EPA is in the process of issuing two sets of Greenhouse Gas (“GHG”) rules for power plants under Section 111 of the Clean Air Act. As noted in an earlier article, EPA plans to issue rules for existing power plants later this year, but on January 8, 2014 proposed a rule for new power plants. 79 Fed. Reg. 1430 (Jan. 8, 2014).
Section 111 of the Clean Air Act requires the performance standards for CO2 emissions at new plants to be based on the “best system of emission reduction” that has been “adequately demonstrated” (“BSER”). Also, as noted in our prior article, EPA set the proposed standard for CO2 emissions at a level which it predicts would require coal-fired power plants to capture 30-50 percent of their CO2 emissions. EPA projected that the technology to capture CO2 had been “adequately demonstrated.”
In response to a pre-proposed copy of the rule, House members criticized EPA’s finding of “adequate demonstration,” claiming that EPA’s reliance on DOE-supported projects violated restrictions in the Energy Policy Act of 2005 on using data from DOE-funded carbon capture and sequestration (“CCS”) projects. Additionally, in an attachment to a memorandum dated November 12, 2013, a Work Group of an EPA Science Advisory Board stated that “the peer review of the scientific and technical information [from the National Environmental Technology Laboratory used to justify EPA’s claims that CCS was the best system of emission reduction] appears to be inadequate.” See November 12, 2013 Mem., Attachment p. D-25. As a consequence, the Work Group recommended that the full SAB review the technical bases for EPA’s rule.
Since then, there have been additional maneuvers both by EPA and opponents of the rule. First, EPA successfully undertook to deflect the Work Group of its own Science Advisory Board. By memo of January 7, 2014, the Work Group issued “revised recommendations” on the “adequacy of the science supporting the standards of performance” for GHG emissions from new electric generating units. In an abrupt turnaround, the Work Group “recommend[ed] that the SAB not review the science supporting the [proposed EPA new source performance standards].” Jan. 7, 2014 Mem., p. 2. As part of its revised decision, the Work Group observed that it had been asked by the SAB to conduct a fact-finding call with EPA and to re-evaluate its November recommendations. It then conducted that “fact finding” teleconference with EPA on December 17, 2013.
The SAB Work Group explained in its January 7 memo that it changed its position about reviewing the underpinning of the New Source Performance Standard as a result of its call with EPA. During that teleconference, EPA convinced the Work Group that the SAB had no authority or reason to review whether the “sequestration” component of CCS was demonstrated technology because sequestration (as opposed to “capture”) was not a required component of EPA’s determination that carbon “renewal” was demonstrated technology. Instead, EPA claimed that “sequestration” was the subject of a separate rulemaking under the Underground Injection Control program of the Safe Drinking Water Act (“EPA has made a policy decision that this action applies only to carbon emissions and the capture of carbon emissions, and that does not directly address carbon sequestration.”) This point was reiterated in minutes of January 21, 2014 of the SAB. There, the Work Group is quoted as saying that “EPA increasingly made clear as the Work Group progressed from late fall and winter that the [EPA proposal] addressed carbon capture, rather than sequestration.” Minutes, p. 6.
Likewise, the Work Group noted that EPA had advised that “the agency’s considerations [of feasibility and commercial availability of CCS] meet the statutory requirements to determine if technologies will be available for the regulated community at the time of construction.” According to the Work Group, EPA claimed that its consideration of feasibility and commercial availability of CCS were based on “three examples.” See Jan. 7, 2014 Mem., p. 2; Nov. 12, 2013 Mem., pp. 3, Attachment C-6 & D-23. By accepting both EPA’s characterization of its rulemaking as depending only on carbon “capture” without sequestration and EPA’s claims that it had complied with its statutory obligations, the Work Group allowed EPA to avoid SAB scrutiny over the demonstrated adequacy of CCS as a method of complying with the proposed new source standards.
In a January 16 hearing before the Senate Environment and Public Works Committee, EPA Administrator Gina McCarthy defended EPA’s determination that CCS was “demonstrated” technology. There, she claimed that the law only prohibits a BSER determination based “solely” on the DOE-funded CCS demonstration projections, and that EPA had relied on other materials as well. Then, on February 5, 2014, EPA released a pre-publication copy of its issued its Notice of Data Availability (“NODA”) in which it makes similar claims.
In response to EPA’s NODA and accompanying Technical Support Document, the Commonwealth of Kentucky demanded that EPA either withdraw and re-propose the NSPS with the NODA/TSD’s information and rationale or extend the comment period for 90 days after the NODA/TSD is published. And, by letter of February 3, 2014, the Center for Regulatory Effectiveness claimed that EPA’s data did not meet the exacting standards that OMB guidance requires for “highly influential scientific assessments.”
This article was authored by Robert G. McLusky, Jackson Kelly PLLC. For more information on the author, see here.
 The Science Advisory Board was created by the Environmental Research, Development and Demonstration Authorization Act of 1978. The Act requires EPA to make its proposed rules available to the SAB for review. The SAB may advise EPA on the adequacy of the technical and scientific bases for a proposed action.
 Available at Docket No. EPA-HQ-2013-0495-1872.