[Federal Register Volume 74, Number 53 (Friday, March 20, 2009)]
[Rules and Regulations]
[Pages 11858-11862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6163]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2004-0490; FRL-8784-4]
RIN 2060-AO23


Standards of Performance for Stationary Combustion Turbines

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is taking direct final action on amendments to the sulfur 
dioxide air emission standards for stationary combustion turbines that 
burn biogas (landfill gas, digester gas, etc.). Without these 
amendments, owners/operators of new stationary combustion turbines 
burning biogas containing relatively low amounts of sulfur-containing 
compounds will be required to install pretreatment facilities to remove 
the sulfur compounds prior to combustion or to install post combustion 
controls to lower sulfur dioxide emissions. It was not EPA's intent to 
require the use of either of these approaches, and the costs associated 
with either approach are substantially greater than the environmental 
benefit resulting from the decrease in sulfur dioxide emissions.

DATES: This direct final rule is effective on May 19, 2009 without 
further notice, unless EPA receives relevant adverse comment by April 
20, 2009. If EPA receives relevant adverse comment, we will publish a 
timely withdrawal in the Federal Register informing the public that the 
amendments in this rule will not take effect.

ADDRESSES: Comments: Submit your comments, identified by Docket ID No. 
EPA-HQ-OAR-2008-0748 by one of the following methods:
    1. http://www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. E-mail: [email protected] and [email protected].
    3. Facsimile: (202) 566-9744.
    4. Mail: U.S. Postal Service, send comments to: Air and Radiation 
Docket, Environmental Protection Agency, Mailcode: 6102T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460. Please include a total of 
two copies.
    5. Hand Delivery: Deliver in person or by courier to: EPA Docket 
Center, Public Reading Room, EPA West, Room 3334, 1301 Constitution 
Ave., NW., Washington, DC 20460. Such deliveries are only accepted 
during the Docket's normal hours of operation, and special arrangements 
should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OAR-
2084-0748. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov. This includes any personal information 
provided, unless the comment contains 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 e-mail. 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, Environmental Protection Agency, Research Triangle Park, 
North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2008-0748. 
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 EPA, mark 
the outside of the disk or CD-ROM as CBI and then electronically 
identify within the disk or CD-ROM the specific information that is 
claimed as CBI. In addition to one complete version of the comment that 
includes information claimed as CBI, a copy of the comment that does 
not contain the information claimed as CBI must be submitted for 
inclusion in the public docket. Information so marked will not be

[[Page 11859]]

disclosed except in accordance with procedures set forth in 40 CFR part 
2.
    The http://www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail 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, 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 EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, 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. For additional information about EPA's public docket, visit 
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    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 
in http://www.regulations.gov or in hard copy at the National Emission 
Standards for Hazardous Air Pollutants for Four Area Source Categories 
Docket, EPA/DC, EPA West, 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 legal 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.

FOR FURTHER INFORMATION CONTACT: 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, electronic mail (e-mail) address: 
[email protected].

SUPPLEMENTARY INFORMATION: The information presented in this preamble 
is organized as follows:

I. Why is EPA using a direct final rule?
II. Does this action apply to me?
III. Where can I get a copy of this document?
IV. Why are we amending the rule?
V. What amendments are we making to the rule?
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Why is EPA using a direct final rule?

    We are publishing the rule without a prior proposed rule because we 
view this as a non-controversial action and anticipate no adverse 
comment. As explained below, this action amends the sulfur dioxide 
emission limit for the stationary combustion turbine new source 
performance standards, subpart KKKK of 40 CFR part 60, to account for 
the lower heating value of biogas relative to distillate oil. Without 
these amendments, the rule will require owners/operators of new 
stationary combustion turbines burning biogas containing relatively low 
concentrations of sulfur-containing compounds to either install 
pretreatment facilities to remove the sulfur from the gas prior to 
combustion or post combustion controls to lower sulfur dioxide 
emissions. This requirement is problematic for a number of reasons. 
First, we did not intend this outcome. Second, since the outcome was 
not intended, it was not reflected in the proposed rule (70 FR 3814) 
thereby depriving people of a meaningful opportunity to comment on the 
requirement. Third, we have concluded that the costs associated with 
either of these options are substantially greater than any 
environmental benefit resulting from the decrease in sulfur dioxide 
emissions.
    If we receive relevant adverse comment on this direct final rule, 
we will publish a timely withdrawal in the Federal Register informing 
the public that the amendments in this rule will not take effect. Any 
parties interested in commenting must do so at this time.

II. Does this action apply to me?

    The categories and entities potentially regulated by this direct 
final rule include, but are not limited to, the following:

------------------------------------------------------------------------
                                                  Examples of regulated
              Category                NAICS \1\          entities
------------------------------------------------------------------------
Industry............................       2211  Electric services.
                                         486210  Natural gas
                                                  transmission.
                                         211111  Crude petroleum and
                                                  natural gas.
                                         211112  Natural gas liquids.
                                            221  Electric and other
                                                  services, combined.
------------------------------------------------------------------------
\1\ North American Industry Classification System (NAICS) code.

III. Where can I get a copy of this document?

    In addition to the docket, an electronic copy of this final action 
will be available on the Worldwide Web (WWW) through the Technology 
Transfer Network (TTN). Following signature, a copy of this final 
action will be posted on the TTN's policy and guidance page for newly 
proposed or promulgated rules at the following address: http://www.epa.gov/ttn/oarpg/. The TTN provides information and technology 
exchange in various areas of air pollution control.

IV. Why are we amending the rule?

    The proposal for subpart KKKK (70 FR 8314) included a fuel-based 
sulfur dioxide (SO2) limit of 500 parts per million by 
weight (ppmw) sulfur. The rule, as adopted, (71 FR 38482) contains a 
fuel-based SO2 limit of 0.060 pounds per million British 
thermal units (lb/MMBtu). The adopted SO2 limit was based on 
the potential SO2 emissions rate of natural gas containing 
20 grains of sulfur per 100 standard cubic feet and 500 ppmw sulfur 
distillate oil. The change from a fuel-based limit to a

[[Page 11860]]

potential SO2 emission rate was not intended to 
substantially change the stringency of the standard. However, fuels 
with low energy density, such as biogas, have a higher potential 
SO2 emission rate relative to the sulfur concentration in 
the fuel because of their lower heating value. As a result, this change 
in format is causing difficulties for owners/operators of new 
stationary combustion turbines planning to burn landfill gas. We did 
not intend, in adopting the rule, to require biogas projects (landfill 
gas, digester gas, etc.) burning fuel with less than 500 ppmw sulfur, 
but having a potential SO2 emission rate of greater than 
0.060 lb/MMBtu due to the low heating value of the gas, to install an 
SO2 control device.
    Much of the biogas generated in the United States has a potential 
SO2 emissions rate of less than 0.060 lb/MMBtu; however, 
this is not true in all cases. It was not our intent to require owners/
operators of biogas projects containing higher, but still moderate, 
amounts of sulfur-containing compounds to install additional controls. 
The control requirement was not supported by our impacts analysis or by 
public comments received on the proposal. Furthermore, the costs 
associated with installing and operating any such controls 
substantially outweigh any environmental benefits resulting from lower 
sulfur emissions.
    Most of stationary combustion turbine projects burning biogas are 
small sources of criteria pollutant emissions and produce less than 10 
megawatts of power. Biogas projects that use moderate amounts of 
sulfur-containing compounds would have less attractive economic returns 
if required to achieve an emissions rate of 0.060 lb SO2/
MMBtu due to the substantial costs associated with installing and 
operating the necessary controls and may be cancelled. Unless an 
alternate use for biogas is found, it is often flared or directly 
vented to the atmosphere. Stationary combustion turbines that burn 
biogas have comparable emissions to landfill flares and have the added 
benefit of using an opportunity fuel that would otherwise be wasted, 
thereby reducing emissions. Accordingly, we are concerned that 
requiring biogas burning units to comply with the 0.060 lb 
SO2/MMBtu standard will result in a worse environmental 
outcome and will waste energy resources and thus would not constitute 
best demonstrated technology for such units.

V. What amendments are we making to the rule?

    As currently written, Sec.  60.4330(a)(2) requires owners/operators 
of stationary combustion turbines burning biogas containing more than 
approximately 180 ppm hydrogen sulfide (H2S) to install SO2 
controls, which was neither proposed nor intented. To remedy this, we 
are establishing a new subcategory for owners/operators of stationary 
combustion turbines burning over fifty percent biogas. The new 
subcategory will have an SO2 limit of 0.15 lb/MMBtu (closer 
to the original fuel-based 500 ppm sulfur limit) for new units, i.e., 
those for which construction, reconstruction, or modification is 
commenced after the effective date of this rule, and units presently 
subject to subpart KKKK. We are also adding a definition for biogas.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, 
therefore, not subject to review under the Executive Order.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden. 
The proposed amendments result in no changes to the information 
collection requirements of the existing standards of performance and 
will have little or no impact on the information collection estimate of 
projected cost and hour burden made and approved by the Office of 
Management and Budget (OMB) during the development of the existing 
standards of performance. Therefore, the information collection 
requests have not been amended. However, OMB has previously approved 
the information collection requirements contained in the existing 
regulations (subpart KKKK, 40 CFR part 60) under the provisions of the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq., and has assigned OMB 
control number 2060-0582 (ICR 2177.02). The OMB control numbers for 
EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act or any other statute unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of the proposed amendments on 
small entities, small entity is defined as: (1) A small business as 
defined by the Small Business Administration's regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of this direct final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities.'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule.
    Although this direct final rule will not have a significant 
economic impact on a substantial number of small entities, EPA 
nonetheless has tried to reduce the impact of this rule on small 
entities. If adopted, the amended sulfur dioxide limit for owners and 
operators of turbines burning biogas will reduce the compliance burden 
of the rule.
    Therefore, EPA has concluded that this direct final rule will 
relieve regulatory burden for all affected small entities.

D. Unfunded Mandates Reform Act

    This direct final rule reduces burden and does not contain a 
Federal mandate that may result in expenditures of $100 million or more 
for State, local, and tribal governments, in the aggregate, or the 
private sector in any 1 year. Thus, this direct final rule is not 
subject to the requirements of sections 202 and 205 of UMRA.
    This direct final rule is also not subject to the requirements of 
section 203 of UMRA because it contains no regulatory requirements that 
might significantly or uniquely affect small governments. If adopted, 
the amended

[[Page 11861]]

sulfur dioxide limit for owners and operators of turbines burning 
biogas will reduce the regulatory burden for small governments that own 
or operate stationary combustion turbines burning biogas.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that 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.''
    This direct final rule 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, as specified in Executive Order 13132. This direct final 
rule will not impose substantial direct compliance costs on State or 
local governments; it will not preempt State law. Thus, Executive Order 
13132 does not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). EPA is not aware 
of any stationary combustion turbine owned by an Indian tribe. In the 
event that an Indian tribe does own a stationary combustion turbine 
burning biogas, the amendments will benefit the tribe to the same 
extent as any other owner/operator. Thus, Executive Order 13175 does 
not apply to this action.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) 
as applying to those regulatory actions that concern health or safety 
risks, such that the analysis required under section 5-501 of the 
Executive Order has the potential to influence the regulation. This 
action is not subject to Executive Order 13045 because it is based 
solely on technology performance.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, (66 FR 28355, 
May 22, 2001) because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards (VCS) in its 
regulatory activities, unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by VCS bodies. The NTTAA directs EPA to provide Congress, 
through OMB, explanations when the Agency does not use available and 
applicable VCS.
    These direct final rule amendments do not involve technical 
standards as defined in the NTTAA. Therefore, this direct final rule is 
not subject to NTTAA.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations.

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
Federal executive policy on environmental justice. Its main provision 
directs Federal agencies, to the greatest extent practical and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this direct final rule will not have 
disproportionately high adverse human health or environmental effects 
on minority or low-income populations because it increases the level of 
environmental protection for all affected populations without having 
any disproportionately high and adverse human health or environmental 
effects on any population including any minority or low-income 
population. In the absence of the proposed amendments, the biogas would 
likely either be flared or combusted in reciprocating internal 
combustion engines. Emissions from either of these options would be 
similar or higher than the proposed amended limits for stationary 
combustion turbines burning biogas.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the direct final rule in the Federal Register. The 
direct final rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2). The direct final rule is effective May 19, 2009.

List of Subjects in 40 CFR Part 60

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Intergovernmental relations, Sulfur oxides.

    Dated: March 16, 2009.
Lisa Jackson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I, part 60, 
of the Code of Federal Regulations is amended as follows:

PART 60--[AMENDED]

0
1. The authority citation for part 60 continues to read as follows:

    Authority: 42 U.S.C. 7401, et seq.

Subpart KKKK--[AMENDED]

0
2. Section 60.4330 is amended by revising paragraph (a) to read as 
follows:


Sec.  60.4330  What emission limits must I meet for sulfur dioxide 
(SO2)?

    (a) If your turbine is located in a continental area, you must 
comply with either paragraph (a)(1), (a)(2), or (a)(3) of this section. 
If your turbine is located in Alaska, you do not have to comply with 
the requirements in paragraph (a) of this section until January 1, 
2008.
    (1) You must not cause to be discharged into the atmosphere from 
the subject stationary combustion turbine any gases which contain 
SO2 in excess of 110 nanograms per Joule (ng/J) (0.90 pounds 
per megawatt-hour (lb/MWh)) gross output;

[[Page 11862]]

    (2) You must not burn in the subject stationary combustion turbine 
any fuel which contains total potential sulfur emissions in excess of 
26 ng SO2/J (0.060 lb SO2/MMBtu) heat input. If 
your turbine simultaneously fires multiple fuels, each fuel must meet 
this requirement; or
    (3) For each stationary combustion turbine burning at least 50 
percent biogas on a calendar month basis, as determined based on total 
heat input, you must not cause to be discharged into the atmosphere 
from the affected source any gases that contain SO2 in 
excess of 65 ng SO2/J (0.15 lb SO2/MMBtu) heat 
input.
* * * * *

0
3. Section 60.4420 is amended by adding the definition of ``Biogas'' in 
alphabetical order to read as follows:


Sec.  60.4420  What definitions apply to this subpart?

* * * * *
    Biogas means gas produced by the anaerobic digestion or 
fermentation of organic matter including manure, sewage sludge, 
municipal solid waste, biodegradable waste, or any other biodegradable 
feedstock, under anaerobic conditions. Biogas is comprised primarily of 
methane and CO2.
* * * * *
[FR Doc. E9-6163 Filed 3-19-09; 8:45 am]
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