APPA Weighs In On EPA’s Proposed Clean Air Act State Plan Implementing Regulations

The American Public Power Association recently weighed in on the Environmental Protection Agency’s proposed Clean Air Act Section 111(d) implementing regulations, with APPA recommending a federal plan timeline no shorter than 18 months and voicing concerns with the timeframe to submit state plans.

APPA, which submitted comments on the proposed EPA regulations on Feb. 27, said that EPA’s state and federal implementation timelines are impracticable.

“States must have a fair opportunity to perform their role. Otherwise, states are essentially written out of the cooperative process, contrary to statute,” APPA said. “If states are not afforded enough time  to fulfill their roles, Congress’s intent is thwarted. The rulemaking framework effectively collapses into an EPA-only standard setting and federal plan implementing approach.”

The current proposal of only 15 months does not provide states adequate time, APPA said.

APPA highlighted a number of reasons to explain why states need a longer time frame.

Among other things, APPA noted that the proposed rule requires that states conduct “meaningful engagement” of pertinent stakeholders.

State plan submissions must include a list of these stakeholders, a summary of engagement, and a summary of stakeholder input received. EPA’s definition of “meaningful engagement” requires “early outreach” and solicitation of input on the state plan.

“The effort entailed to engage meaningfully should not be taken lightly. States must define the relevant stakeholders first. These parties may be numerous, depending on the section 111(d) rule at issue and the number of affected sources and geographic areas. Then states must undertake ‘meaningful engagement,’” APPA noted.

States also need time to determine the reliability impacts of state plans. CAA Section 111(d) emissions guidelines may have impacts on grid reliability.

For instance, the Supreme Court observed that there were no controls that a coal plant operator could install and operate to attain compliance with Clean Power Plan limits. Rather, compliance was achieved by forcing a shift throughout the power grid from one energy source to another, APPA said.

“This approach would have impacted reliability by forcing certain assets offline, had the Clean Power Plan taken effect. Likewise, if EPA imposes a section 111(d) rule that effectively achieves compliance via reduced generation, reliability impacts must be thoroughly evaluated.”

APPA also argued that Remaining Useful Life and Other Factors (RULOF) requirements are substantial and will require significant time to satisfy.

In the proposed rule, EPA fundamentally changes and enhances RULOF requirements for state plans, according to APPA.

“States must embark on a comprehensive analysis of any source to be considered for a less stringent standard of performance,” APPA pointed out. “EPA squarely places the responsibility of making this demonstration on states.”

The analysis must identify all control technologies or other systems of emissions reductions available for the source. This evaluation would involve an emissions analysis for each source. There is also a feasibility component of the RULOF analysis to prove that the source cannot meet the best system of emission reduction identified by EPA.

The state plan “must present details, such as monitoring, reporting, and recordkeeping, in addition to the proposed emission standard. Further, states must undertake an environmental justice analysis of the less stringent standard on vulnerable communities.”

APPA also noted that:

  • States consistently cite budget and staffing constraints;
  • States must have time to develop a reasoned proposal that implements EPA’s emissions guidelines;
  • Many state plans will be subject to state regulatory approval processes before submittal to EPA.

“Given these considerations, APPA supports a time frame of 36 months but certainly no shorter than 24 months for state plan development.”

The federal plan promulgation deadline should be at least eighteen months, APPA said.

“EPA must provide itself adequate time to develop federal plans. EPA proposes that federal plan promulgation occur within 12-months from failure to submit or disapproval of a state plan. This aspirational deadline is likely to fail based on APPA’s members’ experiences with federal plan promulgation in other CAA programs,”

EPA “contends with a multitude of litigation cases enforcing missed actions on state implementation plans and promulgation of federal plans when states miss deadlines. An aggressive deadline for section 111(d) federal plan development will place unnecessary pressure on EPA and will result in uncertainty for states, sources, and stakeholders if deadlines are missed.”

In addition, federal plans should not be rushed, APPA argued. “As EPA highlights in the rule, federal plan development has many layers. EPA contemplates collaboration through an interagency workgroup and meaningful public engagement. Careful consideration of stringency of the emissions guidelines and translating them to numerical standards will require work.”