On April 29, the Environmental Protection Agency (EPA) denied petitions by the Utility Air Regulatory Group (UARG), American Electric Power (AEP), Ameren Corp., the State of Wisconsin, and the Energy and Environmental Legal Institute (EELI), seeking reconsideration of certain aspects of EPA’s greenhouse gas new source performance standards (GHG NSPS) issued under section 111(b) of the Clean Air Act, which limit greenhouse gas emissions at new, modified and reconstructed fossil-fired power plants.1 By contrast, EPA has yet to act on similar petitions for reconsideration of its Clear Power Plan rule under Section 111(d), Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662 (Oct. 23, 2015). Petitioners filed these requests, in part, to exhaust their administrative remedies and to gain additional avenues for appeal.2 EPA is deferring on a sixth petition, from the Biogenic CO2 Coalition, pending further consideration on how to address biomass co-fired with fossil fuels. The standard applicable to petitions for reconsideration requires a showing that it was “impracticable to raise such objection” during the public comment period or “the grounds for objection arose after” the public comment period and the objection is of “central relevance to the outcome of the rule.”3
Generally, petitioners challenged the rule on the basis that carbon capture and sequestration (CCS) technology has not been adequately demonstrated on a commercial scale. UARG specifically argued that the CCS technology is not operating reliably at the Canadian SaskPower Boundary Dam Unit 3 facility, on which EPA relied for the rule, because the plant has been unable to operate at its designed level of a 90% capture rate day-to-day.4 In response, EPA pointed to the technology’s performance during nameplate testing and occasionally in operation, but asserted that the plant “has operated and is operating reliably,” noting that the performance is meeting the Canadian CO2 emissions standards, which are more stringent than the NSPS.5 Procedurally, EPA noted that the petitions addressing partial CCS have merely reiterated issues that were already raised in the rulemaking comments and were addressed in the final rule and Response to Comment document, and are therefore untimely.6
UARG, AEP and Wisconsin each contended that EPA did not appropriately respond to comments in the rulemaking process and that incorrect information was used. AEP contended that EPA did not adequately respond to comments submitted regarding the retrofit of the Mountaineer Power Plant with CCS and that EPA selected an arbitrary uncontrolled baseline CO2 emission rate without providing sufficient opportunity for public comment.7 EPA determined that it had appropriately responded to each of AEP’s comments and that the retrofit project provided strong support for the technical feasibility of CCS, including on a commercial scale.8 Wisconsin similarly petitioned for reconsideration on the basis that EPA did not adequately respond to comments in the rulemaking, a point that EPA summarily refuted.9 Wisconsin also maintained that EPA miscalculated the transportation cost of captured CO2, assuming 62 miles for transportation rather than the 270 miles Wisconsin sources would be required to use.10 EPA dismissed such petition by asserting that the NSPS is developed on a nationwide standard rather than on a state-by-state basis and that 95% of the country’s largest CO2 sources are within 50 miles of a potential storage reservoir, with additional potential compliance alternatives available, such as the coal-to-wire used in Illinois.11
EELI petitioned EPA for reconsideration for procedural errors stating that the rulemaking process was tainted by “ex parte communications” after a former EPA employee consulted with a member of a non-governmental organization regarding the rule.12 This is similar to the argument it raised in the Clean Power Plan litigation. EPA responded that, under 5 U.S.C. § 553(b) and (c), informal rulemakings do not prohibit ex parte communication, and any communication regarding a rule that has not yet been proposed is not required to be docketed by EPA.13
EPA’s decision was formally published in today’s Federal Register,14 triggering a 60-day period for filing a petition for judicial review with the U.S. Court of Appeals for the D.C. Circuit.15 It is very likely that any appeal would be consolidated with the existing 111(b) GHG NSPS judicial appeals under North Dakota, et al. v. EPA.16
1 Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,510 (Oct. 23, 2015).
2 EPA – Basis for Denial of Petitions to Reconsider the GHG NSPS from New, Modified, and Reconstructed Fossil Fuel-Fired Electric Utility Generating Units, April 2016. https://www.epa.gov/sites/production/files/2016-04/documents/111b_recondocument_april2016.pdf.
3 EPA – Notice of Final Action Denying Petitions for Reconsideration at 4, Apr. 29, 2016. https://www.epa.gov/sites/production/files/2016-05/documents/111b_reconsideration_denial_fr_notice_april28.pdf.
4 EPA – Basis for Denial at 3.
5 Id. at 7.
6 Id. at 2.
7 Id. at 5.
8 Id. at 31.
9 Id. at 32.
10 Id. at 33.
11 Id.
12 Id. at 6.
13 Id. at 36.
14 81 Fed. Reg. 27,442 (May 6, 2016).
15 Clean Air Act § 307(b)(1).
16 No. 15-1381 (D.C. Cir.)
