meet the general eligibility requirements of the final emission guidelines. As 

discussed in section VIII.K.1.c, the EPA does not agree that electrification of the transportation 

sector should be an eligible measure for use in a state plan, since the reduction in CO2 emissions 

occurs outside of affected EGUs. 

Comment 19: Commenters stated EPA's Block 2 biases natural gas generation and ignores 

Minnesota's "all in" integrated resources plan cost analysis which considers factors such as 

natural gas price volatility, price risk hedging and the types of electric generation needed to serve 
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different customer classes and needs (i.e. reserves for serving metro area daily generation peak 

demand and intermittent renewable resource dispatch and needs for large industrial process 

voltage support for 24/7 base load service). Commenters said EPA's CPP upsets the balance 

Minnesota policymakers have strived to achieve through weighing strong environmental 

protections with cost impacts and reliability. 

Commenters said that the one clean approach would be to adopt a fifth emissions reduction 

building block under which states would be provided with credits for meeting emissions that 

have some multiple of per ton reduction if they are based on innovative technologies, 

recognizing the environmental and economic importance and benefits of bringing those 

technologies to scale through measures that complement market incentives -- but maintaining the 

principle of the EPA itself not choosing winners and losers. 

Commenters stated that to ensure benefits are achieved locally, they support the proposed 

assessment of a plant or unit to identify and implement available control options "inside the 

fence" prior to use of "outside the fence" options. Commenters said this approach could include 

the establishment of a minimum performance level to be achieved by each affected EGU. 

Response: The final emission guidelines do not specify the measures that must be used in state 

plans. States have the flexibility to establish plans that are tailored to the particular circumstances 

of the affected EGUs in the state and the state’s existing programs. States do not have to apply 

the building blocks in the same manner that they were applied by the EPA, they can use other 

approaches, such as providing market incentives for innovative technologies, and establishing 

unit-specific standards based on “inside the fence” requirements.

Response 19: The final emission guidelines do not specify the measures that must be used in 

state plans. States have the flexibility to establish plans that are tailored to the particular 

circumstances of the affected EGUs in the state and the state’s existing programs. States do not 

have to apply the building blocks in the same manner that they were applied by the EPA, they 

can use other approaches, such as providing market incentives for innovative technologies, and 

establishing unit-specific standards based on “inside the fence” requirements.

Comment 20: Commenters stated as outlined in comments submitted on September 29, 2014, 

his organization believes that the EPA should create a subcategory for small public and 

cooperative utilities that are disproportionately affected by the Proposed Rule. Commenters said 

based on feedback from other members of the cooperative family, his organization has refined its 

proposal, which now reads as follows:

“Proposed 40 C.F.R. Section 60.5765(b)

(b) In lieu of meeting the state-wide goal established in 40 C.F.R. Section 60.5765(a) and Table 

1, a small public or cooperative utility may request a State to establish an alternative rate-based 

or mass-based emission performance goal for affected EGUs owned by a small public or 

cooperative utility on January 8, 2014, in accordance with this subsection.

(1) For purposes of this subsection, a "small public or cooperative utility" is a governmentally- or 

cooperatively-owned non-profit entity primarily engaged in the generation, transmission, and/or 

distribution of electric energy for sale with total electric output (including affiliates) of 4 million 

megawatt hours (MWh) or less during the baseline period.
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(2) A small public or cooperative utility qualifies for the alternative limit in this subsection if, 

after implementing all reasonably cost effective affected unit heat rate improvements ("HRI"), 

dispatching all existing NGCC affected units owned and operated by the entity at 70% annual net 

capacity or, in the case of units owned but not operated, offering for dispatch all existing NGCC 

affected units at the entity's proportionate share of 70% annual net capacity, and accounting for 

any renewable resources (other than hydropower or existing nuclear generation) owned by the 

entity, the following are true:

(i) one or more affected EGUs (the "non-achieving unit(s)") owned by the small public or 

cooperative utility cannot achieve the interim goal on a rate basis using only the small public or 

cooperative utility's affected units and renewable resources and any existing state-mandated 

energy efficiency requirements;

(ii) the non-achieving unit(s), individually or collectively, make up 20% or more of the small 

public or cooperative utility's net generation in the baseline period;

(iii) shutting the non-achieving unit(s) down will occur prior to the end of the remaining useful 

life as determined by the utility regulatory commission having jurisdiction, if any, or the 

permitting authority, if none; and

(iv) the cost of building an equivalent sized NGCC, New Source Performance Standard 

("NSPS")-compliant, unit or units to replace the non-achieving unit(s) plus servicing existing 

debt for the non-achieving units would, in the judgment of the state, be excessive.

(3) For each small public or cooperative utility that owned an affected EGU on June 18, 2014, 

and continues to own that non-achieving unit satisfying the criteria in paragraph (b)(2) of this 

section, the State may exclude such non-achieving unit(s) from calculating its state-wide goal in 

Table 1 of this subpart and establish an alternative goal under its state plan as follows:

(i) During the interim goal period:

(A) Each non-achieving unit owned by the qualifying small public or cooperative utility must 

implement all reasonably cost effective measures to improve heat rate, which must include 

enforceable increments of progress, not to exceed five years from plan approval;

(B) The qualifying small public or cooperative utility shall increase dispatch of all existing 

NGCC units it owns and operates to the maximum extent feasible, up to a 70% utilization rate 

and, for units it owns but does not operate, shall offer such unit for operation up to the utility's 

pro rata share of 70% annual utilization; provided, however, that if the increased dispatch of 

NGCC units results in the non-achieving unit being reduced below its reliability limit, the state 

plan may provide for either periodic curtailment or earlier retirement of the non-achieving unit so 

long as total carbon mass is not increased over what would be achieved by 70% utilization of 

NGCC units owned by the small public or cooperative utility during the interim goal period or 

appropriate pro rata share of units owned only in part by the small public or cooperative utility.

(C) The qualifying small public or cooperative utility shall install renewable energy ("RE") 

capacity or obtain renewable energy credits (in a state plan recognizing such credits) equal to at 

least 10% of non-achieving unit(s) capacity within five years of plan approval or 2025, 

whichever is later.

(D) The qualifying small public or cooperative utility, if it has local distribution, shall achieve at 

least one-half of any applicable state energy efficiency requirements set forth in the state plan.

(E) The qualifying small public or cooperative utility shall achieve a net reduction of its carbon 

intensity through the measures specified in paragraph (b)(3)(i)(A) through (D), plus additional 

increments of process specified in the state plan for such small public or cooperative utility, 

equal to the lesser of the following (excluding nuclear and hydropower):
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(I) an amount that achieves for the small public or cooperative utility an emission rate equal to 

the state Final Goal established in Table 1 of Subpart UUUU by 2030; or

(II) an amount that achieves a 15% reduction from the baseline carbon intensity of the small 

public or cooperative utility.

(III) for units that the small public or cooperative utility owns only in part, the calculations of 

this paragraph (b)(3)(E) shall be made based on its ownership share in the units.

(F) The qualifying small public or cooperative utility must achieve at least 33% of the reduction 

required in subsection (b)(3)(i)(E) by 2020 or three years after plan approval, whichever is later.

(ii) During the Final Goal period, the state plan shall provide that the qualifying small public or 

cooperative utility must take one of the following actions:

(A) Shutdown the non-achieving unit(s) at the start of the Final Goal period; 

or

(B) If any non-achieving unit(s) will remain in operation, then the qualifying small public or 

cooperative utility shall continue any measures imposed on the non-achieving unit(s) and the 

utility by the state plan and shall install additional RE or obtain RE credits (in a state plan 

recognizing such credits) beyond the quantity required in subparagraph (b)(3)(i)(C), equal to at 

least 10% of the non-achieving unit(s)' capacity prior to the start of the final goal period. 

Additional renewable energy offsets equal to 10% of the non-achieving unit(s)' capacity must be 

obtained prior to each fifth anniversary of the Final Goal plan effective date if the unit is to be 

kept in operation beyond the anniversary date. These offsets are in addition to any other RE 

requirements in the state plan that are applicable to all utilities.

(iii) Except as provided in paragraph (b)(3)(iv) of this section, a non-achieving unit may not 

operate pursuant to this subsection (b) beyond the end of its remaining useful life established by 

the utility regulatory commission having jurisdiction, if any, or the permitting authority, if none. 

The shutdown date for each non-achieving unit shall be included in the state plan.

(iv) A small public and cooperative utility that has non-achieving units that would be able to 

achieve the state final goal set forth in Table 1 of this subpart on or before December 31, 2039, 

may transition from this subcategory back to the State Plan by obtaining a revision to the state 

plan approved by EPA. A non-achieving unit that transitions back prior to December 31, 2039, 

shall not be subject to the mandatory shutdown provision of paragraph (b)(3)(iii), but shall 

comply with all requirements of the state plan applicable to that unit.

(4) A state may establish more stringent requirements for a qualifying small public or 

cooperative utility.”

Response 20: The EPA disagrees with this comment. As discussed in sections V.A.2.i. and 

V.B.2. of the preamble, the EPA has established distinct CO2 emission performance rates for 

two subcategories of affected EGUs: affected steam EGUs (including IGCC units) and affected 

stationary combustion turbines. We have not exercised our discretion to further subcategorize 

based on ownership, as suggested by the commenter. Traditionally, our subcategorization 

decisions under section 111 have been based on consideration of physical and operational 

characteristics, not ownership characteristics. As described in sections V.A.4. and V.A.5., all 

types of affected EGUs, regardless of ownership, have means for accessing the building blocks 

and are capable of achieving the emission limitations that reflect the BSER. Under the rule, a 

state has flexibility in assigning standards of performance to its affected EGUs and can impose 

different emission reduction obligations on its sources (as long as the overall level of emission 

limitation is at least as stringent as the emission guidelines). The rule does not prevent a state 
147

from exercising that flexibility with consideration to the ownership characteristics of its affected 

EGUs if the state is persuaded that treating its EGUs differently on that basis is appropriate.

Comment 21: Commenters identified additional jurisdictional issues with municipality-owned 

utilities and member-owned rural electric cooperatives in the individual states. Commenters 

indicated that the "munis" and "coops" would need to be incorporated into any state-specific 

compliance plan, but that state Public Utilities Commission exercises very limited authority over 

these entities. Commenters also pointed out that the "munis" and "coops" have long resisted 

enhanced oversight by individual states and EPA's CPP would likely cause a political battle.

Response 21: Response: EPA disagrees with this comment. CAA section 111(d) requires state 

plans to establish standards of performance for “any” existing source, including sources owned 

and operated by municipal and cooperative utilities within a state. The commenter does not 

identify any jurisdictional limitation that prevents a state from following this statutory 

requirement and EPA is not aware of any such limitation. The rule does not mandate any 

particular role for a state’s public utility commission in the state’s plan. The nature of any such 

role is left to the discretion of the state.

Comment 22: Commenters stated that the CPP confuses Oklahoma's, Texas’s and Minnesota’s 

participation in multistate power grids, explaining that their targets are based on an assumption 

that all natural gas combined cycle power plants will be "re-dispatched" to operate 70 percent of 

the time. Commenters remarked that multistate grid operators performs dispatch for these states, 

yet these grid operators are not a regulatory body, and the CPP seems to require the State to 

somehow deputize these multistate power grids as part of its State Implementation Plan. 

Commenters stated it is unclear how this could be accomplished.

Response 22: Response: EPA disagrees with this comment. Under CAA section 111(d), state 

plans establish standards of performance for affected EGUs. The rule contemplates that sources 

will work within the context of existing institutional arrangements to comply with their standards 

of performance, just as sources work within the existing institutional arrangements to comply 

with other environmental and contractual requirements. The rule does not require state plans to 

impose regulations on grid operators.

Comment 23: Commenters stated that to be reasoned, well-considered and effective, the EPA's 

final rule must be based on a better, more accurate and realistic understanding of the relationship 

between key factors essential to the short-run and long-run performance of the BES. 

Commenters said that, in particular, EPA's rule must reflect a better understanding of the 

relationship between (a) the short-run dispatch of power plants, (b) the long-run retirement and 

development of power plants and needed energy delivery infrastructure, and (c) the complex 

system of BES constraints, market dynamics, multi-jurisdictional regulation, and private sector 

investment and risk management that are all involved in delivering long-run energy solutions.

However, commenters noted that the Mandatory Goals for Virginia cannot be considered a valid 

"standard of performance" under this statutory provision for many reasons. Commenters 

asserted, among other things, the Proposed Regulation establishes Mandatory Goals for Virginia 

that: (A) impose more stringent requirements.... in fact, substantially more stringent.... for 
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affected, existing generating units than the standard for new units, yet to be built; (B) will require 

the retirement of a significant level of base load generation that must be replaced at a cost that is 

unreasonable and in a timeframe that compromises reliability; (C) fail to recognize significant 

and recent investments that (1) have substantially reduced carbon dioxide and other emissions in 

Virginia; and (2) if stranded, will also contribute to higher costs and higher bills for Virginia 

residents and businesses; (D) fail to recognize Virginia's significant investment in and utilization 

of zero-carbon nuclear generation and, in fact, effectively penalize Virginia by including "at risk" 

nuclear generation in the calculation of Virginia's goals; (E) incorporate generic and unsupported 

expectations of levels of renewable generation and energy efficiency that, when applied to 

Virginia, are extremely ambitious, almost certainly unachievable, and uneconomic under 

traditional standards; and (F) are based on an unprecedented and unsupportable legal 

interpretation that the "best system of emissions reduction" for existing sources can include 

homeowners and other retail customers that do not generate any power or produce any 

emissions.

Commenters stated that EPA creates an unwarranted hurdle in rate-based states when it appears 

to exclude from compliance calculations any "new" EGU and the zero emissions of a retired unit, 

and that this is unwarranted. For commenters’ customers, this is an acute problem. Commenters 

stated, (verbatim) under its IRP, [commenters] intended to retire four coal-fired units at its 

Meramec facility. Commenters said such units would not be replaced, reducing the plant's CO2 

emissions to zero. Commenters said the environmental benefit associated with such retirements 

is clear. Commenters noted, under EPA's methodology, however, the beneficial impact is 

practically ignored. Commenters stated that only operating EGU CO2 emissions and MWhrs are 

included in the state's rate-based compliance calculation; the calculation is not altered to account 

for such closures (see example below). Commenters suggested that EPA must allow states to 

recognize in rate-base compliance calculations the full benefit of coal plant retirements. 

Similarly, commenters noted that EPA's proposed rule ignores and disincentivizes the 

development of new natural gas combined cycle ("NGCC") units to replace or displace MWHRs 

generated by - or that may in the future need to be generated by - existing coal-fired EGUs in 

states that opt to utilize rate-based goals (we will refer herein to such new MWhrs from new 

NGCC units as "Fungible MWhrs"). As with EPA's proposed approach to addressing modified or 

reconstructed units, commenters suggested that EPA should allow NGCCs subject to regulation 

under CAA section 111(b) to function as compliance sources under section 111(d). Commenters 

said this will allow states and affected EGUs to account for the Fungible MWhrs provided by 

new NGCC capacity that replaces a retired unit or displaces utilization of existing higher carbonintensity units. To accomplish this, commenters suggested that EPA should specifically include 

new NGCCs as a type of affected entity. Commenters said this would allow states to use those 

Fungible MWhrs as a compliance mechanism both for affected EGUs (substituting Fungible 

MWhrs for the higher CO2 emission rates generated by retired or reduced output coal-fired 

EGUs) and to achieve both the state's interim and final emission rate goals. Commenters noted 

that EPA has the option to determine whether this would specifically impact BSER for affected 

EGUs. Commenters said, in building block 2, increased utilization of NGCC units, EPA 

recognized the CO2 reduction benefits that could be realized with existing generation from the 

increased utilization of natural gas. Commenters stated, indeed, EPA recognized that a sound 

mechanism for "a state plan [to] reduce utilization and emissions from affected existing EGUs 

would be through construction of new NGCC ... " Id. at 34,923 (emphasis added). Commenters 
149

stated EPA observed that an "obvious alternative" to converting existing coal EGUs to natural 

gas is "instead to use natural gas to generate electricity at a different affected EGU with a better 

heat rate - notably a [NGCC] - and to substitute that electricity for electricity from the coal-fired 

steam EGU, thus resulting in lower emissions from the coal-fired steam EGU and lower 

emission from the set of affected EGUs overall." See Id. At 34,857 (emphasis added). To 

effectuate this goal of reducing utilization of higher emitting existing EGUs, commenters 

suggested that EPA must specifically recognize new NGCCs under the proposed rule as eligible 

to constitute an affected entity. Commenters said EPA recognizes that the increased utilization of 

NGCC units will naturally factor into compliance in states with mass-based goals. See id. at 

34,923. Commenters stated, however, to allow for new NGCCs to factor into compliance in 

states with rate-based goals, EPA must eliminate the ambiguity created by exempting from the 

definition of affected EGUs any new unit that would be subject to proposed subpart TTTT. See 

Proposed 60 C.F.R. section 5800, 79 Fed. Reg. 34,954. Commenters noted EPA suggests in the 

preamble that only existing NGCC would "displace" a coal-fired unit. Commenters stated, in 

reality, coal displacement will be achieved in large part by the construction of new NGCC. 

Commenters said states using rate-based performance goals should not be disadvantaged by the 

unusual math problem created by the difference between mass- or rate-based performance goals. 

Further, commenters stated that they do not believe that the rule as proposed will create "the 

necessary incentives," as EPA suggests, to "add new NGCC capacity... to reduce CO2 

emissions." Id. at 34,876 n.192. Commenters said shifting generation from coal-fired EGUs with 

higher CO2 emission rates to NGCC EGUs with lower CO2 emission rates may reduce statewide mass CO2 emissions. Commenters said, however, as further discussed below, unless all 

states are permitted by rule the option of accounting for new NGCCs in their section 111(d) state 

plans, the present exemption practically ensures that greenfield NGCCs will have little to no 

impact on state average CO2 emission rates. Commenters said a simple example demonstrates 

the challenge of incentivizing new NGCCs in states with rate-based compliance goals. 

Commenters said to suppose the state contains four existing coal-fired units, each with a CO2 

emission rate of 2000 lbs/MWh. The average emission rate for those four units is 2000 lbs/MWh. 

One of the four units is then retired; however, the retired unit is replaced (or will be replaced in 

the near future) with a new NGCC unit. Then, due either to increases in demand or to achieve 

interim state rate-based goals, an additional new NGCC unit is constructed, while generation 

from an existing coal-fired unit is decreased. Both new NGCC units have lower CO2 emission 

rates of 1000 lbs/MWh. Commenters stated, under the rule as proposed, in a rate-based state, the 

retirement of the coal-fired unit has no effect on the average CO2 emission rate. Nor does the 

addition of new NGCCs have a significant - if any - effect (a moderate decrease in CO2 emission 

rate may be realized if the output of one coal unit is reduced due to the increase in generation 

from the new NGCC). See Scenario A below. Commenters said, however, if the emission rates 

from the new NGCC units are accounted for in the state plan, a substantial improvement in the 

state's average emission rate is realized. Commenters said in order for states with rate-based 

goals to benefit from the Fungible MWhrs generated by the utilization or increased utilization of 

new, low-carbon EGUs, commenters suggested that the rule must allow states to provide a 

mechanism to account for MWhrs from new units that otherwise are not subject to regulation 

under this rule. Commenters noted that the easiest mechanism to accomplish this goal is for the 

rule to recognize that all new units, and specifically new NGCCs, can be included as compliance 

sources in the state plans, in other words, will qualify as affected entities. Commenters stated that 

EPA's proposed rule distinguishes between affected EGUs and affected entities. Commenters 
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said an affected entity broadly includes entities with "obligations under this subpart for the 

purpose of meeting the emissions performance goal requirements in these emission guidelines." 

See Section 60.5820, 79 Fed. Reg. 34,955-56. Commenters said new NGCCs satisfy this

condition. Commenters stated that new NGCCs may be used by retired or reduced-output 

affected EGUs as the compliance mechanism for those EGUs to meet the emission performance 

goals of the state. Similarly, commenters said Fungible MWhrs from new NGCCs may be used 

to achieve the state emission rate goals to address predicted increases in demand. See 79 Fed. 

Reg. at 34,909 ("anticipated electricity demand growth after 2029"). To accomplish this, 

commenters proposed that EPA permit states to include in their state compliance plans the 

addition of new units to replace MWhrs that would have been generated by existing affected 

EGUs and/or to add capacity to the state that effectively decreases the proportion of generation 

from higher-emitting existing affected EGUs. Commenters said state rate-based goals would still 

be based upon emission rates of the existing affected EGUs during the baseline period, but the 

measurement of state performance towards achieving those goals would incorporate the emission 

rates of all Fungible MWhrs. Commenters said this is entirely consistent with the existing 

requirement under the proposed rule that states "identify any other affected entities ... with 

responsibilities for implementation and enforceable obligations under the plan." See Id. at 

34,911. Stated differently, commenters said the new unit could serve as the compliance 

mechanism to reduce the emission rate from retired affected EGUs (potentially under Building 

Block 2) or from affected EGUs that continue to operate at reduced utilization. Importantly, 

commenters asserted that allowing states discretion to designate a new unit as an affected entity 

under the proposed rule would not conflict with the exception under section 60.5800, which 

applies only to affected EGUs. Commenters suggested that state plans must establish "standards 

of performance" for its affected EGUs. Commenters said the use of new NGCC as a means for a 

state to achieve its performance standards at its affected EGUs is consistent with this 

requirement. Commenters did not propose that EPA designate a new NGCC as an affected EGU. 

By limiting the applicability of new NGCCs to affected entities, commenters stated that the 

Fungible MWhrs generated by these new units act merely as a compliance mechanism for the 

state to achieve its rate-based goal for purposes of CAA Section 111(d). Commenters noted that 

the new NGCCs would still need to meet all applicable requirements under CAA section 111(b). 

See generally 79 Fed. Reg. 1,430 (Jan. 8, 2014). Commenters said subjecting new EGUs to the 

requirements of both CAA Sections 111(b) and 111(d) is consistent with EPA's proposed 

handling of modified or reconstructed sources under the proposed rule. Generally, commenters 

said that existing units that are modified or reconstructed constitute "new units" under CAA 

Section 111(a) and are subject to the regulatory requirements under CAA Section 111(b), much 

like a greenfield unit. Commenters said, however, as proposed, modified or reconstructed 

existing sources would remain subject to the state's CAA Section 111(d) plan largely to "assure 

the integrity of the CAA section 111(d) plan." See 77 Fed. Reg. at 34904 (emphasis added).67 

Commenters stated that the same logic should apply to greenfield units constructed to replace 

MWhrs from existing coal-fired units subject to a state's 111(d) plan. Commenters said, as noted 

above, in states with rate-based goals, the mere retirement of high-carbon MWhrs is insufficient 

to achieve the performance goals. Without the ability under a state's 111(d) plan to account for 

Fungible MWhrs that replace MWhrs at existing units, commenters asserted that the rule as 

proposed jeopardizes the integrity of any existing rate-based plan by ignoring the benefit of new 

low-carbon generation. Moreover, commenters stated that it creates the unintended and absurd 

result of treating existing units reconstructed to fire natural gas differently from newly 
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constructed and more efficient greenfield NGCC units by permitting only the former to be 

incorporated into a state's existing 111(d) compliance plan. Commenters suggested that EPA 

should incentivize the development of Fungible MWhrs from new NGCC units to replace 

MWhrs from existing coal-fired units by including new NGCC in the rule as a specific 

compliance option for affected EGUs.

Response 23: In Section VIII of the preamble, EPA has explained why it has determined that 

new NGCC may not be used for compliance in a rate based program. It should however be 

noted that there are in fact mechanisms for which retired units can be accounted for in either a 

rate or a mass based program. Under a mass based based program, retiring an affected unit will 

result in less overall emissions, thus crediting the unit for the retirement. In a rate based 

program, credit is achieved in two ways. First, when a higher emitting unit retires, there is less 

need for lower or zero emitting generation. Second, in many cases the replacement generation 

can be credited. This includes new renewables, new nuclear, or redispatch to existing NGCC. 

Commenters other points regarding existing nuclear, EE and availability of RE are addressed in 

Section V of the preamble.

Comment 24: Commenters described the jurisdictional conflict that would arise between the 

state utility commissions and the state environmental agencies. Commenters stated that the CPP 

does not indicate which agency should take the implementation lead. Commenters also stated 

that there is not a simple solution to the jurisdictional conflict because the CPP is at once both an 

environmental regulation and an energy regulation. 

Response 24: The emission guidelines do not prescribe which state agency is to take the 

implementation lead, as different choices may make sense in different states. See section VIII.E 

for a discussion of the state plan submittal process and timing.

Comment 25: Commenters stated that one solution for demand side power management is to 

couple renewable energy projects with electric boilers installed at industrial facilities that 

produce and consume large quantities of steam for process needs other than electrical generation.

Commenters said that one solution for demand side power management is to couple renewable 

energy projects with electric boilers installed at industrial facilities that produce and consume 

large quantities of steam for process needs other than electrical generation. Commenters stated 

that typical examples of these types of facilities are food plants, ethanol plants, oil refineries, and 

paper mills. If existing base load steam production is generated from carbon sources (i.e. gas, oil, 

coal), commenters said that electric boilers could be tied into an existing steam plant. 

Commenters stated electric boiler load could be managed using a wattage setpoint from the 

electric utility. As renewable power becomes available, commenters said, the electric boilers 

wattage would be increased producing more steam which would displace production from base 

load carbon fuel generation. Conversely as renewable power availability decreases, commenters 

added, electric boiler wattage would decrease and base load steam generation would increase to 

meet steam demand. By allowing electrical load to be managed by the utility, commenters 

concluded that increased flexibility would lead of greater stability of grid operation. 
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Response 25: The commenters are correct that this could be part of an affected EGU’s strategy 

to reduce its carbon emissions. See section VIII.I for a discussion of the measures that me 

undertaken by affected EGUs under the 111(d) guidelines.

Comment 26: Commenters said EPA has yet to evaluate mini-grid solar and wind systems 

focusing on applicability of a decentralized distribution of grid AC, and under which a new 

concept of the evaluation, would look at daytime and night time peaks separately. Commenters 

said the goal should be to phase out the most carbon-intensive affected EGUs. Commenters said 

the phase-in period for non-hydro RE should not be subject to a state's flexibility or scaled only 

per that individual state's (or multiple states') demonstrated EGU-emissions-reduction 

opportunities.

Response 26: The EPA includes in building block 3 all utility-scale, zero-emitting RE 

technologies that have deployed at significant commercial levels over the past five years. This 

does not limit or exclude the technologies that are creditable under compliance, including 

distributed generation resources. The phase-in period for incremental RE is consistent across 

each interconnection. Please refer to section V of the final preamble for additional information.

Comment 27: Commenters stated EPA is proposing that Minnesota's existing natural gas 

combined cycle units increase their capacity factor from 24% to 70%, resulting in Minnesota's 

existing coal units reducing their cumulative output by about half by 2020. Commenters said 

Minnesota has already given consideration to CO2 costs through the Integrated Resource 

Planning process. Commenters said proposed coal unit environmental control retrofits were 

reviewed by Minnesota regulators considering all weighting factors involved with resource 

decisions, including but not limited to CO2 emissions. Commenters said electric generation 

markets practice least cost dispatch of permitted generation resources. Commenters said EPA's 

Block 2 dispatch biasing as proposed for Minnesota negates the viability of competitive power 

markets while "double dipping" consideration of CO2 cost for Minnesota. Commenters said for 

Minnesota, Block 2 biasing from existing coal to NGCC natural gas should normally be "zero", 

not the 46% suggested by EPA as a Minnesota target (70% CF vs. 24% CF actual in 2012). 

Commenters said when natural gas pricing is competitive, markets will deliver shifts in coal vs. 

natural gas generation without EPA interference that would require redesign or price fixing of 

the United States' least cost electricity dispatch marketing system.

Commenters stated the Minnesota NGCC unit capacity factor in 2012 was only about half what 

EPA referred to as the national average in their TSD analysis. Commenters said this lower 

existing NGCC utilization in Minnesota reflects the duty cycle for peak demand support near the 

Twin Cities, intermittent renewables reliability support needed for Minnesota Renewables 

Portfolio Standard implementation, distance of Minnesota NGCC generation from Northeast 

Minnesota industrial load centers and how surface mine, Powder River Basin coal delivered to 

Minnesota carries lower costs than eastern coal. Commenters said 2012 historic low natural gas 

pricing might be expected to have resulted in more market driven switching from coal to natural 

gas in the East compared to that in Minnesota. Commenters said this should not give cause for 

EPA to set aside the designed outcome from Minnesota Integrated Resource Planning by EPA's 

overlay of a proposed Clean Power Plan Block 2, NGCC capacity factor that carries over EPA 

TSD assumptions that don't apply in Minnesota.
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Response 27: The EPA disagrees with this comment. The application of building block 2 does 

not require a redesign or price fixing of the electricity dispatch marketing system, as the 

commenter suggests. Instead, under rate-based compliance, the bid prices of affected EGUs 

would reflect the incremental cost or benefit associated with the difference between that unit’s 

emissions rate and its standard of performance. In regards to actions already taken by Minnesota, 

the BSER is forward-looking in identifying cost-effective opportunities for emission reductions 

from 2012; however, the cost and availability of these emission reduction opportunities is the 

result of many factors, including previous actions. For more information on building block 2, 

refer to section V of the final preamble.

Comment 28: Commenters stated that the Proposal also seems to overlook and fails to address 

how a utility that owns generation assets in more than one State will need or be able to comply 

with the Proposal as an owner of an affected EGU. [Commenters], for example, is a part owner 

of a coal plant located in Utah, which is an affected EGU subject to this rulemaking. 

[Commenters] also have rights to the entire output of a wind farm located in Idaho. These plants 

are interconnected on the same transmission system, despite not resting within the same state 

boundaries. Absent agreement between Utah and Idaho on the treatment of interstate emission 

effects, it is unclear that [commenters] will be able to utilize its Idaho wind farm for compliance 

purposes of the CPP. In the absence of coordination by the States on interstate emission effects, 

the Proposal could result in the absurd result of building new carbon free generation in Utah as a 

compliance measure that may not be as cost-effective, or as resource-efficient, as other 

alternatives available to [commenters]. 

Response 28: A multi-state agreement is not necessary for affected EGUs to procure out-of-state 

incremental RE. This is true whether a state adopts a trading-ready approach or not. For more 

information please refer to section VIII of the final preamble.

Comment 29: Commenters stated the final rules should be cognizant of state mandates that may 

conflict or cause inconsistencies with federal mandates. Commenters specifically provided that 

Missouri's Renewable Energy Standard places a limitation such that any renewable mandate 

shall not raise IOU retail rates by an average of more than one percent in any year, and all the 

costs associated with such mandate shall be recoverable in the retail rates of that IOU.

Response 29: The EPA disagrees with this comment. There is no conflict between the CPP and a 

state’s RES because the final CPP is not a mandate for a specific amount of RE. Instead, the final 

CPP sets standards of performance for affected EGUs and affords those EGUs the opportunity to 

flexibly comply across both time and a variety of emission reduction measures, including nonBSER measures. For more information on the BSER, refer to section V of the final preamble.

Comment 30: Commenters stated, under the Clean Air Act, EPA must identify the "best" system 

of emission "reduction." Commenters said, in order to evaluate what is the "best" the U.S. can 

do, EPA should start by evaluating international programs for GHG emission reductions and then 

evaluate whether those targets are also achievable in this country. Commenters said, the CPP, 

however, does not include such a discussion. 
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Response 30: While climate change is an international environmental challenge, the Clean Air 

Act does not require or suggest that EPA evaluate international programs to determine the Best 

System of Emission Reduction (BSER) under Section 111. BSER has been determined on the 

basis of the unique interconnected and interdependent manner in which the power system 

operates in the U.S., and the actions, strategies, and policies states and utilities have already been 

undertaking that are resulting in CO2 emission reductions. 

Comment 31: Commenters stated that EPA should coordinate the rule with other international 

policy actions. Commenters stated that the Clean Power rule is premature in the context of 

ongoing international negotiations for a "global" climate agreement in Paris in 2015, and the 

likelihood of a revised domestic ozone standard potentially requiring retrofits or closures of 

many fossil-fueled generating units. Commenters stated that the U.S. should not risk higher 

electricity prices and diminished fuel diversity in the absence of legally binding commitments 

from major developing nations to pursue meaningful emission reductions over a defined 

timetable that is not contingent upon the completion of industrial nations' commitments. 

Commenters stated that any commitments by industrial nations to reduce emissions in advance 

of major developing nations would increase domestic job losses and accelerate the off-shoring of 

energy-sensitive industries. Commenters stated that the deadlines of the rule should 

accommodate the uncertainty associated with the U.N. FCCC negotiations, such as by providing 

a trigger mechanism in the form of an Executive Order to determine the effective date of the rule 

following the successful negotiation of a global climate agreement. Commenters stated that 

adjustment of the rule's deadlines in this manner also would allow for regulatory coordination 

with a revised ozone standard, which is scheduled to be promulgated in late 2015.

Commenters stated that the EPA and the Administration cannot gauge the extent to which other 

nations, particularly large developing nations, will be willing to bind themselves to a truly global 

program of GHG reductions - a policy requisite in order to have efficacy. Commenters stated that 

the United States should not expect that our actions will have any meaningful climate impact in a 

world economy that is using more coal and other fossil fuels every day. Therefore, commenters 

suggested that EPA delay further action on this rulemaking to regulate carbon dioxide from 

EGUs until after the 2015 Paris Conference of the Parties of the United Nations Framework 

Convention on Climate Change. 

Response 31: The Clean Power Plan is not premature in the context of the United Nations 

Framework Convention on Climate Change. The U.S. has been a Party to the treaty since 1994 

and has a commitment to “Formulate, implement, publish and regularly update national and, 

where appropriate, regional programmes containing measures to mitigate climate change by 

addressing anthropogenic emissions by sources and removals by sinks of all greenhouse gases 

not controlled by the Montreal Protocol” (Article 4.1.b -

http://unfccc.int/files/essential_background/background_publications_htmlpdf/application/pdf/co

nveng.pdf). The goal of the current round of UNFCCC discussions, which will conclude in Paris 

in December 2015, and as expressed through the Ad Hoc Working Group on the Durban 

Platform for Enhanced Action, is to “to launch a process to develop a protocol, another legal 

instrument or an agreed outcome with legal force under the Convention applicable to all Parties” 

(Decision 1/CP.17 http://unfccc.int/resource/docs/2011/cop17/eng/09a01.pdf#page=2).
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Most major economies, including a number of large developing emitting countries, have 

announced or previewed their Intended Nationally Determined Contributions (INDC’s) as of the 

completion of the Clean Power Plan, including the European Union, Mexico, the United States, 

the Russian Federation, Canada, China, Japan, and Brazil 

(http://unfccc.int/focus/indc_portal/items/8766.php). In November 2014, President Obama and 

President Xi made the announcement of their post-2020 climate targets. China committed to 

limit its greenhouse gas emissions, with a commitment to peak emissions around 2030 and to 

make best efforts to peak early, and to increase its share of non-fossil energy consumption to 

around 20 percent by 2030. The finalization of the Clean Power Plan in advance of the Paris 

meeting is expected to provide a demonstration of the U.S. commitment to addressing climate 

change, and as a result help produce a more robust global agreement involving other major 

economies.

Comment 32: Commenters stated EPA ensures that the final rule adequately and properly 

considers the complexities of any interaction among the four building blocks in establishing 

Emission Guidelines, and preserves real flexibility to the states in devising plans to achieve those 

targets. Commenters said the Proposed Rule includes certain provisions that are not fully 

consistent with these standards, but can be adjusted or clarified in the manner discussed in these 

comments in order to adhere to the relevant statutory requirements. Commenters said the NODA 

raises issues that would take the Proposed Rule in the entirely opposite direction, promoting the 

determination of state emission targets based upon the exaggerated displacement of fossil 

generation through the wholly theoretical, maximum aggregate effect of the four building blocks, 

in the absence of any record support for such position. Commenters said they oppose any 

suggestion through the NODA or otherwise that the final rule should establish state-specific 

emission targets based on further assumed displacement of fossil generation through electricity 

generation or consumption scenarios that are not "demonstrated," nor related to control of the 

regulated sources.

Response 32: EPA disagrees with these comments. As discussed in section V.A.3.d., demandside EE is not included in the final BSER. As discussed in section VI of the preamble, changes 

made to the proposed computation procedures allow the final computation procedures to 

mathematically better reflect the ability of building block 3 to achieve improved CO2 emission 

performance rates and emissions than the proposed computation procedures. EPA’s 

determinations that the individual building blocks and the combination of all three building 

blocks perform well with respect to all the statutory factors for the BSER, including the 

requirement that the BSER must be adequately demonstrated, are based on an extensive record, 

as discussed throughout section V of the preamble and the GHG Mitigation Measures TSD and 

in the Legal Memorandum. Aspects of EPA’s approach to determination of the BSER at a level 

of stringency that provides ample headroom and thereby facilitates both achievability and 

compliance flexibility are discussed in numerous locations in the preamble including sections 

V.A.2.d.(3), V.A.3.f., V.A.4., V.C., V.D., and V.E. Interactions among the three building blocks 

included in the final BSER are discussed in section V.A.4.d.

Comment 33: Commenters stated EPA's "building blocks" analysis of the BSER is not based on 

accurate or reasonably demonstrated assumptions in Wyoming and is inconsistent with the 

realities of the electric grid.
156

Commenters stated EPA falsely assumes that it is universally true that "increments of generation 

are to some extent interchangeable, [and] dispatch decisions are based on electricity demand at a 

given point in time, the variable costs of available generating resources, and system constraints." 

Commenters said the demand calculus may be relevant for a utility unit generating electricity for 

the grid, but it is not relevant for the operation of the TS Power Plant. Commenters said 

Newmont's mines rely on power generated at the TS Power Plant and require a constant and 

reliable load that could not be provided by natural gas generation elsewhere in the State. 

Commenters said in the case of the TS Power Plant, "increments of generation" are not 

interchangeable. Commenters said EPA's unrealistic assumption that Natural Gas Combined 

Cycle ("NGCC") capacity in Nevada can increase to 50% by 2020 is unreasonable and would 

result in an emission rate that does not allow for any coal-fired generation - regardless of the 

flexibilities that EPA claims exist in the other Building Blocks. 

Response 33: As described in preamble section VI and the CO2 Emissions Performance Rate 

and Goal Computations TSD, EPA quantification of BSER is premised on the average regional 

potential. That is, there are no unit-level assumptions regarding the building blocks. EPA 

recognizes, and its compliance modeling verifies, that many affected EGUs continue to operate 

at 2012 levels or higher.

Comment 34: Commenters stated that the Proposed Rule should allow states to meet their ratebased targets by replacing older, more carbon intensive units with newer units, particularly 

NGCC units. Commenters continued, (verbatim) EPA appears to agree with this compliance 

method, and says as much both in the June 18 Proposed Rule and its October 28 NODA. 

Commenters asserted that EPA's Proposed Rule, however, could be read to exclude Section 

111(b) sources like new NGCC from the definition of "affected entity." Commenters stated, by 

doing so, the Proposed Rule disincentivizes both the replacement of existing coal-fired EGUs 

with new NGCC units and the addition of new NGCC units to provide substitute generation or 

meet future demand (hereinafter, collectively referred to as "New NGCC") in states that opt to 

utilize rate-based targets. Commenters noted, similar to EPA's proposal to include modified or 

reconstructed units - units otherwise subject to Section 111(b) standards - within Section 111(d) 

plans, EPA should allow New NGCCs subject to regulation under CAA section 111(b) to 

function as compliance sources under section 111(d). To accomplish this, commenters suggested 

that EPA should specifically state in the Final Rule that states may include New NGCCs as 

"affected entities," or, at a minimum, should amend the definition of "affected entities" so that it 

does not exclude New NGCC. Commenters said the states then would be able to use New NGCC 

as a compliance mechanism both for affected EGUs (by allowing the substitution of CO2 

emission rates from retired or lesser-utilized coal-fired EGUs with lower rates from new NGCC 

capacity) and to meet or maintain state emission rate targets if additional capacity is need for 

future demand. Commenters stated that EPA has the option to determine whether this would 

specifically impact BSER for affected EGUs and allow the flexibility to include this option in 

individual state programs. Commenters said, in EPA's Proposed Rule Building Block 2, 

increased utilization of NGCC units, EPA recognized the CO2 reduction benefits that could be 

realized with existing generation from the increased utilization of natural gas. Commenters said 

EPA has recognized that the increased utilization of NGCC units will naturally factor into 

compliance. Commenters said, however, EPA suggests in the preamble that only existing NGCC 
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would "displace" a coal-fired unit. Commenters stated, in reality, coal displacement will be 

achieved in large part by the construction and operation of new NGCC. Further, commenters said 

if the rules are read to exclude New NGGC capacity from state targets, this creates disincentives 

to adding new NGCC capacity. Commenters stated, unless all states are permitted by rule the 

option of accounting for New NGCCs in their section 111(d) state plans, the present exemption 

practically ensures that newly constructed NGCCs will have little to no impact on state average 

CO2 emission rates. And because many states will choose to adopt a rate-based approach and 

most NGCC units will not be constructed until after the Proposed Rule is effective, commenters 

stated that the majority of New NGCCs will not be a factor towards achieving compliance with 

the Proposed Rule. Commenters said a simple example demonstrates the challenge of 

incentivizing New NGCCs in states with rate-based compliance targets. Commenters said to 

suppose the state contains 4 existing coal-fired units that generate equal amounts of electricity, 

each with a CO2 emission rate of 2000 lbs/MWh. The average emission rate for those 4 units is 

2000 lbs/MWh. One of the 4 units is then retired; however, the retired unit is replaced (or will be 

replaced in the near future) with a New NGCC unit. Then, due to increases in demand, an 

additional New NGCC unit is constructed in the state. Both New NGCC units have a lower CO2 

emission rate of 1000 lbs/MWh. Commenters noted, under the rule as proposed, in a rate-based 

state, the retirement of the coal-fired unit has no effect on the average CO2 emission rate. 

Commenters said nor does the addition of New NGCCs (whether replacement, substitution or 

additional capacity). Commenters said the average rate remains 2000 lbs/MWh (now averaged 

over 3 units). See Scenario A below. Commenters said only if the emission rate from the New 

NGCC units are accounted for would the state's average emission rate decrease to 1600 lbs/MWh 

((2000 lbs/MWh *3 units + 2000 MWh) / 5 units). Commenters suggested that new NGCCs 

should be regarded as satisfying the definition of an affected entity if used by retired affected 

EGUs as the compliance mechanism to meet the emission performance targets of the state. 

Commenters noted, similarly, new NGCCs may be used to achieve the state emission rate target, 

accounting for a growth in future demand, which as EPA has acknowledged, is a practical reality

that states and regulators alike must prepare for, by increasing the proportion of generation from 

low-carbon EGUs. Commenters said, as illustrated above, under either scenario, the growth of 

New NGCCs has a positive net benefit on lowering the overall rate of carbon emissions in the 

state, while maintaining the reliability of the electric system. To accomplish this, commenters 

suggested that EPA should permit states to include in their state compliance plans the addition of 

New NGCCs to replace capacity of existing affected EGUs and/or to add capacity to the state 

that effectively decreases the proportion of generation from higher-emitting existing affected 

EGUs. Commenters said state rate-based targets would still be based upon emission rates of the 

existing affected EGUs during the baseline period, but the calculation and verification of state 

performance towards achieving those targets would incorporate the emission rates of all New 

NGCCs. Commenters stated that this is entirely consistent with the existing requirement under 

the Proposed Rule that states identify any other affected entities with responsibilities for 

implementation and enforceable obligations under the plan. Commenters said states would only 

receive credit for any new capacity from New NGCCs. Commenters asserted, importantly, 

designating New NGCC as an affected entity under the Proposed Rule would not conflict with 

the exception under section 60.5800, which applies only to affected EGUs. Commenters 

suggested, under the Proposed Rule, state plans must establish "standards of performance" for its 

affected EGUs. Commenters noted that the use of New NGCC as a means for a state to achieve 

its performance standards at its affected EGUs is consistent with this requirement. Commenters 
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did not propose that EPA designate a New NGCC as an affected EGU. Commenters stated, by 

limiting the applicability of New NGCCs to affected entities, the new units act merely as a 

compliance mechanism for the state to achieve its rate-based target for purposes of CAA Section 

111(d). Commenters noted that the New NGCCs would still need to meet all applicable 

requirements under CAA Section 111(b). Commenters said subjecting New EGUs to the 

requirements of both CAA Sections 111(b) and 111(d) is entirely consistent with EPA's proposed 

handling of modified or reconstructed sources under the Proposed Rule. Commenters said, 

generally, existing units that are modified or reconstructed constitute "new units" under CAA 

Section 111(a) and are subject to the regulatory requirements under CAA Section 111(b), much 

like a newly constructed unit. However, commenters said modified or reconstructed existing 

sources would remain subject to the state's CAA Section 111(d) plan. Commenters noted that the 

same logic should apply to any new NGCC units constructed to replace existing coal-fired units 

subject to a state's 111(d) plan or to add capacity and lessen the overall proportion of state 

generation from higher-emitting coal-fired units. Commenters stated, to hold "new" units, 

modified or reconstructed, to burn natural gas as eligible compliance mechanisms for a section 

111(d) plan but not more efficient New NGCC is to find a distinction without a practical 

difference. Commenters said, as noted above, in states with rate-based targets, the addition of 

New NGCC units is a reasonable and effective compliance mechanism to reduce CO2 emission 

rates while ensuring that those states have sufficient capacity to meet expected increases in 

demand. Without the ability under a state's 111(d) plan to account for emission rate reductions 

from New NGCC units, commenters asserted that the rule as proposed jeopardizes the integrity 

of any existing rate-based plan by ignoring the benefit of increasing the proportion of generation 

from low-emitting NGCC units. Commenters suggested that EPA should incentivize the 

construction of New NGCC units by including New NGCC in the rule as affected entities to 

allow for such units' use as a specific compliance option. 

Response 34: EPA’s authority under this rulemaking extends to existing EGUs which includes 

under construction natural gas turbines that commenced construction prior to 1/08/2014. These 

units are included in EPA’s baseline and the quantification of BSER and building block two and 

their potential to replace higher emitting fossil steam. In regards to new natural gas combined 

cycle units that commence construction post 1/08/14, their generation and its replacement 

potential is not part of the BSER quantification. However, EPA believes that states/EGUs may 

still utilize this option for compliance as the replacement generation will lower the fossil steam 

generation (and emissions) of existing units and thus helps states/EGUs better reach their rate 

and mass goals.

Comment 35: Commenters stated Building Block 2 must be adjusted to allow for preservation of 

10% to 12% of coal-fired steam generation in each state because such generation could otherwise 

be completely displaced by re-dispatch to NGCC units and is necessary for ensuring reliable and 

affordable electricity.

Response 35: The EPA has taken a regionalized approach to quantifying BSER in this final 

rulemaking. The Eastern Interconnect informs the fossil steam rate for all states/EGUs in all 

years. Even at full deployment of the building blocks in 2030, the resulting fossil steam rate is 

premised on fossil steam (coal steam) generation levels that represent a generation share 

significantly greater than the 10% or 12% minimums identified below.
159

Comment 36: Commenters stated EPA employed flawed assumptions in the modeling that 

produced the individual state compliance targets. Commenters said EPA utilized averages 

without considering the actual potential improvements possible for each state. Commenters 

continued EPA's building block 2 does not apply adequate analysis to determine the feasibility of 

altering operational profiles for dispatch of lower carbon emitting resources. Commenters said 

EPA did not consider the ownership of such facilities, existing contracts for output, or access to 

adequate fuel supplies in order to operate at a higher capacity factor nor whether the type of gas 

generator operates efficiently at the necessary capacity factors to offset the lost coal generating 

units that will be shut down for environmental dispatch. Commenters said these issues impact the 

viability of building block 2 as a compliance measure. Commenters said EPA also made 

unjustified assumptions about the viability of RE and EE for attaining compliance with the 

interim and final goals. Commenters said many states have rules or statutes that require the 

adoption of some amount of RE or installation of a set degree of EE; however, these 

requirements also establish timeframes for compliance and sunset thereafter. In crafting the 

goals, state utility commissions considered that program adoption would likely favor "low 

hanging fruit" in the earlier stages and then gradually dissipate as diminishing returns set in. 

Response 36: Please see preamble section V.D, and V.E. EPA is taking a regionalized approach 

to quantifying BSER in this final rule. The source-category rates reflect the average fossil steam 

and NGCC emission rates attainable upon full deployment of the building blocks. As described 

in sections V and VIII, states are permitted to acquire credits and harvest reduction potential 

from out of state sources.

Comment 37: Commenters stated, in the context of the NODA, EPA identifies comments and 

related issues that could have the effect of magnifying the concerns implicated by the Proposed 

Rule, virtually ensuring that the ultimate standards would (a) not meet the statutory requirement 

that the standards reflect demonstrated technology, (b) eliminate the flexibility necessary in the 

development of state plans, and (c) dissociate the regulation from EPA's underlying statutory

authority. Commenters said the NODA seeks comment on the opportunity for the displacement 

of fossil generation by RE and EE in a manner that could materially reduce certain state emission 

goals. Commenters said any such suggestion ignores the statutory concepts underlying section 

111(d) that require Emission Guidelines to reflect the BSER that has been adequately 

demonstrated for the category of regulated sources. Commenters said theoretical implications for 

fossil generation are wholly unsupported by the record established by EPA in support of the 

Proposed Rule, and contrary to available facts from the energy sector. Commenters said for these 

reasons, the suggestion through the NODA of further reducing state targets by effectively 

requiring RE sources and EE to reduce fossil generation cannot be reconciled with the statutory 

directive that a system of emission reduction upon which the emission guidelines are based must 

be adequately demonstrated. Commenters said reliance on such theoretical displacement would 

all but eliminate any flexibility otherwise available to states in developing state plans because 

there can be no alternative compliance measures sufficient to achieve the required state level 

targets.

Commenters stated EPA ensures that the final rule adequately and properly considers the 

complexities of any interaction among the four building blocks in establishing Emission 
160

Guidelines, and preserves real flexibility to the states in devising plans to achieve those targets. 

Commenters said the Proposed Rule includes certain provisions that are not fully consistent with 

these standards, but can be adjusted or clarified in the manner discussed in these comments in 

order to adhere to the relevant statutory requirements. Commenters said the NODA raises issues 

that would take the Proposed Rule in the entirely opposite direction, promoting the determination 

of state emission targets based upon the exaggerated displacement of fossil generation through 

the wholly theoretical, maximum aggregate effect of the four building blocks, in the absence of 

any record support for such position. Commenters said they oppose any suggestion through the 

NODA or otherwise that the final rule should establish state-specific emission targets based on 

further assumed displacement of fossil generation through electricity generation or consumption 

scenarios that are not "demonstrated," nor related to control of the regulated sources.

Response 37: The EPA took comment and received significant support for its building block 

three treatment in the final rule discussed in section VI of the preamble. That is, that incremental 

renewable generation can and will replace existing fossil generation. This is consistent with the 

concept of the best system of emissions reductions from existing sources and the premise of 

building blocks two and three to offer lower emitting generation to offset higher emitting 

generation.

Comment 38: Commenters stated the EPA is incorrect in stating: "In the large and highly 

integrated electricity market, where electricity is fungible, and the demand can be met in many 

ways." Commenters said the assumption of integration on a state level is incorrect when applied 

to Michigan, a state of two peninsulas. Commenters said electricity is fungible but our market is 

not highly integrated between peninsulas. Commenters gave examples of how the energy supply 

and networks are very different within their state, even being 2 different MISO zones and being 

interconnected to different states. Commenters added not all generating capacity in the state is 

available to Michigan customers nor regulated by the Commission; therefore, the assumption of 

integration and fungibility simply does not hold true. Commenters said this leads to the 

conclusion that the four building blocks are not "fungible" and there must be some 

accommodation to the calculation of goals to address the reality of the energy supply market and 

transmission constraints in Michigan. Commenters stated the USEPA needs to recognize the 

complexities of the existing electric market structure and allow states the time and flexibility in 

crafting a viable approach to meet reduction targets. Commenters said while the EPA states that 

integrated generation, transmission, and distribution networks create this fungibility, fungibility 

could occur with major capital improvements but will require adequate time not provided for in 

the proposal.

Response 39: With regards to whether electricity is fungible, as the EPA has explained in 

Section V of the preamble, fungibility occurs both within states and across state borders. Even 

though electricity may not be fungible between the two peninsulas of Michigan, it is nonetheless 

fungible between each of the peninsulas and the portion of the region wide grid that it is 

connected to. Therefore both portions of Michigan do in fact have access to all three building 

blocks through direct grid connections. They also have access through other mechanisms like 

trading. While all units may not be regulated by Michigan’s Public Utility Commission, this fact 

is not relevant to whether the state may require emission reductions from those units. Finally, 
161

with regards to allowing states time and flexibility, the EPA has adjusted the final rule to move 

the compliance date from 2020 to 2022, providing states more time.
162

APPENDIX A: CROSS-REFERENCED COMMENTS

Many commenters requested that the remarks of other commenters be incorporated into their 

own comments on the proposed rule. The table below lists the commenters who have been 

referenced, followed by the number of commenters who asked to incorporate the referenced 

commenters’ remarks. Specifically, the first column in Table A-1 is a list of commenters who 

were referred to by other commenters. The second column gives the docket ID number for the 

commenters who were referenced. The third column provides the number of commenters who 

referred to each of the referenced commenters.

Table A-1. Cross-Referenced Comments

Referenced Commenter Name Referenced Commenter

Docket ID

Number of 

Times 

Referenced

17-state attorneys general EPA-HQ-OAR-2013-0602-23949 3

ACC, CIBO, ERCOT and other 

Associations

EPA-HQ-OAR-2013-0602-22581 7

Alliance for Fuel Options, Reliability 

and Diversity (AFFORD)

EPA-HQ-OAR-2013-0602-22914 3

American Chemistry Council (ACC) EPA-HQ-OAR-2013-0602-23517 2

American Council for an Energy 

Efficient Economy (ACEEE)

EPA-HQ-OAR-2013-0602-22810 1

American Electric Power (AEP) EPA-HQ-OAR-2013-0602-24030 1

American Farm Bureau Federation 

(AFBF)

EPA-HQ-OAR-2013-0602-23787 2

American Forest and Paper Association 

(AFPA) and American Wood Council 

(AWC)

EPA-HQ-OAR-2013-0602-23012 5

American Gas Association (AGA) EPA-HQ-OAR-2013-0602-23014 1

American Municipal Power, Inc. 

(AMP)

EPA-HQ-OAR-2013-0602-23366 11

American Public Power Association 

(APPA)

EPA-HQ-OAR-2013-0602-22871 28
163

Referenced Commenter Name Referenced Commenter

Docket ID

Number of 

Times 

Referenced

American Wind Energy Association 

(AWEA)

EPA-HQ-OAR-2013-0602-23067 3

Arizona Department of Environmental 

Quality (ADEQ)

EPA-HQ-OAR-2013-0602-23938 1

Arizona Electric Power Cooperative 

(AEPCO)

EPA-HQ-OAR-2013-0602-

18866/22972

4

Arizona Public Service (APS) EPA-HQ-OAR-2013-0602-23482 3

Arizona Utilities Group (AUG) EPA-HQ-OAR-2013-0602-23415 3

ASE EPA-HQ-OAR-2013-0602-21161 2

Association of Illinois Electric 

Cooperatives (AIEC)

EPA-HQ-OAR-2013-0602-22866 1

Basin Electric Power Cooperative 

(BEPC)

EPA-HQ-OAR-2013-0602-23574 16

Biomass Power Association (BPA) EPA-HQ-OAR-2013-0602-17788 1

Buckeye Power EPA-HQ-OAR-2013-0602-22751 17

Business Council for Sustainable 

Energy (BCSE)

EPA-HQ-OAR-2013-0602-22605 1

California Air Resources Board 

(CARB)

EPA-HQ-OAR-2013-0602-23433 1

Center on Race, Poverty and the 

Environment (CRPE)

EPA-HQ-OAR-2013-0602-24104 1

Cities of Hamilton, OH and Orrville, 

OH

EPA-HQ-OAR-2013-0602-22809 1

Class of 85 Regulatory Response 

Group

EPA-HQ-OAR-2013-0602-

23421/23423

4

Clean Air Task Force (CATF) EPA-HQ-OAR-2013-0602-22612 1

Coal Utilization Research Council 

(CURC)

EPA-HQ-OAR-2013-0602-23186 1
164

Referenced Commenter Name Referenced Commenter

Docket ID

Number of 

Times 

Referenced

Coalition for Innovative Climate 

Solutions (CICS)

EPA-HQ-OAR-2013-0602-22583 3

Combined Heat and Power Association 

(CHPA)

EPA-HQ-OAR-2013-0602-22798 3

Connecticut Green Bank EPA-HQ-OAR-2013-0602-24080 1

Duke Energy EPA-HQ-OAR-2013-0602-23983 1

East River Electric Power Cooperative 

(EREPC)

EPA-HQ-OAR-2013-0602-25988 16

Edison Electric Institute (EEI) EPA-HQ-OAR-2013-0602-23224 19

Electric Cooperatives of South Carolina EPA-HQ-OAR-2013-0602-23227 1

Electrical Power Research Institute 

(EPRI)

EPA-HQ-OAR-2013-0602-21697 13

Energy Northwest EPA-HQ-OAR-2013-0602-23266 1

Florida Electric Power Coordinating 

Group (FEPCG)

EPA-HQ-OAR-2013-0602-22811 2

Florida Municipal Electric Association 

(FMEA)

EPA-HQ-OAR-2013-0602-23135 1

Florida Office of the Public Counsel 

(OPC)

EPA-HQ-OAR-2013-0602-23385 1

Generation and Transmission Fossil 

Cooperative Group (GTFCG)

EPA-HQ-OAR-2013-0602-23164 2

Georgetown Climate Center EPA-HQ-OAR-2013-0602-23597 1

Global Thermostat EPA-HQ-OAR-2013-0602-22956 1

Governor of Idaho EPA-HQ-OAR-2013-0602-26838 1

Group of ESCOs (coalition): 

Ameresco, Honeywell, etc.

EPA-HQ-OAR-2013-0602-24161 2

Gulf Coast Lignite Coalition (GCLC) EPA-HQ-OAR-2013-0602-23394 3

Hoosier Energy Rural Electric 

Cooperative

EPA-HQ-OAR-2013-0602-23554 7
165

Referenced Commenter Name Referenced Commenter

Docket ID

Number of 

Times 

Referenced

Indiana Department of Environmental 

Management (IDEM)

EPA-HQ-OAR-2013-0602-24292 1

Indiana Electric Cooperatives (IEC) EPA-HQ-OAR-2013-0602-23371 7

Institute for Energy and Environmental 

Resources

EPA-HQ-OAR-2013-0602-24050 1

International Emissions Trading 

Association

EPA-HQ-OAR-2013-0602-23993 1

Iowa Association of Municipal Utilities 

(IAMU)

EPA-HQ-OAR-2013-0602-24222 1

Iowa Department of Natural Resources 

(IDNR)

EPA-HQ-OAR-2013-0602-23271 2

Kentucky Energy and Environment 

Cabinet

EPA-HQ-OAR-2013-0602-22574 2

Large Public Power Council (LPPC) EPA-HQ-OAR-2013-0602-23209 6

Lignite Energy Council EPA-HQ-OAR-2013-0602-24306 1

Lincoln Electric System (LES) EPA-HQ-OAR-2013-0602-23252 1

Louisiana Department of 

Environmental Quality (LDEQ)

EPA-HQ-OAR-2013-0602-23991 1

Michigan Municipal Electric 

Association (MMEA)

EPA-HQ-OAR-2013-0602-23297 1

MidAmerican Energy Company (MEC) EPA-HQ-OAR-2013-0602-23235 1

Midcontinent Independent System 

Operator, Inc. (MISO)

EPA-HQ-OAR-2013-0602-22547 4

Minnesota Chamber of Commerce 

(MCC)

EPA-HQ-OAR-2013-0602-23577 1

Minnesota Pollution Control Agency 

(MPCA)

EPA-HQ-OAR-2013-0602-23509 1

Minnesota Utility Investors (MUI) EPA-HQ-OAR-2013-0602-25058 1
166

Referenced Commenter Name Referenced Commenter

Docket ID

Number of 

Times 

Referenced

Missouri River Energy Services 

(MRES)

EPA-HQ-OAR-2013-0602-23810 19

National Alliance of Forest Owners 

(NAFO)

EPA-HQ-OAR-2013-0602-22958 1

National Association of Manufacturers 

Coalition (NAMC)

EPA-HQ-OAR-2013-0602-27341 5

National Association of Regulatory 

Utility Commissioners (NARUC)

EPA-HQ-OAR-2013-0602-22791 3

National Climate Coalition EPA-HQ-OAR-2013-0602-22910 1

National Hydropower Association 

(NHA)

EPA-HQ-OAR-2013-0602-24258 3

National Mining Association (NMA) EPA-HQ-OAR-2013-0602-24094 3

National Rural Electric Cooperative 

Association (NRECA)

EPA-HQ-OAR-2013-0602-33118 175

Natural Resources Defense Council 

(NRDC)

EPA-HQ-OAR-2013-0602-23325 1

Nebraska Department of Environmental 

Quality (NDEQ)

EPA-HQ-OAR-2013-0602-22533 1

Nebraska Power Association (NPA) EPA-HQ-OAR-2013-0602-22927 1

Nebraska Power Review Board 

(NPRB)

EPA-HQ-OAR-2013-0602-29642 1

Nebraska Public Power District 

(NPPD)

EPA-HQ-OAR-2013-0602-23956 1

Nebraska Rural Electric Association 

(NREA)

EPA-HQ-OAR-2013-0602-22802 1

Northeast Energy Efficiency 

Partnerships (NEEP)

EPA-HQ-OAR-2013-0602-

24215/31918

1

Northeast States for Coordinated Air 

Use Management (NESCAUM)

EPA-HQ-OAR-2013-0602-23503 1
167

Referenced Commenter Name Referenced Commenter

Docket ID

Number of 

Times 

Referenced

Northwest Energy Efficiency Alliance 

(NEEA)

EPA-HQ-OAR-2013-0602-23849 1

Nuclear Energy Institute (NEI) EPA-HQ-OAR-2013-0602-24216 1

Oglethorpe Power Corporation EPA-HQ-OAR-2013-0602-23794 11

Omaha Public Power District (OPPD) EPA-HQ-OAR-2013-0602-22921 1

Oregon Department of Environmental 

Quality

EPA-HQ-OAR-2013-0602-20678 1

Otter Tail Power Company EPA-HQ-OAR-2013-0602-22527 1

Owners/operators of nuclear units 

under construction

EPA-HQ-OAR-2013-0602-24250 3

Pennsylvania Department of 

Environmental Protection (PADEP)

EPA-HQ-OAR-2013-0602-22739 1

Pennsylvania Public Utility 

Commission (PAPUC)

EPA-HQ-OAR-2013-0602-24099 1

Prairie State Generating Company, 

LLC (PSGC)

EPA-HQ-OAR-2013-0602-22867 1

Public Utilities Commission of Ohio 

(PUCO)

EPA-HQ-OAR-2013-0602-22762 1

Regional Greenhouse Gas Initiative 

(RGGI)

EPA-HQ-OAR-2013-0602-22395 5

Salt River Project Agricultural 

Improvement and Power District (SRP)

EPA-HQ-OAR-2013-0602-22788 1

Santee Cooper (South Carolina Public 

Service Authority)

EPA-HQ-OAR-2013-0602-24166 2

Sargent & Lundy EPA-HQ-OAR-2013-0602-22797 1

SCANA Corporation EPA-HQ-OAR-2013-0602-23308 1

Sierra Club EPA-HQ-OAR-2013-0602-24029 1

Solar Energy Industries Association 

(SEIA)

EPA-HQ-OAR-2013-0602-23091 1
168

Referenced Commenter Name Referenced Commenter

Docket ID

Number of 

Times 

Referenced

South Carolina Chamber of Commerce EPA-HQ-OAR-2013-0602-23314 1

South Carolina Department of Health 

and Environmental Control (DHEC)

EPA-HQ-OAR-2013-0602-22584 1

Southern Alliance for Clean Energy 

(SACE)

EPA-HQ-OAR-2013-0602-24961 1

Southwest Energy Efficiency Project 

(SWEEP)

EPA-HQ-OAR-2013-0602-23962 1

Southwest Power Pool (SPP) EPA-HQ-OAR-2013-0602-20757 7

State of Kansas EPA-HQ-OAR-2013-0602-23255 1

State of Michigan (Department of 

Environmental Quality)

EPA-HQ-OAR-2013-0602-24334 1

State of Utah, Office of the Governor EPA-HQ-OAR-2013-0602-23100 1

Tennessee Valley Authority (TVA) EPA-HQ-OAR-2013-0602-22272 1

Texas Commission on Environmental 

Quality (TCEQ)

EPA-HQ-OAR-2013-0602-23305 1

Tri-State Generation & Transmission 

Association

EPA-HQ-OAR-2013-0602-23095 11

US Chamber of Commerce EPA-HQ-OAR-2013-0602-6743 1

Utility Air Regulatory Group (UARG) EPA-HQ-OAR-2013-0602-22768 21

Virginia Department of Environmental 

Quality

EPA-HQ-OAR-2013-0602-23258 1

Virginia State Corporation Commission EPA-HQ-OAR-2013-0602-20767 1

Wabash Valley Power Association 

(WVPA)

EPA-HQ-OAR-2013-0602-22813 3

WEST Associates EPA-HQ-OAR-2013-0602-23973 3

Wisconsin Utilities Association (WUA) 

et. al.

EPA-HQ-OAR-2013-0602-22746 1

Wyoming Industrial Energy Consumers 

(WIEC)

EPA-HQ-OAR-2013-0602-23116 1
169

Referenced Commenter Name Referenced Commenter

Docket ID

Number of 

Times 

Referenced

Wyoming Public Service Commission EPA-HQ-OAR-2013-0602-23932 1