[Federal Register Volume 89, Number 192 (Thursday, October 3, 2024)]
[Notices]
[Pages 80549-80550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-22755]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket Nos. RM19-15-002; AD16-16-002]


Qualifying Facility Rates and Requirements Implementation Issues 
Under the Public Utility Regulatory Policies Act of 1978; Notice of 
Schedule for the Preparation of an Environmental Assessment for 
Qualifying Facility Rates and Requirements Implementation Issues Under 
the Public Utility Regulatory Policies Act of 1978

    On July 16, 2020, the Federal Energy Regulatory Commission 
(Commission) issued Order No. 872,\1\ approving certain revisions to 
its regulations implementing sections 201 and 210 of the Public Utility 
Regulatory Policies Act of 1978 (PURPA).\2\ On September 5, 2023, the 
U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) remanded 
Order No. 872, without vacatur, based on its finding that, pursuant to 
the National Environmental Policy Act (NEPA),\3\ the Commission must 
prepare an environmental assessment (EA) analyzing the potential 
impacts of the rule on climate change and air quality.\4\
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    \1\ Qualifying Facility Rates & Requirements; Implementation 
Issues Under the Pub. Util. Regul. Policies Act of 1978, Order No. 
872, 172 FERC ] 61,041, order on reh'g, Order No. 872-A, 173 FERC ] 
61,158 (2020), aff'd in part and remanded in part sub nom. Solar 
Energy Indus. Ass'n v. FERC, 80 F.4th 956 (9th Cir. 2023) (Solar 
Energy).
    \2\ 16 U.S.C. 796(17)-(18), 824a-3.
    \3\ 42 U.S.C. 4321 et seq.; see also 18 CFR pt. 380 (2023) 
(Commission's regulations implementing NEPA).
    \4\ Solar Energy, 80 F.4th at 996-97.
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    This notice identifies Commission staff's intention to prepare an 
EA for Order No. 872 and sets forth the

[[Page 80550]]

planned schedule for completion of the environmental review.\5\
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    \5\ 40 CFR 1501.10(b) (2024). In accordance with the Council on 
Environmental Quality's regulations, the unique identification 
number for documents relating to this environmental review is EAXX-
19-20-000-1726219809. 40 CFR 1501.5(c)(4).
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Schedule for Environmental Review

Issuance of EA December 19, 2024
End of Public Comment Period January 21, 2025

    If a schedule change becomes necessary, additional notice will be 
provided so that the relevant agencies are kept informed of the 
progress.

Summary of Order No. 872

    In Order No. 872, the Commission revised its regulations under 
PURPA sections 201 and 210 regarding qualifying facilities (QF). Among 
those revisions, the Commission granted states certain flexibilities in 
setting a QF's energy and capacity rates. The Commission modified its 
``one-mile rule'' for determining whether generation facilities are at 
the same site for purposes of determining qualification as a qualifying 
small power production facility, and further clarified how the distance 
between facilities is to be calculated. The Commission also allowed an 
entity to challenge QF certification without being required to file a 
separate petition for declaratory order. The Commission additionally 
updated the threshold, from 5 megawatts (MW) to 20 MW, for small power 
production facilities entitled to a rebuttable presumption that they 
have nondiscriminatory access to certain markets. The Commission 
clarified that a QF must demonstrate commercial viability and a 
financial commitment before it is entitled to a legally enforceable 
obligation. Finally, the Commission determined that it was not required 
to conduct an EA or environmental impact statement before issuing Order 
No. 872.
    In Solar Energy, the Ninth Circuit upheld the specific reforms in 
Order No. 872 but found that the Commission violated NEPA by failing to 
prepare an EA before promulgating the final rule.\6\ Finding that 
extraordinary disruptive circumstances would accompany vacatur, the 
Ninth Circuit remanded the final rule without vacatur, so that the 
Commission could prepare an EA.
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    \6\ Solar Energy, 80 F.4th at 997.
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    Commission staff intends to prepare an EA for Order No. 872 in 
accordance with the schedule above.

Resource Areas Under Consideration

    Consistent with the Ninth's Circuit's opinion, the EA will analyze 
Order No. 872's potential impacts on climate change and air quality, 
including any reasonably foreseeable greenhouse gas emissions and any 
environmental justice impacts resulting from these emissions. The EA 
will not analyze: geology; soils; water resources and wetlands; 
vegetation and wildlife; threatened, endangered, and candidate species; 
cultural resources; and land use and aesthetics.\7\
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    \7\ Id. at 994. (``We agree with FERC that it could not 
reasonably consider the local effects of Order 872 on, say, 
vegetation, water quality, and wildlife because it could not predict 
which States would adopt which components of Order 872.'').
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Additional Information

    With this notice, the Commission is asking agencies with 
jurisdiction by law or special expertise with respect to the 
environmental issues of this final rule to formally cooperate in the 
preparation of the environmental document.\8\ Agencies that would like 
to request cooperating agency status should file their request with the 
Commission following the method described below.
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    \8\ See 40 CFR 1501.8.
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    The Commission strongly encourages electronic filing. Please file 
using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 
characters, without prior registration, using the eComment system at 
http://www.ferc.gov/docs-filing/ecomment.asp. You must include your 
name and contact information at the end of your comments. For 
assistance, please contact FERC Online Support at 
<a href="/cdn-cgi/l/email-protection#b5f3f0e7f6fadbd9dcdbd0e6c0c5c5dac7c1f5d3d0c7d69bd2dac3"><span class="__cf_email__" data-cfemail="41070413020e2f2d282f24123431312e333501272433226f262e37">[email protected]</span></a>, (866) 208-3676 (toll free), or (202) 502-
8659 (TTY). In lieu of electronic filing, you may submit a paper copy. 
Submissions sent via the U.S. Postal Service must be addressed to: 
Debbie-Anne A. Reese, Acting Secretary, Federal Energy Regulatory 
Commission, 888 First Street NE, Room 1A, Washington, DC 20426. 
Submissions sent via any other carrier must be addressed to: Debbie-
Anne A. Reese, Acting Secretary, Federal Energy Regulatory Commission, 
12225 Wilkins Avenue, Rockville, Maryland 20852. The first page of any 
filing should include the docket number RM19-15-002. Comments emailed 
to Commission staff are not considered part of the Commission record.
    In order to receive notification of the issuance of the EA and to 
keep track of formal issuances and submittals in specific dockets, the 
Commission offers a free service called eSubscription. This service 
provides automatic notification of filings made to subscribed dockets, 
document summaries, and direct links to the documents. Go to https://www.ferc.gov/ferc-online/overview to register for eSubscription.
    The Commission's Office of Public Participation (OPP) supports 
meaningful public engagement and participation in Commission 
proceedings. OPP can help members of the public, including landowners, 
environmental justice communities, Tribal members, and others, access 
publicly available information and navigate Commission processes. For 
public inquiries and assistance with making filings, the public is 
encouraged to contact OPP at (202) 502-6595 or <a href="/cdn-cgi/l/email-protection#c48b949484a2a1b6a7eaa3abb2"><span class="__cf_email__" data-cfemail="206f707060464552430e474f56">[email protected]</span></a>.
    Additional information about the final rule is available from the 
Commission's Office of External Affairs at (866) 208-FERC or on the 
FERC website (www.ferc.gov). Using the ``eLibrary'' link, select 
``General Search'' from the eLibrary menu, enter the selected date 
range and ``Docket Number'' excluding the last three digits (i.e., 
RM19-15), and follow the instructions. For assistance with access to 
eLibrary, the helpline can be reached at (866) 208-3676, TTY (202) 502-
8659, or at <a href="/cdn-cgi/l/email-protection#692f2c3b2a26070500070c3a1c1919061b1d290f0c1b0a470e061f"><span class="__cf_email__" data-cfemail="75333027363a1b191c1b10260005051a070135131007165b121a03">[email protected]</span></a>. The eLibrary link on the FERC 
website also provides access to the texts of formal documents issued by 
the Commission, such as orders, notices, and rule makings.

    Dated: September 26, 2024.
Debbie-Anne A. Reese,
Acting Secretary.
[FR Doc. 2024-22755 Filed 10-2-24; 8:45 am]
BILLING CODE 6717-01-P


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