US EPA has its work cut out for it as the Agency begins to review over 10,000 comments submitted concerning its proposed 2013 Clean Air Act New Source Performance Standards (NSPS) for new power plants through the close of the comment period on May 9, 2014.  US EPA’s work begins just as it plans to release its proposed standards for existing power plants.  The number of submittals vastly decreased from the 2.5 million comments EPA received when it first proposed a NSPS for new power plants in 2012 (EPA withdrew the 2012 proposed rule on January 8, 2013).  However, many commenters have voiced major concerns with the 2013 proposed rule, which, if finalized, will establish the first NSPS for greenhouse gas emissions. 

The most controversial aspect of the 2013 proposed rule is the emission performance standard of 1,100 lbs CO2/MWh for new coal-fired power plants.  This standard is based on implementation of carbon capture and sequestration (CCS), a technology that many argue does not meet the required NSPS standard of an adequately demonstrated technology. For example, the Energy Producing States Coalition stated that “CCS remains technically and economically infeasible on a large scale” and that it is an “unproven science.”  The Partnership for Better Energy Future echoed this concern, explaining that “CCS holds promise, but at this time it is neither cost-effective nor has it been adequately demonstrated. In fact, there is not a single utility-scale power plant in the world currently operating with CCS.”

Other commenters challenged the legal basis of the rule itself, highlighting that the “literal interpretation of the Clean Air Act prohibits the EPA from regulating emissions from a source category under Section 111(d) if that source category is already regulated under Section 112.”  Because US EPA has regulated coal-fired power plants under Section 112 in the Mercury and Air Toxics Standards rule some question whether regulation of these units under the NSPS program is legal.

Although US EPA will need time to review the comments on the 2013 proposed NSPS, the Agency’s regulatory race under the Obama Administration’s Climate Action Plan will continue at full speed.  US EPA is anticipated to publish proposed standards for existing power plants in early June.  Forty-five US Senators have already requested that US EPA provide at least 120 days for the comment period for the existing source rule, which they caution “will be far more complex and critical for the industry to deal with than the proposal for new plants”.