Stephen D. Page, Director of EPA’s Office of Air Quality Plann ing & Standards, signed the following notice on 2/5 /201 4 , and EPA is submitting it for publication in the Federal Register (FR). While we have taken steps to ensure the accuracy of this Internet version of this notice, it is not the official version. Plea se refer to the official version in a forthcoming FR publication, which will appear on the Government Printing Office's FDSys website ( http://fdsys.gpo.gov/fdsys/search/home.action ) and on Regulations.gov ( http://www.regulations.gov ) in Docket No. EPA

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- 0495 . Once the official version of this document is published in the FR, this version will be removed from the Internet and replaced with a link to the official version.

This document is a prepublication version, signed by Stephen D. Page, di rector of EPA’s Office of Air Qualit y Planning & Stan dards, on 2 / 5 / 201 4 . We have taken steps to ensure the accuracy of this version, but it is not the official version. 6560

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**ENVIRONMENTAL PROTECTION AGENCY**

**40 CFR Parts 60, 70, 71 and 98**

**[EPA -**  **HQ -**  **OAR -**  **2013 -**  **0495; FRL -**  **] RIN 2060**  **- AQ91**  **Standards of Performanc e for Greenhouse Gas Emissions F**  **rom New Stationary Sources: Electric Utility Generating Units** 
**AGENCY:** Environmental Protection Agency (EPA).
**ACTION:** Notice of Data Availability (NODA).
**SUMMARY:** The EPA is issuing this NODA in support of the proposed rule titled “ Standards of Performance for Greenhouse Gas Emissions F rom New Stationary Sources: Electric Utility Generating Units ” that was published on January 8, 2014 (79 FR 1430). Through this NODA and the technical support document it referen ces, the EPA solicits comment on its interpretation of the provisions in the Energy Policy Act of 2005, in cluding 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 ru le that the best system of emission reduction for new fossil fuel

- firedPage **2** of **12**

This document is a prepublication version, signed by Stephen D. Page, di rector of EPA’s Office of Air Qualit y Planning & Stan dards, on 2 / 5 / 201 4 . We have taken steps to ensure the accuracy of this version, but it is not the official version. boiler and integrated gasification combined cycle electric utility generating units is partial carbon ca pture and sequestration.
**DATES:** Comments must be received on or before Monday, M arch 10, 2014
. **ADDRESSES:** Comments . Submit your comments, identified by Docket
ID No. EPA

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- 0495, by one of the following methods: At the website http://www.regulations.gov : Follow the instructions for submitting comments. At the website http:// www.epa.gov/oar/docket.html : Follow the instructions for submitting comments on the EPA Air and Radiation Docket website. Email : Send your comments by electronic mail (email) to a and

- r - docket@epa.gov , Attn: Docket ID No. EPA

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- 0495. Facsimile : F ax your comments to (202) 566

- 9744, Attn: Docket ID No. EPA

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. Mail : Send your comments to the EPA Docket Center, U.S. EPA, Mail Code 2822 1 T, 1200 Pennsylvania Ave., NW, Washington, DC 20460, Attn: Docket ID No. EPA

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- 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:Page **3** of **12**

This document is a prepublication version, signed by Stephen D. Page, di rector of EPA’s Office of Air Qualit y Planning & Stan dards, on 2 / 5 / 201 4 . We have taken steps to ensure the accuracy of this version, but it is not the official version. Docket ID No. EPA

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- 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 s ubmissions must include the agency name and docket ID number (EPA

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- 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.regu lations.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, Nor th Carolina 27711, Attention Docket ID No. EPA

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- 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 t hen identify electronically within the disk or CD

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This document is a prepublication version, signed by Stephen D. Page, di rector of EPA’s Office of Air Qualit y Planning & Stan dards, on 2 / 5 / 201 4 . We have taken steps to ensure the accuracy of this version, but it is not the official version. 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 in formation 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 prote cted. The www.regulations.gov website 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 toPage **5** of **12**

This document is a prepublication version, signed by Stephen D. Page, di rector of EPA’s Office of Air Qualit y Planning & Stan dards, on 2 / 5 / 201 4 . We have taken steps to ensure the accuracy of this version, but it is not the official version. technical difficulties and cannot contact you for clarification, the EPA may not be able to c onsider 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 mat erials 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; telephonePage **6** of **12**

This document is a prepublication version, signed by Stephen D. Page, di rector of EPA’s Office of Air Qualit y Planning & Stan dards, on 2 / 5 / 201 4 . We have taken steps to ensure the accuracy of this version, but it is not the official version. 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 (91 9) 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 pur pose 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** 
**Category NAICS**  ***** **Code Examples of Potentially Affec**  **ted Entities**  Industry 221112 Fossil fuel electric power generating units. Federal Government 221112 b Fossil fuel electric power generating units owned by the federal government. State/Local Government 221112 b Fossil fuel electric power generating units owned by municipalities. Tribal Government 921150 Fossil fuel electric power generating units in Indian Country.

* North American Industry Classification SystemPage **7** of **12**

This document is a prepublication version, signed by Stephen D. Page, di rector of EPA’s Office of Air Qualit y Planning & Stan dards, on 2 / 5 / 201 4 . We have taken steps to ensure the accuracy of this version, but it is not the official version. a Includes NAICS categories for source categories that own and operate electric power genera ting 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. This table is not intended to be e xhaustive 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. I f 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 p**  **urpose of this NODA?** 
On January 8, 2014 , the EPA published the proposed rule , “Standards of Performance for Greenhouse Gas Emissio ns
F r om New Stationary Sources: Electric Utility Generating Units , ” (79 FR 1430) which was issued pursuant to Clean Air Act (CAA)

s ection 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 determinat ion that the best system of emission reduction ( BSER ) for those sources is partial carbon capture andPage **8** of **12**

This document is a prepublication version, signed by Stephen D. Page, di rector of EPA’s Office of Air Qualit y Planning & Stan dards, on 2 / 5 / 201 4 . We have taken steps to ensure the accuracy of this version, but it is not the official version. sequestration ( CCS )
. The EPA today is providing a technical support document ( TSD ) that addresses the interaction of the determination of BSER in the prop osed 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 e mploy advanced technology, EPAct 05 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 4 02(i) of the EPAct05, codified at 42 USC section 15962(i), provides as follows , insofar as is presently relevant : No technology, or level of emission reduction, solely by reason of the use of the technology, or the achievement of the emission reduction, by 1 or more facilities receiving assistance under this Act, shall be considered to be (1) adequately demonstrated for purposes of sec tion 111 of the Clean Air Act.... 1

1 In addition, EPAct05 Title IV amended th e 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 §421(a), a constraint similar to EPAct05 §402(i). As amended by EPAct05 §421(a), EPAct92 §3103(e) (42 U.S.C. 13573(e)) and EPAct92 §3104(d) (42 U.S.C. 13574(d)), provide: Applicability.

-- No technology, or level of emission reduction , shall be treated as adequately demonstrated for purpose of section 111 of the Clean Air Act (42 U.S.C. 7411), achievable for purposes of section 169 of that Act (42 U.S.C. 7479), or achievable in practice for purposes of section 171 of that Act (42 U.S.C . 7501) solely by reason of the use of such technology, or the achievement of such emission reduction, by one or morePage **9** of **12**

This document is a prepublication version, signed by Stephen D. Page, di rector of EPA’s Office of Air Qualit y Planning & Stan dards, on 2 / 5 / 201 4 . We have taken steps to ensure the accuracy of this version, but it is not the official version. (Emphasis added.) In addition, internal revenue code ( IRC ) section 48A(g), codified at 26 USC section 48A (g), provides

-- 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 (1) adequately demonstrated for purposes of section 111 of the Clean Air Act. As explained in the TSD, the EPA’s preliminary interpretation of th ese provision s 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 determinat ion 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

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))] ; ( String Cite)
... (42 U.S.C. 7501)solely by reason of the use of such technology, or the achievement of such emission reduction, (42 U.S.C. 7501) solely by reason of the use of such technology, or the achievement of such emission reduction, by one or more faci lities 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))].Page **10** of **12**

This document is a prepublication version, signed by Stephen D. Page, di rector of EPA’s Office of Air Qualit y Planning & Stan dards, on 2 / 5 / 201 4 . We have taken steps to ensure the accuracy of this version, but it is not the official version. solicits comment s on other issues of interpretation th at arise from the terms of IRC section 48A(g). 2014 Proposal BSER and EPAct05
. In the proposed rule, the EPA determined that impl ementation 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, i nsofar 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 be ing allocated tax credit s pursuant to IRC se ction 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 propose d standards , which are based on its determin ation 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 provis ions in EPAct05, including IRCPage **11** of **12**

This document is a prepublication version, signed by Stephen D. Page, di rector of EPA’s Office of Air Qualit y Planning & Stan dards, on 2 / 5 / 201 4 . We have taken steps to ensure the accuracy of this version, but it is not the official version. section 48A(g), that limit the EPA’s authority to rely on certain information in rulemaking under CAA section 111.**Standards of Performance for Greenhouse Gas Emissions from New Stationar**  **y Sources: Electric Utility Generating Units** Page **12** of **12**

This document is a prepublication version, signed by Stephen D. Page, di rector of EPA’s Office of Air Qualit y Planning & Stan dards, on 2 / 5 / 201 4 . We have taken steps to ensure the accuracy of this version, but it is not the official version. **List of Subjects 40 CFR Part 60**  Environ mental 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 protectio n, Greenhouse gases and monitoring, Reporting and recordkeeping requirements.

______________________ Dated:

______________________ Stephen D. Page, Director, Office of Air Quality Planning and Standards.