We found out yesterday that EPA is seeking comment on whether or not the Energy policy Act of 2005 (EPAct 2005) bars or just inhibits its ability to deem partial CCS adequately demonstrated for purposes of Section 111(b) of the Clean Air Act. EPA, in a short Notice of Data Availability (NODA) published in the January 8, 2014 Federal Register, is taking a position refuting some outsider claims that EPAct 2005 undermines its proposed rule to require new fossil-fuel power plants to include some degree of carbon capture and sequestration (CCS) technology (the proposed rule was published in the January 8, 2014 Federal Register). Addressing the EPAct 2005 language head-on, EPA states that its basis for requiring CCS was not based "solely" on the few coal utility projects receiving government funding. EPA asserts that reference to the EPAct 2005-funded projects in the January 8th proposed rule was done "in conjunction [with] other information to support such a determination, or to corroborate an otherwise supported determination." EPA further states that even if it is obligated to exclude information on the EPAct 2005-funded projects, it can still base its CCS determination on the feasibility and cost reasonableness of partial CCS on other available evidence. This issue will continue to get a lot of potential in the media, but ultimately it will be one of many issues that will likely be litigated after a final rule is issued.
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