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EPA plans major rulemakings targeting power industry policies

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EPA plans major rulemakings targeting power industry policies

The U.S. Environmental Protection Agency released its regulatory agenda for the rest of 2018, and it includes many items that will have major impacts on the power industry. On the calendar are plans to issue a Clean Power Plan replacement rule in June, a mercury rule and Clean Water rule in August, a coal ash rule in September and effluent rule changes in December.

Agencies across the federal government, including the EPA, reported their spring unified agendas May 9. The agendas typically do not provide many policy details but can provide a tentative time frame for the release of major rules.

While the EPA in 2017 under the leadership of Scott Pruitt announced numerous repeals of rules from the previous administration, 2018 will mark the year when the energy industry will start to see new policy proposals.

First up on the agenda will be a proposed replacement for the Clean Power Plan to be issued in June. Pruitt has targeted that rule, which would have required fossil fuel power plants to cut their carbon emissions, since his first day on the job. So far, the EPA has proposed to repeal the rule and has issued an advanced notice of proposed rulemaking to collect feedback on what should be included in a replacement rule. The comment period for both actions is now closed, and the EPA's agenda indicated that a proposed replacement will be issued sometime in June.

The replacement Clean Power Plan rule, dubbed "State Guidelines for Greenhouse Gas Emissions From Existing Electric Utility Generating Units," will include a statement of energy effects. The agency said it will also issue a proposed rulemaking in June on related performance standards for new, modified and reconstructed fossil fuel-fired generators. No additional details were provided.

As for the repeal of the Clean Power Plan, the agenda said the EPA will finalize that action in December on the grounds that the rule exceeds the statutory authority provided under Section 111 of the Clean Air Act.

The EPA indicated that the final major action it will take during 2018 regarding greenhouse gases emitted by fossil-fueled generators will be a November proposal to revise certain definitions and the monitoring, recordkeeping and reporting requirements for allowance trading programs. Those programs include regulations for acid rain and the Cross-State Air Pollution Rule. Such revisions are conducted periodically to ensure the rules remain current and provide flexibility.

The EPA said the proposed rule will update or remove provisions of the acid rain rule that applied only in earlier phases of the program. The revised definitions will be finalized in April 2019, according to the agenda.

At least two rulemakings are underway regarding the Clean Water rule, more commonly referred to as the Waters of the U.S., or WOTUS, rule. The EPA said a proposed new definition of the waters subject to U.S. regulation will be issued in August and finalized in September 2019. Pruitt has said the new definition will reflect the views of the late U.S. Supreme Court Justice Antonin Scalia, as directed by President Donald Trump.

The effluent limitation guidelines and coal combustion residuals rules together barred wet handing of coal ash in the country. The EPA reviewed both of those rules and proposed a slew of changes. Phase two of two proposals to address the coal ash rule will be issued in September.

EPA also plans to issue a proposed rulemaking in December on effluent guidelines. The EPA said this rulemaking will address technology requirements and pretreatment standards for bottom ash transport water and flue gas desulfurization wastewater.

The agency does not, however, intend to revise the new, more stringent standards for fly ash transport water, flue gas mercury control wastewater, gasification wastewater, or any of the other requirements in the 2015 rule. The effluent rule changes that are underway will be finalized in December 2019.

More broadly, the EPA said it will issue an advanced NOPR in May titled "Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process." The agency explained that individual EPA program offices interpret consideration of cost requirements for regulations differently, leading to inconsistencies in the rulemaking process.

"This has led to EPA choosing different standards under the same provision of the statute, the regulatory community not being able to rely on the consistent application of the statute, and EPA developing internal policies on the consideration of costs through non-transparent actions," the EPA said.

The agency is developing a rulemaking to address the inconsistencies to provide the public with a better understanding of how the EPA is evaluating costs when developing a regulatory action. The agency said the proposal will also allow the public to provide better feedback on potential future proposed rules.