From: Frey, Nathan J. <Nathan_J._Frey@omb.eop.gov> 

Sent: Saturday, August 1, 2015 11:52 AM 

To: Culligan, Kevin; Harvey, Reid; Hutson, Nick; Vasu, Amy 

Cc: Szabo, Aaron; Grossman, Andrea 

Subject: Summary of Interagency Comments Under EO 12866 and 13563 -- Clean Power Plan 

Draft Final rule 

Attached for your consideration please find a summary of interagency comments under EO 12866 

and 13563 on the EPA draft final Clean Power Plan rule as well as one minor comment on the 

111(b) preamble. 

 

Thanks very much and please let me know if you have any questions. 

Nathan 

<< SummaryofinteragencycommentsunderEO12866_13563_EO 12866_CPP 2060 AR33 

Final_2015_8_1.docx >> 
Summary	of	Interagency	Working	Comments	on	Draft	Language	under

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CPP RIA 

 P. 3-11 [If accurate, suggest adding] 

o The analysis is a reasonable expectation of the incremental effects of the rule, and 

is consistent with past EPA analyses of power sector regulatory requirements. The 

EPA has separately analyzed and considered the cost and feasibility of 

implementing the emission reduction measures in BSER, which do not rely on 

energy efficiency measures. For this analysis, see section V.A.4.d. of the 

preamble to this final rule. 

CPP Preamble 

 P. 642 [The following point, which was included in your earlier draft, seems like it would 

fit well in your revised text on BB4. Something like the following, defer to EPA]: 

“Building block 4 is outside our policy paradigm as it targets consumer-oriented behavior 

and demand for the good, which would reduce the amount of electricity to be produced. 

In addition to being outside our paradigm because it focuses on reducing the amount of 

electricity generation overall, we note that commenters asserted that as a practical matter, 

demand-side energy efficiency programs involve the participation of more entities, 

including end-users, which creates levels of complexity in implementation not found with 

the other building blocks. Commenters also asserted that the record for the proposal 

lacked information demonstrating that a number of states could implement demand-side 

energy efficiency programs in the amounts and on the time-table that the proposal called 

for, or that certain segments of the industry –- independent power producers, who 

comprise some 35-40 percent of the industry, but do not have a direct business 

relationship with end-users –- could do so.”

 P. 996: “Furthermore, We therefore do not interpret the term “implementation of ... such 

standards of performance” broadly enough to authorize the EPA to approve state plans 

with obligations enforceable against that impose federally enforceable obligations upon 

the a broad array of non-emitting entities that would have been implicated by the 

portfolio approach.” 

 P. 443: “It is worth noting that an earlier state plan submission date provides regulated 

sources with more certainty and time to plan for compliance, but has no effect on the time 

when compliance must be achieved, as the mandatory compliance period begins in 2022 

for all states. Some states that already have established programs for limiting CO2 

emissions from power plants may be able to adopt and submit to the EPA state plans by 

September 6, 2016. In those states, sources will already have developed compliance 

approaches to meet state law requirements. Other states that may decide to submit plans 

by September 6, 2016, may be expected to work with their affected EGUs to determine a 

reasonable compliance approach, in light of the fact that compliance is not required to 

begin until 2022. 
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 Conforming edit to regulatory text: “(E) If a state plan provides for the ability of 

renewable energy resources located in states with mass-based plans to be issued 

ERCs, consideration in the projection that such resources must meet geographic 

eligibility requirements, based on power purchase agreements, RECs or related 

documentation; and” 

 P. 669: “For example, had some type of add-on control such as CCS been available 

identified as the BSER for coal-fired EGUs, sources that complied by installing that 

control would incur higher cost.” 

 P. 544: “Finally, we briefly note additional constraints that focus the BSER identified for 

new sources under section 111(b) on controls that assure that sources are well-controlled 

at the the time of construction.” 

 P. 634: “As discussed in the Legal Memorandum and briefly below, the BSER identified 

for EGUs under section 111(b) is designed to assure that affected sources are well 

controlled at the time of construction, and that approach is consistent with the design 

expressed in the legislative history for the 1970 CAA Amendments that enacted the 

provision. “ 

 [There is an inconsistency with the way that public engagement is described on p. 40-41 

and p. 247:] 

o P. 40-41: ” These components are: an identification of final plan approach or 

approaches under consideraton, including a description of progress made to date; 

an appropriate explanation for why the state needs additional time to submit a 

final plan by September 6, 2016; and a demonstration or description of 

opportunity for public comment on the initial submittal and meaningful 

engagement with stakeholders, including vulnerable communities, during the time 

in preparation of the initial submittal and plans for engagement during 

development of the final plan, as described in section VIII.E of this preamble.” 

o P. 247: “The third required component for states to address in the initial submittal 

is a demonstration of how they have been engaging with the public, including 

vulnerable communities, and a description of how they intend to meaningfully 

engage with community stakeholders during the additional time (if an extension is 

granted) for development of the final plan.” 

 Footnote 564 on p. 500 [Editorial suggestion for your consideration to make more 

consistent with 111(b) discussion]: “In many respects, there are indications that Congress 

prefers CAA section 111(b) standards of performance to be based on technological 

control methods. There are numerous reasons to find that particular CAA section 111(b) 

standards of performance should be based on controls installed at the source at the time 

of new construction. This is due in part to the recognition that new sources have long 
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operating lives over which initial capital costs can be amortized.” 

 Footnote 301, p. 304 [It appears the highlighted final clause is not needed for this 

discussion]: “We also discuss our interpretation of the requirements for standards of 

performance and the BSER under section 111(b), for new sources, in the section 111(b) 

rulemaking that the EPA is finalizing simultaneously with this rule and in the Legal 

Memorandum for this rule. Our interpretations of these requirements in the two rules are 

generally consistent except to the extent that they reflect distinctions between new and 

existing sources. For example, as discussed in the section 111(b) rule, the legislative 

history supports the view that the BSER for new industrial facilities, which were 

expected to have lengthy useful lives, should include the most advanced pollution 

controls available, installed at the time of new construction., but Congress had a broader 

conception of the BSER for existing facilities.” 

 P. 1074: “In this final rule, the EPA is finalizing these as appropriate explanations for 

seeking an extension beyond 2016, but makes clear—as explained further below—that 

other appropriate explanations will be acceptable as well.” 

 P. 1080 “States may meet the first required component by describing these steps such as 

these already undertaken” 

 P. 1080: “The EPA underscores that states that have taken these steps since proposal may 

easily address the first component of the initial submittal by describing such steps, and 

also address the second required component by identifying next steps (which may be a 

natural extension of these already implemented activities), and laying out a schedule for 

development of a final plan.” 

 P. 1076: “Given the opportunity for states to submit appropriate explanations other than 

the ones detailed here, the EPA believes addressing this component requiring an 

appropriate explanation for an extension is easily achievable by September 6, 2016, with 

relative ease by states intending to submit a final plan by September 6, 2018.” 

 P. 1455: Note for consistency that same footnote as 1054 in 111(b) preamble has been 

modified. 

 Found missing or incorrect language in RLSO version p. 889 – the redlined sentence 

doesn’t read right. It says, “As a result, notwithstanding the fact that mass goals for 

existing sources are quantified in a way that is an equivalent expression of the BSER, the 

form of mass goals is only equivalent if leakage is satisfactorily addressed in 

performance state plan’s establishment of emission standards and implementation 

measures.” 
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 Pg 365 -- Commenter suggests removing the following sentence that would make the 

paragraph internally consistent, because later it points out how new NGCC could be 

consistent with long-term climate goals: “Unlike emission reductions achieved through 

the use of any of the building blocks, emission reductions achieved through the use of 

new NGCC capacity require the construction of additional CO2-emitting generating 

capacity, a consequence that is inconsistent with the long-term need to continue reducing 

CO2 emissions beyond the reductions that will be achieved through this rule”. 

111(b) Preamble 

 P. 612: “In addition, it is not possible to count on new sources being able to trade 

with existing sources, for several reasons. First, we could not assume that states 

would provide for existing sources to trade with new sources under their state 

plans. AS noted, there are indications in the legislative history that new sources 

should be well-controlled at the source, which casts doubt on whether new 

sources should be allowed to meet their standards through the purchase of 

emission credits. Second, new sources must meet their standards of performance 

as soon as they begin operations. If they do so before the year 2022, when 

existing sources become subject to section 111(d) state plan standards of 

performance, no existing sources will be available as trading partners.”