Final Greenhouse Gas Regulations for Power Plants Due Out in August, EPA Agenda Says

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By Amena H. Saiyid

May 21 — First-ever final rules governing carbon dioxide emissions from new and existing power plants are projected for release in August by the Environmental Protection Agency, according to the agency's updated regulatory agenda.

The EPA's spring regulatory agenda also shows May as the month for releasing the final rule that would clarify the scope of Clean Water Act jurisdiction over waters and wetlands. The EPA reportedly was aiming to issue the final rule May 22, but sources said the release date had been pushed back past the Memorial Day weekend.

The revised regulatory update also projects that in June the EPA will issue a final regulation for stream protection at mining sites and propose greenhouse gas standards for medium- and heavy-duty trucks. The EPA also expects to propose an endangerment finding in June for greenhouse gas emissions from aircraft.

Also, the EPA is scheduled to issue its final rule for electronic reporting of Clean Water Act discharge permit data this October.

The agency posted its agenda May 21 on the White House Office of Management and Budget's website.

The agenda illustrates the EPA's plans to move ahead on key environmental rules in 2015, despite threats from Senate Republicans to target the power plant and Clean Water Act jurisdiction rules.

Senate Majority Leader Mitch McConnell (R-Ky) issued a call March 19 to states to boycott compliance with the EPA's Clean Power Plan.

OMB Review Began May 7 

In the regulatory agenda, the EPA indicated for the first time that the two final rules to limit power plant greenhouse gases would be out in August, as opposed to the nebulous “summer of 2015 timeline” that agency officials have been using.

The OMB began a review May 7 of the EPA's proposed carbon dioxide new source performance standard (RIN 2060–AQ91) of 1,000 pounds per megawatt-hour for new natural gas-fired power plants and 1,100 pounds per megawatt-hour for new coal-fired units.

This rule, once finalized, would necessitate the use of carbon capture and sequestration systems. The EPA reproposed this rule in January 2014 (79 Fed. Reg. 1,429).

The EPA has yet to send for interagency review its proposed Clean Power Plan (RIN 2060-AR33) that would establish unique carbon dioxide emissions rates for the power sector in each state. State regulators would then develop their own plans to comply with the emissions rates. The EPA would issue federal plans for states that choose not to develop their own.

Aircraft, Truck Rules Expected 

The EPA announced in September 2014 that it planned to propose the aircraft emissions endangerment finding after environmental groups threatened to sue after the agency refused to undertake the finding in response to their petitions. The OMB began its interagency review in March.

The EPA would be required by the Clean Air Act to regulate greenhouse gases from aircraft if it determines the emissions endanger public health or the environment.

The National Highway Traffic Safety Administration and the EPA also plan in June to propose the second phase of their joint fuel economy and greenhouse gas emissions standards for model year 2018 and beyond for medium- and heavy-duty trucks (RIN No. 2060-AS16). The proposed rule is now at OMB.

A final rule is now planned for January 2017, about 13 months later than the timeline published in the fall agenda.

EPA Has Begun Data Collection 

The EPA in September 2014 began collecting the data it would need to propose the second phase of standards.

The new standards would follow similar requirements the two agencies issued for model year 2014 through 2018 for heavy-duty pickup trucks, delivery vehicles and tractor trailers in 2011 (76 Fed. Reg. 57,106).

The agenda indicates that the EPA and the U.S. Army Corps of Engineers will issue the final rule clarifying Clean Water Act jurisdiction this month, but only one week is left in May.

The EPA and the Corps of Engineers jointly released the proposed jurisdiction rule in March (RIN No. 2040-AF30).

EPA spokeswoman Liz Purchia told Bloomberg BNA May 21 that “you will see it soon” but stopped short of saying whether the agencies will meet the May deadline or see the rule's release pushed into early June.

Groups Awaiting Waters of U.S. Rule 

Environmental groups and industry are waiting for rulemaking. The Republican-controlled Congress is preparing to send the rule back to the agencies upon arrival. The House already has passed legislation that would send the rule back to the agencies for a rewrite.

The Senate has introduced legislation that would require the agencies to establish jurisdiction between waters and wetlands and downstream navigable waters following explicit directions, including the use of flow.

Protecting Streams Near Mining Sites 

The Office of Surface Mining Reclamation and Enforcement will propose its long-awaited stream protection rule in June that was widely expected out sometime this spring (RIN No. 1029-AC63)

The proposed rule would alter the current law that prohibits dumping mining waste within 100 feet of a stream. Previous attempts to update these requirements have become mired in congressional investigations and litigation on both sides.

The OSM also plans to release in December its proposed rule regarding how to appropriately manage toxic fumes from coal mine “blasting” operations, a rulemaking that may spur significant opposition from the mining industry (RIN No. 1029-AC71).

Electronic Reporting Rule 

The agenda has the EPA issuing the final electronic reporting rule in October for National Pollutant Discharge Elimination System permitting programs (RIN No. 2020-AA47).

The EPA in December 2014 amended a rule it proposed in 2013 that would require states and NPDES permit holders and applicants to use existing, available information technology to electronically report facility, discharge, monitoring, compliance and enforcement data.

The goal of the proposed rule was to provide more complete, accurate and timely data to the public. The purpose of the amended rule was to clarify who can receive the initial reports and responded to concerns that only states with very high participation in the electronic reporting format from NPDES permit holders would be designated as initial recipients of e-NPDES reports.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

With assistance from Andrew Childers and Rachel Leven.

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