Summary of Interagency Working Comments on Draft Language under 

EO12866/13563 Interagency Review. Subject to Further Policy Review.

1) Pages 38-40, 43-44, 143, 147-48, and 185: Treatment of Modifications and 

Reconstruction. We previously expressed concern that the preamble contained 

very broad statements to the effect that EPA anticipates no modifications or 

reconstructions in the utility sector, which could undercut other Clean Air Act (CAA) 

New Source Performance Standards (NSPS) and New Source Review (NSR) cases 

against utilities involving modifications or reconstructions. EPA has made some 

helpful changes; however, further revisions are needed to accurately characterize 

the extent to which the power plant sector has undertaken modifications or 

reconstruction to date. Please see pages 38-40, 43-44, 143, 147-48, and 185 of the 

attached redline. (Recommended changes are in redline/strikeout and capital 

letters. Pagination is as saved and printed.) For example, rather than stating that 

there has been a “small number of” or “very few” modifications or reconstructions 

to date, the preamble should state that the numbers of modifications or 

reconstructions have been “limited.” (In the last few years alone, we’ve received 

dozens of NSPS referrals from EPA in cases involving modifications; this number 

alone is not “very few” or a “small number.”) A few of the edits are also designed to 

limit the discussion to NSPS and greenhouse gases (GHGs) only, the relevant 

context. These edits are important because any broad suggestion that 

modifications, in particular, are rare is inaccurate and will make it more difficult to 

litigate cases concerning them. We think the new text still supports EPA’s goal not 

to establish an NSPS for modifications or reconstructions. 

2) Page 151: Limitation of Discussion of Equities for Transitional Sources. It is 

possible that in future litigation, sources may seek to bolster equitable defenses to 

violations of requirements of the CAA on the basis of the equities discussion related 

to transitional sources in this rule. To help counter this, EPA should add the 

following footnote at page 151: “Nothing in this discussion of the unique 

circumstances of transitional sources facing new GHG requirements should be 

interpreted as providing a defense to any violation of the CAA by sources that, for 

example, fail to obtain PSD permits or comply with NSPS before construction.”

3) Pages 30-31, 93-94, and 164: Use of the Terms “Baseload Power 

Plant,”“Baseload Plant,” or Related Concepts. On these pages, EPA uses the term 

“baseload power plant,” “baseload plant,” or related concepts. Because the meaning 

of these terms is a key issue in NSR enforcement against the utility industry, we 

have suggested edits on the attached redline to refer instead to plants that provide 

baseload or intermediate generation, for example. This will simply avoid any 

possible unintended impact from this proposal on litigation.

4) The EJ section of the preamble describes benefits from this rule that are not 

described in the EJ section of the RIA. We suggest EPA make conforming changes to 

the text of the preamble to resolve the inconsistency.
Summary of Interagency Working Comments on Draft Language under 

EO12866/13563 Interagency Review. Subject to Further Policy Review.

5) There appear to be two seemingly contradictory statements about near term effects 

on climate from GHG emissions. On page 132 of the preamble, there is a statement 

that because CO2 is long-lived in the atmosphere, the 30-year averaging period is 

“not expected to have a different impact on climate than meeting the standard of 

performance.” However, a few pages later, on page 140, the preamble notes that 

“climate change impacts result from the cumulative amount of emissions so reduced 

near term emissions provide additional benefits.” We recommend that EPA 

reconcile these two statements. 

6) The current text includes inaccurate statements, particularly regarding federal 

financial support for demonstrating carbon capture and storage technology. 

Interagency commenters are not seeking further analysis to be completed prior to a 

timely release of the proposed rule, but rather clarifying edits to the language. 

During the development of a final rule, interagency commenters would like to 

continue to engage EPA in dialogue about the feasibility of carbon capture and 

storage as an option for achieving a GHG NSPS for electric generating units. 

Interagency commenters also suggest adding acknowledgment about uncertainty 

regarding future natural gas prices.

7) Please provide clear language in the NSPS summary that federal funding for future 

CCS demonstrations has not been available for several years and no funds have been 

requested in the current budget request. From page ES-4: [EPA] estimates that 

Federal financial assistance will support development and demonstration. This 

language in the proposed NSPS regarding forward-looking funding for CCS 

demonstrations is inaccurate and misleading. It should not be assumed that Federal 

funding for new CCS technology demonstrations will continue, or that the next 

generation of CCS technology would be demonstrated in the timeframe associated 

with this rule. Federal budget requests for CCS demonstrations have been zero for 

the last several years, and actual budgets have also been zero. CCS R&D funding 

profiles continue to be reduced. The availability of federal funds to continue largescale demonstrations is not guaranteed, and should not be portrayed as such. Even 

if funding was available, the next generation of CCS technologies now being 

developed would not be demonstrated within this rule s stated 2020 timeframe. A 

similar sentiment is appears to be restated on page 135 of the Preamble: This is 

because, again, CCS is feasible and can be expected to be sufficiently available in 

light of continued subsidies and lower future costs in light of the limited demand. 

8) CCS is not currently a cost-effective technology, and should not be described as such 

in the proposed rule.

 Preamble, page 13: Furthermore, design and technology choices exist that 

can be readily and cost-effectively used to reduce GHG emissions from new 

fossil fuel-fired power plants. 

 Please note that several aspects of carbon capture technologies have not 

been demonstrated yet at full-scale, fossil power plants. The overall CCS 
Summary of Interagency Working Comments on Draft Language under 

EO12866/13563 Interagency Review. Subject to Further Policy Review.

technology is also not presently considered cost effective for fossil plant 

applications, as acknowledged in the Preamble in several places. Therefore, a 

statement that CCS can be readily and cost effectively used to reduce GHG 

from fossil sources is highly questionable, and CCS should be clearly excepted 

from such statements about technology choices.

 Preamble, page 35: Thus, the 30-year averaging compliance option, along 

with the current opportunities for funding to implement CCS immediately,

helps to alleviate any concerns that today s action could restrict new coalfired construction. 

 However, the proposed GHG NSPS for EGUs does acknowledge the 

uncertainty about the availability of federal funding for demonstrating CCS. 

In the Preamble, footnote 22 (page 34): 

 A number of the sources that EPA has identified as transitional sources have 

received some form of Federal financial assistance to demonstrate CCS. In 

addition, several additional projects have received funding but have not yet 

received air permits. Beyond these projects, prospects for additional federal 

funding are not currently known.

9) The proposed GHG NSPS for EGUs should be consistent with EPA s position included 

in the GHG BACT guidance, which was published in March 2011. This guidance 

document contains the following statement on CCS technical feasibility: While CCS is 

a promising technology, EPA does not believe that at this time CCS will be a 

technically feasible BACT option in certain cases. As noted above, to establish that 

an option is technically infeasible, the permitting record should show that an 

available control option has neither been demonstrated in practice nor is available 

and applicable to the source type under review. EPA recognizes the significant 

logistical hurdles that the installation and operation of a CCS system presents and 

that sets it apart from other add-on controls that are typically used to reduce 

emissions of other regulated pollutants and already have an existing reasonably 

accessible infrastructure in place to address waste disposal and other offsite needs. 

BACT guidance, p. 36. 

10) Uncertainty regarding future market conditions, particularly with regard to 

natural gas prices, should be acknowledged. In the proposed GHG NSPS for EGUs, 

the preamble includes statements in multiple places asserting an expectation that 

natural gas prices will remain low in the future, making natural gas plants more 

competitive than new coal power plants. However, natural gas prices have been 

volatile over the last decade, and much remains uncertain surrounding factors that 

could affect future prices for natural gas. It would be useful to acknowledge this in 

the proposed rulemaking. In preparation of a final rule, interagency commenters

would be willing to work with EPA to explore useful to analytic results from a side 

case that has an outlook for higher natural gas prices.