EPA Likely to Miss Deadline to Propose Greenhouse Gas Rule for Power Plants

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By Andrew Childers

The Environmental Protection Agency confirmed Sept. 15 it will miss for the second time a court deadline to propose greenhouse gas emissions limits for power plants, required as part of a court settlement.

The agency said it is working on a new schedule to propose the rule.

“EPA has engaged in an extensive and open public process to gather the latest and best information prior to proposing pollution standards for fossil fuel-fired power plants, one of the largest stationary sources of carbon pollution,” the agency said in statement. “We will fully consider all this information to develop smart, cost-effective and protective standards.”

EPA has a court deadline to propose the rule by Sept. 30 as part of a settlement with he Sierra Club, Natural Resources Defense Council, and Environmental Defense Fund and several states, but it has not yet sent the rule to the White House Office of Management and Budget for review. That review process can take up to 90 days.

John Coequyt, a Sierra Club representative, told BNA Sept. 15 EPA has not yet formally requested an extension of the deadline. However, he said the delay does not come as a surprise.

“We've known for some time this was going to be extended,” Coequyt said. “EPA hasn't sent it to OMB yet. It's not ready to go.”

While the Sierra Club is “not happy” about the delay, Coequyt said it is more important for EPA to issue a legally defensible rule.

Advocates Watching Rule

Other environmental and business groups both said they will be closely watching how EPA proceeds with the power plant rule.

“This is the biggest decision on policy and climate the Obama administration is going to make before the election,” Conrad Schneider, advocacy director for the Clean Air Task Force, told BNA.

Some advocates for both industry and environmental groups said further delay does not necessarily indicate problems with the rule or wavering support from the White House because this is the first time EPA has issued uniform, national greenhouse gas emissions limits for an industrial sector. Preparing the rule could take more time than EPA anticipated, they said.

New source performance standards are technology-based emissions limits issued under Section 111 of the Clean Air Act that apply to all new and modified facilities in a specific industrial sector. EPA currently requires the largest sources of greenhouse gases to obtain prevention of significant deterioration permits and apply best available control technology (BACT) when facilities are modified in a way that increases emissions. BACT is determined on a facility-by-facility basis, although EPA generally has been emphasizing energy efficiency as BACT for greenhouse gas emissions.

Delay Could Shorten Comment Period

Industry representatives and environmental advocates did have concerns whether the delay would shorten the comment period on the proposed rules or alter EPA's deadline to finalize the rule by May 26, 2012.

Russell Frye, an attorney for the NSPS Litigation Group, an industry association representing utilities, told BNA a second extension of the deadline could force EPA to shorten the comment period on the proposed rule if it does not also receive an extension of the deadline for the final rule.

Frye said it is not unusual for EPA to request additional time to issue a proposal without requesting more time to finalize the rule. Often, EPA eventually has to request another extension for the final rule as well, he said.

“I wouldn't be surprised if what they do at this time is say they could have a further extension of the deadline for the proposed rule and say they can still meet the final deadline even if that seems unlikely,” Frye said.

The NSPS Litigation Group intervened in the lawsuit that led to the settlement requiring EPA to issue the rule but was not a party to the settlement discussions.

Rule Postponed Previously

In settling the lawsuit by environmental groups, EPA agreed to a deadline of July 26 to propose the power plant performance standards but earlier this year received an extension until September. Environmental groups said at the time they agreed to the extension because it did not alter the May 26, 2012, deadline to issue the final rule (42 ER 1334, 6/17/11).

EPA agreed to issue the rule as part of a settlementwith several state and environmental groups (New York v. EPA, D.C. Cir., No. 06-1322, settlement reached 12/23/10).

EPA also has agreed to issue performance standards for petroleum refineries as part of a separate settlement.

Ozone Retreat Prompts Worries

Environmental advocates said they are closely watching the greenhouse gas rule after EPA dropped plans to set more stringent air quality standards for ozone Sept. 2 at the urging of the White House (42 ER 1965, 9/9/11).

“One thing we've learned in the ozone debacle is political expediency is everything for this White House,” Clean Air Watch President Frank O'Donnell told BNA Sept. 14.

The ozone rule had been vigorously opposed by Republicans and industry groups. Unlike the greenhouse gas performance standards, the ozone reconsideration was not subject to a court deadline.

However, House Majority Leader Eric Cantor (R-Va.) targeted the greenhouse standards as part of his list of regulations that impede job growth, which could trigger another political fight with the White House over Clean Air Act regulations (42 ER 2001, 9/9/11).

Sen. James Inhofe (R-Okla.), the ranking Republican on the Senate Environment and Public Works Committee, praised the delay Sept. 15.

“I am very pleased by today's announcement that one of EPA's most economically damaging rules will be delayed,” Inhofe said in a statement. “This announcement, as well as President Obama's recent request that EPA withdraw the ozone standard, makes one thing clear: not only will EPA's barrage of regulations cost hundreds of thousands of American jobs, they may cost President Obama his own job, and he knows it all too well. That's why he is punting on a number of them until after the 2012 election.”