More Time Please: EPA Issues Guidance For States Seeking Extension

The CPP requires states with affected Electric Generating Units to file by September 6, 2016 either a final State Implementation Plan (SIP) or an initial submittal requesting a two-year extension of time to submit the final state plan.  On October 22, 2015, EPA’s Office of Air Quality Planning and Standards released a memorandum providing states with further information about seeking such an extension.

The memorandum covers who should submit the request (the governor or governor’s approved delegate), and what happens once the request is submitted (it is deemed granted unless the EPA notifies the state in writing within 90 days of submittal that the request is not granted).

The memo also provides further information about the three topics that the CPP requires states to address in their initial submittals:

  • An identification of the final plan approach or approaches under consideration by the state and a description of progress made to date on the final plan components.
    The memo encourages states to explain whether it is “considering a single or multi-state plan, a plan that meets the carbon dioxide (CO2) emission performance rates or state CO2 rate or mass emission goal, and/or an emission standards or state measures plan type” and to provide a narrative description of the steps it has already taken for plan development.  It further provides that “[s]tates need not include technical data or quantitative analyses of the plan approaches under consideration in order to satisfy this component.”
  • An explanation of why the state requires additional time to submit a final plan.
    Per the memo “[t]his component is intended to be easily achievable by the state, rather than a detailed, in-depth analysis of why the state is unable to [timely] complete each final plan component.”  The memo then provides a list of example activities that States could discuss as the bases for requesting the extension such as the need to work with other states and stakeholders to address issues related to multi-state cooperation or the need for new state regulatory actions, including the length of time required for the state’s administrative processes.
  • A demonstration or description of the opportunity for public comment the state has provided on the initial submittal and opportunities for meaningful engagement with stakeholders, including vulnerable communities, during preparation of the initial submittal, and plans for public engagement during development of the final plan.
    The memo notes that “the Clean Power Plan does not prescribe a specific number of hearings, meetings, webinars or outreach for this component,” but that states must both engage the public prior to submission of the extension request and provide a plan for public engagement during development of the final plan.  As to the outreach on the initial submittal, the memo notes that “[a]s a first step . . . states need to identify vulnerable communities in their state.”  However, states need not have a specific SIP proposal on which comment must be sought nor do they need to develop responses to the comments received.
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