EPA Announces Timing for Draft EGU GHG Permit Rule

EPA Assistant Administrator for Air Gina McCarthy, speaking at a briefing on January 19, 2011, hosted by ICF International, announced that EPA is nearing completion of a draft Greenhouse Gas permitting rule for new, modified, or reconstructed power plants. She said that the agency target has been the end of January and that the agency is “close to that timeline,” adding that the proposed GHG permitting rule is now under review at the Office of Management and Budget. She noted that the new rule will not apply to plants that are being modified to install controls as a result of the recently published EGU Mercury and Air Toxics Standard (MATS).  It is not clear whether the GHG permitting rule will apply to units affected by the recently finalized Cross State Air Pollution Rule. 

McCarthy said that the agency is currently focused on the power sector but will follow the EGU GHG rule with a proposed rule for refineries, noting that EPA is required to deal with the issue of GHG permitting as a result of the April 2, 2007, Supreme Court decision in the case of Massachusetts V. EPA. McCarthy characterized that decision as one in which the court “determined that the EPA has the authority, and the duty, to regulate carbon dioxide and other greenhouse gas emissions under the Clean Air Act because the emissions meet the statute's definition of a ‘pollutant,’…” She added that GHG permitting of existing plants is a much more daunting issue and said that EPA is discussing the schedule with the litigants and hopes to reach an agreement soon. 

McCarthy reportedly closed her briefing with the statement that "[w]e think regulating greenhouse gases from power plants is a reasonable and appropriate thing to do, and one that can help in terms of providing certainty to investments moving forward. I will say that [the power] sector dwarfs all other sectors in terms of the amount of greenhouse gases that they emit on the stationary side." 

This article was authored by Skipp Kropp, Jackson Kelly PLLC. For more information on the author see here.