Editor’s Note: This letter is a work in progress; CRE welcomes comments from the public.
Dear Administrator McCarthy:
Having served on the EPA’s Environmental Finance Advisory Board (EFAB) and having had the lead on its initial review of Carbon Capture and Sequestration (CCS) financing, I compliment you for utilizing the capabilities of this talented group and hopefully you will continue to benefit from their services.
Attached please find a report prepared by the Center for Regulatory Effectiveness (CRE),Carbon Capture and Sequestration: EPA’s Technology Availability Determinations Need to be Reproducible. The paper concludes that, under the Data Quality Act (DQA), EPA’s BACT determinations are influential information and are subject to the laws reproducibility requirements. See this attachment for the report EPA BACT Decisions See this attachment for the entire letter. McCarthyLetter.CRE.Draft 6
 For more information about my service on the EFAB, please see, http://thecre.com/pdf/20090309_EFAB_2009-2010.pdf.
Does CRE believe that DQA petitions are reviewable in the courts?
The Prime Time Decision states that the DQA regulations are “binding”. The citation to “binding” in the court’s footnote is a reference to Mead which requires deferral to agency regulations having the “force of law.”
Therefore when one reads Prime Time decision in total, the DC Circuit concludes that the DQA is reviewalble. Department of Justice has informed the Court of their concern about the CRE conclusion, see http://thecre.com/pdf/20100603_Government_DQA_Appeal_to_Court.abrev.pdf