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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

Adequately Demonstrated..................................................................................................... 58

Achievable ............................................................................................................................ 71

Consideration of Factors for Best Adequately Demonstrated System.................................. 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 Analysis 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 Issues 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...................................................................................................................... 145
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2.1 EPA AUTHORITY TO PROPOSE 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 policy framework will promote the 

deployment 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 1974 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-renewable and the "200 year" supply concept is flat wrong because EIA has never analyzed 

that assessment of our coal "reserves" to see if they truly are economically recoverable.

Response 2.1-2: The EPA appreciates the concern expressed by the commenter. However, the 

purpose of this rulemaking is to control emissions of CO2 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 production 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 the 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 analysis or 

discussion of the very serious repercussions economic, energy security, 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 developers 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. Fossil 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 types 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, in recent years, 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 publicly available IRPs from a range of companies (e.g., 

varying in size, location, current fuel mix), and noted that the plans are generally 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 mostly reliant 
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on a mix of new natural gas-fired generation 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, many 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 built 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 CO2 emissions to a level reflective of performance of the best 

system of emission reduction.

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 holdings 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 pipeline 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 anywhere in the country. 

Thus, although the EPA disagrees with the commenter that section 111 must allow a new plant to 

be sited anywhere (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 supported 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 

construction. 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 CCS 

programs. Commenters stated that the Mississippi project is over budget by almost $1 billion at 

this time and its target on-line date in 2014 is in question, this CCS project will not store CO2 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.
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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 precombustion capture technologies – and the compression, transportation and storage of captured 

CO2 are technically feasible, and adequately 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 system has long held 

that the regulation of electric power generation is the function of each state. Commenters further 

stated that the Federal agencies (such as the EPA) have the obligation to respect the rights of the 

states unless Congress specifically 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 reasonably be 

anticipated to endanger public health or welfare. EPA is granted authority to issue such 

regulations under section 111 (b) of the Act, and has 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 fundamentally obscures the state of technology

and rejects sound energy policy.

Response 2.1-7: The promulgated standard of performance is based on a best system 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 regulations on any of these sectors? If 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 System 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 any other industry sector. Portland Cement 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 administrative 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 Act of 1978 (ERDDAA) establishes the Science Advisory Board 

(SAB) as an independent body charged with providing advice to Congress and the EPA. 
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Commenter questions the EPA, How, when, and in what manner has the Agency considered the 

advice of the SAB?

Response 2.1-9: As noted 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 found 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 CO2. Commenter asks following questions to the EPA:

Comment 2.1-10a: Please explain how future power plants would be permitted for CO2

injection in parts of the country where EOR is not an option. 

Response 2.1-10a: The Class VI UIC 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 section V.M. 

Comment 2.1.10b: 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 standards. Permittees pay these costs, and did so in the case of the 

construction permits issued to date under the Class VI program. 

Comment 2.1-10c: The NSPS proposal notes that UIC Class VI wells are an option. How 

many final Class VI permits has the agency 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?

Response2.1-10d: The SAB was properly informed that there is an existing, already 

promulgated set of standards for sequestration of anthropogenic CO2. 

Comment 2.1-10e: How can the Agency both rely on the benefits of EOR sales for 

making a CCS system less expensive, and incorporate new storage requirements in the 

rule (Subpart RR) while simultaneously denying that CCS includes the storage half of the 

system?

Response 2.1-10e: First, EPA has chosen a highly conservative means of assessing costs 

here by 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 partial CCS, which includes secure delivery of captured carbon to an entity
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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 section 111 (a)(1)), the EPA considered the efficacy of the Class VI and Class II 

UIC regulatory program to safely sequester CO2 so that CO2 is not re-released to the 

ambient air or contaminate underground sources of drinking water As explained in detail 

in 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 utilities 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 

economic analysis 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 discussion of issues related 

to sequestration availability and safety are found in sections V.M and N to the preamble to the 

final rule. In short, many issues of legal status (post-closure care, for example) are addressed 

and obligations specified by the Class VI permitting 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 Deputy Assistant Secretary for Clean Coal, Dr. Julio Friedmann, testified that requiring 

CCS technologies at new coal-fired plants could dramatically raise the cost of electricity for 

consumers. Dr. Friedmann testified that for so-called first generation technologies, there would 

be "something 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 2.1-12a: Does the EPA agree with that statement? 

Response 2.1-12a: 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 consideration of costs of the BSER, and the standard 

generally, 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 effects of standards). 
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Comment 2.1-12b: Does the NSPS proposal align with that assessment? Why or why not? 

Response 2.1-12b: As just stated, it does not because the standard is not based on performance 

of full CCS.

Comment 2.1-12c: Is a 70 to 80 percent increase on wholesale power prices acceptable to the 

EPA?

Response 2.1-12c: EPA rejected full CCS as BSER for reasons of excessive cost. See preamble 

section V.P.2.

Comment 2.1-12d: How did EPA model the economic impacts of such an increase?

Response 2.1-12d: 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 any 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 Dam.

Comment 2.1-13b: EPA is explicitly required to consider cost in determining the best system 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: Would 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 coalfired power plants?

Response 2.1-13c: This would not be a fair statement. See preamble section 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:.Is this EPA's legal position? If 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 projected economic data, including fuel 
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prices, out to 2022 (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, as well as EPA’s modeling of 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 determining 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 nationally?

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: Only 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 initial 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 monetized benefits in the form of CO2 reductions and 

SO2 reductions which exceed the cost of CO2 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 2.1-15a: Is this EPA's legal position? If so, on what authorities does this legal 

rationale rely?
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Response 2.1-15a: 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 2022 

(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 2.1-15b: Are there other variables that EPA believes would impact the factors the 

Agency considers in making a BSER determination?

Response 2.1-15b: See preamble section III.H.

Comment 2.1-15c: To what extent is cost a determining factor?

Response 2.1-15c: See in addition, preamble section V.H.2.

Comment 2.1-15d: What assumptions were made about the cost of natural gas and coal? Was 

this done regionally or does EPA assume that prices are uniform nationally?

Response 2.1-15d: See RIA chapter 4 in particular.

Comment 2.1-16: Commenter 9195 asks following questions to the EPA:

Comment 2.1-16a: 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?

Response 2.1-16a: See preamble sections V.M and N and response above.

Comment 2.1-16b: Do you think this rule will put specific states and regions at a competitive 

disadvantage in terms of compliance? 

Response 2.1-16b: EPA believes that the standard can be met anywhere in the country. In those 

few areas where sequestration proves unavailable (if any), alternative compliance pathways not 

involving sequestration are available. 

Comment 2.1-16c: Do you believe CO2 pipelines can solve this problem? 

Response 2.1-16c: 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 system of emission reduction" (BSER) for CO2 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.
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Comment 2.1-18: Commenter 9684 stated that the Congress never enacted legislation 

specifically requiring or authorizing NSPS for CO2 and never enacted a greenhouse gas cap-andtrade program.

Response 2.1-18: Congress has enacted CAA section 111, the Supreme Court has held that 

GHGs are pollutants and reiterated (in AEP v. Connecticut) that control of emissions of these 

pollutants is covered by section 111. EPA is consequently acting well within the scope of its 

delegated authority in issuing standards for control of CO2 from new steam electric 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. CO2/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. CO2/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 CO2.

Response 2.1-20: EPA is not promulgating the same NSPS for coal-fired and NGCC 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 

merely revising the existing standards that apply to new EGUs; instead, EPA is illegally adding 

GHGs (CO2) as a new NSPS pollutant for fossil-fired utility sources. Commenters further stated 

that the EPA is developing a rule to require only 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 by 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. 
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Comment 2.1-23: Commenters (9317 and 10024) stated that why generation technologies 

representing enhancements in operational efficiency are rejected as the best system of emission 

reduction (BSER) because they do not provide meaningful reductions in carbon dioxide (CO2) 

emissions, when EPA projected that this rule, based on carbon capture and sequestration (CCS), 

will result in negligible CO2 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. Quantifiable 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 'system 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 system of emission reduction is 'not 

required to be always 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 averaging.

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 periods of startup, shutdown, and malfunction. The EPA has also identified alternative compliance pathways –

beyond the implementation of the identified BSER. Further, the approach in this rule of requiring 

that all new sources be well-controlled at the source is consistent with Congressional 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 stated that the 

statute elsewhere grants EPA authority to 'distinguish among classes, types, 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 Lignite 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 applicable 
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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 establish any standards whatsoever---for different classes, types, 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 duty to revise NSPS for previously 

unregulated pollutants, and EPA may legitimately 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 (CO2) 

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 partial CCS performance, which could certainly serve as a bridge 

to use of full CCS. See generally preamble section V.K. If no coal-burning capacity were to be 

built, there would be significant GHG emission reductions compared to capacity using only 

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 reductions 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 only metric by which the 

reasonableness of costs can be assessed under section 111 (a). In addition, Portland Cement

itself holds that determinations under section 111 for one industry are not typically of relevance

for determinations for another industry. 486 F. 2d at 389. Second, as shown in section V.H.4 of 

the preamble 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 concerns. Since CO2 is a global pollutant, such concerns would not exist here.

Response 2.1-29: The EPA believes that a new source could locate anywhere in the country and 

meet the 1,400 lb CO2/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 that 
2-13

effectively prohibit new uncontrolled coal-burning electricity 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 pathways 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 rests on the validity of the assumptions, Portland Cement 486 

F.2d 375, 392. Commenter stated that this is another reason why this proposal is arbitrary and 

accordingly must be withdrawn.

Response 2.1-30: The estimates of cost in the final standards are not based on “crystal ball” 

projections – as the commenter evidently 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 costs 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 documented costing. See also draft RIA at 5-30 and 

final RIA at 4.5.4 (estimating costs for transportation, storage, and monitoring of CO2). The 

NETL estimates are consistent with those of other techno-economic models from highly 

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 by 

CCS technology providers. See preamble section V.I.2.c.

Comment 2.1-31: Commenter 10046 stated that the rulemakings 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 system of 

emission reduction. The standard here does so by assuring that new coal-fired steam electric 

plants, and new NGCC, control CO2 emissions to a level reflecting performance of that best 

technology. With respect to steam electric (coal-fired) plants, projections of overall reductions 

are low because of the unlikelihood of new capacity being built. If new steam-electric capacity

is built, it would emit considerably more CO2 without the standard adopted in the final rule. See 

preamble section V.K. 

Comment 2.1-32: Commenter 10046 stated that the EPA has always 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 source category under Section 111(b) when it has concluded that the regulation will 

not provide any meaningful reductions.
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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 source category is the largest emitter of CO2, and by a wide margin. Finally, 

the argument that the standard of performance does not achieve emission reductions is not true if 

new, non-compliant SCPC capacity is built, as the commenter purports to wish to do. 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: Commenter 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 by 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 propose 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 ways, principally including the following:

(1) EPA's technology-forcing analysis for CCS is irrational, and the rule would not produce any 

cognizable CO2 reductions.

(2) Because the proposal concededly affects nothing of a tangible regulatory nature and 

consequently supposedly costs nothing its use is pretextual, designed merely to trigger regulation 

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 significantly reduce CO2 emissions from such a source in 

comparison with a source (even 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 why EPA does not want to identify 

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 thresholds.
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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 CO2 than any other source category – by a very wide 

margin. By any 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 of Selective Catalytic 

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 that that is exactly what happened when EPA effectively forced development of 

FGD on eastern coal-fired units by adopting an SO2 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 adequately demonstrated. Commenter further 

stated that in a 1974 report 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 adequately demonstrated 

conclusion 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 by at least one operating unit, and the courts are reluctant to find a 

technology as adequately 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 actually 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 commenters, 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 Dakota Gasification and Boundary Dam facilities, respectively.

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 'adequately demonstrated' based on plant operating data, but concluded 

dry scrubbing was not adequately demonstrated because no operating plant used that system. 

Commenter further stated that in 1979, EPA issued a new SO2 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 only be met by use of FGD. Commenter further stated that Wet FGD systems 

had been installed on dozens of units, but no unit had yet operated using dry FGD. Commenter 

further stated that although EPA had wisely not claimed that dry scrubbing was adequately 

demonstrated, because EPA had justified its decision to employ a variable SO2 standard on 

grounds that such a standard would encourage development of dry scrubbing, the court 
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nevertheless found it necessary to determine whether dry scrubbing was adequately 

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 presently in operation at utility plants so 

information available . . . dealt with prototype units. Commenter further stated that it then opined 

that EPA had not explained how 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 adequately demonstrated. Commenter 

further stated that the court was unpersuaded by evidence of dry scrubber systems 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 systems over wet scrubbing 

systems, dry scrubbing is not yet a proven or 'adequately demonstrated' technology and its future 

is uncertain.

Response 2.1-37: The commenter somewhat mischaracterizes the discussion of dry scrubbing in 

the Sierra Club opinion. The court did not hold that dry scrubbing was not adequately 

demonstrated because no operating plant used the system. 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, particularly 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 largely 

on pilot scale performance of baghouses. Id. and id. at 380-84. Here, EPA has provided a full 

and reasoned explanation for its finding that partial CCS is demonstrated, and indeed shown that 

its findings rest on considerably 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 (only “limited data from one full scale commercial sized 

operation” existed; 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 reasonably explained with respect 

to the less-than-full scale use of partial CCS how the technology can be operated successfully at 

full scale. The EPA has thus supplied the type 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 technology to be adequately 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 

CCS 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 systems 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 maybe systems 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 of 
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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 

adequately demonstrated.

Response 2.1-38: The EPA disagrees. First, the Boundary Dam facility – a full scale 

commercial operation – is successfully 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 actively 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 extrapolations 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 conclude that it may

fairly project the adequate demonstration of a technology in the future is unavailing. The court 

asserted that:

Section 111 looks toward what may fairly be projected for the regulated future, rather than the 

state of the art at present, since 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 subject to the restraints of reasonableness and cannot be based on 'crystal 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 plant to be adequately 

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 fabric 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 by the reference 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 

stated 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 adequately demonstrated, would be to render 

the quoted passage as mere dicta since there was no issue as 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 (hypothetical) new source, 

which could (in theory) start operating as of promulgation of a standard. Here, commercial scale 

post-combustion CCS is in use – successfully – 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 desirous 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 

predicate 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 further stated that in 1998, EPA again revised 

the NSPS for electric utility units to require Selective Catalytic Reduction (SCR), and also 

extended this standard to apply to coal-fired industrial boilers. Commenter further stated that 

while EPA had extensive data 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 Lignite 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 adequately 

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 types of boilers can attain the same level of inlet NOX to the SCR system, 

meaning the SCR systems on both types of boilers would only need to provide similar levels of 

reductions. Commenter further stated that the Court cited with approval EPA's careful analysis 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 the 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 to conclude, after analysis, 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 analysis, 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 further 
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demonstrates that the standard of 1400 lb CO2/MWh can be achieved under the array of 

operating conditions which an SCPC might experience when properly 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 preamble section V.E.2.a.

Comment 2.1-41: Commenter 10046 stated that EPA first proposes to declare as technically 

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 relevantly 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 

analyze the issues of transferring the CCS component technologies to coal-fired power plants, let 

alone provided any analysis 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 largely 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 by 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 carefully 

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 challenges.

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 why we assert that CCS has not been adequately 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 most clearly 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 power 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 systems 
2-20

to shed light on the degree to which current systems are of a scale that is relevant to future CCS 

deployment with large fossil fuel-fired power plants and other large anthropogenic CO2 point 

sources. Commenter further stated that this study, at best, goes toward the potential of scaling up 

the component CCS technologies to coal-fired power 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, which are certainly the most germane to EPA's position that it has provided adequate and 

reasoned support for its conclusion that CCS is adequately demonstrated, the study specifically 

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 system components of a CCS system are commercially 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 stated that even if each core element of CCS has been demonstrated in some 

capacity, the simple fact is that CO2 capture, transport, and storage have not been transferred and 

integrated at commercial scale on a coal-fired EGU, and EPA has not provided a sufficient basis 

to reasonably conclude that they can be under applicable adequately demonstrated criteria.

Response 2.1-42: This comment is largely moot, given operation of the fully-integrated, fullscale post-combustion CCS system at Boundary Dam. In addition, many 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 CO2) or retrofitted CCS onto an existing 

EGU ... or both (i.e., retrofitting a full capture system onto an existing EGU). Importantly, the 

final standard of performance would not require implementation of full CCS, nor would it 

require integration within an existing EGU’s infrastructure. Finally, the final standards are not 

intended, in any 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 settings. 

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 from pilot studies and optimism that 

future projects (if completed) will work as planned are not sufficient to show that a specific 

emission reduction system 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, corroborated technical explanations of how the BSER 
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can be successfully 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 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”) and 341 n. 157. See also id. at 363-64 (standard not achieved by 

any operating plant upheld based largely on engineering explanation of how improvements 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 systems (including exploration, development, production and transportation systems 

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 analysis, 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 systems 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 coal-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 by the U.S. Energy

Information Administration, the EPA concluded that new generating capacity built through the 

period of analysis (2022) and beyond (through 2030) would be compliant with the standards 

even in the baseline. For this reason, this rule does not result in increased 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 (CO2) 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.
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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 proposal and in this proceeding, that there could be new 

coal capacity. If so, the difference in CO2 emissions from such a source would be considerably 

reduced under the standard of performance in this rule, compared to an SCPC source without 

CCS. Preamble section 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 

currently available to EPA under the legal authorities set out in the existing Clean air Act 

("CAA"). Commenters further stated that any federal climate change policy or regulatory

program should be 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 

CO2 emissions from new fossil-fuel fired electricity generating units. The Supreme Court indeed 

held so specifically 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 period for public 

comments on the underlying proposal, which remain due by March 10, 2014. Commenter further 

stated that the public has barely a month to review and comment on one of the most wideranging and unprecedented rules ever to have been issued by a federal agency.

Response 2.1-48: Upon publication of the January 8, 2014 proposal for newly 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 days, to May 9, 2014, giving stakeholders over 120 days 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 for 

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 made 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 heavy duty vehicles, had recently proposed 

further GHG standards for heavy duty vehicles and engines, and is adopting emission guidelines 

pursuant to CAA section 111 (d) for CO2 emitted by existing fossil fuel-fired EGUs.
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Comment 2.1-50: Commenter 9190 stated that the standard proposed for natural gas combined 

cycle technology is based upon actual emission data from operating units while the standard 

proposed for coal base load technology is based upon calculations for hypothetical coal units 

using unproven CCS technologies. Commenter 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 by 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 result 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, substantial 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 by 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 selecting 

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 by 

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 pathways with excessive costs or collateral 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 fundamentally different systems 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 CO2 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 by calculating the 

maximum percentage reduction in CO2 emissions that that can be obtained at a reasonable cost 

and applying 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 considerably due to a number of factors, 

including the diversity of turbine models and sizes on the market, variations from ISO conditions 

at different facilities, and variations in load and cycling depending on how a facility is 

dispatched. Accordingly, it was necessary for the EPA to assess actual emissions data from 

existing sources to 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. In 
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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 by sources across the relevant industry. Indeed, Congress intended section 111 of the 

CAA to be technology-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 2.1-51: Commenters (9775 and 10029) stated that the EPA fails to produce any 

meaningful examples of economically feasible CCS projects, which permanently store the CO2

and are not part of an EOR project that is under development. Commenters further stated that 

based on these facts, commercial scale implementation of CO2 capture and permanent storage 

from power plants has not been "adequately demonstrated." Commenters further stated that 

successful sequestration of captured CO2 in deep saline aquifers for permanent storage has not 

been "adequately demonstrated." Commenters further stated that this is partly a result of the 

EPA's decision to require pilot projects for such demonstrations to obtain the onerous and costly

UIC Class VI permits, 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 capacity 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 cost 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 synonymous, and for 

convenience, in this rulemaking, we use ‘reasonableness’ as the standard, so that a control 

technology may be considered the “best system of emission reduction ... adequately 

demonstrated” if its costs are reasonable, but cannot be considered the best system 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 construction 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 many instances of long-term successful geologic sequestration 

of massive amounts of CO2.

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 long 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 court 
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decision on a wholly separate set of regulations promulgated pursuant to a wholly separate 

section of the CAA is not the type of new circumstance that compels the reopening of a longsettled policy such as the PCP exemption. Commenter requested the EPA to issue guidance 

confirming the continued validity of the PCP exemption under the NSPS regulations.

Response 2.1-52: EPA neither proposed nor is taking any 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 anticipated pollution control projects 

that EGUs are most likely to undertake in the foreseeable future that could increase the 

maximum achievable hourly rate of CO2 emissions (i.e., be considered "modifications") would 

constitute NSPS "pollution control projects" 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 CO2 emissions would generally be small and 

would occur as a chemical byproduct 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 

installation of pollution control projects at 40 CFR 60.2, 60.14(e).

Response 2.1-53: EPA neither proposed nor is taking any 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 CO2 emissions from fossil fuelfired utility boilers and IGCC units." Commenter's company is currently producing fuel on a 

demonstration scale from sunlight, algae and CO2, and this technology is as "currently available" 

as geologic sequestration. Commenter questions the providence of EPA's attempt to forecast 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 safety 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 fuel, the EPA's proposal to mandate the disposal of CO2 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 fly ash that is 

captured by air pollution control equipment, but endorses its reuse in road aggregate and other 

products. Commenter further stated that EPA should not mandate the disposal of CO2, but should 

embrace its beneficial reuse.

Response 2.1-55: The final rule does not preclude reuse of captured CO2. See previous 

response.
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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 other 

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 by 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. The 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 clearly incorporates a technology 

assessment of partial CCS as the best technology 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 technically feasible 

and available and can 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 Laboratory, a federal inter-agency task force, the Pacific Northwest National 

Laboratory, the Joint Global Change Research Institute, the University 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 its 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, storage] 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 LouisianaPacific 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 consider 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 further 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 only when there is a clear and 
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convincing showing that he has an unalterably closed mind on matters critical to the disposition 

of the rulemaking.'

Response 2.1-59: EPA has carefully considered all relevant aspects here, as prescribed by 

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 adopting 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 outcomes from conflicted individuals 

whose minds are unalterably closed, and with a record properly reconstituted to include all 

proper correspondence, lawfully conducted and preserved.

Response 2.1-60: This unsubstantiated comment is utterly mistaken.

Comment 2.1-61: Commenter 1898 stated that the EPA, in these CO2 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 effectively mitigate all CO2 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 CO2 these plants will produce in their life cycle. Commenter further stated 

that quantitatively this means that each year, each company for each plant be required to either 

(1) build or add renewable energy capacity, which over a 30 year lifespan will generate as much 

renewable energy as their current operations 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 limitations of CAA 

section 111 (a).

Comment 2.1-62: Commenter 9590 stated that the EPA readily concedes that the proposed 

standards will result in negligible carbon dioxide (CO2) emission reductions and no quantified 

benefits. Commenter further stated that the proposed rule does not advance the stated objective 

of reducing CO2, it obviously 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 significant 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 coalfired technology). Commenters further stated that the EPA does not attempt to seek "as much 
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reduction as practicable" and instead allows emission levels 20 percent higher than the levels 

actually achieved by 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 

systems 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 CO2 from the flue gas stream after combustion 

has occurred. As a result, the EPA was able to determine an achievable emission rate for coalfired EGUs by calculating the maximum percentage reduction in CO2 emissions that that can be 

obtained at a reasonable cost and applying 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

considerably due to a number of factors, including the diversity of turbine models and sizes on 

the market, variations from ISO conditions at different facilities, and variations in load and 

cycling depending on how a facility is dispatched. Accordingly, it was necessary for the EPA to 

assess actual emissions data from existing sources to 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. 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 by sources across the relevant industry. Indeed, 

Congress intended section 111 of the CAA to be technology-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 2.1-64: Commenter 10083 stated that the EPA's Technology Based Limits (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 comment 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 record 

evidence that CCS is a technology which will allow continued coal viability. See preamble 

section V.I.4.
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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 unprecedented legal construct, 

and does not provide sufficient analysis 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 notes that "determining that these high 

efficiency generating technologies represent the BSER for CO2 emissions from coal-fired 

generation would fail to promote the development and deployment of CO2 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 CO2 emissions from 

new coal-fired generation likely would inhibit the development of technology that could reduce 

CO2 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 

adequately 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 CO2 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 would 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 confronted 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 the 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 EPA 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.
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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 CO2 captured at power 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 CO2 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 CO2 is 

not released to the ambient air. The subpart RR and PP monitoring 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 years 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 requires 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 demonstrated and technically 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 EPA Does/Does Not Have Authority Under CAA 111

Comment 2.1-70: Commenters ( 0836 and 10090) strongly 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 CO2 emitted from such sources.

Comment 2.1-71: Commenter 9766 stated that the proposal exceeds EPA's authority by 

mandating the use of geologic sequestration and categorically 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 standard 
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of performance because there is no standard for sequestered CO2. Moreover, the final rule 

contains a case-by-case mechanism to allow storage of captured CO2 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 deployment 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 that 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 pathways 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 only 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 Lime 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 variability, 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 possible. 

Falsely labeling CO2 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 that the Supreme Court has three times held that CO2 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 the 

Clean Air Act and represented bad policy because it would have effectively banned the 

construction of new coal-fueled facilities for the foreseeable future.
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Response 2.1-76: The commenters are mistaken that the final standard of performance adopted 

here (which among other 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-orcontribute-significantly 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-year regulatory window, 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 category. 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 responses 

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 Coalition 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 technology-based, standards to reflect the capabilities of BSER which is adequately 

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 Subpart 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 any particular technological system of continuous emission reduction to comply with any 

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 comment is completely misplaced. Not only is the final standard a 

numerical limit which can be met any 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 

standard of performance.
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Comment 2.1-80: Commenters (8966 and 9407) stated that the EPA acknowledges in its 

proposal and Regulatory Impact Analysis (RIA) that implementation of such a standard would 

make it likely that (i) few, if any, solid fossil fuel-fired EGUs will be built 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 it unlikely that few if any 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 competitive 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 any CO2 reuse technology would, in the foreseeable future, be able to accommodate all 

of the CO2 captured by an affected EGU. Commenter further stated that whether or not this 

assessment is correct, it is relevant only 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 Section 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 

system designed to meet the CO2 emission limit. Commenter stated an example, an affected 

EGU should be permitted to sell some portion captured CO2 for reuse in the creation of an 

advanced biofuel, while transporting the balance of captured CO2 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 CO2

reductions until it has been individually authorized by EPA through a rulemaking. Commenter 

further stated that this would have a disastrously chilling effect on the development of CO2 reuse 

technology and set a dangerous precedent for government interference into and control over 

private commercial decisions, not only regarding CO2 controls on affected EGUs, but for all air 

pollutants and all source categories subject to regulation under Section 111 . Commenter 

requested that the proposal be revised to comply with the CAA and allow reuse technologies to 

be used by affected EGUs, alone or in combination with other technologies to achieve the 

proposed CO2 emission limit.

Response 2.1-81: The final standard does not foreclose non-sequestration options for 

management of captured CO2. The final rule in fact contains a case-by-case mechanism whereby 
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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 employment 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 employment allegedly resulting from such administration or enforcement."

Response 2.1-82: The final RIA evaluates potential employment impacts, and reasonably finds 

that the final rule will not have adverse effects on employment. 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 new source permitting and these 

conflicts highlight the caprices nature of this rulemaking. In particular, the commenter indicates 

that a type of BACT top-down analysis and review of BACT permits should inform the BSER 

determination. Commenter further stated 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 system of emission 

reduction by 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 statute does not preclude 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 proposed 
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regulation will have significantly disparate geographic impacts. Commenter 10662 stated that the 

EPA must also consider increased fuel transportation costs and increased electricity transmission 

costs incurred by locating EGU facilities close to geological formations favorable to CCS.

Response 2.1-85: First, EPA has considered employment impacts posed by the standards. See 

RIA section 4.6. We project that these impacts will be minimal because we reasonably project 

that capacity additions during the analysis 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 analysis in the RIA is part of EPA’s 

ongoing 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 Tailoring Rule. Commenter further stated 

that the EPA's only 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 litigation. 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 10098 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. Circuit 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 information to develop a standard of performance and 

is acting accordingly.

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. 

Commenters also stated that the failure to do so will create significant uncertainty in the utility

sector, as NSPS regulations are effective upon proposal.
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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, particularly 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 of 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 LCOE in Table 6 of the preamble to the 

proposed rule was well defined and available at proposal. The principal information on costs are 

the NETL reports which are noteworthy for their detailed transparency. Every step in the 

process of deploying and pricing pre- and post-combustion CCS (including 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 decision point.) The commenter’s statement that 

the NETL materials are not peer reviewed is also mistaken. The EPA SAB Workgroup 

(endorsed by the full SAB) determined that the NETL studies were in fact adequately 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 basis for the increment of 

learning by 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 significantly lower NOAK costs set out in the NETL study which EPA used in its 

LCOE determinations (NRECA at 40, and enclosure 2).

Response 2.1-90: EPA has carefully 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 system 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 CO2 is not fully

developed 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 industry did not begin work 

to capture CO2 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 Air 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 why post-combustion partial CCS is a demonstrated and feasible 

technology for new coal-fired EGUs.
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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 marketoriented mechanisms, 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 

stated that accordingly, EPA cannot rely 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. Commenters 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 not 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 demand 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 

International 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 proposition 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 proposed 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 legislative history is not "inconsistent with congressional intent." Earlier in 

these comments we stress that both the legislative history and judicial opinions conclude 

otherwise
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Response 2.1-94: The EPA has explained that the final standard of performance does not impose 

geographic constraints on new sources meeting the promulgated standard of performance. 

Sequestration capacity is available in many areas of the country. EOR opportunities are also 

available in many areas. Dedicated pipelines for CO2 exist and their capacity is increasing. Coalby-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 capacity 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 pathways to compliance which do not involve CO2 capture and 

sequestration which are available and which are not geographically 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 many 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 EPA 

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 rulemaking that an NGCC is not 

"an air pollution control system" but an alternative way to convert certain fossil fuels into energy

and electricity, and for this reason, has always been a distinct source category. Thus it does not 

meet the definition of a "best system of emission reduction." By allowing coal plants only with 

CCS (a technology that is not commercially 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 reliance 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 pathways available, some of which do not involve CO2 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 safety valves that help mitigate risks to 

technology developers and to early adopters of the technology. Therefore, commenter 

recommended that climate change may be better regulated through legislation specifically 

designed to address complicated, economy-wide issues.
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Response 2.1-96: The EPA is acting pursuant to its authority under section 111. The issue of 

whether legislation 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 by expanding 

the EPA's 40-year 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 merely the emissions of air pollutants, but the choice of fuel 

and energy that a project must utilize 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 

economically 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 consequences, not only for the 

EGUs themselves, but also for the many other industries that depend upon the energy that the 

EGUs provide and may one day become subject to the same types of regulations. Commenter 

further stated that in addition, by forcing an over-reliance on a single fuel source, the EPA is 

decreasing the reliability of the electric system.

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 legitimately reflect less polluting types of designs and discourage 

perpetuation of more polluting designs, especially where compliance paths exist for the more 

polluting type 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 PSD permitting requirements for 

all source of GHGs (or for CO2 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 any 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 trigger 

issue may apply under the EPA - approved PSD programs administered by states and other 

jurisdictions. Commenter further stated that while the EPA's proposed method may apply in 

PSD-delegated states such as Illinois, 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 mirrored 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 state 
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implementation plan (SIP) revision. Commenter stated that this process can be time consuming, 

and the NSPS trigger issue may apply 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 any 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 regulations 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 likewise, 

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 fully consider all comments and to 

take the time necessary to ensure that final 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 NSPS 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 holding 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), could 
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independently trigger PSD when an NSPS is issued for GHGs, 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 stated 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 any 

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 review every eight 

years 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 updated is best described by EPA 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 significantly on 

existing 'Top Down' NSR BACT decisions to evaluate NSPS and required best demonstrated 

technology or BDT, a term synonymous 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 appropriately 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 information 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 by 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 analysis 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 promulgated NSPS must 

contain sufficient ‘headroom’ to account for normal operating variability (including fuel types 

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 redesigning 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 legally 

impermissible and not within the purview of a BACT analysis. 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, especially where alternative compliance pathways exist)), the commenter’s factual 

premise is incorrect. There are compliance pathways available to all new fossil-fired EGUs 

under the final NSPS. Some of these do not involve capture and sequestration of CO2. 
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Comment 2.1-104: Commenters (10050 and 10552) requested the EPA to consider setting 

standards based on CO2 emissions rates achieved by recently built and highly efficient coalfueled power plants, especially SCPC and ultra-supercritical PC units without CCS. Commenter 

further stated that these types of plants in the U.S. and other advanced economies, including 

Germany and Japan, as well as in a developing country, China, are demonstrating the path 

forward for achieving CO2 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 system, 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 deployment. Commenter further stated 

that properly 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 specifies a given company's emission level nor 

requires the use of any given technology both of these determinations are made by the company 

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, 10017, 10023, 

10030, 10036, 10046, 10047 and 10391) stated that the EPA has proposed a regulation that, by 

its own analysis, 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 roughly the next decade even so, albeit 

expressing interest in means of preserving fuel diversity within a portfolio). See preamble 

section V.H.3. Many members of the industry accordingly urged the EPA to adopt a standard, 

rather than to base the NSPS on performance of NGCC. Should new coal capacity be built, the 

CO2 emission reductions from the unit would be considerably reduced under the final NSPS. 

See section V.J of 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.
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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 by 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 of partial CCS 

needed depending on coal type, and finds the standard to be achievable and adequately 

demonstrated accounting for that variability. See preamble section V.J.

Comment 2.1-109: Commenter 10786 stated that the EPA cannot compel any private party to 

apply for, let alone obtain, any type 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 allegedly 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 EPA does not have authority to compel conversion from Well 

Class II to VI.

Response 2.1-109: This comment is misplaced. Class II wells due not lose their status as Class II 

wells if some CO2 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 by 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 CO2 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 that the Supreme Court relied on the EPA’s exercise of CAA section 

111 authority to regulate CO2 emissions from fossil-fuel fired EGUs in holding that federal 

common law claims were displaced by the Clean Air Act, one can hardly maintain that EPA 
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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, especially 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 proposal, 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 simply 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 construct EGUs in the relatively 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) stated that the EPA lacks the supporting documentation that is 

necessary to conclude that CCS is "adequately demonstrated" at this time and therefore EPA's 

proposal violates the clear mandate established under section 111(b) of the Act. Commenters 

further stated that the EPA's lengthy and complex legal justification in and of itself cannot rewrite 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.
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Comment 2.1-116: Commenter 10119 stated that the EPA projects that this proposed rule will 

result in negligible CO2 emission changes, quantified benefits, and costs. Commenter further 

stated that the EPA's Regulatory Impact Analysis similarly "anticipates that the proposed EGU 

New Source GHG Standards will result in negligible CO2 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 reducing those emissions.

Response 2.1-116: First, section 111 (a) establishes a technology-based standard, not a healthbased standard requiring a particular health or welfare outcome. Compare, e.g. CAA section 112 

(f). Second, in any case, under a range of assumptions where new non-compliant coal capacity is 

constructed, quantifiable benefits of the rule exceed costs. See also preamble section V.K 

documenting the extensive CO2 emission reductions between highly efficient SCPC and a highly 

efficient SCPC meeting the promulgated 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 CO2 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 CO2 will 

actually be capably stored thereby reducing CO2 emissions to the atmosphere. The argument is 

presented 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 by new sources”. (UARG p. 33.) The argument is that emissions of CO2

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 offsite reduction in CO2. CO2 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 ‘system of emission reduction’ that is 

designed into the new source itself, the underground ‘sequestration’ of a new source’s CO2

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 CO2 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 

disposition 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 system 
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of emission reduction is “best” under section 111. See e.g. 54 FR 34030 at section II. (Aug, 17, 

1989)(environmental impacts 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 emissions1); 40 CFR section 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 sulfide 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 source categories (and all others) are analytically 

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 removed pollutant.5 Nor is further control pursuant to the Clean Air Act necessary

or appropriate given the extensive controls typically imposed by standards under the sister 

environmental statutes and implementing regulations. The EPA may, of course, rely 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 flue 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 technologies 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).
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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 pollutants 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 physical 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 performance that allowed all captured pollutant to be re-emitted would of course 

not be a “best” system. Cf. Essex Chemical Corp., 486 F. 2d at 439. However, that is not the 

case here. First, the commenter significantly mischaracterizes the proposed and final rule. The 

rule does not merely specify an emission limit of 1400 lbs. CO2/MWh. Captured carbon must be 

sent to a facility subject to the standards of the GHG Reporting rule in Part 98 subpart PP (onsite) or RR (off-site). These standards require elaborate 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 reasonably relied 

on the GHG Reporting rules to assure proper tracking of captured carbon to a sequestration site, 

and further reasonably relied on the regulations for Class II and Class VI injection wells plus the 

further safeguard of GHG reporting by the sequestration site, to assure long term containment.6 

As explained in the preamble, the Class VI and Class II rule requirements are designed to 

prevent releases of sequestered CO2 to underground sources of drinking water, and in doing so, 

also assure that sequestered CO2 is not released to the ambient air. UARG, indeed, recognizes 

the mechanism by which CO2 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 

geologically suitable repository, where chemical reactions secure the CO2 over time”). UARG 

also complained in its comments that the Class VI rules are unnecessarily stringent (id. at 63, 

asserting that the monitoring provisions and post-closure care period of 50 years are overly 

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 CO2 in the unlikely event such release occurs. The EPA reasonably relied on these 

standards to assure that captured CO2 is securely stored 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 deliberately chosen to rely "solely on dynamic 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 invites

 

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 wells, 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 Sequestration 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 Commerce (same); Sandridge Energy (same). 
2-48

the use of both extremely inefficient generation 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 sources 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 

consistent 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 effectively dictating both fuel choice and design choice for 

new electric utility generating units. The Proposed Rule would 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 pathways for 

achieving the final standard of 1400 lbs CO2/MWh for both PC and IGCC units, and some of 

these alternatives do not involve carbon capture at all. Moreover, this standard is achievable for 

all coal types. 

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 effects." Commenter also stated that this statement is 

unadorned by any 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 any benefits.

Commenter 9201 stated that the absence of any connection between the proposal and addressing 

climate change is unsurprising when considering that:
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 The proposed rule sets a standard for coal-fired EGUs that requires the use of technology

which actually results in more CO2 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 for 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 generation 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 type of analysis that is necessary and proper, but lacking, would 

evaluate direct temperature changes arising from a standard aligned with the performance of high 

performing SCPC and IGCC units without CCS, and determine whether the emissions from 

building and operating a certain numbers of those plants would make any 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 type of health- or welfare -based 

impact is incorrect. The argument was explicitly rejected in Coalition for Responsible 

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 evident. 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 CH4 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 evidently assumes CH4 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 Massachusetts v. EPA, the Supreme Court 

held that the CAA authorizes federal regulation of emissions of CO2 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 CO2, "cause or contribute to, air pollution which may reasonably be anticipated to 

endanger public health or welfare." 74 Fed. Reg. 66,496 (Dec. 15, 2009). Commenter also stated 

that in 2011, the Supreme Court agreed that the CAA authorizes CO2 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).
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Response 2.1-122: The commenter is correct. There is no question that CO2 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-CO2 GHGs emitted by fossil fuel-based EGUs nitrous oxide 

(N2O) and methane (CH4) 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 recently faced a similar issue when 

prescribing final performance standards for a variety of sources of volatile organic compounds 

and SO2 in the oil and gas sector. Commenter on the proposed version of this rule critiqued 

EPA's decision not to propose performance standards for CH4, 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 CH4 through 

its GHG reporting rule 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 N2O and CH4 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 CH4 or N2O

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, that GHG’s (as defined in the 2009 

Endangerment Finding) are a form of air pollution which may reasonably be anticipated to 

endanger public health or welfare, and that emissions from the source category cause or 

contribute to the air pollution which endangers. See preamble section III.A.
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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 CO2 NSPS rulemaking is contrary to the Clean Air Act. When 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. Commenter 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 I of 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 merely revising the 

existing standards that apply to new EGUs, EPA is attempting to regulate CO2 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)). CO2, and other greenhouse 

gases, are air pollutants under the Act. Indeed, the EPA has repeatedly 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 emissions), 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 currently 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 adequately 

demonstrated does not require prior full-scale application of a system of emission reduction. 

See, e.g. Portland Cement Assn v. EPA, 486 F. 2d at 401-02. However, in this case, there is fullscale 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 readily transferable to an electricity generating unit. See also NETL (2013) at pp. 

192-467 (description of IGCC system with full and partial capture of CO2).

Comment 2.1-128: Commenters (9725, 10552 and 10680) 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 emission data from operating units while the standard proposed for coal 
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base load technology is based upon calculations for hypothetical 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 by a 

single existing coal base load unit, even those using newest and most advanced coal based 

technologies such as SCPC or IGCC.

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 standards required 

different approaches for two reasons. First, the standards are based on fundamentally different 

systems 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 CO2 from the flue gas stream after combustion

has occurred. As a result, the EPA was able to determine an achievable emission rate for coalfired EGUs by calculating the maximum percentage reduction in CO2 emissions that that can be 

obtained at a reasonable cost and applying 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

considerably due to a number of factors, including the diversity of turbine models and sizes on 

the market, variations from ISO conditions at different facilities, and variations in load and 

cycling depending on how a facility is dispatched. Accordingly, it was necessary for the EPA to 

assess actual emissions data from existing sources to 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. 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 by sources across the relevant industry. Indeed, 

Congress intended section 111 of the CAA to be technology-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 

conclusion 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 units 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 system of emission reduction is technically

feasible and therefore adequately demonstrated. Case law from the D.C. Circuit confirms this. 
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The commenters mischaracterize the reasons why 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 operated 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 before 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 CO2 emissions generated by combustion of the oil recovered, as required by CAA 

Section 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 CO2 for EORs, it would generate 1.3 million more kilograms of CO2 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 the proposed standard would have the effect of 

foreclosing the future development of any 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 CO2 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 should answer the commenter’s concern regarding availability of 

CO2 transport infrastructure. 

Comment 2.1-132: Commenter 9507 further stated that its inability to achieve the standard 

because of lack of sequestration capacity or CO2 transport infrastructure also has negative 

implications for its ability to substitute NGCC. This is due, according to the commenter, to the 
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workings of the federal Power Plant and Industrial Fuel Use Act of 19786, 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 originally 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 by 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 referenced 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 of coal 

conversion and that no other generating options are reasonably available before allowing 

construction of the natural gas unit. Since such an exemption has never – 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 by 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 adequately 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 commenter’s thoughtful comment. As the commenter 

notes, the portions of the 1978 Act restricting use of natural gas by electric utilities (and 

industrial users) have been repealed (in 1987). “As a result of the repeal, natural gas and oil 

could again be used 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 operating 
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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 (professed) 

inability to transport and store captured CO2 (see Comment p. 4 and previous comment summary

and response immediately above). However, EPA has reasonably found that IGCC alone or with 

some small amount of natural-gas co-firing can meet the standard of performance, without use of 

CCS. Therefore, this commenter would be situated like any other new NGCC facility which, as 

the commenter notes, has 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 system of emission 

reduction." Commenter further stated that they are: "cost," "nonair quality health 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 system of emission 

reduction that differ significantly from the statutory 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 enumerated 

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 system of emission reduction is “best” includes whether the system 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 postcombustion CCS is demonstrated in full-scale commercial application and results in significantly 

greater emission reductions that SCPC without some type 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 meet an essential requirement for establishing Section 

111(b) New Source Performance Standards- its explanation fails to show that CCS is the "best 

system 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 requirements of 

section 111 (a).

 

7

http://www.eia.gov/oil_gas/natural_gas/analysis_publications/ngmajorleg/repeal.html
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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 System 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. It is 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 process 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 determinations 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 years 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 decides 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 four years 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 proceeding.

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 any non-air quality and 

environmental impact and energy requirements from the proposed standard.

Response 2.1-137: The EPA has carefully assessed those impacts. With respect to transport and 

sequestration of captured carbon, the EPA discusses at length why the regulatory schemes for 

CO2 pipelines, and for Class VI and Class II injection wells, in combination with the reporting 

and monitoring requirements of the subpart PP and RR standards, provide ample assurance that 

captured CO2 will be safely transported and tracked to a sequestration site, will remain 

sequestered for geologic timeframes, and how the sub-surface and surface 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 

system 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 

reasonably anticipated, we think the best system is defined by improvements in thermal 

efficiency, an option that EPA has considered and rejected in this proposal.
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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 be independently, 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 years and thus only have optimistic performance projections and hopeful 

expenditures estimates without considering the country-wide economic 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 CO2 capture 

should a facility wish to site in a location without access to sequestration, EOR, locating 

proximate to sequestration sites and transmitting electricity to more distant customers, and is not 

otherwise prohibited by state 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 currently 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 postcombustion capture of CO2. 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 commercial plants post-combustion CO2 capture and 

sequestration (pre-combustion CO2 capture and sequestration is likewise commercially 

demonstrated, and reasonably transferrable to the EGU sector). This information is 

supplemented by other operation at smaller scale (which may reasonably be scaled up, as 

discussed atsection V. G.3 of the preamble to the final rule), and other information. 

Accordingly, the EPA is not making purely speculative or experimental assertions here, but 

rather finding with substantial record support that partial CCS is BSER which is adequately 

demonstrated.
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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 111. 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) clearly states the purpose of section 111: "The overriding purpose of this 

section would 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 CO2/MWh is fully defensible on 

grounds of technical feasibility and economic reasonableness. 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 by 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 pathways available under the final standards which do not involve CO2 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 system is adequately demonstrated.

Response 2.1-144: The EPA agrees, and has satisfied that burden in the administrative record 

here.

 

8 This is the distance EPA included for cost estimation purposes. See preamble section V.I.5.
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Comment 2.1-145: Commenters (9201, 9426, 9472, 9666, 9683, 9780, 10098, 10100, 10618 

and 10660) stated that EPA's determination that CCS Is "Adequately 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 information 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. 

Dakota 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 compliance 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 pathways (SCPC or IGCC co-burning a supplemental 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 pathways 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 coalfired power plants. The EPA consequently 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 Courts 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 adequately demonstrated system is “one which has been shown to be reasonably reliable, 

reasonably efficient, and which can reasonably be expected to serve the interests of pollution 

control without becoming exorbitantly costly in an economic way". Commenters also stated that 

the court in another relevant NSPS case stated that "EPA may not base its determination that a 

technology is adequately 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 system of emission reduction "has been" adequately 

demonstrated. Commenters further stated that the use of the past tense in the statute suggests that 

EPA cannot rely upon projected future technology developments or demonstrations to support 

this determination. Rather, it clearly indicates that EPA may rely only on those emission 

reduction systems that have already been demonstrated to work.

Response 2.1-146: Commenters maintained that the EPA can only show that a BSER is 

“adequately demonstrated” using operating data from full-scale commercial operation of the 
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technology. This is mistaken. There is no such requirement in the text of section 111 (a); 

“adequately 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 that “[i]t would 

have been entirely 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 comments, and on testimony from experts and vendors....” 

Portland Cement v. Ruckelshaus, 486 F. 2d at 401-02. More recently, 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 technology would be available for 

installation in new plants. S.Rep. No.9-1196, 91st Cong., 2d Sess. 16 (1970).

In any 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. Likewise, 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 system be adequately demonstrated and that standards based on 

performance of that system be achievable. The commenter maintains that EPA has improperly 

conflated these two analytically 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 adequately demonstrated system was in fact 

achievable. The commenter suggests strongly that to be adequately demonstrated, a system 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 analytically distinct steps 

here, and they 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 system must be 

achievable. However, as noted in the previous comment response, EPA disagrees that a system 

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 decided cases do not support the proposition that less than full-scale 

operation will not support a determination that a system is demonstrated adequately. It is correct 

that Essex, Portland Cement I, and the portion of Sierra Club dealing with standards for 

particulate from baghouses (657 F. 2d at 380-84) dealt with the issue of achievability of a 
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standard. Nonetheless, both Portland Cement and Sierra Club contain unqualified statements 

that a system of performance can be adequately demonstrated – the system, not the level a 

system can achieve -- based on less than full scale performance. See 486 F. 2d at 391 (“Section 

111 looks toward what may fairly 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 adequately 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 

adequately demonstrated).

As the commenter points out, Sierra Club goes on to hold (in the same footnote) that the data 

from pilot scale use of 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 by the commenter). The court did point to contractor 

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 types 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 certainly does not stand for the 

proposition that full-scale performance of a technology is a condition precedent to the 

technology’s being considered to be “adequately 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 properly would be able to achieve 

the emission standard.

Response 2.1-148: EPA has carefully considered operational variability in adopting the standard 

of 1400 lbs. CO2/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 technology 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 operating successfully. It is being operated 

successfully at full scale; see also NETL (2015) p. 36 (“[t]he capture and CO2 compression 

technologies have commercial operating experience with demonstrated ability for high 

reliability”); see also Global CCS institute, “The Costs of CCS and Other Low-Carbon 
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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 another system which is less effective at controlling CO2 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 assistance 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 adequately demonstrated and that 

high efficiency generation 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 types of fossil fuel-fired 

power plants are achievable even without consideration of facilities receiving any type 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 determination that optimization of flue gas 

desulfurization systems could achieve higher rates of sulfur dioxide removal than those that were 

then being deployed at EGUs. See 657 F.2d 298, 364 (D.C. Cir. 1981) ("Recognizing that the 

Clean Air Act is a technology-forcing 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. 

Ruckelshaus, 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 system, need not be based on performance of an existing 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 

analysis. Commenter further stated that the EPA disqualifies "highly efficient new generation,'' 

like supercritical or ultra-supercritical boilers or modern, well-performing IGCC, based largely 

on its determination that such technology produces no significant reductions of CO2 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 simply 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 real 

point is that EPA must first determine - (i) whether a system has been adequately demonstrated; 

and (ii) the achievable emissions level(s) for the adequately demonstrated system- before it can 

start its qualitative "disqualification" analysis.
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Response 2.1-152: EPA has not engaged in any a priori qualitative disqualification analysis. 

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 "Adequately 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 restraints of 

reasonableness and cannot be based on "crystal 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. Ruckelshaus, 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 

partially 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 in the future, the latitude of projection is correspondingly 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 adequately 

demonstrated and reasonable costly. Commenter also stated that in summary, neither NRDC v. 

EPA nor any 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 nation. Commenter 

stated that in fact any 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 many areas of the country. 

EOR opportunities are also available in many areas. Dedicated pipelines for CO2 exist and their 

capacity is increasing. Sources can locate in areas with sequestration capacity and service a wide 

area by transmitting generated electricity via grid (so-called coal-by-wire). Moreover, many

states already do not allow new coal-burning capacity within their borders.
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If a new fossil-fuel burning EGU were to locate in an area other than any of the above, then there 

are alternative pathways to compliance which do not involve CO2 capture and sequestration 

which are available at reasonable cost and without collateral impacts and which are not 

geographically constrained.

With regard to the Plywood 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 demonstrated for all 

sources within a category ..., a technology must be available for each source type to which the 

standard will apply.” 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 apply. 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) IGCC plants. The commenter’s concern that partial CCS might be 

geographically constraining for some new sources (a hypothetical 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 coal 

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 any 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 standard 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 wrongly 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.” Id. he 

EPA's decision to substitute technological feasibility for the statutorily required test of 

adequately 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 that the BSER 

must be adequately demonstrated today, not at some date in the future. Commenter further stated 

that if EPA can pick and choose certain technologies and processes for CO2, by simply declaring 

them to be feasible, the Agency can apply this methodology 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 in 
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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 merely speculative. In addition, as the commenter properly 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 carefully considered 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, particularly when the deployment of the technology is very limited. 

Response 2.1-157: The commenter 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 opinion 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 analysis 

demonstrated that another level of control was 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 level of control otherwise indicated by the agency’s regulatory analysis 

against the weight of the support in the record that substantial benefits would eventually 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 compete information about the emerging 

technology, thus the difficulty of justifying a standard that diverges from a level determined by 

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, relying on the statutorily specified criteria for determining if a system of 

control is “adequately 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 as 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 adequately 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 consider 
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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 proposed standards in National Lime 

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 impermissibly “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 depending 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 carefully 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 departure from the technology development timelines and milestones developed by this 

administration and described in the Task Force report, especially 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 carefully considered the views and latest publications of the DOE in developing 

this final standard (for example, carefully 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 by the 
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states will ultimately impact compliance costs and the overall cost-effectiveness of any 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 why the 

costs of the rule are reasonable. Moreover, estimates of these 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 fuelfired power plant could locate in any 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 

Adequately Demonstrated. Commenters further stated that the proposed GHG NSPS rule also 

exceeds EPA's regulatory authority because EPA's determination that partial CCS 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 adequately demonstrated (taking 

into account the cost of achieving such reduction and any 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 adequately demonstrated system as one which 

has been shown to be reasonably reliable, reasonably efficient, and which can reasonably be 

expected to serve the interests of pollution control without becoming exorbitantly costly 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 in other comment responses, the EPA has 

shown that partial CCS is “reasonably 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 commercially 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 Boundary 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.
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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 catalytic reduction (SCR) when it was first incorporated 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 in 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 

adequately 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, neither EPA, nor any 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 proposed 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 technology, 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 

commercially 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 framework, 

according to the commenter, is that the agency first determines a BSER that has been adequately 

demonstrated for all sources with the source category considering the cost of installing and 

operating the control system, as well as nonair quality impacts 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 types 
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and boiler types). The final step is to determine an emissions limit based 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 requirement that mandates the type of ‘bottom-up’ analysis 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 factors 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 will 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 CO2 capture is demonstrated in full scale commercial operation, 

Class VI construction permits have been issued for several projects supported by findings that 

these sites can safely sequester large volumes of anthropogenic CO2 for geologic periods, and the 

EPA has carefully 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 adequately 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 byproduct 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 performance 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 corroboration 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 CCS 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 

system 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 employed the 

control system EPA has determined to be "adequately demonstrated" for all future fossil-fuel 

fired electric utilities. Commenter further stated that as the legal analysis above confirms, that 

fact alone renders EPA's proposed GHG NSPS not only unprecedented, but arbitrary and 

capricious as well.
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Response 2.1-171: Post-combustion partial CCS (indeed, full capture) is demonstrated by the 

Boundary Dam facility. As explained at section V.D.2.a to the preamble 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 electricity, the 

EPA explains at preamble section V.E.2.a why transfer of the technology to the EGU IGCC (precombustion carbon capture) sector is a “reasonable extrapolation of a technology’s 

performance”. Lignite Energy Council v. EPA, 198 F. 3d 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 available 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 primarily on full-scale commercial operation of CCS.

Comment 2.1-173: Commenter 10051 stated that the CCS has not been "adequately 

demonstrated," as required under the Clean Air Act (CAA) Section 111. Commenter 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 to identify the "best 

system of emission reduction" that is "adequately 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 prohibit new coal. See preamble section V. L.

Comment 2.1-175: Commenter 9590 stated that the EPA relies upon engineering estimates of 

hypothetical 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 historic 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 by over 95 percent of the currently operating units.
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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 Section 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, especially in 

light of the fact that EPA projects that the proposed rule will result in negligible CO2 emission 

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 technology for facilitates to meet the limit. Commenter further stated that the EPA should not 

attempt to give preference to one type of fuel over others or entirely 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 adequately 

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 indeed, is being 

operated at commercial scale. It is described by the DOE NETL as reflecting “commercial 

operating 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 section 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 determined that an 

emissions standard based on partial CCS is "achievable," as is required by 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 111 interpretation.
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Response 2.1-179: The emissions standard based on performance of post-combustion CCS is 

achievable under likely 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 Lime 

Association v. Environmental Protection Agency set forth an analytical framework for 

determining the "achievability" of an adequately demonstrated technology. Commenter further 

stated that the EPA ignored established judicial 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 analysis 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 why 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 commercial use at the Boundary Dam 

facility, within its analysis of costs.

Comment 2.1-182: Commenters (9426 and 10095) stated that a standard based solely on "IGCC 

with a single-stage WGS reactor and a two-stage acid gas removal system," cannot support a 

standard for coal-fired 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 IGCC units can use is contrary to law. 

Commenters also stated that the irrationality of the EPA's position is highlighted when one 

considers how few commercial IGCC facilities currently 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 many site-specific, fuel-specific, and business-specific factors that must be considered 

in selecting the generation technology. 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-combustion 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, analyzing 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 CO2 emissions generated by a new source. Commenter further stated that 

without the sequestration component, there truly is not any capture, because any capture that 

occurs is only temporary. Commenter also stated that the EPA admits that "compliance with the 

standard of 1,100 lb CO2/MWh is determined exclusively by the tons of CO2 captured by the 
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emitting EGU," and that the "tons of CO2 sequestered by 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 since 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 established that the EPA regulation under 

NSPS must not favor limited 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) stated 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 standard on 16 occasions. See 79 Fed. Reg. at 1463. Commenters 

further stated that the question considered by 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 determine what a BSER could be 

that has been adequately 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 natural 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 CCS technology on only 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 commercial 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 (highly 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 of 
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EPA's achievability determination depends on how fully it has accounted for the variations 

among 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 achievability 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 

alternatives 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 off-site transport of 

separated CO2 to geological injection sites or to provide it for use in EOR (albeit without 

requiring any permanent storage of the separated CO2), 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 types 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 environment. " 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 types of vehicles (hot rods) within a 

source category while still allowing others (normal passenger vehicles) is not comparable to an 

NSPS that would preclude all types 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 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 
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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 analysis to 

determine the achievability of its proposed standard for coal-fired units. Commenter further 

stated that the EPA has conducted rigorous analyses to establish "what every source can achieve" 

through the use of demonstrated technologies, by examining actual test data that 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 analyses, 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 any NSPS upon the actual performance of adequately demonstrated technologies, and 

EPA historically has adhered to this approach in setting every NSPS. Commenters further stated 

that the EPA proposes for new coal EGU's a standard (1,100 lbs CO2/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 by 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 actually 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 reasonably choosing to base the standard of performance on the 

performance of this demonstrated technology, and not on the ‘business-as-usual’ SCPC 

performance that would not yield any 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 systematic manner that 

identifies relevant variables" that must be "taken into account" when analyzing the data. 

Commenters further stated that if 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-combustion 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 the plant level. EPA can account for national or 
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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 reasonably seems to require that 

EPA identify the emission levels that are 'achievable' with 'adequately demonstrated technology.' 

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 stated that unit-level costs, 

along with national costs, will necessarily factor in the initial determination as to whether the 

system 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 hypothetical power plants, not a single operating fully integrated commercial 

scale coal base load power plant exists 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, 

achievable by 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 by EPA at the time of proposal.

Consideration of Factors for Best Adequately Demonstrated System

Comment 2.1-196: Commenter 1803 supported EPA's determinations that CCS is "adequately 

demonstrated" and represents "best system of emission reduction" are both legally sound and 

amply supported by the evidence before the Agency.

Response 2.1-196: The EPA acknowledges the commenter’s support.

Comment 2.1-197: Commenter 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 

costs, 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 opportunities 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 IGCC), some of which do not involve capture of carbon. Thus, the standard preserves 

some measure of flexibility and does not dictate fuel type.
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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 specifically notes that the 

last ten BACT determinations for coal-fired steam electric units have rejected CCS as BACT 

(noting appropriately that these are decisions of state permitting agencies).

Response 2.1-198: See preamble section XII.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 

address 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 CO2 loadings.

Response 2.1-199: As discussed in detail in section V. N, EPA is reasonably relying on the 

comprehensive and highly rigorous standards for Class VI deepwell injection which assure that 

injected CO2 will not be released. Should CO2 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.2d 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 

highly-effective emissions reduction systems technically and economically feasible, including 

new and innovative pollution reduction methods where available even though not in routine use.

Response 2.1-200: The EPA largely 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 "typical" NGCC unit. Commenter 

further stated that the same logic applies to coal-based generation units as well, where CCS has 

yet to be attempted at commercial-scale and operated in a manner of a typical 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 emissions guidelines for states, it is important to ensure such standards do not mandate the use 
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of a particular fuel type 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 any 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 factors 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 system as well 

as the non-air quality health and environmental impacts and the energy requirements of 

the technology or system;

 Second, calculate the degree of emissions reduction that is achievable through the 

application of the BSER including any adjustments to reflect the ability of sources to 

achieve the emissions reductions under the full range of operating conditions by all 

sources within 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 suggesting 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-effectiveness of emissions 

control options comprising the "best" system 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 reduction benefits they will yield.

Response 2.1-205: EPA largely agrees with this comment. See preamble section V.H.2.

Comment 2.1-206: Commenter 9514 stated that the EPA may consider byproduct revenue 

evaluating the costs associated with its standards. Commenter further stated that the court has
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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 immediate 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 CO2 in its determination that carbon capture and 

storage ("CCS") is BSER for coal-fired EGUs. Commenter also stated that if costs of disposal of 

byproducts must be taken into account during cost analysis, revenue from the sale of 

economically 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 CO2 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 by-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 by-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 byproduct revenue may be considered when the agency sets a performance standard. 

For example, in 2012, EPA and the National Highway Traffic Safety Administration finalized 

new fuel economy standards for light duty vehicles. See 77 Fed. Reg. 62,624 (Oct. 15, 2012). 

Commenter further stated that in its cost analysis, 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-year period. Id. at 62,629, 62,631. Commenter further stated that 

from a macroeconomic standpoint, these savings are functionally indistinguishable from the 

revenue that would accrue if those 170 billion gallons of fuel were a direct byproduct of the new 

technology, rather than the amount saved due to reduced demand. Commenter stated that same 

year, EPA analyzed revenues from the sale of natural gas and condensate recovered through the 

installation of pollution controls when describing costs associated 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 by EIA and 

industry in addition to the agency's own evaluations. Commenter further stated that this analysis 

found that electric utilities are likely 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 likely to satisfy the proposed rule's emission limits, creating no 

additional costs. Commenter further stated that the most efficient combined cycle units are costeffective 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 years, EPA correctly asserts that they will not impose exorbitant costs on the 
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industry. Commenter stated that as such, the proposed standard for new coal-fired plants satisfies 

section 111's cost component.

Response 2.1-208: This comment is consistent with EPA’s analysis in RIA section 4. EPA 

notes, however, that its consideration of costs is not open-ended. That is, although new coal 

capacity is unlikely to be built for reasons of lack of cost competitiveness for the reasons the 

commenter states, EPA is not thereby concluding that any control costs are non-exorbitant by

definition. Rather, as at proposal, EPA is comparing costs with those of a comparable nonNGCC 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 Comment 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 cost 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 consider the incremental increase in cost associated with deployment of 

partial CCS, the type 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 standards 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 adequately analyzed all of the affected subpart Da sources and their applicable CO2 control 

options. Commenter also stated that the EPA must therefore complete individual BSER 

determinations for each affected subpart Da type of source and establish separate emission 

standards accordingly or a single standard that is achievable for all affected sources.

Response 2.1-210: The final standard of performance is achievable by IGCC, or IGCC operating 

with some relatively 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. 
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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 any such unit constructed for over 30 years, and there are strong reasons no 

units would be built in the future.9 

Nor did any commenter provide any information either that a new oil-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 type of new source. See Kennecott v. EPA, 780 F. 2d 445, 454 (4th 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 being built or even contemplated”); see also Portland Cement Ass’n v. EPA 665 F. 3d 

at 410 (section 111 standards of performance may legitimately reflect less polluting types of 

designs and discourage perpetuation of more polluting designs, especially where compliance 

paths exist for the more polluting type 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 immediately and, at a reasonable 

cost. Commenter agreed with EPA that case law suggests that the agency can compensate for a 

shortage of data by 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 any 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 cycles 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 technically available 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 years 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 adequately 

demonstrated technology clearly 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 "model" plants that represent existing and 

planned/committed units in EPA modeling applications of IPM. NEEDS includes basic geographic, operating, air 

emissions, and other data on these generating units. NEEDS was completely updated for EPA’s new power sector 

modeling 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 projection is correspondingly 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 crystal ball prediction regarding cost reasonableness of BSER. 

Commenter further stated that regarding questions 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 review 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 correctly states that a standard reflecting performance of 

BSER must be achievable immediately. EPA has shown reasonably why the 1400 lbCO2 /MWh 

standard is immediately achievable by a new SCPC. The commenter is incorrect regarding peer 

review of the NETL studies. See response in unit 2.4.2 below on Data Quality Act issues. The 

commenter further mischaracterizes the NETL materials, which are notably 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 system 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 CO2 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 Significant 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 analysis for 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, 

types and sizes within the source category when determining NSPS, NSPS must apply broadly to 

all new sources within the category or subcategory as the case may be. Section 169(3) contains a 
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lengthy definition of BACT that includes requirements for a maximum degree of reduction 

determined on a case by 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 geographically 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 readjustments 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 only require 

smaller baseload generation where natural gas in unavailable. Commenter further stated that the 

proposal links CCS applicability with IGCC and SCPC combustion. 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 only to supplement renewable 

resources. In these cases CCS technology would 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 case, the final standard of performance 

can be met by any newly-constructed coal-fired EGU anywhere 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 by using factors “such as size of emission reductions 

and promotion of technological development” to “outweigh the requirements of adequate 

demonstration and achievability”. The commenter surveys caselaw as requiring a three-part 

NSPS process: 1) identification of a system or systems that have been adequately demonstrated; 

2) determining what emission levels are achievable by that system; and 3) after making these 

determinations, exercise its discretion to choose an emission level reflecting performance of the 

best system. The commenter 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 largely 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 

deployment. EPA has then evaluated the level of performance this best system is capable of 
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achieving, as the caselaw (and the comment) indicate. See Essex, 486 F. 2d at 433 (“it is the 

system which must be adequately demonstrated and the standard which must be 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 overridden this consideration by looking to other 

factors, but this is not the case. As discussed at preamble section V.D, the EPA has found 

reasonably 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 

CO2 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 reasonably that the plenary regulatory control requirements for CO2

pipelines and geologic sequestration of CO2 assure permanent sequestration of captured CO2, 

and that water use associated with use partial CCS do not result in undue burdens or infeasibility

of application of the control technology. 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 systems 

for controlling CO2 emissions; based on considerations of cost, energy, and nonair impacts, has 

determined which of these systems is the best system of emission reduction adequately 

demonstrated; and determined the emission limit this best system is capable of achieving 

considering the full range of variability experienced when properly designed and operated. See 

also 77 FR 49490, 49494 (Aug. 16, 2012) (describing the three-step analysis 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 systems, and then picking a limit reflecting the factors of cost, nonair impacts and 

energy considerations. EPA believes its approach reasonably and correctly 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, 

reasonably efficient, and not unreasonably costly. The commenter claims that EPA has ignored 

these factors by 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 correctly describe EPA’s approach here. The 

EPA agrees that technologic feasibility does not equate to “adequately demonstrated” – an 

adequately demonstrated system of emission reduction must be “reasonably reliable, reasonably 

efficient, and ... can reasonably 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 precisely those questions in determining whether partial CCS is 

adequately demonstrated, for example in carefully assessing the deployment and performance of 

the technology in full-scale commercial applications at the Boundary Dam and Dakota 
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Gasification facilities. Moreover, in selecting an achievable standard, the EPA has separately 

assessed the level of performance partial CCS can attain at both PC and IGCC facilities, and, 

consistent with National Lime I and progeny (see, e.g. 627 F. 2d at 433), has assessed the full 

range of operating variability (including different coal types 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 adopting 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 for all types of sources in a category throughout the country; can 

be based exclusively on costs considered at a national level; and can be selected to promote an 

emerging technology even though that technology is not adequately demonstrated.

Response 2.1-217: The commenter misstates or overstates on all counts. First, as noted in the 

response above, EPA agrees that a best system of emission reduction must be adequately 

demonstrated (considering issues of cost, nonair impacts, and energy requirements) and then 

determines what level of performance that system can achieve. This determination is not 

somehow trumped by 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 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 types 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 would be expected to comply.

Response 2.1-218: EPA believes that any 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 adequately 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 incorrect 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 precombustion CCS in a sufficiently related application to be readily 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 adequately demonstrated technology, the Agency selects a 

standard from the range of demonstrated technologies that represents the best balance of 
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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 any non-air quality 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 stated that in determining BSER, EPA must ensure that standards do not give a 

competitive advantage to one State over another in attracting industry. Id. 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 national-level impacts as a 

safety 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 plant 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 fundamentally flawed. Commenter further 

stated that the EPA's legal analysis departs significantly from the text of the CAA and is based 

on misinterpretations and omissions of the relevant case law. In particular, EPA errs by: (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) 

relying on an asserted interest in "technological development" to mandate technology that has 

not been adequately 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 year history of NSPS rulemaking, a four-part balancing analysis for 

determining BSER and setting NSPS. Id. at 1462. Commenter further stated that the Agency

asserts that the D.C. Circuit has directed EPA to consider four key considerations to determine 

the best demonstrated system: (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 determine that some merit greater weight 

than others, and may treat some source categories differently from others. Id. Commenter further 

stated that the D.C. Circuit has outlined an entirely different analysis for EPA to follow when 

setting standards under section 111(b), which EPA has inexplicably abandoned in this 

rulemaking.

Response 2.1-223: See responses immediately above.
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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 adequately demonstrated and that 

the standard is achievable using that technology. Commenter 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 entirely. 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 fundamentally 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 occasions adequately demonstrated that the standard was achievable). 

Commenter further stated that the D.C. Circuit has repeatedly held that it is the underlying 

technology that must be adequately demonstrated, and the ultimate emission standard that must 

be 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 system of emission 

reduction must be adequately demonstrated (considering issues of cost, nonair impacts, and 

energy requirements) and then determines what level of performance that system can achieve. 

This determination is not somehow trumped by 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 factors on a national or regional level and not only on a plantspecific level). The EPA has also shown how the actual standard of performance is achievable 

for all types of sources in the category.

Comment 2.1-226: Commenter 9666 stated that in the proposed rule, EPA states 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). Commenter 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 sourcelevel 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 national-scale 
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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 system 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, EPA 

ignores that CCS is geologically out of reach, or otherwise prohibitively expensive for individual 

new sources throughout the country. Commenter further stated that the Agency's cost estimates 

are unreasonable, and its proposal overlooks significant energy and environmental impacts 

associated with CCS, including parasitic energy requirements and increased water use. 

Commenter also stated that the EPA wrongly asserts that it can mandate an unproven technology 

in the interest of promoting technological development 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 highly reliably and 

exceeding expectations). See previous responses 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 perplant considerations underly the BSER determination, including the determination that the BSER 

is adequately 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 emissions standards based on the 

Best System of Emission Reduction (BSER) that is adequately 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 supply 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 effect, 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 cooperative 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 CO2 emissions reductions over the economic costs to 

ratepayers and radically de-emphasizing the value of fuel diversity and energy security.
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Response 2.1-228: The premise of all of these comments is that a standard of performance 

predicated on partial CCS effectively 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 

transmitted 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 pathways available to meet the 

promulgated standard which do not involve carbon capture and which would not face any 

geographic constraint related to CO2 transport and sequestration.

Comment 2.1-229: Commenters (7977, 9407, 10087 and 10097) stated that the NSPS is 

applicable 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 "crystal 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 "immediately as 

opposed to one or two years 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 proposed BSER is immediately available, reasonably 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 (and, 

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 

CO2 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 emissions limit of 1,000 lbs CO2/MWh, while those at or under 850 

MMBtu/hr would have an emissions limit of 1,100 lbs CO2/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 CO2/MWh over an 84-month (7 

year) 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 purportedly 

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 produces approximately 1,800 lbs CO2/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 CO2 produced. Commenter further stated that 

CCS technology is not commercially available for coal-fired power plants.
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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 

system, like CCS. The proposition is logically flawed and incorrect. The EPA clearly has the 

authority to determine that an add-on control system is adequately demonstrated and is therefore 

the BSER for a category of sources, as the Agency has done countless times over the past 40 

years. In regards to the comment that CCS is not commercially available for coal-fired power 

plants, the commenters are clearly wrong. Post-combustion CCS is not only commercially 

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 significantly 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 because 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-bycase 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 lawfully 

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 standard given available sequestration and 

EOR capacity, plus alternative compliance pathways which do not involve CO2 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 

technologically 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.
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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 needed 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, allegedly 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 only to new coal plants, and therefore would not 

have addressed the state regulatory concerns over cost 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 identified in the AEP decision still exists because EPA is not setting 

a federal requirement to reduce GHG emissions from the fossil-fuel power sector generally it is 

only setting a federal requirement to reduce GHG emissions related to coal. EPA's failure to even 

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 deploying 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 by 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 

generally: “AEP still believes the advancement of CCS is critical for the sustainability of coalfired generation.”10

 This statement looks to the future, and thus encompasses potential 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 apply 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 Global CCS Institute Project # PRO 004, January 23, 2012, page 2. See also AEP FEED Study at pp. 4, 63 

(same).
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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, many 

commenters 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: Commenter 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 

establish 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 welljustified based on the requirements of CAA section 111 (a).

Comment 2.1-237: Commenter 9773 stated that after accounting for the cost of CO2 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 economy. 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 recognized 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 reasonably 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 Development

Comment 2.1-238: Commenters (10098 and 10660) stated that in the absence of actual 

operating data, EPA may also base its "adequately demonstrated" finding on "other qualitative 

methods, including the reasonable extrapolation of a technology's performance in other 

industries." 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 further stated that standards may not be based 
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on emission control technologies that are "purely theoretical or experimental," Essex Chem., 486 

F.2d at 434, nor "based on a 'crystal ball' inquiry." Portland Cement Ass'n, 486 F.2d at 391; see 

Costle, 657 F.2d at 362 (emission limit could not be achievable based on test data from "nonlime/limestone processes" because they "are not widely available"). Commenter 10098 (API pp. 

16-17) draws 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 relatively 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, 91st 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 actually demonstrated over the long term by 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 systems 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 technology is available (including fullscale 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 application).

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 commercially viable. 

Commenter 10098 further stated that the Clean Air Act requires a review of the NSPS no later 

than every eight years to determine if adequately 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 adequately demonstrated: 

available for the next new coal EGU (either SCPC or, should an alternative compliance pathway
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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 chrysalis state. Full scale, 

commercial demonstration of the technology exists for post- (Boundary Dam), and precombustion (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 relies 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. Id. at 340-341. Commenter also stated that the court upheld this 

decision because the emission limitation was deemed to be achievable by wet scrubbers 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 select 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 importance than the enumerated statutory 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 1979. 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 SO2

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-fired 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 projects). 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 carefully adhered to this provision’s 
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requirements. Second, responses related to individual, plant-specific BACT determinations 

(none made by EPA involving a coal-fired EGU, incidentally) are found at preamble section 

XII.C. See preamble section V.L regarding 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 deployment 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 any 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 system of continuous emission reduction to 

comply with any 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 any other option) in order to promote the development and deployment 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 performance 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 CO2 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 

largely 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 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 technological vanguard when setting 

new source standards so as to encourage innovation and avoid the additional costs associated 

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." Sierra 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 properly based the NSPS for 
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new cement kilns 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 those used 

abroad. Lignite Energy Council, 198 F.3d at 933-34 & n.3.

Response 2.1-244: The EPA largely agrees with these comments.

Comment 2.1-245: Commenter 9664 stated that the EPA's analysis 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-year assessment period described in the RIA, or through the 

more extended outlook provided by EIA's projection (2034). Commenter further stated that the 

EPA's analysis 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 analysis 

period. Commenter also stated that it is difficult to discern how EPA has reasoned from these 

conclusions that the proposed rule will encourage deployment 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 

technology, 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 likely a roadblock, to the 

further development and deployment of CCS technologies. Commenter also stated that given the 

cost disparities, as admitted by EPA in its LCOE analysis and discussed earlier in these 

comments, between CCS equipped coal units and NGCC units without CCS, the proposed NSPS 

simply and irretrievably incentivies a further build-out of NGCC units and the freezing of any 

new investments in the development of CCS. Commenter stated that by effectively forcing 

utilities to choose natural gas over coal, EPA just as effectively 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) by 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 coal-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 CO2, and it will also encourage greater use, 

development, and refinement of CCS technologies. Commenter further stated that the EPA's 

analysis indicates that this rule not result in "meaningful" emission reductions, or even in any

emission reductions at all. Commenter also stated that the fact that EPA does not predict that any
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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 technologies 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 CO2 reductions, or EPA's projections for 

coal-fired power plants are inaccurate, and the regulation will have substantial costs.

Response 2.1-248: In some ways, the various commenters on this issue are trying to have it both 

ways. 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-combustion CCS is available, technically feasible, 

and adequately demonstrated within the meaning of section 111 (a), and that its performance will 

result in considerable reductions of CO2 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 

withdrawing from the Mountaineer (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 consider "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, only 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 

systems 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 adequately 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 be insufficient to show that the technology is “adequately 

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).
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Comment 2.1-250: Commenters (4926, 8501, 9396, 9486, 10391 and 10395) stated that the 

EPA is wrongly 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 inappropriately 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 by industry. Commenters further 

stated that where deployment 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 Section 111 is technology forcing, quoting the court 

as stating that Section 111 looks toward what may fairly 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 further 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: The 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 the 

same determination whether or not considering the (legitimate and recognized) factor of 

technology innovation (as an aspect of best system) while weighing the enumerated statutory

factors. Cf. Sierra Club, 657 F. 2d at 346 (“So long as EPA considers innovative technologies in 

terms of their prospective economic, energy, nonair health and environmental impacts the agency

is within the scope of its authorized analysis”). 

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 CO2 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 conjunction 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 commercially-available technology to reduce CO2 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 reliable 
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coal reserves. Commenters further stated that failure to do so will greatly 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 any 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 reductions focuses solely 

on a limit of CO2 per megawatt hour and only relies on CCS as a means to meet the requirement. 

Commenter further stated that the EPA has not adequately evaluated other possibilities of 

achieving cost-effective reductions, including the use of more efficient generation such as UltraSupercritical 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 CO2. Commenter further stated that the success of efforts to control SO2

and NOx emissions resulted from the synergies between the push of technological development 

and the pull of regulation. Commenter further stated that beginning with the 1970 Clean Air Act, 

such synergies between the push of technologies developed through government-supported 

research, development and demonstration (RD&D) programs, and the regulatory pull of 

pollution control rules, including the compliance flexibility allowed by cap and trade programs, 

were highly effective in reducing power plant emissions of SO2 and NOx. Commenter further 

stated that when cap and trade proves unavailable, setting emission limits must 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 SO2 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 CO2 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.
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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. Specifically, the commenter noted the amount of operating capacity, 

financing, and construction, and concluded 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 adequately demonstrated).

Response 2.1-256: See preamble section V.G.3, as well as other comment responses, explaining 

that there is in fact considerably more information regarding the demonstration and feasibility of 

post-combustion CCS than was available for dry scrubbing, and that EPA easily satisfies the 

standard set out by 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 anything 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 that 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 by 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 underlying 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 by (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 further stated that these requirements are 

fundamental to both reasoned decision making and judicial review. Small Refiner Lead PhaseDown 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").
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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 comment. See, 

e.g. preamble section IV.B.1.

Comment 2.1-259: Commenter 5731 stated that the best system of emission reduction must be 

source-based and not system-based. Commenter further stated that standards of performance 

should be based on reductions in CO2 emissions that can be reasonably 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 approach. 

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 optimization and best available technology

economically 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 comment 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 options 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 opportunities 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 performance 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.
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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 physical or operational changes made to their facilities for the purpose of 

complying with a CAA section 111(d) standard will not trigger the standards 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 approach 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 are typically 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 beyond 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 independently, and determinations for one 

industry are not precedential 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 

pathways, 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 types of the BSER 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 to EPA’s proposal with 

respect to the Wolverine project in Michigan, the Plant Washington project in Georgia and the 

Holcomb 2 project in Kansas.
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Response 2.1-267: In this rule, EPA is finalizing requirements for reconstructed sources and 

certain modified sources. With respect 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 

proposal concerning the Wolverine project in Michigan, the Plant Washington project in Georgia 

and the Holcomb 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 CO2 was not only legally suspect, but also represented bad energy policy

because it would have effectively 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 regulating 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. Commenter 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 numbers 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 for 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 Association of 

Regulatory Utility Commissioners, public utility regulators agree with the attorneys general that 
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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 generating 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 develop and implement existing power plant regulations that lower both 

the cost and reliability risks from the regulation. Commenter recommended that EPA engage 

with the policymaker teams in all SSEB states as the President directed in his June 25, 2013, 

memorandum to EPA, and that EPA include other federal agencies and departments having 

expertise in and responsibility for the economy and the electric system.

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 analysis." Motor Vehicle 

Mfrs. Ass'n v. State Farm Mut. Auto. Ins. 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 analysis 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. Commenter further stated that many of these 

projects have suffered delays and/or significant cost overruns that threaten their viability. 

Without actual operating data or some new information showing that CCS has been successfully 

employed at the commercial scale, EPA cannot provide any "reasoned analysis" 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 progeny 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 technically feasible. 

77 FR at 22414. There, as here, EPA indicated that sequestration of captured CCS was 

technically 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-year 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 analysis since 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 deployment 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 CCS costs which are supportive of 

the estimates of costs on which EPA evaluated costs of partial CCS here. Finally, EPA notes 
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that the 2012 proposal was considering a higher capture rate (and commensurately 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 stated 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 myriad 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, rather 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 NETL 2015 p. 29 (cost analysis for model plant designed to meet all 

standard for section 112 air toxics, and the most recent PM, SO2 and NOx limits); RIA at p. 4-7 

(“For the analysis 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 CSAPR rules, New Source Review settlements and state rules through 2014 

impacting sulfur dioxide (SO2), NOx, directly emitted particulate matter and CO2, 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 subject 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 system of emission reduction 

determination cannot consider deployment of a system outside of domestic boundaries. The 

commenter cites no support for its proposition, and the EPA is aware of none. Certainly, the 

language of section 111 imposes no such constraint; it refers to a “best system of emission 

reduction adequately demonstrated”, not a best system of emission reduction deployed 

domestically which is adequately 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 easily. 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 consequences.

Response 2.1-275: EPA agrees, and has separately justified the standards of performance for 

new coal-fired EGUs and new NGCC.
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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 appropriate, revise" 42 

U.S.C. Section 7411(b)(1)(B) standards of performance for new sources. Commenter further 

stated that if in eight years CCS is developed to the point that the record supports a finding that 

CCS is BSER for fossil fuel-fired boilers and IGCC 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 CO2 emission limits for new fossil fuel-fired 

boilers and IGCC units, being based, as it is, on the Agency's proposed finding that the 

misnamed partial carbon capture, which only results in separation, is BSER for these types of 

units.

Response 2.1-276: The EPA believes that the record reasonably supports that partial CCS is 

BSER for fossil-fuel steam 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 system of emission reduction" 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 CO2 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 CO2 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 not BSER for 

NGCC, particularly once one considers EPA's other underlying 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 type 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 CO2 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 CO2

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 CO2 in natural gas flue streams should lower the costs for carbon 

capture's application to NGCC in terms of capture, compression and storage, especially if new 

NGCC plants are operating as base load power and producing more CO2 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 and 
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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 dispatch, 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 literature EPA relies upon for its determination that CCS is 

BSER for coal-fired EGUs similarly (and equally incorrectly) assumes that these plants will not 

cycle frequently. Accordingly, 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. Commenter 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 relatively 

greater impact on NGCC plants. Commenter also stated that the delays involved in installing 

CCS should be the same, no matter the type of plant involved. Commenter stated that the EPA 

did not cite any evidence that equipping an NGCC unit with CCS is inherently or relatively 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 systems are compatible with the other emission control equipment on the coalfired 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 determinations on the technical feasibility of CCS as BSER for coalfired EGUs but not for NGCC plants. Commenter further stated that each of the reasons offered 

by EPA is lacking in any support, is inherently contradictory, and demonstrates an irrational 

weighting 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 systems 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 intended for NSPS to reflect 

the most highly-effective emission reduction systems that are technically and economically 

feasible, including new and innovative pollution control technologies that are not in routine use. 

Commenters further stated that the Congress 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 in 
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interpreting the 1970 language of the CAA, the Portland Cement I court found that the term 

"adequately demonstrated" required a showing by 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 largely 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 Cong. 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 environmental degradation to occur and only 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 111 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 fairly be projected for the regulated future, rather than the state of 

the art at present.'" Lignite Energy 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 

technological vanguard when setting new source standards so as to encourage innovation and 

yield long-term cost savings.

Response 2.1-284: The EPA largely 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 emissions from EGUs based on the best available systems 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 CO2, and stating that defendant power plants represent "the largest emitters of 

carbon dioxide in the United States").

Response 2.1-285: The EPA largely 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 to 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).
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Comment 2.1-287: Commenters (9201, 9505 and 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 stated 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 

compliance pathways 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 properly 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 gasification combined cycle (IGCC) units) and combined cycle 

units. Commenters further stated that the difference, however, in the CO2 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 system of 

emission reduction," or BSER, is critical to the establishment of Section 111(b) standards 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 system/systems that 

has/have been "adequately demonstrated" for the affected sources in the category; (2) EPA 

determines the emission levels "achievable" using the adequately demonstrated system or 

systems; 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 actually install or operate the particular technology or system identified as BSER, 

only to meet the numerical performance level established by the NSPS.

Response 2.1-289: The final standard – 1400 lbs. CO2/MWh – is quite evidently a numerical 

performance standard.

Comment 2.1-290: Commenters (2658 and 9515) stated that the Administration must perform a 

thorough analysis of costs and benefits, accounting for the cascading effects costly energy

regulations will have on businesses, markets, employment and households.

Response 2.1-290: EPA has carefully examined potential energy implications of the present 

standard, as required under section 111 (a). Our conclusion, well documented, is that the final 
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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 CO2/MWh standard is "achievable" for Subpart Da units 

applying CCS. Commenters further stated that once EPA identifies a system of emission 

reduction as "adequately demonstrated," it must separately determine what emission level is 

"achievable" by individual sources applying that system. EPA has failed to do that.

Response 2.1-291: The EPA has identified 1400 lbs. CO2/MWh as the level of emission 

reduction achievable by applying the best system of emission reduction adequately 

demonstrated. See preamble section V.J explaining why that level 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 only 

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 CO2 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 deployment of a 

diverse mix of new generating units by recognizing Best System of Emission Reduction 

performance unique for generating fuel type and design. Commenter further requested that the 

EPA proceeds with imposing a CO2 emission rate constraint on new generating units, that EPA 

provide for NSPS emission rate restrictions that are developed to reflect the Best System 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 units.

Comment 2.1-294: Commenters (7994 and 9723) requested the EPA to use this authority to 

subcategorize the EGU source category by the type 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 types. 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 CO2 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 pathways available to achieve that standard.
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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 improvements 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. Commenter further 

stated that this will allow the costs of such upgrades to be appropriately 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 determined 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 system of emissions 

reduction (BSER) for coal-fired boilers and integrated gasification combined cycle (IGCC) units, 

EPA chose 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 issues. 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. 

See 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 deployed for PC, 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 than 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 largely consistent with EPA’s own analysis set out in RIA 

chapter 4. Nonetheless, there are possibilities that new coal capacity might be built for energydiversity reasons, or other non-economic concerns, in which case the standard of performance 

would result in emission reductions (both CO2 and SO2) 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 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 adequately demonstrated at a reasonable cost. Commenter 

further stated that neither NRDC v. EPA nor any 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 nation. Commenter further stated that in fast any NSPS that geographically prohibits 

sources from locating throughout major portions of the country contradicts the statute and its 

legislative intent, and is therefore impermissible.
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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 capacity 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 responses above, stating that 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, 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 achievable as best system 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, not 

electricity systems.

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 any "system" of actual emissions reduction from the source. Commenter further 

stated that the proposed standard is based solely upon one component of CCS carbon separation 

and capture - and, according to EPA, the disposition of the captured CO2 is outside the scope of 

the rule. Commenter further stated that the proposal is a standard for CO2 separation, and there is 

no emissions reduction of CO2 from the source. Commenter further stated that the CO2 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 adequately demonstrated, EPA must 

consider certain factors, including four that EPA says are most relevant in this context: 

 Feasibility - Is the system of emission reduction technologically feasible?

 Costs- Are the costs of the system reasonable?

 Size of emissions reductions - What is the amount of emissions reductions that the system 

would generate?

 Technology- Does the system 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 technically feasible, 

can be implemented at a reasonable cost, and promotes deployment and further development of 

the technology.
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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 scientifically and practically sound bottomup approach. Commenter further stated that the EPA's stated goal of a 17 percent reduction in 

CO2 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 achievable in the chosen regulatory

approach. Commenter further stated that adherence to these underlying 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 determination that partial CCS is BSER does not reflect some a 

priori consideration of a desired reduction in CO2 emissions. It reflects an assessment of the 

criteria relevant under section 111, notably technology performance and feasibility, cost, nonair 

quality impacts, and energy requirements.

2.2 CONSIDERATION OF PROPOSED CCS PROJECTS UNDER 

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, 10137, 10239, 10500, 10552, 10554, 10680 state that EPA inappropriately 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 determined to be "adequately demonstrated." Commenter 

continues noting that EPA should remove all federally funded facilities from its proposal and reevaluate 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 

adequately demonstrated under CAA Section 111. EPA violated these provisions by considering 

and relying on the Kemper Facility, TCEP, and HECA in making its determination that partial 

CCS is BSER that has been adequately 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 determining that partial capture CCS is BSER 

that has been adequately demonstrated is a violation of EPAct05, and the agency cannot consider 

these facilities as part of its BSER analysis 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 analysis 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 by the agency cannot stand as is.
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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 CCPI projects. EPA has limited data on which to base its 

determination 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, the 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 "adequately demonstrated" analysis 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 Performance 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, Subcomm. 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 years of notice to 

analyze and address the implications 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 CCPI funded 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—specifically 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 determining 

the BSER, from finding that a technology or emission limit is adequately demonstrated based 

exclusively on evidence from facilities supported under EPAct05. However, the EPA interprets 

all three relevant EPAct05 provisions to allow the EPA to consider 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 advancement and commercialization of CCS technology, as 
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described more fully 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. 10750. 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 by the 

Clean Coal Power Initiative (“CCPI”) as evidence that CCS has been adequately demonstrated. 

The statute clearly states that “no technology...by 1 or more facilities receiving assistance under 

this Act, shall be considered to be...adequately 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.

Commenters 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 commenters paraphrase that section 402(i) of EPAct 

mandates three things: (i) no technology that receives CCPI funds can be considered "adequately 

demonstrated" under CAA section 111; (ii) no level of emission reduction can be considered 

adequately demonstrated "solely" by reason of a technology receiving CCPI funding (conversely, 

a level of emission reduction might be considered adequately demonstrated based on 

technologies not receiving CCPI funding); and (iii) the achievement of a level of emission 

reduction cannot be considered adequately demonstrated based on the performance of CCPIfunded facilities. As a result, EPA may cite only non-CCPI-funded facilities with operating 

histories to support its determination that a certain technology is adequately 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. Commenters 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 single project in addition to the 

EPAct-assisted facilities, it could properly consider EPAct-prohibited facilities. Thus, if the 

Agency were to rely on 100 projects that all received assistance under EPAct, and on one project 

that did not, the Agency would claim that it had acted in accordance with EPAct.

Commenter 10052 states that EPA’s interpretation of Section 402(i) would render that section 

effectively meaningless. The term “solely,” as it is used in the statute, refers to a level of 

emissions reduction achieved “solely” by reason of the use of the technology. The term “solely” 

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 achievable 
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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 EPA has determined that CCS is 

"adequately demonstrated" based primarily 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 rely 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 adequately 

demonstrated.

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 

"adequately demonstrated." Although this prohibition is similar to the limitation imposed for 

projects qualifying for tax credits under Section 48A, there is one notable difference. 

Specifically, the language of Section 402(i) does not follow the syntax of Section 48A(g) of 

placing the term "solely" within parentheses. Commenter states that EPA has incorrectly

determined that, under Section 402(i), it may rely 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 

evidence from non-subsidized facilities to make a plausible or prima facie case that CCS is 

demonstrated before relying 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 application) that have not received assistance under the Act 

before it can rely 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 

says those sections 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” analysis: would the selected standard constitute BSER but for evidence from 

any 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 generally, even if the other evidence 

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 

"adequately demonstrated" for NSPS purposes. According to the NODA, however, EPA stated 

that it was free to rely on the CCPI-funded facilities "in conjunction with other information to 
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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 

adequately supported without any information from" CCPI-funded projects. EPA is wrong for 

several reasons. First, as discussed above, the EPAct prohibits EPA from relying on technology

or levels of emissions reduction at facilities receiving CCPI funding 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 emissions" themselves as provided in Section 

402(i)(1) of the EPAct. This is an important distinction. While it is true that EPA has cited nonCCPI-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" analysis: "would the selected standard constitute BSER but for evidence 

from any 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 generally, 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 effectively 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 Section 402(i)(1) by 

simply citing to projects that are not funded under the CCPI even though those other projects 

cannot independently justify the selection of BSER.

Commenter 10239 states the EPAct05 prohibits EPA from considering evidence from projects 

funded 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 "adequately 

demonstrated." Commenter continues to say that EPA is required by statute to conduct a "but 

for" analysis to determine whether the control technology would qualify as BSER but for 

evidence from projects funded under EPAct05. If not, EPA cannot rely on the control technology

in establishing a standard of performance. Commenter continues that if this was not the case, 

EPA could refer to any 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 Section 402(i) of EPAct05 constitutes a 

"partial prohibition" on relying on information from facilities that receive CCPI funding in a 

BSER determination under CAA Section 111. EPA's interpretation of this provision is 

inconsistent with both statutory language and congressional intent. Congress precluded EPA 

from considering the following three things in its BSER determination under CAA Section 111: 

(1) technology that receives CCPI funds; (2) the level of emission reductions achieved “solely” 
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by reason of a technology funded through CCPI (consideration of emission reductions from nonCCPI funded technology is allowed); or (3) the performance of CCPI funded 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 “solely” does not control the meaning 

of the entire provision, but merely the second clause relating to the level of emissions reductions 

achieved by 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 

CCPI funded 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 by 

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 included 

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 sections. The word “solely” in EPAct sections 402(i) and 1307 

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 “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 considered to be 

adequately demonstrated.

Commenter 9664 supports EPA’s analysis 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 sections 402(i) and 421(a) on their face only prohibit EPA from relying “solely” on 

EPAct-funded facilities in determining that a technology is adequately demonstrated. The 

prohibition therefore is limited to circumstances in which the Agency has no other evidence 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) only 

prohibit EPA from relying “solely” on EPAct-funded facilities in determining that a technology

is adequately demonstrated. The word “solely” plainly 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 on 
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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 determination 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 adequately demonstrated based on information 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 provisions and ignores the nearly identical language in section 421(a). The 

whole clause “solely by 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 technology” 

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 are 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 “solely” 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 adopted together, and contain nearly identical 

language. Even ignoring the clear structure of section 421(a), however, the grammar and syntax 

of 402(i) alone cannot support the commenters’ reading. Unlike “technology” and “level of 

emission reduction,” which lack 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 

would 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 coherence 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 reading, 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 

solely by reason of the use of the technology” in parentheses. While EPA acknowledges that the 

use of “solely” has a different effect in section 48A(g), commenters’ reading of “solely” 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). 

Accordingly, commenters’ observations about section 48A(g) on this point do not override the 
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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 Dictionary online, 

http://www.macmillandictionary.com/dictionary/american/consider (definition includes both “to 

think about something carefully before making a decision of developing an opinion” and, when 

used with “to be,” “to have a particular opinion about 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 naturally to mean that the EPA shall not “deem” these technologies to be adequately 

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 “independently conclude” that a 

technology is BSER in the absence of information from EPAct05-supported facilities. EPA 

believes the meaning of the term “solely” in sections 402(i) and 421(a) is clear. The dictionary 

defines “solely” as “involving nothing except the person or thing mentioned”; its synonyms 

include “only” and “exclusively.” (See MacMillan English Dictionary online, 

http://www.macmillandictionary.com/dictionary/american/solely.) Accordingly, the EPA 

believes that it may rely 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 “solely” here can 

be read to imply a “but for” test as commenters suggest, whereby 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 Justice 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 commenters’ suggestion that the EPA’s reading of the word “solely” 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. That 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 type under EPAct05. See 
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Marine Shale Processors v. EPA, 81 F. 3d 1371, 1383 (5th Cir. 1996) (“We make no comment 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 any technology or performance level, by 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 prohibition 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 adequately 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 . . . adequately demonstrated for purposes of section 

111 of the Clean Air Act." Commenter states that this provision prohibits any technology used at 

facilities that are allocated Section 48A tax credits from being considered as "adequately 

demonstrated," because EPA “may not consider” Section 48A facilities to support an adequately 

demonstrated determination.

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 system of emission reduction 

adequately 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 

grammatically and logically strained reading given to them by EPA.

Commenter 10618 states that the statutory limitation in Section 48A(g) clearly and 

unambiguously prohibits EPA from “considering” the following three categories of evidence 

from a covered demonstration project to “indicate” that a “technology or performance level 

is...adequately demonstrated” under Section 111: (1) “use of technology...by or at one or more 

facilities with respect to which a credit is allowed”; (2) “a level of emission reduction solely by 

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 by the demonstration of any 

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 “solely” in the second category, above, may 

allow EPA to take into consideration a level of emission reduction that was not achieved “solely 

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 be 
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imposed by this term. Because of this, any 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 

adequately 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 nonparallel 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 “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 

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 adequately 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 “adequately demonstrated.” Thus, the ban on “consider[ing]” 

would be a ban on EPA deeming a technology to be proven as technically 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 adequately demonstrated. 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 facilities receiving a tax credit under EPAct ’05, there are numerous, readily

apparent ways 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 determination 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 reasonable 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” 

harmonizes 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 receiving tax 

incentives to be treated differently 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 and for the same purpose—sections 402(i) and 421(a)—

because there is no indication that Congress intended projects receiving tax incentives to be 
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treated differently from projects receiving other kinds of federal support under EPAct05. 

Commenter continues that EPA’s understanding of section 1307(b) as simply preventing EPA 

from relying exclusively on EPAct-supported facilities in making a determination of whether a 

technology is adequately demonstrated is the most logical one.

Response 2.2-3: Although the text of section 48A(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 “solely” 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-supported 

facility cannot “be considered to indicate that the technology or performance level is [] 

adequately demonstrated.” This phrase is best interpreted to mean that the EPA shall not deem a 

technology or emission level to be adequately demonstrated based exclusively on information 

from EPAct05 facilities.

The use of the verb “to consider” in section 48A(g) plainly 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, 

synonyms include “to show” or “to prove.” Accordingly, 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 adequately demonstrated. This limitation thus prevents 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 relying on 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), concerning 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 clean 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 before such technology appeared elsewhere in the industry, it would be contrary to 
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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 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 and with the plain language of these 

provisions.

Comment 2.2-4: Commenters 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 interchangeably. Because the terms are not equivalent it would 

be unreasonable for EPA to treat them as such by 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” directly follows the word “facilities” and is not offset by 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 reduction” – and certainly not to “eligible property,” 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 interpretation 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 actually 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.

Commenters 10618, 9498 state that even if EPA were allowed to rely, 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 would 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 section 
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48A(g) of the Internal Revenue Code), there is no basis for EPA to ignore projects about which 

the Agency lacks public information. EPA should not be required to prove a negative, especially 

because many 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. Commenter 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 by the taxpayer.” Until then, financial assistance is 

highly contingent on entering 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 assistance 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 

adequately demonstrated. EPA is obligated to determine whether or not facilities used in its 

BSER analysis are receiving CCPI funds so that EPA can avoid considering prohibited facilities, 

as required by 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 section.” 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. Accordingly, a taxpayer may claim Section 48A tax credits in the 

taxable years 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 facilities regardless of the form of the assistance. Likewise, 

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. Accordingly, responses to associated comments are not provided.

Comment 2.2-5: Commenter 9396 states that EPA has erred in asserting that CCS is 

“adequately demonstrated” to a degree to be deemed BSER on the technical merits. EPA asserts 

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 synonymous with “adequately 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 system 

of emission reduction is “adequately demonstrated”—not EPA’s assessment of costs or other 
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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 determination of what is “adequately demonstrated.” Thus, EPA properly 

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 by facilities receiving 

assistance] or emission reduction level[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 merely “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 any particular technology, nor the achievement of any emission reduction, by

any facility receiving assistance under this title[,] shall be taken into account for purposes of 

making any determination under the Clean Air Act in applying the provisions of that Act to a 

facility not receiving assistance under this title, including any determination concerning 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 envisioned 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 by facilities receiving 

assistance under clean coal technology demonstration programs authorized by Title IV of the 

EPAct05.”

Commenters 9666, 9498 state that in the Energy and Commerce Committee’s report on the 

House version of EPAct, they explained the section 402 CCPI program safe harbor as 

“specifying that the use of a certain technology by any facility assisted under this subtitle . . . will 

not result 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 analysis shows 

that the drafters intended to adopt the broadest possible ban on consideration of CCPI-funded 

projects. Similar analysis 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 virtue of having been operated in th[e] program.” H.R. 
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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, Development, 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 

EPAct05-supported facilities “result[s] in” a technology being considered (or deemed) to be 

adequately 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 previous 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 legislation] 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 the 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 consistent 

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 because CCPI funding is limited, by definition, to technologies that have not been 

adequately demonstrated. The CCPI program 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 CCPI program is to promote the development of technologies that are not 

yet adequately demonstrated. Moreover, because a statutory prerequisite for a technology to 

receive CCPI funding is that it is not "in commercial service" or "viable," EPA has an extra 
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hurdle to prove that any level of emission reduction achieved by CCPI-funded facilities is now 

viable and adequately demonstrated. 

Commenter 10618 states that EPA is acting contrary to the purpose because an NSPS 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. These facilities cannot be considered by EPA in making findings that a level of 

reduction has been "demonstrated" as "achievable." 

Commenters 9201, 10239 state the CCPI is intended to 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 the Secretary determines is 

sufficient to demonstrate that commercial service is viable. Given the CCPI's focus on 

experimental technologies, it is 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 adequately demonstrated.

Commenter 10039 states the purpose of DOE funding is because 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 funding of these projects make US EPA's 

assertions that the technology is adequately available at a reasonable cost arbitrary and 

unreasonable.

Commenters 9472, 10618 state Congress was concerned that EPA might conclude that a 

technology or emission reduction 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 adequately 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 adequately demonstrated once they have been adequately 

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 rely on on emission data or experiences with the technology at facilities that have 

received assistance. Information from facilities that have received assistance can add weight to 

EPA's finding that a particular technology or emission level is adequately demonstrated, but it 

may not form the underlying basis for identifying that technology or emission level in the first 

place. 
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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 clearly shows that Congress 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 by EPA when assessing what types of emission control 

technologies are “adequately 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 deployment 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 technology is both adequately demonstrated and the best system of 

emission reduction for a source category and can be broadly deployed via EPA performance 

standards would indicate that the goals of these EPAct’05 provisions have been fulfilled. 

Commenters note that prohibiting EPA from ever evaluating the performance of an EPActsupported 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 decade 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 appeared 

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 demonstrate that CCS 
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technology has made significant strides. As described in those sections, commercial scale postcombustion CCS is in fact in use within the source category —successfully—at the Boundary

Dam facility.

Comment 2.2-8: Commenters 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 Policy Act. Instead, that Act generally, 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 

Treasury 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 merely dictates 

what EPA may and may not consider in determining what is "adequately demonstrated" for 

purposes of section 111 of the CAA, but does not amend the CAA and does not separately 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 EPA'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 expressly addressed to the Agency's role of determining 

which technologies 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 equally 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 clearly entrusted to administer). The 

provisions cannot be read to direct or constrain the actions of any 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.
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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 in 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 partial CCS is "adequately 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 examples 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 "technical 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]ccordingly, the proposed determination is not 

‘solely’ based on information about facilities that received assistance under EPAct05” is a post 

hoc rationalization. The Agency did in fact rely, contrary to law, on the Kemper, HECA, and 

TCEP facilities to determine that partial CCS is BSER. Furthermore, it is clear that Kemper, 

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 irreparably taints 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 rely 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 BSER. The commenter points out that the SaskPower Boundary

Dam project was highly subsidized 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 rely 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 only 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 was highly 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 federally 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 

adequately demonstrated for fossil fuel fired EGUs.
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Commenters 9780 and 10097 state that if EPA is legally able to use CCPI projects to 

determine if a technology is adequately 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 determination 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 systems are now, and will be available for commercial 

application on coal-fired power plants, and that the component elements of these systems have 

been in long-standing use in other similar industrial applications 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 many other nonCCPI funded, 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 CCPI funded projects have little history of success.

Commenter 10239 states the CCPI program and its 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 delays and financial problems, resulting in the US 

Government Accountability Office (GAO) stating that these projects "may have difficulty in 

successfully demonstrating, and ultimately commercializing their technologies." Of the 18 CCPIfunded projects, 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 rely 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 adequately demonstrated, 

the EPA may extrapolate from presently available technology. Commenter also states that the 

components of a system need not be fully integrated to be “adequately demonstrated,” and that in 

a number of different legal contexts, courts have recognized 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 system need not always be applied at a 

source of the type being regulated in order for a system to be “adequately demonstrated,” and so 

EPA may rely 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 

adequately demonstrated is considerably more extensive than what was available to show the 

feasibility of emergent technologies that have been identified as the best system 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 rule 
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preamble, discussing the EPA’s consideration of performance guarantees and other literature that 

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 smallscale pilot or demonstration projects and projects that demonstrate components of CCS. The 

EPA believes its BSER determination for fossil-fuel fired electric utility steam generating units 

is well-supported by an array of facilities, including a number of facilities that were not 

supported under EPAct05. The EPA notes that, as 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 technology.

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 solely on non-operational 

demonstration projects receiving DOE financial assistance. EPA claims that it considered, in the 

course of determining BSER, “whether the costs of the system are reasonable.” A system which 

literally does not exist without federal subsidies cannot be claimed to have reasonable costs. It is 

therefore completely 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 considering 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 large 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 US 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 these 

demonstration projects and US EPA would be citing projects without DOE funding instead.

Commenter 9664 states that EPA although EPA does not rely solely on EPAct05 subsidized 

facilities, that available cost subsidies improve the reasonableness of the costs 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 major types of energy used to generate 

electricity has been or is currently 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 installation. 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 types 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 technology is not or will not be commercially viable. A response 
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to this comment and further 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 Response 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 federally-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-akind.” EPA is precluded from referencing in any way that technology to justify selecting a 

different point on a “learning by 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 on the fact that 

present-day CCS projects – or “first-of-a-kind” facilities – exist. NETL’s projections do not 

depend on whether technology at any particular facility is “adequately demonstrated,” but merely 

recognize that first-of-a-kind facilities exist so future projects will be – by definition – “next-ofa-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 

physically in existence, and so these provisions are not relevant here. Moreover, treating next-ofa-kind CCS projects as first-of-a-kind projects would be factually inaccurate, unreasonable, and 

contrary to Congressional intent. Congress intended EPAct05 to accelerate development of clean 

coal technologies by 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 generation 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-operating month average rate exceeds 

the limit. Commenter says, the proposal assumes the second highest potential for violations, 

exceeded only by assessing a violation for every calendar day, regardless of whether the unit 

operated or not. Commenter says, 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 says, 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 says, the EPA should not assume 

violations. Commenter says, an alternative approach is to assess only a single violation per 

compliance period, but it may not assess penalties for days 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 says, EPA should be wary of 

double counting the previously enforced violating days and specifically attempts to levy a fine 

for operating days that were compliant.
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Commenter 9514 states, given the large economic benefits that can be accrued from profitable 

plants, EPA must make the most of its ability to deter violations through penalties. Commenter 

says, 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 says, compliance determinations should be made daily and that 

EPA should clarify how penalties would be calculated for sources that do not meet the 95 percent 

valid data requirement. Commenter says, one possibility would be to assess penalties based on 

the number of individual operating days in which the 95 percent data requirement was not met. 

Commenter says, another option would be to assess penalties based on a percentage of the 

source's annual operating days 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-operating-month rolling 

average. Specific monitoring and reporting requirements are specified in preamble section X. and 

in the Rule Language 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 redefinition. Commenter says, 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 says, according 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 hierarchy 

set forth in the Pollution Prevention Act, which establishes a national policy favoring the 

prevention or reduction of waste, followed by recycling, treatment, and disposal. 

Response 2.4-2: EPA does not accept the premise that section 111 (a) determinations are 

trumped in some manner by a hierarchy set out in the Pollution Prevention Act. However, EPA 

has considered waste generation issues as part of its consideration of nonair quality potential 

impacts, and reasonably determined that the final standards of performance will not have any 
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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 UIC programs, 

again accounting for potential issues relating to disposal of captured CO2 in deep saline 

formations. 

Comment 2.4-3: Commenter 10030 states, EPA recognized a PSD permit allowing for the 

construction of the WCEV but Wolverine has publicly announced that it is not currently pursuing 

development. Commenter says, 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 says, 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 rely heavily or 

exclusively on the use of the Integrated Planning Model, a proprietary model, instead of public 

energy models like 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, dynamic, deterministic linear programming model of 

the U.S. electric power sector that the has been successfully used by EPA and private companies 

for over two decades to evaluate the economic and emission impacts of prospective 

environmental 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 by 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 adequately 

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 any significant effect on electricity

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 says, 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 and 
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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 any new coal-fired steam electric unit in any area of the country.

Comment 2.4-7: Commenter 8971 states, partial capture CCS inappropriately discriminates 

between regions, states and regions within states. Commenter says, EPA's proposal violates the 

Commerce Clause by developing rules that can only be met in certain regions of the country 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 9471 states, the preamble discussion does not adequately 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 says, 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 affordability of power into 

account for the final rule. Commenter says, the consequences of electricity price increases should 

lead EPA to reconsider the proposed rule.

Response 2.4-9: EPA has carefully 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 drastically affect the cost of electricity which is a public health and 

welfare concern. Commenter says, 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 opportunity 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.
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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 generally, Class II primacy, and 

associated long-term storage via CO2-EOR. UIC Class II wells are typically, but not exclusively

regulated by 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 states. See preamble 

section V.N.5.a and section 6.3 of this response to comments document..

2.4.2 Issues Related to Data Quality 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 

Highly Influential Scientific Assessments (HISAs) and for other influential scientific information 

(ISI). Commenter says, these deficiencies must be corrected and the Proposed Rule's technology

assessment 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 required 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 says, 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 by OMB. Commenter says, an unnamed staffer from EPA's Office of Air 

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 says, 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 says, the staffer's assertion also did not cite a specific statutory authority or legal 

analysis.

Commenter 4846 states that the BSER determination is a highly influential scientific assessment 

(HISA), as defined in the legally binding OMB bulletin, and that the proposed rule failed to 

follow 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 review based on the 

representations made by EPA staff” (Comment p. 10 and n.14). Commenter says, EPA has not 

explained how their BSER determination does not meet OMB's definition of a HISA. 

Commenter says, the SAB believes the agency's CCS determination requires 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.
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Commenter 4846 states that EPA has violated a specific rulemaking requirement established by 

OMB in the peer review bulletin; discussing the peer reviewers’ report in the NPRM. 

Commenter says 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 legally valid because it would violate mandatory requirements of the 

OMB Guidelines (p. 3). Among the binding requirements which the comment states 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 public 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 requirements. 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 says, EPA should initiate the public, participatory peer review activities 

mandated by 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 says 

there are two conclusions from EPA's NODA and TSD: 1) EPA has further documented that 

their BSER determination is a HISA; 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, objectivity, 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 Inst. 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 be 
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challenged” (emphasis original)11OMB 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 Information Disseminated by the Environmental Protection 

Agency (IQGs) 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 review 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 IQGs, 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 highly 

influential scientific assessment (HISA) 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 Administrator determines has been adequately demonstrated. Consistent with the 

CAA and decisions of the D.C. Circuit, EPA considered statutory factors including the 

 

11Commenter 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 proposition 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 implemented 

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.
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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 by existing projects where CCS technology or its components are 

deployed, by studies prepared by 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 (CO2) 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 

Review 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 HISA. That document describes which currently operating or partially constructed 

facilities utilizing some type 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 facilities (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 system of emission reduction which has been 

adequately 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 reasonably 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, the 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 Liaisons, p. 3. 

The letter was subsequently endorsed 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 fully 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 for
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commercial-scale carbon sequestration that ensures the protection of human health and the 

environment is linked in important systematic ways to this rulemaking” and that “[r]esearch and 

information from the EPA, Department of Energy, and other sources related 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 system in place for geologic sequestration 

of CO2 at commercial scale, the Class VI permitting standards for geologic sequestration of CO2, 

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 information on key issues 

relating to geologic sequestration—including monitoring schemes; methods to predict and verify

capacity, injectivity, and effectiveness of subsurface CO2 storage; and characterization and 

management of risks associated with plume migration 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 VI and 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 correctly informed the SAB Workgroup that issues of geologic 

sequestration of CO2 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 suggestion (or, perhaps more accurately, its mistaken 

innuendo) that there was any attempt by EPA to circumvent SAB review here.

Looked at more broadly, the proposed rule was an ordinary exercise of rulemaking authority, 

typical 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 

reasonably relied on record evidence, including evidence said by 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 “highly influential scientific 

assessments.”

Comment 2.4-13: Commenter 9686 states EPA should request that EIA, not its consultants, run 

all of the analysis 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.
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Response 2.4-13: This comment lacks merit. The IQA says 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 says, the NODA and TSD's full legal justification was released more than 

halfway through the proposal's comment period ending March 10, 2014. Commenter says, 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 carefully. Furthermore, although 

the Act requires information and legal interpretations to be placed in the public docket at the time 

of proposal, there are no provisions 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 

generally 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 analyze and formulate comments. 

Commenter says, a deadline of March 10, 2014 is not enough time for states and stakeholders to 

draft comments on the proposed NSPS, as well as the NODA and TSD.

Response 2.4-15: The many thousands of comments on these issues, which are robust, and 

multi-faceted, confirm the adequacy of the time period afforded for public comment here. It is 

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 already 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 comply with section 307(d) places any 

final rule in legal jeopardy. Commenter says, 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 of publication of the proposed 

rule." Commenter says, if EPA declines to re-propose the NSPS then the comment deadline 

should be extended to 90 days after publication of the NODA in the Federal Register.

Response 2.4-16: The TSD contained no information not already presented and docketed at 

proposal. It analyzed the same facilities and projects where CCS, or components thereof, are 

presently 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.
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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 stakeholders to meaningfully analyze and formulate 

comments. Commenter says, 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 accompanying 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 analyzed the same facilities and projects 

where CCS, or components thereof, are presently 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.

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 GPRMA sets the 

reporting requirements for EPA to inform OMB and Congress on their progress in achieving 

their science-related and other performance goals. Commenter says, because the science quality 

standards and the reporting requirements are contained in different 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 which 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 says, 

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 goals to the Administrator, relevant Congressional committees, and to GAO." 

Commenter says, 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 explained 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: Commenter 3593 states, there are many conflicts of interest in the current and 

recent leadership at EPA, mainly from former employees of environmental pressure groups that 

lobby the agency. Commenter says, EPA's failure to recuse from all advisory and decisionmaking activities those individual with clear conflicts of interest impeaches impartiality by EPA 

in the proposal of this rule. Commenter says, the proposed rule is invalid and must be conducted 

free of such conflicts. Commenter says, with conflicts of interest there is the potential for 

predetermination on the policy established in the proposed rule. Commenter says, this 
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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 locations 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 says, evidence of predetermined goals requires EPA to start 

over and begin any 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 otherwise 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 Marine Shale Processors v. EPA, 81 F. 3d 1371, 1384-85 

(5th Cir. 1996) (illustrating 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 incomplete due to the us

e of private email accounts to conduct official correspondence. Commenter says, EPA should co

nduct a review to determine how extensive the use of non-official email accounts was by

officials materially involved in the rulemaking. Commenter says, when federal employees 

correspond on work-related issues on non-official accounts, they are required to copy their 

office. Commenter says, EPA must satisfy all obligations to fully inform the National Archivist 

and assist with all prescribed Archivist and Agency steps in response to that required reporting 

and diligently 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 says, correspondence moved "offline" from the official, required channels are still potential agency records and/or federal records, 

and possible candidates for inclusion in the rulemaking record.
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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 control of 

records which should by law be in their possession. Commenter says, 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 says, EPA arbitrarily and capriciously refused to comply with the 

requirements of statutory and regulatory record-creating and record-keeping regimes. 

Commenter says, EPA failed in its obligation 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 says, 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 should 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 Archivist. Commenter says, 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 illegally denies the public access to records covered by the FOIA, 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 subject 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).