EPA Drops the First Shoe in the President’s Climate Action Plan

On September 20, 2013, USEPA proposed the establishment of the new source performance standard (NSPS) on fossil fired power plants pursuant to Section 111(b) of the federal Clean Air Act.  In doing so, USEPA announced that it was withdrawing its April 2013 proposal which received more comments than any other rulemaking in the agency’s history.

While USEPA’s action on September 20, 2013 did not specifically address existing power plants (those on which construction commenced prior to Federal Register publication of this proposal – expected in October 2013), the agency is beginning an intensive stakeholder outreach process that will continue over the next 60 days or so to obtain input into that proposal.  The existing sources proposal is expected in June 2014.  USEPA stated in its stakeholder briefing on September 20 that the proposal for new sources should not be viewed as a signal about what the existing source proposal might be.

The NSPS proposal that will be the subject of a 60-day comment period contains the following principal elements:

  1. It applies only to new electric utility generating units (EGUs) that sell 1/3 or more of the power to the grid.
  2. It applies only to new EGUs larger than 25 MW.
  3. Natural gas-fired stationary combustion turbines have standards for larger and smaller units that can be met without the need for add-on controls.
  4. Coal-fired boiler and IGCC units are proposed to have a standard that would require the application of carbon capture and storage (CCS) – which USEPA concludes is technology that is feasible.

Additional information on the proposal is available on EPA’s websites at: http://www2.epa.gov/carbon-pollution-standards and http://www2.epa.gov/carbon-pollution-standards/2013-proposed-carbon-pollution-standard-new-power-plants.

Undoubtedly, many of the comments on this proposal will focus on CCS technology – not only its availability, but also its cost.

There have been several recent evaluations of both the technology and legal framework related to CCS.  Among these are:

  1. The final report of the WV CCS Working Group (dated July 1, 2011 which can be found at:  http://www.dep.wv.gov/executive/Documents/WVCCS%20Working%20Group%20Final%20Report%20-%20June%2030,%202011.pdf
  2. The final report of the National Coal Council dated Marsh 29, 2011 assessing CCS which can be found  at:   http://www.nationalcoalcouncil.org/reports/03_29_11_Final_NCC_Report.pdf
  3. The final report of the National Coal Council dated June 2012 which assesses CO2 in connection with enhanced oil recovery which can be found at:   http://www.nationalcoalcouncil.org/reports/NCC-Full-Report-June-2012.pdf
David Flannery has focused his practice in the areas of environmental and energy law. Ranked as one of the leading lawyers in America in these areas, Flannery is a member of the American College of Environmental Lawyers and a Commissioner to the Ohio River Valley Water Sanitation Commission (ORSANCO).
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