EPA Delays Timeline for Finalizing Carbon Standards for New, Existing Power Plants

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By Patrick Ambrosio

Jan. 7 — The Environmental Protection Agency is delaying its schedule for issuing final carbon emissions standards for power plants, the agency announced Jan. 7.

The EPA now plans to finalize regulations covering new, existing and modified/reconstructed power plants by “mid summer” of 2015, according to a document posted on the agency's website.

The EPA also announced that it is starting the regulatory process of developing a federal plan for implementing the carbon standards for existing power plants and that it plans to issue a proposed federal plan sometime in the summer of 2015.

The revised timeline means that the EPA will miss both a Jan. 8 statutory deadline for issuing the final standards for new power plants and the June 1 target under President Barack Obama's Climate Action Plan for issuing final standards covering existing, modified and reconstructed power plants. The proposed standards for existing power plants would set carbon dioxide emissions rates for each state, with state agencies then administering the standards under Section 111(d) of the Clean Air Act.

Janet McCabe, EPA acting assistant administrator for air and radiation, told reporters during a Jan. 7 media call that the agency now will work to finalize the three separate power plant rules on a similar time frame due to “cross-cutting topics” raised during public comment periods that affect both new and existing plants.

“We believe it's essential to consider these overlapping issues in a coordinated fashion,” McCabe said.

Comment Deadline Extension Cited

McCabe said the deadline under the Climate Action Plan was based on a 120-day public comment period.

She cited both an October notice of data availability that sought additional comments on the proposed existing power plant standards and the agency's decision to extend the comment deadline from Oct. 16 until Dec. 1 as actions that “unavoidably” added time to the EPA's schedule for finalizing the standards.

McCabe previously told reporters in September that the agency didn't anticipate needing additional time to review public comments and complete the standards for existing power plants.

McCabe, when asked if the schedule for finalizing the Clean Power Plan was affected at all by Republican opposition to the rules, stressed that the decision to delay the final standards is not a political move.

Senate Majority Leader Mitch McConnell (R-Ky.) has been an outspoken critic of the power plant regulations and asked the Government Accountability Office in 2014 if Congressional Review Act procedures allowing Congress to overturn regulations could be applied to proposed rules. The GAO ruled in May that the statute only provides procedures for overturning rules in their final form.

The carbon standards are a suite of rules all affecting the same industry, and there are several issues that concern all three sets of standards, McCabe said in explaining the delay.

“This is all about the best policy outcome,” she said. “We really need to be thinking of these on the same time frame.”

Statutory Deadline to Be Missed 

The revised timeline also means that the EPA will miss a Clean Air Act deadline for finalizing the new source performance standards for new power plants.

The agency released the proposed standards, which would set separate carbon standards for coal-fired and natural gas-fired generating units, in September 2013 but didn't publish the proposal in the Federal Register until Jan. 8, 2014 (79 Fed. Reg. 1,430).

The Clean Air Act requires the EPA to finalize new source performance standards within one year of the proposal's publication, meaning the EPA has a statutory deadline of Jan. 8, 2015, for issuing the final standards. McCabe acknowledged that some groups have been expecting the EPA to finalize the new plant standards in January, but the agency has decided to finalize the rule on a similar time frame as its other power plant standards.

‘Full Speed Ahead' on Regulations

The EPA's announcement received praise from several environmental groups, including some groups that routinely are involved in litigation when the EPA misses its statutory deadlines.

David Doniger, director of the Climate and Clean Air Program at the Natural Resources Defense Council, said in a statement the EPA is moving “full speed ahead” on the first-ever carbon standards for power plants.

“The agency today underscored the importance of staying on schedule—and it is,” he said.

Michael Brune, executive director of the Sierra Club, said in a statement that the EPA's announcement illustrates that the Obama administration is serious about protecting public health and the environment. Brune said the “clear timeline” for moving ahead with the power plant regulations, combined with the issuance of a White House Statement of Administration Policy indicating that senior advisers would recommend that the president veto legislation to authorize construction of the Keystone XL pipeline, shows that the administration is “not backing down” on environmental protections.

Tomas Carbonell, an attorney with the Environmental Defense Fund, said in a statement that his organization appreciates that the EPA will fully consider all comments that were submitted on the carbon standards. The agency received about two million comments each on the new and existing plant proposals.

“It is critical that EPA act as soon as possible to address dangerous carbon pollution from fossil fuel-fired power plants, which are the largest source of climate pollution in our country,” Carbonell said.

Reaction to the EPA's announcement wasn't all positive. The American Coalition for Clean Coal Electricity issued a statement criticizing the Obama administration for “doubling down” on climate regulation despite economic concerns.

“The Administration is turning a deaf ear to mounting concerns being raised by energy experts, grid operators and state officials and is instead continuing its ‘go at it alone’ mentality—all to fulfill a misguided presidential legacy,” Mike Duncan, president and CEO of the coalition, said.

Federal Plan Process Under Way

McCabe also announced that the agency is starting the rulemaking process on a federal implementation plan for the existing power plant standards.

Under the EPA's timeline, the agency will propose the federal plan during the summer of 2015. The agency will then be in position to issue a final federal plan for states that don't submit their own implementation plans in the summer of 2016.

McCabe said that while the EPA hopes that every state will develop their own implementation plan, the Clean Air Act requires the EPA to have a federal plan available for states that don't submit plans. States also may find it helpful to look at the proposed federal plan as they work on their state implementation plans, according to McCabe.

The EPA doesn't have any details on what the proposed federal implementation plan will look like, but McCabe said the agency will “be looking to maximize flexibility” in its plan.

To contact the reporter on this story: Patrick Ambrosio in Washington at pambrosio@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com