[Federal Register Volume 88, Number 222 (Monday, November 20, 2023)]
[Proposed Rules]
[Pages 80682-80685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25580]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 60
[EPA-HQ-OAR-2023-0072; FRL-8536-04-OAR]
RIN 2060-AV09
New Source Performance Standards for Greenhouse Gas Emissions
From New, Modified, and Reconstructed Fossil Fuel-Fired Electric
Generating Units; Emission Guidelines for Greenhouse Gas Emissions From
Existing Fossil Fuel-Fired Electric Generating Units; and Repeal of the
Affordable Clean Energy Rule
AGENCY: Environmental Protection Agency (EPA)
ACTION: Supplemental notice of proposed rulemaking.
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SUMMARY: The Environmental Protection Agency (EPA) is announcing the
availability of and soliciting comment on an Initial Regulatory
Flexibility Analysis (IRFA) following the completion of a Small
Business Advocacy Review (SBAR) Panel for the proposed New Source
Performance Standards for Greenhouse Gas Emissions from New, Modified,
and Reconstructed Fossil Fuel-Fired Electric Generating Units. The EPA
is seeking public comment on the regulatory flexibilities considered in
the IRFA. In addition, the EPA is soliciting comment on whether to
include mechanisms to address potential reliability issues raised by
small business and other commenters with respect to both proposed New
Source Performance Standards and the proposed Emission Guidelines for
Greenhouse Gas Emissions from Existing Fossil Fuel-Fired Electric
Generating Units.
DATES: Comments. Comments must be received on or before December 20,
2023.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OAR-2023-0072, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov
(our preferred method). Follow the online instructions for submitting
comments.
Email: [email protected]. Include Docket ID No. EPA-
HQ-OAR-2023-0072 in the subject line of the message.
Fax: (202) 566-9744. Attention Docket ID No. EPA-HQ-OAR-
2023-0072.
Mail: U.S. Environmental Protection Agency, EPA Docket
Center, Docket ID No. EPA-HQ-OAR-2023-0072, Mail Code 28221T, 1200
Pennsylvania Avenue NW, Washington, DC 20460.
Hand/Courier Delivery: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operation are 8:30 a.m.-4:30 p.m., Monday-
Friday (except Federal holidays).
Instructions: All submissions received must include the Docket ID
No. for this rulemaking. Comments received may be posted without change
to https://www.regulations.gov, including any personal information
provided. For detailed instructions on sending comments and additional
information on the rulemaking process, see the SUPPLEMENTARY
INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: For questions about this proposed
action, contact Mr. Christian Fellner, Sector Policies and Programs
Division (D243-02), Office of Air Quality Planning and Standards, U.S.
Environmental Protection Agency, Research Triangle Park, North Carolina
27711; telephone number: (919) 541-4003; and email address:
[email protected] or Ms. Lisa Thompson, Sector Policies and
Programs Division (D243-02), Office of Air Quality Planning and
Standards, U.S. Environmental Protection Agency, Research Triangle
Park, North Carolina 27711; telephone number: (919) 541-9775; and email
address: [email protected].
SUPPLEMENTARY INFORMATION:
Docket. The EPA has established a docket for this rulemaking under
Docket ID No. EPA-HQ-OAR-2023-0072. All documents in the docket are
listed in the Regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the internet and will be publicly available only in hard
copy.
Written Comments. Direct your comments to Docket ID No. EPA-HQ-OAR-
2023-0072 at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section. Once submitted,
comments cannot be edited or removed from the docket. The EPA may
publish any comment received to its public docket. Do not submit to the
EPA's docket at https://www.regulations.gov any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. This type of
information should be submitted as discussed in the Submitting CBI
section of this document.
Multimedia submissions (audio, video, etc.) must be accompanied by
a written comment. The written comment is considered the official
comment and should include discussion of all points you wish to make.
The EPA will generally not consider comments or comment contents
located outside of the primary submission (i.e., on the Web, cloud, or
other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA
public comment policy; information about CBI or multimedia submissions;
and general guidance on making effective comments.
The https://www.regulations.gov website allows you to submit your
comment anonymously, which means the EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an email comment directly to the EPA without going through
https://www.regulations.gov, your email address will be automatically
captured and included as part of the comment that is placed in the
public docket and made available on the internet. If you submit an
electronic comment, the EPA recommends that you include your name and
other contact information in the body of your comment and with any
digital storage media you submit. If the EPA cannot read your comment
due to technical difficulties and cannot contact you for clarification,
the EPA may not be able to consider your comment. Electronic files
should not include special characters or any form of encryption and
should be free of any defects or viruses.
Submitting CBI. Do not submit information containing CBI to the EPA
through https://www.regulations.gov. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information on any
digital storage media that you mail to the EPA,
[[Page 80683]]
note the docket ID, mark the outside of the digital storage media as
CBI, and identify electronically within the digital storage media the
specific information that is claimed as CBI. In addition to one
complete version of the comments that includes information claimed as
CBI, you must submit a copy of the comments that does not contain the
information claimed as CBI directly to the public docket through the
procedures outlined in Written Comments section of this document. If
you submit any digital storage media that does not contain CBI, mark
the outside of the digital storage media clearly that it does not
contain CBI and note the docket ID. Information not marked as CBI will
be included in the public docket and the EPA's electronic public docket
without prior notice. Information marked as CBI will not be disclosed
except in accordance with procedures set forth in 40 Code of Federal
Regulations (CFR) part 2.
Our preferred method to receive CBI is for it to be transmitted
electronically using email attachments, File Transfer Protocol (FTP),
or other online file sharing services (e.g., Dropbox, OneDrive, Google
Drive). Electronic submissions must be transmitted directly to the
OAQPS CBI Office at the email address [email protected] and, as
described above, should include clear CBI markings and note the docket
ID. If assistance is needed with submitting large electronic files that
exceed the file size limit for email attachments, and if you do not
have your own file sharing service, please email [email protected] to
request a file transfer link. If sending CBI information through the
postal service, please send it to the following address: OAQPS Document
Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency,
Research Triangle Park, North Carolina 27711, Attention Docket ID No.
EPA-HQ-OAR-2023-0072. The mailed CBI material should be double wrapped
and clearly marked. Any CBI markings should not show through the outer
envelope.
I. Background
On May 23, 2023, the Environmental Protection Agency (EPA) proposed
revised new source performance standards (NSPS) under Clean Air Act
(CAA) section 111(b) for greenhouse gas (GHG) emissions from new and
reconstructed fossil fuel-fired stationary combustion turbine electric
generating units (EGUs) and from fossil fuel-fired steam generating
units that undertake a large modification.\1\ As part of that proposal,
the EPA certified that the proposed NSPS did not have significant
impact on a substantial number of small entities under the Regulatory
Flexibility Act (RFA).\2\ However, the EPA solicited comment on a
number of more stringent policy options that, if finalized, may
increase the impact on small businesses. Therefore, the EPA convened a
Small Business Advocacy Review (SBAR) Panel for the proposed rule and
has prepared an Initial Regulatory Flexibility Analysis (IRFA) under
the RFA, 5 U.S.C. 601 et seq., and evaluated the economic impact of the
proposed NSPS on small entities, as well as any significant
alternatives to the proposed rule that may minimize economic impacts on
small entities while accomplishing the Agency's objectives. The
complete IRFA is available for review in the rulemaking docket (EPA-HQ-
OAR-2023-0072).
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\1\ See 88 FR 33240 (May 23, 2023).
\2\ See 88 FR 33418 (May 23, 2023).
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As required by section 604 of the RFA, the EPA will prepare a final
regulatory flexibility analysis (FRFA) for this action as part of the
final rule. The FRFA will address the issues raised by public comments
on the IRFA.
II. Request for Public Comments
The EPA welcomes public comment on all aspects of the IRFA as well
as alternatives identified in the IRFA for public comment. The EPA is
soliciting comment on the small entity impacts of the proposed NSPS and
any regulatory alternatives to the proposed NSPS ``which accomplish the
stated objectives of the applicable statutes, and which minimize any
significant impact of the proposed rule on small entities.'' The EPA is
also soliciting comment on the impacts of the regulatory alternatives
described in the proposed NSPS notice and, if they were to be adopted,
appropriate regulatory flexibilities. The EPA solicited comment on
multiple alternatives that could increase the costs to small entities
and the EPA determination that the proposed amendments would not have a
significant economic impact on a substantial number of small entities.
For the low load subcategory, these solicitations included reducing the
low load electric sales threshold to 15 percent (88 FR 33321), a second
BSER component based on co-firing low-GHG hydrogen (88 FR 33286), and a
BSER based on the use of high efficiency simple cycle combustion
turbines that would include an initial performance test (88 FR 33285).
For the intermediate load subcategory, the Agency solicitated comment
on an earlier timing of the second component of the BSER and reducing
the upper intermediate load electric sales threshold to a range of 29
to 35 percent for simple cycle turbines and to a range of 40 to 49
percent for combined cycle, depending on the design efficiency of the
combustion turbine (88 FR 33319). The EPA also solicited comment on a
BSER based on higher percentages of low-GHG hydrogen co-firing and
subcategorizing intermediate load simple cycle and combined cycle
turbines and establishing a BSER based on co-firing low-GHG hydrogen
for both subcategories (88 FR 33332). This could have the impact of
reducing the ability of owners/operators of new intermediate load
combustion turbines to use efficient generation as a compliance
alternative because combined cycle turbines could not be used as a
compliance alternative to co-firing low-GHG hydrogen in a simple cycle
combustion turbine. (The EPA notes that the scope of the IRFA is
limited to the NSPS and does not include the proposed Emission
Guidelines, so this request for comments does not include impacts on
small existing sources.) In addition, the EPA is soliciting comment on
measures to mitigate reliability concerns raised by small businesses,
which were similar to concerns raised by some commenters on the
proposed rules. Because mechanisms to address reliability concerns are
relevant to many entities in the electricity sector, we are more
broadly soliciting comment on reliability issues. The EPA requests that
commenters identify which small entity they are representing, how the
specific requirements could impact the small entity, and how the
suggested approach would reduce burden to the small entity.
A. Subcategorization
During the SBAR Panel outreach, small entity representatives (SERs)
expressed concerns that control requirements on rural electric
cooperatives may present an additional hardship on economically
disadvantaged communities and on small entities. SERs stated that the
EPA should further evaluate potential increased energy costs,
transmission upgrade costs, and infrastructure encroachment which may
directly affect the disproportionately impacted communities.
Additionally, SERs stated that neither hydrogen co-firing nor carbon
capture and storage (CCS) can be BSER because neither technology is
commercially available or viable in very rural areas. The EPA is
soliciting comment on potential exclusions or subcategories that may
address the concerns of small entities. Such
[[Page 80684]]
exclusions or subcategories, if available, must be based on the class,
type, or size of the sources and be consistent with the Clean Air Act.
Additionally, consistent with the SBAR panel report, the EPA solicits
comment on whether ``rural electric cooperatives and small utility
distribution systems (serving 50,000 customers or less) can expect to
have access to hydrogen or CCS infrastructure, and if a subcategory for
these units is appropriate.''
B. Reliability Mechanisms
During the SBAR Panel outreach, SERs raised concerns regarding
potential reliability impacts of the proposed rules, and many of those
concerns were similarly raised by commenters on the May 2023 proposal.
Commenters requested additional pathways to enable EGUs to operate
notwithstanding compliance schedules, based on a showing of reliability
need by the relevant balancing authority, Regional Transmission
Organizations (RTO), or Independent System Operator (ISO). Commenters
also suggested the EPA provide flexibilities for situations outside the
control of affected sources (e.g., delay in the issuance of a relevant
permit needed to meet the standards of performance, infrastructure
delays, or supply chain disruptions) that could lead to adverse impacts
on grid reliability. The EPA recognizes that it is difficult to
separate SERs' reliability comments from broader considerations of
reliability in the context of this rulemaking. Therefore, the EPA will
consider all comments we receive on this issue whether or not they are
small business focused. The EPA is soliciting detailed comment on
whether the Agency should include a specific mechanism or mechanisms to
address grid reliability needs that may arise during implementation of
its final rules, specifically:
Tools and mechanisms already available to balancing
authorities, RTOs, ISOs, and other reliability authorities to address
reliability challenges;
Circumstances and conditions that should be accounted for
in a mechanism or mechanisms to address reliability concerns, including
(i) concerns driven by events, such as extreme weather, unexpected
generator outages, and unanticipated transmission line disruption; and
(ii) concerns driven by supply chain or construction delays or
disruptions for new generation, transmission lines, or other
infrastructure as well as delays in permit issuance for controls
required to meet the standards of performance;
The technical form and structure of such a mechanism or
mechanisms, such as an extension of the compliance date or a temporary,
alternative standard of performance, and supporting details describing
whether such a mechanism or mechanisms should be automated to enable
extensions;
Detailed descriptions of other reliability mechanisms or
ways to address commenters' reliability concerns, including phase-in
considerations for small entities;
What information would be ample and appropriate, but not
overly burdensome, to substantiate the need for and use of such a
mechanism or mechanisms, including any appropriate documentation from
balancing authorities, RTOs, or ISOs (the EPA specifically solicits
comment on approaches that would minimize potential documentation
burden); and
Lessons learned from the architecture of any previously
proposed or finalized reliability mechanisms and the use of the
mechanism in practice.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 14094: Modernizing Regulatory Review
This action is a ``significant regulatory action'' as defined in
Executive Order 12866, as amended by Executive Order 14094.
Accordingly, EPA submitted this action to the Office of Management and
Budget (OMB) for Executive Order 12866 review. Documentation of any
changes made in response to the Executive Order 12866 review is
available in the docket.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. For 40 CFR part 60, subpart TTTT, OMB has previously
approved the information collection activities contained in the
existing regulations and has assigned OMB control number 2060-0685. For
40 CFR part 60, subpart TTTTa, the Information Collection Request (ICR)
document that the EPA prepared has been assigned EPA ICR number
2771.01. For 40 CFR part 60, subpart UUUUb, the ICR document that the
EPA prepared has been assigned EPA ICR number 2770.01.
C. Regulatory Flexibility Act (RFA)
Pursuant to section 603 of the RFA, the EPA prepared an Initial
Regulatory Flexibility Analysis (IRFA) that examines the impact of the
proposed rule on small entities along with regulatory alternatives that
could minimize that impact. The complete IRFA is available for review
in the docket and is summarized here.
The IRFA describes the reason why the proposed rule is being
considered and describes the objectives and legal basis of the proposed
rule, as well as discusses related rules affecting the power sector.
The IRFA describes the EPA's examination of small entity effects prior
to proposing a regulatory option and provides information about steps
taken to minimize significant impacts on small entities while achieving
the objectives of the rule.
The EPA also summarized the potential regulatory cost impacts of
the proposed rule and alternatives in Section 5.3 of the RIA.\3\ The
analysis in the IRFA drew upon some of the same analyses and
assumptions as the analyses presented in the RIA.
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\3\ See Docket ID No. EPA-HQ-OAR-2023-0072-0007.
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We estimated cost-to-sales ratios (CSR) for each small entity to
summarize the impacts of the proposed new source rule on small entities
that build new natural gas combined cycle (NGCC) and natural gas
combustion turbines (NGCT) units over the forecast period. For NGCT
additions, we find that average compliance costs are expected to be
negative. For NGCC additions, 8 small entities are potentially affected
based on historical build patterns and projected economic additions. Of
these 8 small entities, none are projected to have cost-to-sales ratios
greater than 1 percent. The analysis above is subject to a number of
caveats and limitations. These are discussed in detail in Section 5 of
the IRFA.
As required by section 609(b) of the RFA, the EPA also convened an
SBAR Panel to obtain advice and recommendations from small entity
representatives that potentially would be subject to the rule's
requirements. The SBAR Panel evaluated the assembled materials and
small-entity comments on issues related to elements of an IRFA. A copy
of the full SBAR Panel Report is available in the rulemaking docket
(EPA-HQ-OAR-2023-0072).
D. Unfunded Mandates Reform Act of 1995 (UMRA)
This action does not contain any unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any State,
local or Tribal governments or the private sector.
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E. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action does not have Tribal implications as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks Populations and Low-Income Populations
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive Order.
Therefore, this action is not subject to Executive Order 13045
because it does not concern an environmental health risk or safety
risk. Since this action does not concern human health, EPA's Policy on
Children's Health also does not apply.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy because this action only solicits
comments on regulatory alternatives for small businesses.
I. National Technology Transfer and Advancement Act (NTTAA) and 1 CFR
Part 51
This rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations and
Executive Order 14096: Revitalizing Our Nation's Commitment to
Environmental Justice for All
The EPA believes that this type of action does not concern human
health or environmental conditions and therefore cannot be evaluated
with respect to potentially disproportionate and adverse effects on
communities with environmental justice concerns because this action
only solicits comments on regulatory alternatives for small businesses.
Michael S. Regan,
Administrator.
[FR Doc. 2023-25580 Filed 11-17-23; 8:45 am]
BILLING CODE 6560-50-P