The U.S. Environmental Protection Agency (EPA) has announced that it is extending until May 9, 2014, the deadline for submitting comments on its proposed rule to set greenhouse gas emission limits for new coal- and gas-fired power plants.  The announcement came in a Federal Register notice signed by EPA on February 26 and slated for publication in the next several days.

EPA’s proposed rule, which was released publicly in September 2013 but not published in the Federal Register until January 8, 2014, would require “new” electric utility generating units (meaning units built after January 8, 2014) to comply with the following emission limits:  (1) new coal-fired units would be limited to 1,100 pounds of carbon dioxide (CO2) per megawatt-hour of electricity generated (1000 lbs/MwH); and (2) new gas-fired units would be limited to either 1000 lbs/MwH or 1100 lbs/MwH, depending on their size.

EPA’s proposed limit for coal-fired units is based on the agency’s determination that the limit can be achieved through a combination of highly-efficient boiler design (either super-critical pulverized coal or integrated gasification combined cycle technology) and partial implementation of carbon capture and storage (CCS) technologies.  But the CCS aspect of EPA’s proposal has encountered heavy criticism.  Some commentators have argued that (1) CCS is not commercially viable and, therefore, should not be considered as a basis for setting emission limits, and (2) in concluding that CCS is a viable pollution control technology, EPA impermissibly relied on evidence that the Energy Policy Act of 2005 (EPACT 2005) expressly forbids it from considering.

EPA discusses the EPACT 2005 issue at some length in a Notice of Data Availability (NODA) published in the Federal Register on February 26.  And although that NODA calls for comments by March 10, EPA’s new announcement – the one signed on February 26 and slated for publication in the next several days – indicates that EPA will accept comments on the NODA through May 9.  Thus, May 9 is the deadline for submitting comments on both the NODA and the overall proposed rule.

Separately, EPA remains on track to publish proposed emissions guidelines for existing power plants by June 2014.  Interested parties will have an opportunity to comment on that proposal once it has been published.  Finally, parties that are affected by, or interested in, EPA’s air-related activities may want to read McDermott’s recent publication “What’s in the Air this Year?”

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