2
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## Chapter **2 Legal Issues**  **Contents** 2.1 EPA Authority

to Propose and Promulgate Rule
................................ ................................ . 2 2.1.1 EPA Does/Does Not Have Authority Under CAA 111
................................ ................... 30 2.1.2 EPA Should/Should Not Regulate Through NSPS
................................ .......................... 35 2.1.3 EPA Has a Legal Responsibility to Address Greenhouse Gas Emissions Under CAA 111

................................ ................................ ................................ ................................ ................... 43 2.1.4 Requirements Under CAA 111
................................ ................................ ........................ 51 Adequatel y Demonstrated
................................ ................................ ................................ ..... 58 Achievable
................................ ................................ ................................ ............................ 71 Consideration of Factors for Best Adequately Demonstrated Sy stem ................................ .. 76 Selection of a Technology as BSER to Promote Technological Development
.................... 92 2.1.4 Promulgation of Rules Not Proposed
................................ ................................ ............ 100 2.1.5 Application of BSER
................................ ................................ ................................ ..... 104 2.2 Consideration of Proposed CCS Projects Under EPAct
................................ .................. 113 2.2.1 EPAct Bars Consideration of the Proposed CCS Projects
................................ ....... 113 2.2.2 Statutory

Anal ys is and Interpretation
................................ ................................ ....... 115 2.2.3 EPAct Legislative History and Purpose
................................ ................................ ......... 126 2.2.4 Factual Support from EPAct Facilities
................................ ................................ .......... 131 2.3 Penalties
................................ ................................ ................................ ........................... 134 2.4 Miscellaneous Legal Issues
................................ ................................ .............................. 135 2.4.1 General Legal Comments
................................ ................................ .............................. 135 Carbon Capture Sequestration
................................ ................................ ............................ 136 Reliability

and Affordability
................................ ................................ ............................... 137 Violates U.S. Supreme Court Precedent
................................ ................................ ............. 137 2.4.2 I ssues Related to Data Quality Act ( Information Quality Act)
................................ ...... 138 NODA and TSD Legal Justification
................................ ................................ ................... 143 GPRA Modernization Act Science Quality Commitment
................................ .................. 144 Conflicts of Interest ................................ ................................ ................................ ............. 144 Public Record
................................ ................................ ................................ ...................... 1452
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### 2.1 **EPA AUTHORITY TO PRO POSE AND PROMULGATE**  **RULE Comment 2.1**  **- 1:**  Commenter 10389 supported EPA's efforts to promote a more efficient electric generating fleet. Commenter further stated that the right poli cy framework will promote the deploy ment of innovative technologies which conserve resources, reduce costs, and increase efficiency . This will benefit our customers, the environment and our company
. **Response 2.1 -**  **1:** The EPA acknowledges the commenter’s support. **Comment 2.1 -**  **2:** Commenter 1 974 stated that as EPA works to control carbon dioxide emissions, it is important for the country to recognize that we need to repower our country , independent of concerns over climate change or the other pollution issues related to coal. Coal is non - renew able and the "200 year" suppl y concept is flat wrong because EIA has never anal yz ed that assessment of our coal "reserves" to see if they trul y are economicall y recoverable. **Response 2.1 -**  **2:** The EPA appreciates the concern expressed b y the commenter. However, the purpose o f this rulemaking is to control emissions of CO 2 from fossil fuel
- fired EGUs. The purpose is not to repower the country . The EPA notes in the proposal and in the final preamble that the country , for a variety of reasons, has been moving away from power pro duction using coal and toward more use of natural gas and renewable energy sources. The standards in this final action are not affect that trend in any way. **Comment 2.1 -**  **3:** Commenters (3593, 5631, 8971, 9396, 9423, 9684, 9734, 10046, 10391, 10662 and 10788) stated that th e EPA's partial CCS requirement for coal plants will in effect serve as a ban to new coal plants in the U.S. Commenter further stated that the EPA provides no anal ys is or discussion of the very

serious repercussions economic, energy securit y, reliability
- of essentially banning new coal plants in the U.S. and increasing reliance on natural gas. **Response 2.1 -**  **3:** The final standards in this action do not ban new coal plants in the U.S. As the EPA has shown in Section V. H. and I. of the preamble , utilities and project develo pers can construct new coal
- fired steam generating units that meet the final standard of performance at a reasonable cost. As the EPA has stated in Section II.C. of the final preamble, the U.S. electricity sector is undergoing a period of intense change. F ossil fuels

– such as coal, natural gas, and oil

– have historically

provided a large percentage of electricity in the U.S., with smaller amounts provided by other t yp es of generation including nuclear, and renewables such as wind, solar, and hydroelectric power. Coal has historically provided the largest percentage of the fossil fuel generation. However, i n recent ye ars, the nation has seen a sizeable increase in renewable generation such as wind and solar, as well as a shift from coal to natural gas. The EPA also noted that these trends are also apparent in publicly available integrated resource plans (IRPs). The EPA reviewed publicl y available IRPs from a range of companies (e.g., varying in size, location, current fuel mix), and noted that the plans are generall y consistent with modeling projections from the EIA and the EPA . The IRPs indicate that companies are focused on demand
- side management programs to lower future electricity demand and are mostl y reliant2
- 3

on a mix of new natural gas
- fired generat ion and renewable energy to meet increased load demand and to replace retired generation capacity
. These trends are unaffected by the standards of performance in this final rulemaking. Still, m any

of the IRPs highlight the value of fuel diversity and include options to diversify new generation capacity

beyond natural gas and renewable energy . Several IRPs indicate that companies are considering new nuclear generation, including either traditional nuclear power plants or small modular reactors, and a smaller number are considering new coal
- fired generation capacity with and without CCS technology . Based on these IRPs, the EPA acknowledges that a small number of new coal
- fired power plants may be b uilt in the near future. The standards that the EPA is finalizing in this action will allow those sources to be built and operated at a reasonable cost while reducing CO 2 emissions to a level reflective of performance of the best sy stem of emission reducti on . **Comment 2.1 -**  **4:** Commenter 10097 stated that it is inconsistent with CAA Section 111 to promulgate a NSPS that for technical or economic reasons precludes new sources from locating in many parts of the country . Commenter further stated that in fact the judicial holding s EPA cites to support this contention are either inconsequential or stand for just the opposite. **Response 2.1 -**  **4:** EPA does not accept this comment’s factual premise. As shown in section V.M of the preamble to the final rule and in a Technical Supporting Document on Geographic Availability

(available in the rulemaking docket, EPA
- HQ
- OAR
- 2013
- 0495) , there is ample sequestration capacity in areas of the country. Further, there is substantial capacity for sequestration via EOR in many areas of the country , with expanding pip eline networks to further those opportunities. The commenter does not indicate that new capacity is likely to be located in any of the country ’s remaining areas, but in the event of such possibility , a plant could utilize an alternative form of compliance not involving sequestration. Consequently , the EPA believes that a new coal
- burning EGU meeting the promulgated NSPS could be sited any where in the country
. Thus, although the EPA disagrees with the commenter that section 111 must allow a new plant to be sited an ywhere (particularly given the choice of a new plant as to where to locate) , the issue appears to be moot given the facts above. **Comment 2.1 -**  **5:** Commenters (5599 and 10097) stated that the proposed NSPS for coal
- fired EGUs requiring carbon capture is not supporte d by the existing state of carbon capture technology

as applied to EGUs, and EPA does not have the discretionary authority to impose it. Commenters (5599, 9317 and 9497) stated that the EPA points to four plants that will employ Carbon Capture and Storage (CCS) technology to some limited degree. Commenters further stated that none of these plants are in
- service as of the date of this proposal. Commenters further stated that these CCS projects are still on the drawing board or in some early stage of construc tion. Commenters further stated that the Kemper County plant in Mississippi, the Summit Power Project in Texas, the Hydrogen Energy Project in California and the Boundary Dam Project in Canada are the projects EPA cites as successful examples of partial CC S programs. Commenters stated that the Mississippi project is over budget b y almost $1 billion at this time and its target on
- line date in 2014 is in question, this CCS project will not store CO 2 but be used for enhanced oil recovery which is very

limited in its applications throughout the country and hence is not truly

a pure CCS application.2
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**Response 2.1 -**  **5:** Boundary Dam Unit #3 is a full
- scale commercial coal
- fired EGU that is utilizing full (90 %) post
- combustion CCS technology that is directly transferable to other new fossil fuel
- fired EGUs . The EPA believes that both post
- combustion carbon capture and pre
combustion capture technologies

– and the compression, transportation and storage of captured CO 2 are technicall y feasible, and adequatel y demonstrated, within the meaning of section 111 of the Act. See section V .D and E of the preamble to the final rule. **Comment 2.1 -**  **6:** Commenters (5599 and 10046) stated that the US Court sy stem has long held that the regulation of electric power generation is the function of each state. Commenter s further stated that the Federal agencies (such as the EPA) have the obligation to respect the rights of the states unless Congress specificall y specifies that the agency has been granted such rights. **Response 2.1 -**  **6:** The promulgated NSPS regulates emissions of a pollutant from a source category listed as causing or contributing significantly to air pollution which may reasonabl y be anticipated to endanger public health or welfare. EPA is granted authority to issue such regulations under section 111 (b) of the Act, and ha s done so since 1972. **Comment 2.1 -**  **7:** Commenter 9195 stated that the EPA disregarded the law requiring independent scientific review and adopted an energy policy that ignores technical and practical realities. Commenter further stated that the NSPS fundamentall y obscures the state of technology and rejects sound energy

policy
. **Response 2.1 -**  **7:** The promulgated standard of performance is based on a best sy stem of emission reduction which is adequately demonstrated. See preamble section V. Issues related to data quality are addressed below in section 2.4.2. **Comment 2.1 -**  **8:** Commenter 9195 stated that the EPA has an obligation to provide industries as well as Congress and the public clarity on its plans. Commenter asks following questions to the EPA: a. Can you tell us if EPA has ruled out greenhouse gas regu lations on an y of these sectors? I f so, which ones, and of the remaining sectors that you do plan to regulate, which ones will be first? b. What are the implications of this new definition of the "Best Sy stem of Emission Reduction"? Might it be used in other rules? c. Can you assure us that outside groups will not have the power to force the Agency to require CCS in other contexts? **Response 2.1 -**  **8:** Technology
- based standards for one industry sector are generally

not precedential for an y other industry sector. Portland Ce ment Ass’n v. Ruckelshaus , 486 F. 2d 375, 389 (D.C. Cir. 1973); Sierra Club v. EPA , 353 F. 3d 976, 986
- 87 (D.C. Cir. 2004) (per Roberts J.). Consequently, the EPA does not view the final standards for coal
- fired EGUs as establishing some type of binding a dministrative precedent for other industry sectors. **Comment 2.1 -**  **9:** Commenter 9195 stated that under the law, the advice of scientific experts is a pre - requisite, not an afterthought. Specifically , the Environmental Research, Development, and Demonstration Authorization A ct of 1978 (ERDDAA) establishes the Science Advisory Board (SAB) as an independent body charged with providing advice to Congress and the EPA.2
- 5

Commenter questions the EPA, How, when, and in what manner has the Agency considered the advice of the SAB? **Response 2.1 -**  **9:** As no ted in response 2.4
- 2 below (“Data Quality Act responses”), the SAB workgroup considering whether to review the proposed rule stated that the agency was acting based on the “best available science” in its consideration of issues relating to sequestration. The same Workgroup f

ound that the NETL studies utilized by EPA were properly

peer reviewed under both DOE and EPA peer review recommended procedures. **Comment 2.1 -**  **10:** Commenter 9195 further stated that this Committee is familiar with the communications between the Science Advisory Board and the Administrator as well as the meetings held in December 2013 and January 2014 addressing CCS. Commenter also stated that the EPA staff who spoke on your behalf at the December 4
- 5, 2013 meeting said that looking at sequestration was outside their statutory obligation since other EPA programs would handle the storage or sequestration of the CO 2 . Commenter asks following questions to the EPA: **Comment 2.1**  **- 10a:**  Please explain how future power plants would be permitted for CO 2 injection in parts of the country where EOR is not an option. **Response 2.1 -**  **10 a**  **:** The Class VIUI C standards provide the applicable regulatory framework. The EPA has issued construction permits implementing these standards to two applicants to date seeking such permits. See preamble se ction V.M. **Comment 2.1.10**  **b:** What portion of the storage costs and liability will EPA be willing to subsidize? How did EPA assess these costs? **Response 2.1**  **- 10b**  **:** Financial responsibility (including for post
- closure care) is required under the Class VI st andards. Permittees pay these costs, and did so in the case of the construction permits issued to date under the Class VIprogram. **Comment 2.1**  **- 10c:**  The NSPS proposal notes that UI C Class VI wells are an option. How many final Class VI permits has the ag ency granted to date? **Response 2.1**  **- 10c**  **:** The EPA has issued two permits for six wells. **Comment 2.1**  **- 10d:**  Why was the SAB instructed to ignore sequestration issues? **Response 2.1**  **- 10d**  **:** The SAB was properl y informed that there is an existing, already promulgated set of standards for sequestration of anthropogenic CO 2 . **Comment 2.1**  **- 10e:**  How can the Agency both rely on the benefits of EOR sales for making a CCS sy stem less expensive, and incorporate new storage requirements in the rule (Subpart RR) while simultaneously den yi ng that CCS includes the storage half of the sy stem? **Response 2.1**  **- 10e**  **:** First, EPA has chosen a highly conservative means of assessing costs here b y assuming that no EGU will utilize EOR (although experience would indicate otherwise, as with the Boundary Dam and Kemper sources). Second, the BSER is utilization of p artial CCS, which includes secure delivery of captured carbon to an entity2
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complying with either the subpart PP or RR GHG reporting and monitoring requirements. Finally , as an aspect of considering non
- air environmental impacts of the standards (see CAA s ection 111 (a)(1)), the EPA considered the efficacy of the Class VI and Class II UI C regulatory

program to safel y sequester CO 2 so that CO 2 is not re - released to the ambient air or contaminate underground sources of drinking water As explained in detail i n section V.M of the preamble to the final rule, these standards reasonably provide that assurance. **Comment 2.1 -**  **11:** Commenter 9195 stated that at the January 21, 2014 SAB meeting, held by conference call, the EPA had speakers or witnesses from at least three utilitie s that discussed how CCS would not be feasible in their states for a number of reasons. Commenter asks following questions to the EPA:
a. Does the Agency

dispute the information presented by these witnesses or any

others presented at this meeting? b. Did EPA encourage the SAB to consider these comments? Why or why not? c. Was EPA aware of the legal obstacles utilities face in many states? d. Does EPA have the power to address these legal problems? e. How did EPA factor in these obstacles? f. What econo mic analy sis did EPA undertake to understand the potential impacts of these practical and legal obstacles? **Response 2.1 -**  **11:** As described fully in section 2.4.2 above, the SAB indicated that EPA’s approach to sequestration reflected best available science. Detailed discu ssion of issues related to sequestration availability and safet y are found in sections V. M and N to the preamble to the final rule. In short, man y issues of legal status (post
- closure care, for example) are addressed and obligations specified by the Class VIpermitting rules. Other issues regarding individual property rights are site
- specific and must be resolved case
- by
- case. EPA’s estimates of costs include estimates for situations where land or sub
- surface pore acquisition proves to be necessary . The six Class VI construction permits issued by EPA to date indicate that sources may be permitted and can surmount potential site
- specific issues. **Comment 2.1 -**  **12:** Commenter 9195 stated that at a hearing before the House in February 2014, DOE Deput y Assistant Secretary for C lean Coal, Dr. Julio Friedmann, testified that requiring CCS technologies at new coal
- fired plants could dramaticall y raise the cost of electricity for consumers. Dr. Friedmann testified that for so
- called first generation technologies, there would be "som ething like a 70 to 80 percent increase on the wholesale price of electricity ." Dr. Friedmann added that "It is in fact a substantial percentage increase in the cost of electricity. " Commenter asks following questions to the EPA: **Comment 2.1 -**  **12 a:**  Does the EPA agree with that statement? **Response 2.1 -**  **12 a:**  Under Secretary Friedmann’s testimony

addressed full CCS. EPA did not propose a standard reflecting performance of full CCS, and is not adopting a final standard based on performance of full CCS. EPA’s co nsideration of costs of the BSER, and the standard generall y, are set forth in preamble section V. H . EPA projects virtually no effect on electricity prices as a result of the promulgated standards. See RIA chapter 4 .6 (no significant macroeconomic effect s of standards).2
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**Comment 2.1 -**  **12 b:**  Does the NSPS proposal align with that assessment? Why or why not? **Response 2.1**  **- 12**  **b :**  As just stated, it does not because the standard is not based on performance of full CCS
. **Comment 2.1 -**  **12 c:**  Is a 70 to 80 percent increase on wholesale power prices acceptable to the EPA? **Response 2.1**  **- 12**  **c :**  EPA rejected full CCS as BSER for reasons of excessive cost. See preamble section V. P.2. **Comment 2.1 -**  **12 d:**  How did EPA model the economic impacts of such an increase? **Response 2 .1**  **- 12**  **d:** EPA does not view the new source performance standards as having a significant effect on energy prices over those that would occur in the absence of the rule. **Comment 2.1 -**  **13:** Commenter 9195 asks following questions to the EPA: **Comment 2.1 -**  **13a:** Can you provide an y other example of a technology required by EPA CAA section III regulations where the technology was not yet used on a commercial basis? **Response 2.1**  **- 13a**  **:** Full CCS is used on a commercial basis, at, among other sites, Dakota Gasification and Boundary D am. **Comment 2.1 -**  **13b:** EPA is explicitly required to consider cost in determining the best s ys tem of emission reduction. By

EPA's own estimate, adding CCS to a new coal
- fired power plant adds somewhere between 60% and 80% to the total cost of the plant. How does this compare to the percentage increase in costs imposed by other control technologies EPA has required in the past? **Response 2.1**  **- 13b**  **:** See above. This question assumes full CCS which is not the basis for the promulgated standard
. **Comment 2.1 -**  **13c:** Wo uld it be fair to say the costs for compliance with this single requirement would exceed the combined cost for all other CAA technologies required by EPA on new coal
fired power plants? **Response 2.1**  **- 13c**  **:** This would not be a fair statement. See preamble se ction V.H.4 in particular. **Comment 2.1 -**  **14:** Commenter 9195 stated that the EPA appears to suggest that the legal framework for making BSER determinations changes based on the current economics of different fuel options. Commenter asks following questions to the EPA: **Comment 2.1 -**  **14a:** .I s this EPA's legal position? I f so, on what authorities does this legal rationale rely? **Response 2.1**  **- 14a**  **:** The statute does not specify how EPA is to consider costs or energy requirements. EPA believes it is reasonable to rely on project ed economic data, including fuel2
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prices, out to 2022 (the year the 8 ye ar period mandated for review of NSPS) based on the Energy Information Agency

official governmental price estimates used government
- and private sector - wide, as well as EPA’s modeling o f the electricity sector. **Comment 2.1 -**  **14b:** Are there other variables that EPA believes would impact the factors the Agency considers in making a BSER determination? **Response 2.1**  **- 14b**  **:** See preamble section III.H. **Comment 2.1 -**  **14c:** To what extent is cost a det ermining factor? **Response 2.1**  **- 14c**  **:** See in addition, preamble section V.H.2. **Comment 2.1 -**  **14d:** What assumptions were made about the cost of natural gas and coal? Was this done regionally

or does EPA assume that prices are uniform nationall y? **Response 2.1**  **- 14d**  **:** See RIA chapter 4 in particular. **Comment 2.1 -**  **14e:** At what price does coal power become competitive or advantaged over natural gas? **Response 2.1**  **- 14e**  **:** Onl y at natural gas prices above $10/mmBtu does the levelized cost of a representative coal
- fired unit fall below the levelized cost of a representative natural gas combined cycle unit. See RIA Chapter 5
. **Comment 2.1 -**  **14f:** Have prices changed since the in itial release of this proposal in September of 2013? **Response 2.1**  **- 14f:**  The Energy Information Adminstration indicates that the average delivered natural gas price to the power sector was $4.39/MMBtu in 2014, a slight increase from the average in 2013 of $4 .25/MMBtu. **Comment 2.1 -**  **14g:** How will the agency's conclusions change when these costs factors change substantially
. **Response 2.1**  **- 14g**  **:** See RIA chapter 5 showing that under assumptions whereby an SCPC source would be built, the rule provides direct monetiz ed benefits in the form of CO 2 reductions and SO 2 reductions which exceed the cost of CO 2 control under a range of assumptions . That RIA chapter also details the assumptions (either economic or non
- economic) under which such a plant might be constructed
. **Comment 2.1 -**  **15:** Commenter 9195 stated that the EPA appears to suggest that the legal framework for making BSER determinations changes based on the current economics of different fuel options. Commenter asks following questions to the EPA: **Comment 2.1 -**  **1 5**  **a:** Is this EPA' s legal position? I f so, on what authorities does this legal rationale rely?2
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**Response 2.1 -**  **1 5**  **a:** The statute does not specify how EPA is to consider costs or energy requirements. EPA believes it is reasonable to rely on projected price information out to 2 022 (the year the 8 year period mandated for review of NSPS) based on the Energy Information Agency official governmental price estimates used government
- and private sector
- wide
. **Comment 2.1 -**  **15 b:**  Are there other variables that EPA believes would impact the factors the Agency considers in making a BSER determination? **Response 2.1 -**  **15 b:**  See preamble section III.H. **Comment 2.1 -**  **15 c:**  To what extent is cost a determining factor? **Response 2.1 -**  **15 c:**  See in addition, preamble section V.H.2. **Comment 2.1 -**  **15 d:**  What assumptions were made about the cost of natural gas and coal? Was this done regionally

or does EPA assume that prices are uniform nationall y? **Response 2.1 -**  **15 d:**  See RIA chapter 4 in particular. **Comment 2.1 -**  **16:** Commenter 9195 asks following questions to the EPA: **Comment 2.1 -**  **16 a**  **:** Would you agree that the ability to do either EOR or geologic sequestration are very site specific, and many

states and regions will simply not have EOR or sequestration options ? **Respons e 2.1**  **- 16**  **a:** See preamble sections V. M and N and response above. **Comment 2.1 -**  **16 b:**  Do you think this rule will put specific states and regions at a competitive disadvantage in terms of compliance? **Response 2.1 -**  **16 b:**  EPA believes that the standard can be met any where in the country . In those few areas where sequestration proves unavailable (if an y), alternative compliance pathways not involving sequestration are available. **Comment 2.1 -**  **1 6**  **c:** Do you believe CO 2 pipelines can solve this problem? **Response 2.1 -**  **16 c:**  See previous response. **Comment 2.1 -**  **17:** Commenters (2658, 8022, 9596, 9655, 9684, 9765, 9775, 9777, 10029, 10046, 10083 and 10607) stated that the rule defines carbon capture and sequestration (CCS) as the "best demonstrated sy stem of emission reduction" (BSER) for CO 2 from coal power plants. CCS is not "adequately

demonstrated" because its cost is exorbitant, making a new coal plant up to five times more expensive than a new natural gas combined cycle (NGCC) plant. **Response 2.1 -**  **17:** EPA’s consideration of costs is described fully in preamble section V.H. and I
. These comments reflect, in many instances, costs reflecting full CCS, which is not the basis for the promulgated standard of performance.2
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**Comment 2.1 -**  **18:** Commenter 9684 stated that the Congress never enacted legislation specificall y requiring or authorizing NSPS for CO 2 and never enacted a greenhouse gas cap
- and
trade program. **Response 2.1 -**  **18:** Congress has enacted CAA section 111, the Supreme Court has held that GHGs are po llutants and reiterated (in AEP v. Connecticut) that control of emissions of these pollutants is covered b y s ection 111. EPA is consequently acting well within the scope of its delegated authority

in issuing standards for control of CO 2 from new steam ele ctric EGUs. **Comment 2.1 -**  **19:** Commenter 9684 stated that the EPA set the new source performance standards (NSPS) for both new coal and new natural gas combined cycle (NGCC) power plants at 1,000 pounds of carbon dioxide per megawatt hour (1,000 lbs. CO 2 /MWh). Commenter further stated that the EPA estimated that 95% of all NGCC power plants already met the standard, whereas no existing coal power plants came close; even the most efficient, on average, emitted 1,800 lbs. CO 2 /MWh. **Response 2.1 -**  **19:** The commenter refers to coal power plants operating without utilizing BSER

– partial CCS. The EPA does not believe there is a substantial dispute that with the BSER, a new supercritical coal plant could meet the promulgated standard of 1 , 400 lb/MWh. The Boundary Dam Unit #3 is achieving a level less than 1 , 000 lb/MWh using full CCS. **Comment 2.1 -**  **20:** Commenter 9684 stated that the EPA regulated coal power plants and NGCC plants as separate source categories subject to different NSPS for conventional air pollutants. Commenter further stated that the EPA began developing its greenhouse gas Endangerment Rule, however, coal interests worried the agency would redefine source categories so that coal power plants and NGCC plants would be held to identical NSPS for CO 2 . **Response 2.1 -**  **20:** EPA is not promulgating the same NSPS for coal
- fired and N GCC units. **Comment 2.1 -**  **21:** Commenter 9002 stated that for regulating GHGs, EPA should consider more sustainable approaches. Commenter further stated that any EGU compliance mechanism that shifts the compliance burden to other sectors may inhibit the ability

for sources in these other sectors to comply

with any future GHG NSPS developed for further GHG emission reductions. **Response 2.1 -**  **21:** There is no such shifting in the promulgated standards of performance. **Comment 2.1 -**  **22:** Commenters (2658, 3093, 5052 9194, 9401, 9486, 9594, 9734, 9777, 10044 and 10096) stated that the EPA's action falls outside its statutory authority because EPA is not merel y revising the existing standards that appl y t o new EGUs; instead, EPA is illegall y adding GHGs ( CO 2 ) as a new NSPS pollutant for fossil
- fired utility sources. Comme nters further stated that the EPA is developing a rule to require onl y unproven technology for new fossil
- fuel EGU generation that EPA acknowledges is not necessary
. **Response 2.1 -**  **22:** Since the Supreme Court held that GHGs are not only pollutants, but that their emissions are covered b y CAA section 111, the agency is hard put to see the basis for the commenter’s claim that it is acting beyond the scope of its authority in issuing standards for such pollutants under section 111.2
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**Comment 2.1 -**  **23:** Commenters (9317 and 10024) stated that wh y g eneration technologies representing enhancements in operational efficiency are rejected as the best sy stem of emission reduction (BSER) because they do not provide meaningful reductions in carbon dioxide ( CO 2 ) emissions, when EPA projected that this rule, based on carbon capture and sequestration (CCS), will result in negligible CO 2 emission changes. Commenters further stated that supercritical or ultra
- supercritical coal
- fired boilers are an appropriate initial BSER. **Response 2.1 -**  **23:** See preamble sections IV.B.1 and V. P.1
. The comment also mixes apples and oranges. If new fossil
- fuel fired steam electric generating capacity is built, there would be very significant emission reductions over a standard based on supercritical technology alone. See preamble section V.J. Quanti fiable monetized benefits would exceed costs as well based on a range of assumptions (again, assuming that new capacity would otherwise be constructed). RIA chapter 5. **Comment 2.1 -**  **24:** Commenter 9515 stated that flexible compliance mechanisms like multiyear compliance periods can and should serve as components of a 's ys tem of emission reduction.' Commenter further stated that in its overview of the legal requirements for establishing standards of performance under the Clean Air Act, EPA notes that a sy stem of emission redu ction is 'not required to be alway s a technological control.' Commenter also stated that the EPA should expand upon this statement and more explicitly endorse the use of non
- technological, flexible compliance mechanisms, including emissions trading and ave raging. **Response 2.1 -**  **24:** The EPA notes that there are flexibilities in the final standard of performance for new steam generating units. In particular the 12
- operating
- month compliance period allows for potential emission excursions due to operational variations including during p eriods of start
up, shutdown, and malfunction. The EPA has also identified alternative compliance pathway s – beyond the implementation of the identified BSER. Further, the approach in this rule of requiring that all new sources be well
- controlled at the s ource is consistent with C ongressional intent for section 111(b), as we discuss in the preamble. **Comment 2.1 -**  **25:** Commenter 9515 stated that the EPA thus has broad discretion to interpret 'category' so long as the agency's final decision is reasonable. Commenter further st ated that the statute elsewhere grants EPA authority to 'distinguish among classes, ty pes, and sizes within categories of new sources,' validating the notion that a 'category' of sources can encompass different types of sources. Commenter also stated that in L ignite Energy Council v. EPA, the D.C. Circuit affirmed EPA's discretion to determine the scope of standards and categories, the court's opinion upheld EPA's decision to issue uniform, category wide performance standards for sources that had previously been treated as separate subcategories, highlighting that the court was mindful of the high degree of deference it must show to EPA's scientific judgment. **Response 2.1 -**  **25:** EPA agrees that it has discretion to subcategorize when establishing standards of performance
. **Comment 2.1 -**  **26:** Commenter 10119 states although the Proposed Rule would exempt a broad range of facilities meeting the "new source" definition from the standard, according to the plain text of the Clean Air Act, any performance standards for greenhouse gas emissions from EGUs based on endangerment findings and other, more recent scientific information must be applicable2
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to all "new sources" that commence construction following the date of promulgation of the Proposed Rule. Commenter 10119 continues that the Administrator' s discretion to "distinguish among classes, types, and sizes within categories of new sources for the purpose of establishing such standards" allows distinctions only for the purpose of establishing standards
--- not for the purpose of declining to establis h any standards whatsoever
--- for different classes, t ypes, and sizes of new sources. **Response 2.1 -**  **26:** The commenter is mistaken. See Portland Cement Ass'n v. EPA, 665 F. 3d 177,193
- 94 (D.C. Cir. 2011) (not clear if there is any dut y to revise NSPS for prev iousl y unregulated pollutants, and EPA may legitimatel y study

the issue before regulating). **Comment 2.1 -**  **27:** Commenters (7977 and 9777) stated that this regulatory action is not consistent with the clean coal technology programs administered by Department of Energy
. Commenters further stated that the EPA inexplicably assigns no significant carbon dioxide ( CO 2 ) emission reductions resulting from the rule making. **Response 2.1 -**  **27:** The Clean Coal programs are based on widespread use of full CCS at a future date. This rule is predicated on par tial CCS performance, which could certainly serve as a bridge to use of full CCS. See generall y preamble section V.K. If no coal
- burning capacity were to be built, there would be significant GHG emission reductions compared to capacity using onl y supercritical technology . See preamble section V.J and RIA section 5. The predicted lack of emission benefit reflects a reasonable projection that no such capacity would be built, not that the standard adopted in today’s rule would not result in GHG emission re ductions if new sources are constructed and operated. See RIA chapter 4. **Comment 2.1 -**  **28:** Commenter 1959 **(** National Rural Electric Cooperative Ass’n p. 38) noted that the estimated capital costs for partial CCS would increase SCPC costs by 24%, twice the level that the Portland Cement court found to be reasonable. **Response 2.1 -**  **28:** First, Portland Cement did not establish a ‘bright line’ metric as to what costs are reasonable, or for that matter, that capital costs are the onl y metric b y which the reasonableness of costs can be assessed unde r section 111 (a). In addition, Portland Cement itself holds that determinations under section 111 for one industry are not ty

pically of relevance for determinations for another industry . 486 F. 2d at 389. Second, as shown in section V.H.4 of the preamb le to the final rule, estimated capital costs of the BSER here are in fact comparable to those adopted (and upheld) for the steam electric power industry in other NSPS
. , We note further that these cost estimates are conservative, not considering, among other things, EOR opportunities or alternative fuel co
- firing. **Comment 2.1 -**  **29:** Commenter 9600 states that the legislative history cited by EPA at proposal indicates at most that an NSPS could contain a geographic limitation only if siting would result in local air quality

c oncerns. Since CO 2 is a global pollutant, such concerns would not exist here. **Response 2.1 -**  **29:** The EPA believes that a new source could locate any where in the country

and meet the 1 , 400 lb CO 2 /MWh standard. As shown in Preamble section V
. M there is ample sequestration capacity in most areas of the country, and also EOR opportunities (including pipeline infrastructure) in many areas as well. Some states have emission standards that2
- 13

effectivel y prohibit new uncontrolled coal
- burning electric ity generating units from locating within their borders, so the issue of geographic availability is moot as to such states. In addition, there are other compliance pathway s available to sources that do not depend on carbon capture and sequestration which alternatives would not be constrained geographically
. **Comment 2.1 -**  **30:** Commenter 9600 stated that the EPA made a valid projection and not a "crystal ball" prediction regarding cost reasonableness of BSER. Commenter further stated that the reliability

of the prediction rest s on the validity of the assumptions, Portland Cement 486 F.2d 375, 392. Commenter stated that this is another reason wh y this proposal is arbitrary and accordingl y must be withdrawn. **Response 2.1 -**  **30:** The estimates of cost in the final standards are not based on “cry stal b all” projections

– as the commenter evidentl y concedes . The NETL cost estimates reflect peer review (contrary

to the commenter’s assertions), and are thoroughly documented in every

detail, again contrary

to the commenter’s assertions. In one example of co sts the commenter asserts were overlooked, transportation and sequestration costs, NETL in fact estimates those costs and documents its estimates’ basis. NETL (2013) at pp. 48
- 50; NETL (2015) uses the same meticulous methodology

and item
- by
- item documente d costing. S ee also draft RIA at 5
- 30 and final RIA at 4.5.4 (estimating costs for transportation, storage, and monitoring of CO 2 ). The NETLestimates are consistent with those of other techno
- economic models from highl y reputable sources. See preamble section V. I.2. In addition, the estimates are consistent (and in some instances, higher than) estimates of CCS technology providers being publically quoted b y CCS technology

providers
. See preamble section V.I.2.c. **Comment 2.1 -**  **31:** Commenter 10046 stated that the rulemaki ngs must, in some minimum way , achieve a relevant statutory objective. See Essex Chem. Corp v. Ruckelshaus, 486 F.2d 427, 434 (D.C. Cir. 1973) (The judgment of the Administrator is to be weighed against his statutory function and limitations). Commenter further stated that as the District of Columbia Circuit observed, Section 111 was intended to prevent new [air] pollution problems. Commenter also stated that EPA's proposal does nothing to achieve that objective since EPA concluded that all new sources will be compliant with the rule's standards whether the rule is issued or not. **Response 2.1 -**  **31:** Section 111’s purpose, at least in part, is to prevent new sources from adding to air pollution problems by meeting standards reflecting performance of the best sy stem of emission r eduction. The standard here does so b y assuring that new coal
- fired steam electric plants, and new NGCC , control CO 2 emissions to a level reflecting performance of that best technology . With respect to steam electric (coal
- fired) plants, projections of ov erall reductions are low because of the unlikelihood of new capacity being built. If new steam
- electric capacity is built, it would emit considerabl y more CO 2 without the standard adopted in the final rule. See preamble section V.K
. **Comment 2.1 -**  **32:** Commenter 10046 state d that the EPA has alway s made an evaluation of the level of emissions reductions that can be achieved from new sources in the source category to be regulated before proceeding with an NSPS. Commenter stated that the EPA has never tried to regulate a sourc e category under Section 111(b) when it has concluded that the regulation will not provide an y meaningful reductions.2
- 14

**Response 2.1 -**  **32:** First, this source category was listed years ago, and a re
- listing is not required. See preamble section III. A. Second, if re
- listing of the source category based on a de novo endangerment finding is required (against our view), there is sufficient evidence to do so, many times over. Id. Likewise, this source category contributes

– mightily

– to the air pollution which endangers. This so urce category is the largest emitter of CO2, and b y a wide margin. Finall y, the argument that the standard of performance does not achieve emission reductions is not true if new, non - compliant SCPC capacit y is built, as the commenter purports to wish to d o. See preamble section V.K. In that circumstance, analysis also indicates that the quantifiable benefits exceed regulatory

costs under a range of assumptions, and that there are unquantifiable benefits from doing so as well. See RIA chapter 5. **Comment 2.1 -**  **33:** Comment er 10046 stated that on June 25, 2013 President Obama issued the Presidential Memorandum "Power Sector Carbon Pollution Standards" directing EPA to issue a new NSPS proposal by

no later than September 20, 2013 and to issue proposed carbon pollution standards, regulations or guidelines, as appropriate, for modified, reconstructed and existing power plants b y no later than June 1, 2014. Commenter further stated that by statute, in order to issue emission standards for existing sources, the Agency must first p ropose standards of performance for new sources. **Response 2.1 -**  **33:** Comments similar to this

– concerning the timing of the promulgation of the section 111(b) rule so that it may serve as the predicate for the section 111(d) rule

– are addressed in the section 111(d) rulemaking, and are not relevant for this rulemaking. **Comment 2.1 -**  **34:** Commenter 10046 stated that the EPA proposal violates statutory requirements and regulatory norms in a number of way s, principall y including the following: (1) EPA's technology
- forcing anal ys is for C C S is irr ational, and the rule would not produce an y cognizable CO 2 reductions. (2) Because the proposal concededly affects nothing of a tangible regulatory nature and consequentl y supposedl y costs nothing its use is pretextual, designed merely to trigger regulatio n under Section 111(d). This is not a reading of the relation between Section 111(b) and (d) that is entitled to deference. **Response 2.1 -**  **34:** The affected industry itself urged the EPA to withdraw its original standard for all new fossil fuel
- fired units in order to provide for the possibility of some additional new coal
- fired generation capacity , See 79 FR at 1434. If such new sources were to be constructed, the promulgated standard would significantl y reduce CO 2 emissions from such a source in comparison with a source (ev en an ultrasupercritical boiler) not meeting the standard. See preamble section V.K. **Comment 2.1 -**  **35:** Commenter 10046 stated that given the paucity and speculative nature of any emissions from new coal
- fired generating units, it is apparent wh y EPA does not want to identif y a specific threshold for the amount of emissions it will consider to constitute significant contribution. Commenter further stated that but logically , EPA cannot satisfy the statutory condition for regulation i.e., significance without considering thresh olds.2
- 15

**Response 2.1 -**  **35:** The cause or contribute criterion relates to the amounts of pollutant a source category emits to the air pollutant which endangers public health or welfare. Fossil
- fuel fired electricity generating units emit more CO 2 than any other source category

– by a very wide margin. By

an y objective measure, this is a substantial contribution. **Comment 2.1 -**  **36:** Commenter 10046 stated that in 1998, EPA issued a new NOX NSPS for utility steam generating units which was based on the performance o f Selective Cataly tic Reduction (SCR). Commenter further stated that there, EPA carefully evaluated the use of SCR on a variety of coals and under a variety of operating conditions, having identified at least 212 worldwide SCR installations on coal
- fired units. Commenter further stated that such operating experience is highly

relevant because, in the absence of data on actual operations, the risks are great that the new and complicated technologies may not perform as anticipated. Commenter further stated th at that is exactly what happened when EPA effectivel y forced development of FGD on eastern coal
- fired units by adopting an SO 2 NSPS standard in 1971. Commenter further stated that in 1971, there were two full scale FGD units that had commenced operation, and upon this rather thin basis, EPA declared the technology adequatel y demonstrated. Commenter further stated that in a 1974 r eport issued by EPA a mere three years after promulgation of that NSPS, EPA revealed that after four years of intermittent operation filled with numerous technical difficulties, the two scrubbers that formed the basis for EPA's adequatel y demonstrated conc lusion were withdrawn from the market and no longer offered for sale. Commenter 10046 stated that in recognition of these risks, EPA has traditionally relied upon information provided b y at least one operating unit, and the courts are reluctant to find a t echnology

as adequatel y demonstrated without such information. Commenter further stated that in at least two cases, the D.C. Circuit has declared technology as not adequately

demonstrated under CAA 111, and in both instances there were no relevant units ac tually operating with the technology

installed. **Response 2.1 -**  **36:** The commenter is incorrect in its assertion that BSER can only be based on a technology

already operating or, as other commenters asserted) operating at full commercial scale. The very

case cited by

the comm enters, Sierra Club v. EPA , explains and illustrates circumstances where such a demonstration is possible. See 657 F. 2d at 380
- 84 and n. 157. In any case, both pre
- and post
- combustion CCS (indeed, full CCS rather than partial) are demonstrated at the D akota Gasification and Boundary Dam facilities, respectivel y . **Comment 2.1 -**  **37:** Commenter 10046 stated that in 1979, when EPA revised the coal
- fired electric generating plant NSPS, the court in Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), upheld wet scrubbing as 'a dequatel y demonstrated' based on plant operating data, but concluded dry scrubbing was not adequatel y demonstrated because no operating plant used that system. Commenter further stated that in 1979, EPA issued a new SO 2 standard that required scrubbers for all units, regardless of the level of sulfur in coal. Commenter further stated that at the time, the standard could onl y be met by use of FGD. Commenter further stated that Wet FGD s ys tems had been installed on dozens of units, but no unit had yet operate d using dry FGD. Commenter further stated that although EPA had wisely not claimed that dry

scrubbing was adequatel y demonstrated, because EPA had justified its decision to employ a variable SO 2 standard on grounds that such a standard would encourage deve lopment of dry scrubbing, the court2
- 16

nevertheless found it necessary to determine whether dry scrubbing was adequatel y demonstrated. Commenter further stated that the court concluded it was not. Commenter 10046 stated that the court, reviewing the evidence on dry scrubbing, observed that EPA conceded that no full scale dry scrubbers are presentl y in operation at utility plants so information available . . . dealt with prototy pe units. Commenter further stated that it then opined that EPA had not explained ho w pilot project data results could be used to predict the performance in full scale plants throughout the industry , and concluded that the data standing alone is insufficient to establish that dry scrubbing is adequatel y demonstrated. Commenter further stated that the court was unpersuaded by evidence of dry

scrubber s ystems on order, three scrubbers under construction, of permit applications to employ dry scrubbing, or the potential economic benefits of dry

scrubbing, concluding after a thorough review of this evidence, that despite the considerable potential advantages of dry scrubbing s ys tems over wet scrubbing sy stems, dry

scrubbing is not yet a proven or 'adequately demonstrated' technology and its future is uncertain. **Response 2.1 -**  **37:** The commenter somewhat mischaracte rizes the discussion of dry scrubbing in the Sierra Club opinion. The court did not hold that dry scrubbing was not adequatel y demonstrated because no operating plant used the sy stem. Rather (as the comment goes on to note), the court found that EPA had failed to explain how pilot scale performance of dry scrubbing could operate at full scale, particularl y given that there had been only limited testing at pilot scale, and that testing did not reflect use coal which was more challenging for a dry scrubber to clean. 657 F. 2d 341 n. 157. The commenter omits mention, however, that the court pointed to another portion of the opinion where it upheld a standard for particulates based largel y on pilot scale performance of baghouses. Id. and id. at 380
- 84. Her e, EPA has provided a full and reasoned explanation for its finding that partial CCS is demonstrated, and indeed shown that its findings rest on considerabl y more information than the particulate standard based on baghouse performance upheld in Sierra Club
. First, both pre
- and post
- combustion partial CCS is in full commercial use (unlike the situation with baghouses in Sierra Club where key evidence came from pilot scale operations (onl y “limited data from one full scale commercial sized operation” existe d; the bulk of the data came from “small scale installations” (657 F. 2d at 380) )
. Second, as explained at preamble section V.G.3 , the EPA has reasonabl y explained with respect to the less
- than
- full scale use of partial CCS how the technology can be ope rated successfull y at full scale. The EPA has thus supplied the ty pe of record information here lacking with respect to dry scrubbers in Sierra Club. **Comment 2.1 -**  **38:** Commenter 10046 stated that the courts in Essex Chemical Corp. and Sierra Club were not going to find a t echnology to be adequatel y demonstrated in the absence of at least one operating commercial
- scale facility or other compelling information. Commenter further stated that under applicable case law, EPA cannot, on the record proffered here, establish that CC S is adequately

demonstrated. Commenter further stated that indeed, CCS is not yet even at the stage in 2014 that dry scrubbing was in 1979. Commenter further stated that there were several dry
- FGD s ys tems under construction and more under contract. Commenter further stated that there are but two CCS systems under construction, both significantly over budget, and two or three may

be sy stems in the preliminary development stages. Commenter further stated that in 1979, dry
- FGD was vigorously pursued by

vendors and industry

due to expected costs savings. Commenter further stated that by contrast, the exorbitant costs and technical uncertainties of2
- 17

CCS have prompted many CCS projects to be cancelled outright, and active CCS development has virtually

stopped worldwide. Commenter further stated that the simple fact is that CCS is an unproven technology

that is several commercial
- scale demonstration plants away from being adequatel y demonstrated. **Response 2.1 -**  **38:** The EPA disagrees. First, the Boundary Dam facility

– a full scale commercial operation

– is successfull y operating full post
- combustion CCS. Dakota Gasification has for decades been operating full commercial scale pre
- combustion CCS. This same technology

is readily transferable to the electric utility sector , should a source choose this alternative compliance pathway (see Preamble section V. E.2 )
. CCS is thus further developed than was dry

scrubbing in 1979. Moreover, vendors are activel y promoting use of CCS, terming it both technically

effective and cost effective. See Preamble section V. F , and Portland Cement Ass’n , 486 F. 2d at 402 (“It would have been entirely appropriate if the Administrator had justified the standards, not on the basis of tests on existing sources or old test data in the literature, but on extrapol ations from this data, on a reasoned basis responsive to comments, and on testimony

from experts and vendors ....).” **Comment 2.1 -**  **39:** Commenter 10046 stated that the EPA's apparent reliance on Portland Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973), to conc lude that it may fairl y project the adequate demonstration of a technology in the future is unavailing. The court asserted that: Section 111 looks toward what may fairl y be projected for the regulated future, rather than the state of the art at present, si nce it is addressed to standards for new plants. It is the achievability of the proposed standard that is in issue. Commenter (9765 and 10046) stated that the Senate Report made clear that it did not intend that the technology

must be in actual routine use somewhere. Commenters further stated that the essential question was rather whether the technology would be available for installation in new plants. . . . The Administrator may make a projection based on existing technology , though that projection is sub

ject to the restraints of reasonableness and cannot be based on 'cry stal ball' inquiry
. Commenter (9765 and 10046) stated that this decision does not provide EPA license to declare a technology

that is not yet operating in a single commercial
- scale power p lant to be adequatel y demonstrated. Commenters further stated that the concern as to whether the technology examined in the case existed on operating units (fabric filters for Portland Cement plants) was not at issue because a number of such plants had fab ric filters already installed. Commenters further stated that the issue was whether EPA had proven that the level of emissions reductions required could be achieved by the existent technology . Commenters further stated that that is made clear b y the refere nce in the quoted passage that it is the achievability of the proposed standard that is in issue. Commenters further stated that it is made clearer by the court's declaration that EPA may make a projection based on existing technology . Commenters further s tated that to suggest that the passage is relevant to the question of whether a technology not yet in actual full
- scale operation can be projected to be adequatel y demonstrated, would be to render the quoted passage as mere dicta since there was no issue a s to whether fabric filters were in operation on Portland Cement plants.2
- 18

Commenter 10046 stated that although the Senate Report cited in the Portland Cement Association case states that the technology to be used for a standard need not be in actual routine use somewhere, the accompanying House Report provides that the technology may not be . . . purely theoretical or experimental. In the absence of a full
- scale operating unit, CCS can hardly be said to be beyond the experimental stage that the Senate Report declared to be insufficient. **Response 2.1 -**  **39:** EPA agrees that the relevant question is whether the control technology on which the standard of performance is predicated is available for a (h ypothetical) new source, which could (in theory) start operating as of promulgatio n of a standard. Here, commercial scale post - combustion CCS is in use

– successfull y – at the Boundary Dam facility . Commercial scale pre - combustion CCS has been in use

– successfully

– for decades at the Dakota Gasification facility (were an IGCC desiro us of achieving the standard using some amount of CCS). Thus, although the commenters’ legal premise is mistaken

– there is no a priori requirement that a technology

be in commercial operation before it can be a BSER

– and the commenters’ factual predicat e is also mistaken , the issue they pose is moot. **Comment 2.1 -**  **40:** Commenter 10046 stated that in only one instance has the District of Columbia Circuit found a technology to be adequately

demonstrated in the absence of a commercial
- scale operating facility . Commenter furth er stated that in 1998, EPA again revised the NSPS for electric utility units to require Selective Cataly tic Reduction (SCR), and also extended this standard to apply to coal
- fired industrial boilers. Commenter further stated that while EPA had extensive d ata on the operation of SCR systems on coal
- fired steam electric units, EPA had proffered no emissions data for SCR performance on coal
- fired industrial boilers. Commenter further stated that in L ignite Energy Council v. EPA, 198 F.3d 930 (D.C. Cir. 1999), the D.C. Circuit concluded that the SCR mandate was permissible because EPA adequatel y demonstrated a reasonable extrapolation of the technology 's performance from other industries. Commenter 10046 stated that EPA demonstrated that utility and industrial boilers were similar in design, and both ty

pes of boilers can attain the same level of inlet NOX to the SCR sy stem, meaning the SCR systems on both ty pes of boilers would only need to provide similar levels of reductions. Commenter further stated that the Court cited with approval EPA's careful analy sis of the issue, and found it sufficient to compensate for a shortage of data. Commenter further stated that in setting the standard, EPA developed technical assessments and a data base adequate to evaluate th e factors that can potentially affect SCR performance in a wide range of operating conditions, and identified and addressed the primary differences between utility and non
- utility boilers. Commenter further stated that Lignite Energy Council suggests that, on rare occasions, EPA may have some latitude to project future applications of a technology based on a record revealing a careful evaluation of technology transfer and integration issues. Commenter further stated that it hardly

seems to be a large step t o conclude, after analy sis, that SCR systems would be expected to perform similarly on coal
- fired utility

and industrial boilers that had similar design characteristics. Commenter further stated that but that case also establishes that EPA bears the burden carefully to support its decision with analy sis, and to consider the relevant factors. EPA has done none of this for CCS. **Response 2.1 -**  **40:** The Boundary Dam facility

is a full
- scale commercial facility successfully operating post
- combustion CCS. This technology

– SCPC with partial CCS

– is the BSER identified as the basis for the standard of performance in the final rule. EPA further2
- 19

demonstrates that the standard of 1400 lb CO 2 /MWh can be achieved under the array of operating conditions which an SCPC might experience when properl y designed, operated, and maintained. Preamble section V.J. EPA also believes the pre
- combustion CCS technology demonstrated at Dakota Gasification could be adopted by an EGU should a new plant choose that alternative compliance pathway . See pr eamble section V.E.2. a. **Comment 2.1 -**  **41:** Commenter 10046 stated that EPA first proposes to declare as technicall y feasible the transfer of three distinct technologies (capture, transport, and storage) used in three distinct industries to a coal
- fired power plant; and second, to require their integration into such power plant. Commenter further stated that unlike the case of transferring SCR from coal
- fired utility boilers to coal
- fired industrial boilers, EPA has not established that CCS systems at power plants have re levantl y similar designs as the three distinct industries that use the CCS component parts. Commenter further stated that the EPA has not undertaken or provided any studies that anal yz e the issues of transferring the CCS component technologies to coal
- fire d power plants, let alone provided an y anal ysis of what types of issues might arise in the integration of these three technologies for the first time at a power plant. Commenter further stated that the record EPA proffers on these issues is slim, and what it does proffer is largel y irrelevant to the issues of technology

transfer and integration. Commenter further stated that that is simply insufficient to compensate for a shortage of data as required b y the standard set in Lignite Energy Council. Commenter 10046 stated that the EPA cites two literature studies that it suggests support its position that transfer of three technologies to the coal
- fired power sector and the integration of the same on a working coal
- fired power production plant is feasible. Commenter further stated that the first study , by

the Administration's Interagency Task Force on CCS, neither carefull y identifies nor assesses the issues with the transfer of the core technologies, nor does it evaluate potential integration issues. Commenter further stated that it concludes with a strict warning: Commenter further stated that though CCS technologies exist, scaling up these existing processes and integrating them with coal
- based power generation poses technical, economic, and regulatory

challe nges. Commenter 10046 stated that the EPA's first study simply stands for the proposition that there will be challenges with scaling up and integrating existing CCS components at coal
- fired units, which is exactly

wh y we assert that CCS has not been adequ atel y demonstrated. Commenter further stated that rather than providing a reasonable basis for EPA to conclude that CCS application to a coal
- fired unit is sufficiently feasible for EPA to mandate it, this study does the opposite. **Response 2.1 -**  **41:** Post
- combustion CCS is mo st clearl y demonstrated at the Boundary Dam facility , a full scale fossil
- fuel fired steam electric generating unit. No transfer of technology is involved. EPA explains in preamble section V.D why use of post
- combustion CCS at non
- fossil fuel
- fired EGUs corroborates the demonstration of the technology for fossil
- fuel fired EGUs. **Comment 2.1 -**  **42:** Commenter 10046 stated that the second study EPA cites is simply an assessment of whether the component parts of a CCS system can be expected to be scalable to large coal
- fired po wer plants. Commenter further stated that one explicit goal of this study is to examine in a disaggregated manner the status of CCS technologies and their component s ys tems2
- 20

to shed light on the degree to which current s ys tems are of a scale that is relevant to future CCS deploy ment with large fossil fuel
- fired power plants and other large anthropogenic CO 2 point sources. Commenter further stated that this study , at best, goes toward the potential of scaling up the component CCS technologies to coal
- fired po wer plant size. Commenter further stated that it does nothing to address the issues of technology transfer or integration of those technologies to an operating coal
- fired steam electric generating unit. Commenter further stated that as to those issues, whi ch are certainly the most germane to EPA's position that it has provided adequate and reasoned support for its conclusion that CCS is adequatel y demonstrated, the study specificall y warns that further experience is needed: Commenter 10046 stated that the fact that complete end
- to - end commercial CCS systems exist and that the needed s ys tem components of a CCS sy stem are commerciall y available does not undercut the rationale for a vigorous ongoing research, development and demonstration program focused on improving CCS technologies and demonstrating them in various combinations of technological, geographical, and geological applications and settings. Commenter 10046 stated that the study would appear to conclude that parts are not enough. Commenter further s tated that even if each core element of CCS has been demonstrated in some ca pacity , the simple fact is that CO 2 capture, transport, and storage have not been transferred and integrated at commercial scale on a coal
- fired EGU, and EPA has not provided a suf ficient basis to reasonabl y conclude that they can be under applicable adequatel y demonstrated criteria. **Response 2.1 -**  **42:** This comment is largely moot, given operation of the fully
- integrated, full
scale post - combustion CCS system at Boundary Dam. In addition, man y of the concerns that have been expressed regarding implementation of CCS systems have been regarding either “full CCS” (i.e., capture and storage of >90% of the emitted CO 2 ) or retrofitted CCS onto an existing EGU ... or both (i.e., retrofitting a full capture s ys t em onto an existing EGU). Importantl y, the final standard of performance would not require implementation of full CCS , n or would it require integration within an existing EGU’s infrastructure. Finally , the final standards are not intended, in an y way, to undercut the rationale for a vigorous ongoing research, development and demonstration program focused on improving CCS technologies and further demonstrating them in various combinations of technological, geographical, and geological applications and settin gs. In fact, the EPA specifically noted in the preamble: “ As regulatory history has shown, identifying a new highly

efficient SCPC EGU implementing partial CCS as the BSER in this rule is likely to further boost research and development in the technologies , making the implementation even more efficacious and cost
- effective, while providing a competitive, low emission future for fossil steam generation. ” (Section I .A. Executive Summary) ; see also preamble section V.L. **Comment 2.1 -**  **43:** Commenter 10098 (API) states that data f rom pilot studies and optimism that future projects (if completed) will work as planned are not sufficient to show that a specific emission reduction sy stem is demonstrated as achievable under the Clean Air Act” citing to the discussion of dry

scrubbing in Sierra Club , 657 F. 2d n. 157. **Response 2.1 -**  **43:** The EPA has provided an ample record supporting its finding that partial CCS is feasible at full
- scale. As in Sierra Club , EPA has presented evidence from full
- scale operation, smaller scale installations, and reasonable, co rroborated technical explanations of how the BSER2
- 21

can be successfull y operated at full scale. See 657 F. 2d at 380, 382. Indeed, the EPA has more evidence here, as the baghouse standard in Sierra Club was justified based largel y on less than full scale op eration. See 657 F. 2d at 380 (there was only “limited data from one full scale commercial sized operation”) and 341 n. 157. See also id. at 363
- 64 (standard not achieved b y any operating plant upheld based largely on engineering explanation of how improv ements can be made to achieve incrementally superior performance). **Comment 2.1 -**  **44:** Commenter 10239 stated that the April 2012 proposal included a series of legal, technical, and factual critiques of the EPA's proposed standards and urged the EPA to withdraw the proposal. Commenter supported the EPA's decision to withdraw the April 2012 proposal. Commenter also stated that NSPS regulations apply at the time of proposal, it is imperative that the EPA clarify the effect of the withdrawal. Commenter further stated that the EPA should state that the withdrawal nullified or voided the 2012 proposal and that any standards of performance would apply , if at all, after publication of this proposed rule on January 8, 2014. **Response 2.1 -**  **44:** The commenter is correct that EPA has withdrawn the initial proposal, so that the trigger date for purposes of new source classification is January 8, 2014. **Comment 2.1 -**  **45:** Commenter 9776 noted that EPA’s proposal suffers from an absence of any assessment of the greenhouse warming potential (GWP) of increased methane emissions from natural gas s ys tems (including exploration, development, production and transportation s ys tems for natural gas) that will follow from the increased demand from the power sector and stated that the EPA must conduct such assessment for its proposed GHG NSPS for new electric generating units. Commenter further stated that without such an anal ys is, EPA's contention that electricity generation from natural gas
- fired power has substantial GHG advantages over coal
- fired power rests upon an incomplete assessment of the emissions associated with natural gas sy stems and electricity generation. Commenter also stated that this premise undergirds the proposed standard almost all existing natural gas combined cycle power plants can meet, and a standard that no existing co al
- fired power plant can meet including the most advanced coal
- fired power plants which utilize super critical pulverized coal or integrated gasification combined cycle technologies. **Response 2.1 -**  **45:** Based on its own modeling and modeling done b y the U.S. Energy In formation Administration, the EPA concluded that new generating capacity built through the period of analy sis (2022) and beyond (through 2030) would be compliant with the standards even in the baseline. For this reason, this rule does not result in incre ased methane emissions because there is no predicted change in fuel use or generation choices due to this rule. Utilities and project developers are expected to choose natural gas
- fired and renewable energy options for new generation capacity with or even in the absence of this final rule. **Comment 2.1 -**  **46:** Commenter 9602 stated that the EPA asserts that its proposed rule has no costs, achieves no carbon dioxide ( CO 2 ) emissions reductions and produces no climate
- related benefits. Commenter further stated that allowing a rule so lacking in justification to proceed is unprecedented, with unknown and potentially huge unintended consequences.2
- 22

**Response 2.1 -**  **46:** As described in chapters 4 and 5 of the RIA, construction of new SCPC capacity not otherwise complying with the promulgated standard is unlikely , both because such capacity would not be cost
- competitive with NGCC under all likely
- to - occur scenarios, and because new coal capacity is likely to be built with CCS. However, commenters maintained repeatedly , both in response to the 2012 prop osal and in this proceeding, that there could be new coal capacity. If so, the difference in CO 2 emissions from such a source would be considerabl y reduced under the standard of performance in this rule, compared to an SCPC source without CCS. Preamble s ection V.K. and P.2. Chapter 5 of the RIA shows that monetized benefits, in such a circumstance, would exceed control costs under a range of assumptions
. **Comment 2.1 -**  **47:** Commenters (3593, 3862, 8971, 10029,10391 and10662) stated that the Regulation of greenhouse gases is a global issue that requires broader approaches than those currentl y available to EPA under the legal authorities set out in the existing Clean air Act ("CAA"). Commenters further stated that an y federal climate change policy or regulatory program should b e clearly authorized by

Congress through changes to the CAA. **Response 2.1 -**  **47:** There is no question that the EPA has legal authority to issue NSPS to control CO 2 emissions from new fossil
- fuel fired electricity generating units. The Supreme Court indeed held so specificall y in American Electric Power , relying on that authority to reject a claim under federal common law. The policy issues raised by

these comments are otherwise beyond the scope of this proceeding. **Comment 2.1 -**  **48:** Commenter 5156 stated that the EPA has not extended the perio d for public comments on the underl ying proposal, which remain due by March 10, 2014. Commenter further stated that the public has barel y a month to review and comment on one of the most wide
ranging and unprecedented rules ever to have been issued by a fe deral agency
. **Response 2.1 -**  **48:** Upon publication of the January 8, 2014 proposal for newl y constructed fossil fuel
- fired EGUs, the EPA offered a 60
- day public comment period. On March 6, 2014, in order to provide the public additional time to submit comments and supporting information, the EPA extended the comment period by 60 day s, to May 9, 2014, giving stakeholders over 120 day s to review, and comment upon, the January 2014 proposal, as well as the NODA. **Comment 2.1 -**  **49:** Commenter 10025 stated that the Proposed Standards of Performance fo r Greenhouse Gas Emissions from New Stationary Sources is an important step to confront the "atmospheric emergency" and "climate disruption"; however, the Proposed Rule needs to be strengthened significantly . Commenter further stated that every decision ma de today

implicating climate change needs to be evaluated in light of a national comprehensive climate recovery plan and the government's constitutional public trust obligation to the citizenry , present and future. **Response 2.1 -**  **49:** This comment is beyond the scope of this proceeding. However, the EPA notes that this action is not the only action the Agency has taken to address climate change . The Agency has adopted GHG standards for light and heav y dut y vehicles, had recentl y proposed further GHG standards for heav y dut y vehicles and engines, and is adopting emission guidelines pursuant to CAA section 111 (d) for CO 2 emitted by existing fossil fuel
- fired EGUs
.2
- 23

**Comment 2.1 -**  **50:** Commenter 9190 stated that the standard proposed for natural gas combined cycle technology

is based upon actual em ission data from operating units while the standard proposed for coal base load technology is based upon calculations for h ypothetical coal units using unproven CCS technologies. Commenter further stated that the result is a standard that can be met by ove r 95 percent of the operating natural gas combined cycle units and a standard that cannot be met b y a single existing coal base load unit
--- even those using newest and most advanced coal based technologies such as SCPC or IGCC. Commenter 9190 stated that the EPA rejects basing a coal base load plant standard on SCPC and IGCC because, according to EPA, those technologies would not provide "as much emission reductions as practicable." Commenter further stated that a standard based upon SCPC and IGCC would r esult in 5
- 20 percent emission reductions. Commenter further stated that the emission reductions would be twice that level if the new coal plants replace the oldest existing subcritical plants. Commenter further stated that these reductions are real, subst antial and "as much as practicable" with adequately demonstrated technology . Commenter further stated that the EPA takes an entirely

different approach in setting the standard for natural gas combined cycle technology . Commenter further stated that the EPA does not attempt to seek "as much reduction as practicable" and instead allows emission levels 20 percent higher than the levels actually achieved b y the best performing natural gas units. **Response 2.1 -**  **50:** In preamble section IV.B.1 and V. P , EPA explains why it is not se lecting SCPC and IGCC as BSER. However, as explained there, there technologies do provide an alternative compliance path. EPA also explains that these technologies, although not selected b y EPA as BSER, are available at costs which are equivalent to, or less than SCPC with partial CCS, and do not pose collateral adverse nonair quality health or environmental impacts, or adverse energy

effects. Thus, EPA is not making a choice of BSER which masks alternative compliance pathway s with excessive costs or col lateral impacts. The commenters are incorrect that the EPA’s approaches to setting the standards for coal
- fired and natural gas
- fired EGUs were arbitrary . The standards required different approaches for two reasons. First, the standards are based on fundam entally different s ys tems of emission reduction. For coal
- fired EGUs, the EPA determined that that the BSER is modern, efficient SCPC technology

with partial CCS. Partial CCS is an add
- on control technology that reduces emissions by removing CO 2 from the f lue gas stream after combustion has occurred. As a result, the EPA was able to determine an achievable emission rate for coal
- fired EGUs b y calculating the maximum percentage reduction in CO 2 emissions that that can be obtained at a reasonable cost and app lying that level of reduction to a conservative baseline emission rate for a SCPC unit. For base load natural gas fired EGUs, on the other hand, the EPA determined that the BSER is solely modern, efficient NGCC technology . Unlike the standard for coal
- fire d EGUs, the standard for base load natural gas
- fired EGUs is based on efficiency alone, not an add
- on control technology
. Furthermore, the efficiency of NGCC units can vary

considerabl y due to a number of factors, including the diversity of turbine models and sizes on the market, variations from I SO conditions at different facilities, and variations in load and cycling depending on how a facility is dispatched. Accordingl y, it was necessary for the EPA to assess actual emissions data from existing sources t o capture the full performance range of NGCC technology across the full spectrum of operating scenarios. The second reason for the different approaches is that CCS is an emerging technology , so there are few existing sources from which to obtain emissions data. In2
- 24

contrast, NGCC technology is well
- established. Where the EPA lacks actual emissions data, it is entirely reasonable for the EPA to use other methods to calculate a standard that will be achievable b y sources across the relevant industry. Indeed, C ongress intended section 111 of the CAA to be technology
- forcing and thus was full y aware that the EPA would be faced with some situations in which a standard would be based on calculations and modeling rather than actual emissions data from existing sourc es. The final standard for coal
- fired EGUs can be readil y achieved b y a modern, efficient SCPC unit equipped with partial CCS. **Comment 2.1 -**  **51:** Commenters (9775 and 10029) stated that the EPA fails to produce any meaningful examples of economicall y feasible CCS projects, which permanently store the CO 2 and are not part of an EOR project that is under development. Commenters further stated that based on these facts, commercial scale implementation of CO 2 capture and permanent storage from power plants has not been "adequatel y demonstrated." Commenters further stated that successful sequestration of captured CO 2 in deep saline aquifers for permanent storage has not been "adequatel y demonstrated." Commenters further stated that this is partly a result of the EPA's decision to r equire pilot projects for such demonstrations to obtain the onerous and costly UI C Class VI perm its, instead of allowing them to move forward under a UIC Class V Experimental Technology permit. **Response 2.1 -**  **51:** As noted in the proposal and in the preamble for the final rule, new coal
- fired EGUs are not the most economical choice for construction of new fossil fuel
- fired generating capacity . Overwhelmingly , the power sector has moved to construct new NGCC capacit y and new renewable energy

sources. Between 2000 and 2013, approximately 90 percent of new power generation capacity

built in the U.S. has come in the form of natural gas or renewable energy facilities
. Regarding “economic feasibility”, the EPA addressed c ost considerations in the proposal and in the preamble for the final rule. As described in the January 2014 proposal and in preamble section V.H.3 , in several cases the D.C. Circuit has elaborated on this cost factor and formulated the cost standard in various ways, stating that EPA may not adopt a standard the cost of which would be “exorbitant,” “greater than the industry could bear and survive,” “excessive,” or “unreasonable.” These formulations appear to be s ynon ym ous, and for convenience, in this rulemaking, we use ‘reasonableness’ as the standard, so that a control technology

may be considered the “best s ys tem of emission reduction ... adequatel y demonstrated” if its costs are reasonable, but cannot be considered the best sy stem if its costs are unreasonable. The EPA has shown that the final standard can be achieved at reasonable cost. Preamble section V.H. and I
. Boundary Dam is a full
- scale operating facility utilizing fully
- integrated post - combustion full CCS. EPA has issued Class VI construct ion permits to two different projects and would not have done so without a full demonstration of the viability of the projects. See also preamble section V. M and N detailing the man y instances of long
- term successful geologic sequestration of massive amounts of CO 2 . **Comment 2.1 -**  **52:** Commenter 9596 stated that the long
- standing PCP exemption for NSPS remains good law. Commenter further stated that the 60
- day deadline under section 307(b) of the CAA for raising legal objections to this element of EPA's NSPS regulations has l ong passed. Commenter further stated that neither has EPA proposed in this rulemaking any changes to the NSPS General Provisions that contain the PCP exemption. Commenter further stated that a court2
- 25

decision on a wholly

separate set of regulations promulgated pursuant to a wholly separate section of the CAA is not the ty pe of new circumstance that compels the reopening of a long
settled policy

such as the PCP exemption. Commenter requested the EPA to issue guidance confirming the continued validity of the P CP exemption under the NSPS regulations. **Response 2.1 -**  **52:** EPA neither proposed n or is taking an y final action with respect to the PCP exemption and therefore this comment is beyond the scope of this rule and requires no response. **Comment 2.1 -**  **53:** Commenter 9425 states the majority of anti cipated pollution control projects that EGUs are most likely to undertake in the foreseeable future that could increase the maximum achievable hourly rate of CO 2 emissions (i.e., be considered "modifications") would constitute NSPS "pollution control proje cts" and, in many cases, would involve the installation of add
- on control equipment required to meet CAA requirements for criteria and air toxics air pollutants. Commenter states these increases in CO 2 emissions would generally be small and would occur as a chemical by product of the operation of the control equipment, and these projects would not be treated as NSPS modifications under EPA's current NSPS regulations because the regulations provide exemptions for several types of changes, including the instal lation of pollution control projects at 40 CFR 60.2, 60.14(e). **Response 2.1 -**  **53:** EPA neither proposed n or is taking an y final action with respect to the PCP exemption and therefore this comment is beyond the scope of this rule and requires no response. **Comment 2.1 -**  **54:** Commenter 10029 disagreed with EPA's observation that geologic sequestration is the only

technology

that is "currently

available or ... expected to be available in the foreseeable future that can make meaningful reductions in CO 2 emissions from fossil fuel
fired utility

boiler s and IGCC units." Commenter's compan y is currently producing fuel on a demonstration scale from sunlight, algae and CO 2 , and this technology is as "currentl y available" as geologic sequestration. Commenter questions the providence of EPA's attempt to fore cast the future development of technology when, as here, the very

purpose of the statutory

scheme, according to EPA, is "to stimulate the development of new technology ." **Response 2.1 -**  **54:** The final rule contains a case
- by
- case demonstration mechanism whereby an applicant can demonstrate storage capacity equivalent in safet y to geologic sequestration. **Comment 2.1 -**  **55:** Commenter 10029 stated that in light of the technical feasibility and commercial availability

of reuse technologies that produce a sustainable drop in replacement for fossil fue l, the EPA's proposal to mandate the disposal of CO 2 is plainly contrary to the national policy set forth in the P2 Act. Commenter further stated that in addition, it is inconsistent with waste management options EPA endorses in other air, water and waste regulations. Commenter further stated that for example, EPA does not mandate disposal of waste such as fl y ash that is captured b y air pollution control equipment, but endorses its reuse in road aggregate and other products. Commenter further stated that E PA should not mandate the disposal of CO 2 , but should embrace its beneficial reuse. **Response 2.1 -**  **55:** The final rule does not preclude reuse of captured CO 2 . See previous response.2
- 26

**Comment 2.1 -**  **56:** Commenter 4814 stated that the EPA should consider the viewpoints of multiple stakeholders in the development of guidelines for the states, including the National Association of Regulatory Utility Commissioners, the Southeastern Association of Regulatory Utility Commissioners, Southern States Energy Board, the Edison Electric Institute, and othe r national, regional and state organizations in consensus with these policy positions. **Response 2.1 -**  **56:** EPA has indeed carefully considered these entities ’ public comments and views. **Comment 2.1 -**  **57:** Commenter 10028 stated that the EPA failed to comply with section 307(d) of the Clean Air Act b y not providing at the time the proposed rule was published all data, information, and documents upon which the proposed rule relies. **Response 2.1 -**  **57:** This comment is misplaced. T he supplemental notice and TSD did not contain new information not already present in the docket at proposal. The commenter, moreover, does not indicate how it incurred any prejudice from the (purported) absence of information. **Comment 2.1 -**  **58:** Commenter 4846 stated that NPRM clearl y incorporates a technology assessment of partial CCS as the best technolog y for reduction of carbon dioxide emissions from fossil fuel
- fired power plants. Commenter further stated that the NPRM proposes to conclude that partial CCS is BSER and the basis for the proposed NSPS because it is technicall y feasible and available and c an be implemented at a reasonable cost and without undue negative impacts on energy supplies. Commenter further stated that the proposed technology assessment in the NPRM relies on numerous data sources and evaluations. Commenter further stated that those sources include multiple reports on technical feasibility , including costs, from DOE's National Energy Technology

L aboratory , a federal inter
- agency task force, the Pacific Northwest National Laboratory , the Joint Global Change Research Institute, the Univ ersity of California, Davis, the Intergovernmental Panel on Climate Change, individual authors, the U.S. Geological Survey , the International Energy

Administration, and government consultants. Commenter further stated that the EPA states in the NPRM that i ts proposed assessment of the technical feasibility of partial CCS is supported by

an extensive literature record and commercial experience: The EPA proposes to find that partial CCS is feasible because each step in the process [capture, transportation, st orage] has been demonstrated to be possible through an extensive literature record and experience at commercial operations. **Response 2.1 -**  **58:** Comments on the Data Quality Act are replied to in section 2.4.2 below. **Comment 2.1 -**  **59:** Commenter 3593 stated that the 11th Circuit Court of Appeals in Louisiana
Pacific Corp. v. United States EPA which, citing to the U.S. Supreme Court, held that an agency rule would be arbitrary

and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to cons ider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency , or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Commenter f

urther stated that in another case relevant to this rulemaking, in Association of Nat'l Advertisers, Inc. v. FTC, the DC Circuit Court of Appeals explained that 'an agency member may

be disqualified from such a proceeding onl y when there is a clear and2
- 27

convincing showing that he has an unalterabl y closed mind on matters critical to the disposition of the rulemaking.' **Response 2.1 -**  **59:** EPA has carefull y considered all relevant aspects here, as prescribed b y section 111 (a): technical feasibility , cost, nonair health and environmental impacts and energy considerations. The comment that the agency prejudged the result of the rulemaking is both incorrect and without basis. Indeed, based on public comment, and careful use of most accurate and recent information, the agency is ad opting a final standard of performance that is less stringent than it initially

proposed. **Comment 2.1 -**  **60:** Commenter 3593 asked that the EPA withdraw this rule. Commenter further stated that should the Agency conclude through an unbiased procedure that regulation in this area remains necessary

and appropriate, the process must be conducted anew with untainted officials and new inputs, giving all interested parties the same opportunity to have their views considered in a fair and open process, untainted by predetermined outc omes from conflicted individuals whose minds are unalterably closed, and with a record properl y reconstituted to include all proper correspondence, lawfully conducted and preserved. **Response 2.1 -**  **60:** This unsubstantiated comment is utterly mis taken
. **Comment 2.1 -**  **61:** Commenter 1898 stated th at the EPA, in these CO 2 new plant regulations and in existing plant regulations needs to put a framework in place which with near absolute certainty will have the power to cost effectivel y mitigate all CO 2 from power generation. Commenter further stated that to accomplish this these regulations need to, at a minimum, require that both all new and all existing power generation facilities purchase renewable energy credits to offset the entire volume of CO 2 these plants will produce in their life cycle. Comme nter further stated that quantitatively

this means that each ye ar, each compan y for each plant be required to either (1) build or add renewable energy capacity, which over a 30 ye ar lifespan will generate as much renewable energy

as their current operation s for the given year or (2) have renewable energy credits in an amount equivalent to finance that much renewable energy capacity
. **Response 2.1 -**  **61:** These suggestions fail to account for the requirements and limitation s of CAA section 111 (a). **Comment 2.1 -**  **62:** Commenter 9590 stated that the EPA readil y concedes that the proposed standards will result in negligible carbon dioxide ( CO 2 ) emission reductions and no quantified benefits. Commenter further stated that the proposed rule does not advance the stated objective of reducing CO 2 , it obviou sly cannot in any

way be "necessary " to accomplish the purpose for which it is being proposed. Commenter further stated that this reality alone renders the proposed standards unnecessary
. **Response 2.1 -**  **62:** See earlier responses explaining that the rule will result in signif icant emission reductions should new fossil fuel
- fired EGUs be built, based on the delta between SCPC with and without partial CCS. **Comment 2.1 -**  **63:** Commenters (8022 and 9590) stated that the EPA takes an entirely different approach in setting the standard for natural gas combined cycle technology. (compared to coal
fired technology)
. Commenters further stated that the EPA does not attempt to seek "as much2
- 28

reduction as practicable" and instead allows emission levels 20 percent higher than the levels actuall y achieved b y the best performing natural gas units. Commenter further stated that the EPA's different approaches in setting the coal and natural gas standards cannot be reconciled and, as a result, are unreasoned and arbitrary
. **Response 2.1 -**  **63:** The commenters are incorrect that the EPA’s approaches to setting the standards for coal
- fired and natural gas
- fired EGUs were arbitrary . The standards required different approaches for two reasons. First, the standards are based on fundamentally different sy stems of emission reduction. For coal
- fir ed EGUs, the EPA determined that that the BSER is modern, efficient SCPC technology with partial CCS. Partial CCS is an add
- on control technology

that reduces emissions by removing CO 2 from the flue gas stream after combustion has occurred. As a result, th e EPA was able to determine an achievable emission rate for coal
fired EGUs b y calculating the maximum percentage reduction in CO 2 emissions that that can be obtained at a reasonable cost and appl yi ng that level of reduction to a conservative baseline emis sion rate for a SCPC unit. For base load natural gas fired EGUs, on the other hand, the EPA determined that the BSER is solely modern, efficient NGCC technology . Unlike the standard for coal
- fired EGUs, the standard for base load natural gas
- fired EGUs is based on efficiency alone, not an add
- on control technology . Furthermore, the efficiency of NGCC units can vary considerabl y due to a number of factors, including the diversity of turbine models and sizes on the market, variations from I SO conditions at di fferent facilities, and variations in load and cycling depending on how a facility is dispatched. Accordingl y, it was necessary for the EPA to assess actual emissions data from existing sources to capture the full performance range of NGCC technology

acros s the full spectrum of operating scenarios. The second reason for the different approaches is that CCS is an emerging technology , so there are few existing sources from which to obtain emissions data. In contrast, NGCC technology is well
- established. Where the EPA lacks actual emissions data, it is entirely reasonable for the EPA to use other methods to calculate a standard that will be achievable b y sources across the relevant industry. Indeed, Congress intended section 111 of the CAA to be technology
- forc ing and thus was fully aware that the EPA would be faced with some situations in which a standard would be based on calculations and modeling rather than actual emissions data from existing sources. The final standard for coal
- fired EGUs can be readily ach ieved by

a modern, efficient SCPC unit equipped with partial CCS. **Comment 2.1 -**  **64:** Commenter 10083 stated that the EPA's Technology Based Li mits (NSPS) Cannot Require a Plant to Switch from Coal to Natural Gas. In effect, EPA is imposing costs of CCS on coal
- fired EGUs in its NSPS such that it forces a utility's decision to build a new power plant as a natural
-- gas fired plant. Commenter further stated that the courts have decided that technology
- based limits cannot require a plant to switch from coal to natural gas. **Response 2.1 -**  **64:** This c omment is significantly misplaced. As described most fully in RIA 4, it is not this proposal, but independent market forces that have made new coal
- fired capacity (with or without CCS) uneconomic compared to other energy sources. There is substantial rec ord evidence that CCS is a technology which will allow continued coal viability . See preamble section V. I.4.2
- 29

**Comment 2.1 -**  **65:** Commenter 10083 stated that the rule does not take into account real operational and technical constraints in the West, it is based on an unprece dented legal construct, and does not provide sufficient anal ys is of BSER for coal
- fired power plants. **Response 2.1 -**  **65:** See preamble section V.O.2 where the EPA evaluates water usage attributable to the final standard of performance. **Comment 2.1 -**  **66:** Commenter 10607 stated that the EPA not es that "determining that these high efficiency generating technologies represent the BSER for CO 2 emissions from coal
- fired generation would fail to promote the development and deplo ym ent of CO 2 pollution
- reduction technology

from power plants. Commenter further stated that a determination that this efficiency
- enhancing technology alone, as opposed to CCS, is the BSER for CO 2 emissions from new coal
- fired generation likely would inhibit the development of technology that could reduce CO 2 emissions significantly , thus defeating one of the purposes of the CAA's NSPS provisions." Commenter further stated that the EPA must not rely upon a factor which is not expressed in the statute (technological innovation) to force implementation of a technology that has not been adequatel y demonstrated or to establish a standard that is not feasible. Commenter further stated that the EPA must ground its reasons for action or inaction in Section 111(b) of the CAA. Section 111(b) of the CAA was intended, in effect, to require "maximum feasible control of pollutants from new stationary sources through technology based standards." Commenter also stated that Section 111(b) of the CAA requires that EPA take into consideration that it must account for "the cost of achieving such reduction and any non - air quality health and environmental impact and energy requirements" when selecting BSER. **Response 2.1 -**  **66:** As stated both at proposal and in the preamble to the final rule, promotion of technological innovation is a purpose of section 111 NSPS, and is grounded in the language of the statute, as well as in explicit legislative history . The EPA has analyzed non
- air quality health and environmental impacts of the standard (notably implications for water usage and protection of underground sources of drinking water at CO 2 sequestration sites), as well as energy requirements. See preamble sections V. O
. **Comment 2.1 -**  **67:** Commenter 10662 stated that the proposed rule is certain to face legal challenge and judicial review, just as the previously proposed rule w ould have. Given the flaws in the current proposal, this challenge is likely to be successful and imposes significant risks for states forced to implement the proposed rule. Commenter further stated that States forced to implement the proposed rule are con fronted with the high probability that the rule will ultimately be vacated or remanded after a litigation process which could take months or years for resolution. Commenter further stated that after these months or years of litigation, in the event that th e proposed rule is ruled unlawful, each state faces the prospect of repealing its implementation of the rule, with millions of dollars of sunk costs, and beginning again with whatever version EPA promulgates next, which may also face legal challenge. **Response 2.1 -**  **67:** The E PA believes its final rule is fully defensible

– we would not have promulgated it otherwise. However, the rule adopts requirements on individual sources and there are no direct state obligations. Thus, the commenter’s reference to state burden and obligations is obscure.2
- 30

**Comment 2.1 -**  **68:** Commenter 9765 stated that the D.C. Circuit in historic cases under section 111 identifies issues of waste disposal as a concern for the adequacy of dry scrubbing technology . Commenter further stated that the disposal of CO 2 captured at p ower plants is an important detail that the EPA has yet to fully address. Commenter further stated that uncertainty regarding site selection, the permanence of sequestration, transportation and storage liability , and whether uses exist outside of EOR, are all issues that must be addressed before CCS can be considered adequately

demonstrated. **Response 2.1 -**  **68:** There is a robust regulatory regime for geologic sequestration of CO 2 via deep well injection, the Class VI program under the UIC program of the Safe Drinking Water Act
. The EPA has issued construction permits for two injection sites to date under that program. Protection of the undergrounds drinking water resource will also assure that sequestered CO 2 is not released to the ambient air. The subpart RR and PP monitori ng and reporting rules complement these standards for underground injection. **Comment 2.1 -**  **69:** Commenter 9765 stated that when promulgating a NSPS, the EPA cannot force technology

upon new sources. Commenter further stated that the EPA has not shown that CCS technology

is reasonably

reliable or efficient because it cannot point to a single operable coal
- fired power plant equipped with partial
- CCS. Commenter further stated that the EPA attempts to propose a standard based on technology it predicts will be available ten year s down the road when it predicts people will want to build new coal
- fired units. Commenter further stated that this technology
- forcing contradicts the Clean Air Act and requir es the EPA to withdraw its rule. **Response 2.1 -**  **69:** The Boundary Dam facility

is operating at commercial scale with full CCS. Dakota Gasification is likewise operating at full commercial scale with full CCS. Without even considering the ample corroborative support, the performance of these two facilities alone is sufficient to show that CCS is demonstr ated and technicall y feasible. The EPA’s full explanation of CCS technical feasibility , and the feasibility of the promulgated emissions standard, is found in section V of the preamble, and in the Technical Support Document. 

### 2.1.1 **EP A Does/Does Not Have A**  **uthority U nder CAA 111**  **Comment 2.1 -**  **70:** Commenters ( 0836 and 10090) strongl y supported actions by the EPA to use its authority

under section 111 of the Clean Air Act to issue requirements that address carbon pollution from existing power plants and modifications of those plants. **Response 2.1 -**  **70:** The EPA agrees that it may issue standards for new sources (including modified and reconstructed new sources) to control CO 2 emitted from such sources. **Comment 2.1 -**  **71:** Commenter 9766 stated that the proposal exceeds EPA's authority b y mandating the use of geologic sequestration and categoricall y prohibiting reuse technologies. **Response 2.1 -**  **71:** The commenter is incorrect. The final standard does not mandate any method for its achievement, and the EPA has documented that a number of alternatives (including some not involving capture and sequestration) are available to meet the promulgated standard. Curiously , other commenters (e.g. UARG, #9666) argue that EPA did not promulgate a standard2
- 31

of performance because there is no standard for sequestered CO 2 . Moreover, the final rule cont ains a case
- by
- case mechanism to allow storage of captured CO 2 by other means than sequestration (including reuse) upon a demonstration of equal safety and efficacy. **Comment 2.1 -**  **72:** Commenter 10618 stated that the Clean Air Act, like the Atomic Energy Act of 1954, governs narrow aspects of the operation of energy generating facilities, and is not a wholesale delegation of authority to EPA to make decision on the need, cost, reliability and feasibility of building new coal plants. Commenter further stated that other federal energy legislation, like EPAct05, recognize the value of fuel diversity and the need to encourage the development of clean coal technologies. Commenter also stated that the EPA's proposal is an attempt to assure that coal is "priced out of the market" for the foreseeable future. **Response 2.1 -**  **72:** The commenter is mistaken. There is record evidence that partial CCS will spur further deplo ym ent of coal capacity. See preamble section V.O. **Comment 2.1 -**  **73:** Commenters (0840, 5731, 6949, 7977, 8501, 8937, 8957, 8971, 10046 and 10554) stated th at the EPA does not get to decide what technologies will generate our nation's power and then regulate the others out of existence. Commenters further stated that the Congress sets policies and government agencies promulgate regulations to implement those policies. **Response 2.1 -**  **73:** The new source standard does not dictate energy policy , and indeed, EPA has explained that there are compliance pathway s not involving CCS. **Comment 2.1 -**  **74:** Commenter 10119 stated that the EPA's attempt to find support in National Lime Association is unavailing. Commenter further stated that in that case, the D.C. Circuit observed in a footnote that the proposed standards at issue would have covered onl y rotary lime kilns rather than other types of kilns. (Nat'l Lime Ass'n, 627 F.2d at 426 & n.28) **Response 2.1 -**  **74:** National L ime I indicates that to be achievable, a standard of performance must be capable of being met under normal operating conditions, which include process variability . EPA has shown that the standard of performance adopted in this rule is achievable, considering variabilit y, and so is consistent with the teachings of this case. See preamble section V.J. **Comment 2.1 -**  **75:** Commenter 1510 stated that the EPA is proposing to expand its regulation of carbon dioxide, the vital plant
- fertilizing gas that makes virtually all life on Earth po ssible. Falsel y labeling CO 2 a "dangerous pollutant," and without clear or defensible authority from Congress or the courts, EPA is proposing to regulate emissions of this gas from coal
- fired power plants. **Response 2.1 -**  **75:** Given th at the Supreme Court has three times held that CO 2 is a pollutant under the Clean Air Act, this comment is without merit. **Comment 2.1 -**  **76:** Commenters (6848, 9197, 9782 and 10555) stated that the EPA's proposal will set a single standard for all fossil
- fueled EGUs exceeded the agency's authority under th e Clean Air Act and represented bad policy because it would have effectivel y banned the construction of new coal
- fueled facilities for the foreseeable future.2
- 32

**Response 2.1 -**  **76:** The commenters are mistaken that the final standard of performance adopted here (which among othe r things has separate standards for coal
- fired and NGCC facilities) will have the effect they

ascribe. **Comment 2.1 -**  **77:** Commenter 10046 stated that the EPA failed to make an adequate cause
- or contribute
- significantl y finding for new coal units in subpart Da. Commenter further stated that fossil fuel
- fired EGUs consist of two separate source categories: coal
- fired units and gas
- fired units. Commenter also stated that the EPA argues at length, there will be few or no new coal units constructed in the eight
- ye ar regulatory win dow, so EPA cannot claim any significant contribution from such units. **Response 2.1 -**  **77:** The endangerment finding under section 111 (should another such finding be deemed to be required here) is for the source category , not for a subset of sources within that source catego ry . There is no question that the source category of steam electric generating units contributes to the air pollution which endangers. It is, by a wide margin, the largest GHG emitting source category
. **Comment 2.1 -**  **78:** Commenter 10098 (API) stated that not only must EPA make a new endangerment finding here, but also must show “that, by issuing regulations, it will reduce those emissions and the reduction will ameliorate the endangerment at issue.” **Response 2.1 -**  **78:** No new endangerment finding is required here, as stated in other response s and at section III.A of the preamble to the final rule. However, the commenter is mistaken that a section 111 standard must ameliorate the endangerment for which a source category is listed. This argument was pointedly rejected by

the D.C. Circuit in C

oalition for Responsible Regulation v. EPA with respect to section 202 (a) technology
- based standards for motor vehicles. See 684 F. 3d at 127
- 28 . Section 111 likewise requires technology
- based controls, and the standards are to reflect considerations of feasibility , cost, nonair quality impacts, and energy considerations. The commenter’s preferred “amelioration of endangerment’ criteria is not among those set out in the statute. Other industry commenters in fact recognized that section 111 is purely

t echnology
- based, standards to reflect the capabilities of BSER which is adequatel y demonstrated. See e.g. Comments of AFFORD (9396) at 12. **Comment 2.1 -**  **79:** Commenter 10031 stated that the proposal's CCS
- based standard unlawfully dictates the choice of technology that Subp art Da sources must use, in violation of CAA Section 111 (b) (5). Commenter further stated that section provides that nothing under Section 111 shall be construed "to authorize the Administrator to require any new or modified source to install and operate an y particular technological s ys tem of continuous emission reduction to comply with an y new source standard of performance." Commenter also stated that only CCS can meet the proposed NSPS for Subpart Da sources. That directive violates the statute. **Response 2.1 -**  **79:** This co mment is completely misplaced. Not only

is the final standard a numerical limit which can be met an y way a source chooses, but in the final preamble EPA explains how there are various available compliance paths for fossil
- fired EGUs to meet the final stan dard of performance.2
- 33

**Comment 2.1 -**  **80:** Commenters (8966 and 9407) stated that the EPA acknowledges in its proposal and Regulatory

Impact Anal ys is (RIA) that implementation of such a standard would make it likely

that (i) few, if any , solid fossil fuel
- fired EGUs will be bui lt in the foreseeable future; and (ii) electricity generators are expected to choose new generation technologies (primarily natural gas combined cycle) that would meet the proposed standards. Commenters further stated that the EPA's designation of exorbitantly expensive CCS as the BSER violates the CAA. **Response 2.1 -**  **80:** The commenters significantly mischaracterize both the proposal, and the final regulation. The EPA stated, and continues to state, that existing market conditions

– not the proposed or final standard
- make i t unlikely that few if an y fossil fuel
- fired EGUs will be built. See RIA chapter 4. Those that are built will be for reasons of fuel diversity, and as a hedge against potential massive volatility in natural gas prices. See preamble section V.H.3. Given that such sources would already not be price competitive with NGCC capacity , developers would already be paying a premium to develop new coal
- based capacity. Increased cost associated with partial CCS would allow new coal
- fired units to remain cost compe titive with other dispatchable, baseload technologies that might be chosen for fuel diversity grounds. See preamble section V. H. **Comment 2.1 -**  **81:** Commenter 10029 stated that the proposal reflects EPA's assessment that it is unlikely an y CO 2 reuse technology would, in th e foreseeable future, be able to accommodate all of the CO 2 captured b y an affected EGU. Commenter further stated that whether or not this assessment is correct, it is relevant onl y to identifying the BSER that is available for the purpose of establishing a corresponding performance standard. Commenter further stated that once EPA establishes a performance standard (i.e., an emission limit), it is the responsibility of the affected EGU to determine how to achieve it. Commenter also stated that nothing in Se ction 111 of the CAA prohibits an affected EGU from using more than one technology to achieve a standard, and an affected EGU should be permitted to incorporate a beneficial reuse technology as part of a sy stem designed to meet the CO 2 emission limit. Comm enter stated an example, an affected EGU should be permitted to sell some portion captured CO 2 for reuse in the creation of an advanced biofuel, while transporting the balance of captured CO 2 in a pipeline to an oil field for use in enhanced oil recovery ( EOR) or disposal through geologic sequestration. Commenter stated that the proposal impermissibly forecloses this and all other options that are otherwise available to affected EGUs. Commenter 10029 stated that under EPA's proposal, no technology could be used to achieve CO 2 reductions until it has been individually authorized by

EPA through a rulemaking. Commenter further stated that this would have a disastrousl y chilling effect on the development of CO 2 reuse technology

and set a dangerous precedent for government interference into and control over private commercial decisions, not only regarding CO 2 controls on affected EGUs, but for all air pollutants and all source categories subj ect to regulation under Section 111 . Commenter requested that the proposal be revised to comply with the CAA and allow reuse technologies to be used b y affected EGUs, alone or in combination with other technologies to achieve the proposed CO 2 emission lim it. **Response 2.1 -**  **81:** The final standard does not foreclose non
- sequestration options for management of captured CO 2 . The final rule in fact contains a case
- by
- case mechanism whereb y2
- 34

applicants can demonstrate that alternative storage methods are of equal safety and efficacy

to geologic sequestration. **Comment 2.1 -**  **82:** Commenter 9487 stated that the Section 321(a) of the Act requires EPA to "conduct continuing evaluations of potential loss or shifts of employ ment which may

result from the administration or enforcement of the provisions of the Clean Air Act and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employ

ment allegedly

resulting from such administration or enforcement." **Response 2.1 -**  **82:** The final RIA evaluates potential empl oy ment impacts, and reasonabl y finds that the final rule will not have adverse effects on employ ment. See RIA section 4.6. **Comment 2.1 -**  **83:** Commenter 9407 stated that the proposed NSPS and BSER are in conflict with longstanding legal interpretations and EPA policies on ne w source permitting and these conflicts highlight the caprices nature of this rulemaking. In particular, the commenter indicates that a ty pe of BACT top
- down anal ys is and review of BACT permits should inform the BSER determination. Commenter further state d that the only way BACT can be no less stringent than NSPS is if individual source is subject to the worst set of circumstances possible for sources within its industrial category , such that all technologies more stringent that NSPS must be eliminated leaving BACT equal NSPS for the source. **Response 2.1 -**  **83:** The commenter is correct that an NSPS creates a floor for BACT, but not correct that EPA must adopt BACT
- methodology in setting NSPS, much less implying (comment pp. 39
- 41) that BACT determinations need play a decisive role in BSER determinations under section 111 (a). EPA explains in preamble section V how the promulgated standard of performance for new coal
- fired EGUs meets the requirements of section 111 (a). **Comment 2.1 -**  **84:** Commenters (9661 and 10093) stated that Section 111(b)(1)( B) of the Clean Air Act provides that once EPA promulgates standards of performance for new sources within a source category , EPA shall, at least every 8 years, review and, if appropriate, revise such standards. 42 U.S.C. 7411(b)(1)(B). Commenters further stated that if future developments lead to a record concerning the demonstration of CCS technology at power plants and the costs of CCS systems that supports a future finding that partial or full CCS is the best sy stem of emission reduction b y the time of the next periodic review, there is nothing in the CAA that precludes EPA from then adopting corresponding emissions standards. **Response 2.1 -**  **84:** The commenters are correct, but by the same token, the fact that there is a periodic review requirement in the statut e does not p reclude the EPA from determining that partial CCS is BSER at present. **Comment 2.1 -**  **85:** Commenters (10662 and 10952) stated that the EPA's proposal does not demonstrate compliance with Section 321 of the CAA, which gives the agency an affirmative duty to perform continuing evaluation of potential loss or shifts of employment which may result from the administration or enforcement of the CAA or its regulatory framework. Commenters further stated that the proposed standards will give some states a competitive advantage over other states in attracting industry , as the geological features necessary for EOR and sequestration are not evenly

distributed throughout the country . Commenter also stated that the proposed2
- 35

regulation will have significantly disparate geographic impacts. Co mmenter 10662 stated that the EPA must also consider increased fuel transportation costs and increased electricity transmission costs incurred b y locating EGU facilities close to geological formations favorable to CCS. **Response 2.1 -**  **85:** First, EPA has considered employ ment impacts posed by

the standards. See RIA section 4.6. We project that these impacts will be minimal because we reasonabl y project that capacity

additions during the anal ys is period out to 2022 would already be compliant with the rule’s requirements (e.g., natural gas combined cycle units, low capacity factor natural gas combustion turbines, and small amounts of coal
- fired units with CCS supported by Federal and State funding). See RIA chapter 4. The employment anal ys is in the RIA is part of EPA’s ongoin g effort to “conduct continuing evaluations of potential loss or shifts of employment which may

result from the administration or enforcement of [the Act]” pursuant to CAA section 321(a). **Comment 2.1 -**  **86:** Commenter 10555 stated that the EPA's interpretation that the Clean Air Act PSD provisions apply

to greenhouse gases is invalid, as it is inconsistent with the statutory language and congressional intent. Commenter further stated that the EPA has no authority to write the absurd effects out of the statutes through its Tail oring Rule. Commenter further stated that the EPA's onl y legal option is to adopt an alternative, reasonable construction of the statute; that is, that the PSD program relates to NAAQS pollutants, not any pollutants. **Response 2.1 -**  **86:** This issue has been resolved in litigat ion. See UARG v. EPA, U.S. (2014). 

### 2.1.2 **EPA Should/Should Not Regulate Through NSPS Comment 2.1**  **- 87:**  Commenters (9426, 9591, 10098 and 10239) stated that nothing in Clean Air Act (CAA) 111 or elsewhere in the CAA compels EPA to issue NSPS GHG regulations now. Commenter 10 098 further stated that EPA has clear legal authority and discretion to defer NSPS for GHG emissions from EGUs at this time based on positions EPA has taken in the refinery , nitric acid and portland cement NSPS rulemakings, and in light of recent D.C. Circ uit precedent. **Response 2.1 -**  **87:** There is also nothing in the Clean Air Act that prevents the EPA a priori from exercising its lawful authority to regulate air pollutants from listed source categories under section 111. Note also that in the Portland cement case, the D.C. Circuit noted only that EPA had not taken final agency action when it was still collecting information needed for a rulemaking. Portland Cement Ass’n v. EPA , 665 F. 3d 177, 193
- 94 (D.C. Cir. 2011). In the present rulemaking, the EPA has sufficient inform ation to develop a standard of performance and is acting accordingl y. **Comment 2.1 -**  **88:** Commenters (10098 and 10239) stated that EPA should immediately withdraw the proposed rule and instead proceed by way of an advanced notice of proposed rulemaking (ANPR), which does not impose the same regulatory burden as directly

proposing a rule. Commenters further stated that EPA must withdraw the proposed rule and proceed with a supplemental rulemaking after it has addressed the many deficiencies still present in this rule. Commente rs also stated that the failure to do so will create significant uncertainty in the utility sector, as NSPS regulations are effective upon proposal.2
- 36

**Response 2.1 -**  **88:** The EPA disagrees with the commenters’ characterizations. **Comment 2.1 -**  **89:** Commenter 10952 stated that the assumptions made to arrive at the Table 6 LCOE data, particularl y for carbon capture costs, are not available and thus not reviewable for notice and comment in connection with this rulemaking. Commenter further stated that the EPA should not promulgate rules on the basis o f inadequate data, or on data that, critical degree is known only

to the agency . Portland Cement 486 F.2d 375, 393. On this basis alone the proposal is arbitrary

and must be withdrawn. **Response 2.1 -**  **89:** The information on which the L COE in Table 6 of the preamble to the pro posed rule was well defined and available at proposal. The principal information on costs are the NETL reports which are noteworth y for their detailed transparency. Every step in the process of deploying and pricing pre
- and post
- combustion CCS (includin g partial CCS) is documented and referenced, and the methodology explained in detail. See e.g. NETL (2013) pp. 37
- 56 (pricing methodology , assumptions, decision not to base costs on first

—of
- a - kind costs identified, explained, with references for each dec ision point.) The commenter’s statement that the NETL materials are not peer reviewed is also mistaken. The EPA SAB Workgroup (endorsed b y the full SAB) determined that the NETL studies were in fact adequatel y peer reviewed. The commenter’s characterization of the NETL reports as not disclosing “underlying assumptions”, and on “assumptions... not even here for review” (National Rural Electric Cooperative Ass’n Comment (#1959) p. 40) consequently are mistaken. **Comment 2.1 -**  **90:** The Commenter maintains further that EPA’s basi s for the increment of learning b y doing is undiscernible . The Commenter cites the high costs of several of the DOE demonstration projects, and states that it cannot determine why the next plants to be built would have the significantl y lower NOAK costs se t out in the NETLstudy which EPA used in its LCOE determinations (NRECA at 40, and enclosure 2). **Response 2.1 -**  **90:** EPA has carefull y considered the issue of the NETL cost estimates vis
- à
- vis operating costs to date. The cost estimates in the final rule are based on vendor costs for the Shell Cansolv system, the sy stem currently utilized in full
- scale application at the Boundary Dam facility . As such, EPA regards this information as reflecting the most recent, reliable information on estimated costs of post
- combustion CCS. See also preamble section V.I.2 and 3. **Comment 2.1 -**  **91:** Commenter 9033 stated that the technology to capture CO 2 is not fully d eveloped and the regulation proposed is ahead of technology development. Commenter further stated that it should also be noted that carbon capture is much larger, complex and technically sophisticated compared with any of these previous technologies and in dustry did not begin work to capture CO 2 from atmospheric gases until 2000
- 2002. The CAA has been a market driver and not a technology

driver. The commenter further stated that the failure to meet the Clean A ir Act criteria should prompt EPA to reconsider crafting carbon control regulations more in line with the technology

development and DOE timeline. **Response 2.1 -**  **91:** First, the commenter’s reference to the DOE timeline is misplaced, since the timeline referred to deployment of full, not partial, CCS. Second, we explain at section V. D of the preamble to the final rule wh y post - combustion partial CCS is a demonstrated and feasible technology

for new coal
- fired EGUs.2
- 37

**Comment 2.1 -**  **92:** Commenter 9425 stated that the past EPA programs such as the Title IV Acid Rain and the NOx SIP Call programs , market
- oriented approaches offer opportunity to control emissions on a more cost
- effective basis than command
- and
- control regulations. Commenter further stated that the EPA has existing authority under the Clean Air Act to develop market
oriented mechan isms, such as emissions averaging and trading programs (with banking, borrowing and cost containment measures) for existing sources. The commenter requested that state programs which have evolved over time be deemed equivalent so as to avoid multiple overlapping GHG requirements. **Response 2.1 -**  **92:** Given the projection of a minimal amount of new coal
- fired EGU capacity being added, the EPA does not see the need for a trading regime among such sources. **Comment 2.1 -**  **93:** Commenter 9426 stated that the EPA's proposed NSPS is contrary to law and should be withdrawn. **Response 2.1 -**  **93:** The EPA respectfully disagrees. **Comment 2.1 -**  **94:** Commenters (9780 and 10952) stated that the Congress intended a particular interaction between section 111 standards and NSR: the section 111 standards would establish uniform and therefore broadly
- applicable standards, while the NSR provisions would be the mechanism by

which EPA and the states could impose potentially more stringent emissions limits on a source
- by
- source basis, tailored to local pollution conditions. Commenters further state d that accordingly , EPA cannot rel y on legislative history surrounding the section 110 attainment provisions to support the reasonableness of promulgating section 111 performance standards that are infeasible throughout large parts of the country
. Comment ers also stated that the EPA did not point to any legislative history

or case law that supports a view that section 111 standards may

preclude construction of sources throughout major regions of the country
. Commenter 10952 stated the standards that must n ot give a competitive advantage to one state over another in attracting industry Sierra Club v. Costle 657 F.2d 298, 325 (D C. Cir. 1981). Commenter 10952 stated that the EPA cites International Harvester that "as long as feasible technology

permits the de mand for new passenger automobiles to be generally met the basic requirements of the Act would be satisfied" as justification to establish an NSPS that is so geographically

prescriptive as to be applicable in only a few parts of the country . But Internatio nal Harvester simply does not address whether an NSPS can effectively prevent new sources from locating in certain states or regions because the required NSPS technology there is not available. Commenter further stated that the case simply stands for the p roposition that the standards are permissible even if some passenger car engines cannot meet them. Cars capable of meeting the standards in International Harvester were not precluded from being manufactured based on geographic constraints like EPA has prop osed here. Commenter 10952 also stated that BSER necessary

to achieve the proposed NSPS need not be available by all sources due to geographical constraints. Commenter further stated that the EPA surmises that this position in view of Section 111 legislat ive history is not "inconsistent with congressional intent." Earlier in these comments we stress that both the legislative history and judicial opinions conclude otherwise2
- 38

**Response 2.1 -**  **94:** The EPA has explained that the final standard of performance does not impose geo grap hic constraints on new sources meeting the promulgated standard of performance
. Sequestration capacity is available in man y areas of the country. EOR opportunities are also available in man y areas. Dedicated pipelines for CO 2 exist and their capacity is increasing. Coal
by
- wire allows new plants to be constructed proximate to sequestration (or EOR) sites and transmit electricity to distant locations. Other states restrict new coal
- burning capacit y within their borders. If a new fossil
- fuel burning EGU were to locate in an area other than any of the above, then there are alternative pathway s to compliance which do not involve CO 2 capture and sequestration which are available and which are not geographicall y constrained. The EPA notes further that these compliance alternatives are available at reasonable cost (see Table 9 to the preamble to the final rule), and in the case of IGCC, involve use of an advanced technology . So, although the final standard reflects performance of a BSER which includes partial carbon capture and sequestration, even in the instances that a compliance alternative might be utilized, that alternative would both result in emission reductions consistent with use of the BSER, and would reflect man y of the underlying principles and attributes of the BSER (costs are both reasonable, not greatly

dissimilar than BSER, no collateral adverse impacts on health or the environment, and based on use of an advanced technology). **Comment 2.1 -**  **95:** Commenter 9326 stated that CAA section 111(b)(5) provides that the EP A may not prescribe a particular technology that must be used to comply with an NSPS, except in the instances where the Administrator determines "it is not feasible to prescribe or enforce a standard of performance." Commenter further stated that in this r ulemaking that an NGCC is not "an air pollution control sy stem" but an alternative way to convert certain fossil fuels into energy and electricity , and for this reason, has alway s been a distinct source category . Thus it does not meet the definition of a " best sy stem of emission reduction." By allowing coal plants only with CCS (a technology

that is not commerciall y available or demonstrated), EPA is mandating the selection of NGCC technology , if not explicitly but by default, which is contradictory to EPA policy that EPA cannot mandate technology or interfere in commercial markets. Commenter also stated that finally

the fact that sequestration has numerous significant non
- air quality impacts that are unresolved and or poorly understood, makes EPA's stated r eliance on CCS for coal generation to meet the standard inconsistent with the statutory definition of NSPS. **Response 2.1 -**  **95:** The final standard of performance is not a design standard, and there are alternative compliance pathway s available, some of which do not involve CO 2 capture and sequestration. The EPA thus believes this comment to be misplaced. **Comment 2.1 -**  **96:** Commenter 9326 stated that the 1990 Clean Air Act Amendments (CAAA), which were developed to regulate Criteria Pollutants and Hazardous Air Pollutants (HAPS), may not be appropriate for addressing an issue as complicated as the impact of emissions of greenhouse gases on climate change. The strict language in the CAAA that defines the process for developing New Source Performance Standards does not allow for any flexibility in the regulation. Flexibility

is critical in this situation, which depends upon the availability of new and emerging carbon capture technology , as it provides safet y valves that help mitigate risks to technology

developers and to earl y adopters of the techno logy . Therefore, commenter recommended that climate change may be better regulated through legislation specificall y designed to address complicated, econom y - wide issues.2
- 39

**Response 2.1 -**  **96:** The EPA is acting pursuant to its authority under section 111. The issue of whether l egislation better addresses the issue of GHG emissions contributing to climate change is beyond the scope of the action. **Comment 2.1 -**  **97:** Commenter 10239 stated that the NSPS proposal crosses a line b y expanding the EPA's 40
- ye ar mandate as the preeminent regulator of the environment to become a definitive regulator of energy . Commenter further stated that in this environmental regulation, the EPA is proposing to control not merel y the emissions of air pollutants, but the choice of fuel and energy

that a project must utiliz e if it is to be constructed or operated. Commenter also stated that the EPA's approach to force one type of fuel to be switched for another arises out of EPA's decision to mandate a technology for coal
- fired electric generating units (EGUs) that is neither economicall y nor technologically feasible on a commercial scale. Commenter stated that in doing so, the EPA is effectively dictating both fuel choice and design choice for new EGUs. Commenter also stated that this action will have far
- reaching consequenc es, not only for the EGUs themselves, but also for the man y other industries that depend upon the energy that the EGUs provide and may

one day become subject to the same ty pes of regulations. Commenter further stated that in addition, by forcing an over
- re liance on a single fuel source, the EPA is decreasing the reliability of the electric s ys tem. **Response 2.1 -**  **97:** The standard of performance for fossil fuel
- fueled EGUs does not dictate fuel choice or otherwise determine national energy policy . The standard is achievable by a number of means, some of which do not involve carbon capture and sequestration. Moreover, section 111 standards of performance may legitimatel y reflect less polluting types of designs and discourage perpetuation of more polluting designs, especially wh ere compliance paths exist for the more polluting ty

pe of technology
. Portland Cement Ass’n v. EPA 665 F. 3d at 410 . **Comment 2.1 -**  **98:** Commenter 10239 stated that finalizing the proposed regulations could undermine the Tailoring Rule's emissions thresholds and trigger P SD permitting requirements for all source of GHGs (or for CO 2 specifically) at much lower statutory levels (the NSPS trigger issue). Title V permitting requirements may be triggered for the same reason. Therefore, the commenter suggested the EPA to avoid unnecessary uncertainty

by withdrawing the proposed rule and resolving the NSPS trigger issue before proceeding with an y regulation of GHGs under Section 111. **Response 2.1 -**  **98:** See preamble section XII.B. **Comment 2.1 -**  **99:** Commenter 10239 stated that the EPA did not address how the NSPS trigg er issue may apply under the EPA
- approved PSD programs administered b y states and other jurisdictions. Commenter further stated that while the EPA's proposed method may apply in PSD
- delegated states such as I llinois, it may not apply

to many other states and local provisions with different regulatory

text. Commenter also stated that the EPA must address the fact that these jurisdictions may

need to take additional steps to correct the NSPS trigger issue. Commenter stated that at a minimum, states that mir rored the EPA's approach in their own state regulations will require a similar interpretive method as what the EPA has proposed here. Commenter stated that for states that followed a statutorily
- required rulemaking process, the process is more challenging, as the state would need to follow its own rulemaking procedures to adopt the EPA's proposed corrections and then obtain the EPA's approval of a state2
- 40

implementation plan (SIP) revision. Commenter stated that this process can be time consuming, and the NSP S trigger issue may appl y until the state adopts regulations and obtains the EPA's approval of a revised SIP. Commenter stated that the EPA's suggestion that it can propose a rule that is comparable to the SIP PSD Narrowing Rule for an y state that informs the EPA that it must revise its SIP, 79 Fed. Reg. at 1,488, is also unlikely to succeed. Commenter further stated that the PSD Narrowing Rule does not address the NSPS trigger issue and would, thus, be an ineffective option for ensuring that state regulati ons applying PSD requirements below Tailoring Rule thresholds are not federally

enforceable. Commenter further stated that in any event, such an approach would not resolve state law compliance issues. For example, although Colorado is subject to the PSD Narrowing Rule, the rule does not limit the scope of Colorado's state law (and associated state enforcement provisions), which apparently will require GHG permitting at 100/250 tpy thresholds if GHGs are regulated under Section 111. Commenter further stated that like the Associations, states are concerned that they may not have sufficient time to amend their rules to address the NSPS trigger issue. For all of these reasons, the commenter asked the EPA to resolve the NSPS trigger issue before regulating GHGs under Section 111. **Response 2.1 -**  **99:** See preamble section XII.B. **Comment 2.1 -**  **100:** Commenter 10239 stated that neither the NSPS Settlement Agreement for Fossil Fueled Power Plants (Power Plant Settlement Agreement) nor the President's Climate Action Plan creates an obligation to complete the rulemaking. Commenter further stated that the settlement agreement is not a consent decree ordered by a court and does not purport to limit or modify the discretion accorded to EPA. See Power Plant Settlement Agreement. Commenters also stated that the EPA has already far exceeded the November 10, 2012, deadline for issuing a final NSPS for EGUs, and petitioners' sole recourse to enforce the Agreement would be to proceed with litigation on the still
- pending petition for review. Commenters stated that likewi se, the President's June 25, 2013, memorandum accompanying the Climate Action Plan did not include a date certain for a final rule, but instead directed the EPA to issue a final rule in a timely fashion after considering all public comments as appropriate. Presidential Memorandum
- Power Sector Carbon Pollution Standards (June 25, 2013). Because the EPA has no deadline to complete the rulemaking, the commenter urged the Agency to full y consider all comments and to take the time necessary

to ensure that fina l regulations, if any , are based on sound science and technology , and are capable of implementation. **Response 2.1 -**  **100:** The EPA agrees that the timetable for this rulemaking is discretionary , and that the agency has indeed taken the time necessary to assure that the final NS PS reflect sound science, sound engineering judgment, and are capable of successful implementation. **Comment 2.1 -**  **101:** Commenter 9504 is a respondent in Utility Air Regulatory

Group v. EPA, S. Ct. Case 12
- 1146, in which industry asks the U.S. Supreme Court to reverse the hol ding of the U.S. Court of Appeals in Coal for Responsible Regulation, Inc. v. Envtl. Prot. Agency , 684 F.3d 102 (D.C. Cir. 2012), upholding the GHG Tailoring Rule. NEDA/CAP. Commenter further stated that in the lawsuit the EPA does not have legal authority for regulating GHG's under the PSD and Title V program. Commenters also stated that however as EPA points out in the January 8, 2014 proposed NSPS rule for EGUs, 40 CFR Section 51.166(b)(50), could2
- 41

independentl y trigger PSD when an NSPS is issued for GHG s, regardless of the outcome of the Supreme Court's review of the GHG Tailoring Rule, re
- establishing Clean Air Act's permit definitions of "major source" at 100 and 250 tons for PSD and 100 tpy for Title V. See 79 Fed. Reg. 1420, at 1488. Commenters state d that as EPA argues in the Notice, issuance of the EGU NSPS for GHGs could trigger Title V permit fees in excess of $47 a ton of GHGs emitted by an y Title V permittee. **Response 2.1 -**  **101:** See preamble sections XII.B. and D. **Comment 2.1 -**  **102:** Commenter 10952 stated that the CAA requires NSPS r eview every eight ye ars and updated if appropriate for sources in the relevant industrial category . CAA Section 111(b)(1)(B). Commenter further stated that the EPA's methodology for determining whether the existing NSPS is appropriate or needs to be update d is best described b y EP A in connection with a recent proposed NSPS regulation for Portland Cement Plants. 73 Fed. Reg. 34072 (June 16, 2008). Commenters also stated that in this proposal EPA describes how it relies significantl y on existing 'Top Down' NS R BACT decisions to evaluate NSPS and required best demonstrated technology

or BDT, a term sy

nony mous with BSER. Commenters stated that the NSPS must be applicable to all sources within the industrial category . Commenters stated that in the Portland Cement proposed regulations, EPA describes steps to appropriatel y determine the BACT floor or NSPS as follows: "EPA compares permit limitations and BACT determination data" to identify any site specific factors that could influence general applicability of the i nformation to the entire source category . Commenters stated that in other words, EPA looks at BACT determinations and eliminates the more stringent requirements if they cannot be achieved b y all sources in the industrial category

when evaluating a new appropriate NSPS. **Response 2.1 -**  **102:** There is no legal requirement for NSPS to reflect the sort of anal ys is based on BACT determinations that the commenter suggests. Certainly , there is no language in section 111 (a) requiring such an approach. The commenter is correct that a p romulgated NSPS must contain sufficient ‘headroom’ to account for normal operating variability (including fuel ty

pes and technology

operational variability), and the final NSPS here does so. See preamble section V.J. **Comment 2.1 -**  **103:** Commenter 10952 stated that the redesi gning the generation source from the ground up would be redefining the source. Commenter also stated that in this light the court reckoned that requiring nuclear power generation as BACT in Prairie State is legall y impermissible and not within the purview of a BACT analy sis. Commenters stated that in the context of this NSPS rulemaking source "definition" may require a location where natural gas is not available and neither is infrastructure to support carbon capture and sequestration. In these cases source redesign is simply not an option regardless. **Response 2.1 -**  **103:** Although the EPA disagrees with this comment’s legal premise (see Portland Cement Ass’n, 665 F. 3d at 410 (NSPS need not make accommodations for more polluting source design, especiall y where alternative compli ance pathway s exist) ) , the commenter’s factual premise is incorrect. There are compliance pathway s available to all new fossil
- fired EGUs under the final NSPS. Some of these do not involve capture and sequestration of CO 2 .2
- 42

**Comment 2.1 -**  **104:** Commenters (10050 and 10552) requested the EPA to consider setting standards based on CO 2 emissions rates achieved by recentl y built and highly efficient coal
fueled power plants, especially SCPC and ultra
- supercritical PC units without CCS. Commenter further stated that these ty pes o f plants in the U.S. and other advanced economies, including German y and Japan, as well as in a developing country, China, are demonstrating the path forward for achieving CO 2 reductions from new coal
- fired EGUs. **Response 2.1 -**  **104:** The EPA explains in section V. P.1 and IV.B of the preamble to the final rule why these business
- as - usual technologies are not BSER. **Comment 2.1 -**  **105:** Commenter 9035 stated that market
- based policies such as emissions averaging among companies, a cap
- and
- trade s ys tem, an emissions tax, or a clean energy standard with tradable credits would be the most efficient and effective way of reducing GHG emissions and spurring clean energy development and deploy ment. Commenter further stated that properl y designed market
- based policies create an appropriate division of labor in addressing climate change, with the law establishing the overarching goal of reducing GHG emissions, and private industry

determining how best to achieve that goal. Commenter further stated that under market
- based policies, the government neither specifie s a given company's emission level nor requires the use of an y gi ven technology both of these determinations are made by the compan y itself. **Response 2.1 -**  **105:** This comment is beyond the scope of the present rulemaking. **Comment 2.1 -**  **106:** Commenters (9382, 9407, 9486, 9505, 9507, 9723, 9734, 1 0017, 10023, 10030, 10036, 10046, 10047 and 10391) stated that the EPA has proposed a regulation that, b y its own analy sis, provides no reduction in future emissions, while stating that the degree of emission reduction is a key factor in determining the proposed regulatory limits. **Response 2.1 -**  **106:** New coal capacity is not being constructed for reasons unrelated to the standard of performance in the final rule. See RIA chapter 4. Nonetheless, there is the possibility

of new construction on fuel diversity grounds and as a hedge against rising natural gas prices (although IRPs show no planned construction for roughl y the next decade even so , albeit expressing interest in means of preserving fuel diversity within a portfolio ). See preamble section V.H.3
. Man y members of the industry accordingl y urged the EPA to adopt a standard, rather than to base the NSPS on performance of NGCC. Should new coal capacity be built, the CO 2 emission reductions from the unit would be considerabl y reduced under the final NSPS. See section V.J o f the preamble to the final rule ; see RIA chapter 5 showing that the quantifiable benefits would exceed cost of controls in such a case under a range of assumptions
. **Comment 2.1 -**  **107:** Commenter 9425 agreed with the EPA's stated position that the Tailoring Rule thresholds continue to apply when the EPA promulgates the NSPS for GHGs. Commenter further supported EPA's efforts to revise provisions in this proposed rule to explicitly make clear that the NSPS trigger provision in the PSD regulations incorporates the Tailoring Rule thresholds. **Response 2.1 -**  **107:** The EPA acknowledges the commenter’s support.2
- 43

**Comment 2.1 -**  **108:** Commenter 9197 stated that rather than setting a uniform boiler and IGCC standard at an unachievable low level based on an unsupported assertion that CCS is adequately demonstrated, we urge EPA to further differentiate among coal units b y setting subcategories for those units burning bituminous/sub
- bituminous coal, those units burning lignite, and those units employing IGCC technologies. **Response 2.1 -**  **108:** EPA has considered and accounted for the different degree o f partial CCS needed depending on coal ty pe, and finds the standard to be achievable and adequatel y demonstrated accounting for that variability. See preamble section V.J. **Comment 2.1 -**  **109:** Commenter 10786 stated that the EPA cannot compel any private part y to apply for, l et alone obtain, any t yp e of permit in any

scenario, as the private party is free to engage in some other conduct, including terminating the regulated activity , subject of course to applicable State or Federal enforcement actions for any activity that alle gedly

violates the Class II rules or permit requirements. Commenter further stated that enforcement authority falls short of compelling a private party to obtain a permit and to engage in commercial activity against its will. Commenter further stated the E PA does not have authority to compel conversion from Well Class II to VI. **Response 2.1 -**  **109:** This comment i s misplaced. Class II wells due not lose their status as Class II wells if some CO 2 remains post
- active recovery period. See preamble section V.O describing recent EPA guidance on this issue. 

### 2.1.3 **EPA Has a Legal Responsibility to Address Greenhouse Gas Emissions Under CAA 111**  **Comment 2.1 -**  **110:** Commenters (2983, 5605, 10090, 10093 and 10553 requested the EPA to rapidly finalize the proposed carbon pollution rule to limit carbon and greenhouse gas emissions from new coal and natural gas plants. Commenter supported the plan that President Obama has proposed to protect us from the pollution that causes global warming and threatens public health. Commenters urged the EPA to use its' authority under the Clean Air Act to finalize a strong rule designed to control carbon pollution from new coal fire and natural gas b y power plants. Commenters further stated that the agency 's authority to limit climate pollutants from mobile and stationary sources has been thoroughly vetted and repeatedly

affirmed by

the U.S. Supreme Court. **Response 2.1 -**  **110:** The EPA agrees that it has the legal authority to adopt standards of performance for CO 2 for this industry sector under CAA section 111. **Comment 2.1 -**  **111:** Commenters (1681, 9407, 10023 and 10036) disagreed with the EPA's decision to regulate greenhouse gas emissions under the Clean Air Act. Commenters further stated the EPA through arbitrary regulation and not by

law enacted by

the legislature is trying to reduce carbon dioxide emissions. **Response 2.1 -**  **111:** Given th at the Supreme Court relied on the EPA’s exercise of CAA section 111 authority

to regulate CO 2 emissions from fossil
- fuel fired EGUs in holding that federal common law claims were displaced b y the Clean Air Act, one can hardly maintain that EPA2
- 44

lacks legal authority to adopt the standards in the final rule. American Electric Power v. Connecticut , 131 S. Ct. 2527, 2537
- 38 (2011). **Comment 2.1 -**  **112:** Commenter 10098 stated that the settlement agreement does not "limit or modify the discretion accorded EPA," id. 11. Commenter stated were EPA to deviate from the terms of the settlement agreements, petitioners' sole recourse would be "to ask the Court to lift the stay of proceedings [in the pending litigation] and establish a schedule for briefing and oral argument of the pending petitions for judicial review." Id. 7. Commenter further stated that there is no legal or practical reason for EPA to follow the unreasonable schedule outlined in the Settlement Agreements, especiall y since the underlying claims have no merit. **Response 2.1 -**  **112:** This comment is beyond the scope of the present rulemaking proceeding. **Comment 2.1 -**  **113:** Commenter 10098 stated that the EPA correctly concluded that the 2012 proposal was flawed and should be withdrawn. Commenter further stated that because NSPS are effective upon the date of proposa l, EPA should provide further clarification of the effect of that withdrawal to provide certainty that it will have no lasting legal effect or proceed by advanced notice of proposed rulemaking. **Response 2.1 -**  **113:** EPA has stated explicitly that the 2012 proposal is rescinded and will not serve to establish an NSPS trigger date. **Comment 2.1 -**  **114:** Commenters (9472 and 10098) stated that this proposed rulemaking has numerous and fundamental legal, technical, and regulatory flaws. Commenters further stated that these flaws cannot be cured by simpl y promulgating a final rule with justifications for and explanations of the actions laid out in the proposed rule. Commenters also stated that in order to address these serious deficiencies and avoid ongoing harm and confusion to companies that plan to cons truct EGUs in the relativel y near future, as well as other manufacturing sectors concerned about the precedent of EPA's new energy regulatory

role on future project development, EPA should immediately

withdraw the proposal. Commenters (9472 and 9683) state d that the EPA lacks the supporting documentation that is necessary to conclude that CCS is "adequatel y demonstrated" at this time and therefore EPA's proposal violates the clear mandate established under section 111(b) of the Act. Commenters further state d that the EPA's lengthy and complex legal justification in and of itself cannot re
write the plain language of the text of the Act. **Response 2.1 -**  **114:** The EPA respectfully disagrees. The final standard is well supported by fact and law. **Comment 2.1 -**  **115:** Commenter 9593 stated that EPA should encourage a broad, diverse portfolio of electric generation resources. Commenter further stated that any climate policy developed under the CAA should defer to state clean energy policies wherever possible. **Response 2.1 -**  **115:** This comment is beyond the scope of the present rulemaking.2
- 45

**Comment 2.1 -**  **116:** Commenter 10119 stated that the EPA projects that this proposed rule will result in negligible CO 2 emission changes, quantified benefits, and costs. Commenter further stated that the EPA's Regulatory Impact Analy sis similarly "anticipates that the proposed EGU New Source GHG Standards will result in negligible CO 2 emission changes, energy impacts, quantified benefits, costs, and economic impacts." Commenter 10239 stated that the proposed standards will not protect public health and welfare by r educing those emissions. **Response 2.1 -**  **116:** First, section 111 (a) establishes a technology
- based standard, not a health
based standard requiring a particular health or welfare outcome. Compare, e.g. CAA section 112 (f). Second, in an y case, under a range of assumptions wh ere new non - compliant coal capacity is constructed, quantifiable benefits of the rule exceed costs. See also preamble section V.K documenting the extensive CO 2 emission reductions between highl y efficient SCPC and a highly efficient SCPC meeting the promu lgated standard of performance. **Comment 2.1 -**  **117:** Commenter 9666 and Commenter 10048 stated that the proposed rule does not actually

reduce GHG emissions at power plants. Instead, it requires EGU owners/operators to simply capture a portion of its CO 2 emissions for transportation off
- site to another location where it is to be stored. Commenter further stated that there are no regulations that ensure the CO 2 will actuall y be capabl y stored thereb y reducing CO 2 emissions to the atmosphere. The argument i s pre sented most prominently in the comments of UARG (9666). UARG maintains that the proposed (and now, final) standard of performance is not a standard of performance at all. This is because “[i]t is not a standard that requires an enforceable, on
- site reduction in the total emissions generated b y new sources”. (UARG p. 33.) The argument is that emissions of CO 2 are not reduced under the standard, merely captured. Because the rule does not itself impose any controls on the sequestration process, the argument goes, it does not require any on - site or off

site reduction in CO 2 . CO 2 is just separated into two phases: what is emitted and what is captured. UARG further maintains that “[s]ystem that reduce emissions at the site of the new source must either extract the pollutants from the gas stream or incorporate a low
- emitting technology

(or fuels) into the design of the source.” (Id. p. 36.; see also id. at 38 (“”[b]ecause a ‘standard of performance’ under section 111 of the CAA must ‘reflect[] the degree of emission limitation achievable’ through the ‘application’ of a ‘s ys tem of emission reduction’ that is designed into the new source itself , the underground ‘sequestration’ of a new source’s CO 2 emissions at an off

- site location miles away

from (and not under the control of) that new source could never satisfy

the statutory

requirements governing a ‘standard of performance’. Nor could on - site sequestration be a ‘standard of performance’ when the standard does not limit emissions of captured CO 2 or define sequestration facilities as a part of the ‘affected facility ’”)(emphasis original). **Response 2.1 -**  **117:** EPA does not accept these arguments. All emission standards not associated with outright destruction of a pollutant involve capture of the pollutant and its subsequent d isposition in the capturing medium. Thus, metals are captured in devices like baghouses or scrubbers, leaving a solid waste or wastewater to be managed. Gases can be captured with activated carbon, or under pressure, again requiring further management of the captured pollutant(s). EPA is required to consider these potential implications in promulgating an NSPS. See section 111 (a)(1) (in promulgating a standard of performance under section 111, EPA must “tak[e] into account ... any nonair quality

health and environmental impact”). EPA thus considers such issues as solid waste and wastewater generation as part of determining if a s ys tem2
- 46

of emission reduction is “best” under section 111. See e.g. 54 FR 34030 at section II
. (Aug, 17, 1989)(environmental imp acts of standard of performance for petroleum refining category); 75 FR 54970, 55022
- 023 (Sept. 9, 2010) (waste and water generation associated with standard of performance for Portland cement source category) ; 45 FR 44202/3 (June 30 , 1980)(energy and environmental impacts of standard of performance for primary aluminum source category)
. Other regulatory

programs – notably

those under the Clean Water Act, Safe Drinking Water Act, and Resource Conservation and Recovery Act

– control disposition of these captured pollutants (including volatiles which could be re
- emitted to air). For water, see e.g. 40 CFR section 421. 23 (g)
- (m) (Clean Water Act effluent limitation guideline for flouride captured from primary aluminum potline air emissions 1 ); 40 CFR sect ion 443.13 and 443.15 (Clean Water Act effluent limitation guideline for total suspended solids from asphalt production, including loading operations (asphalt emulsion subcategory) 2 ; 40 CFR section 419.23 (a) and (c) (effluent limitation guideline for sulf ide and chromium from cracking operations in petroleum refining category) 3 ; 40 CFR section 411.11 and .15 (effluent limitation guideline for total suspended solids from Portland cement) 4 ; for control of wastes generated when capturing air emissions, see e. g. 40 CFR section 261.32 (hazardous waste listings (under subtitle C of the Resource Conservation and Recovery Act) for K061, K069, K126, and K158

– all listings of wastes generated from air pollution control). The standards of performance for these sour ce categories (and all others) are anal yt icall y identical to the standard here: a numerical limit on amount of pollutant which can be emitted reflecting some level of removal of a pollutant from the emitted stream, without any further control on the remov ed pollutant. 5 Nor is further control pursuant to the Clean Air Act necessary or appropriate given the extensive controls ty pically imposed by

standards under the sister environmental statutes and implementing regulations. The EPA may , of course, rel y on these controls in its consideration of non
- air impacts. There is also no textual basis for the commenter’s assertion that only a standard which specifies control of captured pollutants can be a “standard of performance” for purposes of section 111 (a)l. As noted, the pertinent statutory requirement is that EPA “take into account nonair quality

1 The corresponding standard of performance for flouride from this source category is 40 CFR section 60.192 (standard of performance under section 111 for flouride from primary aluminum potlines). 2 The corresponding standard of performance for particulate matter from this source category (including emissions from loading operations) is 40 CFR part 60.92. 3 The corresponding standards of performance for sulfide (as SOx) and particulate matter from petroleum refining, including cracking operations, are at 40 CFR section 60.102 and .104. 4 The corresponding standard of performance for particulate matter from Portland cement source category is at 40 CFR section 60.62. 5 The commenter tries to distinguish standards of performance reflecting such technologies as f lue gas desulfurization, baghouses, and low
-Nox burners on the grounds that “[a]ll of these technologies are ‘systems of emission reduction’ that are designed into the new source itself” (35 n. 5). EPA fails to perceive a distinction. All of these techno logies capture pollutants into some other media from which pollutants can potentially be re
- emitted. The respective standards of performance reflect the amount of pollutant captured. The standards do not impose further control on the captured pollutant, although EPA considers potential issues related to re
- emission in assessing non - air health and environmental impacts of a potential standard of performance. And carbon capture is “designed into the new source itself” every bit as much as a baghouse (capture of PM vs. capture of a gas), SCR (capture of carbon vs. capture of Nox), or flue gas desulfurization (removal of sulfur vs. removal of carbon).2
- 47

health and environmental impacts”. This requirement affords EPA considerable discretion in how to take these impacts into account, and certainly does not command that EPA establish Clean Air Act requirements on pollutant s removed from a source’s air emissions. In this regard, the commenter’s assertions that a BSER must be designed into a source not only lack factual basis, but are incongruent with the explicit statutory requirement for EPA to consider non
- air impacts of a standard, which provision surely contemplates activities outside the area of the immediate phy sical source. Cf. Essex Chemical, 486 F. 2d at 439 (waste disposal of sludges captured as part of controlling level of pollutant emissions). A standard of per formance that allowed all captured pollutant to be re
- emitted would of course not be a “best” s ys tem. Cf. Essex Chemical Corp. , 486 F. 2d at 439. However, that is not the case here. First, the commenter significantl y mischaracterizes the proposed and fi nal rule. The rule does not merel y specify an emission limit of 1400 lbs. CO 2 /MWh. Captured carbon must be sent to a facility subject to the standards of the GHG Reporting rule in Part 98 subpart PP (on
site) or RR (off

- site). These standards require el aborate reporting, monitoring, and verification plans. The sequestration sites themselves are heavily regulated under the Class VI and (if EOR is utilized) Class II standards of the Underground Injection program. EPA has reasonabl y relied on the GHG Repo rting rules to assure proper tracking of captured carbon to a sequestration site, and further reasonabl y relied on the regulations for Class II and Class VI injection wells plus the further safeguard of GHG reporting b y the sequestration site, to assure lo ng term containment. 6 As explained in the preamble, the Class VI and Class II rule requirements are designed to prevent releases of sequestered CO 2 to underground sources of drinking water, and in doing so, also assure that sequestered CO 2 is not released to the ambient air. UARG, indeed, recognizes the mechanism b y which CO 2 is contained in sequestration zones for geologic timeframes (Comment p. 68, referring to “injectio[n] 4,000 to 8,000 feet below the Earth’s surface into a geologicall y suitable repository , where chemical reactions secure the CO 2 over time”). UARG also complained in its comments that the Class VI rules are unnecessaril y s tringent (id. at 63, asserting that the monitoring provisions and post
- closure care period of 50 ye ars are overl y stringent). The subpart RR and PP reporting rules, with their requirements of extensive monitoring and verification plans, provide backup assurance of detection of any release of sequestered CO 2 in the unlikely event such release occurs. T he EPA reasonably relied on these standards to assure that captured CO 2 is securel y s tored and not emitted to the ambient air. This is entirely consistent with the requirements of section 111 (a), as well as with practice in all other NSPS involving control of emissions of metals and other pollutants which are not outright destroyed by

an air pollution control device . **Comment 2.1 -**  **118:** Commenter 10119 stated that in identifying BSER for natural gas plants EPA has deliberatel y chosen to rel y "solely on dyn amic energy market conditions" namely , the continued availability

of cheap unconventional natural gas and a standard for new NGCC plants that only very few facilities can meet. Commenter further stated that the Proposed Rule invite s 6 Indeed, many commenters to EPA’s rulemaking establishing the Class VI injection well standards pursuant to the Safe Drinking Water Act extolled the safeguards already present in the standards for Class II w ells, and in some cases, argued that controls incremental to those for Class II wells were unnecessary. See e.g. Comments of Texas Carbon Capture and Seques tration Association (“gas storage is substantially similar to EOR and in those instances any regulations for Class VI should more closely resemble Class II”); Comments of British Petroleum (safety of Class II requirements); Comments of U.S. Chamber of Comm erce (same); Sandridge Energy (same).2
- 48

the use of both extremely inefficient gen eration and unconventional natural gas extraction methods, thus inevitably

leading to much larger greenhouse gas emissions from these sources and methods. **Response 2.1 -**  **118:** The increased use of natural gas to generate electricity is based on market factors independent of the present rulemaking. See RIA chapter 4. **Comment 2.1 -**  **119:** Commenter 9425 stated that the EPA should complete its review of the (Science Advisory

Board (SAB) Biogenic Emissions) Panel's recommendation and should provide further guidance as to the GHG regulations that will apply to units that burn biomass. Commenter further stated that in particular, EPA should provide clarity on the role of biomass in reducing GHG emissions from stationary sources before proposing emissions guidelines for states to regulate existing source s under CAA Section 111 (d). Commenter also stated that in particular, EPA must address how states can include emissions reductions related to renewable energy standards that define biomass as an eligible resource in state compliance plans submitted consist ent with Section 111 (d). **Response 2.1 -**  **119:** This comment is beyond the scope of the present rulemaking. **Comment 2.1 -**  **120:** Commenters (10088 and 10239) stated that the with the proposed rule, EPA seeks to control not merely the emissions of air pollutants, but the choice of fuel and energy that a new power generation project must utilize if it is to be constructed or operated. Commenters further stated that in doing so, EPA is effectivel y dictating both fuel choice and design choice for new electric utility

generating units. The Proposed Rule w ould effect a ban on new lignite fueled power plants. Commenters also stated that with the proposed rule, EPA has proposed not only to set an emission limit, but it has left no choice regarding the precise technology that each facility must employ

to meet that limit. **Response 2.1 -**  **120:** The commenter is mistaken. There are various compliance pathway s for achieving the final standard of 1400 lbs CO 2 /MWh for both PC and IGCC units, and some of these alternatives do not involve carbon capture at all. Moreover, this standard is a chievable for all coal ty pes. **Comment 2.1 -**  **121:** Commenter 9201 stated that the EPA dedicates an entire chapter to describing climate change and its purported impacts. Commenter further stated that the agency never asserts that the proposal will either reduce GHG emission or materially change its projections of climate change effects. At best, EPA claims the rule "is designed to minimize emission of greenhouse gases, minimize the rate of increase of concentration of these gases, and therefore reduce the risk of adverse eff ects." Commenter also stated that this statement is unadorned b y an y explanation of how the rule would actually reduce these "risks", and directly contradicts statements in the preamble that the rule would not decrease GHG emissions or provide an y benefits
. Commenter 9201 stated that the absence of any connection between the proposal and addressing climate change is unsurprising when considering that:2
- 49

 The proposed rule sets a standard for coal
- fired EGUs that requires the use of technology which actuall y re sults in more CO 2 emissions than would otherwise occur due to the substantial parasitic load requiring a larger plant and use of more fuel to produce a comparable amount of net
- electric output than a plant without CCS;  The proposed rule sets a standard fo r NGCC EGUs that is already met by 95 percent of the currently

operating units and the standard is 20 percent higher than the best technology

deployed today ;  The proposed rule induces exclusive reliance on natural gas for future base load electricity gene ration and the increased demand of natural gas will result in more methane emissions that narrow, or erase, the GHG emission difference between natural gas and coal based electricity
. Commenter 9201 stated that the ty pe of analy sis that is necessary and p roper, but lacking, would evaluate direct temperature changes arising from a standard aligned with the performance of high performing SCPC and I GCC units without CCS, and determine whether the emissions from building and operating a certain numbers of thos e plants would make an y material difference in global temperatures. **Response 2.1 -**  **121:** The commenter’s argument that a technology
- based standard, like a standard of performance under section 111 (a), must be justified by some typ e of health
- or welfare
- based impact is incorrect. The argument was explicitly rejected in Coalition for Respons ible Regulation v. EPA , 684 F. 3d 102, 127
- 28 (D.C. Cir. 2012) (rejecting argument that vehicle standards under the technology
- based provisions of CAA section 202 (a) address the endangerment to which vehicle GHG emissions contribute). The reason is evide nt. Section 111 (a) defines the relevant decision factors, and health
- and welfare
- based end results of the effect for which a source category is listed are not among them. The comment (9201) that the promulgated NSPS will lead to increase CH 4 emissions due to increased use of natural gas has no basis. New natural gas capacity is being added for reasons unrelated to this standard of performance. See RIA chapter 4. The commenter also evidentl y assumes CH 4 emissions associated with natural gas production and transport are uncontrollable, which the EPA does not believe to be the case. Regarding the commenter’s claims regarding the standard of performance for NGCC, see response to commenters 9725 et al. below. **Comment 2.1 -**  **122:** Commenter 9514 stated that in Massa chusetts v. EPA, the Supreme Court held that the CAA authorizes federal regulation of emissions of CO 2 and other greenhouse gases, and directed EPA to make a science
- based determination as to whether greenhouse gases from motor vehicles endanger public health and welfare. 549 U.S. 497, 528
- 29 (2007). Commenter further stated that in December 2009, EPA concluded that emissions of greenhouse gases, including CO 2 , "cause or contribute to, air pollution which may reasonabl y be anticipated to endanger public he alth or welfare." 74 Fed. Reg. 66,496 (Dec. 15, 2009). Commenter also stated that in 2011, the Supreme Court agreed that the CAA authorizes CO 2 standards for power plants under section 111, and that that authority preempts federal common
- law actions in tort for damages due to emissions of climate pollution. Am. Elec. Power Co. v. Connecticut (AEP), 131 S.Ct. 2527, 2537
- 39 (2011).2
- 50

**Response 2.1 -**  **122:** The commenter is correct. There is no question that CO 2 is an air pollutant which may

be subject to control under section 111. The Supreme Court indeed stated so explicitly in AEP. 131 S. Ct. at 2537
- 38. **Comment 2.1 -**  **123:** Commenter 9382 stated that the EPA declined to propose performance standards for the two major non
- CO 2 GHGs emitted by fossil fuel
- based EGUs nitrous oxide (N 2 O ) and methane ( C H 4 ) because they represent less than one percent of total estimated GHG emissions from fossil
- fuel power generating units. 79 Fed. Reg. at 1447. Commenter further stated that the CAA gives the Agency latitude to determine which pollutants from a given source category are emitted in quantities sufficient to warrant regulation through a standard of performance. Commenter further stated that the EPA recentl y faced a similar issue when prescribing final performance standards for a variety of sources of volatile organic compounds and SO 2 in the oil and gas sector. Commenter on the proposed version of this rule critiqued EPA's decision not to propose performance standards for CH 4 , NOx and other pollutants emitted by these same sources, arguing that EPA was legally required to regulate every pollutant emitted by oil and gas sector sources at more than de minimis levels. The EPA rejected these comments in the final rule, on the grounds that the Agency is collecting data on emissions of CH 4 through its GHG reporting r

ule with an eye toward taking additional steps if appropriate. Commenter further stated that the EPA acknowledged that small heaters and boilers in the oil and gas source category emit NOx and PM, but declined to propose or finalize standards for those sources based on a lack of information regarding the quantity of these emissions. Commenter further stated that these determinations demonstrate that EPA has discretion to decline to regulate pollutants such as N 2 O and CH 4 for new fossil fuel
- based EGUs where it lacks an adequate factual basis to do so and where it has strong reasons to conclude that such emissions are de minimis. **Response 2.1 -**  **123:** The EPA has a sound basis for not promulgating standards for CH 4 or N 2 O at this time. See preamble section III.G. **Comment 2.1 -**  **124:** One commenter (9515) stated that EPA should expand its proposed performance standards to encompass all greenhouse gases, using a metric of pounds of carbon dioxide equivalent. **Response 2.1 -**  **124:** See preamble section III. G. **Comment 2.1 -**  **125:** Commenter 5732 stated that the EPA's reading of Section 111, although textually correct, is too broad and would invite unhelpful scrutiny from the courts or worse, from Congress. Commenter further stated that the EPA seems to recognize that its reading of Section 111 is problematic. Commenter further stated that rather than address its concerns through purported Chevron gap
- filling, we recommend that EPA read Section 111 as allowing the Agency to regulate a pollutant only if it has been the subject of an endangerment finding. **Response 2.1 -**  **125:** The EPA has found, in the alternative, th at GHG’s (as defined in the 2009 Endangerment Finding) are a form of air pollution which may reasonabl y be anticipated to endanger public health or welfare, and that emissions from the source category cause or contribute to the air pollution which endanger s. See preamble section III.A.2
- 51

**Comment 2.1 -**  **126:** Commenter 9382 stated that the Congress never intended for the Clean Air Act to regulate Greenhouse Gases (GHGs). Commenter further stated that in fact, EPA's proposed CO 2 NSPS rulemaking is contrary to the Clean Air Act. Wh en EPA first established NSPS for new EGUs under Section 11l (b) in 1971, codified in 40 CFR Part 60, Subpart D and Da, the standards only

covered particulate matter (PM), sulfur dioxide (S02), and nitrogen oxides (NOx), each a criteria pollutant. Commente r further stated that criteria pollutants are those pollutants regulated under the Clean Air Act for which EPA has promulgated a National Ambient Air Quality

Standard (NAAQS). Commenter further stated that Title Iof the Clean Air Act contains a number of mechanisms to ensure that criteria pollutants from major sources are controlled and associated NAAQS maintained. Commenter further stated that the standards do not address or limit GHG emissions which are not criteria pollutants. Commenter further stated that the EPA's action falls outside its statutory authority because far from merel y revising the existing standards that apply to new EGUs, EPA is attempting to regulate CO 2 as if it were a criteria pollutant that Congress intended for Title I of the Clean Air Act to address. **Response 2.1 -**  **126:** The commenter is quite incorrect. There is no textual support for the commenter’s argument. Regulation under section 111 (a) and (b) is not limited to criteria pollutants

– it applies to “air pollutants” (CAA section 111 (a)(1)). CO 2 , and other greenhouse gases, are air pollutants under the Act. Indeed, the EPA has repeatedl y addressed emissions of non - criteria pollutants under that section. See e.g. 40 CFR Part 60 subpart G (standards of performance for HCl from nitric acid plants) ; subpart S (standards of performance for fluorides from primary

aluminum plants). Given that a unanimous Supreme Court held that section 111 applies to greenhouse gas emissions (as a ground for rejecting that federal common law can apply to those emissio ns), this commenter’s argument is without merit. See 131 S. Ct. at 2537
- 38. 

### 2.1.4 **Requirements Under CAA 111 Comment 2.1**  **- 127:**  Commenter 10106 stated that while it has been argued that there is limited commercial use of CCS for power plants, widespread commercial use is not a requirement to set standards under Section 111(b) of the Clean Air Act. Commenter further stated that it is plainly true that such widespread commercial use is not currentl y present only because these proposed rules are the first to require EGUs to reduce in carbon emissions. **Response 2.1 -**  **127:** The commenter is correct that a determination that a BSER is adequatel y demonstrated does not require prior full
- scale application of a s ys tem of emission reduction. See, e.g. Portland Cement Assn v. EPA , 486 F. 2d at 401
- 02. However, in this case, there is full
scale commercial demonstration of both pre
- and
- post - combustion carbon capture and sequestration. The pre
- combustion demonstration is from a gasification facility which is not generating electricity, but as explained at preamble section V.E.2 , the technology and its performance is readil y transferable to an electricity generating unit. See also NETL (2013) at pp. 192
- 467 (description of IGCC system with full and partial capture of CO 2 ). **Comment 2.1 -**  **128:** Commenters (9725, 10552 and 106 80) stated that the EPA arbitrarily uses two distinct and irreconcilable approaches for developing standards for fossil fueled EGUs. Commenters further stated that the standard proposed for natural gas combined cycle technology is based upon actual emissio n data from operating units while the standard proposed for coal2
- 52

base load technology

is based upon calculations for hy pothetical coal units using unproven CCS technologies. Commenters further stated that the result is a standard that can be met by over 95 percent of the operating natural gas combined cycle units and a standard that cannot be met b y a single existing coal base load unit, even those using newest and most advanced coal based technologies such as SCPC or I GCC. **Response 2.1 -**  **128:** The commenters are incorrect that the EPA’s approaches to setting the standards for coal
- fired and natural gas
- fired EGUs were arbitrary
. The standard s required different approach es for two reasons. First, the standards are based on fundamentally different sy stems of emission reduction . F or coal
- fired EGUs, the EPA determined that that the BSER is modern, efficient SCPC technology with partial CCS. Partial CCS is an add
- on control technology

that reduces emissions by removing CO 2 from the flue gas stream after combustion has occurred
. As a result, the EPA was able to determine an achievable emission rate for coal
fired EGUs b y calculating the maximum percentage reduction in CO 2 emissions that that can be obtained at a reasonable cost and appl yi ng that level of reduction to a conservative baseline emission rate for a SCPC unit. For base load natural gas fired EGUs, on the other hand, the EPA determined that the BSER is solely modern, efficient NGCC technology
. Unlike the standard for coal
- fired EGUs, the standard for base load natural gas
- fired EGUs is based on efficiency alone, not an add
- on control technology
. Furthermore , the efficiency of NGCC units can vary considerabl y due to a number of factors, including the diversity of turbine models and sizes on the market, variations from I SO co nditions at different facilities, and variations in load and cycling depending on how a facility is dispatched . Accordingl y, it was necessary for the EPA to assess actual emissions data from existing sources to capture the full performance range of NGCC te chnology

across the full spectrum of operating scenarios. The second reason for the different approaches is that CCS is an emerging technology , so there are few existing sources from which to obtain emissions data
. Incontrast, NGCC technology is well
- esta

blished. Where the EPA lacks actual emissions data, it is entirely reasonable for the EPA to use other methods to calculate a standard that will be achievable b y sources across the relevant industry. Indeed, Congress intended section 111 of the CAA to be t echnology
- forcing and thus was fully aware that the EPA would be faced with some situations in which a standard would be based on calculations and modeling rather than actual emissions data from existing sources. The final standard for coal
- fired EGUs can be readily achieved by

a modern, efficient SCPC unit equipped with partial CCS. **Comment 2.1 -**  **129:** Commenters (10039 and 10662) stated that the EPA states that for coal fired generation, CCS projects under development are part of the technical justification for its conclusio n that CCS is feasible BSER but for NGCC units the fact that a project is under development using CCS on a slipstream from an NGCC unit does not justify designating CCS as feasible BSER for NGCC units. Commenters further stated that it is irrelevant that the NGCC CCS project is a partial CCS project whereas the developmental projects for coal fired units are "full
- scale". Commenters further stated that the EPA cannot utilize projects under development as a basis for justifying CCS as BSER for coal fired uni ts and say that having a project under development is not a basis for justifying the feasibility of CCS as BSER for NGCC units. **Response 2.1 -**  **129:** The EPA disagrees with these comments. The EPA can rely on demonstration projects when determining if a s ys tem of emission redu ction is technically feasible and therefore adequatel y demonstrated. Case law from the D.C. Circuit confirms this.2
- 53

The commenters mischaracterize the reasons wh y the EPA finalized partial CCS as a component of the BSER for coal
- fired EGUs, but did not do the same for stationary combustion turbines. As the EPA explained in the preamble to the final rule, there are multiple demonstration projects, including a full
- scale CCS retrofit at the Boundary Dam facility in Canada, providing compelling evidence that partial CCS is technically feasible for coal
- fired EGUs. On the other hand, there is a single domestic example of CCS being operated on a NGCC power plant, with a handful of other international or planned projects. All of these CCS
- on -NGCC facilities have op erated at base load, steady - state conditions, much the way that coal
- fired boilers operate. However, many NGCC facilities, including those included within the EPA’s base load natural gas
- fired combustion turbine subcategory , operate as intermediate or load following units that start, stop, and cycle load more frequently . None of the CCS
- on -NGCC projects provide data on how CCS operates in these situations, and the EPA continues to believe that these are technical challenges that require further evaluation b efore the EPA can conclude that partial CCS is adequately demonstrated for NGCC units. **Comment 2.1 -**  **130:** Commenter 9034 stated that the EPA's BSER analysis should have taken into account CO 2 emissions generated b y combustion of the oil recovered, as required b y CAA Sectio n lll. Commenter further stated that the Competitive Enterprise Institute studied this issue and found that if a typical coal plant in compliance with EPA's proposed emissions standard sells its captured CO 2 for EORs, it would generate 1.3 million more kil ograms of CO 2 emissions per megawatt capacity annually than the plant would "save" using CCS. Commenter further stated that such a negative cost
- benefit is unreasonable and unacceptable. **Response 2.1 -**  **130:** See response in unit 6.3 of this RTC. **Comment 2.1 -**  **131:** Commenter 9507 stated that th e proposed standard would have the effect of foreclosing the future development of an y fossil fuel generation by most municipal utilities in many parts of the United States. Commenter further stated that this arbitrarily places public power utilities at a disadvantage with respect to economical and reliable electrical service. The basis for this comment, however, appears to be particularized, local concerns. City Utilities (CU) indicates that “municipal utilities such as CU are very limited in their authority to secure sufficient storage capacity in distant locations or to construct the necessary transportation infrastructure to support long
- term CCS. In our own case, for example, the Missouri Supreme Court has held that CU is prohibited from constructing a pipeline by lack of condemnation rights beyond our native counties. See City of Springfield ex rel. Bd. of Public Utilities of Springfield, MO v. Brechbuhler, 895 S.W.2d 583 (Mo. 1995). Thus, under controlling case law, CU can only transport captured CO 2 a distance of twenty miles from the source ” (comment p. 5). **Response 2.1 -**  **131:** The final standard of performance does not require any particular method of compliance, and the EPA has documented the availability of compliance alternatives not involving sequestration, which sh ould answer the commenter’s concern regarding availability of CO 2 transport infrastructure. **Comment 2.1 -**  **132:** Commenter 9507 further stated that its inability to achieve the standard because of lack of sequestration capacity or CO 2 transport infrastructure also has negativ e implications for its ability to substitute NGCC. This is due, according to the commenter, to the2
- 54

workings of the federal Power Plant and Industrial Fuel Use Act of 1978 6 , which has as a stated purpose: ”... to encourage and foster the greater use of coal and other alternate fuels, in lieu of natural gas and petroleum, as a primary energy source ”7 In order to achieve this purpose, Congress directed that : “Except to such extent as may be authorized under part B, no new electric powerplant may be constructed or operated as a base load powerplant without the capability to use coal or another alternate fuel as a primary energy source .” Compliance with these provisions is documented by a self
- certification process wherein the source owner certifies to the Secretary of Energy , among other things, that it: “... is not physically, structurally, or technologically precluded from using coal or another alternate fuel as its primary energy source.” Although originall y prohibited under this act, the commenter notes (correctly) that the statute has been amended to that new NGCC units are now allowed so long as the “no technological preclusion” prevents a switch to IGCC operation in the future. The commenter continues, “In practice, every

new NGCC unit constructed over the past three decades has been able to make an unabashed pro forma certification that it could, if called upon, convert to IGCC operation as required b y the Fuel Use Act. In the future, however, a utility that elects to construct an NGCC because they

are technologically

precluded from building a conventional coal or IGCC unit, would obviously

fail this test as well. “The commenter concludes that the act carries exemptions (the part B refe renced above) on certain grounds, including the inability to comply

with environmental standards. However, these exemptions are not self
- implementing and require a case - by
- case determination by the Secretary

of Energy

that the source is in fact incapable o f coal conversion and that no other generating options are reasonabl y available before allowing construction of the natural gas unit. Since such an exemption has ne ver – to the commenter’s knowledge

– been undertaken, “it is impossible to predict, a priori , whether and how such evaluations would fare in a future circumstance governed b y the environmental dictates of the proposed NSPS. Conceivably , however, such a future would require a DOE evaluation for innumerable new construction projects in lieu of the traditional pro forma certification process. At a minimum, EPA should document that the DOE has been adequatel y consulted and is prepared to manage the increased workload.” Comment of City Utilities of Springfield, Missouri pp. 5
- 6. **Response 2.1 -**  **132:** EPA appreciates this co mmenter’s thoughtful comment. As the commenter notes, the portions of the 1978 Act restricting use of natural gas b y electric utilities (and industrial users) have been repealed (in 1987). “As a result of the repeal, natural gas and oil could again be us ed to fuel large new baseload electric power plants, and restrictions on gas and oil
- burning industrial boilers, turbines, and engines were lifted. The FUA restrictions continued that had allowed industrial cogenerators to use natural gas if they met certain operating2
- 55

conditions. Restrictions were eliminated for all new facilities constructed after 1987.” 7 The result, again as the commenter notes, is that the FUA has not been any impediment to new NGCC construction. The commenter indicates its circumstances (were it to seek to install NGCC) would differ because it could not certify that it could convert to IGCC . However, the basis for the commenter’s statement does not relate to IGCC, but rather to the commenter’s (p rofessed) inability to transport and store captured CO 2 (see Comment p. 4 and previous comment summary and response immediately above). However, EPA has reasonabl y found that IGCC alone or with some small amount of natural
- gas co - firing can meet the stand ard of performance, without use of CCS. Therefore, this commenter would be situated like any other new NGCC facility which, as the commenter notes, ha s been able “to make an unabashed pro forma certification that it could, if called upon, convert to IGCC operation”. **Comment 2.1 -**  **133:** Commenter 0588 stated that the Clean Air Act Section 111 identifies four factors that the EPA must take into account when she determines the "best sy stem of emission reduction." Commenter further stated that they are: "cost," " non air quality he alth impact," "environmental impact," and "energy requirements." Commenter further stated that the EPA's proposed rule, on the other hand, identifies criteria for determining the best sy stem of emission reduction that differ significantly from the statuto ry

factors. Commenter further stated that the EPA's considerations are: "amount of emissions reductions," "costs," "expanded use and development of technology ," and "nationwide component." **Response 2.1 -**  **133:** The EPA’s determination of BSER here is based entirely on the enume rated statutory factors. As discussed at 79 FR 1465
- 66 and at III.H of the preamble to the final rule, the D.C. Circuit has held, with substantial support in the legislative history that an aspect of determining if a s ys tem of emission reduction is “best” includes whether the sy stem promotes technological innovation. Nonetheless, EPA’s determination of partial CCS as BSER for fossil fuel
- fired EGUs would be the same with or without consideration of this factor , given that post
combustion CCS is demonstrat ed in full
- scale commercial application and results in significantl y greater emission reductions that SCPC without some ty pe of carbon capture. **Comment 2.1 -**  **134:** Commenters (0495, 8501, 8966, 9201, 9423, 9650, 9661, 9765, 10017 and 10031) stated that the EPA has failed to m eet an essential requirement for establishing Section 111(b) New Source Performance Standards
- its explanation fails to show that CCS is the "best sy stem of emission reduction ... the Administrator determines has been adequately demonstrated". Commenter further stated that the proposed GHG NSPS is not a legally established standard and must be withdrawn. **Response 2.1 -**  **134:** The commenters are mistaken. See preamble sections III.H and V. detailing how the promulgated standard of performance reasonably implements the requireme nts of section 111 (a).

7 http://www.eia.gov/oil_gas/natural_gas/analysis_publications/ngmajorleg/repeal.html2
- 56

**Comment 2.1 -**  **135:** Commenter 9486 stated that this rulemaking does not meet the requirements of cost effectiveness as outlined in U.S. EPA's Best Sy stem of Emissions Reduction (BSER) assessment guidelines. **Response 2.1 -**  **135:** The EPA is unaware of any such document, and the commenter gave no citation to the document to which it is referring. Itis possible that the commenter (the Indiana Dept. of Environmental Management) meant to reference EPA guidance on Best Available Control Technology

(BACT), describing a top
- down p rocess for determining BACT under the Prevention of Significant Deterioration program and statutory provisions. Since BACT determinations are made on an individual rather than national basis, and are based on different statutory criteria, BACT determinatio ns and guidance have no immediate applicability here. (The CAA does specify

that BACT cannot be less stringent than any applicable section 111 standard of performance. CAA section 169 (3).) **Comment 2.1 -**  **136:** Commenters (9497 and 10017) stated that failing to review this NSPS earlier than eight ye ars after it becomes final would not afford an opportunity to plan and develop new coal plants in time to meet demand in the event that natural gas prices increase. Commenters had found that from the time an electric utility deci des to construct additional coal
- fired generation to the service availability

of such generation, eight to ten years elapsed time is normal; and the magnitude of elapsed time continues to increase. Commenters believed that initiating review no later than f

our ye ars after the rule becomes final would allow sufficient time to revisit the economic viability

of coal relative to natural gas prices and review the role of clean coal in the national energy

arena. **Response 2.1 -**  **136:** This comment is beyond the scope of the present proc eeding. **Comment 2.1 -**  **137:** Commenters (8022, 9201 and 9650) stated that the EPA has failed to satisfy the requirements of CAA Section 111(a)(i)(A) to assess and account for an y non - air quality and environmental impact and energy requirements from the proposed standard. **Response 2.1 -**  **137:** The E PA has carefully assessed those impacts. With respect to transport and sequestration of captured carbon, the EPA discusses at length why the regulatory schemes for CO 2 pipelines, and for Class VI and Class II injection wells, in combination with the repor ting and monitoring requirements of the subpart PP and RR standards, provide ample assurance that captured CO 2 will be safely transported and tracked to a sequestration site, will remain sequestered for geologic timeframes, and how the sub
- surface and sur face monitoring requirements of these respective regulations provide further empirical assurance that this is the case. Water use and energy requirements are discussed in section V. O.2. and 3 of the preamble to the final standard.
. **Comment 2.1 -**  **138:** Commenter 1959 stated that the Clean Air Act precedent is that the best sy stem of emission reduction is based on data from existing plants in the US and worldwide as appropriate. Commenter further stated in view of existing performance and what can be reasonabl y anticipated, we think the best sy stem is defined by improvements in thermal efficiency , an option that EPA has considered and rejected in this proposal.2
- 57

**Response 2.1 -**  **138:** The EPA does not agree for the reasons stated at section V.P.1 of the preamble to the final standards. **Comment 2.1 -**  **139:** Commenter 10031 stated that the EPA's determinations of BSER for utility steam generating units (coal
- fired boilers and IGCC) revising 40 CFR Part 60 Subpart Da) and natural gas
- fired stationary combustion turbines (revising 40 CFR Part 60 Subpart KKKK) are improper and unlawful under the governing parameters of the Clean Air Act (CAA), other Federal statutes and applicable case law. **Response 2.1 -**  **139:** EPA disagrees. See preamble section III.H and V. **Comment 2.1 -**  **140:** Commenters (10017, 10030 and 10092) stated that a national standard such as the NSPS must b e independentl y, economically and technically achievable throughout the country , not just in limited areas, referring to the uneven availability of EOR in many

parts of the country . Commenters further stated that any other approach is inconsistent with the Clean Air Act. Commenters further stated that the EPA should not use future projects that may not be in operation for ye ars and thus only have optimistic performance projections and hopeful expenditures estimates without considering the country
- wide econo mic and technical feasibility of these projects. **Response 2.1 -**  **140:** There are no geographic constraints on a fossil fuel
- fired EGU meeting the promulgated standard. There are alternative compliance pathways not involving CO 2 capture should a facility

wish to site in a locat ion without access to sequestration, EOR, locating proximate to sequestration sites and transmitting electricity to more distant customers, and is not otherwise prohibited b y s tate law from siting. Commenters have not identified any such situation. **Comment 2.1 -**  **141:** Commenters (9197 and 10051) stated that the EPA cannot require the use of emissions control technologies that are "purely theoretical or experimental." Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427, 434 (D.C. Cir. 1973). Commenters further stated that the standards of performance, established under section 111 of the CAA, must be based on emission control technology

that is currentl y available and not cost prohibitive to the source category. Commenters further stated that CCS is not currently available on a commercial scale; therefore the proposed regulation is ahead of the technology development. **Response 2.1 -**  **141:** CCS is currently available on a commercial scale for both pre
- and post
combustion capture of CO 2 . Nor is this a legal requisite. See Portland Cement , 486 F. 2d at 392 (“if actual tests are not relied on, but instead a prediction is made, its validity as applied to this case rests on the reliability of [the] prediction and the nature of the assumptions”). The EPA relies here on performance of full
- scale commerci al plants post
- combustion CO 2 capture and sequestration (pre
- combustion CO 2 capture and sequestration is likewise commercially demonstrated, and reasonably transferrable to the EGU sector) . This information is supplemented by

other operation at smaller sc ale (which may reasonabl y be scaled up, as discussed at section V. G.3 of the preamble to the final rule ), and other information. Accordingl y, the EPA is not making purel y speculative or experimental assertions here, but rather finding with substantial rec ord support that partial CCS is BSER which is adequatel y demonstrated.2
- 58

**Comment 2.1 -**  **142:** Commenter 9423 stated that promoting and advancing control technology that cannot be defended on the merits of technological and economic feasibility is not the purpose of CAA section 1 11. Commenter further stated that the excerpt from the Senate Committee Report to the 1970 CAA amendments that EPA included in the preamble of the proposal (79 FR 1464) clearl y states the purpose of section 111: "The overriding purpose of this section woul d be to prevent new air pollution problems, and toward that end, maximum feasible control of new sources at the time of their construction is seen by the committee as the most effective and, in the long run, the least expensive approach." Commenter further stated that the EPA has not demonstrated that the proposed rule satisfies the Senate committee's stated purpose of FCAA section 111. **Response 2.1 -**  **142:** EPA’s standard of performance of 1400 lb CO 2 /MWh is fully defensible on grounds of technical feasibility and economic rea sonableness. See sections V.D.F.G. and H to the preamble of the final rule. **Comment 2.1 -**  **143:** Commenters (9423 and 10034) stated that the proposed rule runs afoul of prior court interpretations (Sierra Club v. Costle, 657 F.2d 298) related to BSER, because the proposed standard gives a competitive advantage to one state over another. Commenters further stated that the proposed rule creates advantages for states that have suitable geologic formations and oil reservoirs for CCS; that currently utilize liquid fuels; that have adequate natural gas infrastructure to support additional NGCC turbines; and that are served with power distribution grids that do not require frequent startups, shutdowns, and reduced load (SSRL) operations. Commenters further stated that the EPA attempts to justify proposing a rule that creates clear winners and losers between states b y referencing International Harvester Co. v. EPA, 478 F. 2d at 930 as a basis to promulgate standards that not every new source in the category would be able to achieve. **Response 2.1 -**  **143:** The commenter’s factual premise is mistaken. There are alternative compliance pathway s available under the final standards which do not involve CO 2 capture and which have no associated geographic constraints. Moreover, commenters have failed to identify any instance where a new coal
- fired EGU is contemplated for construction without access to sequestration or EOR (including within reasonable distance thereto, such as 100 miles from such repositories) 8 , cannot use existing transmission capacity to provide electricity

to remote customers while locating proximate to sequestration sites, and is in a state which has not already restricted new coal construction. **Adequately Demonstrated Comment 2.1**  **- 144:**  Commenters (9780 and 10098) stated that the EPA has an affirmative burden to establish that an emission reduction sy stem is adequatel y demonstrated. **Response 2.1 -**  **144:** The EPA agrees, and has satisfied that burden in the administrative record here.

8 This is the distance EPA in cluded for cost estimation purposes. See preamble section V.I.5.2
- 59

**Comment 2.1 -**  **145:** Commenters (9201, 9426, 9472, 9666, 9683, 9780, 10098, 10100, 10618 and 10660) stated that EPA's deter mination that CCS I s "Adequatel y Demonstrated" is not based on verified data. Commenters further stated that since no commercial
- scale power plant has ever used CCS, EPA has no operating or performance data to work with. Commenters also stated that instead , EPA relies on subjective reports of project advancement with no way for the public to determine the credibility

of that information. Commenter 10098 continues with a critique of the use of the FirstGen 2.0 project, questioning the lack of public informat ion about the stage of development and EPA's rationale for stating that it is in advanced stages of planning. The commenter provides the further example of SaskPower's Boundary Dam. **Response 2.1 -**  **145:** Boundary Dam is a commercial, full
- scale power plant using full CCS. Dako ta Gasification likewise is a full
- scale gasification plant using full CCS. Dakota Gasification is not a power plant but the EPA has explained how the CCS technology it uses is transferable to an IGCC unit , should a source pursue that alternative complian ce pathway . In addition, there are alternative compliance pathways for meeting the promulgated standard of performance which do not involve either post
- or pre - combustion carbon capture. These alternative compliance pathway s ( SCPC or IGCC co - burning a su pplemental fuel) are feasible, well demonstrated , would fall in the same cost range as the BSER, and do not pose adverse collateral effects on health or nonair media, and do not pose undue energy burdens. IGCC also involves an advanced technology . So the alternative compliance pathway s here, should they be utilized, also are congruent with many of the goals of section 111 (a) . The EPA’s BSER determination is also supported by information from smaller
- scale operating projects at coal
fired power plants. The EPA consequentl y does not accept the commenters’ statements that the BSER determination rests on subjective characterization of not
- completed projects. **Comment 2.1 -**  **146:** Commenters (8966, 9201, 9381, 9403, 9472, 9593, 9665, 9666, 9780, 10031 and 10088) stated that the C ourts have made it clear to EPA that it may not set a performance standard for new sources based on untested or theoretical technologies that have never been demonstrated at a commercial scale. Commenters further stated that under applicable precedent, an ade quatel y demonstrated system is “one which has been shown to be reasonably reliable, reasonabl y efficient, and which can reasonably be expected to serve the interests of pollution control without becoming exorbitantly costly in an economic way ". Commente rs also stated that the court in another relevant NSPS case stated that "EPA may not base its determination that a technology

is adequatel y demonstrated or that a standard is achievable on mere speculation or conjecture .... ” Commenters stated that this interpretation of the statute is bolstered by the fact that the Act requires EPA to determine that the sy stem of emission reduction "has been" adequatel y demonstrated. Commenters further stated that the use of the past tense in the statute suggests that EPA cannot rel y upon projected future technology developments or demonstrations to support this determination. Rather, it clearl y indicates that EPA may rel y only on those emission reduction s ys tems that have already been demonstrated to work. **Response 2.1 -**  **146:** Commenters maintained that the EPA can onl y show that a BSER is “adequatel y demonstrated” using operating data from full
- scale commercial operation of the2
- 60

technology . This is mistaken. There is no such requirement in the text of section 111 (a); “adequatel y demonstrated” is a capacious term which does not dictate how the EPA must assess technical feasibility , cost, nonair impacts, and energy requirements. Nor have courts so held. Since the very

inception of the CAA section 111 program, courts have noted th at “[i]t would have been entirel y appropriate if the Administrator had justified the standard, not on the basis of tests on existing sources or old test data in the literature, but on extrapolations from this data, on a reasoned basis responsive to comment s, and on testimony from experts and vendors....” Portland Cement v. Ruckelshaus , 486 F. 2d at 401
- 02. More recentl y, the D.C. Circuit stated: “Our prior decisions relating to technology
- forcing standards are no bar to this conclusion. We recognize here, as we have recognized in the past that an agency may base a standard or mandate on future technology

when there exists a rational connection between the regulatory target and the presumed innovation.” API v. EPA , 706 F. 3d at 480 (D.C. Cir 2013) (citing the section 111 case Sierra Club v. Costle , 657 F. 2d at 364). The Senate Report to the original section 111 likewise makes clear that it was not intended that the technology “must be in actual routine use somewhere.” Rather, the question was whether the tec hnology would be available for installation in new plants. S.Rep. No.9
- 1196, 91 st Cong., 2d Sess. 16 (1970). In an y event, as discussed above, Boundary Dam

– a full
- scale commercial coal
- fired power plant operating with full CCS
-- has provided data from the operation of the CCS equipment itself. L ikewise, Dakota Gasification operates full CCS at full commercial scale , should a source pursue this alternative means of compliance
. **Comment 2.1 -**  **147:** Commenter 9780 (EEI) states that section 111 (a) sets forth two requirements: that a s ys tem be adequatel y demonstrated and that standards based on performance of that sy stem be achievable. The commenter maintains that EPA has improperl y conflated these two anal ytically distinct requirements. The commenter further argues that all of the D.C. Circuit cases relied on by EPA for the proposition that partial CCS is adequately demonstrated

– Essex, Portland Cement 1, and Sierra Club
-- in fact dealt with the later issue

– whether a standard based on performance of an adequatel y demonstr ated system was in fact achievable. The commenter suggests strongl y that to be adequatel y demonstrated, a s ys tem must be in full
- scale commercial operation, and that partial CCS is not. Hence, the argument goes, partial CCS fails the threshold inquiry of whether it is adequately demonstrated. The commenter points to n. 157 of Sierra Club (the discussion of pilot scale dry scrubbing) as judicial support (pp. 35
- 42). **Response 2.1 -**  **147:** EPA agrees with the commenter that there are two anal yt ically distinct steps here, and the y are the ones the commenter indicates: a system must be adequately demonstrated, and if so, a standard of performance reflecting proper operation of that best sy stem must be achievable. However, as noted in the previous comment response, EPA disagrees t hat a s ys tem must be in full scale operation before it can be adequately demonstrated. The statute does not contain such a requirement on its face, legislative history states otherwise, and caselaw does not establish the point. The commenter notes that de cided cases do not support the proposition that less than full
- scale operation will not support a determination that a system is demonstrated adequatel y. It is correct that Essex, Portland Cement I , and the portion of Sierra Club dealing with standards fo r particulate from baghouses (657 F. 2d at 380
- 84) dealt with the issue of achievability of a2
- 61

standard. Nonetheless, both Portland Cement and Sierra Club contain unqualified statements that a sy stem of performance can be adequatel y demonstrated

– the sy st em, not the level a sy stem can achieve
-- based on less than full scale performance. See 486 F. 2d at 391 (“Section 111 looks toward what may fairl y be projected for the regulated future, rather than the state of the art at present, since it is addressed to standards for new plants .... The Senate Report made clear that it did not intend that the technology ‘must be in actual routine use somewhere.’ The essential question was rather whether the technology would be available for installation in new plants”); 657 F. 2d at 341 n. 157 (“although it is conceivable that a particular control technique could be considered both an emerging technology and an adequatel y demonstrated technology, there is inherent tension between the two concepts” ). In addition, the EPA reads this last quoted excerpt from Sierra Club to allow for the possibility that an “emerging technology” can be adequatel y demonstrated). As the commenter points out, Sierra Club goes on to hold (in the same footnote) that the data from pilot scale use o f dry scrubbing were insufficient to show that a standard based on that technology ’s performance was achievable and adequately demonstrated (ironically conflating the two concepts in the manner criticized b y the commenter). The court did point to contract or statements that the technology hadn’t been demonstrated at full scale, that there was nothing in the record showing performance of dry scrubbing on harder
- to - burn t ypes of coal, and that EPA had not explained adequately how pilot plant performance could be scaled up (noting that such explanations were possible, as for baghouses controlling particulate). This fact
- specific discussion indicates that such an explanation is possible, and certainl y does not stand for the proposition that full
- scale performan ce of a technology is a condition precedent to the technology ’s being considered to be “adequatel y demonstrated”. Finally , as noted in the previous response, both pre
- and post
- combustion partial CCS (indeed, full CCS) have been demonstrated at commercial scale. Even under the commenter’s constrained approach

– with which EPA does not agree

– this is sufficient to show a technology is demonstrated adequately
. **Comment 2.1 -**  **148:** Commenter 9780 (EEI) maintained that EPA has ignored the National Lime opinion, which states that an NSPS must account for all normal operating variability so that a new source installing the model technology and operating it properl y would be able to achieve the emission standard. **Response 2.1 -**  **148:** EPA has carefull y considered operational variability in adopting the st andard of 1400 lbs. CO 2 /KWh. See section V. J to the preamble to the final rule. **Comment 2.1 -**  **149:** Commenter 9780 (EEI) maintains that EPA has failed to address CAA section 112 (j). This provision authorizes EPA to grant a conditional waiver from NSPS to use innovative tec hnology

which is eventually

capable of meeting a performance standard. Partial CCS is such a technology , in the commenter’s view. **Response 2.1 -**  **149:** The commenter is incorrect in its characterization of partial CCA as merely an emerging technology

not yet capable of operati ng successfull y. It is being operated successfull y at full scale; see also NETL (2015) p. 36 (“ [t]he capture and CO 2 compression technologies have commercial operating experience with demonstrated ability for high reliability”) ; see also Global CCS institute, “The Costs of CCS and Other Low
- Carbon2
- 62

Technologies” (2015) p. 1 (CCS is a “cost competitive power sector emissions reduction tool”)
. That being the case, there is no reason to invoke section 112 (j) to authorize its use, but base BSER on anoth er s ys tem which is less effective at controlling CO 2 emissions. **Comment 2.1 -**  **150:** Commenters (9780 and 10618) stated that EPA should revise its proposed rule by proposing a performance standard whose achievability can be demonstrated by

facilities that have not received ass istance under federal programs that are explicitly designed for undemonstrated technologies. Commenters further stated that in doing so, it will be overwhelmingly

apparent that CCS technology has not been adequatel y demonstrated and that high efficiency

ge neration technologies are the BSER for fossil fuel
- fired electric generation units. **Response 2.1 -**  **150:** Comments related to the EPAct05 are addressed later in this chapter. The short of it is, however, that the standard of performance adopted for all ty pes of fossil fuel
- fir ed power plants are achievable even without consideration of facilities receiving any t yp e of assistance or tax credit under EPAct05. **Comment 2.1 -**  **151:** Commenters (10108 and 10087) stated that in Sierra Club v. Costle, for example, the D.C. Circuit upheld EPA's determinatio n that optimization of flue gas desulfurization sy stems could achieve higher rates of sulfur dioxide removal than those that were then being deplo yed at EGUs. See 657 F.2d 298, 364 (D.C. Cir. 1981) ("Recognizing that the Clean Air Act is a technology
- forci ng statute, the commenter believe EPA does have authority to hold the industry

to a standard of improved design and operational advances, so long as there is substantial evidence that such improvements are feasible"); see also Portland Cement Ass'n v. Ruck elshaus, 486 F.2d 375, 391 (D.C. Cir. 1973) ("[EPA] may make a projection based on existing technology "). **Response 2.1 -**  **151:** The EPA agrees that a determination of BSER, and a standard reflecting performance of that best sy stem, need not be based on performance of an existin g facility, both based on the text of the statute, its legislative history , and applicable caselaw. **Comment 2.1 -**  **152:** Commenter 10031 stated that in its determination of BSER for Subpart Da (coal) units, EPA makes much of its "key factors''
- emission reductions, technical feasibility , costs and encouragement of technology
- in essence making them the dispositive factors in the anal ys is. Commenter further stated that the EPA disqualifies "highly efficient new generation,'' like supercritical or ultra
- supercritical boilers or modern, well
- performing IGCC, based largel y on its determination that such technology produces no s ignificant reductions of CO 2 or incentive for technological innovation. Commenter also stated that EPA produces no justification, under the express terms of the statute or in any Court decision that calls for the elimination of a technology

simpl y because it does not comparatively produce as many

reductions or encourage the same amount of innovation. Commenter stated that to be sure, these are factors to be weighed in the ultimate calculus of determining the BSER for a specific source subcategory . But the r eal point is that EPA must first determine
- (i) whether a s ys tem has been adequately demonstrated; and (ii) the achievable emissions level(s) for the adequatel y demonstrated sy stem - before it can start its qualitative "disqualification" anal ys is.2
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**Response 2.1 -**  **152:** EPA has not engaged in any a priori qualitative disqualification anal ys is. EPA selected as BSER a demonstrated technology available at reasonable cost without collateral adverse impacts on other environmental media which achieves greater emission reductions than SCPC alone. See section V.P.1 to the preamble to the final rule. **Comment 2.1 -**  **153:** Commenter 9514 stated that "Adequatel y demonstrated" does not mean that all existing sources are able to meet the requirement, see Nat'l Asphalt Pavement Ass'n, 539 F.2d at 785
- 86, nor does it require the available technology to be in active use at the time of the rulemaking. See Portland Cement I , 486 F.2d at 391. Rather, "[t]he Administrator may make a projection based on existing technology , though that projection is subject to the restrai nts of reasonableness and cannot be based on "cry stal ball" inquiry ." Commenter further stated that the question of availability is partially

dependent on 'lead time', the time in which the technology will have to be available. Commenters also stated that if actual tests are not relied on, but instead a prediction is made, "its validity . . . rests on the reliability of [the] prediction and the nature of [the] assumption." Portland Cement I , 486 F.2d at 391
- 92 (citing and quoting Int'l Harvester v. Ruckelsh aus, 478 F.2d 615, 629 (D.C. Cir. 1973)). **Response 2.1 -**  **153:** The EPA agrees with the bulk of this comment. A new source performance standard, of course, takes effect immediately , so considerations of lead time must be mindful of that possibility . See Portland Cement , 486 F . 2d at 391
- 92 (“the question of availability is partiall y dependent on ‘lead time’, the time in which the technology will have to be available. Since the standards here put into effect will control new plants immediately, as opposed to one or two years i n the future, the latitude of projection is correspondingl y narrowed.”). **Comment 2.1 -**  **154:** Commenter 10952 stated that the EPA's reliance on NRDC v EPA is equally off point. Proposal at 1467 citing NRDC v EPA, 489 F.3d 1364, 1376 (D.C. Cir. 2007). Commenter further stated that this case centered on establishing Section 112 standards for existing composite wood production, where cost is not an issue, and had nothing to do with establishing Section 111 NSPS where, as EPA notes, the technology must be adequatel y demonstrated an d reasonable costly . Commenter also stated that in summary , neither NRDC v. EPA nor an y other legal authority cited in this proposal stand for the preposition that an NSPS can relegate the siting of new facilities only within a few select areas of the nati on. Commenter stated that in fact an y NSPS that geographically prohibits sources from locating throughout major portions of the country contradicts the statute and its legislative intent, and is therefore impermissible. **Response 2.1 -**  **154:** The EPA has explained that the final standard of performance does not impose geologic constraints. Sequestration capacity is available in man y areas of the country
. EOR opportunities are also available in man y areas. Dedicated pipelines for CO 2 exist and their capacity is increasing. Sources can locate in areas with sequestration capacity and service a wide area by transmitting generated electricit y via grid (so
- called coal
- by
- wire) . Moreover, many states already do not allow new coal
- burning capacity within their borders.2
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If a new fossi l
- fuel burning EGU were to locate in an area other than any of the above, then there are alternative pathway s to compliance which do not involve CO 2 capture and sequestration which are available at reasonable cost and without collateral impacts and which are not geographically

constrained. With regard to the Pl ywo od MACT case ( NRDC v. EPA , 489 F. 3d at 1376), the case holds that EPA did not have to create a subcategory for a particular plant which could not comply with a technology
- based standard using the technology (enclosure and capture) on whose performance the standard was predicated, in part because other means of compliance were available. That is very similar to the facts here, as just stated. **Comment 2.1 -**  **155:** Commenter 9666 stated (p. 20) that “to be adequately dem onstrated for all sources within a category ..., a technology must be available for each source ty pe to which the standard will appl y.” The commenter maintains that the proposal fails to do so, in contrast with EPA’s 2005 proposed revisions to the NSPS for Subpart Da units, where EPA rejected supercritical boiler design, IGCC technology , and the use of clean fuels as potential bases for its revised standards due in part to the unavailability of these options across source types to which the standards would a

pply . 70 Fed. Reg. 9706, 9712, 9714, 9715 (Feb. 28, 2005). **Response 2.1 -**  **155:** First, partial CCS is available to both PC and (if an alternative compliance pathway is selected) IGC C plants. The commenter’s concern that partial CCS might be geographically

constraining for som e new sources (a h ypothetical facility locating in one of the few areas without sequestration capacity , EOR opportunities, access to sequestration and access to sufficient transmission capacity for adjoining areas, and in a state not already barring new co al construction) is misplaced, since other compliance paths are available to such a source which are not constrained. It is also not clear that the issue of geographic constraints can be raised in the absence of an y indication or objective indicia that an affected source would locate there. EPA also does not believe that the comparison with the 2005 proposal is germane, since the promulgated standard of performance is achievable by every affected new source. **Comment 2.1 -**  **156:** Commenter 9396 stated the premise of the stand ard is that “EPA ... can make reasonable projections of what technology will be available to the regulated industry in the future and use that estimated potential availability for standard setting.” (AFFORD Comment p. 10). The commenter continues that “EPA is wrongl y conflating adoption of proven, reliable, cost - effective, “adequately demonstrated” and “achievable” technology with the ability

to force technology

advancement by

requiring adoption of a technology still in development.” I d. he EPA's decision to substitute technological feasibility for the statutoril y required test of adequatel y demonstrated suggests that emissions controls no longer have to be proven, they just have to be feasible a much more subjective evaluation. Commenter further stated th at the BSER must be adequatel y demonstrated today , not at some date in the future. Commenter further stated that if EPA can pick and choose certain technologies and processes for CO 2 , by simply declaring them to be feasible, the Agency can appl y this metho dology to other pollutants and industries with an ability

to eliminate production processes and even products if the Agency designates a more suitable substitute that it deems feasible. **Response 2.1 -**  **156:** The commenter is largely incorrect. First, as a matter of law, a BSER determination does not require that a technology be in use, or is use at commercial scale, or in2
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use in the industry

in question. Portland Cement , 486 F. 2d at 391; Lignite Energy Council, 198 F. 3d at 933. That is, it is possible for such a technology to be BSER “adequately

demonstrated”

– considering the feasibility of the technology , its cost, any nonair quality health and environmental issues, and energy requirements. The nature of information available may differ for less utilized systems of control, see 657 F. 3d at 348 (and next comment response), and any technical conclusions drawn by EPA must have a sound engineering or other objective basis, and not be merel y speculative. In addition , as the commenter properl y notes, lead time considerations are part of the calculus: the new source performance standard applies to the next plant to be built and must account for that fact. Portland Cement , 486 F. 2d at 391
- 92. The EPA has carefull y co nsidered all of those issues here. **Comment 2.1 -**  **157:** Commenter 9396 stated that the D.C. Circuit Court of Appeals has found that new technologies must meet far higher standards to assure that the technology is achievable by industry , particularl y when the deplo ym ent of the technology is very limited. **Response 2.1 -**  **157:** The co mmenter cites to Sierra Club ’s discussion at 657 F. 2d 348, which involved issues posed when BSER is based on a newer, less tested technology , a discussion of which the EPA is mindful (although the discussion in the opini on is dicta ). The court stated, “We do not confront the situation where EPA has set a standard at a particular level believed necessary to promote a new technology , even though the agency ’s regulatory anal ys is demonstrated that another level of control wa s optimal, after considering all relevant factors apart from the new technology ,. In such a case our close scrutiny of the factual basis for the standard would involve a balance: we would have to weigh the magnitude of the standard’s departure from the le vel of control otherwise indicated by the agency ’s regulatory

anal ys is against the weight of the support in the record that substantial benefits would eventuall y accrue from adjusting the standard on the basis of the new technology . The greater the imprint of the new technology

on the final rule, the more demanding our review of the evidence about the potential benefits and capabilities of new technology . By the very nature of its newness, it would be inevitably

harder for EPA to acquire as precise and co mpete information about the emerging technology , thus the difficulty of justifying a standard that diverges from a level determined b y weighing cost, energy , and environmental effects of the best presently demonstrated technology , solely to account for new technology , should provide built
- in safeguards against overuse of such a justification .....”. The EPA is not justifying the final standard of performance because it is a new emerging technology . Instead, rel ying on the statutoril y specified criteria for d etermining if a s ys tem of control is “adequatel y demonstrated”

– feasibility , cost, non - air quality impacts, and energy requirements

– the EPA is finding that partial post - combustion CCS , used by a well
- designed, maintained, and operated SCPC, satisfies those criteria. The EPA further is mindful of the same court’s holding that these statutory factors “include within their ambit subfactors such as technological innovation.” Id. at 346. However, as noted in the preamble, the EPA’s choice of partial CCS a s BSER would be the same whether or not encouraging an innovative technology were considered. **Comment 2.1 -**  **158:** Commenter further stated that to designate a technology BSER, meaning it is both adequatel y demonstrated and achievable, the full variety of plant configurations must be able to meet the standard in all parts of the country at the time of proposal. EPA must consider2
- 66

the representativeness for the industry as a whole of the tested plants on which it relies. Commenter further stated that the court held that EPA's pro posed standards in National L ime could not be sustained because the record does not support the achievability of the promulgated standard for the industry

as a whole. **Response 2.1 -**  **158:** The commenter is correct that to be “achievable”, a standard of performance must account for normal operating variability when a means of control is properly designed and operated. National Lime I , 627 F. 2d at 432 and n. 46. See preamble section V.J. **Comment 2.1 -**  **159:** Commenter 9396 maintained (AFFORD p. 18) that EPA’s designation of CCS as BSER impermissibl y “redefines the source” due to the extreme over
- reliance on technology

promotion. **Response 2.1 -**  **159:** Given that the final standard may be achieved by

means other than CCS, this comment is misplaced. **Comment 2.1 -**  **160:** Commenters (7977, 9396 and 9507) stated that the EPA must consider the key factors in Section 111, including technology , cost, emissions reductions, non
- air quality environmental factors and energy requirements. Commenters further stated that the EPA goes a step further in this rule by asserting the discretion to vary weighting d epending on the source category in making a BSER determination. Commenters further stated that the EPA gives inordinate weight to technology feasibility

and emissions reductions for coal while ignoring the energy penalties inherent with CCS and under
- weighting costs of CCS. Commenters further stated that the EPA over
- weights the cost factor for natural gas while downplaying technology advancement and emissions reductions for natural gas. **Response 2.1 -**  **160:** EPA has substantial discretion to weigh the various statutory factors, and of course there is no algorithm determining how that weighting occurs rule
- by
- rule. Here, as explained in detail in section V of the preamble to the final rule, EPA has carefull y considered all of the enumerated statutory factors, including giving careful consideration to the cost of the standard, and considering the issue of parasitic loads in its consideration of energy requirements (see preamble section V.O.3). **Comment 2.1 -**  **161:** Commenter 10097 stated that the EPA has not (and cannot) explain the dramatic departur e from the technology development timelines and milestones developed b y this administration and described in the Task Force report, especiall y with input from DOE whose knowledge and expertise in these areas of technology development dwarfs EPA's, to conclude carbon capture is adequately demonstrated. **Response 2.1 -**  **161:** The task force report cited by the commenter involved full CCS, not partial. EPA has also carefull y considered the views and latest publications of the DOE in developing this final standard (for example, care full y coordinating with DOE to use the most recent cost estimates, reflecting actual vendor quotes for the Shell Cansolv technology , which is in present commercial use at the Boundary Dam facility). **Comment 2.1 -**  **162:** Commenters (8964, 8969, 9671, 9672 and 9736) stated that it is impossible to estimate possible compliance costs for impacted municipal utilities in advance of EPA issuing proposed standards for existing units (under Sec. 111(d)), decisions made by EPA and b y the2
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states will ultimately

impact compliance costs and the overall cost
- effectiveness of an y standards for existing units. Commenters further stated that the EPA's assumptions in the new unit rule about the availability

of CCS are unreasonable and unproven. Commenters urged EPA not to adopt these assumptions in the existing unit rule in light of the agency's assertion that it is seeking cost
- effective and flexible solutions. **Response 2.1 -**  **162:** EPA explains in section V. H and I to the preamble to the final rule wh y the costs of the rule are reasonable. Moreover, estimates of th ese costs do not require knowledge of emission guidelines for existing sources. Rather, the cost of BSER is an entirely separate exercise. **Comment 2.1 -**  **163:** Commenter 9507 stated that the EPA is attempting to implement a standard which is not achievable by all new units in all sectors and geographical reaches of our industry
. Commenter further stated that these criteria must be met in order for a technology
- based standard to have valid nationwide applicability
. **Response 2.1 -**  **163:** The commenter is incorrect. As stated in other responses, a new fossil fuel
fired power plant could locate in an y domestic site and meet the promulgated NSPS, either by using the BSER or by

utilizing a non
- carbon capture dependent alternative compliance path. **Comment 2.1 -**  **164:** Commenters (0588, 3862, 8501, 9194, 9197, 9201, 9594, 9734 , 10017, 10023, 10043, 10051, 10391, 10396, 10398 and 10520) stated that CCS Has Not Been Adequatel y Demonstrated. Commenters further stated that the proposed GHG NSPS rule also exceeds EPA's regulatory authority because EPA's determination that partial CC S is the BSER for new fossil
- fired EGUs and IGCC units is significantly flawed. Commenters further stated that Section 111(a)(1) requires that a standard of performance be adequatel y demonstrated (taking into account the cost of achieving such reduction an d an y non - air quality health and environmental impact and energy requirements). Commenters further stated that he United States Court of Appeals for the D.C. Circuit defined an adequatel y demonstrated system as one which has been shown to be reasonably rel iable, reasonably

efficient, and which can reasonabl y be expected to serve the interests of pollution control without becoming exorbitantly costl y in an economic or environmental way . Commenters further stated that IGCC paired with partial CCS does not and cannot meet this standard. **Response 2.1 -**  **164:** The EPA agrees that the relevant decision factors under section 111 (a) are technical feasibility , cost, non - air health and environmental impacts, and energy considerations. As explained in the preamble to the final rule, and i n other comment responses, the EPA has shown that partial CCS is “reasonabl y reliable, reasonably efficient without being exorbitantly costly in an economic or environmental way .” Essex Chemical , 486 F. 2d at 433. **Comment 2.1 -**  **165:** Commenter 9193 stated that there is no certainty that commerciall y viable CCS technology

will be available to proposed coal power plants any time in the near future; and, therefore, it should not be relied upon in setting the New Source Performance Standard. **Response 2.1 -**  **165:** EPA stated at proposal that the Boun dary Dam facility

was about to start operating (see e.g. Jan, 2014 TSD at p. 18) , and shortly thereafter the plant commenced successful operation at commercial scale.2
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**Comment 2.1 -**  **166:** Commenter 10023 stated that the "extensive literature record" EPA cites in support of its adequate demonstration finding actually recognizes that CCS is not ready for widespread implementation. Commenter further stated that the current development status of CCS is not similar to that of selective catal yt ic reduction (SCR) when it was first inc orporated in an NSPS. Commenter further stated that in 1997, when SCR was first identified as BSER for NOx, approximately

4,000 MW of coal
- fired capacity in the U.S. was equipped with SCR, in addition to substantial international experience. **Response 2.1 -**  **166:** As explained i n section V.G.3 to the preamble to the final rule, the EPA has more evidence here than was available for the baghouse
- based NSPS for this industry upheld as adequatel y demonstrated in Sierra Club , as the baghouse standard in Sierra Club was justified based largely

on less than full scale operation. See 657 F. 2d at 380 (there was only “limited data from one full scale commercial sized operation”) , 376 (“the baghouses surveyed were installed at small plants”), and 341 n. 157. Moreover, n either EPA, nor an y court, has stated that ‘4,000 MW’ of capacity, or some other predetermined volume of operating history, is required for a technology

to be considered demonstrated. See preamble section V.G.1 and other comment responses. The record for each NSPS must justify the standard selected, and EPA has explained here its basis for selecting post
- combustion CCS as BSER. **Comment 2.1 -**  **167:** Commenter 3179 stated that the EPA believes that carbon capture and storage technology

will become more viable through this propo sed new rule, the coal industry is not confident that this is an option due to the large expense, and, without exploring incremental improvements, may

actually hamper new technology . Commenter further stated that if they are forced to invest in this new te chnology , the result may be the closing of plants, and thus, the loss of good
- paying jobs in Western Colorado, and potentially increased electricity

costs across our country , affecting our citizens. **Response 2.1 -**  **167:** See preamble section V.L. **Comment 2.1 -**  **168:** Commenter 10024 stated that the EPA has utilized the past reports of the Intergovernmental Panel on Climate Change (IPCC) as a key component in its justification for regulation of greenhouse gases including carbon dioxide, it is totally and arbitrarily

ignoring the IPCC's evaluation on the commercial availability of Carbon Capture and Sequestration at a utility
- scale. Commenter further stated that the CCS in the view of this panel of experts is neither commerciall y demonstrated nor available. **Response 2.1 -**  **168:** The panel was not addressing partial CCS when it made these statements, but rather full CCS which is not the basis for the promulgated standard. **Comment 2.1 -**  **169:** Commenter 9210 (Nat’l Mining Ass’n) states (pp. 32
- 3) that EPA’s historic interpretation of section 111 should (or perhaps, must) be adopted here. That fra mework, according to the commenter, is that the agency first determines a BSER that has been adequatel y demonstrated for all sources with the source category considering the cost of installing and operating the control s ys tem, as well as nonair quality imp acts and energy

requirements. The next step is to calculate the degree of emissions reduction that is achievable through the application of the BSER, including under variable conditions (such as, here, different coal types2
- 69

and boiler ty

pes). The final st ep is to determine an emissions limit b ased on the above information. **Response 2.1 -**  **169:** Section 111 (a) contains no requirement of a specific methodology for determining either BSER, or a standard of performance based on performance of BSER. In particular, there is no requ irement that mandates the ty pe of ‘bottom
- up’ analy sis set forth in the public comment. See Lignite Energy v. EPA, 198 F. 3d at 933 (“ Petitioners' central claim is that EPA selected SCR as the basis for its NOx standards without properly balancing the fac tors that section 111 requires it to "take into account." Because section 111 does not set forth the weight that should be assigned to each of these factors, we have granted the agency a great degree of discretion in balancing them, see, e.g., New York v. Reilly , 297 U.S. App. D.C. 147, 969 F.2d 1147, 1150 (D.C. Cir. 1992) ; EPA's choice w ill be sustained unless the environmental or economic costs of using the technology are exorbitant. See National Asphalt Pavement Ass'n v. Train , 176 U.S. App. D.C. 296, 539 F.2d 775, 786 (D.C. Cir. 1976) ”). The EPA has made a reasonable determination here that partial CCS is adequately demonstrated; both pre
- and post
- combustion CO 2 capture is demonstrated in full scale commercial operation, Class VIconstruction permits have been issued for several projects supported by findings that these sites can safel y sequester large volumes of anthropogenic CO 2 for geologic periods, and the EP A has carefull y assessed the costs of BSER and, even based on conservative assumptions ( for example, no co
- firing, no use of EOR), the costs of the rule are reasonable and not exorbitant. **Comment 2.1 -**  **170:** Commenter 9201 further states that operation at commercial scale is essential to determining whether partial CCS is adequatel y demonstrated. The commenter points to the following considerations
-- the quantity of material captured from the gas stream, the number of individual process steps, the volume and pressure of the by product to be managed, the transport distance and securing the long term fate of the captured carbon

– as representing challenges and increases in technology complexity

beyond those considered in any other NSPS. Pilot plant demonstrations and performan ce in other industries do not provide a transferable experience given these complexities. (NMA pp. 33
- 4). **Response 2.1 -**  **170:** Post
- combustion CCS ( indeed, full CCS) is demonstrated at commercial scale. EPA believes that smaller
- scale utilizations of the technology provide c orroboration of the technology ’s efficacy . See section III.D to the preamble to the final standard. **Comment 2.1 -**  **171:** Commenter 9201 stated that the EPA has relied on five sources of information to support its decision to require all new coal plants to implement partial CC S in its proposed NSPS for greenhouse gas emissions from fossil
- fuel fired electric utilities: (1) the ongoing construction of one unit in the United States and one in Canada; (2) two more planned units for which construction has not yet commenced; (3) the use of various components of a CCS sy stem in other industries; (4) international experience with the technology; and (5) literature resources. Commenter further stated that absent from that list is any information regarding actual installation and use of partial CCS because none exists, no existing unit has ever emplo yed the control sy stem EPA has determined to be "adequately demonstrated" for all future fossil
- fuel fired electric utilities. Commenter further stated that as the legal anal ys is above confirm s, that fact alone renders EPA's proposed GHG NSPS not only unprecedented, but arbitrary and capricious as well.2
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**Response 2.1 -**  **171:** Post
- combustion partial CCS (indeed, full capture) is demonstrated b y the Boundary Dam facility . As explained at section V.D.2.a to the preamb le to the final rule, performance at this pulverized coal EGU is applicable at all others. The Dakota Gasification facility likewise demonstrates partial CCS (again, in fact, full CCS) at commercial scale should this compliance alternative be pursued
. Although the facility does not generate el ectricity, the EPA explains at preamble section V.E.2.a wh y transfer of the technology to the EGU IGCC (pre
combustion carbon capture) sector is a “reasonable extrapolation of a technology’s performance”. Lignite Energy Council v. EPA, 198 F. 3 d at 934
. **Comment 2.1 -**  **172:** Commenter 10017 stated that the EPA should not consider projects before they are permitted, operational, or even built as support for the determination that carbon capture and sequestration is a commercially av ailable technology

for the NSPS. **Response 2.1 -**  **172:** These projects indicate that utilities are willing to invest billions of dollars in the technology , including their own funds. This provides some indication that they regard the control technology

as viable. However, this information is corroborative. The EPA’s finding of BSER rests primaril y on full
- scale commercial operation of CCS. **Comment 2.1 -**  **173:** Commenter 10051 stated that the CCS has not been "adequatel y demonstrated," as required under the Clean Air Act (CAA) Section 111. Commente r further stated that Section 111 requires EPA to set technology
- based standards or "standards of performance" for new stationary sources to minimize emissions of air pollution to the environment. Commenter further stated that Section 111(b) requires EPA t o identify the "best sy stem of emission reduction" that is "adequatel y demonstrated" to limit a pollutant. **Response 2.1 -**  **173:** EPA has done so here, as described in preamble section V. **Comment 2.1 -**  **174:** Commenter 4927 stated that the regulation, as proposed, will put into place a standard that in essence bans construction of future coal fueled power plants by requiring the use of unproven technology . Commenter further stated that no regulation should mandate a standard that is not commercially

available or that removes any one fuel source from consideration for meeting the energy

needs of Indiana and the nation. **Response 2.1 -**  **174:** The final standard of performance has a variety of compliance pathways, not all of which even would need partial CCS. EPA also disagrees that the promulgated standard will de facto proh ibit new coal. See preamble section V. L
. **Comment 2.1 -**  **175:** Commenter 9590 stated that the EPA relies upon engineering estimates of hy pothetical IGCC and SCPC units with CCS, not actual operating experience. Commenter further stated that the EPA's approach is unprecedented, unlawful and a stunning departure from over 40 years of regulatory history that relies upon actual emissions data from representative units operating with adequately demonstrated technology . Commenter further stated that this consistent hist oric approach is used by EPA for the proposed standard for natural gas
- combined cycle technology , in which EPA reviewed extensive emissions data from operating units and selected a standard that can be met b y over 95 percent of the currentl y operating unit s.2
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**Response 2.1 -**  **175:** Post
- combustion CCS is demonstrated at commercial scale, and in any case, courts have held repeatedly that operation at commercial scale is not a condition precedent to selection of a BSER. See preamble section V.G.1. **Comment 2.1 -**  **176:** Commenter 10662 stated that CAA Se ction 111(b)(1)(B) requires EPA to at least every

eight years, review and, if appropriate, revise the new source performance standards and this mechanism allows EPA to set a future standard for coal, based on CCS, if CCS had been tried and proven to adequately demonstrated at that time. Commenter further stated that it would be more appropriate for EPA to revise the NSPS during the next review period, especiall y in light of the fact that EPA projects that the proposed rule will result in negligible CO 2 emis sion changes, quantified benefits and costs by 2022. **Response 2.1 -**  **176:** EPA disagrees. Post
- combustion partial CCS, with SCPC, is demonstrated now, and provides significant emission reductions over SCPC capacity alone. Thus, should any new coal capacity

be built, it should achieve a level of performance reflecting performance of this best technology
. **Comment 2.1 -**  **177:** Commenter 10662 stated that contrary to EPA rulemaking precedent and its delegated authority

from Congress, this rule sets an emission limit with no flexibility regarding the t echnology

for facilitates to meet the limit. Commenter further stated that the EPA should not attempt to give preference to one ty pe of fuel over others or entirel y phase out a source of energy . Commenter further stated that established performance standards are required to be based on technologies that are adequately demonstrated in practice. Commenter further stated that carbon capture and storage (CCS) is neither cost
- effective nor has it been adequatel y demonstrated. Commenter further stated that rather than speculating about the future development of unproved technologies, the EPA should rely on subsequent reviews to determine when CCS technology

is ready to be incorporated into regulations. **Response 2.1 -**  **177:** First, post
- combustion CCS is adequately demonstrated, and ind eed, is being operated at commercial scale. It is described b y the DOE NETL as reflecting “commercial operatin g experience with demonstrated ability for high reliability”. NETL (2015) at p. 36. Second, the final standard of performance based on performance of BSER can be achieved by other means
. **Achievable Comment 2.1**  **- 178:**  Commenters (9780 and 10119) stated that the EPA did not justified its choice to propose a standard that will meaningfully reduce greenhouse gas emissions from the power sector. **Response 2.1 -**  **178:** See preamble se ction V. K and RIA section 5, detailing substantial emission reductions and monetized benefits exceeding costs under a range of assumptions should new coal

– fired EGU capacity

be constructed. **Comment 2.1 -**  **179:** Commenters (0588 and 9666) stated that the EPA has not determine d that an emissions standard based on partial CCS is "achievable," as is required b y the statute. Commenters further stated that the agency contrived a new determination ("technical feasibility ") unrelated to the court's guidance on Clean Air Act Section 1 11 interpretation.2
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**Response 2.1 -**  **179:** The emissions standard based on performance of post
- combustion CCS is achievable under likel y operating conditions, and the control technology is demonstrated, including in full scale commercial operation. **Comment 2.1 -**  **180:** Commenter 0588 stated that the court's decision in National L ime Association v. Environmental Protection Agency set forth an analy

tical framework for determining the "achievability " of an adequatel y demonstrated technology. Commenter further stated that the EPA ignored established judic ial guidance in performing its statutorily required task of determining the achievability of the NSPS. In fact, the proposed rule never even acknowledges its responsibility to account for the representativeness of the data on which EPA relied to determine achievability
. **Response 2.1 -**  **180:** See preamble section V. J. **Comment 2.1 -**  **181:** Commenters (0588 and 9780) stated that the "representativeness" of EPA's cost anal ys is is a relevant factor that EPA must account for, yet the EPA did not consider it when it found that an emissions standard based on partial CCS is achievable. **Response 2.1 -**  **181:** EPA explains in detail in section V.H and I wh y its cost estimates are representative. The agency also went to significant effort to include the most recent available cost estimates, reflecting costs of the technology in comm ercial use at the Boundary Dam facility , within its anal ys is of costs. **Comment 2.1 -**  **182:** Commenters (9426 and 10095) stated that a standard based solel y on "IGCC with a single
- stage WGS reactor and a two
- stage acid gas removal s ys tem," cannot support a standard for coal
- fir ed PC or combustion fluidized bed units, which require post
- combustion separation. Commenters further stated that any standard that applies to PC units based on a finding that it is achievable with a technology that only I GCC units can use is contrary to l aw. Commenters also stated that the irrationality of the EPA's position is highlighted when one considers how few commercial IGCC facilities currentl y exist. Commenters stated that it is important that utilities have access to the commercial market for all generation technologies within this source category (including not just IGCC units but also pulverized coal units) because there are man y site
- specific, fuel
- specific, and business
- specific factors that must be considered in selecting the generation techn ology . Commenters further stated that leaving alone carbon capture, both IGCC units and supercritical PC units are capable of performing at high efficiency while meeting stringent limits on emissions under Subpart Da. **Response 2.1 -**  **182:** The EPA agrees that pre
- and post
- comb ustion CCS require separate justification under the section 111 (a) criteria . See e.g. section V.D. and E. of the preamble to the final rule, anal yz ing post
- and pre
- combustion CCS as distinct control technologies. **Comment 2.1 -**  **183:** Commenter 9426 stated that the proposed standard takes no account of the "carbon storage" (or "sequestration") component, which is the only CCS component that could reduce or eliminate CO 2 emissions generated b y a new source. Commenter further stated that without the sequestration component, there trul y i s not any capture, because an y capture that occurs is onl y temporary. Commenter also stated that the EPA admits that "compliance with the standard of 1,100 lb CO 2 /MWh is determined exclusively by the tons of CO 2 captured b y the2
- 73

emitting EGU," and that the "tons of CO 2 sequestered b y the geologic sequestration site are not part of that calculation." **Response 2.1 -**  **183:** This issue is addressed above in 2.1.1.2, responding the UARG comment on the same issue. **Comment 2.1 -**  **184:** Commenters (9191, 9426 and 9505) stated that the EPA has presented no basis for establishing this "secondary " BSER s ince it has offered no short
- term data to demonstrate what level of initial efficiency the EPA believes is achievable within the source category . Commenters further stated that it is clearly establishe d that the EPA regulation under NSPS must not favor li mited choices of technology among those commercially available within the source category . Commenters also stated that any limitation must be firmly based on the evaluation of what is achievable as part of the BSER **. Response 2.1**  **- 184:**  The relevant delta is between an SCPC and an SCPC equipped with partial CCS such that it is achieving the standard of performance. Those emission reductions are quantified in preamble section V.K. **Comment 2.1 -**  **185:** Commenters (9505, 9665, 9666 and 9780) state d that in the Essex Chemical decision where the D.C. Circuit sustained a standard of performance as "achievable" on the basis of test data showing that the tested plant emitted less than the standard on three occasions even though it emitted above the stan dard on 16 occasions. See 79 Fed. Reg. at 1463. Commenters further stated that the question considered b y the court was whether the record evidence was sufficient to support EPA's finding that the resulting standard was achievable. Commenters also stated that in this case, EPA had useful test data from the application of the proposed BSER at a plant in the regulated source category . But in the Proposal, there is no such data for testing whether the proposed standard for fossil
- based EGUs is achievable. **Response 2.1 -**  **185:** See preamble section V.J. **Comment 2.1 -**  **186:** Commenter 9201 stated that the BSER should be set based on units in operation today

as commercial power producers. Commenter further stated that relying upon real world operating data is the proven, lawful, and prudent way to determi ne what a BSER could be that has been adequatel y demonstrated. Commenter further stated that in this proposal, EPA has done so for natural gas
- fired but not coal
- fired EGUs. Commenter also stated that the operations data from the best performing coal and n atural gas plants provides the minimum data to set achievable standards. Commenter stated that had EPA relied on actual operating data in its determination of BSER for both coal and natural gas units, as opposed to its attempt to force the requirement of C CS technology on onl y coal units, it would have come to a vastly different conclusion on what BSER could be and thus what emissions limits would be achievable. **Response 2.1 -**  **186:** Although the commenter misstates that BSER must reflect performance of a technology

in commercia l operation, see preamble section V.G.1, or that some specific quantum of data is necessary

to justify a standard of performance, in fact post
- combustion CCS is demonstrated (highl y successfully, in the facility’s view) at the Boundary Dam facility. **Comment 2.1 -**  **187:** Commenter 9666 stated that a standard must be achievable for the industry as a whole and not just for a subset of sources. Commenter further stated that the validity of2
- 74

EPA's achievability

determination depends on how fully it has accounted for the variations am ong sources in the regulated category that could affect emission levels. Commenter also stated that the EPA has traditionally set NSPS such that at least 99 percent of new units would be expected to be able to comply
. **Response 2.1 -**  **187:** See preamble section V. J and achievab ility TSD
. **Comment 2.1 -**  **188:** Commenter 9666 stated that a standard of performance must be achievable for all sources in a category in all parts of the United States. **Response 2.1 -**  **188:** The final standard is not geographically constrained. Ample sequestration and EOR capacity exists in many areas of the country

(see preamble section V. M ). Some states already prohibit new coal capacity
. Coal capacity may be located in areas with sequestration capacity and transmit electricity

to areas which are remote. Moreover, there are compliance al ternatives which do not involve carbon capture, and so would not pose any potential geographic constraints related to sequestration capacity
. **Comment 2.1 -**  **189:** Commenter 9666 stated that the D.C. Circuit has held that one of "the essential purposes of the [Clean Air] Act" is that its requirements "must not give a competitive advantage to one State over another in attracting industry ." Id. at 325. Commenter further stated that the EPA's novel interpretation of section 111 directly conflicts with this essential purpose, as an NSPS that precludes construction of coal
- fired units in some states would unquestionably give a competitive advantage to other states where construction of those units is still possible. Commenter also stated that because the proposed NSPS contemplates of f
- site transport of separated CO 2 to geological injection sites or to provide it for use in EOR (albeit without requiring an y permanent storage of the separated CO 2 ), this rulemaking directs the location of new coal
- fired generation to a limited number of states that contain suitable sites for sequestration or EOR. **Response 2.1 -**  **189:** The final standard of performance for steam electric capacity is not geographically

constrained, as stated in the previous response. **Comment 2.1 -**  **190:** Commenter stated that the EPA also points to language in that case indicating that a mobile source standard could permissibly preclude certain ty

pes of vehicles provided the "basic demand" for automobiles was met, arguing that " [t]he driving preferences of hot rodders are not to outweigh the goal of a clean environm ent. " 79 Fed. Reg. at 1467 (quoting Int'l Harvester Co., 478 F.2d at 640). This comparison is misguided. Commenter further stated that a mobile source standard that would preclude some ty pes of vehicles (hot rods) within a source category

while still allo wing others (normal passenger vehicles) is not comparable to an NSPS that would preclude all ty pes of coal
- fired generation in certain areas of the country where CCS is not feasible. **Response 2.1 -**  **190:** The final standard is not geographically constrained. Ample sequestratio n and EOR capacity exists in many areas of the country (see preamble section V.M
. ). Some states already prohibit new coal capacity. Coal capacity may be located in areas with sequestration capacity and transmit electricity

to areas which are remote. M oreover, there are compliance2
- 75

alternatives which do not involve carbon capture, and so would not pose any potential geographic constraints related to sequestration capacity
. **Comment 2.1 -**  **191:** Commenter 10618 stated that the EPA has not conducted any anal ys is to determine th e achievability of its proposed standard for coal
- fired units. Commenter further stated that the EPA has conducted rigorous analy ses to establish "what every source can achieve" through the use of demonstrated technologies, b y examining actual test data th at are representative of the wide range of variables that affect the achievability of the a specific emission limitation. Commenter further stated that in the absence of such analy ses, EPA's proposal fails to satisfy

the minimum statutory

requirements and must be withdrawn. **Response 2.1 -**  **191:** See preamble section V.J. and Achievability TSD, **Comment 2.1 -**  **192:** Commenters (9034, 10050 and 10398) stated that the CAA requires that EPA base an y NSPS upon the actual performance of adequately demonstrated technologies, and EPA historically

has adhere d to this approach in setting every NSPS. Commenters further stated that the EPA proposes for new coal EGU's a standard (1,100 lbs CO 2 /MWh) no existing coal base load EGU can achieve, not even the newest demonstrated coal technologies such as supercritical pulverized coal (SCPC) and integrated gasification combined cycle (IGCC). Commenters further stated that the proposed emission standard is at least 40 percent lower than the performance level that is achievable b y these demonstrated coal technologies. Commenters further stated that the EPA's proposal ignores entirely that a standard based upon the performance of these advanced coal technologies would actuall y result in substantial emission reductions compared to the emissions from existing subcritical coal plants that dominate the current coal base load power fleet. **Response 2.1 -**  **192:** Partial post
- combustion CCS is demonstrated, feasible, and in successful commercial operation. EPA is reasonabl y choosing to base the standard of performance on the performance of this demonstr ated technology , and not on the ‘business
- as - usual’ SCPC performance that would not yield an y emission reductions over baseline. **Comment 2.1 -**  **193:** Commenters (9401, 9665 and 10023) stated that the D.C. Circuit has held that "EPA has a statutory duty to promulgate achievable standards." Commenters further stated that setting an achievable standard requires "approaching the task in a s ys tematic manner that identifies relevant variables" that must be "taken into account" when anal yz ing the data. Commenters further stated that i f EPA has not created sufficient record evidence demonstrating that "significant variables relevant to the standard's achievability " were taken into account, the court may remand the rule. Commenters further stated that the D.C. Circuit has stated that the promulgation of standards based upon inadequate proof of achievability would defy

the Administrative Procedures Act's (APA's) mandate against action that is 'arbitrary , capricious, an abuse of discretion, or otherwise not in accordance with law. **Response 2.1 -**  **193:** Post
- comb ustion partial CCS is demonstrated at full scale. The standard of performance reflecting proper operation of that technology is achievable. **Comment 2.1 -**  **194:** Commenters (9600 and 9665) stated that the NSPS must be supported by consideration of costs and other factors at th e plant level. EPA can account for national or2
- 76

regional concerns, but only to support standards less demanding than what can actually be achieved at individual plants. Commenters further stated that the Sierra Club demonstrates that the fundamental minimum is for a standard to be achievable at the plant level before other considerations can come into play : "Parsed, section 111 most reasonabl y seems to require that EPA identify

the emission levels that are 'achievable' with 'adequatel y demonstrated technolog y. ' Commenters further stated that after EPA makes this determination, it must exercise its discretion to choose an achievable emission level which represents the best balance of economic, environmental, and energy considerations." Commenters further state d that unit
- level costs, along with national costs, will necessaril y factor in the initial determination as to whether the sy stem has been "adequately demonstrated." Commenters further stated that if the costs of implementing a technology are so extreme as to preclude the BSER's use at individual units, a standard is not achievable. **Response 2.1 -**  **194:** EPA has considered costs at the plant level, and also (to a lesser extent) at the national level. See preamble section V. H .and I. **Comment 2.1 -**  **195:** Commenter 10880 stated that the proposed standard for coal fired power plants is unachievable and arbitrary . Commenter further stated that the standard for coal fired plants is based on hy

pothetical power plants, not a single operating fully integrated commercial scale coal base load power plant exi sts that uses CCS. Commenter further stated that this is in stark contrast to the standard for natural gas fired plants. Commenter further stated that the standard proposed for natural gas fired plants is based on proven, demonstrated technology , achievabl e b y 90% to 95% of existing plants. **Response 2.1 -**  **195:** The commenter is mistaken

– post - combustion CCS is operated at full scale at the Boundary

Dam EGU, as predicted b y EPA at the time of proposal. **Consideration of Factors for Best Adequately Demonstrated System Comment 2.1**  **- 196:**  Commenter 1 803 supported EPA's determinations that CCS is "adequatel y demonstrated" and represents "best s ys tem of emission reduction" are both legally sound and amply supported b y the evidence before the Agency. **Response 2.1 -**  **196:** The EPA acknowledges the commenter’s support. **Comment 2.1 -**  **197:** Commente r 10098 stated that the Congress did not delegate to EPA sweeping legislative rulemaking authority to dictate fuel choice or facility design. Commenter further stated that the Congress made it clear that Section 111 is a flexible standard that considers co sts, non - air impacts, and "energy requirements." **Response 2.1 -**  **197:** The EPA is not dictating fuel choice or unit design. The EPA indeed withdrew its earlier proposal which was specifically predicated on a particular fuel type in order to preserve fuel diversity opportunitie s and as a hedge against rising prices of currently less expensive fuels. The final standard of performance here has various compliance paths (for both PCs and I GCC), some of which do not involve capture of carbon. Thus, the standard preserves some measure of flexibility and does not dictate fuel ty pe.2
- 77

**Comment 2.1 -**  **198:** Commenters (9426, 10036, 10088, 10098 and 10618) stated that the EPA's finding that NSPS can be based on CCS when permitting agencies have rejected CCS as Best Available Control Technology (BACT) is contrary to the Clean Air Act's structure, further rendering the proposed rule arbitrary and capricious. Commenter 9396 specificall y notes that the last ten BACT determinations for coal
- fired steam electric units have rejected CCS as BACT (noting appropriatel y that these are decisions of state permitting agencies). **Response 2.1 -**  **198:** See preamble section X I I.C. **Comment 2.1 -**  **199:** Commenters (9665 and 9683) stated that EPA has made a policy decision that applies to carbon emissions and the capture of carbon emissions, and thus does not directly addres s carbon sequestration. Commenters further stated that the EPA also noted that this proposed rule does not address carbon sequestration and relies on the permitting and reporting requirements for carbon dioxide sequestration required in the Office of Water 's Underground Injection Control Program for Carbon Dioxide Geologic Sequestration. Commenters also stated that this would render the rule an absurdity a "catch and release" program costing hundreds of millions of dollars at each affected facility without affecting EPA's stated goal of reducing atmospheric CO 2 loadings. **Response 2.1 -**  **199:** As discussed in detail in section V. N, EPA is reasonably rel yi ng on the comprehensive and highly rigorous standards for Class VIdeepwell injection which assure that injected CO 2 will not be released. Should CO 2 be utilized for EOR, the decades of successful operation under Class II rules again confirms that there will be successful long
- term storage without subsequent release. These programs are complemented by the monitoring and reporting requirements of the subpart PP and RR GHGRP rules. **Comment 2.1 -**  **200:** Commenter 9664 stated that the EPA has discretion in balancing the statutory factors, Lignite Energy

Council v. U.S. EPA, 198 F.3d 930, 933 (D.C. Cir. 1999) (citing New York v. Reilly , 969 F.2 d 1147, 1150 (D.C. Cir. 1992)), but EPA's discretion under section 111 is not unbounded
- courts have recognized that these standards must reflect the most highl y - effective emissions reduction s ys tems technically and economically feasible, including new an d innovative pollution reduction methods where available even though not in routine use. **Response 2.1 -**  **200:** The EPA largel y agrees with this comment. **Comment 2.1 -**  **201:** Commenter 10036 stated that in the proposed rule, EPA correctly notes that CCS cannot be transferred to natural gas combined cycle ("NGCC") processes until larger
- scale demonstration projects occur on units that operate more like a "ty pical" NGCC unit. Commenter further stated that the same logic applies to coal
- based generation units as well, where CCS has ye t to be attempted at commercial
- scale and operated in a manner of a typi cal coal
- fired generation unit. **Response 2.1 -**  **201:** Post
- combustion CCS is in fact operated successfully at full scale by

the Boundary Dam EGU. **Comment 2.1 -**  **202:** Commenter 9524 stated that as EPA develops its GHG NSPS proposals and its emiss ions guidelines for states, it is important to ensure such standards do not mandate the use2
- 78

of a particular fuel ty

pe or a different generation technology , nor preclude the use of any particular fuel source or generation technology
. **Response 2.1 -**  **202:** The various new source standards do not preclude use of an y fuel type, either by their terms or in practical effect. **Comment 2.1 -**  **203:** Commenter 9191 stated that the rule will ban the use of coal as a fuel for new electric generating units because it would not be used as a result of market factor s thereby assuring that coal could not be used even if market factors change. **Response 2.1 -**  **203:** See preamble section V. L. **Comment 2.1 -**  **204:** Commenter 9201 stated that based on CAA Section 111 following steps should be used as factors for BSER:

 First, determine BSER that has been adequately demonstrated for all sources within the source category

considering the cost of installing and operating the control sy stem as well as the non
- air quality

health and environmental impacts and the energy requirements of the technology

or s ys tem;  Second, c alculate the degree of emissions reduction that is achievable through the application of the BSER including an y adjustments to reflect the ability of sources to achieve the emissions reductions under the full range of operating conditions by all sources wi thin the source category . In this case that would include adjustments to the control level in order to reflect what can be achieved on a consistent basis for a broad range of boiler and coal types.  Third, formulate a specific performance standard (numeric emission limit, averaging time, and monitoring) that may be achievable by

all sources within the source category
. **Response 2.1 -**  **204:** This is essentially the precise process EPA engaged in in this proceeding (see preamble section V) , although the commenter is mistaken in sug gesting that existing plants must be operating a control technology for the technology

to be considered as BSER. **Comment 2.1 -**  **205:** Commenter 9514 stated that the statute and case law authorize EPA not only to evaluate the costs of achieving the standard, but also the cost
- e ffectiveness of emissions control options comprising the "best" s ys tem of emission reduction. Commenter further stated that in past courts have used varying formulations in discussing EPA's authority to take costs "into account," each has followed the same fundamental standard: an NSPS will be upheld unless the costs it imposes are exorbitant or too great for the industry to bear. Commenter also stated that the D.C. Circuit has never invalidated an NSPS for being too costly . 79 Fed. Reg. at 1464. Commenter stated that this does not require the application of a strict cost
- benefit test; rather, reviewing courts have upheld performance standards so long as the costs are not exorbitant (i.e., too high for the industry

to bear) in light of the pollution reductio n benefits they will yield. **Response 2.1 -**  **205:** EPA largel y agrees with this comment. See preamble section V.H.2. **Comment 2.1 -**  **206:** Commenter 9514 stated that the EPA may consider by

product revenue evaluating the costs associated with its standards. Commenter further stated that the court has2
- 79

held that the agency

has authority

to evaluate all of the statutory factors in a BSER determination "in the broadest possible sense," and to consider costs "at the national and regional levels and over time as opposed to simply at the plant level in the i mmediate present." Sierra Club, 657 F.2d at 331. Commenter further stated that given that, it is appropriate for EPA to consider revenue streams from the co
- production of CO 2 in its determination that carbon capture and storage ("CCS") is BSER for coal
- fir ed EGUs. Commenter also stated that if costs of disposal of by products must be taken into account during cost analy sis, revenue from the sale of economicall y valuable products as a co
- benefit of achieving a particular performance standard should also be taken into account. See 79 Fed. Reg. at 1,464. Commenter stated that to the extent that the sale of captured CO 2 may generate revenues for plant operators, those revenues should be factored into a determination of the proposed rule's costs. **Response 2.1 -**  **206:** EPA agrees that b y - product revenue can appropriately be considered, and indeed the D.C. Circuit has so held. However, EPA is adopting a conservative costing methodology

here whereby

it is evaluating the costs of post
- combustion CCS (i.e. the BSER) without accounting for b y - product revenues which a new source could likely generate (as it Boundary Dam, and as planned at Kemper). **Comment 2.1 -**  **207:** Commenter 9514 stated that the EPA's prior actions are consistent with the notion that by

product revenue may

be considered when the agency sets a pe rformance standard. For example, in 2012, EPA and the National Highway Traffic Safety Administration finalized new fuel econom y standards for light duty vehicles. See 77 Fed. Reg. 62,624 (Oct. 15, 2012). Commenter further stated that in its cost analy sis, the agencies determined that the benefits that would result from more stringent standards would "far outweigh higher vehicle costs" to consumers, largely

due to the 170 billion gallons of fuel that would be saved throughout the lives of vehicles sold over an eight
- ye ar period. Id. at 62,629, 62,631. Commenter further stated that from a macroeconomic standpoint, these savings are functionall y indistinguishable from the revenue that would accrue if those 170 billion gallons of fuel were a direct by product of the new technology , rather than the amount saved due to reduced demand. Commenter stated that same ye ar, EPA anal yz ed revenues from the sale of natural gas and condensate recovered through the installation of pollution controls when describing costs associ ated with the NSPS for oil and natural gas production. See 77 Fed. Reg. 49,490, 49,534 (Aug. 16, 2012) (estimating that the proposed standards would save approximately $11 million annually

if revenues from additional recovery were considered). **Response 2.1 -**  **207:** See previous response. **Comment 2.1 -**  **208:** Commenter 9514 stated that EPA considered a wide range of potential market conditions for EGUs and fuels through at least 2030, reflecting analyses b y E IA and industry in addition to the agency's own evaluations. Commenter further stated that th is anal ys is found that electric utilities are likel y to choose lower
- cost natural gas rather than coal for all, or almost all, new fossil fuel
- fired generating units during the relevant time period. New combined cycle gas plants are already likel y to satis fy

the proposed rule's emission limits, creating no additional costs. Commenter further stated that the most efficient combined cycle units are cost
effective and satisfy

the lower emission levels proposed by Joint Environmental Commenters. Commenter also stated that to the extent that new coal plants with partial CCS are constructed in the coming ye ars, EPA correctl y asserts that they will not impose exorbitant costs on the2
- 80

industry . Commenter stated that as such, the proposed standard for new coal
- fired p lants satisfies section 111's cost component. **Response 2.1 -**  **208:** This comment is consistent with EPA’s analy sis in RIA section 4. EPA notes, however, that its consideration of costs is not open
- ended. That is, although new coal capacity is unlikel y to be built for reasons of lack of cost competitiveness for the reasons the commenter states, EPA is not thereb y concluding that any control costs are non
- exorbitant by definition. Rather, as at proposal, EPA is comparing costs with those of a comparable non
NGCC baseload, dispatchable electricity
- generating technology
. In this regard, EPA also does not accept the comment of Murray Energy , arguing that because nuclear capacity

is zero carbon emitting, the relevant comparison must be coal with full
- scale CCS. Murray

Energy Comm ent pp. 81
- 82. The statutory text, of course, does not decree such a result since the requirement that EPA consider costs affords considerable discretion in how EPA does so. It is furthermore reasonable, in responding to assertions that the incremental c ost of partial
- CCS will render new coal capacity uncompetitive for reasons of cost when the technology is already uncompetitive for reasons of cost, to look to the costs of other technologies which are more expensive than NGCC but which, like coal, provide baseload, dispatchable power and which might be selected for similar reasons of preservation of fuel diversity/as a hedge against rising natural gas costs. Finally , in considering capital costs associated with the final standard of performance, EPA did c onsider the incremental increase in cost associated with deploy ment of partial CCS, the ty

pe of comparison the commenter advocates. See preamble section V.H.4. In addition, in considering the emission reductions and quantifiable benefits of the standard, EPA again compared an SCPC with SCPC plus post
- combustion partial CCS. See RIA chapter 5 and preamble section V.J. **Comment 2.1 -**  **209:** Commenter 10095 stated that based on Section 111(b) of the CAA, EPA must follow the three
- step process in establishing performance standard s for affected sources, which includes identifying the BSER that is Adequately Demonstrated, determining levels of emissions that are achievable, and selecting a standard that represents the best balance of economic, environmental, and energy consideration
. **Response 2.1 -**  **209:** EPA’s methodology is discussed at length in preamble section V and is entirely consistent with section 111 (a) (not (b) as the commenter would have it) of the Act. **Comment 2.1 -**  **210:** Commenter 10095 stated that if EPA maintains a nonsubcategorized subpart Da, the category' s applicable standard must be technically and economically

achievable by

coal, oil, and natural gas
- fired steam boilers and IGCCs. Commenter further stated that the EPA has not adequatel y anal yz ed all of the affected subpart Da sources and their applicable CO 2 control options. Commenter also stated that the EPA must therefore complete individual BSER determinations for each affected subpart Da ty pe of source and establish separate emission standards accordingl y or a single standard that is achievable for al l affected sources. **Response 2.1 -**  **210:** The final standard of performance is achievable b y IGCC, or IGCC operating with some relativel y minor amount of natural gas cofiring. See preamble section V.P. This technology

is available at reasonable cost (see preamble table 9), and does not pose adverse nonair quality

impacts or unreasonable energy requirements. See preamble section V.O.2 and 3.2
- 81

With respect to new oil
- fired capacity, EPA finds the possibility of a new oil
- fired unit being constructed to be too remote to warrant any further subcategorization of the source category
. There has not been an y s uch unit constructed for over 30 years, and there are strong reasons no units would be built in the future. **9** Nor did an y commenter provide an y information either that a new oi l
- fired steam electric unit might be constructed, that any are contemplated, or that there is any basis for believing that such a unit might be constructed. Accordingly , the EPA is not making a separate BSER determination for this non
- existent ty

pe of new source. See Kennecott v. EPA , 780 F. 2d 445, 454 (4 th Cir. 1985) (EPA need not set separate NSPS for hydro
- metallurgical plants under technology
- based standard
- setting authority of Clean Water Act when “no hydro
- metallurgical plant is in the process of b eing built or even contemplated”); see also Portland Cement Ass’n v. EPA 665 F. 3d at 410 (section 111 standards of performance may legitimatel y reflect less polluting types of designs and discourage perpetuation of more polluting designs, especially where compliance paths exist for the more polluting ty pe of technology) . **Comment 2.1 -**  **211:** Commenter 10952 stated that the proposal including information contained in the rulemaking docket presents no information that could lead to a rational conclusion that full or partial carbon capture can be deployed as part of a BSER immediatel y and, at a reasonable cost. Commenter agreed with EPA that case law suggests that the agency can compensate for a shortage of data b y qualitative methods and reasonable extrapolation of technology performance in other industries. Proposal at 1479, (quoting Lignite Energy Council v. EPA 198 F.3d 930, 934 (D.C. Cir. 1999)). Commenter further stated that the EPA has failed to provide an y explanation in this rulemaking's docket to document what carbon capture technologies in other industries it is utilizing and how it is technically appropriate to extrapolate those technology applications to coal
- fired steam electric generation that must operate under required and specific duty c ycl es that do not mimic those required in other industries. Commenter also stated that an insurmountable problem with the proposal is that based on the information provided in this rulemaking docket there is no reasonable basis to conclude that carbon capture is technicall y avail able at a reasonable cost for use as BSER as applied to fossil fuel fired EGUs in the immediate future and perhaps not available as a BSER for many ye ars to come. **Response 2.1 -**  **211:** EPA believes its discussion in section V of the preamble to the final rule fully explains its basis for selection of SCPC with post
- combustion partial CCS as BSER, and that there is substantial record support for those determinations. **Comment 2.1 -**  **212:** Commenter 10952 stated that the court's interpretation of adequatel y demonstrated technology clearl y mandates that the BSER must be achievable at a reasonable cost immediately . See Portland Cement 486 F.2d 375, 391, (Since the standards here put into

9 http://www.epa.gov/powersectormodeling/psmodel514.html National Electric Energy Data System (NEEDS) v.5.14. The National Electric Energy Data System or “NEEDS” database contains the generation unit records used to construct the " mo del" plants that represent existing and planned/committed units in EPA modeling applications of IPM. NEEDS includes basic geographic, ope rating, air emissions, and other data on these generating units. NEEDS was completely updated for EPA’s new power sector mo deling platform v.5.14
.2
- 82

effect will control new plants immediately , as opposed to one or two years in the future, the latitude of the projectio n is correspondingl y narrowed). Commenter assumed that if the EPA's theory that cost of carbon capture technology decreases as it matures is accurate here, this proposal provides no adequate, rational basis to conclude that an EGU could be built tomorrow and meet the proposal's LCOE assumptions based on next commercial offering. Commenter questioned that What can be gleaned not from the proposal but from the DOE studies of which EPA relies is that the proposal embraces DOE study conclusions that apparently have not been peer reviewed and where, in many cases, the underlying assumptions are unknown. Commenter further stated that in short, whatever rationale EPA utilized here is not available and thus not reviewable in connection with this rulemaking. Commenter further stated that from the information supplied in the rulemaking docket, it is impossible to conclude that EPA made a valid projection and not a cry stal ball prediction regarding cost reasonableness of BSER. Commenter further stated that regarding que stions of available technology in evaluating NSPS application "...the reliability of the prediction rests on the validity of the assumptions". Portland Cement, 486 F. 2d at 392. Commenter also stated that the assumptions here are not even available for rev iew and comment. Commenter stated that the lack availability of information material to this rulemaking and its conclusions for review and comment is yet another reason why this proposal is arbitrary and capricious. **Response 2.1 -**  **212:** The commenter correctl y states that a st andard reflecting performance of BSER must be achievable immediately . EPA has shown reasonably why the 1400 lbCO 2 /MWh standard is immediately

achievable by

a new SCPC. The commenter is incorrect regarding peer review of the NETL studies. See response i n unit 2.4.2 below on Data Quality Act issues. The commenter further mischaracterizes the NETL materials, which are notabl y transparent in documenting every

assumption and line item of cost, essentially down to the last nut and bolt. The latest NETL cost estimates, in fact, reflect the costs of the operating s ys tem in present commercial use at the Boundary Dam facility , so EPA regards these costs as a valuable and most up - to - date information available. **Comment 2.1 -**  **213:** Commenter 10952 stated that the CAA Section 111 must be viewed in conjunction with Section 169 to ascertain the potential breadth as well as limitations of EPA's discretion to promulgate NSPS that eliminates coal use for future generation in those areas where, as we have pointed out earlier, the CO 2 pipeline transportation and sequestration infrastructure do not exist and will not exist within the foreseeable future. Commenter further stated that the Section 169 defines Best Available Control Technology (BACT) in conjunction with the CAA Prevention of Signifi cant Deterioration (PSD) provisions. Commenter further stated that the Section 111 and Section 169 have some commonality but also have notable differences. Commenter further stated that the Section 169(3) requires a case by case source specific anal ys is fo r each project to derive a source specific BACT taking into account energy , environment and economic impacts. Commenter further stated that Section 111 NSPS, must be applicable to sources within an entire source category . As Section 111(b)(1)(B) dictates, NSPS must establish standards for new sources within each category . Commenter further stated that although under Section 111(b)(2) EPA may subcategorize within a source category by distinguishing between different classes, ty pes and sizes within the source category when determining NSPS, NSPS must apply broadl y to all new sources within the category or subcategory

as the case may

be. Section 169(3) contains a2
- 83

length y definition of BACT that includes requirements for a maximum degree of reduction determined on a case b y case basis that is achievable for the facility as previously

described and also contains the stipulation that in no case can the application of BACT for any source exceed the emissions allowed by any applicable standard established by Section 111. As discussed earlier, in practice this means an NSPS emission limitation serves as the floor for a BACT determination. **Response 2.1 -**  **213:** As explained in other comment responses, the final standard of performance is not geographicall y constrained. The EPA agrees with the commenter that the final standard of performance creates a floor for purposes of future BACT permits for affected EGUs under this rule. **Comment 2.1 -**  **214:** Commenter 10952 stated that as the court observed, BACT may require source design adjustments only if such readjustm ents do not mandate source redefinition. Commenter further stated that the court recognized that requiring design readjustments at Prairie State to utilize low sulfur coal in lieu of high sulfur coal would require source redefinition not because using low sulfur coal would be improper redesign but because the source's definition included mine mouth coal that happened to be high sulfur coal. Commenter further stated that required source design can mandate not only coal
- fired generation utilizing a particular fuel source, but also source combustion technology . For example grid reliability may onl y require smaller baseload generation where natural gas in unavailable. Commenter further stated that the proposal links CCS applicability with IGCC and SCPC combustio n. Commenter further stated that the fluidized bed technology (FBT) may

be the only

coal
- based technology

applicable in situations where smaller generation needs are needed and perhaps onl y to supplement renewable resources. In these cases CCS technology w ould be inapplicable. **Response 2.1 -**  **214:** The doctrine of redefinition of a source arises in a context different from section 111 (a), as the commenter recognizes. It thus has only remote applicability , by

somewhat strained analogy

if at all, under section 111 (a). In any c ase, the final standard of performance can be met b y an y newl y - constructed coal
- fired EGU any where in the country
. **Comment 2.1 -**  **215:** Commenter 9666 (UARG) stated (pp 24
- 5) that EPA altered the basic requirements of section 111 (a), in essence b y using factors “such as size of emission reductions and promotion of technological development” to “outweigh the requirements of adequate demonstration and achievability”. The commenter survey s caselaw as requiring a three
- part NSPS process: 1) identification of a s ys tem or s ys tems that have been adequately demonstrated; 2) determining what emission levels are achievable by that sy stem; and 3) after making these determinations, exercise its discretion to choose an emission level reflecting performance of the best sy stem. The comment er maintains that EPA instead an authority to balance various factors resulting in selection of systems of performance and standard neither demonstrated nor achievable. **Response 2.1 -**  **215:** EPA disagrees with parts of this comment. The comment is largel y at variance with EPA’ s actual approach here. EPA has determined that partial post
- combustion CCS is a best system of emission reduction adequately demonstrated by

evaluating the technology , its capabilities, its costs, and collateral nonair and energy consequences of its depl oy ment. EPA has then evaluated the level of performance this best s ys tem is capable of2
- 84

achieving, as the caselaw (and the comment) indicate. See Essex , 486 F. 2d at 433 (“it is the sy stem which must be adequatel y demonstrated and the standard which must b e achievable”). The EPA is not balancing these considerations against size of emission reductions and promotion of technology

development, as the commenter asserts. The commenter evidently believes that CCS is not demonstrated, and that EPA has overridde n this consideration by looking to other factors, but this is not the case. As discussed at preamble section V.D, the EPA has found reasonabl y that post
- combustion CCS is a demonstrated technology due to its successful operation at both commercial scale and partial scale. Consideration of promotion of technology development or size of emission reductions does not figure into that determination (beyond the obvious fact that partial CCS is a “best system” because it is demonstrated to reduce emissions of CO 2 beyond those achieved by the business
- as - usual supercritical boiler applications). EPA has evaluated the costs of partial CCS, and considered nonair quality health and environmental impacts, satisfying itself reasonabl y that the plenary regulatory control requirements for CO 2 pipelines and geologic sequestration of CO 2 assure permanent sequestration of captured CO 2 , and that water use associated with use partial CCS do not result in undue burdens or infeasibility of application of the control technolog y. See preamble section V.O. This methodology is consistent with section 111 (a) and applicable caselaw. To reiterate, EPA here has considered carefully the different demonstrated and feasible s ys tems for controlling CO 2 emissions; based on considerati ons of cost, energy , and nonair impacts, has determined which of these sy stems is the best s ys tem of emission reduction adequatel y demonstrated; and determined the emission limit this best system is capable of achieving considering the full range of variab ility experienced when properl y designed and operated. See also 77 FR 49490, 49494 (Aug. 16, 2012) (describing the three
- step anal ys is in setting a standard of performance). This formulation differs from the one put forward in UARG’s comment, which appears to advocate the same starting point, identifying a range of achievable limits for all the different s ys tems, and then picking a limit reflecting the factors of cost, nonair impacts and energy considerations. EPA believes its approach reasonabl y and correctl y reflects the statutory text. **Comment 2.1 -**  **216:** Commenter 9666 (p. 26) states that ‘adequate demonstration’ requires more than mere ‘technical feasibility ’

– the technology must be shown to be reasonably reliable, reasonabl y efficient, and not unreasonabl y costl y. The commenter claims that EPA has ignored these factors b y failing to recognize that adequate demonstration and achievability are separate requirements. The commenter further states (p. 27) that EPA appears ignorant of the requirements of National Lime I , 627 F. 2d at 435
- 42 and 431 n. 46 , which requires that to be achievable, a technology
- based standard must account for a source’s normal range of operating variability

when properly designed and operated technology is deployed. **Response 2.1 -**  **216:** The commenter again fails to correctl y describe EPA’s approach here. The EPA agrees that technologic feasibility does not equate to “adequatel y demonstrated”

– an adequatel y demonstrated sy stem of emission reduction must be “reasonabl y reliable, reasonabl y efficient, and ... can reaso nably be expected to serve the interests of pollution control without becoming exorbitantly

costly in an economic or environmental way .” Essex , 486 F. 2d at 433. The EPA has considered precisel y those questions in determining whether partial CCS is adequatel y demonstrated, for example in carefull y assessing the deplo ym ent and performance of the technology

in full
- scale commercial applications at the Boundary Dam and Dakota2
- 85

Gasification facilities. Moreover, in selecting an achievable standard, the EPA has separatel y assessed the level of performance partial CCS can attain at both PC and I GCC facilities, and, consistent with National Lime I and progen y (see, e.g. 627 F. 2d at 433), has assessed the full range of operating variability (including different coal ty pes and operation during startup and shutdown) in doing so. See Preamble section V. J. **Comment 2.1 -**  **217:** Commenter 9666 states (p. 23) that EPA is ado pting a “new four
- factor balancing test that eliminates the distinct threshold questions of whether a standard is achievable based on the use of technology that has been adequately demonstrated”; asserts mistakenly that a standard need not be achievable fo r all ty pes of sources in a category throughout the country ; can be based exclusivel y on costs considered at a national level; and can be selected to promote an emerging technology

even though that technology is not adequatel y demonstrated. **Response 2.1 -**  **217:** The commenter m isstates or overstates on all counts. First, as noted in the response above, EPA agrees that a best s ys tem of emission reduction must be adequatel y demonstrated (considering issues of cost, nonair impacts, and energy requirements) and then determines what level of performance that s ys tem can achieve. This determination is not somehow trumped b y consideration of technology promotion, nor has EPA done so here. EPA has also considered the costs of a standard on both the level of the individual source, and n ationally . See, e.g. preamble section V. H.5 (consideration of L COE on an individual plant basis) and 6; see also Sierra Club v. Costle , 657 F. 2d at 331 (concluding that EPA may consider the various factors on a national or regional level and not only on a plant
- specific level). The EPA has also shown how the actual standard of performance is achievable for all ty pes of sources in the category
. **Comment 2.1 -**  **218:** Commenter 9666 notes (p. 21) that EPA has traditionally set NSPS such that at least 99 percent of new units w ould be expected to comply
. **Response 2.1 -**  **218:** EPA believes that an y new steam electric plant can meet the promulgated standard of performance and that there are multiple compliance paths for doing so. **Comment 2.1 -**  **219:** Commenter 9666 states that an adequatel y demonstrated system must have an operational history

that shows more than mere technical feasibility : it must be dependable, effective, individually

affordable, and “based on actual operating experience with the source category or at sufficiently

similar sources.” **Response 2.1 -**  **219:** The commenter is inco rrect as a matter of law, given that case law indicates a standard of performance can be based on extrapolations, literature, and testimony of vendors and experts. Portland Cement 486 F. 2d at 402. However, the issue here is mostly academic, since here a chief justification for the final standards of performance is the full scale commercial operation of both post
- combustion CCS in the steam electric generating sector, and pre
combustion CCS in a sufficiently related application to be readil y transferable to the steam electric source category
. **Comment 2.1 -**  **220:** Commenter 9666 stated that after EPA has identified the emission levels achievable through the use of adequatel y demonstrated technology, the Agency selects a standard from the range of demonstrated technologies that represents the best balance of2
- 86

economic, environmental, and energy considerations. Sierra Club, 657 F.2d at 330. Commenter further stated that at this stage, in addition to the statutory factors of the cost of achieving such reduction and an y non - air quali ty health and environmental impact and energy requirements, CAA 111(a)(1), EPA may consider a proposed standard's projected emission reductions and its potential to promote technological innovation, Sierra Club, 657 F.2d at 326, 347. Commenter further stat ed that in determining BSER, EPA must ensure that standards do not give a competitive advantage to one State over another in attracting industry . I d. at 325. **Response 2.1 -**  **220:** See responses immediately above. **Comment 2.1 -**  **221:** Commenter 9666 stated that EPA may not use national
- level costs and aggregate environmental and energy impacts driven by

projections that few new units will be built to justify

a standard that would impose large costs and impacts at the source level. Commenter further stated that the CAA allows EPA to account for nation al
- level impacts as a safet y valve to avoid standards of performance that cause more economic or environmental harm than they prevent, and not as a method for the Agency to demand additional emission reductions. **Response 2.1 -**  **221:** EPA is considering costs on an individual pl ant basis, as noted in responses above. **Comment 2.1 -**  **222:** Commenter 9666 stated that EPA's interpretation of the requirements for a standard of performance under section 111(a)(1) is fundamentall y flawed. Commenter further stated that the EPA's legal analy sis departs signif icantly from the text of the CAA and is based on misinterpretations and omissions of the relevant case law. In particular, EPA errs b y: (i) eliminating the requirement of "adequate demonstration" and replacing the CAA's legal requirements with a novel four
- part balancing test; (ii) asserting that a standard of performance need not be achievable by all types of new sources in a category throughout the country; (iii) considering long
- term, nationwide impacts at the expense of unit
- specific impacts; and (iv) r elying on an asserted interest in "technological development" to mandate technology that has not been adequatel y demonstrated. **Response 2.1 -**  **222:** EPA disagrees. See responses above. **Comment 2.1 -**  **223:** Commenter 9666 stated that EPA's proposed rule articulates, for the first time in the over 40 ye ar history of NSPS rulemaking, a four
- part balancing anal ys is for determining BSER and setting NSPS. I d. at 1462. Commenter further stated that the Agency asserts that the D.C. Circuit has directed EPA to consider four key considerations to determine th e best demonstrated s ystem: (i) feasibility; (ii) size of emissions reductions; (iii) costs; and (iv) promotion of technology

development. Commenter further stated that the EPA's claims that it has the discretion to weigh these considerations, may determin e that some merit greater weight than others, and may

treat some source categories differentl y from others. Id. Commenter further stated that the D.C. Circuit has outlined an entirely different anal ys is for EPA to follow when setting standards under sectio n 111(b), which EPA has inexplicably abandoned in this rulemaking. **Response 2.1 -**  **223:** See responses immediately above.2
- 87

**Comment 2.1 -**  **224:** Commenter 9666 stated that although the CAA does allow EPA to balance factors such as cost, emission reductions, energy and non
- air quality environmental impacts, and technological development, see id. at 347, it may do so only

after making the threshold findings that the technology

underlying the proposed standard has been adequatel y demonstrated and that the standard is achievable using that technology . C ommenter further stated that the EPA does not have discretion to find that factors such as size of emission reductions and promotion of technological development outweigh the requirements of adequate demonstration and achievability , as EPA's proposed four
- part balancing test would allow. **Response 2.1 -**  **224:** EPA has not done so. See responses above. **Comment 2.1 -**  **225:** Commenter 9666 stated that the interpretation of section 111 that EPA advances in this proposal would write the adequate demonstration and achievability requirements out of the CAA entirel y. Commenter further stated that the EPA appears to have combined these two distinct threshold requirements into its consideration of the technical feasibility of the proposed standard, with the Agency free to grant this factor as little or as much weight as it deems appropriate relative to the other three factors described. 79 Fed. Reg. at 1462
- 63. Commenter further stated that at the outset, this approach fundamentall y misstates the legal requirements for standards of performance under section 111 by incorrectly

assuming that it is the achievability

of the standard, rather than the reliability , effectiveness, and cost of the underlying control technology , that must be adequately demonstrated. Id. at 1463 (ability of plant to meet standard on a few o ccasions adequatel y demonstrated that the standard was achievable). Commenter further stated that the D.C. Circuit has repeatedly held that it is the underl yi ng technology

that must be adequatel y demonstrated, and the ultimate emission standard that must b e achievable. See, e.g., Essex Chem. Corp., 486 F.2d at 433; Nat'l Lime Ass'n, 627 F.2d at 430. **Response 2.1 -**  **225:** As noted in previous responses, EPA agrees that a best sy stem of emission reduction must be adequately demonstrated (considering issues of cost, nonair impacts, and energy requirements) and then determines what level of performance that sy stem can achieve. This determination is not somehow trumped b y consideration of technology promotion, nor has EPA done so here. EPA has also considered the costs of a standard on both the level of the individual source, and nationally . See, e.g. preamble section V. H. 5 (consideration of LCOE on an individual plant basis) and H.6; see also Sierra Club v. Costle , 657 F. 2d at 331 (concluding that EPA may

consider the various f

actors on a national or regional level and not only on a plant
specific level). The EPA has also shown how the actual standard of performance is achievable for all ty pes of sources in the category
. **Comment 2.1 -**  **226:** Commenter 9666 stated that in the proposed rule, EPA stat es that it "may consider the various factors it is required to balance on a national or regional level and over time, and not only

on a plant
- specific level at the time of the rulemaking." 79 Fed. Reg. at 1465 (citing Sierra Club, 657 F.2d at 351). Comment er further stated that the Sierra Club authorizes EPA only to examine the national scale in addition to not instead of assessing a standard's impact on individual sources. See Sierra Club, 657 F.2d at 330. Commenter further stated that before proceeding to consider broader
- scale factors, the Agency must first determine that the source
level impacts of its proposed standard are consistent with all of the statutory criteria of section 111. Commenter also stated that the EPA may not set an NSPS based on nation al
- scale2
- 88

considerations that would impose unreasonable costs, environmental impacts, or energy requirements at the level of individual plants. **Response 2.1 -**  **226:** EPA has based its determination of BSER, and its adequate demonstration, on source - level impacts. See, e.g. preamble section V.H.4 (capital costs considered on individual plant basis). **Comment 2.1 -**  **227:** Commenter 9666 stated that the EPA misapplies the statutory factors for determining a standard based on the "best s ys tem of emission reduction." Commenter further stated that the EPA improperly focuses on the impacts of the proposed NSPS on a broad national level
- impacts that are only minimal because the Agency incorrectly

projects that few EGUs subject to the standard would be built. Commenter further stated that at the same time, E PA ignores that CCS is geologically out of reach, or otherwise prohibitivel y expensive for individual new sources throughout the country . Commenter further stated that the Agency's cost estimates are unreasonable, and its proposal overlooks significant ene rgy and environmental impacts associated with CCS, including parasitic energy requirements and increased water use. Commenter also stated that the EPA wrongl y asserts that it can mandate an unproven technology in the interest of promoting technological dev elopment and that an NSPS need not be achievable by all sources throughout the country to which the standard applies. **Response 2.1 -**  **227:** CCA is not an unproven technology . See NETL 2015 at 36 (“[t]he capture and compression technologies have commercial operating experience with demonstrated ability for high reliability”); preamble section V.D (post
- combustion CCS, including operation at full scale at Boundary

Dam, which plant developers characterize as operating highl y reliabl y and exceeding expectations). See previous resp onses explaining that the final standard of performance is achievable nationally , and so does not advantage any particular region of the country . EPA has also assessed the rule’s costs and other impacts on a per
- plant basis, and per
plant considerations underly the BSER determination, including the determination that the BSER is adequatel y demonstrated. See responses above. **Comment 2.1 -**  **228:** Commenters (9396, 9487, 9650, 9774, 10017, 10023 and 10618) stated that the EPA is seeking to move away from establishing specific em issions standards based on the Best Sy stem of Emission Reduction (BSER) that is adequatel y demonstrated and achievable at the plant level source, regardless of the plant location. Commenters further stated that the EPA argues that it is not necessary to be able to site a coal plant with Carbon Capture and Sequestration (CCS) throughout the country since if a coal plant with CCS is too expensive or not feasible, a utility

can build a natural gas or nuclear base load plant. Commenters further stated that the EPA indicates that regulation applies to electric suppl y and electric generation since coal, natural gas and nuclear power all serve the same essential function of producing electricity. Commenters further stated that this radical policy change would, in e ffect, permit EPA to make fuel choices in lieu of the current situation where fuel choice is selected by the utility through its integrated resource planning (IRP) and affirmed by state public utility commissions, municipal utility commissions or cooperati ve boards. Commenters further stated that the EPA's exercise of its discretion in balancing economic, environmental and energy factors, as practiced in this rule, would allow EPA to rule out whole categories of fuels based on an ever - increasing reliance on emphasizing CO 2 emissions reductions over the economic costs to ratepayers and radically

de
- emphasizing the value of fuel diversity and energy security.2
- 89

**Response 2.1 -**  **228:** The premise of all of these comments is that a standard of performance predicated on partial CCS effec tivel y precludes any new coal capacity

from being built, or at least, precludes such construction in many areas of the country . We show in the preamble to the final rule that sequestration and EOR capacity is widely available, that electricity can be tran smitted long distances so that a coal plant can be located proximate to a sequestration site and still furnish electricity for areas which might lack such capacity . See preamble section V.M. However, we further note that there are alternative compliance pathway s available to meet the promulgated standard which do not involve carbon capture and which would not face any geographic constraint related to CO 2 transport and sequestration. **Comment 2.1 -**  **229:** Commenters (7977, 9407, 10087 and 10097) stated that the NSPS is applicab le to new facilities yet to be constructed, it is permissible for the administrator to "make a projection based on existing technology , though the projection is subject to the restraints of reasonableness and cannot be based on "cry stal ball" inquiry ." Portland Cement 665 F.3d at 391. Commenters further stated that since under Section 111 (a)(2) facilities that have not yet commenced construction at the time of a proposed NSPS regulation must meet the proposed standards, the corresponding technology must be available for new facilities "immediatel y as opposed to one or two ye ars into the future". Portland Cement 486 F.2d 375, 391
- 392 (D.C. Cir 1973) (emphasis added). Commenters further stated that the EPA has provided no factual basis for determining the pro posed BSER is immediately available, reasonabl y reliable or available at a reasonable cost. **Response 2.1 -**  **229:** The commenters correctly cite these portions of the caselaw. The final standard of performance reflects full
- scale, commercial operation of post
- combustion CCS (an d, for that matter, pre
- combustion CCS) (although such full
- scale operation is not an a priori requirement under section 111 (a)(1)). **Comment 2.1 -**  **230:** Commenter 9034 stated that the Proposed Rule seeks to establish separate CO 2 emissions standards for new coal
- and natural gas - fired electric generating units ("EGUs") using separate determinations of BSER, which EPA claims have been adequately demonstrated. Commenter further stated that under the Proposed Rule, natural gas
- fired units exceeding 850 MMBtu/hr would have an emi ssions limit of 1,000 lbs CO 2 /MWh, while those at or under 850 MMBtu/hr would have an emissions limit of 1,100 lbs CO 2 /MWh. Commenter further stated that these standards are based on natural gas combined cycle ("NGCC") technology as the BSER. Commenter further stated that the proposed standards for coal
- fired EGUs, which includes fossil fuel
- fired utility

boilers and integrated gasification combined cycle ("IGCC") units, are 1,100 lbs COz/MWh over a 12
- month operating period or 1,000
- 1,050 lbs CO 2 /MWh over an 84
- month (7 ye ar) operating period. Commenter further stated that these standards are based on CCS technology

as the BSER. Commenter further stated that while new NGCC plants can purportedl y meet the proposed standards for natural gas
- fired units without any add
- on emission controls, EPA concedes that coal
- fired units will have to implement CCS technology to meet the proposed standards for coal plants. Commenter further stated that the EPA estimates that a super critical pulverized coal
- fired EGU produce s approximately 1,800 lbs CO 2 /MWhr. Commenter further stated that it would be impossible for coal
- fired units to meet the proposed standards without controls to capture and store at least 40% of the CO 2 produced. Commenter further stated that CCS technology is not commercially available for coal
- fired power plants.2
- 90

**Response 2.1 -**  **230:** The commenters appear to be suggesting that if the EPA determines that the BSER for one category

of sources is efficient generating technology , then the BSER for another category of sources must also be efficient generating technology and cannot be an add
- on control sy stem, like CCS. The proposition is logically flawed and incorrect. The EPA clearl y has the authority to determine that an add
- on control sy stem is adequatel y demonstrated and is ther efore the BSER for a category

of sources, as the Agency has done countless times over the past 40 ye ars. In regards to the comment that CCS is not commerciall y available for coal
- fired power plants, the commenters are clearl y wrong. Post
- combustion CCS is not only commerciall y available for coal
- fired plants, it is currently being operated at full scale at the Boundary Dam facility
. **Comment 2.1 -**  **231:** Commenter 9507 stated that the proposed NSPS represents a dramatic departure, both in its underpinning logic and its ultimate outcome, from greenhouse gas PSD/BACT permitting guidance issued in November 2010. Commenter further stated that the Agency's prerogative to change its own mind, we do not agree that the fundamental factors espoused in the 2010 BACT guidance have changed s ignificantly in the intervening period. Commenter further stated that in this proposal EPA does not contend
- nor could they
- that those factors have changed in any way . Commenter further stated that the relationship between NSPS and BACT is salient becau se the former, once established, must serve as the floor level for the latter; i.e., BACT can be no less stringent than NSPS. Commenter further stated that the reverse can occur; a permitting authority may issue a more stringent emission standard than NSPS if, on a case - by
- case basis, considering economic, energy , and non
- air environmental impacts, it is determined that such lower standard is achievable. Commenter further stated that the case
- by
case aspect is particularly telling. Commenter further stated that BACT standards may vary based on site
- specific factors but NSPS must be achievable by all affected units. Commenter further stated that the current proposal fails to meet this fundamental criterion. **Response 2.1 -**  **231:** See preamble section XII.C. **Comment 2.1 -**  **232:** Commenter 10023 stated that the EPA's claim that an NSPS can lawfull y preclude construction of new sources in certain geographic locations is flatly wrong. Commenter further stated that it is inconsistent with the CAA, relevant case law. **Response 2.1 -**  **232:** This issue is not posed by the final stand ard given available sequestration and EOR capacity , plus alternative compliance pathway s which do not involve CO 2 capture. **Comment 2.1 -**  **233:** Commenter 0784 stated that the EPA should annually review research and commercial
- size pilot/demonstration projects to determine whether the best available technology has improved. Commenter further stated that when new technologies have been proven technologicall y and cost effective, the emission standards for the next new plants can be made more stringent. Commenter further stated that the FERC and DOE can serve as advisors to the EPA in evaluating best technologies, the robustness of the electric grid, and help determine the economic implications of proposed lower emission standards on customer utility bills, the general economics of the nation, and the public's health. **Response 2.1 -**  **233:** The 8 year review period for NSPS creates an obligation for EPA to continue to monitor technical developments along the lines suggested in this comment.2
- 91

**Comment 2.1 -**  **234:** Commenter 7977 stated that after reviewing the rationale for each of the four factors, the EPA failed to demonstrate and justify its selection of BSER for new coal
- fired EGUs and IGCC units. **Response 2.1 -**  **234:** EPA disagrees. See preamble section V. **Comment 2.1 -**  **235:** Commenter 10046 (Murray Energy) stated that the EPA's lack of understanding of what is need ed to spur development of an emerging technology like CCS can be seen in its reliance on AEP's decision not to proceed with the second phase of its Mountaineer project, where CCS would be scaled up to operate on 235 megawatts (MW). Commenter further stated that the EPA cites AEP's cancellation of that phase of the project, allegedl y due to AEP's inability to get state approval for recovery of the costs absent a regulatory requirement to reduce GHG emissions, as evidence that its proposal will promote further development of the technology , since it is now providing the regulatory mandate deemed lacking. Commenter further stated that the EPA's proposal applies onl y to new coal plants, and therefore would not have addressed the state regulatory concerns over co st recovery because there is no relevant GHG mandate for gas. Commenter further stated that the AEP could simply build a new gas plant and not have to address GHG emission reduction issues at all. Commenter further stated that the regulatory

gap EPA identi fied in the AEP decision still exists because EPA is not setting a federal requirement to reduce GHG emissions from the fossil
- fuel power sector generall y it is only setting a federal requirement to reduce GHG emissions related to coal. EPA's failure to ev en recognize, let alone address, this issue in its assessment of a CCS mandate on new coal units reflects a profound misunderstanding of the issue. **Response 2.1 -**  **235:** First, AEP’s reasoning is not “alleged.” AEP stated publically and prominently

that “as a regulated utility , it is impossible to gain regulatory approval to recover our share of the costs for validating and deplo yi ng the technology without federal requirements to reduce greenhouse gas emissions already in place”. http://www/aep.com/newsroom/newsreleases/?id=1704 . It is a fair inference from AEP’s statement that providing regulatory certainty at the federal level for a GHG reduction requirement can promote use of GHG reduction technologies b y creating a path to cost recovery
. It is also a fair inference that a federal requirement makes it easier to attract other partners (“[t]he uncertainty also makes it difficult to attract partners to help fund the industry’s share” (id.)). The EPA also notes the positive statements from AEP executives regarding the project and CCS generall y: “ AEP still believes the advancement of CCS is critical for the sustainability of coal
fired generation.” 10 This statement looks to the future, and thus encompasses potenti al new coal capacity
. Murray Energy disputes this, arguing that the AEP Mountaineer project involved retrofitting an existing source, and that in any case there is no regulatory certainty provided because the new source standards appl y to coal, or at least only to new coal facilities would reduce GHG emissions (“EPA is not setting a federal requirement to reduce GHG emissions from the fossil
-

10 CCS LESSONS LEARNED REPORT American Electric Power Mountaineer CCS II Project Phase 1, Prepared for The Gl obal CCS Institute Project # PRO 004, January 23, 2012, page 2. See also AEP FEED Study at pp. 4, 63 (same).2
- 92

fuel power sector generally it is only setting a federal requirement to reduce GHG emissions related to coal”). The commenter’s logic is difficult to follow. There are new source standards for NGCC promulgated as part of this rulemaking. New NGCC will also be subject to permit limits reflecting performance of Best Available Control Technology (BACT) (indeed, man y comm enters referred to the BACT permits for natural gas

— fired sources in their comments to this proceeding). The commenter’s distinction between new and existing sources also seems to be a distinction without a difference

– AEP was addressing CCS technology, not whether the technology

would be deployed on new or existing sources

– and in any case the EPA is also adopting emission guidelines for existing sources as well. EPA thus does not find this comment persuasive. See also preamble section V.P.1.b. **Comment 2.1 -**  **236:** Comm enter 10396 stated that the EPA lacks adequate reasoning and justification to require CCS technologies to meet proposed emission limits for coal plants. Commenter further stated that this action sets a dangerous precedent allowing federal agencies to estab lish regulations not based on statutory or legal requirements and lacking sound technological or economic reasoning. **Response 2.1 -**  **236:** The commenter is mistaken. The final standard of performance is well
justified based on the requirements of CAA section 111 (a). **Comment 2.1 -**  **237:** Commenter 9773 stated that after accounting for the cost of CO 2 transport, states like Wisconsin that lack proven sequestration sites will be at a competitive disadvantage when it comes to energy

resources. Commenter further stated that this condition would be detrimental to Wisconsin's generation portfolio, which is predominantly coal, and our strong manufacturing econom y. Commenter further stated that in the preamble to the proposed rule, citing Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir App 1981), EPA recogniz ed that an NSPS standard cannot create an advantage for one state over another. Commenter further stated that an NSPS that mandates the use of CCS will clearly put states without carbon sequestration capacity, such as Wisconsin, at an economic disadvantage which, as noted, is contrary to the CAA. **Response 2.1 -**  **237:** The final standard of performance does not mandate use of any particular technology , both because it is a performance standard (rather than a section 111 (b) (5) design standard), and because the EPA has reasonabl y found on the record that there are a variety of compliance paths available, some of which do not involve the necessity of carbon capture, EPA does not believe that this comment is accurate. **Selection of a Technology as BSER to Promote Technological Develo pment**  **Comment 2.1 -**  **238:** Commenters (10098 and 10660) stated that in the absence of actual operating data, EPA may also base its "adequatel y demonstrated" finding on "other qualitative methods, including the reasonable extrapolation of a technology 's performance in other ind ustries." Lignite Energy

Council v. USEPA, 198 F.3d 930, 934 (D.C. Cir. 1999) ... see also Int'l Harvester, 478 F.2d at 642 ("One must distinguish between prediction and prophecy " by requiring "a showing of reliability of the methodology

of prediction."). Commenters further stated that although EPA may take into consideration emerging technologies, it ultimately must rely on hard, objective data demonstrating that the technology will perform reliably

for the source category

under consideration. Commenters f urther stated that standards may not be based2
- 93

on emission control technologies that are "purel y theoretical or experimental," Essex Chem., 486 F.2d at 434, nor "based on a 'cry stal ball' inquiry ." Portland Cement Ass'n, 486 F.2d at 391; see Costle, 657 F.2 d at 362 (emission limit could not be achievable based on test data from "non
lime/limestone processes" because they "are not widely

available"). Commenter 10098 (API pp. 16
- 17) draw s from these cases the proposition that, although BSER may be an emerging technology , “[a]ll projections of future performance must be grounded in a showing that control technologies are ready for relativel y wide
- spread commercial use” after considering cost and other enumerated factors. The commenter, in particular, cites Sierra Club , 657 F. 2d at 362, for this proposition. **Response 2.1 -**  **238:** These comments accurately quote these passages from the caselaw. However, API goes too far in its assertion that a control technology must be in widespread commercial use as a pre
- condition to its selection as BSER. Indeed, consistent with the legislative history

to section 111, the D.C. Circuit has held otherwise since the inception of its review of section 1111 NSPS. Thus, in Portland Cement, the court stated “The Senate Report made clear that it did not intend that the technology ‘must be in actual routine use somewhere’. The essential question was whether the technology would be available for installation in new plants”. 486 F. 2d at 391, quoting S. Rep. No. 9
- 1196, 91 st Cong. 2d Sess. 16 (1970). The commenter, moreover, reads too much into Sierra Club. At issue in this part of the opinion was whether a level of 92 % removal was achievable using scrubbers . The court upheld the standard, even though it was “higher than has been actuall y demonstrated over the long term b y currently operating lime scrubbers at plants burning high sulfur coal.” Id. at 364. Key items of record information providing substantial support were EPA’s engineering description of steps that could be taken to improve performance, technology vendors’ support for the standard, and availability of the technology

performing at the higher level overseas. Id. at 363
- 64. The court looked exclusively

to information on lime/ limestone systems for evidence of achievability , given EPA’s emphasis on these s ys tems and because “non
- lime/limestone processes are not widely available”. Id. at 362. EPA views this part of the opinion as specific to the facts involved, where the agency itself placed emphasis on a different technology to show that a particular level of performance was achievable. The facts here differ. At issue here is availability of partial CCS (rather than its level of performance), and EPA has shown both that the t echnology is available (including full
scale operation at the Canadian Boundary Dam facility), how (for pre
- combustion applications) it can be adapted for use at an IGCC facility (should a source choose this alternative compliance path) , and how pilot and demonstration scale projects can be successfully scaled up. These facts are similar to those which the court cited to uphold the 92% standard (e.g. explanation of how performance can be adapted, foreign facility operation, some full scale commercial appli cation). **Comment 2.1 -**  **239:** Commenters (9201, 9425, 9514 and 10098) stated that the EPA has exceeded its authority under the NSPS to enact technology
- forcing provisions by selecting a standard that can only

be met by

a single control technology that is not yet commerciall y v iable. Commenter 10098 further stated that the Clean Air Act requires a review of the NSPS no later than every

eight years to determine if adequatel y demonstrated technologies have changed. Commenter further stated that after that review, if a new control technology meets all the CAA criteria, EPA may

then propose changes to the NSPS. **Response 2.1 -**  **239:** First, the record here indicates that partial CCS is adequatel y demonstrated: available for the next new coal EGU (either SC PC or , should an alternative compliance pathway2
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be selected, IGCC), at reasonable cost and reliability after considering potential nonair quality impacts and energy

requirements. Nor is the technology in a chry salis state. Full scale, commercial demonstration of the technology exists for post
- (Boundary Dam), and pre
combustion (Dakota Gasification, which technology is transferable to the fossil fuel EGU sector). **Comment 2.1 -**  **240:** Commenter 10098 stated that in explaining how it selected CCS as BSER for coal
- fired EGUs, EPA overstates the technology
- forcing nature of the NSPS. Commenter further stated that nothing in Section 111 or EPA's implementing regulations supports this claim. See generally , 42 U.S.C. section 7411(a)(1) (defining "standard of performance"); 40 C.F.R, Part 60. Commenter further stated that the EPA rel ies heavily on Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) to justify its selection of CCS on technology
- forcing grounds, however, Costle involved a very

different situation. Commenter also stated that the EPA justified its use of a variable sulfur dioxide emission limitation, in part, to accommodate the future development of dry scrubbing technology. I d. at 340
- 341. Commenter also stated that the court upheld this decision because the emission limitation was deemed to be achievable b y wet scrubber s and coal washing, which were commonly used in commercial operations at the time, Id. at 348, 356, not because EPA selected a risky experimental technology with a dearth of operating data. Commenter also stated that the court in Costle allowed EPA to sele ct a flexible emission limitation that could accommodate both controls in commercial operation at the time and those on the verge of commercial operation. Commenter also stated that is far different than EPA's exclusive reliance on pollution controls that are not yet used in commercial operations. **Response 2.1 -**  **240:** The EPA is not here selecting a “risky experimental technology” in order to promote its development, nor is it raising consideration of technology development to a level of more importan ce than the enumerated stat utory factors. As noted in other responses, the EPA would select partial CCS as BSER whether or not the objective of promoting technology (as a factor in “best”) were considered. Moreover, CCS is considerably further developed than was dry scrubbing in 1 979. Unlike dry scrubbing in 1979, CCS (indeed, full CCS) is demonstrated in full
- scale commercial application for both post
- and pre
- combustion capture. Compare with Sierra Club , 657 F. 2d at n. 157; see also id. at 363
- 64 (upholding 92% removal standard for SO 2 based on performance of lime scrubbing even though no existing plant was achieving that level of performance, based in part on EPA’s engineering explanation of how performance could be improved). **Comment 2.1 -**  **241:** Commenter 10098 stated that the EPA's assertion that a regulatory de facto mandate to use CCS is required in order to develop CCS is false and ignores the legal standard of Section 111. Commenter further stated that the EPA and other permitting agencies have repeatedly

refused to require CCS for coal
- fi red EGUs as BACT. Commenter further stated that nevertheless, EPA claims that coal
- fired EGUs using CCS are progressing to the demonstration stage. See 70 Fed. Reg. at 1,435 (discussing two CCS projects that are under construction and two other planned pro

jects). Commenter also stated that in fact, CCS for coal
- fired EGUs has progressed to some degree over the past thirty years on the strength of government
- funded research and development, not regulatory mandates. **Response 2.1 -**  **241:** First, EPA may not, and has not ignored the requirements of section 111 (a). it is the basis for the agency ’s action here, and EPA has carefull y adhered to this provision’s2
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requirements. Second, responses related to individual, plant
- specific BACT determinations (none made b y EPA involving a coal
- fired EGU, incidentally) are found at preamble section X I I.C. See preamble section V.Lregarding explaining how a regulatory standard predicated on performance of partial CCS can serve to promote use of the technology
. **Comment 2.1 -**  **242:** Commenters (10052 and 10098) stated that the goal of promoting the development and deplo yment of one specific technology
- CCS
- is unlawful under the CAA. Commenters further stated that there is no statutory or regulatory provision permitting EPA to consider the promotion or development of an y specific control technology in determining BSER. Commenters also stated that in fact, the NSPS explicitly prohibits this rationale: CAA section 111(b)(5) does not "authorize the Administration to require, any new or modified source to install and operate any

particular technological sy stem of continuous emission reduction to comply with an y new source standard of performance." 42 U.S.C. section 7411(b)(5). Commenters stated that the EPA's rationale that CCS must be selected as BSER (to the exclusion of an y other option) in order to promote the development and deplo ym ent of CCS is arbitrary , capricious, and not in accordance with the Clean Air Act. **Response 2.1 -**  **242:** The final standard of performance is not a section 111 (b)(5) design standard. It is a numerical performan ce standard, which can be met by any means a source chooses. The EPA has shown that various compliance paths are available for coal
- fired steam electric generating units , some of which do not involve CO 2 capture. **Comment 2.1 -**  **243:** Commenters (9780, 10023, 10036, 10098 and 10119) stated that the advancement of CCS technologies is not dependent upon EPA's selection of CCS as BSER, but largel y on other factors. Commenters further stated that to the contrary, EPA's selection of CCS as BSER is likely

to inhibit the development of the technology
. Commenter 9664 stated that the proposed rule discourages private sector investment in CCS technology

development, and without that investment, the technology may never be commercialized. **Response 2.1 -**  **243:** See preamble section V.I.4 and L
. **Comment 2.1 -**  **244:** Commenters (5537 and 9664) stated that while the 1990 Amendments removed explicit references to the selection of technology , the D.C. Circuit has since expressed that the forward looking and technology
- forcing nature of the statute has not changed. Commenters further stat ed that the recent case law aligns with decisions in all of the cases since section 111 was enacted, holding that EPA must look to the technological vanguard when setting new source standards so as to encourage innovation and avoid the additional costs ass ociated with the need to later retrofit controls. Commenters also stated that the statutory factors which EPA must weigh (when setting performance standards) are broadly defined and include within their ambit subfactors such as technological innovation." S ierra Club, 657 F.2d at 346. Commenters further stated that the agency may thus promulgate standards that reflect "improved design and operational advances" that the regulated industry has yet to realize, so long as there is substantial evidence that such improvements are feasible and will produce the improved performance necessary

to meet the standard. Id. at 364; see also Portland Cement Ass'n v. EPA (Portland Cement III), 665 F.3d 177, 190 (D.C. Cir. 2011) (EPA properl y based the NSPS for2
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new cement kiln s on a recent and more efficient model, even though many older kilns still existed that did not utilize the same technology). Moreover, EPA can "extrapolat[e] . . . a technology's performance in other industries," and look beyond domestic facilities to tho se used abroad. Lignite Energy

Council, 198 F.3d at 933
- 34 & n.3. **Response 2.1 -**  **244:** The EPA l argel y agrees with these comments. **Comment 2.1 -**  **245:** Commenter 9664 stated that the EPA's anal ys is of future electric power markets concludes that without the proposed rule, no new fossil fuel fired power plants with CCS will be built throughout both the 8
- ye ar assessment period described in the RIA, or through the more extended outlook provided b y EIA's projection (2034). Commenter further stated that the EPA's analy sis also concludes that, with the proposed rule requiring CCS on any new coal
- fueled power plants, no new fossil fueled power plants with CCS will be built throughout the anal ys is period. Commenter also stated that it is difficult to discern how EPA has reasoned from these conclusions that the proposed rule will encourage deploy ment of CCS technology
. **Response 2.1 -**  **245:** See preamble section V.I.4. **Comment 2.1 -**  **246:** Commenter 9406 stated that the EPA never explains why , in its view, requiring CCS of coal
- fired units would promote the development and implementation of technolog y, but requiring it of gas
- fired units would not. Commenter further stated that in fact, by offering the choice between CCS
- controlled coal on the one hand and uncontrolled NGCC units on the other, EPA is instead providing a distinct disincentive, and like ly a roadblock, to the further development and deploy ment of CCS technologies. Commenter also stated that given the cost disparities, as admitted by EPA in its L COE analy sis and discussed earlier in these comments, between CCS equipped coal units and NGCC units without CCS, the proposed NSPS simply and irretrievabl y i ncentivies a further build
- out of NGCC units and the freezing of an y new investments in the development of CCS. Commenter stated that b y effectivel y forcing utilities to choose natural gas over coal, EPA just as effectivel y frustrates the further development and implementation of CCS technology , because no one is required to install CCS on gas units. **Response 2.1 -**  **246:** See preamble section IX.C.4. **Comment 2.1 -**  **247:** Commenter 9406 stated that the EPA has made consistent practice of determining BSER under section 111(b) b y examining existing sources, as well as technologies that have been either newly developed or used only

in other industries. Commenter further stated that the EPA has followed that practice in this rulemaking for co al
- fired units. **Response 2.1 -**  **247:** Case law has held repeatedly that BSER need not be based on technology already operating at commercial scale. See preamble section V.G.1 and responses above. **Comment 2.1 -**  **248:** Commenter 10034 stated that the reason that EPA determined that partial CCS was BSER was that this system ensures that any new fossil fuel
- fired utility boiler or IGCC unit will achieve meaningful emission reductions in CO 2 , and it will also encourage greater use, development, and refinement of CCS technologies. Commenter further stated that the EPA's anal ys is indicates that this rule not result in "meaningful" emission reductions, or even in any emission reductions at all. Commenter also stated that the fa ct that EPA does not predict that any2
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new coal
- fired power plants will be built means that there will not be an opportunity for "greater use, development, and refinement of CCS technologies." Commenter stated that any use and development of CCS technologie s will only come from existing EGUs that are not regulated by this standard. Commenter also stated that the on both counts, EPA's determination of BSER rings hollow due to the contradictions between these goals and EPA's cost estimates and EGU projections. Commenter stated that either the reasons why EPA determined partial CCS as BSER are false, and the regulation will not result in significant CO 2 reductions, or EPA's projections for coal
- fired power plants are inaccurate, and the regulation will have subs tantial costs. **Response 2.1 -**  **248:** In some way s, the various commenters on this issue are trying to have it both way s. Public comments from industry to EPA’s initial proposal, which would have based a standard on performance of NGCC as BSER, maintained that a standard should reflect the possibility

of new coal
- fired capacity being constructed, and comments both to that proposal and the present one further maintained that a standard should reflect performance of an SCPC . We demonstrate in the record here both that post
- combus tion CCS is available, technicall y feasible, and adequatel y demonstrated within the meaning of section 111 (a), and that its performance will result in considerable reductions of CO 2 compared to an SCPC. See preamble section V.K. Although we continue to project that no new non - compliant coal
- fired capacity will be constructed during the review period for reasons unrelated to this rule, see RIA chapter 4, if commenters are correct (although no specifics appear in any of the comments), the regulatory standard will not only

result in emission reductions but will also serve to promote the technology . See preamble section V.I.4 noting among other things AEP’s public statements of withdrawin g from the M ountaineer (successful) pilot project based on lack of regulatory certainty that standards based on use of CCS will be required, and general uncertainty as to what will be required. That uncertainty is now eliminated. **Comment 2.1 -**  **249:** Commenter 9666 stated that the EPA is correct that the D.C. Circuit has allowed the Agency

to c onsider "which level of required control will encourage or preclude development of a technology that promises significant advantages" with respect to the statutory factors of cost, environmental, and energy impacts. Sierra Club, 657 F.2d at 347. Commenter further stated that this consideration may come, however, onl y after EPA has eliminated as BSER those technologies that have not been adequately demonstrated. Id. at 330. Commenter also stated that the Agency cannot use section 111 to mandate the use of unproven control sy stems under the guise of "promoting technological development." Commenter stated that the CAA permits EPA to consider what emission limit, selected from a range of limits achievable using adequatel y demonstrated controls, would encourage the development of other technologies not chosen as BSER. See id. at 348 (noting that technology being promoted was not adequately demonstrated or BSER). **Response 2.1 -**  **249:** The EPA agrees that simply promoting an otherwise unproven technology , no matter how promising, would b e insufficient to show that the technology is “adequatel y demonstrated” under section 111 (a). The EPA has not done so here. After careful consideration of technical feasibility , cost, nonair quality impacts and energy

requirements, the agency has found that partial CCS is BSER. Key supporting evidence for this determination is the successful operation of the technology at full commercial scale (unlike the situation for dry scrubbing in Sierra Club , cited by the commenter).2
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**Comment 2.1 -**  **250:** Commenters (4926, 8501, 9396, 9486, 10391 and 10395) stated that the EPA is wrongl y conflating adoption of proven, reliable, cost
- effective and achievable technology with the ability

to force technology

development by

requiring adoption of a technology still in development. Commenters further stated that the EPA inappropriatel y seeks to force technology development through a BSER determination. Commenters further stated that the EPA argues that only by requiring the technically feasible CCS technology will industry

develop and adopt it. Commenters further stated that the D.C. Court of Appeals has found that a newer technology must meet a far higher standard to assure that it is achievable b y industry. Commenters further stated that where deplo yment of the technology is very limited, then cost becomes a much more significant factor in determining BSER. Commenters further stated that the EPA claims that a D.C. Circuit Court of Appeals decision, Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973), supports its position that S ection 111 is technology forcing, quoting the court as stating that Section 111 looks toward what may fairl y be projected for the regulated future, rather than the state of the art at present, since it is addressed to standards for new plants. Commenters f

urther stated that the EPA fails to mention is the court's further statements that, it is the achievability

that is at issue, and, since the standards here put into effect will control new plants immediately , as opposed to one or two years in the future. **Response 2.1 -**  **250:** T he EPA is mindful that new source standards must be met by the next plant to be built, and is not basing its BSER determination on the desire to promote an emerging technology . As noted in the preamble and in other comment responses, the EPA would make th e same determination whether or not considering the (legitimate and recognized) factor of technology

innovation (as an aspect of best s ys tem) while weighing the enumerated statutory factors. Cf. Sierra Club , 657 F. 2d at 346 (“So long as EPA considers inn ovative technologies in terms of their prospective economic, energy , nonair health and environmental impacts the agency is within the scope of its authorized anal ys is”). **Comment 2.1 -**  **251:** Commenter 10618 stated that the States have retained authority for the regulation of electricity production and no federal statute provides EPA with authority to preempt state decisions regarding the need for, location of, design, services provided by, or rates to be charged to recover the costs of electricity generation. Commenter further stated that the EPA's standard of 1,100 pounds of CO 2 per MWh of electricity and its reliance on CCS to support that standard, usurp States' authority to incentivize siting and development of the more efficient coal
- fired generating technologies that EPA rejected in establishing the standard. Commenter further stated that the EPA fails to recognize the broader role coal production and handling play

in the economies of certain States, and the unavailability of economic opportunities for CCS to be used in co njunction with EOR opportunities. **Response 2.1 -**  **251:** EPA is mindful of States’ authorities. Nothing in the final standard of performance preempts state decisions regarding state public utility authority regarding location, design, or rates. **Comment 2.1 -**  **252:** Commenters (9197 and 10294) stated that instead of mandating technology that is not commercially
- available, the final NSPS rule needs to recognize the DOE timeline and allow for commerciall y - available technology to reduce CO 2 emissions and allow utilities the flexibility to continue to innovate and achieve greater efficiency , as well as allow commercial CCS technology

to "come into its own," all while utilizing our abundant, affordable, and reliable2
- 99

coal reserves. Commenters further stated that failure to d o so will greatl y increase electricity prices, increase reliance on natural gas and threaten the reliability of the grid by

diminishing fuel choices to generate stable, baseload electricity, as well as cause the loss of thousands of jobs in the coal
- mining and manufacturing sectors. **Response 2.1 -**  **252:** The DOE timeline referred to by commenters was for full CCS, not partial. Nor is EPA mandating use of a technology in this rule, but rather adopting a standard achievable through use of BSER but which can be met in any manner a source chooses. **Comment 2.1 -**  **253:** Commenter 9486 stated that an y requirement that results in the reliance of one particular control technology is in contradiction with Section 111 (b)(5) of the CAA. Commenter further stated that the EPA has evaluated GHG emission reduction s focuses solel y on a limit of CO 2 per megawatt hour and onl y relies on CCS as a means to meet the requirement. Commenter further stated that the EPA has not adequatel y evaluated other possibilities of achieving cost
- effective reductions, including the use of more efficient generation such as Ultra
Supercritical Generation. **Response 2.1 -**  **253:** As noted in other responses, the final standard is not a section 111 (b)(5) design standard given that there are multiple potential compliance pathways. As explained in section V.P of the preamble to the final rule, ultra
- supercritical PC units still do not perform as well as units utilizing post - combustion partial CCS. **Comment 2.1 -**  **254:** Commenter 9497 stated that the EPA's past experience in the successful promotion of emissions reductions in the power sector should serve as a guide in its current efforts with respect to CO 2 . Commenter further stated that the success of efforts to control SO 2 and NOx emissions resulted from the s ynergies between the push of technological development and the pull of regu lation. Commenter further stated that beginning with the 1970 Clean Air Act, such sy nergies between the push of technologies developed through government
- supported research, development and demonstration (RD&D) programs, and the regulatory pull of pollutio n control rules, including the compliance flexibility allowed by

cap and trade programs, were highl y effective in reducing power plant emissions of SO 2 and NOx. Commenter further stated that when cap and trade proves unavailable, setting emission limits mu st take into consideration the maximum feasible pace of technological RD&D. Commenter further stated that it took more than a decade of U.S. government RD&D sponsorship for SO 2 wet scrubbers to be perfected from an already existing technology developed in Britain before World War II, and decades longer for scrubbers to reach their current efficiency and economics of operation. **Response 2.1 -**  **254:** See preamble section V.L and V.I.4. **Comment 2.1 -**  **255:** Commenter 9497 stated that given the current costs and stages of the necessary technology , EPA' s proposed rule can be expected to stifle, not promote, investment in CCS, because it raises the prospect of penalties when and if CCS fails to achieve the standards. Commenter further stated that with the rule in place with specific, restrictive standards utilities will be more reluctant to commit time, effort and dollars to unproven technology , even if it promises some degree of CO 2 control. Commenter further stated that utilities and their state regulators will have even greater incentives to build only gas - fired generation resources to meet load growth and replace retiring power plants.2
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**Response 2.1 -**  **255:** The technology is not unproven. It is demonstrated at full scale at Boundary Dam, and (as pre
- combustion CCS) at Dakota Gasification. **Comment 2.1 -**  **256:** Commenter 9396 (AFFORD p. 16 and Table 1) contrasted the amount of information available for wet scrubbers and dry scrubbers in 1971 and 1979 with the state of development of CCS here. Specificall y, the commenter noted the amount of operating capacity, financing, and construction, and co ncluded that far less operating history and information is available for CCS than for wet scrubbing (which was judicially sustained as BSER), and that the situation is more comparable to dry scrubbing (found not to be adequatel y demonstrated). **Response 2.1 -**  **256:** See preamble section V.G.3 , as well as other comment responses, explaining that there is in fact considerabl y more information regarding the demonstration and feasibility of post - combustion CCS than was available for dry scrubbing, and that EPA easily satisfies the st andard set out b y the court in Sierra Club for showing that a technology is demonstrated
. **Comment 2.1 -**  **257:** Commenters (9650 and 10046) stated that the EPA has no reasonable basis to conclude that a CCS mandate will do an ything other than retard CCS development, the EPA is obligated, for this reason alone, to change its proposal. Commenters further stated that it is also required because the legislative history EPA cites in the preamble makes clear that Congress did not grant EPA authority

to set a technology
- forcing NSPS th at would inhibit development of the technology

EPA is trying to force. **Response 2.1 -**  **257:** See preamble section V.I.4. 

### 2.1.4 **Promulgation of Rules Not Proposed Comment 2.1**  **- 258:**  Commenter 10098 stated that the NSPS rulemakings are subject to CAA section 307(d). CAA section 307(d)(1)(C). Commenter further stated that among other requirements, the rulemaking proposal must "be accompanied b y a statement of its basis and purpose," that includes: (A) the factual data on which the proposed rule is based, (B) the methodology

used in obtaining the data and in analyzing the data; and (C) the major legal interpretations and policy considerations underl yi ng the proposed rule. Id. section 307(d)(3). Commenter also stated that all of those required "data, information, and documents" must be "included in the docket on the date of publication of the proposed rule." Id. CAA section 307(d) also establishes requirements for final rules. Commenter stated that among other things, the promulgated rule must be accompanied b y (1) a statement of basis and purpose like that required for the proposed rule, (2) an explanation of the reasons for any major changes in the promulgated rule, and (3) a response to each of the significant comments submitted during the comment period. Id. section 307(d)(6)(A), (B). Commenter furthe r stated that these requirements are fundamental to both reasoned decision making and judicial review. Small Refiner Lead Phase
Down Task Force v. EPA, 705 F.2d 506, 519 (D.C. Cir. 1983) (the fundamental purpose of CAA section 307(d)(3) is to require that "EPA give a detailed explanation of its reasoning at the proposed rule stage" of the rulemaking process); Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 (D.C. Cir. 1977) (per curiam) (without a response to significant comment, the "opportunity to comment is meaningless").2
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**Response 2.1 -**  **258:** EPA has fully complied with all requirements of CAA section 307 (d) , including explanations for changes from the proposal made in response to public comm ent . See, e.g. preamble section IV.B.1. **Comment 2.1 -**  **259:** Commenter 5731 stated that the best sy stem of e mission reduction must be source - based and not s ys tem - based. Commenter further stated that standards of performance should be based on reductions in CO 2 emissions that can be reasonabl y achieved through actions at individual electric generating units, such as on - site energy efficiency

measures. Commenter further stated that once the source performance standards are set, then the states should have flexibility in implementing the standards to help reduce compliance costs. **Response 2.1 -**  **259:** We discuss in the preamble our views on the type of BSER that the EPA may determine under CAA section 111(a)(1). **Comment 2.1 -**  **260:** Commenters (0840 and 5731) stated that the States should be afforded maximum flexibility

and discretion in developing their plans and determining how each EGU within the state may comply , taking into account remaining useful life. Commenters further stated that each state is different with respect to electric generation mix and energy markets. Commenters further stated that with such diversity, there can be no one
- size
- fits
- all app roach. Commenters further stated that a single numerical standard for all EGUs is not feasible, but state plans could justify

source - specific standards and a best management practice approach, including heat rate improvements through operations optimizatio n and best available technology economicall y achievable. **Response 2.1 -**  **260:** This comment refers to provisions in CAA section 111(d)(1) and is not relevant for this section 111(b) rulemaking. **Comment 2.1 -**  **261:** One commenter (1681) stated that EPA's carbon regulations should provide states with all the flexibility they need in order to develop plans that suit their unique circumstances, including continuing their reliance on coal if they choose that approach. Also, the EPA must give states ample time to develop and implement their plans. **Response 2.1 -**  **261:** This co mment refers to provisions in CAA section 111(d)(1) and is not relevant for this section 111(b) rulemaking. **Comment 2.1 -**  **262:** Commenter 9425 supported the flexible concepts of using energy efficiency , demand side management, renewables, biomass, offsets and retirements as o ptions to demonstrate compliance with a GHG NSPS. Commenter requested the EPA to proceed with caution and avoid setting a "one size fits all" generating unit efficiency requirement. Commenter further stated that energy efficiency improvement opportunitie s are unique to each facility and even each unit, and should be considered on a case
- by
- case basis. Commenter further stated that credit should be given for efficiency improvements already achieved prior to rule implementation. **Response 2.1 -**  **262:** The final standard of perfo rmance is achievable (see preamble section V.J) and there are multiple available compliance paths for doing so. The EPA believes this provides ample operational flexibility
.2
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**Comment 2.1 -**  **263:** Commenters (0840, 2472, 4814, 4867, 8501, 8970, 9201, 9320, 9779, 9780, 10555 and 10869) stated that when EPA and the states ultimately promulgate standards for existing EGUs under CAA section 111(d), they should ensure that owners and operators of such existing EGUs receive the benefit of a safe harbor from the section 111 GHG standards for modified EGUs. Commenters further stated that owners and operators of EGUs should have certainty that ph ys ical or operational changes made to their facilities for the purpose of complying with a CAA section 111(d) standard will not trigger the stand ards for modified EGUs. Commenters further stated that the EPA has integrated such safe harbors in past CAA section 111(d) regulations. **Response 2.1 -**  **263:** We address this issue in the section 111(d) rulemaking. **Comment 2.1 -**  **264:** Commenters (9486 and 10239) stated that the EPA's proposed appro ach to EGUs, we urge the EPA to avoid repeating the errors in this approach for other manufacturing sectors in the future. Commenters further stated that there are distinctions between the utility and manufacturing sectors that warrant fundamentally different considerations and approaches to regulating these other sectors. Commenters further stated that the GHG emissions associated with other source categories are generally significantly

lower than those from EGUs, the technologies and processes utilized ar e ty pically more complex, and the ability to switch fuels and designs is more constrained. Commenters further stated that most manufacturing sectors, unlike EGUs, are trade exposed and are unable to pass through the cost of compliance. **Response 2.1 -**  **264:** This comment is beyo nd the scope of the present proceeding, although, as noted in other comment responses, since the inception of the section 111 (a) program, courts have noted that each standard is to be justified independentl y, and determinations for one industry are not pr ecedential for different industries. See Portland Cement , 486 F. 2d at 389. **Comment 2.1 -**  **265:** Commenter 9779 stated that to avoid unintended negative impacts on the power sector, PSE requests that EPA allow the use of market
- based approaches, as contemplated in the Presidential Memorandum, rather than require technology
- forcing approaches similar to those proposed in the current Section 111(b) rule. **Response 2.1 -**  **265:** The final standard of performance is achievable by a number of different pathway s, and is not constraining. See also preamble section XI. **Comment 2.1 -**  **266:** Commenter 9779 requested the EPA to promote off
- facility measures that could be implemented across the entire power sector, such as credits for renewable resources and energy efficiency

measures. **Response 2.1 -**  **266:** We discuss in the preamble the ty pes of the BSE R under section 111. **Comment 2.1 -**  **267:** Commenter 10119
- 2594 states the Proposed Rule must be revised to include performance standards for modified and reconstructed facilities in accordance with the plain requirements of the Clean Air Act. Commenter 10119 further objects t o EPA’s proposal with respect to the Wolverine project in Michigan, the Plant Washington project in Georgia and the Holcomb 2 project in Kansas
.2
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**Response 2.1 -**  **267:** In this rule, EPA is finalizing requirements for reconstructed sources and certain modified sources. With respe ct to certain other modified sources, EPA is deferring action, as discussed in Sections VI and IX in the Preamble. With respect to the comment on EPA’s propos al concerning the Wolverine project in Michigan, the Plant Washington project in Georgia and the H olcomb 2 project in Kansas, as discussed in Section III.J. of the preamble, EPA is not finalizing this proposal. **Comment 2.1 -**  **268:** Commenter 9596 stated that the EPA should continue to employ its authority to subcategorize among EGUs in the utility sector. Commenter further stated that the EPA's decision to set a single standard for all fossil
- fueled EGUs in its now
- withdrawn 2012 proposed NSPS for CO 2 was not only legally suspect, but also represented bad energy policy because it would have effectivel y banned the use of coal for new electricity generation. Commenter further stated that the EPA's decision to propose separate standards for coal and natural gas units corrects the agency's earlier departure from its own precedent, and represents a more appropriate approach to re gulating EGUs. **Response 2.1 -**  **268:** We are finalizing separate standards for steam EGUs and for natural gas units in the final rule. **Comment 2.1 -**  **269:** Commenter 9513 stated that in reviewing the proposed NSPS we are mindful of the relationship between the NSPS under 111(b) and the forthcoming guidelines for existing sources that the EPA will issue in June of 2015 under section 111(d). Commenter further stated that as a legal matter regulation under section 111(b) is a predicate for the 111(d) guidelines that will follow for existing sources. Co mmenter further stated that the EPA may find it difficult to justify

a requirement for efficiency improvements at the large majority of existing units that would already meet the NSPS. Commenter further stated that the EPA proposal would exempt large numbe rs of CTs and CCGTs from the NSPS, which could affect the manner in which the 111(d) guidelines address existing CT and CCGT units. **Response 2.1 -**  **269:** The applicability requirements of this rule and the section 111(d) are consistent, so that this rule serves as a predicate f or the section 111(d) rule with respect to the sources that are affected EGUs under the section 111(d) rule. **Comment 2.1 -**  **270:** Commenter 4814 stated that the timing of requirements for reducing GHG emissions from existing power plants should factor in the realities of coal plant closures. Commenter further stated that these plants are being closed due to several factors including: economics of the plants versus natural gas facilities; cost of environmental compliance; uncertainty regarding additional environmental compliance ; little or no load growth in the utility service territories; and the natural end of useful life of a significant portion of the coal fleet in the U.S. Ensuring continued reliability must be a key

consideration when these rules are established. **Response 2.1 -**  **270:** We respond to comments similar to this in the section 111(d) rulemaking. This comment is not relevant for this rulemaking. **Comment 2.1 -**  **271:** Commenter 4814 stated that through resolutions adopted by the National Association of Regulatory Utility Commissioners and the Southeastern Ass ociation of Regulatory

Utility Commissioners, public utility regulators agree with the attorney s general that2
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the Clean Air Act and its implementing regulations for existing power plants limit EPA to issuing guidelines pertaining to existing fossil generat ing units. Commenter further stated that these regulators recommend that the guidelines recognize emissions reductions that have already been achieved. Commenter further stated that Regulators cautioned EPA not to impinge on the flexibility of states to de velop and implement existing power plant regulations that lower both the cost and reliability

risks from the regulation. Commenter recommended that EPA engage with the policy

maker teams in all SSEB states as the President directed in his June 25, 2013, mem orandum to EPA, and that EPA include other federal agencies and departments having expertise in and responsibility for the econom y and the electric s ys tem. **Response 2.1 -**  **271:** We address comments similar to this in the section 111(d) existing source rule. This comment is not relevant for this rule. 

### 2.1.5 **Application of BSER Comment 2.1**  **- 272:**  Commenter 10098 stated that it is a basic principle of administrative law that, where an agency

changes its position, it "must supply a reasoned analy sis." Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. In s. Co., 463 U.S. 29, 57 (1983). Commenter further stated that the proposed rule dramatically reverses EPA's assessment of the state of CCS technology from the 2012 proposed rule but provides no reasoned anal ys is to support this departure. Commenter also stated that the EPA has not cited any new information justifying a change in its initial position that CCS should not be designated as BSER. Commenter stated that each of the projects it relies upon in the current proposed rule to justify its selection of CCS was also cited in the 2012 rule. Commenter further stated that no coal
- fired power plant has begun successful commercial operations with a CCS unit and there have been no breakthroughs to ease the technical and economic burdens of the technology . Comm enter further stated that many of these projects have suffered delay s and/or significant cost overruns that threaten their viability
. Without actual operating data or some new information showing that CCS has been successfull y employed at the commercial sc ale, EPA cannot provide any "reasoned analy sis" explaining its change in position. **Response 2.1 -**  **272:** The EPA finds dubious the commenter’s proposition that a withdrawn proposal reflects a definitive agency position for which change requires a full
- blown justification. State Farm and progen y apply to changes from definitive positions established by final agency

action. Moreover, major aspects of the withdrawn 2012 proposal discussion of CCS remain unchanged. There, as here, EPA indicated (initially) that CCS was techni call y feasible. 77 FR at 22414. There, as here, EPA indicated that sequestration of captured CCS was technicall y feasible and available, and noted the Class VI regulatory program and the subpart RR reporting and monitoring rules as support. Id. at 22415 . EPA proposed a 30
- ye ar compliance option based on performance of CCS (at a higher capture rate than the BSER ultimately selected here). The less stringent standard being adopted makes this approach unnecessary
. The EPA has done further cost anal ys is s ince the 2012 rule which justifies the promulgated standard of performance. In addition, the EPA is influenced by further experience gained from operation of CCS (including successful deploy ment of full CCS at the Boundary Dam facility

– where the plant operators themselves predicted significant reductions in next CCS projects reflecting their operating experience), as well as current vendor estimates of CC S costs which are supportive of the estimates of costs on which EPA evaluated costs of partial CCS h ere. Finally, EPA notes2
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that the 2012 proposal was considering a higher capture rate (and commensuratel y more stringent standard of performance) than ultimately adopted here, so that the estimated costs were higher for that reason alone. **Comment 2.1 -**  **273:** Commenter 9034 st ated that the EPA's BSER determination also is defective because it failed to look beyond the costs of this rulemaking to consider the cumulative costs associated with the m yriad of recent regulations impacting coal
- fired EGUs, such as the Mercury and Air Toxics Rule, new effluent limitations guidelines for wastewater discharges, the Coal Combustion Residuals Rule, as well as numerous others. Commenter further stated that these regulations have already placed coal at a competitive disadvantage with respect to natural gas as a fuel for new generating capacity . Commenter also stated that requiring new coal plants to implement costly

and unproven CCS technology will most certainly

exacerbate this problem. Commenter stated that this is command and control, rathe r than market economics at work. **Response 2.1 -**  **273:** The commenter is incorrect. The costs of these other rules are reflected in the baseline costs. See NETL2015 p. 29 (cost analy sis for model plant designed to meet all standard for section 112 air toxics, and the most rec ent PM, SO 2 and NOx limits); RIA at p. 4
- 7 (“ For the analy sis of the final 111(b) rule, the EPA used the IPM v. 5.14 base case, which relied on the electric demand forecast in AEO 2014. The base case accounts for the effects of the finalized MATS and CSAP R rules, New Source Review settlements and state rules through 2014 impacting sulfur dioxide ( SO 2 ), NO x , directl y emitted particulate matter and CO 2 , and final actions the EPA has taken to implement the Regional Haze Rule. The EPA’s IPM base case also includes two federal non
- air rules effecting EGUs: the Cooling Water Intakes (316(b)) Rule and the Disposal of Coal Combustion Residuals from Electric Utilities Rule”). **Comment 2.1 -**  **274:** Commenter 9034 stated that the SaskPower Project is located in Canada. Thus, it is not subj ect to U.S. laws and regulations and therefore is not relevant for purposes of the BSER determination. **Response 2.1 -**  **274:** The commenter is mistaken that a best s ys tem of emission reduction determination cannot consider deplo ym ent of a s ys tem outside of domestic boundaries. The commenter cites no support for its proposition, and the EPA is aware of none. Certainl y, the language of section 111 imposes no such constraint; it refers to a “best sy stem of emission reduction adequatel y demonstrated”, not a best system of emission reduction deployed domestically

which is adequatel y demonstrated. See also Sierra Club , 657 F. 2d at 364 (achievability

of standard upheld, even though no domestic source was achieving the promulgated limit, due in part to successful operation of the technology in Japan). **Comment 2.1 -**  **275:** Commenter 10119 stated that it is possible that EPA chose to forgo advanced NGCC technology for natural gas power plants when it initially proposed a single standard for both coal
- and natural gas
- fired EGUs to allow coal
- fired plants to meet that standard more easil y. Commenter further stated that two standards are contemplated, however, any such rationale no longer applies. Commenter also stated that to the contrary , each standard requires a full explanation and accounting of its consequ ences. **Response 2.1 -**  **275:** EPA agrees, and has separatel y justified the standards of performance for new coal
- fired EGUs and new NGCC.2
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**Comment 2.1 -**  **276:** Commenters (9426 and 9514) stated that the Clean Air Act ("CAA") provides that the EPA "shall, at least every eight years, review and, if app ropriate, revise" 42 U.S.C. Section 7411(b)(1)(B) standards of performance for new sources. Commenter further stated that if in eight ye ars CCS is developed to the point that the record supports a finding that CCS is BSER for fossil fuel
- fired boilers and IGC C units, the EPA can make that finding and adopt corresponding emissions standards. Commenter also stated that the current record, however, does not support the EPA's proposed CO 2 emission limits for new fossil fuel
- fired boilers and IGCC units, being b ased, as it is, on the Agency's proposed finding that the misnamed partial carbon capture, which only results in separation, is BSER for these t ypes of units. **Response 2.1 -**  **276:** The EPA believes that the record reasonabl y supports that partial CCS is BSER for fossil
- fuel ste am generating units. For a response to the (mistaken) comment that the standard reflects separation only , see response to UARG (#9666) in unit 2.1.1.2 above
. **Comment 2.1 -**  **277:** Commenter 10087 stated that the EPA's rule arbitrarily proposes CCS as "best s ys tem of emission r eduction" for coal, but not natural gas. **Response 2.1 -**  **277:** See preamble section IC.C.4. **Comment 2.1 -**  **278:** Commenter 9201 stated that the EPA's proposed finding that CCS is BSER for coal
- fired EGUs rests in part on what the agency believes are insignificant CO 2 emissions reductions from new advanced, higher
- efficiency SCPC and IGCC units. Commenter further stated that the EPA concedes that equipping gas
- fired NGCC units with CCS would result in significant CO 2 emissions reductions. Commenter also stated that the it is impossible to reconcile EPA's recognition that significant emission reductions could be obtained through application of CCS to NGCC units with the agency 's simultaneous determination that CCS is n ot BSER for NGCC, particularl y once one considers EPA's other underl yi ng assumption
- that most new base load power plants constructed under this rule will be NGCC. Commenter stated that the EPA is eschewing CCS as BSER for the very t yp e of power plant that will be built in nine out of ten cases, and notwithstanding EPA's concession that requiring CCS for those plants would result in significant additional CO 2 reductions. **Response 2.1 -**  **278:** See preamble section IX.C.4. **Comment 2.1 -**  **279:** Commenter 9201 stated that the EPA also attempts to use the lower CO 2 concentration in the flue gas stream of natural gas combustion as a reason for not finding CCS to be BSER for natural gas
- fired units. Commenter further stated that there is ample demonstration of carbon capture on NGCC plants to obviate such concerns. Commenter also stated that the lower concentrations of CO 2 in natural gas flue streams should lower the costs for carbon capture's application to NGCC in terms of capture, compression and storage, especiall y if new NGCC plants are operating as b ase load power and producing more CO 2 as a result. **Response 2.1 -**  **279:** See preamble section IX.C.4. **Comment 2.1 -**  **280:** Commenter 9201 stated that the EPA speculates that while most natural gas turbines will serve base load demand, others will cycle more frequently than coal
- fired coal plants; EPA also states that it is unclear how part
- load operation would impact the efficiency and2
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reliability of CCS. Commenter further stated that it is one that applies equally to coal
- fired EGUs in the real world, as their operations are subject to economic di spatch, meaning that they too will cycle their operations. Commenter also stated that in the proposed finding that CCS is BSER for coal
- fired EGUs, EPA does not evaluate or even mention this important consideration. Commenter stated that all of the literat ure EPA relies upon for its determination that CCS is BSER for coal
- fired EGUs similarly (and equall y incorrectly) assumes that these plants will not cycle frequentl y. Accordingl y, the reason EPA proffers here for not finding CCS to be BSER for NGCC supports the very

same finding for coal
- fired EGUs. **Response 2.1 -**  **280:** See preamble section IX.C.4. **Comment 2.1 -**  **281:** Commenter 9201 stated that the EPA's reasoning that an NGCC plant might be delayed more than a coal plant if NGCC plants were required to use CCS is perplexing, to say the least. C ommenter further stated that the EPA surmises that NGCC plants can be built more quickly than coal plants, so any

delay occasioned by

installation of CCS would have a relativel y greater impact on NGCC plants. Commenter also stated that the delay s involved in installing CCS should be the same, no matter the ty pe of plant involved. Commenter stated that the EPA did not cite any

evidence that equipping an NGCC unit with CCS is inherently or relativel y more time
- consuming than it is for a coal plant. Commenter stated that all of the technology is essentially

identical; in fact, installing CCS on a coal
- fired unit is likely to be more complex and time
- consuming than installing gas on an NGCC unit, because of the need to assure that the carbon capture s ys tems are compatible with the other emission control equipment on the coal
fired unit that are not present on a gas
- fired EGU. **Response 2.1 -**  **281:** See preamble section IX.C.4. **Comment 2.1 -**  **282:** Commenter 9201 stated that the EPA has not supplied a reasoned and lawful basis for making different determi nations on the technical feasibility of CCS as BSER for coal
fired EGUs but not for NGCC plants. Commenter further stated that each of the reasons offered by EPA is lacking in an y support, is inherently contradictory , and demonstrates an irrational weighti ng of the considerations EPA claims are central to its proposed findings. Commenter also stated that the best and only permissible course of action is for EPA to reconsider and find that CCS is not BSER for coal
- fired EGUs, just as it proposes to find that CCS is not BSER for natural gas
- fired units. **Response 2.1 -**  **282:** See preamble section IX.C.4. **Comment 2.1 -**  **283:** Commenters (9514 and 10952) stated that the legislative history of section 111(b) indicates that Congress intended for NSPS to reflect the most highly
- effective emission reduction sy stems that are technically and economically

feasible, including new and innovative pollution control technologies that are not in routine use. Commenters (9514 and 10952) stated that the legislative history of section 111(b) indicates that Congress inten ded for NSPS to reflect the most highly
- effective emission reduction sy stems that are technically and economicall y feasible, including new and innovative pollution control technologies that are not in routine use. Commenters further stated that the Congres s attempted to insure that EPA would limit new source pollution "to the greatest degree practicable if the national goal of a cleaner environment was to be achieved." Essex Chem. Corp., 486 F.2d at 443 n.14. Commenters also stated that in2
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interpreting the 1970 language of the CAA, the Portland Cement I court found that the term "adequatel y demonstrated" required a showing b y EPA "that there will be 'available technology'" during the regulated future." Portland Cement I, 486 F.2d at 391 (emphasis added). **Response 2.1 -**  **283:** The EPA largel y agrees with these comments. **Comment 2.1 -**  **284:** Commenter 9514 stated that the 1977 amendments defined best technology "in terms of 'long
- term growth,' [and] 'long
- term cost savings.'" Sierra Club, 657 F.2d at 331 (quoting Clean Air Act Conference Report, 123 Con g. Rec. at 27,021). Commenter further stated that requiring new stationary sources to adopt pollution control technology at the time of construction, when plant owners and operators can most efficient install the equipment, rather than waiting for environm ental degradation to occur and onl y then requiring expensive retrofits, achieves long term savings. See H.R. Rep. No. 95
- 294 at 185; see also Nat'l Asphalt Pavement Ass'n, 539 F.2d at 783. Commenter 9514 stated that the in 1990, Congress amended section 11 1 once again, reviving the original (1970) language of section 111(a)(1). The D.C. Circuit has since expressed that "section 111 'looks toward what may fairl y be projected for the regulated future, rather than the state of the art at present.'" Li gnite Ene rgy Council, 198 F.3d at 934 (quoting Portland Cement I , 486 F.2d at 391) (emphasis added). Commenter further stated that the recent case law aligns with decisions in all of the cases since section 111 was enacted, holding that EPA must look to the technol ogical vanguard when setting new source standards so as to encourage innovation and yi eld long
- term cost savings. **Response 2.1 -**  **284:** The EPA largel y agrees with these comments. **Comment 2.1 -**  **285:** Commenter 9514 stated that the EPA is easily within its authority

to seek deep cuts in carbon emis sions from EGUs based on the best available s ys tems of emissions reduction. Commenter further stated that in fact section 111 requires the agency to set technology
- based emissions limits for sources that cause or contribute to endangerment of public health or welfare, as fossil fuel
- fired EGUs clearly do. See 42 U.S.C. section 7411(b)(1)(A), (B); see also AEP, 131 S.Ct. at 2533, 2536 (noting EPA's endangerment finding for greenhouse gases, including CO 2 , and stating that defendant power plants represent "th e largest emitters of carbon dioxide in the United States"). **Response 2.1 -**  **285:** The EPA largel y agrees with these comments. See also earlier response that section 111 requires technology
- based standards, not standards which result in some specified quantum of environmental result. **Comment 2.1 -**  **286:** Commenters (9194, 9734 and 10395) stated that the proposed NSPS for coal
- fired EGUs requiring carbon capture is not supported by the existing state of carbon capture technology

as applied to EGUs, and EPA does not have the discretionary authority t o impose it in the way

proposed in this rulemaking. **Response 2.1 -**  **286:** The commenters are mistaken. See, e.g. preamble section V.D. (describing why post - combustion partial CCS is available, demonstrated at commercial scale, and operating reliably).2
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**Comment 2.1 -**  **287:** Commenters (9201, 9505 an d 9677) stated that the Proposal suggests that Clean Air Act 111 allows a promulgation of a standard that is not achievable by substantial parts of a source category . Commenters further stated that this appears to have been arrived at by EPA through mischaracterization of the case law and legislative history cited in the Proposal. Commenters further stated that there is case law that indicates it was Congress intention for standards to be acceptable only if achievable "throughout the industry ". Commenters s tated that this is illustrated in Nat'l Lime Ass'n v. EPA, 627 F.2d 416 (D.C .Cir. 1980). **Response 2.1 -**  **287:** The EPA has shown that any new fossil
- fuel fired steam generating unit could meet the promulgated standard, either through use of partial CCS or by alternative compli ance pathway s such as IGCC co - firing with natural gas. EPA has also carefully examined variability

of operating conditions and showing that the standard is achievable accounting for normal range of operating variability when control technologies are prope rly designed and operated. See preamble section V. J. **Comment 2.1 -**  **288:** Commenters (2470 and 9513) supported EPA's decision to revise its previously

proposed rule by

establishing separate categories for electric utility steam generating units (boilers and integrated gasifi cation combined cycle (IGCC) units) and combined cycle units. Commenters further stated that the difference, however, in the CO 2 emissions standards proposed in the revised proposed rule between coal
- fired generating units and natural gas
- fired combined cycle units is negligible. **Response 2.1 -**  **288:** The difference between the two subcategories is greater in the final rule. **Comment 2.1 -**  **289:** Commenter 9665 stated that the EPA's determination of the "best sy stem of emission reduction," or BSER, is critical to the establishment of Section 111(b) s tandards that are consistent with statutory requirements. Commenter further stated that the courts have found that this determination occurs in a three
- step process: (1) EPA identifies a sy stem/sy stems that has/have been "adequately demonstrated" for the a ffected sources in the category ; (2) EPA determines the emission levels "achievable" using the adequately demonstrated sy stem or sy stems; and then, finally, (3) EPA "exercises its discretion to choose an achievable emission level which represents the best balance of economic, environmental, and energy considerations." Commenter further stated that while any NSPS must be based on the performance of BSER with respect to the type of source to which the standard applies, individual new sources are not required to actuall y install or operate the particular technology or s ys tem identified as BSER, only to meet the numerical performance level established by the NSPS. **Response 2.1 -**  **289:** The final standard

– 1400 lbs. CO 2 /MWh

– is quite evidentl y a numerical performance standard. **Comment 2.1 -**  **290:** Comme nters (2658 and 9515) stated that the Administration must perform a thorough anal ys is of costs and benefits, accounting for the cascading effects costly energy regulations will have on businesses, markets, employ ment and households. **Response 2.1 -**  **290:** EPA has carefull y examined potential energy implications of the present standard, as required under section 111 (a). Our conclusion, well documented, is that the final2
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standards of performance will not have significant impact on energy requirements. See preamble section V .O.3 and XIII.C. **Comment 2.1 -**  **291:** Commenters (7977, 10023, 10046 and 10396) stated that the EPA cannot show that the proposed 1,100 lb CO 2 /MWh standard is "achievable" for Subpart Da units applying CCS. Commenters further stated that once EPA identifies a s ys tem of emissio n reduction as "adequatel y demonstrated," it must separatel y determine what emission level is "achievable" b y individual sources appl yi ng that sy stem. EPA has failed to do that. **Response 2.1 -**  **291:** The EPA has identified 1400 lbs. CO 2 /MWh as the level of emission reduction ac hievable by

applying the best sy stem of emission reduction adequatel y demonstrated. See preamble section V.J explaining wh y that lev el of performance is achievable. **Comment 2.1 -**  **292:** Commenter 9654 stated that this move to reduce the flexibility of fuel usage is based in part on an erroneous assumption that all future GTCC power plants will operate onl y on natural gas without the need for liquid hydrocarbon fuels. Commenter further stated that this erroneous assumption alone should be sufficient to invalidate the proposed NSPS CO 2 emissions limits. **Response 2.1 -**  **292:** The final standard of performance is not set up to restrict available fuel usage, as the commenter would have it. See preamble section V.I.4. **Comment 2.1 -**  **293:** Commenter 10929 encourages the EPA to support the deploy ment of a diverse mix of new generating units by recognizing Best Sy stem of Emission Reduction performance unique for generating fuel ty pe and design. Commenter further requested that the EPA proceeds with imposing a CO 2 emission rate constraint on new generating units, that EPA pro vide for NSPS emission rate restrictions that are developed to reflect the Best Sy stem for Emission Reduction considering commercially mature generation technology for each fuel type. **Response 2.1 -**  **293:** EPA has indeed promulgated separate standards for coal
- and gas
- fired un its. **Comment 2.1 -**  **294:** Commenters (7994 and 9723) requested the EPA to use this authority to subcategorize the EGU source category by the ty pe of fuel burned, generating technology used, etc. and set separate performance standards for each subcategory of EGUs. **Response 2.1 -**  **294:** EPA has accounted for different coal types in its analysis of standard achievability , and shown that the standard is achievable considering different fuel ty pes. See preamble section V.J. Subcategorization is consequently not appropriate. **Comment 2.1 -**  **295:** Commenter 9422 stated that the EPA should make rules flexible enough that CCS can advance in the United States, which would allow for the transfer of CCS to developing countries that are building new coal plants. Commenter further stated that this would allow the United States to be a technology leader in carbon control technology and in the long run will do more to reduce CO 2 globally than to simply

ban new coal plants in the United States. **Response 2.1 -**  **295:** The final standard of performance relies on a lower capture rate than proposed and there are a number of compliance pathway s available to achieve that standard.2
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**Comment 2.1 -**  **296:** Commenter 3594 requested that the standards require that all new EGUs, whether coal or gas, be designed to accommodate full CCS in the near future, and that a roadmap for intended improveme nts also be defined. Commenter further stated that the goal is that all new units built under these rules will meet a standard of essentially zero net emissions, by

a date, such as 2025, well in advance of the completion of their full service life. Comme nter further stated that this will allow the costs of such upgrades to be appropriatel y considered in the determination of prudent investments in new generation. **Response 2.1 -**  **296:** These comments are largely beyond the scope of this proceeding. However, EPA has reasonably

d etermined that full CCS is not BSER at this time. See preamble section V.P.2. **Comment 2.1 -**  **297:** Commenter 10048 stated that in identifying the best sy stem of emissions reduction (BSER) for coal
- fired boilers and integrated gasification combined cycle (IGCC) units, EPA chos e emission limits that would force new coal boilers to install CCS technology
. Commenter further stated that the Congress recognized that Section 111 may hamper the ability of air emissions sources to locate in certain places due to local air quality issue s. Commenter further stated that since greenhouse gas emissions are associated with non
- local, global effects, the proposed rule fails to comport with Congressional intent. **Response 2.1 -**  **297:** The final standard of performance will not result in geographical constraints. Se e preamble section V.M. **Comment 2.1 -**  **298:** Commenter 10029 stated that given the current and projected price of natural gas it is unlikely

that new coal EGU's will be built for some time. Commenter further stated that the likelihood that carbon capture will be deplo yed for P C, SCPC, IGCC, or Oxy Fuel in the next decade is rather remote. Commenter further stated that it is also unlikely that existing coal powered EGU's will be retrofitted with carbon capture when the cost of a new natural gas EGU is less th an the carbon mitigation retrofit alone for an existing coal powered EGU. Commenter further stated that the logical reference case for CCS is then NGCC with post combustion carbon capture. **Response 2.1 -**  **298:** The comment is largel y consistent with EPA’s own anal ys is set out in RIA chapter 4. No netheless, there are possibilities that new coal capacity might be built for energy
diversity reasons, or other non
- economic concerns, in which case the standard of performance would result in emission reductions (both CO 2 and SO 2 ) over the base case. See RIA chapter 5. **Comment 2.1 -**  **299:** Commenter 9407 stated that the EPA's reliance on NRDC v EPA is equally off point. NRDC v EPA, 489 F.3d 1364, 1376 (D.C. Cir. 2007). Commenter further stated that this case centered on establishing Section 112 standards for existing composit e wood production, where cost is not an issue, and had nothing to do with establishing Section 111 NSPS where, as EPA notes, the technology must be adequatel y demonstrated at a reasonable cost. Commenter further stated that neither NRDC v. EPA nor an y othe r legal authority cited in this proposal stand for the preposition that an NSPS can relegate the siting of new facilities only within a few select areas of the nation. Commenter further stated that in fast any NSPS that geographicall y prohibits sources fro m locating throughout major portions of the country contradicts the statute and its legislative intent, and is therefore impermissible.2
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**Response 2.1 -**  **299:** As noted in other comment responses, there are no geographic constraints imposed by

the final NSPS here. Adequate geologic sequestration and EOR capacit y are available, or access thereto (including transmission of electricity to more distant customers via use of existing grid transmission (‘coal
- by
- wire’), or sources can utilize another compliance method. With respect to the Plywood MACT case , see response s above, stating that the case holds that EPA did not have to create a subcategory for a particular p lant which could not comp l y with a technology
- based standard, in part because other means of compliance were available. That is very

similar to the facts here. **Comment 2.1 -**  **300:** Commenter 4814 stated that the existing plant regulation should provide guidelines that are ach ievable as best s ys tem of emission reductions adequately demonstrated for affected power plant units as prescribed under the Clean Air Act and its implementing regulations 40 CFR 60. Commenter further stated that 40 CFR 60 refers to affected facilities, no t electricity s ys tems. **Response 2.1 -**  **300:** We address comments similar to this in the section 111(d) rulemaking for existing fossil fuel
- fired EUGs. This comment is not relevant for this rulemaking. **Comment 2.1 -**  **301:** Commenter 9590 stated that more fundamentally , the proposed standard is not based upon an y "s ys tem" of actual emissions reduction from the source. Commenter further stated that the proposed standard is based solel y upon one component of CCS carbon separati on and capture
- and, according to EPA, the disposition of the captured CO 2 is outside the scope of the rule. Commenter further stated that the proposal is a standard for CO 2 separation, and there is no emissions reduction of CO 2 from the source. Commenter further stated that the CO 2 emissions will actually

increase because carbon separation and capture consumes a substantial portion of the plant's electrical generation output, so the plant will have to be designed to be substantially larger to accommodate the parasitic load needed to operate the carbon separation and capture process. **Response 2.1 -**  **301:** See response to commenter 9666 in unit 2.1.1.2 above. **Comment 2.1 -**  **302:** Commenter 10607 stated that legal interpretations of the CAA have concluded that in determining whether BSER has been adeq uatel y demonstrated, EPA must consider certain factors, including four that EPA say s are most relevant in this context:

 Feasibility
- Is the s ys tem of emission reduction technologicall y feasible?  Costs
- Are the costs of the sy stem reasonable?  Size of emis sions reductions
- What is the amount of emissions reductions that the sy stem would generate?  Technology
- Does the s ystem promote implementation and further development of technology? Commenter further stated that the EPA's determination that the BSER for coal
- fired power plants is partial capture CCS technology is based on its conclusion that partial capture CCS provides meaningful emissions reductions, has been adequately demonstrated to be technicall y feasible, can be implemented at a reasonable cost, an d promotes deploy ment and further development of the technology
.2
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**Response 2.1 -**  **302:** The EPA agrees with this comment. **Comment 2.1 -**  **303:** Commenter 10662 stated that the EPA must establish the level of control achievable through the application of BSER from a scientificall y and practically soun d bottom
up approach. Commenter further stated that the EPA's stated goal of a 17 percent reduction in CO 2 emissions by

2020 has no bearing on the determination of BSER under the CAA, nor in the application of BSER for determining the level of control achi evable in the chosen regulatory approach. Commenter further stated that adherence to these underl yi ng energy policy goals, rather than a reliance on sound science, does not allow for an objective evaluation of BSER in accordance with the CAA. **Response 2.1 -**  **303:** The EPA’s det ermination that partial CCS is BSER does not reflect some a priori consideration of a desired reduction in CO 2 emissions. It reflects an assessment of the criteria relevant under section 111, notably technology

performance and feasibility , cost, nonair qu ality impacts, and energy

requirements. 

### 2.2 **CONSIDERATION OF PRO POSED CCS PROJECTS U** **NDER EPACT**  **2.2.1 EPAct Bars Consideration of the Proposed CCS Projects**  **Comment 2.2 -**  **1:** Commenters 8966, 9190, 9191, 9498, 9505, 9510, 9665, 9666, 9725, 10088, 10095, 10098, 1013 7, 10239, 10500, 10552, 10554, 10680 state that EPA inappropriatel y relies on facilities that have received government funding (CCPI
- funded projects) to determine that CCS is adequately

demonstrated for the BSER. The EPAct of 2005 provides funding for clean coal technology , but prohibits EPA from relying on such facilities when imposing NSPS standards under Section 111. Commenter 9396 states that Congressional intent is clear; if federal funding is necessary to get a project to proceed it cannot be determi ned to be "adequatel y demonstrated." Commenter continues noting that EPA should remove all federally funded facilities from its proposal and re
evaluate CCS as BSER. Commenter 9201 states that EPAct05 prohibits EPA from considering or relying on projects receiving certain federal assistance for the development of technologies as evidence that BSER is adequatel y demonstrated under CAA Section 111. EPA violated these provisions by considering and rel yi ng on the Kemper Facility , TCEP, and HECA in making its d etermination that partial CCS is BSER that has been adequatel y demonstrated. All three of these facilities received CCPI assistance from DOE and were awarded Section 48A tax credits. Consequently , EPA's overwhelming reliance on these three facilities in de termining that partial capture CCS is BSER that has been adequatel y demonstrated is a violation of EPAct05, and the agency cannot consider these facilities as part of its BSER analy sis in the final rule. EPA's overwhelming reliance on these projects is a direct violation of EPAct05, and is impermissible. Had EPA done a proper and thorough BSER anal ys is of adequately demonstrated technology
--- as explained at length previously

in these comments
--- the agency could not have made a good faith determination that partial capture CCS is BSER that has been adequately demonstrated for coal
- fired EGUs. As such, the proposal b y the agency cannot stand as is.2
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Commenter 10660 states that EPA improperly relied on literature regarding U.S. based CCS demonstration projects. These included projects that the Department of Energy (DOE) was authorized to undertake a program called the Clean Coal Power Initiative (CCPI) to demonstrate clean coal technologies, including CCS, under the Energy Policy Act of 2005 (EPAct 2005). Three projects cited by

EPA in support of partial CCS as BSER were each supported by DOE through the CCPI program. Federal law (under EPAct 2005) prohibits EPA from basing its finding of BSER on these CCPIprojects. EPA has limited data on which to base its det ermination that partial CCS is adequately demonstrated for coal. These projects therefore constitute a significant portion of the foundation on which EPA has made its BSER determination. Because EPA may not base its BSER determination on these projects, th e partial CCS BSER determination lacks foundation and the Forum does not support it. Commenter 9666 states that EPA has known that Congress prohibited it from considering certain technologies in a section 111 "adequatel y demonstrated" anal ys is since 2005 when EPAct was enacted. The Agency

was reminded of the prohibition on June 25, 2012, in comments submitted to EPA on its April 2012 GHG NSPS proposal, which has since been withdrawn. Joseph Euitizi, San Miguel Elec. Coop., Comments on the Standards of Perf ormance for Greenhouse Gas Emissions for New Stationary Sources: Electric Utility

Generating Units, Proposed Rule, 77 Fed. Reg. 22392 at 3 (June 25, 2012), Docket ID No. EPA
- HQ
- OAR
- 2011
- 0660
- 9964. Commenter continues to state the issue was brought to EPA's attention again on November 15, 2013, in a letter to EPA from the Republican leadership of the U.S. House of Representatives Energy and Commerce Committee. Letter from Reps. Fred Upton, Chairman, H. Comm. on Energy & Commerce, Ed Whitfield, Chairman, Subc omm. on Energy and Power, Joe Barton, Chairman Emeritus, and Steve Scalise, Vice
- Chair, Subcomm. on Energy and Power, to Gina McCarthy , Administrator, EPA (Nov. 15, 2013). Commenter continues that despite ye ars of notice to anal yz e and address the implicat ions of EPAct, EPA not only failed to acknowledge the issue in the proposed rule that was published on January 8, 2014, it in fact violated the express terms of EPAct by considering in the proposed rule technologies it is not permitted to consider. EPA's attempt to address these shortcomings on a post hoc basis in the EPAct TSD six weeks after the proposed rule was published fail. Commenter 10088 states that the facilities that EPA chose to demonstrate CCS is adequately demonstrated violate the EPAct05, as the facilities are CCPIfunded or heavily subsidized by foreign government. Commenter 9664 states that EPA may consider subsidies and subsidized project in evaluating BSER
. **Response 2.2 -**  **1:** As described in the responses below and in section III.H.3.g. of the preamble of the final rule, the EPA interprets EPAct05

— specificall y sections 402(i), 421(a), and 1307(b) (adding 26 U.S.C. § 48A(g) to the Internal Revenue Code)

—to prevent the EPA, in de termining the BSER, from finding that a technology or emission limit is adequatel y demonstrated based exclusively on evidence from facilities supported under EPAct05. However, the EPA interprets all three relevant EPAct05 provisions to allow the EPA to con sider and rely upon information from EPAct05
- supported facilities in combination with information from other facilities. The EPA’s interpretation is based on the plain language of the three provisions and Congressional intent that EPAct05 support the advan cement and commercialization of CCS technology , as2
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described more full y below. The EPA does not believe that the plain language of EPAct05, or the legislative history , bars the EPA from all consideration of information from EPAct05
- supported facilities
. The EPA gave notice of and sought public comment on its interpretation of the EPAct05 provision in a Notice of Data Availability and accompanying Technical Support Document, which were published in the Federal Register on February 26, 2014, 79 Fed. Reg. 10 750. These documents supporting the EPA’s proposed rule provided ample time for public review in advance of the final rule, in accordance with Clean Air Act section 307(h), 42 U.S.C. § 7607(h), and are not “post hoc” rationalizations
. See Section V.D and V .E of the preamble of the final rule for a description of the information and facilities upon which the EPA has relied in making its BSER determination. 

### 2.2.2 **Statutory Analysis and Interpretation Comment 2.2**  **- 2:**  Commenter 10100 states that EPA cannot use CCS projects funded b y the Clean Coal Power Initiative (“CCPI”) as evidence that CCS has been adequately demonstrated. The statute clearl y states that “no technology ...by 1 or more facilities receiving assistance under this Act, shall be considered to be...adequatel y demonstrated. ” 42 U.S.C. § 15962(i). This is a prohibition on the consideration of this technology ; the text does not allow EPA to imply that it may consider the technology

in certain situations. Commenter s 9666 , 9498 state that Section 402(i) of EPAct prohibits EPA from considering technology

that is used at a facility receiving CCPI assistance as adequately demonstrated technology

under CAA section 111. The commenter s paraphrase that section 402(i) of EPAct mandates three things: (i) no technology that receives CCPIf

unds can be considered "adequatel y demonstrated" under CAA section 111; (ii) no level of emission reduction can be considered adequatel y demonstrated "solel y" by reason of a technology

receiving CCPI funding (conversel y, a level of emission reduction might be considered adequatel y demonstrated based on technologies not receiving CCPIfunding); and (iii) the achievement of a level of emission reduction cannot be considered adequatel y demonstrated based on the performance of CCPI
funded facilities. As a resul t, EPA may cite onl y non - CCPI
- funded facilities with operating histories to support its determination that a certain technology is adequatel y demonstrated. EPA misreads the word “solely” to modify all three clauses when in fact that term modifies only the second clause addressing when a level of emission reduction may be considered to have been achieved. Commenter s also state that EPA’s reading of the text is incorrect because, taken to its logical extreme, it would mean that as long as EPA considered a sin gle project in addition to the EPAct
- assisted facilities, it could properl y consider EPAct
- prohibited facilities. Thus, if the Agency were to rel y on 100 projects that all received assistance under EPAct, and on one project that did not, the Agency

would c laim that it had acted in accordance with EPAct. Commenter 10052 states that EPA’s interpretation of Section 402(i) would render that section effectivel y meaningless. The term “solel y,” as it is used in the statute, refers to a level of emissions reduction achieved “solel y” b y reason of the use of the technology . The term “solel y” does not refer to the experience of individual facilities upon which EPA relies to determine BSER. Because EPA’s proposed emissions performance standard for coal facilities is ach ievable2
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solely by the use of partial CCS, the introduction of any facility , for any

purpose, with partial CCS receiving assistance under EPAct 2005 is not appropriate for purposes of establishing BSER. Commenters 9472, 10618 state that to the extent that E PA has determined that CCS is "adequatel y demonstrated" based primaril y on information obtained from facilities receiving assistance under the EPAct05, this determination would violate section 402(i). Rather, under EPAct05 section 402(i), EPA should only r el y on information from these facilities as support for the NSPS if it can independently conclude (based on information from facilities that have not received federal assistance) that the technologies used at the subsidized facilities are adequatel y demons trated. Commenter 10618 states that Section 402(i) prohibits EPA from relying on federally subsidized demonstration projects given the lack of supporting documentation to conclude that CCS is "adequatel y demonstrated." Although this prohibition is similar to the limitation imposed for projects qualifying for tax credits under Section 48A, there is one notable difference. Specificall y, the language of Section 402(i) does not follow the syntax of Section 48A(g) of placing the term "solel y" within parentheses. Commenter states that EPA has incorrectly determined that, under Section 402(i), it may rel y on the technology

used or emission levels achieved at subsidized facilities as long as it also has some other evidence

– no matter how unreliable or speculative that evidence might be. Such an argument would violate the intent of the Section 402(i) prohibition and is not a reasonable construction of the statute. Commenter states that the correct reading of Section 402(i) is that EPA is required to have sufficient e vidence from non
- subsidized facilities to make a plausible or prima facie case that CCS is demonstrated before rel ying on information from facilities that have received federal assistance. Commenter continues that EPA cannot side
- step the Section 402(i) prohibition by simply pointing to a scintilla of evidence in support of its BSER determination, but rather must have strong independent evidence. EPA must have sufficient evidence from facilities (including at least one full
- scale electric utility applicatio n) that have not received assistance under the Act before it can rel y on emission data or experiences with the technology at facilities that have received assistance. Commenter notes that there are similar prohibitions in Section 421(a) but say s those sect ions are not relevant to the EPA’s current rulemaking because no projects received assistance under that section. Commenter 9510 states that EPA cannot consider evidence from projects funded under the EPAct in setting a “standard of performance” under Section 111 of the CAA if, without that evidence, EPA could not justify its chosen standard as BSER. In other words, EPA must conduct a statutory

“but for” analy sis: would the selected standard constitute BSER but for evidence from any and all projects funded under the EPAct? I f not, EPA cannot proceed. This is the correct interpretation of the language of Section 402(i)(1). Otherwise EPA could avoid the restriction in this provision by

simpl y citing to non
- CCPI
- funded projects generall y, even if the other evid ence would not justify

the selection of BSER. Commenter 10098 states EPA issued the NODA on February 26, 2014 acknowledging the EPAct's prohibition on considering CCPI
- funded projects in determining what technologies are "adequatel y demonstrated" for NSPS purposes. According to the NODA, however, EPA stated that it was free to rel y on the CCPI
- funded facilities "in conjunction with other information to2
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support" a BSER determination "or to corroborate an otherwise supported determination." In particular, EPA stated that its rationale in determining CCS to be "adequately demonstrated" under the NSPS "does not depend solely upon those projects, and the determination remains adequatel y supported without any information from" CCPI
- funded projects. EPA is wrong fo r several reasons. First, as discussed above, the EPAct prohibits EPA from relying on technology or levels of emissions reduction at facilities receiving CCPIfunding when such technology or levels of emissions reduction would be the "but for" basis of the Agency's decision. Yet the Agency has done so in the proposed rule. Second, EPA mischaracterizes the EPAct in the NODA. EPA focuses on "projects," where CCS technology was planned to be used, rather than focusing on the "technology " or "level[s] of emissi ons" themselves as provided in Section 402(i)(1) of the EPAct. This is an important distinction. While it is true that EPA has cited non
CCPI
- funded projects in the proposed rule, it has relied solely upon CCPI
- funded technology (i.e., CCS) in setting the proposed emission limitations on new EGUs. Thus, the proposed rule is contrary to law. Commenter 10098 states that EPA cannot consider evidence from projects funded under the EPAct in setting a "standard of performance" under Section 111 of the CAA if, without that evidence, EPA could not justify its chosen standard as BSER. In other words, EPA must conduct a statutory

"but for" analy sis: "would the selected standard constitute BSER but for evidence from an y and all projects funded under the EPAct." If not, EPA cannot proceed. This is the correct interpretation of the language of Section 402(i)(1). Otherwise EPA could avoid the restriction in this provision by simply citing to non
- CCPI
- funded projects generall y, even if the other evidence would not justify the selection of BSER (as it has done in the proposed NSPS). That would not only

frustrate the purpose of Section 402(i)(1) but would be contrary to the express language of that section. Where evidence from a CCPI
- funded project provides the "but for" basis for the selected standard, it is effectivel y the sole support for that standard, which is expressly prohibited by

the EPAct. Yet in the proposed NSPS GHG rule, EPA does what Congress has prohibited it from doing: it seeks to avoid the restriction in Secti on 402(i)(1) b y simply citing to projects that are not funded under the CCPIeven though those other projects cannot independently

justify the selection of BSER. Commenter 10239 states the EPAct05 prohibits EPA from considering evidence from projects funde d under the EPAct in setting "standards of performance" under CAA 111 if, in the absence of such projects, the EPA cannot establish that the NSPS control technology is "adequatel y demonstrated." Commenter continues to say that EPA is required by

statute to conduct a "but for" anal ys is to determine whether the control technology would qualify

as BSER but for evidence from projects funded under EPAct05. If not, EPA cannot rel y on the control technology in establishing a standard of performance. Commenter continues that if this was not the case, EPA could refer to an y non - EPAct funded projects, even if these project do not provide sufficient evidence to establish that the control technology qualified as BSER. Commenter 9201 states that EPA's TSD argues that Sec tion 402(i) of EPAct05 constitutes a "partial prohibition" on relying on information from facilities that receive CCPIfunding in a BSER determination under CAA Section 111. EPA's interpretation of this provision is inconsistent with both statutory languag e and congressional intent. Congress precluded EPA from considering the following three things in its BSER determination under CAA Section 111: (1) technology

that receives CCPIfunds; (2) the level of emission reductions achieved “solel y”2
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by reason of a t echnology

funded through CCPI(consideration of emission reductions from non CCPIfunded technology

is allowed); or (3) the performance of CCPIfunded facilities in achieving certain emissions limits. Commenters continues that EPA can only consider non - CCPI funded facilities or technologies to support its determination that a certain technology or emission standard is “adequately demonstrated.” The word “solel y” does not control the meaning of the entire provision, but merely the second clause relating t o the level of emissions reductions achieved b y CCPI funded technology. “Solely” does not apply to the first or third clauses in that provision, which are absolute prohibitions on relying on technology used or the performance of CCPIfunded facilities. Commenters also notes that Congress made it clear that even the consideration of such information is prohibited in the BSER determination process. Commenter 9201 states that the existence of additional information outside projects funded b y EPAct05 provisions such as Section 402(i) does not allow the EPA to circumvent the broad statutory prohibition against the consideration of CCPI
- funded facilities or technologies in its BSER determination. Had Congress wanted to grant EPA this flexibility , it would have inc luded explicit language to that effect. Instead, it directs EPA against even the consideration of such projects in determining BSER. Commenter 9780 states that EPA’s interpretation has no basis in the statutory language or the purpose of the three EPAct se ctions. The word “solely” in EPAct sections 402(i) and 1307 references onl y which level of emission reduction may not be used to determine BSER (i.e., those that are the result of using the federall y assisted technology). The term “solely” does not modify “adequately

demonstrated” as EPA asserts. Commenter also states that EPA ignores what CAA sections 402(i) and 1307 also prohibit: no technology or use of technology , or the achievement of emission reduction from federally assisted facilities can be conside red to be adequatel y demonstrated. Commenter 9664 supports EPA’s anal ys is of the relevant EPAct05 provisions as permitting EPA to consider the performance of EPAct05
- supported projects in determining that a control technology

is “adequately

demonstrated,” for the purposes of CAA section 111 standard setting, so long as those projects are not the sole basis for that determination. That reading of the statute’s text is most consistent with the purposes of the statute. Commenter further states that EPAct05 sec tions 402(i) and 421(a) on their face only prohibit EPA from relying “solel y” on EPAct
- funded facilities in determining that a technology is adequatel y demonstrated. The prohibition therefore is limited to circumstances in which the Agency has no other evi dence for its decision. Arguments that EPA cannot even include the facilities as part of a much larger supporting record impermissibly write the term “solely” out of the statute. Commenter 10108 states that EPA’s interpretation of the EPAct05 provisions is most consistent with the language and purposes of the statute. By their terms, sections 402(i) and 421(a) onl y prohibit EPA from relying “solel y” on EPAct
- funded facilities in determining that a technology is adequatel y demonstrated. The word “solel y” pla inly limits the scope of this prohibition, and to argue that EPA may

not consider such facilities in the context of a more extensive record would render the term surplusage. **Response 2.2 -**  **2:** The EPA disagrees with commenters who suggest that the EPA misreads the relevance of the phrase “solely by reason of,” which should be read as a narrow qualification on2
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the “level of emission reduction.” EPA reads the language “solely by reason of the use of the technology , or the achievement of the emission reduction,” which appears in both sections 402(i) and 421(a) of EPAct05, as a single clause that informs the evidentiary basis for the EPA’s determination: the EPA may make a determination based on a technology or level of emission reduction at EPAct05 facilities, so long as the dete rmination is not “solely by reason of” the use or achievement demonstrated at those facilities. Some commenters suggest instead that the language should be split so that “solely” only modifies the phrase “level of emission reduction,” while “the achievement of the emission reduction” becomes an additional list item like “technology” or “level of emission reduction.” These commenters would read section 402(i) to establish three categories that the EPA cannot consider to be adequatel y demonstrated based on in formation from EPAct05 facilities: (1) “technology”; (2) “level of emission reduction, solely by reason of the use of the technology”; and (3) “the achievement of the emission reduction.” This interpretation is contrary to the plain language of these provi sions and ignores the nearly identical language in section 421(a). The whole clause “solel y b y reason of the use of the technology, or the achievement of the emission reduction” appears in both sections 402(i) and 421(a) (section 421(a) replaces “the techn ology” and “the emission reduction” with “such technology” and “such emission reduction but is otherwise identical). In section 402(i), this clause follows directly after “no technology , or level of emission reduction.” But in section 421(a), the clauses a re rearranged and “solely by reason of” appears after the enumeration of the three Clean Air Act sections. In section 421(a), it is impossible to regroup the language so that “solel y” only modifies “level of emission reduction,” which appears much earlier in the provision. Some commenters suggest that the language of section 421(a) is not relevant because no projects received assistance under that provision. EPA believes the text of section 421(a) is relevant because the two provisions were drafted and adop ted together, and contain nearl y identical language. Even ignoring the clear structure of section 421(a), however, the grammar and s yntax of 402(i) alone cannot support the commenters’ reading. Unlike “technology” and “level of emission reduction,” which l ack articles, “the achievement of the emission reduction” begins with an article, “the.” If commenters were correct that “the achievement of the emission reduction” should be read as a third category that the EPA is barred from considering, the statute wou ld read “No technology , or [no] level of emission reduction, . . . or [no] the achievement of the emission reduction . . . shall be considered to be [] adequately demonstrated . . . .” This reading is unsound. By

contrast, the EPA’s reading maintains the c oherence of the provision by creating two parallel clauses: (1) “No [(A)] technology , or [(B)] level of emission reduction”; (2) “solely by reason of [(A)] the use of the technology , or [(B)] the achievement of the emission reduction . . .” With this readi ng, the EPA gives effect to all of the language in section 402(i). Some commenters ignore the relevant language in section 421(a) and instead compare section 402(i) to the sentence structure of section 48A(g), which puts “or level of emission reduction sol ely by reason of the use of the technology” in parentheses. While EPA acknowledges that the use of “solel y” has a different effect in section 48A(g), commenters’ reading of “solel y” in that provision cannot be imported to sections 402(i) and 421(a) because it is precluded by the use of the articles in section 402(i) and is plainly contrary to the clause structure of 421(a). Accordingl y, commenters’ observations about section 48A(g) on this point do not override the2
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plain meaning of these two provisions. The EPA’s interpretation of section 48A(g) is discussed in the response to Comment 2.2
- 3. The EPA also disagrees with commenters that it is barred from all consideration of EPAct05 facilities because section 402(i) specifies that no technology or emission reduction “shall be considered to be [] adequately demonstrated” on the basis of EPAct05 information. Commenters attempt to read “shall be considered” as barring all “consideration,” but this confuses two meanings of the verb “to consider.” Here, the use of the phrase “considered to be [] adequately demonstrated” makes clear that the language means “shall be deemed to be” or “shall be adjudged to be.” The provision does not use “consider” in the sense of “think about” or “contemplate.” (See MacMillan English D ictionary online, http://www.macmillandictionary .com/dictionary /american/consider (definition includes both “to think about something carefull y before making a decision of developing an opinion” and, when used with “to be,” “to have a particular opinion ab out someone or something”).) The EPA’s interpretation is supported by the text of section 421(a), where Congress instead used the phrase “shall be treated as [] adequately demonstrated.” Both sections 402(i) and 421(a) can thus be read naturall y to mean th at the EPA shall not “deem” these technologies to be adequatel y demonstrated on the basis of EPAct05 facilities, but neither provision can be read to prohibit the EPA from “thinking about” these facilities. Finally , the EPA does not agree with commenters who read sections 402(i) and 421(a) to create a “but for” limitation or to require that the EPA be able to “independentl y conclude” that a technology

is BSER in the absence of information from EPAct05
- supported facilities. EPA believes the meaning of the term “solel y” in sections 402(i) and 421(a) is clear. The dictionary defines “solel y” as “involving nothing except the person or thing mentioned”; its sy nony ms include “onl y” and “exclusively.” (See MacMillan English Dictionary online, http://www.macmillandi ctionary .com/dictionary /american/solel y.) Accordingl y, the EPA believes that it may

rel y on information from EPAct05 facilities so long as this information is not the only support for its determination. The EPA does not believe that the use of “solel y” her e can be read to impl y a “but for” test as commenters suggest, whereb y the EPA could not use EPAct05 facility

information in any

circumstance where, “but for” that information, it would not have made the same determination. The EPA believes that commenters have confused a “necessary” cause (the EPA’s determination would fail “but for” the EPAct05 information) with a “sufficient” cause (the EPAct05 information is the “sole” basis for the EPA’s determination). For example, the assent of each Supreme Court Jus tice in the majority may be necessary

to a Court’s 5
- 4 decision (a “but for” cause), but the assent of a single Justice in the majority is not sufficient for the outcome (the “sole” basis). For that reason, the EPA interprets sections 402(i) and 421(a) to allow it to rely on information from EPAct05 facilities even where that information is a necessary component of its determination, so long as the information from these facilities is not the sole support for the determination. The EPA also rejects commente rs’ suggestion that the EPA’s reading of the word “solel y” would allow the EPA to avoid a limitation on its consideration of EPAct05
- assisted facilities by including a mere scintilla of evidence from non
- EPAct05 facilities. T hat situation is not presented here, where the principal evidence that partial CCS is a demonstrated and feasible technology

comes from sources which received no assistance of any ty pe under EPAct05. See2
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Marine Shale Processors v. EPA, 81 F. 3d 1371, 1383 (5 th Cir. 1996) (“We make no c omment on this argument; this is simply not a thimbleful case”). **Comment 2.2 -**  **3:** Commenter 10100 states that section 48A(g) of the Internal Revenue Code prohibits the consideration of EPAct05 projects as adequate demonstration of BSER. Pursuant to the statutory language: “No use of technology (or level of emission reduction solely by reason of the use of the technology), and no achievement of any emission reduction by the demonstration of an y technology or performance level, b y or at one or more facilities with respect to which a credit is allowed under this section, shall be considered to indicate that the technology or performance level is adequately demonstrated for purposes of section 111 of the Clean Air Act (42 U.S.C. 7411).” The plain meaning of the prohibi tion on the “consider[ation]” of such technology

“to indicate” that the technology is adequately

demonstrated is that information about a particular technology

from certain facilities may not be used at all in a determination of whether that technology

has been adequatel y demonstrated for BSER purposes. Commenter 9666 states that section 1307(b) of EPAct (codified as section 48A(g) of the Internal Revenue Code) outright prohibits EPA from considering as part of its section 111 assessment technology

at a facility

that is allocated a Qualifying Advanced Coal Project Tax Credit under section 48A of the IRC ("Section 48A tax credit"). Commenter paraphrases section 1307(b), removing the parentheticals, so the pertinent provision reads: "No use of technology
. . . at . . . [a] facilit[y] . . . [that is allocated a Section 48A tax] credit . . . shall be considered to indicate that the technology

or performance level is . . . adequatel y demonstrated for purposes of section 111 of the Clean Air Act." Commenter stat es that this provision prohibits any technology

used at facilities that are allocated Section 48A tax credits from being considered as "adequatel y demonstrated," because EPA “may not consider” Section 48A facilities to support an adequatel y demonstrated de termination. Commenter 9666 states that EPA must read the term “considered to indicate” in section 48A(g) to mean that “[i]nformation about a particular technology from certain facilities may not be used at all in a determination of whether that technology is the best s ys tem of emission reduction adequatel y demonstrated.” Commenter agrees with EPA that the legislative history of all three EPAct05 provisions suggests the provisions should be interpreted similarly. The provisions, however, should be read with the plain meaning given to them by Congress, not with the grammaticall y and logically strained reading given to them by EPA. Commenter 10618 states that the statutory limitation in Section 48A(g) clearly and unambiguousl y prohibits EPA from “considering” the following three categories of evidence from a covered demonstration project to “indicate” that a “technology or performance level is...adequatel y demonstrated” under Section 111: (1) “use of technology...by or at one or more facilities with respect to wh ich a credit is allowed”; (2) “a level of emission reduction solel y b y reason of the use of the technology ...by or at one or more facilities with respect to which a credit is allowed”; and (3) “achievement of any emission reduction b y the demonstration of an y technology

or performance level, by or at one or more facilities with respect to which a credit is allowed.” Commenter states that the use of the word “solel y” in the second category, above, may allow EPA to take into consideration a level of emission re duction that was not achieved “solel y by reason of the use of the technology ,” but does not limit or otherwise apply to the two other prohibitions contained in Section 48A(g), which are not subject to any constraint that may be2
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imposed by

this term. Becaus e of this, an y limiting effect that the term “solely” might have in Section 48A(g) would have no practical effect in the instant NSPS rulemaking given that EPA lacks sufficient evidence from non
- subsidized facilities to bolster a determination that CCS is adequatel y demonstrated. Commenter also states that the use of the term “solely” in Section 48A(g) need not have the same meaning as in Sections 402(i) and 421(a) because they are non parallel formulations and reading them together would effectively negate the limitations Congress has placed on EPA’s discretion. Commenter 9780 states that EPA’s interpretation has no basis in the statutory language or the purpose of the three EPAct sections. The word “solely” in EPAct sections 402(i) and 1307 (Section 48A(g) ) references only which level of emission reduction may not be used to determine BSER (i.e., those that are the result of using the federally assisted technology). The term “solel y” does not modify “adequatel y demonstrated” as EPA asserts. Commenter also s tates that EPA ignores what CAA sections 402(i) and 1307 also prohibit: no technology or use of technology , or the achievement of emission reduction from federall y assisted facilities can be considered to be adequately demonstrated. Commenter 10108 notes that Section 1307(b) (codified as section 48A(g) of the Internal Revenue Code) states that an EPAct
- supported facility cannot be “considered to indicate” that a technology

is adequatel y demonstrated. Commenter states that most logical interpretation of this provision is to read it to mean that EPAct
- supported facilities cannot automatically and on their own prove that a technology is “adequatel y demonstrated.” Thus, the ban on “consider[ing]” would be a ban on EPA deeming a technology to be proven as technic ally feasible simply because it is used at an EPAct
- supported facility . Commenters also states that the phrase “considered to indicate” means that EPA cannot simply refer to the use of the technology as proof (“to indicate”) that it has been adequatel y dem onstrated. Commenter continues that the alternative reading

—interpreting the ban on “consider[ing]” as a ban on EPA referring to these facilities whatsoever in the record

—is strained. If Congress had intended to preclude EPA from even referring to faciliti es receiving a tax credit under EPAct ’05, there are numerous, readily apparent way s in which that limitation could have been communicated more clearly

— for example, “no such technology use shall be considered in determining,” or “considered in making a det ermination that. . . .” Commenter notes that provisions using this alternative phrasing appear elsewhere in EPAct ’05. Finally , commenter states that interpreting section 48A(g) to allow EPA to consider information from EPAct ’05 facilities is the more rea sonable reading because it is consistent with the numerous other instances in the same statute in which Congress uses the phrase “considered to” to mean “deemed.” Commenter 10108 states that reading “considered to indicate” to mean “deemed to prove” harmon izes section 1307(b) (codified as section 48A(g) of the Internal Revenue Code) with sections 402(i) and 421(a) of EPAct ’05. Interpreting all three provisions together is most appropriate because there is no indication that Congress intended projects recei ving tax incentives to be treated differentl y from projects receiving other kinds of federal support under EPAct ’05. Commenter 9664 states that the tax statute, section 48A(g), should be interpreted together with the other text enacted at the same time an d for the same purpose

— sections 402(i) and 421(a)

— because there is no indication that Congress intended projects receiving tax incentives to be2
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treated differently

from projects receiving other kinds of federal support under EPAct05. Commenter continues th at EPA’s understanding of section 1307(b) as simply preventing EPA from rel yi ng exclusively

on EPAct
- supported facilities in making a determination of whether a technology

is adequatel y demonstrated is the most logical one
. **Response 2.2 -**  **3:** Although the text of section 48 A(g) has some notable differences from sections 402(i) and 421(a), the EPA believes that it creates a similar limitation. The EPA acknowledges that the addition of parentheses changes the meaning of the phrase “solel y” in section 48A(g) (a deviation that, the EPA notes, accompanies several other small deviations in the language of section 48A(g) as compared to sections 402(i) and 421(a)). However, the remaining language prescribes that the demonstration of a technology or performance level at an EPAct05
- sup ported facility cannot “be considered to indicate that the technology or performance level is [] adequatel y demonstrated.” This phrase is best interpreted to mean that the EPA shall not deem a technology

or emission level to be adequatel y demonstrated base d exclusively on information from EPAct05 facilities. The use of the verb “to consider” in section 48A(g) plainl y means “to deem” or “to adjudge” rather than “to think about” or “to contemplate.” Only the first definition (“to deem”) is intelligible in context: “

No use of technology . . . shall be [deemed] to indicate that the technology . . . is adequately demonstrated . . . ” (as compared to: “ No use of technology . . . shall be [contemplated] to indicate that the technology . . . is adequately demonstrated . . . ”). The verb “to indicate (that)” is defined as meaning “to show that something will happen, is true, or exists,” as in the sentence, “A survey indicated that 89 percent of people recycle paper.” (See MacMillan English Dictionary online, http://www. macmillandictionary .com/dictionary /american/indicate .) Under this definition, sy nony ms include “to show” or “to prove.” Accordingl y, the limitation that “ [n ]o use of technology . . . by or at one or more [EPAct05
-supported facilities ]
. . . shall be considered to indicate that the technology . . . is [] adequately demonstrated ” prevents the EPA from concluding that the use of a technology at an EPAct05 facility

can be deemed to prove that the technology

is adequatel y demonstrated. This limitation thus prev ents the EPA from making a BSER determination on EPAct05 evidence alone (which would require that the EPA believe the EPAct05 evidence, in itself, could be deemed to prove the EPA’s conclusion), but does not prevent the EPA from relyingon that evidence in tandem with information from non
- EPAct05 facilities (where the EPAct05 information would not prove, but only support, the EPA’s conclusion). Section 48A(g) thus establishes a “sole basis” limitation, like that in sections 402(i) and 421(a), even where the broader language of the provision deviates from that in the other two sections. While it is not necessary

to conclude that section 48A(g), concerning IRS tax credits, be read to create similar limitation to those appearing in sections 402(i) and 421(a), c oncerning DOE grant programs, the EPA believes the natural reading of all three provisions warrants this outcome, as does the broader purpose of the subsidies established in these sections. Congress intended these programs to advance the development of cle an coal technologies and to serve as a bridge to their commercialization. Although Congress set reasonable limitations to ensure that EPAct05
- supported facilities did not form the exclusive basis for technological determinations under the Clean Air Act bef

ore such technology

appeared elsewhere in the industry , it would be contrary to2
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the intent of the legislation to entirely preclude the EPA from recognizing advances in CCS technology

when projecting the future availability of clean coal technologies for ne w sources. Allowing the EPA to rel y on information from these demonstration projects, provided the EPA can show

— with other evidence

—that these technologies are beginning to take root in the broader market, is most consistent with Congressional intent and w ith the plain language of these provisions. **Comment 2.2 -**  **4:** Commenter s 10618, 9510, 9666 state that the prohibition in Section 48A(g) applies, on its face, to facilities, and not to eligible property. Section 48A uses both “eligible property” and “facility” but not interc hangeabl y. Because the terms are not equivalent it would be unreasonable for EPA to treat them as such b y equating the word “facility” with the words “eligible property. ” Commenters also note that credits are not “allowed” under Section 48A for technology or for a level of emission reduction. They are allowed for “projects” which must consist of one or more electric generation units

– that is, facilities. In addition, the phrase “to which a credit is allowed” directl y follows the word “facilities” and is no t offset b y a comma or other punctuation

– a further indication that the authors of Section 48A(g) intended the prohibition to apply

broadly to “facilities” or “projects” that receive assistance

– not to specific “technologies” or “levels of emission reduc tion”

– and certainly not to “eligible propert y,” a phrase that is not used at all in subsection 48A(g). Commenter 10618 states that EPA cannot require facilities to disclose whether they received a tax credit or violate IRS privacy , so EPA must adopt inte rpretation of section 48A(g) that does not rely on disclosure of this information. Commenters states that it would be unreasonable and unlawful for EPA to construe the statute in a way that would preclude the Agency from following that statute’s directive, so it must conclude that a tax credit is “allowed” when it is “allocated” or awarded by the IRS. Information on allocated tax credits is publicly disclosed so this interpretation would be administratively enforceable under existing law, would comport with the statute’s overall intent of promoting the development of clean coal technology , and would avoid EPA’s claimed difficulty in identifying which projects have actuall y received the credit. Commenter also states that considering facilities allocated a tax credit when the tax credit had not yet been allowed, or facilities that had not been allocated a tax credit but might in future, would frustrate the clear intent of Congress, which was to ensure that the technologies used and levels of emission reduction attained at demonstration projects receiving federal assistance under Section 48A would not be the basis of a BSER determination under Section 111. Commenter s 10618 , 9498 state that even if EPA were allowed to rel y, for purposes of Section 111, on projects that have not yet been built, interpreting Section 48A(g) to allow EPA to consider such unbuilt projects that might later receive the Section 48A tax credit (i.e., by placing eligible property in service at a future date) would frustrate the clear intent of Congress, which was to ensure that the technologies used and levels of emission reduction attained at demonstration projects receiving federal assistance under Section 48A w ould not be the basis of a BSER determination under Section 111. Interpreting section 48A(g) to allow EPA to rely on unbuilt projects that will in all likelihood receive federal assistance when built would frustrate this intent. Commenter 10108 states that unless and until EPA receives information to as to which CCS projects have benefitted from tax credits under section 1307(b) of EPAct (codified as section2
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48A(g) of the Internal Revenue Code), there is no basis for EPA to ignore projects about which the A gency

lacks public information. EPA should not be required to prove a negative, especiall y because man y of projects seeking assistance may never succeed in obtaining funding or a tax credit under EPAct ’05. Since EPA has no way of knowing which facilities have received assistance from the relevant programs, it was reasonable to request that information during the notice and comment period on the Proposed Rule when any affected project proponent had an opportunity

to provide that information to EPA. Commente r also notes that the section 1307(b) restrictions only

apply once a tax credit has been “allowed,” which occurs “in the year when the eligible property . . . is placed in service b y the taxpayer.” Until then, financial assistance is highl y contingent on e ntering into various agreements and meeting strict deadlines, and not all facilities that start down that road will succeed. Commenters 10100, 9666 , 9498 state that if EPA does not receive information confirming that a particular facility

received assistan ce under the Energy Policy Act of 2005, it may

not treat that facility as not having received any such assistance for purposes of determining the BSER adequatel y demonstrated. EPA is obligated to determine whether or not facilities used in its BSER anal ys i s are receiving CCPIfunds so that EPA can avoid considering prohibited facilities, as required b y statute . Commenter 9666 states that EPA cannot review the technology at a particular facility

until a project is placed in service (and thus the section 48A credit is “allowed”). Section 48A(b)(3) provides that “[r]ules similar to the rules of subsections (c)(4) and (d) of section 46 (as in effect on the day

before the enactment of the Revenue Reconciliation Act of 1990) shall apply for purposes of this sectio n.” These rules, known as the “qualified progress expenditure” (“QPE”) rules, allow a taxpayer to make an election to claim tax credits as “qualified progress expenditures” are made. Accordingl y, a taxpayer may claim Section 48A tax credits in the taxable ye ars before a project is placed in service. **Response 2.2 -**  **4:** EPA is not finalizing any interpretation as to whether the EPAct05 provisions pertain only

to facilities that received assistance for the relevant technology or emissions reduction, or pertain to all assisted fa cilities regardless of the form of the assistance. L ikewise, EPA is not finalizing any interpretation as to when a tax credit is “allowed” for purposes of the limitation in section 48A(g). Such potential distinctions are not relevant to the EPAct05 facilities referenced in this final rule. Accordingl y, responses to associated comments are not provided. **Comment 2.2 -**  **5:** Commenter 9396 states that EPA has erred in asserting that CCS is “adequatel y demonstrated” to a degree to be deemed BSER on the technical merits. EPA assert s that the reliance on demonstration projects that utilized funding subject to the restriction noted above was not the “sole” determinant in establishing the applicability and reasonable price of CCS. “Technically

feasible” is not sy

nony mous with “adequate ly

demonstrated.” Indeed, the terminology

“adequately

demonstrated” is quite clear and rests on the foundation that it has been “demonstrated” to a degree that is repeatable or replicable. Absent being able to identify projects that actually

demonstrate a history

of technology

working on an electric utility plant, EPA cannot sustain a conclusion that CCS is BSER. Commenter 10108 states that the EPAct05 provisions affect EPA’s determination that a sy stem of emission reduction is “adequatel y demonstrated”

— not EPA’s assessment of costs or other2
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factors that must be weighed in designating a BSER, including cost, health and environmental impacts, and energy

requirements. The parenthetical factors pertain to EPA’s balancing of what is “best” rather than its determ ination of what is “adequatel y demonstrated.” Thus, EPA properl y interprets section 111(a)(1) as separating the question of technical feasibility from BSER factors such as cost. **Response 2.2 -**  **5:** See section III.H.1.3.a of the final rule preamble for EPA’s response to this comment. 

### 2.2.3 EPAct Legislative History and Purpose **Comment 2.2 -**  **6:** Commenter 10618 states that EPA violates section 402(i) of EPAct 2005 because its reading of the provision would “result in [technology used b y facilities receiving assistance] or emission reduction leve l[s achieved at such facilities] being considered... ‘adequately

demonstrated’ for purposes of section [ ] 111...of the Clean Air Act,” as quoted from H. Comm. Energy

and Commerce, Report to Accompany H.R. 1640, the “Energy

Policy Act of 2005,” H.Rep. 109
- 215 at 238 (July 29, 2005). Commenter 9666 states that the legislative history of the EPAct “safe harbor” provisions confirms that EPA has violated EPAct by merel y “considering” EPAct
- funded projects. EPAct was first introduced in 2001 as H.R. 4, the “Securing America's Future Energy Act of 2001” (“SAFE Act”). The advanced coal technology safe harbor was part of the bill from its inception: “Neither the use of an y particular technology , nor the achievement of an y emission reduction, by any facilit y receivin g assistance under this title[,] shall be taken into account for purposes of making an y determination under the Clean Air Act in applying the provisions of that Act to a facility not receiving assistance under this title, including an y determination concer ning new source performance standards, lowest achievable emission rate, best available control technology , or any

other standard, requirement or limitation.” From H.R. 4, 107th Cong. section 5006(e) (2001). Thus, from EPAct’s inception, the drafters envisi oned a comprehensive safe harbor prohibiting consideration of subsidized technologies in NSPS rulemakings. Commenter 10095 notes that CURC was involved in the discussion regarding the intent of EPAct05 prohibitions and believes there was a “clear understanding . . . that the intent of EPAct05 prohibitions was to prevent the establishment of . . . new source performance standards under Section 111 . . . based on emissions control levels achieved b y facilities receiving assistance under clean coal te chnology demonstration programs authorized by Title IV of the EPAct05.” Commenter s 9666 , 9498 state that in the Energy and Commerce Committee’s report on the House version of EPAct, they explained the section 402 CCPIprogram safe harbor as “specifying that the use of a certain technology by any facilit y assisted under this subtitle . . . will not resul t in that technology . . . being considered . . . ‘adequately demonstrated’ for purposes of section[] 111 . . . of the Clean Air Act.” H.R. Rep. No. 109
- 215, at 238
- 39. This analy sis shows that the drafters intended to adopt the broadest possible ban on co nsideration of CCPI
- funded projects. Similar anal ys is by the House Science Committee of an identical provision in a related bill concluded that the language prevents technology at CCPI
- funded facilities from being considered under section 111 “simply by vi rtue of having been operated in th[e] program.” H.R.2
- 127

Rep. No. 109
- 216, H. Comm. on Science, Energy Research, Development, Demonstration, and Commercial Application Act of 2005 (H.R. 610), at 79 (2005) (describing section 902 of the Energy Research, Develop ment, Demonstration, and Commercial Application Act of 2005). **Response 2.2 -**  **6:** The EPA disagrees with commenters’ interpretation of the legislative history of the EPAct05 limiting provisions. The report of the House Committee on Energy and Commerce stated that the text in section 402(i) specifies that use of a certain technology “will not result in that technology . . . being considered . . . ‘adequately demonstrated’ . . . .” H. Rep. 109
- 215 at 239 (2005). Under the EPA’s reading of section 402(i), no information from EPA ct05
- supported facilities “result[s] in” a technology being considered (or deemed) to be adequatel y demonstrated because this information is not the sole basis for the EPA’s BSER determination. As explained in the response to Comment 2.2
- 2, evidence from the EPAct05 facilities may

be a component of the EPA’s determination without being a sufficient cause that alone “result[s] in” EPA’s determination. The EPA also disagrees with commenters about the relevance of the legislative history associated with previo us legislation that sought to establish these clean coal technology programs, but that failed to make it out of a conference committee. The language of the EPAct05 limiting provisions was changed substantially from the first appearance of these programs in a 2001 bill. The EPA has interpreted the text of the EPAct05, and has not sought to interpret alternative language that was not enacted into law. Likewise, one commenter’s reliance on a statement by the House Science Committee, describing parallel text in a different bill, ignores the full conclusion of that Committee. Quoted in full, the House Committee concluded that the text “[s]tipulates that a technology used at, or emissions reduction levels achieved by , facilities receiving assistance under [that le gislation] cannot be considered to be required under sections 111, 169, and 171 of the Clean Air Act simply by virtue of having been operated in this program.” H.R. Rep. No. 109
- 216 at 79 (2005). The EPA notes that the House Committee did not conclude that a technology could not be “considered under section 111” as the commenter paraphrased, but rather could not be “considered to be required under section[] 111.” As described in the response to Comment 2.2
- 2 , the use of “considered” here does not prevent th e EPA from “contemplating” technology at those facilities under its section 111 authority , it prevents the EPA from “deeming” that technology to be “required . . . simply by virtue of” its use at those facilities. The EPA believes this description is consi stent with a “sole basis” standard, which takes into account information from non
- EPAct05 facilities and is not “simply” a reflection of EPAct05 facility information. **Comment 2.2 -**  **7:** Commenters 9666, 10618 state that Congress included section 402(i) provision in EPAct bec ause CCPI funding is limited, by definition, to technologies that have not been adequatel y demonstrated. The CCPIprogram funds projects that "advance efficiency , environmental performance, and cost competitiveness well beyond the level of technologies that are in commercial service or have been demonstrated on a scale" that DOE "determines is sufficient to demonstrate that commercial service is viable as of the date of enactment." EPAct section 402(a), codified at 42 U.S.C. section 15962(a) (emphases added). In other words, the stated purpose of the CCPIprogram is to promote the development of technologies that are not ye t adequately

demonstrated. Moreover, because a statutory prerequisite for a technology to receive CCPIfunding is that it is not "in comm ercial service" or "viable," EPA has an extra2
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hurdle to prove that an y l evel of emission reduction achieved b y CCPI
- funded facilities is now viable and adequatel y demonstrated. Commenter 10618 states that EPA is acting contrary to the purpose because an N SPS based on undemonstrated CCS will substantially discourage further development of advanced coal technology

by requiring this technology to be installed and maintained on a full commercial scale before the technology is ready and capable of being used in such a manner. It may also discourage participation in demonstration projects by sources, thereby

discouraging important technological development. Commenters 9666, 10098 state projects are funded under EPAct with the goal of developing new technology . Th ese facilities cannot be considered by EPA in making findings that a level of reduction has been "demonstrated" as "achievable." Commenters 9201, 10239 state the CCPIis intended to advance efficiency , environmental performance, and cost competitiveness w ell beyond the level of technologies that are in commercial service or have been demonstrated on a scale that the Secretary determines is sufficient to demonstrate that commercial service is viable. Given the CCPI's focus on experimental technologies, it i s not surprising that Congress recognized the program's inconsistency

with establishing NSPS and prohibited the use of CCPI funded programs to establish that a technology is adequatel y demonstrated. Commenter 10039 states the purpose of DOE funding is bec ause these projects are demonstrations of new, unproven technologies and funding is necessary to show the technology is feasible for utilities. Also, the projects require extremely large capital investments for unproven technology . The reasons behind DOE f unding of these projects make US EPA's assertions that the technology is adequatel y available at a reasonable cost arbitrary and unreasonable. Commenters 9472, 10618 state Congress was concerned that EPA might conclude that a technology

or emission reduct ion level was "adequately demonstrated" just because ("solely by reason of" the fact that) the technology or emission reduction was achieved at a project that was funded through an EPAct05 program. The purpose of section 402(i) is to prevent EPA from concluding that a technology is adequatel y demonstrated just because it was demonstrated at a facility that received significant federal funding, while allowing the Agency to designate such technologies or emission levels as adequatel y demonstrated once they have been adequatel y demonstrated elsewhere, at facilities that did not receive assistance. Commenter continues that in light of this clear congressional intent, the most reasonable interpretation of this prohibition is that, for purposes of section 111, EPA must have sufficient evidence from facilities (including at least one full
- scale electric utility application) that have not received assistance under the Act before it can rel y on on emission data or experiences with the technology at facilities that hav e received assistance. Information from facilities that have received assistance can add weight to EPA's finding that a particular technology or emission level is adequatel y demonstrated, but it may not form the underl ying basis for identifying that techno logy or emission level in the first place.2
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Commenter 9510 states that the limitations in sections 402(i) and 48A(g) reflect Congress’s caution towards government
- funded energy projects. The language of Section 401(b)(4) of EPAct05 clearl y shows that Congr ess was aware of many “problems” with the projects funded under CCPI ’s predecessor program. This provides context as to why Congress did not want CCPI
- funded technologies considered b y EPA when assessing what types of emission control technologies are “ade quately demonstrated” under the NSPS. According to NETL , of its 18 CCPI
- funded projects, four are “complete,” four are “active,” and ten were “withdrawn” or “discontinued.” Commenters 9664, 10108 state that EPA’s interpretation of the EPAct05 provisions is consistent with the purposes of both EPAct05 and the Clean Air Act. The enumerated statutory purposes and the legislative history of EPAct confirm EPA’s conclusion that the provisions in question are intended to encourage the development of technology so that it can be used on a widespread commercial basis. Indeed, the deploy ment of demonstrated, cutting
- edge technologies to reduce harmful emissions is the purpose of section 111 performance standards. An EPA determination that an EPAct’05
- supported technol ogy is both adequately

demonstrated and the best sy stem of emission reduction for a source category and can be broadl y deplo yed via EPA performance standards would indicate that the goals of these EPAct’05 provisions have been fulfilled. Commenters note th at prohibiting EPA from ever evaluating the performance of an EPAct
supported project, even when there is strong additional record evidence supports a determination that a technology

is “adequately

demonstrated,” does not serve the goals of either statute. Commenters also state that subsidies that further encourage the commercialization of critical pollution abatement technology comport with the Clean Air Act’s overall purpose, and the agency may generally consider such subsidies when determining the BSER underlying a performance standard. That is a reasonable approach to the consideration of government funding meant to advance the market readiness, and adoption of pollution control technologies that provide real societal benefits. **Response 2.2 -**  **7:** The EPA agrees with commenters that these EPAct05 programs were intended to support projects that “advance efficiency , environmental performance, and cost competitiveness well beyond the level of technologies that are in commercial service or have been demonstrated on a scale.” The EPA believes that its interpretation of the EPAct05 provisions best reflects this intent. Congress intended the EPAct05 programs to advance the development of clean coal technologies and to serve as a bridge to their commercialization, and for the last de cade the EPAct05 programs have served this purpose. Although Congress set reasonable limitations to ensure that EPAct05
- supported facilities did not form the exclusive basis for technological determinations under the Clean Air Act before such technology ap peared elsewhere in the industry, it would be contrary to the intent of EPAct05 to entirely preclude the EPA from recognizing advances in CCS technology over the last decade when projecting the future availability

of clean coal technologies for new sources . Allowing the EPA to rely on information from these demonstration projects, provided the EPA can show

— with other evidence

—that these technologies are beginning to take root in the broader market, is most consistent with Congressional intent. The fact that these technologies were not yet “in commercial service” or “viable” when the law was enacted a decade ago does not reflect the state of these technologies today . The facilities described in sections V.D and V.E of the preamble to the final rule demonstra te that CCS2
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technology

has made significant strides. As described in those sections, commercial scale post
combustion CCS is in fact in use within the source category

— successfully

— at the Boundary Dam facility. **Comment 2.2 -**  **8:** Commenter s 10084 , 9498 state EPA's interpretations of provisions of the EPAct05 are not entitled to deference because an agency is not entitled to deference in its interpretation of a statute which is it not "entrusted to administer," and EPA is not the agency "entrusted to administer" the Energy Pol icy Act. Instead, that Act generall y, and Section 402 in particular, are administered by the Secretary

of Energy . Similarly , the tax credit regime at issue here is administered not by EPA, but rather by

the Secretary

of Energy

and the Secretary

of the Trea sury acting jointly . Neither the financial
- grant provisions of Title IV of the Energy Policy Act nor the tax
- credit provisions in Title XIII delegate any rulemaking authority to EPA, a sine qua non for the invocation of deference. Commenter 9666 notes that the relevant provisions of EPAct are not ambiguous, but that if they were, they

would not warrant Chevron deference to EPA. Nowhere in EPAct does Congress entrust EPA with the authority to interpret and administer that statute. EPAct merel y dictates what EPA may

and may not consider in determining what is "adequatel y demonstrated" for purposes of section 111 of the CAA, but does not amend the CAA and does not separatel y give EPA authority

to interpret EPAct. Implementation of the provisions of EPAct that amend the Internal Revenue Service
- administered IRC and the DOE
- administered Clean Coal Power Initiative is entrusted to DOE and the IRS, not with EPA. Thus, any Chevron deference would lie with DOE or the IRS, not with EPA. Commenter 10108 states even if E PA's interpretation is not the only proper reading of EPAct05, it is clearly

a reasonable interpretation and deserves deference from a reviewing court. The EPAct05 provisions in question are expressl y addressed to the Agency's role of determining which tec hnologies are demonstrated, or which emission limits are achievable, under the Clean Air Act. An agency's reasonable construction of a portion of a statute it is charged with enforcing or implementing deserves deference under the familiar Chevron standard. Commenter continues by noting that federal courts have held that this well
- established principle applies equall y even in situations, such as here, where the language affecting an agency's authority appears in a separate statute which it does not wholly administer. **Response 2.2 -**  **8:** The EPA believes sections 402(i), 421(a) and 48A(g) are not ambiguous and that its interpretations comport with the plain language of these provisions. However, even if the provisions were ambiguous, the EPA’s reasonable interpretation of these provisions would be entitled to deference. The three EPAct05 sections direct the EPA’s execution of its rulemaking powers under the Clean Air Act (a statute the EPA is clearl y entrusted to admini ster). The provisions cannot be read to direct or constrain the actions of an y other agency , as no other agency makes the subject determinations under sections 7411, 7479, and 7501 of the CAA. There is no context in which either the IRS or the DOE would have cause to administer or interpret these provisions, nor would they have the proper expertise to do so
.2
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### 2.2.4 Factual Support from EPAct Facilities **Comment 2.2 -**  **9:** Commenter 9201 states that EPA attempts to downplay its reliance on the Kemper, TCEP and HECA facilities i n the TSD. In the proposed rule, however, EPA makes clear that Kemper, TCEP, and HECA
--- along with the Boundary Dam Project in Canada which is not subject to EPAct05 since it is an international project
--- are central to EPA's determination of whether parti al CCS is "adequatel y demonstrated" for new coal
- fired EGUs. Despite the agency's references to literature and other projects incorporating aspects of CCS technology , a plain reading of the proposed rule reveals that these facilities are the primary exampl es relied upon by the agency

before determining that "CCS technology has been adequately

demonstrated, and its implementation costs are reasonable." Moreover, Kemper, TCEP, and HECA are highlighted as three of the four primary examples demonstrating the "t echnical feasibility and availability " of CCS. Commenter 9666 states that EPA’s claim that “it relie[d] on a wide range of information to support the proposed determination,” and that “[a]ccordingl y, the proposed determination is not ‘solely ’ based on info rmation about facilities that received assistance under EPAct05” is a post hoc rationalization. The Agency did in fact rel y, contrary to law, on the Kemper, HECA, and TCEP facilities to determine that partial CCS is BSER. Furthermore, it is clear that Kemp er, HECA, and TCEP, and not EPA's other evidence, prompted the Agency's policy decisions regarding CCS. EPA cannot by law consider these projects, and the "other information" on which the Agency

relies, to support the Agency's proposed BSER determination. Whatever other information shows, EPA's consideration of prohibited projects irreparabl y t aints the proposal and all that is left to consider is not enough to justify EPA's proposed BSER determination. Commenter 10618 states EPA has incorrectly determined it can rel y on technology used or emission levels achieved at subsidized facilities as long as it has other evidence. EPA states it has used facilities (seven of twelve) that have received funding under EPAct 2005 and Section 48A to determine that CCS is B SER. The commenter points out that the SaskPower Boundary Dam project was highl y s ubsidized by the Canadian government, and the remaining four projects were not coal
- fired EGUs or are not integrated commercial
- scale CCS projects. Commenter 9666 states EPA cannot rel y on the other projects cited in the proposed rule and EPAct TSD to demonstrate that CCS is adequately demonstrated for new U.S. coal
- fired EGUs either because they

are not EGU projects, they are small
- scale pilot or demonstration projects, they demonstrate onl y a single component of CCS, and/or they are heavily

subsidized, either with EPAct subsidies or otherwise. Commenter 9033 states that all of the facilities mentioned in the rule have received CCPI funding with the exception of Sask, which wa s highl y subsidized by the Canadian government. The commenter also notes that only the Kemper facility

demonstrates partial capture, while none other promote this technology
. Commenter 10618 states that EPA's reliance on federall y funded CCS projects to determine adequate demonstration suggest that EPA does not have sufficient evidence from facilities that were not federally

funded to make an independent determination that CCS is adequatel y demonstrated for fossil fuel fired EGUs.2
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Commenters 9780 and 1009 7 state that if EPA is legally able to use CCPIprojects to determine if a technology is adequatel y demonstrated, the projects cited by EPA in the Proposal and NODA do not provide the substantial evidence EPA needs to argue that the proposed CCS BSER deter

mination for fossil
- based EGUs and IGCCs is the product of reason decision making. Commenter 9664 states that although EPA is able to use subsidized projects, the projects not subsidized provide ample justification for EPA’s proposed rule. Commenter states EPA’s record amply establishes that integrated CCS sy stems are now, and will be available for commercial application on coal
- fired power plants, and that the component elements of these sy stems have been in long
- standing use in other similar industrial ap plications in the U.S. and abroad. Commenter 10108 states that EPA has focused on projects that demonstrate the technical feasibility of CCS for coal
- fired EGUs. In addition to these projects, there are man y other non
CCPIfunded, large
- scale integrated projects and pilot projects in operation or late stages of development that also demonstrate the technical feasibility of CCS. Commenter 10098 states that the CCPIfunded projects have little history of success. Commenter 10239 states the CCPIprogram and it s predecessor, the Clean Coal Technology Program, were both established to fund research and development projects involving clean coal technologies. The projects funded under these programs have been unsuccessful. These projects have proven to suffer from serious delay s and financial problems, resulting in the US Government Accountability Office (GAO) stating that these projects "may have difficulty in successfull y demonstrating, and ultimatel y commercializing their technologies." Of the 18 CCPI
funded proj ects, 4 have been completed and 10 have been withdrawn or discontinued. Commenter 9780 states that the Boundary Dam project is supported by significant grant funding from the Canadian government. Commenter also notes that regardless of the funding source, the EPA cannot rel y on the Boundary Dam project until it is operational and has provided meaningful data that integration with commercial
- scale electricity production is feasible. Commenter 10108 states that in determining whether a technology is adequatel y demonstrated, the EPA may

extrapolate from presentl y available technology. Commenter also states that the components of a s ys tem need not be full y integrated to be “adequatel y demonstrated,” and that in a number of different legal contexts, courts have r ecognized EPA’s expertise in determining whether components of a technology are sufficiently

demonstrated to mean the technology is demonstrated as a whole. Commenter also states that a sy stem need not alway s be applied at a source of the typ e being regulated in order for a system to be “adequatel y demonstrated,” and so EPA may rel y on information from other industries when setting standards of performance for EGUs. Commenter 10108 states that the evidence supporting EPA’s determination that CCS is adequate ly

demonstrated is considerabl y more extensive than what was available to show the feasibility of emergent technologies that have been identified as the best s ystem of emission reduction in past section 111 new source performance standards (NSPS). **Response 2.2 -**  **9:** The EPA’ s response to this comment can be found in sections V.D, detailing the projects upon which the EPA’s final determination is based; section V.F of the final rule2
- 133

preamble, discussing the EPA’s consideration of performance guarantees and other literature tha t supports EPA’s determination; and sections V.G.1
- G.3 of the final rule preamble, discussing the EPA’s consideration of the commercial availability of CCS, and the EPA’s treatment of small
scale pilot or demonstration projects and projects that demonstrat e components of CCS. The EPA believes its BSER determination for fossil
- fuel fired electric utility steam generating units is well
- supported b y an array of facilities, including a number of facilities that were not supported under EPAct05. The EPA notes th at, a s described in section V.G, commercial scale post - combustion CCS is in fact in use

— successfully

— at the Boundary

Dam facility , which is not an EPAct05 facility. See also preamble section V.E. explaining that pre
- combustion CCS is also a demonstrated t echnology
. **Comment 2.2 -**  **10:** Commenter 10662 states that EPA’s conclusion that existing coal
- fired units prove the economic viability of CCS is disingenuous and based solel y on non - operational demonstration projects receiving DOE financial assistance. EPA claims that it con sidered, in the course of determining BSER, “whether the costs of the sy stem are reasonable.” A s ys tem which literally does not exist without federal subsidies cannot be claimed to have reasonable costs. It is therefore completel y unreasonable to make the leap to a conclusion that the projects not so subsidized by

the federal government can either bear the costs of, or even operate with, the imposition of CCS as a mandatory technology . For this reason, the Energy Policy of Act of 2005 prohibits EPA from con sidering government subsidized projects as justification for a BSER determination. Commenter 3176 states without federal incentives and other revenue streams, the high costs would limit CCS funding and development. Commenter 10039 notes EPA asserts the lar ge government subsidies being utilized to offset the costs of CCS at several demonstration projects are not indicative that CCS costs are unreasonable. This assertion itself is unreasonable and arbitrary given that no projects have been undertaken in the U S without those subsidies and given that the subsidies themselves cover up to 80 % of the costs of the entire demonstration project. Commenter continues if the costs were reasonable, utilities would not need the US DOE funding to justify the costs for thes e demonstration projects and US EPA would be citing projects without DOE funding instead. Commenter 9664 states that EPA although EPA does not rel y solely on EPAct05 subsidized facilities, that available cost subsidies improve the reasonableness of the cos ts associated with the standard. Prior to EPAct05, courts evaluating section 111 standards recognized the use of subsidies to support new and emerging control technologies was “not unusual.” Commenter continues by

quoting the proposed rule “Each of the ma jor ty pes of energy

used to generate electricity has been or is currentl y being supported by some type of government subsidy such as tax benefits, loan guarantees, low
- cost leases, or direct expenditures . . . ranging from exploration to control installati on. This is true for fossil fuel
- fired; as well as nuclear
- , geothermal
- , wind
- , and solar
- generated electricity .” **Response 2.2 -**  **10:** The EPA notes, as stated in the proposed rule that major ty pes of energy

used to generate electricity

are routinely

the beneficiaries of government subsidies or support. Subsidies provided to facilities employing CCS technology over the past decade are not, in themselves, conclusive that the technolo gy is not or will not be commercially viable. A response2
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to this comment and f

urther discussion of the EPA’s evidence for and assessment of the costs of CCS and of the BSER appear in sections V.H and V.I of the final rule preamble, and Chapter 3 of the Res ponse to Comment. **Comment 2.2 -**  **11:** Commenter 9498 states that EPA is precluded from using “next
- of
- a - kind” costs to assess economic impacts of CCS because facilities undertaking federall y - supported demonstration projects represent the “first
- of
- a - kind” projects that render subsequent projects “next
- of
- a - kind.” Commenter continues that because EPA is precluded from using the use of technology

at EPAct05
- supported facilities in the first instance, these facilities are not “first
- of
- a kind.” EPA is precluded from referencing i n an y way that technology

to justify selecting a different point on a “learning b y doing” cost
- reduction curve
. **Response 2.2 -**  **11:** The EPA respectfully disagrees with this comment. The EPA considered NETL’s CCS cost projections, which project future CCS costs in part based o n the fact that present - day

CCS projects

– or “first
- of
- a - kind” facilities

– exist. NETL ’s projections do not depend on whether technology at an y particular facility

is “adequatel y demonstrated,” but merely recognize that first
- of

- a - kind facilities exist s o future projects will be

– by definition

– “next
- of

a - kind.” The EPAct05 provisions limit the EPA’s consideration of whether a technology or emission level is “adequately demonstrated,” not the EPA’s acknowledgement that a project is phy sicall y in existen ce, and so these provisions are not relevant here. Moreover, treating next
- of
a - kind CCS projects as first
- of
- a - kind projects would be factuall y inaccurate, unreasonable, and contrary to Congressional intent. Congress intended EPAct05 to accelerate develop ment of clean coal technologies b y supporting demonstration facilities that could push these technologies towards market. Treating the next generation of facilities as “first
- of
- a - kind” would be contrary to the goal of advancing market
- ready, next generati on technology
. 

### 2.3 **PENALTIES Comment 2.3**  **- 1:**  Commenter 9426 states, EPA proposes to calculate violations for the GHG NSPS by assuming that every

operating day

represents a violation during any rolling 12
- or 84
- operating month averaging period for which the 12
- or 84
- operatin g month average rate exceeds the limit. Commenter says, the proposal assumes the second highest potential for violations, exceeded onl y b y assessing a violation for every calendar day , regardless of whether the unit operated or not. Commenter say s, EPA has not justified this position. Commenter 9426 states, EPA's proposal to assume that every operating day

in a 12
- or 84
- operating month averaging period that exceeds the limit is unreasonable. Commenter say s, EPA has access to emission rate data for every day of operation and can substantiate whether a particular operating day

resulted in a violation. Commenter say s, the EPA should not assume violations. Commenter say s, an alternative approach is to assess only a single violation per compliance period, but it may not assess penalties for day s when the unit operated in compliance. Commenter 9426 states, EPA's method of averaging emissions and then assessing penalties for 12
- month periods that exceed the limit is arbitrary. Commenter say s, EPA should be wary of double counting the previously enforced violating day s and specificall y attempts to levy a fine for operating day s that were compliant.2
- 135

Commenter 9514 states, given the large economic benefits that can be accrued from profitable plants, EPA must make the m ost of its ability to deter violations through penalties. Commenter say s, two provisions of the CAA authorize penalties for NSPS violations, Section 113(d)(1) and 42 U.S.C. 7413(d)(1)(B) 40 C.F.R. Part 19. Commenter 9514 states, the long averaging periods proposed raise concerns regarding penalties and enforcement. Commenter say s, compliance determinations should be made dail y and that EPA should clarify

how penalties would be calculated for sources that do not meet the 95 percent valid data requirement. C ommenter say s, one possibility would be to assess penalties based on the number of individual operating day s in which the 95 percent data requirement was not met. Commenter say s, another option would be t o assess penalties based on a percentage of the source's annual operating day s equivalent to the percentage of operating hours for which the source lacks valid data. **Response 2.3 -**  **1:** The EPA is not finalizing the proposed 84
- month
- rolling average compliance period. The final standard of performance must be met over a 12
- ope rating
- month rolling average. Specific monitoring and reporting requirements are specified in preamble section X. and in the Rule L anguage at Table 3 to Subpart TTTT of Part 60
- Applicability of Subpart A General Provisions to Subpart TTTT
. 

### 2.4 **MISCELLANEOUS LEGAL ISSUES**  **2.4.1 General Legal Comments**  **Comment 2.4 -**  **1:** Commenter 9685 states, these comments are a Petition for Correction pursuant to the Information Quality Act (IQA) to correct the record in all regulatory actions of EPA that either used or cited the SCC2010, SCC2013, or SCC2013r since January 2009. **Response 2.4 -**  **1:** See response in unit 2.4.2 below. **Comment 2.4 -**  **2:** Commenter 10952 states, the 7th Circuit Federal Court of Appeals in Sierra Club v. U.S. E.P.A. is an important judicial decision that a BACT determination cannot result in source re definition. Commenter say s, the court rejected Sierra Club's contention that BACT for the Prairie State source should require it to utilize low sulfur coal transported by rail instead of the preferred higher sulfur mine month coal. Commenter say s, accordin g the court, the need to transport low sulfur coal to the Prairie State would not have redefined the source unless part of the design, part of the source definition as was the case there, included local coal utilization as a fuel resource for the life of the source. Commenter 9766 states, the proposal violates the well
- established waste management hierarch y set forth in the Pollution Prevention Act, which establishes a national policy favoring the prevention or reduction of waste, followed by recycling, tr eatment, and disposal. **Response 2.4 -**  **2:** EPA does not accept the premise that section 111 (a) determinations are trumped in some manner by a hier arch y set out in the Pollution P revention Act. However, EPA has considered waste generation issues as part of its consideration of nonair quality potential impacts, and reasonabl y determined that the final standards of performance will not have any2
- 136

adverse effects (and indeed, virtually no effects) on waste generation or management. See preamble section XIII.D. See also preamble section V.N.6.c describing EPA’s previous disposition of issues relating to waste management under both the RCRA and UI C programs, again accounting for potential issues relating to disposal of captured CO 2 in deep saline formations. **Comment 2.4 -**  **3:** Commenter 10030 stat es, EPA recognized a PSD permit allowing for the construction of the WCEV but Wolverine has publicly announced that it is not currentl y pursuing development. Commenter say s, nearly four years have lapsed between Wolverine's application for a PSD permit and final permit issuance in 2011, authorizing construction of the WCEV. Commenter say s, the proposal serves to perpetuate uncertainty as to what GHG emission limitations or other requirements may be applicable to the WCEV through future action EPA intends to take under Section 111(a) and Section 111(d). **Response 2.4 -**  **3:** See preamble section III. J. **Comment 2.4 -**  **4:** Several important elements of your proposed standard rel y heavil y or exclusively

on the use of the Integrated Planning Model, a proprietary model, instead of public energy models l ike NEMS. a. How is this consistent with EPA's Scientific Integrity Policy , which states "the use of nonproprietary data and models are encouraged, when feasible, to increase transparency "? b. Was it not feasible to rely on a nonproprietary

model? **Response 2.4 -**  **4:** IPM is a multi
- regional, dy namic, deterministic linear programming model of the U.S. electric power sector that the has been successfull y used b y EPA and private companies for over two decades to evaluate the economic and emission impacts of prospective environme ntal policies. The model code is proprietary , but all model input data, structures, and assumptions are public and fully documented ( See http://epa.gov/poewrsectormodeling ). The modeling performed b y EPA is therefore fully available for public assessment of its use. Models like NEMS lack important details that are essential to the modeling EPA needs to adequatel y assess policy

initiatives like the CPP **Comment 2.4 -**  **5:** Commenter 3593 states, the proposed rule is unconstitutional as a due process violation of the Fifth Amendment, in the form of a violation of equal protection, because the rule is intended to increase the cost of electricity to those least able to pay. Commenter says, the targets of this inequality

are minorities. **Response 2.4 -**  **5:** The commenter is mistaken on many grounds, including that standards implementing requirements of the CAA involve a taking of property, or a denial of equal protection. The standards are also not projected to have an y significant effect on electrici ty prices. RIA chapter 4. **Carbon Capture Sequestration Comment 2.4**  **- 6:**  Commenter 10097 states, the proposal is unlawful because the proposed NSPS for coal
- fired generation would "redefine" the source where carbon sequestration infrastructure is unavailable. Commenter say s, in circumstances where source definition includes the need to locate the source to fulfill a local need or take advantage of a local resource and that definition includes coal utilization the imposition of the proposed NSPS allowing only carbon capture and2
- 137

sequestration where resources are unavailable to do so would be unlawful as requiring source redefinition. **Response 2.4 -**  **6:** The commenter is mistaken. The promulgated standard of performance can be met by an y new coal
- fired steam electric unit in any area of the country . **Comment 2.4 -**  **7:** Commenter 8971 states, partial capture CCS inappropriatel y discriminates between regions, states and regions within states. Commenter say s, EPA's proposal violates the Commerce Clause b y developing rules that can only be met in certain regions of the c ountry and inhibits free flow of interstate commerce. **Response 2.4 -**  **7:** The commenter is factually mistaken. The final standard of performance, set at a level reflecting performance of the BSER, can be met by a new coal
- burning EGU in any area of the country
. **Comment 2.4 -**  **8:** Commenter 94 71 states, the preamble discussion does not adequatel y protect sources from citizen suits alleging that modifications at an existing source trigger applicability of technology

associated with the GHG NSPS for new sources under either the NSPS or PSD program. Commenter says, without express regulatory language clarifying that the proposal does not apply to modifications, third parties may attempt to impose the rule on modified units through litigation. Commenter say s, EPA should include clear and unambiguous language within the final rule that the performance standard does not apply to modified units under either the NSPS or PSD program. **Response 2.4 -**  **8:** The rule is clear as to what sources are covered. **Reliability and Affordability Comment 2.4**  **- 9:**  Commenter 9196 states, it is appropriate and necessary for EPA to take adverse health effects associated with threats to reliability and affordabilit y of power into account for the final rule. Commenter say s, the consequences of electricity price increases should lead EPA to reconsider the propos ed rule. **Response 2.4 -**  **9:** EPA has carefull y done so. As shown in RIA chapter 4, the standards are not projected to have a significant impact on electricity prices. **Comment 2.4 -**  **10:** Commenter 9497 states, the proposed standard for new coal
- fired power plants has the potential to drasticall y affect the cost of electricity which is a public health and welfare concern. Commenter say s, EPA should recognize the impact the rule may have on electricity costs and commit to reviewing the rule four years after promulgation to give stakeholders an opp ortunity to comment and the Agency to revise. **Response 2.4 -**  **10:** See previous response. **Violates U.S. Supreme Court Precedent Comment 2.4**  **- 11:**  Commenter 10786 states, the NSPS violates U.S. Supreme Court precedent on preemption.2
- 138

**Response 2.4 -**  **11:** The commenter claims that the NSPS is inconsistent with, if not in direct conflict with, State laws and regulations governing EOR generall y, Class II primacy, and associated long
- term storage via CO2
- EOR. UI C Class II wells are ty pically , but not exclusive ly regulated b y the states. Nothing in the NSPS rule preempts the states' Underground Injection Control primacy

in issuing Class II permits. Specifically , reporting under GHG Reporting Program Subpart RR does not preempt the Class II permit issued by the s tates. See preamble section V.N.5.a and section 6.3 of this response to comments document.
. 

### 2.4.2 **Issues Related to Data Qualit y Act (Information Quality Act)**  **Comment 2.4 -**  **12:** Commenter 10870 states, the proposed rule does not comply with multiple requirements of the OMB guidelines implementing the Data Quality Act, both for Highl y Influential Scientific Assessments (HISAs) and for other influential scientific information (I SI ). Commenter say s, these deficiencies must be corrected and the Proposed Rule's technology assessme nt subjected to independent external peer review and public participation, before the rulemaking can be sent to OMB for review as a final rule. Commenter 4846 states, if an agency relies on either ISI or a HISA to support regulatory action then it is requ ired to include the administrative record for that action a certification explaining how the agency

has complied with the requirements of this Bulletin and the applicable information quality

guidelines. Commenter say s, EPA did not include the certification and therefore OMB cannot approve the final rule incorporating ISI or a HISA. Commenter 4846 states, there is no record of EPA complying with the five mandatory peer review tasks set forth b y OMB. Commenter say s, an unnamed staffer from EPA's Office of Ai r and Radiation stated to the Science Advisory Board that "the portion of the rulemaking addressing coal
- fired power plants focuses on carbon capture and that the regulatory mechanisms for addressing potential risks associated with carbon sequestration are not within the scope of the Clean Air Act. Commenter say s, this statement is peculiar because the preamble NPRM preamble states it is based on partial implementation of carbon capture and storage as the BSER. Commenter say s, the staffer's assertion also d id not cite a specific statutory authority or legal anal ys is. Commenter 4846 states that the BSER determination is a highly influential scientific assessment (HI SA), as defined in the legally binding OMB bulletin, and that the proposed rule failed to follo w peer review procedures mandated for a HISA. The commenter further characterizes SAB statements and actions as stating that the SAB believed that additional peer review was needed but “the SAB Work Group reversed its recommendation for additional peer re view based on the representations made b y EPA staff” (Comment p. 10 and n.14). Commenter say s, EPA has not explained how their BSER determination does not meet OMB's definition of a HISA. Commenter say s, the SAB believes the agency 's CCS determination requ ires external peer review. Commenter says, after the specific instances of EPA non
- compliance with peer review requirements are identified, the next step is to identify the relevance, if any , to the rulemaking from the lack of peer review.2
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Commenter 4846 s tates that EPA has violated a specific rulemaking requirement established b y OMB in the peer review bulletin; discussing the peer reviewers’ report in the NPRM. Commenter say s that EPA is substantively out of compliance with minimum acceptable peer review standards and any EPA final rule promulgated prior to agency completion of their peer review duties would not be legall y valid because it would violate mandatory requirements of the OMB Guidelines (p. 3). Among the binding requirements which the comment s tates have been violated are: not sponsoring an independent external peer review of the CCS technology assessment, not sponsoring a public meeting with the peer review panel and allowing public comments to be made to the peer reviewers, not preparing a pub lic charge to peer reviewers, the obtaining a peer review report that will be made public and responding to same, that the individual peer reviewed studies and data cited in the proposed rule and record thereto are not substitutes for these mandatory requi rements. The commenter further stated that EPA is “also violating the peer review policy guidance in its Peer Review Handbook (Comment p. 4). Commenter 4846 states, EPA should link to or otherwise cite the CRE audit report in its GPRA Modernization Act of 2010 Summary of Findings report to be delivered to OMB by May 16, 2014. Commenter say s, EPA should initiate the public, participatory peer review activities mandated b y OMB and the DQA. Commenter says, following the completion of their peer review duties, EPA should publish a Further Notice of Proposed Rulemaking requesting comment on the peer review report. In comments to the Notice of Data Availability and accompanying TSD, Commenter 4846 states that EPA's TSD reiterated that the BSER determination for CCS was based "on a review of existing projects that implement CCS, existing projects that implement various components of CCS, planned CCS projects, and scientific and engineering studies of CCS." Commenter say s there are two conclusions from EPA's NODA and TSD: 1) EPA has further documented that their BSER determination is a HI SA; and 2) EPA responds to substantive legal challenges to this rulemaking prior to drafting the final rule. **Response 2.4 -**  **12:** The commenters’ view of the applicable law is mistaken. The Information Quality Act (IQA), sometimes referred to as the Data Quality Act, was enacted in 2000 and directed the Director of the Office of Management and Budget (OMB) to issue guidelines providing policy

and procedural guidance to ensure and maximize the quality , ob jectivity , utility , and integrity

of information disseminated by federal agencies. Each federal agency was then required to issue its own guidelines modeled after those issued by OMB. The IQA does not, by its terms, create a legal right of action. Salt Ins t. v. Leavitt , 440 F. 3d 156, 159 (4th Cir. 2006); see State of Mississippi v. EPA , 744 F.3d 1334, 1347 (D.C. Cir. 2013) (citing Salt Inst. approvingly); Mississippi Comm’n on Environmental Quality v. EPA , No. 12
- 1309 at 84 (D.C. Cir. June 2, 2015) noting that “almost every court that has addressed an Information Quality Act challenge has held that the statute ‘creates no legal rights in any third parties’”(quoting Salt Institute )), and holding that “[t]he purpose of the Information Quality Act is to ‘ensure and minimize the quality , objectivity , utility , and integrity of information (including statistical information) disseminated by Federal agencies’ and does not constitute a statutory mechanism by which the EPA’s conclusions reached while making its nonattainment determinations can be2
- 140

challenged” (emphasis original) 11 OMB published its flexible, government
- wide guidelines on February 22, 2002. EPA issued its Guidelines for Ensuring and Maximizing the Quality , Objectivity , Utility , and Integrity of Informati on Disseminated by the Environmental Protection Agency (I QGs) in October 2002, to provide non
- binding policy and procedural guidance to achieve the purposes of the IQA. EPA has fully adhered to the guidance of the IQA. Under the IQGs, EPA ensures and maximizes the quality of information it disseminates by implementing well established policies and procedures within the Agency , such as the Agency ’s Peer Review Policy , as appropriate to the information. Consistent Agency
- wide implementation of peer revie w has been an EPA priority for many years. EPA first issued its Peer Review Policy in 1993, and in 1998 issued its Peer Review Handbook to provide non
- binding guidance for implementation of the Peer Review Policy . In 2004, OMB issued its Final Information Quality Bulletin for Peer Review (OMB Bulletin) to provide government
- wide guidance to enhance the practice of peer review. EPA subsequently updated its Peer Review Policy and Peer Review Handbook to incorporate the provisions of the OMB Bulletin. EPA’s IQ Gs, Peer Review Policy , and Peer Review Handbook do not bind the Agency, but instead guide EPA’s exercise of discretion when making decisions about information quality and peer review. API v. EPA, 684 F. 3d 1342, 1348 (D.C. Cir. 2012); State of Mississippi v. EPA , 744 F.3d at 1347 (D.C. Cir. 2013). The commenters’ argument that EPA’s determination regarding the best system of emission reduction (BSER) in reference to carbon capture and storage (CCS) technology is a highl y influential scientific assessment (HI SA) as defined by the OMB Bulletin and Peer Review Handbook further demonstrates a misunderstanding of the CAA. Section 111(a) and (b) require EPA to set technology
- based standards for new stationary sources reflecting performance of BSER that the Adm inistrator determines has been adequatel y demonstrated. Consistent with the CAA and decisions of the D.C. Circuit, EPA considered statutory factors including the

11 Commenter 4806 further asserts that a different case, Prime Time Int’l Inc. v. Vilsack, 599 F.3d 678, 685 (D.C. Cir. 2010) stands for the proposi tion that IQA claims are judicially reviewable. The case makes no such statement, and the D.C. Circuit has indicated otherwise by its citation, in State of Mississippi , of Salt Institute ’s holding that such claims are not reviewable (see text above). See also Mississippi Comm’n on Environmental Quality v. EPA , No. 12
- 1309 at n. 29, 2015 WL 3461262, (D.C. Cir. June 2, 2015) noting that Prime Time dismissed an IQA challenge “without addressing argument that the statute creates no legal rights in third parties”, and, as quoted above, stated that “almost every court that has addressed an Information Quality Act challenge has held that the statute ‘creates no legal rights in any third parties’”(quoting Salt Institute )). The commenter also fails to acknowledge all of the other cases uniformly rejecting this claim, and indeed, fails to acknowledge the text of the IQA itself. See Styrene Info. & Research Ctr., Inc. v. Sebelius , 944 F. Supp. 2d 71, at 82 (D.D.C. 2013) (concluding “that the IQA and OMB guidelines do not provide judicially manageable standards); Harkonen v. U.S. Dept. of Justice , 2012 U.S. Dist. LEXIS 171415, at **30

– 36 (N.D. Cal. 2012) (dismissing argument that D.C. Circuit reached the merits of an IQA claim in Prime Time ); Family Farm Alliance v. Salazar , 749 F. Supp. 2d 1083, 1096

– 1100 (E.D. Cal. 2010) (rejecting argument that D.C. Circuit in Prime Time found an implicit right of action under the IQA). The same commenter also reads Prime Time as holding that the OMB Guidelines are binding legislative rules. Guidelines are just that: they provide assistance and are not binding. Describing these OMB Guidelines, the D.C. Circuit noted that the Guidelines provide “‘policy and procedural guidance’”, are meant to be “flexible” and are to be implemente d differently by different agencies accounting for circumstances. State of Mississippi , 744 F.3d at 1347; see Styrene Info. &Research Ctr, Inc. , 944 F. Supp. 2d at 82. State of Mississippi antedates Prime Time . EPA consequently believes that the OMB Guidelines are not binding legislative rules. In any case, as explained in the text above, the SAB stated that EPA had acted in accordance with EPA’s own peer review guidelines.2
- 141

feasibility , amount of emissions reductions, costs, nonair quality impacts, and energy implications when developing its proposed BSER determination. EPA’s consideration of these factors was informed b y existing projects where CCS technology or its components are deployed, by

studies prepared b y the Department of Energy’s National Energy Technology Laboratory

(NETL) and Pacific Northwest National Laboratory (PNNL), and by

the work of the 2010 Interagency

Task Force on CCS. EPA explained its proposed BSER determination in the NPRM as a component of its regulatory action proposing performance standards to limit emissions of carbon dioxide ( CO 2 ) from new fossil fuel
- fired electric utility generating units. EPA disagrees with the commenters’ suggestion that EPA’s consideration of CCS projects or studies of CCS technology in the exercise of its statutory rulemaking authority is a “HISA” within the meaning of the OMB Bulletin and Peer Review Handbook. The Peer Review Handbook explains that regulations and decision documents such as the proposed BSER determination are not themselves subject to the Peer Revi ew Policy . EPA Peer Review Handbook, 3d Ed (EPA/100/B
- 06/002) pp. 15, 29
. Thus, the commenters’ claim that the proposed rule and preamble are HISAs is not correct. The commenters further argued that a Technical Support Document issued by EPA in January , 2014 is a HI SA. That document describes which currentl y operating or partially constructed facilities utilizing some ty pe of CCS have received DOE grants or IRS tax credits under the Clean Coal program of the EPAct2005, and contains legal arguments as to the interpretation of provisions in that statute. Descriptions of which facilities are in existence, what monies they received, and potential legal interpretations of statutory text is not a scientific assessment. The TSD also noted that two operating facil ities (Boundary Dam in Canada, and Dakota Gasification in North Dakota) showed that CCS was adequately demonstrated, again, a legal conclusion and not a scientific assessment. The TSD thus likewise is not a scientific assessment. Further, CAA section 111 (a) and (b) require the Administrator to establish standards of performance reflecting performance of the best s ystem of emission reduction which has been adequatel y demonstrated. Subjecting the Administrator’s BSER determination to further review would have the panel making a determination of the proper weighing of statutory factors

— feasibility , cost, nonair impacts, and energy requirements

—that are the Administrator’s exclusive province. Significant facts omitted from these comments demonstrate that EPA behaved reasonabl y when it considered available information concerning CCS technology in the development of this action. The SAB Work Group found that “while the scientific and technical basis for carbon storage provisions is new and emerging science, th e agency is using the best available science and has conducted peer review at a level required by agency guidance.” Memorandum of Jan. 7, 2014, from SAB Work Group Chair to Members of the Chartered SAB and SAB L iaisons, p. 3. The letter was subsequently en dorsed by

the full SAB. Work Group Letter of Jan. 24, 2014, as edited by the full Committee. The Work Group likewise found that the DOE’s NETL materials, which were key

documents supporting the proposed BSER determination, had been full y peer reviewed, and that the DOE peer review procedures satisfied the EPA Peer Review Handbook. Id. The SAB’s letter to the Administrator, dated January 29, 2014 and referred to in the comment, and in which the SAB expresses its “strong view ... that a regulatory framework for2
- 142

commercial
- scale carbon sequestration that ensures the protection of human health and the environment is linked in important sy stematic way s to this rulemaking” and that “[r]esearch and information from the EPA, Department of Energy, and other sources rel ated to carbon sequestration merit scientific review,” should be read in context

—EPA’s determination reflected the “best available science,” and was based on record materials that had been peer reviewed consistent with applicable guidelines of both DOE and EPA. Moreover, there is a plenary , health
- based regulatory s ys tem in place for geologic sequestration of CO 2 at commercial scale, the Class VI permitting standards for geologic sequestration of CO 2 , issued pursuant to the Safe Drinking Water Act. These standards were adopted after robust notice
- and
- comment rulemaking, and reflected peer review of critical issues. Thus, in developing the Class VI rules, EPA engaged with the SAB, providing detailed in formation on key issues relating to geologic sequestration

—including monitoring schemes; methods to predict and verify capacity , injectivity, and effectiveness of subsurface CO 2 storage; and characterization and management of risks associated with plume mi gration and pressure increases in the subsurface. 12 In addition, EPA developed a peer reviewed Vulnerability Evaluation Framework, which served as a technical support document for both the Class VIand Subpart RR rules. 13 When it appeared that the SAB Workgroup was not aware that these Class VI standards existed and did not recall the EPA’s prior presentation to the SAB on development of the geologic sequestration program, EPA staff correctl y informed the SAB Workgroup that issues of geologic sequestration of CO 2 were not within the scope of the section 111 rulemaking because the regulatory

regime for control has already been established pursuant to a different statute. The commenter is consequently mistaken in its suggestio n (or, perhaps more accuratel y, its mistaken innuendo) that there was any attempt by

EPA to circumvent SAB review here. Looked at more broadl y, the proposed rule was an ordinary exercise of rulemaking authority, ty pical of similar exercises of authority, to develop technology
- based standards considering such issues as cost, feasibility , and collateral impacts. The environmental statutes contain many such provisions. See e.g., CAA sections 112(d), 202(a), and 213(a); CWA sections 301(b), 304(b), and 307(b). In exercising that authority here pursuant to CAA section 111 (a) , the Administrator reasonabl y relied on record evidence, including evidence said b y the SAB to represent “the best available science.” The EPA thus believes that our actions here are fully in accord with the policies of the IQA and the terms of EPA’s Peer Review Handbook. In addition, EPA does not accept the necessary

implication of the comments that every rulemaking establishing a technology
- based standard involves “scientific assessments” or “highl y influential scientific assessments.” **Comment 2.4 -**  **13:** Commenter 9686 states EPA should request that EIA, not its consultants, run all of the anal ys is related to power plant rules, including the current rule. This will assure the arms - length independence required by the IQA.

12 See: http://yosemite.epa.gov/sab/sabproduct.nsf/0/AD09B42B75D9E36D85257704004882CF?OpenDocument
. 13 See: http://www.epa .gov/climatechange/Downloads/ghgemissions/VEF
- Technical_Document_072408.pdf
.2
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**Response 2.4 -**  **13:** This comment lacks merit. The IQA say s nothing about use of contractors. What matters is the quality of data used, which is not a function of contractor support or lack thereof. **NODA and TSD Legal Justification Comment 2.4**  **- 14:**  Commenter 5156 states, EPA did not include a statement of basis and purpose and did not include all data, information, and documents in the docket on which the proposed rule relies. Commenter say s, the NODA and TSD's full legal justification was released more than halfway through the p roposal's comment period ending March 10, 2014. Commenter say s, these documents contain new technical and legal representations not previously seen and EPA failed to comply with notice and comment requirements. **Response 2.4 -**  **14:** The commenter is evidently mistaken regarding lack of notice, given its own responsive comments on the issue, which EPA has considered carefull y. Furthermore, although the Act requires information and legal interpretations to be placed in the public docket at the time of proposal, there are no provi sions in section 307 (d) stating that EPA is forbidden to seek further comments on emerging legal and factual issues, and indeed, seeking further comment is generall y encouraged as a sound exercise of rulemaking authority. See, e.g. Small Refiner Lead phase -Down Task Force, 705 F. 2d at 540, 547
. **Comment 2.4 -**  **15:** Commenter 5156 states, the simultaneous comment deadline for the NODA and TSD provides insufficient time for stakeholders to anal yz e and formulate comments. Commenter say s, a deadline of March 10, 2014 is not enou gh time for states and stakeholders to draft comments on the proposed NSPS, as well as the NODA and TSD. **Response 2.4 -**  **15:** The man y thousands of comments on these issues, which are robust, and multi
- faceted, confirm the adequacy of the time period afforded for public comment here. Itis also to be remembered that many of the issues raised in this proceeding were already the subject of intense public comment. See 77 FR 22392. So commenters were not only deeply familiar with the issues involved in the proceeding, but had al ready submitted comments regarding those issues. This deep familiarity , and multiple comment opportunities, further illustrates the reasonableness of the time afforded for public comment. **Comment 2.4 -**  **16:** Commenter 5156 states, failure to compl y with section 307(d) places an y final rule in legal jeopardy . Commenter say s, to comply with section 307(d), EPA must withdraw and re
- propose the proposed NSPS so that major legal interpretations and policy considerations in the NODA and TSD are "included in the docket on the date o f publication of the proposed rule." Commenter say s, if EPA declines to re
- propose the NSPS then the comment deadline should be extended to 90 day s after publication of the NODA in the Federal Register. **Response 2.4 -**  **16:** The TSD contained no information not already present ed and docketed at proposal. It anal yz ed the same facilities and projects where CCS, or components thereof, are presentl y in actual or planned operation, and presented no additional information about the performance of the technology . So commenters were afforded a second opportunity to comment further on the same information they addressed in their comments to the proposed rule.2
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**Comment 2.4 -**  **17:** Commenter 5156 states, the new May 9 comment deadline for the complete proposal still provides insufficient time for stakeholder s to meaningfully analyze and formulate comments. Commenter say s, unless the proposal is withdrawn and reissued, it risks being overturned on these grounds. **Response 2.4 -**  **17:** The fact that these, and many other, commenters submitted robust comments to the NODA and accompanyi ng TSD indicates that these commenters had adequate opportunity for comment of which they took full (and appropriate) advantage. Moreover, the TSD contained no information not already presented at proposal. It anal yz ed the same facilities and projects where CCS, or components thereof, are presentl y in actual or planned operation, and presented no additional information about the performance of the technology . So commenters were afforded a second opportunity to comment further on the same information th ey addressed in their comments to the proposed rule. **GPRA Modernization Act Science Quality Commitment Comment 2.4**  **- 18:**  Commenter 4846 states, it is the DQA which sets the peer
- review related procedural science quality requirements that EPA must comply with while the GPRM A sets the reporting requirements for EPA to inform OMB and Congress on their progress in achieving their science
- related and other performance goals. Commenter say s, because the science quality standards and the reporting requirements are contained in dif ferent statutes and are implemented through different instrumentalities, enforcement is through two different OMB components, the Office of Information and Regulatory Affairs (OIRA), which is responsible for the DQA, and the Natural Resources Division whic h is responsible for EPA's implementation of GPRMA. Commenter 4846 states, EPA should include a hyperlink or citation to the CRE Audit Report in the FY 2014 Summary

of Findings delivered to OMB by May 16, 2014. Commenter say s, including the Audit Report to OMB is important since Sec. 1116(f) of the GPRA Modernization Act requires that OMB "shall determine whether the agency programs or activities meet performance goals and objectives outlined in the agency performance plans and submit a report on unmet goal s to the Administrator, relevant Congressional committees, and to GAO." Commenter say s, the program appraisal process is important because its goals include holding specific federal officials responsible for the agency's performance of its duties. **Response 2.4 -**  **18:** As expl ained in responses above, EPA’s rulemaking is consistent with both the letter and purpose of the DQA. Moreover, commenter 4846’s comment is premised on a considerable amount of mistaken information, again as discussed above. **Conflicts of Interest Comment 2.4**  **- 19:**  Commente r 3593 states, there are man y conflicts of interest in the current and recent leadership at EPA, mainly from former employees of environmental pressure groups that lobby the agency . Commenter say s, EPA's failure to recuse from all advisory and decision
making activities those individual with clear conflicts of interest impeaches impartiality by EPA in the proposal of this rule. Commenter say s, the proposed rule is invalid and must be conducted free of such conflicts. Commenter say s, with conflicts of intere st there is the potential for predetermination on the policy established in the proposed rule. Commenter say s, this2
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predetermination makes the decision arbitrary and capricious and should invalidate the rulemaking. Commenter 3593 states, EPA colluded with members of environmental groups to achieve a predetermined outcome, the end of the coal industry
. Commenter points emails demonstrating the coordination between environmental groups and EPA prior to the rulemaking. Commenter 3593 states, EPA chose location s to hold public hearings that would garner the most favorable audience for the regulation. Commenter further details the potential reasoning behind each hearing location. Commenter 3593 states, EPA colluded with environmental groups to shield regulations from Congressional review. Commenter say s, evidence of predetermined goals requires EPA to start over and begin an y similar rulemaking anew. **Response 2.4 -**  **19:** These comments are incorrect and insulting. The EPA’s decisions reflect the highest levels of disinterested, objective decision making, reflecting the Agency ’s best assessments based on applicable law and science. As part of that process, agency representatives routinely seek out the widest gamut of stakeholders to solicit both their views and hard information. This is important not only so that EPA acts based on best possible and most representative information, but also so stakeholders fully participate in the administrative process. The EPA operates as part of a democracy, and the views of the public, and interested stakeholders, furthers both agency decisionmaking and the democratic process. As part of that process here, the EPA met with industry representatives, representatives of states, environmental stakeholders, held multiple public hearings, and other wise sought the widest outreach feasible. This is appropriate and desirable, as just stated. See also such cases as Lead Industries 647 F. 2d 1130, 1175
- 80 (D.C. Cir. 1980) and M arine Shale Processors v. EPA , 81 F. 3d 1371, 1384
- 85 (5 th Cir. 1996) (illus trating legal criteria for finding impermissible conflicts of interest in agency officials, and how far these unsupported and inaccurate comments are from satisfying those legal standards). **Public Record Comment 2.4**  **- 20:**  Commenter 3593 states, EPA's rulemaking record is i ncomplete due to the us e of private email accounts to conduct official correspondence. Commenter say s, EPA should co nduct a review to determine how extensive the use of non
- official email accounts was by officials materiall y involved in the rulemaking. Commenter say s, when federal employees correspond on work
- related issues on non
- official accounts, they are required to copy

their office. Commenter say s, EPA must satisfy all obligations to full y inform the National Archivist and assist with all prescribed Archivist and Agency steps in response to that required reporting and diligentl y work to ensure the record is as close to being complete as possible. Commenter 3593 states, this practice evades but does not, as a legal matter, defeat federal record
- keeping and other transparency requirements relevant to the proposed rulemaking found in the APA, CAA, Federal Records Act, or FOIA. Commenter say s, correspondence moved "off
line" from the official, required channels are still potential agency records and/or fede ral records, and possible candidates for inclusion in the rulemaking record.2
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Commenter 3593 states, work
- related emails sent and received on non
- official accounts have been removed from defendant federal agencies since the agencies lack access to or contro l of records which should by

law be in their possession. Commenter say s, in addition to its obligation to enforce law and policy requiring the agency to obtain all relevant correspondence and docket it as appropriate, EPA has the obligation to report the discovery of this process to the National Archivist. Commenter say s, EPA arbitraril y and capriciously refused to comply with the requirements of statutory and regulatory record
- creating and record
- keeping regimes. Commenter say s, EPA failed in its obligatio n to establish safeguards against the removal or loss of records and making requirements and penalties known to agency officials and employees. Commenter 3593 states, like email, text messages can be federal records and under the FOIA EPA must preserve and release messages relating directly to work. Commenter say s, the proposed rulemaking is improper without the release of relevant text messages and the rulemaking must be stayed until remedial steps are fulfilled. Commenter 3593 states, this rulemaking sho uld be stayed until remedial steps are taken to ensure the integrity of this rulemaking record. Commenter says, EPA must take corrective action to bring the Agency's record into compliance and to report the possible loss of records to the National Archivis t. Commenter say s, EPA must also satisfy all obligations to assist with prescribed Archivist and Agency steps in response to required reporting and make efforts to retrieve records. Commenter 3593 states, EPA's pattern of not preserving records violates the Federal Records Act and illegall y denies the public access to records covered b y the FO IA, 147 is arbitrary and capricious action that violates the Administrative Procedure Act (APA), 5 U.S.C. paragraph 704, et seq., and it leaves a record that is not s ubject to proper review or sufficient to support the proposed rulemaking. **Response 2.4 -**  **20:** EPA’s rulemaking record is fully compliant with all applicable requirements of CAA section 307 (d).