Greenwire

CLIMATE: More questions raised about EPA process for new power plant rule  (Tuesday, February 4, 2014)

Jean Chemnick, E&E reporter

The process U.S. EPA followed in crafting its carbon dioxide proposal for new power plants again came under scrutiny yesterday, this time from one of the original architects of modern day interagency review.

Jim Tozzi -- whose two decades of executive branch service included a stint as head of the Office of Management and Budget's Office of Information and Regulatory Affairs during the Reagan administration -- said in a letter yesterday to EPA Administrator Gina McCarthy that the agency's proposal relies on scientific data that were not vetted using the strict procedures laid out in the Data Quality Act.

"I'm not arguing whether the material is good or bad; it's simply a procedural thing," said Tozzi, who now heads the Washington, D.C.-based Center for Regulatory Effectiveness, in a brief interview.

Tozzi's letter moves to reopen a question laid to rest two weeks ago, after a working group of EPA's independent scientific advisory board (SAB) decided not to recommend a review of the scientific underpinnings for EPA's proposal (Greenwire, Jan. 22). The proposed rule, released Sept. 20, 2013, relies on peer-reviewed Energy Department data to support its requirement that all new coal-fired power plants use partial carbon capture and storage technology to reduce heat-trapping emissions.

The SAB subpanel had previously raised questions about the literature used in EPA's proposal, which is a product of the National Energy Technology Laboratory. Those doubts have been referred to frequently by the proposal's GOP opponents on Capitol Hill (Greenwire, Jan. 16).

But during a Jan. 21 conference call, members of a SAB working group agreed that EPA's data on carbon capture do meet the agency's peer review standards.

But Tozzi argued that the DOE peer review and SAB vetting were not enough. The agency failed to provide legally mandated opportunities for public comment and engagement, he said.

"The Data Quality Act (DQA) mandates a very structured peer review with public participation, and it doesn't matter how many you've done before; you have to do one [peer review] pursuant to this law," said Tozzi, who had a hand in getting the law enacted in 2000. He said his letter could inform future litigation against the agency if it finalizes its proposal without addressing the peer-review issue.

But Tozzi's argument depends on his assertion that the literature EPA uses in its new power plant proposal would meet DQA's standard for "highly influential scientific assessments," because the rule itself would trigger annual costs of $500 million or more. EPA has said its CO2 proposal would not have a significant economic effect because no new coal-fired power plants are in the pipeline anyway, and because natural gas plants can easily meet the rule's 1,000-pound-per-megawatt-hour limit.

Andrew Rosenberg, who heads the Union for Concerned Scientists' Center for Science and Democracy, said SAB's decision last month settled the question of whether EPA used adequately peer-reviewed data to support its proposal, though he noted that the SAB working group had chided the agency for its slowness in sharing information.

"They were critical, I think appropriately, that EPA did not provide information about what information was reviewed and what the scope of the information was well enough in advance," Rosenberg said.

The group's process did include public comment, he said. But while it gave its blessing to scientific literature demonstrating the feasibility of capturing power plant CO2, it raised concerns in a letter to EPA last week about the environmental repercussions of long-term carbon sequestration. The letter recommends that EPA continue to review the impact of its proposed rule after it takes effect.

But scientific literature only forms part of the basis for the power plant proposal, and its opponents say the other legs are wobbly.

To support this, they point to an email exchange last August between OMB and EPA personnel, in which the executive office appears to raise grave concerns about the basis for EPA's CCS requirement.

In the exchange one month before EPA's proposal was released, OMB staffers note that the agency's draft relies on "literature reviews, pilot projects, and commercial facilities yet to operate" when making the CCS determination.

"We believe this cannot form the basis of a finding that CCS on commercial-scale power plants is 'adequately demonstrated,'" OMB states in a comment to EPA. It adds: "We are concerned that the unsupported assertions of technology as 'adequately demonstrated' in this rulemaking will form a precedent for future such determinations, even if the three CCS projects used as the basis for the determination fail or are never completed."

OMB is referring to three power plant CCS projects currently in development in the United States, which EPA cites in the proposal together with a fourth project in Canada to argue that CCS is ready to help coal-fired power plants comply with the new standard.

EPA responds that it "believes that the evidence supports the finding that implementation of CCS technology to meet the proposed standard is technically feasible." But it promises to shore up that justification in its final rule.

David Hawkins, director of the Natural Resources Defense Council’s Climate Center, said in an email that EPA included more in its preamble for the new power plant rule than literature, pilot projects and yet-to-be constructed facilities -- it also pointed to natural gas facilities that are already up and running and using CCS.

“The unidentified commenter misstates the basis for EPA's conclusion about CCS and offers nothing to suggest that CCS is not technically ready,” he said.

Hawkins’ colleague John Walke said that it was not uncommon for OMB to ask pointed questions of regulatory agencies during interagency review of their rulemakings. But the fact that the office gave EPA's proposal a green light means that it was satisfied those concerns were addressed, at least to an extent, he said.

"It was the case here, as it almost always is, that OMB signed off on the EPA document that was signed and published," he said. Additional changes may occur before EPA publishes its final rule.

Reporter Emily Yehle contributed.

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