[Federal Register Volume 79, Number 38 (Wednesday, February 26, 2014)]
[Proposed Rules]
[Pages 10750-10752]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03115]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60, 70, 71 and 98

[EPA-HQ-OAR-2013-0495; FRL-9906-59-OAR]
RIN 2060-AQ91


Standards of Performance for Greenhouse Gas Emissions From New 
Stationary Sources: Electric Utility Generating Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Data Availability (NODA).

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SUMMARY: The EPA is issuing this NODA in support of the proposed rule 
titled ``Standards of Performance for Greenhouse Gas Emissions From New 
Stationary Sources: Electric Utility Generating Units'' that was 
published on January 8, 2014. Through this NODA and the technical 
support document it references, the EPA solicits comment on its 
interpretation of the provisions in the Energy Policy Act of 2005, 
including the federal tax credits contained in that Act, which limit 
the EPA's authority to rely on information from facilities that 
received assistance under that Act. The EPA believes those provisions 
do not alter the EPA's determination in the proposed rule that the best 
system of emission reduction for new fossil fuel-fired boiler and 
integrated gasification combined cycle electric utility generating 
units is partial carbon capture and sequestration.

DATES: Comments must be received on or before Monday, March 10, 2014.

ADDRESSES: Comments. Submit your comments, identified by Docket ID No. 
EPA-HQ-OAR-2013-0495, by one of the following methods:
    At the Web site http://www.regulations.gov: Follow the instructions 
for submitting comments.
    At the Web site http://www.epa.gov/oar/docket.html: Follow the 
instructions

[[Page 10751]]

for submitting comments on the EPA Air and Radiation Docket Web site.
    Email: Send your comments by electronic mail (email) to a-and-r-docket@epa.gov, Attn: Docket ID No. EPA-HQ-OAR-2013-0495.
    Facsimile: Fax your comments to (202) 566-9744, Attn: Docket ID No. 
EPA-HQ-OAR-2013-0495.
    Mail: Send your comments to the EPA Docket Center, U.S. EPA, Mail 
Code 28221T, 1200 Pennsylvania Ave. NW., Washington, DC 20460, Attn: 
Docket ID No. EPA-HQ-OAR-2013-0495. Please include a total of two 
copies.
    Hand Delivery or Courier: Deliver your comments to the EPA Docket 
Center, William Jefferson Clinton West Building, Room 3334, 1301 
Constitution Ave. NW., Washington, DC 20004, Attn: Docket ID No. EPA-
HQ-OAR-2013-0495. Such deliveries are accepted only during the Docket 
Center's normal hours of operation (8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding federal holidays), and special arrangements 
should be made for deliveries of boxed information.
    Instructions: All submissions must include the agency name and 
docket ID number (EPA-HQ-OAR-2013-0495). The EPA's policy is to include 
all comments received without change, including any personal 
information provided, in the public docket, available online at http://www.regulations.gov, unless the comment includes information claimed to 
be Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or email. Send or deliver information identified as 
CBI only to the following address: Roberto Morales, OAQPS Document 
Control Officer (C404-02), Office of Air Quality Planning and 
Standards, U.S. EPA, Research Triangle Park, North Carolina 27711, 
Attention Docket ID No. EPA-HQ-OAR-2013-0495. Clearly mark the part or 
all of the information that you claim to be CBI. For CBI information on 
a disk or CD-ROM that you mail to the EPA, mark the outside of the disk 
or CD-ROM as CBI and then identify electronically within the disk or 
CD-ROM the specific information you claim as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, you must submit a copy of the comment that does not contain the 
information claimed as CBI for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    The EPA requests that you also submit a separate copy of your 
comments to the contact person identified below (see FOR FURTHER 
INFORMATION CONTACT). If the comment includes information you consider 
to be CBI or otherwise protected, you should send a copy of the comment 
that does not contain the information claimed as CBI or otherwise 
protected.
    The www.regulations.gov Web site is an ``anonymous access'' system, 
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 http://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 disk or 
CD-ROM 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 avoid the use 
of special characters, any form of encryption and be free of any 
defects or viruses.
    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available (e.g., CBI or other information 
whose disclosure is restricted by statute). Certain other material, 
such as copyrighted material, will be publicly available only in hard 
copy. Publicly available docket materials are available either 
electronically at http://www.regulations.gov or in hard copy at the EPA 
Docket Center, William Jefferson Clinton West Building, Room 3334, 1301 
Constitution Ave. NW., Washington, DC. The Public Reading Room is open 
from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding federal 
holidays. The telephone number for the Public Reading Room is (202) 
566-1744, and the telephone number for the Air Docket is (202) 566-
1742. Visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm for additional information about the EPA's public 
docket.

FOR FURTHER INFORMATION CONTACT: Dr. Nick Hutson, Energy Strategies 
Group, Sector Policies and Programs Division (D243-01), U.S. EPA, 
Research Triangle Park, NC 27711; telephone number (919) 541-2968, 
facsimile number (919) 541-5450; email address: hutson.nick@epa.gov or 
Mr. Christian Fellner, Energy Strategies Group, Sector Policies and 
Programs Division (D243-01), U.S. EPA, Research Triangle Park, NC 
27711; telephone number (919) 541-4003, facsimile number (919) 541-
5450; email address: fellner.christian@epa.gov.

SUPPLEMENTARY INFORMATION: Outline. The information presented in this 
NODA is organized as follows:

I. Does this action apply to me?
II. What are the background and purpose of this NODA?

I. Does this action apply to me?

    The entities potentially affected by the determination that is at 
issue in this NODA are shown in Table 1 below.

               Table 1--Potentially Affected Entities \a\
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                                                 Examples of potentially
            Category              NAICS * code      affected entities
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Industry.......................          221112  Fossil fuel electric
                                                  power generating
                                                  units.
Federal Government.............      \b\ 221112  Fossil fuel electric
                                                  power generating units
                                                  owned by the federal
                                                  government.
State/Local Government.........      \b\ 221112  Fossil fuel electric
                                                  power generating units
                                                  owned by
                                                  municipalities.
Tribal Government..............          921150  Fossil fuel electric
                                                  power generating units
                                                  in Indian Country.
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* North American Industry Classification System.
\a\ Includes NAICS categories for source categories that own and operate
  electric power generating units (including boilers and stationary
  combined cycle combustion turbines).
\b\ Federal, state or local government-owned and operated establishments
  are classified according to the activity in which they are engaged.


[[Page 10752]]

    This table is not intended to be exhaustive but to provide a guide 
for readers regarding entities likely to be affected by this NODA. To 
determine whether this NODA affects your facility, company, business, 
organization, etc., you should examine the applicability criteria in 40 
CFR 60.1. If you have questions regarding applicability, consult either 
the air permitting authority for the entity in question or your EPA 
regional representative as listed in 40 CFR 60.4 or 40 CFR 63.13 
(General Provisions).

II. What are the background and purpose of this NODA?

    On January 8, 2014, the EPA published the proposed rule, 
``Standards of Performance for Greenhouse Gas Emissions From New 
Stationary Sources: Electric Utility Generating Units,'' (79 FR 1430) 
which was issued pursuant to Clean Air Act (CAA) section 111. In the 
proposed rule, the EPA explains its rationale for emission standards 
for new fossil fuel-fired boiler and integrated gasification combined 
cycle (IGCC) electric utility generating units (EGUs). These standards 
are based on the determination that the best system of emission 
reduction (BSER) for those sources is partial carbon capture and 
sequestration (CCS). The EPA today is providing a technical support 
document (TSD) that addresses the interaction of the determination of 
BSER in the proposed rule and several provisions in the Energy Policy 
Act of 2005 (EPAct05), which are described immediately below.
    Limitations associated with EPAct05. In providing assistance to 
fossil fuel-fired electricity generating plants and other facilities 
that employ advanced technology, EPAct05 included several provisions 
that limit the EPA's authority to rely on information from those 
facilities in conducting rulemaking or taking other action under 
various provisions of the CAA, including section 111. Section 402(i) of 
the EPAct05, codified at 42 U.S.C. section 15962(i), provides as 
follows, insofar as is presently relevant, that no technology, or level 
of emission reduction, solely by reason of the use of the technology, 
or the achievement of the emission reduction, by one or more facilities 
receiving assistance under EPAct05, shall be considered to be 
adequately demonstrated for purposes of section 111 of the Clean Air 
Act.\1\
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    \1\ In addition, EPAct05 Title IV amended the Energy Policy Act 
of 1992 (42 U.S.C. 13201 et seq.) (EPAct92) by adding the ``Clean 
Air Coal Program'' to support and promote the production and 
generation of clean coal-based power, including supporting air 
pollution control technologies. These provisions included, in 
EPAct05 Sec.  421(a), a constraint similar to EPAct05 Sec.  402(i). 
As amended by EPAct05 Sec.  421(a), EPAct92 Sec.  3103(e) (42 U.S.C. 
13573(e)) and EPAct92 Sec.  3104(d) (42 U.S.C. 13574(d)), provides, 
insofar as is presently relevant, under the heading, 
``Applicability,'' that no technology, or level of emission 
reduction, shall be treated as adequately demonstrated for purpose 
of section 111 of the Clean Air Act solely by reason of the use of 
such technology, or the achievement of such emission reduction, by 
one or more facilities receiving assistance under section 3102(a)(1) 
or (2) of the Energy Policy Act of 1992, as amended (42 U.S.C. 
13572(a)(1)).

    In addition, internal revenue code (IRC) section 48A(g), 
codified at 26 USC section 48A(g), provides, insofar as is presently 
relevant, that no use of technology (or level of emission reduction 
solely by reason of the use of the technology), and no achievement 
of any emission reduction by the demonstration of any technology or 
performance level, by or at one or more facilities with respect to 
which a credit is allowed under this section, shall be considered to 
indicate that the technology or performance level is adequately 
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demonstrated for purposes of section 111 of the Clean Air Act.

    As explained in the TSD, the EPA's preliminary interpretation of 
these provisions is that EPA may not rely on information from 
facilities that have received assistance under EPAct05, including being 
allowed tax credits under IRC section 48A, as the sole basis for a 
determination that a particular technology is the best system of 
emission reduction adequately demonstrated (BSER), but the EPA may rely 
on information from those facilities in conjunction from other 
information to support such a determination, or to corroborate an 
otherwise supported determination. In the TSD, the EPA also explains 
and solicits comments on other issues of interpretation that arise from 
the terms of IRC section 48A(g).
    2014 Proposal BSER and EPAct05. In the proposed rule, the EPA 
determined that implementation of partial capture CCS technology is the 
BSER for new fossil fuel-fired boilers and IGCC units because it 
fulfills the criteria established under CAA section 111. The EPA's 
rationale, insofar as is relevant for present purposes, is that partial 
capture is technically feasible and can be implemented at a reasonable 
cost. In discussing its rationale, the EPA referenced some facilities 
that have received financial assistance under the EPAct05, including 
being allocated tax credits pursuant to IRC section 48A. As explained 
in the TSD, however, the EPA's rationale does not depend solely upon 
those projects, and the determination remains adequately supported 
without any information from facilities that have been allocated the 
IRC section 48A tax credit.
    Thus, the EPA's proposed standards, which are based on its 
determination that partial capture CCS represents the best system of 
emission reduction adequately demonstrated, are not beyond the scope of 
its legal authority. As indicated in the TSD, the EPA solicits comment 
on all aspects of the interpretation of the provisions in EPAct05, 
including IRC section 48A(g), that limit the EPA's authority to rely on 
certain information in rulemaking under CAA section 111.

List of Subjects

40 CFR Part 60

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements.

40 CFR Part 70

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Reporting and 
recordkeeping requirements.

40 CFR Part 71

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Reporting and recordkeeping requirements.

40 CFR Part 98

    Environmental protection, Greenhouse gases and monitoring, 
Reporting and recordkeeping requirements.

    Dated: February 5, 2014.
Mary E. Henigin,
Acting Director, Office of Air Quality Planning and Standards.
[FR Doc. 2014-03115 Filed 2-25-14; 8:45 am]
BILLING CODE 6560-50-P