Chapter 2
Legal Issues
Contents
2.1	EPA Authority to Propose and Promulgate Rule	2
2.1.1 EPA Does/Does Not Have Authority Under CAA 111	30
2.1.2 EPA Should/Should Not Regulate Through NSPS	35
2.1.3 EPA Has a Legal Responsibility to Address Greenhouse Gas Emissions Under CAA 111	43
2.1.4 Requirements Under CAA 111	51
Adequately Demonstrated	58
Achievable	71
Consideration of Factors for Best Adequately Demonstrated System	76
Selection of a Technology as BSER to Promote Technological Development	92
2.1.4 Promulgation of Rules Not Proposed	100
2.1.5 Application of BSER	104
2.2	Consideration of Proposed CCS Projects Under EPAct	113
2.2.1	EPAct Bars Consideration of the Proposed CCS Projects	113
2.2.2	Statutory Analysis and Interpretation	115
2.2.3 EPAct Legislative History and Purpose	126
2.2.4 Factual Support from EPAct Facilities	131
2.3	Penalties	134
2.4	Miscellaneous Legal Issues	135
2.4.1 General Legal Comments	135
Carbon Capture Sequestration	136
Reliability and Affordability	137
Violates U.S. Supreme Court Precedent	137
2.4.2 Issues Related to Data Quality Act (Information Quality Act)	138
NODA and TSD Legal Justification	143
GPRA Modernization Act Science Quality Commitment	144
Conflicts of Interest	144
Public Record	145

EPA Authority to Propose and Promulgate Rule
Commenter 10389 supported EPA's efforts to promote a more efficient electric generating fleet. Commenter further stated that the right policy framework will promote the deployment of innovative technologies which conserve resources, reduce costs, and increase efficiency. This will benefit our customers, the environment and our company.
The EPA acknowledges the commenter's support.
Commenter 1974 stated that as EPA works to control carbon dioxide emissions, it is important for the country to recognize that we need to repower our country, independent of concerns over climate change or the other pollution issues related to coal. Coal is non-renewable and the "200 year" supply concept is flat wrong because EIA has never analyzed that assessment of our coal "reserves" to see if they truly are economically recoverable.
The EPA appreciates the concern expressed by the commenter. However, the purpose of this rulemaking is to control emissions of CO2 from fossil fuel-fired EGUs. The purpose is not to repower the country. The EPA notes in the proposal and in the final preamble that the country, for a variety of reasons, has been moving away from power production using coal and toward more use of natural gas and renewable energy sources. The standards in this final action are not affect that trend in any way.
Commenters (3593, 5631, 8971, 9396, 9423, 9684, 9734, 10046, 10391, 10662 and 10788) stated that the EPA's partial CCS requirement for coal plants will in effect serve as a ban to new coal plants in the U.S. Commenter further stated that the EPA provides no analysis or discussion of the very serious repercussions economic, energy security, reliability - of essentially banning new coal plants in the U.S. and increasing reliance on natural gas.
The final standards in this action do not ban new coal plants in the U.S. As the EPA has shown in Section V. H. and I. of the preamble, utilities and project developers can construct new coal-fired steam generating units that meet the final standard of performance at a reasonable cost.
As the EPA has stated in Section II.C. of the final preamble, the U.S. electricity sector is undergoing a period of intense change. Fossil fuels  -  such as coal, natural gas, and oil  -  have historically provided a large percentage of electricity in the U.S., with smaller amounts provided by other types of generation including nuclear, and renewables such as wind, solar, and hydroelectric power. Coal has historically provided the largest percentage of the fossil fuel generation.  However, in recent years, the nation has seen a sizeable increase in renewable generation such as wind and solar, as well as a shift from coal to natural gas.
The EPA also noted that these trends are also apparent in publicly available integrated resource plans (IRPs). The EPA reviewed publicly available IRPs from a range of companies (e.g., varying in size, location, current fuel mix), and noted that the plans are generally consistent with modeling projections from the EIA and the EPA. The IRPs indicate that companies are focused on demand-side management programs to lower future electricity demand and are mostly reliant on a mix of new natural gas-fired generation and renewable energy to meet increased load demand and to replace retired generation capacity. These trends are unaffected by the standards of performance in this final rulemaking.
Still, many of the IRPs highlight the value of fuel diversity and include options to diversify new generation capacity beyond natural gas and renewable energy. Several IRPs indicate that companies are considering new nuclear generation, including either traditional nuclear power plants or small modular reactors, and a smaller number are considering new coal-fired generation capacity with and without CCS technology. Based on these IRPs, the EPA acknowledges that a small number of new coal-fired power plants may be built in the near future. The standards that the EPA is finalizing in this action will allow those sources to be built and operated at a reasonable cost while reducing CO2 emissions to a level reflective of performance of the best system of emission reduction.
Commenter 10097 stated that it is inconsistent with CAA Section 111 to promulgate a NSPS that for technical or economic reasons precludes new sources from locating in many parts of the country. Commenter further stated that in fact the judicial holdings EPA cites to support this contention are either inconsequential or stand for just the opposite.
EPA does not accept this comment's factual premise.  As shown in section V.M of the preamble to the final rule and in a Technical Supporting Document on Geographic Availability (available in the rulemaking docket, EPA-HQ-OAR-2013-0495), there is ample sequestration capacity in areas of the country.  Further, there is substantial capacity for sequestration via EOR in many areas of the country, with expanding pipeline networks to further those opportunities. The commenter does not indicate that new capacity is likely to be located in any of the country's remaining areas, but in the event of such possibility, a plant could utilize an alternative form of compliance not involving sequestration.  Consequently, the EPA believes that a new coal-burning EGU meeting the promulgated NSPS could be sited anywhere in the country.  Thus, although the EPA disagrees with the commenter that section 111 must allow a new plant to be sited anywhere (particularly given the choice of a new plant as to where to locate), the issue appears to be moot given the facts above.
Commenters (5599 and 10097) stated that the proposed NSPS for coal-fired EGUs requiring carbon capture is not supported by the existing state of carbon capture technology as applied to EGUs, and EPA does not have the discretionary authority to impose it.
Commenters (5599, 9317 and 9497) stated that the EPA points to four plants that will employ Carbon Capture and Storage (CCS) technology to some limited degree. Commenters further stated that none of these plants are in-service as of the date of this proposal. Commenters further stated that these CCS projects are still on the drawing board or in some early stage of construction. Commenters further stated that the Kemper County plant in Mississippi, the Summit Power Project in Texas, the Hydrogen Energy Project in California and the Boundary Dam Project in Canada are the projects EPA cites as successful examples of partial CCS programs. Commenters stated that the Mississippi project is over budget by almost $1 billion at this time and its target on-line date in 2014 is in question, this CCS project will not store CO2 but be used for enhanced oil recovery which is very limited in its applications throughout the country and hence is not truly a pure CCS application.
 Boundary Dam Unit #3 is a full-scale commercial coal-fired EGU that is utilizing full (90 %) post-combustion CCS technology that is directly transferable to other new fossil fuel-fired EGUs.  The EPA believes that both post-combustion carbon capture and pre-combustion capture technologies  -  and the compression, transportation and storage of captured CO2 are technically feasible, and adequately demonstrated, within the meaning of section 111 of the Act. See section V.D and E of the preamble to the final rule.
Commenters (5599 and 10046) stated that the US Court system has long held that the regulation of electric power generation is the function of each state. Commenters further stated that the Federal agencies (such as the EPA) have the obligation to respect the rights of the states unless Congress specifically specifies that the agency has been granted such rights.
The promulgated NSPS regulates emissions of a pollutant from a source category listed as causing or contributing significantly to air pollution which may reasonably be anticipated to endanger public health or welfare.  EPA is granted authority to issue such regulations under section 111 (b) of the Act, and has done so since 1972.
Commenter 9195 stated that the EPA disregarded the law requiring independent scientific review and adopted an energy policy that ignores technical and practical realities. Commenter further stated that the NSPS fundamentally obscures the state of technology and rejects sound energy policy.
The promulgated standard of performance is based on a best system of emission reduction which is adequately demonstrated.  See preamble section V.  Issues related to data quality are addressed below in section 2.4.2.
Commenter 9195 stated that the EPA has an obligation to provide industries as well as Congress and the public clarity on its plans. Commenter asks following questions to the EPA:
a. Can you tell us if EPA has ruled out greenhouse gas regulations on any of these sectors? If so, which ones, and of the remaining sectors that you do plan to regulate, which ones will be first?  b. What are the implications of this new definition of the "Best System of Emission Reduction"? Might it be used in other rules?  c. Can you assure us that outside groups will not have the power to force the Agency to require CCS in other contexts?
Technology-based standards for one industry sector are generally not precedential for any other industry sector.  Portland Cement Ass'n v. Ruckelshaus, 486 F. 2d 375, 389 (D.C. Cir. 1973); Sierra Club v. EPA, 353 F. 3d 976, 986-87 (D.C. Cir. 2004) (per Roberts J.).  Consequently, the EPA does not view the final standards for coal-fired EGUs as establishing some type of binding administrative precedent for other industry sectors.
Commenter 9195 stated that under the law, the advice of scientific experts is a pre-requisite, not an afterthought. Specifically, the Environmental Research, Development, and Demonstration Authorization Act of 1978 (ERDDAA) establishes the Science Advisory Board (SAB) as an independent body charged with providing advice to Congress and the EPA. Commenter questions the EPA, How, when, and in what manner has the Agency considered the advice of the SAB?
As noted in response 2.4-2 below ("Data Quality Act responses"), the SAB workgroup considering whether to review the proposed rule stated that the agency was acting based on the "best available science" in its consideration of issues relating to sequestration.  The same Workgroup found that the NETL studies utilized by EPA were properly peer reviewed under both DOE and EPA peer review recommended procedures.
Commenter 9195 further stated that this Committee is familiar with the communications between the Science Advisory Board and the Administrator as well as the meetings held in December 2013 and January 2014 addressing CCS. Commenter also stated that the EPA staff who spoke on your behalf at the December 4-5, 2013 meeting said that looking at sequestration was outside their statutory obligation since other EPA programs would handle the storage or sequestration of the CO2. Commenter asks following questions to the EPA:
Comment 2.1-10a: Please explain how future power plants would be permitted for CO2 injection in parts of the country where EOR is not an option.
 Response 2.1-10a: The Class VI UIC standards provide the applicable regulatory framework.  The EPA has issued construction permits implementing these standards to two applicants to date seeking such permits.  See preamble section V.M.
Comment 2.1.10b: What portion of the storage costs and liability will EPA be willing to subsidize? How did EPA assess these costs?
Response 2.1-10b:  Financial responsibility (including for post-closure care) is required under the Class VI standards.  Permittees pay these costs, and did so in the case of the construction permits issued to date under the Class VI program.
Comment 2.1-10c: The NSPS proposal notes that UIC Class VI wells are an option. How many final Class VI permits has the agency granted to date?
Response 2.1-10c:  The EPA has issued two permits for six wells.
Comment 2.1-10d: Why was the SAB instructed to ignore sequestration issues?
Response2.1-10d:  The SAB was properly informed that there is an existing, already promulgated set of standards for sequestration of anthropogenic CO2.
Comment 2.1-10e: How can the Agency both rely on the benefits of EOR sales for making a CCS system less expensive, and incorporate new storage requirements in the rule (Subpart RR) while simultaneously denying that CCS includes the storage half of the system?
Response 2.1-10e:  First, EPA has chosen a highly conservative means of assessing costs here by assuming that no EGU will utilize EOR (although experience would indicate otherwise, as with the Boundary Dam and Kemper sources).  Second, the BSER is utilization of partial CCS, which includes secure delivery of captured carbon to an entity complying with either the subpart PP or RR GHG reporting and monitoring requirements.  Finally, as an aspect of considering non-air environmental impacts of the standards (see CAA section 111 (a)(1)), the EPA considered the efficacy of the Class VI and Class II UIC regulatory program to safely sequester CO2 so that CO2 is not re-released to the ambient air or contaminate underground sources of drinking water  As explained in detail in  section V.M   of the preamble to the final rule, these standards reasonably provide that assurance.
Commenter 9195 stated that at the January 21, 2014 SAB meeting, held by conference call, the EPA had speakers or witnesses from at least three utilities that discussed how CCS would not be feasible in their states for a number of reasons. Commenter asks following questions to the EPA:
a. Does the Agency dispute the information presented by these witnesses or any others presented at this meeting?  b. Did EPA encourage the SAB to consider these comments? Why or why not?  c. Was EPA aware of the legal obstacles utilities face in many states?  d. Does EPA have the power to address these legal problems?  e. How did EPA factor in these obstacles?  f. What economic analysis did EPA undertake to understand the potential impacts of these practical and legal obstacles?

As described fully in section 2.4.2 above, the SAB indicated that EPA's approach to sequestration reflected best available science.  Detailed discussion of issues related to sequestration availability and safety are found in sections V.M and N to the preamble to the final rule.  In short, many issues of legal status (post-closure care, for example) are addressed and obligations specified by the Class VI permitting rules.  Other issues regarding individual property rights are site-specific and must be resolved case-by-case.  EPA's estimates of costs include estimates for situations where land or sub-surface pore acquisition proves to be necessary.  The six Class VI construction permits issued by EPA to date indicate that sources may be permitted and can surmount potential site-specific issues.
Commenter 9195 stated that at a hearing before the House in February 2014, DOE Deputy Assistant Secretary for Clean Coal, Dr. Julio Friedmann, testified that requiring CCS technologies at new coal-fired plants could dramatically raise the cost of electricity for consumers. Dr. Friedmann testified that for so-called first generation technologies, there would be "something like a 70 to 80 percent increase on the wholesale price of electricity." Dr. Friedmann added that "It is in fact a substantial percentage increase in the cost of electricity." Commenter asks following questions to the EPA:
Comment 2.1-12a: Does the EPA agree with that statement?
 Response 2.1-12a: Under Secretary Friedmann's testimony addressed full CCS.  EPA did not propose a standard reflecting performance of full CCS, and is not adopting a final standard based on performance of full CCS.  EPA's consideration of costs of the BSER, and the standard generally, are set forth in preamble section V.H.  EPA projects virtually no effect on electricity prices as a result of the promulgated standards.  See RIA chapter 4.6 (no significant macroeconomic effects of standards).
Comment 2.1-12b: Does the NSPS proposal align with that assessment? Why or why not?
Response 2.1-12b: As just stated, it does not because the standard is not based on performance of full CCS.
Comment 2.1-12c: Is a 70 to 80 percent increase on wholesale power prices acceptable to the EPA?
Response 2.1-12c: EPA rejected full CCS as BSER for reasons of excessive cost.  See preamble section V.P.2.
Comment 2.1-12d: How did EPA model the economic impacts of such an increase?
Response 2.1-12d: EPA does not view the new source performance standards as having a significant effect on energy prices over those that would occur in the absence of the rule.
Commenter 9195 asks following questions to the EPA:

Comment 2.1-13a: Can you provide any other example of a technology required by EPA CAA section III regulations where the technology was not yet used on a commercial basis?
 Response 2.1-13a:  Full CCS is used on a commercial basis, at, among other sites, Dakota Gasification and Boundary Dam.
 Comment 2.1-13b: EPA is explicitly required to consider cost in determining the best system of emission reduction. By EPA's own estimate, adding CCS to a new coal-fired power plant adds somewhere between 60% and 80% to the total cost of the plant. How does this compare to the percentage increase in costs imposed by other control technologies EPA has required in the past?
 Response 2.1-13b: See above.  This question assumes full CCS which is not the basis for the promulgated standard.
 Comment 2.1-13c: Would it be fair to say the costs for compliance with this single requirement would exceed the combined cost for all other CAA technologies required by EPA on new coal-fired power plants?
 Response 2.1-13c: This would not be a fair statement.  See preamble section V.H.4 in particular.

Commenter 9195 stated that the EPA appears to suggest that the legal framework for making BSER determinations changes based on the current economics of different fuel options. Commenter asks following questions to the EPA:

Comment 2.1-14a:.Is this EPA's legal position? If so, on what authorities does this legal rationale rely?
 Response 2.1-14a: The statute does not specify how EPA is to consider costs or energy requirements.  EPA believes it is reasonable to rely on projected economic data, including fuel prices, out to 2022 (the year the 8 year period mandated for review of NSPS) based on the Energy Information Agency official governmental price estimates used government- and private sector-wide, as well as EPA's modeling of the electricity sector.
 Comment 2.1-14b: Are there other variables that EPA believes would impact the factors the Agency considers in making a BSER determination?
 Response 2.1-14b: See preamble section III.H.
 Comment 2.1-14c: To what extent is cost a determining factor?
 Response 2.1-14c: See in addition, preamble section V.H.2.
 Comment 2.1-14d: What assumptions were made about the cost of natural gas and coal? Was this done regionally or does EPA assume that prices are uniform nationally?
 Response 2.1-14d: See RIA chapter 4 in particular.
 Comment 2.1-14e: At what price does coal power become competitive or advantaged over natural gas?
 Response 2.1-14e: Only at natural gas prices above $10/mmBtu does the levelized cost of a representative coal-fired unit fall below the levelized cost of a representative natural gas combined cycle unit. See RIA Chapter 5.
 Comment 2.1-14f: Have prices changed since the initial release of this proposal in September of 2013?
 Response 2.1-14f: The Energy Information Adminstration indicates that the average delivered natural gas price to the power sector was $4.39/MMBtu in 2014, a slight increase from the average in 2013 of $4.25/MMBtu.
 Comment 2.1-14g: How will the agency's conclusions change when these costs factors change substantially.
 Response 2.1-14g: See RIA chapter 5 showing that under assumptions whereby an SCPC source would be built, the rule provides direct monetized benefits in the form of CO2 reductions and SO2 reductions which exceed the cost of CO2 control under a range of assumptions.  That RIA chapter also details the assumptions (either economic or non-economic) under which such a plant might be constructed.
Commenter 9195 stated that the EPA appears to suggest that the legal framework for making BSER determinations changes based on the current economics of different fuel options. Commenter asks following questions to the EPA:

Comment 2.1-15a: Is this EPA's legal position? If so, on what authorities does this legal rationale rely?
 Response 2.1-15a: The statute does not specify how EPA is to consider costs or energy requirements.  EPA believes it is reasonable to rely on projected price information out to 2022 (the year the 8 year period mandated for review of NSPS) based on the Energy Information Agency official governmental price estimates used government- and private sector-wide.
 Comment 2.1-15b: Are there other variables that EPA believes would impact the factors the Agency considers in making a BSER determination?
 Response 2.1-15b: See preamble section III.H.
 Comment 2.1-15c: To what extent is cost a determining factor?
 Response 2.1-15c: See in addition, preamble section V.H.2.
 Comment 2.1-15d: What assumptions were made about the cost of natural gas and coal? Was this done regionally or does EPA assume that prices are uniform nationally?
 Response 2.1-15d: See RIA chapter 4 in particular.
Commenter 9195 asks following questions to the EPA:

Comment 2.1-16a: Would you agree that the ability to do either EOR or geologic sequestration are very site specific, and many states and regions will simply not have EOR or sequestration options?
 Response 2.1-16a: See preamble sections V.M and N and response above.
 Comment 2.1-16b: Do you think this rule will put specific states and regions at a competitive disadvantage in terms of compliance?
 Response 2.1-16b: EPA believes that the standard can be met anywhere in the country.  In those few areas where sequestration proves unavailable (if any), alternative compliance pathways not involving sequestration are available.
 Comment 2.1-16c: Do you believe CO2 pipelines can solve this problem?
 Response 2.1-16c: See previous response.
Commenters (2658, 8022, 9596, 9655, 9684, 9765, 9775, 9777, 10029, 10046, 10083 and 10607) stated that the rule defines carbon capture and sequestration (CCS) as the "best demonstrated system of emission reduction" (BSER) for CO2 from coal power plants. CCS is not "adequately demonstrated" because its cost is exorbitant, making a new coal plant up to five times more expensive than a new natural gas combined cycle (NGCC) plant.

EPA's consideration of costs is described fully in preamble section V.H. and I. These comments reflect, in many instances, costs reflecting full CCS, which is not the basis for the promulgated standard of performance.
Commenter 9684 stated that the Congress never enacted legislation specifically requiring or authorizing NSPS for CO2 and never enacted a greenhouse gas cap-and-trade program.
Congress has enacted CAA section 111, the Supreme Court has held that GHGs are pollutants and reiterated (in AEP v. Connecticut) that control of emissions of these pollutants is covered by section 111.  EPA is consequently acting well within the scope of its delegated authority in issuing standards for control of CO2 from new steam electric EGUs.
Commenter 9684 stated that the EPA set the new source performance standards (NSPS) for both new coal and new natural gas combined cycle (NGCC) power plants at 1,000 pounds of carbon dioxide per megawatt hour (1,000 lbs. CO2/MWh). Commenter further stated that the EPA estimated that 95% of all NGCC power plants already met the standard, whereas no existing coal power plants came close; even the most efficient, on average, emitted 1,800 lbs. CO2/MWh.
The commenter refers to coal power plants operating without utilizing BSER  -  partial CCS.  The EPA does not believe there is a substantial dispute that with the BSER, a new supercritical coal plant could meet the promulgated standard of 1,400 lb/MWh.  The Boundary Dam Unit #3 is achieving a level less than 1,000 lb/MWh using full CCS.
Commenter 9684 stated that the EPA regulated coal power plants and NGCC plants as separate source categories subject to different NSPS for conventional air pollutants. Commenter further stated that the EPA began developing its greenhouse gas Endangerment Rule, however, coal interests worried the agency would redefine source categories so that coal power plants and NGCC plants would be held to identical NSPS for CO2.
EPA is not promulgating the same NSPS for coal-fired and NGCC units.
Commenter 9002 stated that for regulating GHGs, EPA should consider more sustainable approaches. Commenter further stated that any EGU compliance mechanism that shifts the compliance burden to other sectors may inhibit the ability for sources in these other sectors to comply with any future GHG NSPS developed for further GHG emission reductions.
There is no such shifting in the promulgated standards of performance.
Commenters (2658, 3093, 5052 9194, 9401, 9486, 9594, 9734, 9777, 10044 and 10096) stated that the EPA's action falls outside its statutory authority because EPA is not merely revising the existing standards that apply to new EGUs; instead, EPA is illegally adding GHGs (CO2) as a new NSPS pollutant for fossil-fired utility sources. Commenters further stated that the EPA is developing a rule to require only unproven technology for new fossil-fuel EGU generation that EPA acknowledges is not necessary.
Since the Supreme Court held that GHGs are not only pollutants, but that their emissions are covered by CAA section 111, the agency is hard put to see the basis for the commenter's claim that it is acting beyond the scope of its authority in issuing standards for such pollutants under section 111.
Commenters (9317 and 10024) stated that why generation technologies representing enhancements in operational efficiency are rejected as the best system of emission reduction (BSER) because they do not provide meaningful reductions in carbon dioxide (CO2) emissions, when EPA projected that this rule, based on carbon capture and sequestration (CCS), will result in negligible CO2 emission changes. Commenters further stated that supercritical or ultra-supercritical coal-fired boilers are an appropriate initial BSER.
See preamble sections IV.B.1 and V.P.1. The comment also mixes apples and oranges. If new fossil-fuel fired steam electric generating capacity is built, there would be very significant emission reductions over a standard based on supercritical technology alone.  See preamble section V.J. Quantifiable monetized benefits would exceed costs as well based on a range of assumptions (again, assuming that new capacity would otherwise be constructed).  RIA chapter 5.
Commenter 9515 stated that flexible compliance mechanisms like multiyear compliance periods can and should serve as components of a 'system of emission reduction.' Commenter further stated that in its overview of the legal requirements for establishing standards of performance under the Clean Air Act, EPA notes that a system of emission reduction is 'not required to be always a technological control.' Commenter also stated that the EPA should expand upon this statement and more explicitly endorse the use of non-technological, flexible compliance mechanisms, including emissions trading and averaging.
The EPA notes that there are flexibilities in the final standard of performance for new steam generating units. In particular the 12-operating-month compliance period allows for potential emission excursions due to operational variations including during periods of start-up, shutdown, and malfunction.  The EPA has also identified alternative compliance pathways  -  beyond the implementation of the identified BSER. Further, the approach in this rule of requiring that all new sources be well-controlled at the source is consistent with Congressional intent for section 111(b), as we discuss in the preamble.
Commenter 9515 stated that the EPA thus has broad discretion to interpret 'category' so long as the agency's final decision is reasonable. Commenter further stated that the statute elsewhere grants EPA authority to 'distinguish among classes, types, and sizes within categories of new sources,' validating the notion that a 'category' of sources can encompass different types of sources. Commenter also stated that in Lignite Energy Council v. EPA, the D.C. Circuit affirmed EPA's discretion to determine the scope of standards and categories, the court's opinion upheld EPA's decision to issue uniform, category wide performance standards for sources that had previously been treated as separate subcategories, highlighting that the court was mindful of the high degree of deference it must show to EPA's scientific judgment.
EPA agrees that it has discretion to subcategorize when establishing standards of performance.
Commenter 10119 states although the Proposed Rule would exempt a broad range of facilities meeting the "new source" definition from the standard, according to the plain text of the Clean Air Act, any performance standards for greenhouse gas emissions from EGUs based on endangerment findings and other, more recent scientific information must be applicable to all "new sources" that commence construction following the date of promulgation of the Proposed Rule.  Commenter 10119 continues that the Administrator's discretion to  "distinguish among classes, types, and sizes within categories of new sources for the purpose of establishing such standards" allows distinctions only for the purpose of establishing standards---not for the purpose of declining to establish any standards whatsoever---for different classes, types, and sizes of new sources.
 Response 2.1-26: The commenter is mistaken. See Portland Cement Ass'n v. EPA, 665 F. 3d 177,193-94 (D.C. Cir. 2011) (not clear if there is any duty to revise NSPS for previously unregulated pollutants, and EPA may legitimately study the issue before regulating).
Commenters (7977 and 9777) stated that this regulatory action is not consistent with the clean coal technology programs administered by Department of Energy. Commenters further stated that the EPA inexplicably assigns no significant carbon dioxide (CO2) emission reductions resulting from the rule making.

The Clean Coal programs are based on widespread use of full CCS at a future date.  This rule is predicated on partial CCS performance, which could certainly serve as a bridge to use of full CCS.  See generally preamble section V.K.  If no coal-burning capacity were to be built, there would be significant GHG emission reductions compared to capacity using only supercritical technology.  See preamble section V.J and RIA section 5.  The predicted lack of emission benefit reflects a reasonable projection that no such capacity would be built, not that the standard adopted in today's rule would not result in GHG emission reductions if new sources are constructed and operated.  See RIA chapter 4.
Commenter 1959 (National Rural Electric Cooperative Ass'n p. 38) noted that the estimated capital costs for partial CCS would increase SCPC costs by 24%, twice the level that the Portland Cement court found to be reasonable.
First, Portland Cement did not establish a `bright line' metric as to what costs are reasonable, or for that matter, that capital costs are the only metric by which the reasonableness of costs can be assessed under section 111 (a).  In addition, Portland Cement itself holds that determinations under section 111 for one industry are not typically of relevance for determinations for another industry.  486 F. 2d at 389.  Second, as shown in section V.H.4 of the preamble to the final rule, estimated capital costs of the BSER here are in fact comparable to those adopted (and upheld) for the steam electric power industry in other NSPS.,  We note further that these cost estimates are conservative, not considering, among other things, EOR opportunities or alternative fuel co-firing.
Commenter 9600 states that the legislative history cited by EPA at proposal indicates at most that an NSPS could contain a geographic limitation only if siting would result in local air quality concerns.  Since CO2 is a global pollutant, such concerns would not exist here.
The EPA believes that a new source could locate anywhere in the country and meet the 1,400 lb CO2/MWh standard.  As shown in Preamble section V.M there is ample sequestration capacity in most areas of the country, and also EOR opportunities (including pipeline infrastructure) in many areas as well.  Some states have emission standards that effectively prohibit new uncontrolled coal-burning electricity generating units from locating within their borders, so the issue of geographic availability is moot as to such states.  In addition, there are other compliance pathways available to sources that do not depend on carbon capture and sequestration which alternatives would not be constrained geographically.
Commenter 9600 stated that the EPA made a valid projection and not a "crystal ball" prediction regarding cost reasonableness of BSER. Commenter further stated that the reliability of the prediction rests on the validity of the assumptions, Portland Cement 486 F.2d 375, 392. Commenter stated that this is another reason why this proposal is arbitrary and accordingly must be withdrawn.
The estimates of cost in the final standards are not based on "crystal ball" projections  -  as the commenter evidently concedes.  The NETL cost estimates reflect peer review (contrary to the commenter's assertions), and are thoroughly documented in every detail, again contrary to the commenter's assertions. In one example of costs the commenter asserts were overlooked, transportation and sequestration costs, NETL in fact estimates those costs and documents its estimates' basis.  NETL (2013) at pp. 48-50; NETL (2015) uses the same meticulous methodology and item-by-item documented costing.  See also draft RIA at 5-30 and final RIA at 4.5.4   (estimating costs for transportation, storage, and monitoring of CO2). The NETL estimates are consistent with those of other techno-economic models from highly reputable sources. See preamble section V.I.2.  In addition, the estimates are consistent (and in some instances, higher than) estimates of CCS technology providers being publically quoted by CCS technology providers. See preamble section V.I.2.c.
Commenter 10046 stated that the rulemakings must, in some minimum way, achieve a relevant statutory objective. See Essex Chem. Corp v. Ruckelshaus, 486 F.2d 427, 434 (D.C. Cir. 1973) (The judgment of the Administrator is to be weighed against his statutory function and limitations). Commenter further stated that as the District of Columbia Circuit observed, Section 111 was intended to prevent new [air] pollution problems. Commenter also stated that EPA's proposal does nothing to achieve that objective since EPA concluded that all new sources will be compliant with the rule's standards whether the rule is issued or not.
Section 111's purpose, at least in part, is to prevent new sources from adding to air pollution problems by meeting standards reflecting performance of the best system of emission reduction.  The standard here does so by assuring that new coal-fired steam electric plants, and new NGCC, control CO2 emissions to a level reflecting performance of that best technology. With respect to steam electric (coal-fired) plants, projections of overall reductions are low because of the unlikelihood of new capacity being built.  If new steam-electric capacity is built, it would emit considerably more CO2 without the standard adopted in the final rule. See preamble section V.K.
Commenter 10046 stated that the EPA has always made an evaluation of the level of emissions reductions that can be achieved from new sources in the source category to be regulated before proceeding with an NSPS. Commenter stated that the EPA has never tried to regulate a source category under Section 111(b) when it has concluded that the regulation will not provide any meaningful reductions.
First, this source category was listed years ago, and a re-listing is not required.  See preamble section III.A. Second, if re-listing of the source category based on a de novo endangerment finding is required (against our view), there is sufficient evidence to do so, many times over.  Id.  Likewise, this source category contributes  -  mightily  -  to the air pollution which endangers.  This source category is the largest emitter of CO2, and by a wide margin.  Finally, the argument that the standard of performance does not achieve emission reductions is not true if new, non-compliant SCPC capacity is built, as the commenter purports to wish to do.  See preamble section V.K.  In that circumstance, analysis also indicates that the quantifiable benefits exceed regulatory costs under a range of assumptions, and that there are unquantifiable benefits from doing so as well.  See RIA chapter 5.
Commenter 10046 stated that on June 25, 2013 President Obama issued the Presidential Memorandum "Power Sector Carbon Pollution Standards" directing EPA to issue a new NSPS proposal by no later than September 20, 2013 and to issue proposed carbon pollution standards, regulations or guidelines, as appropriate, for modified, reconstructed and existing power plants by no later than June 1, 2014. Commenter further stated that by statute, in order to issue emission standards for existing sources, the Agency must first propose standards of performance for new sources.
Comments similar to this  -  concerning the timing of the promulgation of the section 111(b) rule so that it may serve as the predicate for the section 111(d) rule  -  are addressed in the section 111(d) rulemaking, and are not relevant for this rulemaking.
Commenter 10046 stated that the EPA proposal violates statutory requirements and regulatory norms in a number of ways, principally including the following:
(1) EPA's technology-forcing analysis for CCS is irrational, and the rule would not produce any cognizable CO2 reductions.
(2) Because the proposal concededly affects nothing of a tangible regulatory nature and consequently supposedly costs nothing its use is pretextual, designed merely to trigger regulation under Section 111(d). This is not a reading of the relation between Section 111(b) and (d) that is entitled to deference.
The affected industry itself urged the EPA to withdraw its original standard for all new fossil fuel-fired units in order to provide for the possibility of some additional new coal-fired generation capacity, See 79 FR at 1434.  If such new sources were to be constructed, the promulgated standard would significantly reduce CO2 emissions from such a source in comparison with a source (even an ultrasupercritical boiler) not meeting the standard. See preamble section V.K.
Commenter 10046 stated that given the paucity and speculative nature of any emissions from new coal-fired generating units, it is apparent why EPA does not want to identify a specific threshold for the amount of emissions it will consider to constitute significant contribution. Commenter further stated that but logically, EPA cannot satisfy the statutory condition for regulation i.e., significance without considering thresholds.
The cause or contribute criterion relates to the amounts of pollutant a source category emits to the air pollutant which endangers public health or welfare.  Fossil-fuel fired electricity generating units emit more CO2 than any other source category  -  by a very wide margin.  By any objective measure, this is a substantial contribution.
Commenter 10046 stated that in 1998, EPA issued a new NOX NSPS for utility steam generating units which was based on the performance of Selective Catalytic Reduction (SCR). Commenter further stated that there, EPA carefully evaluated the use of SCR on a variety of coals and under a variety of operating conditions, having identified at least 212 worldwide SCR installations on coal-fired units. Commenter further stated that such operating experience is highly relevant because, in the absence of data on actual operations, the risks are great that the new and complicated technologies may not perform as anticipated. Commenter further stated that that is exactly what happened when EPA effectively forced development of FGD on eastern coal-fired units by adopting an SO2 NSPS standard in 1971. Commenter further stated that in 1971, there were two full scale FGD units that had commenced operation, and upon this rather thin basis, EPA declared the technology adequately demonstrated. Commenter further stated that in a 1974 report issued by EPA a mere three years after promulgation of that NSPS, EPA revealed that after four years of intermittent operation filled with numerous technical difficulties, the two scrubbers that formed the basis for EPA's adequately demonstrated conclusion were withdrawn from the market and no longer offered for sale.
Commenter 10046 stated that in recognition of these risks, EPA has traditionally relied upon information provided by at least one operating unit, and the courts are reluctant to find a technology as adequately demonstrated without such information. Commenter further stated that in at least two cases, the D.C. Circuit has declared technology as not adequately demonstrated under CAA 111, and in both instances there were no relevant units actually operating with the technology installed.
The commenter is incorrect in its assertion that BSER can only be based on a technology already operating or, as other commenters asserted) operating at full commercial scale.  The very case cited by the commenters, Sierra Club v. EPA, explains and illustrates circumstances where such a demonstration is possible.  See 657 F. 2d at 380-84 and n. 157.  In any case, both pre- and post-combustion CCS (indeed, full CCS rather than partial) are demonstrated at the Dakota Gasification and Boundary Dam facilities, respectively.
Commenter 10046 stated that in 1979, when EPA revised the coal-fired electric generating plant NSPS, the court in Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), upheld wet scrubbing as 'adequately demonstrated' based on plant operating data, but concluded dry scrubbing was not adequately demonstrated because no operating plant used that system. Commenter further stated that in 1979, EPA issued a new SO2 standard that required scrubbers for all units, regardless of the level of sulfur in coal. Commenter further stated that at the time, the standard could only be met by use of FGD. Commenter further stated that Wet FGD systems had been installed on dozens of units, but no unit had yet operated using dry FGD. Commenter further stated that although EPA had wisely not claimed that dry scrubbing was adequately demonstrated, because EPA had justified its decision to employ a variable SO2 standard on grounds that such a standard would encourage development of dry scrubbing, the court nevertheless found it necessary to determine whether dry scrubbing was adequately demonstrated. Commenter further stated that the court concluded it was not.
Commenter 10046 stated that the court, reviewing the evidence on dry scrubbing, observed that EPA conceded that no full scale dry scrubbers are presently in operation at utility plants so information available . . . dealt with prototype units. Commenter further stated that it then opined that EPA had not explained how pilot project data results could be used to predict the performance in full scale plants throughout the industry, and concluded that the data standing alone is insufficient to establish that dry scrubbing is adequately demonstrated. Commenter further stated that the court was unpersuaded by evidence of dry scrubber systems on order, three scrubbers under construction, of permit applications to employ dry scrubbing, or the potential economic benefits of dry scrubbing, concluding after a thorough review of this evidence, that despite the considerable potential advantages of dry scrubbing systems over wet scrubbing systems, dry scrubbing is not yet a proven or 'adequately demonstrated' technology and its future is uncertain.
The commenter somewhat mischaracterizes the discussion of dry scrubbing in the Sierra Club opinion.  The court did not hold that dry scrubbing was not adequately demonstrated because no operating plant used the system.  Rather (as the comment goes on to note), the court found that EPA had failed to explain how pilot scale performance of dry scrubbing could operate at full scale, particularly given that there had been only limited testing at pilot scale, and that testing did not reflect use coal which was more challenging for a dry scrubber to clean.  657 F. 2d 341 n. 157.  The commenter omits mention, however, that the court pointed to another portion of the opinion where it upheld a standard for particulates based largely on pilot scale performance of baghouses.  Id. and id. at 380-84.  Here, EPA has provided a full and reasoned explanation for its finding that partial CCS is demonstrated, and indeed shown that its findings rest on considerably more information than the particulate standard based on baghouse performance upheld in Sierra Club.  First, both pre- and post-combustion partial CCS is in full commercial use (unlike the situation with baghouses in Sierra Club where key evidence came from pilot scale operations (only "limited data from one full scale commercial sized operation" existed; the bulk of the data came from "small scale installations" (657 F. 2d at 380)).  Second, as explained at   preamble section V.G.3, the EPA has reasonably explained with respect to the less-than-full scale use of partial CCS how the technology can be operated successfully at full scale.  The EPA has thus supplied the type of record information here lacking with respect to dry scrubbers in Sierra Club.
Commenter 10046 stated that the courts in Essex Chemical Corp. and Sierra Club were not going to find a technology to be adequately demonstrated in the absence of at least one operating commercial-scale facility or other compelling information. Commenter further stated that under applicable case law, EPA cannot, on the record proffered here, establish that CCS is adequately demonstrated. Commenter further stated that indeed, CCS is not yet even at the stage in 2014 that dry scrubbing was in 1979. Commenter further stated that there were several dry-FGD systems under construction and more under contract. Commenter further stated that there are but two CCS systems under construction, both significantly over budget, and two or three maybe systems in the preliminary development stages. Commenter further stated that in 1979, dry-FGD was vigorously pursued by vendors and industry due to expected costs savings. Commenter further stated that by contrast, the exorbitant costs and technical uncertainties of CCS have prompted many CCS projects to be cancelled outright, and active CCS development has virtually stopped worldwide. Commenter further stated that the simple fact is that CCS is an unproven technology that is several commercial-scale demonstration plants away from being adequately demonstrated.
The EPA disagrees.  First, the Boundary Dam facility  -  a full scale commercial operation  -  is successfully operating full post-combustion CCS.  Dakota Gasification has for decades been operating full commercial scale pre-combustion CCS.  This same technology is readily transferable to the electric utility sector, should a source choose this alternative compliance pathway (see Preamble section V. E.2). CCS is thus further developed than was dry scrubbing in 1979.  Moreover, vendors are actively promoting use of CCS, terming it both technically effective and cost effective. See Preamble section V. F, and Portland Cement Ass'n, 486 F. 2d at 402 ("It would have been entirely appropriate if the Administrator had justified the standards, not on the basis of tests on existing sources or old test data in the literature, but on extrapolations from this data, on a reasoned basis responsive to comments, and on testimony from experts and vendors ....)."
Commenter 10046 stated that the EPA's apparent reliance on Portland Cement Association v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973), to conclude that it may fairly project the adequate demonstration of a technology in the future is unavailing. The court asserted that:
Section 111 looks toward what may fairly be projected for the regulated future, rather than the state of the art at present, since it is addressed to standards for new plants. It is the achievability of the proposed standard that is in issue.
Commenter (9765 and 10046) stated that the Senate Report made clear that it did not intend that the technology must be in actual routine use somewhere. Commenters further stated that the essential question was rather whether the technology would be available for installation in new plants. . . . The Administrator may make a projection based on existing technology, though that projection is subject to the restraints of reasonableness and cannot be based on 'crystal ball' inquiry.
Commenter (9765 and 10046) stated that this decision does not provide EPA license to declare a technology that is not yet operating in a single commercial-scale power plant to be adequately demonstrated. Commenters further stated that the concern as to whether the technology examined in the case existed on operating units (fabric filters for Portland Cement plants) was not at issue because a number of such plants had fabric filters already installed. Commenters further stated that the issue was whether EPA had proven that the level of emissions reductions required could be achieved by the existent technology. Commenters further stated that that is made clear by the reference in the quoted passage that it is the achievability of the proposed standard that is in issue. Commenters further stated that it is made clearer by the court's declaration that EPA may make a projection based on existing technology. Commenters further stated that to suggest that the passage is relevant to the question of whether a technology not yet in actual full-scale operation can be projected to be adequately demonstrated, would be to render the quoted passage as mere dicta since there was no issue as to whether fabric filters were in operation on Portland Cement plants.
Commenter 10046 stated that although the Senate Report cited in the Portland Cement Association case states that the technology to be used for a standard need not be in actual routine use somewhere, the accompanying House Report provides that the technology may not be . . . purely theoretical or experimental. In the absence of a full-scale operating unit, CCS can hardly be said to be beyond the experimental stage that the Senate Report declared to be insufficient.
EPA agrees that the relevant question is whether the control technology on which the standard of performance is predicated is available for a (hypothetical) new source, which could (in theory) start operating as of promulgation of a standard.  Here, commercial scale post-combustion CCS is in use  -  successfully  -  at the Boundary Dam facility.  Commercial scale pre-combustion CCS has been in use  -  successfully  -  for decades at the Dakota Gasification facility (were an IGCC desirous of achieving the standard using some amount of CCS).  Thus, although the commenters' legal premise is mistaken  -  there is no a priori requirement that a technology be in commercial operation before it can be a BSER  -  and the commenters' factual predicate is also mistaken, the issue they pose is moot.
Commenter 10046 stated that in only one instance has the District of Columbia Circuit found a technology to be adequately demonstrated in the absence of a commercial-scale operating facility. Commenter further stated that in 1998, EPA again revised the NSPS for electric utility units to require Selective Catalytic Reduction (SCR), and also extended this standard to apply to coal-fired industrial boilers. Commenter further stated that while EPA had extensive data on the operation of SCR systems on coal-fired steam electric units, EPA had proffered no emissions data for SCR performance on coal-fired industrial boilers. Commenter further stated that in Lignite Energy Council v. EPA, 198 F.3d 930 (D.C. Cir. 1999), the D.C. Circuit concluded that the SCR mandate was permissible because EPA adequately demonstrated a reasonable extrapolation of the technology's performance from other industries.

Commenter 10046 stated that EPA demonstrated that utility and industrial boilers were similar in design, and both types of boilers can attain the same level of inlet NOX to the SCR system, meaning the SCR systems on both types of boilers would only need to provide similar levels of reductions. Commenter further stated that the Court cited with approval EPA's careful analysis of the issue, and found it sufficient to compensate for a shortage of data. Commenter further stated that in setting the standard, EPA developed technical assessments and a data base adequate to evaluate the factors that can potentially affect SCR performance in a wide range of operating conditions, and identified and addressed the primary differences between utility and non-utility boilers. Commenter further stated that Lignite Energy Council suggests that, on rare occasions, EPA may have some latitude to project future applications of a technology based on a record revealing a careful evaluation of technology transfer and integration issues. Commenter further stated that it hardly seems to be a large step to conclude, after analysis, that SCR systems would be expected to perform similarly on coal-fired utility and industrial boilers that had similar design characteristics. Commenter further stated that but that case also establishes that EPA bears the burden carefully to support its decision with analysis, and to consider the relevant factors. EPA has done none of this for CCS.
The Boundary Dam facility is a full-scale commercial facility successfully operating post-combustion CCS.  This technology  -  SCPC with partial CCS  -  is the BSER identified as the basis for the standard of performance in the final rule.  EPA further demonstrates that the standard of 1400 lb CO2/MWh can be achieved under the array of operating conditions which an SCPC might experience when properly designed, operated, and maintained.  Preamble section V.J.  EPA also believes the pre-combustion CCS technology demonstrated at Dakota Gasification could be adopted by an EGU should a new plant choose that alternative compliance pathway.  See preamble section V.E.2.a.
Commenter 10046 stated that EPA first proposes to declare as technically feasible the transfer of three distinct technologies (capture, transport, and storage) used in three distinct industries to a coal-fired power plant; and second, to require their integration into such power plant. Commenter further stated that unlike the case of transferring SCR from coal-fired utility boilers to coal-fired industrial boilers, EPA has not established that CCS systems at power plants have relevantly similar designs as the three distinct industries that use the CCS component parts. Commenter further stated that the EPA has not undertaken or provided any studies that analyze the issues of transferring the CCS component technologies to coal-fired power plants, let alone provided any analysis of what types of issues might arise in the integration of these three technologies for the first time at a power plant. Commenter further stated that the record EPA proffers on these issues is slim, and what it does proffer is largely irrelevant to the issues of technology transfer and integration. Commenter further stated that that is simply insufficient to compensate for a shortage of data as required by the standard set in Lignite Energy Council.

Commenter 10046 stated that the EPA cites two literature studies that it suggests support its position that transfer of three technologies to the coal-fired power sector and the integration of the same on a working coal-fired power production plant is feasible. Commenter further stated that the first study, by the Administration's Interagency Task Force on CCS, neither carefully identifies nor assesses the issues with the transfer of the core technologies, nor does it evaluate potential integration issues. Commenter further stated that it concludes with a strict warning: Commenter further stated that though CCS technologies exist, scaling up these existing processes and integrating them with coal-based power generation poses technical, economic, and regulatory challenges.

Commenter 10046 stated that the EPA's first study simply stands for the proposition that there will be challenges with scaling up and integrating existing CCS components at coal-fired units, which is exactly why we assert that CCS has not been adequately demonstrated. Commenter further stated that rather than providing a reasonable basis for EPA to conclude that CCS application to a coal-fired unit is sufficiently feasible for EPA to mandate it, this study does the opposite.
Post-combustion CCS is most clearly demonstrated at the Boundary Dam facility, a full scale fossil-fuel fired steam electric generating unit.  No transfer of technology is involved.  EPA explains in preamble section V.D why use of post-combustion CCS at non-fossil fuel-fired EGUs corroborates the demonstration of the technology for fossil-fuel fired EGUs.
Commenter 10046 stated that the second study EPA cites is simply an assessment of whether the component parts of a CCS system can be expected to be scalable to large coal-fired power plants. Commenter further stated that one explicit goal of this study is to examine in a disaggregated manner the status of CCS technologies and their component systems to shed light on the degree to which current systems are of a scale that is relevant to future CCS deployment with large fossil fuel-fired power plants and other large anthropogenic CO2 point sources. Commenter further stated that this study, at best, goes toward the potential of scaling up the component CCS technologies to coal-fired power plant size. Commenter further stated that it does nothing to address the issues of technology transfer or integration of those technologies to an operating coal-fired steam electric generating unit. Commenter further stated that as to those issues, which are certainly the most germane to EPA's position that it has provided adequate and reasoned support for its conclusion that CCS is adequately demonstrated, the study specifically warns that further experience is needed:

Commenter 10046 stated that the fact that complete end-to-end commercial CCS systems exist and that the needed system components of a CCS system are commercially available does not undercut the rationale for a vigorous ongoing research, development and demonstration program focused on improving CCS technologies and demonstrating them in various combinations of technological, geographical, and geological applications and settings.

Commenter 10046 stated that the study would appear to conclude that parts are not enough. Commenter further stated that even if each core element of CCS has been demonstrated in some capacity, the simple fact is that CO2 capture, transport, and storage have not been transferred and integrated at commercial scale on a coal-fired EGU, and EPA has not provided a sufficient basis to reasonably conclude that they can be under applicable adequately demonstrated criteria.
This comment is largely moot, given operation of the fully-integrated, full-scale post-combustion CCS system at Boundary Dam. In addition, many of the concerns that have been expressed regarding implementation of CCS systems have been regarding either "full CCS" (i.e., capture and storage of >90% of the emitted CO2) or retrofitted CCS onto an existing EGU ... or both (i.e., retrofitting a full capture system onto an existing EGU). Importantly, the final standard of performance would not require implementation of full CCS, nor would it require integration within an existing EGU's infrastructure. Finally, the final standards are not intended, in any way, to undercut the rationale for a vigorous ongoing research, development and demonstration program focused on improving CCS technologies and further demonstrating them in various combinations of technological, geographical, and geological applications and settings. In fact, the EPA specifically noted in the preamble: "As regulatory history has shown, identifying a new highly efficient SCPC EGU implementing partial CCS as the BSER in this rule is likely to further boost research and development in the technologies, making the implementation even more efficacious and cost-effective, while providing a competitive, low emission future for fossil steam generation." (Section I.A. Executive Summary); see also preamble section V.L.
Commenter 10098 (API) states that data from pilot studies and optimism that future projects (if completed) will work as planned are not sufficient to show that a specific emission reduction system is demonstrated as achievable under the Clean Air Act" citing to the discussion of dry scrubbing in Sierra Club, 657 F. 2d n. 157.
The EPA has provided an ample record supporting its finding that partial CCS is feasible at full-scale. As in Sierra Club, EPA has presented evidence from full-scale operation, smaller scale installations, and reasonable, corroborated technical explanations of how the BSER can be successfully operated at full scale. See 657 F. 2d at 380, 382.  Indeed, the EPA has more evidence here, as the baghouse standard in Sierra Club was justified based largely on less than full scale operation. See 657 F. 2d at 380 (there was only "limited data from one full scale commercial sized operation") and 341 n. 157.  See also id. at 363-64 (standard not achieved by any operating plant upheld based largely on engineering explanation of how improvements can be made to achieve incrementally superior performance).
Commenter 10239 stated that the April 2012 proposal included a series of legal, technical, and factual critiques of the EPA's proposed standards and urged the EPA to withdraw the proposal. Commenter supported the EPA's decision to withdraw the April 2012 proposal. Commenter also stated that NSPS regulations apply at the time of proposal, it is imperative that the EPA clarify the effect of the withdrawal. Commenter further stated that the EPA should state that the withdrawal nullified or voided the 2012 proposal and that any standards of performance would apply, if at all, after publication of this proposed rule on January 8, 2014.
The commenter is correct that EPA has withdrawn the initial proposal, so that the trigger date for purposes of new source classification is January 8, 2014.
Commenter 9776 noted that EPA's proposal suffers from an absence of any assessment of the greenhouse warming potential (GWP) of increased methane emissions from natural gas systems (including exploration, development, production and transportation systems for natural gas) that will follow from the increased demand from the power sector and stated that the EPA must conduct such assessment for its proposed GHG NSPS for new electric generating units. Commenter further stated that without such an analysis, EPA's contention that electricity generation from natural gas-fired power has substantial GHG advantages over coal-fired power rests upon an incomplete assessment of the emissions associated with natural gas systems and electricity generation. Commenter also stated that this premise undergirds the proposed standard almost all existing natural gas combined cycle power plants can meet, and a standard that no existing coal-fired power plant can meet including the most advanced coal-fired power plants which utilize super critical pulverized coal or integrated gasification combined cycle technologies.
Based on its own modeling and modeling done by the U.S. Energy Information Administration, the EPA concluded that new generating capacity built through the period of analysis (2022) and beyond (through 2030) would be compliant with the standards even in the baseline. For this reason, this rule does not result in increased methane emissions because there is no predicted change in fuel use or generation choices due to this rule. Utilities and project developers are expected to choose natural gas-fired and renewable energy options for new generation capacity with or even in the absence of this final rule.
Commenter 9602 stated that the EPA asserts that its proposed rule has no costs, achieves no carbon dioxide (CO2) emissions reductions and produces no climate-related benefits.  Commenter further stated that allowing a rule so lacking in justification to proceed is unprecedented, with unknown and potentially huge unintended consequences.
As described in chapters 4 and 5 of the RIA, construction of new SCPC capacity not otherwise complying with the promulgated standard is unlikely, both because such capacity would not be cost-competitive with NGCC under all likely-to-occur scenarios, and because new coal capacity is likely to be built with CCS.  However, commenters maintained repeatedly, both in response to the 2012 proposal and in this proceeding, that there could be new coal capacity.  If so, the difference in CO2 emissions from such a source would be considerably reduced under the standard of performance in this rule, compared to an SCPC source without CCS.  Preamble section V.K. and P.2. Chapter 5 of the RIA shows that monetized benefits, in such a circumstance, would exceed control costs under a range of assumptions.
Commenters (3593, 3862, 8971, 10029,10391 and10662) stated that the Regulation of greenhouse gases is a global issue that requires broader approaches than those currently available to EPA under the legal authorities set out in the existing Clean air Act ("CAA"). Commenters further stated that any federal climate change policy or regulatory program should be clearly authorized by Congress through changes to the CAA.
There is no question that the EPA has legal authority to issue NSPS to control CO2 emissions from new fossil-fuel fired electricity generating units.  The Supreme Court indeed held so specifically in American Electric Power, relying on that authority to reject a claim under federal common law.  The policy issues raised by these comments are otherwise beyond the scope of this proceeding.
Commenter 5156 stated that the EPA has not extended the period for public comments on the underlying proposal, which remain due by March 10, 2014. Commenter further stated that the public has barely a month to review and comment on one of the most wide-ranging and unprecedented rules ever to have been issued by a federal agency.
Upon publication of the January 8, 2014 proposal for newly constructed fossil fuel-fired EGUs, the EPA offered a 60-day public comment period. On March 6, 2014, in order to provide the public additional time to submit comments and supporting information, the EPA extended the comment period by 60 days, to May 9, 2014, giving stakeholders over 120 days to review, and comment upon, the January 2014 proposal, as well as the NODA.
Commenter 10025 stated that the Proposed Standards of Performance for Greenhouse Gas Emissions from New Stationary Sources is an important step to confront the "atmospheric emergency" and "climate disruption"; however, the Proposed Rule needs to be strengthened significantly. Commenter further stated that every decision made today implicating climate change needs to be evaluated in light of a national comprehensive climate recovery plan and the government's constitutional public trust obligation to the citizenry, present and future.
This comment is beyond the scope of this proceeding.  However, the EPA notes that this action is not the only action the Agency has taken to address climate change.  The Agency has adopted GHG standards for light and heavy duty vehicles, had recently proposed further GHG standards for heavy duty vehicles and engines, and is adopting emission guidelines pursuant to CAA section 111 (d) for CO2 emitted by existing fossil fuel-fired EGUs.
Commenter 9190 stated that the standard proposed for natural gas combined cycle technology is based upon actual emission data from operating units while the standard proposed for coal base load technology is based upon calculations for hypothetical coal units using unproven CCS technologies. Commenter further stated that the result is a standard that can be met by over 95 percent of the operating natural gas combined cycle units and a standard that cannot be met by a single existing coal base load unit---even those using newest and most advanced coal based technologies such as SCPC or IGCC.

Commenter 9190 stated that the EPA rejects basing a coal base load plant standard on SCPC and IGCC because, according to EPA, those technologies would not provide "as much emission reductions as practicable." Commenter further stated that a standard based upon SCPC and IGCC would result in 5-20 percent emission reductions. Commenter further stated that the emission reductions would be twice that level if the new coal plants replace the oldest existing subcritical plants. Commenter further stated that these reductions are real, substantial and "as much as practicable" with adequately demonstrated technology. Commenter further stated that the EPA takes an entirely different approach in setting the standard for natural gas combined cycle technology. Commenter further stated that the EPA does not attempt to seek "as much reduction as practicable" and instead allows emission levels 20 percent higher than the levels actually achieved by the best performing natural gas units.
In preamble section IV.B.1 and V. P, EPA explains why it is not selecting SCPC and IGCC as BSER.  However, as explained there, there technologies do provide an alternative compliance path.  EPA also explains that these technologies, although not selected by EPA as BSER, are available at costs which are equivalent to, or less than SCPC with partial CCS, and do not pose collateral adverse nonair quality health or environmental impacts, or adverse energy effects.  Thus, EPA is not making a choice of BSER which masks alternative compliance pathways with excessive costs or collateral impacts.
 The commenters are incorrect that the EPA's approaches to setting the standards for coal-fired and natural gas-fired EGUs were arbitrary. The standards required different approaches for two reasons. First, the standards are based on fundamentally different systems of emission reduction. For coal-fired EGUs, the EPA determined that that the BSER is modern, efficient SCPC technology with partial CCS. Partial CCS is an add-on control technology that reduces emissions by removing CO2 from the flue gas stream after combustion has occurred. As a result, the EPA was able to determine an achievable emission rate for coal-fired EGUs by calculating the maximum percentage reduction in CO2 emissions that that can be obtained at a reasonable cost and applying that level of reduction to a conservative baseline emission rate for a SCPC unit. For base load natural gas fired EGUs, on the other hand, the EPA determined that the BSER is solely modern, efficient NGCC technology. Unlike the standard for coal-fired EGUs, the standard for base load natural gas-fired EGUs is based on efficiency alone, not an add-on control technology. Furthermore, the efficiency of NGCC units can vary considerably due to a number of factors, including the diversity of turbine models and sizes on the market, variations from ISO conditions at different facilities, and variations in load and cycling depending on how a facility is dispatched. Accordingly, it was necessary for the EPA to assess actual emissions data from existing sources to capture the full performance range of NGCC technology across the full spectrum of operating scenarios. The second reason for the different approaches is that CCS is an emerging technology, so there are few existing sources from which to obtain emissions data. In contrast, NGCC technology is well-established. Where the EPA lacks actual emissions data, it is entirely reasonable for the EPA to use other methods to calculate a standard that will be achievable by sources across the relevant industry. Indeed, Congress intended section 111 of the CAA to be technology-forcing and thus was fully aware that the EPA would be faced with some situations in which a standard would be based on calculations and modeling rather than actual emissions data from existing sources. The final standard for coal-fired EGUs can be readily achieved by a modern, efficient SCPC unit equipped with partial CCS.
Commenters (9775 and 10029) stated that the EPA fails to produce any meaningful examples of economically feasible CCS projects, which permanently store the CO2 and are not part of an EOR project that is under development. Commenters further stated that based on these facts, commercial scale implementation of CO2 capture and permanent storage from power plants has not been "adequately demonstrated." Commenters further stated that successful sequestration of captured CO2 in deep saline aquifers for permanent storage has not been "adequately demonstrated." Commenters further stated that this is partly a result of the EPA's decision to require pilot projects for such demonstrations to obtain the onerous and costly UIC Class VI permits, instead of allowing them to move forward under a UIC Class V Experimental Technology permit.
As noted in the proposal and in the preamble for the final rule, new coal-fired EGUs are not the most economical choice for construction of new fossil fuel-fired generating capacity. Overwhelmingly, the power sector has moved to construct new NGCC capacity and new renewable energy sources. Between 2000 and 2013, approximately 90 percent of new power generation capacity built in the U.S. has come in the form of natural gas or renewable energy facilities.  Regarding "economic feasibility", the EPA addressed cost considerations in the proposal and in the preamble for the final rule. As described in the January 2014 proposal and in preamble section V.H.3,  in several cases the D.C. Circuit has elaborated on this cost factor and formulated the cost standard in various ways, stating that EPA may not adopt a standard the cost of which would be "exorbitant,"  "greater than the industry could bear and survive,"  "excessive,"  or "unreasonable."  These formulations appear to be synonymous, and for convenience, in this rulemaking, we use `reasonableness' as the standard, so that a control technology may be considered the "best system of emission reduction ... adequately demonstrated" if its costs are reasonable, but cannot be considered the best system if its costs are unreasonable. The EPA has shown that the final standard can be achieved at reasonable cost.  Preamble section V.H. and I.
Boundary Dam is a full-scale operating facility utilizing fully-integrated post-combustion full CCS.  EPA has issued Class VI construction permits to two different projects and would not have done so without a full demonstration of the viability of the projects.  See also preamble section V.M and N detailing the many instances of long-term successful geologic sequestration of massive amounts of CO2.
Commenter 9596 stated that the long-standing PCP exemption for NSPS remains good law. Commenter further stated that the 60-day deadline under section 307(b) of the CAA for raising legal objections to this element of EPA's NSPS regulations has long passed. Commenter further stated that neither has EPA proposed in this rulemaking any changes to the NSPS General Provisions that contain the PCP exemption. Commenter further stated that a court decision on a wholly separate set of regulations promulgated pursuant to a wholly separate section of the CAA is not the type of new circumstance that compels the reopening of a long-settled policy such as the PCP exemption. Commenter requested the EPA to issue guidance confirming the continued validity of the PCP exemption under the NSPS regulations.
 EPA neither proposed nor is taking any final action with respect to the PCP exemption and therefore this comment is beyond the scope of this rule and requires no response.
Commenter 9425 states the majority of anticipated pollution control projects that EGUs are most likely to undertake in the foreseeable future that could increase the maximum achievable hourly rate of CO2 emissions (i.e., be considered "modifications") would constitute NSPS "pollution control projects" and, in many cases, would involve the installation of add-on control equipment required to meet CAA requirements for criteria and air toxics air pollutants. Commenter states these increases in CO2 emissions would generally be small and would occur as a chemical byproduct of the operation of the control equipment, and these projects would not be treated as NSPS modifications under EPA's current NSPS regulations because the regulations provide exemptions for several types of changes, including the installation of pollution control projects at 40 CFR 60.2, 60.14(e).
EPA neither proposed nor is taking any final action with respect to the PCP exemption and therefore this comment is beyond the scope of this rule and requires no response.
Commenter 10029 disagreed with EPA's observation that geologic sequestration is the only technology that is "currently available or ... expected to be available in the foreseeable future that can make meaningful reductions in CO2 emissions from fossil fuel-fired utility boilers and IGCC units." Commenter's company is currently producing fuel on a demonstration scale from sunlight, algae and CO2, and this technology is as "currently available" as geologic sequestration. Commenter questions the providence of EPA's attempt to forecast the future development of technology when, as here, the very purpose of the statutory scheme, according to EPA, is "to stimulate the development of new technology."
The final rule contains a case-by-case demonstration mechanism whereby an applicant can demonstrate storage capacity equivalent in safety to geologic sequestration.
Commenter 10029 stated that in light of the technical feasibility and commercial availability of reuse technologies that produce a sustainable drop in replacement for fossil fuel, the EPA's proposal to mandate the disposal of CO2 is plainly contrary to the national policy set forth in the P2 Act. Commenter further stated that in addition, it is inconsistent with waste management options EPA endorses in other air, water and waste regulations. Commenter further stated that for example, EPA does not mandate disposal of waste such as fly ash that is captured by air pollution control equipment, but endorses its reuse in road aggregate and other products. Commenter further stated that EPA should not mandate the disposal of CO2, but should embrace its beneficial reuse.
The final rule does not preclude reuse of captured CO2.  See previous response.
Commenter 4814 stated that the EPA should consider the viewpoints of multiple stakeholders in the development of guidelines for the states, including the National Association of Regulatory Utility Commissioners, the Southeastern Association of Regulatory Utility Commissioners, Southern States Energy Board, the Edison Electric Institute, and other national, regional and state organizations in consensus with these policy positions.
EPA has indeed carefully considered these entities' public comments and views.
Commenter 10028 stated that the EPA failed to comply with section 307(d) of the Clean Air Act by not providing at the time the proposed rule was published all data, information, and documents upon which the proposed rule relies.
This comment is misplaced.  The supplemental notice and TSD did not contain new information not already present in the docket at proposal.  The commenter, moreover, does not indicate how it incurred any prejudice from the (purported) absence of information.
Commenter 4846 stated that NPRM clearly incorporates a technology assessment of partial CCS as the best technology for reduction of carbon dioxide emissions from fossil fuel-fired power plants. Commenter further stated that the NPRM proposes to conclude that partial CCS is BSER and the basis for the proposed NSPS because it is technically feasible and available and can be implemented at a reasonable cost and without undue negative impacts on energy supplies. Commenter further stated that the proposed technology assessment in the NPRM relies on numerous data sources and evaluations. Commenter further stated that those sources include multiple reports on technical feasibility, including costs, from DOE's National Energy Technology Laboratory, a federal inter-agency task force, the Pacific Northwest National Laboratory, the Joint Global Change Research Institute, the University of California, Davis, the Intergovernmental Panel on Climate Change, individual authors, the U.S. Geological Survey, the International Energy Administration, and government consultants. Commenter further stated that the EPA states in the NPRM that its proposed assessment of the technical feasibility of partial CCS is supported by an extensive literature record and commercial experience: The EPA proposes to find that partial CCS is feasible because each step in the process [capture, transportation, storage] has been demonstrated to be possible through an extensive literature record and experience at commercial operations.
Comments on the Data Quality Act are replied to in section 2.4.2 below.
Commenter 3593 stated that the 11th Circuit Court of Appeals in Louisiana-Pacific Corp. v. United States EPA which, citing to the U.S. Supreme Court, held that an agency rule would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise. Commenter further stated that in another case relevant to this rulemaking, in Association of Nat'l Advertisers, Inc. v. FTC, the DC Circuit Court of Appeals explained that 'an agency member may be disqualified from such a proceeding only when there is a clear and convincing showing that he has an unalterably closed mind on matters critical to the disposition of the rulemaking.'
EPA has carefully considered all relevant aspects here, as prescribed by section 111 (a): technical feasibility, cost, nonair health and environmental impacts and energy considerations.  The comment that the agency prejudged the result of the rulemaking is both incorrect and without basis.  Indeed, based on public comment, and careful use of most accurate and recent information, the agency is adopting a final standard of performance that is less stringent than it initially proposed.
Commenter 3593 asked that the EPA withdraw this rule. Commenter further stated that should the Agency conclude through an unbiased procedure that regulation in this area remains necessary and appropriate, the process must be conducted anew with untainted officials and new inputs, giving all interested parties the same opportunity to have their views considered in a fair and open process, untainted by predetermined outcomes from conflicted individuals whose minds are unalterably closed, and with a record properly reconstituted to include all proper correspondence, lawfully conducted and preserved.
This unsubstantiated comment is utterly mistaken.
Commenter 1898 stated that the EPA, in these CO2 new plant regulations and in existing plant regulations needs to put a framework in place which with near absolute certainty will have the power to cost effectively mitigate all CO2 from power generation. Commenter further stated that to accomplish this these regulations need to, at a minimum, require that both all new and all existing power generation facilities purchase renewable energy credits to offset the entire volume of CO2 these plants will produce in their life cycle. Commenter further stated that quantitatively this means that each year, each company for each plant be required to either (1) build or add renewable energy capacity, which over a 30 year lifespan will generate as much renewable energy as their current operations for the given year or (2) have renewable energy credits in an amount equivalent to finance that much renewable energy capacity.
These suggestions fail to account for the requirements and limitations of CAA section 111 (a).
Commenter 9590 stated that the EPA readily concedes that the proposed standards will result in negligible carbon dioxide (CO2) emission reductions and no quantified benefits. Commenter further stated that the proposed rule does not advance the stated objective of reducing CO2, it obviously cannot in any way be "necessary" to accomplish the purpose for which it is being proposed. Commenter further stated that this reality alone renders the proposed standards unnecessary.
See earlier responses explaining that the rule will result in significant emission reductions should new fossil fuel-fired EGUs be built, based on the delta between SCPC with and without partial CCS.
Commenters (8022 and 9590) stated that the EPA takes an entirely different approach in setting the standard for natural gas combined cycle technology. (compared to coal-fired technology). Commenters further stated that the EPA does not attempt to seek "as much reduction as practicable" and instead allows emission levels 20 percent higher than the levels actually achieved by the best performing natural gas units. Commenter further stated that the EPA's different approaches in setting the coal and natural gas standards cannot be reconciled and, as a result, are unreasoned and arbitrary.
 The commenters are incorrect that the EPA's approaches to setting the standards for coal-fired and natural gas-fired EGUs were arbitrary. The standards required different approaches for two reasons. First, the standards are based on fundamentally different systems of emission reduction. For coal-fired EGUs, the EPA determined that that the BSER is modern, efficient SCPC technology with partial CCS. Partial CCS is an add-on control technology that reduces emissions by removing CO2 from the flue gas stream after combustion has occurred. As a result, the EPA was able to determine an achievable emission rate for coal-fired EGUs by calculating the maximum percentage reduction in CO2 emissions that that can be obtained at a reasonable cost and applying that level of reduction to a conservative baseline emission rate for a SCPC unit. For base load natural gas fired EGUs, on the other hand, the EPA determined that the BSER is solely modern, efficient NGCC technology. Unlike the standard for coal-fired EGUs, the standard for base load natural gas-fired EGUs is based on efficiency alone, not an add-on control technology. Furthermore, the efficiency of NGCC units can vary considerably due to a number of factors, including the diversity of turbine models and sizes on the market, variations from ISO conditions at different facilities, and variations in load and cycling depending on how a facility is dispatched. Accordingly, it was necessary for the EPA to assess actual emissions data from existing sources to capture the full performance range of NGCC technology across the full spectrum of operating scenarios. The second reason for the different approaches is that CCS is an emerging technology, so there are few existing sources from which to obtain emissions data. In contrast, NGCC technology is well-established. Where the EPA lacks actual emissions data, it is entirely reasonable for the EPA to use other methods to calculate a standard that will be achievable by sources across the relevant industry. Indeed, Congress intended section 111 of the CAA to be technology-forcing and thus was fully aware that the EPA would be faced with some situations in which a standard would be based on calculations and modeling rather than actual emissions data from existing sources. The final standard for coal-fired EGUs can be readily achieved by a modern, efficient SCPC unit equipped with partial CCS.
Commenter 10083 stated that the EPA's Technology Based Limits (NSPS) Cannot Require a Plant to Switch from Coal to Natural Gas. In effect, EPA is imposing costs of CCS on coal-fired EGUs in its NSPS such that it forces a utility's decision to build a new power plant as a natural--gas fired plant. Commenter further stated that the courts have decided that technology-based limits cannot require a plant to switch from coal to natural gas.
This comment is significantly misplaced.  As described most fully in RIA 4, it is not this proposal, but independent market forces that have made new coal-fired capacity (with or without CCS) uneconomic compared to other energy sources.  There is substantial record evidence that CCS is a technology which will allow continued coal viability.  See preamble section V.I.4.
Commenter 10083 stated that the rule does not take into account real operational and technical constraints in the West, it is based on an unprecedented legal construct, and does not provide sufficient analysis of BSER for coal-fired power plants.
 See preamble section V.O.2 where the EPA evaluates water usage attributable to the final standard of performance.
Commenter 10607 stated that the EPA notes that "determining that these high efficiency generating technologies represent the BSER for CO2 emissions from coal-fired generation would fail to promote the development and deployment of CO2 pollution-reduction technology from power plants. Commenter further stated that a determination that this efficiency-enhancing technology alone, as opposed to CCS, is the BSER for CO2 emissions from new coal-fired generation likely would inhibit the development of technology that could reduce CO2 emissions significantly, thus defeating one of the purposes of the CAA's NSPS provisions." Commenter further stated that the EPA must not rely upon a factor which is not expressed in the statute (technological innovation) to force implementation of a technology that has not been adequately demonstrated or to establish a standard that is not feasible. Commenter further stated that the EPA must ground its reasons for action or inaction in Section 111(b) of the CAA. Section 111(b) of the CAA was intended, in effect, to require "maximum feasible control of pollutants from new stationary sources through technology based standards." Commenter also stated that Section 111(b) of the CAA requires that EPA take into consideration that it must account for "the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements" when selecting BSER.
As stated both at proposal and in the preamble to the final rule, promotion of technological innovation is a purpose of section 111 NSPS, and is grounded in the language of the statute, as well as in explicit legislative history.  The EPA has analyzed non-air quality health and environmental impacts of the standard (notably implications for water usage and protection of underground sources of drinking water at CO2 sequestration sites), as well as energy requirements.  See preamble sections V.O.
Commenter 10662 stated that the proposed rule is certain to face legal challenge and judicial review, just as the previously proposed rule would have. Given the flaws in the current proposal, this challenge is likely to be successful and imposes significant risks for states forced to implement the proposed rule. Commenter further stated that States forced to implement the proposed rule are confronted with the high probability that the rule will ultimately be vacated or remanded after a litigation process which could take months or years for resolution. Commenter further stated that after these months or years of litigation, in the event that the proposed rule is ruled unlawful, each state faces the prospect of repealing its implementation of the rule, with millions of dollars of sunk costs, and beginning again with whatever version EPA promulgates next, which may also face legal challenge.
The EPA believes its final rule is fully defensible  -  we would not have promulgated it otherwise.  However, the rule adopts requirements on individual sources and there are no direct state obligations.  Thus, the commenter's reference to state burden and obligations is obscure.
Commenter 9765 stated that the D.C. Circuit in historic cases under section 111 identifies issues of waste disposal as a concern for the adequacy of dry scrubbing technology. Commenter further stated that the disposal of CO2 captured at power plants is an important detail that the EPA has yet to fully address. Commenter further stated that uncertainty regarding site selection, the permanence of sequestration, transportation and storage liability, and whether uses exist outside of EOR, are all issues that must be addressed before CCS can be considered adequately demonstrated.
There is a robust regulatory regime for geologic sequestration of CO2 via deep well injection, the Class VI program under the UIC program of the Safe Drinking Water Act.  The EPA has issued construction permits for two injection sites to date under that program.  Protection of the undergrounds drinking water resource will also assure that sequestered CO2 is not released to the ambient air.  The subpart RR and PP monitoring and reporting rules complement these standards for underground injection.
Commenter 9765 stated that when promulgating a NSPS, the EPA cannot force technology upon new sources. Commenter further stated that the EPA has not shown that CCS technology is reasonably reliable or efficient because it cannot point to a single operable coal-fired power plant equipped with partial-CCS. Commenter further stated that the EPA attempts to propose a standard based on technology it predicts will be available ten years down the road when it predicts people will want to build new coal-fired units. Commenter further stated that this technology-forcing contradicts the Clean Air Act and requires the EPA to withdraw its rule.
The Boundary Dam facility is operating at commercial scale with full CCS.  Dakota Gasification is likewise operating at full commercial scale with full CCS.  Without even considering the ample corroborative support, the performance of these two facilities alone is sufficient to show that CCS is demonstrated and technically feasible.  The EPA's full explanation of CCS technical feasibility, and the feasibility of the promulgated emissions standard, is found in section V of the preamble, and in the Technical Support Document.
2.1.1 EPA Does/Does Not Have Authority Under CAA 111
Commenters ( 0836 and 10090) strongly supported actions by the EPA to use its authority under section 111 of the Clean Air Act to issue requirements that address carbon pollution from existing power plants and modifications of those plants.
The EPA agrees that it may issue standards for new sources (including modified and reconstructed new sources) to control CO2 emitted from such sources.
Commenter 9766 stated that the proposal exceeds EPA's authority by mandating the use of geologic sequestration and categorically prohibiting reuse technologies.
The commenter is incorrect.  The final standard does not mandate any method for its achievement, and the EPA has documented that a number of alternatives (including some not involving capture and sequestration) are available to meet the promulgated standard.  Curiously, other commenters (e.g. UARG, #9666) argue that EPA did not promulgate a standard of performance because there is no standard for sequestered CO2.  Moreover, the final rule contains a case-by-case mechanism to allow storage of captured CO2 by other means than sequestration (including reuse) upon a demonstration of equal safety and efficacy.
Commenter 10618 stated that the Clean Air Act, like the Atomic Energy Act of 1954, governs narrow aspects of the operation of energy generating facilities, and is not a wholesale delegation of authority to EPA to make decision on the need, cost, reliability and feasibility of building new coal plants. Commenter further stated that other federal energy legislation, like EPAct05, recognize the value of fuel diversity and the need to encourage the development of clean coal technologies. Commenter also stated that the EPA's proposal is an attempt to assure that coal is "priced out of the market" for the foreseeable future.
The commenter is mistaken.  There is record evidence that partial CCS will spur further deployment of coal capacity.  See preamble section V.O.
Commenters (0840, 5731, 6949, 7977, 8501, 8937, 8957, 8971, 10046 and 10554) stated that the EPA does not get to decide what technologies will generate our nation's power and then regulate the others out of existence. Commenters further stated that the Congress sets policies and government agencies promulgate regulations to implement those policies.
The new source standard does not dictate energy policy, and indeed, EPA has explained that there are compliance pathways not involving CCS.
Commenter 10119 stated that the EPA's attempt to find support in National Lime Association is unavailing. Commenter further stated that in that case, the D.C. Circuit observed in a footnote that the proposed standards at issue would have covered only rotary lime kilns rather than other types of kilns. (Nat'l Lime Ass'n, 627 F.2d at 426 & n.28)
National Lime I indicates that to be achievable, a standard of performance must be capable of being met under normal operating conditions, which include process variability.  EPA has shown that the standard of performance adopted in this rule is achievable, considering variability, and so is consistent with the teachings of this case. See preamble section V.J.
Commenter 1510 stated that the EPA is proposing to expand its regulation of carbon dioxide, the vital plant-fertilizing gas that makes virtually all life on Earth possible. Falsely labeling CO2 a "dangerous pollutant," and without clear or defensible authority from Congress or the courts, EPA is proposing to regulate emissions of this gas from coal-fired power plants.
Given that the Supreme Court has three times held that CO2 is a pollutant under the Clean Air Act, this comment is without merit.
Commenters (6848, 9197, 9782 and 10555) stated that the EPA's proposal will set a single standard for all fossil-fueled EGUs exceeded the agency's authority under the Clean Air Act and represented bad policy because it would have effectively banned the construction of new coal-fueled facilities for the foreseeable future.
The commenters are mistaken that the final standard of performance adopted here (which among other things has separate standards for coal-fired and NGCC facilities) will have the effect they ascribe.
Commenter 10046 stated that the EPA failed to make an adequate cause-or-contribute-significantly finding for new coal units in subpart Da. Commenter further stated that fossil fuel-fired EGUs consist of two separate source categories: coal-fired units and gas-fired units. Commenter also stated that the EPA argues at length, there will be few or no new coal units constructed in the eight-year regulatory window, so EPA cannot claim any significant contribution from such units.
 The endangerment finding under section 111 (should another such finding be deemed to be required here) is for the source category, not for a subset of sources within that source category.  There is no question that the source category of steam electric generating units contributes to the air pollution which endangers.  It is, by a wide margin, the largest GHG emitting source category.
Commenter 10098 (API) stated that not only must EPA make a new endangerment finding here, but also must show "that, by issuing regulations, it will reduce those emissions and the reduction will ameliorate the endangerment at issue."
No new endangerment finding is required here, as stated in other responses and at section III.A of the preamble to the final rule.  However, the commenter is mistaken that a section 111 standard must ameliorate the endangerment for which a source category is listed.  This argument was pointedly rejected by the D.C. Circuit in Coalition for Responsible Regulation v. EPA with respect to section 202 (a) technology-based standards for motor vehicles.  See 684 F. 3d at 127-28.  Section 111 likewise requires technology-based controls, and the standards are to reflect considerations of feasibility, cost, nonair quality impacts, and energy considerations.  The commenter's preferred "amelioration of endangerment' criteria is not among those set out in the statute.   Other industry commenters in fact recognized that section 111 is purely technology-based, standards to reflect the capabilities of BSER which is adequately demonstrated.  See e.g. Comments of AFFORD (9396) at 12.
Commenter 10031 stated that the proposal's CCS-based standard unlawfully dictates the choice of technology that Subpart Da sources must use, in violation of CAA Section 111 (b) (5). Commenter further stated that section provides that nothing under Section 111 shall be construed "to authorize the Administrator to require any new or modified source to install and operate any particular technological system of continuous emission reduction to comply with any new source standard of performance." Commenter also stated that only CCS can meet the proposed NSPS for Subpart Da sources. That directive violates the statute.
This comment is completely misplaced.  Not only is the final standard a numerical limit which can be met any way a source chooses, but in the final preamble EPA explains how there are various available compliance paths for fossil-fired EGUs to meet the final standard of performance.
Commenters (8966 and 9407) stated that the EPA acknowledges in its proposal and Regulatory Impact Analysis (RIA) that implementation of such a standard would make it likely that (i) few, if any, solid fossil fuel-fired EGUs will be built in the foreseeable future; and (ii) electricity generators are expected to choose new generation technologies (primarily natural gas combined cycle) that would meet the proposed standards. Commenters further stated that the EPA's designation of exorbitantly expensive CCS as the BSER violates the CAA.
The commenters significantly mischaracterize both the proposal, and the final regulation.  The EPA stated, and continues to state, that existing market conditions  -  not the proposed or final standard- make it unlikely that few if any fossil fuel-fired EGUs will be built.  See RIA chapter 4.  Those that are built will be for reasons of fuel diversity, and as a hedge against potential massive volatility in natural gas prices.  See preamble section V.H.3.  Given that such sources would already not be price competitive with NGCC capacity, developers would already be paying a premium to develop new coal-based capacity.  Increased cost associated with partial CCS would allow new coal-fired units to remain cost competitive with other dispatchable, baseload technologies that might be chosen for fuel diversity grounds.  See preamble section V. H.
Commenter 10029 stated that the proposal reflects EPA's assessment that it is unlikely any CO2 reuse technology would, in the foreseeable future, be able to accommodate all of the CO2 captured by an affected EGU. Commenter further stated that whether or not this assessment is correct, it is relevant only to identifying the BSER that is available for the purpose of establishing a corresponding performance standard. Commenter further stated that once EPA establishes a performance standard (i.e., an emission limit), it is the responsibility of the affected EGU to determine how to achieve it. Commenter also stated that nothing in Section 111 of the CAA prohibits an affected EGU from using more than one technology to achieve a standard, and an affected EGU should be permitted to incorporate a beneficial reuse technology as part of a system designed to meet the CO2 emission limit. Commenter stated an example, an affected EGU should be permitted to sell some portion captured CO2 for reuse in the creation of an advanced biofuel, while transporting the balance of captured CO2 in a pipeline to an oil field for use in enhanced oil recovery (EOR) or disposal through geologic sequestration. Commenter stated that the proposal impermissibly forecloses this and all other options that are otherwise available to affected EGUs.
Commenter 10029 stated that under EPA's proposal, no technology could be used to achieve CO2 reductions until it has been individually authorized by EPA through a rulemaking. Commenter further stated that this would have a disastrously chilling effect on the development of CO2 reuse technology and set a dangerous precedent for government interference into and control over private commercial decisions, not only regarding CO2 controls on affected EGUs, but for all air pollutants and all source categories subject to regulation under Section 111 . Commenter requested that the proposal be revised to comply with the CAA and allow reuse technologies to be used by affected EGUs, alone or in combination with other technologies to achieve the proposed CO2 emission limit.
The final standard does not foreclose non-sequestration options for management of captured CO2.  The final rule in fact contains a case-by-case mechanism whereby applicants can demonstrate that alternative storage methods are of equal safety and efficacy to geologic sequestration.
Commenter 9487 stated that the Section 321(a) of the Act requires EPA to "conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of the provisions of the Clean Air Act and applicable implementation plans, including where appropriate, investigating threatened plant closures or reductions in employment allegedly resulting from such administration or enforcement."
The final RIA evaluates potential employment impacts, and reasonably finds that the final rule will not have adverse effects on employment.  See RIA section 4.6.
Commenter 9407 stated that the proposed NSPS and BSER are in conflict with longstanding legal interpretations and EPA policies on new source permitting and these conflicts highlight the caprices nature of this rulemaking. In particular, the commenter indicates that a type of BACT top-down analysis and review of BACT permits should inform the BSER determination.  Commenter further stated that the only way BACT can be no less stringent than NSPS is if individual source is subject to the worst set of circumstances possible for sources within its industrial category, such that all technologies more stringent that NSPS must be eliminated leaving BACT equal NSPS for the source.
The commenter is correct that an NSPS creates a floor for BACT, but not correct that EPA must adopt BACT-methodology in setting NSPS, much less implying (comment pp. 39-41) that BACT determinations need play a decisive role in BSER determinations under section 111 (a).  EPA explains in preamble section V how the promulgated standard of performance for new coal-fired EGUs meets the requirements of section 111 (a).
Commenters (9661 and 10093) stated that Section 111(b)(1)(B) of the Clean Air Act provides that once EPA promulgates standards of performance for new sources within a source category, EPA shall, at least every 8 years, review and, if appropriate, revise such standards. 42 U.S.C. 7411(b)(1)(B). Commenters further stated that if future developments lead to a record concerning the demonstration of CCS technology at power plants and the costs of CCS systems that supports a future finding that partial or full CCS is the best system of emission reduction by the time of the next periodic review, there is nothing in the CAA that precludes EPA from then adopting corresponding emissions standards.
The commenters are correct, but by the same token, the fact that there is a periodic review requirement in the statute does not preclude the EPA from determining that partial CCS is BSER at present.
Commenters (10662 and 10952) stated that the EPA's proposal does not demonstrate compliance with Section 321 of the CAA, which gives the agency an affirmative duty to perform continuing evaluation of potential loss or shifts of employment which may result from the administration or enforcement of the CAA or its regulatory framework. Commenters further stated that the proposed standards will give some states a competitive advantage over other states in attracting industry, as the geological features necessary for EOR and sequestration are not evenly distributed throughout the country. Commenter also stated that the proposed regulation will have significantly disparate geographic impacts. Commenter 10662 stated that the EPA must also consider increased fuel transportation costs and increased electricity transmission costs incurred by locating EGU facilities close to geological formations favorable to CCS.
First, EPA has considered employment impacts posed by the standards.  See RIA section 4.6.  We project that these impacts will be minimal because we reasonably project that capacity additions during the analysis period out to 2022 would already be compliant with the rule's requirements (e.g., natural gas combined cycle units, low capacity factor natural gas combustion turbines, and small amounts of coal-fired units with CCS supported by Federal and State funding).   See RIA chapter 4.  The employment analysis in the RIA is part of EPA's ongoing effort to "conduct continuing evaluations of potential loss or shifts of employment which may result from the administration or enforcement of [the Act]" pursuant to CAA section 321(a).
Commenter 10555 stated that the EPA's interpretation that the Clean Air Act PSD provisions apply to greenhouse gases is invalid, as it is inconsistent with the statutory language and congressional intent. Commenter further stated that the EPA has no authority to write the absurd effects out of the statutes through its Tailoring Rule. Commenter further stated that the EPA's only legal option is to adopt an alternative, reasonable construction of the statute; that is, that the PSD program relates to NAAQS pollutants, not any pollutants.
This issue has been resolved in litigation. See UARG v. EPA, U.S. (2014).
2.1.2 EPA Should/Should Not Regulate Through NSPS
Commenters (9426, 9591, 10098 and 10239) stated that nothing in Clean Air Act (CAA) 111 or elsewhere in the CAA compels EPA to issue NSPS GHG regulations now. Commenter 10098 further stated that EPA has clear legal authority and discretion to defer NSPS for GHG emissions from EGUs at this time based on positions EPA has taken in the refinery, nitric acid and portland cement NSPS rulemakings, and in light of recent D.C. Circuit precedent.
There is also nothing in the Clean Air Act that prevents the EPA a priori from exercising its lawful authority to regulate air pollutants from listed source categories under section 111.  Note also that in the Portland cement case, the D.C. Circuit noted only that EPA had not taken final agency action when it was still collecting information needed for a rulemaking.  Portland Cement Ass'n v. EPA, 665 F. 3d 177, 193-94 (D.C. Cir. 2011).  In the present rulemaking, the EPA has sufficient information to develop a standard of performance and is acting accordingly.
Commenters (10098 and 10239) stated that EPA should immediately withdraw the proposed rule and instead proceed by way of an advanced notice of proposed rulemaking (ANPR), which does not impose the same regulatory burden as directly proposing a rule.  Commenters further stated that EPA must withdraw the proposed rule and proceed with a supplemental rulemaking after it has addressed the many deficiencies still present in this rule. Commenters also stated that the failure to do so will create significant uncertainty in the utility sector, as NSPS regulations are effective upon proposal.
The EPA disagrees with the commenters' characterizations.
Commenter 10952 stated that the assumptions made to arrive at the Table 6 LCOE data, particularly for carbon capture costs, are not available and thus not reviewable for notice and comment in connection with this rulemaking. Commenter further stated that the EPA should not promulgate rules on the basis of inadequate data, or on data that, critical degree is known only to the agency. Portland Cement 486 F.2d 375, 393. On this basis alone the proposal is arbitrary and must be withdrawn.
The information on which the LCOE in Table 6 of the preamble to the proposed rule was well defined and available at proposal.  The principal information on costs are the NETL reports which are noteworthy for their detailed transparency.  Every step in the process of deploying and pricing pre- and post-combustion CCS (including partial CCS) is documented and referenced, and the methodology explained in detail.  See e.g. NETL (2013) pp. 37-56 (pricing methodology, assumptions, decision not to base costs on first -- of-a-kind costs identified, explained, with references for each decision point.)  The commenter's statement that the NETL materials are not peer reviewed is also mistaken.  The EPA SAB Workgroup (endorsed by the full SAB) determined that the NETL studies were in fact adequately peer reviewed.  The commenter's characterization of the NETL reports as not disclosing "underlying assumptions", and on "assumptions...not even here for review" (National Rural Electric Cooperative Ass'n Comment  (#1959) p. 40) consequently are mistaken.
The Commenter maintains further that EPA's basis for the increment of learning by doing is undiscernible. The Commenter cites the high costs of several of the DOE demonstration projects, and states that it cannot determine why the next plants to be built would have the significantly lower NOAK costs set out in the NETL study which EPA used in its LCOE determinations (NRECA at 40, and enclosure 2).
EPA has carefully considered the issue of the NETL cost estimates vis-à-vis operating costs to date.  The cost estimates in the final rule are based on vendor costs for the Shell Cansolv system, the system currently utilized in full-scale application at the Boundary Dam facility.  As such, EPA regards this information as reflecting the most recent, reliable information on estimated costs of post-combustion CCS.  See also preamble section V.I.2 and 3.
Commenter 9033 stated that the technology to capture CO2 is not fully developed and the regulation proposed is ahead of technology development. Commenter further stated that it should also be noted that carbon capture is much larger, complex and technically sophisticated compared with any of these previous technologies and industry did not begin work to capture CO2 from atmospheric gases until 2000-2002. The CAA has been a market driver and not a technology driver. The commenter further stated that the failure to meet the Clean Air Act criteria should prompt EPA to reconsider crafting carbon control regulations more in line with the technology development and DOE timeline.
First, the commenter's reference to the DOE timeline is misplaced, since the timeline referred to deployment of full, not partial, CCS.  Second, we explain at section V.D of the preamble to the final rule why post-combustion partial CCS is a demonstrated and feasible technology for new coal-fired EGUs.
Commenter 9425 stated that the past EPA programs such as the Title IV Acid Rain and the NOx SIP Call programs, market-oriented approaches offer opportunity to control emissions on a more cost-effective basis than command-and-control regulations.  Commenter further stated that the EPA has existing authority under the Clean Air Act to develop market-oriented mechanisms, such as emissions averaging and trading programs (with banking, borrowing and cost containment measures) for existing sources.  The commenter requested that state programs which have evolved over time be deemed equivalent so as to avoid multiple overlapping GHG requirements.
Given the projection of a minimal amount of new coal-fired EGU capacity being added, the EPA does not see the need for a trading regime among such sources.
Commenter 9426 stated that the EPA's proposed NSPS is contrary to law and should be withdrawn.
The EPA respectfully disagrees.
Commenters (9780 and 10952) stated that the Congress intended a particular interaction between section 111 standards and NSR: the section 111 standards would establish uniform and therefore broadly-applicable standards, while the NSR provisions would be the mechanism by which EPA and the states could impose potentially more stringent emissions limits on a source-by-source basis, tailored to local pollution conditions. Commenters further stated that accordingly, EPA cannot rely on legislative history surrounding the section 110 attainment provisions to support the reasonableness of promulgating section 111 performance standards that are infeasible throughout large parts of the country.  Commenters also stated that the EPA did not point to any legislative history or case law that supports a view that section 111 standards may preclude construction of sources throughout major regions of the country. Commenter 10952 stated the standards that must not give a competitive advantage to one state over another in attracting industry Sierra Club v. Costle 657 F.2d 298, 325 (D C. Cir. 1981).
Commenter 10952 stated that the EPA cites International Harvester that "as long as feasible technology permits the demand for new passenger automobiles to be generally met the basic requirements of the Act would be satisfied" as justification to establish an NSPS that is so geographically prescriptive as to be applicable in only a few parts of the country. But International Harvester simply does not address whether an NSPS can effectively prevent new sources from locating in certain states or regions because the required NSPS technology there is not available. Commenter further stated that the case simply stands for the proposition that the standards are permissible even if some passenger car engines cannot meet them. Cars capable of meeting the standards in International Harvester were not precluded from being manufactured based on geographic constraints like EPA has proposed here.  Commenter 10952 also stated that BSER necessary to achieve the proposed NSPS need not be available by all sources due to geographical constraints. Commenter further stated that the EPA surmises that this position in view of Section 111 legislative history is not "inconsistent with congressional intent." Earlier in these comments we stress that both the legislative history and judicial opinions conclude otherwise
The EPA has explained that the final standard of performance does not impose geographic constraints on new sources meeting the promulgated standard of performance.  Sequestration capacity is available in many areas of the country.  EOR opportunities are also available in many areas. Dedicated pipelines for CO2 exist and their capacity is increasing. Coal-by-wire allows new plants to be constructed proximate to sequestration (or EOR) sites and transmit electricity to distant locations.  Other states restrict  new coal-burning capacity within their borders.  If a new fossil-fuel burning EGU were to locate in an area other than any of the above, then there are alternative pathways to compliance which do not involve CO2 capture and sequestration which are available and which are not geographically constrained.  The EPA notes further that these compliance alternatives are available at reasonable cost (see Table 9 to the preamble to the final rule), and in the case of IGCC, involve use of an advanced technology.  So, although the final standard reflects performance of a BSER which includes partial carbon capture and sequestration, even in the instances that a compliance alternative might be utilized, that alternative would both result in emission reductions consistent with use of the BSER, and would reflect many of the underlying principles and attributes of the BSER (costs are both reasonable, not greatly dissimilar than BSER, no collateral adverse impacts on health or the environment, and based on use of an advanced technology).
Commenter 9326 stated that CAA section 111(b)(5) provides that the EPA may not prescribe a particular technology that must be used to comply with an NSPS, except in the instances where the Administrator determines "it is not feasible to prescribe or enforce a standard of performance." Commenter further stated that in this rulemaking that an NGCC is not "an air pollution control system" but an alternative way to convert certain fossil fuels into energy and electricity, and for this reason, has always been a distinct source category. Thus it does not meet the definition of a "best system of emission reduction." By allowing coal plants only with CCS (a technology that is not commercially available or demonstrated), EPA is mandating the selection of NGCC technology, if not explicitly but by default, which is contradictory to EPA policy that EPA cannot mandate technology or interfere in commercial markets. Commenter also stated that finally the fact that sequestration has numerous significant non-air quality impacts that are unresolved and or poorly understood, makes EPA's stated reliance on CCS for coal generation to meet the standard inconsistent with the statutory definition of NSPS.
The final standard of performance is not a design standard, and there are alternative compliance pathways available, some of which do not involve CO2 capture and sequestration.  The EPA thus believes this comment to be misplaced.
Commenter 9326 stated that the 1990 Clean Air Act Amendments (CAAA), which were developed to regulate Criteria Pollutants and Hazardous Air Pollutants (HAPS), may not be appropriate for addressing an issue as complicated as the impact of emissions of greenhouse gases on climate change. The strict language in the CAAA that defines the process for developing New Source Performance Standards does not allow for any flexibility in the regulation. Flexibility is critical in this situation, which depends upon the availability of new and emerging carbon capture technology, as it provides safety valves that help mitigate risks to technology developers and to early adopters of the technology. Therefore, commenter recommended that climate change may be better regulated through legislation specifically designed to address complicated, economy-wide issues.
The EPA is acting pursuant to its authority under section 111.  The issue of whether legislation better addresses the issue of GHG emissions contributing to climate change is beyond the scope of the action.
Commenter 10239 stated that the NSPS proposal crosses a line by expanding the EPA's 40-year mandate as the preeminent regulator of the environment to become a definitive regulator of energy. Commenter further stated that in this environmental regulation, the EPA is proposing to control not merely the emissions of air pollutants, but the choice of fuel and energy that a project must utilize if it is to be constructed or operated. Commenter also stated that the EPA's approach to force one type of fuel to be switched for another arises out of EPA's decision to mandate a technology for coal-fired electric generating units (EGUs) that is neither economically nor technologically feasible on a commercial scale. Commenter stated that in doing so, the EPA is effectively dictating both fuel choice and design choice for new EGUs. Commenter also stated that this action will have far-reaching consequences, not only for the EGUs themselves, but also for the many other industries that depend upon the energy that the EGUs provide and may one day become subject to the same types of regulations. Commenter further stated that in addition, by forcing an over-reliance on a single fuel source, the EPA is decreasing the reliability of the electric system.
The standard of performance for fossil fuel-fueled EGUs does not dictate fuel choice or otherwise determine national energy policy.  The standard is achievable by a number of means, some of which do not involve carbon capture and sequestration.  Moreover, section 111 standards of performance may legitimately reflect less polluting types of designs and discourage perpetuation of more polluting designs, especially where compliance paths exist for the more polluting type of technology.  Portland Cement Ass'n v. EPA 665 F. 3d at   410 .
Commenter 10239 stated that finalizing the proposed regulations could undermine the Tailoring Rule's emissions thresholds and trigger PSD permitting requirements for all source of GHGs (or for CO2 specifically) at much lower statutory levels (the NSPS trigger issue). Title V permitting requirements may be triggered for the same reason. Therefore, the commenter suggested the EPA to avoid unnecessary uncertainty by withdrawing the proposed rule and resolving the NSPS trigger issue before proceeding with any regulation of GHGs under Section 111.
See preamble section XII.B.