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EPA document seeks comment on whether Clean Power Plan should be replaced

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EPA document seeks comment on whether Clean Power Plan should be replaced

The U.S. Environmental Protection Agency has developed an advance notice of proposed rulemaking, or ANPRM, seeking public input on whether it should craft a replacement regulation for restricting greenhouse gas emissions from existing fossil fuel power plants and, if so, what should be included in that rule.

The EPA has not said if it will replace the Clean Power Plan, but Administrator Scott Pruitt indicated during recent congressional testimony that he intends to do so. The agency is expected to promulgate a much more narrow rule that will apply only to changes that can physically be made at a power plant, such as heat rate improvements.

An unsigned version of the ANPRM obtained by S&P Global Market Intelligence asks the public to opine on the respective roles state and federal governments should play in crafting a replacement regulation, the systems of emissions reduction that could be adopted, and state planning requirements under the Clean Air Act. The ANPRM does not propose any regulatory actions, and the agency said it will consider feedback outside the scope of its request.

With respect to the roles of state and federal governments, the EPA would like feedback on the procedures and requirements for states submitting their own compliance plans and the EPA's role in acting on those plans. The ANPRM also asked whether the EPA should be involved in developing guidelines for emission reductions, also known as the best system of emission reductions for power plants, or if those decisions should be left to each state. Moreover, the EPA asked whether it should develop model text that a state could adopt in lieu of developing its own plan, much as the agency did when the Clean Power Plan was released.

The agency also seeks comment on the broader specifications of a new rule, such as whether they should be established on a unit-by-unit basis and rate- or mass-based. The Clean Power Plan allowed states to pick one or the other.

The agency also asked about the amount of compliance flexibility it should provide, such as if emissions averaging and trading should be allowed. Some experts have suggested that the EPA's new interpretation of its authority would exclude those measures from a replacement Clean Power Plan.

Since announcing the repeal of the Clean Power Plan, the EPA has received plenty of advice from industry stakeholders on a replacement rule. Many have advocated for a rule that only requires changes at the specific power plant in question. The EPA is now asking for further feedback on the statutory limitations that may require it to only consider measures that can be applied at the source.

Specifically, the EPA would like to know what technology constitutes the best system of emission reduction, such as the best heat rate efficiency technology or any other technologies that might qualify, and whether carbon capture and sequestration, or CCS, could be a compliance option. The Clean Power Plan did not require CCS for existing coal-fired power plants, but a related rule for new fossil fuel power plants did require new coal units to use CCS.

Finally, the EPA seeks feedback on some residual statutory issues, such as how a new greenhouse gas regulation might interact with the new source review program, which sets requirements for facilities seeking upgrades or other construction projects.