[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.

[[Page 80685]]

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