1 

### Hutson, Nick

From: Frey, Nathan J. [Nathan_J._Frey@omb.eop.gov] Sent: Tuesday, November 19, 2013 5:22 PM To: Wayland, Robertj Cc: Culligan, Kevin; Hutson, Nick Subject: RE: NSPS



### Thanks Bob. I look forward to the discussion as so on as folks there are able. In the meantime, lots of folks are confused as to why the rule hasn’t yet published in the FR. Are there particular reasons for this?

Happy to chat if easier.

Best,

Nathan (202) 395 7345

From: Wayland, Robertj [mailto:Wayland.Robertj@epa.gov] Sent: Tuesday, November 19, 2013 5:18 PM To: Frey, Nathan J. Cc: Culligan, Kevin; Hutson, Nick Subject: RE: NSPS



### Nathan –

The letter just got down to my desk today, so we ar e still working through the issues with OGC/managem ent and will follow up with you once we have a more complete ass essment. However, our initial assessment is that w e can address the concerns that have been raised, but we’re just working through the best way to do that. As soon a s we have some resolution internally, we’ll be glad to have a disc ussion with you and others.

thanx!

bob



### Robert J. Wayland, Ph.D. Leader, Energy Strategies Group U.S. Environmental Protection Agency Office of Air Quality Planning and Standards Sector Policies and Programs Division
Mail Code D243-01 Research Triangle Park, NC 27709 Office: (919) 541-1045 Cell: (919) 306-2290 Fax: (919) 541-5450

Email: wayland.robertj@epa.gov

************************************* DRAFT/Deliberative Document - FOIA Exempt
*************************************2 From: Frey, Nathan J. [ mailto:Nathan_J._Frey@omb.eop.gov ] Sent: Tuesday, November 19, 2013 3:55 PM To: Culligan, Kevin; Wayland, Robertj; Hutson, Nick Subject: FW: NSPS



### Hi all,

Can we discuss at your earliest convenience?

The Inside Story 

# GOP Says Utility NSPS Runs Afoul Of Energy Law

Posted: November 15, 2013 In a new line of attack on EPA's proposed greenhous e gas (GHG) rule for new coal-fired power plants, H ouse Republicans are citing a Bush-era energy law that they say bars the agency f rom citing carbon capture and sequestration (CCS) p rojects funded by the law to justify its proposed mandate that new coal plants i nstall the technology.

In a Nov. 15 letter to EPA Administrator Gina McCarthy, House Energy a nd Commerce Committee Chair Fred Upton (R-MI), alon g with three other Republicans on the committee, say EPA's new source performance standard (NSPS) runs afoul of existing prohibitions on using projects funded through the Energy Policy Act of 2005 as being "adequately demonstrated" under s ection 111 of the Clean Air
Act. EPA in its utility NSPS proposed Sept. 20 requires new coal-fired power plants to install CCS, saying that four nearly complete but not yet operational power plants that are installing th e technology allows the agency to meet a statutory requirement that the technology is "adequately demonstrated." The four plants are loca ted in Mississippi, Texas, California and Canada.

But Republicans have previously faulted EPA for req uiring new coal plants to install CCS, even though the technology is not yet in commercial operation and have charged that the tech nology is not "adequately demonstrated."

Rep. Ed Whitfield (R-KY) and Sen. Joe Manchin (D-WV ) have proposed draft legislation that would force EPA to base its NSPS on the carbon dioxide emission rates of existing plants, r ather than plants being constructed, among many oth er restrictions.

But in a new line of attack, Republicans say EPA is legally barred from using those CCS utility projec ts to meet the "adequately demonstrated" standard in section 111 of the Clean Air Act under provisions in the Energy Policy Act of 2005 , which provided funding for the Department of Energy's Clean Coal Power Ini tiative (CCPI). "The Energy Policy Act of 2005 specifically prohibi ts EPA from consideration technology used at a faci lity receiving assistance under the Department of Energy's CCPI, or at a facility t hat is receiving an advanced coal project tax credi t, as being 'adequately demonstrated' for purposes of Section 111 of the [C lean Air Act]," the letter says.

A GOP aide for the energy committee says that the t hree U.S. CCS projects -- Southern Company's Kemper facility, the Summit Proj ect in Texas and the Hydrogen Energy California Project -- all received assistance through the CCPI.

As a result, the letter, which was also signed by W hitfield and Reps. Joe Barton (R-TX) and Steve Scal ise (R-LA), says that because of the prohibitions, EPA should withdraw the proposed rule to "ensure that the agency does not propose st andards beyond its legal authority."

Rep. Randy Neugebauer (R-TX) also raised the issue at a Nov. 14 House science committee hearing with E PA Administrator Gina McCarthy, saying the energy law provision prevents projects that receive CCPI funding from being used as examples of commercially available technology for regulatory purposes.

In response, McCarthy defended the agency's approac h, saying that "we're regulating and proposing this under the Clean Air Act" and that "there is no question it's available, the ques tion really is, is it reasonable and cost-effective for the sector?"

An EPA spokeswoman says the agency is reviewing the letter and will respond.