EPA Asks for Additional Comments on Clean Power Plan

By Christopher B. Clare / Nov 04, 2014

On October 28, 2014, the U.S. Environmental Protection Agency ("EPA") released a Notice of Data Availability ("NODA") concerning a proposed rule that was originally published on June 18, 2014, titled "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units" and commonly referred to as the "Clean Power Plan."[1] The EPA uses such notices to provide the public with additional information on certain issues related to ongoing rulemakings and to solicit additional comments specific to those issues.

EPA's proposed Clean Power Plan, which would be applicable to carbon emissions from existing power plants, has already been the beneficiary of over a million comments from utility companies, state and local governments, and other stakeholders, identifying a variety of reasons that make the proposed rule unworkable. The NODA concerns three specific issues related to the proposed rule:

  • the emission reduction compliance trajectories or "glide path" created by the interim targets for 2020 to 2029;
  • two different aspects of EPA's "building block" methodology; and
  • the data used to calculate state-specific carbon dioxide emissions goals.

The interim reduction targets, which are proposed to begin in 2020, have been a major issue among stakeholders, with many calling it a regulatory "cliff" that could actually be more difficult to meet than the final 2030 target. Many commenters have called for EPA to allow carbon reductions to take place in the years prior to 2020 in order to provide for a more flexible and achievable transition to the final 2030 deadline. The NODA discusses a proposal to allow credits for such early reductions. Additionally, in light of concerns over infrastructure limitations and other factors, the NODA discusses allowing states to increase their use of efficient natural gas combined-cycle (or "NGCC") units in a more gradual, phased-in manner than currently provided for in the proposed rule.

The NODA discusses two of the four different "building blocks" from the proposed rule: the increased use of efficient NGCC units and the use of more "clean generation" power sources, such as renewable energy units. With respect to increased use of efficient NGCC units, the EPA has received mixed comments, with commenters suggesting that the proposed rule should be either more or less stringent in this area, and some also suggesting that achieving EPA's desired operating capacity of 70% for such units is unrealistic. The notice raises these issues as well as the possibility of using a regional (as opposed to state-by-state) approach. Similarly, the notice also addresses a potential target-setting method that would take into account interstate exchanges of renewable energy.

Lastly, the NODA discusses the method in which state-specific goals are calculated. The proposed rule used only 2012 data in setting emission baselines for each state, but many states have commented that EPA should take additional years into account to establish a more reliable and accurate baseline. The notice offers data from 2010-2011 and asks for comments on whether the additional data should be used in setting state-specific emission goals.

Since the NODA was issued, Janet McCabe, Acting Assistant Administrator for the Office of Air and Radiation, has indicated that the notice was "routine" and is not an indication that EPA would be strengthening or weakening the originally proposed rule in any way. Comments on the NODA must be submitted to EPA by December 1, 2014. The final rule is expected to be released in June of 2015.

If you have any questions about the notice or any other aspects of EPA's proposed Clean Power Plan, please contact Clark Hill's Environment, Energy and Natural Resources practice group.

[1] 79 Fed. Reg. 34830