[Federal Register Volume 82, Number 10 (Tuesday, January 17, 2017)]
[Notices]
[Pages 4864-4866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00941]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OAR-2013-0602; FRL-9958-45-OAR]


Denial of Reconsideration and Administrative Stay of the Emission 
Guidelines for Greenhouse Gas Emissions and Compliance Times for 
Electric Utility Generating Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final action denying petitions for reconsideration 
and petitions for administrative stay.

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SUMMARY: The U.S. Environmental Protection Agency (EPA) received 38 
petitions for reconsideration of the final Carbon Pollution Emission 
Guidelines for Existing Stationary Sources: Electric Utility Generating 
Units, published in the Federal Register on October 23, 2015. The 
agency is providing notice that it denied the petitions for 
reconsideration except to the extent they raise topics concerning 
biomass and waste-to-energy, and it is deferring action on the 
petitions to the extent they raised those topics. The EPA also received 
22 petitions for an administrative stay of this rule. The agency is 
providing notice that it denied these petitions. The basis for the 
EPA's actions is set out fully in letters sent to the petitioners and a 
separate memorandum available in the rulemaking docket.

DATES: The EPA took final action to deny the petitions for 
reconsideration except to the extent they raised certain topics, and to 
deny petitions for an administrative stay, on January 11, 2017.

FOR FURTHER INFORMATION CONTACT: Joseph Goffman, Office of Air and 
Radiation (6101A), U.S. EPA, 1200 Pennsylvania Avenue NW., Washington, 
DC 20460; telephone number (202)564-7400, facsimile number (202) 564-
1408; email address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Where can I get a copy of this document and other related 
information?

    A copy of this Federal Register notice, the petitions for 
reconsideration,

[[Page 4865]]

the petitions for an administrative stay, the letters taking action on 
those petitions, and the separate memorandum describing the full basis 
for those actions will be available in the rulemaking docket (Docket ID 
EPA-HQ-OAR-2013-0602). In addition, following signature, an electronic 
copy of these documents will be available on the World Wide Web (WWW) 
at the following address: https://www.epa.gov/cleanpowerplan.

II. Judicial Review

    Section 307(b)(1) of the Clean Air Act (CAA) specifies which 
Federal Courts of Appeal have venue over petitions for review of final 
EPA actions. This section provides, in part, that ``a petition for 
review of action of the Administrator in promulgating . . . any 
standard of performance or requirement under section [111] of [the 
CAA],'' or any other ``nationally applicable'' final action, ``may be 
filed only in the United States Court of Appeals for the District of 
Columbia.''
    The EPA has determined that its actions denying the petitions for 
reconsideration or for an administrative stay are nationally applicable 
for purposes of CAA section 307(b)(1) because the action directly 
affects the Emission Guidelines for Greenhouse Gas Emissions and 
Compliance Times for Electric Utility Generating Units, which are 
nationally applicable CAA section 111 standards. Thus, any petitions 
for review of the EPA's decision to deny petitioners' requests for 
reconsideration or for an administrative stay must be filed in the 
United States Court of Appeals for the District of Columbia by March 
20, 2017.

III. Background and Summary of the Action

    On October 23, 2015, pursuant to section 111 of the CAA, the EPA 
published the final rule titled ``Carbon Pollution Emission Guidelines 
for Existing Stationary Sources: Electric Utility Generating Units.'' 
80 FR 64661. Following promulgation of the final emission guidelines, 
the Administrator received petitions for reconsideration of certain 
provisions of the final rule pursuant to CAA section 307(d)(7)(B) and 
petitions for an administrative stay under the Administrative Procedure 
Act (APA), 5 U.S.C. 705 and CAA section 307(d)(7)(B).
    CAA section 307(d)(7)(B) requires the EPA to convene a proceeding 
for reconsideration of a rule if a party raising an objection to the 
rule ``can demonstrate to the Administrator that it was impracticable 
to raise such objection within [the public comment period] or if the 
grounds for such objection arose after the period for public comment 
(but within the time specified for judicial review) and if such 
objection is of central relevance to the outcome of the rule.'' The 
requirement to convene a proceeding to reconsider a rule is thus based 
on the petitioner demonstrating to the EPA both: (1) That it was 
impracticable to raise the objection during the comment period, or that 
the grounds for such objection arose after the comment period, but 
within the time specified for judicial review (i.e., within 60 days 
after publication of the final rulemaking notice in the Federal 
Register, see CAA section 307(b)(1)); and (2) that the objection is of 
central relevance to the outcome of the rule.
    The EPA received 38 petitions for reconsideration of the CAA 
section 111(d) greenhouse gas emission guidelines from the following 
entities: Alabama Department of Environmental Management (DEM); Ameren 
Corporation (Ameren); American Electric Power System (AEP); Arkansas 
Office of the Attorney General (Arkansas); Basin Electric Power 
Cooperative (Basin); Biogenic CO2 Coalition; Biomass Power 
Association (BPA), the Energy Recovery Council (ERC) and the Local 
Government Coalition for Renewable Energy (LGCRE); Commonwealth of 
Kentucky (Kentucky); Dairyland Power Cooperative, Madison Gas and 
Electric Company, We Energies, Wisconsin Power and Light Company, 
Wisconsin Public Service Corporation, and WPPI Energy (Wisconsin 
utilities); Denbury Onshore, LLC (Denbury); Energy and Environment 
Legal Institute; ERC; Entergy; Hoosier Energy Rural Electric 
Cooperative, Eastern Kentucky Power Cooperative, and Minnkota Power 
Cooperative; Intermountain Power Agency; Kansas Department of Health 
and Environment (DHE); LGCRE; Louisville Gas & Electric Company (LG&E) 
and Kentucky Utilities Company (KU); Mississippi Department of 
Environmental Quality (DEQ); Mississippi Public Service Commission 
(PSC); National Alliance of Forest Owners (NAFO); National Association 
of Home Builders; National Rural Electric Cooperative Association 
(NRECA); Newmont Nevada Energy Investment LLC and Newmont USA Limited 
(Newmont); NorthWestern Energy; Oglethorpe Power Corporation 
(Oglethorpe); Prairie State Generating Company, LLC (Prairie State); 
Southern Company; State of Montana Office of the Attorney General 
(Montana); State of Nebraska Office of the Attorney General and 
Nebraska Department of Environmental Quality (Nebraska); State of New 
Jersey Department of Environmental Protection (DEP); State of North 
Dakota Office of the Attorney General (North Dakota); State of Texas 
Office of the Attorney General, Texas Commission on Environmental 
Quality, Public Utility Commission of Texas, and the Railroad 
Commission of Texas (Texas); State of West Virginia Office of the 
Attorney General (West Virginia); State of Wisconsin, Wisconsin 
Department of Natural Resources, and Public Service Commission of 
Wisconsin (Wisconsin); State of Wyoming (Wyoming); Utility Air 
Regulatory Group (UARG); and Westar Energy Incorporated (Westar 
Energy).
    In letters to petitioners, the EPA denied 31 of the petitions for 
reconsideration in full, and denied Kentucky's and Oglethorpe's 
petition for reconsideration except to the extent they raised the topic 
of biomass, as not satisfying one or both of the statutory conditions 
for compelled reconsideration. The EPA is deferring action on the 
petitions to the extent they cover the topics of biomass and waste-to-
energy.\1\ The EPA is deferring with respect to biomass pending our 
further on-going consideration of the underlying issue of whether and 
how to account for biomass when co-firing with fossil fuels.
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    \1\ These topics were included in the petitions of the Biogenic 
CO2 Coalition, Biomass Power Association, Kentucky, ERC, 
LGCRE, Oglethorpe, and NAFO.
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    We discuss each of the topics in the petitions we denied and the 
basis for those denials in a separate, docketed memorandum titled 
``Basis for Denial of Petitions to Reconsider and Petitions to Stay the 
CAA Section 111(d) Emission Guidelines for Greenhouse Gas Emissions and 
Compliance Times for Electric Utility Generating Units.'' For reasons 
set out in the memorandum, the EPA denied the petitions for 
reconsideration for the following petitioners: Alabama DEM; Ameren; 
AEP; Arkansas; Basin; Kentucky \2\; Wisconsin utilities; Denbury; 
Energy and Environment Legal Institute; Entergy; Hoosier Energy Rural 
Electric Cooperative, Eastern Kentucky Power Cooperative, and Minnkota 
Power Cooperative; Intermountain Power Agency; Kansas DHE; LG&E and KU; 
Mississippi DEQ; Mississippi PSC; National Association of Home 
Builders; NRECA; Newmont; NorthWestern Energy; Oglethorpe; Prairie 
State; Southern Company; Montana; Nebraska;

[[Page 4866]]

New Jersey DEP; North Dakota; Texas; West Virginia; Wisconsin; Wyoming; 
UARG; and Westar Energy.
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    \2\ As noted, the EPA is deferring action on Kentucky's and 
Oglethorpe's petitions to the extent they raise the topic of 
biomass.
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    APA section 705 provides, ``When an agency finds that justice so 
requires, it may postpone the effective date of action taken by it, 
pending judicial review.'' 5 U.S.C. 705. Under CAA section 
307(d)(7)(B), the EPA may stay the effectiveness of a rule while it is 
being reconsidered ``for a period not to exceed three months.''
    The EPA received 22 petitions for an administrative stay under APA 
section 705 and CAA section 307(d)(7)(B).
    The EPA received petitions from West Virginia and a group of 15 
other states; Ameren; Basin; Business Associations; Denbury; Kansas 
DHE; Mississippi DEQ; Mississippi PSC; Montana; NAFO; National Mining 
Association; Nebraska; New Jersey DEP; North Dakota; NorthWestern 
Energy; Peabody Energy Corporation; Prairie State; Texas; UARG; and 
Westar Energy.
    The EPA responded to several of these petitions by letters stating 
that we were not taking action on them in light of the stay imposed on 
the rule by the U.S. Supreme Court on February 7, 2016. Subsequently, 
the EPA sent letters to all the petitioners denying each of these 
petitions for the reasons explained in the memorandum referred to 
above, ``Basis for Denial of Petitions to Reconsider and Petitions to 
Stay the CAA Section 111(d) Emission Guidelines for Greenhouse Gas 
Emissions and Compliance Times for Electric Utility Generating Units.''

    Dated: January 11, 2017.
Gina McCarthy,
Administrator.
[FR Doc. 2017-00941 Filed 1-13-17; 8:45 am]
 BILLING CODE 6560-50-P