Commenter 10100 states that EPA cannot use CCS projects funded by the Clean Coal Power Initiative ("CCPI") as evidence that CCS has been adequately demonstrated. The statute clearly states that "no technology...by 1 or more facilities receiving assistance under this Act, shall be considered to be...adequately demonstrated." 42 U.S.C. § 15962(i). This is a prohibition on the consideration of this technology; the text does not allow EPA to imply that it may consider the technology in certain situations.
 Commenters 9666, 9498 state that Section 402(i) of EPAct prohibits EPA from considering technology that is used at a facility receiving CCPI assistance as adequately demonstrated technology under CAA section 111. The commenters paraphrase that section 402(i) of EPAct mandates three things: (i) no technology that receives CCPI funds can be considered "adequately demonstrated" under CAA section 111; (ii) no level of emission reduction can be considered adequately demonstrated "solely" by reason of a technology receiving CCPI funding (conversely, a level of emission reduction might be considered adequately demonstrated based on technologies not receiving CCPI funding); and (iii) the achievement of a level of emission reduction cannot be considered adequately demonstrated based on the performance of CCPI-funded facilities. As a result, EPA may cite only non-CCPI-funded facilities with operating histories to support its determination that a certain technology is adequately demonstrated. EPA misreads the word "solely" to modify all three clauses when in fact that term modifies only the second clause addressing when a level of emission reduction may be considered to have been achieved. Commenters also state that EPA's reading of the text is incorrect because, taken to its logical extreme, it would mean that as long as EPA considered a single project in addition to the EPAct-assisted facilities, it could properly consider EPAct-prohibited facilities. Thus, if the Agency were to rely on 100 projects that all received assistance under EPAct, and on one project that did not, the Agency would claim that it had acted in accordance with EPAct.
 Commenter 10052 states that EPA's interpretation of Section 402(i) would render that section effectively meaningless. The term "solely," as it is used in the statute, refers to a level of emissions reduction achieved "solely" by reason of the use of the technology. The term "solely" does not refer to the experience of individual facilities upon which EPA relies to determine BSER. Because EPA's proposed emissions performance standard for coal facilities is achievable solely by the use of partial CCS, the introduction of any facility, for any purpose, with partial CCS receiving assistance under EPAct 2005 is not appropriate for purposes of establishing BSER.
 Commenters 9472, 10618 state that to the extent that EPA has determined that CCS is "adequately demonstrated" based primarily on information obtained from facilities receiving assistance under the EPAct05, this determination would violate section 402(i). Rather, under EPAct05 section 402(i), EPA should only rely on information from these facilities as support for the NSPS if it can independently conclude (based on information from facilities that have not received federal assistance) that the technologies used at the subsidized facilities are adequately demonstrated.
 Commenter 10618 states that Section 402(i) prohibits EPA from relying on federally subsidized demonstration projects given the lack of supporting documentation to conclude that CCS is "adequately demonstrated." Although this prohibition is similar to the limitation imposed for projects qualifying for tax credits under Section 48A, there is one notable difference. Specifically, the language of Section 402(i) does not follow the syntax of Section 48A(g) of placing the term "solely" within parentheses. Commenter states that EPA has incorrectly determined that, under Section 402(i), it may rely on the technology used or emission levels achieved at subsidized facilities as long as it also has some other evidence  -  no matter how unreliable or speculative that evidence might be. Such an argument would violate the intent of the Section 402(i) prohibition and is not a reasonable construction of the statute. Commenter states that the correct reading of Section 402(i) is that EPA is required to have sufficient evidence from non-subsidized facilities to make a plausible or prima facie case that CCS is demonstrated before relying on information from facilities that have received federal assistance. Commenter continues that EPA cannot side-step the Section 402(i) prohibition by simply pointing to a scintilla of evidence in support of its BSER determination, but rather must have strong independent evidence. EPA must have sufficient evidence from facilities (including at least one full-scale electric utility application) that have not received assistance under the Act before it can rely on emission data or experiences with the technology at facilities that have received assistance. Commenter notes that there are similar prohibitions in Section 421(a) but says those sections are not relevant to the EPA's current rulemaking because no projects received assistance under that section.
 Commenter 9510 states that EPA cannot consider evidence from projects funded under the EPAct in setting a "standard of performance" under Section 111 of the CAA if, without that evidence, EPA could not justify its chosen standard as BSER. In other words, EPA must conduct a statutory "but for" analysis: would the selected standard constitute BSER but for evidence from any and all projects funded under the EPAct? If not, EPA cannot proceed. This is the correct interpretation of the language of Section 402(i)(1). Otherwise EPA could avoid the restriction in this provision by simply citing to non-CCPI-funded projects generally, even if the other evidence would not justify the selection of BSER.
 Commenter 10098 states EPA issued the NODA on February 26, 2014 acknowledging the EPAct's prohibition on considering CCPI-funded projects in determining what technologies are "adequately demonstrated" for NSPS purposes. According to the NODA, however, EPA stated that it was free to rely on the CCPI-funded facilities "in conjunction with other information to support" a BSER determination "or to corroborate an otherwise supported determination." In particular, EPA stated that its rationale in determining CCS to be "adequately demonstrated" under the NSPS "does not depend solely upon those projects, and the determination remains adequately supported without any information from" CCPI-funded projects. EPA is wrong for several reasons. First, as discussed above, the EPAct prohibits EPA from relying on technology or levels of emissions reduction at facilities receiving CCPI funding when such technology or levels of emissions reduction would be the "but for" basis of the Agency's decision. Yet the Agency has done so in the proposed rule. Second, EPA mischaracterizes the EPAct in the NODA. EPA focuses on "projects," where CCS technology was planned to be used, rather than focusing on the "technology" or "level[s] of emissions" themselves as provided in Section 402(i)(1) of the EPAct. This is an important distinction. While it is true that EPA has cited non-CCPI-funded projects in the proposed rule, it has relied solely upon CCPI-funded technology (i.e., CCS) in setting the proposed emission limitations on new EGUs. Thus, the proposed rule is contrary to law.
 Commenter 10098 states that EPA cannot consider evidence from projects funded under the EPAct in setting a "standard of performance" under Section 111 of the CAA if, without that evidence, EPA could not justify its chosen standard as BSER. In other words, EPA must conduct a statutory "but for" analysis: "would the selected standard constitute BSER but for evidence from any and all projects funded under the EPAct." If not, EPA cannot proceed. This is the correct interpretation of the language of Section 402(i)(1). Otherwise EPA could avoid the restriction in this provision by simply citing to non-CCPI-funded projects generally, even if the other evidence would not justify the selection of BSER (as it has done in the proposed NSPS). That would not only frustrate the purpose of Section 402(i)(1) but would be contrary to the express language of that section. Where evidence from a CCPI-funded project provides the "but for" basis for the selected standard, it is effectively the sole support for that standard, which is expressly prohibited by the EPAct. Yet in the proposed NSPS GHG rule, EPA does what Congress has prohibited it from doing: it seeks to avoid the restriction in Section 402(i)(1) by simply citing to projects that are not funded under the CCPI even though those other projects cannot independently justify the selection of BSER.
 Commenter 10239 states the EPAct05 prohibits EPA from considering evidence from projects funded under the EPAct in setting "standards of performance" under CAA 111 if, in the absence of such projects, the EPA cannot establish that the NSPS control technology is "adequately demonstrated." Commenter continues to say that EPA is required by statute to conduct a "but for" analysis to determine whether the control technology would qualify as BSER but for evidence from projects funded under EPAct05. If not, EPA cannot rely on the control technology in establishing a standard of performance. Commenter continues that if this was not the case, EPA could refer to any non-EPAct funded projects, even if these project do not provide sufficient evidence to establish that the control technology qualified as BSER.
 Commenter 9201 states that EPA's TSD argues that Section 402(i) of EPAct05 constitutes a "partial prohibition" on relying on information from facilities that receive CCPI funding in a BSER determination under CAA Section 111. EPA's interpretation of this provision is inconsistent with both statutory language and congressional intent. Congress precluded EPA from considering the following three things in its BSER determination under CAA Section 111: (1) technology that receives CCPI funds; (2) the level of emission reductions achieved "solely" by reason of a technology funded through CCPI (consideration of emission reductions from non-CCPI funded technology is allowed); or (3) the performance of CCPI funded facilities in achieving certain emissions limits. Commenters continues that EPA can only consider non-CCPI funded facilities or technologies to support its determination that a certain technology or emission standard is "adequately demonstrated." The word "solely" does not control the meaning of the entire provision, but merely the second clause relating to the level of emissions reductions achieved by CCPI funded technology. "Solely" does not apply to the first or third clauses in that provision, which are absolute prohibitions on relying on technology used or the performance of CCPI funded facilities. Commenters also notes that Congress made it clear that even the consideration of such information is prohibited in the BSER determination process.
 Commenter 9201 states that the existence of additional information outside projects funded by EPAct05 provisions such as Section 402(i) does not allow the EPA to circumvent the broad statutory prohibition against the consideration of CCPI-funded facilities or technologies in its BSER determination. Had Congress wanted to grant EPA this flexibility, it would have included explicit language to that effect. Instead, it directs EPA against even the consideration of such projects in determining BSER.
 Commenter 9780 states that EPA's interpretation has no basis in the statutory language or the purpose of the three EPAct sections. The word "solely" in EPAct sections 402(i) and 1307 references only which level of emission reduction may not be used to determine BSER (i.e., those that are the result of using the federally assisted technology). The term "solely" does not modify "adequately demonstrated" as EPA asserts. Commenter also states that EPA ignores what CAA sections 402(i) and 1307 also prohibit: no technology or use of technology, or the achievement of emission reduction from federally assisted facilities can be considered to be adequately demonstrated.
 Commenter 9664 supports EPA's analysis of the relevant EPAct05 provisions as permitting EPA to consider the performance of EPAct05-supported projects in determining that a control technology is "adequately demonstrated," for the purposes of CAA section 111 standard setting, so long as those projects are not the sole basis for that determination. That reading of the statute's text is most consistent with the purposes of the statute. Commenter further states that EPAct05 sections 402(i) and 421(a) on their face only prohibit EPA from relying "solely" on EPAct-funded facilities in determining that a technology is adequately demonstrated. The prohibition therefore is limited to circumstances in which the Agency has no other evidence for its decision. Arguments that EPA cannot even include the facilities as part of a much larger supporting record impermissibly write the term "solely" out of the statute.
 Commenter 10108 states that EPA's interpretation of the EPAct05 provisions is most consistent with the language and purposes of the statute. By their terms, sections 402(i) and 421(a) only prohibit EPA from relying "solely" on EPAct-funded facilities in determining that a technology is adequately demonstrated. The word "solely" plainly limits the scope of this prohibition, and to argue that EPA may not consider such facilities in the context of a more extensive record would render the term surplusage.
The EPA disagrees with commenters who suggest that the EPA misreads the relevance of the phrase "solely by reason of," which should be read as a narrow qualification on the "level of emission reduction." EPA reads the language "solely by reason of the use of the technology, or the achievement of the emission reduction," which appears in both sections 402(i) and 421(a) of EPAct05, as a single clause that informs the evidentiary basis for the EPA's determination: the EPA may make a determination based on a technology or level of emission reduction at EPAct05 facilities, so long as the determination is not "solely by reason of" the use or achievement demonstrated at those facilities.
 Some commenters suggest instead that the language should be split so that "solely" only modifies the phrase "level of emission reduction," while "the achievement of the emission reduction" becomes an additional list item like "technology" or "level of emission reduction." These commenters would read section 402(i) to establish three categories that the EPA cannot consider to be adequately demonstrated based on information from EPAct05 facilities: (1) "technology"; (2) "level of emission reduction, solely by reason of the use of the technology"; and (3) "the achievement of the emission reduction." This interpretation is contrary to the plain language of these provisions and ignores the nearly identical language in section 421(a). The whole clause "solely by reason of the use of the technology, or the achievement of the emission reduction" appears in both sections 402(i) and 421(a) (section 421(a) replaces "the technology" and "the emission reduction" with "such technology" and "such emission reduction but is otherwise identical). In section 402(i), this clause follows directly after "no technology, or level of emission reduction." But in section 421(a), the clauses are rearranged and "solely by reason of" appears after the enumeration of the three Clean Air Act sections. In section 421(a), it is impossible to regroup the language so that "solely" only modifies "level of emission reduction," which appears much earlier in the provision.
 Some commenters suggest that the language of section 421(a) is not relevant because no projects received assistance under that provision. EPA believes the text of section 421(a) is relevant because the two provisions were drafted and adopted together, and contain nearly identical language. Even ignoring the clear structure of section 421(a), however, the grammar and syntax of 402(i) alone cannot support the commenters' reading. Unlike "technology" and "level of emission reduction," which lack articles, "the achievement of the emission reduction" begins with an article, "the." If commenters were correct that "the achievement of the emission reduction" should be read as a third category that the EPA is barred from considering, the statute would read "No technology, or [no] level of emission reduction, . . . or [no] the achievement of the emission reduction . . . shall be considered to be [] adequately demonstrated . . . ." This reading is unsound. By contrast, the EPA's reading maintains the coherence of the provision by creating two parallel clauses: (1) "No [(A)] technology, or [(B)] level of emission reduction"; (2) "solely by reason of [(A)] the use of the technology, or [(B)] the achievement of the emission reduction . . ." With this reading, the EPA gives effect to all of the language in section 402(i).
 Some commenters ignore the relevant language in section 421(a) and instead compare section 402(i) to the sentence structure of section 48A(g), which puts "or level of emission reduction solely by reason of the use of the technology" in parentheses. While EPA acknowledges that the use of "solely" has a different effect in section 48A(g), commenters' reading of "solely" in that provision cannot be imported to sections 402(i) and 421(a) because it is precluded by the use of the articles in section 402(i) and is plainly contrary to the clause structure of 421(a). Accordingly, commenters' observations about section 48A(g) on this point do not override the plain meaning of these two provisions. The EPA's interpretation of section 48A(g) is discussed in the response to Comment 2.2-3.
 The EPA also disagrees with commenters that it is barred from all consideration of EPAct05 facilities because section 402(i) specifies that no technology or emission reduction "shall be considered to be [] adequately demonstrated" on the basis of EPAct05 information. Commenters attempt to read "shall be considered" as barring all "consideration," but this confuses two meanings of the verb "to consider." Here, the use of the phrase "considered to be [] adequately demonstrated" makes clear that the language means "shall be deemed to be" or "shall be adjudged to be." The provision does not use "consider" in the sense of "think about" or "contemplate." (See MacMillan English Dictionary online, http://www.macmillandictionary.com/dictionary/american/consider (definition includes both "to think about something carefully before making a decision of developing an opinion" and, when used with "to be," "to have a particular opinion about someone or something").) The EPA's interpretation is supported by the text of section 421(a), where Congress instead used the phrase "shall be treated as [] adequately demonstrated." Both sections 402(i) and 421(a) can thus be read naturally to mean that the EPA shall not "deem" these technologies to be adequately demonstrated on the basis of EPAct05 facilities, but neither provision can be read to prohibit the EPA from "thinking about" these facilities.
 Finally, the EPA does not agree with commenters who read sections 402(i) and 421(a) to create a "but for" limitation or to require that the EPA be able to "independently conclude" that a technology is BSER in the absence of information from EPAct05-supported facilities. EPA believes the meaning of the term "solely" in sections 402(i) and 421(a) is clear. The dictionary defines "solely" as "involving nothing except the person or thing mentioned"; its synonyms include "only" and "exclusively." (See MacMillan English Dictionary online, http://www.macmillandictionary.com/dictionary/american/solely.) Accordingly, the EPA believes that it may rely on information from EPAct05 facilities so long as this information is not the only support for its determination. The EPA does not believe that the use of "solely" here can be read to imply a "but for" test as commenters suggest, whereby the EPA could not use EPAct05 facility information in any circumstance where, "but for" that information, it would not have made the same determination. The EPA believes that commenters have confused a "necessary" cause (the EPA's determination would fail "but for" the EPAct05 information) with a "sufficient" cause (the EPAct05 information is the "sole" basis for the EPA's determination). For example, the assent of each Supreme Court Justice in the majority may be necessary to a Court's 5-4 decision (a "but for" cause), but the assent of a single Justice in the majority is not sufficient for the outcome (the "sole" basis). For that reason, the EPA interprets sections 402(i) and 421(a) to allow it to rely on information from EPAct05 facilities even where that information is a necessary component of its determination, so long as the information from these facilities is not the sole support for the determination.
 The EPA also rejects commenters' suggestion that the EPA's reading of the word "solely" would allow the EPA to avoid a limitation on its consideration of EPAct05-assisted facilities by including a mere scintilla of evidence from non-EPAct05 facilities. That situation is not presented here, where the principal evidence that partial CCS is a demonstrated and feasible technology comes from sources which received no assistance of any type under EPAct05.  See Marine Shale Processors v. EPA, 81 F. 3d 1371, 1383 (5[th] Cir. 1996) ("We make no comment on this argument; this is simply not a thimbleful case").
Commenter 10100 states that section 48A(g) of the Internal Revenue Code prohibits the consideration of EPAct05 projects as adequate demonstration of BSER. Pursuant to the statutory language: "No use of technology (or level of emission reduction solely by reason of the use of the technology), and no achievement of any emission reduction by the demonstration of any technology or performance level, by or at one or more facilities with respect to which a credit is allowed under this section, shall be considered to indicate that the technology or performance level is adequately demonstrated for purposes of section 111 of the Clean Air Act (42 U.S.C. 7411)." The plain meaning of the prohibition on the "consider[ation]" of such technology "to indicate" that the technology is adequately demonstrated is that information about a particular technology from certain facilities may not be used at all in a determination of whether that technology has been adequately demonstrated for BSER purposes.
 Commenter 9666 states that section 1307(b) of EPAct (codified as section 48A(g) of the Internal Revenue Code) outright prohibits EPA from considering as part of its section 111 assessment technology at a facility that is allocated a Qualifying Advanced Coal Project Tax Credit under section 48A of the IRC ("Section 48A tax credit"). Commenter paraphrases section 1307(b), removing the parentheticals, so the pertinent provision reads: "No use of technology . . . at . . . [a] facilit[y] . . . [that is allocated a Section 48A tax] credit . . . shall be considered to indicate that the technology or performance level is . . . adequately demonstrated for purposes of section 111 of the Clean Air Act." Commenter states that this provision prohibits any technology used at facilities that are allocated Section 48A tax credits from being considered as "adequately demonstrated," because EPA "may not consider" Section 48A facilities to support an adequately demonstrated determination.
 Commenter 9666 states that EPA must read the term "considered to indicate" in section 48A(g) to mean that "[i]nformation about a particular technology from certain facilities may not be used at all in a determination of whether that technology is the best system of emission reduction adequately demonstrated." Commenter agrees with EPA that the legislative history of all three EPAct05 provisions suggests the provisions should be interpreted similarly. The provisions, however, should be read with the plain meaning given to them by Congress, not with the grammatically and logically strained reading given to them by EPA.
 Commenter 10618 states that the statutory limitation in Section 48A(g) clearly and unambiguously prohibits EPA from "considering" the following three categories of evidence from a covered demonstration project to "indicate" that a "technology or performance level is...adequately demonstrated" under Section 111: (1) "use of technology...by or at one or more facilities with respect to which a credit is allowed"; (2) "a level of emission reduction solely by reason of the use of the technology...by or at one or more facilities with respect to which a credit is allowed"; and (3) "achievement of any emission reduction by the demonstration of any technology or performance level, by or at one or more facilities with respect to which a credit is allowed." Commenter states that the use of the word "solely" in the second category, above, may allow EPA to take into consideration a level of emission reduction that was not achieved "solely by reason of the use of the technology," but does not limit or otherwise apply to the two other prohibitions contained in Section 48A(g), which are not subject to any constraint that may be imposed by this term. Because of this, any limiting effect that the term "solely" might have in Section 48A(g) would have no practical effect in the instant NSPS rulemaking given that EPA lacks sufficient evidence from non-subsidized facilities to bolster a determination that CCS is adequately demonstrated. Commenter also states that the use of the term "solely" in Section 48A(g) need not have the same meaning as in Sections 402(i) and 421(a) because they are non-parallel formulations and reading them together would effectively negate the limitations Congress has placed on EPA's discretion.
 Commenter 9780 states that EPA's interpretation has no basis in the statutory language or the purpose of the three EPAct sections. The word "solely" in EPAct sections 402(i) and 1307 (Section 48A(g)) references only which level of emission reduction may not be used to determine BSER (i.e., those that are the result of using the federally assisted technology). The term "solely" does not modify "adequately demonstrated" as EPA asserts. Commenter also states that EPA ignores what CAA sections 402(i) and 1307 also prohibit: no technology or use of technology, or the achievement of emission reduction from federally assisted facilities can be considered to be adequately demonstrated.
 Commenter 10108 notes that Section 1307(b) (codified as section 48A(g) of the Internal Revenue Code) states that an EPAct-supported facility cannot be "considered to indicate" that a technology is adequately demonstrated. Commenter states that most logical interpretation of this provision is to read it to mean that EPAct-supported facilities cannot automatically and on their own prove that a technology is "adequately demonstrated." Thus, the ban on "consider[ing]" would be a ban on EPA deeming a technology to be proven as technically feasible simply because it is used at an EPAct-supported facility. Commenters also states that the phrase "considered to indicate" means that EPA cannot simply refer to the use of the technology as proof ("to indicate") that it has been adequately demonstrated. Commenter continues that the alternative reading -- interpreting the ban on "consider[ing]" as a ban on EPA referring to these facilities whatsoever in the record -- is strained. If Congress had intended to preclude EPA from even referring to facilities receiving a tax credit under EPAct '05, there are numerous, readily apparent ways in which that limitation could have been communicated more clearly -- for example, "no such technology use shall be considered in determining," or "considered in making a determination that. . . ." Commenter notes that provisions using this alternative phrasing appear elsewhere in EPAct '05. Finally, commenter states that interpreting section 48A(g) to allow EPA to consider information from EPAct '05 facilities is the more reasonable reading because it is consistent with the numerous other instances in the same statute in which Congress uses the phrase "considered to" to mean "deemed."
 Commenter 10108 states that reading "considered to indicate" to mean "deemed to prove" harmonizes section 1307(b) (codified as section 48A(g) of the Internal Revenue Code) with sections 402(i) and 421(a) of EPAct '05. Interpreting all three provisions together is most appropriate because there is no indication that Congress intended projects receiving tax incentives to be treated differently from projects receiving other kinds of federal support under EPAct '05.
 Commenter 9664 states that the tax statute, section 48A(g), should be interpreted together with the other text enacted at the same time and for the same purpose -- sections 402(i) and 421(a) -- because there is no indication that Congress intended projects receiving tax incentives to be treated differently from projects receiving other kinds of federal support under EPAct05. Commenter continues that EPA's understanding of section 1307(b) as simply preventing EPA from relying exclusively on EPAct-supported facilities in making a determination of whether a technology is adequately demonstrated is the most logical one.
 Although the text of section 48A(g) has some notable differences from sections 402(i) and 421(a), the EPA believes that it creates a similar limitation. The EPA acknowledges that the addition of parentheses changes the meaning of the phrase "solely" in section 48A(g) (a deviation that, the EPA notes, accompanies several other small deviations in the language of section 48A(g) as compared to sections 402(i) and 421(a)). However, the remaining language prescribes that the demonstration of a technology or performance level at an EPAct05-supported facility cannot "be considered to indicate that the technology or performance level is [] adequately demonstrated." This phrase is best interpreted to mean that the EPA shall not deem a technology or emission level to be adequately demonstrated based exclusively on information from EPAct05 facilities.
 The use of the verb "to consider" in section 48A(g) plainly means "to deem" or "to adjudge" rather than "to think about" or "to contemplate." Only the first definition ("to deem") is intelligible in context: "No use of technology . . . shall be [deemed] to indicate that the technology . . . is adequately demonstrated . . ." (as compared to: "No use of technology . . . shall be [contemplated] to indicate that the technology . . . is adequately demonstrated . . .").
 The verb "to indicate (that)" is defined as meaning "to show that something will happen, is true, or exists," as in the sentence, "A survey indicated that 89 percent of people recycle paper." (See MacMillan English Dictionary online, http://www.macmillandictionary.com/dictionary/american/indicate .) Under this definition, synonyms include "to show" or "to prove." Accordingly, the limitation that "[n]o use of technology . . . by or at one or more [EPAct05-supported facilities] . . . shall be considered to indicate that the technology . . . is [] adequately demonstrated" prevents the EPA from concluding that the use of a technology at an EPAct05 facility can be deemed to prove that the technology is adequately demonstrated. This limitation thus prevents the EPA from making a BSER determination on EPAct05 evidence alone (which would require that the EPA believe the EPAct05 evidence, in itself, could be deemed to prove the EPA's conclusion), but does not prevent the EPA from relying on that evidence in tandem with information from non-EPAct05 facilities (where the EPAct05 information would not prove, but only support, the EPA's conclusion). Section 48A(g) thus establishes a "sole basis" limitation, like that in sections 402(i) and 421(a), even where the broader language of the provision deviates from that in the other two sections.
 While it is not necessary to conclude that section 48A(g), concerning IRS tax credits, be read to create similar limitation to those appearing in sections 402(i) and 421(a), concerning DOE grant programs, the EPA believes the natural reading of all three provisions warrants this outcome, as does the broader purpose of the subsidies established in these sections. Congress intended these programs to advance the development of clean coal technologies and to serve as a bridge to their commercialization. Although Congress set reasonable limitations to ensure that EPAct05-supported facilities did not form the exclusive basis for technological determinations under the Clean Air Act before such technology appeared elsewhere in the industry, it would be contrary to the intent of the legislation to entirely preclude the EPA from recognizing advances in CCS technology when projecting the future availability of clean coal technologies for new sources. Allowing the EPA to rely on information from these demonstration projects, provided the EPA can show -- with other evidence -- that these technologies are beginning to take root in the broader market, is most consistent with Congressional intent and with the plain language of these provisions.
Commenters 10618, 9510, 9666 state that the prohibition in Section 48A(g) applies, on its face, to facilities, and not to eligible property. Section 48A uses both "eligible property" and "facility" but not interchangeably. Because the terms are not equivalent it would be unreasonable for EPA to treat them as such by equating the word "facility" with the words "eligible property." Commenters also note that credits are not "allowed" under Section 48A for technology or for a level of emission reduction. They are allowed for "projects" which must consist of one or more electric generation units  -  that is, facilities. In addition, the phrase "to which a credit is allowed" directly follows the word "facilities" and is not offset by a comma or other punctuation  -  a further indication that the authors of Section 48A(g) intended the prohibition to apply broadly to "facilities" or "projects" that receive assistance  -  not to specific "technologies" or "levels of emission reduction"  -  and certainly not to "eligible property," a phrase that is not used at all in subsection 48A(g).
 Commenter 10618 states that EPA cannot require facilities to disclose whether they received a tax credit or violate IRS privacy, so EPA must adopt interpretation of section 48A(g) that does not rely on disclosure of this information. Commenters states that it would be unreasonable and unlawful for EPA to construe the statute in a way that would preclude the Agency from following that statute's directive, so it must conclude that a tax credit is "allowed" when it is "allocated" or awarded by the IRS. Information on allocated tax credits is publicly disclosed so this interpretation would be administratively enforceable under existing law, would comport with the statute's overall intent of promoting the development of clean coal technology, and would avoid EPA's claimed difficulty in identifying which projects have actually received the credit. Commenter also states that considering facilities allocated a tax credit when the tax credit had not yet been allowed, or facilities that had not been allocated a tax credit but might in future, would frustrate the clear intent of Congress, which was to ensure that the technologies used and levels of emission reduction attained at demonstration projects receiving federal assistance under Section 48A would not be the basis of a BSER determination under Section 111.
 Commenters 10618, 9498 state that even if EPA were allowed to rely, for purposes of Section 111, on projects that have not yet been built, interpreting Section 48A(g) to allow EPA to consider such unbuilt projects that might later receive the Section 48A tax credit (i.e., by placing eligible property in service at a future date) would frustrate the clear intent of Congress, which was to ensure that the technologies used and levels of emission reduction attained at demonstration projects receiving federal assistance under Section 48A would not be the basis of a BSER determination under Section 111. Interpreting section 48A(g) to allow EPA to rely on unbuilt projects that will in all likelihood receive federal assistance when built would frustrate this intent.
 Commenter 10108 states that unless and until EPA receives information to as to which CCS projects have benefitted from tax credits under section 1307(b) of EPAct (codified as section 48A(g) of the Internal Revenue Code), there is no basis for EPA to ignore projects about which the Agency lacks public information. EPA should not be required to prove a negative, especially because many of projects seeking assistance may never succeed in obtaining funding or a tax credit under EPAct '05. Since EPA has no way of knowing which facilities have received assistance from the relevant programs, it was reasonable to request that information during the notice and comment period on the Proposed Rule when any affected project proponent had an opportunity to provide that information to EPA. Commenter also notes that the section 1307(b) restrictions only apply once a tax credit has been "allowed," which occurs "in the year when the eligible property . . . is placed in service by the taxpayer." Until then, financial assistance is highly contingent on entering into various agreements and meeting strict deadlines, and not all facilities that start down that road will succeed.
 Commenters 10100, 9666, 9498 state that if EPA does not receive information confirming that a particular facility received assistance under the Energy Policy Act of 2005, it may not treat that facility as not having received any such assistance for purposes of determining the BSER adequately demonstrated. EPA is obligated to determine whether or not facilities used in its BSER analysis are receiving CCPI funds so that EPA can avoid considering prohibited facilities, as required by statute.
 Commenter 9666 states that EPA cannot review the technology at a particular facility until a project is placed in service (and thus the section 48A credit is "allowed"). Section 48A(b)(3) provides that "[r]ules similar to the rules of subsections (c)(4) and (d) of section 46 (as in effect on the day before the enactment of the Revenue Reconciliation Act of 1990) shall apply for purposes of this section." These rules, known as the "qualified progress expenditure" ("QPE") rules, allow a taxpayer to make an election to claim tax credits as "qualified progress expenditures" are made. Accordingly, a taxpayer may claim Section 48A tax credits in the taxable years before a project is placed in service.
EPA is not finalizing any interpretation as to whether the EPAct05 provisions pertain only to facilities that received assistance for the relevant technology or emissions reduction, or pertain to all assisted facilities regardless of the form of the assistance. Likewise, EPA is not finalizing any interpretation as to when a tax credit is "allowed" for purposes of the limitation in section 48A(g). Such potential distinctions are not relevant to the EPAct05 facilities referenced in this final rule. Accordingly, responses to associated comments are not provided.
Commenter 9396 states that EPA has erred in asserting that CCS is "adequately demonstrated" to a degree to be deemed BSER on the technical merits. EPA asserts that the reliance on demonstration projects that utilized funding subject to the restriction noted above was not the "sole" determinant in establishing the applicability and reasonable price of CCS. "Technically feasible" is not synonymous with "adequately demonstrated." Indeed, the terminology "adequately demonstrated" is quite clear and rests on the foundation that it has been "demonstrated" to a degree that is repeatable or replicable. Absent being able to identify projects that actually demonstrate a history of technology working on an electric utility plant, EPA cannot sustain a conclusion that CCS is BSER.
 Commenter 10108 states that the EPAct05 provisions affect EPA's determination that a system of emission reduction is "adequately demonstrated" -- not EPA's assessment of costs or other factors that must be weighed in designating a BSER, including cost, health and environmental impacts, and energy requirements. The parenthetical factors pertain to EPA's balancing of what is "best" rather than its determination of what is "adequately demonstrated." Thus, EPA properly interprets section 111(a)(1) as separating the question of technical feasibility from BSER factors such as cost.
See section III.H.1.3.a of the final rule preamble for EPA's response to this comment.
2.2.3 EPAct Legislative History and Purpose
Commenter 10618 states that EPA violates section 402(i) of EPAct 2005 because its reading of the provision would "result in [technology used by facilities receiving assistance] or emission reduction level[s achieved at such facilities] being considered... `adequately demonstrated' for purposes of section [ ] 111...of the Clean Air Act," as quoted from H. Comm. Energy and Commerce, Report to Accompany H.R. 1640, the "Energy Policy Act of 2005," H.Rep. 109-215 at 238 (July 29, 2005).
Commenter 9666 states that the legislative history of the EPAct "safe harbor" provisions confirms that EPA has violated EPAct by merely "considering" EPAct-funded projects. EPAct was first introduced in 2001 as H.R. 4, the "Securing America's Future Energy Act of 2001" ("SAFE Act"). The advanced coal technology safe harbor was part of the bill from its inception: "Neither the use of any particular technology, nor the achievement of any emission reduction, by any facility receiving assistance under this title[,] shall be taken into account for purposes of making any determination under the Clean Air Act in applying the provisions of that Act to a facility not receiving assistance under this title, including any determination concerning new source performance standards, lowest achievable emission rate, best available control technology, or any other standard, requirement or limitation." From H.R. 4, 107th Cong. section 5006(e) (2001). Thus, from EPAct's inception, the drafters envisioned a comprehensive safe harbor prohibiting consideration of subsidized technologies in NSPS rulemakings.
 Commenter 10095 notes that CURC was involved in the discussion regarding the intent of EPAct05 prohibitions and believes there was a "clear understanding . . . that the intent of EPAct05 prohibitions was to prevent the establishment of . . . new source performance standards under Section 111 . . . based on emissions control levels achieved by facilities receiving assistance under clean coal technology demonstration programs authorized by Title IV of the EPAct05."
 Commenters 9666, 9498 state that in the Energy and Commerce Committee's report on the House version of EPAct, they explained the section 402 CCPI program safe harbor as "specifying that the use of a certain technology by any facility assisted under this subtitle . . . will not result in that technology . . . being considered . . . `adequately demonstrated' for purposes of section[] 111 . . . of the Clean Air Act." H.R. Rep. No. 109-215, at 238-39. This analysis shows that the drafters intended to adopt the broadest possible ban on consideration of CCPI-funded projects. Similar analysis by the House Science Committee of an identical provision in a related bill concluded that the language prevents technology at CCPI-funded facilities from being considered under section 111 "simply by virtue of having been operated in th[e] program." H.R. Rep. No. 109-216, H. Comm. on Science, Energy Research, Development, Demonstration, and Commercial Application Act of 2005 (H.R. 610), at 79 (2005) (describing section 902 of the Energy Research, Development, Demonstration, and Commercial Application Act of 2005).
 The EPA disagrees with commenters' interpretation of the legislative history of the EPAct05 limiting provisions. The report of the House Committee on Energy and Commerce stated that the text in section 402(i) specifies that use of a certain technology "will not result in that technology . . . being considered . . . `adequately demonstrated' . . . ." H. Rep. 109-215 at 239 (2005). Under the EPA's reading of section 402(i), no information from EPAct05-supported facilities "result[s] in" a technology being considered (or deemed) to be adequately demonstrated because this information is not the sole basis for the EPA's BSER determination. As explained in the response to Comment 2.2-2, evidence from the EPAct05 facilities may be a component of the EPA's determination without being a sufficient cause that alone "result[s] in" EPA's determination.
 The EPA also disagrees with commenters about the relevance of the legislative history associated with previous legislation that sought to establish these clean coal technology programs, but that failed to make it out of a conference committee. The language of the EPAct05 limiting provisions was changed substantially from the first appearance of these programs in a 2001 bill. The EPA has interpreted the text of the EPAct05, and has not sought to interpret alternative language that was not enacted into law.
 Likewise, one commenter's reliance on a statement by the House Science Committee, describing parallel text in a different bill, ignores the full conclusion of that Committee. Quoted in full, the House Committee concluded that the text "[s]tipulates that a technology used at, or emissions reduction levels achieved by, facilities receiving assistance under [that legislation] cannot be considered to be required under sections 111, 169, and 171 of the Clean Air Act simply by virtue of having been operated in this program." H.R. Rep. No. 109-216 at 79 (2005). The EPA notes that the House Committee did not conclude that a technology could not be "considered under section 111" as the commenter paraphrased, but rather could not be "considered to be required under section[] 111." As described in the response to Comment 2.2-2, the use of "considered" here does not prevent the EPA from "contemplating" technology at those facilities under its section 111 authority, it prevents the EPA from "deeming" that technology to be "required . . . simply by virtue of" its use at those facilities. The EPA believes this description is consistent with a "sole basis" standard, which takes into account information from non-EPAct05 facilities and is not "simply" a reflection of EPAct05 facility information.
Commenters 9666, 10618 state that Congress included section 402(i) provision in EPAct because CCPI funding is limited, by definition, to technologies that have not been adequately demonstrated. The CCPI program funds projects that "advance efficiency, environmental performance, and cost competitiveness well beyond the level of technologies that are in commercial service or have been demonstrated on a scale" that DOE "determines is sufficient to demonstrate that commercial service is viable as of the date of enactment." EPAct section 402(a), codified at 42 U.S.C. section 15962(a) (emphases added). In other words, the stated purpose of the CCPI program is to promote the development of technologies that are not yet adequately demonstrated. Moreover, because a statutory prerequisite for a technology to receive CCPI funding is that it is not "in commercial service" or "viable," EPA has an extra hurdle to prove that any level of emission reduction achieved by CCPI-funded facilities is now viable and adequately demonstrated.
 Commenter 10618 states that EPA is acting contrary to the purpose because an NSPS based on undemonstrated CCS will substantially discourage further development of advanced coal technology by requiring this technology to be installed and maintained on a full commercial scale before the technology is ready and capable of being used in such a manner. It may also discourage participation in demonstration projects by sources, thereby discouraging important technological development.
 Commenters 9666, 10098 state projects are funded under EPAct with the goal of developing new technology. These facilities cannot be considered by EPA in making findings that a level of reduction has been "demonstrated" as "achievable."
 Commenters 9201, 10239 state the CCPI is intended to advance efficiency, environmental performance, and cost competitiveness well beyond the level of technologies that are in commercial service or have been demonstrated on a scale that the Secretary determines is sufficient to demonstrate that commercial service is viable. Given the CCPI's focus on experimental technologies, it is not surprising that Congress recognized the program's inconsistency with establishing NSPS and prohibited the use of CCPI funded programs to establish that a technology is adequately demonstrated.
 Commenter 10039 states the purpose of DOE funding is because these projects are demonstrations of new, unproven technologies and funding is necessary to show the technology is feasible for utilities. Also, the projects require extremely large capital investments for unproven technology. The reasons behind DOE funding of these projects make US EPA's assertions that the technology is adequately available at a reasonable cost arbitrary and unreasonable.
 Commenters 9472, 10618 state Congress was concerned that EPA might conclude that a technology or emission reduction level was "adequately demonstrated" just because ("solely by reason of" the fact that) the technology or emission reduction was achieved at a project that was funded through an EPAct05 program. The purpose of section 402(i) is to prevent EPA from concluding that a technology is adequately demonstrated just because it was demonstrated at a facility that received significant federal funding, while allowing the Agency to designate such technologies or emission levels as adequately demonstrated once they have been adequately demonstrated elsewhere, at facilities that did not receive assistance. Commenter continues that in light of this clear congressional intent, the most reasonable interpretation of this prohibition is that, for purposes of section 111, EPA must have sufficient evidence from facilities (including at least one full-scale electric utility application) that have not received assistance under the Act before it can rely on on emission data or experiences with the technology at facilities that have received assistance. Information from facilities that have received assistance can add weight to EPA's finding that a particular technology or emission level is adequately demonstrated, but it may not form the underlying basis for identifying that technology or emission level in the first place.
 Commenter 9510 states that the limitations in sections 402(i) and 48A(g) reflect Congress's caution towards government-funded energy projects. The language of Section 401(b)(4) of EPAct05 clearly shows that Congress was aware of many "problems" with the projects funded under CCPI's predecessor program. This provides context as to why Congress did not want CCPI-funded technologies considered by EPA when assessing what types of emission control technologies are "adequately demonstrated" under the NSPS. According to NETL, of its 18 CCPI-funded projects, four are "complete," four are "active," and ten were "withdrawn" or "discontinued."
 Commenters 9664, 10108 state that EPA's interpretation of the EPAct05 provisions is consistent with the purposes of both EPAct05 and the Clean Air Act. The enumerated statutory purposes and the legislative history of EPAct confirm EPA's conclusion that the provisions in question are intended to encourage the development of technology so that it can be used on a widespread commercial basis. Indeed, the deployment of demonstrated, cutting-edge technologies to reduce harmful emissions is the purpose of section 111 performance standards. An EPA determination that an EPAct'05-supported technology is both adequately demonstrated and the best system of emission reduction for a source category and can be broadly deployed via EPA performance standards would indicate that the goals of these EPAct'05 provisions have been fulfilled. Commenters note that prohibiting EPA from ever evaluating the performance of an EPAct-supported project, even when there is strong additional record evidence supports a determination that a technology is "adequately demonstrated," does not serve the goals of either statute. Commenters also state that subsidies that further encourage the commercialization of critical pollution abatement technology comport with the Clean Air Act's overall purpose, and the agency may generally consider such subsidies when determining the BSER underlying a performance standard. That is a reasonable approach to the consideration of government funding meant to advance the market readiness, and adoption of pollution control technologies that provide real societal benefits.
The EPA agrees with commenters that these EPAct05 programs were intended to support projects that "advance efficiency, environmental performance, and cost competitiveness well beyond the level of technologies that are in commercial service or have been demonstrated on a scale." The EPA believes that its interpretation of the EPAct05 provisions best reflects this intent. Congress intended the EPAct05 programs to advance the development of clean coal technologies and to serve as a bridge to their commercialization, and for the last decade the EPAct05 programs have served this purpose. Although Congress set reasonable limitations to ensure that EPAct05-supported facilities did not form the exclusive basis for technological determinations under the Clean Air Act before such technology appeared elsewhere in the industry, it would be contrary to the intent of EPAct05 to entirely preclude the EPA from recognizing advances in CCS technology over the last decade when projecting the future availability of clean coal technologies for new sources. Allowing the EPA to rely on information from these demonstration projects, provided the EPA can show -- with other evidence -- that these technologies are beginning to take root in the broader market, is most consistent with Congressional intent.
 The fact that these technologies were not yet "in commercial service" or "viable" when the law was enacted a decade ago does not reflect the state of these technologies today. The facilities described in sections V.D and V.E of the preamble to the final rule demonstrate that CCS technology has made significant strides. As described in those sections, commercial scale post-combustion CCS is in fact in use within the source category  -- successfully -- at the Boundary Dam facility.
Commenters 10084, 9498 state EPA's interpretations of provisions of the EPAct05 are not entitled to deference because an agency is not entitled to deference in its interpretation of a statute which is it not "entrusted to administer," and EPA is not the agency "entrusted to administer" the Energy Policy Act. Instead, that Act generally, and Section 402 in particular, are administered by the Secretary of Energy. Similarly, the tax credit regime at issue here is administered not by EPA, but rather by the Secretary of Energy and the Secretary of the Treasury acting jointly. Neither the financial-grant provisions of Title IV of the Energy Policy Act nor the tax-credit provisions in Title XIII delegate any rulemaking authority to EPA, a sine qua non for the invocation of deference.
 Commenter 9666 notes that the relevant provisions of EPAct are not ambiguous, but that if they were, they would not warrant Chevron deference to EPA. Nowhere in EPAct does Congress entrust EPA with the authority to interpret and administer that statute. EPAct merely dictates what EPA may and may not consider in determining what is "adequately demonstrated" for purposes of section 111 of the CAA, but does not amend the CAA and does not separately give EPA authority to interpret EPAct. Implementation of the provisions of EPAct that amend the Internal Revenue Service-administered IRC and the DOE-administered Clean Coal Power Initiative is entrusted to DOE and the IRS, not with EPA. Thus, any Chevron deference would lie with DOE or the IRS, not with EPA.
 Commenter 10108 states even if EPA's interpretation is not the only proper reading of EPAct05, it is clearly a reasonable interpretation and deserves deference from a reviewing court. The EPAct05 provisions in question are expressly addressed to the Agency's role of determining which technologies are demonstrated, or which emission limits are achievable, under the Clean Air Act. An agency's reasonable construction of a portion of a statute it is charged with enforcing or implementing deserves deference under the familiar Chevron standard. Commenter continues by noting that federal courts have held that this well-established principle applies equally even in situations, such as here, where the language affecting an agency's authority appears in a separate statute which it does not wholly administer.
The EPA believes sections 402(i), 421(a) and 48A(g) are not ambiguous and that its interpretations comport with the plain language of these provisions. However, even if the provisions were ambiguous, the EPA's reasonable interpretation of these provisions would be entitled to deference. The three EPAct05 sections direct the EPA's execution of its rulemaking powers under the Clean Air Act (a statute the EPA is clearly entrusted to administer). The provisions cannot be read to direct or constrain the actions of any other agency, as no other agency makes the subject determinations under sections 7411, 7479, and 7501 of the CAA. There is no context in which either the IRS or the DOE would have cause to administer or interpret these provisions, nor would they have the proper expertise to do so.
2.2.4 Factual Support from EPAct Facilities
 Commenter 9201 states that EPA attempts to downplay its reliance on the Kemper, TCEP and HECA facilities in the TSD. In the proposed rule, however, EPA makes clear that Kemper, TCEP, and HECA---along with the Boundary Dam Project in Canada which is not subject to EPAct05 since it is an international project---are central to EPA's determination of whether partial CCS is "adequately demonstrated" for new coal-fired EGUs. Despite the agency's references to literature and other projects incorporating aspects of CCS technology, a plain reading of the proposed rule reveals that these facilities are the primary examples relied upon by the agency before determining that "CCS technology has been adequately demonstrated, and its implementation costs are reasonable." Moreover, Kemper, TCEP, and HECA are highlighted as three of the four primary examples demonstrating the "technical feasibility and availability" of CCS.
 Commenter 9666 states that EPA's claim that "it relie[d] on a wide range of information to support the proposed determination," and that "[a]ccordingly, the proposed determination is not `solely' based on information about facilities that received assistance under EPAct05" is a post hoc rationalization. The Agency did in fact rely, contrary to law, on the Kemper, HECA, and TCEP facilities to determine that partial CCS is BSER. Furthermore, it is clear that Kemper, HECA, and TCEP, and not EPA's other evidence, prompted the Agency's policy decisions regarding CCS. EPA cannot by law consider these projects, and the "other information" on which the Agency relies, to support the Agency's proposed BSER determination. Whatever other information shows, EPA's consideration of prohibited projects irreparably taints the proposal and all that is left to consider is not enough to justify EPA's proposed BSER determination.
 Commenter 10618 states EPA has incorrectly determined it can rely on technology used or emission levels achieved at subsidized facilities as long as it has other evidence. EPA states it has used facilities (seven of twelve) that have received funding under EPAct 2005 and Section 48A to determine that CCS is BSER. The commenter points out that the SaskPower Boundary Dam project was highly subsidized by the Canadian government, and the remaining four projects were not coal-fired EGUs or are not integrated commercial-scale CCS projects.
 Commenter 9666 states EPA cannot rely on the other projects cited in the proposed rule and EPAct TSD to demonstrate that CCS is adequately demonstrated for new U.S. coal-fired EGUs either because they are not EGU projects, they are small-scale pilot or demonstration projects, they demonstrate only a single component of CCS, and/or they are heavily subsidized, either with EPAct subsidies or otherwise.
 Commenter 9033 states that all of the facilities mentioned in the rule have received CCPI funding with the exception of Sask, which was highly subsidized by the Canadian government. The commenter also notes that only the Kemper facility demonstrates partial capture, while none other promote this technology.
 Commenter 10618 states that EPA's reliance on federally funded CCS projects to determine adequate demonstration suggest that EPA does not have sufficient evidence from facilities that were not federally funded to make an independent determination that CCS is adequately demonstrated for fossil fuel fired EGUs.
 Commenters 9780 and 10097 state that if EPA is legally able to use CCPI projects to determine if a technology is adequately demonstrated, the projects cited by EPA in the Proposal and NODA do not provide the substantial evidence EPA needs to argue that the proposed CCS BSER determination for fossil-based EGUs and IGCCs is the product of reason decision making.
 Commenter 9664 states that although EPA is able to use subsidized projects, the projects not subsidized provide ample justification for EPA's proposed rule. Commenter states EPA's record amply establishes that integrated CCS systems are now, and will be available for commercial application on coal-fired power plants, and that the component elements of these systems have been in long-standing use in other similar industrial applications in the U.S. and abroad.
 Commenter 10108 states that EPA has focused on projects that demonstrate the technical feasibility of CCS for coal-fired EGUs. In addition to these projects, there are many other non-CCPI funded, large-scale integrated projects and pilot projects in operation or late stages of development that also demonstrate the technical feasibility of CCS.
 Commenter 10098 states that the CCPI funded projects have little history of success.
 Commenter 10239 states the CCPI program and its predecessor, the Clean Coal Technology Program, were both established to fund research and development projects involving clean coal technologies. The projects funded under these programs have been unsuccessful. These projects have proven to suffer from serious delays and financial problems, resulting in the US Government Accountability Office (GAO) stating that these projects "may have difficulty in successfully demonstrating, and ultimately commercializing their technologies." Of the 18 CCPI-funded projects, 4 have been completed and 10 have been withdrawn or discontinued.
 Commenter 9780 states that the Boundary Dam project is supported by significant grant funding from the Canadian government. Commenter also notes that regardless of the funding source, the EPA cannot rely on the Boundary Dam project until it is operational and has provided meaningful data that integration with commercial-scale electricity production is feasible.
 Commenter 10108 states that in determining whether a technology is adequately demonstrated, the EPA may extrapolate from presently available technology. Commenter also states that the components of a system need not be fully integrated to be "adequately demonstrated," and that in a number of different legal contexts, courts have recognized EPA's expertise in determining whether components of a technology are sufficiently demonstrated to mean the technology is demonstrated as a whole. Commenter also states that a system need not always be applied at a source of the type being regulated in order for a system to be "adequately demonstrated," and so EPA may rely on information from other industries when setting standards of performance for EGUs.
 Commenter 10108 states that the evidence supporting EPA's determination that CCS is adequately demonstrated is considerably more extensive than what was available to show the feasibility of emergent technologies that have been identified as the best system of emission reduction in past section 111 new source performance standards (NSPS).
The EPA's response to this comment can be found in sections V.D, detailing the projects upon which the EPA's final determination is based; section V.F of the final rule preamble, discussing the EPA's consideration of performance guarantees and other literature that supports EPA's determination; and sections V.G.1-G.3 of the final rule preamble, discussing the EPA's consideration of the commercial availability of CCS, and the EPA's treatment of small-scale pilot or demonstration projects and projects that demonstrate components of CCS. The EPA believes its BSER determination for fossil-fuel fired electric utility steam generating units is well-supported by an array of facilities, including a number of facilities that were not supported under EPAct05. The EPA notes that, as described in section V.G, commercial scale post-combustion CCS is in fact in use -- successfully -- at the Boundary Dam facility, which is not an EPAct05 facility.  See also preamble section V.E. explaining that pre-combustion CCS is also a demonstrated technology.
Commenter 10662 states that EPA's conclusion that existing coal-fired units prove the economic viability of CCS is disingenuous and based solely on non-operational demonstration projects receiving DOE financial assistance. EPA claims that it considered, in the course of determining BSER, "whether the costs of the system are reasonable." A system which literally does not exist without federal subsidies cannot be claimed to have reasonable costs. It is therefore completely unreasonable to make the leap to a conclusion that the projects not so subsidized by the federal government can either bear the costs of, or even operate with, the imposition of CCS as a mandatory technology. For this reason, the Energy Policy of Act of 2005 prohibits EPA from considering government subsidized projects as justification for a BSER determination.
 Commenter 3176 states without federal incentives and other revenue streams, the high costs would limit CCS funding and development.
 Commenter 10039 notes EPA asserts the large government subsidies being utilized to offset the costs of CCS at several demonstration projects are not indicative that CCS costs are unreasonable. This assertion itself is unreasonable and arbitrary given that no projects have been undertaken in the US without those subsidies and given that the subsidies themselves cover up to 80 % of the costs of the entire demonstration project. Commenter continues if the costs were reasonable, utilities would not need the US DOE funding to justify the costs for these demonstration projects and US EPA would be citing projects without DOE funding instead.
 Commenter 9664 states that EPA although EPA does not rely solely on EPAct05 subsidized facilities, that available cost subsidies improve the reasonableness of the costs associated with the standard. Prior to EPAct05, courts evaluating section 111 standards recognized the use of subsidies to support new and emerging control technologies was "not unusual."  Commenter continues by quoting the proposed rule "Each of the major types of energy used to generate electricity has been or is currently being supported by some type of government subsidy such as tax benefits, loan guarantees, low-cost leases, or direct expenditures . . . ranging from exploration to control installation. This is true for fossil fuel-fired; as well as nuclear-, geothermal-, wind-, and solar-generated electricity."
The EPA notes, as stated in the proposed rule that major types of energy used to generate electricity are routinely the beneficiaries of government subsidies or support. Subsidies provided to facilities employing CCS technology over the past decade are not, in themselves, conclusive that the technology is not or will not be commercially viable. A response to this comment and further discussion of the EPA's evidence for and assessment of the costs of CCS and of the BSER appear in sections V.H and V.I of the final rule preamble, and Chapter 3 of the Response to Comment.
Commenter 9498 states that EPA is precluded from using "next-of-a-kind" costs to assess economic impacts of CCS because facilities undertaking federally-supported demonstration projects represent the "first-of-a-kind" projects that render subsequent projects "next-of-a-kind." Commenter continues that because EPA is precluded from using the use of technology at EPAct05-supported facilities in the first instance, these facilities are not "first-of-a-kind." EPA is precluded from referencing in any way that technology to justify selecting a different point on a "learning by doing" cost-reduction curve.
The EPA respectfully disagrees with this comment. The EPA considered NETL's CCS cost projections, which project future CCS costs in part based on the fact that present-day CCS projects  -  or "first-of-a-kind" facilities  -  exist. NETL's projections do not depend on whether technology at any particular facility is "adequately demonstrated," but merely recognize that first-of-a-kind facilities exist so future projects will be  -  by definition  -  "next-of-a-kind." The EPAct05 provisions limit the EPA's consideration of whether a technology or emission level is "adequately demonstrated," not the EPA's acknowledgement that a project is physically in existence, and so these provisions are not relevant here. Moreover, treating next-of-a-kind CCS projects as first-of-a-kind projects would be factually inaccurate, unreasonable, and contrary to Congressional intent. Congress intended EPAct05 to accelerate development of clean coal technologies by supporting demonstration facilities that could push these technologies towards market. Treating the next generation of facilities as "first-of-a-kind" would be contrary to the goal of advancing market-ready, next generation technology.
Penalties
Commenter 9426 states, EPA proposes to calculate violations for the GHG NSPS by assuming that every operating day represents a violation during any rolling 12- or 84-operating month averaging period for which the 12- or 84-operating month average rate exceeds the limit. Commenter says, the proposal assumes the second highest potential for violations, exceeded only by assessing a violation for every calendar day, regardless of whether the unit operated or not. Commenter says, EPA has not justified this position.
Commenter 9426 states, EPA's proposal to assume that every operating day in a 12- or 84-operating month averaging period that exceeds the limit is unreasonable. Commenter says, EPA has access to emission rate data for every day of operation and can substantiate whether a particular operating day resulted in a violation. Commenter says, the EPA should not assume violations. Commenter says, an alternative approach is to assess only a single violation per compliance period, but it may not assess penalties for days when the unit operated in compliance.
Commenter 9426 states, EPA's method of averaging emissions and then assessing penalties for 12-month periods that exceed the limit is arbitrary. Commenter says, EPA should be wary of double counting the previously enforced violating days and specifically attempts to levy a fine for operating days that were compliant.
Commenter 9514 states, given the large economic benefits that can be accrued from profitable plants, EPA must make the most of its ability to deter violations through penalties. Commenter says, two provisions of the CAA authorize penalties for NSPS violations, Section 113(d)(1) and 42 U.S.C. 7413(d)(1)(B) 40 C.F.R. Part 19.
Commenter 9514 states, the long averaging periods proposed raise concerns regarding penalties and enforcement. Commenter says, compliance determinations should be made daily and that EPA should clarify how penalties would be calculated for sources that do not meet the 95 percent valid data requirement. Commenter says, one possibility would be to assess penalties based on the number of individual operating days in which the 95 percent data requirement was not met. Commenter says, another option would be to assess penalties based on a percentage of the source's annual operating days equivalent to the percentage of operating hours for which the source lacks valid data.
The EPA is not finalizing the proposed 84-month-rolling average compliance period. The final standard of performance must be met over a 12-operating-month rolling average. Specific monitoring and reporting requirements are specified in preamble section X. and in the Rule Language at Table 3 to Subpart TTTT of Part 60 - Applicability of Subpart A General Provisions to Subpart TTTT.
Miscellaneous Legal Issues
2.4.1 General Legal Comments
Commenter 9685 states, these comments are a Petition for Correction pursuant to the Information Quality Act (IQA) to correct the record in all regulatory actions of EPA that either used or cited the SCC2010, SCC2013, or SCC2013r since January 2009.
See response in unit 2.4.2 below.
Commenter 10952 states, the 7th Circuit Federal Court of Appeals in Sierra Club v. U.S. E.P.A. is an important judicial decision that a BACT determination cannot result in source redefinition. Commenter says, the court rejected Sierra Club's contention that BACT for the Prairie State source should require it to utilize low sulfur coal transported by rail instead of the preferred higher sulfur mine month coal. Commenter says, according the court, the need to transport low sulfur coal to the Prairie State would not have redefined the source unless part of the design, part of the source definition as was the case there, included local coal utilization as a fuel resource for the life of the source.
Commenter 9766 states, the proposal violates the well-established waste management hierarchy set forth in the Pollution Prevention Act, which establishes a national policy favoring the prevention or reduction of waste, followed by recycling, treatment, and disposal.
EPA does not accept the premise that section 111 (a) determinations are trumped in some manner by a hierarchy set out in the Pollution Prevention Act.  However, EPA has considered waste generation issues as part of its consideration of nonair quality potential impacts, and reasonably determined that the final standards of performance will not have any adverse effects (and indeed, virtually no effects) on waste generation or management.  See preamble section XIII.D.  See also preamble section V.N.6.c describing EPA's previous disposition of issues relating to waste management under both the RCRA and UIC programs, again accounting for potential issues relating to disposal of captured CO2 in deep saline formations.
Commenter 10030 states, EPA recognized a PSD permit allowing for the construction of the WCEV but Wolverine has publicly announced that it is not currently pursuing development. Commenter says, nearly four years have lapsed between Wolverine's application for a PSD permit and final permit issuance in 2011, authorizing construction of the WCEV. Commenter says, the proposal serves to perpetuate uncertainty as to what GHG emission limitations or other requirements may be applicable to the WCEV through future action EPA intends to take under Section 111(a) and Section 111(d).
See preamble section III.J.
Several important elements of your proposed standard rely heavily or exclusively on the use of the Integrated Planning Model, a proprietary model, instead of public energy models like NEMS. a. How is this consistent with EPA's Scientific Integrity Policy, which states "the use of nonproprietary data and models are encouraged, when feasible, to increase transparency"? b. Was it not feasible to rely on a nonproprietary model?
IPM is a multi-regional, dynamic, deterministic linear programming model of the U.S. electric power sector that the has been successfully used by EPA and private companies for over two decades to evaluate the economic and emission impacts of prospective environmental policies.  The model code is proprietary, but all model input data, structures, and assumptions are public and fully documented (See http://epa.gov/poewrsectormodeling).  The modeling performed by EPA is therefore fully available for public assessment of its use.  Models like NEMS lack important details that are essential to the modeling EPA needs to adequately assess policy initiatives like the CPP
Commenter 3593 states, the proposed rule is unconstitutional as a due process violation of the Fifth Amendment, in the form of a violation of equal protection, because the rule is intended to increase the cost of electricity to those least able to pay. Commenter says, the targets of this inequality are minorities.
The commenter is mistaken on many grounds, including that standards implementing requirements of the CAA involve a taking of property, or a denial of equal protection.  The standards are also not projected to have any significant effect on electricity prices.  RIA chapter 4.
Carbon Capture Sequestration
Commenter 10097 states, the proposal is unlawful because the proposed NSPS for coal-fired generation would "redefine" the source where carbon sequestration infrastructure is unavailable. Commenter says, in circumstances where source definition includes the need to locate the source to fulfill a local need or take advantage of a local resource and that definition includes coal utilization the imposition of the proposed NSPS allowing only carbon capture and sequestration where resources are unavailable to do so would be unlawful as requiring source redefinition.
The commenter is mistaken.  The promulgated standard of performance can be met by any new coal-fired steam electric unit in any area of the country.
Commenter 8971 states, partial capture CCS inappropriately discriminates between regions, states and regions within states. Commenter says, EPA's proposal violates the Commerce Clause by developing rules that can only be met in certain regions of the country and inhibits free flow of interstate commerce.
The commenter is factually mistaken.  The final standard of performance, set at a level reflecting performance of the BSER, can be met by a new coal-burning EGU in any area of the country.
Commenter 9471 states, the preamble discussion does not adequately protect sources from citizen suits alleging that modifications at an existing source trigger applicability of technology associated with the GHG NSPS for new sources under either the NSPS or PSD program. Commenter says, without express regulatory language clarifying that the proposal does not apply to modifications, third parties may attempt to impose the rule on modified units through litigation. Commenter says, EPA should include clear and unambiguous language within the final rule that the performance standard does not apply to modified units under either the NSPS or PSD program.
 The rule is clear as to what sources are covered.
Reliability and Affordability
Commenter 9196 states, it is appropriate and necessary for EPA to take adverse health effects associated with threats to reliability and affordability of power into account for the final rule. Commenter says, the consequences of electricity price increases should lead EPA to reconsider the proposed rule.
EPA has carefully done so.  As shown in RIA chapter 4, the standards are not projected to have a significant impact on electricity prices.
Commenter 9497 states, the proposed standard for new coal-fired power plants has the potential to drastically affect the cost of electricity which is a public health and welfare concern. Commenter says, EPA should recognize the impact the rule may have on electricity costs and commit to reviewing the rule four years after promulgation to give stakeholders an opportunity to comment and the Agency to revise.
See previous response.
Violates U.S. Supreme Court Precedent
Commenter 10786 states, the NSPS violates U.S. Supreme Court precedent on preemption.
The commenter claims that the NSPS is inconsistent with, if not in direct conflict with, State laws and regulations governing EOR generally, Class II primacy, and associated long-term storage via CO2-EOR. UIC Class II wells are typically, but not exclusively regulated by the states. Nothing in the NSPS rule preempts the states' Underground Injection Control primacy in issuing Class II permits. Specifically, reporting under GHG Reporting Program Subpart RR does not preempt the Class II permit issued by the states. See preamble section V.N.5.a and section 6.3 of this response to comments document..
2.4.2 Issues Related to Data Quality Act (Information Quality Act)
Commenter 10870 states, the proposed rule does not comply with multiple requirements of the OMB guidelines implementing the Data Quality Act, both for Highly Influential Scientific Assessments (HISAs) and for other influential scientific information (ISI). Commenter says, these deficiencies must be corrected and the Proposed Rule's technology assessment subjected to independent external peer review and public participation, before the rulemaking can be sent to OMB for review as a final rule.
Commenter 4846 states, if an agency relies on either ISI or a HISA to support regulatory action then it is required to include the administrative record for that action a certification explaining how the agency has complied with the requirements of this Bulletin and the applicable information quality guidelines. Commenter says, EPA did not include the certification and therefore OMB cannot approve the final rule incorporating ISI or a HISA.
Commenter 4846 states, there is no record of EPA complying with the five mandatory peer review tasks set forth by OMB. Commenter says, an unnamed staffer from EPA's Office of Air and Radiation stated to the Science Advisory Board that "the portion of the rulemaking addressing coal-fired power plants focuses on carbon capture and that the regulatory mechanisms for addressing potential risks associated with carbon sequestration are not within the scope of the Clean Air Act. Commenter says, this statement is peculiar because the preamble NPRM preamble states it is based on partial implementation of carbon capture and storage as the BSER. Commenter says, the staffer's assertion also did not cite a specific statutory authority or legal analysis.
Commenter 4846 states that the BSER determination is a highly influential scientific assessment (HISA), as defined in the legally binding OMB bulletin, and that the proposed rule failed to follow peer review procedures mandated for a HISA.  The commenter further characterizes SAB statements and actions as stating that the SAB believed that additional peer review was needed but "the SAB Work Group reversed its recommendation for additional peer review based on the representations made by EPA staff" (Comment p. 10 and n.14). Commenter says, EPA has not explained how their BSER determination does not meet OMB's definition of a HISA. Commenter says, the SAB believes the agency's CCS determination requires external peer review. Commenter says, after the specific instances of EPA non-compliance with peer review requirements are identified, the next step is to identify the relevance, if any, to the rulemaking from the lack of peer review.
Commenter 4846 states that EPA has violated a specific rulemaking requirement established by OMB in the peer review bulletin; discussing the peer reviewers' report in the NPRM. Commenter says that EPA is substantively out of compliance with minimum acceptable peer review standards and any EPA final rule promulgated prior to agency completion of their peer review duties would not be legally valid because it would violate mandatory requirements of the OMB Guidelines (p. 3).  Among the binding requirements which the comment states have been violated are: not sponsoring an independent external peer review of the CCS technology assessment, not sponsoring a public meeting with the peer review panel and allowing public comments to be made to the peer reviewers, not preparing a public charge to peer reviewers, the obtaining a peer review report that will be made public and responding to same, that the individual peer reviewed studies and data cited in the proposed rule and record thereto are not substitutes for these mandatory requirements.  The commenter further stated that EPA is "also violating the peer review policy guidance in its Peer Review Handbook (Comment p. 4).
Commenter 4846 states, EPA should link to or otherwise cite the CRE audit report in its GPRA Modernization Act of 2010 Summary of Findings report to be delivered to OMB by May 16, 2014. Commenter says, EPA should initiate the public, participatory peer review activities mandated by OMB and the DQA. Commenter says, following the completion of their peer review duties, EPA should publish a Further Notice of Proposed Rulemaking requesting comment on the peer review report.
In comments to the Notice of Data Availability and accompanying TSD, Commenter 4846 states that EPA's TSD reiterated that the BSER determination for CCS was based "on a review of existing projects that implement CCS, existing projects that implement various components of CCS, planned CCS projects, and scientific and engineering studies of CCS." Commenter says there are two conclusions from EPA's NODA and TSD: 1) EPA has further documented that their BSER determination is a HISA; and 2) EPA responds to substantive legal challenges to this rulemaking prior to drafting the final rule.
The commenters' view of the applicable law is mistaken. The Information Quality Act (IQA), sometimes referred to as the Data Quality Act, was enacted in 2000 and directed the Director of the Office of Management and Budget (OMB) to issue guidelines providing policy and procedural guidance to ensure and maximize the quality, objectivity, utility, and integrity of information disseminated by federal agencies. Each federal agency was then required to issue its own guidelines modeled after those issued by OMB. The IQA does not, by its terms, create a legal right of action. Salt Inst. v. Leavitt, 440 F. 3d 156, 159 (4th Cir. 2006); see State of Mississippi v. EPA, 744 F.3d 1334, 1347 (D.C. Cir. 2013) (citing Salt Inst. approvingly);  Mississippi Comm'n on Environmental Quality v. EPA, No. 12-1309 at 84 (D.C. Cir. June 2, 2015) noting that "almost every court that has addressed an Information Quality Act challenge has held that the statute `creates no legal rights in any third parties'"(quoting Salt Institute)), and holding that "[t]he purpose of the Information Quality Act is to `ensure and minimize the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies' and does not constitute a statutory mechanism by which the EPA's conclusions reached while making its nonattainment determinations can be challenged" (emphasis original)OMB published its flexible, government-wide guidelines on February 22, 2002. EPA issued its Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by the Environmental Protection Agency (IQGs) in October 2002, to provide non-binding policy and procedural guidance to achieve the purposes of the IQA. EPA has fully adhered to the guidance of the IQA.
Under the IQGs, EPA ensures and maximizes the quality of information it disseminates by implementing well established policies and procedures within the Agency, such as the Agency's Peer Review Policy, as appropriate to the information. Consistent Agency-wide implementation of peer review has been an EPA priority for many years. EPA first issued its Peer Review Policy in 1993, and in 1998 issued its Peer Review Handbook to provide non-binding guidance for implementation of the Peer Review Policy. In 2004, OMB issued its Final Information Quality Bulletin for Peer Review (OMB Bulletin) to provide government-wide guidance to enhance the practice of peer review. EPA subsequently updated its Peer Review Policy and Peer Review Handbook to incorporate the provisions of the OMB Bulletin. EPA's IQGs, Peer Review Policy, and Peer Review Handbook do not bind the Agency, but instead guide EPA's exercise of discretion when making decisions about information quality and peer review. API v. EPA, 684 F. 3d 1342, 1348 (D.C. Cir. 2012); State of Mississippi v. EPA, 744 F.3d at 1347 (D.C. Cir. 2013).

The commenters' argument  that EPA's determination regarding the best system of emission reduction (BSER) in reference to carbon capture and storage (CCS) technology is a highly influential scientific assessment (HISA) as defined by the OMB Bulletin and Peer Review Handbook further demonstrates a misunderstanding of the CAA. Section 111(a) and (b) require EPA to set technology-based standards for new stationary sources reflecting performance of BSER that the Administrator determines has been adequately demonstrated. Consistent with the CAA and decisions of the D.C. Circuit, EPA considered statutory factors including the feasibility, amount of emissions reductions, costs, nonair quality impacts, and energy implications when developing its proposed BSER determination. EPA's consideration of these factors was informed by existing projects where CCS technology or its components are deployed, by studies prepared by the Department of Energy's National Energy Technology Laboratory (NETL) and Pacific Northwest National Laboratory (PNNL), and by the work of the 2010 Interagency Task Force on CCS.

EPA explained its proposed BSER determination in the NPRM as a component of its regulatory action proposing performance standards to limit emissions of carbon dioxide (CO2) from new fossil fuel-fired electric utility generating units. EPA disagrees with the commenters' suggestion that EPA's consideration of CCS projects or studies of CCS technology in the exercise of its statutory rulemaking authority is a "HISA" within the meaning of the OMB Bulletin and Peer Review Handbook. The Peer Review Handbook explains that regulations and decision documents such as the proposed BSER determination are not themselves subject to the Peer Review Policy. EPA Peer Review Handbook, 3d Ed (EPA/100/B-06/002) pp. 15, 29. Thus, the commenters' claim that the proposed rule and preamble are HISAs is not correct.

The commenters further argued that a Technical Support Document issued by EPA in January, 2014 is a HISA. That document describes which currently operating or partially constructed facilities utilizing some type of CCS have received DOE grants or IRS tax credits under the Clean Coal program of the EPAct2005, and contains legal arguments as to the interpretation of provisions in that statute. Descriptions of which facilities are in existence, what monies they received, and potential legal interpretations of statutory text is not a scientific assessment. The TSD also noted that two operating facilities (Boundary Dam in Canada, and Dakota Gasification in North Dakota) showed that CCS was adequately demonstrated, again, a legal conclusion and not a scientific assessment. The TSD thus likewise is not a scientific assessment.

Further, CAA section 111(a) and (b) require the Administrator to establish standards of performance reflecting performance of the best system of emission reduction which has been adequately demonstrated. Subjecting the Administrator's BSER determination to further review would have the panel making a determination of the proper weighing of statutory factors -- feasibility, cost, nonair impacts, and energy requirements -- that are the Administrator's exclusive province.

Significant facts omitted from these comments demonstrate that EPA behaved reasonably when it considered available information concerning CCS technology in the development of this action.  The SAB Work Group found that "while the scientific and technical basis for carbon storage provisions is new and emerging science, the agency is using the best available science and has conducted peer review at a level required by agency guidance." Memorandum of Jan. 7, 2014, from SAB Work Group Chair to Members of the Chartered SAB and SAB Liaisons, p. 3. The letter was subsequently endorsed by the full SAB. Work Group Letter of Jan. 24, 2014, as edited by the full Committee. The Work Group likewise found that the DOE's NETL materials, which were key documents supporting the proposed BSER determination, had been fully peer reviewed, and that the DOE peer review procedures satisfied the EPA Peer Review Handbook. Id. The SAB's letter to the Administrator, dated January 29, 2014 and referred to in the comment, and in which the SAB expresses its "strong view ... that a regulatory framework for commercial-scale carbon sequestration that ensures the protection of human health and the environment is linked in important systematic ways to this rulemaking" and that "[r]esearch and information from the EPA, Department of Energy, and other sources related to carbon sequestration merit scientific review," should be read in context -- EPA's determination reflected the "best available science," and was based on record materials that had been peer reviewed consistent with applicable guidelines of both DOE and EPA.

Moreover, there is a plenary, health-based regulatory system in place for geologic sequestration of CO2 at commercial scale, the Class VI permitting standards for geologic sequestration of CO2, issued pursuant to the Safe Drinking Water Act. These standards were adopted after robust notice-and-comment rulemaking, and reflected peer review of critical issues. Thus, in developing the Class VI rules, EPA engaged with the SAB, providing detailed information on key issues relating to geologic sequestration -- including monitoring schemes; methods to predict and verify capacity, injectivity, and effectiveness of subsurface CO2 storage; and characterization and management of risks associated with plume migration and pressure increases in the subsurface. In addition, EPA developed a peer reviewed Vulnerability Evaluation Framework, which served as a technical support document for both the Class VI and Subpart RR rules.

When it appeared that the SAB Workgroup was not aware that these Class VI standards existed and did not recall the EPA's prior presentation to the SAB on development of the geologic sequestration program, EPA staff correctly informed the SAB Workgroup that issues of geologic sequestration of CO2 were not within the scope of the section 111 rulemaking because the regulatory regime for control has already been established pursuant to a different statute. The commenter is consequently mistaken in its suggestion (or, perhaps more accurately, its mistaken innuendo) that there was any attempt by EPA to circumvent SAB review here.

Looked at more broadly, the proposed rule was an ordinary exercise of rulemaking authority, typical of similar exercises of authority, to develop technology-based standards considering such issues as cost, feasibility, and collateral impacts. The environmental statutes contain many such provisions. See e.g., CAA sections 112(d), 202(a), and 213(a); CWA sections 301(b), 304(b), and 307(b). In exercising that authority here pursuant to CAA section 111 (a), the Administrator reasonably relied on record evidence, including evidence said by the SAB to represent "the best available science." The EPA thus believes that our actions here are fully in accord with the policies of the IQA and the terms of EPA's Peer Review Handbook. In addition, EPA does not accept the necessary implication of the comments that every rulemaking establishing a technology-based standard involves "scientific assessments" or "highly influential scientific assessments."
Commenter 9686 states EPA should request that EIA, not its consultants, run all of the analysis related to power plant rules, including the current rule. This will assure the arms-length independence required by the IQA.
This comment lacks merit.  The IQA says nothing about use of contractors.  What matters is the quality of data used, which is not a function of contractor support or lack thereof.
NODA and TSD Legal Justification
Commenter 5156 states, EPA did not include a statement of basis and purpose and did not include all data, information, and documents in the docket on which the proposed rule relies. Commenter says, the NODA and TSD's full legal justification was released more than halfway through the proposal's comment period ending March 10, 2014. Commenter says, these documents contain new technical and legal representations not previously seen and EPA failed to comply with notice and comment requirements.
The commenter is evidently mistaken regarding lack of notice, given its own responsive comments on the issue, which EPA has considered carefully.  Furthermore, although the Act requires information and legal interpretations to be placed in the public docket at the time of proposal, there are no provisions in section 307 (d) stating that EPA is forbidden to seek further comments on emerging legal and factual issues, and indeed, seeking further comment is generally encouraged as a sound exercise of rulemaking authority.  See, e.g. Small Refiner Lead phase-Down Task Force, 705 F. 2d at 540, 547.
Commenter 5156 states, the simultaneous comment deadline for the NODA and TSD provides insufficient time for stakeholders to analyze and formulate comments. Commenter says, a deadline of March 10, 2014 is not enough time for states and stakeholders to draft comments on the proposed NSPS, as well as the NODA and TSD.
The many thousands of comments on these issues, which are robust, and multi-faceted, confirm the adequacy of the time period afforded for public comment here.  It is also to be remembered that many of the issues raised in this proceeding were already the subject of intense public comment.  See 77 FR 22392.  So commenters were not only deeply familiar with the issues involved in the proceeding, but had already submitted comments regarding those issues.  This deep familiarity, and multiple comment opportunities, further illustrates the reasonableness of the time afforded for public comment.
Commenter 5156 states, failure to comply with section 307(d) places any final rule in legal jeopardy. Commenter says, to comply with section 307(d), EPA must withdraw and re-propose the proposed NSPS so that major legal interpretations and policy considerations in the NODA and TSD are "included in the docket on the date of publication of the proposed rule." Commenter says, if EPA declines to re-propose the NSPS then the comment deadline should be extended to 90 days after publication of the NODA in the Federal Register.
The TSD contained no information not already presented and docketed at proposal.  It analyzed the same facilities and projects where CCS, or components thereof, are presently in actual or planned operation, and presented no additional information about the performance of the technology.  So commenters were afforded a second opportunity to comment further on the same information they addressed in their comments to the proposed rule.
Commenter 5156 states, the new May 9 comment deadline for the complete proposal still provides insufficient time for stakeholders to meaningfully analyze and formulate comments. Commenter says, unless the proposal is withdrawn and reissued, it risks being overturned on these grounds.
The fact that these, and many other, commenters submitted robust comments to the NODA and accompanying TSD indicates that these commenters had adequate opportunity for comment of which they took full (and appropriate) advantage.  Moreover, the TSD contained no information not already presented at proposal.  It analyzed the same facilities and projects where CCS, or components thereof, are presently in actual or planned operation, and presented no additional information about the performance of the technology.  So commenters were afforded a second opportunity to comment further on the same information they addressed in their comments to the proposed rule.
GPRA Modernization Act Science Quality Commitment
Commenter 4846 states, it is the DQA which sets the peer-review related procedural science quality requirements that EPA must comply with while the GPRMA sets the reporting requirements for EPA to inform OMB and Congress on their progress in achieving their science-related and other performance goals. Commenter says, because the science quality standards and the reporting requirements are contained in different statutes and are implemented through different instrumentalities, enforcement is through two different OMB components, the Office of Information and Regulatory Affairs (OIRA), which is responsible for the DQA, and the Natural Resources Division which is responsible for EPA's implementation of GPRMA.
Commenter 4846 states, EPA should include a hyperlink or citation to the CRE Audit Report in the FY 2014 Summary of Findings delivered to OMB by May 16, 2014. Commenter says, including the Audit Report to OMB is important since Sec. 1116(f) of the GPRA Modernization Act requires that OMB "shall determine whether the agency programs or activities meet performance goals and objectives outlined in the agency performance plans and submit a report on unmet goals to the Administrator, relevant Congressional committees, and to GAO." Commenter says, the program appraisal process is important because its goals include holding specific federal officials responsible for the agency's performance of its duties.
 As explained in responses above, EPA's rulemaking is consistent with both the letter and purpose of the DQA.  Moreover, commenter 4846's comment is premised on a considerable amount of mistaken information, again as discussed above.
Conflicts of Interest
Commenter 3593 states, there are many conflicts of interest in the current and recent leadership at EPA, mainly from former employees of environmental pressure groups that lobby the agency. Commenter says, EPA's failure to recuse from all advisory and decision-making activities those individual with clear conflicts of interest impeaches impartiality by EPA in the proposal of this rule. Commenter says, the proposed rule is invalid and must be conducted free of such conflicts. Commenter says, with conflicts of interest there is the potential for predetermination on the policy established in the proposed rule. Commenter says, this predetermination makes the decision arbitrary and capricious and should invalidate the rulemaking.
Commenter 3593 states, EPA colluded with members of environmental groups to achieve a predetermined outcome, the end of the coal industry. Commenter points emails demonstrating the coordination between environmental groups and EPA prior to the rulemaking.
Commenter 3593 states, EPA chose locations to hold public hearings that would garner the most favorable audience for the regulation. Commenter further details the potential reasoning behind each hearing location.
Commenter 3593 states, EPA colluded with environmental groups to shield regulations from Congressional review. Commenter says, evidence of predetermined goals requires EPA to start over and begin any similar rulemaking anew.
These comments are incorrect and insulting.  The EPA's decisions reflect the highest levels of disinterested, objective decision making, reflecting the Agency's best assessments based on applicable law and science.  As part of that process, agency representatives routinely seek out the widest gamut of stakeholders to solicit both their views and hard information.  This is important not only so that EPA acts based on best possible and most representative information, but also so stakeholders fully participate in the administrative process.  The EPA operates as part of a democracy, and the views of the public, and interested stakeholders, furthers both agency decisionmaking and the democratic process.  As part of that process here, the EPA met with industry representatives, representatives of states, environmental stakeholders, held multiple public hearings, and otherwise sought the widest outreach feasible.  This is appropriate and desirable, as just stated.  See also such cases as Lead Industries 647 F. 2d 1130, 1175-80 (D.C. Cir. 1980) and Marine Shale Processors v. EPA, 81 F. 3d 1371, 1384-85 (5[th] Cir. 1996) (illustrating legal criteria for finding impermissible conflicts of interest in agency officials, and how far these unsupported and inaccurate comments are from satisfying those legal standards).
Public Record
Commenter 3593 states, EPA's rulemaking record is incomplete due to the use of private email accounts to conduct official correspondence. Commenter says, EPA should conduct a review to determine how extensive the use of non-official email accounts was by officials materially involved in the rulemaking. Commenter says, when federal employees correspond on work-related issues on non-official accounts, they are required to copy their office. Commenter says, EPA must satisfy all obligations to fully inform the National Archivist and assist with all prescribed Archivist and Agency steps in response to that required reporting and diligently work to ensure the record is as close to being complete as possible.
Commenter 3593 states, this practice evades but does not, as a legal matter, defeat federal record-keeping and other transparency requirements relevant to the proposed rulemaking found in the APA, CAA, Federal Records Act, or FOIA. Commenter says, correspondence moved "off-line" from the official, required channels are still potential agency records and/or federal records, and possible candidates for inclusion in the rulemaking record.
Commenter 3593 states, work-related emails sent and received on non-official accounts have been removed from defendant federal agencies since the agencies lack access to or control of records which should by law be in their possession. Commenter says, in addition to its obligation to enforce law and policy requiring the agency to obtain all relevant correspondence and docket it as appropriate, EPA has the obligation to report the discovery of this process to the National Archivist. Commenter says, EPA arbitrarily and capriciously refused to comply with the requirements of statutory and regulatory record-creating and record-keeping regimes. Commenter says, EPA failed in its obligation to establish safeguards against the removal or loss of records and making requirements and penalties known to agency officials and employees.
Commenter 3593 states, like email, text messages can be federal records and under the FOIA EPA must preserve and release messages relating directly to work. Commenter says, the proposed rulemaking is improper without the release of relevant text messages and the rulemaking must be stayed until remedial steps are fulfilled.
 Commenter 3593 states, this rulemaking should be stayed until remedial steps are taken to ensure the integrity of this rulemaking record. Commenter says, EPA must take corrective action to bring the Agency's record into compliance and to report the possible loss of records to the National Archivist. Commenter says, EPA must also satisfy all obligations to assist with prescribed Archivist and Agency steps in response to required reporting and make efforts to retrieve records.
 Commenter 3593 states, EPA's pattern of not preserving records violates the Federal Records Act and illegally denies the public access to records covered by the FOIA, 147 is arbitrary and capricious action that violates the Administrative Procedure Act (APA), 5 U.S.C. paragraph 704, et seq., and it leaves a record that is not subject to proper review or sufficient to support the proposed rulemaking.
EPA's rulemaking record is fully compliant with all applicable requirements of CAA section 307 (d).