Abby L. Harvey
GHG Monitor
1/9/2015
Proposed carbon emissions standards for new, modified and existing coal-fired power plants will now not be finalized until mid-summer, the Environmental Protection Agency announced this week. The EPA was under a statutory deadline to finalize the first of the rule, the New Source Performance Standards (NSPS) which largely mandates the use of carbon capture and storage technology for new-build coal-fired power plants, by Jan. 8. However, acting EPA Assistant Administrator for the Office of Air and Radiation Janet McCabe said this week that due to the complexity of the rules, the large number of comments received and the NSPS’s interaction with the proposed carbon standard for modified and existing sources, the finalization for all of the proposals would be bundled together to complete them more efficiently. “We’re focused on the fact that these rules are a suite of rules affecting an industry and given the issues that over-lap we really need to be thinking about them in the same timeframe,” McCabe said.
Of the three rules, the NSPS will be finalized furthest behind schedule, though all of the rules will be delayed in the new timeline. The existing source standards, which set state-specific carbon emission reduction goals and require states to develop action plans to meet those goals, were due to be finalized by June 1, 2015. That date, McCabe explained, was based on a 120-day public comment period. However, the comment period was extended 45 days and a Notice of Data Availability was released that provided additional information to the public. “The extension of the comment period and issuance of the NODA unavoidably, and we believe completely appropriately, added time to our schedule and as a result we will be working to issue a final Clean Power Plan and final standards for new, modified and reconstructed sources by mid-summer of 2015 to reflect this shift in the comment period deadline and the issuance of the October NODA,” McCabe said. “We think these additional few weeks will give us the time we need to review the extensive public comments on all three proposals, more that 4 million in total and finalize a suite of rules that takes into account any and all of these cross issues.”
Lawsuit Could Come Over Missed Deadline
While the delay may be seen as a logical step by many environmental groups, it would not be surprising if the EPA is met with a lawsuit for missing the statutory deadline set out in the Clean Air Act, Ann Weeks, Senior Counsel and Legal Director with the Clean Air Task Force, told GHG Monitor this week. “EPA’s decision is they’re acting directly in contravention to a statutory deadline that they have before it, and they know this. This is not news. They’re just sort of hoping that everyone’s interest in a coordinated and careful outcome will trump their interest in filing a deadline suit to make sure that they actually do finalize the rule. I do think that you will see people making that calculous in the next little bit. Even if we recognize that the agency is trying to do a good job, we may see a marker deadline suit put down just because people want to ensure that there is a final action taken,” Weeks said.
Proposed Federal Implementation Plan Being Developed
McCabe also announced that the EPA will begin development of a federal implementation plan that would have to be adopted by states unwilling or unable to develop their own implementation plans under the standards for existing sources. “In response to a number of states and other stakeholders that have asked the agency for more information about a model rule and a federal plan, the EPA will be starting a rule making process in the coming weeks to develop a rule that would set forth a proposed federal plan and could help states start to think about their own plans,” McCabe said, going on to note that “EPA’s strong preference is that states will submit their own plans tailored to their specific needs and priorities and we believe that states will want to do that here.”
