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 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.
 See preamble section XII.B.
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.
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.
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 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.
See preamble sections XII.B. and D.
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.
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.
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.
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.
Commenters (10050 and 10552) requested the EPA to consider setting standards based on CO2 emissions rates achieved by recently built and highly efficient coal-fueled 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.
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.
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.
This comment is beyond the scope of the present rulemaking.
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.
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.
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.
 The EPA acknowledges the commenter's support.
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.
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.
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.
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
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.
The EPA agrees that it has the legal authority to adopt standards of performance for CO2 for this industry sector under CAA section 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.
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 lacks legal authority to adopt the standards in the final rule.  American Electric Power v. Connecticut, 131 S. Ct. 2527, 2537-38 (2011).
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.
This comment is beyond the scope of the present rulemaking proceeding.
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.
EPA has stated explicitly that the 2012 proposal is rescinded and will not serve to establish an NSPS trigger date.
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 re-write the plain language of the text of the Act.
The EPA respectfully disagrees. The final standard is well supported by fact and law.
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.
This comment is beyond the scope of the present rulemaking.
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.
First, section 111 (a) establishes a technology-based standard, not a health-based 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.
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 off-site 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).
 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 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 emissions); 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); 40 CFR section 419.23 (a) and (c) (effluent limitation guideline for sulfide and chromium from cracking operations in petroleum refining category); 40 CFR section 411.11 and .15 (effluent limitation guideline for total suspended solids from Portland cement); 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.  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 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 (on-site) 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.  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 .
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 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.
 The increased use of natural gas to generate electricity is based on market factors independent of the present rulemaking.  See RIA chapter 4.
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).
This comment is beyond the scope of the present rulemaking.
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.
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.
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:
   * 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.

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.
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).
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.
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.
 The EPA has a sound basis for not promulgating standards for CH4 or N2O at this time.  See preamble section III.G.
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.
See preamble section III.G.
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.
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.
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.
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
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.
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 full-scale 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).
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 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.
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 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.
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.
 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. 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.
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.
 See response in unit 6.3 of this RTC.
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).
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.
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 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.
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 conditions. Restrictions were eliminated for all new facilities constructed after 1987."  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".
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."
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 post-combustion CCS is demonstrated in full-scale commercial application and results in significantly greater emission reductions that SCPC without some type of carbon capture.
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.
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).
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.
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).)
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.
This comment is beyond the scope of the present proceeding.
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.
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..
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.
The EPA does not agree for the reasons stated at section V.P.1 of the preamble to the final standards.
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.
EPA disagrees. See preamble section III.H and V.
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.
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.
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.
CCS is currently available on a commercial scale for both pre- and post-combustion 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.
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.
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.
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.
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), 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
Commenters (9780 and 10098) stated that the EPA has an affirmative burden to establish that an emission reduction system is adequately demonstrated.
The EPA agrees, and has satisfied that burden in the administrative record here.
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.
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 coal-fired power plants.  The EPA consequently does not accept the commenters' statements that the BSER determination rests on subjective characterization of not-completed projects.
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.
Commenters maintained that the EPA can only show that a BSER is "adequately demonstrated" using operating data from full-scale commercial operation of the 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, 91[st] 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.
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).
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 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.
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.
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.
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.
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 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.
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.
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.
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").
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.
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.
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.
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)).
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.").
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.
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.
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.
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).
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.
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.
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 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.
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.
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.
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 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.
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.
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.
Given that the final standard may be achieved by means other than CCS, this comment is misplaced.
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.
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).
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.
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).
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 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.
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.
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.
The commenter is incorrect.  As stated in other responses, a new fossil fuel-fired 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.
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.
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.
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.
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.
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.
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.
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.
See preamble section V.L.
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.
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.
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 and boiler types).  The final step is to determine an emissions limit based on the above information.
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.
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).
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.
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.
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 (pre-combustion carbon capture) sector is a "reasonable extrapolation of a technology's performance".  Lignite Energy Council v. EPA, 198 F. 3d at 934.
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.
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.
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.
EPA has done so here, as described in preamble section V.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
See preamble section V. J.
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.
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.
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.
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.
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 emitting EGU," and that the "tons of CO2 sequestered by the geologic sequestration site are not part of that calculation."
This issue is addressed above in <IP_ADDRESS>, responding the UARG comment on the same issue.
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.
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.
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.
 See preamble section V.J.
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.
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.
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 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.
See preamble section V. J and achievability TSD.
Commenter 9666 stated that a standard of performance must be achievable for all sources in a category in all parts of the United States.
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.
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.
The final standard of performance for steam electric capacity is not geographically constrained, as stated in the previous response.
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.
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.
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.
 See preamble section V.J. and Achievability TSD,
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.
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.
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.
Post-combustion partial CCS is demonstrated at full scale.  The standard of performance reflecting proper operation of that technology is achievable.
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 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.
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.
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.
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
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.
The EPA acknowledges the commenter's support.
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."
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.
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).
See preamble section XII.C.
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.
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.
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.
The EPA largely agrees with this comment.
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.
Post-combustion CCS is in fact operated successfully at full scale by the Boundary Dam EGU.
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 of a particular fuel type or a different generation technology, nor preclude the use of any particular fuel source or generation technology.
The various new source standards do not preclude use of any fuel type, either by their terms or in practical effect.