On April 13, 2012, the EPA published a proposed new source performance standard under Section 111 of the Clean Air Act for CO2 emissions from fossil fuel fired power plants.  See Standards of Performance for Greenhouse Gas Emissions for New Stationary Sources:  Electric Generating Units, 77 Fed. Reg. 22,392 (published April 13, 2012) (to be codified at 40 C.F.R. pt. 60).  If the proposed rule is enacted, new fossil fuel fired power plants will need to comply with the output-based emission standard of one thousand pounds of CO2 per megawatt-hour.  According to EPA, new plants using natural gas combined cycle technology will be able to meet the new standard without additional pollution controls.  However, new plants that burn coal or petroleum coke will need to install carbon capture and sequestration technology to meet the standard.  New plants that burn coal or petroleum coke and are designed to allow for the installation of carbon capture and sequestration technology have the option of complying with the new standard on a thirty-year average basis.

According to EPA, the new standard only applies to newly constructed sources and not modified or reconstructed sources, even though the Clean Air Act’s definition of “new source” includes modified sources.  EPA has also exempted “transitional sources” and noncontinental sources from the new standard.  “Transitional sources” are sources that already have a preconstruction permit and will commence construction within twelve months of the proposal.

EPA will accept public comments for sixty days from the day the proposed rule was published in the Federal Register and intends to hold a public hearing on its proposal.