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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 soon 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 are still working through the issues with OGC/management and will 

follow up with you once we have a more complete assessment. However, our initial assessment is that we can address 

the concerns that have been raised, but we’re just working through the best way to do that. As soon as we have some 

resolution internally, we’ll be glad to have a discussion 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 

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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 greenhouse gas (GHG) rule for new coal-fired power plants, House Republicans are citing a 

Bush-era energy law that they say bars the agency from citing carbon capture and sequestration (CCS) projects funded by the law to 

justify its proposed mandate that new coal plants install the technology. 

In a Nov. 15 letter to EPA Administrator Gina McCarthy, House Energy and Commerce Committee Chair Fred Upton (R-MI), along 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 section 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 the technology allows the agency to meet a statutory requirement that the technology is 

"adequately demonstrated." The four plants are located in Mississippi, Texas, California and Canada. 

But Republicans have previously faulted EPA for requiring new coal plants to install CCS, even though the technology is not yet in 

commercial operation and have charged that the technology 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, rather than plants being constructed, among many other restrictions. 

But in a new line of attack, Republicans say EPA is legally barred from using those CCS utility projects 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 Initiative (CCPI). 

"The Energy Policy Act of 2005 specifically prohibits EPA from consideration technology used at a facility receiving assistance under 

the Department of Energy's CCPI, or at a facility that is receiving an advanced coal project tax credit, as being 'adequately 

demonstrated' for purposes of Section 111 of the [Clean Air Act]," the letter says. 

A GOP aide for the energy committee says that the three U.S. CCS projects -- Southern Company's Kemper facility, the Summit Project 

in Texas and the Hydrogen Energy California Project -- all received assistance through the CCPI. 

As a result, the letter, which was also signed by Whitfield and Reps. Joe Barton (R-TX) and Steve Scalise (R-LA), says that because of 

the prohibitions, EPA should withdraw the proposed rule to "ensure that the agency does not propose standards beyond its legal 

authority." 

Rep. Randy Neugebauer (R-TX) also raised the issue at a Nov. 14 House science committee hearing with EPA 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 approach, saying that "we're regulating and proposing this under the Clean Air Act" and 

that "there is no question it's available, the question really is, is it reasonable and cost-effective for the sector?" 

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