Stephen D. Page, Director of EPA’s Office of Air Quality Planning & Standards, signed the following notice on 

2/5/2014, 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. Please 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-HQ-OAR-2013-0495. 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, director of EPA’s Office of Air

Quality Planning & Standards, on 2/5/2014. We have taken steps to ensure the accuracy of this version, but it is 

not the official version.

6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 60, 70, 71 and 98

[EPA-HQ-OAR-2013-0495; FRL-]

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).

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 (79 FR 

1430). 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 
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This document is a prepublication version, signed by Stephen D. Page, director of EPA’s Office of Air

Quality Planning & Standards, on 2/5/2014. 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 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 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 aand-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: 
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This document is a prepublication version, signed by Stephen D. Page, director of EPA’s Office of Air

Quality Planning & Standards, on 2/5/2014. We have taken steps to ensure the accuracy of this version, but it is 

not the official version.

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-OAR2013-0495. 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-
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This document is a prepublication version, signed by Stephen D. Page, director of EPA’s Office of Air

Quality Planning & Standards, on 2/5/2014. 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 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 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 CDROM you submit. If the EPA cannot read your comment due to 
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This document is a prepublication version, signed by Stephen D. Page, director of EPA’s Office of Air

Quality Planning & Standards, on 2/5/2014. 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 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
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This document is a prepublication version, signed by Stephen D. Page, director of EPA’s Office of Air

Quality Planning & Standards, on 2/5/2014. 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 (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 Entitiesa

Category NAICS*

Code

Examples of Potentially Affected 

Entities

Industry 221112 Fossil fuel electric power generating 

units.

Federal 

Government 221112b Fossil fuel electric power generating units owned by the federal government.

State/Local 

Government 221112b 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 System
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This document is a prepublication version, signed by Stephen D. Page, director of EPA’s Office of Air

Quality Planning & Standards, on 2/5/2014. 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 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.

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 
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This document is a prepublication version, signed by Stephen D. Page, director of EPA’s Office of Air

Quality Planning & Standards, on 2/5/2014. 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 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 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 section 111 of the Clean Air Act....1

 

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 §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 more 
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This document is a prepublication version, signed by Stephen D. Page, director of EPA’s Office of Air

Quality Planning & Standards, on 2/5/2014. 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 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 

 

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 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))].
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This document is a prepublication version, signed by Stephen D. Page, director of EPA’s Office of Air

Quality Planning & Standards, on 2/5/2014. We have taken steps to ensure the accuracy of this version, but it is 

not the official version.

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 
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This document is a prepublication version, signed by Stephen D. Page, director of EPA’s Office of Air

Quality Planning & Standards, on 2/5/2014. 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 

Stationary Sources: Electric Utility Generating Units

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This document is a prepublication version, signed by Stephen D. Page, director of EPA’s Office of Air

Quality Planning & Standards, on 2/5/2014. 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

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: 

______________________

Stephen D. Page,

Director, Office of Air Quality 

 Planning and Standards.